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Black v. Barrett Business Services, Inc.

United States District Court, D. Idaho

May 23, 2019

TINA M. BLACK, Plaintiff,


          Candy W. Dale, U.S. Magistrate Judge.


         This is 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.


         BBSI 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 party.

         BBSI 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. Id.

         A 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 base. Id.

         Black 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 clients.[1] Id.

         Several 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 individual's employment.

         Black 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. Id.

         While 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.)

         On 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.

         Approximately 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.


         On 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.[2] (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, [3] and (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.[4]

         On 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.


         1. Motion for Summary Judgment

         Summary 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, 2006).

         The 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).


         A 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.

         1.Equal Pay Act Claim

         The 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.” Id.

         If a 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) (citations omitted)).

         If a 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.

         2.Title VII Claim

         Unlike 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).

         Unlike 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).

         Therefore, 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 751 (1981).

         If the 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 statutes.

         Of 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.

         A. Black's Initial Burden

         In this 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 ...

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