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Margaret J. Morales v. the Procter & Gamble Manufacturing Company

May 15, 2013


The opinion of the court was delivered by: Julie A. Robinson United States District Judge


Plaintiff Margaret J. Morales brings this action alleging discrimination on the basis of sex, race and national origin, and retaliation under Title VII of the Civil Rights Act of 1964 ("Title VII").*fn1 This matter comes before the Court on defendant The Procter & Gamble Manufacturing Company's ("P&G") Motion for Rule 56 Summary Judgment (Doc. 37). The motion is fully briefed and the Court is prepared to rule. For the reasons stated below, the Court grants in part and denies in part defendant's motion.

I. Summary Judgment Standard

Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to judgment as a matter of law."*fn2 In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party.*fn3 "There is no genuine issue of material fact unless the evidence, construed in the light most favorable to the nonmoving party, is such that a reasonable jury could return a verdict for the nonmoving party."*fn4 A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim."*fn5 An issue of fact is "genuine" if "'the evidence is such that a reasonable jury could return a verdict for the non-moving party.'"*fn6

The moving party initially must show the absence of a genuine issue of material fact and entitlement to judgment as a matter of law.*fn7 In attempting to meet this standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim.*fn8

Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial."*fn9 The nonmoving party may not simply rest upon her pleadings to satisfy her burden.*fn10 Rather, the nonmoving party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the non-movant."*fn11 To accomplish this, the facts "must be identified by reference to an affidavit, a deposition transcript, or a specific exhibit incorporated therein."*fn12 Rule 56(c)(4) provides that opposing affidavits must be made on personal knowledge and shall set forth such facts as would be admissible in evidence.*fn13 The non-moving party cannot avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation.*fn14

Finally, summary judgment is not a "disfavored procedural shortcut"; on the contrary, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action."*fn15 In responding to a motion for summary judgment, "a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial."*fn16

II. Uncontroverted Facts

The following facts are either uncontroverted, stipulated to, or taken in the light most favorable to plaintiff. Plaintiff, who is of Hispanic race/national origin, began her employment with P&G at its manufacturing facility in Kansas City, Kansas in 1989. P&G employs approximately 315 people at the Kansas City plant, which is known as the Kansas City Soap Plant ("the Plant") because it primarily manufactures liquid dishwashing detergent. The Plant has two primary departments: the Chemicals Department (which manufactures the soap) and the Converting Department (which processes and packages the soap for sale to retailers). The Chemicals Department currently consists of three sub-areas: AGS, Amines, and Surfactants. AGS, a specialty chemical that is used to make bar soap, is a small portion of the production operation at the Plant. Historically, the Plant produced a thick liquid substance known as "tertiary amines" out of raw materials; before December of 2009, the Plant made most of the tertiary amines it needed. After producing the tertiary amines, the Plant processed those into "amine oxide," a substance which gives the soap liquid its sudsing properties. P&G used most of the amine oxide in manufacturing at the Plant, but it sent some to other P&G plants and other soap producers. Creating tertiary amines is a complex five- or six-step process, much more complicated than processing tertiary amines into amine oxide.

In late 2009, P&G decided to stop producing tertiary amines at the Plant, a decision which plays a central role in this case. Thereafter, the Plant has imported all of its tertiary amines. These tertiary amines are still processed into amine oxide, and the resulting liquid is pumped to the Surfactants area. Surfactants give soap liquid its cleansing properties. Finally, the liquid leaves the Surfactants area and goes to the Converting Department.

When plaintiff began working at the Plant in 1989, she had an entry-level position on the manufacturing line that made Zest soap. In 1990 or 1991, she began working in the warehouse. From 1993 until the end of 2009, plaintiff was a member of the Amines Department (later renamed Chemicals Department) on the north side of the complex, a part of the Plant dominated by male workers. When plaintiff took an amines pumper operator position in March of 1993, she became the first woman to work in a production position in the Plant's Amines Department. She faced hostility and resentment from male employees; most of the other female employees who worked in the Amines Department would either quit or bid on more traditional jobs in the Plant such as logistics, but plaintiff remained in her position. In 2000, when the Amines Department was about to award without bid the Maintenance Coordinator position to a male with less seniority than plaintiff, plaintiff discussed the issue with the Human Resources manager. The position was then posted, and plaintiff successfully bid on it. After holding the position for approximately eight months, plaintiff found that the males in the department made it difficult for her to do her job and in 2001 she took a more traditional position in logistics, still within the Amines Department. In 2004, her logistics position was contracted out, so plaintiff took a "role job" in the storeroom until late 2006/early 2007 when she returned to her operations position in what was now the Chemicals Department. P&G had realigned its structure such that all Chemicals Department employees were now classified as "pumpers" or "operators." Plaintiff was a pumper; as such, her primary duties included paperwork and technical responsibilities, along with physically demanding work that requires going out into the elements, climbing on top of and crawling under railcars, tankers, and ISO-tainers, opening and shutting valves, and hooking up two- to four-inch diameter hoses to pump product in or out of the Plant.

Jeff Olson was the manager of the Chemicals Department from July 1, 2008 until August 1, 2010.*fn17 During 2009-10, John Collins was the Chemicals & Surfactants Operations Manager. On April 22, 2009, Olson completed plaintiff's "Work & Development Plan" in which he wrote that plaintiff's current position was Pumper/Operator Trainee and that by December she was to be trained as a KC Chemical Operator, BOHO (boiler house), and Amine Oxide Processor.

Tertiary Amine Production Changes

In 2009, due to increased production costs, P&G was faced with a decision whether to continue to "make" tertiary amines at the Plant or "buy" tertiary amines from outside suppliers. If the company made a "make" decision, its plan was to suspend and rebuild the process for making tertiary amines with less expensive raw materials. If the company made a "buy" decision, the rebuilding process would be unnecessary; instead, P&G would import and pump tertiary amines from railcars or trucks into the facility, which would leave the Plant with only the process of turning the tertiary amines into amine oxide. This decision was to be made by corporate headquarters in Cincinnati, but both Olson and Collins were hoping for a "make" decision so that the Plant could continue producing tertiary amines. Olson and Collins told the Chemicals Department employees that if the company instead made a "buy" decision, which would permanently halt amines production, staffing reductions would be based strictly on seniority.

On September 25, 2009, Olson sent an email asking for volunteers to help him determine the "principles" to be used in deciding who would be moved from the Chemicals Department for approximately six to nine months, "assuming we get the Make decision." He asked that interested employees get back with him by October 9. Plaintiff replied on October 1, stating: "Jeff, I have several concerns about the sub-team you are forming. I would like to request a short meeting with you. . . . Thank you in advance for your time." On October 8, Olson announced via email the members of his sub-team. He had not responded to plaintiff's email, nor had plaintiff told him that she wished to be a part of his sub-team, and her name did not appear on the list of members. Olson met with the sub-team on October 13 and 14 and discussed with them the "skills matrix" he had designed for deciding which employees would be temporarily displaced. On October 15, Olson sent an email to Plant manager Jack Geisinger, Human Resources manager Mia Wise, and others, which included the following statement: "I am not naming names at this point, but I will do so after we get the make decision."*fn18 Some things were already clear with respect to the matrix, however: employees who held "special skills" and those who worked in nonproduction administrative and support positions (including five male members of Olson's sub-team) were not considered for temporary displacement; Olson filled in the matrix and he alone decided what to give employees credit for and what they did not get credit for; Olson did not look at employee work histories, personnel files, or department files as he filled in the matrix, but instead based his decision on what he knew about each employee; the matrix did not give plaintiff credit for leadership roles she held in the Plant; the matrix did not give plaintiff credit for her seven years as an amines operator-pumper, even though retraining her on that position would have taken only two to three weeks and Olson had the idea to push back that training; the matrix did not give plaintiff credit for being a pumping system owner, which she had been from 2007 until July or August of 2009, because she was not currently in that role; the matrix did not give plaintiff credit for being qualified to perform Specialty Pumping; the matrix did not give credit to another Mexican-American employee for being a qualified amine oxide operator; the matrix did give credit to Jay Simmons, a white male employee with relatively low seniority, for being an amine oxide operator even though he was listed as a "pumper" as of July and he was only 75 to 80% complete with his operator training as of December 1; and giving such credit to Simmons was inconsistent with Olson's position that the matrix did not count skills for which an employee was in training.

Olson also prepared a second version of the matrix, although he could not explain why, which re-ordered employees according to seniority. In the first version, both plaintiff and the only other woman who worked in non-traditional production jobs were scheduled for displacement, but on the seniority-based version plaintiff was ranked fourth in the department and would not have been displaced. Olson testified that the fact that the first version of the matrix would eliminate both women in the Chemicals Department did not cross his mind and did not trouble him. Wise wrote on her copy of Olson's October 15 email the words "discrimination" and "gender/race, age, pay."

On December 1, 2009, P&G's corporate headquarters made the decision that the Plant would no longer make tertiary amines. Olson and Collins were disappointed and understood that the "buy" decision meant that the Plant would permanently discontinue making tertiary amines. Wise knew that the decision meant that employees were going to be removed from the Chemicals Department on a permanent basis. At 1:58 p.m. on that same day, Collins sent an email announcing the decision. Two weeks later, the tertiary amines operations process at the Plant was shut down, leaving only the less-complicated process of turning imported tertiary amines into amine oxide. That meant a 70-80% reduction in the operators' workload.*fn19 However, the pumping process never stopped; indeed, the amount of pumping work at the Plant increased and the pumping function in the Chemicals Department became more important than ever.

One hour after his email announcing the "buy" decision, Olson sent a second email which announced a list of and timetable for nine employees to be displaced. Despite the earlier statements that displacements would be made strictly on a seniority basis in the event of a "buy" decision, the list included plaintiff and Joe Rivera, the other Mexican-American pumper, to be displaced on January 4, 2010, and Hope Eldridge, the only other woman, to be displaced on March 1, 2010.*fn20

Olson stated in his email that these moves were temporary in nature and would last six to nine months. He later admitted that it was clear from the outset that a "buy" decision would mean a permanent reduction, and he had no explanation why it took two months beyond the decision for him and Collins to realize this fact. The union obviously realized it, as the union president gave Wise a document on December 2 which included the following statement: "Due to the decision to buy our Tertiary Amines, there will now be some employees going to Converting on a more permanent basis. The work force reduction caused by the loss of business is well covered in our contract, making identifying the individuals to be displaced simplistic." He then ...

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