Opinion
No. 3:98-CV-1864-D.
December 7, 2000.
MEMORANDUM OPINION AND ORDER
Plaintiff Dorothy Vickers ("Vickers") sues defendants International Baking Co., Inc. ("IBC") and Sara Lee Corporation (collectively, "IBC") alleging sex discrimination and retaliation in violation of the Texas Commission on Human Rights Act ("TCHRA"), Tex. Labor Code Ann. §§ 21.001-21.405 (West 1996 Supp. 2000), and the Equal Pay Act of 1963 ("EPA"), 29 U.S.C. § 206 (d). IBC moves for summary judgment. For the reasons that follow, the court grants the motion in part and denies it in part.
I
Vickers began working for IBC in May 1990 as a Sales Supervisor at its Vernon, California facility. In May 1991 IBC promoted her to Food Sales Account Manager and in May or June 1994 promoted her again to conduct training for Southern California distributors. Ken Tusup ("Tusup"), IBC's Senior Vice President for Sales and Marketing, and/or Simon Mani ("Mani"), IBC's President, approved each promotion.
Except where noted, the court recounts the facts favorably to Vickers as the summary judgment nonmovant.
Sara Lee Bakery, a division of Sara Lee Corporation, purchased IBC in 1992.
IBC offered Vickers a job in Texas. She accepted the offer and in January 1995, with Mani's approval, began working as the first Sales Supervisor at IBC's Fort Worth, Texas facility. IBC did not then have distributors, routes, or trucks in the Dallas/Fort Worth area. No employees reported to Vickers. In February 1995 Vickers hired her husband to work under her supervision as a distributor.
IBC promoted Vickers in January 1996, with a pay raise, to the position of District Sales Manager for the Dallas/Fort Worth area. Mani and Vickers' supervisor, John Cranford ("Cranford"), approved the promotion and raise. Vickers supervised up to 18 distributors, of whom up to 10 operated out of IBC's Dallas facility. Although IBC eventually gave her a 4% raise in September 1996, she received lower compensation than did male District Sales Managers and IBC did not give her access to a cellular telephone. Vickers complained about this differential treatment.
In April 1997 several distributors whom Vickers supervised complained that she was treating them unfairly by favoring her husband in the assignment of the best routes, providing him advance knowledge of sales contests and other activities, and giving him other considerations. The distributors also complained of her poor supervision. They asserted that Vickers was one reason for the high distributor turnover in the market. A few days later, the distributors advised Mani of additional complaints of favoritism that they asserted that Vickers had shown to her husband. Mani referred these complaints to Tusup.
Mani and Tusup then met with the distributors, took their grievances seriously because they viewed them as IBC customers, concluded that the distributors's complaints were valid, and followed up by meeting with Vickers. Mani discussed with Vickers the possibility of transferring her to Houston, and also offered her a distributorship, both of which she refused. Mani then terminated Vickers' employment.
Vickers contends that IBC in part fired her as an act of retaliation for complaining about discrimination.
II
IBC moves for summary judgment dismissing Vickers' sex discrimination claim under § 21.051 of the TCHRA. It maintains that Vickers cannot establish a prima facie case of discrimination. IBC posits that, even if she can demonstrate a prima facie case, it has offered a legitimate, nondiscriminatory reason for terminating her employment, and she has failed to show a genuine issue of material fact that the reason is pretextual,
A
Texas state courts construe the TCHRA consistently with federal law interpreting Title VII of the Civil Rights Act of 1964 ("Title VII"). 42 U.S.C. § 2000e et seq. Shackleford v. Deloitte Touche, LLP, 190 F.3d 398, 404 n. 2 (5th Cir. 1999) ("the law governing claims under the TCHRA and Title VII is identical"); Caballero v. Central Power Light Co., 858 S.W.2d 359, 361 (Tex. 1993). The court will therefore rely on Title VII jurisprudence in deciding IBC's motion concerning Vickers' TCHRA claim.
IBC recognizes in its motion that Vickers may prove sex discrimination indirectly under the familiar burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See D. Br. at 12. Under this method, Vickers must establish a prima facie case of discrimination. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S.Ct. 2097, 2106 (2000). Once she meets this burden, IBC is obligated to articulate a legitimate, nondiscriminatory reason for the employment decision at issue. See id. This is a burden of production, not persuasion. Id. Once IBC meets this production burden, the presumption of discrimination disappears. Id. Vickers must prove by a preponderance of the evidence that the legitimate reasons offered are not the true reasons but are a pretext for discrimination. Id. "[T]he plaintiff may attempt to establish that [s]he was the victim of intentional discrimination `by showing that the employer's proffered explanation is unworthy of credence.'" Id. (quoting Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981)). "[A] plaintiffs' prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." Id. at 2109."[I]t is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer's explanation." Id. at 2108. "Proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive." Id. At the summary judgment stage, Vickers need only raise a genuine issue of material fact, See Tutton v. Garland Indep. Sch. Dist., 733 F. Supp. 1113, 1116 (N.D. Tex. 1990) (Fitzwater, J.).
B
IBC first challenges Vickers' prima facie case. It asserts various reasons for explaining why Vickers' compensation differed from that of similarly-situated male District Sales Managers and why it did not treat her differently from similarly-situated males with respect to cellular telephone privileges.
IBC's assertions are not proper challenges to Vickers' prima facie case. Vickers has met her prima facie case obligation regarding disparate compensation by presenting evidence that IBC paid her a lower salary than it paid to males for work that required equal skill, effort, and responsibility and that was performed under similar working conditions, See Peters v. City of Shreveport, 818 F.2d 1148, 1154-55 (5th Cir. 1987); Plemer v. Parsons-Gilbane, 713 F.2d 1127, 1136 (5th Cir. 1983). She has satisfied her prima facie burden concerning cellular telephone privileges by introducing evidence that (1) she is female and (2) she was treated differently than were similarly-situated male employees concerning cellular telephone privileges. See Grubbs v. Western Baptist, 25 F.3d 1048 (6th Cir, 1994) (table) (unpublished order) ("To establish a claim of disparate treatment . . ., an individual may establish a prima facie case by showing that an employer took action adversely affecting the plaintiff's compensation, terms, conditions, or privileges of employment under circumstances giving rise to an inference of unlawful discrimination. . . . A prima facie case of disparate treatment requires the plaintiff to produce evidence which at a minimum establishes that: 1) she was a member of a protected class; and 2) that for the same or similar conduct, she was treated differently than similarly-situated [male] employees."). IBC's arguments essentially relate to whether Vickers can prove pretext or intentional discrimination — the third, not first, step of the burden-shifting framework. The court holds that Vickers has established a prima facie case of sex discrimination.
C
IBC argues next that it discharged Vickers for a legitimate, nondiscriminatory reason — complaints from distributors whom she supervised — and that Vickers has essentially abandoned this claim in her summary judgment response. The court agrees.
Vickers has not adduced evidence that would permit a reasonable trier of fact to find that her female sex was a motivating factor in IBC's decision to terminate her employment. Instead, she focuses on her retaliation claim under the TCHRA, and maintains that IBC discharged her in retaliation for complaining about discrimination, not based on her sex. See P. Br. at 1, 7-10. The court holds that IBC is entitled to summary judgment dismissing her termination-based sex discrimination claim under the TCHRA.
III
IBC seeks summary judgment dismissing Vickers' retaliation claim under the TCHRA.
A
IBC contends that Vickers cannot prove a prima facie case of retaliation because she cannot establish a causal connection between her complaints and her termination.
To establish a prima facie case of unlawful retaliation, Vickers must demonstrate that (1) she engaged in a protected activity; (2) an adverse employment action occurred; and (3) a causal link existed between the protected activity and the adverse employment action. Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir. 1996) (addressing Title VII). IBC has labeled the third criterion as the requirement that a plaintiff establish a "causal connection" between a protected activity and her termination. It maintains that Vickers must prove "but for" causation. IBC seeks to hold Vickers to too onerous a burden at the prima facie case stage.
A plaintiff's initial burden in alleging a prima facie case of retalitory termination is minimal. The initial requirement that a plaintiff show a "causal link" is less stringent than "but for" causation that a jury must find. See id. at 305 n. 4, Moreover, "[c]lose timing between an employee's protected activity and an adverse action against [her] may provide the `causal connection' required to make out a prima facie case of retaliation." Swanson v. General Servs. Admin., 110 F.3d 1180, 1188 (5th Cir. 1997) (citing Armstrong v. City of Dallas, 997 F.2d 62, 67 (5th Cir. 1993)). Vickers has met her prima facie burden.
B
IBC argues next that Vickers cannot rebut its legitimate, nondiscriminatory reason for terminating her employment. The court disagrees. Vickers has presented evidence that she complained to several individuals in IBC management about her employment conditions and pay disparity. In March 1997, only a few weeks before her termination, Vickers protested to Lisa Saldivar ("Saldivar"), the Executive Assistant, and to both Cranford, her supervisor, and Ara Baliozian, IBC's General Manager and Vice President of the Texas region, that she believed she was unfairly being paid less than were male District Sales Managers. Erika Croy ("Croy"), a representative of IBC's Human Resources Department, later approached her. Vickers avers that she told Croy that she believed her pay disparity and other inferior job conditions were the result of sex discrimination. Several weeks after she complained to Saldivar and Croy, IBC terminated her employment.
While a jury is free to disbelieve Vickers' account, the temporal proximity of her complaint to her termination, and the fact that the individual to whom she complained was directly subordinate to the individuals (her supervisor and the General Manager for the Texas region) responsible for discharging her, could support a jury finding that IBC is lying about the chain of events leading to her termination. The jury could reasonably find that Vickers complained about sex discrimination to IBC personnel and that these complaints were in turn passed on to individuals, including Mani, who were responsible for firing her, Vickers' evidence is sufficient to raise a genuine issue of material fact regarding IBC's explanation that it fired her in response to complaints about her job performance and of a conflict of interest related to her supervision of her husband.
IBC has produced evidence, for example, that Vickers retracted her story, saying that her complaints to Croy were really the result of frustration and "P.M.S." Although a jury is free to believe this evidence, it is not required to do so. It may also reject it, and instead believe Vickers' original account, which supports her claim that she complained to IBC about its practices.
Vickers has also offered other evidence of pretext, such as proof that IBC did not discharge similarly-situated male District Sales Managers whose relationships created an appearance of a conflict of interest. For example, after IBC terminated Vickers, they replaced her with an individual whose brother was a distributor. A jury could reasonably find that IBC selectively enforced its nepotism policy in a manner that was discriminatory against her as a female, or that there was no such policy and that IBC's true intention was to punish her for complaining about discriminatory employment conditions.
IV
IBC also moves for summary judgment dismissing Vickers' EPA claim.
A
IBC contends first that Vickers cannot establish a prima facie case that IBC violated the EPA. The court disagrees.
To meet her prima facie burden, Vickers must show that (1) IBC is an employer subject to the EPA, (2) Vickers performed work that required equal skill, effort, and responsibility under similar working conditions as her male counterparts, and (3) IBC paid her less than the male employees providing the basis for comparison. See Brennan v. Corning Glass Works, 417 U.S. 188, 195 (1974). Vickers' evidence closely follows these elements. It is undisputed that IBC is subject to the EPA. Much of Vickers' case consists of evidence that her employment record, longevity in the company, size of service area, and job description were equal or superior to those of her male counterparts. Finally, she has adduced evidence that she was paid less than comparable male employees. Vickers has therefore met her prima facie case obligation by presenting evidence that IBC paid her a lower salary than it paid to males for work that required equal skill, effort, and responsibility and that was performed under similar working conditions. See Peters, 818 F.2d at 1154-55; Plemer, 713 F.2d at 1136.
B
IBC next maintains that Vickers' EPA claim is in part barred by the two-year statute of limitations. It argues that because Vickers filed suit on June 19, 1998, any alleged violation of the EPA that occurred before June 19, 1996 is time-barred. IBC acknowledges that if Vickers proves a willful violation, her claim is subject to a three-year period of limitations (thus allowing claims from June 19, 1995 to the date of her termination), but contends she cannot meet her burden of establishing such a violation of the EPA.
For the same reasons explained infra at § IV(D), the court holds that Vickers has presented a genuine issue of material fact whether IBC's violation of the EPA was willful. The court therefore denies summary judgment except to the extent that Vicker's EPA claim is based on compensation that pre-dates June 19, 1995.
C
IBC argues that Vickers cannot meet her prima facie case obligation of showing comparable jobs in the same location because she was the only District Sales Manager in the Dallas/Fort Worth facility.
The court holds that Vickers has introduced sufficient evidence to support comparing her salary as a District Sales Manager to other District Sales Managers in the state of Texas. Under the EPA, employees are only evaluated for equal pay against their counterparts in the same establishment. See 29 U.S.C. § 206 (d)(1). There is an exception where, as here, the employer has integrated operations and a centralized administration. See Brennan v. Goose Creek Consol. Indep. Sch. Dist., 519 F.2d 53, 58 (5th Cir. 1975). Managerial employees, such as Vickers, who work under the superintendence of a single supervisor, perform similar work, and are employed by the same corporation can naturally be considered to be working in the same establishment as their peers for the purposes of comparing unequal salaries under the EPA. Regardless physical separation, "[t]here is a trend in the law wherein an `establishment' includes all places of business of one corporation or a multi-location employer[.]" Brownlee v. Gay Taylor, Inc., 642 F. Supp. 347, 351 (D. Kan. 1985). In the instant case, it is proper to compare District Sales Managers whom the company manages and compensates as a group because each is in charge of geographically separated facilities. This separation in Vickers' peer group is an "unusual circumstance" that justifies comparing Vickers' job with that of other District Sales Managers in Texas. Cf. Lenihan v. The Boeing Group, 994 F. Supp. 776, 797 (S.D. Tex. 1998) ("unless unusual circumstances are demonstrated, multiple offices generally are presumed not to be a `single establishment.'") (citation omitted). IBC's reading of the singie establishment requirement would effectively permit a large employer with national operations to exempt its managerial staff (each of whom is in charge of a single facility) from the reach of the EPA.
D
IBC argues for several reasons that Vickers cannot prevail on the merits of her EPA claim. It contends that Vickers' pay and benefits were the same as comparable male employees because she did not have account responsibilities or connections and therefore she was not entitled to commissions or to a cellular telephone. It also maintains that she was not allowed a cellular telephone as a Sales Supervisor because no supervisors were reimbursed for cellular telephones. IBC also asserts that, while Vickers was a District Sales Manager, it was experiencing financial difficulties that prevented it from reimbursing anyone who had previously received expense reimbursements for cellular telephones. It moves for summary judgment on the additional ground that any alleged differential in Vickers' pay was justified by (1) the unique characteristics of the same job, (2) Vickers' lack of comparable experience, skills, or qualifications, or (3) the exigent circumstances connected to the business.
The EPA prohibits employers from discriminating on the basis of sex by paying wages to employees of one sex that are less than the rate paid employees of the opposite sex for equal work on jobs that require equal skill, effort, and responsibility and are performed under similar working conditions. 29 U.S.C. § 206 (d)(1). Vickers' EPA claim is subject to a burden-shifting framework that is similar to that used in Title VII claims. The difference lies in who bears the burden of persuasion. In a Title VII case, the burden of persuasion always remains with the plaintiff. Plemer, 713 F.2d at 1136. Under the EPA, if the plaintiff meets her burden of establishing a prima facie case, the burden of persuasion shifts to the defendant to show that the pay differential is based on (1) a seniority system, (2) a merit system, (3) a system that measures earnings by quantity or quality of production, or (4) a differential based on any factor other than sex. 29 U.S.C. § 206 (d)(1); Schulte v. Wilson Indus., Inc., 547 F. Supp. 324, 338-39 (S.D. Tex. 1982). "Where, as here an `unequal pay for equal work' claim is raised under both the Equal Pay Act and Title VII, the statutes should be construed harmoniously." Schulte, 547 F. Supp. at 337 (quoting Orr v. Frank R. MacNeill Son, 511 F.2d 166 (5th Cir. 1975)). When a plaintiff has met the summary judgment burden with respect to her Title VII claim — which requires proof of intentional discrimination — the same evidence automatically preserves an EPA claim, which requires only a prima facie case from a plaintiff.
Although this is not a Title VII case, Vickers' TCHRA claim is analogous under Title VII jurisprudence in view of the guidance that Texas derives from the federal statute. This principle therefore applies where the EPA and TCHRA pay discrimination claims are asserted in the same case.
While a jury may reasonably find that IBC paid more to managers who received commissions for bringing in new accounts at the time of hiring or promotion, it may also reasonably find that IBC's explanation is a pretext for prohibited sex discrimination. The trier of fact may consider various factors in making this determination, including the magnitude of the differential, seniority, productivity, market conditions at the time of hiring, employment alternatives available to employees, and education. In the present case, a jury could reasonably find that IBC in some instances paid Vickers less than male counterparts whom she had trained and as to whom she was senior. The magnitude of Vickers' base salary differential with her male counterparts — in some cases exceeding 20% — could support a finding that IBC's allegation that these differentials represented a permanent commission for new accounts is pretextual. Vickers has also produced evidence that at least one District Sales Manager, Chuck Hubbard ("Hubbard"), was paid a sales commission above and beyond his base salary without regard to his account connections at the time he was hired. Although Hubbard states that he increased account sales, and a jury could reasonably find that IBC's explanation of the pay differential between Hubbard and Vickers reflects a reward for this part of his job performance, the jury could also reasonably conclude that the combination of a base salary differential between Vickers and her male counterparts, and IBC's failure to provide her with any sales-based commissions during her employment, was the result of sex discrimination.
IBC has also presented evidence that differences in her pay began when she was a Sales Supervisor for the year preceding her promotion to the position of District Sales Manager. Vickers avers in her affidavit that "[e]very male supervisor hired, while I was a sales supervisor, was hired at a higher salary than I was." P. App. 7. A jury could reasonably find that this pay differential was the result of a legitimate, nondiscriminatory reason, but could also find that it was motivated by Vickers' sex.
Vickers alleges that after IBC promoted her to District Sales Manager, it discriminated against her based on sex by denying her cellular telephone privileges and requiring that she use a calling card and pay phones to make calls while on the road. "The critical issue, Title VII's text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed." Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 80 (1998) (citation omitted). If women (or in this case, the single female District Sales Manager in Texas) were exclusively denied cellular telephones, even though they had substantially similar job responsibilities as their male counterparts, a jury could reasonably conclude that this was intentional sex discrimination. The fact that IBC finally gave Vickers a cellular telephone after she complained would not absolve it of liability if a jury believed that IBC's initial refusal and delay were motivated because Vickers is female.
IBC argues that such privileges were only given on a case-by-case basis to selected District Sales Managers and that Vickers' sex was not a factor in doing so. It also maintains that during the period when Vickers complained, no new cellular telephone privileges were authorized because the entire company was watching its expenses. While a jury could find this to be true and hold that IBC is not liable, Vickers has adduced affidavit proof that contradicts this account, and avers that IBC provided cellular telephones to all the male District Sales Managers, including those hired after she was. Moreover, a jury could find from the evidence that although "no one" was given new privileges, this policy applied only to Vickers. IBC has not identified any male District Sales Managers in Vickers' region whom IBC denied cellular telephones, and Vickers states on personal knowledge that she alone was denied this privilege. She testifies that she repeatedly complained to the point that her protests became a running joke within the company. Because IBC's financial problems would not justify imposing burdens unevenly on male and female employees, a jury could reasonably believe that IBC relied partly on impermissible reasons in delaying issuance of a cellular telephone to Vickers. A jury could also reasonably find discrimination based on the fact that she alone was denied a cellular telephone.
V
IBC moves for summary judgment dismissing Vickers' EPA-based retaliation claim. For the same reasons explained supra at § III(B), the court holds that there is a genuine issue of material fact whether IBC terminated Vickers' employment for complaining about her compensation.
* * *
The court grants in part and denies in part IBC's motion for summary judgment.
SO ORDERED.