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April 11, 2003


The opinion of the court was delivered by: David H. Coar, United States District Judge


This is an employment discrimination case. Plaintiff Alisa Simms, an African-American woman, alleges that Defendant Blue Cross Blue Shield Association promoted white employees while refusing to promote her because she is African-American and then fired her in retaliation for her complaints of discrimination and because she is African-American. This case comes before the Court now on Defendant Blue Cross Blue Shield's Motion for Summary Judgment.

I. Factual Background

Plaintiff Alisa Simms ("Plaintiff' or "Simms") is an African-American woman who worked for Defendant Blue Cross Blue Shield Association from February 1997 through June 2001. (Def. Facts, ¶¶ 1, 3, 4.)*fn1 Defendant Blue Cross Blue Shield Association ("Defendant" or "Blue Cross") is a non-profit organization that serves as an association and licensor for 43 independently owned and operated Blue Cross Blue Shield Plans. (Def. Facts, ¶ 2.) Simms began working as a secretary for Defendant in February 1997 as a temporary worker, and she became a full-time employee in July 1997. (Def Facts, ¶ 3.) In June 1999, Simms was promoted to the position of coordinator. (Def. Facts, ¶ 3.) Simms entire employment at Blue Cross was within the "Blue Card Division." (Def. Facts, ¶ 9.) The Blue Card Division provides the operational mechanism for individual state-by-state Blue Cross Blue Shield health plans to be linked with each other. (Def Facts, ¶ 10.)

Gerrie Dozier, an African-American woman, interviewed Simms in 1997, and recommended that Defendant hire Simms. (Def Facts, ¶¶ 12, 13, 17.) In June 1999, when Simms was promoted to coordinator, Dozier was responsible for implementing the promotion. (Def Facts, ¶ 27.) For the duration of Plaintiff's employment with Blue Cross, Dozier was her supervisor. (Def. Facts, ¶¶ 19, 12.) Frank Coyne, a white man, was Dozier's supervisor throughout Simms' employment with Defendant. (Def. Facts, ¶ 13.)

After Plaintiff had been working for Defendant for nearly a year, in early 1998 she informed Dozier that she felt Frank Coyne had problems dealing with people of color. (Def. App., Ex. A at 94.) Simms perceived that Frank Coyne would not speak to her or her African-American co-worker, Lawanda Solomon. (Def. Facts, ¶ 142-144.) Dozier informed Coyne of Simms' complaint. (Def. App., Ex. A at 95.) Shortly after the complaint, Coyne made a concerted effort to say good morning and such to Simms, but Simms felt that his efforts only lasted for a couple of weeks. (Def App., Ex. A at 95, 116.) Nevertheless, Simms did not complain about racial discrimination at Blue Cross again until March 2001. (Def. App., Ex. A at 120-121.)

When she began working for Defendant, Simms' duties included typing, filing, answering phones, helping with special projects, mailings and other general administrative tasks. (Def. Facts, ¶ 18.) During 1998, Simms began to have responsibility for posting, editing, and maintaining content on the Blue Web website. (Def. Facts, ¶ 19.) Simms enjoyed working on the website. (Def. Facts, ¶ 25.)

When Simms was promoted in June 1999, she thought her new position would entail a significant increase in website related work and a more significant pay raise. (Def. Facts, ¶ 30.) On June 21, 1999, she sent a memo to Del Nagy, then-director of Blue Card, and Frank Coyne suggesting further revisions to her job description that would lead to more work in web development. (Def. Facts, ¶ 31; Def. Appendix Ex. Supp. Mot. Sum. J., Ex. A at Dep. Ex. 17(a).)*fn2 She sent the same memo to the same recipients on July 15 but with a more refined job description attached. (Def. Facts, ¶ 31; Def. App., Ex. A at Dep. Ex. 17(b).) Simms and Dozier recall Dozier's response to the memo differently. In her deposition, Simms testified that Dozier suggested to her that a further promotion would happen in August of 1999. (Def. Facts, ¶ 32.) Dozier testified that she told Simms her position would be re-evaluated if the amount of web development work changed. (Def. Facts, ¶ 33.)

The record reveals that Dozier had a meeting with Simms on July 16, 1999 to discuss the memos. (Def. App., Ex. A at Dep. Ex. 17(b).)*fn3 An internal memo detailing what took place at the meeting signed by both Dozier and Simms indicates that Dozier was going to re-evaluate Simms' job description three months after August 2, 1999. (Def. App., Ex. A at Dep. Ex. 17(b).) The second page of the memo indicates that Bill Schneider of the Human Resources department met with Plaintiff about the volume of non-work related email she was sending. (Def. App., Ex. A at Dep. Ex. 17(b).) The memo further indicates that Dozier discussed Plaintiff's personal phone calls and time away from her desk talking with other of Defendant's employees. (Def. App., Ex. A at Dep. Ex. 17(b).). Besides this conversation with Dozier and the June and July memos, Simms made no further efforts to have her job description changed in 1999 or 2000. (Def. Facts, ¶ 46.)


Gerrie Dozier was responsible for conducting Plaintiff's annual performance reviews. (Def. Facts, ¶ 63.) Simms received her first performance review in June 1998, and it was generally positive. (Def. App., Ex. A at Dep. Ex. 20.) In most categories, Simms was meeting and at times surpassing her supervisor's expectations. (Def. App., Ex. A at Dep. Ex. 20.) The 1998 review revealed only two areas of weakness, neither of which received much emphasis in the narrative portions of the review.*fn4 This review was signed by Frank Coyne, Gerrie Dozier, and Alisa Simms on June 18, 1998.

Frank Coyne's role in the review process was usually perfunctory. For annual reviews that were positive, Coyne would sign off on the final version of the employee's evaluation. (Def. Facts, ¶ 65.) If an employee were going to receive a negative evaluation, the direct supervisors, such as Dozier, would show Coyne drafts of reviews before they were finalized. (Def. Facts, ¶¶ 63-64.)

Simms' next review came in March 1999. This review was also generally positive. (Def. App., Ex. A at Dep. Ex. 21.) In most categories, Simms was again meeting and at times surpassing her supervisor's expectations. (Def. App., Ex. A at Dep. Ex. 21.) The March 1999 review did indicate, though, that Plaintiff "needs to improve her communication skills, which effects her working relationship with other staff in the department." (Def. App., Ex. A at Dep. Ex. 21.) The review marked a few other areas where Plaintiff needed to improve, but none of them received any attention in the narrative portions of the review.*fn5 The review's final recommendation was that Plaintiff "should take a . . . communication course to establish successful working relationships and developing effective verbal and nonverbal skills." (Def. App., Ex. A at Dep. Ex. 21.) This review was signed by Gerrie Dozier and Alisa Simms on March 26, 1999. (Def. App., Ex. A at Dep. Ex. 21.) Frank Coyne had no part in the March 1999 evaluation. (Def. App., Ex. B at 18.) Simms disagreed with the assessment of her performance, but she did not file a written response or objection. (Def. Facts, ¶ 68.)

Simms' third annual review occurred in March 2000. For this review, Defendant employed for the first time a numeric rating system on a scale of one to five, with five being the highest rating. Her review contained several areas where she could improve, including her ability to understand the big picture, her communication skills, and her capacity to apply her skills to areas of her work other than the website projects. (Def. App., Ex. A at Dep. Ex. 22.) Simms' overall rating on her March 2000 review was 2.87. (Def. App., Ex. A at Dep. Ex. 22.) This places her in the range of 2.4 to 3.5, which the ratings explain means that the employee is "meeting between 76 percent and 100 percent of the total value" of the various tasks described. (Def. App., Ex. A at Dep. Ex. 22.) This review was signed by Gerrie Dozier and Alisa Simms on March 22, 2000; Frank Coyne signed this review on March 23, 2000. (Def. App., Ex. A at Dep. Ex. 22.) Simms disagreed with parts of her March 2000 review, but she did not submit a written response or objection. (Def. Facts, ¶ 73.)

Between March 2000 and Plaintiff's termination in June 2001, Dozier spoke to Plaintiff on various occasions about the way she was doing her work, and how Dozier thought Plaintiff should change. (Def. Facts, ¶ 74.) Although Simms recalled those conversations with Dozier, Simms does not recall any specific complaints Blue Card employees made about her work. (Def. Facts, ¶ 76.) Simms also does not recall receiving any complaints directly from her fellow employees about her work. (Def. Facts, ¶ 77.)

In late summer of 2000, Plaintiff applied for an executive secretary position with Dexter Coolidge, the Vice-President of her division.*fn6 She was not hired to fill the position. Coolidge testified that he had a general impression of her not being "energetically interested" in the position. (Def. App., Ex.D at 13.) Coolidge also spoke to Dozier about Simms in the application process. (Def. Facts, ¶ 38.) Dozier informed Coolidge that Simms had difficulty following through on tasks without reminders from other employees. (Def. App., Ex.D at 16 & Dep. Ex. 1.)

In October 2000, Dozier spoke with Deborah Bandura, a Human Resources Manager for Defendant about Plaintiff's job performance. (Def. Facts, ¶ 78)*fn7 Dozier believed that Simms was unhappy in a support position, that she wanted more web work and more money. (Def. App., Ex. E at Dep. Ex. 1.) Dozier wanted to put Simms on a performance improvement plan, which is a formal mechanism Defendant utilizes for employees that are failing to meet expectations. (Def. App., Ex. E, ¶ 8.) Bandura informed Dozier that it was too early to take such a serious step, but that a performance improvement plan could be considered after her next annual review. (Def. App., Ex. B, ¶ 9.) According to Bandura's notes of the meeting, Dozier also informed her that Simms believed that Frank Coyne was not acknowledging her. (Def. App., Ex. F. at Dep. Ex. 1.)

From November 2000 through February 2001, there were four tasks that Simms was required to complete where either her fellow employees sent her reminder e-mails to complete the tasks or she performed the task unsatisfactorily from Defendant's perspective. (Def. Facts, ¶¶ 80-85, 89-90.)*fn8 The most serious incident in that time period occurred on January 17, 2001. On that day, Blue Card employee Kathleen Tunney reported to Human Resources Manager Deborah Bandura that Simms was "disappearing" from her desk and that she reported to work at 11:00 a.m. that morning. (Def. App., Ex. E at Dep. Ex. 2.) According to Bandura's contemporaneous notes, Tunney told Bandura that "no one gives her work because they don't feel it will be done." Tunney did not know what to do about the situation because Dozier was out of the office that day. (Def. App., Ex. B at Dep. Ex. 2.) Bandura instructed Tunney to counsel Simms about these problems, and that this would be considered verbal counseling. (Def. App., Ex. E at ¶ 11 and Dep. Ex. 2.)

Despite these problems, in December 2000, Dozier asked Simms if she would be interested in applying for a promotion -for doing Blue Web work. (Def. Facts, ¶ 41.) Simms had been interested in doing more website work since she began to work on the website in 1998. Simms testified that Dozier told her she would need to take additional web classes, then Dozier "would see" about having Simms promoted. (Def. Facts, ¶ 51.) Simms and Dozier did not discuss the possibility of Simms' promotion again until Simms broached the subject on March 2, 2001. (Def. Facts, ¶¶ 49, 50.) Simms asked Dozier about the paperwork for her promotion, and Dozier told her he needed to talk to Frank Coyne about it. (Def. Facts, ¶ 53.) Dozier told Simms a few days later that Frank Coyne had not reviewed her promotion paperwork because Coyne had not had time. (Def. Facts, ¶ 54.)

Simms approached Coyne on March 5, 2001, to ask him directly about her promotion. (Def. Facts, ¶ 55.) Coyne told Simms he had not had time to review her promotion paperwork and that he was waiting "to see where [the company] w[as] going as far as BlueCard is concerned." (Def. Facts, ¶ 55; Def. App., Ex.A at 201.) Simms and Coyne do not remember the details of the incident the same way. Simms testified in her deposition that she told Coyne she thought his failure to address her promotion was unfair and that she was being discriminated against. (Def. App., Ex. A at 215.) Coyne testified in his deposition that Simms did not mention discrimination in their conversation on March 5, 2001. (Def. App., Ex. C at 15.) The Court will address the significance of this disagreement in the discussion section below.

What is not in dispute is that Simms knew, at the time of this conversation, that the Defendant was implementing changes to the BlueWeb system. (Def. Facts, ¶ 59)*fn9 The changes being made to the website would allow every employee in the Blue Card division to post his or her own materials to the web without bringing them to Simms or any other administrative employee. (Def. Facts, ¶ 60.) Simms was aware that this change would lead to a decrease in the amount of web work she would do. (Def. Facts, ¶ 61.)

1. Simms' 2001 Performance Review

In March 2001, Simms received her next performance review. (Def. Facts, ¶ 91.) Simms was expecting to receive a negative evaluation. (Def. Facts, ¶ 93.) In her evaluation, which was made on the same one to five scale as the 2000 evaluation, she received an overall score of 2.07. (Def. Facts, ¶ 92.) According to Frank Coyne, a score of 2.07 is "extremely low." (Def. App., Ex. C at 25.) This evaluation noted that Simms had problems performing many areas of her job duties. Specifically, it noted that: she needed "to improve her administrative support to staff in BlueCard"; she "leaves the area for long periods of time without notifying her co-workers or supervisor of her whereabouts"; she "does not always provide/portray a friendly customer focused attitude"; "her constant negative attitude is affecting every area of her work"; she "has not demonstrated acceptable customer focus on a constant basis when it comes to answering the phones or assisting staff'; and her failure to report to management when she was going to be late "shows a disregard for policy." (Def. App., Ex. A at Dep. Ex. 41.) Simms disagreed with most of this evaluation and refused to sign it. (Def. Facts, ¶¶ 95-96.)

Before the 2001 evaluation was finalized, Frank Coyne reviewed drafts of Simms' evaluation. (Def. Facts, ¶ 97.) Dozier shared at least two drafts of the evaluation with Frank Coyne, and Coyne made written comments on the drafts. (Def. App., Ex. C at Dep. Exs. 1-2.) Coyne's written comments on the draft evaluations inform Dozier to be "specific", "evaluate" and "expand" about Simms' work. (Def. facts, ¶ 99.) Coyne testified at his deposition that he wanted Dozier to be sure that the narrative portion of the review matched the numeric evaluation. (Def. App., Ex. C at 21.) Coyne also testified that he did not contribute to the substantive review or the numeric ranking on Simms' evaluation. (Def. Facts, ¶ 100.) Dozier testified in her deposition that Coyne never told her to ...

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