66. Miller retired in July 1980 and DuPont succeeded him as 2d Vice President-Corporate Loans. Wajda applied to succeed DuPont as leader of his direct placement team, an investment officer position. Wajda, for the reasons stated previously, lacked the ability to negotiate and manage direct placement transactions and was not offered the position.
67. The officer position was filled by Joseph E. Vardaro, who had theretofore been employed for six years by Monumental Capital Management, Inc. where he served as assistant vice president in charge of that firm's private placements. Vardaro held an MBA from New York University in finance and a BA from Villanova University in economics. Vardaro was far more qualified than Wajda for the position of assistant investment officer in charge of a direct placement team.
68. Shortly after Vardaro arrived, he assumed responsibility for training Wajda who was on his direct placement team. Vardaro soon found, as had Weymouth and DuPont before him, that Wajda had difficulty identifying salient points in prospective investments. For example, a borrowing company had broken a number of covenants in a loan agreement it had entered into with Penn Mutual. Vardaro and Wajda met with officials of that company to determine how to cure its default. At the meeting, Wajda focused on minor details, angering the borrowing company's personnel and thereby jeopardizing amicable resolution of the dispute.
69. Wajda continued to perceive discrimination at every turn while she worked for Vardaro. On one occasion, in a lobby in the presence of approximately ten people, she publicly accused Weymouth of discrimination. In addition to publicly commenting on discrimination, Wajda attempted to editorialize about her perceptions of discrimination on business reports that she and Vardaro had to fill out.
70. In early 1980 Wajda was made a senior investment analyst. This was simply an upgrading of her position to keep it competitive with others in the industry in similar positions with similar tenure, and did not involve a change in responsibility. Although this job classification was in use in other departments, Wajda was the first senior investment analyst in the Securities Department.
71. On a Monday morning in early November 1980, Vardaro and Wajda met to discuss Vardaro's evaluation of her performance for the period from January 1, 1980 to November 1, 1980. Wajda's overall rating on this evaluation (on a descending scale of outstanding, very good, fully competent, below average and unacceptable) was very good. (Exhibit P19). Wajda, however, vigorously objected to a number of comments Vardaro made in the evaluation. In particular, she was angered that Vardaro had rated her leadership ability as below average and that he wrote that Wajda needed "to guard against making negative comments about Penn Mutual, which affect department morale." (Id. at p. 5). Vardaro agreed to make a number of changes that Wajda suggested, including changing the above quoted language to "which could affect department morale." Wajda was not satisfied by this change, however, and refused to sign her evaluation as required by the company. Although Vardaro advised her that she could add whatever comments she deemed appropriate to the evaluation, Wajda refused to sign, asserting that if she signed the evaluation, the negative comments would be used against her in her court case.
72. When Wajda persisted in her refusal to sign the evaluation, Vardaro and Wajda went to Weymouth, who told Wajda that she was required by company policy to sign the evaluation. Wajda angrily refused.
73. Wajda, Weymouth and Vardaro went to Yoder and told him of the problem. Yoder reiterated that Wajda was obligated to sign the evaluation, but she still refused, repeating her claim that the evaluation would jeopardize her court case. Wajda was very upset during the meeting in Yoder's office, shouting, crying and banging on Yoder's desk. She accused Vardaro of being biased and out to get her and attacked Vardaro's integrity. The meeting in Yoder's office broke up without Wajda signing the evaluation.
74. Yoder brought the matter to the attention of John Tait, who had replaced Loesche as Financial Vice President earlier in the year. Yoder recommended to Tait that Wajda be terminated from the Securities Department. Tait took the matter under advisement.
75. Wajda was scheduled to go on a trip with Vardaro and DuPont later that day. In light of what had transpired earlier, DuPont, who considered Wajda's behavior that day as inconsistent with the team concept, informed Wajda that she could not go on the trip.
76. On the trip Vardaro informed DuPont that, in light of Wajda's accusations, he could no longer work with her.
77. Upon returning to Penn Mutual, DuPont recommended to Tait that Wajda be removed from direct placements, and Tait, who already had a similar recommendation from Yoder, concurred. On November 13, Tait told Wajda to go home for a few days. On November 24, 1980, Tait, Yoder, and Gwen Jones and Lester Talbot of the affirmative action office of the personnel department decided that, in light of what had transpired, Wajda could no longer continue to work in the small Securities Department. Tait informed Wajda of his decision and that she should go home while Talbot attempted to find a position for her elsewhere in the Company.
78. The decision to remove Wajda from the Securities Department was fully justified. Wajda, by continuously charging discrimination and refusing to accept constructive criticism, had alienated the department's personnel to the extent that no one would work with her. Her refusal to sign the evaluation and to put her objections in writing constituted insubordination and was in clear violation of company policy. I find that Wajda was not removed from the Securities Department on account of her sex and was not removed in retaliation for exercising her rights under Title VII.
79. During her tenure in the direct placement division, Wajda was not denied promotion on account of her sex. Her failure to achieve assistant investment officer status was because of her lack of qualification for that position. At no point in her tenure did Wajda show that she had the ability to analyze, structure, negotiate, and manage loans on her own, abilities which were essential to the position of assistant investment officer in direct placements.
80. During her tenure in direct placements, no adverse actions were taken against Wajda in retaliation for her exercising her rights to bring charges under Title VII. I find that those persons with whom she worked made a sincere effort to train Wajda. The difficulties Wajda had in learning in this area stemmed from her failure to live up to her agreement to further her education and her tendency to reject constructive criticism as motivated by discrimination.
81. In December 1980, Talbot informed Wajda that he was unable to find her a comparable job and gave Wajda the option of termination, early retirement or taking a lower paying job. Wajda did not wish to retire and said she would take whatever was available. Throughout December and into the spring of 1981, during which periods she continued to receive her salary, Wajda received the company job postings (Exhibit P29) from Talbot but did not respond to them. Although some of these postings, such as janitorial positions, were clearly unrealistic job opportunities, I find that there were other opportunities, such as clerical positions, which Wajda might have explored as an alternative until a comparable position became available.
82. On April 17, 1981, the company informed Wajda that since no job could be found for her, she was to be terminated effective July 31, 1981.
83. Wajda was terminated from Penn Mutual because there were no positions comparable to her position as senior security analyst. Despite her claims to the contrary, Wajda showed her unwillingness to accept a lower paying position by failing to respond to job opportunities offered to her. I find that Wajda was not terminated from Penn Mutual on account of her sex nor was she terminated in retaliation for exercising her rights under Title VII.
84. At the time of Wajda's termination the direct placement division of the Securities Department consisted of DuPont, Weymouth, Vardaro and Barbara Harris. Harris had been hired as an investment analyst trainee, replacing J. Gary Brown on February 26, 1979. She was promoted to investment analyst in the spring of 1980. Harris worked with Weymouth's team after Weymouth and Wajda were unable to get along.
Wajda was replaced in direct placements by Sarah C. Lange, a newly hired investment analyst.
85. The statistical proof offered in this action was not at all impressive. The statistics offered by plaintiff do not establish that Penn Mutual engaged in a pattern and practice of discrimination in promotional or salary opportunities during 1972-1980. While plaintiff has shown that there was a far greater number of male officers in Penn Mutual than female officers during this period (Exhibit P-22), plaintiff's statistics do not address the relative probabilities for promotion between men and women. If anything, the evidence indicates that the number of females promoted in this time period was approximately that which could be expected if women and men had the same probability of being promoted. (Exhibits D19 and D20). Further, between 1971 and 1980, women's salaries increased at a greater rate than did men's (Exhibit D-21), and men and women had the same chance of reaching exempt level salaries. (Exhibit D-22).
In this Title VII action, plaintiff contends that Penn Mutual discriminated against her on account of sex during the forty years that she was employed by the company, and that Penn Mutual retaliated against her for exercising her rights under Title VII. Although much of plaintiff's evidence at trial related to events and acts occurring between 1940 and 1972, it is clear that in order to establish liability plaintiff had the burden to prove that Penn Mutual discriminated against her during the applicable limitations period. Croker v. The Boeing Co., 662 F.2d 975, 989-90 (3d Cir. 1981) (en banc); Jewitt v. International Telephone and Telegraph Corporation, 653 F.2d 89, 90 (3d Cir. 1981). Because Pennsylvania is a deferral state requiring submission of claims to state agencies prior to the filing of a charge with EEOC, plaintiff was required to file her charges of sex discrimination with EEOC within 300 days of the practice or practices which serve as the basis of her charge. 42 U.S.C. § 2000e-5(e); Mohasco v. Silver, 447 U.S. 807, 814 n.16, 100 S. Ct. 2486, 2490 n.16, 65 L. Ed. 2d 532 (1980); See Davis v. Calgon, 627 F.2d 674, 676 (3d Cir. 1980). Here, although plaintiff presented her charge to EEOC on September 11, 1973, EEOC was required by law to defer to the state agency for 60 days, and, therefore, as a matter of law the charge was not filed until November 10, 1973. Mohasco v. Silver, supra. Accordingly, in order to establish liability in the instant case, Wajda had to prove that she was a victim of purposeful discrimination at some point after January 14, 1973, which is 300 days prior to the filing of her EEOC charge.
Croker v. The Boeing Co., supra; Jewitt v. International Telephone and Telegraph Corporation, supra. Absent proof of Title VII violations after January 14, 1973, discriminatory events occurring prior to that date are simply not actionable. Id. at 93. As the Supreme Court stated in United Airlines v. Evans, 431 U.S. 553, 558, 97 S. Ct. 1885, 1889, 52 L. Ed. 2d 571 (1977)
A discriminatory act which is not made the basis for a timely charge is the legal equivalent of a discriminatory act which occurred before the statute was passed. It may constitute relevant background evidence in a proceeding in which the status of a current practice is at issue, but separately considered, it is merely an unfortunate event in history which has no present legal consequences.
Wajda contended that Penn Mutual discriminated against her after January 14, 1973 (or applying plaintiff's suggested date, November 15, 1972) by denying her the chance to transfer to direct placements, by failing to promote her to an officer position and by retaliating against her for filing a charge of discrimination with EEOC. Wajda's claim is one of disparate treatment, and accordingly, plaintiff had the ultimate burden of proving by a preponderance of the evidence that Penn Mutual purposefully discriminated against her. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089, 1093, 67 L. Ed. 2d 207 (1981); Croker v. The Boeing Co., supra, at 990-91.
In Burdine the Supreme Court directed that the most expeditious way to determine whether a plaintiff has satisfied her ultimate burden of proving purposeful discrimination is by applying the series of intermediate burdens first set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). 450 U.S. at 252-253, 101 S. Ct. at 1093. As restated in Burdine :
First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant "to articulate some legitimate, nondiscrimatory reason for the employee's rejection." Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.
450 U.S. at 252-253, 101 S. Ct. at 1093, quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668 (1973).
Here, as part of her prima facie case, plaintiff had to establish by a preponderance of the evidence that she was qualified for the promotions and job opportunities that she claims were denied her. McDonnell Douglas Corp. v. Green, supra, at 802, 93 S. Ct. at 1824; Jewitt v. International Telephone and Telegraph, supra, 653 F.2d at 91. As is evident from the foregoing findings of fact, plaintiff was not qualified for promotion to assistant investment officer while she was in either the common stocks or direct placement divisions. In reaching this conclusion, I rejected plaintiff's contention that promotions to assistant investment officer in those areas were simply a function of length of tenure and that no specific qualifications were required. Instead, I found that in both common stocks and direct placements, the ability, whether manifested by formal education or practical experience, to analyze and decide on potential investments was essential to promotion to assistant investment officer. In common stocks, an assistant investment officer had to be able to select stocks and manage a portfolio, while in direct placements, an assistant investment officer had to be able to analyze, negotiate, structure and manage loan transactions. Every person who attained the assistant investment officer position in these divisions during the applicable period manifested these abilities. The evidence established that Wajda lacked the practical ability or formal education to perform the analytical functions of an assistant investment officer and, accordingly, she has failed to establish a prima facie case that she was denied promotional opportunities.
Insofar as job opportunities are concerned, Wajda is not entitled to relief on the ground that she was denied the common stock portfolio management positions filled by Hoffman and Lindberg. First, as already noted, Wajda was not qualified for these officer positions and she has not proven a prima facie case. Second, even assuming that she was minimally qualified, Hoffman and Lindberg were far more qualified than she for the positions. Whether plaintiff has to prove that she was more qualified than those selected as part of her prima facie case, see Jewitt v. International Telephone and Telegraph Corp., supra, 653 F.2d at 91 (1981), or whether filling the position with a better qualified person is merely an articulated legitimate business reason for the decision, see Holder v. Old Ben Coal Co., 618 F.2d 1198, 1203, 1204 (7th Cir. 1980) (Swygert, J., dissenting), is academic.
Wajda did not persuade me that Penn Mutual's articulated reason for hiring Lindberg and Hoffman, i.e., that they were more qualified, was a pretext for discrimination. Accordingly, plaintiff is not entitled to relief under Title VII for denial of job opportunities in common stocks. See Page v. Bolger, 645 F.2d 227, 230 (4th Cir. 1981) (en banc).
Plaintiff also contends that she was denied job opportunities in direct placements. For the reasons stated in the preceding discussion concerning the Lindberg and Hoffman positions, Penn Mutual did not violate Title VII by denying plaintiff the positions ultimately filled by DuPont, Weymouth and Vardaro. Wajda was not qualified for these positions, which involved analyzing, structuring, negotiating, and managing loan transactions, but even assuming arguendo that she was minimally qualified, Weymouth, Vardaro and DuPont were far more qualified than she.
Wajda also contended that she was discriminated against by not being allowed to transfer into direct placements until 1977, and by the fact that when she was allowed to transfer, it was as a security analyst and not as an officer. Although plaintiff communicated her desire to return to direct placements as early as 1972, the only opening, other than DuPont's and Weymouth's, in that area prior to 1977 occurred in 1975 when J. Gary Brown was hired as a college trainee. Plaintiff did not ask to be considered for this position since the salary level was significantly lower than her own. However, even if I were to accept plaintiff's argument that she should have been considered for the position and allowed to transfer at her then salary, Brown, who had recently obtained a BA degree in finance and accounting, was more qualified for the trainee position than Wajda.
Further, Penn Mutual did not discriminate against Wajda by offering her a job in direct placements as a security analyst. Wajda entered the department as a trainee although she was paid as an analyst, and the fact that she was allowed to do so despite her lack of academic qualifications was an accommodation to her by the company and an exception to its policy of only hiring college graduates as trainees. She did not have the qualifications for an officer's position in direct placements and, indeed, it is highly questionable if she had the qualifications to even be a security analyst in 1977. Accordingly, the offering of the job to her as a security analyst and not as an officer was not a violation of Title VII.
Finally, plaintiff contends that, in violation of 42 U.S.C. § 2000e-3(a),
she was fired from the Securities Department and from Penn Mutual in retaliation for having filed the charge of employment discrimination with EEOC. Plaintiff satisfies her burden of establishing a prima facie claim of retaliation by showing that she engaged in protected activity and that she was subjected to adverse action which can be causally linked to the exercise of the protected activity. Womack v. Munson, 619 F.2d 1292, 1296 (8th Cir. 1980); Hochstacht v. Worcester Foundation, Etc., 425 F. Supp. 318, 324 (D.Mass.1976). As with standard claims of sex discrimination, plaintiff's proof of her prima facie case simply places the burden on defendant to articulate a legitimate business reason for its action. The ultimate burden of establishing that the reason is pretextual rests with plaintiff.
There is no dispute that plaintiff engaged in protected activity under Title VII and she suffered adverse employment action by being terminated from her position. Her termination, however, occurred more than seven years after she filed her claim with EEOC and more than four years after she filed the instant suit. The only evidence of retaliation in this case is Wajda's testimony that Weymouth threatened her, but I did not credit that testimony. Despite the attenuated causal relationship between Wajda's termination and her protected activity, I will assume the existence of a prima facie case of retaliation. Notwithstanding this assumption, plaintiff did not prove that she was discharged in retaliation for exercising her rights under Title VII. Penn Mutual's articulated reason for Wajda's discharge, i.e., that her contentious personality which culminated in the blow up with Vardaro made her continued presence in the department intolerable, is certainly a legitimate justification for her discharge from the Securities Department. See Nance v. Union Carbide Corporation, 540 F.2d 718, 727 (4th Cir.), cert. denied, 431 U.S. 952, 97 S. Ct. 2671, 53 L. Ed. 2d 268 (1976); Gonzalez v. Bolger, 486 F. Supp. 595, 601 (D.D.C.1980), aff'd mem. 656 F.2d 899, 28 Fair Empl. Prac. Cas. (BNA) 1752 (BNA) (D.C.Cir.1981).
The reasons given by Penn Mutual are not pretextual, as Wajda's behavior was indeed intolerable. By the time she was terminated, she had alienated everyone in the Securities Department by constantly misconstruing constructive criticism as discrimination and by impugning the integrity of her superiors and the Company as a whole. Efficient operation of the Securities Department required a good relationship among the relatively small number who worked there. Wajda, by impugning the integrity of others in the Department, disrupted it and simply made it impossible for her to continue to work there.
Further, Wajda's reaction to the evaluation which led to the final blow up was irrational and her refusal to sign the evaluation was outright insubordination. She had received a very good evaluation from Vardaro, nevertheless obsession with her lawsuit forced her into a confrontation which ultimately led to her dismissal. Whatever merit there may have been to Wajda's objections to Vardaro's comments (and I believe there was none), she could have preserved them by simply noting them in writing on the form, a practice she had followed in the past. Instead, she persisted in telling her supervisor how to do his job, and refused to allow him to honestly appraise her. When she refused to follow company policy and, in the process, made accusations of discrimination against her superiors who had correctly advised her as to the proper way to register her objections, her termination from the Securities Department was justified.
I am persuaded that, rather than taking retaliatory action, Penn Mutual did all it could to accommodate Wajda's career goals after she filed her EEOC complaint.
Wajda was given job opportunities for which she lacked the education or experience. Penn Mutual was willing to make the effort to train her to compensate for her lack of qualification, but Wajda failed to cooperate. She did not further her education and she was unreceptive to the good faith training efforts made by others. I am convinced, therefore, that Penn Mutual's articulated reason for terminating Wajda was not pretextual, and Wajda has not established that Penn Mutual retaliated against her in violation of Title VII by terminating her from the Securities Department.
Finally, Wajda has not established that her termination from all employment with Penn Mutual was in retaliation for exercising her rights under Title VII. When no comparable job was available, Wajda indicated that she would take a lower paying one, but she failed to respond to the several job opportunities supplied to her. Considering that her leave of absence was occasioned by her insubordination, which alone would have justified her termination from the Company, Penn Mutual has no obligation to pay her forever. Accordingly, I conclude that Penn Mutual's articulated reason for terminating her from the company, i.e., that no job could be found for her, was not pretextual and plaintiff is not entitled to relief on any grounds stemming from her termination from the Company.
CONCLUSIONS OF LAW
1. Subject matter jurisdiction of plaintiff's claim of sex discrimination is pursuant to 42 U.S.C. § 2000e-5(f)(3). Although plaintiff did not file the claims of retaliation with EEOC, this court has ancillary jurisdiction over such claims. Gupta v. East Texas State University, 654 F.2d 411 (5th Cir. 1981).
2. Plaintiff has failed to establish that defendant purposefully discriminated against her on account of sex in violation of Title VII in the period of time after January 14, 1973.
3. Plaintiff has failed to establish by a preponderance of the evidence that she was denied promotional opportunities on account of her sex in violation of Title VII after January 14, 1973.
4. Plaintiff has failed to establish by a preponderance of the evidence that she was denied job opportunities after January 14, 1973 on account of her sex in violation of Title VII.
5. Plaintiff has failed to establish by a preponderance of the evidence that she was terminated from employment or that any adverse action was taken against her in retaliation for her engaging in protected activity under Title VII.
6. Plaintiff has not established that Penn Mutual engaged in a pattern or practice of discriminating against women in job opportunities or promotions after January 14, 1973. Accordingly, plaintiff is not entitled to rely on the effects of such purported pattern or practice to justify relief in the instant case. Jewitt v. International Telephone and Telegraph Corporation, 653 F.2d 89, 92 (3d Cir. 1981).
7. Plaintiff is not entitled to relief under Title VII, 42 U.S.C. § 2000e, et seq., and defendant is entitled to judgment in its favor.