Slattery et al

Filing 92

MEMORANDUM AND ORDER denying 55 Plaintiffs' Motion for Summary Judgment; denying 60 Defendant's Motion for Summary Judgment. Ordered by Judge Joseph F. Bataillon. (SMS)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ROSEANN SLATTERY, JOSEPHINE
ESTRADA and ELIZABETH THIELE,
Plaintiffs,
v.
DOUGLAS COUNTY, NEBRASKA,
Defendant.

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8:10CV319

MEMORANDUM AND ORDER

This matter is before the court on the parties’ cross-motions for summary judgment,
Filing Nos. 55 and 60. This is an action for age and gender discrimination in employment
under 42 U.S.C. § 2000e (“Title VII”) and 29 U.S.C. § 621 et seq. (“ADEA”), and for
violations of the Federal and Nebraska Equal Pay Acts, 29 U.S.C. § 206 et seq. (“EPA”),
and Neb. Rev. Stat. § 48-1219 (“NEPA”). The plaintiffs are female registered nurses over
the age of forty employed by defendant Douglas County, Nebraska (“the County”). They
assert that they are not paid as much as their male counterparts and have been subjected
to disparate treatment and disparate impact by reason of their age and gender. Plaintiffs
seek back pay and restoration of benefits from the County as a result of unlawful
discrimination.
I. FACTS
The following uncontroverted facts are gleaned from the statements of fact in the
parties’ respective briefs.

See Filing No. 56, Plaintiffs’ Brief at 1-7; Filing No. 61,

Defendant’s Brief at 1-5; Filing No. 65, Defendant’s Brief in Opposition at 1-3; Filing No.
67, Plaintiffs’ Brief in Opposition at 4-7; Filing No. 76, Defendant’s Reply Brief at 3.
Defendant Douglas County is a political subdivision of the State of Nebraska and is an

employer within the meaning of Title VII, the Equal Pay Act, the ADEA and NEPA. The
plaintiffs are females and are “employees” of the defendant within the meaning of the
statutes at issue. The plaintiffs are Registered Nurses who were employed by Defendant
Douglas County in the Health Department. During the relevant time period, the plaintiffs
were all members of the Health Department Employees Association (“HDEA”), which is
plaintiffs’ exclusive bargaining agent for purposes of wages and benefits.
Plaintiff Roseann Slattery was hired as a part-time Community Health Educator in
December 1989, and a full-time Community Health Educator after approximately six
months. After approximately three years, Slattery became the Epidemiologist and then
was a Nurse Epidemiologist. She was employed by the County as a Nurse Epidemiologist,
until she retired on July 27, 2009.
In January 2000, Josephine Estrada was hired by the County as the STD
Coordinator. After a few months, Estrada became the Child Care consultant. She was
then employed for a few months as a Public Health Nurse, at which time she became a
Nurse Epidemiologist. Estrada was a Nurse Epidemiologist until she retired on April 1,
2011.
Plaintiff Elizabeth Thiele was hired as a nurse at the County’s long-term care facility
at 42nd and Woolworth in April 1993. On December 26, 2000, Thiele was employed by
the County as a Clinic Coordinator in the Health Department, until she retired on October
31, 2010.
For collective bargaining purposes, the Nurse Epidemiologist position is in the Public
Health Nurse IV category. Prior to the 2004-06 collective bargaining agreement, the Nurse
Epidemiologist’s position was included in the Program Specialist IV category. Two-thirds
of the Nurse Epidemiologist job is performed out of the office seeing patients, and one-third

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of the job is performed in the office. At the request of nurses, the pay line for Public Health
Nurse IV was created. The job description did not change, and it was on the same pay line
as Program Specialist IV category. For the 2004-06 collective bargaining agreement, the
parties agreed that the employees in the Program Specialist IV category would be paid the
same as those in the Public Health Nurse IV category.
Douglas County and HDEA approved a collective bargaining agreement on April 26,
2005, covering July 1, 2004, through December 31, 2006. In Article 26 of this Agreement,
the jobs of Nurse Epidemiologist and Clinic Coordinator were included with the job of
Assistant Supervisor, Access Medicaid in the classification of Public Health Nurse IV. In
the same Article of that Agreement, the job of Epidemiologist I was included with five other
jobs in the classification of Program Specialist III.

There is a Douglas County job

description for Epidemiologist I. It is a job performed primarily in the office. Douglas
County and the HDEA approved a Collective Bargaining Agreement on March 24, 2009,
to cover January 1, 2007, through December 31, 2009.
In Article 28 of this Agreement, covering Wages, the Clinic Coordinator and Nurse
Epidemiologist jobs remain in the Public Health Nurse IV classification, but Assistant
Supervisor, Access Medicaid was removed because the job no longer existed. In the same
Article of the 2009 Agreement, the job of Epidemiologist I remained in the Program
Specialist III classification with the same five jobs as in the 2005 Agreement. In 2009, two
men younger than the plaintiffs were working as an Epidemiologist I for the Douglas
County Health Department.
In 2009, plaintiff Slattery was the vice president of the HDEA. In 2008 and 2009,
plaintiff Estrada was chair of the HDEA Negotiating Committee for the purposes of
negotiating the collective bargaining agreement with Douglas County. Douglas County
pays non-supervisory employees of the Health Department according to the terms of the
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Agreement with the HDEA which is negotiated periodically. The pay table for each
classification of jobs is established by negotiation between the County and the HDEA, or
in the event of no agreement, by the Commission of Industrial Relations of the State of
Nebraska.
Douglas County hired Britteny Ferrin, a wage and benefit consultant, to provide a
survey of wage and benefit data from comparable county governments that had jobs
similar to those in the HDEA bargaining unit. The HDEA hired Dr. Robert Otteman to
provide the same survey. Dr. Otteman and Ms. Ferrin conferred throughout 2008 and
2009 in order to agree to an array of pay rates for comparable jobs, and they prepared a
comparison report on January 8, 2009, which displayed the comparator county, the
particular job title, and for those counties which had a matching job, the difference between
the County’s pay rate and that of the comparator county.

The HDEA Negotiating

Committee met and considered a counterproposal from the County and voted 3-2 to
present the wage proposal to the HDEA membership which, after contentious discussion,
voted in the majority to accept the final proposal. The County voted to accept the
negotiated Collective Bargaining Agreement on March 24, 2009.
The employees who are employed in the Public Health Nurse IV category are all
females. The Nurse Epidemiologist position is in the Public Health Nurse IV category and
the Epidemiologist I position is in the Program Specialist III category. The Epidemiologist
II position is in the Program Specialist IV category. The employees who are employed in
the Public Health Nurse IV category are all females. The employees who are employed
in the Epidemiologist I position were all men. There are 15 total employees in the Program
Specialist III category, only three of which are women. All of the plaintiffs are over the age
of fifty-nine. The employees in the Epidemiologist I position were 40 or under at the time
they were hired.
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Plaintiffs move for summary judgment on their disparate impact claims under Title
VII and the Equal Pay Act, arguing that undisputed evidence establishes that defendant’s
pay practices had a disparate impact upon them and shows a causal connection between
their gender and the disparate pay. Further, they argue that the defendant cannot
demonstrate a business necessity defense.
The defendant moves for summary judgment on all of the plaintiffs’ claims.1 It
argues that undisputed evidence shows that the plaintiffs cannot prove that their jobs
(Nurse Epidemiologist and Clinic Coordinator) were substantially similar enough to the job
of Epidemiologist I. It acknowledges that there are some questions of fact concerning the
jobs of Nurse Epidemiologist and Epidemiologist I, but they are immaterial and
inconsequential. The defendant agues that the plaintiffs cannot prevail on the Equal Pay
Act claims or the gender and age discrimination claims as a result of that failure of proof.
The defendant further agues that its rationale for the wage package that was agreed to by
the County and the Union that represents the plaintiffs is a defense to all eight claims.
Additionally, the defendant contends that its “offer to move the money around among the
various jobs covered by the contract” legally negates the plaintiffs’ claim that there was
another way to present a wage package without violating laws, since the offer to rearrange
the pay raises was not accepted by the Union.
II. LAW
On a motion for summary judgment, the question before the court is whether the
record, when viewed in the light most favorable to the nonmoving party, shows that there

1
The plaintiffs’ claim s are: violation of the Equal Pay Act - disparate treatm ent (Count I), violation of
the Equal Pay Act - disparate im pact (Count II), violation of Title VII - disparate treatm ent (Count III), violation
of Title VII - disparate im pact (Count IV); violation of the Age Discrim ination in Em ploym ent Act - disparate
treatm ent (Count V), violation of the Age Discrim ination in Em ploym ent Act - disparate im pact (Count VI),
violation of the Nebraska Equal Pay Act - disparate treatm ent (Count VII) and violation of the Nebraska Equal
Pay Act - disparate im pact.

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is no genuine issue as to any material fact and that the moving party is entitled to judgment
as a matter of law. Fed. R. Civ. P. 56(c); Woods v. DaimlerChrysler Corp., 409 F.3d 984,
990 (8th Cir.2005). “Where unresolved issues are primarily legal rather than factual,
summary judgment is particularly appropriate.” Mansker v. TMG Life Ins. Co., 54 F.3d
1322, 1326 (8th Cir. 1995). The burden of establishing the nonexistence of any genuine
issue of material fact is on the moving party. Fed. R. Civ. P. 56(c); Adickes v. S.H. Kress
& Co., 398 U.S. 144, 157 (1970). “The movant ‘bears the initial responsibility of informing
the district court of the basis for its motion, and must identify ‘those portions of [the record]
. . . which it believes demonstrate the absence of a genuine issue of material fact.’”
Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. June 1, 2011) (en banc)
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). If the movant does so, “the
nonmovant must respond by submitting evidentiary materials that set out ‘specific facts
showing that there is a genuine issue for trial.’” Id. (quoting Celotex, 477 U.S. at 324). On
a motion for summary judgment, the “‘facts must be viewed in the light most favorable to
the nonmoving party only if there is a genuine dispute as to those facts.’” Id. (quoting Ricci
v. DeStefano, 557 U.S. 557, —, 129 S. Ct. 2658, 2677 (2009)). Credibility determinations,
the weighing of the evidence, and the drawing of legitimate inferences from the facts are
jury functions, not those of a judge. Id. The nonmoving party “‘must do more than simply
show that there is some metaphysical doubt as to the material facts,’ and must come
forward with ‘specific facts showing that there is a genuine issue for trial.’” Id. (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986)). Where
the record taken as a whole could not lead a rational trier of fact to find for the nonmoving
party, there is no genuine issue for trial. Id.

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There is no “discrimination case exception” to the application of summary judgment,
which is a useful pretrial tool to determine whether any case, including one alleging
discrimination, merits a trial. Torgerson, 643 F.3d at 1043 (quoting Fercello v. County of
Ramsey, 612 F.3d 1069, 1077 (8th Cir. 2010)). Nevertheless, “[a]t the summary judgment
stage, the court should not weigh the evidence, make credibility determinations, or attempt
to determine the truth of the matter.” Anderson v. Liberty Lobby Inc., 477 U.S. 242, 249
(1986). The court’s function is to determine whether a dispute about a material fact is
genuine, that is, whether a reasonable jury could return a verdict for the nonmoving party
based on the evidence. Id. at 248. To be material, a fact “must affect the outcome of the
lawsuit under governing law.” Id. “The evidence of the non-movant is to be believed, and
all justifiable inferences are to be drawn in [the nonmoving party’s favor].” Id. at 255. “If
reasonable minds could differ as to the import of the evidence,” summary judgment is
inappropriate. Id. at 250.
Since the plaintiffs’ allegations relate solely to unequal pay for equal work, their Title
VII claim is governed by the standards of the Equal Pay Act (EPA), 29 U.S.C. § 206(d).
Drum v. Leeson Elec. Corp., 565 F.3d 1071, 1072 (8th Cir. 2009). In order to establish a
prima facie case under the EPA, an employee must prove an employer paid different
wages to men and women performing equal work. Id. The burden of proof then shifts to
the employer to prove a statutory affirmative defense. Id. Those defenses are: (1) a
seniority system; (2) a merit system; (3) a system that measures earnings by quantity or
quality of production; or (4) a differential based on any other factor other than sex. Id.; 29
U.S.C. § 206(d)(1). Under the Equal Pay Act, “‘a defendant cannot escape liability merely
by articulating a legitimate non-discriminatory reason for the employment action.’” Id.

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(quoting Simpson v. Merchants & Planters Bank, 441 F.3d 572, 579 (8th Cir. 2006). The
defendant must prove that the pay differential was based on a factor other than sex. Id.
“Equal work” is defined as work “‘on jobs the performance of which requires equal
skill, effort, and responsibility and which are performed under similar working conditions.’”
Id. (quoting 29 U.S.C. § 206(d)(1)). “It should be kept in mind that ‘equal’ does not mean
‘identical.’ Insubstantial or minor differences in the degree or amount of skill, or effort, or
responsibility required for the performance of jobs will not render the equal pay standard
inapplicable.” 29 C.F.R. § 1620.14(a). The correct focus of an Equal Pay analysis is on
the actual requirements and performance of the jobs in question. Younts v. Fremont Cnty,
Iowa, 370 F.3d 748, 753 (8th Cir. 2004); see also Beck-Wilson v. Principi, 441 F.3d 353,
362 (6th Cir. 2006) (noting the focus is on actual job requirements and duties, rather than
job classifications or titles). Whether two positions are substantially equal under the EPA
is typically a question of fact for the jury. Id. at 363.
In order to prove a prima face case for age discrimination, plaintiffs must
demonstrate that 1) they were members of the protected class; 2) they were performing
their jobs at a level that met defendant’s legitimate expectations; 3) they were subject to
an adverse employment action; and 4) there is some additional evidence that age was a
factor in the employer’s decision. Rahlf v. Mo-Tech Corp., 642 F.3d 633, 637 (8th Cir.
2011). Pretext may be shown with evidence that the employer’s reason for the adverse
employment decision has changed substantially over time. Jones v. Nat’l Am. Univ., 608
F.3d 1039, 1046 (8th Cir. 2010).
In a disparate impact age discrimination claim, the ADEA’s general prohibitions
against age discrimination are subject to a separate provision, creating exemptions for
employer practices otherwise prohibited under the statute “where age is a bona fide
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occupational qualification reasonably necessary to the normal operation of the particular
business, or where the differentiation is based on reasonable factors other than age. . . .”
29 U.S.C. § 623(f)(1). The reasonable factors other than age (“RFOA”) exemption is an
affirmative defense for which the burden of persuasion falls on the employer. Meacham
v. Knolls Atomic Power Lab., 554 U.S. 84, 93 (2008). The focus of the defense is that the
factor relied upon was a “reasonable” one for the employer to be using. Id. at 96.
III. DISCUSSION
The court has reviewed the evidence in support of and opposition to the motions
and finds there are genuine issues of material fact that preclude summary judgment in this
case.

The parties have submitted numerous conflicting affidavits and contradictory

deposition testimony. See, e.g., Filing Nos. 57, 58, 59, 62, 66, 68, 75, and 77, Indices of
Evid.
The court finds there are genuine issues of material fact with respect to the critical
question of whether the plaintiffs’ positions were equal to the jobs of the substantially
younger men who were paid more than the plaintiffs were paid. Further, there is an issue
of fact with respect to whether the defendant’s proffered legitimate, non-discriminatory
reason for the pay disparity—the wage comparability studies—are a pretext for age and/or
gender discrimination. Evidence suggests that the defendant did not rely on its wage study
in determining appropriate raises. There are discrepancies in testimony with respect to the
rationale for giving young men a 17% raise, while giving women over fifty-nine a 6% raise.
There is also evidence that the defendant did not uniformly apply the wage-study
formula. Resolution of those issues will involve assessments of credibility. The evidence
shows the defendant has provided varying reasons for the pay disparity at different times.
There are factual issues with respect to the justification for the pay differential. The
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evidence also shows that job descriptions were modified subsequent to the filing of this
action. Further, defendant’s reliance on the wage studies to satisfy its burden that the pay
disparities are based on a “factor other than age” is similarly unavailing. The defendant
has not sustained its burden with respect to the defense. There remain genuine issues of
fact with respect to the reasonableness of the defendant’s reliance on the studies.
Accordingly,
IT IS ORDERED:
1. Defendant’s motion for summary judgment is (Filing No. 60) is denied.
2. Plaintiffs’ motion for summary judgment (Filing No. 55) is denied.
DATED this 15th day of March, 2012.
BY THE COURT:

s/ Joseph F. Bataillon
United States District Judge

*This opinion m ay contain hyperlinks to other documents or W eb sites. The U.S. District Court for
the District of Nebraska does not endorse, recom m end, approve, or guarantee any third parties or the services
or products they provide on their W eb sites. Likewise, the court has no agreem ents with any of these third
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the opinion of the court.
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