KAREN E HAYES, Complainant
HOME CARE MEDICAL INC, Respondent
An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.
The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications to the ALJ's FINDINGS OF FACT:
1. In the fourth sentence of paragraph 2, change "Hayes" to "Hayes's".
2. In the ninth sentence of paragraph 11, change "planning an organization" to "planning and organization".
3. In the fifteenth sentence of paragraph 11, change "scheduler's" to "schedulers".
4. In the fourth sentence of paragraph 12, change "2009" to "2008".
5. In the third sentence of paragraph 13, change "Hayes" to "Hayes's".
6. In the first sentence of paragraph 25, change "reviewed Hayes wage" to "reviewed Hayes's wage". In the second sentence, change "looked at Hayes performance reviews" to "looked at Hayes's performance reviews".
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed
August 12, 2014
hayeska_rmd . doc : 107 : 127.5 133
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
Discrimination in compensation
In evaluating complaints of sex discrimination in compensation under the Wisconsin Fair Employment Act (WFEA), the commission looks to the analysis followed under the federal Equal Pay Act. Sahr v. Tastee Bakery, ERD Case No. 8800838 (LIRC Jan. 22, 1991). Under that analysis, a complainant must show that the employer pays employees of different sexes differently for jobs requiring equal skill, effort and responsibility, which are performed under similar working conditions. If that showing is made, the employer is liable unless it proves that the pay differential is the result of one or the following: 1) a seniority system; 2) a merit system; 3) a system which measures earnings by quantity or quality of production; or 4) any factor other than sex. Id. Under the Equal Pay Act analysis, it is not necessary for the complainant to prove intent to discriminate; an employer who pays different wages is automatically liable unless it proves one of the four defenses. Schwinn v. Dodge County Cooperative, ERD Case No. 199601849 (LIRC Oct. 13, 1998) citing Strecker v. Grand Forks County Social Services Board, 640 F.2d 96, 99, 24 FEP Cases 1019, 120 n.1 (8th Cir 1980).
In some cases it can also be appropriate to apply the conventional, intent-focused analysis to claims of sex discrimination in pay, particularly where the alleged wage differential is sequential rather than simultaneous. Schwinn, supra. This case involves an allegation of simultaneous wage discrimination, making the Equal Pay Act analysis the more appropriate analysis.
The first question, then, is whether the complainant has shown that the employer was paying male and female employees differently. The evidence presented by the complainant provides a wage comparison with only one male co-employee, James Moenning. There are comparison wages for three years. In 2007, after annual raises to each, the complainant's wage rate was $21.48; Moenning's was $21.38. In 2008, the complainant's wage rate was raised to $22.47; Moenning's was raised to $23.09. In 2009, the complainant's wage rate was raised to $23.20; Moenning's was raised to $23.78. With the 2008 raises, then, Moenning earned $.62 more per hour than the complainant; and with the 2009 raises, Moenning earned $.58 more per hour. Although it is true that Moenning's wage rate remained below that of another female employee who held a substantially similar job, the fact that the complainant was paid less than a male employee satisfies the first element of the complainant's case. See Mack v. Rice Lake Harley Davidson, ERD Case No. CR200901088 (LIRC Feb. 7, 2013).
The second question is whether the complainant has shown that her job and Moenning's were equal in skill, effort and responsibility, and performed under similar conditions. The complainant was a respiratory therapist I. The evidence about Moenning's job title was a little confusing. The evaluation forms for Moenning for 2008 and 2009 identified his job title as respiratory therapist II, but the respondent's primary witness testified that that title was a typo, and that he was actually a respiratory therapist I.
The respondent has persisted in calling Moenning a respiratory therapist I in its argument to the commission, and has not attempted to explain the difference in wages between Moenning and the complainant as having anything to do with different job titles, or different levels of skill, effort or responsibility.
The ALJ found that Moenning actually was a respiratory therapist II, at least as of 2009, and had good reason for doing so. (1) But even accepting that Moenning was a respiratory therapist II, the evidence supports treating Moenning's job and the complainant's job as equivalent for purposes of the Equal Pay Act. To meet the "equal work" standard, jobs do not have to be identical; the crucial question is whether they have a common core of tasks and whether any of the additional tasks make the jobs substantially different. Brewster v. Barnes, 788 F.2d 985, 991 (4th Cir. 1985). The eight-page descriptions of the two jobs were nearly identical, the only differences being a bit more emphasis on sales activity and participation in education/marketing plans in the respiratory therapist II position. The qualifications and performance requirements of the jobs were identical, and the essential tasks of the jobs were nearly identical. There is no evidence supporting a conclusion that the additional responsibilities mentioned in the respiratory therapist II position description made the two jobs substantially different. In view of the evidence, and the respondent's own representations about the equivalence of Moenning's job and the complainant's, the commission finds that the complainant and Moenning held jobs that were equivalent in skill, effort and responsibility, and were performed under similar working conditions.
The burden of proof, then falls on the respondent to show one of the four defenses. The respondent argued the defense that the wage differential that developed between the complainant and Moenning was the result of the respondent's merit pay system.
A merit pay system, for purposes of the Equal Pay Act, is an organized and structured procedure whereby employees are evaluated systematically according to predetermined criteria. Bialk v. Aurora Health Care, ERD Case No. 200700068 (LIRC Apr. 23, 2010), citing EEOC v. Aetna Ins. Co., 616 F.2d 719 (4th Cir. 1980); Maxwell v. City of Tucson, 803 F.2d 444 (9th Cir. 1986); Ryduchowski v. Port Auth. of N.Y. & N.J., 203 F.3d 135 (2d Cir. 2000).
The respondent followed a policy of giving its respiratory therapists annual written performance evaluations. The forms used for the evaluations essentially tracked the tasks listed in the position descriptions, and asked the evaluator to score the employee on each category of tasks on a scale from one to five, five being the highest. The scores for all tasks were averaged, and the overall average score indicated the employee's eligibility for a merit pay increase. The respondent maintained a written guideline matching average performance scores and pay increases. Under the guideline, an overall average score between 4.1 and 5 translated to a pay increase of 3% to 3.5%; an average score between 3.5 and 4 translated to a pay increase of 2.5% to 3%; an average score between 3 and 3.49 translated to a pay increase of 2% to 2.5%; and an average score between 2 and 2.99 translated to a pay increase of 0% to 2%.
Annual pay increases for the complainant, Moenning, and two other female respiratory therapists from 2007 through 2009, given their average evaluation scores, were at least as high as the minimum pay increases called for in the guideline. Occasionally, pay increases were higher than the maximums set out in the guideline. In 2007, the complainant received a 3% pay increase even though her average score translated to an increase of 2 to 2.5% under the guideline. Similarly, in 2007 and 2008, (2) Moenning's pay increase exceeded the maximum under the guideline by about .5%, and in 2007 and 2009 one of the other female therapists also received a pay increase that exceeded the maximum under the guideline by .5%. These deviations from the guidelines, since they were given to both male and female therapists, do not indicate that the respondent was giving favorable treatment on the basis of sex. Instead, it appears that the respondent, in good faith, was following a structured procedure of evaluation by predetermined criteria, and in general following its predetermined guideline in awarding pay increases according to those criteria. Under the Equal Pay Act analysis, the respondent has carried its burden to show that the differences in pay between the complainant and Moenning were the result of a bona fide merit pay system, and not based on sex.
Applying the conventional discrimination analysis, the evidence of the respondent's merit pay system served as an articulation of a nondiscriminatory reason for the difference in compensation between the complainant and Moenning. The complainant did not show that reason was a pretext for discrimination.
Retaliation
In a claim of retaliation for opposing a perceived discriminatory practice, it is necessary for the complainant to show that she engaged in a statutorily protected activity by expressing opposition to the practice that she believed to be discriminatory. Gephart v. Department of Corrections, ERD Case No. CR200404656 (LIRC Nov. 18, 2009). The complainant's expressed opposition has to be sufficient to create in the respondent the belief that the complainant is claiming some form of discrimination under the WFEA, otherwise it would not be possible to show that any adverse action by the respondent was motivated by a complaint of discrimination. Cangelosi v. Robert E. Larson & Associates, ERD Case No. 8821554 (LIRC Nov. 9, 1990); Matthews v. Bassett Bedding, ERD Case No. 8902772 (LIRC Oct. 27, 1993).
The complainant testified that in July 2009 she told Donna Smith, her supervisor, that she believed she was being paid unfairly compared to male employees. She testified that she later brought up the issue of pay to Claudia Dropik, the respondent's manager of human resources, and John Teevan, the respondent's CEO, but was unable to say that she compared her pay to any particular male employees in her communications with them. Both Smith and Dropik denied that the complainant asserted that she was being paid unfairly compared to male employees. Teevan did not testify. The ALJ resolved this dispute in the evidence in favor of the respondent, finding that the complainant "never stated, or implied, in her communications with Smith, Dropik or Teevan that [she] believed that her pay rate was lower than other respiratory therapists at Home Care due to [her] sex." The ALJ was in a good position to make a determination as to credibility, and the commission has found no reason in the testimony or elsewhere in the record to question that determination. Therefore it defers to the judgment of the ALJ as to credibility, and concludes that the complainant failed to show that she engaged in statutorily protected opposition to a perceived discriminatory practice.
Even if the complainant's communications with management in July 2009 were viewed as complaints of discrimination in pay, the actions that the complainant asserted were retaliatory were unrelated to those complaints. First, the complainant alleged that her evaluation of 2009, completed in August 2009, was retaliatory. The complainant's overall score in 2009, however, was 3.0, which was only slightly lower than her score of 3.2 in 2008, and her merit increases in 2008 and 2009 were the same, 2%. There were a number of positive comments in the complainant's 2009 evaluation, not indicative of a retaliatory motive; and a few important criticisms that appeared in the 2009 evaluation (being late for scheduled appointments, failing to maintain a professional appearance, and the need to improve attendance), also appeared in her 2008 evaluation.
Second, the complainant alleged that her two-day suspension in September 2009, for failing to immediately replace a broken sleep apnea monitor for a child, was retaliatory. The evidence, however, supported the conclusion that the respondent had reached a good-faith determination that the complainant exercised poor judgment in waiting several hours to replace the broken monitor, given the fact that the purpose of the monitor was to alert the child's parents to a potentially dangerous situation for the child. The complainant did not show that her actions in these circumstances met the respondent's expectations, and did not provide competent evidence that the child's parents gave the complainant permission to wait several hours before replacing the monitor. The complainant did not show a causal relationship between her complaints about pay and the two-day suspension.
The commission therefore affirms the decision of the ALJ, with the modifications noted above.
cc: Attorney Courtney R. Heeren
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