Robertson v. Mylan Laboratories, Inc. (2001-466); 176 Vt. 356; 848 A.2d 310
2004 VT 15
[Motion for Reargument Denied 8-Mar-2004]
NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
2004 VT 15
Lynne Robertson Supreme Court
On Appeal from
v. Franklin Superior Court
Mylan Laboratories, Inc., Bertek, Inc. June Term, 2002
and Sharad Govil
Ben W. Joseph, J.
Andrew Jackson, Middlebury, for Plaintiff-Appellant.
Patricia M. Sabalis of Downs Rachlin Martin PLLC, Burlington, and Kathryn
Mrkonich-Wilson of Littler Mendelson, P.C., Minneapolis, Minnesota, for
PRESENT: Amestoy, C.J., Dooley, Morse (FN1), Johnson and Skoglund, JJ.
¶ 1. DOOLEY, J. In this workplace gender discrimination case
brought under the Vermont Fair Employment Practices Act, 21 V.S.A. §§
495-496, plaintiff Lynne Robertson appeals the superior court's grant of
summary judgment in favor of defendants Mylan Laboratories, Inc., Bertek,
Inc., and Sharad Govil. Plaintiff claims that defendants discriminated
against her by failing to promote her, by giving her a low level of pay
relative to her male peers at the company, and by terminating her in
retaliation for her gender discrimination complaint. We affirm.
I. Facts and Procedural History (FN2)
¶ 2. Plaintiff was employed as a scientist in the Research and
Development Division at Bertek, Inc. (now known as Mylan Technologies,
Inc.), a St. Albans-based pharmaceutical company that develops and
manufactures transdermal (through the skin) drugs. Bertek is a subsidiary
of Mylan Laboratories, Inc. Plaintiff was hired by Bertek in September
1993 after interviewing with Dr. Ludwig Weimann and Dr. Sharad Govil.
According to Govil, he supported hiring plaintiff, although plaintiff
disputes that fact. At that time, plaintiff held a B.S. degree in biology
and a master's degree in biochemistry, and had previous experience in the
pharmaceutical industry and drug formulation, but had no prior educational
or work experience in transdermal drug development. Throughout her career
at Bertek, she worked directly or indirectly under Govil, who is now
General Manager of Bertek.
¶ 3. In 1994, while working full-time at Bertek, plaintiff began
taking courses in pharmacology at the University of Vermont in pursuit of
her doctoral degree, with Govil's approval. Plaintiff claims that Govil
initially did not wish to approve her education, and did so only after she
went to higher management with her request. Regardless, Govil twice
approved plaintiff's request for a flexible work schedule, and also
approved Bertek's payment of her tuition. Plaintiff completed the course
requirements for the Ph.D. at the end of 1995.
¶ 4. Plaintiff worked under Govil in 1994 and 1995, and was
promoted twice during that time, first to Senior Scientist in May 1995 at a
salary of $46,275, then to Manager of Permeation and Dissolution in July
1995 at a salary of $52,000. In late 1996, plaintiff asked Govil to
transfer her to the Formulations Group because she did not like the way she
was being treated by her supervisor. Govil granted this request, and
plaintiff became Manager of Permeation in the Formulations Group.
¶ 5. Despite the promotions and the discretionary transfer Govil
approved, during 1997 and early 1998 plaintiff complained to several Bertek
personnel that Govil treated her unfairly because of her gender. She
claims that Dr. Scott Burton, Manager of Formulations and plaintiff's
immediate supervisor, indicated to her that he agreed with her, and that
Interim President Lou Debone and General Manager Matthew Costigan told her
that Govil's actions were due to his "cultural differences" with respect to
the treatment of women. Also during that period, several scientists in the
Research and Development department, including Burton, left Bertek.
Plaintiff claims that many of those employees - most of whom were male -
left because they were dissatisfied with Govil's style and management.
¶ 6. The events underlying much of this case relate to Govil's
actions in response to the departure of Burton and others. Govil proposed
to upper management to split the Formulations Group into two groups: drug
delivery and polymer science. In response to problems with drugs under
development, he proposed to upgrade the scientific ability of the staff
leaders in product development. As the restructuring was approved in
February of 1998, the Manager of Formulations position was eliminated, and
a new position of Director of Research and Development created. The
positions of Supervisor of Drug Delivery and Supervisor of Polymers were
created to report to the new research and development director.
¶ 7. While the restructuring was going on, Govil announced an
interim organization. On January 21, 1998 he made plaintiff interim head
of formulations while she continued to serve as Manager of Permeations.
Govil asserts that this promotion was due to plaintiff's seniority,
although plaintiff claims that Govil never conveyed that reason to her.
Govil drafted job descriptions for two new supervisor positions. For the
position of Supervisor of Drug Delivery, the job description required a
Ph.D. in Pharmaceutics, Material Science, or Chemical Engineering, as well
as five years of transdermal formulations experience.
¶ 8. Consistent with the view that Bertek needed to upgrade the
scientific skills of key employees in product development, Govil initiated
a search for qualified persons. He identified Dr. Kenneth Miller as the
most likely candidate for Supervisor of Drug Delivery, based on an
interview in January, 1998 before the position was approved. Govil posted
the Supervisor of Drug Delivery position on February 13, 1998, and shortly
after the application closing date, one week later, hired Dr. Miller.
¶ 9. Plaintiff believes that she should have been hired as
Supervisor of Drug Delivery and she was rejected because she is a woman.
She alleges a number of "irregularities" in the hiring of Dr. Miller:
1. He was interviewed before the job was even created. In
plaintiff's view, this process violated a policy requiring that
open positions be posted and that internal candidates be
interviewed before external candidates.
2. The job description was created to mirror Dr. Miller's
qualifications, rather than the reverse.
3. The opening was posted on Friday in violation of a policy
requiring posting on Wednesday and was open for a week for which
Govil believed plaintiff would be on vacation.
4. Bertek had on other occasions waived minimum education
requirements for applicants who were close to having the needed
education qualifications. Govil refused to waive the minimum
qualifications in plaintiff's case.
5. Miller was unqualified because he lacked industrial
experience, which is generally favored at Bertek; during the
interview process, Miller stated that "getting drugs to go through
skin" was not his area of expertise.
¶ 10. Plaintiff submitted an application for the Supervisor of Drug
Delivery position on February 19, and the next day met with Govil for over
an hour to discuss the position. According to defendants, Govil did not
believe that plaintiff was qualified for the position due to her lack of a
Ph.D. and the requisite five years of transdermal formulations experience.
In contrast, Miller held a B.S. and a Ph.D. in Chemical Engineering, had
worked for a successful competitor as well as several universities where he
had performed transdermal drug research work for private corporations, and
had authored publications and made numerous presentations on transdermal
¶ 11. Plaintiff was subsequently told that she was being promoted
and that her salary would be increased to $60,000 (approximately $4,000
more than she was being paid at the time). The exact position that
plaintiff was promoted to is disputed. Plaintiff claims that her new title
was to be Senior Manager of Projects, and that she was to be in charge of
all of the corporation's projects. She contends that this promotion was
inexplicably delayed, and that her new pay was substantially less than the
$80,000 that other staff at that level - specifically, new Supervisor of
Drug Delivery Miller - were receiving. Defendants respond that, after
plaintiff had submitted a proposed job description, defendants provided
plaintiff with a revised position description stating that her title would
be Project Manager and that her salary would be $60,000. Defendants also
claim that plaintiff was told that there would be a transition period as
she wrapped up work on her other projects.
¶ 12. In May 1998, plaintiff filed a formal complaint with Bertek,
claiming that she was denied the Supervisor of Drug Delivery position, the
Senior Manager of Projects title, and an $80,000 salary due to her gender.
Plaintiff alleges that as a result of her complaint, she was treated
unfairly by Govil and other Bertek personnel. The Human Resources
department subsequently conducted an investigation of the complaint and
ultimately found that plaintiff had not been subject to unfair or
discriminatory treatment. In July 1998, plaintiff filed a charge of gender
discrimination with the Vermont Attorney General and the Equal Employment
Opportunity Commission (EEOC). Following an investigation, the EEOC
concluded that there was no evidence to suggest that plaintiff had been
discriminated against based on her gender or retaliated against for filing
a complaint, and dismissed her charge.
¶ 13. Plaintiff continued to work for Bertek as Project Manager,
even after she filed the current lawsuit in Franklin County Superior Court
in July 1999. Finally, in February 2000, plaintiff was terminated for
breach of her confidentiality agreement with Bertek for alleged
dissemination, via a resume submitted to a recruiter, of information
regarding projects she had worked on for the company. Plaintiff contends
that none of the information found on the resume was detrimental to the
company and that other employees had divulged similar types of information
and had not been punished. She added to this litigation a count that
defendants retaliated against her for her complaint to the Vermont Attorney
General and the filing of this case.
¶ 14. As amended after plaintiff was terminated, the complaint in
this case had three counts: (1) defendants Govil, Bertek and Mylan
Laboratories committed unlawful employment practices in violation of the
Vermont Fair Employment Practices Act (FEPA), 21 V.S.A. § 495 et seq., in
failing to hire plaintiff as Supervisor of Drug Delivery; (2) defendants
committed unlawful employment practices in violation of FEPA by actions
against plaintiff taken in retaliation for her complaints of gender
discrimination directly to defendants and to the Attorney General; and (3)
defendants committed unfair employment practices in violation of Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq., by all the above
actions. In response to a motion by defendants, the trial court rendered
summary judgment for defendants on all counts on July 31, 2001. Plaintiff
subsequently brought this appeal contesting the dismissal of the two FEPA
II. Summary Judgment Standard
¶ 15. On review of a grant of summary judgment, this Court will
apply the same standard as that used by the trial court. White v. Quechee
Lakes Landowners' Ass'n, Inc.,170 Vt. 25, 28, 742 A.2d 734, 736 (1999).
Summary judgment will be granted if "the pleadings, 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 any party is entitled to judgment as a matter of law." V.R.C.P.
56(c)(3). In determining whether there is a genuine issue as to any
material fact, we will accept as true the allegations made in opposition to
the motion for summary judgment, so long as they are supported by
affidavits or other evidentiary material. Quechee Lakes Landowners' Ass'n,
170 Vt. at 28, 742 A.2d at 736. Further, the nonmoving party receives the
benefit of all reasonable doubts and inferences. Samplid Enters., Inc. v.
First Vt. Bank, 165 Vt. 22, 25, 676 A.2d 774, 776 (1996). Nevertheless,
the opponent to a summary judgment motion cannot simply rely on mere
allegations in the pleadings to rebut credible documentary evidence or
affidavits, Gore v. Green Mountain Lakes, Inc., 140 Vt. 262, 266, 438 A.2d 373, 375 (1981), but must respond with specific facts that would justify
submitting her claims to a factfinder. V.R.C.P. 56(e); State v. G.S.
Blodgett Co., 163 Vt. 175, 180, 656 A.2d 984, 988 (1995). If such facts
are contained in affidavits, these affidavits must be made on personal
knowledge and set forth facts that would be admissible in evidence.
III. Failure to Promote Claim
¶ 16. We first address plaintiff's FEPA claim of discrimination for
failure to promote her. Under FEPA, it is "an unlawful employment practice
. . . [f]or any employer, employment agency or labor organization to
discriminate against any individual because of race, color, religion,
ancestry, national origin, sex, sexual orientation, place of birth, or age
or against a qualified individual with a disability." 21 V.S.A. §§
495(a), (a)(l). The standards and burdens of proof to be applied under
FEPA are identical to those applied under Title VII of the United States
Civil Rights Act. See Hodgdon v. Mt. Mansfield Co., Inc., 160 Vt. 150,
161, 624 A.2d 1122, 1128 (1993).
A. The Applicable Framework
¶ 17. Plaintiff's first claim of error is that the trial court
applied the wrong burden allocation framework. Plaintiff argues that since
she presented direct evidence - in particular, alleged comments made to her
or her husband (FN3) by senior officers at Bertek - that gender played a
motivating factor in defendants' decision not to promote her, the two-step
framework of Price Waterhouse v. Hopkins, 490 U.S. 228, 241-44 (1989)
should apply, rather than the three-step burden shifting analysis of
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973) that the
trial court applied. Defendants counter that the evidence presented is
insufficient to trigger the Price Waterhouse analysis, and that the trial
court correctly applied the McDonnell Douglas framework. We agree with
defendants that the McDonnell Douglas analysis was the correct framework to
apply in this case.
¶ 18. This Court has adopted both the Price Waterhouse and the
McDonnell Douglas frameworks. Hodgdon, 160 Vt. at 161, 624 A.2d at 1128.
The Price Waterhouse framework "is invoked when the plaintiff initially
establishes that her sex played a motivating part in an employment
decision." Id; see also Graff v. Eaton, 157 Vt. 321, 324-25, 598 A.2d 1383, 1384-85 (1991). If such direct evidence of discrimination is
presented, "the burden of persuasion then falls upon, and remains with, the
employer to prove 'by a preponderance of the evidence that it would have
made the same decision even if it had not taken the plaintiff's gender into
account.' " Graff, 157 Vt. at 324, 598 A.2d at 1384 (quoting Price
Waterhouse, 490 U.S. at 258). If the plaintiff presents only
circumstantial evidence of discrimination, however, the three-step burden
shifting analysis of McDonnell Douglas is applied. Hodgdon, 160 Vt. at
162, 624 A.2d at 1129. Under McDonnell Douglas, in contrast to the
analysis under Price Waterhouse, "[t]he ultimate burden of persuading the
trier of fact that the defendant intentionally discriminated against the
plaintiff remains at all times with the plaintiff." Tex. Dep't of Cmty.
Affairs v. Burdine, 450 U.S. 248, 253 (1981).
¶ 19. Plaintiff relies particularly on four statements, three to her
and one to her husband, that she or her husband testified to in their
respective depositions. Three of these precede Govil's actions in creating
and filling the position of Supervisor of Drug Delivery. Apparently,
plaintiff was complaining about Govil's treatment of her to her supervisor,
Scott Burton, to the interim President of Bertek, Lou Debone, and to the
General Manager of Bertek, Matthew Costigan. Plaintiff alleges that when
she asked why Govil unfairly treated her, both Debone and Costigan answered
it was because of "cultural differences." She alleges that when she asked
Burton if Govil unfairly treated her because she is a woman, he answered
"there's some of that." The fourth, by Costigan to plaintiff's husband, is
alleged to have come after Dr. Miller was hired. Again, Costigan
attributed Govil's treatment to cultural differences and when asked if that
meant that it was because plaintiff is a woman, "He didn't answer, but he
winked and nodded his head to me and pointed like that in an affirmative
¶ 20. We do not believe these statements meet the strict
requirement of direct evidence set out in Price Waterhouse. Neither "stray
remarks in the workplace . . . [n]or . . . statements by nondecisionmakers,
[nor] statements by decisionmakers unrelated to the decisional process
itself" will be considered as direct evidence of an employer's
discriminatory intent. Price Waterhouse, 490 U.S. at 277 (O'Connor, J.,
concurring); EEOC v. Liberal R-II Sch. Dist., 314 F.3d 923, 923 (8th Cir.
2002); Fakete v. Aetna, Inc., 308 F.3d 335, 338 n.2 (3d Cir. 2002);
Fernandes v. Costa Bros. Masonry, Inc., 199 F.3d 572, 581 (lst Cir. 1999);
see also 1 L. Larson, Employment Discrimination § 8.07, at 8-87 (2d ed.
2003) ("A statement will not be considered direct evidence of an employer's
discriminatory intent if it is made by an individual who was not a
participant in the decision-making process.").
¶ 21. Plaintiff does not dispute that neither Costigan, Debone nor
Burton - despite their high positions within Bertek - was part of the
decision not to promote her. The alleged comments to plaintiff did not
describe these administrators' own decision-making process, but were
instead mere speculation as to Govil's state of mind during his decision
making. At least three of the statements were about other actions of
Govil, not the decision to hire Ken Miller as Supervisor of Drug Delivery.
The statements are insufficient as direct evidence of discrimination.
Chiaramonte v. Fashion Bed Group, Inc., 129 F.3d 391, 397 (7th Cir. 1997)
(statements made by non-decision maker amount to mere speculation as to
thoughts of decision maker, and do not provide "smoking gun" evidence
required for direct inference of discriminatory intent); Edwards v.
Schlumberger-Well Serv., 984 F. Supp. 264, 275 (D.N.J. 1997) (statements by
non-decision maker that plaintiff was terminated because she was female
were not "discriminatory statements made in the decisionmaking process, but
rather were statements about discriminatory views that were held by
decisionmakers" and therefore were insufficient to satisfy burden in a
mixed-motive analysis); see also Taylor v. Va. Union Univ., 193 F.3d 219,
232 (4th Cir. 1999) (statement that police chief would never send a female
to the academy did not "bear directly on the contested employment decision"
so as to trigger a mixed motive standard of liability) (internal quotations
omitted); Kneibert v. Thomson Newspapers, Mich. Inc., 129 F.3d 444, 452-53
(8th Cir. 1997) (statement by person with no decision making authority that
plaintiff "was not terminated because of his ability or his quality of work
but because of a [sic] litigation that he is involved in" did not
constitute direct evidence) (internal quotations omitted); Mooney v.
Aramco Serv. Co., 54 F.3d 1207, 1218 (5th Cir. 1995) (statements by
non-decision maker that plaintiff had a "good case of age discrimination"
and that it "must have been your age" did not provide direct evidence of
age-related animus) (internal quotations omitted); Ahrens v. Perot Sys.
Corp., 39 F. Supp. 2d 773, 781 (N.D. Tex. 1999) (statements by supervisor
and fellow employees might be sufficient to infer a discriminatory motive,
but were insufficient to constitute direct evidence of discrimination under
¶ 22. Plaintiff urges that we look at the remaining evidence, much
of it set forth in the statement of facts above and discussed later in this
opinion, as direct evidence that gender discrimination motivated Govil's
action. To the extent the evidence involves the hiring decision, it does
not show directly that plaintiff's gender was a motivating factor in that
decision. To the extent the evidence goes to what plaintiff characterizes
as an abusive working environment for women in the company, it is not
related sufficiently to the hiring decision to invoke the Price Waterhouse
B. The McDonnell Douglas Analysis
¶ 23. Plaintiff next claims that the trial court erred in finding
that she failed to make out a prima facie case as required by McDonnell
Douglas. Defendants argue that the court was correct in finding that
plaintiff had not made out her prima facie case, and, even so, plaintiff
failed to demonstrate that Bertek's justification for its actions was a
mere pretext for unlawful discrimination. We find that plaintiff produced
sufficient evidence to make out a prima facie case, but that she has not
carried her burden to show that defendants' actions were pretextual,
sufficient to withstand summary judgment.
1. The McDonnell Douglas Framework
¶ 24. McDonnell Douglas "established an allocation of the burden of
production and an order for the presentation of proof in Title VII
discriminatory-treatment cases," St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993), in order to "progressively sharpen the inquiry into the
elusive factual question of intentional discrimination." Burdine, 450 U.S. at 255 n.8. At the outset, the plaintiff has the burden of establishing a
prima facie case of employment discrimination. Boulton v. CLD Consulting
Eng'rs, Inc., 2003 VT 72, 15, 834 A.2d 37; Hodgdon, 160 Vt. at 159, 624 A.2d at 1127. This step serves a screening function: it eliminates the
most patently meritless claims - i.e., where the plaintiff was rejected for
"common nondiscriminatory reasons." Burdine, 450 U.S. at 254. The
evidentiary burden required of the plaintiff at this stage is a relatively
light one. See id. (burden at prima facie stage is "not onerous");
Beckmann v. Edson Hill Manor, Inc., 171 Vt. 607, 608, 764 A.2d 1220, 1222
¶ 25. The specific elements of a prima facie case may vary
depending on the claim and the particular facts of the case. See Burdine,
450 U.S. at 253 n.6 (prima facie standard is "not inflexible" and may
differ given differing factual situations). In general to establish a
prima facie case of employment discrimination, the plaintiff must
demonstrate that: (1) she was a member of a protected group; (2) she was
qualified for the position; (3) she suffered an adverse employment action;
and (4) the circumstances surrounding this adverse employment action permit
an inference of discrimination. See McDonnell Douglas Corp., 411 U.S. at
802; Bennett v. Watson Wyatt & Co., 136 F. Supp. 2d 236, 246 (S.D.N.Y.
2001); see also State v. Whitingham Sch. Bd., 138 Vt.15, 19, 410 A.2d 996,
998-99 (1979); Carpenter v. Cent. Vt. Med. Ctr., 170 Vt. 565, 566, 743 A.2d 592, 594-95 (1999) (mem.) (elements for age discrimination).
¶ 26. Once the plaintiff has established a prima facie case, a
presumption of discrimination arises, Hicks, 509 U.S. at 506, and the
burden shifts to the employer "'to articulate some legitimate,
nondiscriminatory reason for the employee's rejection.'" Hodgdon, 160 Vt.
at 159, 624 A.2d at 1127 (quoting McDonnell Douglas Corp., 411 U.S. at
802). This second step serves to respond to the plaintiff's prima facie
case as well as "to frame the factual issue with sufficient clarity so that
the plaintiff will have a full and fair opportunity to demonstrate
pretext." Burdine, 450 U.S. at 255-56. The employer's burden at this
second stage is solely one of production, not persuasion. Id.
¶ 27. If the employer meets his burden at this stage, the
presumption of discrimination disappears, Hicks, 509 U.S. at 510-11, and
the burden then shifts back to the plaintiff to prove that the employer's
justification is a mere pretext for discrimination. Hodgdon, 160 Vt. at
159, 624 A.2d at 1127. This third step is in keeping with the fact that
"[t]he ultimate burden of persuading the trier of fact that the defendant
intentionally discriminated against the plaintiff remains at all times with
the plaintiff." Burdine, 450 U.S. at 253.
2. The Prima Facie Case
¶ 28. Returning to the case at hand, the first issue concerns
plaintiff's attempt to establish a prima facie case of discrimination. The
trial court found that plaintiff did not establish a prima facie case for
two reasons: (1) plaintiff failed to satisfy the second element because she
did not demonstrate that she was qualified for the Supervisor of Drug
Delivery position, and (2) plaintiff failed to satisfy the fourth element
because she did not demonstrate that Miller had similar or lesser
qualifications for the position than she, and thus there could be no
inference of gender discrimination. Plaintiff contends that in making such
a finding, the trial court ignored relevant evidence suggesting that
plaintiff was qualified for the open position but that Govil manipulated
the job opening in order to prevent her from obtaining that position
because of her gender. We find that plaintiff's proffer of evidence was
sufficient to meet her burden at the prima facie case stage.
¶ 29. Under McDonnell Douglas, if plaintiff is not objectively
qualified for the position, then she cannot make out a prima facie case.
Defendants persuaded the trial court to conclude that defendant was not
qualified because the job description required a Ph.D. in Pharmaceutics,
Material Science, or Chemical Engineering, and plaintiff did not have a
Ph.D. at that time. We do not find the educational qualification
conclusive. Plaintiff was close to obtaining her Ph.D., and her evidence
suggests that Bertek had often let other employees assume positions when
they did not meet all of the educational requirements but were close to
completing them. Moreover, plaintiff was performing the nearest comparable
job, Manager of Formulations, on an interim basis. She claimed that the
responsibilities did not substantially change, but that Govil changed the
title and added qualifications to give the job to his hand-picked male
candidate. See Arrington v. Cobb County, 139 F.3d 865, 875 (11th Cir.
1998) (prima facie case established where plaintiff presented evidence that
responsibilities of new position given to male employee were the same as
those that plaintiff had performed before restructuring); Gates v. BEA
Assocs., Inc., No. 88 Civ. 6522 (SJM), 1990 WL 180137, at *1-*2, (S.D.N.Y.
Nov. 13, 1990) (summary judgment at prima facie stage not warranted where
there were disputed issues as to whether degree requirement was bona fide
job qualification and whether it was added solely to exclude plaintiff from
consideration); Larson, supra, § 8.02, at 8-24 ("A court may be inclined
not to take the employer's stated qualifications seriously when in fact the
employer does not consistently adhere to those stated qualifications when
making employment decisions."). Again, we stress that plaintiff's burden
is relatively light at the prima facie case stage.
¶ 30. We have a similar view of the trial court's holding that
plaintiff failed to demonstrate the fourth element of her prima facie case
because she could not show that Miller had similar or lesser qualifications
for the position than she. See Walker v. Mortham, 158 F.3d 1177, 1185
(11th Cir. 1999) (issue of comparative qualifications more appropriate for
rebuttal stage, as employer is in better position to provide information
pertaining to this issue ); Thomas v. Denny's, Inc., 111 F.3d 1506, 1510
(10th Cir. 1997) (requiring plaintiff to establish comparative
qualifications at prima facie case stage effectively removed his
opportunity to establish pretext); Larson, supra, § 8.02, at 8-30
("[C]ourts have generally repudiated th[e] view [that failure of the
plaintiff to present evidence of comparative qualifications is fatal to the
prima facie case], holding that there is no such requirement and that a
plaintiff need only demonstrate minimum qualifications."). Plaintiff must
come forward with evidence to show that the circumstances surrounding her
failure to receive the Supervisor of Drug Delivery job permit an inference
of unlawful discrimination. See Carpenter, 170 Vt. at 567, 743 A.2d at
595. Again, we find that the evidence that the job description and job
qualifications were manipulated, combined with the fact that a man was
chosen for the position over plaintiff, is sufficient to permit such an
inference, see, e.g., Holt v. KMI-Continental, Inc., 95 F.3d 123, 129 (2d
Cir. 1996) (plaintiff made out prima facie case "by showing that she is a
member of a protected class, a black female; that she applied for the
positions; and that she was qualified for the positions; that the positions
were filled by a white male and a white female"), and discharge plaintiff's
very light burden at this stage. See Boulton, 2003 VT 72, at 16; see also
Quaratino v. Tiffany & Co., 71 F.3d 58, 65 (2d Cir. 1995) ("[P]laintiff's
burden of proof in a . . . discrimination action is de minimis at the prima
facie stage."). We therefore hold that plaintiff has demonstrated a prima
facie case of discrimination.
3. Evidence of Pretext (FN4)
¶ 31. Pursuant to the second stage of the McDonnell Douglas
analysis, defendants have offered evidence in support of a legitimate
business reason for their actions: the elimination of the Manager of
Formulations position, and the inclusion of certain qualifications in the
job description for the new Supervisor of Drug Delivery position were the
result of restructuring done in response to large employee turnover and a
perceived lack of scientific ability and expertise in certain specialty
areas in the Research and Development department. The important element of
this justification, for purposes of this case, is that Govil, and senior
management who approved the restructuring, made an early, pre-recruitment
decision that the necessary qualifications and skill for the senior drug
development jobs did not exist among the employees who were left after the
extensive turnover. Thus, in creating the restructuring plan and job
descriptions, Govil made the decision that neither plaintiff or any other
existing employee would be hired to fill the new jobs. At this second
stage of the McDonnell Douglas analysis, defendants have only a burden of
production, rather than one of persuasion, see Boulton, 2003 VT 72, at 15,
and plaintiff does not dispute that the reasons defendants proffered for
their hiring decision, if believed, were legitimate and non-discriminatory.
We conclude that defendants have met their burden under McDonnell Douglas.
Thus the only question that remains is whether the total evidence offered
by plaintiff is sufficient to carry her ultimate burden of demonstrating
that Bertek's justification is a mere pretext for discrimination. We
conclude that plaintiff has not carried her burden here.
¶ 32. As we indicated above, we have generally followed the burden
allocation rules applicable to Title VII of the Civil Rights Act of 1964.
The United States Supreme Court has addressed the burden of demonstrating
pretext in a number of cases, and its latest discussion of the nature of
the burden in Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133
(2000), is the most pertinent. Although Reeves is an Age Discrimination in
Employment Act (ADEA) case, it was decided on the basis that the burdens
for the ADEA and for Title VII are the same. See 530 U.S at 142. The
Supreme Court took the case "to resolve a conflict among the Courts of
Appeals as to whether a plaintiff's prima facie case of discrimination,
combined with sufficient evidence for a reasonable factfinder to reject the
employer's nondiscriminatory explanation for its decision, is adequate to
sustain a finding of liability for intentional discrimination." Id. at 140
(internal citations omitted). The Court answered the question in the
affirmative, holding that a plaintiff's prima facie case, combined with
sufficient evidence of pretext, "may permit the trier of fact to conclude
that the employer unlawfully discriminated." Id. at 148. The Court also
recognized, however, that this will not always be case:
Certainly there will be instances where, although the plaintiff
has established a prima facie case and set forth sufficient
evidence to reject the defendant's explanation, no rational
factfinder could conclude that the action was discriminatory. For
instance, an employer would be entitled to judgment as a matter of
law if the record conclusively revealed some other,
nondiscriminatory reason for the employer's decision, or if the
plaintiff created only a weak issue of fact as to whether the
employer's reason was untrue and there was abundant and
uncontroverted independent evidence that no discrimination had
Id. Although the Court was describing the standard for determining whether
the employer was entitled to a judgment as a matter of law under Rule 50 of
the Federal Rules of Civil Procedure, commentators and courts after Reeves
have concluded that the decision also describes the standard for
determining whether the employer is entitled to summary judgment. See
Williams v. Raytheon Co., 220 F.3d 16, 19 (1st Cir. 2000) (applying Reeves
to a summary judgment motion); C. Thompson, Juries Will Decide More
Discrimination Cases: An Examination of Reeves v. Sanderson Plumbing
Products, Inc., 26 Vt. L. Rev. 1, 2 (2001); L. Ware, Inferring Intent from
Proof of Pretext: Resolving the Summary Judgment Confusion in Employment
Discrimination Cases Alleging Disparate Treatment, 4 Employee Rts. & Emp.
Pol'y J. 37, 63 (2000); Note, Reeves v. Sanderson Plumbing Products:
Stemming the Tide of Motions for Summary Judgment and Motions for Judgment
as a Matter of Law, 52 Mercer L. Rev. 1549, 1565 (2001). In part, they
have reached this conclusion because the Reeves Court commented that "the
standard for granting summary judgment mirrors the standard for judgment as
a matter of law, such that the inquiry under each is the same." Reeves,
530 U.S. at 150 (internal quotations omitted).
¶ 33. Reeves explained the application of its ruling in terms
consistent with our law on summary judgment, as set out above. Whether
summary judgment is appropriate under Reeves depends on a number of
factors, including "the strength of the plaintiff's prima facie case, the
probative value of the proof that the employer's explanation is false, and
any other evidence that supports the employer's case and that properly may
be considered" on a summary judgment motion. Reeves, 530 U.S. at 148-49.
The Reeves Court further clarified this standard:
Credibility determinations, the weighing of the evidence, and the
drawing of legitimate inferences from the facts are jury
functions, not those of a judge. Thus, although the court should
review the record as a whole, it must disregard all evidence
favorable to the moving party that the jury is not required to
believe. That is, the court should give credence to the evidence
favoring the nonmovant as well as that evidence supporting the
moving party that is uncontradicted and unimpeached, at least to
the extent that evidence comes from disinterested witnesses.
Id. at 150-51 (internal citations and quotations omitted).
¶ 34. Plaintiff has relied in part on the Reeves holding. Having
adopted the burden shifting analysis of McDonnell Douglas, we see no reason
not to adopt the standard of Reeves as a reasonable approach to analyzing
evidence in an employment discrimination claim brought under FEPA. Thus,
we would normally allow plaintiff to avoid summary judgment at this third
step of the McDonnell Douglas analysis by demonstrating that there is an
issue of material fact underlying the question of whether the employer's
reason for its action was pretextual. We conclude that plaintiff has
failed to meet this burden.
¶ 35. The difficulty with plaintiff's position is that the hiring
decision was not a simple choice among applicants for a preexisting job.
Defendants' assertion that they restructured and redefined the research and
development management is largely unchallenged by plaintiff. This Court
"may not second-guess an employer's non-discriminatory business decisions,
regardless of their wisdom." Williams v. New York City Dep't of
Sanitation, No. 00 Civ. 7371 (AJP), 2001 WL 1154627, at *18 (S.D.N.Y. Sept.
28, 2001) (citing cases); see also Byrnie v. Bd. of Educ., 243 F.3d 93, 103
(2d Cir. 2001) (courts should not act as "super-personnel departments" that
second?guess employer's business judgments); Tarshis v. Riese Org., 211 F.3d 30, 37 (2d Cir. 2000) ("Title VII . . . [does] not grant courts
authority to second?guess the wisdom of corporate business decisions . . .
."). Moreover, much of the evidence plaintiff has relied upon is entirely
consistent with defendants' reason for their action and does not raise an
inference of pretext.
¶ 36. To the extent that plaintiff has attempted to show that
defendants' rationale for the hiring decision was a pretext, she has relied
upon three theories. The first is that Govil manipulated the hiring
process in violation of company policies to allow him to hire Miller. As
we held above, this evidence helped plaintiff to demonstrate a prima facie
case, the first stage of the McDonnell Douglas framework, but it is
unhelpful in demonstrating pretext. Once Govil decided that the existing
Bertek employees did not have the necessary skills to lead the research and
development of drugs, he had to conduct a search for persons with the
needed qualifications. It is obvious that he could not find highly skilled
persons with advanced educational degrees in the narrow field involved by
simply announcing that positions were open and hoping that the right
persons saw the announcement and applied. Consistent with his goals, Govil
actively recruited Dr. Miller even before the restructuring was approved.
Although Govil put less emphasis on the application process for internal
candidates, we cannot conclude that he violated any company policies in the
process, (FN5) and plaintiff did apply and was interviewed. In summary, at
best plaintiff may have showed that Govil violated the spirit of company
hiring procedures, but the arguable violations reinforced Govil's rationale
for hiring Miller, rather than showing the rationale was a pretext for
¶ 37. Her second theory of pretext - that she was more qualified
than Miller - also does not meet her burden. It is undisputed that
plaintiff did not meet the posted minimum qualifications for the job of
Supervisor of Drug Delivery. There is no evidence to support plaintiff's
argument that Govil adopted the minimum qualifications solely to give the
job to Miller. Indeed, the minimum qualifications were entirely consistent
with the business rationale of upgrading skill levels.
¶ 38. We cannot agree with her arguments against these central
facts. Plaintiff's personal opinion of her relative qualifications cannot
be determinative. See Lee v. GTE Florida, Inc., 226 F.3d 1249, 1255 (11th
Cir. 2000) (plaintiff's opinion that she was more qualified than the person
who was hired for the job she sought "is insufficient to raise a genuine
issue of fact" as to whether the reasons given for the hiring decision were
pretextual). Nor can we conclude that plaintiff has met her burden by
showing that some of the responsibilities of the new job of Supervisor of
Drug Delivery overlapped with those of the job she was performing on an
interim basis. See Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 473 (7th
¶ 39. We do not believe that plaintiff's related allegation that the
company had waived minimum qualifications in the past helps plaintiff's
position in this context. Since the whole point of the restructuring was
to upgrade skill and competency of research and development managers, any
waiver of qualifications to hire an existing employee would defeat this
point. Nor are we persuaded that plaintiff showed pretext by her husband's
testimony that the General Manager of Bertek, Matthew Costigan, once told
him that Miller should not be interviewed because he was an academician and
did not have the "industrial experience" necessary for the job.
Irrespective of the views of Costigan, who was not responsible for the
hiring, it is undisputed that Miller met the minimum qualifications for the
job, including five years of transdermal formulations experience, and that
plaintiff did not.
¶ 40. We do not belittle plaintiff's evidence in support of her
third theory - that women were subject to widespread discrimination at
Bertek. Her evidence suggested that Bertek's work culture was frequently
hostile to women, (FN6) that men held the upper research and development
positions, (FN7) that Govil was a poor manager and supervisor especially
with respect to women employees, or that "cultural differences" adversely
affected his attitude toward women employees. This evidence may be
relevant under Reeves, 530 U.S. at 151-52, to support sufficient evidence
that the stated reason for the hiring decision was pretextual, but it does
not replace such evidence. It does not respond to defendants' business
rationale for their hiring decision and show that it is a pretext.
¶ 41. In general, plaintiff has failed to present sufficient
evidence to rebut defendants' rationale beyond her own conclusory
allegations, see Quechee Lakes Landowners' Ass'n, 170 Vt. at 28, 742 A.2d
at 736 (conclusory allegations without facts to support them are
insufficient to survive summary judgment), to contradict this evidence.
See Smith v. Am. Express Co., 853 F.2d 151, 154-55 (2d Cir. 1988) (summary
judgment for defendant appropriate when plaintiff failed to show pretext in
selection of better qualified candidate for promotion). We conclude that
plaintiff failed to meet her burden and that the trial court properly
granted summary judgment against her on her claim that defendants illegally
failed to promote her. (FN8)
IV. Claim of Retaliation
¶ 42. Plaintiff's final claim is that Bertek retaliated against her
for bringing a gender discrimination claim against it. To establish a
prima facie case of retaliatory discrimination under FEPA, the plaintiff
must show that (1) she engaged in a protected activity; (2) her employer
was aware of that activity; (3) she suffered adverse employment decisions;
and (4) there was a causal connection between the protected activity and
the adverse employment action. Gallipo v. City of Rutland, 163 Vt. 83, 92,
656 A.2d 635, 642 (1994); Tomka v. Seiler Corp., 66 F.3d 1295, 1308 (2d
Cir. 1995). If the plaintiff establishes a prima facie case, the burden
shifts to the defendant-employer to articulate some legitimate
nondiscriminatory reason for the alleged retaliation. Tomka, 66 F.3d at
1308. If the defendant carries this burden of production, the plaintiff
must then demonstrate that the defendant's reasons are pretext for
discriminatory retaliation. Id. The trial court found that plaintiff had
not established a prima facie case of retaliatory discrimination under FEPA
and thus granted summary judgment in defendants' favor on these claims. We
agree that the grant of summary judgment was appropriate.
¶ 43. Plaintiff claims that, as a result of filing a complaint with
the company and later with the Vermont Attorney General's office, (1) she
received a negative performance appraisal criticizing her knowledge of
project management and her interpersonal communication skills; (2) Govil
excluded her from interviews of job applicants, excluded her from project
meetings, and ignored and failed to support her; (3) she was "demoted" to
the position of Project Manager; and (4) Bertek terminated her employment.
It is not disputed that plaintiff's filing of a gender discrimination
complaint with the company and later with the Vermont Attorney General's
office is a protected activity and that Bertek was aware of this activity.
We thus turn to whether the individual actions that plaintiff complains of
are "adverse employment actions" and, if so, whether these actions were the
result of her filing of a complaint.
¶ 44. Neither the negative performance appraisal or Govil's alleged
unfair treatment of plaintiff constitutes an "adverse employment action" so
as to satisfy plaintiff's prima facie case. See Ledergerber v. Stangler,
122 F.3d 1142, 1144 (8th Cir. 1997) (reassignment of staff was not adverse
employment action); Johnson-Carter v. B.D.O. Seidman, LLP, 169 F. Supp. 2d 924, 938-39 (N.D. Ill. 2001) (employer's denial of one training class in
which African?American employee already had expertise, non?invitation to
three staff meetings, requirement that employee work outside her area of
expertise, and denial of an isolated request for compensatory time off did
not constitute material "adverse employment actions"); Bennett, 136 F. Supp. at 247; (exclusion from performance evaluation process and
compensation communication meetings were not adverse employment actions as
would support prima facie case of race discrimination); Martin v. Kroger
Co., 65 F. Supp. 2d 516, 539 (S.D. Tex. 1999) (plaintiff's "allegations
about undermining her authority as supervisor, increasing her work load,
and giving credit for work to undeserving non-minorities,"did not rise to
level of adverse employment actions). Furthermore, the incidents of unfair
treatment that plaintiff contends were retaliation for her filing of a
gender discrimination claim are of the exact same character as the
incidents of alleged unfair treatment that apparently led to the filing of
the claim in the first place. Thus, plaintiff has not satisfied either the
third or fourth element of the prima facie case of retaliation based on
these actions by Govil.
¶ 45. In regards to the negative performance appraisal, "[n]egative
evaluations alone, without any accompanying adverse result, . . . are not
cognizable." Valentine v. Standard & Poor's, 50 F. Supp. 2d 262, 283-84
(S.D.N.Y. 1999) (collecting cases). Here, plaintiff does not claim that
the negative performance appraisal caused any change in the conditions of
her employment, nor does she claim that her eventual discharge was the
result of this appraisal. As such, this action similarly does not satisfy
the third element of the prima facie case.
¶ 46. As for the "demotion," the record indicates that the events
that plaintiff complains about - the alleged promotion to Senior Project
Manager followed a week later by a "demotion" to Project Manager - occurred
before plaintiff filed her claim with Bertek. Indeed, it seems that it was
precisely this "demotion" - which occurred in late April - that led to the
filing of her complaint in early May. Thus, the causation element of the
prima facie case is not satisfied for this claim of retaliation. See McLee
v. Chrysler Corp., 109 F.3d 130, 136 (2d Cir. 1997) (no inference of
discriminatory motivation where plaintiff contacted civil rights offices
after, and because of, alleged adverse employment action); Zorn v. Helene
Curtis, Inc., 903 F. Supp. 1226, 1250 (N.D. Ill. 1995) (no causal
relationship established where evidence giving rise to alleged constructive
discharge began before employee complained of discrimination).
¶ 47. Plaintiff's termination is clearly an adverse employment
action. Yet we find it difficult to see, absent other evidence, how this
action was the result of a protected activity: plaintiff's termination came
nearly seven months after she filed the current lawsuit, and over one and a
half years after she filed the original claims of discrimination with
Bertek, the Vermont Attorney General, and the EEOC. See Nguyen v. City of
Cleveland, 229 F.3d 559, 566-67 (6th Cir. 2000) (if plaintiff relies solely
on temporal proximity between the protected activity and the adverse action
to show retaliation, a proximity of time of less than six months generally
is required to establish a prima facie case); Hollander v. Am. Cyanamid
Co., 895 F.2d 80, 85 (2d Cir. 1990) (proximity in time of three months
between the protected activity and the adverse action is alone insufficient
to make out a prima facie case). Plaintiff has not pointed to other
evidence of retaliation.
¶ 48. Even were we to accept that plaintiff has made out a prima
facie case of retaliation in regards to her termination, we find that she
has not demonstrated that defendants' reasons for the discharge were a
pretext for retaliation. Defendants claim that plaintiff was discharged
due to the disclosure of confidential company information to a recruiter
and one of Bertek's competitors. Plaintiff does not argue against the
claim that the information she disclosed via her résumé was confidential
and that, in distributing the résumé, she violated the confidentiality
agreement that she had signed. She contended in an affidavit that the
trial court struck that there was no injury to the company for any
information revealed and that other individuals had revealed similar
information without consequences. Even if the information were properly
before us, her statements constitute only general, conclusory and
self-serving allegations with no supporting detail that allows a trier of
fact to determine their credibility and weight. As we emphasized earlier,
conclusory allegations without facts to support them are insufficient to
survive summary judgment. Quechee Lakes Landowners' Ass'n, 170 Vt. at 28,
742 A.2d at 736. Thus, plaintiff has not met her burden at this stage, and
the grant of summary judgment in favor of defendants was appropriate.
¶ 49. The parties have briefed two other issues that we do not reach
in light of our disposition. Plaintiff argues that the trial court erred
in finding that an individual supervisor is not liable under FEPA and in
dismissing Sharad Govil as a defendant. Because we uphold the decision to
grant summary judgment to defendants on all claims, we need not reach this
¶ 50. Defendants argue that the dismissal of the retaliation claim
should be upheld as a discovery sanction because of plaintiff's refusal to
identify her current employer despite the trial court's order to do so. We
have upheld the grant of summary judgment for defendants on this claim and
do not have to reach this argument. Affirmed.
FOR THE COURT:
FN1. Justice Morse sat for oral argument but did not participate in this
FN2. We note at the outset that there is a confusion over the admissibility
of the contents of certain affidavits submitted by plaintiff, in particular
two affidavits of plaintiff and one affidavit of Michael Fulton, a prior
Bertek employee. The trial court apparently struck these three affidavits
in their entirety after focusing solely on a few assertions contained in
them that it found to be inadmissible. Plaintiff failed to challenge this
ruling in her brief, but in response to defendants' reliance on the rulings
in their brief, asserted in her reply brief that the court's ruling was
error. We need not consider an argument raised for the first time in a
reply brief. See In re Wal-Mart Stores, Inc., 167 Vt. 75, 86, 702 A.2d 397, 404 (1997). In any event, given that virtually all of plaintiff's
factual allegations appear in depositions, particularly hers, and
documentary evidence, striking the affidavits is of limited significance.
Moreover, to the extent that this decision relies on the absence of
evidence that might have been supplied by the affidavits, it also relies on
FN3. Plaintiff's husband is Maurice Miller, who was Director of
Manufacturing at Bertek during the relevant time period.
FN4. We recognize that in prior cases, this Court, after finding that the
trial court erred in finding that the FEPA plaintiff had failed to prove a
prima facie case, reversed and remanded a summary judgment finding against
the plaintiff without addressing the issue of pretext. See, e.g.,
Carpenter v. Cent. Vt. Med. Ctr., 170 Vt. 565, 569, 743 A.2d 592, 597
(1999) (mem.). Here, however, the pretext issue was specifically addressed
by the trial court as an independent ground for its decision and has been
fully briefed by both parties.
FN5. For example, plaintiff argued that Bertek's policy required that
internal candidates be interviewed before external candidates are
interviewed. In fact, the policy requires only that internal candidates be
interviewed before the position is filled. While it suggests that internal
candidates be interviewed first, it does not require this procedure.
Plaintiff also argued that the position opening was posted on Friday,
in violation of a company policy that required posting on Wednesday. In
fact, the posting policy had been eliminated in 1997, well before the
FN6. Plaintiff relies on our decision in In re Butler, 166 Vt. 423, 697 A.2d 659 (1997), for the proposition that evidence of a hostile work
environment can show disparate treatment and pretext. Butler was an appeal
from a decision of the Vermont Labor Relations Board concluding that the
decision to terminate a female state police officer because she failed to
successfully complete her probationary period was based on gender
discrimination. We affirmed holding that a hostile work environment was
relevant to show "whether she was judged differently and more harshly than
her male colleagues." 166 Vt. at 428, 697 A.2d at 663. There was no claim
of pretext in Butler, and the decision did not address pretext. Although
there may be cases where the presence of a hostile work environment is
relevant to show pretext, this is not such a case. Plaintiff was denied
the job she sought because she lacked education and experience
qualifications, and not because her performance was inadequate although
adversely affected by a hostile work environment. Moreover, plaintiff does
not claim sexual harassment by Govil or other supervisors and employees.
Nor does she claim that Govil, the only person involved in the alleged
discriminatory action, was influenced by a general discriminatory
atmosphere at Bertek; instead, plaintiff argues that her unfair treatment
was the result of Govil's "cultural differences" with respect to his
attitude towards women.
FN7. Although this is a disparate treatment case, plaintiff has detailed
the careers of other women in the company to argue that a "glass ceiling"
exists, especially as to research and development jobs. We have inadequate
information to determine whether the career moves are typical of those of
women in the company generally, are different from those of men or show
evidence of discrimination. In any event, statistical evidence of
treatment of other women is rarely sufficient to show that an adverse
employment decision with respect to plaintiff was pretextual. See LeBlanc
v. Great Am. Ins. Co., 6 F.3d 836, 848 (1st Cir. 1993).
FN8. Although not clearly delineated in either her complaint or her brief
on appeal, two other counts of gender discrimination under FEPA appear to
have been raised by plaintiff. Perhaps in an excess of caution, we address
them as if they had been separately raised.
First, plaintiff claims that she was discriminated against by being
paid less than her male counterparts at Bertek. Second, plaintiff claims
that she was discriminated against by Govil who she alleges treated her
poorly compared to men at the company. The trial court addressed both of
these issues and granted summary judgment in favor of defendants on both.
We find that the trial court was correct in its reasoning and conclusions.
As to the claim of discrimination based on unequal pay, plaintiff has
failed to make out a prima facie case. FEPA prohibits "paying wages to
employees of one sex at a rate less than the rate paid to employees of the
other sex for equal work that requires equal skill, effort, and
responsibility, and is performed under similar working conditions." 21
V.S.A. § 495(a)(8). As part of her prima facie case of discrimination
based on unequal pay, plaintiff must demonstrate that she was paid less
than similarly situated males. See Buettner v. Arch Coal Sales Co., 216 F.3d 707, 719 (8th Cir. 2000); Belfi v. Prendergast, 191 F.3d 129, 139-40
(2d Cir. 1999); see also 25, supra (laying out basic elements of prima
facie case of gender-based employment discrimination under FEPA).
Plaintiff's sole piece of evidence in support of her unequal pay claim,
however, is that Suresh Borsadia, a Principal Scientist, was paid $65,000
in 1996 at the same time that plaintiff, a Project Manager, was being paid
$52,000. Because these two positions involved substantially different job
duties, plaintiff and Borsadia were not similarly situated such as to
provide evidence for the prima facie case. See Boulton, 2003 VT 72, at
19-20. Furthermore, plaintiff has not disputed defendants' claim that she
was paid more than Joe Duda, a male Project Manager. Therefore, plaintiff
has failed to establish her prima facie case, and thus the trial court was
correct in granting summary judgment to defendants on this issue.
The trial court was also correct in granting summary judgment for
defendants on the issue of Govil's alleged poor treatment of plaintiff. As
part of her prima facie case, plaintiff must show that she suffered an
"adverse employment decision" that affects the terms or conditions of her
employment. See Ledergerber v. Stangler, 122 F.3d 1142, 1144 (8th Cir.
1997); Bennett v. Watson Wyatt & Co., 136 F. Supp. 2d 236, 247 (S.D.N.Y.
2001); see also Gallipo v. City of Rutland, 163 Vt. 83, 92, 656 A.2d 635,
642 (1994) (prima facie case for retaliatory discrimination requires
showing of adverse employment action). Plaintiff alleges that Govil left
her out of meetings, did not provide her with information, transferred her
staff from her group without consulting her, and reassigned her duties to
men without consulting her. None of these instances of alleged unfair
treatment, however, constitute an "adverse employment action." See 43,
In view of our resolution of these claims, we do not reach defendants'
argument that they are barred in whole or in part by the applicable statute