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United States v. New Mexico State University

United States District Court, D. New Mexico

February 6, 2018



         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 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 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]

         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. 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 NMS U.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 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 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.


         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).


         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 “establish this by either direct evidence or ...

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