Opinion
CASE NO. 8:99CV527
August 23, 2001
MEMORANDUM AND ORDER
Introduction
Before me is the defendant's motion for summary judgment, Filing No. 55, on the plaintiff's amended complaint, Filing No. 16, which alleges employment discrimination based on sex and equal pay violations. I have reviewed the record, the parties' briefs and indexes of evidence, Filing Nos. 56, 77 and 78, and the applicable law, and I conclude that because material factual questions remain, the motion should be denied.
Background
The plaintiff went to work for the defendant in 1991 as a teller. In December 1993, she was promoted to the position of branch manager. The parties agree that her duties included supervising tellers, customer service representatives, and the loan secretary; supervising and occasionally opening new accounts; taking loan applications and evaluating credit applications; reviewing overdrafts; balancing tellers' drawers; calling on existing customers and trying to attract new customers. The defendant promoted the plaintiff to the position of assistant vice president sometime after June 30, 1996. She received satisfactory performance evaluations and regular raises during the four years she served as branch manager. The defendant terminated the plaintiff in August 1997, however, allegedly because she was not "management material." She was earning $27,000 at the time.
Eugene Tschida was the president of defendant from March 1989 through December 1996. John Burford succeeded him. The plaintiff alleges that Tschida, Burford, and other male employees of the defendant engaged in uninvited offensive conduct of a sexual nature throughout her employment with the defendant. The plaintiff alleges that her complaints and objections about such conduct went unheeded.
The plaintiff also alleges that after the defendant asked her to resign in August 1997, the defendant replaced her with Patrick Mategrano, whom the defendant hired at a salary of $40,000.
The plaintiff filed a complaint with the NEOC/BEOC on February 13, 1998, and received a right to sue letter on September 16, 1999. She commenced this suit on December 14, 1999, seeking damages for age and sex discrimination and equal pay violations. She subsequently dismissed her age discrimination claims. Filing No. 48.
Discussion
Equal Pay Violations. The plaintiff brings her equal pay claim pursuant to Title VII, 42 U.S.C. § 2000 et seq.; the Equal Pay Act, 29 U.S.C. § 206(d); and state employment discrimination laws. The defendant contends that it is entitled to summary judgment on the plaintiff's equal pay claim because she cannot establish that her work for the defendant was substantially equal to a male comparator.
When an employee "alleges that her employer provides `unequal pay for equal work on the basis of sex, the standards are the same whether the plaintiff proceeds under Title VII or the Equal Pay Act [of the Fair Labor Standards Act, 29 U.S.C. § 206(d)].'" Kindred v. Northome/Indusfrial Sch. Dist. No. 363, 154 F.3d 801, 803 (8th Cir. 1998), cert. denied, 525 U.S. 1109 (1999) (quoting EEOC v. Cherry-Burrell Corp., 35 F.3d 356, 360 (8th Cir. 1994)) (brackets in original). The standards are also the same under Nebraska law. See Neb. Rev. Stat. § 48-1221. The employee must prove that the employer "pays different wages to employees of opposite sexes for equal work on jobs the performance of which requires equal skill, effort and responsibility, and which are performed under similar working conditions." Kindred at 803 (quoting EEOC v. Delight Wholesale Co., 973 F.2d 664, 669 (8th Cir. 1992)). The defendant does not dispute that the plaintiff and Mategrano were paid different salaries, but contends that no rational finder of fact could find that the skills, efforts, and responsibilities required for the plaintiff's position were equal or substantially similar to those required for Mategrano's position.
Mategrano had twenty years of banking experience before coming to work for the defendant but the evidence is contradictory about whether he had actual experience as a manager of a branch bank. The defendant maintains that Mategrano's primary responsibility was one that the plaintiff did not share: increasing the deposits and loans at the branch. In addition, the record contains some evidence that Mategrano was to call upon his prior banking experience to set up a training department for the defendant's customer service and new accounts employees and branch managers to teach them selling techniques, a responsibility the plaintiff was allegedly not capable of performing.
Cf. Filing No. 77, Pl.'s Index of Evid., Ex. P, Aff. of K. von Aswege at 4, with Filing No. 56, Def.'s Index of Evid., Ex. C, Dep. of J. Burford, 96:24-97:20.
The defendant terminated Mategrano's employment less than a year after it hired him for unsatisfactory job performance. John Burford, the defendant's president, said that Mategrano was fired because he did not generate the deposits and loans he had promised. Filing No. 56, Pl.'s Index of Evid, Ex. C., Dep. of J. Burford, 95:23-96:14, 99:17-100:15.
Mategrano never got around to training any of the defendants employees in selling techniques. Id., 98:11-99:4.
The plaintiff responds that Mategrano is the proper male comparator since both he and the plaintiff were employed as assistant vice presidents and as managers of the same branch. A plaintiff can make a prima facie case "by comparing her salary to that of her predecessor or successor." Simmons v. New Pub. Sch. Dist. No. 8, 2001 WL 575223 *4 (8th Cir. 2001). In addition, the plaintiff notes that the defendant has already named Mategrano — along with other employees — as a proper comparator. Filing No. 77, Pl.'s Index of Evid., Ex. J, Def.'s Second Supp. Answer to Interrogs. No. 19.
Further, the plaintiff notes that while the defendant had no written job description for a branch manager while she and Mategrano worked for the defendant, the defendant subsequently described the functions and duties of the position in the same terms it used to describe the plaintiff's functions and duties rather than Mantegrano's alleged functions and duties. Id., Def.'s Answers to Interrogs. No. 2; Def.'s Second Supp. Answer to Interrogs. No. 19. The plaintiff's own descriptions of her responsibilities are markedly similar to those that the defendant provided. See Filing No. 56, Def.'s Index of Evid., Ex. B, Dep. of V. Zimmerman 75:12-77:11, 246:3-248:33. In addition, both the plaintiff and Mategrano met the skill and education requirements listed in the defendant's written job description. Filing No. 77, Ex. J, Def.'s Answers to Interrogs. No. 2; Def.'s Second Supp. Answer to Interrogs. No. 19.
Based on the defendant's statements that Mategrano was a proper comparator and on its own descriptions of the qualifications for and duties of the job held by Mategrano and the plaintiff, I conclude that the plaintiff has made out a prima facie case that the defendant paid "workers of one sex more than workers of the opposite sex for equal work." Corning Glass Works v. Brennan, 417 U.S. 188, 196 (1974). The defendant's argument that Mategrano had the additional duty of increasing loans and deposits appears to be merely another way of saying he was expected to attract new customers to the branch — a responsibility with which the defendant admits the plaintiff was also charged. Furthermore, while the defendant might have discussed with Mategrano setting up a training department, nothing ever came of the idea. The defendant thus cannot use training as a responsibility that distinguished the plaintiff's position from Mategrano's."Consideration of equal pay standards is based upon actual job requirements and performance, not on job classifications or titles." Homer v. Mary Institute, 613 F.2d 706, 714 (8th Cir. 1980).
In fact, the plaintiff's alleged failure to drum up new business was one of the reasons the defendant gave for terminating the plaintiff's employment.
Once a plaintiff establishes a prima facie case, the burden shifts to the employer to prove by a preponderance that a factor other than sex justified the pay differential. Stevens v. St. Louis Univ. Med Center, 831 F. Supp. 737, 741 (E.D. Mo. 1993). See 29 U.S.C. § 206(d)(1). The defendant argues here that to reach its goal of increasing deposits and loans at the branch bank, it needed the services of an employee like Mategrano, who had more extensive banking experience, training, and business contacts than the plaintiff possessed. The defendant claims that since it hired Mategrano to perform services beyond those the plaintiff could or was asked to perform, it was entitled to pay him more for those services and his experience. "[A]n employer is free to give raises, even large raises, to subsequent employees, so long as it does so for legitimate nondiscriminatory reasons." Simmons v. New Public Sch. Dist. No. 8, 2001 WL 575223, *5 (8th Cir. 2001).
The plaintiff argues that Mategrano's experience and marketing duties could not justify paying him more than she since she had responsibilities which Mategrano did not share. For example, she was a loan officer, unlike Mategrano, with a $25,000 lending authority. She also had six years of banking experience by the time she resigned, four of those as a branch manager, while Mategrano apparently had none, despite his longer tenure in the banking industry.
See supra at 3, note 1.
Viewing the evidence in the light most favorable to the plaintiff, I find that material factual questions remain about whether Mategrano's experience and alleged additional duties justified paying him a significantly higher salary than the plaintiff for substantially the same work. Consequently, whether the pay differential was based on factors other than sex becomes a matter for a jury to decide. The defendant's motion for summary judgment on the plaintiff's equal pay claim is denied.
Hostile Work Environment. The plaintiff alleges that the defendant's president and former president engaged in uninvited offensive conduct of a sexual nature that created a hostile work environment. The defendant contends that many of the events about which the plaintiff complains are barred by the 300-day statute of limitations for sex discrimination complaints. See 42 U.S.C. § 2000e-5(e); Neb. Rev. Stat. § 48-118(2) (charge must be filed with EOC within 300 days after occurrence of alleged unlawful employment practice). Specifically, the defendant contends that any events occurring prior to April 19, 1997 — 300 days prior to the date on which the plaintiff filed a complaint with the NEOC — cannot be considered as evidence of sex discrimination.
The alleged incidents which the defendant maintains fall outside the 300-day limitations period include, for example, Tschida's comments from 1991 to 1993 about the size of women's breasts, hips, and buttocks, and speculations about female customers' sexual activities; Tschida's reference to a female at a 1995 employee Christmas party as "June Cleavage"; Tschida's persistent sexual and ethnic jokes; the plaintiff's 1996 discovery on her desk of a male employee's briefcase containing pornographic magazines and a pornographic video; female employees receiving unwanted touches from several male employees, including Tschida; Burford's "pussy" comments when a female employee was describing how her new kitten had scratched her hands; Burford's 1996 and 1997 comments that women were unable to be competent bank officials because they "make loans with their hearts instead of their heads," "open [their] mouth[s] and nothing important comes out," and "could not make a million dollar loan — it took a man to do it."; Burford's 1996 references to a female customer as a "slutty little bitch" who "got the money from her parents" to pay off a loan with the defendant Burford's 1996 reference to another female customer as a "worthless bitch who lived off her mother"; and Burford's 1997 refusal to hire a qualified female applicant because she was heavyset like another female employee whom Burford referred to by name.
"Conduct which occurred more than 300 days before the date of filing cannot be grounds for a suit unless it is part of a continuing violation which is systematic or serial." Klein v. McGowan, 198 F.3d 705, 709 (8th Cir. 1999) (citing Kimzey v. Wal-Mart Stores, Inc., 107 F.3d 568, 572-73 (8th Cir. 1997)). To fall within this exception for systematic or serial violations, a plaintiff must establish that "some incident of harassment occurred within the 300-day limitations period, and that there is a sufficient nexus between that incident and other instances of harassment." Id. (citations omitted). The defendant argues that under this rule, allegations involving an employee of the defendant named Jim Link must be excluded because the defendant terminated Link's employment on April 24, 1996, almost a year before the 300-day limitations period commenced, and because none of the allegations within the 300-day limitations period connect to the allegations about Jim Link. Likewise, the defendant argues that many of the allegations concerning Eugene Tschida and John Burford cannot be evidence of sex discrimination because they are incidental, isolated events — some occurring as early as 1991 — that took place outside the 300-day limitations period.
The plaintiff does not directly address the defendant's statute of limitations argument in her responsive brief, apparently relying instead on the alleged long-standing pervasiveness of the improper conduct to show a continuing violation. "[W]hen the alleged harassment manifests itself over time, rather than as a series of individual and discrete acts, the plaintiff may be entitled to the continuing violation exception." Schwebach v. Board of Regents, 112 F. Supp.2d 908, 914 (D. Neb. 2000). "A violation is continuing if it consists of `an ongoing pattern or practice of discrimination,' rather than an amalgamation of discrete, isolated instances." Kline v. City of Kansas City, Mo., Fire Dep't., 175 F.3d 660, 665 (8th Cir. 1999) (quoting Rorie v. United Parcel Serv., 151 F.3d 757, 761 (8th Cir. 1998) (further citation omitted).
Since a hostile work environment claim is "by nature" a continuing violation, the Eighth Circuit allows the trial court to consider "`background evidence from the pre-limitations period'" to determine whether the plaintiff's "`work environment during the limitations period was sufficiently hostile.'" Smith v. Ashland, Inc., 2001 WL 527277, *25 (8th Cir. 2001) (quoting Gipson v. KAS Snacktime Co., 83 F.3d 225, 229 (8th Cir. 1996)). To include events prior to April 19, 1997, however, the plaintiff must first establish that the events occurring during the limitations period constitute a hostile work environment. A court can consider evidence from the pre-limitations period only if the plaintiff can establish evidence of hostile work environment within the limitations period. Id.
To establish a prima facie case of hostile work environment, a plaintiff must prove that 1) the plaintiff is a member of a protected group; 2) unwelcome sexual harassment occurred; 3) a causal nexus existed between the harassment and the plaintiff's protected status; 4) the harassment affected a term, condition, or privilege of employment; and 5) the employer knew or should have known of the harassment and failed to take proper remedial action. Klein v. McGowan, 198 F.3d at 709 (citing Carter v. Chrysler Corp., 173 F.3d 693, 700 (8th Cir. 1999)). Conduct is "unwelcome if the plaintiff neither solicits or invites it and regards the conduct as undesirable or offensive." Schwebach v. Board of Regents, 112 F. Supp. 2d at 914 (citing Scusa v. Nestle U.S.A. Co., 181 F.3d 958, 966 (8th Cir. 1999)). The environment "must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so." Stuart v. General Motors Corp., 217 F.3d 621, 631 (8th Cir. 2000). The court must consider "all circumstances of the complainant's employment . . . including the frequency of the offending conduct, its severity, whether it was physically threatening or humiliating, and whether it unreasonably interfered with work performance." Kimzey v. Wal-Mart Stores, Inc., 107 F.3d 568 at 573 (citations omitted). Under this analysis, the court does not "carve the work environment into a series of discrete incidents and then measure the harm occurring in each episode. Instead, . . . `each successive episode has its predecessors, [and] the impact of the separate incidents may accumulate and . . . the work environment may exceed the sum of the episodes.'" Burns v. MacGregor Elec. Inds. Inc., 955 F.2d 559, 564 (8th Cir. 1992) (quoting Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486, 1524 (M.D. Fla. 1991)).
To be objectively hostile, the offending conduct in the working environment must be "severe or pervasive. More than a few isolated incidents are required. . . . A workplace permeated with `discriminatory intimidation, ridicule, and insult' is sufficiently severe to establish a hostile work environment." Kimzey v. Wal-Mart Stores, Inc., 107 F.3d at 573 ( quoting Harris v. Forklift Sys., Inc., 510 U.S. at 21; other citations omitted). But "sexually harassing behavior perpetrated by a supervisor has a `greater power to alter the environment' than similar actions of mere co-workers." Hocevar v. Purdue Frederick Co., 223 F.3d 721, 729 (8th Cir. 2000) (Lay, J., dissenting) (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 805 (1998)).
The plaintiff describes a multitude of incidents involving senior male bank officials that allegedly created a hostile work environment. The defendant contends, however, that the plaintiff can place only the following incidents between April 19, 1997, and February 13, 1998, i.e., during the 300 days before she filed a complaint with the NEOC:
1) At an employee picnic in the summer of 1997 at a private residence, the plaintiff, wearing jean shorts and a t-shirt, emerged from the water after tubing. Tschida allegedly stated, "No wonder she never gets wet."
2) In December 1997, Mike Schwineer, a vice-president of the defendant, allegedly put his arm around the plaintiff's shoulder after a meeting and squeezed her arm.
3) Tschida allegedly commented about the breast and hip size of a female employee, patted that employee and another female employee on the bottom, and put his arm around the plaintiff.
4) Tschida used the word "fuck" at work.
5) Tschida allegedly put a pool cue between a female employee's thighs at an employee picnic at a private residence.
6) Burford allegedly told a female employee to "stop being a woman," indicated that women made poor business decisions, said that women were a problem because they got pregnant, and called the American Business Women's Association a communist outfit.
The plaintiff also admits to using the word "fuck" at work, but only in the employee break room. Filing No. 56, Def.'s Index of Evid., Ex. B, Dep. of V. Zimmerman 68: 1-19.
According to an affidavit signed by the plaintiff, however, four other allegedly offensive incidents occurred either in the "spring of 1997" or in "early 1997." See Filing No. 56, Def's Index of Evid., Ex. G, Aff. of V. Zimmerman at 1-6, ¶ 4A, C, D, E. These events thus may or may not have occurred before April 19, 1997. Because I must view the evidence in the light most favorable to the plaintiff, I will construe the following two incidents from the "spring of 1997" as also having occurred in the limitations period:
7) Burford allegedly referred to female customer of the defendant as "a check-kiting slut," a "bitch" whom he did not want in the bank.
8) Tschida allegedly commented to the plaintiff and to Rich Copple, a senior vice-president of the defendant, "Why is it that [one female employee] in a short skirt just doesn't do the same for you that [another female employee] does?"
Looking at the totality of the circumstances alleged by the plaintiff, I conclude that these alleged incidents are not isolated instances of "blue" jokes or regrettable lapses of manners and good taste. Instead, the incidents alleged are sufficient 1) to show that some offensive conduct occurred within the limitations period, and 2) to permit the plaintiff to introduce background evidence from the pre-limitations period under a continuing violation theory. Further, I find that factual questions exist not only about whether a hostile work environment existed throughout the plaintiff's employment with the defendant, but also about whether the conduct was unwelcome, whether it was objectively pervasive or severe, and whether the plaintiff found the environment personally hostile. The defendant's motion for summary judgment is therefore denied.
Discriminatory Discharge. The defendant contends that the plaintiff's amended complaint "alleges disparte [sic] treatment based on sex." See Def.'s Brief at 18. Where the defendant finds this claim in the amended complaint, however, is unclear. Count I is the Title VII claim alleging discriminatory employment practices based on sex, i.e., the hostile work environment claim; Count II is the Equal Pay Act claim; Count III is the age discrimination claim that the plaintiff has already dismissed; and Counts IV through VI are the various state law claims. Nowhere has the plaintiff explicitly alleged disparate treatment based on sex except insofar as disparate treatment is an inherent element of the plaintiff's Equal Pay Act claim. The plaintiff, however, devotes a considerable portion of her responsive brief to the discussion of a Title VII discriminatory discharge claim. Assuming that the defendant's "disparte treatment" argument addresses the inadequacies of the plaintiff's discriminatory discharge claim, the defendant's motion must nevertheless be denied.
To prove a prima facie case for Title VII discriminatory discharge, a plaintiff must be a member of a protected class who was capable of performing the job and who was discharged under circumstances giving rise to an inference of discrimination. Hanenberg v. Principal Mut. Life Ins. Co., 118 F.3d 570, 574 (8th Cir. 1997). If the plaintif succeeds in establishing a prima facie case, the burden shifts to the defendant to provide a legitimate nondiscriminatory reason for the plaintiff's termination. Lang v. Star Herald, 107 F.3d 1308, 1311 (8th Cir. 1997). Once the employer offers its nondiscriminatory explanation, the plaintiff must produce "sufficient admissible evidence from which a rational fact-finder could disbelieve [the defendant's] proffered reason and find that the company's true motivation for its conduct was intentional discrimination." Id. (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993), and Ryther v. KARE 11, 108 F.3d 832, 837-38 (8th Cir. 1997)).
Here, the defendant claims its legitimate nondiscriminatory reason for terminating the plaintiff was her bad business judgment and lack of managerial skills, particularly with regard to improperly honoring overdrafts, failing to follow bank policies, and not generating new business. This evidence may be sufficient to support the defendant's proffered explanation.
Material questions of fact remain about the plaintiff's professional capacities, however, since the plaintiff alleges that her personnel file contained no written negative performance evaluations prior to her termination. The defendant appears to have added negative documentation to the plaintiff's personnel file only after her termination and/or without her knowledge. In addition, the evidence is undisputed that during the four years she worked as branch manager, the plaintiff's salary went from $17,000 to $27,000 — increases that a marginal employee likely would not have received. Also, as the hostile environment discussion described, Burford also allegedly expressed condescending, dismissive views about businesswomen in general and about women bankers, including the plaintiff, in particular. Male employees were not subjected to the same gender-based evaluation. Since such evidence conflicts with the defendant's characterization of the plaintiff as an incompetent employee, a jury must determine whether the defendant's alleged reasons for terminating the plaintiff's employment were a pretext for discrimination.
IT IS THEREFORE ORDERED that the defendants motion for summary judgment, Filing No. 55, is denied.