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Horton v. G4S Solutions (USA) Inc.

United States District Court, M.D. Louisiana

April 27, 2018

KIMBERLY HORTON
v.
G4S SECURE SOLUTIONS (USA), INC., AND JOHN DOES 1-20

          RULING

          SHELLY D. DICK UNITED STATES DISTRICT COURT.

         Before the Court is a Motion for Summary Judgment filed on behalf of the Defendant, G4S Secure Solutions (USA), Inc.[1] Plaintiff, Kimberly Horton, has filed an Opposition.[2] The Court's jurisdiction exists pursuant to 28 U.S.C. § 1331. Oral argument is unnecessary. For the following reasons, the Motion shall be granted.[3]

         I. FACTUAL AND PROCEDURAL BACKGROUND[4]

         Kimberly Horton (“Plaintiff” or “Horton”) brings this gender discrimination lawsuit against her former employer, G4S Secure Solutions (USA), Inc. (“Defendant” or “G4S”). G4S is a contract security company that provides security professionals to customers in various industries. Horton began working for G4S in April of 2007 as a Security Officer. Less than one month later, Horton was promoted to Area Supervisor of G4S' Baton Rouge office. By October of 2007, Horton was promoted to Operations Manager of G4S' Baton Rouge office. Overhead employees, such as Horton, work out of the G4S office, whereas billable employees, such as Project Managers, work directly at the client sites.

         In 2013, G4S discontinued annual merit increases company-wide due to budget concerns, and began giving only cost of living increases to salaried employees.[5] Horton repeatedly mentioned to Chris Beck (“Beck”), then General Manager of the Baton Rouge office, that she needed a raise.[6] In 2013, Beck reposted Horton's position in order to increase her salary.[7] As a result, Horton's salary was increased by $10, 797.11 for an annual salary of $51, 000.00.[8]

         In late 2015, Ray Cox (“Cox”) replaced Beck as the General Manager of G4S' Baton Rouge office. Horton disagreed with Cox's operational style, including his training methodology, reduction of staff to meet budget goals, and the reassignment of some of Plaintiff's duties to Leigh Redman (“Redman”), the Manager of Human Resources Administration in the Baton Rouge office.[9] Despite this, however, Horton agreed that under Cox's leadership, there was a reduction in turnover, and she believed the company's profits increased.[10] During this time period, Horton and Redman quarreled with each other because Horton felt that Redman “was overreaching, [and] making poor decisions” that affected Horton's overhead staff.[11]

         Horton also expressed her displeasure about the billable Project Managers at BASF, a chemical plant, and Our Lady of the Lake Hospital (“OLOL”) earning slightly higher salaries than she did as an overhead Operations Manager.[12] Horton's salary, unlike the Project Managers' salaries, was paid out of the company's overhead budget.[13]Project Managers' salaries were contractually determined and billed to G4S' clients.[14]During her employment at ¶ 4S, Horton never applied for a Project Manager position.[15]

         In December of 2015, Horton told Cox that she was going to resign, but agreed to stay with the company a little bit longer to see if she could work out her differences with Cox and Redman.[16] Horton, feeling as though none of her complaints had been resolved, actually resigned on January 22, 2016.[17] In her resignation letter to Cox, Horton stated that her last day of employment would be April 29, 2016.[18] In an email dated February 8, 2016, Cox notified Chad Starwalt, Senior Vice President of the Southern Region of G4S, of Horton's resignation.[19] Although Cox sent the email, he expressed to Horton that “he was hop[ing] that [she] would change her mind” and not resign.[20] During this interim period, it was suggested to Horton that she apply for Account Manager or Project Manager positions that were either open or coming open at BASF or OLOL.[21] She was also asked to consider transferring to the G4S office in New Orleans to work as the Operations Manager.[22] Horton did not pursue any of these other positions.[23] On March 28, 2016, Horton submitted her final letter of resignation.[24] She continued working at ¶ 4S until April 29, 2016 in order to obtain her vacation pay and to train her replacement, Steve Dennis, who was paid $50, 000.00 per year, which was $4, 121.61 less than Horton's final salary.[25]

         On June 16, 2016, Horton filed a timely Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”) asserting discrimination on the basis of sex.[26] On August 17, 2016, Horton filed the instant lawsuit against her former employer seeking to recover actual and punitive damages for alleged wage discrimination based upon her gender in violation of Title VII and the Equal Pay Act (“EPA”).[27] She also asserted a state law claim of constructive discharge.[28] The next day, Horton filed an Amended Charge of Discrimination with the EEOC asserting discrimination based upon sex and equal pay from May 22, 2014 until April 29, 2016.[29] On April 4, 2017, the EEOC issued its Notice of Right to Sue letter.[30] Thereafter, on June 16, 2016, Horton filed an Amended Complaint.[31]

         Defendant now moves for summary judgment on all of Plaintiff's claims. G4S contends that Horton cannot establish a prima facie case of Title VII gender discrimination because she suffered no adverse employment action, and she cannot demonstrate that any similarly-situated male was treated more favorably than she was treated. Even if Plaintiff could establish a prima facie case, G4S asserts that it has a legitimate non-discriminatory business reason for Horton's salary, and Horton cannot prove that its proffered reason was merely pretextual. Similarly, G4S contends that Horton cannot establish a prima facie case under the Equal Pay Act because she cannot establish that G4S paid “workers of one sex more than workers of the opposite sex for equal work.”[32]And, even if Horton could satisfy her prima facie case, G4S argues that any differential pay is due to its contracts with its customers.

         In response, Horton contends that she can satisfy her prima facie case in support of her Title VII and EPA claims. As for her Title VII claim, Horton argues that she experienced an adverse employment action by being paid at a lower rate than male employees who had significantly fewer duties and responsibilities than she had, and that she has demonstrated that similarly-situated male employees were treated more favorably than she was treated. She further asserts that any proffered justification for her pay disparity was pretextual. As for her EPA claim, Horton contends that she can demonstrate that similarly-situated male employees were paid more than she was for fewer or lesser job responsibilities, duties, and supervisory obligations.

         II. LAW AND ANALYSIS

         A. Summary Judgment Standard

         “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”[33] “An issue is material if its resolution could affect the outcome of the action.”[34]“When assessing whether a dispute to any material fact exists, we consider all of the evidence in the record but refrain from making credibility determinations or weighing the evidence.”[35] “A party moving for summary judgment ‘must “demonstrate the absence of a genuine issue of material fact, ” but need not negate the elements of the nonmovant's case.'”[36] If the moving party satisfies its burden, “the non-moving party must show that summary judgment is inappropriate by setting ‘forth specific facts showing the existence of a genuine issue concerning every essential component of its case.'”[37] However, the non-moving party's “burden is not satisfied with some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence.”[38]

         Notably, “[a] genuine issue of material fact exists, ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'”[39] The Court must resolve all reasonable factual inferences in favor of the nonmoving party.[40] However, “[t]he court has no duty to search the record for material fact issues. Rather, the party opposing the summary judgment is required to identify specific evidence in the record and to articulate precisely how this evidence supports his claim.”[41] “Conclusory allegations unsupported by specific facts, however, will not prevent an award of summary judgment; ‘the plaintiff [can]not rest on his allegations . . . to get to a jury without ‘any significant probative evidence tending to support the complaint.'”[42]

         B. State Law Constructive Discharge Claim

         Defendant asserts that Horton's independent constructive discharge claim must fail for the same reasons that her constructive discharge may not serve as an adverse employment action to support her prima facie case of gender discrimination in compensation claim. Because Horton only needs to show that she was a member of a protected class and that she was paid less than a nonmember for work requiring substantially the same responsibility in order to satisfy her prima facie case of gender discrimination in compensation claim, G4S' constructive discharge argument does not defeat her Title VII claim.[43] In other words, whether Horton voluntarily resigned or was constructively discharged has no bearing on whether she can establish her prima facie case for a Title VII disparate pay claim. Nonetheless, G4S' analysis and argument is still applicable to the viability of Horton's independent state law constructive discharge claim, which the Court shall now consider.

         Horton does not dispute the fact that she resigned from her position at ¶ 4S on April 29, 2016. In fact, the record clearly establishes that, on no less than three occasions, Horton expressed her intention to resign either verbally or in writing. Horton has alleged, however, that she would not have resigned from her Operations Manager position “but for the fact that she was discriminated against because of her gender, evidenced through Defendant's actions in paying her significantly less than her male counterparts and refusing to adhere to its promises to increase her pay.”[44] It is essentially Horton's position that she was constructively discharged because she was paid less than her male co-workers. In response, G4S contends that Horton cannot show that she was constructively discharged.

         A resignation is only actionable under Title VII and Louisiana's employment discrimination laws if the resignation qualifies as a constructive discharge.[45] “The resigning employee bears the burden to prove constructive discharge.”[46] Establishing constructive discharge “imposes a high burden”[47] on the employee to “establish that [her] working conditions were so intolerable that a reasonable employee would feel compelled to resign.”[48] Importantly, “[d]iscrimination alone, without aggravating factors, is insufficient for a claim of constructive discharge.”[49]

         In considering whether a reasonable employee would have felt compelled to resign, courts within the Fifth Circuit consider the following factors:

(1) demotion; (2) reduction in salary; (3) reduction in job responsibilities; (4) reassignment to menial or degrading work; (5) reassignment to work under a younger [or less experienced/qualified] supervisor; (6) badgering, harassment, or humiliation by the employer calculated to encourage the employee's resignation; and (7) offers of early retirement [or continued employment on terms less favorable than the employee's former status].[50]

         The test that an employee must meet is “an objective, ‘reasonable employee' test: whether a reasonable person in the plaintiff's shoes would have felt compelled to resign.”[51] To prevail on a constructive discharge claim, a plaintiff must demonstrate a greater amount of harassment than that required for a hostile work environment claim.[52]Furthermore, while unlawful discrimination in the form of unequal pay is relevant to determine whether a constructive discharge has occurred, “a difference in pay alone cannot constitute such an aggravated situation that a reasonable employee would be forced to resign.”[53]

         The Court finds that Horton has failed to offer any evidentiary support to create a material fact issue on whether she was constructively discharged. Horton simply argues that “G4S took adverse employment action against [her] and treated [her] less favorably than similarly situated male employees by paying [her] at a lower rate than male employees who had significantly fewer duties than [her] and who had fewer responsibilities than [her].”[54] As previously stated, however, Horton's reliance on a difference in pay alone “cannot constitute such an aggravated situation that a reasonable employee would be forced to resign.”[55] Moreover, a review of the undisputed facts shows that Horton was never demoted and her pay was never reduced. The record does not evince badgering or harassment by Horton's supervisors calculated to encourage Horton to resign. In fact, the record shows that Cox, Horton's supervisor at the time of her resignation, actually hoped that she would change her mind and remain an employee of G4S in some capacity.

         Accordingly, the Court finds that Horton's voluntary resignation does not rise to the level of a constructive discharge. Therefore, G4S is entitled to summary judgment, and Horton's state law constructive discharge claim shall be dismissed.

         C. Title VII Gender Discrimination in Compensation Claims

         G4S moves for summary judgment on Horton's Title VII gender discrimination in compensation claim. Title VII makes it “an unlawful employment practice for an employer . . . to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex.”[56] Because there is no direct evidence of discrimination in this case, the Court will assess Horton's discrimination claim under the McDonnell Douglas Corp. v. Green burden-shifting framework.[57] Under this burden-shifting framework, the plaintiff must first establish a prima facie case of discrimination in compensation by showing “that [s]he was a member of a protected class and that [s]he was paid less than a non-member for work requiring substantially the same responsibility.”[58] If the plaintiff makes her prima facie showing, then the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the pay disparity.[59] If the defendant satisfies its burden of production, then the burden shifts back to the plaintiff-who bears the ultimate burden of persuasion of proving discrimination-to raise a genuine issue of material fact that the defendant's proffered non-discriminatory reason is pretext for discrimination.[60]

         For the purposes of her prima facie case, G4S concedes that Horton is a member of a protected class.[61] However, G4S argues that Horton cannot demonstrate that any other similarly-situated male employee was treated more favorably than she was treated.

         A plaintiff asserting disparate treatment in compensation under Title VII must show that her “circumstances are ‘nearly identical' to those of a better-paid employee who is not a member of the protected class.”[62] Although the Fifth Circuit has made clear that “nearly identical” is “not synonymous with ‘identical[, ]'”[63] courts within this circuit have defined “‘similarly situated' narrowly.”[64] “The employment actions being compared will be deemed to have been taken under nearly identical circumstances when the employees being compared held the same job or responsibilities, shared the same supervisor [, ] or had their employment status determined by the same person[.]”[65] “Employees with different supervisors, who work for different divisions of a company . . . generally will not be deemed similarly situated.”[66] The Fifth Circuit has further explained, that “employees who have different work responsibilities . . . are not similarly situated.”[67]

         G4S argues that the only proper comparator to Horton was Preston Jones (“Jones”). Jones, a male, was the only other G4S Operations Manager in Louisiana. G4S further argues that its Project Managers at BASF and OLOL were both male and female, and did not have the same job responsibilities as Horton; therefore, Project Managers are not proper comparators to Horton.

         In her Opposition, Horton fails to address why Jones, the only other Operations Manager in Louisiana at the time of her resignation, is not a proper comparator.[68] Jones, who was located in the G4S New Orleans office, was also under Cox's supervision.[69] It is undisputed that Horton made $9, 867.46 more than Jones.[70] Horton testified she was paid more because she had “more officers and more [client] accounts.”[71] Importantly, Horton does not offer any evidence showing that her job responsibilities were any different than those of her fellow Operations Manager. Accordingly, the Court finds that Jones is the proper comparator to Horton. Because the undisputed evidence shows that Horton earned a higher salary than Jones, she cannot demonstrate that a similarly-situated male employee was treated more favorably than she was treated. Therefore, Horton cannot establish her prima facie case of Title VII gender discrimination in compensation claim.

         The Court further finds that, even if Jones were not a proper comparator, Horton has failed to demonstrate how male Project Managers are proper comparators for the following reasons.

         First, the Court finds that the undisputed evidence shows that at least two women, Redman and Ginamarie Lakatos, held positions as Project Managers at BASF while Horton was employed at ¶ 4S, and that they earned more money than Horton.[72] Considering the fact that female Project Managers also made more money than Horton, the Court finds that Horton is unable to show that G4S Project Managers are proper comparators.

         Horton also contends that she was paid less than the following three male Project Managers: Markeith Johnson (“Johnson”); William H. Hineman (“Hineman”); and Carl W. Lott, Sr (“Lott”). Of these three individuals, the Court finds that only two were Project Managers: Johnson and Hineman. During her deposition, Horton admitted that Lott was a flex officer.[73] Therefore, because Lott was not a Project Manager, he is not a proper comparator to Horton.

         Turning to the record evidence, both Johnson and Hineman earned more money per hour than Horton, and they reported to the same supervisor as Horton.[74] It is also undisputed that Horton “had more employees under her[, ] over which she had supervisory capacity[, ] than any single Project Manager during her tenure.”[75] Nonetheless, Horton has failed to identify or set forth any evidence that shows how her job responsibilities and those of the Project Managers were similar in nature. Instead, Horton repeatedly asserts that, although she “had more responsibilities than Project Managers, male Project Managers during her tenure were paid more than [she was paid].”[76] However, conclusory argument without more will not carry Horton's burden on summary judgment. Additionally, Horton's own admission that the Project Manager position was “totally different” from the Operations Manager position supports a finding that the Project Managers are not proper comparators.[77] This is further buttressed by Redman's testimony explaining that the duties of the Project Manager and Operations Manager are “different, the pressure is different, and the requirements are different.”[78] Based on the foregoing, the Court finds that the male Project Managers identified by Horton are also not proper comparators.

         Accordingly, the Court finds that Horton has failed to establish a prima facie case of discrimination in compensation because she has not shown that her circumstances were nearly identical to those of a better-paid employee who is not a member of her protected class. Therefore, Horton's Title VII gender discrimination in compensation claim shall be dismissed.

         D. Equal Pay Act (“EPA”) Claim

         The EPA prohibits employers from discriminating “between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.”[79] To establish a prima facie case under the EPA, Horton must show: “(1) that her employer is subject to the Act; (2) that she performed work in a position requiring equal skill, effort [, ] and responsibility under similar working conditions; and (3) that she was paid less than members of the opposite sex.”[80] Horton need not show that her job duties were identical to those of higher paid male employees, only that the “skill, effort and responsibility” required in the performance of the compared jobs are “substantially equal.”[81] If Horton makes out a prima facie case, then the burden shifts to G4S to ...


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