Duncan v. Texas Health and Human Services Commission

Filing 25

ORDER GRANTING IN PART AND DENYING IN PART 18 Motion for Summary Judgment. Signed by Judge Sam Sparks. (dl)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

ZUPR

PM 1:50

17

KATHY DUNCAN and ELIDA TOVAR,
Plaintiffs,
CAUSE NO.:
AU-17-CA-00023-SS

-vs-

TEXAS HEALTH AND HUMAN
SERVICES COMMISSION,
Defendant.

1]

1 I) a

BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause,
and specifically, Defendant Texas Health and Human Services Commission (HHSC)'s Motion
for Summary Judgment [#18], Plaintiffs Kathy Duncan and Elida Tovar's Response
opposition, and HHSC's Reply

[#23]

[#22]

in

in support. Having reviewed the documents, the relevant

law, and the file as a whole, the Court now enters the following opinion and order.

Background
This is a wage discrimination case. Plaintiffs Kathy Duncan and Elida Tovar allege the
HHSC discriminated against them on the basis of sex when it offered Duncan and Tovar a lower
starting salary than that extended to a male colleague, Nicodemus Thiongo. Am. Compl. [#8] at
2-3.

Between 2014 and 2015, Duncan, Tovar, and Thiongo all applied for a Nurse IV position
as a Reconsideration Nurse within the Nursing Facility Utilization Review Unit (UR Unit) at the

HHSC Office of the Inspector General. Mot. Summ. J. [#18] at 6-8; Resp. Mot. Summ. J.
at

3-4.

[#22]

When a nursing facility's request for Medicaid reimbursement is denied by HHSC, the

nursing facility can request reconsideration of the denial. Resp. Mot. Summ. J.

[#22]

at

2-3.

The

1

I

UR Unit is responsible for reviewing the reconsideration request to determine whether
reimbursement should be granted. Id. Nurse IV salaries within the UR Unit range from a

minimum of $4,598.66 to a maximum of $7,349.00 per month. Mot. Summ. J. [#18-1] Ex. A at

5-7 (Salary Policy).
With this background in mind, the Court turns to the individual hiring experiences of
Duncan, Tovar, and Thiongo.
Duncan Application
In March 2014, Duncan applied for a position as a Reconsideration Nurse. Mot. Summ. J.
[#18-1] Ex. A at 1-3 (Carlson Deci.). Duncan received her Registered Nurse (RN) license in

2000 and has spent over 13 years in the nursing field. Resp. Mot. Summ. J. [#22-4] Ex. 4 at 3-12

(Duncan Job Application). She has previously been employed as a Director of Nurses in a longterm care facility, and at the time Duncan applied for a position in the UR Unit, she had been
employed by the Texas Board of Nursing for four and a half years as a Supervising Investigator.
Duncan Job Application. Duncan made $4,928 per month as a Supervising Investigator. Id. At

the time Duncan applied, there was only one open Nurse IV position within the UR Unit. Id.
After Duncan applied for a Reconsideration Nurse position in the UR Unit, she was
interviewed by Supervisor Linda Carlson. Carison decided to offer Duncan the position, and, in
line with her usual practice, Carlson began salary negotiations by offering Duncan the minimum

starting salary for the position$4,598.66 per month. Mot. Summ. J. [#18-3] Ex. C (Duncan
Dep.) at 8-9; Resp. Mot. Summ J. [#22-1] Ex.

1

(Carlson Dep.) at 15-16. In response, Duncan

asked if Carlson could match or exceed her current salary of $4,928 per month. Duncan Dep. at
9. Carlson replied that HHSC could match her current salary at the Board

of Nursing but could

not pay more than that amount. Carison Dep. at 9. Duncan accepted this counteroffer and

received a starting salary of $4,928 per month. Carison Deci. at 2.
Thiongo Application

Roughly a year later, in March 2015, Thiongo applied for a position as a Reconsideration
Nurse in the UR Unit. Id. at 2-3. At that time, there were multiple openings available in the UR
Unit.1

Id. Thiongo received his RN license in 2012. Mot. Summ. J. [#18-1] at 25-30. Prior to

applying for a position in the UR Unit, Thiongo served as an Assistant Director of Nursing at a
rehabilitation center, as a Clinical Director at a home healthcare organization, and as a Corporate
Director of Nursing for a nursing and rehabilitation center. Id.
Despite her general rule of initially offering applicants the minimum starting salary,
Carlson began salary negotiations by offering Thiongo a starting salary of $5,973.83 per

monthroughly $1,300 more per month than was offered to Duncan. Carison Deci. at

3; Mot.

Summ. J. [#18] at 7-8. Thiongo demurred, however, and, after some back-and-forth, eventually

accepted an offer of $6,200 per monthroughly $100 per month more than his private sector
salary. Resp. Mot. Summ. J. [#22-13] Ex. 13 (Thiongo Dep.) at

16-17; Carison Deci. at

3.

Carlson accepted this counteroffer, and Thiongo's employment began in June 2015. Carlson
Decl. at 2-3.

Tovar Application
In May 2015, Carison informed Tovar a Nurse IV position was available within the UR
Unit. Id. at 2.

Tovarwho at that time worked as Nurse IV within a different HHSC Unithad

previously asked Carlson whether it would be possible to transfer into the UR Unit. Id. Tovar's

The record does not indicate whether these were openings for Nurse IV candidates or for the UR Unit
generally. Carison Decl. at 2,
1

3

salary was then $4,458.50 per month. Id. Shortly after learning of the Nurse IV opening in the

UR Unit, Tovar interviewed for the position. Id.
After the interview, Tovar asked Carlson if she would receive a salary increase when she

transferred into the UR Unit, and Carlson told Tovar she could not receive a salary increase for
this sort of lateral transfer. Resp. Mot. Summ. J. [#22-11] Ex.

11

(Tovar Dep.) at 4-5. HHSC's

Salary Policy prohibits salary increases for lateral transfers within the same agency where the

employee's new job has the same class title and job code in the same salary group as their
current position. Salary Policy. Nevertheless, Tovar opted to accept the offer and received a
starting salary equal to her current pay as a Nurse IV Reviewer$4,458.50 per month. Carison
Dccl. at 2.

Procedural Posture
After learning their starting salaries were significantly lower than Thiongo's, Plaintiffs
filed suit against HHSC in state court alleging violations of the Equal Pay Act, 29 U.S.C.
§

206(d). Notice Removal [#1-4] Ex. 4 at 3-7 (Pet.). HHSC removed the action to this Court on

January 17, 2017 and now files a motion for summary judgment on all claims. Mot. Summ. J.
[#18]. This pending motion is ripe for review.

Analysis
I.

Legal Standard
Summary judgment shall be rendered when the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is no genuine dispute as to any material fact
and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);
Celotex Corp.

v.

Catrett, 477 U.S. 317, 323-25 (1986); Washburn v. Harvey, 504 F.3d 505, 508

(5th Cir. 2007). A dispute regarding a material fact is "genuine" if the evidence is such that a

reasonable jury could return a verdict in favor of the nonmoving party. Anderson

v.

Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the

court is required to view all inferences drawn from the factual record in the light most favorable
to the nonmoving party. Matsushita Elec. Indus. Co.

v.

Zenith Radio, 475 U.S. 574, 587 (1986);

Washburn, 504 F.3d at 508. Further, a court "may not make credibility determinations or weigh
the evidence" in ruling on a motion for summary judgment. Reeves

v.

Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477 U.S. at 254-55.
Once the moving party has made an initial showing that there is no evidence to support
the nonmoving party's case, the party opposing the motion must come forward with competent

summary judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at
586. Mere conclusory allegations are not competent summary judgment evidence, and thus are

insufficient to defeat a motion for summary judgment. Turner
476 F.3d 337, 343 (5th Cir. 2007).

v.

Baylor Richardson Med. Ctr.,

Unsubstantiated assertions, improbable inferences, and

unsupported speculation are not competent summary judgment evidence.

The party

Id.

opposing summary judgment is required to identify specific evidence in the record and to
articulate the precise manner in which that evidence supports his claim. Adams
Indem. Co.

of Conn.,

v.

Travelers

465 F.3d 156, 164 (5th Cir. 2006). Rule 56 does not impose a duty on the

court to "sift through the record in search of evidence" to support the nonmovant's opposition to

the motion for summary judgment. Id.

"Only disputes over facts that might affect the outcome of the suit under the governing
laws will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248.

Disputed fact issues that are "irrelevant and unnecessary" will not be considered by a court in
ruling on a summary judgment motion. Id. If the nonmoving party fails to make a showing

5

sufficient to establish the existence of an element essential to its case and on which it will bear

the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.

II.

Application
To establish a prima facie case of wage discrimination under 29 U.S.C.

§

206(d), a

plaintiff must show (1) the employer pays different wages to men and women; (2) the employees
perform equal work on jobs the performance of which requires equal skill, effort, and

responsibility; and (3) the employees perform their jobs under similar working conditions. See
Thibodeaux- Woody

v.

Houston Cmty. Coil., 593 Fed. App'x 280, 283 (5th Cir. 2014) (internal

quotation marks omitted) (citing 29 U.S.C.

§

206(d)(1)). Once the employee has carried her

burden of establishing a prima facie case, the burden shifts to the employer to show the wage
differential is justified under one of the four exceptions contained in

§

206(d)(1). Corning Glass

Works v. Brennan, 417 U.S. 188, 195 (1974). "These exceptions are affirmative defenses on

which the employer has the burden both of production and of persuasion" and are narrowly
construed. Peters

v.

City

of Shreveport,

marks and citation omitted); Hodgson

818 F.2d 1148, 1153 (5th Cir. 1987) (internal quotation
v.

Behrens Drug Co., 475 F.2d 1041, 1047 (5th Cir.

1973).2 Relevant here, one of the exceptions in

§

206(d) states an employer is not liable for a pay

differential based on a factor other than sex. 29 U.S.C.

§

206(d)(1).

Plaintiffs argue Thiongo was paid more solely because of his gender and prior salary.
Resp. Mot. Summ. J. [#22] at 8-14. In turn, HHSC concedes Plaintiffs have made out a prima

facie case of wage discrimination but contends summary judgment is appropriate because it has
established that an exception to

§

206(d) applies. Mot. Summ. J. [#18] at 10, 11-14. Specifically,

HHSC contends it paid Thiongo a higher salary because Thiongo possessed particularly valuable

2

By contrast, in Title VII cases, the burden of persuasion "always remains with the plaintiff." Plemer v.
Parsons-Gilbane, 713 F.2d 1127, 1136 (5thCir. 1983).

work experience and because it was trying to match Thiongo's private sector salary. Id. Because

the applicability of this exception is an affirmative defense, HHSR bears the burden of showing
there is no genuine dispute the pay differential is based on a factor other than sex.

Peters,

818

F.2d at 1153. The Court addresses the claims of each plaintiff in turn.
A.

Duncan

There is a genuine issue of material fact as to whether Duncan was paid less than

Thiongo on the basis of a factor other than sex. Carison employed arguably disparate negotiating
tactics in her salary negotiations with Duncan and Thiongo. Carlson began salary negotiations

with Duncan by offering the minimum possible salary$4,598.66 per month. Duncan Dep. at 89; Carison Dep. at 15-16. When Duncan pointed out this was less than she currently made and

explained she had hoped to receive a higher salary, Carison told Duncan HHSC could offer her a
salary that would matchbut not

exceedher current salary. Duncan Dep. at 8-9.

By contrast, Carison began salary negotiations with Thiongo by offering $5,973.83 per

month-30 percent more than Carison initially offered Duncan or any of the other female job
applicants. Carison Deci. at 2-3. Mot. Summ. J. [#18] at 8. After Thiongo rejected this offer on

the basis it was lower than his current salary, Carlson responded with an offer that not just met,

but exceeded, Thiongo's alleged private sector salary.

See

Carlson Decl. at 2-3 (stating Carison

offered Thiongo a starting salary of $6,200 per month); Mot. Summ. J. [#18] at

8

(asserting

Thiongo made approximately $6,083 per month in the private sector).
Though HHSC argues it needed to quickly fill the position and points to Thiongo's
qualifications and prior salary as justifying this pay disparity, a reasonable factfinder could reject

HHSC' s position that the salary disparity was the result of a factor other than sex and find HHSC
discriminatorily applied its negotiation policy by allowing Thiongo greater latitude to negotiate.

7

See Thibodeaux-Woody, 593 F. App'x at 283-85 (finding genuine issue of material fact

precluded summary judgment where female applicant was denied an equal chance to negotiate

her salary); Bowen

v.

Manheim Remarketing, Inc., 882 F.3d 1358, 1362-63 (11th Cir. 2018)

(denying summary judgment on affirmative defense where defendant argued male employee's

prior salary and experience justified pay disparity); EEOC v. Md. Ins. Admin., 879 F.3d 114, 121
(4th Cir. 2018) (finding defendants were not entitled to summary judgment on their affirmative
defense simply because the employees' "qualifications, certifications, and employment

history.

. .

could explain or may explain the salary disparity" (emphasis in

original)).3

The Court

thus denies summary judgment on HHSC's affirmative defense.
B.

Tovar

However, no genuine issue of material fact exists as to whether Tovar was paid less than
Thiongo on the basis of a factor other than sex. HHSC policy narrowly prohibits salary increases

for lateral transfers within the same agency where the employee's new job has the same class
title and job code and is in the same salary group as the employee's current position. Salary
Policy. Tovar does not dispute that she fell within the ambit of this policy, nor does she explain

why this policy should not apply. See Resp. Mot. Summ. J. [#22] at 9-1

As a result, Carison

Indeed, it is an open question in the Fifth Circuit whether negotiation even qualifies as a "factor other than
sex." Id. ("[W]e need notand do notdecide whether negotiation is a proper 'factor other than sex."). Relatedly,
although it does not appear the Fifth Circuit has yet addressed the question, several circuits have found that
employers may not seek refuge under the "factor other than sex" exception where the defendant's sole justification
for a pay disparity is an applicant's prior pay. See, e.g., Rizo v. Yovino, No. 16-15372, 2018 WL 1702982 (9th Cir.
April 9, 2018) (en banc) (majority opinion) (concluding applicant's previous salary is not a "factor other than sex"
but declining to decide whether salary may play a role in the course of individualized salary negotiations); id. at 16
(Watford, J., concurring) ("If an employer seeks to justify paying women less than men by relying on past pay, it
bears the burden of proving that its female employees' past pay is not tainted by sex discrimination, including
discriminatory pay differentials attributable to prevailing market forces."); id. at 12 (McKeown, J., concurring)
(concluding "prior salary alone is not a defense to unequal pay for equal work" but noting "employers do not
necessarily violate the Equal Pay Act when they consider prior salary among other factors when setting initial
wages").

"Though Tovar does argue agency policy "required HHSC to pay Tovar within the pay range for the Nurse
IV position," Tovar does not elaborate or cite any HHSC policy in support of her position. Further, this argument is
[1

lacked discretion under the policy to offer Tovar any salary other than her current Nurse IV
salary. Carison Deci. at 2. In these circumstances, the HHSC policy qualifies as a factor other

than sex, and HHSC is entitled to summary judgment on its affirmative defense as to Tovar's
claim.

Conclusion
The Court denies summary judgment as to Duncan's claim and finds a genuine issue of

material fact exists as to whether the pay differential between Duncan and Thiongo is based on a
factor other than sex. However, the Court grants summary judgment on Tovar's claim, finding
HHSC has shown as a matter of law that the pay differential between Tovar and Thiongo was

based on a "factor other than sex."
Accordingly,
IT IS ORDERED that HHSC's Motion for Summary Judgment [#18] is

GRANTED IN PART and DENIED IN PART as described in this opinion.

SIGNED this the

/7 day of April 2018.

7aiAa41SAM SPARKS
SENIOR UNITED STATES DISTRICT JUDGE

clearly belied by the plain language of the Salary Policy. See Salary Policy (stating some transferees must receive
"at least the minimum salary of the new salary group" but explicitly stating lateral transfers within the same agency
to a position with "the same class title and job code in the same salary group as their current position" can receive
"no increase in current salary").