Riser v. QEP Energy
MEMORANDUM DECISION and Order granting 27 Motion for Summary Judgment. Because this ruling disposes of all of Plaintiffs claims, the Clerk of Court is directed to enter judgment for Defendant and the close the case. Due to the part icular circumstances presented by the case, the court finds that each party shall bear her and its own fees and costs. Although QEP has prevailed on summary judgment, the court finds that Riser's case was not frivolous, unreasonable, or without foundation. Signed by Judge Dale A. Kimball on 1/23/14. (jlw)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
KATHY A. RISER,
Case No. 2:12CV133DAK
QEP ENERGY COMPANY,
Judge Dale A. Kimball
This matter is before the court on Defendant QEP Energy Company’s Motion for
Summary Judgment. On December 18, 2013, the court held a hearing on the motion. At the
hearing, Plaintiff was represented by Andrew W. Stavros, and Defendant was represented by
Richard M. Hymas and Melinda L. Hill. The court took the motion under advisement. Having
fully considered the motion, memoranda, affidavits, and exhibits submitted by the parties and the
law and facts relevant to the motion, the court enters the following Memorandum Decision and
This case is an employment dispute in which Plaintiff Kathy Riser alleges claims against
her former employer, QEP Energy Company, for violations of the Equal Pay Act (“EPA”), Title
VII of the Civil Rights Act, and the Age Discrimination in Employment Act (“ADEA”) based on
alleged pay disparities, failure to promote, and discriminatory discharge.
Riser began employment with Questar Exploration and Production Company (“Questar
E&P”) in 2003, as an Administrative Services Representative II. In that position, Riser was
assigned a wide variety of tasks, including management of the company’s fleet of vehicles,
various facilities management duties, and managing construction projects at the company’s field
offices. On July 1, 2010, Questar E&P was spun off from Questar Corporation and became an
independent company known as QEP Energy Company (“QEP”). Riser was employed by QEP
from July 1, 2010, to September 8, 2011.
QEP claims that, in approximately September 2010, it began receiving complaints
regarding Riser’s job performance with respect to her fleet duties and construction management
duties. The complaints were not passed on to Riser. However, in the spring of 2011, Riser’s
supervisor and his boss discussed the option of discharging Riser for poor performance. Instead,
QEP asserts that it decided to create a new Fleet Administrator position and reassign Riser’s fleet
duties to the new position. By reassigning those duties, Riser’s supervisors hoped that Riser
could better perform her other duties–specifically, her construction management duties. QEP
management agreed, however, that if Riser’s performance did not improve after her fleet duties
were reassigned, QEP would terminate Riser for poor performance.
QEP created the new Fleet Administrator position in May 2011 and interviewed several
applicants. In June 2011, QEP hired Matthew Chinn. QEP paid Chinn an annual salary of
$62,000. The salary was within the range established by the HR Department for the position and
was the same amount Chinn had been paid by his previous employer. Chinn assumed the fleet
duties that Riser had performed as well as additional fleet-related duties.
QEP claims that it continued to have performance issues with Riser, particularly with
respect to her construction management duties. Although Riser was aware of issues relating to
one construction management project, she was not given any specific warnings by her
supervisors. In August 2011, QEP terminated Riser. QEP contends the termination was based
on complaints with respect to Riser’s performance in connection with construction management
of a construction project in North Dakota.
QEP management then created a new Denver-based Facilities Manager position. QEP
management determined the duties for the new position, and the HR Department determined the
salary range. The position was posted and QEP interviewed several candidates. QEP hired Jason
Bryant, who had been a project manager for a company that was doing the remodeling work for
QEP’s Denver offices. QEP management, therefore, knew Bryant and had been discussing the
new position with him prior to creating the position.
The construction management duties that Riser had been assigned to perform prior to her
termination were reassigned to the new Facilities Manager. Those duties, however, constituted
only a portion of the duties assigned to the new position. The new Facilities Manager had a
supervisory position and dealt with projects at the Denver main office as well as field offices.
Defendant’s Motion For Summary Judgment
QEP moves for summary judgment on all three of Riser’s claims asserted under the EPA,
Title VII, and the ADEA. Riser opposes the motions, arguing that there is sufficient evidence for
the causes of action to be presented to a jury.
A. Prima Facie Case
To establish a prima facie case of pay discrimination under the EPA, Riser “has the
burden of proving that (1) she was performing work which was substantially equal to that of male
employees considering the skills, duties, supervision, effort, and responsibilities of the jobs; (2)
the conditions where the work was performed were basically the same; [and] (3) the male
employees were paid more under such circumstances.” Sprague v. Thorn Americas, Inc., 129
F.3d 1355, 1363 (10th Cir. 1997).
QEP argues that Riser cannot establish a prima facie case of pay discrimination under the
EPA and, even if she can, QEP can prove that the pay disparity was based on a factor other than
gender. The first element of a prima facie case, requires Riser to demonstrate that her job was
substantially equal to Chinn's or Bryant's “considering the skills, duties, supervision, effort, and
responsibilities” of the jobs. Sprague, 129 F.3d at 1363. Jobs need not be identical, only
substantially equal. 29 C.F.R. § 1620. To show substantial equality of work, Riser must submit
proof that the jobs being compared require equal skill, effort, and responsibility. 29 U.S.C. §
QEP admits that the fleet duties Riser performed before the Fleet Administrator position
was created became part of Chinn's job duties once he was hired as Fleet Administrator.
However, Chinn performed Riser's former duties and several other fleet-related duties. Chinn
developed a natural gas vehicle program and centralized the maintenance functions of the fleets.
Although some of her duties were transferred to Chinn, Riser has not demonstrated that her
position required the same skill, effort, and responsibility as Chinn’s newly-created Fleet
Administrator position. Therefore, the court cannot conclude that Riser’s and Chinn's jobs were
substantially equal for EPA purposes.
With respect to the Riser’s and Bryant’s jobs, QEP admits that some of Riser’s
construction management duties were transferred to Bryant. However, again, QEP lists several
other duties assigned to Bryant that were not apart of Riser’s job. Bryant became responsible for
managing all of the construction projects in the Denver office and managing the facilities at the
Denver office and field offices. Bryant also had maintenance and security duties that Riser did
not have. In addition, Bryant supervised several employees while Riser had no supervisory
responsibilities. While there is a single overlap in job duties, the bulk of Bryant's job duties were
not things Riser was assigned to perform. These significant differences in job duties make their
jobs too dissimilar for purposes of finding substantial equality under the EPA.
B. QEP’s Affirmative Defense
Even if Riser were able to establish a prima facie case of pay discrimination, the burden
would shift to QEP to demonstrate that the wage disparity was justified by one of the four
exceptions provided for in the EPA. If the employee establishes a prima facie case, the employer
must prove by a preponderance of the evidence the existence of one of the EPA’s four
permissible reasons for a wage disparity: (1) a seniority system; (2) a merit system; (3) a pay
system based on quantity or quality of output; and (4) a disparity based on any factor other than
gender. Tidwell v. Fort Howard Corp., 989 F.2d 406, 409 (10th Cir. 1993). If the employer
meets its burden of demonstrating that the pay disparity is caused by one of the four statutorily
permissible reasons, the employee must rebut the explanation by “showing with affirmative
evidence that it is pretextual or offered as a post-event justification for a gender-based
differential.” Little v. Cobb County, 2006 WL 839401, *6 (N.D. Ga. 2006).
QEP has demonstrated that the grade and salary range for Chinn's and Bryant's positions
were established by QEP's Human Resources Department pursuant to a gender neutral pay
classification system prior to even knowing whether a man or woman would be selected for the
position. The Human Resources Department examined the job duties and surveyed similar jobs
in the industry to determine the correct range of compensation. The compensation QEP then
agreed to pay Chinn and Bryant were within those pre-established ranges. This system
demonstrates that QEP used a system that did not take gender into account. Riser has presented
no evidence to rebut the gender neutral basis of QEP’s system. Moreover, Chinn was paid an
amount within the set range for the position that coincided with the same pay he was receiving at
the job he was leaving. Brickey v. Employers Reassurance Corp., 293 F. Supp. 2d 1227, 1233
(D. Kan. 2003) (a person’s “experience, market value, management potential, and former salary
are ‘factors other than sex.’”) And, Bryant was paid more than QEP originally offered him
because he refused the first offer and negotiated a higher salary. Clayton v. Vanguard Car
Rental, 761 F. Supp. 2d 1210 (D.N.M. 2010) (wage disparity resulting from negotiations for
higher pay was “based on a factor other than sex”). Therefore, the court concludes that QEP has
demonstrated that the pay disparity was not based on gender. Accordingly, the court grants
QEP’s motion for summary judgment on Riser’s EPA claim.
II. Title VII & ADEA
Riser also asserts causes of action against QEP for gender discrimination under Title VII
and age discrimination under the ADEA based on pay discrimination, discriminatory failure to
promote, and discriminatory discharge.
A. Pay Discrimination
To establish a prima facie case for pay discrimination under Title VII, a female employee
must show that she “occupies a job similar to that of higher paid males.” Sprague, 129 F.3d at
1363. To prove a prima facie case of pay discrimination under the ADEA, the employee must
“show a discriminatory pay disparity between [herself] and similarly situated but younger
employees.” Almond v. Unified Sch. Dist. No. 501, 665 F.3d 1174, 1181 (10th Cir. 2011). Based
on the court’s analysis above with respect to the EPA, Riser has not demonstrated that she
occupied “a job similar” to higher paid males or that there was a discriminatory pay disparity
between herself and “similarly situated” younger employees.
Even if Riser could establish a prima facie case of discriminatory pay under either statute,
she has presented no evidence that QEP's proffered reasons for its actions were pretexts for
gender or age discrimination. There is no evidence that QEP instituted a new compensation
system or set grade levels to discriminate based on age or gender. QEP set the ranges for the new
positions before the new positions were filled. Accordingly, QEP is entitled to summary
judgment on Riser’s pay discrimination claims under Title VII and the ADEA.
B. Failure to Promote/Discriminatory Discharge
Riser also alleges that she was discriminated against in violation of Title VII and the
ADEA based on her sex and her age when QEP failed to promote her and when QEP terminated
her employment. Both parties agree that the burden-shifting analysis set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), applies to both the ADEA and Title VII claims.
See id. at 802-05; Riggs v. Air Tran Airways, Inc., 497 F.3d 1108, 1118 (10th Cir. 2007).
1. Failure to Promote
Riser claims that in not being promoted to the new Denver-based Facilities Manager
position that was filled following her termination, QEP discriminated against her on the basis of
gender and age. To establish a prima facie case of discriminatory failure to promote based on
gender or age under Title VII, Riser must show that (1) she is a member of a protected class; (2)
she applied for and was qualified for the position; (3) despite being qualified she was rejected;
and (4) after she was rejected, the position was filled. See Jones v. Barnhart, 349 F.3d 1260,
1266 (10th Cir. 2003). To establish a prima facie case of discriminatory failure to promote under
the ADEA, Riser must show that (1) she was within the protected age group at the time of the
failure to promote, (2) she was qualified for the promotion, (3) she was not promoted, and (4) she
was passed over for an available promotion in favor of someone younger. Furr v. AT&T
Technologies, Inc., 824 F.2d 1537, 1542 (10th Cir. 1987).
It is undisputed that Riser did not apply for the Facilities Manager position. Nor could
she have applied for or been promoted to that position because it was not created until after her
employment with QEP ended. Riser argues that QEP had been discussing the position with
Bryant before she was terminated. However, the position was not official at that time and Riser
did not apply for the position. Application for the position is a required element of a prima facie
case under Title VII. Under the ADEA, Riser was not “passed over for an available promotion”
because she was terminated prior to the creation of the position. Under the facts of this case, the
position cannot be considered to be an “available promotion.” Riser, therefore, cannot establish
a prima facie case under either statute.
Even if the court were to conclude that Riser has established a prima facie case under
these statutes, she has not rebutted QEP’s legitimate, non-discriminatory reasons for its actions.
QEP explained that Riser was not promoted to the position because she was terminated before it
was created, she did not apply for the position, she did not have the skills QEP wanted in the
position, and she would not have been considered for the position based on her unsatisfactory
performance on the North Dakota project. Even if Riser had applied for the position, QEP
asserts that it would have considered her unqualified because it was looking for someone with
experience as a contractor. Riser has presented no evidence that QEP's desire for someone with
contracting experience is a pretext for discrimination. Riser asserts that the timing and manner
of hiring Bryant shows a pretext for discrimination. However, the sequence of events raises no
inference of discrimination against her. At most it shows that the company was considering a
better or more efficient way to manage its facilities and construction projects. The court
concludes that Riser has presented no evidence demonstrating age or gender discrimination in
connection with QEP’s failure to promote Riser, an employee who had been terminated prior to
the creation of the position. Accordingly, the court grants QEP’s motion for summary judgment
on Riser’s failure to promote claims.
2. Discriminatory Discharge
Riser also alleges that QEP terminated her employment as a result of gender and age
discrimination in violation of Title VII and the ADEA, respectively. To establish a prima facie
case of discriminatory discharge under Title VII, Riser must show (1) that she belongs to a
protected class; (2) she was qualified for her position; (3) she was discharged; and (4) her
position was not eliminated after her discharge. See Adamson v. Multi Community Diversified
Servs., Inc., 514 F.3d 1136, 1150-51 (10th Cir. 2008). To establish a prima facie case of
discriminatory discharge under the ADEA, Riser must show that (1) she is over 40 years old; (2)
she was performing satisfactory work; (3) she was terminated from employment; and (4) she was
replaced by a younger employee. Id.
The undisputed evidence establishes that Riser was not replaced and her position was not
filled by a male or younger employee. Riser's position was eliminated following her termination.
QEP created the Facilities Manager position, a much different job than the job Riser held.
Bryant, who was hired as the Facilities Manager, did not assume Riser's position. He assumed
some of her duties. However, some of her other duties were assigned to other employees as well.
Therefore, Riser has not demonstrated a prima facie case of discriminatory discharge under either
Even if Riser could establish a prima facie case of discriminatory discharge under either
statute, she has presented no evidence that QEP's proffered reasons for its actions were pretexts
for gender or age discrimination. She asserts that she was not ever reprimanded for
unsatisfactory performance. However, there is no requirement that an employee be reprimanded
prior to termination. The Tenth Circuit has stated that "the mere fact that an employer failed to
follow its own internal procedures does not necessarily suggest that the employer was motivated
by illegal discriminatory intent or that the substantive reasons given by the employer for its
employment decision were pretextual." Randle v. City of Aurora, 69 F.3d 441, 454 (10th Cir.
1995). A deviation from established procedures "goes only to process and not to purpose or
motivation." Ingels v. Thiokol Corp., 42 F.3d 616, 623 (10th Cir. 1994).
Moreover, Riser presents no evidence that would suggest that QEP discharged her based
on her age or gender. Even if she could demonstrate that any of QEP’s proffered reasons were
false, there must be some inference of a discriminatory motive. "[W]here the evidence of pretext
supports only nondiscriminatory motives, such an inference is logically precluded and summary
judgment for the employer is appropriate." Swackhammer v. Sprint/United Mgmt. Co., 493 F.3d
1160, 1168 (10th Cir. 2007). In this case, there is no evidence to support an inference of
discriminatory motive. Accordingly, the court grants QEP’s motion for summary judgment on
Riser’s discriminatory discharge claims.
Based on the above reasoning, Defendant QEP’s Motion for Summary Judgment is
GRANTED. Because this ruling disposes of all of Plaintiff’s claims, the Clerk of Court is
directed to enter judgment for Defendant and the close the case. Due to the particular
circumstances presented by the case, the court finds that each party shall bear her and its own
fees and costs. Although QEP has prevailed on summary judgment, the court finds that Riser’s
case was not frivolous, unreasonable, or without foundation. Christiansburg Garment Co. v.
EEOC, 434 U.S. 412, 421-22 (1978).
DATED this 22nd day of January, 2014.
BY THE COURT:
DALE A. KIMBALL
United States District Judge
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