Opinion
Case No. 20-CV-08-SWS
2021-05-19
Dr. Kelly WEIDENBACH, Plaintiff, v. CASPER-NATRONA COUNTY HEALTH DEPARTMENT, Defendant.
Scott J. Olheiser, Olheiser Law Office, Casper, WY, Andrea L. Richard, Richard Law Firm, Jackson, WY, for Plaintiff. Terisa Marie Oomens, Thomas A. Thompson, MacPherson Kelly & Thompson, Rawlins, WY, for Defendant.
Scott J. Olheiser, Olheiser Law Office, Casper, WY, Andrea L. Richard, Richard Law Firm, Jackson, WY, for Plaintiff.
Terisa Marie Oomens, Thomas A. Thompson, MacPherson Kelly & Thompson, Rawlins, WY, for Defendant.
ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Scott W. Skavdahl, United States District Judge
This matter comes before the Court on the Defendant's Motion for Summary Judgment (Doc. 22). Plaintiff filed an opposition to the motion (Docs. 29), and the Court heard oral arguments on the matter on May 14, 2021 (Doc. 31). Having considered the parties’ arguments and reviewed the record herein, the Court finds the motion should be denied as discussed herein.
INTRODUCTION
Dr. Kelly Weidenbach, Plaintiff, worked as the Executive Director of the Casper-Natrona County Health Department from December 2013 until she voluntarily resigned in November 2018. (Compl. ¶¶ 19, 23.) She alleges that during her tenure with the Health Department, she was paid less than her male predecessor in violation of the Equal Pay Act (EPA), for which she now seeks damages. (Compl. ¶¶ 19, 20, 29.) The Health Department contends Dr. Weidenbach's gender never played any role in her pay, and instead there are several non-discriminatory business reasons explaining her compensation.
FACTS
The Court sets forth the following background in conformity with the summary-judgment standard, which requires the Court to construe all facts and reasonable inferences in the light most favorable to the non-moving party. Doe v. Univ. of Denver , 952 F.3d 1182, 1189 (10th Cir. 2020).
The Board of the Health Department enacts rules and regulations to promote public health in Natrona County, Wyoming, and it is tasked with employing the Executive Director for the Health Department. The Executive Director is the day-to-day, hands-on manager of the Health Department, and the Executive Director makes all other employment decisions for the Health Department.
From 1997 to mid-2013, Mr. Robert Harrington served as the Executive Director of the Health Department. (Kinder Aff. ¶¶ 3-5 ; Doc. 28-1.) His starting annual salary in 1997 was $75,000. (Kinder Aff. ¶ 4.) Upon his retirement in July 2013, his annual salary was $124,000. (Id. ¶ 5.) Mr. Harrington apparently "resigned" involuntarily, "under duress" (Weidenbach Aff. ¶ 23 ), after the Board became concerned with his job performance (Waring Depo. 44:4-24 ; Cometto Depo. 74:20-75:21 ) At the time, the Health Department "was in a financial crisis," and it had been suffering from financial difficulty for a time up to that point. (Waring Depo. 46:11-12, 48:16-49:4; see also Weidenbach Depo. 61:23-62:5 .) Despite the Health Department's financial struggles at the time, Mr. Harrington was reportedly "offered a $30,000 severance package" (Weidenbach Aff. ¶ 25), but there is nothing in the record to reflect whether that offer was accepted and paid.
Doc. 23-1.
Doc. 28-15.
Doc. 23-3.
Doc. 23-4.
Doc. 23-2.
In June 2004, the Board voted on and "[a]dopted" a "salary matrix" for the Health Department. (Doc. 28-8.) The salary matrix set forth a "[m]inimum," "[a]verage," and "[m]ax" pay for many or most of the employment positions within the Health Department. (Id. ) It was revised several times over the years, most recently in 2013. (Id. ) The 2013 updates were voted on and "approved" by the Board at its June 2013 meeting. (Doc. 28-7 p. 2.) The salary matrix was intended "to allow the Health Department to continue to be competitive in attracting qualified employees." (Id. ) Relevant here, the salary matrix identifies the position of "Department Director" and lists the "minimum" for the position at $108,000, the "average" at $131,500, and the "max" at $155,000. (Doc. 28-8.)
Dr. Weidenbach was appointed to the Board in June 2013, prior to Mr. Harrington's retirement, but her first Board meeting was not until late July 2013, after Mr. Harrington had left. (Weidenbach Aff. ¶¶ 20, 23, 24.) Dr. Weidenbach applied for the Executive Director position. (Doc. 28-5.) The Board, minus a recused Dr. Weidenbach, formally interviewed her and a male candidate. (Waring Depo. 50:2-51:8.) The Board offered the position only to Dr. Weidenbach at a starting salary of $80,000 per year. (Waring Depo. 51:9-14.) Dr. Weidenbach, knowing what Mr. Harrington had been paid due to her position on the Board, felt the offer "was extremely low" and "was a bit frustrated" by it. (Weidenbach Depo. 41:18-23.) Dr. Weidenbach and the Board engaged in salary negotiations. (Id. 43:18-46:13.) In the end, Dr. Weidenbach accepted the position and signed a one-year contract in December 2013 with the following compensation terms:
• $80,000 starting annual salary, paid monthly
• $2,500 sign-on bonus for starting work on or before December 30, 2013
• 15% annual pay raise after 6 months if certain objectives/expectations were met
• Another 15% raise after 12 months if certain objectives/expectations were met
(Doc. 28-9.) Dr. Weidenbach received the sign-on bonus and the six-month merit increase, which raised her annual salary to $92,000 effective July 2014. (Weidenbach Depo. 50:10-24.) Dr. Weidenbach went on to work as the Executive Director of the Health Department for almost five years, entering several successive one-year contracts. Her next contract appears to have been signed in June 2015 with an annual salary of $105,800 (Doc. 23-3 pp. 66-70), which is 15% greater than the $92,000 she was receiving after the first six months. She resigned from the Executive Director position in November 2018 at an annual salary of $111,160. (Kinder Aff. ¶ 10; see Weidenbach Depo. 98:2-11.) She began working for the Tri-County Health Department in Colorado. (Doc. 23-2 p. 109.)
The Board had 30-40 applicants for the open Executive Director position following Dr. Weidenbach's departure. (Cometto Depo. 76:11-25.) Following several interviews, the Board offered the job to Mr. Lloyd Berentzen, who was the Executive Director of a health department in Utah at the time, at a starting salary of $135,000. (Id. 82:22-83:8; Shickich Depo. 53:24-54:4 .) Mr. Berentzen subsequently declined the offer. (Cometto Depo. 81:12-23.) The Board eventually hired an employee from within the Health Department as the new Executive Director. (Kinder Aff. ¶ 1.)
Doc. 23-7.
Dr. Weidenbach learned how much the Board offered Mr. Berentzen and was displeased with it, stating
I was shocked that the Board chose to offer Mr. Berentzen that salary when they had specifically told me that they couldn't possibly pay me more. In light of this information and my experience while employed there, my gender is the reason that I was paid less for the same position, Executive Director, with the same job duties.
(Weidenbach Aff. ¶ 30.) This lawsuit followed. The Health Department contends gender never played into the equation. Instead, it based Dr. Weidenbach's salary on: (1) her relative lack of managerial experience, (2) the strained financial condition of the Department at the time of her hire, and (3) the salary negotiations in which the parties engaged. Additional facts will be set forth as relevant to the Court's discussion below.
SUMMARY JUDGMENT STANDARD OF REVIEW
"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A dispute is genuine "if there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way," and it is material "if under the substantive law it is essential to the proper disposition of the claim." Becker v. Bateman , 709 F.3d 1019, 1022 (10th Cir. 2013) (internal quotation marks omitted). Testimony or other evidence "grounded on speculation does not suffice to create a genuine issue of material fact to withstand summary judgment." Bones v. Honeywell Int'l, Inc. , 366 F.3d 869, 876 (10th Cir. 2004).
In considering the motion, the Court views the record and all reasonable inferences that might be drawn from it in the light most favorable to the party opposing summary judgment. Dahl v. Charles F. Dahl, M.D., P.C. Defined Ben. Pension Trust , 744 F.3d 623, 628 (10th Cir. 2014). Generally, the moving party has "both the initial burden of production on a motion for summary judgment and the burden of establishing that summary judgment is appropriate as a matter of law." Kannady v. City of Kiowa , 590 F.3d 1161, 1169 (10th Cir. 2010) (quoting Trainor v. Apollo Metal Specialties, Inc. , 318 F.3d 976, 979 (10th Cir. 2002) ). If the moving party carries this initial burden, the nonmoving party may not rest on its pleadings, but must bring forward specific facts showing a genuine dispute for trial as to those dispositive matters for which it carries the burden of proof. Id. (citing Jenkins v. Wood , 81 F.3d 988, 990 (10th Cir. 1996) ).
DISCUSSION
The Equal Pay Act (EPA), 29 U.S.C. § 206(d), is part of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq. "Put simply, the EPA prohibits pay discrimination based on the recipient's sex." Nazinitsky v. INTEGRIS Baptist Med. Ctr., Inc. , 852 Fed.Appx. 365, 367 (10th Cir. 2021) (citing 29 U.S.C. § 206(d) ) (unpublished). In relevant part, the EPA provides:
No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions[.]
29 U.S.C. § 206(d). The Health Department contends it is entitled to summary judgment on Dr. Weidenbach's EPA claim based on (1) the statute of limitations and (2) the merits. Each is considered below.
1. Equal Pay Act Statute of Limitations
The statute of limitations for an EPA claim is found in the Portal-to-Portal Act at 29 U.S.C. § 255(a). Sinclair Auto. Club of Oklahoma, Inc. , 733 F.2d 726, 728-29 (10th Cir. 1984). As pertinent to this case, it states that a claim brought under the FLSA, including a wage discrimination claim brought under the EPA,
may be commenced within two years after the cause of action accrued, and every such action shall be forever barred unless commenced within two years after the cause of action accrued, except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued[.]
1.1 "Accrual" of an Equal Pay Act Claim
The parties present two different interpretations of the applicable statute of limitations. The Health Department says Dr. Weidenbach's wage-discrimination claim "accrued" under the language of the statute in 2013, when she knew she was offered (and being paid) less than her male predecessor for the same Executive Director position. And because she waited until January 2020 to file suit, the two- or three-year limitations period has long expired.
Dr. Weidenbach contends the Lilly Ledbetter Fair Pay Act of 2009 applies and, therefore, the limitations period was reset with each insufficient paycheck. With her last paycheck from the Health Department occurring in November 2018, she filed suit well within the two- or three-year limitations period.
The parties did not identify a Tenth Circuit opinion directly addressing this question, and the Court finds neither party's argument carries the day. The Lilly Ledbetter Fair Pay Act, by its own language, did not amend the statute of limitations applicable to EPA and other FLSA claims ( 29 U.S.C. § 255(a) ). The Ledbetter Act's changes
apply to all claims of discrimination in compensation under title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, title I and section 503 of the Americans with Disability Act of 1990, and sections 501 and 504 of the Rehabilitation Act of 1973 ....
( Pub. L. 111-2, S. 181, Sec. 6 (internal citations omitted).) The Ledbetter Act amended four statutes, none of which is the EPA at 29 U.S.C. § 206(d) or its statute of limitations at 29 U.S.C § 255(a). And this makes logical sense because the Ledbetter case, Ledbetter v. Goodyear Tire & Rubber Co., Inc. , 550 U.S. 618, 127 S.Ct. 2162, 167 L.Ed.2d 982 (2007), which prompted passage of the Ledbetter Act, was itself a Title VII case after Ms. Ledbetter had "abandoned her claim under the Equal Pay Act," id. at 621, 127 S.Ct. 2162. The House Committee Report for the Ledbetter Act "tells us that the Act ‘is designed to be a narrow reversal of the Ledbetter decision, without upsetting any other current law.’ " Almond v. Unified Sch. Dist. No. 501 , 665 F.3d 1174, 1183 (10th Cir. 2011) (quoting H.R.Rep. No. 110-237, at 17 (2007)); see also Washington Cty. v. Gunther , 452 U.S. 161, 175 n.14, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981) ("and the Equal Pay Act, unlike Title VII, has no requirement of filing administrative complaints and awaiting administrative conciliation efforts").
Congress certainly could have amended the EPA or its statute of limitations as part of the Ledbetter Act, and this Court is charged with enforcing Congress’ decision not to change how those statutes functioned. The Ledbetter Act has no effect on or application to this case.
The Health Department's argument that Dr. Weidenbach's wage-discrimination claim "accrued" in 2013 with her hire is a more direct application of § 255(a) ’s language and prior Tenth Circuit and U.S. Supreme Court decisions. Both courts have determined a federal statute of limitations "starts running when the plaintiff first knew or should have known of his injury." Almond , 665 F.3d at 1176 (citing United States v. Kubrick , 444 U.S. 111, 122, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979), and Rotella v. Wood , 528 U.S. 549, 555-56, 120 S.Ct. 1075, 145 L.Ed.2d 1047 (2000) ). In the employment discrimination context, "this rule generally means that a claim accrues when the disputed employment practice—the demotion, transfer, firing, refusal to hire, or the like—is first announced to the plaintiff." Id. at 1177 (citing Del. State Coll. V. Ricks , 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980), and Haynes v. Level 3 Commc'ns, LLC , 456 F.3d 1215, 1222 (10th Cir. 2006) ). Applied here, the statute of limitations for Dr. Weidenbach's EPA claim would have commenced running no later than December 2013 and expired no later than December 2016, long before she filed this lawsuit. See Axelrod v. Board of Regents of Univ. of New Mexico , No. 18CV427 KG/GBW, 2018 WL 4773404, at *3 (D.N.M. Oct. 3, 2018) (unpublished).
Not quite so fast, though. Many courts have said that under the FLSA in general and/or the Equal Pay Act in particular, "a claim accrues every time an allegedly insufficient paycheck is issued." Jordan v. United States , 122 Fed. Cl. 230, 239 (2015) ; Arnold v. Schlumberger Tech. Corp. , No. 10CV346 MCA/LAM, 2010 WL 9007208, at *7 (D.N.M. Oct. 29, 2010) ("Federal courts to have considered the issue of accrual under the FLSA have consistently and uniformly held that ‘[a] cause of action is deemed to accrue, as a general rule, at each regular payday immediately following the work period during which the services were rendered for which the wage or overtime compensation is claimed.’ ") (collecting cases). The Tenth Circuit has similarly stated:
The Equal Pay Act is violated when an employer discriminates "between employees on the basis of sex by paying wages to employees ... at a rate less than the rate at which he pays wages to employees of the opposite sex ... for equal work." 29 U.S.C. § 206(d)(1). A violation of the Act thus occurs at the time the discriminatorily low wage is paid to the disfavored employee.
Kenworthy v. Conoco, Inc. , 979 F.2d 1462, 1467 (10th Cir. 1992) (emphasis added).
The Court finds no reason this published Tenth Circuit authority is not applicable here. Therefore, an EPA claim "accrued" with every allegedly insufficient paycheck Dr. Weidenbach received from the Health Department. As she filed suit within two years of her final paycheck, her case is not time-barred. See Keller v. Crown Cork & Seal USA, Inc. , No. 10-CV-0246-J, 2011 WL 13177281, at *6 (D. Wyo. Aug. 30, 2011) (unpublished) ("In this case, the statute of limitations began to run on June 9, 2008, the date on which the alleged continuing violation of the EPA ceased."), aff'd , 491 F. App'x 908 (10th Cir. 2012) (unpublished); Moten v. Am. Linen Supply Co. , No. 93-4189-SAC, 1995 WL 106340, at *7 (D. Kan. Jan. 24, 1995) (unpublished) ("It does not matter that the plaintiff's promotion and replacement of her male predecessor occurred outside the limitations period, for the relevant question is whether the plaintiff was paid less on account of her sex anytime within the limitations period.").
Significantly, though, Dr. Weidenbach is prohibited by law from claiming EPA damages beyond the applicable limitations period. "Under the applicable statute of limitations, 29 U.S.C. § 255(a), an employee may recover unpaid wages for up to three years before the filing of suit if the violation was willful but only for two years otherwise." Sinclair v. Auto. Club of Oklahoma, Inc. , 733 F.2d 726, 729 (10th Cir. 1984) ; see Moten , 1995 WL 106340, at *7 n.2 ("Since a separate cause of action accrues with each unequal payment, the plaintiff is actually seeking to recover damages only for violations that occurred within the limitations period."). Having filed this lawsuit on January 27, 2020 (Doc. 1), Dr. Weidenbach may recover damages for unequal pay back to January 27, 2017, if she proves a willful EPA violation, or back to January 27, 2018, otherwise. See Santiago v. United States , 107 Fed. Cl. 154, 159 (2012) ("As a consequence, a claim arising from a pay check issued more than two years before a suit is brought (or more than three years if the defendant's violation is willful) will be time-barred under 29 U.S.C. § 255(a).").
1.2 Willfulness
The obvious next question becomes whether there is evidence to suggest the Health Department's alleged wage discrimination was "willful" such that the three-year statute of limitations applies. The U.S. Supreme Court has explained that "willful" in this statute means "that the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute." McLaughlin v. Richland Shoe Co. , 486 U.S. 128, 133, 108 S.Ct. 1677, 100 L.Ed.2d 115 (1988) ; see also Mumby v. Pure Energy Servs. (USA), Inc. , 636 F.3d 1266, 1270 (10th Cir. 2011) ("To fall under the three-year limitation, the plaintiff must show that ‘the employer either knew or showed reckless disregard for the matter of whether its conduct violated the statute.’ "). Whether an EPA violation was willful is a mixed question of law and fact, with the factual issues generally predominating. Pabst v. Oklahoma Gas & Elec. Co. , 228 F.3d 1128, 1137 (10th Cir. 2000).
"The employee bears the burden of proving that the employer acted willfully." Fowler v. Incor , 279 F. App'x 590, 600 (10th Cir. 2008) (unpublished) (citing McLaughlin , 486 U.S. at 135, 108 S.Ct. 1677 ). Thus, at this summary-judgment stage, it is Dr. Weidenbach's burden to put forth evidence, viewed in the light most favorable to her, sufficient to create a genuine dispute of material fact as to whether the Health Department either "knew" its conduct violated the EPA "or showed reckless disregard for the matter of whether its conduct was prohibited by" the EPA. See id. at 602 (quoting McLaughlin , 486 U.S. at 133, 108 S.Ct. 1677 ).
Dr. Weidenbach has not carried her burden at this summary-judgment stage of identifying evidence that would suggest any EPA violation was "willful." First, Dr. Weidenbach's summary-judgment brief did not discuss or set forth evidence that might support a finding of willfulness. (See Doc. 29.) The crux of the Health Department's summary-judgment motion is that Dr. Weidenbach "lacks sufficient evidence to establish a prima facie case." (Doc. 23 p. 7.) When a dearth of evidence is identified by the summary-judgment movant, it becomes the non-movant's burden to identify a genuine dispute of material fact precluding summary judgment. Adler v. Wal-Mart Stores, Inc. , 144 F.3d 664, 671 (10th Cir. 1998) (when the movant will not bear the burden of persuasion at trial, the movant may carry its initial summary-judgment burden "by pointing out to the court a lack of evidence for the nonmovant on an essential element of the nonmovant's claim"). Here, the law is clear that the employee has an affirmative duty of showing a willful violation of the EPA if the three-year statute of limitations is desired. Yet her only mention of a willful violation in her brief was as follows: "And if the jury finds a willful violation (which we believe it will given the evidence in this case), Dr. Weidenbach had three years or until November 8, 2021, to file her claim." (Doc. 29 p. 12.) This falls well short of identifying a genuine dispute of material fact concerning willfulness.
Even looking beyond Dr. Weidenbach's lack of cogent argument on the matter, though, the evidence in the record, viewed in the light most favorable to the plaintiff, does not allow a reasonable jury to find a willful violation of the EPA. Dr. Weidenbach agreed in her deposition that there is no direct evidence suggesting the Board knew or believed it was violating the EPA by offering and paying her what it did. (Weidenbach Depo. 52:16-24, 53:3-8, 54:24-55:11.) She expressly stated she "believe[d] what [she] experienced was discrimination via implicit bias " (id. 54:3-4 (emphasis added)), thus suggesting a complete lack of conscious knowledge or intent on the Board's part. The deposition of Dr. Jessi Waring, a member of the Board at the time, likewise confirms the lack of a knowing violation. (Waring Depo. 70:19-71:15 ("Because I was very much involved with the hiring of Dr. Weidenbach, and at no time was gender discussed, was it considered, or was it brought up as an issue during contract negotiations or after employment.").) Dr. Weidenbach has not identified any basis for a jury to find the Health Department (acting through its Board) knowingly violated the EPA with respect to her pay.
The evidence also shows the Health Department did not recklessly disregard whether its conduct violated the EPA. Dr. Weidenbach's employment contract was reviewed and signed by the local County Attorney's Office. (Doc. 28-9 p. 4; Waring Depo. 59:21-60:5.) "Although consultation with an attorney may help prove that an employer lacked willfulness, such a consultation is, by itself, insufficient to require a finding in favor of the employer." Mumby , 636 F.3d at 1270. In this case, though, there is more. An email from Mike Cometto to Drs. Jessi Waring and Gail Mahnke (all board members at the time) questioned starting Dr. Weidenbach's salary so low compared to the salary matrix, but he was concerned about it because "she might refuse the offer since we are so short;" there is nothing to suggest it was a gender or discrimination concern. (Doc. 28-6.) And in response, Dr. Waring noted that they had since requested the deputy county attorney put into the contract the merit-based, six- and twelve-month pay raises to make the compensation offer more financially attractive. (Id. )
Dr. Weidenbach has not come forth with specific evidence sufficient to create a genuine dispute of material fact as to whether the Health Department either "knew" its conduct violated the EPA "or showed reckless disregard for the matter of whether its conduct was prohibited by" the EPA. And the Court's own review of the record evidence reveals nothing to suggest the Board knew or recklessly disregarded a risk that it was violating the EPA as to Dr. Weidenbach. Accordingly, the applicable statute of limitations in this case is two years under 29 U.S.C. § 255(a). The relevant time period is, therefore, January 27, 2018, to January 27, 2020, which "is also the relevant period when calculating damages." Lee v. Salazar , 787 F. Supp. 2d 1267, 1285 (D. Utah 2011) ; see Miller v. Kansas Power & Light Co. , 585 F. Supp. 1509, 1514–15 (D. Kan. 1984) ("Because the [EPA] violation was not willful, plaintiff is entitled to recover back pay for the period beginning two years prior to the commencement of this lawsuit.").
1.3 Dr. Wiedenbach is not limited to a "comparator" during the statute of limitations period.
The Health Department contends, "In this instance for purposes of the applicable statute of limitations the Plaintiff is only permitted to compare her salary to that of a male who was earning a higher salary within the two year period prior to filing her Complaint[.]" (Doc. 23 p. 10.) It argues that since her male comparator, Mr. Robert Harrington (her predecessor) resigned several years earlier, Dr. Weidenbach cannot prove her claim because she has no comparator within the applicable timeframe. (Doc. 23 pp. 9-11.)
The Health Department's argument does not win the day. "The law is clear that an Equal Pay Act violation may be established even though employees whose pay is the subject of comparison perform substantially equal work at different times." Kenworthy v. Conoco, Inc. , 979 F.2d 1462, 1467 (10th Cir. 1992) (collecting cases). Though addressing a release of claims rather than the statute of limitations, Kenworthy's discussion explains why Dr. Weidenbach is not limited to relying on a comparator (or other evidence) from the limitations period.
A violation of the Act thus occurs at the time the discriminatorily low wage is paid to the disfavored employee. The release Ms. Kenworthy signed states in pertinent part that "Patricia J. Kenworthy does hereby release and relinquish any and all claims, actions, and causes of action which she has or might have in connection with the terms and conditions of her employment with Conoco up to the date of this Release." Pl. ex. 4. The plain language of the release bars only equal pay claims that had accrued prior to the date the release was executed. Accordingly, even though Ms. Kenworthy could not recover for discriminatory wages she received before 1981, the jury could properly consider whether Conoco violated the Act after 1981 on the
basis of Ms. Kenworthy's wages and work after that date compared to Sanders’ wages and work before 1981 . Allowing Ms. Kenworthy to recover for any pay differential she suffered after the settlement does not defeat her release of claims based on work she performed before that date.... The court could not and did not prohibit the jury from comparing Sanders’ pre–1981 work with work Ms. Kenworthy performed after that date to determine whether her post–1981 wages constituted a violation of the Act.
Id. at 1467–68. "The limitations period operates as a remedy bar rather than an evidentiary bar. This means the plaintiff may submit evidence of male comparators outside of the limitations period." Moten , 1995 WL 106340, at *7 n.3 (citations omitted); see also Brinkley-Obu v. Hughes Training, Inc. , 36 F.3d 336, 346 (4th Cir. 1994) ("Statutes of limitations do not operate as an evidentiary bar controlling the evidence admissible at the trial of a timely-filed cause of action. In other words, the statute of limitations does not operate to limit the evidence Brinkley–Obu may introduce regarding her co-workers. In the context of the Equal Pay Act, the statute of limitations does not dictate which co-workers the plaintiff may submit as comparators.").
Dr. Weidenbach may use her predecessor, Mr. Robert Harrington, as the comparator for proving her EPA claim even though Mr. Harrington's employment with the Health Department ended prior to the applicable statute of limitations period. The Health Department's reliance on a footnote in an unpublished Eleventh Circuit case for the contrary proposition (Doc. 23 p. 10 (citing Slattery v. Precision Response Corp. , 167 F. App'x 139, 141, 142 n.1 (11th Cir. 2006) )) does not overcome the Tenth Circuit's direct statement that "an Equal Pay Act violation may be established even though employees whose pay is the subject of comparison perform substantially equal work at different times." Kenworthy , 979 F.2d at 1267.
Dr. Weidenbach testified in her deposition that Mr. Harrington is the only comparator she is using to prove her EPA claim. (Weidenbach Depo. 87:10-13.)
2. Merits of the Equal Pay Act Claim
The Court now turns to whether the Health Department is entitled to summary judgment on the merits of the case.
"EPA claims proceed in two steps. First, the plaintiff must establish a prima facie case of discrimination by demonstrating that employees of the opposite sex were paid differently for performing substantially equal work." Mickelson v. New York Life Ins. Co. , 460 F.3d 1304, 1311 (10th Cir. 2006).
To establish a prima facie case of pay discrimination under the EPA, a [female] plaintiff must demonstrate that: (1) she was performing work which was substantially equal to that of the male employees considering the skills, duties, supervision, effort and responsibilities of the jobs; (2) the conditions where the work was performed were basically the same; [and] (3) the male employees were paid more under such circumstances.
Riser v. QEP Energy , 776 F.3d 1191, 1196 (10th Cir. 2015) (citation and internal quotation marks omitted).
If the plaintiff succeeds in establishing a prima facie case of wage discrimination, the burden of persuasion then shifts to the defendant to prove that the wage disparity was justified by one of four permissible reasons. Tidwell v. Fort Howard Corp. , 989 F.2d 406, 409 (10th Cir. 1993). "These reasons are: (1) a seniority system; (2) a merit system; (3)
a pay system based on quantity or quality of output; (4) a disparity based on any factor other than sex." Id. (citing 29 U.S.C. § 206(d)(1) ).
Mickelson , 460 F.3d at 1311. "[B]ecause the employer's burden in an EPA claim is one of ultimate persuasion, ‘in order to prevail at the summary judgment stage, the employer must prove at least one affirmative defense so clearly that no rational jury could find to the contrary.’ " Id. (quoting Stanziale v. Jargowsky , 200 F.3d 101, 107 (3rd Cir. 2000) ). "To meet this burden, an employer must ‘submit evidence from which a reasonable factfinder could conclude not merely that the employer's proffered reasons could explain the wage disparity, but that the proffered reasons do in fact explain the wage disparity.’ " Riser , 776 F.3d at 1198 (quoting Mickelson , 460 F.3d at 1312 ).
The Health Department confirmed at oral argument that it is not challenging Dr. Weidenbach's prima facie case for summary-judgment purposes. Therefore, the burden is on the Health Department to prove an affirmative defense so clearly that no rational jury could find a violation of the EPA. The Health Department relies only on the fourth statutory defense—a disparity based on any factor other than sex. It argues four non-gender reasons support its decision to pay Dr. Weidenbach less than her predecessor: (1) Dr. Weidenbach's relative lack of managerial experience, (2) the financial distress of the Health Department at the time of Dr. Weidenbach's hire, (3) the negotiations resulting in Dr. Weidenbach's employment contract, and (4) the Health Department's non-use of the "salary matrix." (Doc. 23 pp. 13-20.) Having reviewed the evidence submitted in the light most favorable to the non-movant, the Court finds genuine disputes of material fact exist as to whether any factor other than sex explains Dr. Weidenbach's lower pay.
2.1 Lack of Managerial Experience and Non-Reliance on Salary Matrix
The evidence supports the Health Department's assertion that the Board was concerned about Dr. Weidenbach's relative lack of managerial experience at the time of her hire. Prior to taking the Executive Director position, Dr. Weidenbach never supervised more than five to six people at a time, nor provided more than one employee performance review. (Weidenbach Depo. 24:4-25:5.) The Health Department employs, and its Executive Director must manage, 30 to 50 employees. (Kinder Aff. ¶ 2.) During the interview process, the Board also expressed concerns to Dr. Weidenbach about her relative lack of management experience. (Weidenbach Depo. 48:5-49:4.) The three Board members in charge of hiring Dr. Weidenbach uniformly testified that this was one of their primary concerns with hiring her for the position. (Waring Depo. 52:11-17, 66:9-21, 81:21-82:17; Cometto Depo. 62:8-21; Mahnke Depo. 20:19-21:1.) In contrast, at the time of his departure, Mr. Harrington had been managing the Health Department for about 16 years, where he started at an annual salary of $75,000 (slightly less than Dr. Weidenbach's starting salary of $80,000). (Kinder Aff. ¶¶ 3-4.) "Indeed, an employee's prior experience is a factor ‘other than sex’ for purposes of the Equal Pay Act." Mickelson v. New York Life Ins. Co. , 460 F.3d 1304, 1312 (10th Cir. 2006).
The Health Department's argument about Dr. Weidenbach's lack of managerial experience appears strong. Nonetheless, the Court cannot say it is so strong "that no rational jury could find to the contrary." The Board's "approval" of the salary matrix, through motion and voting, just a few months earlier (Doc. 28-7 p. 2) undercuts the Health Department's position. The salary matrix identified the Executive Director's "[m]inimum" as $108,000 (Doc. 28-8), yet the Board offered Dr. Weidenbach $28,000 less when hiring her. Even after receiving her six-month and twelve-month merit increases, Dr. Weidenbach remained beneath the salary matrix's "minimum."
The Health Department's argument that the salary matrix was treated only as a "guideline" and was not followed as a policy (Doc. 23 pp. 19-20) is not infallible and may even cut against it. First, the salary matrix was approved by the Board through motion, which is the same procedure used to adopt policy. Second, Mr. Harrington's salary at the time of his departure ($124,000) rested well within the salary matrix. A reasonable jury could find the Board's failure to follow the salary matrix as to Dr. Weidenbach was based at least in part on her gender. A jury could reasonably question why a salary matrix had recently been "approved" by the Board and then immediately ignored while negotiating with Dr. Weidenbach. Therefore, a genuine dispute of material fact exists concerning the Health Department's stated reason of paying Dr. Weidenbach less than her predecessor due to her relative lack of managerial experience, which should be decided by a jury.
2.2 Health Department's Financial Distress
The Health Department also argues its financial distress limited what the Board could offer the new Executive Director. The parties agree the Health Department was financially unsound at the time of Mr. Harrington's departure and Dr. Weidenbach's hire. (Weidenbach Depo. 60:17-62:5; see also Doc. 28-7 p. 2 (Health Department's financial report for April 30, 2013 showed expenditures exceeded revenue by $323,011.99).) Dr. Waring testified the Health Department's "budget crisis" was a consideration when the Board was determining Dr. Weidenbach's pay. (Waring Depo. 79:19-80:5.)
Other evidence undercuts this reasoning, though. Dr. Weidenbach asserts under oath that "Mr. Harrington was being offered a $30,000 severance package." (Weidenbach Aff. ¶ 25.) Additionally, it appears Mr. Harrington's contract was renewed in June 2013 at an annual salary of $124,000 (Doc. 28-4 p. 2), which was only a month before his departure and a few months before Dr. Weidenbach was hired (Kinder Aff. ¶¶ 5-6). Considering the negative ramifications these actions would have had on the Health Department's budget at the time, a reasonable jury could conclude the Board's decision about Dr. Weidenbach's salary was motivated very little by the Health Department's financial strength or weakness.
2.3 Dr. Weidenbach's Participation in Contract Negotiations
Dr. Weidenbach actively engaged the Board in negotiating her initial employment contract. (Weidenbach Depo. 43:18-46-13.) Wage negotiations can be a proper consideration in an EPA claim, but the Health Department's reliance on Dr. Weidenbach's participation in contract negotiations turns the normal argument on its head. Generally, when contract negotiations are considered a "factor other than sex," it is where the higher-paid opposite-sex employee (the comparator) had negotiated a higher salary, not where the plaintiff negotiated a lower salary. "[A] company's decision to pay an elevated salary to an applicant after he rejected a lower offer can constitute a factor other than sex." Riser v. QEP Energy , 776 F.3d 1191, 1199 (10th Cir. 2015) ; see also Clayton v. Vanguard Car Rental U.S.A., Inc. , 761 F. Supp. 2d 1210, 1274 (D.N.M. 2010) ("This evidence shows that Kennedy's base salary was higher than Clayton's, because [Kennedy] rejected Vanguard's initial offers of lesser salaries and not because he was male. The disparity between the base salary rates was based on a factor other than sex.").
"In general, the mere existence of a wage agreement cannot be considered a ‘factor other than sex’ if the contract perpetuates pay differentials which would themselves violate the Act." Anderson v. Univ. of N. Iowa , 779 F.2d 441, 444 (8th Cir. 1985). The Health Department's argument that Dr. Weidenbach's contract negotiations are an affirmative defense to her EPA claim is unpersuasive. A reasonable jury is unlikely to find Dr. Weidenbach's participation in contract negotiations excuses or explains the difference in wages between her and her predecessor. At a minimum, a genuine dispute of material fact exists surrounding this asserted basis for wage disparity.
CONCLUSION AND ORDER
Dr. Weidenbach's Equal Pay Act claim was filed in a timely manner and is not barred by the statute of limitations. Dr. Weidenbach has not carried her summary-judgment burden of showing a genuine dispute of material fact to suggest any EPA violation was willful, which means the two-year limitations period of 29 U.S.C. § 255(a) will apply to this case. The statute of limitations functions as a remedy limitation, and therefore January 27, 2018, to January 27, 2020, is the relevant period when calculating any damages. Finally, the Health Department has not carried its summary-judgment burden of proving Dr. Weidenbach's pay disparity was due to any factor other than sex so clearly that no rational jury could find to the contrary.
IT IS THEREFORE ORDERED that Defendant's Motion for Summary Judgment (Doc. 22) is DENIED .