The opinion of the court was delivered by: MARVIN KATZ, Senior District Judge
AND NOW, this ____ day of July, 2004, upon consideration of
Defendant's Motion for Summary Judgment Against Nadine
McClam-Brown, the response thereto and after a hearing, it is
hereby ORDERED that said Motion is GRANTED based on the
following facts as to which there is no genuine dispute:
1. The Boeing Company designs and manufactures aerospace
2. Nadine McClam-Brown has worked as an engineer for Boeing
since 1978. Deposition of Nadine McClam-Brown ("McClam-Brown
Dep.) 19, 37, 8-40; Work History.
3. McClam-Brown began work at Boeing's Seattle facility and in
1993 voluntarily transferred to the Ridley Park, Pennsylvania
facility to work in the Composites Group of Materials
Engineering. McClam-Brown dep. 37-38, 43-44, 60, 62, 66-67.
4. McClam-Brown received ethics training that included a
discussion of unlawful employment discrimination. McClam-Brown
Dep. 42-43. 5. Boeing posted its EEO policy and regularly circulated memos
regarding discrimination and harassment. See Deposition of
Constance Perry-Rose ("Perry-Rose Dep.") ¶ 404-406.
6. Boeing also maintained an Equal Employment Opportunity
("EEO") office for employees to go to if they felt as if they had
been treated unfairly. McClam-Brown Dep. 90, 97.
7. McClam-Brown never filed a complaint with Boeing's EEO
office. Id. at 97.
8. McClam-Brown worked in the Composites group of the Materials
Engineering Department on non-metal composites and electronics.
McClam-Brown Dep. at 66.
9. Bob McIntyre was plaintiff's first manager in Ridley Park.
McClam-Brown Dep. 107. McClam-Brown got along well with McIntyre
and he treated her fairly. Id. at 109.
10. McIntyre was replaced by Patrick Dolan as McClam-Brown's
manager. McClam-Brown Dep. 108-109; Ex. D, Dolan Dec. ¶ 1. Dolan
reported to Roy Cunningham, the second level manager. Ex. D,
Dolan Dec. ¶ 2.
11. McClam-Brown has no complaints about this. McClam-Brown
12. Other engineers in Materials Engineering included Ken
Dabundo and Kristin Harris. Id. at 112-113.
13. In 1993, Dabundo was the "lead" for the group working on
the Chinook aircraft and had been working at Boeing in the
Composites area his entire career. McClam-Brown dep. 119;
Declaration of Ken Dabundo ("Dabundo Dec.") ¶¶ 1-2.
14. In some groups at Boeing, there is a so-called "lead." The
"lead" is not a formal position, but rather a role an informal
way that coworkers refer to an employee who has excelled as a
leader and who helps to coordinate the group's efforts. Ex. E,
Dabundo Dec. ¶ 3; Dolan Dec. ¶ 4. The lead, however, is not a Boeing manager and there is no change
in pay or paycode associated with being a lead. Id.;
McClam-Brown Dep. 52, 55. It is completely within the discretion
of the manager whether or not to have a lead. Ex. D, Dolan Dec. ¶
4; Ex. E, Dabundo Dec. ¶ 3.
15. After Dolan became the new manager, plaintiff worked on the
V-22 with a small group of her coworkers, including Kristin
Harris. McClam-Brown Dep. 116, 118; Ex. D, Dolan Dec. ¶ 2.
16. There was no lead in the V-22 Composites group under Dolan.
McClam-Brown Dep. 120; Ex. D, Dolan Dec. ¶ 5. He expressed that
he wanted all of the engineers to act like leaders, to be
proactive about getting work, to facilitate the project, and to
assume more responsibility. McClam-Brown Dep. 121, 187; Ex. D,
Dolan Dec. ¶ 5.
17. Dolan regularly told all of the employees regardless in the
group that he wanted V-22 Composites group to assume
responsibility for themselves and become more proactive about
getting their work. McClam-Brown Dep. 236-238, 330; Ex. D, Dolan
Dec. ¶ 5.
18. McClam-Brown disagreed with Dolan's management decisions
about how the group would be best served. McClam-Brown Dep. 121.
19. The employees in the V-22 Composites group including
McClam-Brown did not get along and did not work well as a team.
McClam-Brown Dep. 122-123; Ex. D, Dolan Dec. ¶ 6. The group often
bickered. Ex. D, Dolan Dec. ¶ 6; Ex. E, Dabundo Dec. ¶ 4.
20. The lack of teamwork in McClam-Brown's group was a serious
problem. Dolan Dec. ¶ 6. Plaintiff attended a meeting with
Cunningham and the group's employees, during which Cunningham
told them that the bickering had to stop or there would be
consequences. Id. 21. Dolan warned McClam-Brown and the rest of the group that
they were developing a bad reputation and that their lack of
teamwork was going to reduce or eliminate their raises.
McClam-Brown Dep. 188; Ex. D, Dolan Dec. ¶ 6.
22. While she worked in Seattle it was McClam-Brown's practice
to keep her Boeing managers informed about what she was working
on, she did not continue the practice with Dolan or any other
manager at the Ridley Park facility. McClam-Brown Dep. 153; Ex.
D, Dolan Dec. ¶ 7.
23. Dolan frequently asked McClam-Brown for information about
what she was doing, but rarely, if ever, got a response. Ex. D,
Dolan Dec. ¶ 7.
24. McClam-Brown rarely, if ever, even sent her manager
electronic mail about her work. McClam-Brown Dep. 153.
25. The lack of communication between Dolan and McClam-Brown
was a problem because it made it more difficult for Dolan to
manage the group. Ex. D, Dolan Dec. ¶ 7.
26. McClam-Brown understood that the lack of communication
among the group members had to change and during her evaluations,
she freely acknowledged that she needed to improve her own role
in those communications. McClam-Brown Dep. 321; Ex. D, Dolan Dec.
27. Many employees in Composites worked very long hours, often
hundreds of hours of overtime per year. Id. Mr. Dabundo and Ms.
Harris were exemplary performers. Id. McClam-Brown did not work
many overtime hours was told that she needed to increase her
output and take on more of a leadership role. Mc-Clam Brown Dep.
167, 183-184, 186-187; Ex. D, Dolan Dec. ¶ 8.
28. While the group was busy, McClam-Brown pursued a real
estate career outside of Boeing. McClam-Brown Dep. 19-20, 29-30,
34. 29. Boeing had a Pay-for-Performance policy. Ex. D, Dolan Dec.
¶ 10; Ex. E, Dabundo dec. ¶ 10. The policy rewards employees who
demonstrate not only technical excellence, but also enthusiasm
and teamwork. Id. Boeing looks for employees who demonstrate a
"can do" attitude. Id.
30. Managers rank employees within groups for the purpose of
determining their salary raises based on the pay-for-performance
philosophy including its emphasis on teamwork. McClam-Brown Dep.
134-136. The ranking is then combined with the available budget
and a salary planning computer program determines the appropriate
raise. McClam-Brown Dep. 142; Ex. D, Dolan Dec. ¶ 10; Ex. E.
Dabundo Dec. ¶ 10.
31. The pay-for-performance system is designed to emphasize the
total salary and not the annual increase in order to compensate
employees appropriately who did similar jobs. Id.
32. One goal of the Pay-for-Performance policy was to limit
large disparities in pay between people doing similar jobs which
can be caused simply by being a long-term employee who has gotten
a raise every year. Id.
33. Throughout her career, McClam-Brown often received raises
and her managers often gave her larger raises because of her
technical skills. Ex. B, Work History; Ex. D, Dolan Dec. ¶ 11.
34. In 1994, the entire V-22 group received less than average
pay increases because of the serious interpersonal problems and
lack of teamwork. Ex. D, Dolan Dec. ¶ 11; McClam-Brown Dep.
144-146. Only one person received a larger than average raise:
Kristin Harris. Ex. D, Dolan Dec. ¶ 11. AT the time, Ms. Harris
had been coordinating the group's efforts and had been proactive
in seeking work and communicating with Both Dolan and with her
coworkers. McClam-Brown Dep. 411; Ex. D, Dolan Dec. ¶ 11. She had also worked very hard on
achieving the group's goals. Id. Ms. Harris was also toward the
lower end of the pay scale. Ex. D, Dolan Dec. ¶ 11.
35. McClam-Brown had more seniority than Harris and, therefore,
was at the higher end of the pay scale. She earned about $18,000
more than Harris for the same or less work. Ex. D, Dolan Dec. ¶
36. McClam-Brown did not regularly communicate with Dolan, and
managers had sometimes complained about her negative attitude.
Ex. D, Dolan Dec. ¶¶ 7, 9.
37. Based on these facts, the salary planning computer program
in 1994 recommended a smaller increase; however, Dolan felt that
her technical skills deserved more recognition and decided to
overrule the system and give her a 4% raise. Ex. D, Dolan Dec. ¶
38. Dolan and Cunningham explained to McClam-Brown that in
order to improve her performance she needed to communicate in
person with Dolan more regularly and provide detailed written
reports to both of them and to work harder. McClam-Brown Dep.
215-216, 420; Ex. D, Dolan Dec. ¶ 13.
39. Dolan told McClam-Brown that, as he warned would happen,
the entire team was penalized for their poor teamwork and this
was reflected in the 1994 raises. Ex. D, Dolan Dec. ¶ 13.
40. Dolan explained the Pay-for-Performance policy to
McClam-Brown. McClam-Brown Dep. 148.
41. Although Dolan agreed to keep his office open an extra hour
every day for all employees to come and speak with him about any
issue, McClam-Brown did not increase her discussions with Dolan.
McClam-Brown Dep. 215-216, 219; Ex. D, Dolan Dec. ¶ 13. 42. McClam-Brown did not give her managers frequent detailed
written reportsabout her work to keep them informed. McClam-Brown
Dep. 215-216; ex. D, Dolan Dec. ¶ 13.
43. McClam-Brown was a direct charge employee. McClam-Brown
44. Dolan informed all of the employees including McClam-Brown
that they needed to charge their time correctly. Ex. D, Dolan
Dec. ¶ 14. It was Dolan's job as manager to ensure that all of
the employees that he supervised correctly charged their time.
Id.; McClam-Brown Dep. 252-253.
45. If they were not working on Boeing business, employees
should not charge their time to a Boeing project. Ex. D, Dolan
Dec. ¶ 14. Rather, they were required to charge personal business
or PERBUS." Id. This rule was particularly important for
employees who like McClam-Brown were "direct charge" employees.
McClam-Brown dep. 253; Ex. D, Dolan Dec. ¶ 14.
46. As a direct charge employee, the time that McClam-Brown
recorded working was directly charge to Boeing's customers,
including the United States government. McClam-Brown dep. 253.
47. Billing for work that was not done wreaked havoc on Boeing
schedules and budgets. Ex. D, Dolan Dec. ¶ 14.
48. If a direct charge employee billed time to the project that
she had not actually worked, she was stealing from the United
States government. McClam-brown Dep. 253-254.
49. In September 1995 in the middle of the workday, Dolan was
driving out of the parking lot at Boeing to go to another part of
the plant. Ex. D, Dolan Dec. ¶ 16. The car directly in front of
him was driven by McClam-Brown. Id. But, instead of going
across the street, Dolan saw McClam-Brown turn and leave the
Boeing plant. Id. 50. A few days later when Dolan reviewed McClam-Brown's
timecard for that day, he noticed that she was charging for the
time that she was away from Boeing and that she had not worked on
Boeing business. Id. Dolan confronted her about the
irregularity and asked her to change her timecard to reflect her
actual hours. Id. at ¶ 16; McClam-Brown Dep. 249-252.
51. When first confronted, McClam-Brown claimed that she was
taking a late lunch. Ex. D, Dolan Dec. ¶ 16. Dolan reminded her
that they had eaten together that day at a farewell lunch for
another employee. Id. McClam-Brown then changed her story and
claimed that the had tone to the bank. Id. She then admitted
that she should have recorded her time differently. Id. Dolan
told her to change the timecard to reflect the time that she had
spent on personal business (`PERBUS"). Id.
52. McClam-Brown understood that mischarging time was a
criminal offense. McClam-Brown Dep 254. She admitted that she
made a mistake, changed her timecard and Dolan signed it. Id.
at 250-252; Ex. D, Dolan Dec. ¶ 16. Dolan reminded her that it
was very important to accurately record her time and that she
must not do this again. McClam-Brown Dep. 250-254; Ex. D, Dolan
Dec. ¶ 16.
53. Approximately three weeks later in October 1995, Dolan
again saw McClam-Brown get into her car and leave the area in the
middle of the workday. Ex. D, Dolan Dec. ¶ 17. A few days later
when he reviewed her timecard for the day, he again discovered
that she had not charged any personal time as required. Id.
54. Dolan again confronted McClam-Brown about mischarging her
time. Id. McClam Brown said that she had a meeting in another
part of the plant and was on her way there when Dolan saw her.
Id. Dolan listened to her explanation and then the meeting
ended. Id. Dolan then contacted a manager in the area where McClam-Brown said she had
her meeting. Id. The manager denied that McClam-Brown had been
to his area at anytime during the day in questions. Id.
55. McClam-Brown's story appeared to be false and it was not
the first time that Dolan had caught her lying about mischarging
her time. Ex. D, Dolan Dec. ¶¶ 16-18.
56. McClam-Brown was then reported to Boeing Security. Id. at
57. The Security Department began its investigation of
McClam-Brown's time charging in October 1995. Id.
58. The Security Department observed McClam-Brown's arrival and
departure from the plant and compared it to the timecards that
she submitted. Declaration of Dominic Marinelli ("Marinelli
Dec.") ¶ 17.
59. Security discovered that there were more than nine days in
November 1995 on which they believed that McClam-Brown had
mischarged her time. Ex. G, Marinelli Dec. ¶ 17 (Security
Report). Ths did not include the October incident that had lead
Dolan to report McClam-Brown. Id.
60. The last problem day that Security observed was November
14, 1995. Id.
61. On November 14, 1995 a coworker told McClam-Brown that
Security was observing her. McClam-Brown Dep. 287, 289.
62. On November 21, 1995, two members of the Security
department met with McClam-Brown to discuss their investigation.
McClam-Brown Dep. 262. 63. McClam-Brown was given an opportunity to explain her
absences and the misstatements on her timecard. Id.
64. McClam-Brown admitted that she had mischarged her time on
at least one day. McClam-Brown Dep. 245-246, 265; November 21,
1995 Statement of Nadine McClam-Brown ("1995 Statement"). If
Security had not caught her, McClam-Brown would not have changed
her timecard. McClam-Brown Dep. 266.
65. Security sent its report to Boeing's Disciplinary Review
Board ("DRB"). The DRB chairman was Dominic Marinelli, a human
resources manager who has since been laid off by Boeing. Ex. G,
Marinelli Dec. ¶¶ 1, 17.
66. In December 1995, McClam-Brown met with the DRB to review
again the Security report and offer any additional explanation
that she wanted to share. McClam-Brown dep. 294.
67. The DRB listened to her explanation, Dolan's testimony
about his own personal observations, and reviewed the Security
Report. Ex. G, Marinelli Dec. ¶ 17.
68. After considering this evidence, the DRB decided that only
six days of the nine days on which Security detected an
irregularity were an appropriate basis for discipline. Ex. G,
Marinelli Dec. ¶ 17 (Security Report); Corrective Action Memo
dated January 2, 1996.
69. The DRB suspended McClam-Brown for two weeks from January
5, 1996 until January 18, 1996. Ex. I, Corrective Action Memo;
Ex. G, Marinelli Dec. ¶ 17.
70. After the Security Department had begun its investigation,
McClam-Brown filed a charge with the EEOC alleging that she was a
victim of race discrimination. McClam-Brown Dep. 114-115; EEOC
Charge of Discrimination dated November 6, 1995. McClam-Brown
filed the Charge on November 6, 1995. Id. This was the first time that she had
ever complained to any government agency that she believed that
she was the victim of discrimination. Id. at 97.
71. The earliest date on which she alleges that any
discriminatory action was taken against her was December 28,
1994, the date her 1994 raise (to be implemented in 1995) was
discussed. Id. at 136.
72. McClam-Brown did not tell Dolan, Cunningham or anyone in
Boeing HR or the Boeing EEO office that she had filed her
November 6, 1995 charge. Id. at 293.
73. The EEOC did not serve McClam-Brown's Charge on Boeing
until December 1995, after the Security Department's
investigation was complete. McClam-Brown Dep. 292; Ex. J,
November 6, 1995 EEOC Charge.
74. None of McClam-Brown's managers or Boeing's EEO or HR
offices were aware of her EEOC charge until December 14, 1995
when she told the DRB about the charge. McClam-Brown dep.
75. In early 1996, after Dolan's transfer to another position,
Cunningham appointed Ken Dabundo as the acting manager until
Boeing could conduct a formal selection process. McClam-Brown
Dep. 111, 344, 347; Ex. E, Dabundo Dec. ¶ 5.
76. After Dolan's transfer, Boeing had to select a replacement
to be manager of the Composites Group. Declaration of Thomas
Caramanico ("Caramanico dec.") ¶ 3. Boeing invited interested
employees to apply for the manager's position through the first
level management selection process ("FLMSP"). McClam-Brown Dep.
110; Ex. K, Caramanico Dec. ¶ 3.
77. The FLMSP consists of several written exercises, interviews
and objective tests. Ex. K, Caramanico Dec. ¶ 2; Ex. E, Dabundo
Dec. ¶ 6. 78. A group of managers including Roy Cunningham and Thomas
Caramanico were responsible for selecting the successful
candidate. Ex. K, Caramanico Dec. ¶¶ 3-5.
79. The managers selected Ken Dabundo as the best candidate and
the new manager based on his qualifications, experience and the
fact Cunningham was familiar with Dabundo, who was already doing
the job quite well. McClam-brown Dep. 110, 334, 379; Ex. K,
Caramanico Dec. ¶¶ 4, 5.
80. Dabundo had done a good job as both lead for many years and
as acting manager for about a year. Ex. K, Caramanico Dec. ¶ 5;
ex. D, Dolan Dec. ¶ 20.
81. Dabundo always kept Cunningham and Dolan informed about his
activities and the group's status and the managers knew his work
well. McClam-Brown Dep. 379; Ex. E. Dabundo Dec. ¶ 2.; D, Dolan
Dec. ¶ 20.
82. Dabundo never had any disciplinary problems. Ex. D, Dolan
Dec. ¶ 20; Ex. E, Dabundo Dec. ¶ 1.
83. Dabundo had repeatedly demonstrated that he was willing to
work as long as necessary to get the job done. He worked hard.
Ex. D, Dolan Dec. ¶ 20.
84. Dabundo had an advanced degree that McClam-Brown lacked and
had been working the group all of his career and nearly ten years
longer than McClam-Brown and was very familiar with it. Ex. E,
Dabundo Dec. ¶ 1; ex. K, Caramanico Dec. ¶ 5.
85. Like Dolan, Dabundo did not name a lead for McClam-Brown's
area. McClam-Brown Dep. 343; Ex. E, Dabundo Dec. ¶ 8. The group
had worked well for months without someone in that role while he
was acting supervisor and there was no reason for him to name a
lead after he was promoted to supervisor. Id. 86. McClam-Brown announced to Cunningham that she "[did] not
plan nor should he expect [her] to prove [her]self to Ken
87. Cunningham again advised McClam-Brown that she should try
to improve her communications with him and her managers and that
Dabundo was selected because Cunningham knew his qualifications
better and that he had been doing a good job. Id.
88. McClam-Brown never did anything to improve her
communications with Cunningham. McClam-Brown Dep. 380-381.
89. Dabundo told McClam-Brown that she needed to keep him
informed about her work through e-mail and detailed activity
reports. McClam-Brown Dep. 417-418, 420; Ex. E, Dabundo Dec. ¶ 9.
Activity reports include information about significant work
projects and allow managers to better understand the group's
workload and to manage them more effectively. McClam-Brown Dep.
417-418; Ex. D, Dolan Dec. ¶ 7; Ex. E, Dabundo Dec. ¶ 9.
90. McClam-Brown never contributed to the activity reports to
give Dabundo any information about her work. Id.; Ex. E,
Dabundo Dec. ¶ 9.
91. McClam-Brown did not feel a need to obey her managers or
take their suggestions. McClam-Brown Dep. 419.
92. Dolan, Dabundo and Cunningham advised McClam-Brown to be
proactive and take the initiative but nothing changed. Ex. D,
Dolan Dec. ¶ 5; Ex. E, Dabundo Dec. ¶ 8.
93. Dabundo suggested that she use training videos available at
Boeing. McClam-Brown Dep. 421. McClam-Brown had no interest in
additional training. Id.
94. Plaintiff has not come forth with evidence of race
discrimination or retaliation. 95. Plaintiff offers no explanation for the contradiction
between her sworn testimony on deposition and the belated
declaration. Martin v. Merrell Dow Phar. Inc., 851 F.2d 703,
706 (3d Cir. 1988).
96. Plaintiff has not produced any evidence which either casts
sufficient doubt on the defendant's legitimate non-discriminatory
reasons for taking any adverse employment actions against her or
which would allow a fact-finder to infer that discrimination was
more likely than not a determining factor. Fuentes v. Perskie,
32 F.3d 759, 764 (3d Cir. 1994). JUDGMENT
AND NOW, this day of July, 2004, judgment is entered in
FAVOR of defendant and AGAINST plaintiff Nadine McClam-Brown. ORDER
AND NOW, this ____ day of July, 2004, upon consideration of
Defendant's Motion for Summary Judgment Against Ronald Clarke,
the response thereto and after a hearing, it is hereby ORDERED
that said Motion is GRANTED based on the following facts as to
which there is no genuine dispute:
1. The Boeing Company designs and manufactures aerospace
2. Ronald Clarke ("Clarke") began working at Boeing in August
1985 as an artist/illustrator. Deposition of Ronald Clarke
("Clarke Dep.") ...