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FILED
United States Court of Appeals
Tenth Circuit
August 28, 2006
Elisabeth A. Shumaker
Clerk of Court PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
JENNIFER J. MICKELSON,
Plaintiff - Appellant,
v. No. 05-3049
NEW YORK LIFE INSURANCE COMPANY,
Defendant - Appellee.
_____________________________
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Amicus Curiae.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D. Ct. No. 03-CV-2294-CM)
Mark A. Buchanan, Sanders, Simpson & Fletcher, L. C., Kansas City, Missouri,
appearing for the Appellant.
Elaine Drodge Koch (Jeremiah J. Morgan and Heather S. Esau Zerger, with her on
the brief), Bryan Cave LLP, Kansas City, Missouri, appearing for the Appellee.
Julie Gantz, Attorney (Eric S. Dreiband, General Counsel, Carolyn L. Wheeler,
Acting Associate General Counsel, and Vincent J. Blackwood, Assistant General
Counsel, with her on the brief), Equal Employment Opportunity Commission,
Office of General Counsel, Washington, D.C., appearing for amicus curiae Equal
Employment Opportunity Commission.
Before TACHA, Chief Circuit Judge, BALDOCK, and LUCERO, Circuit
Judges.
TACHA, Chief Circuit Judge.
Plaintiff-Appellant Jennifer J. Mickelson sued her employer, Defendant-
Appellee New York Life Insurance Company ("NYL"), alleging retaliation and
discrimination on the basis of sex under Title VII of the Civil Rights Act of 1964,
42 U.S.C. 2000e et seq., and salary discrimination under the Equal Pay Act
("EPA"), 29 U.S.C. 206(d). The District Court granted summary judgment in
favor of NYL on all claims. On appeal, Ms. Mickelson argues that there is a
genuine issue of material fact regarding whether she was paid less than male
employees performing the same work because of her sex and whether the actions
of her employer constitute an adverse employment action. We take jurisdiction
under 28 U.S.C. 1291 and REVERSE.
I. BACKGROUND
NYL sells life insurance products to independent insurance brokers
throughout the United States. Sales are made mainly through field
directors-marketing representatives who promote the sale of NYL products and
services to the independent insurance brokers. Field directors receive internal
support from marketing service consultants ("MSC"). An MSC acts as a liaison
between the field directors, who are out in the field selling insurance, and NYL's
producing groups. Six MSCs worked in NYL's Leawood, Kansas office.
That office hired Ms. Mickelson as an MSC in September 2000. Ms.
Mickelson's resume indicates that she graduated from law school in May 2000
and that for the six years before and during law school she worked part-time for
another life insurance company, first in the underwriting department, and later
(for the last six months), as a marketing service representative-a position very
similar to the one she was hired to perform at NYL. Because of her law degree,
Ms. Mickelson was assigned to the MSC group responsible for high net worth
clients and corporations; for this reason, the group was considered relatively
prestigious. Although a law degree was not required for her position, NYL
believed it added to Ms. Mickelson's credibility when dealing with those clients;
additionally, Ms. Mickelson used her legal knowledge to prepare estate planning
illustrations for those clients. Although she did not have any insurance-related
professional licences when she was hired, she steadily worked toward and
obtained a Series 6 license.(1) In addition, Ms. Mickelson earned a "Fellow Life
Management Insurance" designation, which indicates extensive knowledge of
products in the life insurance industry, as well as a "Chartered Life Underwriter"
designation, which indicates passage of ten professional courses.
When a new employee is hired, NYL assigns him or her to a grade level;
(1) A Series 6 license is required in order to sell mutual funds and variable
annuities.
each grade level carries a specific salary range. Typically, MSCs are assigned to
grade level 13, which carries a salary range of $45,100 to $69,900. John Begley,
the director of human resources at the Leawood office, and James Vavra, the vice-
president of operations at the Leawood office, assigned Ms. Mickelson to grade
level 13 and set her salary, without negotiation, at $50,000. By September 2002
she was earning $53,400.
Vickie Day was hired as an MSC in October 2000, the month after Ms.
Mickelson. Ms. Day brought to NYL five years of experience working in the life
insurance industry, as well as eleven years experience in an administrative
assistant position. She had a Bachelor's degree and Series 6 and 63(2) professional
licenses. Her salary immediately prior to being hired at NYL was $48,000. Like
Ms. Mickelson, Ms. Day was assigned to grade level 13 and her starting salary
was $50,000. By September 2002, Ms. Day's salary was $52,500.
Mark Shelton was hired as an MSC in December 2000, three months after
Ms. Mickelson. Mr. Shelton had a Bachelor's degree and twenty years of
experience in the insurance industry. His salary immediately prior to being hired
at NYL was $43,000. He was assigned to grade level 14, which carries a salary
range of $51,100 to $79,200, and his salary was set at $60,000. By September
2002, his salary was $61,300.
Kevin Harriman was hired as an MSC in February 2002. Mr. Harriman had
(2) A Series 63 license is required to be a securities agent.
two years of experience as a marketing and business analyst at a life insurance
company. It appears that Mr. Harriman's experience in the life insurance industry
is limited to these two years. He also had three years of experience working as a
securities trader and financial analyst, and two years of experience as a mutual
fund representative in which he acted as a liaison between the fund and the
broker/dealer. Mr. Harriman had a Bachelor's degree and was working toward
obtaining his Masters in Business Administration when he was hired. He also had
Series 6, 7,(3) and 63 professional licenses. In his most recent job prior to being
hired at NYL, he earned $55,000, although for the six months prior to being hired
at NYL he was unemployed. He was assigned to grade level 13 and Mr. Begley,
Mr. Vavra, and Tracie Billings, the MSC supervisor, set his starting salary at
$60,000. No documents were prepared describing how Mr. Harriman's salary was
set.
Two other MSCs worked in the Leawood office-James Wirtz and Susan
Hairgrove. Both were hired in 1993. Although the record does not reveal their
qualifications, starting salaries, or performance histories, in 2000, Ms. Hairgrove
earned $51,732, compared to Mr. Wirtz's $55,737 salary. By September 2002,
both were considered senior MSCs but Ms. Hairgrove earned $63,915 while Mr.
Wirtz earned $72,265-a difference of over $8,000.
(3) A Series 7 license is required in order to trade in corporate securities,
other than commodities and futures.
Shortly after Mr. Harriman was hired, Ms. Mickelson learned that his
starting salary was set at $60,000. She made a written inquiry to Ms. Billings
asking what criteria were involved in setting salaries. Ms. Billings and Mr. Vavra
met with Ms. Mickelson to discuss her concerns. Mr. Vavra told Ms. Mickelson
that four factors were taken into consideration in setting Mr. Harriman's
salary-experience, qualifications, market factors, and salary history. Not
satisfied that these reasons could explain the disparity in pay, Ms. Mickelson
made a formal complaint of salary discrimination to NYL's home office in New
York City. She sent a copy of the complaint to Mr. Begley. NYL conducted an
internal investigation of the complaint and concluded that the disparity in pay was
warranted based upon Mr. Harriman's relevant experience in the broker-dealer
market, NYL's current need for expertise in that market, Mr. Harriman's and Ms.
Mickelson's relative salary histories, and their respective professional licenses.
In March 2002, Ms. Mickelson filed a charge of discrimination with the Equal
Employment Opportunity Commission ("EEOC").
According to Ms. Mickelson, after she filed her complaint, she experienced
several adverse employment actions. First, although Mr. Vavra had personally
committed to look for opportunities for Ms. Mickelson in NYL's legal
department, he never reported back to her about whether there were any such
openings. Second, Ms. Billings cancelled a business trip to Boston that Ms.
Mickelson was scheduled to take. Third, Ms. Billings told Ms. Mickelson that
she would need to use her vacation time to study for a bar examination she was
taking the following week, although Ms. Mickelson was previously told that she
did not have to use her vacation time.(4) Fourth, Mr. Vavra sent Ms. Mickelson an
e-mail, which she considered demeaning, informing her that one of her projects
was "DEAD." Fifth, she met with Mr. Vavra, Ms. Billings, and another employee
named Louis Gardner to discuss the fact that Ms. Mickelson was asking Mr.
Gardner questions regarding work when he was not her supervisor. Mr. Vavra
became extremely angry during the meeting. Sixth, after she became engaged to
the field director to whom she provided support services, Ms. Mickelson asked
that she be promoted to a "key accounts" position or moved to another
distribution source because she felt that it was not in the "company's best interest
to have a married couple working on the same marketing team." Ms. Billings
initially suggested that the "key accounts" position would be a good move for Ms.
Mickelson; but later, Ms. Billings indicated that there were no openings for that
position. She was then reassigned to a different field director in a less-prestigious
MSC group.
Finally, in December 2002, Ms. Mickelson took medical leave pursuant to
(4) Ms. Mickelson had previously taken two bar exams and both times she
received paid time off to study. After Ms. Billings said she would need to use her
vacation time to study for the third bar exam, Ms. Mickelson had her previous
supervisor confirm that she previously received paid time off. Accordingly, when
Ms. Mickelson sat for her third exam, she received the same time off that she did
the previous two times.
the Family and Medical Leave Act ("FMLA") and was treated for depression and
panic attacks. Her leave was scheduled for December 9, 2002, through January
13, 2003. After she had been on leave for approximately two weeks, however,
she inquired as to whether she could return to work on a part-time basis because
her doctor indicated it would be "a good step" for her. Ms. Billings denied her
request, stating that because of business demands and staffing requirements, her
position had to be filled by a full-time employee. This response came despite the
fact that NYL's employee handbook indicates that FMLA leave for a serious
health condition "can be taken intermittently or on a reduced schedule if
medically necessary," and despite the fact that Ms. Hairgrove, another MSC,
suffered a back injury at work in December 2002 and was permitted to return to
work part-time from March through May 2003. After Ms. Mickelson's request to
work part-time was denied, Ms. Mickelson's condition worsened. She had to
extend her leave until February 19, 2003, which was when her FMLA leave was
exhausted. When she could still not return to work, she was fired.
Ms. Mickelson filed this complaint against NYL in May 2003, alleging
salary discrimination on the basis of sex in violation of both Title VII, see 42
U.S.C. 2000e-2, and the Equal Pay Act, see 29 U.S.C. 206(d)(1). She also
alleged that NYL retaliated against her for filing her salary discrimination
complaint, also in violation of Title VII, see 42 U.S.C. 2000e-3. The District
Court granted summary judgment in favor of NYL on all claims. In dismissing
the salary discrimination claims, the court held that NYL showed that the reason
for the disparity in pay between Ms. Mickelson and the male employees was
based upon their relative experience and qualifications. As to her retaliation
claim, the court held that Ms. Mickelson had not shown an adverse employment
action. Ms. Mickelson now timely appeals the District Court's order granting
summary judgment.
II. DISCUSSION
A. Standard of Review
We review the District Court's entry of summary judgment de novo. Plotke
v. White, 405 F.3d 1092, 1093 (10th Cir. 2005). Summary judgment is
appropriate "if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law." Fed. R. Civ. P. 56(c). We view the evidence, and
draw reasonable inferences therefrom, in the light most favorable to the
nonmoving party. Plotke, 405 F.3d at 1093Ä94.
B. Salary Discrimination
There are two ways a plaintiff can proceed on a claim of salary
discrimination: on a theory of intentional discrimination on the basis of sex in
violation of Title VII, or on a theory of wage discrimination on the basis of sex in
violation of the EPA. This is a significant distinction because a plaintiff's burden
to prove discrimination varies depending on the statute at issue. Under Title VII,
the plaintiff always bears the burden of proving that the employer intentionally
paid her less than a similarly-situated male employee. The EPA, however, has
been described as imposing a form of strict liability on employers who pay males
more than females for performing the same work-in other words, the plaintiff in
an EPA case need not prove that the employer acted with discriminatory intent.
Ryduchowski v. Port Auth. of N.Y. & N.J., 203 F.3d 135, 142 (2d Cir. 2000);
Sinclair v. Auto. Club of Okla., Inc., 733 F.2d 726, 729 (10th Cir. 1984); Miranda
v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1533 (11th Cir. 1992) (stating
that the EPA "prescribes a form of strict liability").
Because of this difference in the statutes, the analysis involved in
determining whether the plaintiff has met her burden differs depending on the
statute at issue. Under Title VII, a plaintiff must prove that the employer
intentionally discriminated against her because of her sex. Jaramillo v. Colo.
Judicial Dept., 427 F.3d 1303, 1306 (10th Cir. 2005). When the plaintiff relies
on circumstantial evidence of discrimination-as is the case here-we apply the
three-step burden-shifting framework set forth in McDonnell Douglas and its
progeny. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800Ä07 (1973);
Plotke, 405 F.3d at 1100. Under McDonnell Douglas, the aggrieved employee
must first establish a prima facie case of discrimination. McDonnell Douglas,
411 U.S. at 802. Relevant to this case, a prima facie showing of discrimination
consists of evidence that a female employee "occupies a job similar to that of
higher paid males." Miller v. Auto. Club of N.M., Inc., 420 F.3d 1098, 1114 (10th
Cir. 2005) (quotation omitted). If the plaintiff makes such a showing, the burden
of production shifts to the employer "to state a legitimate, nondiscriminatory
reason for its adverse employment action." Plotke, 405 F.3d at 1099 (quotation
omitted). "If the employer meets this burden, then summary judgment is
warranted unless the employee can show there is a genuine issue of material fact
as to whether the proffered reasons are pretextual." Id.
Claims based upon the EPA, however, do not follow the same McDonnell
Douglas burden-shifting framework. Rather, EPA claims proceed in two steps.
First, the plaintiff must establish a prima facie case of discrimination by
demonstrating that employees of the opposite sex were paid differently for
performing substantially equal work. Miller, 420 F. 3d at 1119.(5) Having met
this, the burden of persuasion then shifts to the defendant to prove that the wage
disparity was justified by one of four permissible reasons. Tidwell v. Fort
Howard Corp., 989 F.2d 406, 409 (10th Cir.1993). "These reasons are: (1) a
seniority system; (2) a merit system; (3) a pay system based on quantity or quality
(5) Specifically, a prima facie case of discrimination under the EPA consists
of proof that (1) the plaintiff was performing work which was substantially equal
to that of employees of the opposite sex, taking into consideration the skills,
duties, supervision, effort and responsibilities of the jobs; (2) the conditions
where the work was performed were basically the same; (3) employees of the
opposite sex were paid more under such circumstances. Miller, 420 F.3d at 1119.
of output; (4) a disparity based on any factor other than sex." Id. (citing 29
U.S.C. 206(d)(1)). If the employer "fails to convince the jury with its evidence
of one or more of the `affirmative defenses' . . . the plaintiff will prevail on her
prima facie case." Id. This is not to say that an employer may never be entitled
to summary judgment on an EPA claim if the plaintiff establishes a prima facie
case. But, because the employer's burden in an EPA claim is one of ultimate
persuasion, "in order to prevail at the summary judgment stage, the employer
must prove at least one affirmative defense so clearly that no rational jury could
find to the contrary." Stanziale v. Jargowsky, 200 F.3d 101, 107 (3rd Cir. 2000)
(quotation omitted).
The employer's burden in an EPA case differs from its burden in a Title
VII case for another reason. Whereas in a Title VII case the employer need only
proffer a legitimate, nondiscriminatory reason for the challenged action, with no
need to establish that the reason actually motivated the decision, the EPA
prohibits a disparity in pay between men and women "except where such payment
is made pursuant to" one of the four aforementioned affirmative defenses. 29
U.S.C. 206(d)(1) (emphasis added). The Third Circuit has explained, and we
agree, that this language requires an employer to "submit evidence from which a
reasonable factfinder could conclude not merely that the employer's proffered
reasons could explain the wage disparity, but that the proffered reasons do in fact
explain the wage disparity." Stanziale, 200 F.3d at 107Ä108. Accordingly,
"where, as here, employers seek summary judgment as to [an] Equal Pay Act
claim, they must produce sufficient evidence such that no rational jury could
conclude but that the proffered reasons actually motivated the wage disparity of
which the plaintiff complains." Id. at 108; see also Tenkku v. Normandy Bank,
348 F.3d 737, 741 n.2 (8th Cir. 2003) ("At the summary judgment stage of the
proceedings, the employer's justification for the differences is irrelevant, unless it
is strong enough to establish one of the statutory affirmative defenses as a matter
of law.").
Because of the varying burdens of proof, it is conceivable that in some
cases an employer would be entitled to summary judgment on the Title VII claim,
but not on the EPA claim. We leave that discussion for another time, however,
because in this case we hold the following with respect to NYL's proffered
reasons for paying the male employees more than Ms. Mickelson: (1) that Ms.
Mickelson has presented sufficient evidence of pretext to survive summary
judgment on her Title VII claim; and (2) that NYL has failed to establish that its
proffered reasons were in fact the reason for the disparity in pay as a matter of
law on the EPA claim. We first turn our attention to the EPA claim.
Significantly, NYL admitted for purposes of summary judgment, that Ms.
Mickelson made a prima facie showing of discrimination under the EPA.
Therefore, summary judgment for NYL is inappropriate unless "no rational jury
could conclude but that the proffered reasons actually motivated the wage
disparity of which the plaintiff complains." Stanziale, 200 F.3d at 108. Before
the District Court, and at oral argument, NYL focused on Mr. Harriman's relevant
experience in the broker-dealer market-which refers to the market for variable
life insurance products-as warranting the disparity in pay because, at the time he
was hired, NYL was trying to break into the broker-dealer market to sell variable
life insurance products and needed Mr. Harriman's expertise to do so. Indeed, an
employee's prior experience is a factor "other than sex" for purposes of the Equal
Pay Act. Angove v. Williams-Sonoma, Inc., 70 Fed. App'x 500, 508 (10th Cir.
2003) (citing Irby v. Bittick, 44 F.3d 949, 955 (11th Cir. 1995)), see also Balmer
v. HCA, Inc., 423 F.3d 606, 612 (6th Cir. 2005). Although this reason could
explain the wage disparity, we cannot conclude, as a matter of law, that it in fact
explained the wage disparity.
To begin, no documents were executed contemporaneously with Mr.
Harriman's hiring that indicated NYL was looking for someone with broker-
dealer experience or that Mr. Harriman was hired because of his broker-dealer
experience. When Ms. Mickelson first inquired as to why Mr. Harriman's starting
salary was twenty percent higher than her own, Mr. Vavra made no mention of
NYL's need for someone with experience in the broker-dealer market. He merely
said that Mr. Harriman's "experience, qualifications, market factors, and salary
history" warranted the disparity in pay. The form prepared after Mr. Harriman's
interview states that the reason he was hired was because of his "life ins[urance]
background, self-motivation/drive, team orientation, relevant non-life [insurance]
experience (i.e. marketing, communications, securities[)]." Although Mr.
Harriman's experience and qualifications necessarily include his broker-dealer
experience, the first indication that NYL was looking for such experience and that
Mr. Harriman's background in that field warranted the disparity in pay came from
the New York office's internal investigation of Ms. Mickelson's complaint. It is
undisputed, however, that the New York office played no role in setting either
Ms. Mickelson's salary or Mr. Harriman's salary. The results of its internal
investigation, therefore, cannot be conclusive on this issue.
Moreover, though NYL maintains that it was trying to penetrate the broker-
dealer market at the time it hired Mr. Harriman, Mr. Vavra admitted that the
market for those products crashed in the summer of 2001, well before Mr.
Harriman was hired, and that NYL sold very few variable life insurance products
as a result. Also, what is conspicuously missing from the record is any
suggestion that Mr. Harriman ever used his experience in the broker-dealer
market in any capacity at NYL. In fact, Mr. Vavra admitted that Mr. Harriman's
responsibilities were essentially the same as Ms. Mickelson's.
In addition, it is undisputed that Ms. Mickelson and Ms. Day had more life
insurance industry experience than Mr. Harriman-Mr. Harriman's resume
reflects that he had only two years of experience in the life insurance industry. In
contrast, Ms. Mickelson had approximately six part-time years in the life
insurance industry before she was hired at NYL, and another eighteen months of
experience in the industry by the time Mr. Harriman was hired. Similarly, Ms.
Day had five years of experience in the life insurance industry when she was
hired, and another seventeen months' experience by the time Mr. Harriman was
hired. Of course, Mr. Shelton had the most experience of all-eighteen
years-and if he were the only higher-paid MSC at NYL's Leawood office, we
might well conclude that his experience so far outweighed the women's
experience that no rational trier of fact could conclude other than that his
experience was the determinative factor in setting his salary. But that is not the
case: Mr. Harriman, with the least amount of experience in the life insurance
industry of all the MSCs, was paid substantially more than both Ms. Mickelson
and Ms. Day. Moreover, as of September 2002, he was earning $3,900 less than
Ms. Hairgrove, a senior MSC who had been working at NYL for approximately
nine years.
There are also disputed issues of fact as to whether "market factors" and
"salary history" warranted the disparity in pay. As to "market factors" playing a
role in setting Mr. Harriman's salary, Ms. Billings recalled that Mr. Harriman had
multiple job offers and that NYL had to compete for his services. See Stanley v.
Univ. of Southern Cal., 13 F.3d 1313, 1322 (9th Cir. 1994) ("An employer may
consider the marketplace value of the skills of a particular individual when
determining his or her salary."). But NYL produced no evidence that it had to
pay him $60,000 in order to retain him. Further, it is undisputed that Mr.
Harriman was unemployed for six months prior to being hired at NYL, and Ms.
Mickelson said that during the interview process, which she took part in, that Mr.
Harriman said he was "desperately" trying to find a job. As for Mr. Harriman's
prior salary history as justification for the wage disparity, this reason is
undermined by the fact that at her previous job Ms. Day was making $48,000 and
her salary was set at $50,000, while Mr. Shelton was making $43,500 at his
previous job and his salary was set at $60,000.(6)
Casting further doubt on NYL's asserted justifications for the disparity in
pay is that one of its reasons was that Mr. Harriman has more NASD licenses,
which refers to the Series 6, 7, and 63 licenses. To begin, NYL presented no
evidence that a Series 7 license is either required or even relevant to the MSC job.
Further, Ms. Mickelson had a Series 6 license and a CLU designation-which
neither Mr. Shelton nor Mr. Harriman had. Mr. Vavra testified that the CLU
designation was more important to the position than a Series 7 license. Indeed,
NYL's advertisement for the MSC position states that it prefers an applicant with
a CLU designation. Finally, Ms. Day had both a Series 6 and 63 when she was
hired, and her starting salary was twenty percent less than Mr. Harriman's.
(6) We note that Mr. Shelton received an unspecified bonus as part of his prior
employment, which means that his total compensation could have been
significantly higher than $43,000. Because we must consider the facts in the light
most favorable to Ms. Mickelson, however, we cannot make such an assumption.
Based on the foregoing, and based on the fact that the employer bears the
burden of persuasion, we conclude that the District Court erred in granting
summary judgment in favor of NYL on the EPA claim. When the evidence is
viewed in the light most favorable to Ms. Mickelson, a jury would not be
compelled to find that the reasons proffered by NYL were, in fact, the reason for
the disparity in pay. To be sure, these reasons could explain the disparity, but the
evidence here is not so overwhelming as to require that conclusion. To the
contrary, a jury could reasonably conclude that the common denominator between
the $60,000 salaries was being male, not the level of experience, and the common
denominator between the $50,000 salaries was being female, not the level of
inexperience.
Turning to Ms. Mickelson's Title VII claim, we first must address an
evidentiary matter. Ms. Mickelson argues that the District Court improperly
excluded evidence that other females had complained of discriminatory treatment
by NYL. Specifically, the District Court disregarded the affidavits of Julie
Hammer-Miller, a former service associate at NYL, and Rhonda Kunz, a former
human resources administrative assistant at NYL. Ms. Hammer-Miller averred
that she helped to train Ms. Mickelson and Mr. Shelton as MSCs and that both
needed an equal amount of training. Ms. Hammer-Miller also claimed that she
herself sought a promotion to the MSC position because she was already
performing the same duties as an MSC, but for less money. When she asked Mr.
Begley for the promotion he repeatedly told her that it was "in the works" but she
never was promoted. She ultimately resigned in March 2001; at that time her
salary was $35,000.
Ms. Kunz, whose position involved reviewing personnel records, keeping
track of attendance and vacation schedules, and ensuring that pay raises earned by
employees were actually received, averred that she believed there was "no
concern for equal pay for equal work" at NYL's Leawood office. Indeed, when
she and two others earned their bachelor's degrees at the same time, only the male
of the group received a $5,900 raise, while the women did not.
The District Court disregarded these affidavits, finding that they
"contain[ed] conclusory allegations that are not supported by the record." See
Nichols v. Hurley, 921 F.2d 1101, 1113 (10th Cir. 1990). As a general rule,
however, "the testimony of other employees about their treatment by the
defendant is relevant to the issue of the employer's discriminatory intent."
Spulak v. K Mart Corp., 894 F.2d 1150, 1156 (10th Cir. 1990); see also Atchley v.
Nordam Group, Inc., 180 F.3d 1143, 1149 (10th Cir. 1999). Both these women
testified from personal knowledge. Ms. Hammer-Miller said that she trained both
Ms. Mickelson and Mr. Shelton for the MSC position and that they needed the
same amount of training. When the employer's proffered reason for the twenty
percent difference in their salaries is, in part, based upon experience and
qualifications, that both employees needed the same amount of training is relevant
to determination of discriminatory intent. Similarly, Ms. Kunz's testimony that a
similarly situated male received a raise while she and another woman did not is
relevant to the issue of discriminatory intent. The District Court erred in
disregarding these affidavits. See Spulak, 894 F.2d at 1156 (citing Stumph v.
Thomas & Skinner, Inc., 770 F.2d 93, 97 (7th Cir.1985) (reversing summary
judgment for employer, holding that affidavits of former employees created a
genuine issue of fact on issue of defendant's discriminatory intent)).
We turn now to the McDonnell Douglas framework. As with Ms.
Mickelson's EPA claim, the parties agree that Ms. Mickelson has met her burden
to establish a prima facie case of discrimination-that is, she occupies a job
similar to that of higher paid males-and that NYL met its burden to proffer a
legitimate, nondiscriminatory reason for the disparity in pay-namely, the relative
experience, qualifications, market factors, and salary histories of the higher paid
male employees. The remaining question, therefore, is whether Ms. Mickelson
has produced sufficient evidence that NYL's proffered reasons are pretext for
unlawful discrimination to survive summary judgment. "A plaintiff can show
pretext by revealing 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." Green v. New Mexico, 420 F.3d 1189, 1192Ä93 (10th Cir. 2005)
(internal quotations omitted).
As the above discussion demonstrates, Ms. Mickelson has cast doubt on all
NYL's proffered reasons for paying Mr. Harriman a substantially larger salary for
performing identical work such that a jury might reasonably disbelieve NYL's
proffered reasons for the disparity in pay, and conclude, instead, that NYL
discriminated on the basis of sex in setting salaries. See Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 148 (2000) (holding that "plaintiff's prima
facie case, combined with sufficient evidence to find that the employer's asserted
justification is false, may permit the trier of fact to conclude that the employer
unlawfully discriminated."). We therefore conclude that the District Court erred
in granting summary judgment in favor of NYL on the Title VII claim.
C. Retaliation
To state a prima facie case of retaliation, a plaintiff is required to
demonstrate: "(1) that [she] engaged in protected opposition to discrimination, (2)
that a reasonable employee would have found the challenged action materially
adverse, and (3) that a causal connection existed between the protected activity
and the materially adverse action." Argo v. Blue Cross & Blue Shield of Kan.,
Inc., 452 F.3d 1193, 1202 (10th Cir. 2006) (citing Burlington N. & Santa Fe Ry.
Co. v. White, 126 S. Ct. 2405 (2006)) (footnote omitted). Once the plaintiff
establishes a prima facie case, the burden of production shifts to the employer to
articulate a legitimate, nondiscriminatory reason for the adverse action. Id. The
burden then shifts back to the plaintiff to show that the employer's proffered
reason is pretext. Id. at 1203. The District Court concluded that Ms. Mickelson
failed to make a prima facie showing of retaliation because she failed to show that
she suffered from any adverse employment action.
After reviewing the record, we conclude that the District Court erred in
granting NYL's motion for summary judgment with respect to NYL's refusal to
allow Ms. Mickelson to work part-time while she recovered from depression, and
as to her ultimate termination. The FMLA requires covered employers to allow
qualified employees twelve weeks' leave, within a twelve-month period, because
of a serious health condition. 29 U.S.C. 2612(a)(1)(D). Leave "may be taken
intermittently or on a reduced leave schedule when medically necessary." 29
U.S.C. 2612(b)(1). Failure to adhere to the mandates of the FMLA, without
sufficient justification, can constitute actionable conduct under Title VII. See Orr
v. City of Albuquerque, 417 F.3d 1144, 1151 (10th Cir. 2005). The District Court
appears to have concluded that the refusal to allow an individual to work on a
part-time basis could only be actionable if the employee raises and establishes a
violation of the FMLA. Since Ms. Mickelson did not raise an FMLA claim, the
court found that she failed to establish that she suffered from an adverse
employment action. We disagree.
Prior to the expiration of her FMLA leave, Ms. Mickelson requested to
return to work on a part-time basis, indicating that her physician thought it would
be "a good step" for her. NYL, however, refused her request, her condition
worsened, and by early January 2003, Ms. Mickelson had exhausted her paid
leave. Therefore, NYL's denial of Ms. Mickelson's request to work part-time
before she exhausted her FMLA leave prevented her from earning income on a
part-time basis. It also caused her to exhaust her FMLA leave sooner. In this
way, NYL's conduct caused her to lose both salary and benefits. See White, 126
S. Ct. at 2408 ("[M]any reasonable employees would find a month without a
paycheck to be a serious hardship."); Duncan v. Manager, Dept. of Safety, 397
F.3d 1300, 1314 (10th Cir. 2005) (adverse employment action includes those
decisions "causing a significant change in benefits"). Moreover, if Ms.
Mickelson was permitted to return on a part-time basis, she may have recovered
from her depression before her FMLA leave expired, and consequently, would not
have lost her job. Indeed, "[i]t hardly requires stating that when an employer tells
an employee that she no longer has a job, that employee's job status has been
significantly and materially altered." Wells v. Colo. Dept. of Transp., 325 F.3d
1205, 1216 (10th Cir. 2006). We easily conclude that the prospect of losing
wages, benefits, and ultimately a job would "dissuade[] a reasonable worker from
making or supporting a charge of discrimination." White, 126 S. Ct. at 2415.
Ms. Mickelson has also raised a genuine issue of fact as to whether the
denial of her request for leave was causally connected to her protected conduct.
Ms. Mickelson filed a complaint with the EEOC in March 2002. She was denied
permission to work part-time in December of that year. While the timing between
these events, alone, would not support an inference of causation in this instance,
see Wells, 325 F.3d at 1217, "[i]f the employee can show that the employer's
proffered reason for taking adverse action is false, the factfinder could infer that
the employer was lying to conceal its retaliatory motive," id. at 1218.(7) NYL's
proffered reason for denying Ms. Mickelson's request was that the MSC position
must be filled by a regular, full-time employee. But this contention is belied by
the fact that just three months later, NYL permitted Ms. Hairgrove to transition
back to work on a part-time basis following a back injury. NYL contends that the
situation is different because Ms. Hairgrove suffered from a worker's
compensation injury, while Ms. Mickelson did not. NYL fails to explain-and we
do not see-how this distinction is relevant to the disputed matter. NYL's
accommodation of Ms. Hairgrove provides evidence that the MSC position could
be filled by a part-time employee, and therefore bolsters Ms. Mickelson's position that NYL's justification of its denial of her request is pretextual. NYL also
contends that Ms. Mickelson requested to work on a part-time basis permanently,
and seeks to distinguish its refusal of her request to work part-time on this basis.
Again, the record reveals the opposite. Ms. Mickelson specifically requested to
work part-time as a first step toward resuming her normal duties.
That Ms. Mickelson did not raise a claim under the FMLA does not change
this analysis. Even if NYL was under no legal obligation to allow Ms. Mickelson
to work part time or allow her to return to work after her FMLA leave expired, its
failure to do so, in light of her request, and in light of the fact that it permitted
another MSC to do so, could be viewed as retaliation. See Wells, 325 F.3d at
1219 (stating that an employer's termination of an employee after exhaustion of
sick leave could be considered retaliatory). The causal-connection inquiry does
not focus on what the FMLA or personnel rules required the employer to do, but
whether the employer treated an employee differently than it would have if she
had not engaged in protected activity. Id. In sum, Ms. Mickelson's evidence that
she was denied the ability to work part-time and was terminated in retaliation for
her wage discrimination complaint is sufficient to satisfy the causal-connection
element of the prima facie case.(8)
(7) As we explained in Wells:
[B]y considering an employer's proffered reasons for taking adverse
action in the causalconnection portion of the prima facie case, we
are assessing pretext evidence that is typically considered in a later
phase of the McDonnell Douglas analysis. But . . . evidence of
pretext can be useful in multiple stages of a Title VII retaliation
claim . . . "and nothing about the McDonnell Douglas formula
requires us to ration the evidence between one stage or the other. . . .
[W]e will not limit the kinds of evidence that can be probative of a
causal link any more than the courts have limited the type of
evidence that can be used to demonstrate pretext."
325 F.3d at 1218 (quoting Farrell v. Planters Lifesavers Co., 206 F.3d 271, 286
(3d Cir. 2000)).
(8) The District Court correctly dismissed Ms. Mickelson's claim relating to
her reassignment to a different MSC group. Reassignment of job duties is not
automatically actionable. White, 126 S. Ct. at 2417. Ms. Mickelson suggests,
however, that the new group was less prestigious than her previous group, whichis a factor that is appropriately considered in determining whether the conduct is
actionable. See id. Nevertheless, because it is undisputed that Ms. Mickelson
sought a transfer once she became engaged to her previous group's supervisor,
Ms. Mickelson has failed to establish a causal connection between this action and
her protected conduct.
We next turn to the second and third steps of the McDonnell Douglas
burden-shifting framework for a retaliation claim-namely, whether the employer
had proffered a legitimate, nondiscriminatory reason for the adverse action and
whether the employee has produced sufficient evidence of pretext. As the causal-
connection discussion above shows, Ms. Mickelson produced sufficient evidence
that NYL's proffered reasons for the adverse action was pretextual. See id.
(acknowledging that in some cases, evidence of causation and evidence of pretext
may be the same and the tests for causation and pretext may be conflated).
Because Ms. Mickelson has demonstrated that genuine issues of fact remain as to
Ms. Mickelson's claim that NYL retaliated against her by denying her the ability
to work part-time and in terminating her, we conclude that summary judgment
was inappropriate.
With regard to Ms. Mickelson's other allegations of retaliation, we agree
with the District Court that she has failed to establish actionable conduct. As to
her claim that Mr. Vavra failed to locate a position in the legal department for her
and that NYL failed to promote her to a key accounts position, a plaintiff must
apply for a position to state a claim for retaliatory failure to promote, see Stover
v. Martinez, 382 F.3d 1064, 1072 (10th Cir. 2004), and there is no evidence that
either position existed at the time she sought the promotions. As to her claim
relating to the time she was absent due to the bar examination, there is no
evidence that she was actually treated differently when studying for her third bar
examination as compared to when she studied for her first two. With regard to
the email Ms. Mickelson considered derogatory and Mr. Vavra's unruly behavior
during a meeting, the retaliation provision prohibits employer's actions "that are
likely to deter victims of discrimination from complaining to the EEOC," and a
"lack of good manners will not create such deterrence." White, 126 S. Ct. 2415
(citing 2 EEOC 1998 Manual 8, p. 8Ä13) (internal quotation marks omitted).
III. CONCLUSION
For the foregoing reasons, we conclude that the District Court erred in
entering summary judgment in favor of NYL on Ms. Mickelson's allegations of
wage discrimination and retaliation. Accordingly, the judgment of the District
Court is REVERSED and the cause REMANDED for further proceedings
consistent with this opinion.
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