Wojciechowski v. Nat'l Oilwell Varco

• Decision Date: 12 January 2011
• Docket Number: Civil Action No. C–10–43.
• Citation: 763 F.Supp.2d 832
• Parties: Sarina L. WOJCIECHOWSKI, Plaintiff,v.NATIONAL OILWELL VARCO, L.P., Defendant.
• Court: U.S. District Court — Southern District of Texas

763 F.Supp.2d 832

Sarina L. WOJCIECHOWSKI, Plaintiff,

v.NATIONAL OILWELL VARCO, L.P., Defendant.

Civil Action No. C–10–43.

United States District Court, S.D. Texas, Corpus Christi Division.

Jan. 12, 2011.

Adam Poncio, Poncio Law Offices PC, San Antonio, TX, Paul David Andrews, Attorney at Law, Keith M. Gould, The Gould Law Firm, Corpus Christi, TX, for Plaintiff.Miranda Tolar, Locke Lord Bissell and Liddell, Houston, TX, for Defendant.

ORDER

JANIS GRAHAM JACK, District Judge.

Pending before the Court are Defendant National Oilwell Varco's Motion for Summary Judgment (D.E. 29) and Defendant's Motion to Strike Plaintiff Sarina Wojciechowski's Summary Judgment Evidence. (D.E. 33.) For the reasons set forth below, Defendant's Motion for Summary Judgment (D.E. 29) is DENIED IN PART and GRANTED IN PART, as detailed herein. Defendant's Motion to Strike (D.E. 33) is DENIED in PART and GRANTED IN PART, as detailed herein.

I. JURISDICTION

This Court has subject matter jurisdiction over this action because Plaintiff brings claims under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq.

II. BACKGROUND

A. Factual Background

Plaintiff Sarina Wojciechowski alleges she was discriminated against because of her sex while she was an employee for Defendant National Oilwell Varco (“NOV”). Specifically, she alleges she was given less pay than similarly-situated male counterparts, heavier work assignments with less assistance than male employees, and was denied certain work-related benefits, such as use of a company vehicle, which were given to male employees. (D.E. 24, p. 3.)

The summary judgment evidence establishes as follows:

Defendant NOV is a company that provides mechanical components for land and offshore drilling rigs and other drilling equipment. (D.E. 29, Ex. 1 (Jurecek affidavit) at ¶ 2.) Plaintiff was hired by NOV on August 7, 2007 and began working as an administrative assistant in NOV's Corpus Christi office, part of the company's Mid–South Region. (D.E. 29, Ex. 2 (Wojciechowski Depo.) at 26–27.) Her supervisor at the time was Matthew Crook, the District Manager of NOV's Corpus Christi office, who reported to Michael Jurecek, the Mid–South Regional Manager. ( Id. at 29.) Plaintiff, who had no prior experience in the oil and gas industry, was given a starting rate of pay of $11 per hour. ( Id. at 18, 19, 26.) In her role as administrative assistant Plaintiff did general secretarial work. ( Id. at 28–29.)

On May 3, 2008, Plaintiff was promoted to the position of office manager of NOV's Corpus Christi office. She was in charge of supervising one receptionist. Otherwise, her duties were largely the same. Her pay increased from $11 per hour to a salary of $37,440 per year. ( Id. at 32–34.)

In the summer of 2008, NOV closed its Corpus Christi office for business reasons, merging the office with the Alice, Texas office. Alice's office already had a manager and a second manager was not required. Therefore, in an effort to keep Plaintiff in its workforce, NOV decided to give Plaintiff the job of entry-level Sales Manager at the Alice office, starting August 25, 2008. ( Id. at 40, 49.)

As entry-level Sales Manager, Plaintiff was responsible for overseeing the sales activities of seven “outside sales employees” (or “account managers”) and six “inside sales employees” (or “dispatchers”), and also was responsible for completing related paperwork and reports. She reported to K.C. Potter, District Manager for the Alice office, who in turn reported to Jurecek. ( Id. at 52, 57, 39, 49, 50.)

The parties are in agreement that, despite her promotion to Sales Manager in August 2008, Plaintiff's pay level was not increased. According to Jurecek, the reason was that this was an entry-level position, Plaintiff had no prior experience in this type of position, and Plaintiff had just been given a pay raise due to her promotion to office manager in May 2008. (D.E. 29, Ex. 1 (Jurecek affidavit) at ¶ 6.) Moreover, NOV contends, NOV was forced to freeze all merit based pay increases for its management staff due to negative market conditions in late 2008 and early 2009. According to Jurecek, none of the Sales Managers in the Mid–South Region, including Plaintiff, received a merit based pay increase during the last quarter of 2008 or the first two quarters of 2009. (D.E. 29, Ex. 1 (Jurecek affidavit) at ¶ 7.)

On April 13, 2009, NOV informed Plaintiff that she would be discharged due to NOV's need to reduce its work force. (D.E. 29, Ex. 1 (Jurecek affidavit) at ¶ 8.) Following the discharge, Jurecek redistributed Plaintiff's duties as Sales Manager between K.C. Potter (District Manager of the Alice office), Robert Caskey (an outside sales employee or “account manager”) and Blas Castillo (an inside sales employee or “dispatcher”). Mr. Caskey assumed the responsibility for coordinating and overseeing the activities of the outside salespeople in the Alice office. But, according to Jurecek, Caskey's primary job duty remained engaging in outside sales to customers and he continued calling on and making sales to NOV's customers and potential customers at their rig sites. He was not given an “assistant” to help him complete his tasks. ( Id. at ¶ 9.)

B. Procedural Background

On April 16, 2009, three days after she was terminated from her job, Plaintiff timely filed a charge of discrimination against Defendant with the Equal Employment Opportunity Commission (“EEOC”) alleging gender discrimination under Title VII of the Civil Rights Act and the Equal Pay Act. (D.E. 24, p. 4.)

On February 9, 2010, Plaintiff filed a Complaint with this Court alleging gender discrimination under Title VII, the Equal Pay Act, and the Texas Commission on Human Rights Act (TCHRA). (D.E. 24.)

On May 13, 2010, 2010 WL 1960977, the Court granted Defendant's 12(b)(6) motion to dismiss Plaintiff's claim for wrongful discharge under Title VII and the TCHRA, finding that Plaintiff had failed to exhaust her administrative remedies because she did not raise her claims for wrongful termination in her EEOC charge, even though it was filed three days after she was terminated. (D.E. 28.)

Defendant now moves for summary judgment on the remainder of Plaintiff's claims: (1) wage discrimination under the Equal Pay Act; (2) wage discrimination under Title VII; and (3) disparate treatment under Title VII, the Equal Pay Act and the TCHRA. (D.E. 29.) Plaintiff filed a timely response. (D.E. 32.)

On December 10, 2010, Defendant also filed a motion to strike certain portions of Plaintiff's summary judgment evidence. (D.E. 33.) Plaintiff filed her response on January 4, 2011, providing no explanation for her failure to respond within 21 days. Because Plaintiff failed to timely respond, the motion is deemed unopposed. See Fed.R.Civ.P. 12(a); L.R. 7.4.

III. MOTION TO STRIKE

The court first addresses Defendants' motion to strike certain portions of Plaintiff's summary judgment evidence.

A. Plaintiff's Statements Relating to Wrongful Termination

Defendant objects to those portions of Plaintiff's Affidavit complaining of her allegedly wrongful termination. (D.E. 32 (depo.) at, e.g., ¶ 10) (“I was subjected to different terms and conditions of employment, and what I believe to be a wrongful termination of employment.”) Defendant correctly states that because Plaintiff's wrongful termination claims have been dismissed, (D.E. 28), she cannot now resurrect those claims. However, Plaintiff's allegations about her termination are not, as Defendant urges, “completely irrelevant.” (D.E. 33 at 2.) Rather, Plaintiff's termination is relevant to her description of the general working environment at NOV and to the Court's evaluation of the other adverse employment actions allegedly taken against Plaintiff. Accordingly, Defendant's motion to strike these portions of Plaintiff's Affidavit is DENIED.

B. Portions of Affidavit Contradicting Prior Sworn Testimony

It is well-established that a party may not “defeat a motion for summary judgment using an affidavit that impeaches without explanation sworn testimony.” S.W.S. Erectors v. Infax, Inc., 72 F.3d 489, 495 (5th Cir.1996) (citing Thurman v. Sears, Roebuck & Co., 952 F.2d 128, 137 n. 23 (5th Cir.), cert. denied, 506 U.S. 845, 113 S.Ct. 136, 121 L.Ed.2d 89 (1992); Albertson v. T.J. Stevenson & Co., 749 F.2d 223, 228 (5th Cir.1984)). On the other hand, “[w]hen an affidavit merely supplements rather than contradicts prior deposition testimony, the court may consider the affidavit when evaluating genuine issues in a motion for summary judgment.” Id. at 496 (citing Clark v. Resistoflex Co., 854 F.2d 762, 766 (5th Cir.1988)) (distinguishing between an affidavit that “clarifie[s] or amplifie [s] the facts by giving greater detail or additional facts not previously provided in the deposition[ ]” and an affidavit that “tells the same story differently.”)

Defendant points to various alleged inconsistencies between Plaintiff's sworn Affidavit and her prior sworn deposition testimony, arguing that any portions of the Affidavit that conflict with the deposition testimony should be stricken. (D.E. 33, p. 3.) The Court evaluates each alleged inconsistency in turn.

1. Addition of New Comparators

Defendant contends Plaintiff testified in her deposition that there are six male employees to whom she is comparing herself for purposes of Title VII and the Equal Pay Act, and that the portion of her Affidavit in which she attempts to add two new comparators (Jeff Carter and Brad Pawlak) should be struck from the record. (D.E. 33, p. 4.)

During her deposition, Plaintiff was asked to make a list of all the males she claims made more than her for performing the same job. Plaintiff indicated six males—Robert Pulido, Cody Pennell, Robert Caskey, Rodney Cooper, Layne Stubblefield, and Neil Fletcher. (D.E. 32, p. 5; D.E. 29, Ex. 1 (Wojciechowski Depo.) at 86) (Q: “So, do you have names?” A: “Robert Pudillo ... Cody Pennell ... Lane Stubblefield ...” Q: “I need a list of...