United States District Court, D. New Mexico
ORDER GRANTING IN PART DEFENDANT'S MOTION FOR
GREGORY B. WORMUTH UNITED STATES MAGISTRATE JUDGE.
matter comes before the Court on Defendant's Motion for
Summary Judgment. Doc. 54. Having reviewed the
motion and attendant briefing (docs. 55, 56), having
presided over oral argument on the matter (doc. 68),
and being otherwise fully advised, the Court hereby GRANTS in
part and DENIES in part summary judgment to Defendant for the
reasons described below.
case stems from allegations brought by Plaintiff regarding
her employment with Defendant as a female elevator mechanic
from August 11, 2010 until February 4, 2016. Doc. 1.
Plaintiff filed suit in this Court on June 6, 2016.
Id. Specifically, Plaintiff brought: (1) equal pay
claims under the Equal Pay Act (“EPA”), the New
Mexico Fair Pay for Women Act (“FPWA”), and Title
VII of the Civil Rights Act, (2) a retaliation claim under
Title VII,  and (3) a hostile work environment claim
under Title VII. Id. Defendant filed a Motion to
Dismiss on August 5, 2016. Doc. 7. Judge Armijo, on
March 31, 2017, granted Defendant's Motion as to
Plaintiff's hostile work environment claim, but denied
the Motion in all other respects. Doc. 18. On March
30, 2018, Defendant filed the instant Motion for Summary
Judgment. Doc. 54. The Motion was fully briefed on
May 16, 2018. Doc. 57. The case was thereafter
reassigned to the undersigned with the consent of the parties
on September 30, 2018. Doc. 60. The Court heard oral
argument on the Motion on November 19, 2018. Doc.
Federal Rule of Civil Procedure 56(a), this Court must
“grant summary judgment 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). See also Kidd v. Taos Ski Valley,
Inc., 88 F.3d 848, 851 (10th Cir. 1996). The movant
bears the initial burden of “show[ing] ‘that
there is an absence of evidence to support the nonmoving
party's case.'” Bacchus Indus., Inc. v.
Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991)
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986)). Once the movant meets this burden, the non-moving
party is required to designate specific facts showing that
“there are . . . genuine factual issues that properly
can be resolved only by a finder of fact because they may
reasonably be resolved in favor of either party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
(1986); see also Celotex, 477 U.S. at 324.
The Equal Pay Act (“EPA”)
establish a prima facie case of wage discrimination
on the basis of sex under the EPA, Plaintiff “has the
burden of proving that (1) she was performing work which was
substantially equal to that of the 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.” Tidwell v.
Fort Howard Corp., 989 F.2d 406, 409 (10th Cir. 1993)
(citing Corning Glass Works v. Brennan, 417 U.S. 188
employer has four affirmative defenses to an EPA claim.
Washington Cnty. v. Gunther, 452 U.S. 161, 169
(1981). The Equal Pay Act provides: “[n]o employer
… shall discriminate … between employees on the
basis of sex by paying wages to employees … at a rate
less than the rate at which he pays wages to employees of the
opposite sex … for equal work on jobs the performance
of which requires equal skill, effort, and responsibility,
and which are performed under similar working conditions,
except where such payment is made pursuant to (i) a seniority
system; (ii) a merit system; (iii) a system which measures
earnings by quantity or quality of production; or (iv) a
differential based on any other factor other than sex.”
29 U.S.C. § 206(d)(1).
this burden, an employer must “submit evidence from
which a reasonable factfinder could conclude not merely that
the employerʹs proffered reasons could explain
the wage disparity, but that the proffered reasons do in
fact explain the wage disparity.” Mickelson v.
N.Y. Life Ins. Co., 460 F.3d 1304, 1312 (10th Cir. 2006)
(citation omitted). At the summary judgment stage, this means
an employer must “prove at least one affirmative
defense so clearly that no rational jury could find to the
contrary.” Id. at 1311 (citation omitted). As
with cases under Title VII, the Court's role is to
prevent unlawful employment practices, “not to act as a
super personnel department that second guesses employers'
business judgments.” Kendrick v. Penske Transp.
Servs., Inc., 220 F.3d 1220, 1233 (10th Cir. 2000)
(cited with approval in Casalina v. Perry, 708
Fed.Appx. 938, 942 (10th Cir. 2017)).
The New Mexico Fair Pay for Women Act
FPWA prohibits pay discrimination on the basis of sex. N.M.
Stat. Ann. § 28-23-3. The FWPA is very similar to the
EPA; however, it lacks the “catch-all” defense
found in the EPA. The FWPA states:
A. No employer shall discriminate… between employees
on the basis of sex by paying wages to employees… at a
rate less than the rate that the employer pays wages to
employees of the opposite sex… for equal work on jobs
the performance of which requires equal skill, effort and
responsibility and that are performed under similar working
conditions, except where the payment is made pursuant to a:
(1) Seniority system;
(2) Merit system; or
(3) System that measures earnings by quantity or quality of
B. An employer shall not reduce the wage of an employee to
comply with this section.
C. No agreement between the employer and an employee for a
specific wage in violation of the Fair Pay for Women Act
shall prevent the employee from raising a claim based on a
violation of the Fair Pay for Women Act.
NMSA § 28-23-3.
Title VII Discrimination
prevail on her Title VII salary discrimination claim,
Plaintiff must first establish a prima facie case of
discrimination. Ortega v. Safeway Stores, Inc., 943
F.2d 1230, 1236 (10th Cir. 1991); McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802 (1973). “[A] female
Title VII plaintiff establishes a prima facie case
of sex discrimination by showing that she occupies a job
similar to that of higher paid males.” Sprague v.
Thorn Americas, Inc., 129 F.3d 1355, 1363 (10th Cir.
1997) (quotation and citation omitted). If she succeeds in
establishing a prima facie case, the burden shifts
to Defendant to rebut the presumption of discrimination by
“producing ‘some evidence that it had legitimate,
nondiscriminatory reasons[.]'” Sorensen v. City
of Aurora, 984 F.2d 349, 352 (quoting Watson v. Fort
Worth Bank & Trust, 487 U.S. 977, 986 (1988)). This
“burden is exceedingly light.” DePaula v.
Easter Seals El Mirador, 859 F.3d 957, 970 (10th Cir.
2017) (internal quotation and citation omitted). In addition,
we do not consider “whether [Defendant's] proffered
reasons were wise, fair or correct, but whether [it] honestly
believed those reasons and acted in good faith upon those
beliefs.” Rivera v. City & Cnty. of
Denver, 365 F.3d 912, 924-25 (10th Cir. 2004).
Defendant succeeds in rebutting the presumption of
discrimination raised by Plaintiff's prima facie
case, then “summary judgment is warranted unless the
employee can show there is a genuine issue of material fact
as to whether the proffered reasons are pretextual.”
Plotke v. White, 405 F.3d 1092, 1099 (10th Cir.
2005). “A plaintiff shows pretext by demonstrating
‘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 nondiscriminatory reasons.”
Swackhammer v. Sprint/United Mgmt. Co., 493 F.3d
1160, 1167 (10th Cir. 2007) (quoting Plotke, 405
F.3d at 1102).
common method of showing pretext is by arguing disparate
treatment. Id. “Under this approach, a
plaintiff can establish pretext by ‘demonstrat[ing]
that the employer treated the plaintiff differently from
other similarly-situated employees[.]” Herrera v.
United Airlines, Inc., 2018 WL 5257501 (10th Cir. 2018)
(unpublished) (quoting Swackhammer, 493 F.3d at
1167-68). “Similarly situated employees are those who
deal with the same supervisor and are subject to the same
standards governing performance evaluation and
discipline.” Wilson v. Utica Park Clinic,
Inc., 1996 WL 50462, at *1 (10th Cir. Feb. 7, 1996)
(unpublished) (citing Mazzella v. RCA Global
Communications, Inc., 642 F.Supp. 1531, 1547 (S.D.N.Y.
1986), affʹd, 814 F.2d 653 (2d Cir.1987));
see also Aramburu v. Boeing Co., 112 F.3d 1398, 1404
(10th Cir. 1997).
Title VII Retaliation
sustain a prima facie claim of retaliation, a
plaintiff must demonstrate “(1) that [s]he engaged in
protected opposition to discrimination, (2) that a reasonable
employee would have found the challenged action materially
adverse, and (3) that a causal connection existed between the
protected activity and the materially adverse action.”
EEOC v. Wal-Mart Stores, Inc., 576 F.Supp.2d 1240,
1243 (D.N.M. 2008) (quoting Argo v. Blue Cross Blue
Shield of Kansas, Inc., 452 F.3d 1193, 1202 (10th Cir.
2007)). “A causal connection may be shown by
‘evidence of circumstances that justify an inference of
retaliatory motive, such as protected conduct closely
followed by adverse action.'” O'Neal v.
Ferguson Const. Co., 237 F.3d 1248, 1253 (10th Cir.
2001) (quoting Burrus v. United Tel. Co. of Kan.,
Inc., 683 F.2d 339, 343 (10th Cir. 1982). “Unless
there is very close temporal proximity between the protected
activity and the retaliatory conduct, the plaintiff must
offer additional evidence to establish causation.”
Id. If Plaintiff succeeds in sustaining a prima
facie claim, the burden then shifts to Defendant
“to articulate a legitimate, nondiscriminatory reason
for the [materially adverse action.]” Argo,
452 F.3d at 1202. Thereafter, Plaintiff must
“demonstrate that the proffered explanation is a
pretext for retaliation.” Id. at 1203.
on the facts presented by the movants and other facts gleaned
from the record, the Court finds the following material facts
1. Defendant ThyssenKrupp Elevator Co. (“TKE”)
manufactures, installs and services elevators throughout the
United States. Doc. 54-9 at 1.
2. Defendant employed Plaintiff, a lesbian woman, in Roswell,
New Mexico as a Local Representative
(“LR”) Service Mechanic in Local 131 from
December 15, 2008 to March 5, 2010 and from August 11, 2010
until February 4, 2016. Doc. 1 at 2.
3. During her employment, Plaintiff was the sole TKE elevator
mechanic within a three hundred square mile area from
Roswell. Doc. 1 at 3. Plaintiff was required to be
on call 24/7 and to respond to client calls within two hours.
4. A collective bargaining agreement between Defendant and
IUEC determined Plaintiff's hourly rate of pay, known as
union scale. Doc. 1 at 3.
5. On December 17, 2008, Defendant, Plaintiff, and IUEC
signed a written agreement stipulating that Defendant would
pay Plaintiff union scale and a 6% plus rate during a
six-month probationary period and a 12.5% plus rate
thereafter. Doc. 1 at 4; doc. 54-12 at 1.
6. Defendant reviews all plus rates annually to determine
whether to eliminate a plus rate or red-circle an employee's
pay. Doc. 54-1 at 10.
7. Throughout Plaintiff's employment with Defendant, the
managerial department experienced significant turnover. In
the El Paso Branch Service Manager position, William Morgan
served in 2008, Doug Roach served from October 2009 until
April 2011, and Carlos Trujillo served from July 2011 until
September 2016. Doc. 54-1 at 10 n.2. In the El Paso
Branch Manager position, Harold Carr served from October 2008
until October 2010, James Jasinski served from January 2011
until February 2014, and Neil Marshall served from June 2015
until February 2016. Id. From March 2009 until May
2012, Gary Dodd oversaw the El Paso Branch as Albuquerque
District Manager. Id.
8. When hired by Defendant, Plaintiff replaced a male LR,
Steve Evarts, who had been paid a 12.5% plus rate to cover
the same route assumed by Plaintiff. Doc. 1 at 4. an
employee's assignment to a particular job or job
function, or in order to recruit and/or
9. On January 27, 2010, Doug Roach, the El Paso Branch
Service Manager, 1 issued an unsatisfactory performance
letter to Plaintiff alleging that Plaintiff failed to
diagnose a problem, complete a work order, and timely notify
Defendant, which caused Defendant to dispatch another
employee to the facility the following day. Doc.
54-15 at 1. Plaintiff delivered a rebuttal letter to
Defendant on January 29, 2010. Id. at 2-4.
10. On February 16, 2010, Doug Roach completed
Plaintiff's employee evaluation, finding her equipment
knowledge and quality of work below average. Doc.
11. On March 3, 2010, Doug Roach issued a termination letter
to Plaintiff in which he explained that Plaintiff had failed
to advise Defendant, prior to taking vacation on February 21,
2010, that her monthly maintenance visit to Cannon Air Force
Base needed to be covered in her absence. In addition, he
cited an incident in which Plaintiff raised her voice and
closed a door in the face of a customer. Doc. 54-13.
12. On March 5, 2010, Defendant terminated Plaintiff.
Doc. 1 at 4; doc. 54-13.
13. Defendant rehired Steve Evarts to replace Plaintiff and
provided him a 12.5% plus rate. Doc. 1 at 4.
14. On April 16, 2010, Plaintiff filed charges with the New
Mexico Department of Workforce Solutions & Human Rights
Bureau and the U.S. Equal Employment Opportunity Commission
(“EEOCC”), alleging wrongful termination
involving discrimination based on sex and sexual orientation.
Doc. 1 at 2.
15. On August 11, 2010, pursuant to a settlement agreement in
which Plaintiff agreed to withdraw her grievances, doc.
54-14 at 4-5, Defendant reinstated Plaintiff to her old
route. All parties agreed that she would be paid the
“prevailing negotiated Mechanic's wage rate of IUEC
Local 131[, ]” meaning she would not receive any plus
rate. Id. at 4; doc. 54-1 at 12. In
addition, Defendant paid Plaintiff $29, 266.00, replaced the
termination letter and January 2010 performance warning with
a performance expectations document, and promised to provide
her with training. Doc. 54-1 at 12; doc.
16. On December 27, 2010, Gary Dodd, the Albuquerque District
Manager, issued a performance letter to Plaintiff, noting
that several customers had contacted Defendant to comment on
Plaintiff's poor customer relations skills and improper
parking. In addition, Dodd explained that Plaintiff had
repeatedly failed to follow up with or properly communicate
with the office. Doc. 54-22.
17. On March 24, 2011, James Jasinksi, the El Paso Branch
Manager, issued Plaintiff a performance letter, advising
Plaintiff to treat customers with respect, communicate
professionally, promptly notify the office of customer
relations issues, and to work assigned hours. Doc.
18. Defendant sent Plaintiff to Albuquerque for training from
April 4 to July 1, 2011. Doc. 54-23.
19. On May 29, 2012, Carlos Trujillo, the El Paso
Service/Operations Manager, issued Plaintiff a performance
letter for working unauthorized overtime. Doc. 54-26
at 1. Plaintiff submitted a rebuttal letter on June 10, 2012.
Doc. 54-26 at 2-3. On November 7, 2012, Carlos
Trujillo issued Plaintiff another performance warning for
working unauthorized overtime. Doc. 54-27. On
December 20, 2012, Plaintiff filed an IUEC grievance form in
response, noting that she had made several efforts to reach
her supervisor to obtain permission to work overtime and had
received no response, and that others had worked overtime in
similar situations without consequence. Doc. 54-27
20. On November 18, 2012, Plaintiff requested in writing that
a plus rate be reinstated into her salary. Doc. 68
at 2. Jack Upchurch, on behalf of Defendant, denied the
request. Id. at 2-3.
21. On July 1, 2013, Plaintiff asked again in writing to
negotiate the plus rate back into her pay, but Defendant
declined, citing her poor performance. Doc. 54-1 at
17; doc. 54-38 at 10.
22. On July 23, 2013, Defendant issued Plaintiff a
performance letter after she provided elevator shaft access
to a non-TKE employee without first obtaining company
approval. Doc. 54-1 at 16.
23. On January 3, 2014, Plaintiff filed charges with the New
Mexico Department of Workforce Solutions and the EEOC
alleging that Defendant committed sex discrimination,
violations of the Equal Pay ...