Opinion
CV 01-162-BR.
July 22, 2002
DONALD B. POTTER, Donald B. Potter, P.C., Portland, OR, BART A. BRUSH, Portland, OR, Attorneys for Plaintiffs.
COURTNEY W. WISWALL, DAVID H. ANGELI, Stoel Rives LLP, Portland, OR, Attorneys for Defendant.
OPINION AND ORDER
This action for employment discrimination came before the Court on May 21, 22, and 23, 2002, for a bench trial on all claims common to Plaintiffs Patricia Jenson and Pamala Rose. The Court has completed its consideration of the evidence and the arguments of counsel received to date and now makes its Findings of Fact and Conclusions of Law pursuant to Fed.R.Civ.P. 52(a). For the reasons that follow, the Court concludes Plaintiffs each have established a prima facie case of discrimination against Defendant PCC Structurals, Inc. (PCC), under the Equal Pay Act, 29 U.S.C. § 206(d). The Court also concludes Defendant has established in part its affirmative defense that factors other than sex warranted a disparity in Plaintiffs' pay. To that extent only, Defendant has overcome each Plaintiff's prima facie case. The Court will conduct further proceedings to determine the amount of damages arising from those parts of Plaintiffs' claims that were not defeated by Defendant's affirmative defenses.
As noted in Paragraph I of the Pretrial Order, Plaintiff Jenson has reserved her right to a jury trial for, and the Court has bifurcated consideration of, her claims for retaliation under Title VII and the Equal Pay Act based on her allegations of sex discrimination in the work place.
Also pending is Defendant's Motion to Dismiss (#62) in which Defendant seeks dismissal of Plaintiffs' claims as a sanction for alleged misconduct by Jenson. For the reasons that follow, Defendant's Motion is denied.
BACKGROUND
PCC is an Oregon corporation that manufactures highly technical investment-casted parts that are used in a variety of products including jet aircraft engines. During most of the period pertinent to this action, Plaintiffs worked for Defendant as "shell processors" in Department 24 (the Investing Department) of Defendant's Large Structures Business Operations plant. The Investing Department runs 24 hours per day, 7 days per week, and shell processors work one of three shifts: day, swing, or graveyard.
Compensation for shell processors is on an hourly basis. All shell processors are designated grade 11 employees within Defendant's payroll structure. There are six increasing pay steps within grade 11. Plaintiffs each started at Step 1, which is typical for new employees in the Department. Plaintiffs advanced through successive steps as follows:
Jenson's hire date for purposes of seniority in the Investing Department was January 17, 1997. She began work, however, on April 4, 1997. Jenson was promoted to Step 2 effective July 7, 1997; to Step 3 effective October 13, 1997; to Step 4 effective June 1, 1998; and, after being denied an increase in January 1999, to Step 5 effective June 19, 1999. Eventually Jenson was promoted to Step 6 in the summer of 2000 when she transferred to Defendant's Deer Creek facility where she now works under conditions that she finds satisfactory.
Rose's hire date was October 20, 1997. She was promoted to Step 2 effective February 2, 1998; to Step 3 effective April 27, 1998; to Step 4 effective October 27, 1998; and to Step 5 effective June 19, 2000. Rose no longer works for Defendant.
Defendant decides whether and when to advance an employee's pay step in conjunction with periodic reviews of the employee's performance. Typically, employees do not progress through the pay steps at the same rate. Although Plaintiffs received the same compensation as all other shell processors at the same respective pay steps, most male coworkers who began their employment with or after Plaintiffs advanced through the pay step progressions more quickly than Plaintiffs. In addition, Plaintiffs often performed the same tasks as male shell processors who were paid at a higher pay step.
PLAINTIFFS' CLAIMS
The parties tried to the Court three of the claims set forth in Plaintiffs' Amended Complaint: the First Claim for violation of the Federal Equal Pay Act, 29 U.S.C. § 206(d); the Second Claim for disparate treatment in pay on the basis of gender in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.; and the Fifth Claim for violation of the Oregon Equal Pay Act, Or. Rev. Stat. § 652.210, et seq. Plaintiffs withdrew their Third Claim for disparate impact in violation of Title VII. As noted, Jenson's retaliation claims set forth in the Fourth and Sixth Claims have been severed for separate resolution.
STANDARDS
The Equal Pay Act provides:
No employer . . . shall discriminate . . . 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 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)(1).
"The Equal Pay Act creates a type of strict liability; no intent to discriminate need be shown." Maxwell v. City of Tucson, 803 F.2d 444, 446 (9th Cir. 1986) (internal quotation and citation omitted). To establish a claim under the Act, the "plaintiff has the burden of establishing a prima facie case of discrimination by showing that employees of the opposite sex were paid different wages for equal work." Stanley v. Univ. of Southern Cal., 178 F.3d 1069, 1073-74 (9th Cir. 1999). The plaintiff bears the burden of showing the jobs being compared are "substantially equal"; the jobs, however, need not be identical. Id. at 1074 (internal citations omitted).
The Ninth Circuit applies a two-step analysis for determining substantial equality: The court must examine whether the jobs to be compared have a common core of tasks and then determine whether any additional tasks incumbent on one job but not on the other make the two jobs substantially different. Id. Minor differences in responsibility do not make the equal pay standard inapplicable. EEOC v. Maricopa County Cmty. Coll. Dist., 736 F.2d 510, 514 (9th Cir. 1984).
If the plaintiff establishes a prima facie case, the burden of persuasion shifts to the defendant to prove by a preponderance of the evidence that the disparity in pay is justified under one of the Equal Pay Act's four affirmative defenses. Hein v. Oregon Coll. of Educ., 718 F.2d 910, 913 (9th Cir 1983). A pay disparity is justified only if it is made pursuant to "(i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex." 29 U.S.C. § 206(d)(1).
In Kouba v. Allstate Ins. Co., 691 F.2d 873, 875 (9th Cir. 1985), the Ninth Circuit held Title VII claims based on a denial of equal pay for substantially equal work must be analyzed under the Equal Pay Act rubric. In other words, Title VII burden-shifting does not apply to claims under the Equal Pay Act or to Title VII claims based on age disparity because the Equal Pay Act defenses are affirmative in nature and the defendant must plead and prove them to prevail. Thus, the plaintiff in this type of employment discrimination case does not necessarily carry the burden of showing that the defendant's proffered business reason for its conduct does not exist or is mere pretext.
Oregon courts have not established clear standards for recovery under Oregon's Equal Pay Act. For purposes of resolving Plaintiffs' state law equal pay claims in this matter, however, the parties agree the Court should apply the federal standard.
Accordingly, this Court will apply the same federal Equal Pay Act standards to adjudicate Plaintiffs' First, Second, and Fifth Claims.
FINDINGS OF FACT
Pursuant to Fed.R.Civ.P. 52(a), the Court finds the following facts by a preponderance of the evidence:
Facts Common to Both Plaintiffs
1. Defendant's Investing Department makes complex investment castings for the aerospace industry, including structural components for jet engines. Defendant uses a "lost wax" process to build shell-molds into which molten metal is poured. Based on a customer's specifications, Defendant makes a wax mold of the component part. Layers of materials are added in a series of up to 20 steps around a wax mold to form the shell-mold. Engineers write the process steps onto "tech cards," and the shell processors follow the described techniques as they work to make the mold for each particular part. Finally, the wax is removed, leaving only the shell-mold behind.
2. The wages for hourly employees at PCC are based on three factors: job grade, individual step designation (ranging from Step 1 (lowest) to Step 6 (highest) within that grade), and the employee's level of seniority. PCC assigned all shell processors job grade 11.
3. Compensation for new employees in the shell processor position typically begins at Step 1. Experienced employees who transfer to the Investing Department from another department, however, usually maintain their existing pay step. A Step 6 employee from another department who transfers into the Investing Department as a shell processor, therefore, continues at Step 6 regardless whether the employee has all the requisite skills and proficiencies of a Step 6 shell processor.
4. There are approximately 34 modules or fundamental tasks that a shell processor may be asked to perform. On any given day, a shell processor might do one or more of those tasks as assigned by the shift lead worker. Two shell processors might do the same task on the same day, but the pay rate for each of them would depend on their respective pay step levels and would not depend on the particular task performed.
5. To complete a task properly, each shell processor is supposed to use the same procedure. There is a certain minimal level of skill, responsibility, and effort required for each given task.
6. Shell processors in the Investing Department perform all of their various tasks at the same location and under the same working conditions.
7. Defendant's criteria for determining whether to advance an employee's pay step are not set out in writing. Defendant makes step progression decisions based on a variety of loosely-defined subjective and objective factors applied by its lead workers and supervisory personnel. These factors include the employee's skills, the quality and quantity of the employee's work compared to peers, the degree of training the employee had received in tasks necessary for advancement, the employee's attendance, and the employee's disciplinary record during the review period. No two shell processors, regardless of sex, progressed at exactly the same rate during the period at issue.
8. Most of Plaintiffs' male coworkers in the Department who started as new employees at the same time or after Plaintiffs advanced in step progression quicker than Plaintiffs did.
9. The supervisory employees in the Investing Department while Plaintiffs were employed there included Steve Fawver, Craig Fery, and John Munro. They periodically reviewed each employee's performance according to a written performance review form. Although Defendant's policy was to conduct a performance review after 45 days, 90 days, and then every six months, most reviews occurred outside of this schedule because of other demands on the supervisor's time. If there was a delay in completing a review and the reviewer determined a pay increase was in order, the raise typically would be made retroactive to the date on which the review should have occurred.
10. The supervisory employees had no objective system to weigh any performance factors when determining whether to deny or to grant a step increase as part of an employee's periodic performance review.
11. Although there are areas on the performance review forms in which the supervisor may indicate whether an employee is or is not granted a step increase, the forms do not spell out any process to follow in making that decision. The forms also do not indicate the rating requirements in a particular category for an employee to obtain the next available step increase. Finally, there are no written manuals, policies, or guidelines for completing the performance review form or for deciding whether to deny or to grant a pay step increase to an employee.
12. During Fawver's initial tenure, lead workers prepared some performance review forms. Fawver gave his leads no specific guidelines on how to assess an employee's performance or how to rate the employee in a given assessment category. Fawver seldom disagreed with a lead's recommendation regarding whether to grant an employee a pay step increase.
13. Under Fery's supervision, the leads filled out the performance review forms and provided them to Fery in draft. Fery made changes based on his knowledge of the employee. Fery did not give the leads any written documents to instruct them on how to quantify an employee's performance in a given category for purposes of rating them on the performance appraisal form. In fact, a lead worker might view as "Fully Satisfactory" certain conduct by an employee under a given category of assessment while Fery would rate the same conduct as "Needs Improvement."
14. For a period of time during Plaintiffs' tenure in the Investing Department, there was a general training matrix in draft form that never was finalized. Fery used this draft training matrix inconsistently as a guide for deciding whether to increase an employee's pay step level. On occasion Fery granted an employee a step increase even though the employee had not satisfied all the requirements set out in the draft training matrix. Conversely, completing the specified training and demonstrating the skills required to move to a higher step level as indicated by the matrix did not automatically entitle an employee to a step increase.
15. Typically, there was one lead employee in the Investing Department during each of the three shifts. Lead workers made specific work assignments to the shell processors at the beginning of each shift. Lead workers also had the authority to assign training opportunities to shell processors as production schedules permitted. The burden was on the employee, however, to seek out training assignments, and there was no system to assure that shell processors at lower pay steps received the training assignments essential to qualify them for higher pay steps. In fact, training opportunities often were extended to workers from temporary agencies before they were made available to full-time shell processors who still were progressing through the steps.
16. Both Fawver and Fery worked Monday through Friday during the day shift. Although Fery periodically rotated shifts to see non-day shift employees and regularly began his own shift before the graveyard shift ended, Fawver and Ferry had little chance to observe first-hand the performance of shell processors like Plaintiffs who worked on other shifts.
17. Before July 1997, lead workers signed off on pay step increases for shell processors. After that time, lead workers merely recommended whether an employee under their supervision should be given a step increase. Only a supervisor (a member of Defendant's management team), with the concurrence of his immediate supervisor, could grant or deny step increases.
18. While Plaintiffs worked in the Department, it was staffed predominantly by male employees. As of July 1998, only four of the 48 lead and regular employees in the Department were women, and the managers and supervisors of the department were exclusively male. In addition, all the leads were male except for the period beginning September 1998 when Tamara McBane was promoted to a lead position.
19. Fawver left the Department in March 1999. Fery left the Department in November 1999. Munro replaced Fawver and Fery as the supervisor of the Investing Department.
20. In the summer of 1998, Fery initiated in the Department an experimental project called "Project Team Build" in an effort to provide recognition and encouragement to top performers and to help identify ways to improve or to correct deficiencies in others. Fery asked each employee to rank-order their coworkers in areas similar to those designated on the company's performance review form. Fery took all the forms completed by the employees for all three shifts and prepared a ranking of top to bottom for all of the Department's 48 employees. Jenson was last, and Rose second to last.
21. Everyone in the Department was upset about the peer review project. Although the results were supposed to be confidential, they were not. In addition, the results were not supposed to be used for disciplinary or step progression purposes. Fery told Jenson, however, he was going to "counsel" her because of the results. The results also appeared later in a human resources investigation memorandum critical of Jenson. Jenson and Rose each were humiliated by open discussions in the workplace of their perceived inferiority. Jenson immediately complained to coworkers that there was sex discrimination in the peer review process.
B. Facts Pertinent to Plaintiff Jenson.
22. Jenson first came to work for Defendant in the summer of 1996 as a temporary employee of an employment agency assigned to the "Golf Team." She learned some basic shell processing skills in that position. When that project concluded in early 1997, Defendant hired Jenson as a permanent employee and assigned her to the Investing Department. Jenson was given a seniority date of January 17, 1997, due to her previous experience with Defendant. Her first work day in the Investing Department, however, was April 4, 1997.
23. Jenson began in the Investing Department at Step 1 even though Step 6 workers who transferred in from other departments (e.g., Randy Pengra, Bill Flood, and Kathleen Coon) maintained their status as Step 6 employees without possessing all of the skills and proficiencies of a Step 6 shell processor. At this time, Fawver was supervising the Department.
24. When Jenson began working in the Investing Department, she had a conversation with Mark Perino, then a lead worker, who cautioned her about taking a position on the graveyard shift. Perino told Jenson he was concerned the men on that shift had a hard time dealing with women in the workplace. He said that shift had been strictly "a man's department" in the past, and the lead on that shift, Ralph Jackson, would have trouble accepting Jenson because she was female. Jackson later admitted to Fawver that he had a problem with women in the workplace, and Defendant ultimately removed Jackson from the lead position. The only performance review of Jenson to which Jackson contributed resulted in Jenson's promotion from Step 1 to Step 2 effective July 7, 1997. As noted below, however, that promotion occurred after a longer period than experienced by male shell processors who moved from Step 1 to Step 2.
25. In their Joint Statement of Stipulated Facts dated March 22, 2002, the parties set out a "Step Progression Timeline for PCC Shell Processing Department 24 Employees" (Timeline) that identifies male employees who were hired into the Department in 1997 along with Plaintiffs and the dates on which each received step increases. According to the Timeline, Jenson's first promotion from Step 1 to Step 2 occurred at three months (measured from her actual first day of work). Only Rose waited a longer time for the first raise. All of the males on the Timeline either bypassed Step 2 or progressed to Step 2 in two months or less. Nothing in the trial record generally or in Jenson's 90-day Performance Appraisal explains this difference. See Ex. 13.
26. Under Fawver's supervision, Jenson was promoted from Step 2 to Step 3 on December 9, 1997, effective on October 2, 1997, which was six months after Jenson's first work day in the Department. The Timeline shows Rose and one male (Bjork) also took six months for their progressions from Step 2 to Step 3. All the other males achieved Step 3 in 3.5 months or less. Jenson's Performance Appraisal Form for this review (Ex. 14) reflects she "Needs Improvement" in the category "Good attendance and punctuality" and needs to "focus on production and concentrate in the workplace. Improvement is showing in this area." The evaluation is otherwise "Fully Satisfactory" and notes Jenson needs "to work more in the wiring and robot area." There is nothing in the exhibits or the trial record generally that explains why Jenson's progress was slower at this stage than all but one of her male counterparts.
27. In June 1998, Fery became the Department supervisor. He assumed from the leads the "first signature" responsibility of making the decision whether an employee would advance in pay step progression at performance reviews. Fery was an assertive manager and perceived by some as arrogant. Defendant's upper management, however, liked Fery's "military bearing." Fery was a stickler for good attendance by all workers regardless of sex. Fery also put pressure on all of the Department leads to increase production.
28. Although Fawver wrote most of the performance review that led to Jenson's promotion from Step 3 to Step 4 effective June 1998, Fery was the supervisor who signed that review on August 6, 1998. By that time, Fery had formed the opinion that Jenson's performance was deficient in some respects. Fery checked "Needs Improvement" under categories of "Good Housekeeping," "Problem solving skills," "Effective use of skills and time," "Good Communication Skills," "Good attendance and punctuality," and "Works well without supervision." Fery expressly noted that Jenson's attendance was "borderline." Nevertheless, Fery also indicated Jenson had a "very good attitude," and he approved the step increase associated with this review. Because Fery thought Jenson socialized too much in the work place, he alerted the lead workers to watch Jenson's performance closely.
29. According to the Timeline, it took Jenson one year and two months to achieve Step 4. Only one male, Christensen, took longer (one year and three months). The several deficiencies noted in Jenson's performance as of that time, however, adequately distinguish her from the several males who progressed to Step 4 more quickly than she did.
30. As part of the June 1998 review, lead worker Tony Mura discussed the training matrix with Jenson and noted she had only one training module left (for core packing). After that module, she would be trained, although not necessarily proficient, on all the modules apparently necessary for a Step 6 shell processor. By this time, Jenson realized access to training was an important factor in progressing through the pay steps. Jenson regularly made clear to management that she was very interested in receiving training in order to complete her pay step progression.
31. In August 1998, after Jenson's last review, Mark Perino found her crying at her work station. Jenson was upset because she learned Fery had told the leads in the Department to watch out for her straying from her work station to the casting area. Jenson reportedly visited the casting area repeatedly to see a married employee with whom she was having an affair. Jenson asked Perino to go with her to air her concerns about this issue with Fery, and he did. Jenson complained to Fery that she felt he was stalking her. Fery replied, "Maybe I am." After Jenson left the meeting, Perino told Fery it was unwise for him to have said that to Jenson. When Perino returned from his vacation, Fery removed him as lead because he had "lost confidence" in Perino's supervisory abilities. Fery placed Tammy McBane in the lead position supervising Jenson.
32. In September 1998, Jenson and a Step-6 male worker, Randy Pengra, were assigned to work together to "dip" a very large part. The lead worker, Tony Watson, expressly instructed both of them to read the tech card before beginning the process. Pengra's task was to put the dip solution on the part while Jenson was assigned to put on the designated sand or slurry material. Neither of them, however, read the tech card, and Jenson dipped the part in the wrong material. This error caused the loss of this large, expensive part and potentially threatened the safety of those in the workplace at the time the part failed.
33. Jenson quickly received a disciplinary write-up for not following instructions. Pengra, however, was not disciplined immediately. Jenson complained repeatedly that Pengra was not disciplined because he was male. Fawver, however, held back Pengra's disciplinary write-up for several days because Pengra was under a great deal of personal stress at home. Pengra had been carrying a pager because his pregnant wife was due to deliver at any moment after a complicated pregnancy. Pengra already had been paged to leave work several times because of his wife's condition. Fawver gave Pengra a write-up for failure to follow instructions a couple of weeks later when Fawver felt Pengra could handle the discipline better. Although Defendant did not discipline every shell processor who broke a mold or applied an incorrect dip, Defendant was justified in issuing Jenson and Pengra a disciplinary write-up for this incident due to the magnitude of the error.
34. In the period after June 1998 when Jenson's attendance was rated as "borderline," Jenson received three disciplinary write-ups involving attendance. The first was a verbal warning on July 12, the second was a written warning on September 21 (Ex. 66), and the third was a written warning on November 11 (Ex. 67). Although Fery as manager reviewed each of these write-ups, they actually were initiated by an office clerk as a routine matter based on time-clock records. All of these write-ups were justified under the circumstances.
35. Also during this time, Jenson's relationship with a married coworker, Greg Hodgson, was disruptive and causing her personal distress. In addition, Jenson became personally involved with another coworker. She was quite upset during this time because of her concern that Fery was "out to get her" and her difficult personal life. Jenson would become physically ill on the way to work, had anxiety attacks, could not breathe, and often would be unable to go to work. Jenson sought treatment for depression, and her physician prescribed medication in September 1998. Jenson also took significant amounts of sick leave during this time.
36. On November 20, 1998, Jenson received another write-up. This disciplinary action was because of a claimed abuse of a "pre-arranged" leave. See Ex. 16. Jenson had arranged to work on her days off so she could take off Friday and Saturday, two of her normal working days, in order to attend a reunion. Accordingly, Jenson worked on her normal days off, but apparently on overtime status. Without speaking with Jenson, Fery assumed Jenson must have cancelled her pre-arranged leave for the following Friday and Saturday because she worked on her normal days off on overtime. When Jenson failed to show for work on the next Friday and Saturday, Fery concluded Jenson had abused the pre-arranged leave policy and issued a disciplinary write-up. The evidence establishes, however, that Jenson properly arranged in advance to take the two-day leave, and the write-up was not justified without at least an inquiry into whether Jenson violated policy by working her days off on overtime.
37. In December 1998, Jenson formally complained to Fawver of sex discrimination in the workplace. Jenson asserted she and Rose were not progressing in pay steps as quickly as their male coworkers, and they were being denied training opportunities necessary for their advancement while male coworkers were being trained.
38. Fawver told Kim Schwanz, a member of the Human Resources Department, of Jenson's complaints. During his investigation, Schwanz learned of allegations that Jenson made inappropriate sexual comments and gestures during work and that Jenson and another coworker with whom Jenson was personally involved, Scott Whittemore, were bringing off-duty issues into the workplace and causing unwelcome disruptions. Schwanz asked pointed questions of some of Jenson's coworkers concerning her workplace behaviors. Jenson learned about these questions and became distressed. She suffered weight loss, anxiety attacks, and difficulty in breathing and concentrating. She began to miss work as a result. Her doctor diagnosed her with chronic depression, and she took several weeks of medical leave for psychological stress in December 1998 and January 1999. Although Schwanz found much to criticize in Jenson's personal behavior at work, Schwanz eventually concluded there was no "equal pay" violation in the manner in which Jenson and Rose were progressing through pay steps.
39. In January 1999, Jenson retained counsel. Jenson's attorney informed Schwanz not to speak with Jenson anymore about her complaints of sex discrimination in the workplace.
40. Jenson's next review was January 19, 1999, when male employees who had worked in the Department the same or a lesser period than Jenson already were at Step 5 or higher. McBane drafted and Fery completed the written review that denied Jenson a pay increase to Step 5. That review reflected many areas in which Jenson's performance needed improvement. Jenson's promotion was denied primarily because of her disciplinary write-ups in the review period. Setting aside the write-up involving the pre-arranged leave issue, the other disciplinary actions, nonetheless, were warranted. These other circumstances justified Defendant withholding a pay increase at that time regardless of Jenson's progress as of that date toward achieving the skills and proficiencies of a Step 6 shell processor.
41. In March 1999, Fawver transferred out of the Department.
42. Jenson's next performance review resulted in her promotion from Step 4 to Step 5, effective June 1999, after working in the Department for two years and two months. Her male coworkers took significantly less time to achieve Step 5. Jenson's slower progression in 1998, however, primarily was due to her disciplinary record and personal issues. This advancement was approved despite the fact that Jenson recently had received a verbal warning from Fery (Ex. 18) based on McBane's report that she had sent Jenson home because she was socializing too much when assigned to overtime duties.
43. Fery transferred out of the Investing Department in November 1999, and Munro filled his position in the Department.
44. Jenson transferred out of the Investing Department in the summer of 2000. On August 23, 2000, with the approval of Munro and Fawver (who was the supervisor in the department to which she was transferring), Jenson was advanced to Step 6 retroactive to May 15, 2000. By this date, Jenson had served three years and one month in the Investing Department. Although the majority of males who started in the Investing Department in 1997 at the same time or later than Jenson achieved Step 6 in approximately two years, Jenson's disciplinary record is the primary reason for the several months of delay in achieving Step 6 status.
45. Jenson never used Defendant's internal grievance procedures to challenge Defendant's disciplinary write-ups. That decision, however, should have no effect on Jenson's potential damages for the delay in advancing her from Step 1 to Step 2 and from Step 2 to Step 3 because those delays were not based on her disciplinary record.
C. Facts Pertinent to Plaintiff Rose.
47. Although Rose started as a temporary employee in the Department in June 1997, she began as a permanent hire at Step 1 on October 20, 1997. Her 45-day review occurred in December 1997 when she was described as a "good employee" and encouraged to ask more questions. She advanced to Step 2 effective February 2, 1998, 3.5 months after her first work day. All of the males who started with or after Rose advanced to Step 2 in two months or less, or bypassed it altogether. The 90-day review that led to the Step 2 promotion indicated Rose needed improvement in "Quality of Work," "Job Knowledge," and "Adaptability." The review also noted, however, Rose had "not had the opportunity to get training" on other positions, but a new rotation system would provide that training. Although this lack of training may explain the longer time it took Rose to achieve Step 2, nothing in the record explains why such training was not provided affirmatively on an equal rotation.
48. According to the Timeline, Rose advanced to Step 3 on April 27, 1998, after she had been in the Department six months. The Timeline shows Jenson and one male (Bjork) also took six months. All of the other male coworkers advanced to Step 3 in 3.5 months or less. Earlier in April, Rose received a verbal warning for poor attendance (Ex. 48). The performance review for this Step 3 promotion (Ex. 34) reflected Rose needed to improve her job knowledge, team skills, and attendance. Although lack of training appears to be the only reason for Rose's slower progression in job knowledge and skills, this review stated Rose was "quick to point out how much she wanted to learn" and she was "a quick study when given a chance."
49. It was around this time that Rose began to question why male coworkers were advancing through the pay steps more quickly. She also began to notice male coworkers were being trained in more advanced shell processing skills. Her lead, John Walmer, showed her the draft training matrix and indicated she needed to get training documented in various modules in order to advance. Rose repeatedly asked for training, but she felt she should not demand training that would interrupt male coworkers who already were in the process of learning a new skill. In other words, male coworkers were allowed to complete their training before Rose was allowed to begin to train.
50. On October 8, 1998, Rose received a disciplinary write-up for poor attendance. According to the Timeline, Rose was promoted to Step 4 effective October 27, 1998, one year after she began in the Department. The Timeline also reflects only Jenson and one male (Christensen) took longer to reach Step 4. Excluding the three male coworkers who bypassed this step altogether, it took an average of only 7.6 months for the remaining male coworkers to achieve Step 4.
51. The Timeline reflects Rose's next promotion was not for another 19 months when she was promoted to Step 5 effective June 19, 2000, after she transferred out of the Department. In the meantime, the Performance Review dated August 16, 1999 (Ex. 36) indicated Rose needed improvement in several areas, and she was not granted a step increase. Although the review admonished Rose "to accept training opportunities when offered," Rose never refused offers of training. In any event, the availability of training was low on the graveyard shift, which is when Rose worked most of the time.
52. Rose received a warning for attendance problems on September 25, 1999 (Ex. 47), and most of the issues documented in that disciplinary write-up concerned sick time. Rose's medical records reflect she had a history of bilateral carpal tunnel syndrome, and her physician requested insurance approval for surgery in September 1999. The records also show Rose's physician directed her not to work in autoclaving and grinding during this time.
53. The performance review dated December 1, 1999, showed Rose needed improvement only in "adaptability." The review indicates Rose "is limited in the amount of rotating she can do because of a health issue." In all other respects, Rose was rated as "Fully satisfactory" or "Excellent." This review indicates Rose's "knowledge of the department is adequate for the work she does," and she is "good at finding work to keep herself busy."
54. Rose had surgery on her right wrist on December 3, 1999, and on her left wrist on January 4, 2000.
55. The exhibits document ongoing issues with Rose's attendance in 2000. Most of the attendance concerns documented on Exhibit 46, however, relate to sick time authorized by Rose's physician.
56. As noted, Rose transferred out of the Investing Department in the spring of 2000, and a Step 5 promotion was effective June 19, 2000.
57. During the time Rose was delayed in progress between Step 4 and Step 5, she frequently was absent from work on sick time. Even if Defendant affirmatively had scheduled Rose for training necessary to her advancement at that time, she was not always physically able or personally present to take such training due to health issues for which Defendant is not responsible.
CONCLUSIONS OF LAW Plaintiffs' Prima Facie Case
As previously noted, to establish a claim under the Equal Pay Act, a "plaintiff has the burden of establishing a prima facie case of discrimination by showing that employees of the opposite sex were paid different wages for equal work" and that the jobs being compared are "substantially equal." The jobs need not be identical, however. Stanley, 178 F.3d at 1073-74. The Ninth Circuit applies a two-step analysis for determining substantial equality: The court must examine whether the jobs to be compared have a common core of tasks and then determine whether any additional tasks incumbent on one job but not the other make the two jobs substantially different. Id. Minor differences in responsibility do not make the equal pay standard inapplicable. Maricopa County, 736 F.2d at 514.
Here the job of shell processor is comprised of a common core of tasks, and a shell processor's pay is determined by the employee's pay step rather than the task performed on any particular shift. Indeed, it is typical for two processors at different pay steps to work side-by-side on the same processing task throughout a shift assignment. As noted in the Court's Findings of Fact, Plaintiffs, however, were paid less as shell processors than the vast majority of their male counterparts for almost all of the time Plaintiffs worked in the Investing Department. Accordingly, the Court finds Plaintiffs have established a prima facie case of discrimination under the Equal Pay Act because they have shown they were paid less wages for "substantially equal" work.
Defendant's Affirmative Defenses
Because Plaintiffs have established their prima facie case, the burden of persuasion shifts to Defendant to prove by a preponderance of the evidence that the disparity in pay is justified under one of the Equal Pay Act's four affirmative defenses. Hein, 718 F.2d at 913. As noted, a pay disparity is justified only if it is made pursuant to "(i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex." 29 U.S.C. § 206(d)(1). Defendant offered no evidence or argument that the disparities in Plaintiffs' pay were due to a system that relied on seniority or that measured earnings by quantity or quality of production.
Defendant argued its periodic performance evaluation process was based on a "merit system" that justified the pay disparities. The Court concludes, however, Defendant failed to prove this affirmative defense. Specifically, Defendant's evaluation system is insufficient because it lacks objective criteria to determine the score of an employee's performance, and it does not specify the standards that must be met for an employee to earn a pay step increase or for a supervisor to deny one. Finally, Defendant insists its pay practices are not discriminatory because training opportunities rather than discrimination are the gateway to advancement. That premise is particularly weak in this case because Defendant has no system to assure equal access to training opportunities, and Defendant often provides training to temporary employees before permanent hires.
Defendant also advanced the affirmative defense that factors other than sex warranted any pay disparity. The Court concludes Defendant has established this defense in part as follows:
The Court concludes Defendant has proven it is more probably true than not that factors other than sex, specifically Jenson's conduct that led to several disciplinary write-ups preceding her January 1999 review, warranted the denial of a Step 5 promotion at that time. In addition, the Court concludes Defendant has proven Jenson's delay in step progression thereafter also was due to her personal conduct. Accordingly, the Court finds Defendant has prevailed in its defense in part. Defendant did not overcome Jenson's prima facie case, however, with respect to delays in her pay progressions through Step 4. The Court will conduct further proceedings to determine Jenson's damages arising from those portions of her wage claims.
The Court also concludes Defendant has proved it is more probably true than not that factors other than sex, specifically Rose's absence from work and restrictions on her physical activities after her wrist surgeries, warranted the delay in her step progressions after Step 4. Defendant did not overcome Rose's prima facie case, however, with respect to delays in her pay progressions through Step 4. The Court will conduct further proceedings to determine Rose's damages arising from those portions of her wage claims.
DEFENDANT'S MOTION TO DISMISS
Also pending is Defendant's Motion to Dismiss in which Defendant seeks dismissal of both Plaintiffs' claims as a sanction for alleged misconduct by Jenson. Specifically, Defendant argues Jenson tried to entice certain coworkers to testify falsely in these proceedings and offered to "make it worth their while" if they testified in her favor. In addition, Defendant contends Jenson pressured coworker Chris Stradley when she learned he apparently was cooperating with Defendant's counsel in their trial preparation.
In connection with Defendant's Motion to Dismiss, Plaintiffs filed a related Motion to Conduct Discovery into Defendants' Motion to Dismiss (#68). That Motion was rendered MOOT when the Court conducted an expedited hearing on Defendant's Motion and took testimony from all of the witnesses.
STANDARDS
The court has "inherent power to dismiss an action when a party has willfully deceived the court and engaged in conduct utterly inconsistent with the orderly administration of justice." Anheuser-Busch, Inc. v. Natural Beverage Distrib., 69 F.3d 337, 348 (9th Cir. 1995). In order to dismiss an action, the court must find the conduct to be sanctioned was due to "wilfulness, fault, or bad faith." Id. In order for deceptive practices to rise to the level of a potential fraud on the court, there must be "`an unconscionable plan or scheme which is designed to improperly influence the court in its decision.'" Phoceene Sous-Marine, S.A. v. U.S. Phosmarine, Inc., 682 F.2d 802, 805 (9th Cir. 1982).
DISCUSSION
On May 20, 2002, the Court conducted an evidentiary hearing on Defendant's Motion. Testimony surrounded two distinct factual contentions: Whether Jenson promised coworkers she would "make it worth their while" if they testified falsely in her behalf, and whether Jenson tried to pressure Chris Stradley when she learned he was cooperating with Defendant's counsel in trial preparation.
The Court concludes Jenson likely sounded-off in the workplace on a regular basis about her complaints of pay discrimination. The Court also finds it probably is true that Jenson made comments to McBane, Stradley, and others that it would be "worth their while" to speak up about the issue. The evidence, however, is unconvincing that Jenson, although angry, frustrated, and impatient, deliberately set out to gather false testimony on her behalf. Most of these statements were made years ago when the pay issue first surfaced.
The alleged coercion of Stradley, on the other hand, took place immediately before the final pretrial conference for the bench trial in this matter and shortly after Stradley told Jenson he had spoken with Defendant's attorneys in preparation for trial. This initial conversation occurred by telephone when Stradley was at work at the beginning of his graveyard shift and Jenson was at home. Apparently to avoid speaking to Jenson again later during his shift, Stradley told Jenson he was leaving work early. Although Jenson thought Stradley would be at home early the following morning when Jenson normally prepared to go to work on the day shift, Stradley did not leave work early as he had told Jenson. The following morning at approximately 5:30 a.m., an unidentified male telephoned Stradley's home. Because Stradley was not there, his wife answered the phone. The caller pretended to be Jenson's attorney. Although Jenson admitted at the hearing that she made a brief call from her residence to Stradley's home that morning, Jenson denied she pretended to be an attorney. Stradley's wife, on the other hand, denies speaking to Jenson that morning, and she is certain the "attorney" to whom she spoke did not have a female voice and, therefore, was not Jenson. Defendant suspects Jenson's boyfriend, who was living at Jenson's residence at the time, made the call at Jenson's behest in an effort to regain Stradley's sympathy.
Although Defendant's suspicion is a possible explanation for these troubling events, the evidence falls short of proving Jenson engaged in such fraudulent behavior. The Court, therefore, concludes it has not been proven that Jenson engaged in "willfulness, fraud, or bad faith," and the Court denies Defendant's Motion.
CONCLUSION
Based on the foregoing, the Court finds Plaintiffs have prevailed on their Equal Pay Act, Title VII disparate treatment, and Oregon Equal Pay Act claims to the extent those claims are based on delays in their progression through Step 4 of Defendant's step pay structure. The Court also finds Defendant has prevailed on one of its affirmative defenses to Plaintiffs' claims to the extent those claims are based on delays in Plaintiffs' progression from Step 4 to Step 6. The Court, therefore, will conduct further proceedings to determine Plaintiffs' damages arising from Defendant's unlawful conduct.
In addition, the Court DENIES Defendant's Motion to Dismiss (#62). The Court previously DENIED as moot Plaintiffs' Motion to Conduct Discovery into Defendants' Motion to Dismiss (#68).
IT IS SO ORDERED.