IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JACQUELINE DRINKS, : CIVIL ACTION NO.: 02-CV-4352

:

Plaintiff, :

:

v. :

:

LOCKHEED MARTIN CORPORATION :

MANAGEMENT & DATA SYSTEMS, :

:

Defendant. :

MEMORANDUM OF LAW 

IN REPLY TO PLAINTIFF’S OPPOSITION TO 

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

Defendant filed its Motion for Summary Judgment and its Legal Memorandum in

support thereof, outlining its claim to a right to Summary Judgment on the basis that

plaintiff’s claims are time barred, that plaintiff had failed to carry her burden of

establishing pretext and the plaintiff had failed to prove retaliation.

Plaintiff has filed a Memorandum of Law in Opposition to defendant’s Motion,

contesting all three bases raised by defendant.

After careful review of plaintiff’s opposition and the record, defendant sees

nothing that would change its right to a Summary Judgment and reiterates its request to

the Court to issue a Judgment in its favor.

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II. JURISDICTION BASED ON TIMELINESS

In a dual filing, as here, plaintiff correctly points out that the EEOC permits a 300

day window from the date of the alleged violation to file a charge with it. Granted this

time window, plaintiff has failed to show that any act taken by defendant, other than the

lay off itself, lies within the statute’s time limitations. Plaintiff brings four postings to the

Court’s attention, all of which plaintiff argues fall within the applicable statute of

limitations. 

Defendant disagrees. Looking at the posting most prominently cited by plaintiff,

we see that plaintiff applied for a posted position and was notified on May 10, 1999 by

Maureen Sheehan, the hiring manager, that she was not selected for the assignment. (Pl.

Opp., Exh. “H”) The document shows the objective criteria used to determine the relative

qualifications of the five applicants. Plaintiff, rated at 140 points, fell in the middle. The

lowest ranked applicant received a score of 110; another applicant received 140, the same

as plaintiff. The winning applicant scored 180 points, while the runner up received 170.

However, inasmuch as the notice was given to plaintiff on May 10, 1999 and as

plaintiff filed her charge with the EEOC on July 17, 2000, it is clear that plaintiff is timebarred with regard to this posting. As to the other three postings (Pl. Opp., Exh.’s “I”, “J”

and “K”), the dates of these applications are 8/17/99, 6/17/99 and 6/11/99, respectively. 

While plaintiff admits that she was “subsequently rejected” for these positions, plaintiff

fails to establish any dates within the time limitation of 300 days. Given the dates of

application and the speed with which openings were filled, it is highly unlikely that

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plaintiff can carry her burden of proof as to timeliness.

Furthermore, plaintiff makes no argument that any of these positions were denied

to her on the basis of pretext. It is clear that plaintiff has abandoned her claims of pretext

with regard to these positions.

Therefore, the Court should grant defendant’s Motion with regard to these claims.

III. PRETEXT

A. Overview

Plaintiff has abandoned all claims of pretext, other than the “challenged

employment action” of the lay off, as set forth on pages 12-13 of its memorandum of law. 

With regard to the lay off, plaintiff puts forward three separate assertions as bases from

which pretext can be inferred:

“Despite defendant’s claims to the contrary, plaintiff has provided evidence

that defendant’s reasons for the challenged employment action are at a

minimum, inconsistent and contradictory, relegating to pretext, defendant’s

proffered reasons for terminating plaintiff.”

Plaintiff’s first allegation of proof of pretext is that the testimony of Grebe and

Sheehan are inconsistent with the final two appraisals and may (defendant presumes)

have tainted the lay off decision.

Plaintiff’s second allegation of proof of pretext is that Sheehan chose the wrong

group of employees to be compared in the reduction in force matrix in violation of

company policy, thus, presumably, tainting the lay off decision.

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Plaintiff’s third allegation of proof of pretext is that Sheehan pre-judged the lay off

decision, thus tainting the objectivity of the RIF matrix.

For the reasons set forth, below, defendant believes that plaintiff’s assertions are

wrong factually, logically and legally.

B. Testimony of Grebe and Sheehan

1. Summary of Plaintiff’s Allegations

Plaintiff premises her position on the proposition that “...Plaintiff’s Appraisal

Reports...should have informed, in large part, the decision as to whether to lay off

plaintiff under defendant’s Reduction in Force initiative.” (Pl, Opp., 11) Plaintiff then

alleges that the testimony of Grebe and Sheehan show some disagreement with the

accuracy of two of plaintiff’s appraisals, the 3/97-6/98 appraisal and the 4/98-4/99

appraisal. Plaintiff finally concludes that “The incongruity between plaintiff’s written

appraisal reports and her actual performance as testified to by both Mary Grebe and

Maureen Sheehan, presents sufficient evidence to ‘meaningfully throw into question, i.e.,

to cast sufficient doubt upon,’ the employer’s reasons for laying off plaintiff.” (Id.)

Specifically, plaintiff then cites, as “incongruities,” Grebe’s testimony on the 4/98-

4/99 appraisal (See Exhibit “A” - Grebe Dep., 42-43); Grebe’s Note to Sheehan from

Grebe’s input to the 4/98-4/99 appraisal; Grebe’s testimony on the 3/97-6/98 appraisal

(Id., 67); Sheehan’s testimony on the 3/97-6/98 appraisal (See Exhibit “B” - Sheehan

Dep., 42); and Sheehan’s testimony on the 4/98-4/99 appraisal.

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2. Summary of Defendant’s Reply

First, plaintiff’s argument is based on a faulty premise. Defendant’s policy, MPE0527, cited as Exhibit “E” to plaintiff’s opposition, has four rating categories, of which

historical performance is one. The cited policy’s instructions on how to compare

employees in the area of historical performance does not limit itself just to the written

performance appraisals, as plaintiff would have us believe. Even plaintiff had to admit

that the actual language of the instruction permits the use of “other related

documentation” in addition to the appraisals when making a comparison.

Second, Sheehan’s testimony clearly states that, for all nine employees, she relied

upon the last couple of appraisals for jobs that were comparable, did an overall

assessment and ranked them from 1 through 9 (9 being the lowest). (Sheehan Dep., 69)

Third, plaintiff’s characterization of the testimony of Grebe and Sheehan is

factually inaccurate. It is important to note that Grebe’s testimony on this point is

irrelevant, as she did not participate in the decision to lay off plaintiff.

Fourth, plaintiff has failed to address the performance of the other eight employees

being compared to plaintiff in the matrix.

Fifth, plaintiff has failed to show any evidence that Sheehan actually did

something other than what she testified she did.

The real question before the Court is whether Sheehan used good faith efforts to

decide who to lay off in March of 2000 or whether Sheehan’s decision was tainted by

pretext. Of course, the answer to this question rests on the credibility and integrity of the

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person performing the comparison, namely Maureen Sheehan. We need to take a moment

to review her actions with regard to plaintiff.

Sheehan sought the input from three individuals before writing her appraisal of

plaintiff’s performance for the 4/98-4/99 time period. Sheehan sought the input of a

fellow worker (Standeben), input from plaintiff’s supervisor (Grebe) and input from a

manager on a program that plaintiff had been assigned to temporarily (Clampitt). 

(Sheehan Dep., 47-49)

We know that Clampitt’s written input was very negative (Exh. “C”) but was

largely ignored by Sheehan. (Sheehan Dep., 49) We know that Sheehan felt she was

justified to give plaintiff 1’s (lowest rating) instead of 2’s on plaintiff’s appraisal but

didn’t do so because she felt it would be too harsh. (Id., 44-46) We know that Sheehan

gave plaintiff an overall 3 rating (satisfactory) when Clampitt’s and Grebe’s inputs would

have indicated a lower rating was appropriate. We know that Sheehan counseled plaintiff

on ways to improve but that plaintiff refused to take Sheehan’s advice because plaintiff

disagreed with Sheehan’s assessment. (Id., 43)

We know that Sheehan kept plaintiff on A01 (no assignment) for over a year,

when she could have terminated plaintiff’s employment at any time according to HR due

to lack of work. (Id., 52; 58; 60-61; 68) We know that HR didn’t require a matrix to be

used in plaintiff’s case but that Sheehan took the time to perform a matrix anyway,

because she thought that it would be the fair thing to do. (Id., 60-61; 68; See Exhibit “D”

- Plummer Dep., 33) We know that Sheehan could have used just the last appraisal in her

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assessment of historical performance, per the 12-24 month window established in the

company policy, but that she used the earlier appraisals as well, thus benefiting plaintiff.

(Id., 69)

The only conclusion that any reasonable and objective person could draw from

these facts is that Sheehan exercised sound judgment, tried to be fair and was not

motivated by race to discriminate against plaintiff.

3. Details of Defendant’s Reply

a. MPE-0527

Historical performance is defined on page 4 (Instructions for Completing

Reduction-in-Force Identification Matrix) as: “Comparison based on past performance of

the individuals being considered, principally within the last twelve to twenty-four months. 

The individual who has been consistently the best performer should ranked the highest. 

The results of the ranking should be consistent with available documentation on past

performance; that is, written performance appraisals and other related documentation.”

(Emphasis added)

This policy would have permitted Sheehan to use Clampitt’s and Grebe’s appraisal

inputs and no adverse inference could have been drawn, had Sheehan done so.

The whole foundation of plaintiff’s argument fails at the outset.

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b. Basis of RIF Matrix Rankings (Historical

Performance)

As set forth in Section B.2 of defendant’s Legal Memorandum in Support of its

Motion for Summary Judgment, there is ample evidence that the decision to lay off

plaintiff was based on objective, documented evidence. Generally, that Section also

outlines evidence that no racial discrimination took place, including plaintiff’s admissions

as to this fact.

In addition, we have Sheehan’s testimony on the specific issue of comparison of

the nine employees. Rather than just use the final appraisal for the period 4/98-4/99,

Sheehan testified that when she compared the nine employees in the area of historical

performance, she “...looked at their past Performance Appraisals, not necessarily the

most recent one, but over a couple of maybe in the past two, three—it depended, I guess,

on what the job people were performing. I didn’t pick appraisals for a job that wasn’t

comparative and did an overall assessment of what their overall performance was and

ranked them 1 through 9.” (Sheehan Dep., 69)

c. Plaintiff’s Misstatement of Testimony of Grebe and

Sheehan

With regard to plaintiff’s errors in trying to set forth Grebe’s testimony, defendant

has attached an Addendum hereto as evidence of plaintiff’s misstatements. Because

Grebe did not participate in the lay off decision, defendant has not included this material

in the main body of this Reply Memorandum.

Case 2:02-cv-04352-JF Document 10 Filed 10/03/2003 Page 8 of 16
With regard to Sheehan, plaintiff refers to testimony addressing the 3/97-6/98

appraisal done by Mike Lewis and her own appraisal covering the period of 4/98-4/99. 

With regard to the 3/97-6/98 appraisal, plaintiff alleges that Sheehan testified that

“Mike Lewis’ appraisal is not ‘particularly accurate...’ “(Sheehan Dep., 42)

Actually, when asked about the accuracy of the Lewis appraisal, Sheehan

answered: “Well, I do not believe that Mike Lewis is as particularly accurate and that

would be March ’97 to June ’98 appraisal period, but that was not written by me nor is

that my stated opinion. That is his opinion of Jacqueline’s work. So I don’t want to

comment on that. I can address the two that you gave me with Mike Clampitt and Mary

that I used to write mine.” (Id.)(Emphasis added)

No inferences can be drawn out of this testimony to support plaintiff’s position;

certainly this is not proof of bad faith or pretext.

With regard to the 4/98-4/99 appraisal written by Sheehan, plaintiff alleges that

Sheehan testified that her own appraisal of plaintiff’s performance contained

“nothing’which would indicate any deficiencies in [her] work’, and was the very

document to which she [plaintiff] would have referred in order to ascertain the level of

her performance at Defendant....” (Sheehan Dep., 49)

Looking at the cited page of Sheehan’s testimony, it is plain that Sheehan admitted

that plaintiff could go to the appraisal to determine how she was doing but made no

mention of what the appraisal said or did not say. Contrary to this rather blatant attempt

to misstate Sheehan’s testimony, Sheehan actually stated that plaintiff would not sign the

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appraisal because of her disagreement over the “development needs” section that Sheehan

had written in the appraisal (Id., 43), that certain parts of the appraisal indicated

unsatisfactory performance by plaintiff (Id., 44), that certain parts of the appraisal

indicated incompetence in some areas (Id., 45) and that Sheehan could have given

plaintiff some 1’s (unsatisfactory) in some areas. (Id., 46) Contrary to plaintiff’s

assertions, there were clear indications in the body of the appraisal that plaintiff had

deficiencies in her work. (See Exhibit “E” - corrected Exhibit G, Defendant’s Main

Memorandum)

Again, nothing in Sheehan’s actual testimony gives rise to an inference of bad faith

or pretext.

d. Summary

Plaintiff has misstated the policy guidelines to be used to assess historical

performance, has misled the Court as to what Sheehan actually did in making such an

assessment and has misstated factually the testimony of Grebe and Sheehan. Plaintiff has

made no logical connection between her allegations and even an inference of bad faith or

pretext, and legally plaintiff has failed to show any good reason why this Court should not

grant defendant’s Motion.

Case 2:02-cv-04352-JF Document 10 Filed 10/03/2003 Page 10 of 16
C. Choice of Work Group for RIF Matrix

Plaintiff alleges that, because some of the employees being grouped in the RIF

matrix “had different tasks and task assignments as compared to plaintiff,” this Court

should jump to the conclusion that the RIF policy was violated and that the violation was

motivated by Sheehan’s bad faith and pretext. Other than plaintiff’s bold assertions, there

is nothing in the record to support plaintiff’s position.

As was shown in Section B.2 of defendant’s Legal Memorandum in Support of

Defendant’s Motion for Summary Judgment, Sheehan’s testimony on the RIF policy is

uncontroverted by plaintiff. Plaintiff has admitted that she was not aware of the RIF

policy (See Exhibit “F” - Drinks Dep., 116), and plaintiff has not produced an expert on

this subject. Sheehan had testified that she used the job family (FUCDN) to determine

that she had nine people and only 8 positions and then used the same job family to set up

the RIF matrix. (Sheehan Dep., 58-61; 64-67)

The policy itself (Para. B.2 of Implementation) requires that the manager

“determine logical sets of employees in each set of functions, skills or positions to be

compared for selection for layoff.” The instructions for completing the RIF matrix added

the following: “Define Group/Community of Interest, a logical set of employees

performing similar functions with similar compensation, to be compared on the matrix.”

Sheehan chose the job family as the logical set of employees because the core

duties of configuration management, the area in which plaintiff worked, were comparable

across the nine people in that job family. (Sheehan Dep., 64-65) She chose only the

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people who assigned to her. (Id., 66) In order to take into account different tasks,

Sheehan testified “Well, I actually try and factor out the tasks that they’re assigned, if that

makes sense. You only want to focus on the thing that you can compare, not the things

that you can’t compare. (Id., 65)

Sheehan’s general understanding of the RIF policy was confirmed by the testimony

of an HR representative, experienced in the application of this policy. (Plummer Dep., 30;

32-38)

All of the evidence in the record points in the same direction, namely that Sheehan

exercised her discretion wisely and chose the right group to compare in the matrix. 

Plaintiff has failed to provide any evidence to the contrary or evidence that Sheehan’s

choice was caused by pretext.

IV PRE-JUDGMENT OF LAYOFF

Plaintiff alleges that because HR told Sheehan that she could reduce her staff by

one by laying off the only employee in the FUCDN0 level because of continued lack of

work (A01) that this knowledge somehow caused Sheehan to pre-judge the RIF matrix

and choose plaintiff before the rankings were made and the numbers were counted.

This argument is patently absurd.

The RIF policy was controlled by HR, which wrote and interpreted the policy. (See

pages 1 and 3 of MPE-0527.) HR was responsible for “ensuring approvals of rankings

and analysis...” (p.2) Leslie A. Bethea was the Director, Human Resources, at the time

for the business area that included configuration management. A black male, Bethea

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reported directly to the Vice President, Human Resources.

Sheehan’s testimony on this point is as follows: 

“A: Because she [plaintiff] was the only one in that level

[0], I technically was not required to do this matrix

according to my HR representative, Human Relations

representative.

“Q: Who would that have been?

“A: Less Bathea(ph).” (Sheehan Dep., 60-61)

Roy Plummer, an experienced HR representative, testified that managers do not

try to apply MPE-0527 in a vacuum but work with HR and legal to get advice and

guidance. (Plummer Dep., 30; 35) Plummer also confirmed how people on A01 for

extended periods of time are targets for lay off. (Id., 33)

Plaintiff was the only level “0” employee, and she had been on A01 (no

assignment) for over a year. Plaintiff admitted that her primary responsibility while on

A01 was to find another assignment. (Drinks Dep., 41)

After keeping plaintiff on A01 for over a year, Sheehan finally had to take action

to downsize. Instead of taking an easy path set forth by HR, which would have meant

selecting plaintiff for a lay off, Sheehan took the time and effort to see if plaintiff should

be retained and another member of the FUCDN job family be laid off. Defendant cannot

see any logic in plaintiff’s assertion that Sheehan’s action, which could only help

plaintiff, would be grounds to claim pretext.

Case 2:02-cv-04352-JF Document 10 Filed 10/03/2003 Page 13 of 16
V. RETALIATION

Plaintiff asserts that she filed a claim of discrimination with Roy Plummer in 1997

and was laid off in 2000 in retaliation for having filed the claim.

Plaintiff has misstated Plummer’s testimony. Plummer recalled plaintiff’s visit to

him in early 1997. She came to him out of “frustration.” “...[S]he did make reference to

it was out of frustration. I don’t know, might it be discrimination. And I see behavior

like this on occasion with people who have posted for jobs without success. *** And

that’s when I made it very clear to her. Look, if you feel you’ve been discriminated

against, I need specifics. I need something to work with. You need to tell me what it is

exactly that happened that you feel discrimination exists, and I will be obligated and have

the responsibility to investigate it to the fullest.

“There was nothing there. The discussion at that point really directed to—well,

basically what she needed was assurance that she was gonna have continued work.” 

(Plummer Dep., 7-8)

Again, Plummer reiterated that all plaintiff related to him was a “feeling” of

“perhaps” being discriminated against. However, she provided no details. (Id., 12)

Plummer’s contemporaneous notes indicate the same tenor as his testimony. Near

the beginning, the notes state: “Frustrated by lack of results & not knowing why she has

not been selected. Wants to know if there are issues she needs to be aware of in order to

address/correct.” Later, on the second page, the notes indicate: “Feeling of perhaps

being discriminated against, but has no evidence, episodes, situations in support of such

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treatment. (Counseling her that if she had any specifics she needed to disclose them to

HR for investigation/addressing/correcting.)” (Pl. Opp., Exh. “G”)

Inasmuch as no claim was made, there was nothing to investigate. Plummer did

not start any investigation because plaintiff would not give any details, other than her

feeling that perhaps there was discrimination. There is no evidence that Plummer or

plaintiff went to her manager at the time, Mike Lewis. Plaintiff has previously admitted

that she never made a claim of discrimination against defendant while she was an

employee.

Finally, there is no evidence that Sheehan knew of this meeting with Plummer. As

it was Sheehan who made the lay off decision and not Plummer or Lewis, plaintiff has to

show that the lay off was motivated by retaliation and not the business downsizing, as

testified to by Sheehan.

For all the reasons, enunciated above, it is clear that Sheehan had no knowledge of

a claim of discrimination and made her decision solely for business reasons by the use of

objective criteria. Again, plaintiff has failed to carry her burden of proof here.

VI. CONCLUSION

Plaintiff’s Opposition raises no issues of material fact that should go before a jury,

presents no evidence that might, even faintly, suggest pretext and misstates the factual 

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record. For these reasons, the Court is again requested to enter Summary Judgment on

behalf of Defendant pursuant to F.R.C.P. 56(c).

Respectfully submitted,

SIDNEY L. GOLD & ASSOCIATES, P.C.

___________________________________

SIDNEY L. GOLD, ESQUIRE

Identification No.: 21374

1835 Market Street - Suite 515

Philadelphia, PA 19103

(215) 569-1999

Attorney for Defendant

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