Woodward v. Medseek Inc
MEMORANDUM OPINION and ORDER- The deft Medseek, Inc, now known as Influence Health's, motion for summary judgment (Doc 20 ) against Woodard is due to be DENIED. Signed by Magistrate Judge T Michael Putnam on 4/8/16. (MRR, )
2016 Apr-08 PM 03:02
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
d/b/a Influence Health,
MEMORANDUM OPINION and ORDER
This cause is before the court on the motion for summary judgment filed
November 5, 2015, by the defendant, Medseek, Inc., which is now known as
Influence Health. Defendant seeks dismissal of all of plaintiff=s claims arising from
alleged discriminatory pay and from being laid off a few months after her maternity
leave. This matter has been fully briefed, and the court has considered the evidence
and arguments set forth by both parties. The parties have consented to the exercise
of jurisdiction by the undersigned magistrate judge pursuant to 28 U.S.C. ' 636(c).
I. SUMMARY JUDGMENT STANDARD
Under Federal Rule of Civil Procedure 56(c), summary judgment is proper Aif
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). The party asking for summary judgment Aalways bears the
initial responsibility of informing the district court of the basis for its motion, and
identifying those portions of >the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any,= which it believes
demonstrate the absence of a genuine issue of material fact.@ Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). The movant can
meet this burden by presenting evidence showing there is no dispute of material fact,
or by showing that the nonmoving party has failed to present evidence in support of
some element of its case on which it bears the ultimate burden of proof. Celotex,
477 U.S. at 322-23. There is no requirement, however, Athat the moving party
support its motion with affidavits or other similar materials negating the opponent=s
claim.@ Id. at 323.
Once the moving party has met his burden, Rule 56(e) Arequires the
nonmoving party to go beyond the pleadings and by her own affidavits, or by the
>depositions, answers to interrogatories, and admissions of file,= designate >specific
facts showing that there is a genuine issue for trial.=@ Id. at 324 (quoting Fed. R.
Civ. P. 56(e)). The nonmoving party need not present evidence in a form necessary
for admission at trial; however, he may not merely rest on his pleadings. Celotex,
477 U.S. at 324. A[T]he plain language of Rule 56(c) mandates the entry of
summary judgment, after adequate time for discovery and upon motion, against a
party who fails to make a showing sufficient to establish the existence of an element
essential to that party=s case, and on which that party will bear the burden of proof at
trial.@ Id. at 322.
After the plaintiff has properly responded to a proper motion for summary
judgment, the court must grant the motion if there is no genuine issue of material
fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c). The substantive law will identify which facts are material and which are
irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute
is genuine Aif the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.@ Id. at 248. A[T]he judge=s function is not himself to weigh the
evidence and determine the truth of the matter but to determine whether there is a
genuine issue for trial.@
Id. at 249. His guide is the same standard necessary to
direct a verdict: Awhether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a
matter of law.@ Id. at 251-52; see also Bill Johnson=s Restaurants, Inc. v. N.L.R.B.,
461 U.S. 731, 745 n.11 (1983). However, the nonmoving party Amust do more than
show that there is some metaphysical doubt as to the material facts.@ Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). If the
evidence is merely colorable, or is not significantly probative, summary judgment
may be granted. Anderson, 477 U.S. at 249 (citations omitted); accord Spence v.
Zimmerman, 873 F.2d 256 (11th Cir. 1989). Furthermore, the court must Aview the
evidence presented through the prism of the substantive evidentiary burden,@ so
there must be sufficient evidence on which the jury could reasonably find for the
plaintiff. Anderson, 477 U.S. at 254; Cottle v. Storer Communication, Inc., 849
F.2d 570, 575 (11th Cir. 1988).
Nevertheless, credibility determinations, the
weighing of evidence, and the drawing of inferences from the facts are the function
of the jury, and therefore the evidence of the non-movant is to be believed and all
justifiable inferences are to be drawn in his favor. Anderson, 477 U.S. at 255. The
non-movant need not be given the benefit of every inference but only of every
reasonable inference. Brown v. City of Clewiston, 848 F.2d 1534, 1540 n.12 (11th
Viewing the evidence provided by both parties in the light most favorable to
the nonmoving plaintiff, the following facts are considered for purposes of the
defendant=s motion for summary judgment.
A. Employment History
Defendant Influence Health is a healthcare technology company that provides
software and technology services to healthcare marketers and medical clinicians.
Plaintiff Karin Woodard1 was hired by Influence Health on December 1, 2010, as
Vice President, Information Technology/Management Information Systems, at an
annual salary of $100,000. She interviewed with Don Johnson, Kevin Badger,
Doug Griffin, and Rose Jolly. The defendant interviewed four other candidates for
the position, and all of the other candidates were male. The position given to
Woodard was primarily for management of technical employees, but also to perform
In her position, Woodard was responsible for managing the
Information Technology Department.
The Complaint lists the plaintiff=s last name as Woodward, but subsequent filings,
her deposition, and company records refer to her as Woodard.
During the first several months of her employment, she reported to Don
In March 2011, she was reclassified as Vice President, Technical
Services and Support.
With this transition, she took on additional IT-related
responsibilities. She also managed the project logistics and predictive analytics
departments, and went from supervising seven employees to supervising 40. 2 At
that time, she began to report to Scott Cheney, Senior Vice President, Technology
In September 2011, Woodard began reporting to Jason Ingram, Senior Vice
President, Consolidated Services. On October 1, 2011, Woodard received a pay
increase to $115,000, which represented an annual salary adjustment and her
increased responsibilities, and which also reflected that she had performed well. In
December 2011, Ingram gave Woodard her first annual performance review. He
evaluated Woodard on 48 skills, rating her Adistinguished@ in 11 areas, Acompetent@
in 30, and Amarginal@ in 7, for an overall rating of 3.08 out of a possible 5. She
asked for examples of reasons she got the low scores, but Ingram said he did not
know of any. He told her that he had been told to give her that score, and that the
scores were on a curve, with her score being considered a good score. Ingram noted
Although the defendant disputes that Woodard supervised 40 employees, it does
not dispute that her supervision duties expanded greatly, or that she supervised more people than
the male comparator.
a number of Woodard=s top strengths, as well as a number of development
In the spring of 2012, Woodard began reporting to Marc Guthrie, Senior Vice
President and Chief Technology Officer. Guthrie prepared a second annual review
of Woodard in the spring 2012, not long after he began supervising her. He rated
Woodard as Adistinguished@ in three areas, Acompetent@ in 38, and Amarginal@ in 7,
with an overall rating of 2.90 of a possible 5. Woodard did not know about the
review, and did see the review until February or March of 2013, when she told the
human resources director that she had not received a review in 2012. Only at that
time did the human resources director share with Woodard the review done by
Guthrie a year earlier.
Woodard became pregnant in 2012, and took maternity leave in early
September of 2012. She returned to work in October of 2012, and received a pay
raise in December of 2012, which increased her salary to $117,300 annually. Her
pay was never decreased during the time she was employed with the defendant.
In March of 2013, CEO Peter Kuhn told a group of employees at a meeting
that the layoffs were over. Later that month, Woodard was laid off.
B. Employment Duties
When Woodard began work with the defendant, the company was using a
software product called SiteMaker, which was built upon the Microsoft.NET
technology framework and included other key party solutions such as Adobe
ColdFusion. In 2010, the defendant began developing a product called Fulcrum,
which is based on a Microsoft product known as SharePoint, a software platform
that provides a content management system to store documents and share ideas.
The defendant had been working with SharePoint for years before Woodard became
employed, and employees working under her supervision continued to implement
and manage SharePoint in Fulcrum and other applications. When she was hired,
Woodard was told that one reason she was hired was to develop a plan for hosting
Fulcrum through SharePoint. She developed the plan in its entirety.
Woodard also was given the task in 2011 of Amigrating@ the company=s
customers from SiteMaker to Fulcrum. She recommended methods for handling
the transition, and her recommendation was accepted by her supervisors. Once
Fulcrum was implemented, Woodard=s team installed the SharePoint software when
clients migrated to Fulcrum. One group of employees would install the Fulcrum
software, and then another group would configure it and build out the configuration.
Woodard=s team would then coordinate the process of taking the migration Alive.@
During this time, the company was growing quickly, and Woodard needed
help in managing her group=s role in installing SharePoint as part of creating
Fulcrum for customers because she had other areas of responsibility. Woodard had
been interviewing people for more than a year prior to the summer of 2012 for help
managing her employees with the installation of SharePoint in Fulcrum. Guthrie
was aware of the skills that Woodard and her team had. Even so, Guthrie testified
that in the summer of 2012, he did not believe that anyone on the defendant=s staff
had the necessary skill set to implement SharePoint.
A recruiter from defendant met Corey Milliman at a Sharepoint conference in
the summer of 2012, and sent his resume to Guthrie and Woodard.
interviews, Woodard recommended that Milliman be offered the position at a salary
of $160,000 per year, with a bonus and relocation expenses, even though this salary
was greater than her own. Even though she recommended the hire and the salary,
Woodard had long felt that she was underpaid, and she had raised the subject with
her supervisors several times.
Milliman was hired because he would be able to oversee the SharePoint
product, and because he was able to use his SharePoint knowledge to shoulder some
of Woodard=s work. He also was hired to manage the operation of the product in
the data center, which was an operational role to manage the day-to-day
implementation of the strategy that Woodard had developed.
C. Woodard=s Employment and Pay
Silver Lake Sumeru, LP, (ASilver Lake@) a technology investor, acquired
Influence Health in June 2012. Silver Lake told Influence Health that it had to cut
certain dollar amounts to get the budget into a positive light. Because the biggest
expense at Influence Health was its staff, Johnson recommended layoffs to meet the
Silver Lake budget cuts. Influence Health laid off employees in September 2012
and March 2013. Woodard was not laid off in the first round of layoffs, which
happened while she was on maternity leave. In the March 2013 layoff, when
Woodard=s employment was terminated, Influence Health eliminated two vice
president positions (one male and one female), four manager positions (three male
and one female), and three director positions (one male and two female). At that
point all three females (Woodard, Suzanne Riccard, and Sharon Cox) working in a
leadership role under Guthrie and Chief Operating Officer Ron Mullen were
In general, layoff decisions were made after the defendant assessed whether it
could combine or eliminate positions and still provide the same level of production
and service. Guthrie testified that he decided to terminate Woodard because she
lacked sufficient SharePoint knowledge and experience and she was not able Ato
stand up in front of a client ... and exude a level of confidence and capability that ...
built confidence in the company.@ His opinion was based upon his having heard her
Agetting flustered@ when responding to customers= questions on the telephone.
Woodard claims that she got only positive feedback from Guthrie until her
termination, and that he told her when he terminated her that her work had been
Afantastic@ and that he would give her a Aglowing@ recommendation.
Woodard asserts that Guthrie discriminated against her after she became
pregnant in that he excluded her from meetings and did not spend time with her like
he did with other employees on her level. She also stated that when Guthrie was
hired, one of the first things he asked her was when her baby was due and how long
she would be on maternity leave. Although Woodard assigned all of her work to
others on her team while she was on leave, Guthrie chose instead to have Milliman
take Woodard=s responsibilities while she was out, even though Milliman had
worked at the company for less than a month. While Woodard was on leave,
Guthrie told Milliman that she was not coming back, although Woodard had stated
that she would return, and she did.
Woodard claims that Daren McCormick, former Chief Operating Officer
(prior to Ron Mullen), told her in December 2011 that she was being paid less than
her male counterparts and promised to increase her pay.
employment, the defendant classified her role as part of the support area of the
Engineering and Technical Services group, and she was the only vice president in
that support group.
Woodard asserts that Milliman, Groves Powers, Travis Moore, Michael
Pittard, Garett Trumpower, Jeff Allegrezza, Michael Bermudez, Judson Englett, and
Corbin Riemer performed work at Influence Health that was substantially similar to
the work she performed, and that she was paid less than any of them. 3 The
defendant has stated that Trumpower and Moore were paid less than Woodard, and
that Reimer and Englett were paid (at least in part) on a sales commission basis.
Woodard did not participate in sales. The only pay records produced demonstrate
that Trumpower, who was a vice president, was paid $143,000 per year in 2010,
significantly more than plaintiff=s pay of $100,000 at that time; and that Moore, also
a vice president,4 was paid $135,000,5 also more than plaintiff. The records for
In response to an interrogatory, plaintiff identified John Asbeck and Scott Cheney,
but plaintiff=s response to the motion makes clear that plaintiff no longer asserts any claim as to
Asbeck or Cheney, which is a concession that the two men are not alleged to be comparators.
In the management hierarchy of the defendant, the levels of rank in ascending order
were manager, director, vice president, and senior vice president. Directors were superior to
managers, and vice presidents were superior to directors.
The pay chart provided as plaintiff=s exhibit 3 does not indicate the year for which
the salary is listed. But, in any event, the highest rate of pay plaintiff received was $117,300.
Reimer indicate that, while he may have earned commissions on top of a base salary,
his base salary in 2011 was $125,000, which exceeded plaintiff=s pay by several
As for Milliman, Woodard claims that she was qualified to and, in fact,
performed all of the duties that were assigned to Milliman. Pittard was Vice
President of Engineering and supervised a team of software engineers writing
programming for Fulcrum. Bermudez was a manager-level engineer who oversaw
one team of engineers. Allegrezza was a director involved in product development.
Both “manager” and “director” are titles below the level of vice president in the
defendant’s management hierarchy. Trumpower, a vice president; Powers, a
director; and Riemer, a vice president, were customer consultants in the sales area.
Moore was a vice president on the sales team, who later joined the product
management team. Influence Health pays its employees with sales responsibilities
at least partly on a commission basis.
Woodard claims that in January 2012, former COO McCormick promised her
a promotion with a pay raise upon completing a project.
The project was
reassigned to another employee, Mike Oakman, before she was able to finish it.
She further asserts that the defendant discriminated against her when she announced
her pregnancy in April 2012 by removing 75 percent of her responsibilities and
assigning them to Oakman. Woodard believes that McCormick, Ingram, Guthrie,
and Mullen ignored her in 2012 after she became pregnant.
In early March of 2013, the CEO of Influence Health, Peter Kuhn, told
employees that any terminations in the future would be based solely on performance.
At the employee meeting, Woodard specifically asked Kuhn whether employees
would be informed when their performance was lacking, and he told her that
employees would be given a performance improvement plan and a chance to
improve before they would be laid off. Woodard asserts that she was not told that
her performance was lacking, but was laid off soon after that meeting.
Woodard also was told by a co-employee that Rob Mullen said during a
meeting with Guthrie and White that women don=t belong in technical leadership
positions, and that Mullen directed Guthrie to get rid of the women in those positions
who reported to Mullen. Plaintiff testified to the following in her deposition:
Q. Further on in Defendant's Exhibit 7 on page six, it says he [Ron
Mullen] was overheard by several employees as saying that women
don't belong in technical leadership positions and directing Marc
[Guthrie] to get rid of me for that reason. Who were the several
employees who overheard Mr. Mullen say that?
A. There were -- to my knowledge Marc Guthrie and Chris White. I
am not sure who else was in that meeting.
Q. Who told you about the meeting?
A. Lisa Baugh.
Q. Was Lisa Baugh in the meeting?
A. No .
Q. Tell me what Lisa Baugh told you about the meeting between Mr.
Mullen, Mr. Guthrie and Mr. White.
Q. What did Lisa tell you specifically that Mr. White said [to her
about the meeting]?
A. That he was -- first he is -- Rob [Mullen] was sort of loud and
commanding and just generally not easy to get along with, that he had
rubbed everybody the wrong way and then him saying that women
don't belong in technical leadership positions, and specifically he was
talking about the women reporting into his organization. There were
three women in leadership positions reporting up into Rob.
Q. That is you and Sharon?
A. And Suzanne.
Q. What else did Lisa tell you?
Q. Lisa told you that Chris said that Mullen said that women don't
belong in technical leadership positions, correct?
Q. Did Lisa say that Chris said that Mullen mentioned you specifically?
A. I don't think so. I am not positive. I don't remember the exact
words of that conversation.
Q. Did Lisa tell you that Chris said that Mullen told Marc to get rid of
you for that reason?
A. Yes. Not me specifically, but them.
Q. So Lisa said as part of this soliloquy with Mr. White, that part of
that was that Mullen told White and Guthrie to get rid of them, meaning
the woman in technical leadership positions?
A. Told Marc .
See Woodard’s Depo. at pp. 121-123.6 The women under Mullen=s supervision
were Woodard, Sharon Cox, and Suzanne Riccard. In March of 2013, when
Woodard was told that her position was being eliminated as part of a reorganization
and cost-cuttings, Cox and Riccard also were terminated.
Woodard filed her EEOC charge in June 2013, and filed her complaint
commencing this lawsuit in September 2014.
She asserts that: (1) she was paid
less than similarly-situated males, in violation of Title VII, on account of her gender;
(2) she was paid less than males for substantially the same work, in violation of the
The defendant has not objected to this hearsay. See Fed. R. Civ. P. 56(c)(2).
Indeed, defendant offered that plaintiff’s deposition testimony without redaction or limitation.
Equal Pay Act; and that (3) she was terminated, in violation of Title VII, on account
of her gender.7
A. Claims Regarding Disparate Pay
Plaintiff bases her complaint on Title VII, 42 U.S.C. ' 2000e, et seq., which
prohibits discrimination in the workplace on the basis of race, sex, or national origin,
and on the Equal Pay Act, 29 ' U.S.C.A. 206(d). 8
Title VII offers broad protection
against disparate treatment on the basis of gender, while the Equal Pay Act focuses
narrowly on the Aspecific practice of paying unequal wages for equal work.@
Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1526 (11th Cir. 1992).
In the instant case, plaintiff asserts that her job was terminated because of her
gender, in violation of Title VII, and that she was discriminatorily paid less than
males performing substantially similar work, in violation of both Title VII and the
Plaintiff has not alleged that her termination was in retaliation for her complaints
that her pay violated Title VII or the Equal Pay Act, although she has testified that she did
repeatedly tell her superiors that she did not think she was paid fairly.
In 1978, Congress passed the Pregnancy Discrimination Act (APDA@), amending
Title VII and providing that discrimination Abecause of sex@ or Aon the basis of sex@ includes
discrimination on the basis of pregnancy, childbirth, or related medical conditions. 42 U.S.C.
' 2000e(k). Since the passage of the PDA, it has been established that pregnancy discrimination
claims are analyzed using the same framework as other Title VII sex discrimination claims. See
Armstrong v. Flowers Hospital, Inc., 33 F.3d 1308, 1312-13 (11th Cir. 1994). Although plaintiff
asserts that her treatment after she announced that she was pregnant was unfair, she offers that
treatment as evidence of gender animus, and not as a discrete pregnancy-discrimination claim.
Equal Pay Act. The defendant asserts that plaintiff has not produced substantial
evidence to support her claims of discrimination, and that the real reason the plaintiff
was terminated was because her poor work performance. The defendant further
asserts that plaintiff has failed to point to a valid male comparator who performed
similar work and was paid more.
Under Title VII, a plaintiff asserting a disparate-treatment claim must prove
that the defendant had a discriminatory intent either through direct or circumstantial
evidence. Denny v. City of Albany, 247 F.3d 1172, 1182 (11th Cir. 2001). Direct
evidence establishes that intent without the need for any inference or presumption.
Id. (quoting Standard v. A.B.E.L. Servs. Inc., 161 F.3d 1318, 1330 (11th Cir. 1998)).
Where there is no direct evidence, the plaintiff must prove intent in accordance with
the method first set forth in McDonnel Douglas Corp. v. Green, 411 U.S. 792
(1973), and further refined in Texas Dep=t of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981). Although proof of discriminatory intent is vital to a Title VII
claim, that intent can sometimes Abe inferred from the mere fact of differences in
treatment.@ International Brotherhood of Teamsters v. United States, 431 U.S.
3245, 335 n.15, 97 S. Ct. 1843, 52 L. Ed. 2d 396 (1997).
The same burden-shifting scheme applies to cases involving circumstantial evidence
of a violation of the Equal Pay Act (AEPA@).
Miranda, 975 F.2d at 1530. The
proof of intent, however, is not required to state a prima facie case under the EPA.
1. Equal Pay Act
Under the Equal Pay Act, a plaintiff must prove that he or she performed
substantially similar work for less pay than employees of the other gender. The
Supreme Court applying the Equal Pay Act has required a showing that the
employer pays Adifferent wages to employees of opposite sexes >for equal work on
jobs the performance of which requires equal skill, effort and responsibility, and
which are performed under similar working conditions.= @ Corning Glass Works v.
Brennan, 417 U.S. 188, 195, 94 S. Ct. 2223, 41 L. Ed. 2d 1 (1974). The duties
performed need not be identical but merely Asubstantially equal.@ Brennan v. City
Stores, 479 F.2d 235, 238-39 (5th Cir. 1973). 9 A comparator=s prior experience in
not relevant to the inquiry, but only the Askills and qualifications actually needed to
perform the jobs.@ Mulhall v. Advance Sec., Inc., 19 F.3d 586, 592 (11th Cir.
1994). Similarly, a job title may be a Afactor for consideration,@ but it is not
Decisions of the Fifth Circuit Court of Appeals entered before the close of business
on September 30, 1981, are binding as precedent on the Eleventh Circuit Court of Appeals.
Bonner v. City of Prichard, Ala., 661 F.2d 1206 (1981).
dispositive. 19 F.3d at 592. Once the plaintiff makes this showing, the burden
falls to the employer to prove an affirmative defense available under the statute.10
Under Title VII of the Civil Rights Act, the standard of Asimilarity@ is less
strict, but a plaintiff also must offer evidence of an intent to discriminate. Miranda,
975 F.2d at 1526.
The same affirmative defenses that apply to the EPA can be
brought in a Title VII discriminatory-pay case based upon the Bennett Amendment
to Title VII. 42 U.S.C. § 2000e-2(h); see Washington County v. Gunther, 452 U.S.
161, 167, 101 S. Ct. 2242 (1981).
In this case, Woodard has provided direct evidence of Equal Pay Act
discrimination and, therefore, need not rely on the McDonnell Douglas
burden-shifting framework to demonstrate that she was paid less than her
counterparts, all of whom were male. Woodard has stated that she was told by
Daren McCormick, then her supervisor, that she was paid less than her counterparts.
The relevant portion of the Equal Pay Act, 29 U.S.C. ' 206(d)(1), provides:
No employer having employees subject to any provisions of this section shall
discriminate, within any establishment in which such employees are employed,
between employees on the basis of sex by paying wages to employees in such
establishment at a rate less than the rate at which he pays wages to employees of the
opposite sex in such establishment for equal work on jobs the performance of
which requires equal skill, effort, and responsibility, and which are performed
under similar working conditions, 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 factor other
She further has testified that McCormick promised her an increase in pay to erase the
difference, which she never received.
Therefore, even without any direct or
circumstantial evidence that the defendant intended to discriminate, she has made a
prima facie showing under the Equal Pay Act. 11
To further support her pay claim, Woodard has demonstrated that other vice
presidents, all of whom are male (and even some managers and directors who rank
lower in the hierarchy than vice president) were paid more than was she. Corey
Milliman, who was hired in a role of lesser responsibility, but with substantially
similar skills, was brought in at $160,000 at a time when she was paid less than
$120,000. He was paid more than she was paid, even when he was new to the
company and reported directly to her and she had several years of seniority to him.
Although the defendant argues that Milliman had more experience with SharePoint,
the court finds that there are genuine issues of fact as to whether Milliman and
Woodard had jobs requiring equal skill, effort, and responsibility, and that those jobs
were performed under similar working conditions.12 While it is true that there was
McCormick denies making that statement, but the defendant concedes that, for
purposes of the instant motion, it is accepted as fact.
Because the court finds that Milliman is a sufficient comparator under the EPA, the
court need not determine whether the other male vice presidents, managers, and directors cited by
the plaintiff also are comparators because even a single comparator is sufficient to withstand the
defendant=s motion for summary judgment.
no other officer in the company with the exact title and duties as Woodard, that alone
does not defeat her claim of pay discrimination under the EPA. 13 See Mulhall, 19
F.3d at 592. As the Eleventh Circuit noted in Miranda, it is important that the
standard employed in evaluating pay claims does not Ashield employers who
significantly underpay women but seek to avoid the requirements of the Equal Pay
Act by changing the job description in a slight way that does not affect the substance
of the responsibilities.@ 975 F.2d at 1531.
Under the EPA, to rebut a prima facie showing, the defendant bears the
burden of proving that the pay differential is justified by one of the four statutory
defenses. In this case, the defendant has failed to assert that Woodard=s pay was
subject to a merit or seniority system, was measured by a quantity or quality of
production, or was otherwise subject to some nondiscriminatory factor.
defendant=s arguments that Guthrie believed that Woodard was not as effective or as
skillful as Milliman are not the type of specific showing of cause that is anticipated
by the EPA.
The prima facie showing turns upon the Ajobs held@ and not the Askills
To require that each plaintiff find an identical comparator would effectively
preclude any such action by a high-ranking employee B of whom there are necessarily fewer than
lower-level workers, and would restrict the remedies of the equal pay legislation to those who
work at less specialized jobs, such as assembly line workers or retail clerks. Comparing
substantial similarity of management skills, responsibilities, and requirements among higher-level
employees is just as possible as comparing the job requirements of lower-level employees.
and qualifications of the individual employees holding those jobs.@ Mulhall, 19
F.3d at 594, quoting Brock v. Georgia Southwestern College, 765 F.2d 1026, 1032
(11th Cir. 1985).
The Eleventh Circuit Court of Appeals has described the
defendant=s burden as a Aheavy one@ because the defendant Amust show that the
factor of sex provided no basis for the wage differential.@ Irby v. Bittick, 44 F.3d
949, 954 (11th Cir. 1995), quoting Mulhall v. Advance Sec., Inc., 19 F.3d 586,
589-90 (11th Cir.), cert. denied, 513 U.S. 919 (1994). 14
In contrast to an action
alleging unequal pay under Title VII, an EPA plaintiff does not carry the burden of
disproving the defendant=s reason, or showing that the asserted reason is pretextual.
See, e.g., Buntin v. Breathitt County Bd. of Educ., 134 F.3d 796, 799 (6th Cir. 1998).
Rather, the employer must affirmatively prove the applicability of a statutory
Given all of the facts set forth by the plaintiff, a reasonable juror could infer
that Woodard=s position and Milliman=s position 15 were substantially similar for
purposes of the EPA.
Defendant has failed to demonstrate by sufficient evidence
To the extent that defendant may argue that Milliman=s salary was higher than
plaintiff=s because his previous salary was high (and it thus took a higher salary to gain his
acceptance of the job) is insufficent. The Eleventh Circuit Court of Appeals has expressly noted
that Aprior salary can never be used by an employer to establish pay,@ because using a male=s prior
high salary simply perpetuates the inequality that the EPA was enacted to rectify. Irby, 44 F.3d at
The court’s focus on the comparison between plaintiff and Milliman is not intended
to limit the plaintiff’s proof at trial that there are other comparators as well.
that the pay disparity was on account of one of the four permissible reasons set forth
in the EPA.
Accordingly, the defendant=s motion for summary judgment on
plaintiff=s Equal Pay Act claim is due to be denied.
2. Title VII Disparate Pay
Under Eleventh Circuit law, the burden of showing the similarity of work
performed by a female plaintiff and a male comparator is Amore relaxed@ under
Title VII than under the EPA. See Rollins v. Alabama Comm. College Sys., 814 F.
Supp. 2d 1250, 1267 (M.D. Ala. 2011).
The same evidence that supports her EPA claim suffices to support a Title VII
claim that Woodard was discriminatorily paid. The element of intent can be
satisfied by other evidence offered by the plaintiff, such as evidence that she was
told she was paid less than her counterparts, and evidence that she was told she
would get a promotion and higher pay when she finished a project, but that she was
never allowed to finish the project because it was reassigned.16 Finally, Woodard
has offered evidence, albeit in the form of hearsay, that Mullen, then the COO at
Influence Health, told Guthrie, plaintiff=s supervisor, that women did not belong in
The court agrees with the defendant=s argument that no failure-to-promote claim
can be raised at this juncture based upon McCormick=s alleged promise made in January 2012;
however the allegations still may be considered as evidence regarding the defendant=s intent with
respect to the disparate-pay claim.
technical leadership positions and that Guthrie should get rid of them. After that
statement was allegedly made, Guthrie laid off the plaintiff and two other women in
supervisory positions. Accordingly, Woodard has carried her initial burden of
establishing a prima facie case of discrimination in pay. McDonnell Douglas, 411
U.S. at 802. Then, unlike in an Equal Pay Act claim, the burden shifts, and the
defendant must Aarticulate some legitimate, nondiscriminatory reason@ for the pay
discrepancy. Id. If a nondiscriminatory reason is articulated, the plaintiff may
attempt to show that the proferred reason was merely a pretext, and that the
employer=s intent was discriminatory. See Burdine, 450 U.S. at 253.
Influence Health asserts that it paid Woodard less than Milliman because he
had a broader range of knowledge in SharePoint and had good contacts within
Microsoft. The defendant=s articulation of a legitimate, non-discriminatory reason
for the pay differential shifts the burden to plaintiff to show that the reason either is
not worthy of belief, or that, in the light of all the evidence, a discriminatory reason
more likely motivated the decision than the proffered reason. Standard v. A.B.E.L.
Servs. Inc., 161 F.3d 1318, 1331-33 (11th Cir. 1998). Because Woodard has
offered evidence (1) that the defendant knew that Woodard was being paid less than
similarly-situated males, as she was told by McCormick, (2) that the defendant
promised to rectify the pay disparity but did not, (3) that the COO said he did not
believe women deserved positions such as hers, (4) that Woodard also had extensive
experience working with SharePoint, (5) that she had successfully managed over
forty subordinate employees, and (6) her work was described as “fantastic,” plaintiff
has met her burden of producing evidence sufficient to allow a reasonable juror to
find that Influence Health=s reason for paying Milliman more than plaintiff is not
worthy of belief, or that a discriminatory reason more likely motivated the decision
to pay Woodard less than her comparator. Accordingly, the motion for summary
judgment as to the Title VII disparate pay claim also is due to be denied.
B. Title VII Termination Claim
Plaintiff=s final claim is that she was terminated on account of her gender
during a reduction in force in March 2013. A plaintiff can establish a prima facie
case of discrimination in a reduction-in-force case by showing that: (1) she was a
member of a protected group and was adversely affected by an employment
decision; (2) she was qualified for the position or another position when she was laid
off, and (3) there exists evidence of an intent to discriminate. Lawver v. Hillcrest
Hospice, Inc., 300 Fed. App=x 768, 772-73 (11th Cir. 2008). Reduction-in-force
cases generally involve instances in which the plaintiff was not replaced by another
300 Fed. App=x at 773, citing Mauter v. Hardy Corp., 825 F.2d 1554,
1557 (11th Cir. 1987).
In this case, there is no dispute that the plaintiff was in the protected group, as
a woman, and that she was adversely affected by the decision to terminate her
employment. Defendant further does not argue that Woodard was not qualified to
do the job or another job at the time. Instead, the defendant argues that the
Adecision had nothing to do with sex; it had to do with Influence Health=s perception
of Plaintiff=s and Milliman=s respective skills and experience and its need to reduce
overhead.@ (Doc. 23, p. 18). While it is well settled that it is not the job of the
court to second-guess an employer=s evaluation of its employees= skills and abilities,
this argument completely ignores the direct evidence of sex discrimination: that
Mullen said he did not want women in technical management leadership positions,
and that she was intentionally paid less than male counterparts. In addition to that
evidence, the plaintiff has testified that she was treated differently by Guthrie after
she became pregnant, and that Guthrie described her work as Afantastic@ and
promised to give her a Aglowing@ review when she was terminated. Both Guthrie
and Mullen were decision-makers with regard to the reduction in force. These facts
could, if believed, persuade a reasonable juror that Woodard was laid off not because
of financial reasons or Milliman=s qualifications, but because she was female.
Sufficient evidence exists to allow a reasonable juror to determine a
discriminatory reason more likely motivated the decision to terminate Woodard than
the nondiscriminatory reason provided by Influence Health. Accordingly, the
motion for summary judgment is due to be denied.
Accordingly, consistent with the foregoing discussion of the evidence
presented and the law governing this action, this court determines that Influence
Health=s motion for summary judgment (doc. 20) against Woodard is due to be
Dated the 8th day of April, 2016.
T. MICHAEL PUTNAM
UNITED STATES MAGISTRATE JUDGE
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