MEMORANDUM OF DECISION
SANTOS, J.
On August 12, 2005, the petitioner, Richard Saucier, filed a petition for a writ of habeas corpus, which was amended on March 31, 2009, again on May 21, 2009, and for a third time on August 11, 2009. The petitioner claims that he was denied the effective assistance of trial and appellate counsel in violation of the sixth and fourteenth amendments of the United States constitution and article first, § 8, of the constitution of Connecticut in a number of ways. In count one, the petitioner claims that his appellate counsel failed to properly brief a preserved claim that the trial court had improperly concluded that a statement made by a witness for the petitioner was inadmissible hearsay. In count two, the petitioner claims that his trial counsel failed to have a DNA expert testify on the petitioner's behalf and failed to effectively cross examine the state's DNA expert at trial. For reasons stated more fully below, the petition is denied.
The matter came to trial on November 2, 2009. The court heard testimony from the petitioner, Attorney Glenn Falk, his appellate counsel, Attorney Gregory St. John, his trial counsel, and Carl Ladd, a DNA expert, and Karen Lamy, a forensic biologist, both employed by the Connecticut Forensic Laboratory. Neither party placed any exhibits in evidence. The petitioner and the respondent filed posttrial briefs on January 29, 2010 and July 26, 2010, respectively. Having reviewed all of the testimony, the Court makes the following findings of facts.
FINDINGS OF FACT
1. The petitioner was the defendant in a criminal case in the judicial district of Waterbury, bearing docket number CR02-0307175, in which he CT Page 18947 was charged, under a substitute information, with six counts of sexual assault in the first degree in violation of General Statutes § 53a-70(a)(1) and with one count of kidnapping in the first degree in violation of General Statutes § 53a-92(a)(2)(A).
2. At all times in the criminal matter, the petitioner was represented by Attorney Gregory St. John. Attorney St. John has been practicing law in Connecticut for thirty-two years. He practices in the areas of criminal law, domestic relations and juvenile law. He has tried about two dozen cases to verdict. He has had a contract as a special public defender with the office of the public defender for over twenty years. As a special public defender, he has handled both misdemeanors and felonies, including sexual assault cases.
3. On June 6, 2003, after a jury trial, the petitioner was found guilty of four counts of sexual assault in the first degree and of kidnapping in the first degree. He was found not guilty of two counts of sexual assault in the first degree.
4. On September 10, 2003, the trial court,
D'Addabbo, J., sentenced the petitioner to a total effective sentence of thirty years imprisonment, with ten years special parole.
5. The petitioner appealed from the judgment of conviction. Attorney Glenn Falk represented the petitioner on appeal. Attorney Falk has been practicing law in Connecticut since 1985. He received his undergraduate degree from Harvard College in 1982 and his law degree from Harvard Law School in 1985. He also has a Master's degree in history from Trinity College. For the first twelve years of his practice, he handled civil cases, primarily federal and state housing cases, for New Haven Legal Assistance. During that time, he handled two appeals of those cases. After that twelve year period to the CT Page 18948 present time, Attorney Falk has handled criminal cases for New Haven Legal Assistance. He has had ten to twelve jury trials, several hundred cases resulting in plea bargains, a number of cases resulting in nolles or dismissals and about forty to fifty criminal appeals.
6. The Appellate Court affirmed the petitioner's convictions. See
State v. Saucier, 90 Conn.App. 132,
876 A.2d 572 (2005). The petitioner appealed to the Supreme Court which granted certification as to a limited issue and affirmed the judgment of the Appellate Court. See
State v. Saucier, 283 Conn. 207,
926 A.2d 633 (2007).
7. As stated by the Appellate Court, the jury could have reasonably found the following facts regarding the underlying offenses: "On January 10, 2002, the [petitioner] telephoned the victim and asked her to cover a shift as a bartender at a restaurant. The victim agreed and later was picked up by the [petitioner], who drove her to work. Following her shift, the victim drove with the [petitioner] to a friend's house, where they smoked marijuana. The two left after twenty minutes. The victim was under the impression that the [petitioner] was going to drive her home. Instead, he drove her to a deserted tractor-trailer park, then to a highway underpass and finally to his home. The [petitioner] brutally and repeatedly sexually assaulted the victim at each location. Early the next morning, after the [petitioner] had fallen asleep, the victim escaped and ran virtually naked to a nearby business, where the police were called. The police took the victim to a hospital, stopping briefly en route in order for the victim to point out the [petitioner's] home."
State v. Saucier,
supra, 90 Conn.App. 134-35.
8. Additional facts will be discussed as needed.
DISCUSSION CT Page 18949
Before addressing the merits of the petitioner's claims, it is necessary to address a procedural argument raised by the petitioner in his post-trial brief. In his post-trial brief, the petitioner argues, for the first time, that since the respondent did not file a return to the third amended petition, the entire petition should be deemed admitted. In the alternative, he argues that only the additional allegations made in the third amended petition should be deemed admitted.
As noted supra, the petitioner amended his petition on March 31, May 21 and August 11, 2009. The respondent filed a return to the second amended petition, denying its material allegations, but did not file a return to the third amended petition. After the trial, on July 26, 2010, the respondent filed a motion requesting to file a return to the third amended petition, which this Court denied, as the trial had already been completed. This Court finds that the respondent's return to the petitioner's second amended petition applies to the third amended petition pursuant to Practice Book § 10-61, which provides in relevant part, "[w]hen any pleading is amended . . . [i]f the adverse party fails to plead further, pleadings already filed by the adverse party shall be regarded as applicable so far as possible to the amended pleading."
The only difference between the second and third amended petition is that the third amended petition contains the following additional allegation: "But for the petitioner's trial attorney failing to cross examine the DNA expert on the fact that the lab did not find out what bodily fluid of the alleged victim that the bodily fluid came from [sic] " As this is an additional, albeit incomplete, allegation, the return to the second amended petition cannot be regarded as addressing it. Pursuant to Practice Book § 10-19, "[e]very material allegation in any pleading which is not denied by the adverse party shall be deemed to be admitted, unless such party avers that he or she has not any knowledge or information thereof sufficient to form a belief." However, "[a]lthough the failure of a party to deny the material allegations of a pleading operates so as to impliedly admit the allegations, a default does not automatically trigger judgment for, or the relief requested by, the pleader." Commissioner of Social Services v. Smith, 265 Conn. 723, 736-37, 830 A.2d 228 (2003). Accordingly, even if deemed admitted, the additional allegation in the petitioner's third amended petition does not automatically entitle him to habeas relief. The allegation is incomplete and the petitioner must demonstrate both deficient performance and prejudice CT Page 18950 to succeed on a claim of ineffective assistance of counsel.
Third Amended Petition, Count Two, ¶ 8.
Ineffective Assistance of Counsel
"To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland requires that a petitioner satisfy both a performance prong and a prejudice prong. To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed . . . by the [s]ixth [a]mendment . . . To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different . . . The claim will succeed only if both prongs are satisfied . . . It is well settled that [a] reviewing court can find against a petitioner on either ground, whichever is easier." (Citations omitted; emphasis in original; internal quotation marks omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 712-13, 946 A.2d 1203, cert. denied, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008). "Moreover, when a petitioner is claiming ineffective assistance of appellate counsel, he must establish that there is a reasonable probability that but for appellate counsel's error, the petitioner would have prevailed in his direct appeal." (Internal quotation marks omitted.) Turner v. Commissioner of Correction, 118 Conn.App. 565, 568, 984 A.2d 793 (2009), cert. denied, 296 Conn. 901, 991 A.2d 1104 (2010).
Appellate Counsel
In count one of his third amended petition, the petitioner alleges that his appellate counsel rendered ineffective assistance by failing to properly brief on appeal the claim that the trial court had improperly excluded a statement made by a witness for the petitioner as inadmissible hearsay. Specifically, the petitioner contends that his appellate counsel should have argued in his brief to the Appellate Court, as he did in his brief to the Supreme Court, that the statement was not hearsay.
During the trial, Attorney St. John, the petitioner's trial counsel, attempted to admit into evidence testimony that the victim called an acquaintance the day after the assault and said, "I got CT Page 18951 Richie [the petitioner]. I got him good." State v. Saucier, supra, 283 Conn. 211. Attorney Falk, the petitioner's appellate counsel, claimed on appeal to the Appellate Court that the victim's statement was admissible under the state of mind exception to the hearsay rule. On appeal to the Supreme Court, he also claimed that the victim's statement was admissible because it was not hearsay at all. The Supreme Court declined to address this additional claim because it concluded that the petitioner "had abandoned it by failing to mention it in his brief to the Appellate Court." Id., 223.
At the habeas trial, Attorney Falk explained that he did not brief the claim that the victim's statement was not hearsay to the Appellate Court because he believed the trial court had implicitly rejected any such claim by ruling that the statement did not fall under the state of mind exception to the hearsay rule and because he did not believe the claim had merit. He also explained that the Appellate Court could have dismissed the claim for not being properly preserved at trial as the claim was raised by trial counsel in an ambiguous fashion. Attorney Falk testified that he only briefed the claim to the Supreme Court because at that time he had the assistance of a student from Yale Law School who convinced him that the claim "possibly had merit." He also testified that there was not a lot of Connecticut case law on the issue.
November 4, 2009 Habeas Trial Transcript, p. 46.
"The determination of which issues to present, and which issues not to present, on an appeal is by its nature a determination committed to the expertise of appellate counsel, and not to his client . . . By that determination, appellate counsel seeks to focus the concern of the appellate court on those issues which he deems to be most persuasive, and thus does appellate counsel most effectively present his client's appeal." (Citation omitted.) Valeriano v. Bronson, 12 Conn.App. 385, 390, 530 A.2d 1100 (1987), aff'd, 209 Conn. 75, 546 A.2d 1380 (1988), overruled in part on other grounds by State v. Courchesne, 296 Conn. 622, 998 A.2d 1 (2010). "[A] habeas court will not, with the benefit of hind-sight, second guess the tactical decisions of appellate counsel. Legal contentions, like the currency, depreciate through over-issue . . . [M]ultiplying assignments will dilute and weaken a good case and will not save a bad one . . . The effect of adding weak arguments will be to dilute the force of the stronger ones." (Internal quotation marks omitted.) Farnum v. Commissioner of Correction, 118 Conn.App. 670, 679, 984 A.2d 1126 (2009), cert. denied, 295 Conn. 905, 989 A.2d 119 (2010).
CT Page 18952 Attorney Falk initially did not believe that the claim that the victim's statement was not hearsay had merit; he was only later convinced by a law student that it had some possible merit. Accordingly, he did not raise the claim at the Appellate Court. Attorney Falk's tactical decision not to pursue a claim that he initially did not think had much merit does not constitute deficient performance. As an experienced appellate attorney, he raised the claims that he deemed to be most persuasive. This Court will not second guess his decisions. In any event, even if deficient performance is presumed, the petitioner's claim would still fail for lack of a showing of prejudice. The petitioner did not present any evidence demonstrating that had Attorney Falk raised the claim at the Appellate Court and thus, preserved the claim for review at the Supreme Court, he would have prevailed in his direct appeal.
Trial Counsel
In count two of his third amended petition, the petitioner claims that his trial counsel rendered ineffective assistance in that he failed to effectively cross examine the state's DNA expert and to have a DNA expert testify on the petitioner's behalf. Specifically, he contends that Attorney St. John should have cross examined the state's DNA expert on the fact that the forensic lab did not identify the biological source of the victim's DNA that was found on the petitioner. He also contends that Attorney St. John should have had a DNA expert explain that DNA can be transferred indirectly from a person to a towel to another person. The petitioner asserts that if this information was before the jury it would have created a reasonable doubt that he committed the crimes.
Although he did not work on the petitioner's case, Carl Ladd, a supervisor of the DNA section at the state forensic lab, having reviewed the petitioner's case, testified at the habeas trial that two known DNA samples were taken, one from the petitioner and one from the victim, and that a penile swab was also taken from the petitioner. He stated that the DNA found on the penile swab matched the victim's DNA. He did not know the biological source of the DNA but explained that serological testing can sometimes identify the source. Ladd further explained that while it is theoretically possible that DNA can be transferred to a towel from one person and then transferred to another person from the towel, it is highly improbable. He stated that such an indirect transfer would be difficult to detect and that as the majority of the DNA recovered from the penile swab taken from the petitioner was from the victim, CT Page 18953 it was unlikely that the victim's DNA was transferred indirectly to the petitioner from a towel. Karen Lamy, an expert in serology, testified that serological testing was not done to determine the biological source of the victim's DNA that was found on the penile swab. She explained that testing could have been done to identify the source but that sometimes testing is not done in order to preserve the sample for DNA testing.
Ladd explained that a known sample is taken merely to identify the person's own DNA. DNA testing was not done to determine whether the petitioner's DNA was on the victim.
Attorney St. John testified at the habeas trial that he did not find the DNA results in the petitioner's case to be very probative in terms of establishing guilt beyond a reasonable doubt. He did not consult anyone regarding them. He could not recall whether he asked the state's DNA expert about the biological origin of the DNA found on the petitioner. He explained that the case came down to a credibility issue. The petitioner testified at the habeas trial that the victim and he fell asleep naked next to each and that he fell asleep on a wet towel that the victim allegedly used after taking a shower.
Regardless of whether Attorney St. John's failure to point out on cross examination of the state's DNA expert that the specific biological source of the DNA found on the petitioner was unknown and his failure to have a DNA expert testify that there was at least a theoretical possibility that DNA could be transferred from one person to another person indirectly constitutes deficient performance, the petitioner has not demonstrated that there is a reasonable probability that, but for these alleged errors, the outcome of the trial would have been different. "A reasonable probability is one which is sufficient to undermine confidence in the result." (Internal quotation marks omitted.) Vasquez v. Commissioner of Correction, 111 Conn.App. 282, 286, 959 A.2d 10, cert. denied, 289 Conn. 958, 961 A.2d 424 (2008). As testified to by Attorney St. John, the victim's report of the crime was immediate. She ran naked from the petitioner's apartment to a nearby hair salon to call the police. The phone was not working at the hair salon so she went next door to a luncheonette wearing only a hair salon apron. Upon calling the police, she was taken to the hospital where photos of her injuries were taken. The victim, the owner of the hair salon, two police officers, the emergency medical technicians who treated the victim and an individual from the luncheonette all testified at the criminal trial. In light of the above, it is unlikely that the fact that the specific biological source of the victim's DNA found on the petitioner's penis was unknown and the fact that indirect transfer of DNA is theoretically possible would have rendered the CT Page 18954 petitioner's testimony of what happened more credible or would have created a reasonable doubt as to his guilt. As Ladd testified, while indirect transfer of DNA may be theoretically possible, it is highly improbable and given the amount of the victim's DNA recovered from the penile swab of the petitioner it was specifically unlikely to have occurred in the petitioner's case. Accordingly, the petitioner's ineffective assistance claim against Attorney St. John fails on the prejudice prong.
CONCLUSION
For the foregoing reasons, judgment shall enter denying the petition for a writ of habeas corpus. Should the petitioner wish to appeal, counsel shall submit a judgment file to the clerk within thirty days.
-v-western-southern-life-ins-co#p262849 F.2d 259, 262 (6th Cir. 1988). Indeed, another judge in this district recently held that the six-month limitations provision in FedEx's Employment Agreement was enforceable and time-barred a plaintiff's ADEA age discrimination claim.
Joe M. Ray v. FedEx Corporate Servs., Inc.,
668 F. Supp. 2d 1063 (W.D. Tenn. 2009) (J. McCalla).
Relying on Wineman v. Durkee Lakes Hunting Fishing Club Inc., 352 F. Supp. 2d 815, 823 (E.D. Mich. 2003), Boaz asserts, however, that FLSA claims, unlike ADEA claims, cannot be shortened by contractual limitation provisions. In Wineman, the Eastern District of Michigan held that the "FLSA cannot be abridged, compromised, or waived by private agreement" and refused to enforce a similar six-month contractual limitations period. Id.
While FedEx agrees that substantive rights provided under the FLSA cannot be contractually waived, it argues that the Wineman court was incorrect in concluding that procedural rights are no different. FedEx notes that the Wineman court relied on the Supreme Court's decision in Barrentine v. Arkansas-Best Freight Sys. Inc., 450 U.S. 728 (1981), which held that a plaintiff's FLSA claim was not barred by a prior arbitration agreement and unsuccessful arbitration. The Supreme Court, however, in 14 Penn Plaza LLC v. Pyett, 129 S.ct. 1456, 1468 (2009), recently limited the scope of the Barrentine rule to the unique facts in Barrentine and held that a plaintiff can contractually agree to an enforceable arbitration agreement. In light of the Court's decision in Penn Plaza, FedEx asserts that Wineman cannot be relied on as prohibiting contractual agreements to limit procedural rights under the FLSA and cites a variety of courts that have upheld contractual limitation provisions as to other federal statutes. See, e.g., Thurman v. DaimlerChrysler, Inc., 397 F.3d 352, 257-59 (6th Cir. 2004) (holding plaintiff's § 1981 claim time barred by a six-month contractual limitations period); Northlake Reg'l Med. Ctr. V. Waffle House Sys. Emp. Benefit Plan, 160 F.3d 1301, 1303-04 (11th Cir. 1998) (holding that the contractual limitations provision time barred plaintiff's ERISA claim); Badgett v. Federal Express Corp., 378 F. Supp. 2d 613, 626 (M.D.N.C. 2005) (upholding the six-month limitations clause and denying plaintiff's emotional distress, § 1981, and FMLA claims as untimely).
In light of the Supreme Court's ruling in Penn Plaza, the court agrees with FedEx that procedural rights of the FLSA can be abridged by contractual limitations and declines to follow Wineman. "It is well-established that statutes of limitations are procedural in nature," not substantive. Ray v. FedEx Corporate Servs., Inc., 668 F. Supp. 2d at 1068. The court also finds that FedEx's six-month contractual limitations provision is reasonable because Boaz had sufficient opportunity to learn of the alleged discrimination, investigate her claim, and file a complaint. Likewise, the court finds that the execution of the contractual limitations clause to be procedurally reasonable. Boaz read the Employment Agreement, signed the document attesting that she understood its terms, and did not question the limitations clause or object to it. Whether the contractual limitations period effectively time-bars Boaz's EPA claim, however, depends on when the six-month time period commences.
In any event, Wineman is not controlling in this district.
b. Impact of FedEx's Internal Grievance Procedures on the Six-Month Contractual Limitations Provision
Boaz argues that even if the court finds the six-month contractual time period is reasonable, it does not bar her FLSA claims because the limitations period should be tolled until FedEx's internal grievance process is completed. Boaz submits that the earliest date the six-month time period should commence is October 30, 2008, when she had her final meeting with FedEx regarding her third Open Door complaint. She also submits that the latest date the six-month time period should commence is November 6, 2008, when FedEx allegedly promised to have a report for Boaz concluding her third Open Door complaint. Because Boaz filed her complaint containing her EPA claim with the court on April 17, 2009, the six-month contractual limitations period would not bar Boaz's EPA claim if the court adopted Boaz's line of reasoning that the limitations period does not commence until October 30, 2008 or November 6, 2008.
In response, FedEx maintains that the internal grievance procedure does not toll the six-month limitations period and asserts that the six-month period commences no later than when the alleged discriminatory practice ceases. FedEx argues that, at the very latest, the alleged discriminatory practice ceased on June 30, 2008, the last time Boaz received a paycheck for allegedly performing Terrell's Grade 27 PMA duties, if not before then. If the court adopts FedEx's line of reasoning, Boaz's EPA claims would be time-barred because she waited over nine months to file a complaint with the court.
FedEx asserts that the date an allegedly discriminatory decision occurred related to Boaz's claim that she should have been paid as a grade 27 PMA was when she was offered and accepted a Grade 23 position, that is, May 18, 2005.
The question of whether an internal grievance procedure tolls the applicable statute of limitations has been addressed by the Supreme Court. See Electrical Workers v. Robbins Meyers, Inc., 429 U.S. 229 (1976). In Electrical Workers, the Supreme Court held that the existence and pendency of a grievance procedure does not toll the running of the limitations period. Id. The Court explained in a later opinion that an employer's grievance procedure is a remedy for prior employment practices to assure fairness and "should not obscure the principle that limitations periods normally commence when the employer's decision is made." Del. State Coll., 449 U.S. 250, 261 (1980). See also Chance v. Mahoning Cnty., Ohio Sheriff's Dep't, 105 Fed. Appx. 644, 647 (6th Cir. 2004) ("It is well settled in this circuit that union grievance procedures . . . do not toll the statute of limitations.").
In the present case, Boaz utilized two of FedEx's internal grievance procedures. In 2004, while employed with FedEx Express, Boaz filed a GFT Complaint challenging FedEx Express's determination that she did not meet the minimum qualifications for a Grade 25 position. The GFT was denied, the determination was upheld, and Boaz did not appeal. The determination during the GFT process that Boaz did not meet the minimum qualifications for Grade 25 position was tantamount to a determination that Boaz was not qualified for a Grade 27 position, which is two grade levels higher. When Boaz did not appeal, the determination became final.
Thus, as early as 2004, Boaz believed she was performing the same job duties that Terrell had previously performed and she knew that FedEx had determined that she was not entitled to be paid as a Grade 27 PMA or even a Grade 25. Nevertheless, Boaz continued to perform Terrell's duties until June 12, 2008, when she accepted a different position as a Quality Assurance System Analyst. She received her last paycheck for those duties on June 30, 2008.
While under the umbrella of FCIS, Boaz filed three Open Door complaints in which she complained that she was not being compensated for carrying the beeper and working off-hours from February 2004 through the time of filing her complaint. She received a timely written response to her first Open Door Complaint but not to the second and third ones. However, Boaz's second and third Open Door complaints were not proper under FCIS's Open Door policy. Even though there is no limit on the number of Open Door issues an employee may submit, under the policy, an employee may submit only one Open Door complaint on a single issue. It is not subject to appeal. In addition, the use of FCIS's Open Door policy to address concerns of sex discrimination is also not an appropriate use of the policy. According to FCIS's Human Resources policy, an employee complaining of sex discrimination should use FCIS's FAIR/EEO procedure. Boaz failed to do so. Therefore, there was no internal grievance concerning unequal pay because of gender which would toll the statute of limitations.
Moreover, while FedEx does "expect" its employees to use the appropriate internal grievance procedures to resolve employment related disputes, FedEx's procedures are not mandatory. Boaz cannot continually file complaints with FedEx over a period of four years using FedEx's internal grievance procedures inappropriately and reasonably expect the contractual limitations period to be tolled.
The pendency of Boaz's third Open Door complaint does not toll the six-month contractual limitations period. At the latest, the six-month limitations period started to run when Boaz received her last paycheck on June 30, 2008. Thus, Boaz's claim that FedEx violated the EPA, filed almost a year after FedEx's allegedly discriminatory practice ceased, is untimely and barred by the six-month contractual limitations provision.
FedEx's motion for summary judgment on Boaz's EPA claim under the FLSA is granted, and Boaz's summary judgment motion on this claim is denied.
2. The Overtime and Oncall/Recall Compensation Claim
Boaz also alleges that FedEx violated the FLSA by failing to properly pay her overtime for carrying a beeper from February 2004 to June 2007. (Corrected Third Am. Compl. III., ¶ 9). Boaz does not seek summary judgment on her claim of unpaid overtime and/or on call/recall time; however, FedEx seeks summary judgment in its favor on this claim on the ground that Boaz's FLSA claims are time-barred pursuant to the six-month contractual limitations period, and, alternatively, on the ground that Boaz cannot establish a claim for unpaid overtime because she was not eligible for overtime compensation under the FLSA. FedEx's first ground for summary judgment is determinative; therefore, the court will limit its discussion to whether Boaz's claim was timely filed.
Boaz seems to use the terms "overtime compensation" and "on call or recall compensation" interchangeably. Under the FLSA, exempt employees are not eligible for overtime compensation, and time spent on call or on recall may be considered as time worked for purposes of calculating overtime for non-exempt employees. 29 U.S.C. § 213(a)(1).
For the same reasons as articulated under Boaz's EPA claim, the court finds that the six-month limitations period is reasonable, applies to her overtime claim, and is not tolled by FedEx's internal grievance procedure. Whether FedEx is entitled to summary judgment on Boaz's claim for overtime compensation depends on when the six-month limitation period commences. FedEx argues that the six-month time period began to run on May 24, 2007, when Boaz first received notice that her job was ineligible for beeper pay from February 2004 to June 1, 2007. Boaz disagrees and argues that she did not get a full response to her three Open Door complaints concerning beeper pay and the time period does not commence until FedEx fully addressed her request for beeper pay.
On April 23, 2007, Boaz filed her first Open Door with FCIS, requesting that FedEx review its 3-44 Policy and compensate her for time that she claims to have been "on call" and also for time she claims to have been "recalled." Specifically, Boaz asserts she was required to carry a beeper twenty-four hours a day, seven days a week starting February 1, 2004. On May 24, 2007, FedEx responded to Boaz's Open Door by giving her the option to continue using a flexible schedule to compensate for any work required outside a normal work schedule or submit time to be paid for carrying a beeper, effective June 1, 2007, going forward. Unhappy with FedEx's response, Boaz filed a second Open Door complaint on July 13, 2007, addressed to different people, stating that she disagreed with FedEx's decision that her job was ineligible for beeper pay between February 2004 and June 1, 2007, and requested again that she receive on call and recall compensation during that time. Although Boaz admits FedEx awarded her beeper pay effective June 1, 2007, she now argues that FedEx failed to address the retroactive component of beeper pay from 2004 to 2007 and never responded to her second Open Door.
The court finds that the six-month limitations period on this FLSA claim began to run on May 24, 2007, when Boaz first learned that she was ineligible to receive beeper pay from February 2004 until June 1, 2007. Indeed, Boaz concedes in her second Open Door complaint that FedEx refused in its response to her first Open Door complaint to pay her beeper pay prior for the period of February 2004 to June 1, 2007. At that point, Boaz knew of FedEx's allegedly discriminatory decision and could have filed a complaint with the court instead of submitting a second Open Door. However, Boaz did not file a complaint until April 17, 2009, nearly 2 years after she was notified that she would not receive beeper pay for the period in question. In order for Boaz's claim to be timely under the six-month contractual limitation period, she would have had to file a complaint before November 24, 2007, which she failed to do. Accordingly, Boaz's claim that FedEx violated the FLSA by failing to properly pay her overtime is time-barred.
FedEx's motion for summary judgment on Boaz's overtime claim under the FLSA is granted.
3. The Classification and Record-Keeping Requirements Claim
In her final FLSA claim, Boaz states that FedEx failed to comply with the record-keeping requirements of the FLSA and worked her outside of her job description, which constitutes a status mis-classification under the FLSA. (Corrected Third Am. Compl. III., ¶ 22). Boaz does not seek summary judgment on this claim; however, FedEx seeks summary judgment on this FLSA claim on the same ground — the claim is time-barred pursuant to the six-month contractual limitations provision. For the same reasons stated under Boaz's EPA claim, the court finds that the six-month limitations period is reasonable, applies to this claim, and is not tolled by FedEx's internal grievance procedure. However, whether FedEx is entitled to summary judgment depends on when the six-month limitation period commences.
Boaz asserts that from February 1, 2004, until November 30, 2004, FedEx failed to keep accurate records of her hours and failed to pay her overtime of 11.5 hours. During this period, Boaz was a non-exempt Grade 7 employee, responsible for FedEx's WRO corporate nightly load and eligible for overtime pay. In order for Boaz to file a timely claim for FedEx's alleged failure to keep accurate records, Boaz should have filed within six months of November 30, 2004, when FedEx's alleged discriminatory practice ceased. Boaz did not file her complaint until April 17, 2009, over 4 years later. Accordingly, her claim that FedEx violated FLSA's record-keeping requirements is time-barred.
Boaz also argues that from February 1, 2004, until June 15, 2008, FedEx worked her outside her job classification and mis-classified her by pay and job code in violation of the FLSA. From February 1, 2004, to November 30, 2004, Boaz was a non-exempt employee. On December 1, 2004, Boaz was reclassified as an exempt employee. Although she was reclassified as an exempt employee, Boaz continued to support the WRO nightly load and carried a beeper until June 15, 2008. Boaz argues that this is evidence FedEx mis-classified her position by pay and job code and worked her outside her job classification. In order for Boaz to file a timely claim for this argument, she should have filed a complaint within six months of June 15, 2008, when FedEx's alleged discriminatory practice ceased. However, Boaz did not file a complaint until almost ten months later on April 17, 2009. Accordingly, Boaz's claim that FedEx mis-classified her position by pay and job code and worked her outside her job classification in violation of the FLSA is time-barred.
FedEx's motion for summary judgment on Boaz's third claim under the FLSA is granted.
C. Boaz's THRA Claim of Gender Discrimination
On June 10, 2009, Boaz amended her original complaint to add that FedEx violated the THRA by failing to pay her as a Grade 27 PMA when it had previously compensated a male employee, Jim Terrell, for doing substantially the same work. (Corrected Third Am. Compl. III., ¶ 10). On May 8, 2009, both parties filed cross motions for summary judgment on the THRA claim. FedEx argues (1) that Boaz's THRA claim is barred by the contractual limitations provision of her Employment Agreement; (2) to the extent her THRA claim is not contractually barred, it is barred by the applicable statute of limitations; and (3) even if Boaz's THRA claim is not barred by the applicable statute of limitations, Boaz cannot establish a prima facie claim under the THRA.
In general, the purpose of the THRA is to protect individuals from discrimination based on race, creed, color, religion, sex, age or national origin. See Tenn. Code Ann. § 4-21-101. A cause of action under the THRA must be filed within one year after the discriminatory practice ceases. See Tenn. Code Ann. § 4-21-311(d). The Tennessee Supreme Court recently ruled that discriminatory pay is a continuing violation under the THRA and concluded that a plaintiff may seek backpay for the duration of the discriminatory practice. Booker v. The Boeing Co., 188 S.W.3d 639, 649 (Tenn. 2006).
In the present case, Boaz asserts that FedEx paid her less than it had previously paid a male employee for duties she performed from early 2004 until June 15, 2008. She concedes that FedEx's failure to pay comparable wages ceased on June 15, 2008, and that the last time she received a paycheck for performing PMA duties was on June 30, 2008. FedEx argues that the six-month contractual limitations provision requires that Boaz file a complaint for a THRA violation before December 30, 2008; therefore, Boaz's THRA claim is time-barred. Boaz argues that her claim was timely under THRA's one year limitations period and that the six-month contractual limitations provision is unreasonable.
The facts underlying Boaz's THRA claim are identical to Boaz's EPA claim under the FLSA. Accordingly, the same analysis and reasoning from the court's ruling on Boaz's claim under the EPA apply to Boaz's THRA claim. As such, the court finds that the six-month contractual limitations period is reasonable, it is not tolled by FedEx's internal grievance process, and it began to run on June 30, 2008, when Boaz received her last paycheck for performing Terrell's duties. Boaz did not file her THRA claim until June 10, 2009; therefore, it is time-barred.
FedEx's motion for summary judgment on Boaz's THRA claim is granted, and Boaz's summary judgment motion on this claim is denied.
D. Boaz's Title VII Claims
On November 10, 2009, Boaz filed her second amended complaint asserting that FedEx violated Title VII by (1) discriminating against her because of her sex and (2) retaliating against her because she complained about gender discrimination. (Corrected Third Am. Compl. IV., ¶ 26). In response, FedEx argues that (1) Boaz cannot establish a prima facie case of discrimination or retaliation under Title VII and (2) even if Boaz could establish a prima facie case of discrimination, she cannot demonstrate that FedEx's legitimate, non-discriminatory reasons for its actions are pretextual.
1. Gender Discrimination
Boaz claims that FedEx discriminated against her in violation of Title VII by failing to pay her as a Grade 27 PMA when it had previously compensated a male employee, Jim Terrell, for doing substantially the same work. In response, FedEx argues that only allegations of discriminatory acts occurring after June 12, 2008, are timely under Title VII. FedEx also argues that Boaz cannot state a prima facie claim of Title VII discrimination because she cannot point to a similarly situated male employee who received more favorable treatment. Both parties have filed cross motions for summary judgment on this issue.
a. Timeliness of the Title VII Discrimination Claim
Under Title VII, a party wishing to file a charge of discrimination must file with the EEOC within 300 days following the alleged act of discrimination, if the party "initially instituted proceedings with a State or local agency." See 42 U.S.C. § 2000e-5(e)(1); El-Zabet v. Nissan N. Am., Inc., 211 Fed. Appx. 460, 463 (6th Cir. 2006). After receiving a right-to-sue letter from the EEOC, a party then has 90 days to file a private Title VII action in federal district court. See 42 U.S.C. § 2000e-5(f)(1).
In 2009, Congress amended Title VII by adding the Lilly Ledbetter Fair Pay Act (LLFPA). 42 U.S.C. § 2000e-5(e)(3)(A). The Act is retroactive to May 29 2007. The LLFPA provides that "an unlawful employment practice occurs, with respect to discrimination in compensation[,] . . . each time wages, benefits, or other compensation is paid." Id. The effect of the LLFPA is to allow a party to receive relief for similar unlawful employment practices up to two years preceding the filing of a charge, as long as a part of the parties' claim falls within the 300 day filing period. See 42 U.S.C. § 2000e-5(e)(3)(B).
Boaz filed her Charge of Discrimination with the EEOC on April 8, 2009. If the LLFPA does not apply, only alleged acts of discrimination occurring after June 12, 2008, are timely. However, if the LLFPA does apply, all similar unlawful acts of discrimination occurring after April 8, 2007, are timely. Boaz argues that the LLFPA applies to her disparate pay claim; however, FedEx argues that the LLFPA does not apply because Boaz's claim is in reality a "failure to promote" claim.
Disparate pay occurs when an employer pays different wages to employees of opposite sex for jobs that are substantially equal work. See Conti v. Universal Enter., Inc., 50 Fed. Appx. 690, 698 (6th Cir. 2002) (citing Henry v. Lennox Indus., Inc., 768 F.2d 746, 752 (6th Cir. 1985)). Here, Boaz claims that she was not paid equal compensation for performing the same duties as a male worker, Terrell. Specifically, Boaz stated in her Charge of Discrimination with the EEOC that, "I believe I was discriminated against, paid less than a male and demoted to positions with less potential for pay increases, bonuses (AIC) and promotions because of my sex. . . ." Failure to promote may have occurred when Boaz was denied a Grade 25 position in 2004 but Boaz's primary complaint is that she was performing similar duties as Terrell from January 2004 until June 2008 and was getting paid less. Boaz could not have been promoted to Terrell's Grade 27 PMA position because, according to FedEx, it did not exist after the I-Service reorganization. The court finds that Boaz's Title VII discrimination claim is a disparate pay claim. As such, it alleges a continuing violation of Title VII.
Boaz concedes that FedEx's alleged discriminatory conduct ended on June 30, 2008, when she received her last paycheck for performing Terrell's duties. Boaz filed her Charge of Discrimination on April 8, 2009, within 300 days of June 30, 2008, the last day she received allegedly disparate pay. Boaz subsequently filed her complaint asserting Title VII violations on November 10, 2009, within 90 days of receiving the EEOC's right-to-sue letter. Accordingly, Boaz's sex discrimination claim under Title VII is timely.
b. Prima Facie Requirements for a Gender Discrimination Claim
When there is no direct evidence of sex discrimination shown, Title VII claims are governed by the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and later modified by Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). To establish a prima facie case of sex discrimination, a plaintiff is required to show that: (1) she is a member of a protected group; (2) she was subjected to an adverse employment decision; (3) she was qualified for the position; and (4) similarly situated non-protected employees were treated more favorably. See Peltier v. United States, 388 F.3d 984, 987 (6th Cir. 2004). Once the plaintiff makes this showing, the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for its decision. See Wright v. Murray Guard, Inc., 455 F.3d 702, 706 (6th Cir. 2006).
In her attempt to establish a prima facie case of gender discrimination, Boaz asserts that Terrell, a non-protected male employee, was similarly situated and treated more favorably by FedEx. Specifically, Boaz maintains that she performed a position that required equal skill, responsibility, and effort that Terrell performed as a Grade 27 PMA, but was paid less. FedEx argues Terrell and Boaz were not similarly situated. Specifically, FedEx maintains that the quality and quantity of projects produced by Terrell as a Grade 27 PMA were very different from those performed by Boaz, who was only responsible for print vendor management.
Based on each party's statement of undisputed material facts submitted in support of the cross motions for partial and total summary judgment and the responses of the opposing party and for the purposes of these cross motions for summary judgment, the court finds that genuine issues of material facts exists as to whether Boaz and Terrell were similarly situated. Specifically, the following facts are disputed:
1. The nature and scope of Jim Terrell's job duties and responsibilities as a Grade 27 PMA;
2. The nature and scope of Boaz's job duties and responsibilities; and
3. The nature and scope of Margaret William's job duties and responsibilities as a Grade 27 PMA.
The evidence put forth by both parties present a sufficient disagreement, and the court will not weigh the evidence or make a credibility determination. As such, summary judgment is not proper for either party on this claim.
FedEx's motion for summary judgment on Boaz's Title VII discrimination claim is denied, and Boaz's motion for summary judgment on this claim is denied.
2. The Title VII Retaliation Claim
Boaz argues that FedEx retaliated against her in response to her complaints about its alleged discrimination by: (1) giving her a poor performance review in June of 2009; (2) "demoting" her to a Grade 22 on June 15, 2008; and (3) giving her the experience credit as a Grade 21 in April of 2005, even though she asserts she was performing as a Grade 25 and doing the work of a Grade 27. In opposition, FedEx argues that even if Boaz's allegations are true, they do not amount to materially adverse actions under Title VII. As a result, FedEx maintains that Boaz cannot establish a claim of retaliation and, thus, cannot survive summary judgment.
Title VII's anti-retaliation provision forbids an employer from discriminating against an employee because the employee opposed the employer's unlawful practice under Title VII. 42 U.S.C. § 2000e-3. In order to establish a prima facie claim of retaliation, the plaintiff must demonstrate that: (1) she acted in a manner protected by Title VII; (2) the defendant knew of this exercise of protected activity; (3) the defendant subsequently took action that a reasonable employee would have found to be materially adverse; and (4) the adverse action had a causal connection to the protected activity. See Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). In Burlington, the Supreme Court clarified that materially adverse actions were not those which are merely "trivial harms" but those which are likely to deter a reasonable employee from filing a charge of discrimination. Id.
In order to determine whether Boaz has demonstrated a prima facie case of retaliation, the court will look at each alleged discriminatory act of FedEx to see whether it constitutes a materially adverse action. First, Boaz asserts that FedEx retaliated against her by giving her a poor performance review of 2.3 out of 4.0 in June of 2009. Boaz has not sufficiently shown how her low performance review has significantly limited her income. Although she asserts that the effect of a 2.3 rating makes her ineligible for promotion, she has not shown that there were opportunities for promotion or that there were other jobs she was qualified for after her review. In 1999, the Sixth Circuit held that a mid-range performance evaluation was not the type of adverse action contemplated by Title VII. Prime v. Reno, 190 F.3d 765, 767 (6th Cir. 1999) ("If every low evaluation or other action by an employer that makes an employee unhappy or resentful were considered an adverse action, Title VII would be triggered by supervisor criticism or even facial expressions indicating displeasure.") Under Sixth Circuit authority, Boaz's poor performance review of 2.3 is not material enough to amount to an adverse action under Title VII.
Second, Boaz asserts that FedEx retaliated against her by "demoting" her to a Grade 22 on June 15, 2008. FedEx maintains that Boaz transferred jobs and was not demoted. FedEx argues that this action is not a material adverse action because Boaz did not receive a pay reduction. The court agrees. Changing grade levels without a change in wages or benefits is not material enough to amount to an adverse action under Title VII.
Third, Boaz asserts that FedEx retaliated against her by giving her an insufficient experience credit of a Grade 21 employee in April of 2005 although she was performing as a Grade 25 employee and doing the work of a Grade 27 employee. It is FedEx's policy to give exempt employees engaged in special assignments an experience credit. Boaz has not shown how being denied a sufficient experience credit is a material adverse employment action. Regardless, Boaz's claim of retaliation based on an insufficient experience credit given in April 2005 is time-barred.
Boaz has failed to show that FedEx took action that a reasonable employee would have found to be materially adverse. Accordingly, the court finds that Boaz has not demonstrated a prima facie case of retaliation. FedEx's motion for summary judgment on Boaz's retaliation claim is granted, and Boaz's motion for summary judgment on this claim is denied.
IV. CONCLUSION
Based on the reasons stated above, Boaz's motion for partial summary judgment is denied on all counts. FedEx's motion for summary judgment on the FLSA, THRA, and Title VII retaliation claims is granted, and its motion for summary judgment on the Title VII discrimination claim is denied.
IT IS SO ORDERED.