United States District Court, D. Idaho
TINA M. BLACK, Plaintiff,
BARRETT BUSINESS SERVICES, INC., Defendant.
MEMORANDUM DECISION AND ORDER
W. Dale, U.S. Magistrate Judge.
an action brought by Tina Black, a former employee of Barrett
Business Services, Inc. (BBSI), under the Equal Pay Act (29
U.S.C. § 206(d)(1)), and Title VII of the 1964 Civil
Rights Act (42 U.S.C. § 2000e et seq.). Pending
before the Court is BBSI's Motion for Summary Judgment.
(Dkt. 30.) The motion has been fully briefed and oral
argument was held on April 10, 2019. (Dkt. 34.) For the
reasons that follow the Court will grant the motion.
provides human resources services to client companies through
employee staffing and recruiting. (Dkt. 30-2 at 2.) BBSI has
business operations in Idaho and eleven other states.
Id. Black worked at BBSI's Twin Falls, Idaho
office as a branch manager for approximately ten years. (Dkt.
1 at 2.) In her complaint, Black alleges BBSI discriminated
against her because of her sex. She argues BBSI paid equally
qualified male branch managers more than what she was paid.
The relevant details regarding this dispute are set forth
below in the light most favorable to Black, the non-moving
employs approximately 60 branch managers nationally. (Dkt.
30-2 at 2.) At the time Black's employment was
terminated, BBSI had three separate branches in Idaho-Twin
Falls, Idaho Falls, and Boise/Meridian (Meridian). (Dkt. 30-2
at 2.) Black was the only branch manager working at the Twin
Falls branch during her tenure. Id. In her role,
Black was responsible for determining employee schedules at
the branch, for managing the branch budget, and for
developing branch business by growing the client base.
branch manager's salary level is guaranteed; however, a
branch manager must meet branch sales goals to earn bonus
commissions. BBSI uses the same formula to calculate bonus
commissions for all branch managers. Id. at 3.
“The bonus calculation is applied on a sliding scale
such that the lower [a branch] manger's base pay, the
higher the bonus percentage applied to that manager's
bonus calculation. The higher a manager's base salary,
the higher the threshold that manager has to reach to earn
bonus income.” (Defendant's Statement of Undisputed
Facts, Dkt. 30-2 at 3.) BBSI determines branch manager base
salaries on a case-by-case basis through consideration of
numerous factors, including prior business experience,
education level, demonstrated community involvement,
potential for business development, sales experience,
location of the branch, and the manager's overall
potential to grow branch business and increase the client
was hired by BBSI in 2005 in the role of location manager in
its Twin Falls branch. (Dkt. 30-2 at 2.) In 2006, Black was
promoted to branch manager. Id. Her starting base
salary was $60, 000. Id. According to Black's
complaint, sometime between 2006 and 2007, she had a
telephone conversation with Mike Elich, then BBSI's chief
operating officer. (Dkt. 1 at 3.) During the conversation,
Black asked Elich about salary raises. Id. In
response, Elich informed her that all BBSI branch managers
made the same base salary and raises were awarded based on
branch profitability and the addition of new
years later, in 2011, Black attended a BBSI organizational
meeting in Salt Lake City, Utah. Id. According to
Black, at the meeting, a female employee asked Elich why
management positions, like Black's, were virtually
exclusive to male employees. Id. at 3-4. Elich
responded to the question by citing that at least 10 percent
of BBSI's branch managers were women. Id. at 4.
BBSI terminated the female employee's employment the day
after the meeting. Id. There are no facts in the
record to explain BBSI's reason for terminating this
made a similar inquiry sometime between 2011 to 2012 during a
private meeting with Peter Schenk, who then served in
BBSI's corporate offices. Id. Black asked Schenk
what qualities Elich saw in male managers that he did not see
in female managers. Id. Black asserts that Schenk
did not answer her question and warned her against making a
similar inquiry with Elich or anyone else at BBSI.
acting as branch manager of the Twin Falls branch, Black
earned a bonus commission for the quarters ending September
2013, December 2013, and March 2014, June 2014, September
2014, December 2014, March 2015, and September 2015. (Dkt.
32-1 at 28-38.) The record before the Court shows also that
the Twin Falls branch added six staffing clients in May 2015.
(Dkt. 32-1 at 38.) The record provides that Black's
branch met a BBSI requirement of adding at least 12 clients
per year. (Dkt. 32-2 at 3.) The undisputed facts show also
that, under Black's management, the Twin Falls branch
revenue declined from $5.1 million to $3.9 million from 2013
to 2015, a 32 percent decline. (Dkt. 30-3 at 3.)
January 11, 2016, BBSI terminated Black's employment. At
the time, Black's base salary was still $60, 000 as she
had never received a merit-based raise. Id. January
11, 2016 was also the date Black received her final paycheck.
(Dkt. 32 at 3.) According to Black, BBSI “felt a change
needed to be made.” Id. Black asked for but
did not receive severance pay. Id.
ten months later, on November 14, 2016, Black had a
conversation with a BBSI branch manager named Melanie
Hamilton. Id. Hamilton worked at BBSI's West
Jordan, Utah branch. (Dkt. 32-2 at 4.) According to Black,
Hamilton called her because BBSI management had scheduled a
meeting with Hamilton for the next day. (Dkt. 32 at 3.)
Hamilton told Black she was worried about being fired because
two other female branch managers had recently been fired by
BBSI management. Id. Black and Hamilton discussed
mutual concerns about sex-based discrimination at BBSI. (Dkt.
1 at 5.) Hamilton's employment was terminated the day
after her conversation with Black- on November 15, 2016.
(Dkt. 32 at 3.) There are no facts in the record to explain
BBSI's reason for terminating Hamilton's employment.
Black spoke with Hamilton again on November 23, 2016.
Id. During that conversation, Hamilton told Black
that BBSI paid its male branch managers an annual salary of
$100, 000. Id. at 4.
January 9, 2017, Black filed an administrative complaint with
the Idaho Human Rights Commission (IHRC) and the Equal
Employment Opportunity Commission (EEOC) alleging BBSI
committed sex-based wage discrimination. (Dkt. 32-1 at
6-15.) On November 30, 2017, the EEOC issued Black a right to
sue letter. (Dkt. 32-1 at 16-17.) On February 18, 2018, Black
filed her complaint in this Court, asserting that BBSI
violated (1) Title VII of the Civil Rights Act of 1964,
specifically, the Lilly Ledbetter Fair Pay Act of 2009,
(2) the Equal Pay Act. The factual basis for each claim is
the same: Black asserts that BBSI knowingly paid Black less
than it paid male branch managers who performed equal work,
and also knowingly provided severance pay to similarly
situated male employees but did not provide her with
severance pay. (Dkt. 1 at 6-7.) However, Black is no longer
pursuing a claim under either law based on the alleged
unequal provision of severance pay.
April 11, 2018, BBSI filed its answer denying each of
Black's claims. (Dkt. 13.) On January 1, 2019, BBSI filed
its motion for summary judgment. (Dkt. 30.) BBSI asserts
Black's claims fail on the merits because Black has not
established the requisite prima facie cases. BBSI
also affirmatively defends its actions, arguing its salary
decisions were based on legitimate, lawful reasons other than
sex or gender. Additionally, BBSI argues each of the claims
is time-barred by the applicable statute of limitations.
Motion for Summary Judgment
judgment is appropriate when the evidence, viewed in the
light most favorable to the non-moving party, demonstrates
“there is no genuine issue of any material fact and
that the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Galen v. County
of Los Angeles, 477 F.3d 652, 658 (9th Cir. 2007).
Evidence includes “the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits….” DeVries v. DeLaval, Inc.,
2006 WL 1582179, at *5 (D. Idaho June 1, 2006), report and
recommendation adopted, 2006 WL 2325176 (D. Idaho Aug. 9,
moving party initially bears the burden to show no material
fact is in dispute and a favorable judgment is due as a
matter of law. Celotex, 477 U.S. at 323. If the
moving party meets this initial burden, the non-moving party
must identify facts showing a genuine issue for trial to
defeat the motion for summary judgment. Cline v. Indus.
Maint. Eng'g & Contracting Co., 200 F.3d 1223,
1229 (9th Cir. 2000). The Court must enter summary judgment
if the nonmoving party “fails to make a showing
sufficient to establish the existence of an element essential
to that party's case, and on which that party will bear
the burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).
sex-based wage discrimination claim may be brought under the
Equal Pay Act or Title VII, or, as is the case here, under
both laws. The Court will review the relationship between
these two statutes before the Court analyzes the merits of
the motion for summary judgment.
Pay Act Claim
Equal Pay Act (EPA), which is part of the Fair Labor
Standards Act of 1938, is squarely focused on wage
disparities based on gender. Simply put, the EPA prohibits
paying men and women differently for equal work. 29 U.S.C.A.
§ 206(d)(1). Under the EPA, a plaintiff bears the burden
of proving a prima facie case alleging wage
discrimination on the basis of gender. Stanley v.
University of S. Cal., 178 F.3d 1069, 1073-74 (9th Cir.
1999). To meet the burden, a plaintiff must show that the
jobs compared are “substantially equal” and that
equal pay was not received by a person of one gender for the
substantially equal work of a person of another gender.
Id. at 1074. Notably, a plaintiff need not show the
employer had any intent to discriminate. Id.;
see EEOC v. Delaware Dept. of Health and Social
Services, 8652d 1409 (3rd Cir. 1989). The jobs need not
be identical to be substantially similar. Id.
However, a plaintiff must show the jobs require similar
skills, effort, and responsibility and were performed under
similar conditions-i.e., that the jobs have a “common
core” of tasks. Id. (citing Stanley v.
Univ. of S. Calif., 178 F.3d 1069 at 1074 (9th Cir.
1999). Additionally, the EPA requires that the employees were
employed in the “same establishment.”
plaintiff meets the EPA's initial burden, the burden
shifts to the defendant employer to show the pay disparity
was due to some factor other than the employee's gender.
Garner v. Motorola, Inc., 95 F.Supp.2d 1069, 1074
(D. Ariz. 2000), aff'd, 33 Fed.Appx. 880 (9th Cir. 2002).
The EPA “establishes four affirmative defenses upon
which the defendant can rely […]. These defenses
permit instances of disparate pay caused 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.” Id. (citing 29 U.S.C. § 206(d)(1)
defendant employer shows the disparate pay was based on a
lawful reason, the burden shifts back to the plaintiff to
show the reason supplied by the defendant employer is
pretextual and conceals a discriminatory motive or intent
that resulted in the pay disparity. Id.
the EPA which is squarely focused on wage disparities based
on gender, Title VII more broadly prohibits workplace
discrimination based on race, color, religion, sex, and
national origin. Civil Rights Act of 1964, § 701 et
seq., 42 U.S.C. § 2000e et seq. Courts
analyze Title VII claims through the burden-shifting
framework set forth in McDonnell Douglas Corp v.
Green, 411 U.S. 792, 793 (1973). Under this framework, a
plaintiff must first establish a prima facie case of
sex-based discrimination by showing that: (1) she belongs to
a protected class; (2) she was qualified for her position and
was performing her job satisfactorily; (3) she suffered an
adverse employment action; and (4) similarly situated
individuals outside her protected class were treated more
favorably. Davis v. Team Elec. Co., 520 F.3d 1080,
1089 (9th Cir. 2008).
the EPA, Title VII does not require a plaintiff to prove the
requirements of “equal work” and “similar
working conditions.” However, “Title VII and the
Equal Pay Act overlap and where, as here, plaintiff brings a
wage discrimination claim, Equal Pay Act standards apply to
the Title VII claim.” Wachter-Young v. Ohio Cas.
Grp., 236 F.Supp.2d 1157, 1161 (D. Or. 2002). Notably,
the McDonnell Douglas framework is “not
intended to be an inflexible rule.” Furnco Constr.
Corp. v. Waters, 438 U.S. 567, 575 (1978). The framework
allows for a plaintiff to establish a prima facie
case by “showing actions taken by the employer from
which one can infer, if such actions remain unexplained, that
it is more likely than not that such actions were based on a
discriminatory criterion illegal under Title VII.”
Young v. United Parcel Serv., Inc., 135 S.Ct. 1338,
1353-54 (2015) (internal citations omitted).
under both the EPA and Title VII, if a plaintiff meets her
initial burden, the burden of evidence production shifts to
the employer defendant “to articulate some legitimate,
nondiscriminatory reason for the challenged action.”
Hawn at 1155. Through legislation known as the
“Bennett Amendment, ” Congress expressly
incorporated the four affirmative EPA defenses into Title VII
wage-based claims. See 42 U.S.C. § 2000e- 2(h)
(1999); see also Bennett Amendment, Pub.L. No.
88-352, § 703, 78 Stat. 255 (July 2, 1964). When
invoking the EPA-based affirmative defenses in the Title VII
context, “the defendant employer bears the burden not
only of coming up with some evidence supporting one of the
four affirmative defenses but must also shoulder the burden
of persuading the jury that the wage differential resulted
from a factor other than gender.” Kouba v. Allstate
Ins. Co., 691 F.2d 873, 875 (9th Cir. 1982). Therefore,
a Title VII analysis of a wage discrimination claim is
conducted with reference to the EPA allocation of the burdens
of proof. See Id. at 875-877; Gunther v. County
of Wash., 623 F.2d 1303, 1313 (9th Cir. 1979)
(“Equal Pay Act Standards apply in Title VII suits when
plaintiffs raise a claim of equal pay.”),
aff'd, 452 U.S. 161, 101 S.Ct. 2242, 68 L.Ed.2d
defendant employer produces that evidence, the burden shifts
back to the plaintiff who must prove intentional
discrimination despite the reasons advanced by the defendant
employer. Garner v. Motorola, Inc., 95 F.Supp.2d
1069, 1074-75 (D. Ariz. 2000), aff'd, 33
Fed.Appx. 880 (9th Cir. 2002). Thus, the present motion for
summary judgment will be analyzed with respect to a claim
under the EPA because that analysis is applicable to both
note, however, the standards for summary judgment in any
employment discrimination case are rigorous. Courts in the
Ninth Circuit “require very little evidence to survive
summary judgment in a discrimination case, because the
ultimate question is one that can only be resolved through a
searching inquiry-one that is most appropriately conducted by
the factfinder, upon a full record.” Schnidrig v.
Columbia Mach., Inc., 80 F.3d 1406, 1410 (9th Cir. 1996)
(internal quotations omitted). This is “especially
true” in the context of employment discrimination
actions “where motive is a factor.”
Garner at 1075.
Black's Initial Burden
matter, and in support of both her EPA and Title VII claims,
Black compares her wages to the wages of three male BBSI
branch managers-Neil Christensen, Jeremy Hix, and Jason
Williams. Christensen is the male employee who replaced Black
as branch manager of BBSI's Twin Falls branch in 2016.
Christensen was hired at a base salary of $100, 000. In 2011,
Hix was hired as branch manager of BBSI's Idaho Falls
location at a base salary of $85, 000. (Dkt. 32 at 16.) In