United States of America v. State of Wisconsin, Department of Military Affairs
Filing
78
OPINION AND ORDER denying 40 Defendant's Motion for Summary Judgment; granting 65 Plaintiff's Motion for Leave to File a Sur-Reply Brief. Signed by District Judge William M. Conley on 5/9/24. (jat)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
UNITED STATES OF AMERICA,
Plaintiff
OPINION AND ORDER
and
23-cv-60-wmc
MICHELLE HARTNESS,
Plaintiff-Intervenor,
v.
STATE OF WISCONSIN, DEPARTMENT
OF MILITARY AFFAIRS,
Defendant.
Plaintiff contends that defendant Wisconsin Department of Military Affairs
(“WDMA”) violated Title VII, 42 U.S.C. § 2000e-2(a), by offering plaintiff-intervenor
Michelle Hartness a lower salary than the man that it later hired, even though she was
more qualified. WDMA has moved for summary judgment, contending that it offered that
man more money because he had better management and leadership experience. Because
plaintiff has presented evidence from which a reasonable jury could conclude that
WDMA’s decision to offer Hartness a lower salary was motivated by her sex, the court
must deny defendant’s motion.1
In addition, the government has moved for leave to file a sur-reply brief, which the court will grant
and has considered. WDMA argues in its reply in support of its proposed findings of fact that the
government’s claim for injunctive relief lacks any merit (dkt. #61, at 212), but it did not develop
that argument, so the court will not address it.
1
UNDISPUTED FACTS2
A. Background
WDMA is a state agency that provides military and emergency management
capabilities for Wisconsin and the United States. Hartness began working for WDMA’s
Division of Wisconsin Emergency Management (“WEM”) in 2012 as the Northeast
Region Director. In 2015, she was promoted to Response Section Supervisor, where she
oversaw six region directors and six office operations associates. At all relevant times,
Adjutant General Donald Dunbar directed and supervised WDMA with Michael Hinman
serving as his executive assistant and Brian Satula as the WEM administrator.
The
directors of the Bureau of Planning and Preparedness and Bureau of Response and
Recovery reported to Administrator Satula. Finally, at all relevant times, Joane Mathews
was WDMA’s Director of Human Resources.
B. Hartness is Selected for the Director Position
WDMA first posted the position of Director of the Bureau of Response and
Recovery in December 2016, listing a salary range of $79,040 to $99,840. Qualified
applicants would have training, education, and/or experience in four areas: (1) program
and
policy
development;
(2)
incident
command/emergency
management;
(3)
program/project management; and (4) leadership/supervision.
Unless otherwise noted, the following facts are deemed undisputed for purposes of summary
judgment based on the parties’ proposed findings of fact and responses, as well as the underlying
evidence submitted in support.
2
2
Among other applicants, Hartness applied for the position, emphasizing her work
for WEM since 2012 and that in her current position as the Response Section Supervisor,
she was responsible for, among other things, managing the delivery of emergency
management programs statewide. (Ex. 300 (dkt. #57-61) 1.) Before working at WEM,
Hartness also had three years’ experience as the Clark County Emergency Management
Director, where she had managed limited-term employees and led the county through
disasters, including a federal disaster declaration. (Id. at 2.) Finally, her resume listed eight
years of experience at the United Way, where she worked as the manager of the “2-1-1”
call center supervising volunteers, then as the “2-1-1” director/community services liaison
responsible for budgeting, hiring, firing and developing staff. (Id. at 2.) In her cover letter,
Hartness also emphasized her leadership and supervision experience, noting that she
managed personnel in six locations across the state as the WEM Response Section
Supervisor. (Ex. 302 (dkt. #57-62) 2.)
Two subject matter experts initially screened the applicants’ resumes, scoring
Hartness at 7 and 8 (out of a possible 9 points). Greg Engle, the then current Director of
the Bureau of Planning and Preparedness and one of the resume screeners, explained those
scores meant that Hartness was “sort of exceptionally qualified.” (Engle Dep. (dkt. #38)
20.) Following the resume screening, WDMA assembled a selection panel to interview
candidates. WEM Administrator Satula chaired the panel as the hiring supervisor. The
other panelists were Executive Assistant Hinman, HR Director Mathews, and Minnesota
Emergency Management Director Joe Kelly. After interviewing 12 candidates, Satula and
Kelly ranked Hartness first, while Hinman and Mathews ranked Edward Wall, the previous
3
WEM Administrator first, and Hartness second. In particular, Mathews scored Hartness’s
interview performance as a 36 out of a possible 40 points; Hinman scored Hartness’s
interview performance a 10, although Hinman did not specify a range for his personal
scoring system, and Satula and Kelly did not use a numerical ranking system. (Ex. 134
(dkt. #57-51) and Ex. 3 (dkt. #57-3).) In his interview notes, Satula also wrote that
Hartness had 20 years’ experience at the “local to state” level and was supervising six
regional offices. (Ex. 134 (dkt. #57-51) 9.) Satula further prepared a summary of the top
two candidates’ qualifications, noting that Hartness had: “extensive program-specific
experience”; “numerous relationships with all stakeholders”; good interpersonal skills; and
shown the ability to manage. (Ex. 135 (dkt. #57-52) 1-2.) Even so, Satula also noted
Hartness’s “somewhat limited” leadership and management experience. (Id. at 2)
Because WDMA Adjutant General Dunbar had final approval over any hire for the
bureau director position, his Executive Assistant Hinman and WEM Administrator Satula
prepared a memorandum listing the panelists’ collective thoughts about each of the top
candidates. As to Hartness’s strengths, they noted that she: (1) had broad knowledge and
experience; (2) led by example; (3) cared deeply about service; (4) was an energetic selfstarter; (5) was an experienced project manager that delivered results; and (6) had been
handling the bureau director duties since December 2016. (Ex. 52 (dkt. #57-23.) On the
other hand, they expressed concern about how she handled failure and noted that she
needed to finish human resources tasks in a timely manner. (Id.) Ultimately, the panelists
deferred to Satula’s top choice, and unanimously recommended Hartness for the position,
a recommendation that General Dunbar approved.
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C. Hartness Turns Down the Position
According to WDMA’s hiring checklist, once approved, an “HR specialist contacts
supervisor to discuss conditions of employment (e.g., start dates. rate of pay, FLSA
designation, etc.).” (Ex. 29 (dkt. #41-8) 3 (emphasis added).) Accordingly, once General
Dunbar approved hiring Hartness, WDMA’s HR Director Mathews emailed Allisa Brown,
a human resources specialist, asking her to continue following the checklist and work with
WEM Administrator Satula on the details of Hartness’s hire. In determining a salary
specifically, Mathews testified that WDMA first considers the salaries of other state
employees in similar positions, because “you want to have some type of equity.” (Mathews
Dep. (dkt. #31) 18.) WDMA also considered the person’s resume and experience, as well
as the agency’s budget. (Id.)
Under the Wisconsin Compensation Plan, the position of Director of the Bureau of
Response and Recovery position was “broadbanded,” which allowed state agencies to
exercise discretion in setting the salary within a range. In this case, the bureau director
position had an annual salary range of $60,382.40 to $101,129.60. For current state
employees promoted to a new position, the Compensation Plan requires that they receive
a raise that is at least eight percent of the applicable pay range minimum. Otherwise, the
Plan itself offers no further guidance in determining employee compensation. (Brown Dep.
(dkt. #36) 18.)
By e-mail, WDMA’s HR Director Mathews further stated that she did “not
recommend paying [Hartness] what [the Bureau Director Engle] is currently being paid,”
which was about $87,214.40. (Ex. 55 (dkt. #41-17) 3.) Instead, Mathews suggested that
5
“[b]ecause [Hartness] is moving up two levels, you can give her a 12% raise, which is $3.49,
for a total of $36.63 [or $76,190.40 annual salary],” adding that the maximum hourly rate
was $48.62. (Id.) Mathews further testified that “two levels” referred to Hartness’s salary
range but she acknowledged that there was no rule that Hartness could only be given a
maximum of a 12 percent raise. (Mathews Personal Capacity Dep. (dkt. #33) 34.)
In response, WEM Administrator Satula “strongly disagree[d]” with Mathews’
approach because: (1) the maximum hourly pay range for other state administrative
managers was $60.71 per hour; (2) the other administrative managers did not have
24-hour, on-call responsibilities like WEM managers did; (3) Hartness supervised more
people than Engle; (4) Engle was underpaid; (5) the two director positions were very
similar; and (6) Hartness had management experience.
(Id. at 2.)
Under these
circumstances, Satula stated, “[t]he right thing to do is to pay personnel commensurate to
their responsibilities,” concluding that, if Mathews was “fixed” in her position, then he
would make the case for a higher salary to General Dunbar. (Id.) Mathews replied that:
she had merely quoted the maximum salary according to the job posting; she was only
expressing her opinion; and aside from General Dunbar’s approval, there was nothing
preventing Satula from offering Hartness a higher salary. (Id. at 1-2.)
After meeting with at least some of the panelists,3 General Dunbar authorized the
panel to offer Hartness a $78,000 salary, which was below the position listing minimum.
There is conflicting evidence about whether the panelists presented a single salary
recommendation to General Dunbar. HR Director Mathews testified that the panel recommended
a single salary of about $78,000 (Mathews Dep. (dkt. #31) 32), while Dunbar's Executive Assistant
Hinman testified that each panelist recommended a different salary. (Hinman Dep. (dkt. #32)
28.)
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6
General Dunbar testified that he would “generally” explain why he chose a particular
course of action, but simply did not recall exactly what he said as to Hartness’s salary.
(Dunbar Dep. (dkt. #34) 29.) Dunbar added that he relied on HR Director Mathews and
her department in deciding Hartness’s salary because they were the experts, stating that
the salary offer was “100 percent based on the professionals saying this is what we believe
this individual should get for a salary, and that’s going to be based on qualifications and
experience.” (Id. at 24, 29.)
WEM Administrator Satula conveyed this $78,000 offer to Hartness, who
counteroffered at $87,214.40 plus other benefits (like an additional week of vacation),
noting that the $78,000 offered was below the posted minimum salary range for the
position.4 (Ex. 56 (dkt. #41-18) 4-5.) In a follow-up e-mail to Mathews and Hinman,
Satula stated that he was unsure if he could offer any additional information to impact
General Dunbar’s decision, but he reiterated his reasoning for offering Hartness a similar
salary to Engle.
(Ex. 56 (dkt. #41-18) 3.)
Satula further added that Hartness was
“managing the most difficult parts of the [bureau director] job right now along with her
current supervisor job.” (Id.) In the end, General Dunbar authorized an amended offer of
$79,040, the advertised minimum for the position (Ex. 57 (dkt. #41-19)), which Hartness
also rejected.
When Hartness counteroffered for a second time, again asking for an
$87,214.40 salary (dkt. #41-38) 1), WDMA apparently rejected it. Ultimately, Hartness
WDMA argues that no reasonable juror could conclude it offered different, more favorable,
non-salary terms of employment to other bureau directors, and neither plaintiff nor
plaintiff-intervenor offers any evidence of discrimination in the terms of employment.
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resigned from her existing position as Response Section Supervisor in July 2017. (Ex. 304
(dkt. #41-39.))
D. WDMA Reposts the Position and Hires Paul Cooke
In April 2017, WDMA reposted the bureau director position in a near-identical job
posting with an expanded salary range of $60,382 to $101,829, stating that applicants
who had applied in response to the first job announcement would be considered without
reapplying. After the job was reposted, Hartness told Satula that she was still interested
in the position, and he continued to consider her to be a candidate. Paul Cooke applied
after the position was reposted. Among other experiences, Cooke’s resume indicated that
he began working for WEM in 2016 as an Emergency Government Specialist, where he
was responsible for supervising 44 limited-term employees. (Ex. 99 (dkt. #41-31) 5.)5
Cooke’s resume further listed four years’ experience as the Director of the Colorado
Division of Fire Prevention and Control, where he administered a 30-million-dollar budget,
managed 6 direct reports with responsibility for 120 permanent full-time employees, plus
30 seasonal firefighters, and oversaw the state’s wildland fire and prescribed burn programs.
(Id. at 5.) Before that, Cooke’s resume reflects that he had worked as the Deputy Director
(2 years) and Director (13 years) of the Colorado Department of Public Safety’s Division
Plaintiff objects that Cooke’s resume is inadmissible hearsay. However, insofar as the resume was
considered by WDMA in determining Cooke’s hiring and salary, the resume is not offered to prove
the truth of the matter asserted and is not hearsay. Fed. R. Evid. P. 801(c)(2); see also Luckie v.
Ameritech Corp., 389 F.3d 708, 716 (7th Cir. 2004) (statements were not hearsay because they
showed decision-maker’s state of mind at the time she was evaluating plaintiff’s performance). In
any event, Cooke has provided a declaration averring to many of the same experiences on his
resume. (Cooke Decl. (dkt. #62).)
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8
of Fire Safety, noting his serving in command positions or as part of general staff for several
state disasters. (Id.)
The second posting used the same process and screening criteria as the first. Satula,
Mathews and Hinman remained on the selection panel, although Minnesota Director Kelly
dropped out. At the screening stage, Cooke received scores of 6 and 7 out of 9 points, and
Mathews scored Cooke’s interview performance at 26 out of 40 points. In a May 8 e-mail,
Hinman wrote that General Dunbar told him “not to include [Hartness as a finalist] as he
has no interest in offering her the job (again).” (Ex. 77 (dkt. #57-38) 1.) About one week
later, Hinman e-mailed Satula and Mathews, stating that he was not confident that the
top two, male candidates would accept an $80,000 salary, and Satula responded that he
had no idea why the salary was set so low, noting that they had lost a qualified candidate
and could lose other qualified candidates. (Ex. 63 (dkt. #57-31) 1.) Hinman responded
that he thought General Dunbar would agree to a salary closer to $87,000 based on the
top candidates’ extensive experience. (Id.) Later that month, in an e-mail discussing other
candidates, Satula wrote that he continued to believe that Hartness was the best candidate,
and she only turned down the job offer because of the “extremely low wage offered.” (Ex.
67 (dkt. #57-34) 2.)
On July 7, Hinman e-mailed General Dunbar stating that the selection panel
recommended offering a salary between $85,000 and $86,000 with an attached
memorandum listing the top three, male candidates. (Ex. 38 (dkt. #57-17.) The panelists
listed Cooke as their third-choice candidate, noting that his strengths included: “[v]ery
good state level experience with inter-departmental cooperation”; great experience taking
9
a collaborative approach to resolve tough subjects; great management, personnel and
evaluation skills; and a good leader. (Ex. 37 (dkt. #57-16) 2.) As to weaknesses, the
panelists noted that the majority of Cooke’s experience was in fire service, and his
communication skills were lacking. (Id.) That same day, Dunbar authorized the selection
panel to offer their first-choice candidate the job with an $85,000 salary, but he turned
down the position. Next, without General Dunbar’s approval (Dunbar Dep. (dkt. #34)
51), the panel offered the job to the second-choice candidate, Wall, also at $85,000, but
he, too, turned down the position. After the second-ranked candidate rejected the job
offer, Satula e-mailed Hinman, asking if Dunbar should be briefed before Satula made an
offer to Cooke. Hinman responded minutes later, directing Satula to offer the job to Cooke
at an $85,000 salary. Cooke asked for a higher salary, but Satula told him that $85,000
was the highest he could offer (Cooke. Dep. (dkt. #35) 23), and Cooke accepted the offer.
OPINION
The government contends that WDMA offered Hartness a lower salary because of
her sex in violation of Title VII of the Civil Rights Act of 1964, which makes it unlawful
for an employer to “discriminate against any individual with respect to his compensation”
because of “such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. §
2000e-2(a). Because WDMA has moved for summary judgment, the “singular question”
for the district court is whether the plaintiff has introduced evidence permitting “a
reasonable factfinder to conclude” that the plaintiff’s sex “caused the . . . adverse
employment action.” Johnson v. Advocate Health & Hosps. Corp., 892 F.3d 887, 894 (7th
Cir. 2018). Under Title VII, “[a]n unlawful employment practice is established when a
10
plaintiff demonstrates that a protected characteristic, such as sex, was a motivating factor for
an employment decision.” Hossack v. Floor Covering Associates of Joliet, Inc., 492 F.3d 853,
860 (7th Cir. 2007) (emphasis added).
While a plaintiff is free to offer direct or circumstantial evidence of discrimination,
“all evidence belongs in a single pile and must be evaluated as a whole.” Ortiz v. Werner
Enterprises, Inc., 834 F.3d 760, 766 (7th Cir. 2016). Still, the “familiar” burden-shifting
framework of McDonnell Douglas v. Green, 411 U.S. 792 (1973), allows “a plaintiff to make
a prima facie case of discrimination, at which point the burden shifts to the employer to
offer a nondiscriminatory motive, and, if the employer does so, the burden shifts back to
the plaintiff to show that the employer’s stated reason was a pretext.” Purtue v. Wis. Dep’t
of Corr., 963 F.3d 598, 601 (7th Cir. 2020).
Summary judgment is only appropriate if the moving party 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). The court considers “all of the evidence in the record in the
light most favorable to the non-moving party” and draws “all reasonable inferences from
that evidence in favor of the party opposing summary judgment.” Donald v. Wexford Health
Sources, Inc., 982 F.3d 451, 457 (7th Cir. 2020) (quotation marks omitted).
Here, WDMA undoubtedly lowballed Hartness with its $78,000 and $79,040
salary offers, but it is a close question whether a reasonable jury could conclude that
Hartness’s gender was a motivating factor in WDMA’s decision to offer her a lower salary
than it offered any of the three male finalists after a second round of hiring such that it
violated Title VII. To be sure, the court is not a “super-personnel board” that reviews
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WDMA’s salary offers for their business acumen. Palmer v. Indiana Univ., 31 F.4th 583,
592 (7th Cir. 2022) (quotation marks omitted). However, plaintiff has identified sufficient
evidence to permit a reasonable jury to conclude that WDMA discriminated against
Hartness, including: (1) inconsistencies in WDMA’s rationale for offering her a lower
salary than Cooke; and (2) its different considerations and process for determining
Hartness’s salary versus determining the second-round, male candidates’ salary.6
I. Inconsistencies in WDMA’s Non-Discriminatory Reasons for Offering Hartness
a Lower Salary
Inconsistencies in the evidence supporting WDMA’s proffered, nondiscriminatory
reasons for offering Hartness a lower salary than Cooke -- her relative lack of leadership,
management, and strategic experience -- would permit a reasonable jury to infer these
reasons were pretext for sex discrimination. Specifically, during the selection phase, the
panelists’ sole documented concern about Hartness’s leadership, management or strategic
experience was Satula’s note that she had “somewhat limited” management and leadership
experience. (Ex. 135 (dkt. #57-52) 2.) Notably, Mathews, who later justified offering
Hartness a lower salary because of her limited leadership and management experience, did
not express this concern during the selection phase, only worrying about her ability to
complete human resources paperwork timely. (Hinman Dep. (dkt. #32) 22; (Ex. 52 (dkt.
#57-23).) WDMA fairly points out that the selection and salary setting processes were
different, and Mathews was not required to document every concern she had at the
Plaintiff-intervenor Hartness adopted the government brief in opposition to summary judgment.
(Dkt. #56.)
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selection phase, but that is an argument WDMA can present to the jury, not grounds for
summary judgment.
WDMA also provided inconsistent justifications for offering Hartness a lower salary
during the salary-setting-phase and after she complained to the EEOC.7
A jury may
reasonably infer pretext from “flagrant” inconsistencies in an employer’s proffered
nondiscriminatory reasons for an employment action. Baker v. Macon Res., Inc., 750 F.3d
674, 677 (7th Cir. 2014).
Initially, Mathews implied that WDMA could only offer
Hartness a 12 percent raise, writing, “[b]ecause [Hartness] is moving up two levels, you
can give her a 12% raise.” (Ex. 55 (dkt. #41-17) 3.) However, Mathews acknowledged a
short time later, and during her deposition in this case, that no rule prevented WDMA
from offering Hartness more than a 12 percent raise. (Mathews Personal Capacity Dep.
(dkt. #33) 34.)
After Hartness filed a charge with the EEOC, Mathews next swore in her first EEOC
affidavit that WDMA offered Cooke more money because he had more “executive level
supervisory experience” than Hartness, noting that Cooke was tasked with mentoring a
low-performing supervisor after he was hired. (Mathews Aff. Jan. 24, 2018 (dkt. #57-64)
¶¶ 11-12.) In another affidavit submitted to the EEOC two months later, Mathews also
discussed problems with Hartness’s tenure at WDMA, explaining that she was an
“inexperienced and immature” supervisor who often did not think about how her actions
or management style affected her subordinates. (Mathews Aff. Mar. 30, 2018 (dkt. #57-
Hartness filed a charge with the EEOC in 2017 (Ex. 63 (dkt. #57-63)), but the result of any
EEOC proceeding is not in the record, nor would it be admissible at trial.
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65) ¶¶ 11-12.) Mathews further averred she had personally received complaints about how
Hartness mistreated subordinates and was rude to HR staff, noting that Hartness had also
not completed employee evaluations. (Id. ¶¶ 13-14.) Similarly, Mathews expanded on
Hartness’s lack of supervisory experience, noting that she had only two years’ supervisory
experience and some of those reports were part time. (Id. ¶ 15.) In her final affidavit
before the EEOC, Mathews explained that the “directorate was crumbling based on lack of
solid leadership,” and it needed an effective and experienced leader like Cooke. (Mathews
Aff. July 12, 2018 (dkt. #57-66) ¶ 11.)
In Mathews’ deposition, she testified that her recommendation that WDMA offer
Hartness a lower salary than Cooke was based on her limited supervisory, leadership, and
strategic experience, noting that she had worked at the county and regional level but had
no national or state level experience. (Mathews Dep. (dkt. #31) 44.) At that point,
Mathews did not dispute that Hartness had nine and a half years of supervisory experience,
but she still viewed Hartness’s leadership experience as limited, given that she supervised
part-time employees or volunteers and she had limited experience with recruiting, hiring,
discipline, and evaluations. (Id.) General Dunbar testified that he relied on Mathews’
recommendation
in
determining
Hartness’s
salary
offer,
explaining
that
her
recommendation would have been based on qualifications and experience. Likewise, at
summary judgment, WDMA relies on Mathews’ determination that Hartness’s relative
lack of management and leadership experience in comparison to Cooke as a legitimate
reason for offering her a lower salary. (Def.’s Br. (dkt. #46) 26-28.)
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While Mathews consistently mentioned Hartness’s inability to timely complete
human resources paperwork before and after WDMA offered Cooke a higher salary, there
are other inconsistencies from which a reasonable jury could infer pretext, including her
initial, procedural justification for offering Hartness a lower salary and then pivoting to
Hartness’s lack of experience and poor leadership style. Moreover, a reasonable jury could
infer that Mathews’ concerns about Hartness’s experience were an after-the-fact attempt
to justify offering her a lower salary, as those concerns presumably would have been highly
relevant to the decision to hire her, but there is no evidence that Mathews raised them at
the hiring stage. See Bagwe v. Sedgwick Claims Mgmt. Servs., Inc., 811 F.3d 866, 882 (7th
Cir. 2016) (“When evidence indicates an attempt to justify a discharge after the fact, it
can suggest a discriminatory motive.” (quotation marks omitted)).
Next, there is at least some evidence inconsistent with WDMA’s assertion that it
offered Cooke more money than Hartness because of his experience.8 At base, there is
conflicting evidence about how important leadership and management skills were to the
position with Satula testifying that the position was technical, not executive, while
Mathews testified that the position required a strong leader. (Compare Satula Dep. (dkt.
#50) 29-30 with (Mathews Dep. (dkt. #31) 46).) Further, while not directly on point as
Citing to Millbrook v. IBP, Inc., 280 F.3d 1169 (7th Cir. 2002), WDMA also argues that there is
no basis to conclude Hartness’s credentials were so superior to Cooke’s that no reasonable employer
could have chosen to offer her a lower salary. Id. at 1180 (where employer’s offered nondiscriminatory reason for its employment decision is that it selected the most qualified candidate,
“evidence of the applicants’ competing qualifications does not constitute evidence of pretext unless
those differences are so favorable to the plaintiff that there can be no dispute among reasonable
persons of impartial judgment that the plaintiff was clearly better qualified for the position at issue.”
(quotation marks omitted)). However, Millbrook is distinguishable because Cooke was not the bestqualified candidate. He was actually the third-best candidate in the second round.
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to Hartness’s management, leadership and strategic experience, there is evidence that she
was generally more qualified than Cooke as: she scored slightly higher than he did at the
resume screening stage; Mathews scored Hartness’s interview performance higher than
Cooke’s; and Satula documented Hartness’s 20 years of “local to state” experience,
asserting that she was “by far” the most qualified candidate and noting that most of
Cooke’s experience was in the fire service. (Ex. 134 (dkt. #57-51) 9 and Satula Dep. (dkt.
#50) 48.)
That is not to say there is no evidence that Cooke had more management,
leadership, and strategic experience than Hartness.
Satula had also noted Hartness’s
“somewhat limited” management and leadership experience, and the panelists as a group
noted that Wall had “[p]roven leadership skills” and got the “big picture,” which arguably
supports an inference that Hartness, who did not receive similar comments, did not have
comparable leadership skills. (Exs. 52, 135 (dkt. #57-52, 57-53).) Cooke had four years’
experience directly managing six employees with responsibility for another 150 employees
when he oversaw Colorado’s fire and burn program.
Before that, he had 13 years’
experience as the Director of Colorado’s Division of Fire Safety where he had served in
command for several state disasters.
In comparison, Hartness had about two years’
experience managing region directors as the WEM Response Section Supervisor, and eight
years’ experience at the United Way where she managed volunteers and staff. Given that
Hartness was arguably at least as qualified as Cooke for the position, a reasonable jury
could infer that WDMA’s inconsistent, shifting, and arguably after-the-fact reasons were
pretextual.
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Finally, even if this were not enough, there are other facts a reasonable jury could
consider in deciding pretext. First, the panelists did not just offer a higher salary to Cooke,
but to all three of the male finalists in the second group. Moreover, despite WDMA
announcing that Hartness and other, first-round applicants would again be considered; it
listing Wall, a first-round candidate, as a second-round finalist; and Satula still finding her
more qualified than any of the second-round finalists, General Dunbar ordered the
panelists not to include her as a second-round finalist. Second, having decided to offer
more money to the top, male, second-round finalists, there is a question as to why a similar,
higher offer was not made to Hartness.
II. WDMA’s Arguably Different Process to Determine Salary Offers to Male
Candidates
After reposting the position, WDMA considered what salary the top, male
candidates would likely accept even before they had narrowed down the finalists and
decided on a salary offer. In contrast, there is no evidence that WDMA considered what
Hartness would accept, as its initial offer of $78,000 was below the advertised minimum
salary posted for the position, only increasing its offer to the advertised minimum when
Hartness counteroffered. Further, under WDMA’s hiring checklist, after a candidate is
approved, the HR specialist is to contact the supervisor to discuss, among other things,
rates of pay, and the panelists followed that process during Hartness’s recruitment.
However, in the reposting, the panelists combined those steps -- simultaneously
recommending three, male finalists and a salary range to General Dunbar above that ever
offered to Hartness. Joll v. Valparaiso Cmty. Sch., 953 F.3d 923, 931 (7th Cir. 2020) (a jury
17
could find that “deviation from standard procedures also lends support to [plaintiff’s]
claims); but see Bagwe, 811 F.3d at 882 (“employer’s departure from its own policies may
be circumstantial evidence of discrimination,” but “there must be evidence of a specific
policy that is regularly enforced and followed in similar situations.” (emphasis added)).
There is also a material dispute of fact about whether the board individually
considered the male candidates’ qualifications and experience in setting their salary offers.
For one, WDMA offered one of the three finalists, Wall, a higher salary than it offered
Hartness, even though panelists had apparently unanimously recommended hiring
Hartness over him during the first recruitment process. Also, WDMA offered an identical
$85,000 salary to each male candidate, which suggests that they did not consider each
man’s qualifications. Finally, Satula testified that the panel did not consider each male
candidate individually in determining their recommended salary (Satula Dep. (dkt. #50)
56.),9 while Mathews and Hinman testified that the panel considered the merits of each
candidate individually and just happened to recommend the same salary for each based on
their respective experiences. (Mathews Personal Capacity Dep. (dkt. #33) 67; Hinman
Dep. (dkt. #32) 47.) Thus, a reasonable jury may infer sex discrimination based on
WDMA’s different considerations and process for male candidates, particularly considering
the dispute of fact as to whether WDMA considered each male candidate on his merits.
In sum, while a reasonable jury certainly could conclude that WDMA’s reasons for
offering Hartness a lower salary than Cooke were legitimate and non-pretextual in light of
Defendant objects that Satula’s statement lacks foundation without explaining why, so the court
will not address that argument further.
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Hartness’s, Cooke’s and the other male finalists’ respective qualifications, plaintiff has
offered enough evidence -- WDMA’s inconsistent and late-developing concerns about her
experience, consideration of what salaries male candidates would accept, and departure
from its hiring checklist -- for a reasonable jury to conclude that WDMA discriminated
against Hartness.10
ORDER
IT IS ORDERED that:
1) Plaintiff’s motion for leave to file a sur-reply brief (dkt. #65) is GRANTED; and
2) Defendant’s motion for summary judgment (dkt. #40) is DENIED.
Entered this 9th day of May, 2024.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge
Plaintiff also provides data for the past bureau directors’ salaries, but the court does not currently
find that information particularly useful absent more information about those directors’ respective
backgrounds.
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