Employers have often argued that the Equal Pay Act does not apply if the male and female comparable employees spend significant amounts of time on different tasks. Yet the Tenth Circuit today affirmed that if a female employee performs additional duties beyond a male comparator, that fact does not defeat the employee's prima facie case under the EPA.
Riser v. QEP Energy, No. 14-4025 (10th Cir. Jan. 27, 2015): Riser worked for Questar (later spun off as QEP) as "Administrative Services Representative II in 2003. Her listed job responsibilities included managing a fleet of over 250 vehicles and performing various facilities management duties. She subsequently took on several additional duties, including managing construction projects in several states." As of 2011, she earned $47,382 annually.
A male employee, Chinn, was hired in the newly-created title of Fleet Administrator, at $62,000 annually, and was trained by Riser. "Riser provided a description of her fleet administration responsibilities, which was used to establish a description of the new position."
QEP terminated Riser on September 8, 2011, allegedly for unsatisfactory performance. "Shortly thereafter, QEP hired Mr. Bryant as Facilities Manager, which QEP classified as a Grade 7 position. Mr. Bryant accepted QEP's offer of $66,000 per year after previously declining its offer of $62,500."
Riser alleged, among other things, that she was paid less than Bryant and Chinn for comparable duties, in violation of the Equal Pay Act and Title VII.
The Tenth Circuit reverses summary judgment on these claims.
QEP advanced two arguments. The first was that Riser could not establish that her job was "substantially equal" to the jobs of Chinn or Bryant. The Tenth Circuit holds, though, that Riser made out a prima facie case as to both men.
Chinn's "fleet administration duties were carved directly out of Ms. Riser's duties," and "the core functions of the fleet administration job remained the same." Although Chinn supposedly performed two other duties not performed by Riser, the record contained evidence that Riser "had begun implementing these [two] programs prior to Mr. Chinn's hiring."
QEP also argued that Chinn and Riser's jobs were "not substantially equal because Mr. Chinn spent 100% of his time performing fleet administration duties, whereas Ms. Riser spent roughly 33% of her time on such duties and the remaining 67% of her time performing facilities-management duties." In support of this argument, QEP cited "several cases for the proposition that employees do not perform equal work for purposes of the EPA where 'significant amounts of time are spent on different tasks.'" Yet the Tenth Circuit rejected this authority where the woman employee performed more duties than the comparable man:
"....Riser performed the entirety of fleet-administration tasks that were eventually passed to Mr. Chinn. QEP has not presented evidence that the additional time Mr. Chinn spent on fleet administration necessarily meant he performed more work. Although Ms. Riser only spent 33% of her time performing fleet administration duties, a reasonable trier of fact might conclude that she was simply more efficient than Mr. Chinn at managing QEP's fleet. That is a question for the trier of fact."
The panel also held that Riser's job could be found comparable to Bryant. Though there were distinctions between their duties - Bryant supervised another employee, managed construction projects, carried out facilities management in Denver, and performed security duties - these tasks, a jury could find, were either a continuation of Riser's work or constituted an insignificant part of his work day.
QEP also advanced an EPA affirmative defense of "factor other than sex," here a supposedly gender-neutral pay classification system. But the Tenth Circuit held that QEP failed to establish this defense as a matter of law. An employer may consider an employee's salary history, or engage in bargaining, in setting opening salary. Yet on the record of this case, the disparities in pay could not be fully justified by these factors:
"Given the fact that Ms. Riser performed the bulk of the responsibilities performed by Mr. Chinn and Mr. Bryant combined, a reasonable trier of fact could certainly question how 31% and 39% pay gaps could be explained by 'legitimate business-related differences in work responsibilities and qualifications for the particular positions at issue.'"
The panel also reversed summary judgment on claims of pay discrimination under Title VII and the ADEA, based on the "substantial similarity between Ms. Riser's job and the jobs of Mr. Chinn and Mr. Bryant," and that the proffered explanation for the disparity (QEP's compensation system) could be found pretextual:
"QEP's compensation system yielded a salary for Ms. Riser that was 31% less than Mr. Chinn's and 39% less than Mr. Bryant's, despite the fact that she was performing the bulk of both of their responsibilities at the same time. Her pay grade was not based on the fleet administration or facilities management duties her supervisors knew she was performing, but instead on QEP's assessment of the work administrative assistants typically perform. And although she raised concerns with her pay grade and title to Mr. Bench on multiple occasions, these concerns were ignored."