United States of America v. New Mexico State University et al

Filing 259

MEMORANDUM OPINION AND ORDER by Senior District Judge James A. Parker denying 141 MOTION for Summary Judgment and Memorandum of Law In Support of Motion for Summary Judgment. (bap)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO

UNITED STATES OF AMERICA,
Plaintiff,

v.

No. 16-CV-911-JAP-LF

NEW MEXICO STATE UNIVERSITY
and NEW MEXICO STATE
UNIVERSITY BOARD OF REGENTS,
Defendants.
MEMORANDUM OPINION AND ORDER
The United States of America (Plaintiff or the United States) filed suit against Defendants
New Mexico State University and New Mexico State University Board of Regents (collectively,
Defendants or NMSU) to enforce the provisions of Title VII of the Civil Rights Act, 42 U.S.C.
§ 2000e, et seq.1 The United States alleges that Defendants engaged in pay discrimination against
former NMSU employee Meaghan Harkins (Ms. Harkins) in violation of Title VII. Defendants
filed a Motion for summary judgment that has been thoroughly briefed.2 The Court will deny the
Motion because material facts remain in dispute.
I.

BACKGROUND

NMSU is a public university with an athletics department that includes a track and field
program. From 2007 through 2011, this program consisted of men’s and women’s cross country
1

See COMPLAINT (Doc. No. 1).
See NEW MEXICO STATE UNIVERSITY’S MOTION AND MEMORANDUM OF LAW IN SUPPORT OF
ITS MOTION FOR SUMMARY JUDGMENT (Doc. No. 141) (Motion); UNITED STATES’ RESPONSE IN
OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (Doc. No. 187) (Response); NEW
MEXICO STATE UNIVERSITY’S REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT
(Doc. No. 225) (Reply); UNITED STATES OF AMERICA’S SUR-REPLY IN OPPOSITION TO DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT (Doc. No. 250); DEFENDANT’S RESPONSE TO PLAINTIFF’S SURREPLY RELATING TO ITS MOTION FOR SUMMARY JUDGMENT (Doc. No. 258).
2

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teams and a women’s track and field team. The cross country teams competed during the fall
season, while the women’s track and field team competed during the winter indoor season and
the spring outdoor season. Generally, the female cross country athletes were also members of the
women’s track and field team, and they would compete during all three seasons. NMSU did not
sponsor a men’s track and field team, but the male cross country athletes were allowed to
practice with the women’s track and field team during the winter and spring seasons. The men
could participate in up to five track and field meets during the spring outdoor season. They did
not compete during the winter indoor season.
Ms. Harkins began working at NMSU in January of 2008 as a volunteer coach for the
track and field program. She held a USA Track and Field (USATF) Level I Certification and had
previously coached cross country and track at Cohoes High School, at the College of Saint Rose,
and at Brown University, although the parties dispute the extent of her experience in these
positions.3 NMSU hired Ms. Harkins as a part-time track and field specialist in March 2008, and
then moved her into a full-time position as an assistant coach in July 2009. By the time she
became an assistant coach, Ms. Harkins had gained 16 more months of collegiate coaching
experience at NMSU.4 Ms. Harkins’ responsibilities remained the same throughout her paid

3

The United States asserts that Ms. Harkins had approximately five years’ experience when she first came to
NMSU—three years at Cohoes High School, 6 months at the College of Saint Rose, and 17 months at Brown
University. See Resp. Statement of Disputed Facts (SDF) 9, Ex. 5, Ms. Harkins Depo. 17:11–18:15, 22:4–17, 30:2–
14; Additional Material Facts (AMF) G, Ex. 5 35:16–36:6. Defendants do not dispute the dates on Ms. Harkins’
resume, but they attempt to reduce her experience because she held other positions concurrent with some of her
coaching. They refer to Ms. Harkins as a “volunteer coach” at Cohoes because she was also a teacher, and they
credit her with only one and a half years of experience despite their admission that she was paid to coach during her
entire three year employment at Cohoes. Similarly, they do not count any of her experience at the College of Saint
Rose because she was both an NCAA compliance officer and an assistant coach. See Mot. Undisputed Material
Facts (UMF) 11; Reply UMF 11–12. While Defendants argue for these calculations in their briefing, they present no
evidence as to how NMSU actually evaluated Ms. Harkins’ experience at the time she was hired.
4
Defendants omit the 16 months Ms. Harkins worked at NMSU before she became an assistant coach but give no
reason for this omission and present no evidence as to how Ms. Harkins’ experience was actually evaluated when
she became an assistant coach. See Reply UMF 11. The United States argues that Ms. Harkins had over six years’
coaching experience at that point, including 39 months of paid collegiate cross country and track and field coaching
at the College of Saint Rose, Brown University, and NMSU. See Resp. SDF 9, Ex. 5 43:13–44:5, 49:1–18.

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employment at NMSU, regardless of her change in title. She coached the men’s and women’s
distance and middle distance runners, and she assisted with recruitment, team travel,
coordination of practices and competitions, and various administrative tasks such as ordering
equipment, serving as an academic liaison, and providing athletes with nutritional counseling.
Her starting annual salary as an assistant coach was $23,998.43, which was the amount that had
been budgeted for her position.
In addition to Ms. Harkins, the NMSU track and field program employed a head coach,
Orin Richburg (Mr. Richburg), and two male assistant coaches, Paul Harkins (Mr. Harkins) and
Anthony Scott Fister (Mr. Fister). Ms. Harkins, Mr. Harkins, and Mr. Fister were all full-time
coaches hired under the same official job title and description, but their actual coaching duties
were not identical. Ms. Harkins and Mr. Harkins both coached primarily distance and middle
distance runners and divided up recruitment and administrative tasks. While Mr. Fister was
authorized to coach both the track and field team and the cross country teams, he focused on
field events and in fact coached only certain female track and field athletes. Mr. Fister did not
coach during the cross country season, he recruited only for specific field events, and he had
limited administrative duties. However, the parties dispute the scope of Ms. Harkins’ duties as
compared to those of Mr. Harkins and Mr. Fister. 5

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Defendants assert that NCAA rules limited Ms. Harkins’ position to working only with cross country, not women’s
track and field, and that Ms. Harkins was aware of these limitations. See Mot. UMF 8–9, Ex. A, Cartwright Depo.
60:7–62:19. Plaintiff argues that Ms. Harkins was expected to and did coach and recruit for both cross country and
track and field. It maintains that NCAA did not limit Ms. Harkins’ recruiting duties and that NMSU was aware that
Ms. Harkins was coaching track and field and it approved of her actions. See Resp. SDF 6–7, Ex. 1, Cartwright
Depo. 103:18–105:2; Ex. 5 86:2–87:2, 120:5–14; Ex. 6, Mr. Harkins Depo. 36:13–38:3; AMF H–I, Ex. 7, Sun News
Article; Ex. 5 43:13–44:5, 48:6–49:21; Ex. 6 31:20–32:11; AMF N–O, Ex. 2, Richburg Depo. 232:2–24, 238:4–16,
240:15–19, 241:12–242:4, 247:17–248:10; Ex. 5 54:25–56:25, 57:6–61:5, 65:11–68:1; Ex. 6 25:20–26:5; Ex. 19,
2011 Performance Review; AMF X–GG, Ex. 2 43:21–44:4, 45:5–15, 58:9–59:4, 221:14–223:15, 291:4–7, 302:15–
303:17, 313:6–314:6, 316:9–317:15; Ex. 3, Boston Depo. 62:17–63:16, 208:3–18; Ex. 11, 2009 Performance
Review; Ex. 19, Ex. 31, Cartwright Depo. 20:16–19, 36:10–37:14; Ex. 32, 2001 Job Description; Ex. 33, 2009 Job
Description; Ex. 34–37, Media Guides; Ex. 38, Ms. Harkins’ Biography; Ex. 39, Hall Depo. 32:8–33:8; Ex. 40,
2010 Performance Review. Plaintiff also contends that Mr. Fister had fewer responsibilities than Ms. Harkins. See
Resp. SDF 5–7; AMF H–I, L–P, R–S, W–GG; Ex. 1 103:18–104:19; Ex. 5 86:2–87:2, 120:5–14; Ex. 6 36:13–38:3.

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Defendants paid Mr. Harkins and Mr. Fister more than they paid Ms. Harkins. NMSU
hired Mr. Harkins as an assistant coach in August 2007 for an annual salary of $29,500.00,
although only $23,660.00 had been budgeted for his position. At the time he was hired, Mr.
Harkins had a Master’s Degree in Health Promotion and Wellness Management, USATF Level I
Certification, three years’ experience coaching college cross country, and just over two years’
experience coaching high school cross country, only one year of which was paid. In July 2008
Mr. Harkins’ annual salary was raised to $30,090.00, where it remained until he resigned in
September 2011.
NMSU also hired Mr. Fister as an assistant coach in August 2007. At that time, Mr. Fister
had a Bachelor’s Degree in Physical Education-Exercise Science and Sports Medicine, and he
held USATF Level I and Level II Certifications in Throws, Jumps, Sprints/Hurdles, and
Multievents. He had approximately three and a half years of post-degree experience as a paid
coach at the university level, including two prior years working at NMSU as an assistant coach.
Mr. Fister had also previously coached track and field at several high schools and universities, in
addition to private coaching and work with a youth track and field club that he owned. However,
much of this experience was unpaid and/or took place before Mr. Fister earned his Bachelor’s
Degree, and his private coaching was intermittent and often concurrent with his high school
coaching. Additionally, none of Mr. Fister’s high school coaching or private coaching, other than
the track club, appeared on the resume Mr. Fister submitted to NMSU when he applied for his
position. The amount budgeted for Mr. Fister’s position was $26,712.89, but he was hired at an
annual salary of $28,000.00. In July 2008 Mr. Fister’s annual salary was raised to $28,560.00,
where it remained throughout Ms. Harkins’ employment. The parties dispute the amount of Mr.

Defendants do not dispute the limited nature of Mr. Fister’s actual duties, but they argue that this is immaterial since
his position was authorized to coach both sports. See Reply UMF 8.

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Fister’s experience and the degree to which NMSU was aware of any experience Mr. Fister did
not list on his resume at the time that it hired him and set his salary.6
From 2007 through 2011, the Athletic Director, the Sport Administrator, and the Head
Coach were officially responsible for setting the assistant coaches’ salaries at NMSU. Salaries
were supposed to be based on consideration of the person’s duties, experience, and education, in
addition to market data and the budgeted salary for the position. Once a proposed salary had
been determined by the Athletics Department, NMSU’s Human Resource Services (HRS) was to
review the salary proposal and conduct an equity review comparing it to the salaries for other
individuals in the same or similar positions. HRS would then require the department to justify
any disparity by pointing to differences in the position or the qualifications of the applicant.
NMSU considered prior coaching experience at the university level to be directly related to an
assistant coaching position, and therefore gave it more weight than high school coaching
experience. When comparing salaries, NMSU did not generally take into account any experience
that had been gained prior to earning the degree that was required for the position, nor did it
consider unpaid volunteer experience.
However, the specific process by which the salaries for Mr. Harkins, Mr. Fister, and Ms.
Harkins were actually determined is unclear. No evidence was presented as to how the salaries
6

Defendants state that Mr. Fister had 5 years each of high school and college coaching experience and more than ten
years of private coaching, including operating a track and field club for two years. UMF 12; Ex. E 21:1–4, 50:2–16,
65:1–17, Depo. Ex. 4, Fister Resume. The United States argues that Mr. Fister had approximately three and a half
years of experience as a paid college-level coach, approximately two years of experience coaching high school, all
but one season of which was unpaid and prior to earning his Bachelor’s Degree, and approximately 6 months of
experience operating a track and field club. Additionally, it asserts that NMSU was not aware of Mr. Fister’s high
school or private coaching experience other than his track and field club and NMSU did not consider his unpaid or
pre-graduation experience when setting his salary. See AMF T, NN, PP–QQ; SDF 10; Ex. 2 133:15–135:3, 140:24–
143:17; Ex. 26, Fister Application; Ex. 27, Fister Depo. 20:6–20, 32:9–15, 35:3–36:17, 36:25–37:9, 37:14–38:6,
39:21–40:7, 40:20–22, 49:7–50:12, 56:14–57:21, 65:9–17, 65:21–67:1, 67:14–68:10, 69:3–71:1, 75:2–6, 94:1–
96:24; Ex. 32–33; Ex. 41, Agnew Depo. 55:11–13, 61:1–4. In reply, NMSU maintains that Mr. Fister had six and a
half years of experience as a college coach, but it mischaracterizes the United States’ assertion of facts as supporting
this statement and it does not cite other evidence. See Reply UMF 12. NMSU also appears to miscalculate the
amount of Mr. Fister’s private coaching experience. See id. (referring to two years of May–July coaching as 12
months). And it maintains without support that Mr. Fister had over ten years of private coaching experience.

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for Mr. Harkins or Mr. Fister were set. The parties dispute the facts concerning how Ms.
Harkins’ salary was set.7 Most of the individuals officially responsible for setting Ms. Harkins’
salary deny any involvement or have no recollection of the process. Defendants admit that HRS
did not conduct an equity review before NMSU hired Ms. Harkins as a track and field specialist
in 2008 and that they have no evidence that HRS conducted an equity review before Ms. Harkins
became an assistant coach in July 2009.8 Ms. Harkins complained about the pay discrepancy in
March 2011, and NMSU compared her salary to market data. Based on this survey NMSU
concluded Ms. Harkins’ salary was $7,650.00 under market. In July 2011 Ms. Harkins received a
raise to $26,079.00 per year, a figure that was still $5,570.00 under market and was less than the
starting salaries of both male assistant coaches. Ms. Harkins then tendered her letter of
resignation in September 2011. She resigned in December 2011.
On May 10, 2012, Ms. Harkins filed a charge of discrimination against NMSU with the
Equal Employment Opportunity Commission (EEOC). The EEOC investigated the charge and
found reasonable cause to believe that Defendants had discriminated against Ms. Harkins with

7

The United States contends that Athletic Director Dr. McKinley Boston (Dr. Boston), Sports Administrator James
Hall (Mr. Hall), Associate Athletic Director of Business and Finance Ermelinda Quintela (Ms. Quintela), and Mr.
Richburg all offer inconclusive or contradictory testimony as to whether and to what degree they were actually
involved in setting the salaries for Ms. Harkins or the other assistant coaches at NMSU and what the reasons were
for setting a particular salary. See AMF RR–DDD. Dr. Boston said that he must have been involved in deciding Ms.
Harkins’ salary, but he did not specifically recall doing so. Resp. Ex. 3, 156:19–23, 157:10–14. Dr. Boston stated
that Ms. Harkins’ salary was based on her inexperience, her limited duties, and budgetary constraints. Resp. Ex. 3,
117:15–17, 156:24–158:14, 161:2–10, 166:5–13. However, he was not sure of the alleged limitations on Ms.
Harkins’ position, and he focused primarily on Ms. Harkins’ alleged inexperience. He did not review her experience
personally and he did not remember anything specific about it, but he stated that Mr. Richburg had informed him
that Ms. Harkins was inexperienced and Ms. Quintela would have verified that. He testified that he could have
moved money to pay her more but he was “comfortable” with the offered salary because of salary surveys, which he
also testified did not contain any information about her position. Ex. 3, 114:21–115:9, 116:13–17, 150:25–151:6,
156:19–158:14, 162:6–17. Mr. Richburg denied any involvement in setting Ms. Harkins’ salary. Resp. Ex. 2, 197:9–
14. Ms. Quintela denied evaluating Ms. Harkins’ experience. Ex. 4, 23:19–24:6. The United States has presented
evidence that Ms. Harkins’ experience was comparable to that of the male assistant coaches. Defendants assert that
Ms. Harkins’ salary was set based on the budgeted amount, but they do not resolve the conflicting and inconclusive
evidence. See Reply UMF 10.
8
Defendants assert that no equity review is required if the proposed salary for the new coach is less than that of the
existing coaches. See Reply UMF 11, Ex. 3 51:17–52:12. The United States contends that no one at NMSU ever
properly evaluated Ms. Harkins’ qualifications when setting her salary. SDF 5, 8.

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respect to compensation because of her sex. After voluntary conciliation was unsuccessful, the
EEOC referred the matter to the United States Department of Justice. On August 11, 2016, the
United States filed a claim against Defendants on behalf of Ms. Harkins. The United States
requested that the Court enjoin Defendants from discriminating in violation of Title VII, award
backpay and all other appropriate monetary relief to Ms. Harkins, and order Defendants to
institute policies and training to ensure a nondiscriminatory workplace. Plaintiff’s claim is
brought under federal law, and accordingly the Court has jurisdiction over this matter under 28
U.S.C. § 1331. Defendants have asked the Court to enter summary judgment in their favor.
II.

LEGAL STANDARD

Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). When applying this standard, the Court “‘view[s] all evidence and any reasonable
inferences that might be drawn therefrom in the light most favorable to the non-moving party.’”
Riser v. QEP Energy, 776 F.3d 1191, 1195 (10th Cir. 2015) (quoting Croy v. Cobe Labs. Inc.,
345 F.3d 1199, 1201 (10th Cir. 2003). A “material” fact is one that “might affect the outcome of
the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “A
dispute over a material fact is ‘genuine’ if a rational jury could find in favor of the nonmoving
party on the evidence presented.” E.E.O.C. v. Horizon/CMS Healthcare Corp., 220 F.3d 1184,
1190 (10th Cir. 2000).
III.

DISCUSSION

Title VII prohibits pay discrimination based on gender. 42 U.S.C. § 2000e-2(a)(1). To
prove its Title VII claim, Plaintiff has the ultimate burden of proving that Defendants
intentionally discriminated against Ms. Harkins. See Riser, 776 F.3d at 1199. Plaintiff may

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“establish this by either direct evidence or circumstantial evidence that creates an inference of
intentional discrimination.” Id.
Where a plaintiff seeks to use circumstantial evidence to show
discriminatory intent, the burden-shifting framework of McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) applies. First
a plaintiff must establish a prima facie case of pay discrimination. If the plaintiff
succeeds, the burden shifts to the defendant to articulate a legitimate,
nondiscriminatory reason for its actions. If the defendant does so, the burden
shifts back to the plaintiff to show that his or her protected characteristic was a
determinative factor in the defendant’s employment decision or that the
defendant’s explanation was merely pretextual.
Id. at 1199–1200 (internal citations and quotation marks omitted). To defeat the motion for
summary judgment, Plaintiff must “make a sufficient showing on [each] essential element of [its
claim] with respect to which [it] has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986).
To establish its prima facie case, Plaintiff must prove that Ms. Harkins “‘occupie[d] a job
similar to that of higher paid males.’” Riser, 776 F.3d at 1200 (quoting Sprague v. Thorn Ams.,
Inc., 129 F.3d 1355, 1363 (10th Cir. 1997)). In making this determination, the Court compares
the duties and responsibilities of the positions. See id. at 1196, 1200. The similarity requirement
under Title VII is less stringent than under the Equal Pay Act (EPA), which requires that the
work be “‘substantially equal’” in that it entails “‘equal skill, effort, and responsibility.’” Id.
(quoting 29 U.S.C. § 206(d)(1)). “[J]obs that are merely alike or comparable are not
‘substantially equal’ for purposes of the EPA.” Id. at 1196. But “even when jobs are not
sufficiently similar to constitute ‘equal work’ under the EPA, a Title VII claim for wage
discrimination is not precluded[.]” Sprague, 129 F.3d at 1362 (quoting Loyd v. Phillips Brothers,
Inc., 25 F.3d 518, 525 (7th Cir. 1994)). See also County of Washington v. Gunther, 452 U.S. 161,

8

168–71, 178–81 (1981) (Plaintiff need not prove equal work to proceed on a Title VII claim for
discriminatory undercompensation).
Defendants contend first that Plaintiff’s claim must fail because Ms. Harkins’ limited
duties differentiate her job from those of Mr. Harkins and Mr. Fister. Defendants rely primarily
on Mr. Cartwright’s deposition testimony that due to NCAA rules Ms. Harkins was hired as an
assistant coach to the cross country teams only, while Mr. Fister and Mr. Harkins were able to
coach the track and field team in addition to cross country. However, the United States argues
that Ms. Harkins’ duties and responsibilities were similar to, and at least as demanding as, those
of Mr. Harkins and Mr. Fister. The United States has presented evidence that the alleged NCAA
limitations were not enforced in practice and that NMSU expected Ms. Harkins to coach and
recruit for both cross country and track and field, was aware that she was doing so, and approved
of her actions. Ms. Harkins testified that she was told her position would be “technically a men’s
cross country title” but that her “actual job description could vary from that.” Resp. Ex. 5, 86:2–
10. Defendants attempt to mischaracterize Ms. Harkins’ testimony in asserting that she admitted
knowledge of the restrictions, see Reply UMF 9, when in fact she stated that she understands the
NCAA limitation “now, in retrospect.” Resp. SDF 7, Ex. 5, 86:19–87:2. Ms. Harkins and Mr.
Harkins testified that supervisory personnel were aware that Ms. Harkins was coaching both
teams and approved of her doing so. See Resp. SDF 7, Ex. 5 43:13–44:5, 48:6–49:21, Ex. 6,
31:20–32:11, 36:13–38:3. Media and personnel records support this. See Resp. Ex. 7, 11, 19, 32–
38, 40.
Plaintiff presented evidence that Ms. Harkins coached and recruited during all three
seasons, while Mr. Fister did not actually coach the cross country teams, although he may have
been authorized to do so, and he did not coach at all during the cross country season. Further,

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Mr. Fister had fewer administrative responsibilities than Ms. Harkins. See Resp. Ex. 1 103:18–
104:19; Ex. 5 86:2–87:2, 120:5–14; Ex. 6 36:13–38:3. Defendants do not dispute the limited
nature of Mr. Fister’s actual duties. They argue that his responsibilities are immaterial, but the
similarity of positions is determined by the work performed, not by the job description or title.
See Riser, 776 F.3d at 1196, 1200.
Plaintiff’s burden at the prima facie stage is “‘not onerous[.]’” Orr v. City Of
Albuquerque, 417 F.3d 1144, 1149, 1152 (10th Cir. 2005) (quoting Texas Dep’t of Cmty. Affairs
v. Burdine, 450 U.S. 248, 253 (1981)). Viewing the evidence in the light most favorable to
Plaintiff, the Court finds that Plaintiff has made a sufficient showing that Ms. Harkins’ job duties
were similar to those of the higher-paid male assistant coaches.
Defendants suggest that Ms. Harkins had less experience than Mr. Harkins and Mr.
Fister, and that this factor should also be considered in determining whether their positions were
similar. The similarity of duties and responsibilities is not generally determined by the nature of
the employee, but Courts have sometimes considered background and experience in assessing
the similarity between positions. See, e.g., Block v. Kwal-Howells, Inc., 92 F. App’x 657, 660
(10th Cir. 2004). This may be logical when vast differences in experience suggest that one
position would have assumed a de facto supervisory role. However, in this case the required
qualifications for all three assistant coaches were the same, and Defendants do not allege so great
a difference in experience that a presumptive hierarchy would differentiate the jobs despite their
similar duties. Under these circumstances, the Court believes that a detailed inquiry into the
qualifications of Ms. Harkins as compared to Mr. Fister and Mr. Harkins is more appropriately
undertaken when considering Defendants’ asserted justifications for the disparity in salaries. The

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Court concludes that Plaintiff has adequately established a prima facie case of pay discrimination
under Title VII.
Defendants articulated three legitimate reasons for paying Ms. Harkins less than they
paid Mr. Harkins or Mr. Fister: (1) her job duties were limited, (2) she was less qualified, and (3)
NMSU was constrained by its budget. The burden therefore shifts back to Plaintiff to prove that
these explanations are pretextual. “Pretext can be shown by ‘such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons
for its action that a reasonable factfinder could rationally find them unworthy of credence and
hence infer that the employer did not act for the asserted non-discriminatory reasons.’” Riser,
776 F.3d at 1200 (quoting Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997)). The
United States contends that Defendants’ asserted reasons are implausible because Ms. Harkins’
actual duties were not more limited than those of the other assistant coaches, she was not less
qualified, and her salary was not set based on any perceived limitations in her position, lack of
education or experience, or budgetary constraint.
The United States disputes whether any limitations on Ms. Harkins’ coaching or
recruiting responsibilities under NCAA rules were ever communicated to Ms. Harkins or applied
to her assigned duties in practice. It presents evidence that Ms. Harkins was unaware of any
limits to her duties, that she coached and recruited for both the cross country teams and the track
and field team with the knowledge and approval of her supervisors, and that she actually had
greater responsibilities than Mr. Fister. The United States further disputes that Ms. Harkins was
less qualified than Mr. Fister or Mr. Harkins, and it presents evidence that her background at the
time she was hired as an assistant coach was comparable to the education and experience that the
male assistant coaches possessed on their dates of hire. Additionally, the United States argues

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that no alleged limitation on her duties or deficiency in her qualifications was actually used by
NMSU as the basis for her lower salary. It presents evidence of conflicting testimony as to who
was responsible for setting Ms. Harkins’ salary and what their reasons were for doing so. Finally,
the United States presents evidence that suggests Ms. Harkins’ salary was not limited by
Defendants’ budget, because both Mr. Harkins and Mr. Fister were hired at salaries above the
amount originally budgeted for their positions, and Dr. Boston testified that he could have
similarly funded a higher salary for Ms. Harkins. The Court finds that this evidence is sufficient
to create genuine issues of material fact such that a reasonable juror could conclude that
Defendants’ explanations are pretextual.
IT IS THEREFORE ORDERED that NEW MEXICO STATE UNIVERSITY’S
MOTION AND MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION FOR
SUMMARY JUDGMENT (Doc. No. 141) is DENIED.

SENIOR UNITED STATES DISTRICT JUDGE

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