A. Dolores Williams v. Urs Corp.

*Judge Chertoff approved this opinion prior to resigning from the court, and the
opinion was submitted for filing while Judge Chertoff was still a member of the court.
However, this opinion is being filed after Judge Chertoff's resignation became effective.
**Honorable Ronald L. Buckwalter, United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_________________________
No: 04-1055
_________________________
A. DOLORES WILLIAMS,
Appellant
v.
URS CORP., ET AL.,
Appellees
Appeal from the United States District Court
for the Western District of Pennsylvania
(Civ. No. 02-cv-01458)
District Judge: Hon. Terrence F. McVerry
Argued: November 16, 2004
Before: McKEE and CHERTOFF*, Circuit Judges, and
BUCKWALTER, District Judge**
(Opinion filed: February 16, 2005)

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_________________________
MICHAEL E. HOOVER (Argued)
Diefenderfer Hoover Boyle & Wood
1420 Grant Building
Pittsburgh, PA 15219
Attorneys for Appellant
JOHN J. MYERS (Argued)
CHRISTINE M. GASS
Eckert Seamans Cherin & Mellott, LLC
Pittsburgh, PA 15219
Attorneys for Appellees
_________________________
OPINION
_________________________
McKEE, Circuit Judge:
This appeal arises from a grant of summary judgment by the district court in favor
of the Defendants-Appellees in an employment discrimination action in which A. Dolores
Williams sued her employers for wage discrimination and unlawful retaliation, in
violation of 42 U.S.C. § 2000 (“Title VII”). Summary judgement is only appropriate if,
“the pleadings, depositions, answers to interrogatories, and admissions on file, together
with [any] affidavits, . . . show that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law," when the evidence is
viewed in the light most favorable to the nonmoving party. Fed.R.Civ.P. 56(c). As this
record raises genuine issues of material fact, we will reverse.

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1 Given the breadth of the salary ranges assigned to the various pay grades, and the
extent to which the salary ranges overlap, it is certainly conceivable, if not inevitable, that
some employees with a higher pay grade could receive a salary that is lower than some
employees with a lower pay grade. However, for reasons we shall explain, this is not
fatal to W illiams’s claim of bias at the summary judgment level.
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I. BACKGROUND
Williams is a Black woman who was first employed by O’Brien and Kreitzberg,
Inc. (“O’Brien”) as a Project Administrator of the Light Rail Transit Project on October
15, 1997 at an hourly salary of $14.00. This is equivalent to a yearly salary of $29,120.
When she was initially hired, and at all times thereafter, O’Brien maintained pay grades
or levels with corresponding salary ranges for various positions. App. 83-85. Higher pay
grades had commensurately higher salary ranges. For example, pay grade of eight had a
minimum salary of $32,736 and a maximum salary of $53,360 while pay grade six had a
minimum salary is $25,729 and a maximum salary of $41,166. App. 573.1
On December 26, 1997, William Lafayette, who was then Senior Vice President
and Regional Manager of O’Brien’s Pittsburgh Office and Mid-Atlantic Region, informed
Williams that, effective January 5, 1998, her position was being changed to Manager of
Administration with an annual salary of $40,000 per year. App. 393. 396-7, 585-6. That
position was assigned a pay grade nine with an annual minimum salary of $37, 116.
However, Williams claims that she was thereafter asked to perform the duties of a
Manager of Administration and Personnel. That position had a pay grade of eleven and
the minimum annual salary was therefore $48,174. Williams’s belief that she was being

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paid for a grade nine job although she was actually given a grade eleven position was
corroborated by the fact that the business cards she was issued and her subsequent
performance reviews listed her as having a position that would have had a pay grade
eleven rather than a pay grade nine.
On May 28, 1999, Williams sent a memo to Lafayette in which she referred to
“disparity in [pay] rates ,” and noted the importance of “complying with EEOC.” App.
621. On March 16, 2000, not having received any reply, she sent another memo to
Lafayette, and Martin Wood. Wood had since been promoted to the position of Vice
President and Operations Manager of the O’Brien Pittsburgh office. In that memo, she
again asked that “my salary be commensurate to my title and job classification as set forth
by O’Brien Kreitzberg, to be retroactive to my letter to Bill [Lafayette] dated May 28,
1999.” App. 632-3. She also submitted a list of male and female “non-African
American” employees, and their pay grades. App. 332.
Prior to sending her March 16, 2000 memo, Williams had received positive
performance evaluations. However, she alleges that following her March 16 memo, she
“was subjected to various forms of harassment and retaliation in the form of false
allegations of poor performance and . . . management . . . which . . . culminated with [her]
termination. . . on August 29, 2000.” Appellant’s Br. at 14. She thereafter brought this
action under Title VII alleging illegal discrimination in pay and illegal retaliation for
protected activity under Title VII.

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II. DISCUSSION
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000, states in relevant part:
It shall be an unlawful employment practice for an employer .
. . to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such individual's race, color, religion, sex, or
national origin. . . .
42 U.S.C. § 2000e-2 (2004). Under the familiar framework established by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973):
The complainant in a Title VII trial must carry the initial
burden . . . establishing a prima facie case of racial
discrimination. This may be done by showing (I) that he
belongs to a racial minority; (ii) that he applied and was
qualified for a job for which the employer was seeking
applicants; (iii) that, despite his qualifications, he was
rejected; and (iv) that, after his rejection, the position
remained open and the employer continued to seek applicants
from persons of complainant's qualifications.
This analytical approach is not a rigid formula for resolving claims under Title VII
because “[t]he facts necessarily will vary in Title VII cases.” Id., at 802, n. 13.
Accordingly, our inquiry must remain flexible to properly resolve claims of
discrimination in “differing factual situations.” Id.
Thus, we have held that a Title VII plaintiff must “offer sufficient evidence that
she was: (1) a member of the protected class, (2) qualified for the position she sought, and
(3) nonmembers of the protected class were treated more favorably.” Goosby v. Johnson
& Johnson M edical, Inc., 228 F.3d 313, 318-9 (3d Cir. 2000) (citing Ezold v. Wolf, Block,

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Schorr and Solis Cohen, 983 F.2d 509, 522 (3d Cir.1993)). We have also explained that,
in the context of a wage discrimination claim based upon race, a plaintiff can establish
disparate treatment by producing evidence that s/he was “performing work substantially
equal to that of (White employees) who were compensated at higher rate(s)” than the
Black plaintiff. Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1087 (3d Cir. 1996)
(internal citation and quotation omitted).
A. The Prima Facie Case for Disparate Treatment
Here, the parties dispute only the third prong of the Title VII analysis. It is not
contested that Williams, as a Black woman, is a member of a protected class, and the
parties do not contest her qualifications. They do disagree about whether she was paid
less then she should have been paid because of racial bias.
O’Brien’s pay scale assigned Williams’s position of Project Administrator a pay
grade of eight. The minimum salary for that pay grade was $32,736 per year, which is
significantly more than O’Brien was paying Williams. Mae Johnson, presumably an
employee in personnel, brought this discrepancy to the attention of O’Brien’s
management. The record contains a note of a phone message from Mae Johnson to
“Ted,” presumably Ted Branton, the Vice President who hired Williams. The note reads
in its entirety: “Dolores Williams - her $14.00/hr ($29,120) is below the minimum salary
for her Grade [sic] and title. (32,736.00).” App. 583.
O’Brien responded by generating internal, confidential paperwork that changed

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Williams’s title to Administrative Assistant III which had a salary grade of seven.
Williams’s new title placed her at the bottom of that pay range as it had a minimum salary
of $29,014. Williams thereafter received a salary that would have barely been appropriate
for a position at pay grade seven even though she had been hired for a grade eight
position. Moreover, it does not appear that Williams ever saw the internal paperwork
that changed her job from Project Administrator (grade eight) to Administrative Assistant
III (grade seven).
O’Brien attempts to explain any discrepancy between her actual duties, her title,
pay grade and salary by claiming that the pay grades were not used in the Pittsburgh
office and that her title as Project Administrator was determined by the contract with the
client. However, Lafayette was not able to point to any provision in that contract that
governed Williams’s salary or pay grade. Indeed, O’Brien apparently changed W illiams’s
title without any discussion with any client once the pay grade discrepancy was disclosed
to management.
When management was informed that Williams’s starting salary as a Project
Administrator was less than the salary assigned to that pay grade, O’Brien did not simply
ignore the pay grade schedule, as O’Brien’s second, alternative explanation suggests it
would have. Rather, her title was downgraded to a position with a pay grade that was
consistent with her lower salary. As noted earlier, even after the downgrade, Williams’s
salary was still at the very bottom of the range applicable to the new title. In short, there

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is enough evidence here to allow a reasonable fact finder to conclude that O’Brien’s
explanations are nothing more than a pretext and that the discrepancies Williams
complains of actually resulted from racial bias.
O’Brien’s attempt to rebut Williams’s suggestion that she was really at a pay grade
eleven could also be rejected by a reasonable fact finder. O’Brien’s contention that
Williams was not really functioning at a level nine rather than eleven as she claims, is
belied by the fact that O’Brien—and its successor company, URS Corporation—issued
business cards to her stating that her title was “Manager of Administration and Human
Resources.” This position was classified at pay grade eleven. Similarly, Lafayette
referred to her as “Manager of Personnel” in Williams’s 1998 performance review, and
“Manager of Administration and Personnel” in her 1999 review. The pay grade assigned
to those positions was eleven, just as Williams claims. The record therefore supports her
claim that she was improperly paid for doing a job that was assigned a pay level of nine,
but apparently merited a pay level of eleven.
In addition, every other employee that O’Brien listed for the Pittsburgh office
received a salary within the range established for that employee’s pay grade. Moreover,
several of those employees were paid near the top of the applicable pay grade. As noted
above, Williams was at the very bottom of the range assigned for her position as Project
Administrator even after the title was surreptitiously changed to be consistent with
O’Brien’s pay grades. App. 587, 614. While Williams was paid $29,120, employees with

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2 At pay grade six, the minimum salary is $25,729 and the maximum salary is
$41,166. App. 573.
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less seniority and/or lower pay grades received higher salaries than Williams. App. 534.
For example, a White female Executive Assistant—also an administrative position, but
one with a pay grade of six2—who was hired almost one month after Williams, was given
a starting salary of $39,582. Id.
Furthermore, the August 29, 2000 memo from “Marty” Wood to Williams
notifying her of her termination explained that her position “was not a managerial
position” and that Williams was therefore “expected to do the work herself and not
delegate duties.” App. 602. Yet, as discussed above, O’Brien’s own paperwork suggests
that her position was managerial.
Williams also argues that some of the difficulties she had at O’Brien stemmed
from O’Brien’s refusal to give her the support she needed to do her job. This may or may
not be true, but we have previously noted that an employer’s refusal to properly support
an employee can be tantamount to setting the employee up to fail, and thus may support
an inference of discriminatory animus. See Woodson v. Scott Paper Co., 109 F.3d 913,
922 (3d Cir. 1997). Although this record does not readily lend itself to this interpretation,
it is not for us to make that factual determination; it is for a jury to decide, given the
genuine factual disputes this record presents.
We have also previously stated that some forms of discrimination in the work

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place have taken on a new sophistication and subtlety as employers have come to profess
less tolerance for bias:
[W]hile discriminatory conduct persists, violators have
learned not to leave the proverbial "smoking gun" behind.
As one court has recognized, defendants of even minimal
sophistication will neither admit discriminatory animus or
leave a paper trail demonstrating it. But regardless of the
form that discrimination takes, the impermissible impact
remains the same, and the law's prohibition remains
unchanged. Title VII tolerates no racial discrimination, subtle
or otherwise.
* * *
Courts today must be increasingly vigilant in their efforts to
ensure that prohibited discrimination is not approved under
the auspices of legitimate conduct, and "a plaintiff's ability to
prove discrimination indirectly, circumstantially, must not be
crippled . . . because of crabbed notions of relevance . . .
Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1082 (3d Cir. 1996) (internal
citation and quotation omitted). Although we must also be vigilant to minimize the
impact of groundless claims of bias on employers who have acted in good faith, summary
judgment must not become a procedural expedient for resolving claims that raise a
genuine issue of fact even though courts may be skeptical of the merits of the plaintiff’s
underlying claim.
In granting summary judgment against Williams, the Magistrate Judge relied in
part on Aman. There, we affirmed the grant of summary judgment in favor of a defendant
in a claim of wage discrimination because the plaintiffs did not refute the defendant’s

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argument that the higher paid White employees were not similarly situated. We noted
that the plaintiffs relied heavily upon a comparison of job grade levels to demonstrate
preferable treatment for comparable employees from outside of the protected class. Aman,
85 F.3d at 1087. However, there was no evidence that the jobs or credentials of the better
compensated employees were comparable to the plaintiffs’ jobs and credentials. Id. We
also accepted the defendant’s explanation that “an employee’s pay was not solely
determined by job grade level, but by job duties and the differences in pay structure
among the sales, warehouse, and administrative staff.” Id. Summary judgment was based
on this evidence, the plaintiffs’ failure to refute it, and a concession by the plaintiffs that
“the pay differential between individuals with the same job grade was reasonable.” Id.
Here, Williams does not concede the reasonableness of the alleged disparity in pay
grades. Instead, she argues that the disparity is driven by discriminatory animus in
violation of Title VII. Meanwhile, O’Brien does not argue that Williams’s salary is
consistent with its pay grades. Rather, it argues that the pay grades did not apply to the
Pittsburgh office. However, as we have explained, the record could support a contrary
conclusion. Consequently, Aman does not support the district court’s grant of summary
judgment in favor of these employers in the present case.
B. The Prima Facie Case for Unlawful Retaliation
In Aman, we stated the elements of a prima facie claim for illegal retaliation under
Title VII as follows:

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a plaintiff must show: (1) that she engaged in a protected
activity; (2) that she was discharged subsequent to or
contemporaneously with such activity; and (3) that a causal
link exists between the protected activity and the discharge.
85 F.3d at 1085 (3d Cir. 1996) (citing Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir.
1989)). However, “we do not require a formal letter of complaint to an employer or the
EEOC as the only acceptable indicia of the requisite ‘protected conduct.’” Barber v. CSX
Distribution Services, 68 F.3d 694, 702 (3d Cir. 1995). The plaintiff in Barber did not
satisfy his burden of establishing a prima facie case of retaliation because he could not
establish that the adverse employment action was the result of his letter of complaint or
protected status. We explained:
It is clear from Barber's letter that he felt that he had been
treated unfairly as he stated that "the position was awarded to
a less qualified individual." However, that letter does not
explicitly or implicitly allege that age was the reason for the
alleged unfairness. A general complaint of unfair treatment
does not translate into a charge of illegal age discrimination.
Id. (emphasis in original).
As noted above, in Williams’s May 28, 1999 memo complaining of disparate pay,
she specifically mentioned O’Brien’s need to comply with EEOC mandates. That could
well have been interpreted as an explicit reference to disparate treatment based upon a
protected classification under Title VII, and her supervisor may have understood that
reference as such. Martin Wood, wrote in his handwritten notes following a meeting with

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3 Though Williams points to the March 16, 2000 memo as the source of the
alleged retaliation, it is arguable that this memo, standing alone, would not suffice as the
basis of a retaliation claim. Yet in light of the totality of the evidence, a reasonable jury
could still conclude that the employer's adverse evaluations and subsequent adverse
employment actions were the result of Williams' references to the EEOC. Such a finding
could constitute the causal link required to sustain a claim of illegal retaliation under Title
VII.
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Jennie Caruso, the Senior Regional Human Resources Manager, that “Dolores feel [sic]
that she is being discriminated against.” App. 319, 592.
Arguably, neither that reference, nor Williams’s mention of the EEOC would
support a claim of retaliation under Title VII if each were standing alone. However, when
taken together and viewed in the light most favorable to Williams we believe a reasonable
fact finder could conclude that Williams’s employer was motivated by bias in violation of
Title VII. When asked at his deposition if he understood Williams’s reference to EEOC
“to mean Equal Employment Opportunity?” Lafayette replied: “I know what that means.”
App. 155. It is certainly conceivable that a jury would take O’Brien’s management at its
word and conclude that Williams’s subsequent termination was the result of her
complaints about unequal treatment in violation of Title VII. That is all that is required to
survive summary judgment.
Moreover, Williams only began receiving negative performance evaluations after
she sent that memo and subsequently followed up with a second memo to management on
March 16, 2000.3 She apparently continued to press her complaints to the extent that
Wood acknowledged her complaints of discrimination in his notes of a May 12, 2000

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4 The evidence also reveals that Williams sent Wood an email in which she stated
that she was “being singled out” and that she found this to be “harassing.” App. 639.
Wood’s email message in response acknowledged her complaint of harassment and
referenced the upcoming May 12 meeting, in which he noted that Williams felt
discriminated against. Id., at 637.
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meeting with Williams and supervisory personnel at O’Brien. On August 29, 2000 she
was terminated.
In addition, Williams’s claims of disparate treatment and retaliation must be
considered along with the purging of all racial information from the Appellees’ personnel
files soon after Williams sent her second memorandum in the Summer of 2000. App. 481-
6.4 See Aman, 85 F.3d at 1082 (“while discriminatory conduct persists, violators have
learned not to leave the proverbial ‘smoking gun’ behind. . . . [d]efendants of even
minimal sophistication will neither admit discriminatory animus or leave a paper trail
demonstrating it.” (internal quotation and citation omitted)). It is for a jury, not a court to
determine what, if any, significance to attach to that.
The Magistrate Judge realized the potential significance of this evidence in
denying the employers’ motion for summary judgment on Williams’s retaliation claim.
The Magistrate Judge wrote: “Based on the plaintiff’s good faith complaints of disparate
pay—which the defendants understood as meaning she felt discriminated against— it
appears that the plaintiff engaged in a protected activity.” App. 20. We agree. As the
Magistrate Judge explained:
The plaintiff avers that almost immediately after she sent her

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memo of March 16, 2000, her relationship with her
supervisors began to deteriorate, a pattern of antagonism
toward her developed, and her employment was terminated on
or about August 27, 2000. Since this adverse employment
action occurred in close temporal proximity to the plaintiff’s
complaints of disparate pay, a causal connection exists
between the protected activity and the adverse action.
Id.
It should be noted, however, that temporal proximity is neither necessary nor
sufficient to establish causation. See Aman, supra, and Kachmar v. Sungard Data
Systems, Inc., 109 F.3d 173, 178 (1997). Nevertheless, the timing of Williams’s dismissal
is a part of the totality of circumstances that a reasonable juror could consider in finding
the required nexus between her complaints and her termination. See Woodson, supra.
III. CONCLUSION
We find that this record presents significant questions of fact that require further
discovery and merit review by a jury. While we offer no opinion or prediction regarding
the likelihood of the Appellant’s success on the merits of her case, we do believe that the
evidence is sufficient to survive her employers’ motion for summary judgment. For the
foregoing reasons, we will reverse.

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