Mickelson v. New York Life Ins. Co., 10th Cir. Brief as amicus April 20, 2005 No. 05-3049 _________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT __________________________________________ JENNIFER MICKELSON, Plaintiff-Appellant, v. NEW YORK LIFE INSURANCE CO., Defendant-Appellee. _______________________________________________________________ On Appeal from the United States District Court for the District of Kansas, CIV-03-2294-CM Judge Carlos Murguia ______________________________________________________________ BRIEF OF THE UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF THE PLAINTIFF- APPELLANT AND REVERSAL OF THE DISTRICT COURT _______________________________________________________________ ERIC S. DREIBAND EQUAL EMPLOYMENT OPPORTUNITY General Counsel COMMISSION Office of General Counsel CAROLYN L. WHEELER 1801 L Street, N.W., Room 7032 Acting Associate General Washington, D.C. 20507 Counsel (202) 663-4718 VINCENT J. BLACKWOOD Assistant General Counsel JULIE GANTZ Attorney TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . .iii STATEMENT OF INTEREST. . . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . .2 Proceedings Below . . . . . . . . . . . . . . . . . . . . .2 Statement of Facts. . . . . . . . . . . . . . . . . . . . .3 District Court Decision . . . . . . . . . . . . . . . . . 14 ARGUMENT I. THE DISTRICT COURT IMPROPERLY DISREGARDED EVIDENCE CONTRADICTING THE DEFENDANT'S ASSERTION THAT ITS DECISION TO PAY THE PLAINTIFF LESS THAN MALE EMPLOYEES DOING THE SAME WORK WAS BASED ON NONDISCRIMINATORY FACTORS. . . . . . . . . . . . . . . . . . . . . . . . . 17 A. The District Court Erred in Awarding Summary Judgment to the Defendant on the Plaintiff's Equal Pay Act Claim Because the Defendant Failed to Establish That it Paid the Plaintiff Less Than Her Male Coworkers Based on a Factor Other Than Sex. . . . . . . . . . . . . . . . 18 B. The District Court Erred in Dismissing the Plaintiff's Title VII Wage Discrimination Claim Because the Evidence Would Support a Finding That the Defendant's Stated Reasons for Paying the Plaintiff Less Were a Pretext for Sex Discrimination.27 II. THE DEFENDANT VIOLATED TITLE VII IF IT REFUSED TO ALLOW THE PLAINTIFF TO RETURN TO WORK PART-TIME FOLLOWING A MEDICAL LEAVE OF ABSENCE IN RETALIATION FOR HER COMPLAINTS OF SEX DISCRIMINATION.. . . . . . . . . . . . 29 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 32 CERTIFICATE OF COMPLIANCE CERTIFICATE OF DIGITAL SUBMISSION CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Hillig v. Rumsfeld, 381 F.3d 1028 (10th Cir. 2004) . . . . . . 30 Horner v. Mary Inst., 613 F.2d 706 (8th Cir. 1980) . . . . . . 23 Jeffries v. State of Kansas, 147 F.3d 1220 (10th Cir. 1998) . 30 Kenworthy v. Conoco, Inc., 979 F.2d 1462 (10th Cir. 1992) . . 18 Miranda v. B&B Cash Grocery Store, Inc., 975 F.2d 1518 (11th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . 18 Morgan v. Hilti, Inc., 108 F.3d 1319 (10th Cir. 1997) . . . . 28 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000) 29 Sanchez v. Denver Pub. Sch., 164 F.3d 527 (10th Cir.1998) . . 30 Sprague v. Thorn Americas, Inc., 129 F.3d 1355 (10th Cir. 1997) 27 Stanziale v. Jargowsky, 200 F.3d 101 (3d Cir. 2000) . . . . . 27 Tomka v. Seiler Corp., 66 F.3d 1295 (2d Cir. 1995) . . . . . . 22 Varley v. Superior Chevrolet Auto. Co., No. 96-2119, 1997 WL 161942 (D.Kan Mar. 21, 1997) . . . . . . . . . . . . . . . . . 19 STATUTES Fair Labor Standards Act, 29 U.S.C. § 206(d) . . . . . . . .1, 18 Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq . . . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. § 2000e-3 . . . . . . . . . . . . . . . . . . .30 STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the agency charged by Congress with the administration, interpretation and enforcement of the Equal Pay Act ("EPA") provisions of the Fair Labor Standards Act, 29 U.S.C. § 206(d), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. This appeal presents important issues concerning the proper analysis of one of the Equal Pay Act's affirmative defenses: where a pay disparity is alleged to be based on a factor "other than sex." The case also raises questions regarding the appropriate role of the district court in determining whether the evidence contradicting the defendant's assertion that its decision to pay the plaintiff less than male employees doing the same work was based on nondiscriminatory factors or whether it was a pretext for discrimination in violation of Title VII. Finally, this appeal raises the issue of whether an employer's refusal to allow an employee to return to work part-time after a medical leave of absence constitutes an adverse employment action that could serve as a basis for her retaliation claim. Because resolution of these issues will affect the EEOC's enforcement of the EPA and Title VII, the Commission offers its views to the Court. STATEMENT OF THE ISSUES 1. Whether the district court erred in finding that the defendant conclusively established that the higher salaries of its male marketing consultants were based on factors other than sex. 2. Whether a reasonable jury could find that the defendant's proffered reasons for paying the plaintiff less than two male employees performing the same job were a pretext for sex discrimination. 3. Whether the defendant's refusal to allow the plaintiff to return to her job part-time following a medical leave of absence constituted an adverse employment action.<1> STATEMENT OF THE CASE Proceedings Below This is an appeal from a final judgment of the United States District Court for the District of Kansas dismissing this action. The complaint alleges that the defendant violated the Equal Pay Act and Title VII by paying the plaintiff less because of her sex than male employees performing the same job. Appellant's Separate Appendix Volume I ("I-ASA") 13-14. The plaintiff also alleges that the defendant violated Title VII by retaliating against her for complaining about her salary by, inter alia, not allowing her to return to work part-time following a medical leave of absence. I-ASA 28-29 (Pretrial Order). The district court issued an order granting summary judgment to the defendant on January 24, 2005; judgment for the defendant was entered the same day. II-ASA 553, 555. The plaintiff filed a notice of appeal on January 28, 2005. II-ASA 556-57. Statement of Facts Jennifer Mickelson was hired by New York Life Insurance Co. ("NYL") in September 2000 as a Marketing Services Consultant ("MSC") at its Leawood, Kansas office. I-ASA 13 (Complaint ¶ 7). An MSC is a sales support employee who assists the company's marketing representatives, called Field Directors, in promoting the sale of the defendant's life insurance products to independent brokers. I-ASA 89, 90 (Gardner Dep. 7, 10). According to the job description, the principal duty of the MSC is "[t]o promote sales by acting as a liaison with our Brokerage General Agents, Producers, Producer Groups, Field Directors and any other contracted Marketing entity." II-ASA 366. Qualifications desired were a bachelor's degree or equivalent work and at least five years related experience. Id. MSCs were required to have or obtain a Series 6 securities license, which authorizes an individual to sell mutual funds and variable life insurance products.<2> I-ASA 93 (Gardner Dep. 22-23). During college, Mickelson worked for four years, both full- and part-time, at Lincoln Benefit Life Insurance Company ("LBL"). II-ASA 395 (LBL Employment Records); II-ASA 384-85 (Mickelson Decl. ¶ 1). She initially worked as a data prep clerk, then as a full-time customer service agent at Allstate Insurance, LBL's parent company. II-ASA 384. For the last part of her tenure with LBL, Mickelson worked for approximately six months as a marketing services representative, a job similar to the MSC position at NYL. II-ASA 385. In that capacity, she was "responsible for accommodating producers' sales needs; explained life insurance and annuity products to agents, assisted in determining appropriate products for clients and created product illustrations." I-ASA 286 (Mickelson Resume). Mickelson testified that she "had to know the ins and outs of over 40 life insurance and annuity products that the company offered." I-ASA 199. Because LBL sold variable insurance products, she obtained experience working with broker-dealers. I-ASA 267. She left LBL to attend law school at the University of Nebraska. II-ASA 394 (LBL Employment Records). While in law school, she completed several projects for LBL. I-ASA 237-38 (Mickelson Dep. 173-74). NYL has no written policies regarding the setting of salaries. I-ASA 115 (Begley Dep. 47). Louis Gardner, a vice president in charge of sales who supervises the Field Directors, testified that when he hires someone, he documents the factors considered in setting the salary and forwards it to John Begley, the human resources director at the Leawood, Kansas office, as required by NYL. I- ASA 100. Gardner stated that "one's experience is really the most important" of the factors in performing the MSC job. I-ASA 95. He explained that experience is defined as "knowing the difference between term, whole life, universal life, variable life and variable universal life, knowing the differences, comparing and contrasting the various concepts of split dollar, deferred compensation, salary continuation plans and being able to then converse and make recommendations based on the needs of the client. . . ." Id. Mickelson's starting salary at NYL was $50,000. II-ASA 371. James Vavra, a vice president in charge of operations in the Leawood office, testified that NYL arrived at Mickelson's salary by looking at "what we were able to pay and what seemed reasonable given her knowledge, experience and education within that range and again relative to the other people in the unit with their knowledge, experience and so forth." I-ASA 158. Mickelson had a competing offer to fill a similar marketing position at Kansas City Life Insurance at the time she accepted the NYL offer. She testified the offer was $45,000, plus the company would pay her bar dues and bar exam costs. I-ASA 232. Mickelson was assigned to the M Financial Group, a subset of the Sales Support Unit. II-ASA 385 (Mickelson Decl. ¶ 2). The M Group is an elite group of offices throughout the U.S. which produce large sums of premiums. I-ASA 179-80 (Hairgrove Dep. 37-38). It is considered "the premier . . . marketing organization of the life insurance business." I-ASA 136 (Begley Dep. 131-32). NYL considered Mickelson's law degree an asset. Human Resources director John Begley told Mickelson during her interview that her law degree would be helpful for the position. I-ASA 262 (Mickelson Dep. 265-66). Tracie Billings, Mickelson's supervisor, acknowledged that her law degree "add[ed] credibility." II-ASA 304. See also I-ASA 185 (Hairgrove Dep. 58-59) (it would be an advantage to have someone with a legal background working with the M Group because that person would be familiar with legal documents involved in advanced estate planning and would be more successful and credible). Vavra testified that, although Mickelson "really didn't have much of a salary history, . . . the law degree that she had completed was acknowledgment of her aptitude and . . . to that degree we had an expectation that she can be a quick study and a fast learner." I-ASA 158, 159. Mickelson's superiors discussed her law degree "frequently" and said "that it was very helpful." I-ASA 262 (Mickelson Dep. 264-66). Mickelson was told she was assigned to the elite M Group because she had a law degree. Id. Mickelson utilized her law degree in performing her MSC duties. She often conducted business with other lawyers, and her degree added credibility to these interactions. I-ASA 262, 218 (Mickelson Dep. 264, 101). She had access to estate planning publications and seminars, professional databases and valuable networking opportunities among estate planning organizations. I-ASA 218 (Mickelson Dep. 100-01). Mickelson used her knowledge of estate law in performing some tasks, such as creating an estate planning illustration for one of NYL's marketing attorneys. II-ASA 372-81 ("Planning for Leverage in the Large Estate"). Mickelson testified that "our entire job was estate planning related. And for you to be licensed to practice law when you're in estate planning, puts you at an advantage when you're working for producers who are also licensed to practice law to do estate planning." I-ASA 218. Vavra testified that NYL was "really quite pleased with Jennifer's performance" and that Mickelson "was a quick study, she learned the job very quickly, and . . . we were happy with the way she was developing in the unit." I- ASA 155. Mickelson earned a Series 6 license within her first year at NYL. II- ASA 408. She also attained the designations of Fellow of Life Management Insurance (FMLI) and Chartered Life Underwriter (CLU), both of which are multi- course continuing education opportunities in the life insurance field. II-ASA408; II-ASA447; II-ASA 383. Vickie Day was hired in October 2000 as an MSC and given a starting salary of $50,000. II-ASA 422 (Day Employment Records). She had five years' experience in the life insurance industry, Series 6 and 63 licenses, and had been earning $48,000 in her prior job at Northwestern Mutual as an associate agent. II- ASA424; II-ASA 426. In December 2000, NYL hired Mark Shelton as an MSC. His starting salary was $60,000. I-ASA 28 (Pretrial Order). Vavra testified that Shelton was paid $10,000 more than Mickelson because "his salary history had him at a much higher level than Ms. Mickelson and that was why." I-ASA 149. Vavra also testified that Shelton had 18 years of experience in the life insurance industry. I- ASA 153. He stated that, "[t]he main expectation was that based on his knowledge and experience [Shelton] would be able to be contributing at a 100 percent level with a shorter learning curve than someone who did not have that level of experience." I-ASA 149. Shelton was earning $43,000 base salary in the job he had before starting at NYL, $30,000 in the job prior to that, and had earned $60,000 in a position he left in 1994. I-ASA 123-24 (Begley Dep. 81-82). At the time Shelton was hired, Susan Hairgrove had been an MSC at NYL for nine years and was earning $52,900. II-ASA 436 (Notice of Salary Change). According to Vavra, Shelton was paid more than Hairgrove because "Mr. Shelton had twice that much work experience" and "his former salary was such that we thought that we needed to bring him in at that level." I-ASA 156. On February 1, 2002, NYL hired Kevin Harriman as an MSC at a salary of $60,000. I-ASA 28 (Pretrial Order). Harriman had approximately seven years of work experience, but little experience marketing life insurance products. II-ASA 308 (Harriman Resume). He had worked as a mutual fund representative, as a securities trader for a financial services subsidiary of a life insurance company, and as a marketing/business analyst for a life insurance company. Id. Harriman had been unemployed for the six months prior to his hiring date. I-ASA 119 (Begley Dep. 65). Mickelson stated that Harriman "told us in the interview that he was desperately looking for a position." II-ASA 447 (Internal Complaint). Harriman had been earning $55,000 before he was laid off. II-ASA 293 (Billings Dep. 18). At the time he was hired, he was studying to obtain a masters degree in business administration, although he represented on his resume that he had already obtained the degree. II-ASA 294 (Billings Dep. 25). He had Series 6, Series 7, and Series 63 licenses. II-ASA 308 (Harriman Resume). A Series 7 license is required to become a stockbroker. I-ASA 147 (Vavra Dep. 23). Harriman's job duties as an MSC did not include selling stocks. Id. John Begley testified that a Series 7 license was not relevant to the MSC's job duties. I-ASA 134. According to Mickelson, "The Series 7 would be applicable in general for a general estate planning office. But for somebody who only sells variable life insurance products, it's totally unnecessary." I-ASA 221. Begley testified that NYL wanted to expand its business into offering variable life insurance products, and "penetrate the broker-dealer market." I-ASA 120. Billings maintained that she selected Harriman because of his experience in the broker-dealer market. II-ASA 294. Vavra also testified that Harriman "was hired specifically given his securities background and training to in effect improve our bench strength in the variable product service and marketing area." I-ASA 147. However, Vavra acknowledged that in 2001, months before Harriman was hired, "the market crashed and the appeal of variable products wasn't what we had expected and hoped it would be." I-ASA 155-56. Consequently, Harriman was not able to use his broker-dealer experience at NYL. I-ASA 158 (Vavra Dep. 67). Begley testified that NYL was never able to tap into this market, and at the time of his deposition, the company was "still trying." I-ASA 120 (Begley Dep. 68). When asked if the MSC job description "would allow or require someone to use their experience in the broker dealer market in performing this job," Begley replied, "I don't believe so." I-ASA 125. Soon after Harriman started, Mickelson had to teach him a concept significant in performing the MSC position. She stated, "Kevin [Harriman] admitted to me that he didn't know what split dollar is via e-mail. I had to run an illustration for him and it was very basic. This is something that is critical to our position." II-ASA 389 (EEOC Time Line); see also I-ASA 223 (Mickelson Dep. 120). There exists no documentation of how Harriman's salary was set. Billings testified that she came up with the $60,000 offer. II-ASA 292, 296. Billings had no training or experience in setting salaries and had never hired anyone. II-ASA 296 (Billings Dep. 33). Billings testified that she set Harriman's salary at $60,000 based on the salary he had been making before he was unemployed. Id. She stated that "we take into consideration the value added, . . . their skills, their education." II-ASA 297 (Billings Dep. 35). Vavra testified that he and Begley were also involved in setting Harriman's salary. I-ASA 146. Vavra maintained that Harriman was offered $60,000 because of his securities background and because he "had multiple job offers and . . . we were in competition for his services, and . . . we felt that that was the number we needed to be able to hire him." I-ASA 154. In February 2002, approximately a week after Harriman was hired, Mickelson saw Harriman's offer letter and learned that he was offered a salary $10,000 higher than her starting salary. II-ASA 446 (Internal Complaint). Because Mickelson actively participated in the hiring process, she was familiar with Harriman's experience and qualifications. Id. On February 15, Mickelson sent a written complaint detailing the salary discrepancy to Peggy Carter in the Human Resources Department of NYL's home office in New York. II-ASA 445. Mickelson then met with Billings and Vavra about her complaint. At the meeting, Vavra wrote down four criteria he said he used to set salaries: "experience, qualifications, market factors, salary history." II-ASA 429; I-ASA 143 (Vavra Dep. 7-8). Vavra testified that he came up with these factors based on "memory just from experience in training I have had over the years." I-ASA 143. He defined "market factors" as "what the market demand is and what people are paid in the open market for that position," which determines the "pay grade level." I- ASA 147. Vavra stated that "the office has the discretion to determine within that range what to pay." Id. On February 28, 2002, Ladonna Carr, a Human Resources Employee Counselor in NYL's home office, informed Mickelson that the disparity between Mickelson's and Harriman's salaries was justified by "Harriman's and your relevant experience in the broker-dealer market, the Company's current need for expertise in that market, your relative salary histories and NASD licensing exams you have each taken and successfully completed . . . ." II-ASA 431. The MSC position held by Mickelson, Vickie Day, Susan Hairgrove, Harriman, and Shelton in the Marketing Support Unit of the Leawood, Kansas, office was the same. I-ASA 118 (Begley Dep. 58); I-ASA 212 (Mickelson Dep. 75-76). Vavra testified that "[Mickelson's and Harriman's] job descriptions were the same and their job duties were essentially the same," and "[i]n fact and in practice [Harriman's] responsibilities were essentially the same [as Mickelson's] on a day-to-day basis." I-ASA 155, 156. Billings, who supervised Harriman and Mickelson, stated: "The job per se is the same. What sets the salary apart is qualifications." II-ASA 304. After Mickelson complained about being paid less than Harriman, Mark Shelton was given a new title of "Senior" Marketing Services Consultant. NYL ordered new business cards reflecting the title in June 2002. II-ASA 369. Shelton admitted to Mickelson that he had just been told it was his new title and had been provided with the new business cards. II-ASA 390 (EEOC Time Line). In December 2002, Mickelson began a medical leave for stress, anxiety, and depression. I-ASA 276 (Mickelson Dep. 320-21). On December 27, 2002, she requested to return to her job part-time (II-ASA 453), but this request was denied. II-ASA 452. After her leave was exhausted and she did not return to work, she was terminated on February 20, 2003. II-ASA451. NYL's Employee Handbook provides that leave for a serious health condition "can be taken intermittently or on a reduced schedule if medically necessary." II-ASA 439. Several NYL employees were permitted to work part-time while recovering from medically-related leaves of absence. Susan Hairgrove returned to work part-time following a back injury in December 2002. I-ASA 189 (Hairgrove Dep. 77). Hairgrove worked 2 ½ months part-time before taking on full-time job duties. I-ASA 190 (Hairgrove Dep. 78). Two other employees were allowed to return to work part-time temporarily while recovering from medical conditions. II-ASA 497-98 (Kunz Decl. ¶ 3). Mickelson filed a charge with the EEOC in March 2002. I-ASA 14 (Complaint ¶ 21). On January 31, 2003, the EEOC issued a determination letter finding cause to believe gender-based salary discrimination occurred. II-ASA 454-55. On May 22, 2003, Mickelson filed suit in district court . I-ASA 12-13. District Court Decision In considering Mickelson's Equal Pay Act claim, the district court noted that, "[f]or purposes of summary judgment, the defendant does not dispute that plaintiff has proven her prima facie case" by establishing that she was paid less than male employees who performed substantially equal work. II-ASA 547. Accordingly, the only issue is whether "any pay disparity between plaintiff and male co-workers was based on factors other than sex." Id. at 547-48. The court noted that, "[b]ecause defendant bears the burden of proof on its defense, defendant may prevail at the summary judgment stage only if it proves its affirmative defense so clearly that no rational jury could find to the contrary." Id. at 548 (internal quotation and citations omitted). The court stated that, "[v]iewing the facts in the light most favorable to the plaintiff, plaintiff had, at the most, six and a half years of prior part-time experience in the life insurance industry before defendant hired her," and, while she had a law degree, she did not yet have a series 6, 7, or 63 licence. Id. (emphasis original). The court noted that Vickie Day, who was also paid a lower starting salary, "had five years of full-time experience in the life insurance industry" and "a college degree and her Series 63 and 6 licenses." Id. Mark Shelton "had nearly 20 years of prior full-time experience in the life insurance industry and had held jobs similar to the MSC position . . . ," and, the court noted, Kevin Harriman "had his Series 6, 7, and 63 licenses, had a college degree and was completing his MBA degree, and had nearly nine years of prior full-time experience in the life-insurance industry" as well as "experience in the broker market, where defendant was trying to develop business." Id. at 548-49. The court emphasized that the plaintiff was told after she complained about the salary disparity that "experience, qualifications, market factors, and salary history justified the difference in plaintiff's and Harriman's salaries," and that the defendant's internal investigation into the plaintiff's complaint revealed that the disparity "was a result of different experience, salary histories, and completion of licensing exams." II-ASA 549. The court also stated that the defendant "consistently asserted" that the men were started at higher salaries than the plaintiff or Day because they had "several more years experience in the life insurance industry" and because of their "qualifications." Id. The court concluded that "defendant has shown that its consideration of the vast difference in years of experience and qualifications between the plaintiff, Day, Harriman, and Shelton, as well as of prior salary histories, was the reason for the disparity in pay between the MSCs." Id. For the same reason, the court dismissed the plaintiff's Title VII claim. "Like its defense of the EPA claim, defendant has articulated legitimate, non- gender based reasons for the pay disparity – differences in experience, qualifications, and prior salary history." Id. at 550. The court disregarded two affidavits offered by Mickelson from other female employees detailing their own treatment by defendant as conclusory and unsupported. The court found that "none of the evidence in the record reveals that defendant paid plaintiff less than the male MSCs because of her sex." Id. The court also granted summary judgment for the defendant on Mickelson's retaliation claim after determining that the alleged retaliatory actions did not constitute adverse employment actions. The court stated, "defendant's actions toward plaintiff did not result in a significant change in her employment status, reassignment with significantly different responsibilities, or a change in her benefits." II-ASA 551. Instead, most of the conduct about which Mickelson complained, the court said, "amounts to no more than inconveniences or altered job responsibilities." Id. at 552. The court stated that NYL's denial of Mickelson's request to return to work following a medical leave on a part-time basis "did not change her employment status or benefits." Id. at 553. Accordingly, the court concluded, the defendant's denial of this request "does not qualify as an adverse employment action under Title VII." Id. ARGUMENT I. THE DISTRICT COURT IMPROPERLY DISREGARDED EVIDENCE CONTRADICTING THE DEFENDANT'S ASSERTION THAT ITS DECISION TO PAY THE PLAINTIFF LESS THAN MALE EMPLOYEES DOING THE SAME WORK WAS BASED ON NONDISCRIMINATORY FACTORS. A. The District Court Erred in Awarding Summary Judgment to the Defendant on the Plaintiff's Equal Pay Act Claim Because the Defendant Failed to Establish That it Paid the Plaintiff Less Than Her Male Coworkers Based on a Factor Other Than Sex. An employer violates the EPA by paying a female employee less than a man for performing equal work, "except where such payment 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). It is undisputed in this case that Mickelson was paid less than at least two male employees who were performing work substantially equal to hers. Accordingly, NYL is liable under the EPA unless it can establish one of the four exceptions set out in the statute. "The employer's burden of proof on exceptions to the Equal Pay Act is a heavy one." Kenworthy v. Conoco, Inc., 979 F.2d 1462, 1467 (10th Cir. 1992); see also Miranda v. B&B Cash Grocery Store, Inc., 975 F.2d 1518, 1533 (11th Cir. 1992) ("The Equal Pay Act prescribes a form of strict liability: Once the disparity in pay between substantially similar jobs is demonstrated, the burden shifts to the defendant to prove that a ‘factor other than sex' is responsible for the differential. If the defendant fails, the plaintiff wins. The plaintiff is not required to prove discriminatory intent on the part of the defendant."). NYL has asserted only the fourth exception, stating that Mickelson was paid less based on factors other than sex. The district court granted summary judgment dismissing Mickelson's EPA claim because it concluded that the defendant had established that she was being paid less than two male coworkers based on the factors asserted by NYL. As the district court itself acknowledged, this Court has held that an EPA defendant is not entitled to summary judgment on this affirmative defense unless the evidence that its decision was in fact based on these factors is so strong that "‘no rational jury could find to the contrary.'" II-ASA 548 (quoting Klindt v. Honeywell Intern., Inc., 303 F. Supp. 2d 1206, 1219 (D. Kan. 2004)). Summary judgment was not warranted under this standard because there is substantial evidence contradicting NYL's assertion that the challenged salary disparity was based on factors other than sex. NYL contends that the disparity between the plaintiff's salary and the salaries paid to Shelton and Harriman, two men performing the same job, is based on each employee's relevant experience, qualifications, salary history, and "market factors." These considerations could in theory constitute factors other than sex. See Varley v. Superior Chevrolet Auto. Co., No. 96-2119, 1997 WL 161942, at *11 (D. Kan Mar. 21, 1997) ("Courts have determined that an individual's experience, market value, management potential, and former salary are ‘factors other than sex' as defined under 29 U.S.C. § 206(d)(1) and thus permit an employer to pay higher salaries based on these factors."). However, NYL has failed to conclusively establish that these were in fact the reasons it paid its male MSCs more than the plaintiff. Regarding the years of experience of the male employees, Shelton had considerably more work experience than the plaintiff, and that factor viewed in isolation could explain why his starting salary was $10,000 higher than the plaintiff's. However, NYL's assertion that years of experience was an important factor in setting salaries is undermined by the fact that the company paid the same higher starting salary to Harriman who had appreciably less experience than Shelton, and arguably no more relevant experience than the plaintiff. While Harriman had approximately seven years of work experience, very little of it had anything to do with the marketing of life insurance. Although some of Mickelson's experience in the insurance industry was part-time, she had been an MSC with NYL for 18 months at the time Harriman was hired and she had done nearly the same job for LBL for a six-month period. It was Mickelson who taught the allegedly more experienced Harriman a basic concept central to the MSC job. Gardner testified that experience was the most important of the factors in performing the MSC job and defined experience as "knowing the difference between term, whole life, universal life, variable life and variable universal life, knowing the differences, comparing and contrasting the various concepts of split dollar, deferred compensation, salary continuation plans and being able to then converse and make recommendations based on the needs of the client. . . ." I-ASA 95. Mickelson stated, "Kevin [Harriman] admitted to me that he didn't know what split dollar is via e-mail. I had to run an illustration for him and it was very basic. This is something that is critical to our position." II- ASA 389 (EEOC Time Line); see also I-ASA 223 (Mickelson Dep. 120). Furthermore, NYL's purported reliance on years of experience is undermined by the fact that Harriman was paid more than Susan Hairgrove, who had been with NYL as an MSC since 1993 and thus had more years of experience doing the precise job at issue than Harriman had doing unrelated jobs predominantly in securities trading. Yet Harriman was offered a starting salary higher than Hairgrove's salary after nine years at NYL. Mickelson and another female MSC, Vickie Day, who had five years of experience, both received $50,000 as starting salaries, and Hairgrove was earning under $60,000 at the time both men were hired. Based on these facts, a jury would be entitled to find that the common denominator for higher salaries was maleness, not years of experience. At the least, a jury would not be compelled to find that experience in fact explained the wage gap at NYL. Consequently, such evidence precludes an award of summary judgment to defendant on an affirmative defense it has the burden of proof to establish as a matter of law. See, e.g., Tomka v. Seiler Corp., 66 F.3d 1295, 1312 (2d Cir. 1995) (defendant's mere assertion that male employee's salary was based on his experience is insufficient to meet its burden of persuasion to show both that it based the higher salary on this factor and that experience is a job- related qualification for the position in question), abrogated on other grounds, Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998). Both the defendant and the district court emphasized that Kevin Harriman had experience in the securities industry and working with broker-dealers, a market NYL reportedly wanted to enter by offering more variable life insurance products that are tied to the stock market. The district court improperly accepted as true NYL's assertion and ignored significant contrary evidence. According to one of defendant's witnesses, "in 2001 the market crashed and the appeal of variable products wasn't what we had expected and hoped it would be." I-ASA 156 (Vavra Dep. 58). Harriman was hired in February 2002, after the market for the products about which he had special skills had "crashed." NYL never entered this marketing area and Harriman did not use his securities background or Series 7 license. John Begley testified that NYL was never able to tap into this market. When asked if the MSC job description "would allow or require someone to use their experience in the broker dealer market in performing this job," Begley replied, "I don't believe so." I-ASA 125. Harriman's securities experience could, in theory, justify a wage differential only if it related to the requirements of the job or to Harriman's performance of the job. See, e.g., Horner v. Mary Inst., 613 F.2d 706, 714 n.8 (8th Cir. 1980) (experience was a valid "factor other than sex" if the male employee's job required use of that experience). Accordingly, the evidence does not compel a finding that Harriman's securities experience explains his higher salary. NYL also offered "qualifications" as another "factor other than sex." Mickelson started at NYL after she earned a law degree from the University of Nebraska. Mark Shelton did not have an advanced degree. Kevin Harriman was in the process of earning a business degree at the time he applied to NYL, although he represented on his resume that he already had completed the degree. The district court was dismissive of Mickelson's law degree. However, a jury could find that Mickelson had superior qualifications because of her law degree. NYL assigned Mickelson to the M Financial Group, an elite subset of the Sales Support Unit considered "the premier marketing organization of the life insurance business." I-ASA 136. Mickelson testified that she had been told she was assigned to this group because she had a law degree. During her interview, John Begley told Mickelson that her law degree would be helpful for the position. Mickelson's supervisor, Tracie Billings, acknowledged that Mickelson's law degree added credibility to her interactions with clients. Vavra maintained that although Mickelson "really didn't have much of a salary history," because of "the law degree that she had completed was acknowledgment of her aptitude and . . . to that degree we had an expectation that she can be a quick study and a fast learner." I-ASA 158, 159. Mickelson testified that her superiors discussed her law degree "frequently" and said "that it was very helpful." I-ASA 262. Mickelson testified that she utilized her law degree in performing her MSC duties. Mickelson asserted that she often conducted business with other lawyers, and her degree added credibility to these interactions. She had access to estate planning publications and seminars, professional databases and valuable networking opportunities among estate planning organizations. Mickelson used her knowledge of estate law in performing some tasks, such as creating an estate planning illustration for one of NYL's marketing attorneys. Mickelson testified that "our entire job was estate planning related. And for you to be licensed to practice law when you're in estate planning, puts you at an advantage when you're working for producers who are also licensed to practice law to do estate planning." I-ASA 218. Both the defendant and the district court emphasized that the plaintiff did not have a Series 6, 7, or 63 license as did Harriman. However, after she started with NYL, the plaintiff obtained her Series 6 license, the only securities license required for the MSC position. Although Harriman had a Series 7 license, which is required to be a stockbroker, Harriman's job duties as an MSC did not include selling stocks. NYL did not require its MSCs to have Series 7 licenses, and at least one of NYL's witnesses testified that a Series 7 license was not relevant to the MSC's job duties. See I-ASA 134 (Begley Dep. 122). Nor is there evidence in the record suggesting that a Series 63 license was necessary or even helpful in performing the MSC job. Additionally, Vickie Day had Series 6 and 63 licenses before starting at NYL, but received the same $50,000 starting salary as the plaintiff. A jury could discount the defendant's contention that these were significant attainments that in part justified Harriman's $60,000 salary. When the evidence is viewed in the light most favorable to the plaintiff, it certainly does not compel a finding that the higher salary paid to Harriman was based on his superior qualifications. NYL also failed to establish that the challenged salary disparity was based on the employees' salary histories or NYL's need to compete for employees because there is evidence that these factors were not applied consistently to new hires. NYL asserts that it offered Harriman a starting salary of $60,000 at least in part because he had competing offers and a high offer was necessary to obtain his services. However, the only evidence of this is Vavra's recollection that Harriman had other offers. See I-ASA 154 (Vavra Dep. 53). There is also evidence that Harriman had been unemployed for six months prior to his hiring date, had been earning $52,500 at his previous job, and stated at his interview that "he was desperately looking for a position." II-ASA 447. In light of this evidence, a reasonable jury could find NYL's assertion that it was necessary to offer him $60,000 because of market factors unconvincing. Moreover, there is evidence that Shelton, who was earning $43,000 in his previous job, was offered $60,000 by NYL, while Vickie Day, who was earning $48,000, was offered only $50,000. Based on these facts, the evidence does not establish that salary history and the need to compete for new employees were responsible for the wage discrepancy between Mickelson and Shelton and Harriman. Based on the above evidence, none of the reasons given by defendant and accepted by the district court conclusively establish that a factor other than sex explained the salary discrepancy. At most, the defendant's evidence merely raises a factual issue as to whether any or all of these factors explain the wage disparity between Mickelson and her former male coworkers. The defendants' reasons could explain the wage disparity, but the evidence in the record does not compel this conclusion. See Stanziale v. Jargowsky, 200 F.3d 101, 108 (3d Cir. 2000) ("Because it was appellees' burden to establish this fact ‘so clearly that no rational jury could find to the contrary,' the grant of appellees' motion for summary judgment as to the Equal Pay Act . . . is error.") (internal citation omitted). Given NYL's "heavy burden," summary judgment was not warranted on the plaintiff's EPA claim. B. The District Court Erred in Dismissing the Plaintiff's Title VII Wage Discrimination Claim Because the Evidence Would Support a Finding That the Defendant's Stated Reasons for Paying the Plaintiff Less Were a Pretext for Sex Discrimination. The district court also granted summary judgment on Mickelson's Title VII wage discrimination claim. The court correctly recognized that the factual issue central to the Title VII claim is the same as the issue in the EPA claim, i.e., whether NYL's decision to pay Mickelson less than her male colleagues was based on factors other than sex. However, under Title VII, once NYL produced evidence of a nondiscriminatory explanation for the salary disparity, Mickelson had the burden of proving that this explanation was pretextual. See Sprague v. Thorn Americas, Inc., 129 F.3d 1355, 1363 (10th Cir. 1997) (under Title VII, once the defendant advances "non-gender based reasons" for paying a female plaintiff less than a man who "occupies a similar job," the plaintiff must show that the non-discriminatory explanation was a pretext for intentional sex discrimination). Pretext can be shown by "‘such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons.'" Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997) (quoting Olson v. Gen'l Elec. Astrospace, 101 F.3d 947, 951-52 (3d Cir. 1994). NYL is not entitled to summary judgment on this claim because there is sufficient evidence to support a finding that NYL's assertion that the salary disparity was based on differences in experience, qualifications, and prior salary history was not the true explanation for its action. As detailed above, there is evidence that Mickelson had more relevant experience than Harriman, particularly because she had been doing the MSC job a year and a half at the time he was hired. There is also evidence that Mickelson had stronger qualifications than Harriman, specifically because she had a law degree which NYL officials recognized as an asset to the MSC position. Furthermore, Mickelson's testimony that Harriman "told us in the interview that he was desperately looking for a position" weakens NYL's assertion that they had to pay him $60,000 to match a prior salary or lure him away from a competing job offer. The plaintiff also offered evidence that Mark Shelton's title was changed to "Senior Marketing Consultant" a year and a half after he was hired and several months after Mickelson complained to NYL about being paid less than Kevin Harriman. A jury could find this evidence to be a post-hoc justification of a male MSC's higher salary in response to Mickelson's complaint. Accordingly, a jury considering all the evidence could find that the defendant's justifications are not the real reasons Harriman and Shelton were paid more than the plaintiff, and infer that the company gave a false explanation to cover up sex discrimination. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000) ("Proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive."). II. THE DEFENDANT VIOLATED TITLE VII IF IT REFUSED TO ALLOW THE PLAINTIFF TO RETURN TO WORK PART-TIME FOLLOWING A MEDICAL LEAVE OF ABSENCE IN RETALIATION FOR HER COMPLAINTS OF SEX DISCRIMINATION. Section 704(a) of Title VII makes it unlawful "for an employer to discriminate against any of his employees or applicants for employment . . . because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII]." 42 U.S.C. § 2000e-3. Mickelson alleges, inter alia, that she was not allowed to return to work from her medical leave on a part-time basis because she complained about the sex-based pay disparity. The district court granted summary judgment for the defendant on all of the plaintiff's retaliation claims on the ground that the alleged retaliatory actions did not constitute adverse employment actions. The court stated specifically that the denial of Mickelson's request to return to work part-time was not actionable because it "did not change her employment status or benefits." II- ASA 553. The district court's ruling with respect to the denial of the part-time request cannot be reconciled with the language of § 704(a) and this Court's precedent. This Court has stated that the scope of Title VII's protection against retaliation should be "liberally defined." Sanchez v. Denver Pub. Sch., 164 F.3d 527, 532 (10th Cir. 1998); see also Jeffries v. State of Kansas, 147 F.3d 1220, 1232 (10th Cir. 1998). "‘Such [adverse employment] actions are not simply limited to monetary losses in the form of wages or benefits. Instead, we take a case-by-case approach, examining the unique factors relevant to the situation at hand.'" Hillig v. Rumsfeld, 381 F.3d 1028, 1031 (10th Cir. 2004) (quoting Sanchez, 164 F.3d at 531). In this case, because Mickelson had exhausted her leave and was not able to work full-time, NYL's refusal to allow her to work part-time prevented her from returning to work and resulted in her termination. This constitutes a change in Mickelson's employment status–a drastic one–and qualifies as an adverse employment action under any standard, particularly the liberal approach taken by this Court. Accordingly, this Court should reverse the district court's grant of summary judgment to the defendant on this claim. CONCLUSION For the reasons stated above, the district court's grant of summary judgment should be reversed and this case should be remanded to the district court for further proceedings. Respectfully submitted, ERIC S. DREIBAND General Counsel CAROLYN L. WHEELER Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel ________________________ JULIE L. GANTZ Attorney U.S. EQUAL EMPLOYMENT COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7032 Washington, D.C. 20507 (202) 663-4718 April 20, 2005 CERTIFICATE OF COMPLIANCE I hereby certify that this brief is proportionally spaced and complies with the type-volume limitations set forth in Fed. R. App. P. 32(a)(7)(B) and 29(d). The brief contains 6,974 words. I relied on WordPerfect 9 to obtain the word count. _______________________ Julie L. Gantz CERTIFICATE OF DIGITAL SUBMISSION I hereby certify that all required privacy redactions have been made, and that with the exception of those redactions, the amicus brief submitted in PDF form is an exact copy of the written brief filed with the Clerk. The PDF submission has been scanned for viruses with the Symantec AntiVirus Corporate Edition software, using the 4/16/2005 update to virus definitions. According to this program, the brief submitted is free of viruses. _______________________ Julie L. Gantz CERTIFICATE OF SERVICE I hereby certify that on April 20, 2005, I served two copies of the foregoing brief by first class mail, postage pre-paid, and one copy by electronic mail, to the following counsel of record: Counsel for the Plaintiff: Mark A. Buchanan SANDERS, SIMPSON & FLETCHER, L.C. 1125 Grand Boulevard, Suite 1400 Kansas City, MO 64106 Counsel for the Defendant: Elaine Drodge Koch Heather Esau Zerger BRYAN CAVE LLP 3500 One Kansas City Place 1200 Main Street Kansas City, MO 64105 _____________________ Julie L. Gantz Attorney U.S. EQUAL EMPLOYMENT COMMISSION Office of General Counsel – Appellate Services 1801 L Street, N.W., Room 7032 Washington, D.C. 20507 (202) 663-4718 ******************************************************************** <> <1> The Commission takes no position on any other issue raised in this appeal. <2> Variable life insurance products are “mutual funds inside of an insurance wrapper,” I-ASA 92 (Gardner Dep. 21), i.e., products where the cash value of an insurance policy is located in an investment portfolio and premiums are invested in the stock market through a broker-dealer. See also I-ASA 93 (“Mutual funds are the underlying investments within a variable life product”).