Daniels v. United Parcel Service, Inc. (797 F. Supp. 2d 1163, 2011)

MEMORANDUM AND ORDER

JULIE A. ROBINSON, District Judge.

Plaintiff filed this action alleging claims of discrimination and retaliation on the basis of sex and age under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (“ADEA”), the Kansas Act Against Discrimination (“KAAD”), and the Kansas Age Discrimination in Employment Act (“KADEA”). Plaintiff also alleges a violation of the Equal Pay Act and common law claims for breach of contract, or in the alternative, promissory estoppel, under Kansas law. This matter is before the Court on defendant United Parcel Service, Ine.’s (“UPS”) Motion for Summary Judgment (Doc. 90). The Court also considers UPS’ motions to strike the following evidence submitted by plaintiff in response to summary judgment: the deposition testimony of Mark Samborski (Doc. 112), the deposition testimony of William J. Sifuentes (Doc. 113), the declaration of Kathleen Carpenter (Doc. 123) and the deposition testimony of Catherine Bleish (Doc. 124). The motions are fully briefed and the Court is prepared to rule. As described more fully below, defendant’s motion for summary judgment is granted. Defendant’s motions to strike are granted in part and denied in part.

I. Summary Judgment Standard

Summary judgment is appropriate if the moving party demonstrates that there is “no genuine issue as to any material fact” and that it is “entitled to a judgment as a matter of law.” In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. “There is no genuine issue of material fact unless the evidence, construed in the light most favorable to the nonmoving party, is such that a reasonable jury could return a verdict for the nonmoving party.” A fact is “material” if, under the applicable substantive law, it is “essential to the proper disposition of the claim.” An issue of fact is “genuine” if “there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way.”

The moving party initially must show the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. In attempting to meet this standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party’s claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party’s claim.

Once the movant has met this initial burden, the burden shifts to the nonmoving party to “set forth specific facts showing that there is a genuine issue for trial.” The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Rather, the nonmoving party must “set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant.” To accomplish this, the facts “must be identified by reference to an affidavit, a deposition transcript, or a specific exhibit incorporated therein.” Rule 56(c)(4) provides that opposing affidavits must be made on personal knowledge and shall set forth such facts as would be admissible in evidence. The non-moving party cannot avoid summary judgment by repeating conelusory opinions, allegations unsupported by specific facts, or speculation. In responding to a motion for summary judgment, “a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.” When examining the underlying facts of the case, the Court is cognizant that it may not make credibility determinations or weigh the evidence.

Summary judgment is not a “disfavored procedural shortcut”; on the contrary, it is an important procedure “designed to secure the just, speedy and inexpensive determination of every action.” The Court takes this opportunity to comment that this general rule does not appear to hold much weight in this case. Despite estimating that trial would take five to seven days, the briefing in this case ballooned in size as it progressed, culminating in over 200 pages for the reply memorandum and related motions to strike. Most of the voluminous briefing involves the lengthy responses to factual statements presented by the parties. Defendant presented 107 statements of fact; plaintiff presented 108. While the factual statements themselves are generally reasonable in number and length, the statements in opposition by both parties are not. Upon review, the Court finds that both parties are guilty of using the “point-counterpoint” method to argue their cases, rather than to concisely discuss and directly controvert the record evidence. The statements made in opposition to statements of fact are unwieldy, argumentative, and often not relevant. And a fair amount of the additional facts presented by plaintiff overlap with the factual averments presented by defendant— at times, they appear to differ in semantics alone.

To be sure, presenting this volume of lengthy, immaterial, repetitive, argumentative and duplicative facts for the Court to unravel does not allow for a “speedy and inexpensive” determination of this action. To the contrary, it creates a laborious task for the Court that is anything but speedy and surely is not inexpensive for the parties. Nonetheless, the Court has endeavored to sort through the parties’ unnecessarily difficult presentation of the facts and disregards those statements that either do not comport with the record evidence, are argumentative, are immaterial, or that require the Court to weigh evidence and make credibility determinations.

II. Motions to Strike and Evidentiary Objections

A. Separately-ñled Motions to Strike

Defendant moves to strike four exhibits attached to plaintiffs response, which all entail testimony by other UPS employees that they have suffered or witnessed discriminatory treatment by UPS. The amendments to Fed.R.Civ.P. 56(c), effective December 1, 2010, provide the appropriate summary judgment procedures for setting forth the parties’ factual positions. This includes the provision that “a party may object that material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” The advisory committee notes on this amendment explain:

The objection functions much as an objection at trial, adjusted for the pretrial setting. The burden is on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated. There is no need to make a separate motion to strike. If the case goes to trial, failure to challenge admissibility at the summary-judgment state does not forfeit the right to challenge admissibility at trial.

Yet, defendant filed four separate motions to strike along with its reply memorandum, resulting in over 100 pages of additional briefing on the admissibility of these four exhibits. The Court takes this opportunity to stress that such expansive briefing is unnecessary — the motions to strike are duplicative of each other and duplicative of the arguments made in the reply itself — and overly argumentative. It suffices that the party objecting to summary judgment material simply state the objection with a brief description (akin to a speaking objection) and a citation to the Federal Rule or case upon which the objection is based, in response to the factual averment itself. The response to such an objection should be equally brief. Nonetheless, the Court proceeds to briefly discuss defendant’s motions to strike before determining the uncontroverted facts in this matter.

First, defendant argues that the objected-to material does not support the facts to which they are offered to support. To the extent this is true, the Court reminds defendant that in order for a fact to be deemed controverted, the Court must first find that there is evidence in the record that supports the party’s response that a fact asserted is controverted. Likewise, it would be contrary to this Court’s obligation in deciding summary judgment to simply accept a party’s assertion that a fact is uncontroverted without verifying that the evidence supports that fact. The Court need not strike evidence on this basis, it simply declines to accept the parties’ characterization of a fact if the evidence does not support the factual averment. The Court agrees, for example, that the statement of fact that “UPS engages in a pattern of discriminatory treatment” is not an appropriate factual averment given the cited-to evidence. Instead, those statements by other UPS employees only go to establish their own treatment. The fact that other UPS employees may have suffered discriminatory treatment may support an argument that UPS has such a pattern of behavior, but it does not establish this as a statement of fact. Such an argument should be made in the argument section of the brief.

Defendant further argues that certain portions of these employees’ state-merits should be stricken for lack of personal knowledge, or because they are based on conclusory statements and conjecture. Fed.R.CivJP. 56(c)(4) requires that affidavits be made on personal knowledge and “set out facts that would be admissible in evidence.... ” Fed.R.Evid. 602 requires that a testifying witness “ha[ve] personal knowledge of the matter” testified to. “Under the personal knowledge standard, an affidavit is inadmissible if ‘the witness could not have actually perceived or observed that which he testifies to.’ ” Statements of “mere belief in an affidavit must be disregarded.”

The evidence at issue on this point involves other UPS employees’ treatment. Defendant argues that none of the statements by other employees about UPS’ alleged practice of discrimination are based on personal knowledge of UPS’ treatment of plaintiff. While defendant is correct that these statements are not based on personal knowledge of plaintiffs treatment, that is not what they are offered to establish. In general, “the testimony of other employees about their treatment by the defendant is relevant to the issue of the employer’s discriminatory intent.” These employees have personal knowledge about their own treatment and testimony about their own treatment is admissible. The extent to which this evidence establishes any of plaintiffs claims goes to the weight and not the admissibility of that evidence. The Court will only consider, for purposes of determining the uncontroverted evidence, those statements that the declarant could have perceived or observed, and will construe the evidence in the light most favorable to plaintiff as the non-moving party.

Finally, defendant argues that Carpenter’s declaration should be stricken because it includes conclusory allegations, speculation and conjecture. Conclusory allegations without specific supporting facts do not have probative value. Also, at the summary judgment stage, “statements of mere belief’ in an affidavit must be disregarded. As with defendant’s personal knowledge objection, Carpenter’s testimony about UPS’ treatment of her is admissible. Her declaration establishes that she has personal knowledge of her own experience at UPS. Yet, the declaration also includes statements about policies and practices beyond her own treatment. Carpenter repeatedly opines about UPS’ treatment toward “employees” or “female employees” without providing any supporting facts as to which other employees were discriminated against, or what facts she bases these conclusory statements upon. The Court agrees that these statements are inadmissible, both because Carpenter lacks personal knowledge and because these statements are merely statements of her belief. The Court finds that Carpenter’s statements of her own experiences and observations are admissible, but her statements about UPS’ treatment toward other unnamed employees are not.

Plaintiff asserts a number of objections to defendant’s statements of fact, such as

B. Evidentiary and Procedural Objections to Statements of Fact “self-serving,” “biased,” or “unsubstantiated,” without providing a basis for such objections. As described above, the Court considers declarations that are based on personal knowledge and does not weigh the credibility of witnesses at this time, rendering moot plaintiffs objections based on bias and self-serving or conclusory. To the extent plaintiff argues that certain declarations are unsubstantiated, the Court overrules the objections. At the summary judgment stage, the Court may consider any affidavit or declaration that is made on personal knowledge so long as the declarant is competent to testify on the matters asserted. An affidavit or declaration “substantiates” a statement of fact in the same way that plaintiff purports to support certain facts based on the statements in her own deposition. The fact that evidence is favorable to defendant does render it inadmissible as biased or self-serving. Plaintiff does not come forward with any argument as to why these declarations should be discounted under the “sham affidavit” rule, and the Court finds no other basis for this objection in the record.

Defendant requests in the reply memorandum that the Court strike plaintiffs statements of additional fact that do not comply with this district’s Rule 56. 1, because they overwhelm and mislead the Court with “unsupported, inadmissible, and irrelevant matters.” Again, the Court disregards any facts that are not properly supported. However, defendant makes it difficult for the Court to admonish any alleged attempt by plaintiff to “overwhelm” the Court in the face of defendant’s own unnecessarily extensive and repetitive reply brief and motions to strike.

Defendant argues that the Court should deem admitted all of its statements of uncontroverted fact because plaintiff failed to comply with Fed.R.Civ.P. 56(c) by not citing to the record with particularity in disputing those facts. Many of plaintiffs attempts to controvert defendant’s statement of facts baldly assert that the fact is undisputed, yet “contradicted” by the record cited in support. In fact, many of these objections are simply statements of additional fact that do not dispute the statement of fact, but instead add to it. The Court will accept as uncontroverted any facts set forth by defendant that are not directly controverted by the record evidence referenced by plaintiff. The Court agrees with defendant that plaintiff often failed to properly adhere to the method of controverting facts set forth in D. Kan. Rule 56.1, which requires “a concise statement of material facts as to which the party contends a genuine issue exists. Each fact in dispute must be numbered by paragraph, refer with particularity to those portions of the record upon which the opposing party relies.” The local rule also states that “[a]ll responses must fairly meet the substance of the matter asserted.” To the extent plaintiff purports to controvert a fact without record support, it will not be deemed controverted.

At the same time, the Court is cognizant that part of its task in deciding summary judgment is to determine the uncontroverted facts viewed in the light most favorable to plaintiff. To the extent that plaintiff controverts defendant’s recitation of facts as incomplete, or on the basis of semantics, it is often in furtherance of this principle: explaining that a fact, while generally uncontroverted, should be stated differently so as to be read in the light most favorable to plaintiff. The Court of course applies this principle in determining the material uncontroverted facts in this manner, but urges both parties to more efficiently present their factual statements in the future by meaningfully attempting to mete out the material uncontroverted facts, as fairly supported by the record evidence, without resort to legal argument.

III. Uncontroverted Facts

The following facts are either uncontroverted, stipulated to, or viewed in the light most favorable to plaintiff. Plaintiff Regina Daniels was born in 1952 and is female. She was hired by UPS as a part-time customer service representative in 1984 and became a full-time customer service representative the following year. Plaintiff has always worked at UPS’ Kansas City, Kansas (“James Street”) facility.

In 1999, plaintiff applied for and became a full-time dispatch specialist in the package center. “Dispatch Specialist” is classified by UPS as an entry level management position. Specialists are classified below full time supervisors. In October 1999, plaintiff laterally transferred to a dispatch specialist position in the “feeder” department. Feeder drivers at UPS drive tractor trailer trucks with packages between UPS facilities. As a feeder dispatch specialist, plaintiff worked dispatching tractor trailer drivers with their loads, among other tasks. Plaintiff worked as a dispatch specialist in the feeder department until she retired in 2009; her job classification did not change from 1999 until she retired in 2009. Plaintiff was not promoted, demoted, disciplined or discharged by UPS between 1999 and 2009.

Dispatch specialists do not have formal supervisory authority, cannot discipline or discharge employees, and are not held responsible for ensuring training, discipline and evaluations of drivers and various other employees. Full time supervisors and specialists at UPS are sometimes required to change job functions and their hours and assignments change from time to time. Supervisors sometimes change duties, responsibilities and departments, travel, relocate and accept lateral transfers. Full time supervisors and managers in the feeders department supervise the feeder drivers and various other employees and are held responsible for training, discipline, evaluations and other matters. Supervisors also fill in for each other and for the manager during absences and vacations. Plaintiff and one other dispatcher, Kathleen Carpenter, did perform supervisory duties such as giving drivers instructions and orders, being left alone in the office without a supervisor, delivering packages in their own cars, and supervising administrative assistants.

There are no full-time female supervisors or managers in the James Street feeder department. As of July 1, 2008, thirteen out of fifty-one full-time supervisors and specialists at the James Street facility were female. Seven out of forty full-time supervisors were female.

There are three feeder dispatch windows or shifts at the James Street facility: day (approximately 6 a.m.-2 p.m.), twilight (approximately 2 p.m.-10 p.m.) and night (Sunday 6 p.m.-2 a.m. and Tuesday through Thursday 10 p.m.-6 a.m.). These windows have very different duties and responsibilities and the hours are much different. Each dispatch window at James Street is supposed to have one person assigned to work as the dispatcher on that shift and each window has different assigned duties. At certain times, James Street has also had an employee assigned to work as a cover dispatcher in the feeder department. This employee fills in for absences and vacations on the dispatch widows. Feeder management considers the twilight dispatch shift at James Street to be busier and more difficult than the day and night dispatch windows because, among other things, the Hub Sort operates during the twilight shift and there is a larger volume of inbound and outbound feeder trailers and customer pickups during that shift.

As a dispatch specialist, plaintiff reported to the James Street feeder manager. The James Street feeder manager has changed several times since 2005. Mic Haynes was the James Street feeder manager in 2004-2005. Joe Dooley held the position from March 2006 through March 2007. Allen Kirby held the position from March 2007 through March 2008. Joe Dooley has held the position since March 2008. The feeder manager reports to the Kansas Feeder Division Manager, who was Guy Albertson from 2004 or 2005 until June 2006; Jeff Czernicki from June 2006 to October 2007, and Ernie Christie since October 2007.

Plaintiff worked the night dispatch window from October 1999 through approximately 2004. In approximately 2005, plaintiff was offered and accepted the cover dispatch specialist assignment. Her job classification and grade did not change, but she now filled in for absences and vacations on the other dispatch windows, not just the night window, and covered the part-time supervisor at the railyard. However, plaintiff did not cover the twilight window. She performed some of the twilight duties from time to time, but never covered absences or vacations on the twilight window without supervision. At some point, plaintiff expressed to Kansas District Human Resources Manager Gary Liberti her preference for working as a cover dispatcher, instead of night dispatcher. In 2008, plaintiff expressed her preference to not work on holidays to her then-supervisor, Kirby.

In 2004 or 2005, plaintiff received one week of training on the twilight dispatch window from Jim Yankovich, the twilight dispatcher. After plaintiff began this training, feeder division manager Albertson decided that the twilight dispatch window could only be covered by a full-time supervisor when the regular supervisor who worked that shift was absent or on vacation. Albertson made this decision because he believed that it would reduce the risk of serious service failures during what he believed was the busier and more complex twilight window. Therefore, UPS did not allow plaintiff to continue training on the twilight window. Plaintiff testified that, despite receiving training on the twilight window, she could not perform all of the twilight dispatch duties without assistance or without further training.

In 2006, plaintiff began covering the night dispatch window again after the regular night dispatcher was discharged until late 2006 or early 2007. Beginning in October 2007 until July 2008, plaintiff again covered the night window. Dooley did not believe when he became the James Street feeder manager in March 2008 that there was an assigned cover dispatcher even though plaintiffs time sheets reflected that she was covering the night window during this period. He believed that plaintiff was the night dispatcher and that he had a designated day dispatcher and twilight dispatcher. Dooley testified he would assign full-time supervisors to cover absences and vacations on the dispatch windows.

On July 9, 2008, Dooley and Christie promoted Jason Isabell from yard control supervisor to dispatch specialist. Isabell became the cover dispatch specialist and covered all three windows, including the twilight window. Dooley and Christie believed Isabell could cover all three dispatch windows, including the twilight window. Isabell’s promotion occurred while plaintiff was on vacation.

UPS does not post full-time supervisory job positions that are open that UPS is looking to fill or promote into. Instead, these are made known to employees through “career discussions” and word of mouth. In 2005, UPS began using the Management Assessment and Promotion Process (“MAPP”) to fill open management positions. Under the MAPP process, employees are required to submit a letter of interest to Human Resources each year in order to apply for a promotion. In 2005 and 2006, plaintiff submitted letters of interest to Human Resources, seeking promotion to a full time supervisor position. Plaintiff received letters back from the Human Resources Manager, explaining that he had received plaintiffs letter of interest, that the next step in the process would be a series of assessments, and that her supervisor or manager would contact her with further details. UPS has no record of receiving Haynes’ promotion assessment for plaintiff in 2005 and Dooley did not fill out a promotion assessment for plaintiff in 2006. Plaintiff did not receive any follow-up from management or Human Resources about the status of her promotion applications in 2005 and 2006.

The letters sent to plaintiff in response to her letters of interest also state: “As a reminder, letters from candidates interested in a management position expire annually on December 31. To maintain eligibility, you must submit a new letter each year.” If an employee submits a letter of interest for promotion but does not successfully complete the MAPP process and receive a promotion that year, she must submit a new letter of interest the following year and complete the MAPP process to be eligible for promotion. In 2007, plaintiffs then-supervisor Kirby approached plaintiff with an envelope that was addressed to Dooley that enclosed the next step of assessments from the previous year promotion process. Plaintiff explained to Kirby that this was an old packet of application materials and that she would not be submitting a letter of interest or applying for a promotion at the end of 2006, as she believed it would be futile in light of not receiving a promotion in 2005 and 2006.

On July 31, 2008, plaintiff met with Liberti. Plaintiff had asked to meet with Liberti to express her concerns about being removed from the cover dispatch position, without warning, while she was on vacation, while Isabell was promoted to a full time dispatch specialist position and the cover dispatch assignment. Plaintiff believed she should have been allowed to continue as a cover dispatch specialist and Isabell should have been assigned the night dispatch window shift.

Plaintiff further asked Liberti for clarification about the promotion process and whether the managers were obligated to follow up with an employee who had submitted a letter of interest in the MAPP. Plaintiff complained about not being allowed to complete training on the twilight window. She further stated that she felt that Dooley’s removal of her from the cover position was in retaliation for a complaint she made in 2006 to Human Resources about an incident where Dooley came to her home to ask her to work an extra shift. During this July 31, 2008 meeting, Liberti asked plaintiff a series of questions about her job responsibilities. After plaintiff answered his questions, he asked her, “Well, why isn’t your job classified as an MIP position?” Plaintiff responded, “I don’t know, Gary, you tell me.” Then, Liberti told plaintiff that he would meet with Dooley and Christie and then follow up with her. Plaintiff filled out an intake questionnaire with the EEOC in August 2008. No one followed up with plaintiff about her July 31, 2008 meeting.

Plaintiff filed her first EEOC/KHRC charge against UPS on November 21, 2008. After plaintiffs EEOC charge was filed, she noticed a significant decrease in business communication from Dooley. However, she does not recall any of her managers ever refusing to speak with her or meet with her when she asked to speak or meet with them. Plaintiff admits that this decrease in communication had no effect on her job performance.

Plaintiff met with Dooley on February 18, 2009. Dooley told plaintiff that he had heard that she filed an EEOC complaint and they discussed plaintiffs EEOC questionnaire, which she provided to Dooley at the meeting. Dooley asked plaintiff questions about the allegations she made in that questionnaire. Dooley then spoke to plaintiff about the need to properly record her time.

Later in February 2009, Liberti and Brad Williams met with plaintiff. At this meeting, Liberti told plaintiff either that he told Dooley to follow up with her about Isabell’s cover dispatch promotion, or that he had spoken with Dooley about the subject. Liberti told plaintiff that he understood she had concerns and plaintiff provided him with a copy of her EEOC questionnaire. Liberti read over the questionnaire and was slapping the document in his hand during the meeting. At one point, Liberti asked “Do you want me to get the EEOC down here?” Liberti also talked to plaintiff during this meeting about how she needed to document her start and finish times, as well as her meals and breaks, because there had been some discrepancies. In the month before this meeting, UPS audited the time records of plaintiff and other employees who UPS suspected were not accurately reporting their start and finish times, and discovered some discrepancies between the start and finish times that were recorded, and the information on surveillance cameras. According to plaintiff, she was often forced to work without taking a break or lunch, so this would effect the time of day she left.

Plaintiff filed a second EEOC/KHRC charge in April 2009.

UPS has salary administration guidelines which set forth detailed procedures for determining starting pay and raises for full time specialists and supervisors. There are different salary grades and ranges for supervisors and specialists; the guidelines are premised upon an employees’ job classification. Plaintiffs salary as a dispatch specialist depended in part on her pay rate in her previous job at UPS. Plaintiff received a yearly salary increase every year between 2006 and 2009. As a dispatch specialist, plaintiffs raise each year was determined by the feeder division manager based on the salary administration guidelines. Plaintiff was paid less than supervisory employees, and she was not eligible for and did not receive stock through the Management Incentive Program (“MIP”).

Jim Yankovich, Scott Wetschensky, Steve Stuke, Nick Sloan and Dennis Smith were full time feeder supervisors at UPS between 2006 and 2009 and had higher salaries between 2006 and 2009 than plaintiff. These individuals had all been full-time supervisors for several years and had worked as feeder supervisors in the larger feeder operation at UPS’ Lenexa, Kansas facility. Wetschensky, Stuke, and Sloan worked as feeder on-road supervisors between 2006 and 2009. On-road supervisors train, supervise and evaluate drivers. They perform safety and training rides with drivers and attend driver training school. They are required to have DOT cards and commercial drivers’ licences. Specialists do not have these duties or requirements. Yankovich and Smith worked as dispatchers on the twilight shift at James Street for several years and had been dispatchers in the Lenexa Feeder Department, which was a larger and more complex feeder department than James Street.

UPS provides a copy of its Code of Business Conduct (“Code”) to all employees. UPS employees receive the Code after they are hired. Plaintiff reviewed the entire Code when she received it from UPS. UPS policies require employees to report known or suspected illegal or unethical conduct, including discrimination. Plaintiff produced two different versions of the Code which she received from UPS, a 2002 edition and a 2004 edition. Both versions contain a similar disclaimer that the Code is not a contract. The 2004 Code provides, for example:

The Code is not an express or implied contract of employment and does not create any contractual rights of any kind between UPS and its employees. In addition, all employees should understand that the Code does not modify their employment relationship, whether at will or governed by contract. This Code is intended to clarify each employee’s existing obligation for proper conduct. UPS reserves the right to amend, alter, or terminate the Code or the policies at any time for any reason. The most recent version of this manual may be found on the Corporate Compliance Web site and on www.ups.com.

Plaintiff never told anyone in management or Human Resources that she thought the Code was a contract and no one in management believed that it was a contract.

The Code also contains a Statement of Policy, which provides that each employee has the responsibility to report to the company violations of the law or UPS’ business standards:

each employee’s responsibility to report to the company any situation where our standards or the laws are being violated. Any employee disclosing, in good faith, violations or suspected violations of legal requirements or UPS business standards will not be subjected to retaliation or retribution. Likewise, failure to comply with the provisions of the [Code] will not be tolerated.

Plaintiff reviewed the entire Code when she received it from UPS. Plaintiff and all other UPS employees were repeatedly told that they were obligated to comply with the Code, including the reporting and non-retaliation provisions. Plaintiff believed that the Code formed a contract between her and UPS. She relied on the representations in the Code that she was required to report and that she would not be retaliated against for doing so when she complained of discrimination.

UPS also presented plaintiff with a document entitled Professional Conduct and Anti-Harassment Policy (“Policy”), which prohibits harassment by UPS and its employees, and states that harassment on the basis of age or sex is a form of unlawful discrimination. Plaintiff signed this document and returned it to UPS. The Policy states that an employee who believes that she may be subject to objectionable conduct must report it immediately and that such employee will not be adversely affected or retaliated against. It further states that, in response to such a complaint, UPS will conduct a prompt and thorough investigation.

IV. Discussion

The parties vehemently dispute the scope of plaintiffs claims of discrimination in this case; primarily, the extent to which the discrimination claims under the ADEA, Title VII, KAAD, and KADEA encompass wage discrimination claims. The Court must determine the extent of plaintiffs claims before it is able to consider the merits of the summary judgment motion. The Court observes that plaintiffs claims do appear to be a moving target, even within the response memorandum. This is evidenced by her discussion of pretext prior to any elucidation of exactly what adverse employment actions she claims to have been subjected to. For example, plaintiff discusses a failure to train claim, yet argues that the adverse employment action that is associated with this claim occurred years later when she was reassigned from her cover dispatch position.

In order to determine plaintiffs claims in this matter, the Court turns to the Pretrial Order, which superseded the prior pleadings. Plaintiff states her contentions in the Pretrial Order as follows:

based on her sex and/or age, she was continuously and repeatedly discriminated against and denied promotional, job placement or assignment, training, and other opportunities and with respect to the terms, conditions, and privileges of her employment. Ms. Daniels also alleges she was unlawfully retaliated against for reporting such and engaging in related protected conduct. Further, Ms. Daniels alleges that, on the basis of her age and/or sex/gender, she has been discriminated against with respect to her job classification, pay, and other economic opportunities and benefits. Additionally, Ms. Daniels alleges that Defendant, through its related conduct, has breached and failed to comply with its related written agreements, obligations, and promises, as set forth in the Code.

In plaintiffs list of her theories of recovery, she sets forth the elements of a standard disparate treatment claim of discrimination, as well as the elements of a wage discrimination claim. The Pretrial Order “ ‘measures the dimensions of the lawsuit,’ and ‘controls] the subsequent course of the action unless modified by a subsequent order.’ ”

Rather than discuss the Pretrial Order, defendant focuses on the Amended Complaint. Defendant contends that plaintiff has alleged sex and age discrimination claims on the following grounds: (1) failure to promote in 2005 and 2006, (2) denial of training in approximately 2004 or 2005, and (3) removal from the cover dispatch specialist position in July 2008. Plaintiff disputes defendant’s characterization, and the Court has identified four possible theories of relief set forth in her response: (1) failure to promote, (2) discriminatory job classification, (3) denial of training, and (4) removal from the cover dispatch specialist position in July 2008. The Court finds that these four claims are found within the allegations and statements of claims in the Pretrial Order and proceeds to consider defendant’s summary judgment motion in light of these claims. While it is unclear whether plaintiff asserts a stand-alone claim based on removal from the cover dispatcher position in July 2008, the Court proceeds to consider it out of an abundance of caution. As explained more fully below, the Court finds that plaintiffs failure to promote and denial of training claims are untimely. Summary judgment is granted with respect to plaintiffs job classification and shift reassignment claims on the merits.

A. Timeliness of Discrimination Claims

Defendant argues that summary judgment is appropriate on the discrimination claims because plaintiff did not file a timely charge of discrimination. Defendant argues that the failure to promote claim accrued in 2005 and 2006 and the denial of training claim arose in 2004 or 2005. Because plaintiff did not file her charge of discrimination within 300 days of these discrete employment actions, defendant argues that they are not timely. Plaintiff contends in the response that the promotion and denial of training claims accrued in July 2008. She also contends that the job classification and denial of training claims are based oh a continuous pattern of discrimination that occurred with each paycheck.

The Supreme Court has held that “filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling.” The Tenth Circuit has distinguished between a plaintiffs failure to exhaust administrative remedies, which creates a jurisdictional bar to suit, and plaintiffs failure to timely exhaust administrative remedies, which is an affirmative defense subject to equitable tolling.

As a general rule, an administrative charge must be filed with the EEOC within 180 days of the occurrence of the alleged unlawful employment practice. But if a complainant “institutes proceedings with a state or local agency with authority to grant or seek relief from the practice charged, the time limit for filing with the EEOC is extended to 300 days.” Generally, “[t]he EEOC charging period is triggered when a discrete unlawful practice takes place.” Termination, failure to promote, denial of transfer, or refusal to hire are considered “discrete acts.” The Tenth Circuit has held that a discrete act accrues on “the date the employee is notified of an adverse employment decision by the employer.” “An employee receives notice of an ‘adverse employment decision when a particular event or decision is announced by the employer.’ ” “[N]otice or knowledge of discriminatory motivation is not a prerequisite for a cause of action to accrue ... [o]n the contrary, it is knowledge of the adverse employment decision itself that triggers the running of the statute of limitations.” It is not necessary for an employee “to know all of the evidence upon which he will ultimately rely at trial in order to file a charge with the EEOC,” and in fact, the purpose of the EEOC charge is to “initiate the process of uncovering” the facts surrounding the adverse employment action. And when a plaintiff asserts multiple claims of discrimination “based on discrete discriminatory acts, the limitations period will begin to run for each individual act from the date on which the underlying act occurs.” Therefore, the Court addresses whether each of plaintiffs claims are timely.

1. Failure to Promote

Plaintiff claims that she was not promoted in 2005 and 2006 because of her age and/or sex. She suggests that she does not allege a traditional failure to promote claim, but a distinct claim of discrimination because UPS failed to properly process her promotion applications in both instances. The Court gleans no appreciable difference in these claims. They both constitute a decision not to promote plaintiff to a full-time supervisor position in 2005 and 2006. The fact that defendant did not consider her applications, or that it did not properly process her applications, is evidence of her discrimination claim, not a claim unto itself. While such evidence would certainly be probative of pretext under a merits analysis, pretext is not at issue when considering whether a charge was timely filed. Plaintiff argues that her promotion claims did not accrue until July 31, 2008, when she was notified by Liberti that the promotion applications in 2005 and 2006 were not processed properly. Plaintiff contends that this is when she first became aware of the adverse employment decision on her failure to promote claims.

It is undisputed that plaintiff understood she had not been promoted by at least 2007, when Kirby asked her if she would be applying for the 2007 promotion process. She responded to Kirby that applying in 2007 would be futile in light of not receiving promotions the previous two years. The MAPP policies and the Human Resources Managers’ responses to her letters of interest make clear that the promotion applications expire at the end of the calendar year and that she was required to resubmit her letter of interest the following year to be considered again. Indeed, plaintiff applied for a promotion in 2006, apparently understanding that she was not promoted the prior year. Plaintiff argues that she was not made aware of the full extent of the adverse employment decisions until she was provided with additional information during the July 31, 2008 meeting with Liberti that the applications had not been processed properly and that the managers’ feedback had not been submitted. While there is a genuine issue of fact about whether Liberti told plaintiff at this meeting that her promotion applications were not processed properly, there is no genuine issue of material fact that plaintiff was aware that she was not promoted by at least 2007.

UPS’ decisions not to promote plaintiff were clearly discrete employment acts that occurred in 2005 and 2006 and it is uncontroverted that plaintiff was aware of the decisions not to promote her in both instances more than 300 days before she filed her administrative charge in November 2008. Because these decisions constitute discrete acts of discrimination, plaintiffs notice of these decisions triggered the running of the statute of limitations. Whether the gravamen of this claim is the decision not to promote, or the failure to process her applications, plaintiff was made aware that she did not receive those promotions by at least 2007. Under clear Supreme Court and Tenth Circuit precedent, these claims accrued at the time she became aware of the decisions not to promote her, not at the time that she became aware of all of the facts in support of her claim. The Tenth Circuit has made clear that a plaintiff need not have all of the evidence necessary to make her case in order for the charging period to be triggered. The purpose of the EEOC charge is to begin the process of uncovering such evidence. Plaintiff had knowledge of the adverse employment action by at least 2007. Because plaintiffs failure to promote claims accrued more than 300 days before plaintiff filed her charge of discrimination, summary judgment is granted.

2. Denial of Training

Plaintiff contends that her failure to train claim did not accrue until she was removed from the cover dispatcher position in July 2008, thus, her charge of discrimination was timely filed in November 2008. Plaintiff urges that she suffered continuous discrimination that accrued with each paycheck, rendering her claims timely. Plaintiff appears to conflate three distinct issues: when plaintiffs denial of training claim accrued, what was formerly known as “the continuing violation theory,” and the impact of the Lilly Ledbetter Act on her claims. The Court addresses these issues in turn and finds that none apply to plaintiffs denial of training claim in this case.

a. Accrual

Plaintiff first argues that her failure to train claim did not accrue until she was removed from her cover position in July 2008. She contends that she was removed from this position due to her lack of experience; had she been provided with the appropriate training as similarly situated individuals were, she would not have been removed from the cover position. Again, the law is clear that a discrimination claim does not accrue when the full effects of a discriminatory act occurs, it is the discrete act itself that triggers the statute of limitations. In this case, the discrete act constitutes the denial of training, not the decision to remove plaintiff from the cover position. Plaintiff repeatedly contends that removal from the cover position was the effect of the failure to train. Again, plaintiff appears to conflate her evidence of pretext, which comes into play only on the merits, with the adverse employment actions that her claims are premised upon. Plaintiff claims that UPS discriminated against her by failing to provide her with a training opportunity that would qualify her for a promotion, or would have eventually prevented her removal from the cover position in July 2008. Therefore, the accrual date is the date that the training was denied, 2005 at the latest, not the date that plaintiff felt the full impact of that decision.

b. Discrimination in Compensation

Plaintiff contends that she suffers from continuing and ongoing discrimination. The continuing violation - doctrine was abrogated by the Supreme Court in National R.R. Passenger Corp. v. Morgan, for claims against discrete acts of discrimination. “[U]nexhausted claims involving discrete employment actions are no longer viable,” and may not be asserted under a “continuing violation” theory. Therefore, “[a] party may not complain to the EEOC of only certain instances of discrimination, and then seek judicial relief for different instances.”

Plaintiffs response urges that her claims should be construed as claims of discrimination in compensation, therefore, they are not discrete acts of discrimination subject to the timeliness requirement set forth in Morgan. Instead, plaintiff argues that the Lilly Ledbetter Fair Pay Act of 2009 (“FPA”) applies to her claims and the statute of limitations accrued with each discriminatory paycheck she received. The FPA was passed in response to the United States Supreme Court’s 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co., which held that an employer’s decision with respect to setting pay is a discrete act of discrimination and the relevant period of limitations begins to run when the act first occurs. The FPA amended 29 U.S.C. § 629(d)(3) of the ADEA and 42 U.S.C. § 2000e-5(e)(3)(A) of Title VII by adding the following subparagraph, defining when an unlawful practice “with respect to discrimination in compensation” “occurs” for purposes of triggering the administrative filing period:

(3) For purposes of this section, an unlawful practice occurs, with respect to discrimination in compensation in violation of this chapter, when a discriminatory compensation decision or other practice is adopted, when a person becomes subject to a discriminatory compensation decision or other practice, or when a person is affected by application of a discriminatory compensation deeision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.

Congress’s purpose in passing the FPA was to reverse the Supreme Court’s Ledbetter decision which, in Congress’s view, unduly restricted the time period in which victims of wage discrimination could seek relief. The FPA does not apply to unlawful practices that do not constitute “discrimination in compensation.” The plain language of the statute, the legislative history, and the case law all support the conclusion that unless the claim involves a discriminatory compensation decision or a hostile work environment, a discrete discriminatory act is an immediately actionable unlawful employment practice upon which an administrative charge must be filed within 180 or 300 days. The FPA did not overturn Morgan.

The District of Columbia Circuit Court of Appeals has explained the meaning of “discrimination in compensation” under the FPA as follows:

[I]n employment law the phrase “discrimination in compensation” means paying different wages or providing different benefits to similarly situated employees, not promoting one employee but not another to a more remunerative position. In contrast, a discriminatory failure to promote is actionable regardless whether it affects an employee’s compensation. In context, therefore, we do not understand “compensation decision or other practice” to refer to the decision to promote one employee but not another to a more remunerative position.

Of course, many employment decisions have some later effect on pay, even if they are not pay setting decisions. “But to include these myriad employment decisions within the ‘other practice’ language of the FPA would weaken Title VII’s administrative exhaustion requirement .... [and] would potentially sweep all employment decisions under the ‘other practice’ rubric.” The Court finds that plaintiffs denial of training claim is a discrete discriminatory act, not a “discrimination in compensation” decision that alleges different wages or benefits to similarly situated employees. Instead, plaintiff essentially claims that the discriminatory act caused her not to be similarly situated to individuals who were promoted or given a preferable shift assignment. Denial of training is a discrete act that is governed by Morgan, not by the FPA. Plaintiff claims that if she had been provided with certain training, she would may have been eligible for promotions that would have led to higher pay and benefits. This is not a pay-setting decision, but instead, a discrete discriminatory act that merely could have had an ultimate effect on pay. Like plaintiffs failure to promote claim, this claim triggered the administrative clock at the time plaintiff became aware of the adverse employment action, in either 2004 or 2005 when her training was cut short, which was more than 300 days before her administrative charge was filed.

3. Job Classification

Plaintiff explains she was discriminated against when UPS classified her job as a dispatch specialist instead of a supervisor, which “resulted in her being unlawfully denied greater pay and benefits, the negative effects of this are continuous and ongoing and realized each time she received a discriminatory paycheck and was denied related benefits, and this is a violation of Title VII and the KAAD.” The Court construes this claim as a discrimination in compensation decision that is subject to the FPA. Plaintiffs job classification claim, unlike her failure to promote and failure to train claims, is not based on a discrete employment action. Instead, her claim is based on the allegation that her job was intentionally classified as a dispatch specialist position, rather than as a supervisor, because of her sex and/or age in order to avoid paying her a higher salary and benefit compared to similarly situated male and younger employees. The gravamen of this claim is that the misclassification was designed to be a hidden compensation decision, of the kind envisioned by Congress when it passed the FPA amendments. She alleges that she routinely performed supervisory duties, despite her job classification as a dispatch specialist, resulting in lower pay and benefits compared to similarly situated males who were classified as supervisors. The Court finds, therefore, that this claim was timely filed and will consider it as a claim of salary discrimination under Title VII, the ADEA, and their Kansas law statutory counterparts.

4. Removal from Cover Dispatch Specialist Position

Plaintiff argues that she suffered discrimination when she was removed from the cover dispatch position in 2008. Because there is no dispute that this assignment occurred in July 2008, plaintiff filed a timely charge of discrimination with regard to that claim in November 2008.

The Court, therefore, proceeds to consider the merits of plaintiffs shift reassignment and job classification discrimination claims.

B. Reassignment Discrimination Claim

Title VII makes it an unlawful practice for an employer “to deprive any individual of employment opportunities ... because of such individual’s ... sex.” The ADEA makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” Plaintiff has not come forward with direct evidence of sex or age discrimination, so the Court evaluates her claims under the burden-shifting framework of McDonnell Douglas Corp. v. Green Under McDonnell Douglas, plaintiff initially bears the burden of production to establish a prima facie case of discrimination. To establish a prima facie case of age or sex discrimination, plaintiff must show that (1) she is a member of a protected class; (2) she suffered an adverse employment action; and (3) the challenged action took place under circumstances giving rise to an inference of discrimination. If plaintiff establishes a prima facie case, the burden shifts to defendant to articulate a facially nondiseriminatory reason for its actions. If defendant articulates a legitimate nondiscriminatory reason, the burden shifts back to plaintiff to present evidence from which a jury might conclude that defendant’s proffered reason is pretextual, that is, “unworthy of belief.”

Defendant maintains that plaintiff did not suffer an adverse employment action when she was reassigned from the cover dispatcher position in July 2008. The parties dispute whether plaintiff was working as a cover dispatcher at the time. Defendant maintains that she was working as the night dispatcher, pointing to Dooley’s testimony. Plaintiff maintains that she was merely covering the night dispatch window, pointing to her own testimony as well as time records indicating she was covering for the regular night dispatcher. Assuming as true that plaintiff was removed from the cover dispatcher position, defendant argues that this was not an adverse employment action because plaintiffs job classification and salary did not change. Furthermore, because plaintiff had been working the night dispatch window for months prior to Isabell’s promotion, defendant urges there was no change in her shift in July 2008.

In order to constitute an adverse employment action, “the employer’s conduct must be ‘materially adverse’ to the employee’s job status.” Job duty assignments are neither automatically actionable nor categorically non-actionable. Each case must be “ ‘judged from the perspective of a reasonable person in the plaintiffs position, considering all the circumstances,’ ” and the inquiry does not “turn on a plaintiffs personal feelings” about the circumstances of the case.

The Court assumes for purposes of this determination that plaintiff was in fact removed from the cover dispatcher position and reassigned to the night dispatch window in July 2008. It is undisputed that her job classification as a dispatch specialist remained unchanged, as did her salary. There was no job classification at UPS for cover dispatcher, night dispatcher, etc. Instead, the dispatch specialists were assigned to work one of the three dispatch windows, or as a cover dispatcher. Moreover, the undisputed evidence shows that her job responsibilities did not meaningfully change in July 2008. The role of cover dispatcher requires the dispatch specialist to fill in for absences and vacations on the various dispatch widows and plaintiff also covered for the part-time supervisor at the railyard. Plaintiff had been covering the night dispatch window since October 2007. Even in her role as a cover dispatcher, while plaintiff was able to perform certain twilight window duties, she was never able to cover the twilight dispatch window unsupervised. Given that plaintiff had been primarily covering the night dispatch window, even if it was in her capacity as the cover dispatcher, her responsibilities did not change in July 2008, when she was merely permanently reassigned to the night dispatch window instead of floating between shifts.

Moreover, plaintiff has not pointed to any evidence to suggest an objective advantage to the cover dispatch position, compared to the night dispatch position. The only evidence about the adverse nature of the reassignment is plaintiffs own subjective feelings that the cover position was preferable. If plaintiff was qualified to cover the twilight dispatch window, this would likely constitute evidence that the cover dispatcher role, as applied to her, was objectively preferable. But the undisputed evidence shows that she was not able to cover the twilight window unsupervised. Therefore, the objective advantages to that assignment for a reasonable person in plaintiffs position is not apparent. The Court finds that plaintiff is unable to establish a prima facie case of discrimination on this claim because she did not suffer an adverse employment action when she was removed from the cover dispatch assignment and reassigned to work the night dispatch window.

C. Salary Discrimination

Plaintiff argues that she was discriminated against in her pay under Title VII, the ADEA, and the Equal Pay Act. She maintains that UPS classified her job as a dispatch specialist rather than a supervisor, because of her age and/or sex, resulting in unequal pay between herself and younger males performing substantially similar work. Because the standards under the various statutes differ substantially, the Court addresses her salary discrimination claims separately.

1. Title VII and ADEA

Under Title VII, the ADEA, and their Kansas law counterparts, the Court applies the McDonnell Douglas analysis to plaintiffs claim because it is based on circumstantial evidence. In order to establish her prima facie case of discrimination in compensation, plaintiff must come forward with evidence that she is a member of a protected class and occupies a job similar to that of higher paid younger males. If the plaintiff is able to make this showing, then “the burden of production shifts to the employer to state a legitimate, nondiscriminatory reason for its adverse employment action.” “If the employer meets this burden, then summary judgment is warranted unless the employee can show there is a genuine issue of material fact as to whether the proffered reasons are pretextual.”

Defendant argues that there is no evidence to suggest that plaintiff occupied a job similar to that of higher paid younger males, pointing to the differences in responsibilities between the jobs of dispatch specialist and full-time supervisor. Plaintiff responds that she was regularly performing the duties and had the responsibilities of at least one full-time feeder supervisor. She also points to evidence that there are more male than female employees in full time supervisory and managerial positions. The parties dispute whether plaintiff in fact performed supervisory duties on a regular basis. Plaintiff refers to Haynes deposition testimony that plaintiff performed the duties and had the responsibilities of a full-time supervisor. Plaintiff also relies on her own deposition testimony for this fact. Defendant points to the undisputed facts that plaintiff did not perform the supervisory duties of training and evaluating other employees, nor was she able to cover the twilight window without supervision. I