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No pay bias where male subordinate’s job not comparable, but age, sex bias claims advance

By Kathleen Kapusta, J.D.

Fired at the age of 62 for poor performance, a regional manager for a payday loan store company can take her ADEA age discrimination claim to trial, a federal district court in Texas ruled, finding that she raised a triable issue regarding pretext by pointing to a raise she received five months before her termination and her claim that she was never warned about poor performance before she was fired. While her Title VII sex discrimination claim also advanced, her Equal Pay Act claim failed because the male coworker whom she alleged she was paid less than was a subordinate, and thus his position was not comparable to hers (Brown v. Cottonwood Financial Texas, LLC, March 8, 2018, Payne, R.).

As a regional manager, the employee supervised the district managers of stores in her geographic region. According to her supervisor, the employee had a tendency to micro-manage district managers, which, the supervisor claimed, she documented along with other performance issues. She eventually recommended that the employee be terminated. The recommendation was accepted and the employee, who was 62 years old at the time, was discharged in June 2015.

Pay disparity. Five months prior to her termination, the employee had complained to her supervisor about the large pay disparity between herself and a subordinate district manager. When she questioned why a subordinate was making more money that she was, and more than the other female managers, her supervisor purportedly became angry and told her the disparity was the result of the subordinate’s prior position at a company the employer had acquired two years ago. When the employee was later fired, the subordinate filled her position. She subsequently sued, asserting claims under the ADEA, Title VII, and the Equal Pay Act.

Age and sex discrimination. The employer did not dispute the first three elements of the employee’s prima facie age discrimination claim: she was discharged; she was qualified for her position; and she was within the protected class at the time of her discharge. It argued however, that she failed to “identify a similarly situated male employee or younger employee who received preferential treatment under nearly identical circumstances.” But this argument was mistaken, said the court, pointing out that she was replaced by her subordinate, who was under 40 years of age at the time, and this satisfied the last prima facie element.

Pretext evidence. Because the employer contended it fired the employee for poor performance, which was a legitimate, nondiscriminatory reason, the court turned to whether she sufficiently established pretext. The employee first pointed to the fact that she received a pay raise five months before her termination, which the court found could raise an inference that she was performing fine at work. She also contended that the company never warned her about, or documented, her poor performance. Here, said the court, an inference could presumably be drawn that because there was no record of poor performance, she was not performing poorly, or at least this was not the real reason for her termination.

In addition, she testified that as she was interviewing a retired male for an assistant manager position, her supervisor told her “it’s not a good idea to hire people of retirement age.” This statement, said the court, was at least circumstantial evidence of discrimination as even if the supervisor did not have ultimate decisionmaking authority, it was made on the job and could have influenced a personnel decision. As to the employee’s testimony that the first time her supervisor expressed any concerns with her performance was after she complained about her subordinate’s salary, this suggested that the supervisor’s accounts of extensive documentation and counseling prior to that time were false, and thus there was a fact dispute for the jury to resolve.

For these same reasons, the employee’s sex discrimination claim also survived summary judgment.

EPA claim. Turning to the employee’s EPA claim, the court found that she failed to show the subordinate’s position was comparable to hers. The employee was a regional manager who supervised district managers such as her subordinate, and their responsibilities differed significantly. District managers were responsible for store operations whereas regional managers were responsible for overseeing district managers. And while the employee may have had more responsibility than her subordinate, employees that are subordinate to a plaintiff pursuing an EPA claim are not typically suitable comparisons because they are not “similarly situated,” the court explained, finding that she failed to establish her prima facie case.

And even if the subordinate were similarly situated to the employee, the employer presented evidence that he was paid more because of the seniority system of the company he had previously worked for. When the employer acquired that company, all newly acquired employees such as the subordinate retained the pay level they had achieved with the company, which was significantly higher than the employer’s pay levels for similar jobs.

Retaliation. The employee’s retaliation claim survived, however. There was no dispute she was terminated less than five months after she complained about the pay disparity. Further, she testified she never heard a single complaint about her poor work performance until after she complained about the pay disparity. This, said the court, at least gave rise to an inference that the employer began developing a record regarding the employee’s poor performance only after she complained about a prohibited practice, which ultimately culminated in her discharge.