IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KIMBERLY BROWN, :

: CIVIL ACTION

 Plaintiff, : NO. 05-4495

:

v. :

:

THE BOEING COMPANY, :

:

Defendant. :

M E M O R A N D U M

EDUARDO C. ROBRENO, J. JANUARY 9, 2007

This a race discrimination and retaliation case brought

under 42 U.S.C. § 1981. Plaintiff Kimberly Brown was employed by

Defendant The Boeing Company (Boeing) in its human resources (HR)

department in its Ridley Park, Pennsylvania, offices from October

1993 to October 25, 2002, when she was terminated in connection

with a reduction-in-force (RIF). Brown, an African-American

woman, claims she was terminated as a result of race

discrimination and/or retaliation for participating in the inhouse racial discrimination complaint of another Boeing employee. 

Boeing claims Brown was terminated because of her low empirical

scores in her RIF evaluation.

For the reasons that follow, the Court will grant Boeing’s

motion for summary judgment.

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2

I. FACTS

The facts provided below are largely uncontested. If a fact

or allegation is contested, it is so noted, and it is viewed in

the light most favorable to Plaintiff.

A. Brown’s Positions at Boeing

Brown was employed by Boeing in clerical-type positions from

October 1993 to June 1998, when she was laid off in a RIF. She

was rehired in September 1999 as a technical services specialist

and performed similar duties. (Her title from 1993 to 1998 is

unclear.) In 2000, she applied for and received a position in

the organization and people development (OPD) division of the HR

department. Although the OPD division was responsible for

facilitating employee training, Brown was responsible solely for

coordinating vendor training. She performed mostly clerical

duties, such as processing request forms and ensuring prompt

payment to external vendors. Her manager in the OPD division was

Randy Schmidt.

In early 2002, Boeing eliminated Brown’s position in the OPD

division for business reasons, namely that the processing of

training requests was decentralized and became the responsibility

of the individual organizations. Brown does not refute Boeing’s

assertion that this elimination of her position was nondiscriminatory. As a result of this business restructuring,

Case 2:05-cv-04495-ER Document 24 Filed 01/10/07 Page 2 of 19
3

Brown was still in the OPD division but had no assigned duties. 

Boeing claims it “endeavored to find suitable work for [her]

within the Human Resources Department.” Def.’s Mem. at 6.

In late March 2002, Brown was transferred to the equal

employment opportunity (EEO) group, under the direction of Dawn

Diebler. In mid-April, Diebler and Schmidt agreed that Brown

should return to the OPD division. Boeing claims that Deibler

was not satisfied with Brown’s work product or attitude; Brown

claims that she asked Diebler to train her in her new position,

but that Diebler refused to do so.

On April 19, 2002, Brown returned to the OPD division in the

position of “employee advocate.” She alleges that the position

did not exist and that she was “assigned virtually no duties.” 

Compl. ¶ 11. “Soon thereafter”--she does not give a date--she

was transferred to the position of “human resources generalist

2.” Id. ¶ 12. She alleges that she was given only clerical

duties under this position.

Brown’s responsibility was now to “develop training metrics

to determine the effectiveness of the Frank and Howard management

training forum.” Def.’s Mem. at 7-8. According to Schmidt,

Brown did not perform well in this role.

In June 2002, the HR department was reorganized into

customer cluster teams. Instead of specialists, employees within

each cluster were to be generalists, “expected to be able to

Case 2:05-cv-04495-ER Document 24 Filed 01/10/07 Page 3 of 19
 RSP seems to be Boeing’s acronym of choice for what is 1

commonly referred to as a “reduction-in-force” (RIF).

4

learn and address a variety of customer concerns.” Def.’s Mem.

at 9. Brown was assigned to Team A, under the direction of Linda

Haagen, who had been recently promoted to management. Brown had

the least amount of experience of the employees in her team. In

mid-July 2002, Haagen began to train Brown for her new duties as

an HR generalist. Brown was allegedly not receptive to this

training. In late August, she was informed that she was being

terminated. 

B. Boeing’s “Redeployment Selection Process” (RSP)1

In January 2002, the HR department was determined to have a

surplus of labor and underwent a redeployment selection process

(RSP), which entailed identifying employees for termination. 

Each manager in the department rated each of his or her employees

in ten categories, with scores of one, three, or five. Brown was

ranked by her manager Randy Schmidt. The managers then met. 

Managers who did not rate an employee but nevertheless had reason

to know that employee’s work were allowed to voice their opinions

about the fairness of the direct manager’s score. Employees with

the same or similar job grade were then ranked according to their

RSP scores.

 Brown received a score of 24, which placed her fifteenth

Case 2:05-cv-04495-ER Document 24 Filed 01/10/07 Page 4 of 19
 The one employee who was not selected for termination was 2

Vivian Jones, an African-American woman.

5

out of twenty-one employees in her group. Of the six employees

with lower scores, five were selected for termination. Of those 2

five, three were Caucasian and two were African-American. Brown

was not selected for termination at this point.

However, the January 2002 RSP did not itself result in

terminations. Apparently, Tara Robinson, who was also an HR

employee and an African-American woman, initiated a complaint

that the RSP itself was discriminatory. Boeing then undertook a

review of the RSP “to ensure that it was done in a fair and nondiscriminatory manner.” Def.’s Mem. at 5 n.2. In April 2002,

Boeing conducted an RSP with modified categories (now eight

instead of ten). Brown received a score of 16, which placed her

at the bottom of the totem tied with two other employees. 

Instead of selecting Brown for termination, Boeing decided to

terminate those employees initially selected for termination

under the January 2002 RSP. 

On August 2, 2002, the HR department was again identified

for downsizing. As part of the August 2002 RSP, Linda Haagen,

Brown’s manager at the time, gave her a total score of 10 on the

eight designated categories. Brown was ranked last on the totem. 

Along with Saundra Falcone, a white female, Brown was terminated

on August 25, 2002, effective October 26, 2002. In total, ten HR

Case 2:05-cv-04495-ER Document 24 Filed 01/10/07 Page 5 of 19
6

employees (including Brown) were terminated in connection with

the January, April, and August 2002 RSPs.

C. The Tara Robinson Race Discrimination Investigation

Brown alleges she was fired in retaliation for her role in

the investigation of Tara Robinson’s discrimination complaint.

Although selected for “redeployment” as part of the January

2002 RSP, Robinson was moved to a different position within

Boeing instead of being fired. Nevertheless, Robinson filed a

complaint of race discrimination associated with the RSP. (It is

unclear whether she filed her complaint before or after she was

transferred.) Her complaint was investigated by an HR employee

located in Wichita named Donnis McPhaul, an African-American

woman. McPhaul interviewed over twenty employees in the Ridley

Park HR department, including all African-American employees.

Brown initially declined to attend her interview with

McPhaul, but she relented when the director of the HR department

ordered her to do so. Brown claims she told McPhaul that she did

not think that Boeing treated minorities fairly and that she was

reluctant to even participate in the internal investigation

because she had heard that Boeing retaliated against employees

who did so. Brown sent two emails to McPhaul in April 2002

expressing her fear that she was being retaliated and/or

discriminated against. 

Case 2:05-cv-04495-ER Document 24 Filed 01/10/07 Page 6 of 19
7

Boeing claims that Brown was not particularly helpful in her

interview with McPhaul; Brown testified at her deposition that

she never witnessed anything inappropriate between Robinson and

her superiors. Boeing also claims that none of Brown’s relevant

managers--Schmidt, Diebler, or Haagen--knew what Brown told

McPhaul. McPhaul also interviewed Vivian Jones, the one employee

rated lower than Brown who was not laid off in January 2002.

McPhaul interviewed seven African-American employees as part

of her investigation (including Brown and the complainant,

Robinson). Of those seven, three were laid off (including

Brown). Brown was the only one of the three newly selected for

termination; the other two were apparently selected for

termination following the January 2002 RSP.

D. The Special Category Review

According to Boeing’s RSP Guidelines (Pl.’s Mem. Ex. A),

after the initial RSP, the HR department is required to undertake

a “special category review” for certain employees who are members

of protected classes, including racial minorities. Boeing’s

internal memo on special category reviews (Pl.’s Mem. Ex. B)

details the procedures for the review, namely the positions of

the managers involved and the documentation the review committee

must compile and produce. 

The committee would consist of the senior equal employment

Case 2:05-cv-04495-ER Document 24 Filed 01/10/07 Page 7 of 19
 Brown tries to have it both ways. On the one hand, she 3

asserts that Haagen knew about her complaints to McPhaul in the

course of the Robinson investigation and retaliated against her

for them. On the other hand, she asserts that none of the

managers who completed her August 2002 RSP, including Haagen,

knew about her complaints and, had Haagen and the other members

of the never-composed special committee met for the special

category review, they would have seen these complaints and might

have determined that the RSP was in some way discriminatory.

8

opportunity (EEO) manager, an EEO manager from HR, a personnel

representative, and the employee’s direct manager. The same four

people who were present at the August 2002 RSP meeting and signed

Brown’s RSP totem form would have comprised Brown’s special

category review committee. Pl.’s Mem. at 8; Def.’s Reply at 4.

 According to the special category review memo, the special

committee would also examine additional documentation that was

not necessarily reviewed for the initial RSP, including the

employee’s employment “folder” and her past evaluations. 

Relevant here, Brown asserts that a special committee would have

seen Brown’s reports of discrimination and/or retaliation in her

folder. However, both Brown and McPhaul stated in their

depositions that the Robinson investigation was confidential;

Boeing asserts that no record of Brown’s involvement with the

investigation was placed in her employment folder.3

II. DISCUSSION

A. Summary Judgment Standard

Summary judgment is appropriate only when “the pleadings,

Case 2:05-cv-04495-ER Document 24 Filed 01/10/07 Page 8 of 19
9

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(c). A fact is “material” only if its existence or nonexistence would affect the outcome of the suit under governing

law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). 

An issue of fact is “genuine” only when there is sufficient

evidence from which a reasonable jury could find in favor of the

non-moving party regarding the existence of that fact. Id. In

determining whether there exist genuine issues of material fact,

all inferences must be drawn, and all doubts must be resolved, in

favor of the non-moving party. Coregis Ins. Co. v. Baratta &

Fenerty, Ltd., 264 F.3d 302, 305-06 (3d Cir. 2001) (citing

Anderson, 477 U.S. at 248). “Although the moving party bears the

initial burden of demonstrating the absence of genuine issues of

material fact, the non-movant must establish the existence of

each element of his case.” Id. at 306 (citing Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986)).

In the employment discrimination context, once a plaintiff

has made out a prima facie case, she “may defeat a motion for

summary judgment by either (i) discrediting the proffered

reasons, either circumstantially or directly, or (ii) adducing

evidence, whether circumstantial or direct, that discrimination

Case 2:05-cv-04495-ER Document 24 Filed 01/10/07 Page 9 of 19
 There is no allegation here that Plaintiff has direct 4

evidence of discrimination. Cf. Trans World Airlines, Inc. v.

Thurston, 469 U.S. 111, 121 (1985) (“[T]he McDonnell Douglas test

is inapplicable where the plaintiff presents direct evidence of

discrimination.”).

10

was more likely than not a motivating or determinative cause of

the adverse employment action.” Fuentes v. Perskie, 32 F.3d 759,

764 (3d Cir. 1994). 

B. Application of Summary Judgment Standard

Both race discrimination and retaliation claims are governed

by the familiar McDonnell Douglas burden-shifting analysis.4

Pamintuan v. Nanticoke Memorial Hosp., 192 F.3d 378, 385 (3d Cir.

1999) (race discrimination); Barber v. CSX Distrib. Servs., 68

F.3d 694, 701 (3d Cir. 1995) (retaliation); see McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973) (setting forth the

framework). 

Brown must first establish a prima facie case. If she makes

this showing, the burden shifts to Boeing to state a legitimate,

non-discriminatory or non-retaliatory reason for its action. 

Finally, Brown must then prove that Boeing’s proffered reason is

pretext for discrimination or retaliation. Pamintuan, 192 F.3d

at 385-86; Johnson v. Women’s Christian Alliance, 76 F. Supp. 2d

582, 585 (E.D. Pa. 1999) (Robreno, J.).

Case 2:05-cv-04495-ER Document 24 Filed 01/10/07 Page 10 of 19
 Although Anderson and Smith are both age discrimination 5

cases, there is no reason not to impute this requirement into the

race discrimination context. Courts have not been hesitant to

intermingle age, race, and gender discrimination analyses. E.g.,

Pivirotto v. Innovative Systems, Inc., 191 F.3d 344, 352 n.4 (3d

Cir. 1999). And at oral argument, counsel for both parties

raised no objection to applying the comparator requirement here.

11

1. Race Discrimination

To make out a prima facie case for race discrimination,

Brown must make four showings: (1) that she is a member of a

protected class, (2) that she is qualified for her position, (3)

that she has suffered an adverse employment action, and (4) that

she suffered such action under circumstances giving rise to an

inference of discrimination. Anderson v. Consol. Rail Corp., 297

F.3d 242, 249 (3d Cir. 2002); Simpson v. Kay Jewelers, 142 F.3d

639, 644 n.5 (3d Cir. 1998). In reduction-in-force cases, the

fourth element is relaxed, Torre v. Casio, Inc., 42 F.3d 825, 831

(3d Cir. 1994), and instead “the plaintiff must show that the

employer retained ‘unprotected workers.’” Showalter v. Univ. of

Pittsburgh Med. Ctr., 190 F.3d 231, 234 (3d Cir. 1999) (quoting

Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994)). 

In order to establish an inference of causation in a RIF

situation, Brown must point to a “comparator,” a similarly

situated, non-protected class member who was retained as an

employee. Anderson, 297 F.3d at 250; Smith v. Thomas Jefferson

Univ., 2006 WL 1887984, at *3 (E.D. Pa. June 29, 2006) (Padova,

J.). Brown has not identified another employee who should have 5

Case 2:05-cv-04495-ER Document 24 Filed 01/10/07 Page 11 of 19
 Interestingly, although Plaintiff’s counsel conceded at 6

oral argument that Plaintiff’s race discrimination claim was “not

strong,” he hinged his argument on the fact that Boeing did not

follow its own internal procedures by providing Brown, as a

minority employee slated for termination, with a “second look” to

ensure that Boeing was in compliance with applicable antidiscrimination laws. 

Boeing did fail to strictly follow the procedures in its RSP

manual. However, it had good reason for this failure: the same

HR managers who would have performed the “second look” are the

ones who took the “first look.” It is implausible that the four

people who caucused for the initial RSP would determine later, in

their special committee role, that, in their ordinary RSP role,

they discriminated against Brown. 

Indeed, Boeing did not conduct a special category review for

any HR employee slated to be terminated in connection with any of

the 2002 RSPs. See Transcript of Deposition of George Lincoln,

Def.’s Reply Ex. 1, at 51. Brown cannot show that Boeing

discriminated against her by not giving her a special review if

none of the other employees in protected classes who were being

laid off got special reviews either.

Boeing’s failure to strictly follow its internal procedures

does not raise an inference of discrimination. Bray v. Marriott

Hotels, 110 F.3d 986 (3d Cir. 1997), is not to the contrary. In

Bray, the Third Circuit held that Marriott’s failure to follow

its own internal procedures for promotions, namely giving

preference to employees already at that particular hotel, was

evidence that its proffered reason for its action was pretext. 

In Bray, Marriott’s promotion of an outside-that-hotel employee,

in contravention of its own internal procedures, was evidence of

12

been terminated but was not. Def.’s Mem. at 18; Transcript of

Deposition of Kimberly Brown, Def.’s Mem. Ex. B., at 144-45, 224-

25. Under these circumstances, there can be no race

discrimination if Boeing did not retain a similarly situated

Caucasian employee.

Boeing is entitled to summary judgment on the race

discrimination claim.6

Case 2:05-cv-04495-ER Document 24 Filed 01/10/07 Page 12 of 19
discrimination toward that plaintiff. Here, Boeing’s failure to

follow its own procedures cannot raise an inference of

discrimination because there is no comparator who kept his or her

job in contravention of Boeing’s procedures.

13

2. Retaliation

A prima facie case of retaliation requires a showing that

(1) Plaintiff engaged in a protected activity, (2) Plaintiff

suffered an adverse employment action, and (3) a causal link

exists between the protected activity and the adverse action. 

Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir.

1997). Although the causal link is usually shown through close

temporal proximity, it can also be shown through “circumstantial

evidence of a ‘pattern of antagonism’ following the protected

conduct.” Id. (quoting Robinson v. Se. Pa. Transp. Auth., 982

F.2d 892, 895 (3d Cir. 1993)). The Court examines the evidence

as a whole to determine whether such an inference exists. Id.

The second criterion is not in dispute: Brown was

terminated, an obvious adverse employment action. Although the

Brown did engage in a protected activity, the Court ultimately

concludes that there is no causal connection between Brown’s

termination and any protected activity.

a. Brown engaged in a protected activity.

A Title VII retaliation charge can be pursued under either

Case 2:05-cv-04495-ER Document 24 Filed 01/10/07 Page 13 of 19
 Although this is a § 1981 case, not a Title VII case, the 7

analyses are identical. Cardenas v. Massey, 269 F.3d 251, 263

(3d Cir. 2001). 

14

the participation clause or the opposition clause. The 7

participation clause prohibits an employer from retaliating

against an employee “because he has made a charge, testified,

assisted, or participated in any manner in an investigation,

proceeding, or hearing” under Title VII. 42 U.S.C. § 2000e-3. 

The opposition clause prohibits an employer from retaliating

against any employee “because he has opposed any practice made an

unlawful employment practice by” Title VII. Id.

A plaintiff’s participation in an employer’s internal,

in-house investigation, so long as no formal charge has been

filed with the EEOC, is ordinarily not considered a protected

activity under the participation clause, even if the plaintiff is

required by her employer to participate in the investigation. 

See Washco v. Fed. Express Corp., 402 F. Supp. 2d 547, 554-55

(E.D. Pa. 2005) (Buckwalter, J.); Tuthill v. Consol. Rail Corp.,

1997 WL 560603, at *4 (E.D. Pa. Aug. 26, 1997) (Shapiro, J.). 

Here, although Brown was required to participate in the Robinson

investigation, there was no EEOC charge filed, and therefore her

activity is not covered by the participation clause. 

Regardless of whether Brown satisfies the participation

requirement, her involvement in the Robinson investigation does

satisfy the opposition clause. In Washco, the plaintiff told the

Case 2:05-cv-04495-ER Document 24 Filed 01/10/07 Page 14 of 19
15

internal investigator that the manager treated an AfricanAmerican employee differently than other employees. 402 F. Supp.

2d at 551. The court held that the plaintiff’s statements were

considered protected opposition because the relevant manager knew

that the plaintiff had been interviewed in connection with the

race discrimination complaint, even if he did not know the

substance of what the plaintiff had told the investigator. Id.

at 551, 556. Here, Brown opposed Boeing’s alleged discriminatory

practice by stating during the investigation, for example, that

she had “seen a lot of unfair treatment of minorities.” Pl.’s

Mem. Ex. D at 3. 

Brown’s statements to McPhaul during the course of the

Robinson investigation constitute a protected activity under the

opposition clause, and therefore satisfy the first criterion.

b. There is no causal connection between the 

protected activity and the termination. 

Brown has not established a causal connection, either

temporally or otherwise, between her complaints to McPhaul about

race discrimination and her termination in connection with the

RIF over four months later. Brown gave statements in the

Robinson investigation on March 28, 2002, wrote emails to McPhaul

in April 2002, and was ranked in connection with the August 2002

RSP on August 2, 2002. The protected activities occurred three

Case 2:05-cv-04495-ER Document 24 Filed 01/10/07 Page 15 of 19
16

to four months prior to the allegedly retaliatory RSP. 

Time periods as short as two months, without additional

evidence, are not “unnecessarily suggestive” to demonstrate

causation. See Washco, 402 F. Supp. 2d at 560 (five months);

Zappan v. Pa. Bd. of Probation & Parole, 2002 WL 32174230, at *10

(E.D. Pa. Nov. 25, 2002) (McLaughlin, J.) (two months); Pritchett

v. Imperial Metal & Chemical Co., 1997 WL 570929, at *4 (E.D. Pa.

Sept. 8, 1997) (Waldman, J.) (two months). Here, the three- to

four-month period between the participation in the protected

activity and the adverse employment action, in the absence of any

other supportive evidence, raises, at best, a weak inference of

causation. 

Brown’s temporal proximity argument is fatally undermined by

the fact that Boeing did not terminate her in connection with the

April 2002 RSP, which occurred less than one month after her

statements in the Robinson investigation and in which she was

tied with two other employees at the bottom of the totem. 

Therefore, any inference of discrimination arising from the

three- to four-month temporal connection is cancelled by the fact

that if Boeing had wished to retaliate against Brown, it need not

have waited until August to do so.

Aside from the temporal proximity argument, Brown also tries

to tailor her argument to fit the “pattern of antagonism”

language from the Third Circuit’s Kachmar and Robinson cases. 

Case 2:05-cv-04495-ER Document 24 Filed 01/10/07 Page 16 of 19
 Even though Plaintiff’s counsel took Haagen’s deposition, 8

Plaintiff presented no evidence that Haagen was aware of Brown’s

opposition.

17

This effort is unavailing. In her brief, she repeatedly cites to

her own deposition testimony to support her argument that she

felt she was being retaliated against by Diebler. See Pl.’s Mem.

at 20. She provides no evidence for this point, though, aside

from her own beliefs that she was being discriminated against. 

“Although there is no rule of law that the testimony of a

discrimination plaintiff standing alone can never make out a case

of discrimination that could withstand a summary judgment motion,

a plaintiff’s belief alone that she is a victim of discrimination

is not enough to meet her burden of proof.” Mroczek v. Bethlehem

Steel Corp., 126 F. Supp. 2d 379, 390 (E.D. Pa. 2001) (Joyner,

J.).

Finally, Brown presented no evidence that raises a genuine

issue of material fact that Haagen was aware of Brown’s

opposition to Boeing’s allegedly discriminatory practices in the

course of the Robinson investigation. If the employer is not 8

aware of the protected activity, there can be no charge of

retaliation. Krouse v. Am. Sterilizer Co., 126 F.3d 494, 505 (3d

Cir. 1997).

Brown has failed to show a temporal connection or a pattern

of antagonism, or a combination of both, sufficient to establish

a prima facie case of retaliation. Boeing is therefore entitled

Case 2:05-cv-04495-ER Document 24 Filed 01/10/07 Page 17 of 19
18

to summary judgment on the retaliation claim.

III. CONCLUSION

Boeing’s motion for summary judgment will be granted.

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19

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KIMBERLY BROWN, :

: CIVIL ACTION

 Plaintiff, : NO. 05-4495

:

v. :

:

THE BOEING COMPANY, :

:

Defendant. :

ORDER

AND NOW, this 9th day of January 2007, following a hearing

on the record on January 8, 2007, it is hereby ORDERED that

Defendant’s motion for summary judgment (doc. no. 16) is GRANTED

for the reasons stated in the accompanying Memorandum.

IT IS FURTHER ORDERED that Defendant’s motion for leave to

file a reply memorandum (doc. no. 20) is GRANTED.

AND IT IS SO ORDERED.

 S/Eduardo C. Robreno 

EDUARDO C. ROBRENO, J.

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