Opinion
No. 4:00-CV-16
February 7, 2002
MEMORANDUM
Plaintiff Shirley K. Woods brings this action against defendant The University of the South ("University"), her former employer. Woods claims that the University violated Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), 42 U.S.C. § 2000e-2000e-17, and the Equal Pay Act ("EPA"), 29 U.S.C. § 206(d), by paying her a lower salary than a similarly situated male employee. She also claims that the University retaliated against her for protecting her rights under those statutes. (Court Files No. 1, 16). Presently before the Court is the University's motion for summary judgment. (Court File No. 20). For the following reasons, this motion shall be GRANTED IN PART AND DENIED IN PART. The motion shall be GRANTED with respect to plaintiff's claim of wage discrimination under Title VII and DENIED with respect to plaintiff's EPA claim and claims of retaliation under Title VII and the EPA.
I. Standard of Review
FED. R. CIV. P. 56(c) provides that summary judgment will be rendered if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. The burden is on the moving party to conclusively show that no genuine issue of material fact exists, and the Court must view the facts and all inferences to be drawn therefrom in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Morris v. Crete Carrier Corp., 105 F.3d 279, 280-81 (6th Cir. 1997); White v. Turfway Park Racing Ass'n, Inc., 909 F.2d 941, 943 (6th Cir. 1990); 60 Ivy Street Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir. 1987).
Once the moving party presents evidence sufficient to support a motion under Rule 56, the nonmoving party is not entitled to a trial merely on the basis of allegations. The nonmoving party is required to come forward with some significant probative evidence which makes it necessary to resolve the factual dispute at trial. Celotex Corp. v. Catrett, 477 U.S. 317 (1986); White, 909 F.2d at 943-44; 60 Ivy Street, 822 F.2d at 1435. The moving party is entitled to summary judgment if the nonmoving party fails to make a sufficient showing on an essential element of the nonmoving party's case with respect to which the nonmoving party has the burden of proof Celotex, 477 U.S. at 323; Collyer v. Darling, 98 F.3d 211, 220 (6th Cir. 1996).
The judge's function at the point of summary judgment is limited to determining whether sufficient evidence has been presented to make the issue of fact a proper jury question, and not to weigh the evidence, judge the credibility of witnesses, and determine the truth of the matter. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); 60 Ivy Street, 822 F.2d at 1435-36. The standard for summary judgment mirrors the standard for directed verdict. The Court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52; see also Lapeer County, Mich. v. Montgomery County, Ohio, 108 F.3d 74, 78 (6th Cir. 1997). There must be some probative evidence from which the jury could reasonably find for the nonmoving party. Anderson, 477 U.S. at 252; Bailey v. Floyd County Bd. of Educ., 106 F.3d 135, 140 (6th Cir. 1997). If the Court concludes that a fair-minded jury could not return a verdict in favor of the nonmoving party based on the evidence presented, it may enter a summary judgment. Anderson, 477 U.S. at 251-52; University of Cincinnati v. Arkwright Mut. Ins. Co., 51 F.3d 1277, 1280 (6th Cir. 1995); LaPointe v. UAW, Local 600, 8 F.3d 376, 378 (6th Cir. 1993).
II. Facts
There are several disputed facts in this case, and the parties have very different views on what occurred during the relevant time period. For purposes of ruling on defendant's motion for summary judgment, this Court must view the facts in the light most favorable to plaintiff Woods. All of the following factual findings have been made solely for purposes of summary judgment with the plaintiff's interpretation of the facts credited wherever they are supported by proof in the record.
Woods was hired by the University on March 23, 1998. At that time, she worked for the University as a part-time office assistant in the office of print services. Woods' duties included calculating the expenses of a printing job, billing, general word processing, and some filing of documents. She earned $7.05 per hour.
Shortly after commencing employment with the University, Woods was approached by Stevens Anderson, the University's registrar. Anderson asked Woods if she was interested in working for the registrar's office as a frill-time assistant. Woods applied for the position and was hired by letter dated June 15, 1998. Upon commencing this position, plaintiff received a raise to $8.23 per hour.
Woods' duties as the registrar's assistant included data entry, creating an identification and computer files for incoming students, maintaining existing files, updating information, filing, issuing transcripts, and working on student loan proposals. She had two students, who were involved in the University's work study program, under her supervision. During this time, Anderson was responsible for keeping track of enrollment; making sure the enrollment count was accurate; developing class schedules; working on enrollment projections and budgets; coordinating the registration of students; making policy determinations; evaluating transcripts; and handling information released to the public.
Sometime during the end of 1998, Anderson informed Woods that he was considering a transfer to another position with the University. Beginning at that time, Woods "took it upon herself" to learn more about the registrar's job. Woods contends that Anderson told her that she had the "right kinds of experience and the right kind of intelligence" to perform that job. (Court File No. 23, Woods depo., p. 70). During the following six week period, Anderson trained Woods to evaluate transcripts, keep track of enrollment, produce the Regents' reports with statistical information for the semester, and complete reports for other departments and outside agencies.
On or about September 8, 1998, Fred Croom, the University provost, approached Woods. He asked her to manage the registrar's office following Anderson's departure. Plaintiff agreed to take the job, although she had some concerns about salary and rank while managing the office. She indicated that she was willing to accept the position for additional compensation. After some negotiation, plaintiff begrudgingly accepted the University's offer of $12.00 an hour as her compensation.
According to Woods, Croom advised her that she would be responsible for the day-to-day operation of the registrar's office. He informed Woods that he would be responsible for a few things, including institutional research functions, preparation of reports, evaluation of transfer credit, and enrollment projections and planning. He also took responsibility for evaluating transcripts, although Woods testified that she had to redo about ten transcripts because Croom had not done them properly. Woods described her duties as including "[d]ecision-making in the sense that I had to be aware of the policy and procedure, decide what applied where and when, and how to apply it, how to enforce the policy and procedure." (Woods depo., p. 110). For example, plaintiff made decisions about whether a class could be opened up for more students. It is undisputed that plaintiff never received a written job description.
Sometime during December 1998, Croom proposed to Woods that she be named the "assistant registrar" at an annual salary of $25,000. Woods told Croom that his salary offer was about ten thousand dollars less than what Anderson had been paid when he entered the registrar's office as an assistant in 1993. Croom increased the salary offer to $27,000 annually, which plaintiff accepted. She was then named "associate registrar." Woods continued to manage the day-to-day functions of the registrar through July 1998. She handled the registrar's duties in the academic procession at the University's graduation ceremony and presented honorary degrees at the opening of convocation.
Apparently Anderson worked as an assistant registrar, and then as an interim registrar, before accepting the position of registrar.
The University hired Paul Wiley as the new registrar on July 1, 1998. Woods filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on May 24, 1999.
Woods worked part-time in the kitchen of the University's school of theology during the fall semester of 2000. When classes commenced for the semester, her work was discontinued.
In January 2001, Woods contacted Cindy Sherrill, who Woods describes as the administrative director of the school of theology. Woods expressed her desire to continue working in the University's kitchen. Woods indicated that she was available to work more hours than she had during the fall semester, depending upon her child care arrangements. After speaking to Sherrill, Woods spoke with Mary Turner, who was "more visibly responsible" for employing and supervising kitchen staff, about continued employment in the kitchen. Turner informed plaintiff that she would not be hired for the spring semester of 2001 because "the school of theology would only be hiring either seminary students or spouses." (Woods depo., p. 230). In March 2001, plaintiff learned that Sherrill's sister, who had no connection to the seminary, had been hired to work part-time in the kitchen.
Woods offers her own deposition testimony, which is controverted by defendant, that sometime during May 2001, while she was in the school of theology, she was approached by a local caterer, Jayne Bartha. Bartha told Woods that upon seeing Woods in the kitchen, Sherrill asked Andras Bartha, the University chef, "[w]hat's S.K. doing here?" Bartha also told Woods that Turner had previously said, "[w]e can't hire S.K." Bartha explained that the reason for Sherrill and Turner's comments was the lawsuit Woods had already filed against the University.
III. Analysis A. Equal Pay Act
The University first argues that Woods cannot establish a prima facie case under the Equal Pay Act. To establish a prima facie case, Woods must demonstrate that the University paid a higher salary to a member of the opposite sex for substantially equal work. Kovacevich v. Kent State Univ., 224 F.3d 806, 826 (6th Cir. 2000); Timmer v. Michigan Dep't of Commerce, 104 F.3d 833, 843 (6th Cir. 1997). "`Equal work' does not require that the jobs be identical, but only that there exist substantial equality of skill, effort, responsibility, and working conditions." Kovacevich, 224 F.3d at 826 (quotations omitted).
Defendant argues that Woods cannot make out a prima facie case under the EPA because plaintiff, as assistant registrar, did not perform work substantially equal to that performed by Stevens Anderson when he was the assistant registrar. According to the University, Anderson, as assistant registrar, worked with the registrar and "shar[ed] his duties almost from the beginning." (Court File No. 21, p. 9). For example, Anderson was involved with the registrar in evaluating transcripts and planning enrollment and class schedules.
However, the record contains proof sufficient to raise a genuine issue of material fact as to whether Woods and Anderson performed similar duties when working as the assistant registrar. Proof in the record demonstrates that plaintiff's duties as assistant registrar included control over the day-to-day operations of the registrar's office. Although Croom retained some of the more sophisticated duties, his supervision of Woods was not extensive. Woods testified that her duties involved the interpretation and implementation of policies and procedures of the registrar's office. She made discretionary decisions such as determining whether classes should be open for additional students. She also redid some of Croom's work by re-evaluating transcripts. This testimony was not refuted for purposes of summary judgment.
The University also argues that Woods cannot establish a EPA prima facie case because her skills were not equivalent to Anderson, since he had a more impressive work history. However, this argument misinterprets the elements of plaintiff's prima facie case. Woods does not have to demonstrate that her overall skills and work history were as developed as those of Anderson. She need only demonstrate that she was performing work that required substantially equal skill, effort, and responsibility. The arguments that Anderson's work history was more impressive than Woods' history and that Anderson's prior salary exceeded Wood's prior salary is not relevant to plaintiff's prima facie case. Those arguments are relevant to defendant's affirmative defense.
Finally, the University argues that plaintiff's working conditions were not substantially similar to those of Anderson. To support this argument, the University explains that Anderson was hired as the assistant registrar with the expectation that he would eventually become the registrar. In contrast, the University never anticipated that Woods would become the registrar. The Court finds this argument ineffectual. The University's intentions with respect to these individuals may be relevant to defendant's affirmative defense. However, the fact remains that plaintiff has provided proof that the actual day-to-day working conditions were substantially similar. Anderson worked with some discretion but reported to the registrar. Woods performed similar tasks with some discretion but was overseen by Croom. The Court finds that Woods has sustained her summary judgment burden with respect to her prima facie case under the EPA.
Under the framework for evaluating an EPA claim, defendants can still succeed by conclusively establishing that the wage disparity between Woods and Anderson was based upon a factor other than sex. The defendant bears the burden of proof with respect to this affirmative defense. Kovacevich v. Kent State Univ., 224 F.3d 806, 826-27 (6th Cir. 2000); Buntin v. Breathitt County Bd. of Educ., 134 F.3d 796, 799-800 (6th Cir. 1998); Timmer, 104 F.3d at 843. That burden is a heavy one, which is difficult to carry at the summary judgment stage. Kovacevich, 224 F.3d at 826. "As the party who bears the burden of persuasion, the defendant who makes a motion [for summary judgment] must demonstrate that there is no genuine issue as to whether the difference in pay is due to a factor other than sex." Buntin, 134 F.3d at 799-800.
The Court cannot find, viewing the record evidence in the light most favorable to plaintiff, that defendant has proved its affirmative defense so that no rational jury could find to the contrary. See Buntin, 134 F.3d at 800. The University contends that the difference in pay between Woods and Anderson was due to Anderson's prior experience and salary. The Court agrees that a good faith determination that one candidate should be paid more money in light of prior experience is a legitimate reason for a pay differential between members of different sexes. However, although it is an extremely close question, the Court cannot say that viewing the record in the light most favorable to plaintiff, defendant has conclusively proved its affirmative defense.
Woods has presented an extensive description of her job history and responsibilities prior to commencing employment with the University. The Court will not describe them all here, but viewed in the light most favorable to plaintiff, her position as the full-time assistant director for the Valentine Museum provided her with experience in managing, planning, and implementing different programs; creating and maintaining budgets; hiring, firing, and supervising other employees; working in public relations and appearing on radio and television in that capacity; and serving as an acting director in the director's absence. Accepting these facts as true, a jury could find that Woods had prior job experience similar to that of Anderson.
Furthermore, a factfinder can credit evidence contained in the plaintiff's prima facie case in making the ultimate decision of whether a defendant violated the EPA. Even in light of a strong factual defense, as the University has presented in this case, a jury could decide not to credit the testimony supporting it. In this case, a jury could choose to credit proof that Woods and Anderson performed similar work for different wages, while discrediting testimony that the reason for Woods' subsequent lower salary was based upon Anderson's prior experience. Arguably, a jury could believe that Woods' similar experience entitled her to pay equal to her predecessor. The Court will not dismiss Woods' EPA claim.
B. Title VII
Woods also raises a claim that she was discriminated against because of her sex in violation of Title VII. The facts supporting Woods' Title VII claim are identical to those supporting her EPA claim. However, the burden-shifting framework for resolving a Title VII claim varies from the burden-shifting paradigm of an EPA case. Therefore, the Court will apply a different analysis to plaintiff's Title VII claim.
Under Title VII, a plaintiff can prove her case by using direct evidence or circumstantial evidence sufficient to establish an inference of discrimination. Newman v. Federal Express Corp., ___ F.3d ___, 2001 WL 1134968 (6th Cir. June 14, 2001). An inference of discrimination can be raised through a prima facie case, by demonstrating (1) the plaintiff was a member of a protected class; (2) she was qualified for the relevant position; (3) she suffered an adverse employment action; and (4) a similarly-situated, non-protected individual was treated more favorably. Gray v. Toshiba Am. Consumer Prods., Inc., 263 F.3d 595, 598 (6th Cir. 2001); Logan v. Denny's, Inc., 259 F.3d 558, 567 (6th Cir. 2001). If the plaintiff establishes a prima facie case, the burden of production shifts to the defendant to proffer a legitimate, non-discriminatory reason for the adverse action. Logan, 259 F.3d at 567; Wade v. Knoxville Utils. Bd., 259 F.3d 452, 461 (6th Cir. 2001). However, the ultimate burden of proof remains with the plaintiff, who must demonstrate that defendant's asserted reason is a pretext for discrimination. Logan, 259 F.3d at 567; Wade, 259 F.3d at 452.
In the present case, Woods can establish a prima facie case of wage discrimination. The University has presented a legitimate, non-discriminatory reason for paying Woods less than Anderson. Specifically, the University argues that the difference in pay was due to Anderson's prior experience and salary with the University, which the University characterizes as greater than Woods' experience and prior salary. Therefore, under Title VII's burden-shifting paradigm, the burden of production returns to Woods to demonstrate that the University's reason is a cover-up for unlawful discrimination.
A Title VII plaintiff can rebut a defendant's proffered reason for an adverse employment action in several ways. The plaintiff can demonstrate (1) the employer's asserted reason had no basis in fact; (2) the proffered reason did not actually motivate the discharge; or (3) the reason was insufficient to motivate the adverse action. Gray v. Toshiba Am. Consumer Prods., Inc., 263 F.3d 595, 600 (6th Cir. 2001). Woods has failed to raise a genuine issue of material fact suggesting that any of these situations existed in the present case.
Plaintiff does not dispute that her rate of pay prior to becoming assistant registrar was less than Anderson's salary prior to taking that position. However, she contends that her prior work experience was equivalent to that of Anderson. Essentially, she argues that the University's asserted reason for her termination was not based in fact. This type of rebuttal consists of evidence suggesting that the employer's reason did not occur. Gray, 263 F.3d at 600. Plaintiff's evidence, without more, is insufficient as a matter of law to rebut the University's legitimate reason for the difference in pay. Even if a jury believed that plaintiff had similar skills to those of Anderson, the undisputed fact remains that plaintiff's prior experience with the University was not equivalent to that of Anderson. Plaintiff's argument that her prior work experience with other employers paralleled Anderson's prior work experience with the University cannot rebut the University's argument that it perceived Anderson's experience with the University and prior salary to require payment of a higher wage than that received by Woods.
The Court recognizes the difference in outcome between plaintiff's EPA claim and Title VII claim. However, as discussed above, the parties have different burdens with respect to each type of claim. While defendant bears the burden of demonstrating an affirmative defense under the EPA, the plaintiff bears the burden of rebutting defendant's asserted reason for an adverse employment action under Title VII. In an extremely close case, such as this one, a plaintiff can succeed on an EPA claim while failing to establish a claim under Title VII.
The Court also recognizes that this outcome varies from some language contained in a small number of Sixth Circuit opinions. The Sixth Circuit has stated that drawing such a distinction between EPA ad Title VII claims which arise from the same set of facts is "overly technical." Korte v. Diemer, 909 F.2d 954, 959 (6th Cir. 1990). In accordance with that language, one other panel of the Court concluded that a ruling in favor of a plaintiff on a judgment as a matter of law with respect to an EPA claim necessitates the same finding under Title VII. Buntin v. Breathitt County Bd. of Educ., 134 F.3d 796, (6th Cir. 1998). Those two cases are the Sixth Circuit's only published opinions discussing this issue.
The Sixth Circuit briefly cites the language contained in Korte and Diemer in one other, unpublished opinion. See Kahn v. Dean Fulkerson, P.C., 2000 WL 1769582, * 9 (6th Cir. Nov. 13, 2000). In that case, the Court found that a plaintiff who cannot sustain an EPA claim necessarily cannot sustain a parallel Title VII claim. That determination is consistent with this Court's opinion in this case, which recognizes that a plaintiff bears more stringent burden of proof under Title VII than the EPA.
The Sixth Circuit did not discuss this issue extensively in the aforementioned two opinions. Moreover, the Court of Appeals was not faced with the more practical concerns of how a district judge should properly instruct a jury when a plaintiff brings both EPA and Title VII claims. The burden-shifting paradigm in an EPA case is substantially different from that in a Title VII case. This Court is convinced that if this issue is again presented and properly argued to a full panel of the Sixth Circuit, the Court of Appeals would agree.
C. Retaliation
Plaintiff also claims that the University retaliated against her for asserting her rights under Title VII and the EPA. Specifically, she contends that she was not hired to work in the University kitchen in 2001 because of this lawsuit, which was pending at that time. Defendant seeks to have this claim dismissed.
Woods can establish a prima facie case of retaliation by demonstrating (1) she engaged in protected activity; (2) the University knew of this activity; (3) she suffered an adverse employment action; and (4) there was a causal connection between the adverse action and the protected activity. Fenton v. HiSan, Inc., 174 F.3d 827, 831-32 (6th Cir. 1999); E.E.O.C. v. Avery-Dennison Corp., 104 F.3d 858, 860 (6th Cir. 1997). The University does not challenge plaintiff's ability to establish any of these elements. Rather, the University contends that Woods' retaliation claim should be dismissed because she did not apply for a job for which the University was seeking applicants. The University argues that plaintiff's communications to Sherrill and Turner that she was interested in working in the University kitchen during the spring 2001 semester is insufficient to establish that plaintiff "applied and was qualified for a job for which the employer was seeking applicants." See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) (establishing elements of Title VII discrimination claim).
Under the framework for analyzing a retaliation claim, defendant's argument more appropriately establishes a legitimate, non-discriminatory reason for the University's decision not to hire Woods in 2001. In the alternative, the Court can construe this argument as challenging the plaintiff's ability to prove that she suffered an adverse employment action. Under either analysis, the record proof, viewed in the light roost favorable to Woods, is sufficient to raise a genuine issue of material fact regarding retaliation. Woods communicated interest in a position to the people supervising the kitchen. Whether or not the position was advertised to the general public, it was filled by Sherrill's sister suggesting that work was available. And Woods presents evidence indicating that Sherrill was unable to hire her, arguably at the direction of the University.
The University also seeks to have plaintiff's retaliation claim dismissed for failure to exhaust administrative remedies. The Sixth Circuit has stated that "it is unnecessary for a plaintiff to exhaust administrative remedies prior to urging a retaliation claim growing out of an earlier charge; the district court has ancillary jurisdiction to hear such a claim when it grows out of an administrative charge that is properly before the court." Ang v. Proctor Gamble Co., 932 F.2d 540, 546-47 (6th Cir. 1991) (quoting Gupta v. East Texas State Univ., 654 F.2d 411, 414 (5th Cir. 1981)). The University properly notes that the Ang Court upheld the district court's dismissal of a retaliation claim. However, the reasoning behind that decision was that the alleged retaliation occurred prior to the filing of the charge of discrimination and thus could have been included in the charge. Ang, 932 F.2d at 547. Moreover, the Sixth Circuit has more recently adopted the rule that a plaintiff can attach foreseeable retaliation claims to a discrimination lawsuit when the alleged retaliation occurs after the charge of discrimination has been filed. See Duggins v. Steak Shake, Inc., 195 F.3d 828, 832-33 (6th Cir. 1998); Abeita v. TransAmerica Mailings, Inc., 159 F.3d 246, 254 (6th Cir. 1998).
In the present case, the alleged retaliation arose after plaintiff had not only filed her charge of discrimination but also filed her lawsuit. Obviously, she could not have contained this claim in her EEOC charge. Additionally, the Court notes that the University is not unduly prejudiced by the addition of plaintiff's retaliation claim. Woods sought to add that claim to this lawsuit as early as April 25, 2001, which has given the University ample time to investigate the allegations.
For the foregoing reasons, defendant's motion for summary judgment (Court File No. 20) shall be DENIED.
SO ORDERED.