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Claims of Black male compensation analyst, paid less than later-hired White female, revived,

By Brandi O. Brown, J.D.

Reversing and remanding a summary judgment decision in favor of a university employer in an EPA and Title VII suit brought by a compensation analyst, the Sixth Circuit found fact issues justifying a trial. The record did not show beyond dispute that any of the factors suggested by the employer were the reason for the salary disparity between the Black male employee and a White female coworker. There was also evidence supporting his claim of retaliation stemming from changes made, after he complained of bias, to a posted position for which he had expressed interest (Briggs v. University of Cincinnati, August 26, 2021, Stranch, J.).

In 2011, the employee, who had already worked in two other benefits departments, began working in the University of Cincinnati’s HR department, with a starting salary of $39,000. Two years later, he became a compensation analyst, reporting to the compensation director, with a salary of $43,000. By the summer of 2015, he was earning just over $44,700. That July, the department hired a Caucasian woman with no prior compensation experience as a compensation analyst and her hiring salary was $53,000.

Equity adjustment request. By the next month, the department had a new Senior Associate Vice President & Chief Human Resources Officer, who was the employee’s second-level supervisor. In September, the employee requested an equity pay adjustment but the new HRO said only “we’ll see.” In 2016, when it came time for bonuses, the employee received the lowest bonus in the department, in spite of a request for a higher bonus by his supervisor. The female analyst received over double what he did.

She’s reclassified to senior position. In 2017, the employer reclassified several employees in the department and increase their salaries. The female analyst was designated to a lead position as a senior analyst and received a seven percent salary increase. The employee was not reclassified and had to put in an equity request in order to receive an adjustment of 3.3 percent. That year he also received a lower bonus.

Her position opens, he complains. By November 2017, the female analyst was reclassified to HR application specialist, taking her out of the compensation section, and leaving the senior position available. The director encouraged the employee to apply and assured him he was qualified. Two days later, the employee emailed the HRO his complaint of discrimination relating to salary and bonus disparities. He noted that other employees had been reclassified, whereas he was being asked to apply formally for the position.

HRO claims performance issues. Thereafter, the HRO confronted the director about whether he had told the employee he would get the job. According to the director, the HRO became angry, raised her voice, and walked out, slamming the door. She also emailed him later asking for the history of the employee’s salary and the rationale for the disparity between his and the female analyst’s pay. The director reminded her that they had communicated about an equity increase for the employee in 2015 and noted that two prior female compensation analysts had also earned more than the employee.

An hour later, the HRO told the director that the equity increase “was not supported by you or me due to performance, production and error concerns that were brought to my attention.” She also told him that in her view the open position required technical expertise, critical thinking, a high level of compensation experience, and communication skills.

Requires college degree. By November 13, the HRO had determined that a bachelor’s degree should be required for the position. The next day, she met with the employee and the director and asserted that the female analyst had come in with knowledge and experience the employee lacked and said she was doing higher-level tasks. The employee and his supervisor, however, said the two analysts were doing the same tasks. After the meeting, she sent an email stating that she had reviewed the employee’s resume and concluded that he was not even qualified for the position he held when he was hired four years earlier.

Complains, told he’s being inappropriate. On November 15, the employee complained to the Office of Equal Opportunity and Access. A few days later, the HRO sent him an email responding to his complaint and telling him he did not understand department policies and was behaving inappropriately. On November 21, the HRO told the director that the senior analyst position needed to be at “manager level,” an assertion with which he disagreed. He responded that the compensation range was too high and raised internal and external equity issues. He alleged that, as a result of his advocacy on the employee’s behalf, he suffered negative consequences as well. The university hired a white female for the senior job, at a salary of $76,000.

The employee later filed suit alleging claims of gender-based wage discrimination and retaliation under the Equal Pay Act and race and gender-based wage discrimination and retaliation under Title VII. The district court granted the employer’s motion for summary judgment in full.

Equal pay. On appeal, the employer once again argued that the wage differential was based on factors unrelated to the race or sex of the analyst, including the female analyst’s experience and qualifications. For purposes of the EPA, the court noted, it needed to ask whether the employer proved that the wage differential was based on a factor other than sex that was applied for a legitimate business reason.

Granting requested salary not a sufficient reason. One of the reasons offered was that the female job applicant had demanded the higher salary as a condition of her employment. Beyond the fact that the testimony was not conclusive on that fact, the court explained that there was no authority supporting “the concept that an employee’s prior salary or demand for a specific salary is sufficient in isolation to justify a wage deferential.” “Such a rule,” the court observed, “would simply perpetuate existing sex-based pay disparities and undercut the purpose of the Act—to require that those doing the same work receive the same pay.”

No objective performance metrics. Another reason offered was that the female analyst had better performance reviews and skills, as well as a better attitude and a bachelor’s degree. However, the court noted, the record told a “more complex story.” For example, the employer offered no objective metrics for the employee’s performance to support the subjective ratings he received on his 2015-2016 review. Moreover, the review itself and his supervisor’s comments at the time, contained positive feedback. In his 2017 review, moreover, the director commended the employee’s attitude and drive. The record also showed that he and the employee both agreed that the employee was doing the same tasks as the female analyst.

Inconsistencies raise questions. Taken together, said the court, the inconsistencies created issues of fact regarding the employer’s argument that the female employee was more qualified, more skilled, or had more advanced responsibilities. The court noted that, under the EPA, an employer must submit evidence form which a factfinder could determine that the “proffered reasons ‘in fact’ explain the wage disparity—not just that the reasons could explain it.” The evidence did not include statements by either the director or the HRO that the purported deficiencies in the employee’s performance or the claimed excellence of the female analyst’s performance were the basis for the “persistent and significant difference” in their compensation, the denial of the employee’s equity request, the female analyst’s repeated reclassification, or the employee’s stagnation in the department.

Connection between performance and pay? In fact, other evidence in the record undermined the employer’s proposed connection between the employee’s performance and his pay, including evidence that equity adjustments were made based on external and internal market rates and not performance. In fact, according to the director’s testimony, he did not mention the analysts’ relative performance when discussing the 2015 equity request with the HRO.

Because the record did not show beyond dispute that the female analyst’s degree and higher performance ratings, or other specified factors, were the reason for the salary disparity, the employer did not meet its burden and summary judgment was not appropriate.

Race bias claim revived too. For Title VII, the court explained, it only had to ask whether the employer presented evidence from which a reasonable jury could infer the employer had a legitimate, nondiscriminatory reason for its actions and then whether the employee presented evidence sufficient to rebut the employer’s provided rationale. The same evidence considered regarding the employee’s EPA claim required reversal of summary judgment for the employer on the employee’s Title VII race bias claim.

Retaliation prima facie case. The court next considered the employee’s claim that after he complained to the HRO about discrimination, she retaliated by pulling the senior analyst job and changing its description and requirements. The employer had argued to the district court that the HRO “honestly believed” the employee was not qualified for the posting and that there was no evidence of pretext.

Honest belief in doubt. Aside from problems with how the employer and court dealt with that argument from a procedural perspective, on the merits there was evidence contradicting an honest belief. There was email evidence indicating that the HRO did not know much about the work experience the employee had at the time she pulled the senior analyst posting and there was circumstantial evidence of a retaliatory motive based on her anger and the fact that she pulled it almost immediately after he filed a complaint. Moreover, the employer did not articulate a legitimate, nonretaliatory reason for altering the posting, instead skipping on to disputing the employee’s evidence “under the guise of the honest-belief defense.”

Link between complaint and job posting. In fact, the employee presented evidence of pretext, including evidence in the record from which a reasonable jury could conclude that the altering of the posting was “retaliatory rather than innocent.” There was evidence linking the HRO’s decision-making on the employee’s complaint with the job posting. The employee made his complaint on November 8 and at 8:31 pm on that date the HRO sent herself an email containing numbered notes about the employee and the director, including that the director had told the employee he was “more than qualified for a Sr analyst in Comp vacancy.”

When she asked him about it the next day, he responded, “No, I didn’t tell Lee that he would get the job, but I did encourage him to apply for it, and why would I not?” On November 13, however, she instructed the director to pull the job posting. This temporal proximity, plus the emailed note to herself and evidence that she was upset about the employee’s complaint and accused him of throwing his discrimination claim around lightly, could indicate to a reasonable jury that she was displeased about his claim. Along with her email indirectly suggesting that he lacked the skill to advance or to qualify for the senior position, it could lead a jury to conclude she was attempting to obstruct his application.

Picked a qualification she knew he didn’t have. Finally, even if the honest belief defense had been properly invoked, there was evidence that the HRO did not, in fact, have an honest belief the employee lacked the necessary experience. In fact, a reasonable jury could infer that she lacked knowledge of particularized facts about the nature or extent of his experience from which she could form an honest belief, the court explained. However, what she did know was that he lacked a college degree because he had been openly working toward that degree and she noted that she had approved his request for a class load over the threshold. A jury could conclude that she intended to add a qualification she knew for certain he did not possess.