Parks v. Central Arkansas Transit

Filing 32

ORDER granting 24 Motion for Summary Judgment. Signed by Judge Susan Webber Wright on 04/01/2014. (rhm)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION

SHELITHA R PARKS,
Plaintiff,
vs.
CENTRAL ARKANSAS TRANSIT,

Defendant.

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No. 4:13CV000204 SWW

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION

SHELITHA R PARKS,

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Plaintiff,
vs.

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CENTRAL ARKANSAS TRANSIT,

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, Defendant.

No. 4:13CV000205 SWW

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Memorandum and Order

Before the Court is defendant's motion for summary judgment to which plaintiff
responded . Defendant filed a reply to the response. For the reasons stated below, the Court finds
the motion should be granted.

Background
Defendant Central Arkansas Transit Authority ("CAT A") hired Plaintiff Shelitha R . Parks
("Parks") as a fixed route dispatcher effective June 20, 2011. Her initial rate of pay was set at
$13.50 per hour, or $28,080.00 per year. While Parks had experience in the transit industry, she
had no experience in the public passenger transit industry when she was hired. On November 8,
2011 , CATA raised Parks ' s pay to $28,922.00, retroactive to her date of hire. On December 6,
2012, Parks resigned her position in lieu of being terminated.
Thomas Olson, a white male, began his employment with CATA as a bus operator on May
19, 2003. As a bus operator, the terms and conditions of his employment were governed by a
collective bargaining agreement. On or about February 13,2012, CATA offered and Olson
accepted a position as a fixed route dispatcher/supervisor. His compensation was set at $17.00
per hour, a pay cut of $2.02 per hour from his rate as a bus operator.
In addition to Parks, CATA employed four other fixed route dispatchers during 2011 and
2012: Carolyn Mixon, Mary Luann Myers, Gary Mi lks, and Thomas DeVore. CATA hired
Mixon, an African-American female, on or about November 24, 2004, as a dispatcher, with a
starting rate of pay of $11.00 per hour. According to her application letter, Mixon had no
experience in the public passenger transportation industry. 1 Mixon received a series of pay
increases, and in November of 2011, her rate of pay was increased from $15.23 per hour
($31 ,683 .00 per year) to $15.68 per hour ($32,606.00 per year).
CATA hired Myers, a white female, on or about September 15, 2010, as a fixed route
dispatcher, with a starting rate ofpay of$13 .50 per hour. On December 1, 2010, Myers received a

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Defs. Mot. Summ. J., Ex. 13.
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pay increase of $842.00 per year ($0.405 per hour) and on November 8, 2011, she received a pay
increase of$868.00 per year ($0.417 per hour). She resigned on February 1, 2012.
On March 3, 2011, CATA hired Milks, a white male, as a fixed route dispatcher with a
starting rate of $13.50 per hour. He had management experience in the transportation industry
prior to his employment with CAT A. Milks resigned his position with CATA effective May 12,
2011 .
Thomas DeVore, a white male, has been employed by CATA and its predecessors in
various capacities, including director of operations, since 1948. He retired in 1997. In 2007,
CATA rehired DeVore as a fixed route dispatcher. On December 1, 2010, DeVore's rate of pay
was increased by $0.25 to $16.17 per hour. On November 8, 2011, DeVore's rate of pay was
increased by $0.49 to $16.66 per hour.
Parks filed a complaint pursuant to the Equal Pay Act, 29 U.S .C. § 206(d) ("EPA") and
Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq., as amended, alleging CAT A paid her
Jess than a white male. 2 CATA filed a motion for summary judgment, arguing Parks cannot
establish a prima facie case of pay discrimination, and even if she could, the pay difference was
based on a factor other than gender.

Standard of Review
Summary judgment is appropriate if the evidence, when viewed in the light most favorable
to the non-moving party, shows that there is no genuine issue of material fact and that the moving
party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S . 317, 322

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Plaintifffiled two complaints alleging pay discrimination, based on identical charges filed with
the EEOC. The cases were consolidated. See ECF No. II .
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(1986). "The evidence of the non-movant is to be believed, and all justifiable inferences are to be
drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S . 242,255 (1986). "The mere
existence of a scintilla of evidence in support of the plaintiffs position will be insufficient; there
must be evidence on which the jury could reasonably find for the plaintiff." Jd. at 252. Therefore,
in a motion for summary judgment, " [t]he judge's inquiry unavoidably asks whether reasonable
jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict." !d.

Discussion
The Equal Pay Act prohibits discrimination " between employees on the basis of sex by
paying wages to employees ... at a rate less than the rate at which [the employer] pays wages to
employees of the opposite sex .. . for equal work on jobs the performance of which requires equal
skill, effort, and responsibility, and which are performed under similar working conditions." 29
U.S.C. § 206(d)(l). "Application of the Equal Pay Act depends not on job titles or classifications
but on the actual requirements and performance of the job." Simpson v. Merchants & Planters

Bank, 441 F.3d 572, 578 (8th Cir.2006) (quoting EEOC v. Universal Underwriters Ins. Co., 653
F.2d 1243 , 1245 (8th Cir.1981)). "Equal pay for equal work is what the [statute] requires, and
those elements are the focus of the prima facie case." Price v. N. States Power Co. , 664 F.3d
1186, 1192-93 (8'" Cir. 2011 ).
CATA asserts Parks cannot establish aprima.facie case because Milks, who began his
employment three months before Parks, received the same rate of pay. In addition, CATA argues
Parks cannot establish that her job was equal to Olson' s. As Olson's title reflects, he had the
ability to perform tasks that Parks could not perform, including driving a bus. CATA asserts that
even if Parks could establish that she was paid less than Olson for performing similar work, the
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evidence is undisputed that Olson had nine years of experience as a bus driver, was familiar with
the collective bargaining agreement, and was able to fill in for bus operators and/or bus
supervisors.
Parks argues Milks is not the best comparator because (1) Milks resigned his position the
month before Parks began working for CATA and thus they did not work side-by-side, and (2) he
was still on his ninety-day probationary period when he resigned. Plaintiff also argues that just
because one male out of three earned the same or less than the three other female employees is
insufficient to preclude a finding that CAT A violated the EPA. She further argues that she,
Olson, and DeVore performed substantially the same work under similar conditions. Parks asserts
that Olson's title as supervisor is meaningless because they actually performed the same job
duties. Even though Olson was capable of filling in as a bus driver, Parks says he never actually
did so. Thus, ajury could determine that their job duties were substantially similar.
In reply, defendant asserts that Parks cannot ignore Milks as a comparator and then infer
that all male dispatchers made more than she. Mi lks was Parks's immediate predecessor; he
resigned in May 2011 and Parks was hired in June 2011. Their pay was the same. Actually, Parks
pay was more because she received a retroactive pay increase. "Under the EPA, job comparison
may appropriately consider immediate predecessors or successors of the plaintiff." Lawrence v.

CNF Tramsp., Inc., 340 F.3d 486, 491 (8' 11 Cir. 2003).
To survive a motion for summary judgment, a plaintiff "must present at least some
evidence showing she and the other employees performed equal work under similar conditions."

Holland v. Sam 's Club , 487 F.3d 641, 645 (8' 11 Cir. 2007).
If a plaintiff establishes a prima facie case, the burden then shifts to the defendant

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to prove one of four statutory affirmative defenses. Those defenses require an
employer to prove that any wage differential is explained by ' (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 other factor other than sex. ' 29
U.S .C. § 206(d)(l). In an EPA case, ' a defendant cannot escape liability merely by
articulating a legitimate non-discriminatory reason for the employment action ....
[it] must prove that the pay differential was based on a factor other than sex.'
Price v. Northern States Power Co., 664 F.3d 1186, 1191 (8 111 Cir. 20ll)(internal citations
omitted). Even assuming Parks can establish aprima.facie case, CATA contends the pay
differential between Olson and Parks was based on the relative public passenger transp011ation
industry experience they each had and, in the case of Olson, the fact that he had the ability to fill
in for bus operators and/or bus supervisors. According to Bill Adcock, the Director of Operations
for CA TA, Olson had the title "Fixed Route Dispatcher/Supervisor" in recognition of the fact that
Olson had a commercial driver' s license and therefore maintained the qualifications required to
operate a bus. 3
As to DeVore, the evidence is undisputed that he had several decades of experience in
public passenger transit operations, including holding the positions of Director of Scheduling and
Director of Operations for CATA before he retired in 1997. He came back to work for CATA in
2007. In December 2010, his pay as a fixed route dispatcher was $16.17 per hour; it went up to
$16.66 per hour in 2011. 4 As with Olson, CATA valued DeVore' s experience. 5
Plaintiff argues that even though defendant contends experience justifies the pay

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Defs. Mot. Summ. J., Ex. II (Adcock Aff.) at~ 4.

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/d., Ex. 22 (DeVore Personnel Record).

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/d., Ex. II (Adcock Aff.)

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discrepancy between Parks and her male counterparts, CAT A has not shown "a gender- neutral
application of this factor." 6 Citing Robinson v. Sears, Roebuck & Co., 111 F .Supp.2d 11 01 , 1112
(E.D. Ark. 2000), Parks argue that it appears that CAT A gave white males more credit for
experience than black females or females in general. In Robinson, the court found that subjective
employment procedures may be evidence of pretext. Robinson, a class action case, involved
hundreds of employees where the employer implemented a store-wide increase in starting pay
which resulted, at least for some period of time, in some employees not in the protected class with
less experience being paid more than employees in the protected class with more experience.
Here, both of Parks ' s comparators, Olson and DeVore, had more experience than Parks. She and
Milks, who were both hired in 2011, had no prior public passenger transit industry experience and
were paid the same rate per hour when they started. Myers, a white female, hired in 2010,
received the same $13.50 per hour to start as Parks. Mixon, a black female with more experience
than Parks, received a pay increase to $15.68 per hour in November 2011.
The Court finds defendant has established by a preponderance of the evidence that the pay
differential between Parks and Olson and DeYore was based on experience. Parks presents no
evidence which would lead a reasonable jury to find otherwise. Because defendant has met its
burden of proving that experience, not unlawful discrimination, was the reason for the difference
in pay, the motion for summary judgment is granted.

Conclusion
IT IS THEREFORE ORDERED that defendant's motion for summary judgment [ECF No.

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Pl's. Resp. to Defs. Mot. Summ. J. [ECF No. 30] at 14.
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24] is hereby granted. Plaintiff's complaints are dismi ssed.
DATED thi s

}..a,tday of Ap ril , 20 14.

'-- ~)lJt~)~eoM
UNITED STATES DISTRICT JUDGE

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