The opinion of the court was delivered by: Thomas W. Phillips United States District Judge
This is an action alleging race discrimination in employment and retaliation brought pursuant to Title VII, 42 U.S.C. § 2000e, et seq., and 42 U.S.C. § 1981 by two current salaried security officers employed by defendant Wackenhut Services, Inc. - Oak Ridge (Wackenhut). They also bring employment discrimination claims against their former employer, Lockheed Martin Energy Systems, Inc. (Lockheed Martin), which was Wackenhut's predecessor in providing security services for the Department of Energy at its nuclear facilities in Oak Ridge, Tennessee. Currently pending are motions for summary judgment of both defendants [Court Files #7, #9, #11 regarding plaintiff James Clark and Court Files
#11, #13, #15 regarding plaintiff Paul Moore]. For the reasons that follow, those motions will be granted and this action dismissed.
This case involves the Y-12 Plant in Oak Ridge, Tennessee. Effective January 10, 2000, the Department of Energy (DOE) selected Wackenhut to replace Lockheed Martin as the security and related support services contractor for four DOE facilities in Oak Ridge. These four facilities house classified materials pertaining to national security, secret scientific research, and the development of nuclear weapons. The Y-12 Plant maintains the nation's stockpile of weapons-grade uranium. Improper access to any of these Oak Ridge facilities threatens national security, could benefit foreign governments or terrorist groups, and jeopardizes the safety of the nation's military and civilian populations. Thus, the security of the Y-12 Plant is vital to national security.
The work performed by security guards at Y-12, Security Police Officers (SPOs) and Security Officers (SOs) as they are officially called, is subject to extensive DOE regulations that apply to Protective Force personnel at government-owned facilities like Y-12. See 10 CFR Part 1046. These regulations require SPOs to meet certain physical fitness and other requirements, at specified intervals, to maintain their status. DOE regulation 10 CFR § 1046.14 expressly requires all protective force personnel to have a "current access authorization for the highest level of classified matter to which they potentially have access." Wackenhut requires its SOs and SPOs to obtain and maintain a "Q"-Clearance as a condition of their employment.
At Lockheed Martin, employment was subject to the company's Equal Employment Opportunity/Affirmative Action (EEO/AA) policy. The policy prohibits discrimination based on race, religion, color, sex, national origin, and age. The policy covered recruitment in employment, promotion, demotion, transfer, layoff and termination, and other working conditions including maintenance of a work environment free of physical, psychological, and verbal harassment on the basis of age, sex, ancestry, color, disability, national origin, race/ethnicity, religion/creed, or veteran status. An Employee Concern Response Program (ECRP) was also promulgated in the Lockheed Martin employee handbook. The ECRP encouraged employees to report concerns about EEO/AA matters to their direct manager or the next appropriate level of management. Concerns could be reported orally or in writing. Other avenues for reporting concerns included the bargaining unit, Safety and Health representatives, the Y-12 Safety Work Action Team, and the I Care - We Care Program.
II. The Defendants' Promotion Policies
Before addressing the plaintiffs' claims with regard to alleged failures to promote, it is helpful to review the process that Lockheed Martin used throughout the 1990s in promoting employees to the position of Captain, Major, Sector Commander, and Site (sometimes called Shift) Commander in the Protective Services Organization at Y-12 and the policies that were used by Wackenhut after it took control.
Under Lockheed Martin, the first step in the promotion process was the issuance of a staffing requisition (an authorization to fill a vacant position) and the development of a job description. The job vacancy would then be posted and advertised for a specific period, usually 10 days, during which interested employees could submit applications. Lockheed Martin claims that it was committed to the principle of diversity. It therefore required that the applicant pool be diverse. If the initial applicant pool was not diverse, the job could either be re-posted or the Division Director could "go out and encourage females and minorities to compete for the job." Once the applicant pool was established, the applicants were screened to make sure each of them met the requirements of the job. An applicant could be disqualified if he/she did not meet the job requirements or if the applicant had active discipline in effect and had reached a certain level in the attendance program.
Next there was a separate interview of each qualified applicant. Lockheed Martin used what is called a structured interview process. Each applicant was interviewed by two supervisors from the Protective Services Organization, and the interviewers all had training in the interview process. Under the structured process, the interviewers interviewed each applicant, using the same set of questions, which were geared to the requirements of the job being filled. The interviewers scored the applicants' response to each question. When the interview was over, the interviewers would discuss the respective scores and then come to a consensus as to what the applicant's score would be. After all applicants had been interviewed and scored, the applicants would then be rank-ordered according to their respective interview scores.
The next step in Lockheed Martin's promotion process involved the Promotion Review Board, which was comprised of all of the chiefs of all Oak Ridge sites and various other Protective Service Organization's employees. The Board, which existed from 1994 until 2000, was provided with the rank order scores from the interviews and other pertinent information regarding the applicants. The Board held a separate meeting with respect to each job. The interviewers attended the Board's meeting to answer questions about their evaluations and their scoring of the applicants. The function of the Board was to make sure that the promotion processes had been conducted in accordance with company procedure and to make a recommendation to the Hiring Manager about which applicant should be awarded the job. The decision regarding the award of the job was made by the Hiring Manager and the Protective Services Organization Division Director.
In the vast majority of cases, the Promotion Review Board recommended that the vacant position be awarded to the applicant who received the highest interview score. And in the vast majority of cases, that was the applicant to whom the position was awarded. If, however, the interview scores were very close as between a black and white applicant, or a female and male applicant, and there was an under-utilization of minorities or females in the position being filled, the Hiring Manager and Division Director would award the position to a minority or female, as the case may have been, and thus use race or gender as a plus-factor in addressing under-utilization.
When in the year 2000 DOE awarded Wackenhut the contract to provide the security services, one of the conditions was that Wackenhut offer employment to the uniform guards who had been employed by Lockheed Martin. At that time, Wackenhut had no process in place for reviewing promotions, but approximately 17 vacant positions needed to be filled by January 10, 2000. In this interim period, the process worked as follows: Steven Gibbs, who was to become Director of Wackenhut Pro Forces, and Gary Brandon, who was to become Wackenhut's Manager of Pro Forces at Y-12, "put a lot of time and effort" in reviewing the eligible candidates so as to be sure the employees they recommended were the most qualified for the positions to be filled. Having worked with the Pro Force employees at Lockheed Martin for 10 years, Gibbs and Brandon were familiar with their strengths and job performance records. Wackenhut contends that the process was competitive and, as Gibbs put it, he gave everyone a fair shake, as he had been instructed to do. After completing this process, Gibbs made his final recommendation to then Wackenhut General Manager, Walt Ferguson, who made the final decision.
The end result was that 17 Lockheed Martin employees were promoted to fill the vacant positions at Wackenhut between October 1999 and February 21, 2001. Five of the promotions were awarded to African-Americans, one of whom was Paul Moore, a guard plaintiff, and one of whom was an African-American female; five promotions were awarded to white females; and seven promotions were awarded to white males. In May 2000, Wackenhut adopted a promotion/filling vacancies policy similar to that had been in place under Lockheed Martin, and since then all promotions/vacancies have allegedly been handled in accordance with that policy. Wackenhut contends that as it settled into its role, it adopted and refined its policies for the routine filling of non-bargaining unit jobs. For a time, Wackenhut retained most of the features of Lockheed Martin's promotions process. The first step was the issuance of a staffing requisition (an authorization to fill a vacant position) and the development of a job description. The job vacancy (including the requirements of the job) would then be posted or advertised for a specified period, first 10 and later 14 days, during which interested employees could submit applications. The applications would include a form as well as a candidate's resume.
Like Lockheed Martin, Wackenhut required that applicant pools be diverse; if the initial applicant pool was not diverse, the job would be re-posted. Once the applicant pool was established, the applicants were screened to make sure each one met the requirements of the job. An applicant could be disqualified if he/she did not meet the job requirements or if the applicant had active discipline in effect or had reached a certain level in the attendance program.
Next there was a separate interview for each qualified applicant. Wackenhut continued using the structured interview process. Each applicant was interviewed by two supervisors from the Protective Services Organization, with one being the "Hiring Manager" who would supervise the successful candidate, and a representative from Wackenhut's Human Resources Department, typically Recruiting and Staffing Specialist Barbara Bright Ward. All interviewers had received training in the interview process, and Wackenhut contends that it has continued to provide such training.
Again, under the structured process, the interviewers interviewed each applicant, using the same set of questions, which were geared to the requirements of the job being filled. The interviewers noted the applicants' responses to each question. When the interview ended, the interviewers would discuss their respective notes and then reach a consensus as to what the applicants' scores should be. Wackenhut contends that it expects its interviewers to focus on the responses given, and to omit consideration of the candidates' work history to the extent it is known. After all of the applicants had been interviewed and scored, the applicants would then be rank-ordered according to their respective scores.
Wackenhut did not adopt Lockheed Martin's Promotion or Review Board as part of its promotion process. Instead, the Hiring Manager would report to the Director of Protective Forces, Steve Gibbs, and would almost always recommend that the vacant position be awarded to the applicant who received the highest score. The hiring manager and Gibbs might, however, at that point discuss or factor into their thinking their personal knowledge of the candidates' work histories.
In the vast majority of cases, Wackenhut awarded the position to the applicant with the highest interview score. If, however, the interview scores were very close, as between a black and white applicant, or a female and male applicant, and there was an under-utilization of minorities or females in the position being filled, Gibbs would confer with Wackenhut Human Resources. Wackenhut could then award the position to a minority or female, as the case may be, and thus use race or gender as a plus-factor in addressing under-utilization.
Wackenhut contends that essentially the transition from Lockheed Martin's process to its own was seamless, as Wackenhut deleted only the Promotion Board element from what Lockheed Martin had done. Later, Wackenhut devised new interview questions intended to invigorate the process for both the candidates and the interviewers who had become familiar over time with the Lockheed Martin era questions. Further, Wackenhut developed a "matrix" or spreadsheet that would tally candidates interview scores, as well as points given if candidates had a required or desired qualification. Wackenhut contends that thus far, this "matrix" has tracked the interview scores such that other points for required or desired qualifications have not changed the rank order arising from interview scores; the highest interview score has also yielded the highest overall score. For the most part, however, Wackenhut's process and Lockheed Martin's process are similar.
III. The Defendants' Methods of Determining Pay Rates
Salary increases at Lockheed Martin were initially determined by the Compensation Department, a central office. Increases were determined by the Compensation Department on the basis of three factors: (1) the funds available for increases; (2) the employees' performance evaluations; and (3) the position of the employee within the salary rate range for the position held. The Compensation Department would inform the employees and management of its determination. Management had the discretion to change the increase slightly based on specific performance factors or leave it as made by the Compensation Department.
Lockheed Martin gave annual performance evaluations to salaried employees, using seven categories of ratings. From highest to lowest, they were: Distinguished (DS); Consistently Exceeds (CX); Consistently Meets (CM); Needs Improvement (NI); Unacceptable (UA); Progressing Satisfactorily (PR), given during the first six months to new hires or employees on a new assignment; and EA to employees who cannot be rated because of absences.
Under Lockheed Martin's compensation program, several different factors impacted an employee's earnings within a certain job title. Among these were job knowledge, skill level, performance and time-in-grade, as is related to rate range and percentage of mid-point. In the case of two people with equal time in a job, but one performing at a higher level, the one at the higher performance level would, customarily, receive higher merit increases, and thus, higher pay. If in the case of two people with similar performance, but one having more years of service in the job, the person with the greater service time would be moved further along in the rate range toward mid-point. As a person approached mid-point in the rate range, the individual might, in fact, have received a smaller merit increase than someone who had a lower performance rating but was further away from the midpoint.
The concept of the mid-point in the compensation was explained as follows:
Each salaried position was given a level in which there was a minimum of 80% of center and a maximum of 120% of center. To illustrate the point, assume a salary range from $80 on the low end and $120 on the high end. And, so where you fit in that range would depend on a number of things, performance appraisals and those kinds of things. ... If you were at that grade, you ... couldn't go below that level and you wouldn't go below that [level]. The mid-point in this illustration would be $100.
Clements' Dep. at 501-02.
Every Lockheed Martin employee received an annual pay increase. The amount of that increase varied depending in large part on the employee's annual performance review ratings. Other subjective factors could affect an employee's pay increase including the quality of peer relationships, an employee's critical skills that he or she contributed to the company, and long-term performance (as opposed to that year's performance in particular).
The pay system for employee performance review was called the Development Planning and Performance Review (DPPR). An employee's immediate supervisor performed the review on an annual basis. Each employee was assigned an overall rating, which are set out above. Lockheed Martin limited the number of people who could achieve the highest ratings of DS and CX to between 35% and 42% of the workforce, and therefore limited the number of people who could achieve the higher raises.
Protective Services Chief Steve Gibbs was one of the officials who determined which employees were bumped out of an initial premium rating. He described the process he used to do so: For all salaried employees, Gibbs obtained ranked lists of the employees for each position (e.g., Lieutenant or Captain) that he would then meld together to create one complete rank-ordered list, taking the first ranked Lieutenant from each list and ranking them, then the second ranked Lieutenant and ranking them behind the first-ranked Lieutenants, and continuing down the list until he filled up the quota for the premium rankings. Thus, employees who earned a CX, but whose forced rankings by Gibbs under the methodology brought them below the quota, had their rankings forced into the CM category. Gibbs also exercised ...