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July 22, 2004.

NADINE McCLAM-BROWN, et al., Plaintiffs,

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 products.

  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 Dep. 213.

  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. ¶ 7.

  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. ¶ 12.

  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. ¶ 11.

  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 dep. 253.

  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 ¶ 18.

  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. 293-294.

  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 [Dabundo]."

  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 products.

  2. Ronald Clarke ("Clarke") began working at Boeing in August 1985 as an artist/illustrator. Deposition of Ronald Clarke ("Clarke Dep.") ...

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