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. :

LEGAL MEMORANDUM IN SUPPORT 

OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Defendant, Lockheed Martin Corporation Management and Data Systems

("Defendant") hereby files its memorandum of law in support of its motion for summary

judgment:

I. PROCEDURAL BACKGROUND

A. Status of Case

On or about June 26, 2002, Jacqueline Drinks ("Plaintiff") filed a civil action

complaint in federal court against defendant alleging violations of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e-2(A)(1) alleging racial discrimination, disparate

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treatment based upon race and retaliation. She also seeks compensatory and punitive

damages as well as injunctive relief against defendant. In this regard, plaintiff contends

defendant failed to promote her, failed to transfer her to "exempt" status, and ultimately

terminated her from defendant's employment, as a result of her race (African American).

 Discovery is complete. There being no genuine issue of material fact, defendant is

entitled to judgment as a matter of law. Pursuant to F.R.C.P. 56(b), defendant, therefore, files

its motion for summary judgment and this memorandum in support thereof.

B. Standard for review

FRCP 56(c) provides "the test [for granting summary judgment] is whether there is

a genuine issue of material fact, and if not, whether the [movant] is entitled to judgment as

a matter of law." Ambruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994). A "material

fact" is defined as a fact that affects the outcome of the litigation based upon the applicable

law. Kelly v. Drexel Univ., 907 F.Supp 864, 870 (E.D. Pa. 1995). Where "a reasonable jury

could return a verdict in favor of the non-moving party" based upon certain contested

evidence, a genuine issue exists that ultimately must be resolved by the factfinder, and the

court should deny summary judgment. Id.

However, where the factual record unequivocally demonstrates that no material issue

of fact exists and the non-moving party fails to sustain her burden of proof, the trial court

should grant summary judgment. When filing a motion for summary judgment, the movant

bears, at all times, the primary burden of establishing the lack of a material issue in dispute.

In ruling upon a summary judgment motion, therefore, the court must give all benefit of the

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doubt to the non-moving party, and "view inferences to be drawn from the underlying facts

in the light most favorable to the party opposing the motion." Bartnicki v. Vopper, 200 F.3d

109, 114 (3d Cir.1999) aff'd, 532 U.S. 514 (2000).

The non-moving party cannot merely cast doubt upon the movant's argument to create

a disputed issue in order to defeat summary judgment under Rule 56. Id. at 863. In order

to survive a motion for summary judgment, the non-moving party must identify specific facts

of record that support the conclusion that a genuine dispute exists, such that the factfinder

must resolve the dispute at trial, and "not rely merely upon bare assertions, conclusory

allegations, or suspicions." Id., citing Lujan v. National Wildlife Federation, 497 U.S. 871,

888 (1990). The non-movant, therefore, must direct the court's attention to sufficient

evidence that creates a justiciable fact, i.e., that would allow the fact-finder to rule in her

favor at trial. Gleason v. Norwest Mortgage, 242 F.3d 130, 138 (3d Cir. 2001). If the nonmovant fails to do so, the court should grant summary judgment. Id.

II MATERIAL ISSUES NOT IN DISPUTE

A. Factual Foundation

 

 In 1984, defendant hired plaintiff as a secretary in the Engineering Department.

(Drinks dep., 9 - Exhibit “A”). Her job duties included typing correspondence, answering

phones, making travel reservations, and other general clerical chores. (Id.). Prior to working

for defendant, plaintiff was employed as a secretary for the Philadelphia Naval Shipyard,

where her job duties were similar to those she initially performed for defendant. (Id.).

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 In 1990, plaintiff transferred to a new department, the configuration data management

department ("CDM") where her job title was "Building Specialist Configuration Manager."

Plaintiff's assignment was to support the computer engineers. She worked in the library,

filing and microfiching documents. (Complaint, ¶12-Exhibit “B”). During this time,

plaintiff alleges Ann Fusco was her supervisor, and responsible for training plaintiff.

However, defendant did not employ anyone named Fusco at that time. (Exhibit “C”,

Affidavit of Joanne Dietrich).

 Plaintiff claims she complained about Fusco and as a result, around 1990, was

transferred to another new program (Program 444) where she retained the same job title and

salary, although her new position was "non exempt." (Drinks dep., 38, Complaint, ¶ 15).

Plaintiff remained in this position until 1995, performing satisfactorily.

 In 1995, plaintiff transferred into another CDM program (Program 470). (Drinks dep.,

38-39, Complaint, ¶ 20). Although her salary was higher than before, she remained in nonexempt status. (Complaint, ¶ 18).

 In 1997, plaintiff was placed into the "TBD/TBR" area within CDM, although she also

continued to work in the microfiche library (Drinks dep., 81, Complaint, ¶ 23, Sheehan dep,

13 - Exhibit “D”). TBD/TBR stands for "to be determined/to be reviewed" and refers to

documents that track items that the program engineers determined need to be written or

revised. It was plaintiff's job to keep logs in order to track TBD/TBR documents, by entering

them into the CDM database, and maintain a "tickler" system to ensure the engineering

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review board ("ERB") remained aware of and took later action with respect to these open

items. (Grebe, dep., 12-13 - Exhibit “E”). Her supervisors at that time were Mary Grebe and

Michael Lewis. (Complaint, ¶ 23). The TBD/TBR position was administrative (i.e., on the

"administrative" side), as opposed to engineering, (i.e., on the "build" side). (Drinks dep.,

79).

From March, 1997 until April 1998, plaintiff worked as a librarian and as a member

of the TBR/TBD team. As her supervisor (Mary Grebe) and manager (Maureen Sheehan)

testified, her TBR/TBD assignment was not considered, nor funded as a full-time position,

and therefore required the person performing it to multi-task, which plaintiff did by

performing as a librarian. However, in December, 1997, due to budget cutbacks in the CDM,

the library position plaintiff had filled was abolished. (Sheehan dep., 15-16; Grebe dep., 11;

17; 20; 25; 54). Plaintiff was then assigned full time to TBD/TBR, even though this position

was not funded as a full-time one. (Grebe dep., 25).

 In October, 1998, due to lack of work within CDM, plaintiff was placed on paid "idle

time," or "A01 status," until approximately the time of her lay off. (Sheehan dep., 52-53).

As the plaintiff testified, A01 time operates as an internal "lay off" for purposes of working

on a project, only. Plaintiff continued to receive her pay and benefits during the idle time,

and was encouraged to find another position by checking company employment postings and

filling out self-nominations, and could take training courses. (Sheehan dep., 53-55).

Although an employee on "idle time" received full pay, these costs were charged to

defendant's overhead, as opposed to being billed to a client were the employee attached to

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a project. (Drinks dep., 40-41). The obvious implication is that the longer one remains on

"idle time" (i.e., unable to find a billable job and work on a project), the more precarious

one's position became within the company, because one essentially was drawing pay and not

doing any work.

Plaintiff took temporary positions that intermittently took her off of A01 status, but

found no permanent position within the company. One of these temporary assignments was

work on the Tomahawk missile program for approximately 3 months, under the management

of Mike Clampitt, who (along with Mary Grebe and Maureen Sheehan) also provided input

into Sheehan's appraisal review. (Sheehan dep., 40-41; Exhibit “F”, a copy of Sheehan's

request for appraisal input). Michael Lewis allegedly told plaintiff that exempt positions

were open in the "build department," however, when plaintiff applied for various "build side"

positions, she was rejected (Drinks dep., 79, Complaint, ¶ 27).

 In August, 1999, plaintiff received an overall "satisfactory" rating, (i.e., "3") in her

annual "performance appraisal" from Ms. Sheehan, with several "needs improvement" (i.e.,

"2") ratings included. (Exhibit “G”, a copy of Performance Review for period of 4/98 to

8/99). The review stated that budgetary constraints "identified in the summer of 1998 to the

CM team, forced management to downsize the CM admin. Positions by two heads.

[Plaintiff] was placed on A01 status in October, 1998 [briefly assigned to Clampitt's

management team pertaining to the close out of the Tomahawk program] and returned to A01

status when her assistance was no longer required."

 Thereafter, defendant again placed plaintiff on "lack of work status," i.e., A01 status.

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(Drinks dep., 22-23). She remained on idle time until she was terminated in March, 2000.

(Drinks dep., 42). Eventually, defendant's economic situation required Sheehan to cut a

position under her supervision; "I had eight jobs and nine people [including plaintiff, who

still was on "idle time"] and I needed to downsize by one person." (Sheehan dep., 61).

Towards that end, Sheehan testified that she was permitted by the company policy on

Reduction in Force ("RIF") as interpreted by HR to select plaintiff because she was on A01

(without any assignment or work). ( Id., 60-61). However, to be absolutely sure that she was

selecting the least qualified employee for lay off, Sheehan prepared a RIF matrix, as set forth

in this policy, of all employees within the non-exempt CDM "job family" of which plaintiff

was a member, in order to evaluate which employee should be laid off. (Id., 61; Exhibit “H”,

a copy of RIF Matrix). Because plaintiff ranked the lowest in terms of overall job

performance and versatility, plaintiff was the one chosen.

On March 16, 2000, plaintiff was given two weeks notice (i.e., until 3/31/00) of her

termination during a meeting with Sheehan and HR. (Drinks dep., 42-44; Complaint, ¶ 33;

Exhibit “I”, a copy of defendant's lay off letter to plaintiff). Plaintiff alleges she was the only

employee, and the only African American employee, to be laid off. (Complaint, ¶ 34). 

B. Facts Not in Dispute

1. M&DS Policies.

M&DS policies are non-discriminatory on their face and require the use of objective

and non-discriminatory criteria in their application by managers. (Exhibit “J”, a copy of

defendant's response to the PHRC).

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2. M&DS Policies Applied to Plaintiff.

Plaintiff has admitted that she did not know about specific M&DS policies, even

though she could access them on the M&DS intranet. (Drinks dep., 16; 21; 50; 93; 97; 116.)

Plaintiff has admitted that she was free to apply for any posted position (Id., 81) and

testified that she had applied for many positions that were so posted. (Id., 42; 74; 81). These

policies call for the listing of all open positions, the right for all employees to post (apply)

for those positions, the selection of qualified candidates to be called for interviews, the

criteria to be used in those interviews and the ratings of those interviewed and the selection

of the best qualified candidate. Plaintiff further admitted that in each case where she applied

for the open positions, she was treated fairly. (Id., 82-83). Finally, Plaintiff admitted that the

only complaint she had with the process for applying for open positions was that she was

"unhappy" that she was not chosen but also admitted that she had no idea whether the other

candidates were more qualified or not. (Id., 74-80; 82; 100).

Plaintiff admitted that she was only complaining about cross-training in this lawsuit.

"The training I was talking about that I did not receive appropriate training was crosstraining." (Id., 15). While she believed that the authorization was verbal, she had no

knowledge of whether a company policy existed on cross-training. (Id., 15-16). This type

of training was not a formal, internal course. Rather it was an informal term applied to those

situations where CDM personnel who were already assigned to a program could be trained

on-the-job to understand and execute the responsibilities of other CDM personnel during

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times of absence. (Sheehan dep., 29-32). Plaintiff admitted that this type of training was

under the control the CDM manager and given in the discretion of that manager. (Drinks

dep., 16).

Plaintiff admitted that she was not aware of the ("RIF") Policy. (Id., 116)

Sheehan testified that she was permitted by the RIF policy to select plaintiff because

she was on A01 (without any assignment or work). ( Id., 60-61). However, to be absolutely

sure that she was selecting the least qualified employee for lay off, Sheehan prepared a RIF

matrix, as set forth in this policy, of all employees within the non-exempt CDM "job family"

of which plaintiff was a member, in order to evaluate which employee should be laid off.

(Id., 61; Exhibit “H”). Because plaintiff ranked the lowest, plaintiff was the one chosen.

Plaintiff has admitted that she was not aware of this policy. (Drinks, dep., 116). Therefore,

none of Sheehan's testimony is contested.

During her deposition, plaintiff admitted that her interfaces with M&DS personnel

were professional and that at no time did she see or hear anything that would have led her to

believe that these individuals were motivated to discriminate against her. These individuals

included her managers, Lewis, Clampitt and Sheehan, and her supervisor, Grebe. (Id., 62-63;

71; 82-83; 87; 114; 116-117). Indeed, plaintiff admitted that the M&DS people treated her

"nice" (Id., 87) and that her only proof of discrimination was her own "assumption" or

"conjecture." (Id., 67-68; 89-90; 121).

Finally, plaintiff admitted that she never at any time during her employment at M&DS

complained, either formally or informally, orally or in writing, that she had been the victim

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of discrimination because of race or disparate treatment based on race. (Id., 21-22; 24; 47-48;

51; 53; 87; 94-95; 99), even though she also admitted that she knew she could go to HR to

register a complaint on discrimination. "I had the opportunity." However, she then stated

that she did not avail herself of that opportunity. (Id., 21-22). She did not complain when

she applied for other jobs (Id., 47-48) or when she was informed of her lay off. (Id., 45). 

Although she was aware of defendant's anti-discrimination policies, saw them posted

during her employment with defendant, knew defendant's clients (including the U.S. federal

government) required all outside contractors, such as defendant, to maintain and implement

anti-discrimination policies, and was aware of anti-discrimination laws, she did not mention

anything about discrimination or disparate treatment.

In short, Plaintiff did not claim that she had been discriminated against until after she

had left the company and filed her complaint with the Pennsylvania Human Rights

Commission. (Id., 94-95).

C. Factual Resolution of Potential Conflicts

 The purpose of this part of the factual section of the brief is to determine whether

certain factual conflicts arise to the level of a "genuine issue of material fact." As defendant

will show, these conflicts do not arise to that level, as they can not affect the outcome of the

litigation.

 

1. Potential Fusco Discrimination.

While defendant denies anyone of this name worked with plaintiff, defendant believes

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that, for purposes of deciding this motion, the Court will assume the truth of this allegation.

Nevertheless, this does not amount to a material fact in issue, as the encounter did not in any

way negatively impact plaintiff's pay, opportunities for advancement or ability to continue

to work at M&DS.

With regard to pay, defendant's records show plaintiff's salary was comparable to

other employees within her "job family" with higher-level positions. (Exhibit “K”, a copy of

the band salary information). With regard to opportunities for advancement through the job

posting system, plaintiff has admitted that no interfered with her ability to apply for postings,

that the process was fair, that nothing was unfair or discriminatory about the questions asked

and that no one was out to get her or would ask her trick questions. (Id., 81-83). Finally, with

regard to the lay off, it was based on the fact that the plaintiff was on A01 and was ranked

last in the RIF matrix. The matrix was based upon four objective criteria, namely past

performance, flexibility, critical skills and length of service.

As this potential conflict in expected testimony does not create a material fact in issue,

this conflict should be disregarded by the Court. Furthermore, these allegations are time

barred, as more fully set forth, below.

2. Potential Exempt Status Conflict.

Defendant does not dispute that Plaintiff complained that she wanted to be an

"exempt" employee. Defendant believes that, she was properly determined to be a nonexempt employee. Notwithstanding this potential factual conflict, it is not a material fact

because it will not affect the outcome of this litigation. 

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The status of an employee under the Fair Labor Standards Act ("FLSA") is determined

by HR policy and is based on whether the work performed is covered by FLSA or not. It is

not uncommon for these determinations to be changed from time to time, as they are a

statutory requirement and vary by job description. Defendant strongly believes that Plaintiff

was covered by the Act and was entitled to, among other things, overtime pay per company

policies. Furthermore, for the reasons stated in Subparagraph 1, above, the non-exempt

status did not adversely affect Plaintiff's pay, advancement opportunities or continued

employment.

Because plaintiff was in no harmed in terms of pay, advancement opportunities and

job security because of her classification by defendant as a FLSA-covered employee, this

conflict could not affect the outcome of this litigation and thus does not arise to the level of

a material fact in issue.

3. Potential Performance Issue Conflict.

Defendant does not dispute that plaintiff did not accept the company's performance

appraisal as being representative of her capabilities. This position conflicts with defendant's

documented perception of plaintiff's performance. This factual conflict does not arise to the

level of a material fact in issue, as this litigation is not a case of wrongful termination but one

of racial discrimination. Defendant's documented evidence of poor performance lists only

objective, non-discriminatory issues. Plaintiff admits that she disagreed with defendant's

appraisal of her but that she saw no evidence of discrimination. Therefore, the potential

factual conflict cannot affect the outcome of this litigation and so does not arise to the level

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of a material fact in issue.

Ms. Grebe testified that even though plaintiff was performing less than a full

position's worth of work in TBD/TBM, her work was inaccurate, untimely, too slow, and

required others (including Grebe) to re-do her data entries. (Grebe dep., 20-21). This

detracted from Grebe's other duties. (Id., 27). 

Sheehan also noted in the review that plaintiff's work "was not always of the highest

quality, or timely." At her deposition, Sheehan explained that in CDM management, two

critical performance criteria are necessary: accuracy and timeliness. Plaintiff lacked abilities

in either. (Sheehan dep., 35-36).

Sheehan's conclusions are also supported by Mary Grebe's testimony (Grebe dep., 20-

21), Grebe's own review of plaintiff's performance (Exhibit “L”, a copy of Grebe's input to

plaintiff's appraisal) and Grebe's contemporaneous logs of plaintiff's job performance.

(Exhibit “M”, a copy of Grebe's logs). Grebe also testified that out of the 10-12 other

employees she supervised, plaintiff was the only one who was unable to perform more than

one duty which was particularly alarming since plaintiff's TBD/TBR position was not funded

as a full-time position. (Grebe dep., 54). Mike Clampitt's assessment was harsher that

Sheehan's or Grebe's. He commented that plaintiff's performance was "sub-standard," and

gave her a "2" rating overall on the work she performed on the Tomahawk project. (Exhibit

“N”, a copy of Clampitt's input to plaintiff's appraisal).

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In September, 1999, plaintiff wrote a rebuttal to her review contesting her supervisors

were unfair in their assessments, but in that rebuttal, failed to complain that unlawful

discrimination and/or disparate treatment was the cause. (Drinks dep., 23-24; Exhibit “O”,

a copy of plaintiff's rebuttal). 

Moreover, even though there is a potential conflict between the way others saw

Plaintiff's performance and the way that Plaintiff viewed her own performance, that is not

germane to the decision of this motion. It is not necessary for defendant to prove that its

view was accurate. All that defendant needs to prove was that the views of Grebe, Sheehan

and Clampitt were made in good faith, reflect accurately their best opinion of Plaintiff's

performance and are supported by substantial, objective evidence. All of the documents,

created contemporaneously to the events as they transpired, are filled with specific

observations and facts. Even Plaintiff had to admit that there were errors in her work and

that precise dates are important (Id., 64).

There is simply no factual basis to believe that anything done by Grebe, Sheehan or

Clampitt was pretextual to cover up a desire to discriminate. This finding of fact is admitted

and not in controversy. Therefore, this factual conflict is not a material fact in issue because

it cannot affect the outcome of this litigation.

4. Potential Cross-Training Issue Conflict.

Plaintiff allegedly attempted to get training in order to succeed in applying for new

postings but claims Maureen Sheehan turned down these requests. Ms. Sheehan, however,

testified that she authorized all the training plaintiff requested during that time, i.e., two

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computer classes that were essentially unrelated to her job requirements, as well as provided

plaintiff with "cross training" in order that she could learn the functions of other positions

within her "job family," so that she might fill in for a co-worker if they went on vacation.

(Sheehan dep., 29-32). This presents a factual conflict. However, for the reasons stated

above, the conflict does not represent a material fact in issue because it cannot affect the

outcome of this litigation. 

During her deposition, plaintiff clarified her complaint to explain that the only training

opportunities that were denied to her were the ones involving "cross-training." (Drinks dep.,

15). As plaintiff has already admitted that she was not acquainted with M&DS policies, she

wasn't qualified to testify on the meaning or interpretation of any policy, whether formal or

informal. Her allegation that she needed cross-training in order to apply for postings is in

error, as she testified that she was able to apply for all postings in her job category. Second,

only after a CDM employee is assigned to a program, would cross-training be considered on

that program. We need to take Sheehan's uncontested testimony on this point, as she was

the only one qualified to make these determinations. The only exception to this would be if

her reasons were pretextual. However, when asked about any animus between Ms. Sheehan

and herself, plaintiff admitted that there was none. Therefore, there is no basis to believe that

the decisions by Sheehan were pretextual. Without any evidence that the cross-training was

denied because of racial discrimination directed at plaintiff, this factual conflict cannot arise

to the level of a material fact in issue because it cannot affect the outcome of the litigation.

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5. Potential Posting Issue Conflict.

Plaintiff applied for other positions under Sheehan's management. Sheehan testified

at her deposition about three of these postings in particular. Internal job postings included

the minimum qualifications the applicant needed to perform the job, and candidates were

ranked against each other in a comparative analysis. In each instance, plaintiff ranked the

lowest of all candidates for each position. (Sheehan dep., 56-57). 

All of the evidence supports a detailed evaluation of all applicants, using only

objective and non-discriminatory criteria upon which to judge the applicants' capabilities to

perform the job functions. Again, plaintiff has admitted that she saw no evidence that

Sheehan was not acting in good faith or was trying to discriminate against plaintiff.

Therefore, this factual conflict does not arise to the level of a material fact in issue because

this conflict cannot affect the outcome of the litigation.

In conclusion, plaintiff cannot raise any material issues of fact that would need to go

to a jury for resolution. Facts which the plaintiff alleges are in dispute are not material facts

in issue and cannot affect the outcome of this litigation. Therefore, the use of summary

judgment in this case is appropriate.

III LEGAL ARGUMENT:

A. Plaintiff's claims are time-barred

 Plaintiff alleges defendant discriminated against her at different instances from 1990

until her termination in 2000. Nevertheless, she failed to complain internally, or even file any

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claim(s) with the PHRC or EEOC until July, 2000. A "continuing violation" theory cannot

toll the applicable statute of limitations under Title VII for filing discrimination claims with

the administrative agency for discrete discriminatory acts, such as failure to promote and

transfer. Her claims are, therefore, time-barred. National Railroad Passenger Corp. (Amtrak)

v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed. 2d 106 (2002), see also Ryan v. General

Machine, 2003 WL 21982194 (E.D. Pa. 2003), Miller v. New Hampshire Dep't of

Corrections, 296 F.3d 18 (1st Cir. 2002)[failure to transfer or promote [is a] discrete act, and

therefore not actionable if it falls outside the statutory period]. Under Morgan, the

"continuing violation" theory applies only to serial hostile environment claims, or possibly

systemic violations, neither of which plaintiff has alleged in this case.

Plaintiff's claims are, therefore time barred, and all of her claims of discrimination

hinging upon defendant's failure to promote or transfer her should be dismissed, unless

plaintiff can show that they fall within the applicable statutory period.

B. Plaintiff fails to overcome her burden of establishing "pretext"

Assuming plaintiff has met her initial burden of establishing a prima facie case of

discrimination (i.e., member of protected class, adverse employment action, otherwise

qualified for position, non-protected class members similarly situated to plaintiff treated

favorably in comparison to plaintiff), the burden shifts to defendant to establish an alternative

explanation for its adverse employment actions against plaintiff. St. Mary's Honor Ctr. v.

Hicks, 113 S.Ct. 2742 (1993), McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817

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(1973).

 Here, plaintiff's evidence is entirely speculative in nature and consists of her

"assumption" or "conjecture" that she was discriminated against. (Drinks dep. 67-68; 89-90;

121) This is a far cry from meeting her legal obligation of proof. "[I]n the absence of direct

evidence of discrimination, a plaintiff may rely on circumstantial evidence to demonstrate

weaknesses, inconsistencies, implausibilities, or contradictionsin the employer's explanation

for its action 'so as to permit a reasonable factfinder to infer that the employer did not act for

the proferred reasons.'" Shaner v. Synthes, 204 F.3d 494, 503 (3d Cir.2000) (citing Fuentes

v. Perskie, 32 F.3d 759, 764-65 (3d Cir.1994). Plaintiff, therefore, must show that the

defendant's explanation of events is pretextual, i.e., that either defendant's proffered reasons

are not true, or that the explanation is not worthy of belief. Brewer v. Quaker State Oil

Refining Corp., 72 F.3d 326, 331 (3d Cir. 1995). Plaintiff cannot meet this burden.

 As outlined in the previous Sections II.B and II.C of this brief, defendant has shown

that its policies were non-discriminatory on their face and were applied to Plaintiff in a nondiscriminatory manner; that management exercised its managerial judgment and discretion

in a professional manner toward Plaintiff, who saw no signs of discrimination in their attitude

toward her; that Plaintiff had every opportunity to make claims of discriminatory conduct

against M&DS for many years and did not do so; that her pay was fair and reasonable against

her peers and betters; that her opportunity for advancement was unobstructed; that her lay off

was double checked by means of a RIF matrix to ensure that she was treated fairly; that her

right to receive overtime pay was strictly observed; that her performance shortcomings were

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clearly articulated to her to give her many chances to improve; and that college tuition was

granted to her and internal training was provided.

She has failed to demonstrate that any of her supervisors or H.R. worked against her

in areas of pay, potential advancement or job security. She has admitted that they treated her

professionally and were nice and that she did not see that discrimination played any role.

Indeed, plaintiff herself admitted she has no proof that her race factored into her lay-off

(Drinks dep., 90) and that her lack of a college degree, bad economic conditions and skill

level may have factored in the decision to terminate her. (Id., 109). When she ultimately

found another job after she was terminated, she was hired as a "clerk/typist,"--the same

position she initially held in 1984. (Id., 100-111).

Plaintiff is unable to "produce sufficient evidence to raise a genuine issue of fact as

to whether the employer's proffered reasons were not its true reasons for the challenged

employment action." Sheridan v. E.I. duPont de Nemours & Co., 100 F.3d 1061, 1067 (3d

Cir. 1996). While establishing pretext is a heavy burden to sustain, see Pamintuan v.

Nanticoke Memorial Hospital, 192 F.3d 378 (3d Cir. 1999), plaintiff seems to have admitted

away any chance to prove it. Keller v. Orix Credit Alliance, 130 F.3d 1101 (3d Cir. 1997),

citing Fuentes v. Perskie, 32 F.3d 759 (3d Cir. 1994). First, plaintiff can not offer evidence

that defendant's reasons are weak, implausible, inconsistent and contradictory. Nor can

plaintiff identify evidence that implies discrimination was more likely than not the

motivating cause of the adverse employment action. For these reasons, plaintiff cannot meet

the burden laid out in Keller .

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Defendant is, therefore, entitled to summary judgment as a matter of law on plaintiff's

claims of job related discrimination.

C. Plaintiff fails to prove defendant retaliated against her

Plaintiff admittedly did nothing to complain internally about discrimination at any

point during her employment, even failing to complain during her termination meeting with

supervisors and H.R. on March 16, 2000. Plaintiff testified she was aware of defendant's

problem solving procedures and of her right to file a complaint but that she did nothing.

 In fact, plaintiff did nothing about defendant's alleged discrimination until after she

left the company. The obvious inferences one reaches are not only that the defendant did not

discriminate against plaintiff, but also that plaintiff does not believe defendant discriminated

against plaintiff, either.

The failure to complain to her employer during her tenure of employment that any

action regarding the terms and/or conditions of her employment was discriminatorily

motivated is fatal to her retaliation claim. To prevail on a retaliation claim, plaintiff must

prove that she engaged in protected activity; that defendant took adverse employment action

against her; and that there exists a causal link between the protected activity and the

employment action. Robinson v. City of Pittsburgh, 130 F.3d 1285 (3d Cir. 1997). Even

though defendant ultimately may have taken an adverse action against her by terminating her,

plaintiff cannot show she engaged in any "protected activity" prior to then, because she did

not file her complaint nor made any charge of discrimination until after she left the company.

Case 2:02-cv-04352-JF Document 6-2 Filed 09/10/2003 Page 20 of 21
See 42 U.S.C. § 2000e-3(a) [Title VII].

Therefore, defendant could not have retaliated against plaintiff if plaintiff did not

claim defendant's actions were discriminatory or complain prior to her termination or during

her employment with the defendant. Plaintiff admits she never made any specific complaints

of discrimination, and therefore, did not participate in any "protected activity" under Title

VII. Defendant did not retaliate against her in any fashion, and defendant is, therefore,

entitled to summary judgment as a matter of law on plaintiff's claims of retaliation.

VI CONCLUSION

Based on the foregoing undisputed material facts, as well as the legal arguments

advanced by the Defendant herein, the entry of Summary Judgment pursuant to F.R.C.P.

56(c) is appropriate.

Respectfully submitted,

SIDNEY L. GOLD & ASSOCIATES, P.C.

_________________________________

SIDNEY L. GOLD, ESQUIRE

Identification No.: 21374

Eleven Penn Center - Suite 515

1835 Market Street

Philadelphia, PA 19103

(215) 569-1999

Attorneys for Defendant

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