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Dolin v. Thyssenkrupp Elevator Corp.

United States District Court, D. New Mexico

February 5, 2019

LJ DOLIN, Plaintiff,



         This 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.

         I. Background

         This 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, [1] 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. 68.

         II. Legal Standards

         A. Summary Judgment

         Under 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.

         B. The Equal Pay Act (“EPA”)

         To 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 (1974)).

         An 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).

         To meet 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)).

         C. The New Mexico Fair Pay for Women Act (“FPWA”)

         The 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 production.
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.

         D. Title VII Discrimination

         To 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).

         If 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).

         A 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).

         E. Title VII Retaliation

         To 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.

         III. Fact Summary

         Based on the facts presented by the movants and other facts gleaned from the record, the Court finds the following material facts undisputed:

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”)[2] Service Mechanic in Local 131 from December 15, 2008 to March 5, 2010 and from August 11, 2010 until February 4, 2016.[3] 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. Id.
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[4] 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[5] 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. 54-16.
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. 54-15.[6]
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. 54-24.
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 at 2.
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.[7]
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 ...

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