May 25, 2019

Tenth Circuit: Bifurcation of Position Does Not Defeat Comparison for Employment Discrimination Claims

The Tenth Circuit Court of Appeals issued its opinion in Riser v. QEP Energy on Tuesday, January 27, 2015.

Kathy Riser, who was 50 years old in 2013, began working for Questar Exploration and Production Co. in 1997. In 2003, she became an Administrative Services Representative II, where she managed a fleet of 250 vehicles, performed facilities management duties, and managed construction projects in several states. She was the only Questar employee performing fleet management and facilities management duties. In 2010, QEP was spun off from Questar and became a separate entity. Based on the title of Ms. Riser’s job and not her actual duties, she was classified under the new employee classification system as a Grade 5 employee making $22.78 per hour or $47,382 annualized. Twice Ms. Riser requested that her title and salary be changed to reflect her actual duties, but her supervisor, Mr. Beach, would not respond.

In May 2011, QEP created a new position, “Fleet Administrator,” and had Ms. Riser craft a job description for the position based on her fleet management duties. The position was classified as a Grade 7 position with an annual salary of $62,000. QEP hired Matthew Chinn, a 39-year-old man, as Fleet Administrator in June 2011. Ms. Riser trained Mr. Chinn in fleet management duties until her termination in September 2011. QEP stated that Mr. Chinn took over Ms. Riser’s fleet management duties as well as other duties; however, Ms. Riser stated that she was in the process of implementing the new programs when Mr. Chinn was hired.

In August 2011, QEP began discussing creating a new “Facilities Manager” position and spoke with Jason Bryant, a 30-year-old man, about the position. QEP stated they were receiving complaints about Ms. Riser’s work overseeing a North Dakota construction project, but none of these complaints were conveyed to her during the time period and she continued to receive favorable reviews. QEP terminated Ms. Riser on September 8, 2011, stating her termination was due to her poor performance on the North Dakota construction project. She had not received any warning or been placed on suspension prior to her termination. QEP then hired Mr. Bryant as the facilities manager, classified as a Grade 7 employee and making $66,000 annually.

Ms. Riser brought suit against QEP in federal district court in Utah alleging: (1) pay discrimination under the EPA, Title VII, and ADEA; (2) failure to promote under Title VII and the ADEA; and (3) discriminatory discharge under Title VII and the ADEA. The district court granted summary judgment to QEP on all claims. Ms. Riser appealed the summary judgment on all but her failure to promote claim.

The Tenth Circuit found Ms. Riser’s claims to be precisely the sort of factual disputes that preclude summary judgment. On her EPA claims, the district court held that Ms. Riser had not established that her job was “substantially equal” to either Mr. Chinn’s or Mr. Bryant’s job, and also that even if she could establish a prima facie claim of discrimination, the pay scale was based on a gender-neutral system. The Tenth Circuit disagreed on both points, finding “the fact that a female employee performed additional duties beyond a male comparator does not defeat the employee’s prima facie case under the EPA.” The Tenth Circuit noted that QEP’s argument that Ms. Riser had no comparator was especially disingenuous, since her position was bifurcated to create the two jobs which were then given to younger men at a higher rate of pay. The Tenth Circuit similarly disposed of QEP’s argument that its pay scale was gender-neutral, as Ms. Riser’s pay was not based on her actual duties but rather those duties typically performed by people with her title. The Tenth Circuit likewise found merit to Ms. Riser’s Title VII and ADEA claims, since they had a lower burden of proof.

The Tenth Circuit affirmed the district court’s grant of summary judgment on Ms. Riser’s discriminatory discharge claims, finding these were not adequately briefed. In her opening argument, Ms. Riser did not argue that she satisfied her prima facie case, only that one existed. The Tenth Circuit concluded this argument was waived.

The district court’s summary judgment was affirmed in part, reversed in part, and remanded.

Tenth Circuit: Individual Plaintiffs Barred From Bringing Title VII Pattern-or-Practice Claims

The Tenth Circuit issued its opinion in Daniels v. United Parcel Service, Inc. on Tuesday, December 11, 2012.

Regina Daniels worked for United Parcel Service (UPS) as a dispatch specialist in a position that covered different shifts. She applied for promotions in 2005 and 2006 but, contrary to UPS policy, her manager never assessed her for the positions and UPS never followed up with her. She also had been training for the busiest shift, the “twilight window,” when a new policy was instituted that only full-time supervisors could work that shift. Her training ended. In 2008, Daniels met with UPS Human Resources to complain about her replacement in the cover position and assignment permanently to one shift and UPS’s lack of follow up to her promotion applications. In November 2008, Daniels filed an EEOC charge. The district court granted UPS’s motion for summary judgment on Daniels’s Title VII, ADEA, and Kansas state law claims.

The Tenth Circuit held that Daniels did not file her EEOC charge in a timely manner. Regarding the failure to promote claim, her conversation with human resources was not the relevant trigger date because it did not inform her of an adverse employment action. The court also rejected her arguments that 1) the futility doctrine applied, 2) the failure to promote was a compensation decision so a cause of action accrued with each paycheck and 3) the Morgan decision was overruled by the Fair Pay Act.

The court also held that individual plaintiffs may not bring pattern-or-practice claims so her denial of training claim also failed. Thus, she could only bring it in 2008 if the denial of training was a continuing violation and the court held it was not.

The court held that Daniels’s permanent assignment to night shift and replacement by a younger male in the cover position was not discrimination because it was not an adverse employment action. It also rejected her wage discrimination claim. The court held that to make out a prima facie case of wage discrimination, she would have had to perform substantially similar duties to full-time supervisors and because there were significant duties she did not perform, she failed. Finally the court held Daniels failed to establish a prima facie case of retaliation and affirmed summary judgment for UPS.