Allen v. Garden City Co-Op, Inc.

• Decision Date: 27 August 2009
• Docket Number: Case No. 07-1131-EFM.
• Citation: 651 F.Supp.2d 1249
• Parties: Lauri ALLEN, Plaintiff, v. The GARDEN CITY CO-OP, INC. and John McClelland, Defendants.
• Court: U.S. District Court — District of Kansas

651 F.Supp.2d 1249

Lauri ALLEN, Plaintiff, v. The GARDEN CITY CO-OP, INC. and John McClelland, Defendants.

Case No. 07-1131-EFM.

United States District Court, D. Kansas.

August 27, 2009.

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Gaye B. Tibbets, Tucker Poling, Hite, Fanning & Honeyman, L.L.P., Wichita, KS, for Plaintiff.

Patrick E. McGrath, Wallace Saunders Austin Brown & Enochs Chtd., Overland Park, KS, for Defendants.

MEMORANDUM AND ORDER

ERIC F. MELGREN, District Judge.

Before the Court is Defendants John McClelland and The Garden City Co-Op, Inc.'s Motion for Summary Judgment (Doc. 85). The motion has been fully briefed. For the following reasons, the Court denies in part and grants in part the motion.

I. Factual Background¹

At the Garden City Co-Op, Inc., the CFO and three division Vice-Presidents functioned as if they were on the same level and reported to the CEO. The three Vice Presidents were each in charge of a different division: crop production; petroleum; and grain. The CFO was in charge of the administrative division. In January of 2004, the three Vice-Presidents and CFO, all of whom were male, each made $87,550 a year.

Plaintiff Lauri Allen was hired as CFO in May of 2004. She has a B.S. in accounting and became a certified public accountant in 1992. Prior to being hired by the Garden City Co-Op, she worked for seventeen years in public accounting and had several years of supervisory experience over other accountants. Defendant John McClelland, CEO of the Garden City Co-Op, set Allen's starting salary at $75,000 a year.

Allen was offered the same starting salary as that offered to Barry Brant, whom had recently been promoted to Vice-President of crop production. Brant had been working full time for eight years, and his experience was in sales. McClelland testified that he offered Allen the same starting salary as Brant because he believed that the positions were substantially similar and that Allen and Brant were at the same position in their careers. McClelland also stated that the CFO's and crop production's divisions were smaller than the grain and petroleum divisions, and Allen and Brant had less experience as this would be their first managerial job.

Allen held the identical CFO position as her male predecessor, Vern Kinderknecht, and her male successor, Brent Merz, with the same duties and responsibilities. When Kinderknecht left employment, he was being paid $87,550 a year. Allen started at $75,000 a year in May of 2004 and received a raise in February of 2005 to $80,000. In March of 2005, she was given a cost of living raise from $80,000 to $81,600. Allen had a company car and received a $10,000 bonus.

During Allen's tenure at the Co-Op, Allen stated that when she presented ideas to the Board, they were "shot down," but the Board supported ideas that male Vice-Presidents presented. Approximately one month prior to Allen's discharge, Allen complained to McClelland that "this is a good `ol boys' club, and you're not letting me in it." Shortly before Allen was asked to tender her resignation, Allen expressed concern to Ann Jackson, Personnel Director, that a male (Amos) hired to replace a female (Brungardt) at one of the Co-Op's stores was hired at a higher salary. Allen placed a note on McClelland's desk that she wanted to talk to him about the Amos/Brungardt situation.

The Garden City Co-Op's policy was that the CFO could only be terminated by the Board. McClelland testified that he spoke with Board members about Allen's job performance prior to asking for an receiving Allen's resignation. There is testimony by McClelland and one board member that Plaintiff's issues were discussed, but there are no Board meeting minutes that reference Allen's termination. On October 11, 2005, McClelland asked Allen to resign.

At the exit interview, McClelland told Allen that she had a tendency to go from "M-Z rather than A-Z," and he did not need a CPA. McClelland testified that he asked for Allen's resignation because they were "unhappy with the mood" of the department and its adoption of the AgTrax system, "the financial statements did not come out in a timely manner," Allen's department had a lot of bickering, and there was no interaction between Allen's division and the petroleum department.

Merz was hired as CFO in October of 2005. His starting salary was $90,000, and he received a $10,000 signing bonus. McClelland testified that he based Merz' salary on Allen's salary because he believed that it was a fair salary and because Merz would not have a company car, he added "90 some hundred dollars, came up to an even 90,000." McClelland also stated that the $10,000 signing bonus was to compensate Merz for purchasing a vehicle. Merz testified that he did not discuss compensation for a company car before accepting the position. McClelland also testified that Merz' supervisory experience and experience working with AgTrax software was important. In January of 2006, Merz received a raise to $91,800. In August of 2006, he received a raise to $96,800. The Garden City Co-Op is paying for him to earn his undergraduate degree in accounting.

Allen filed suit alleging that she was discriminated against in her pay in violation of the Equal Pay Act ("EPA"), Title VII, and Kansas Act Against Discrimination ("KAAD"); she was terminated in retaliation for protected activity in violation of the EPA, Title VII, and KAAD; she was terminated because of her gender in violation of Title VII and KAAD; and she was not provided timely annual statements for her 401 k or an SPD in violation of 29 U.S.C. § 1024. Defendants seek summary judgment.²

II. Summary Judgment Standard

Summary judgment is appropriate if the moving party demonstrates that "there is no genuine issue as to any material fact" and that it is "entitled to judgment as a matter of law."³ "An issue of fact is `genuine' if the evidence allows a reasonable jury to resolve the issue either way."⁴ A fact is "material" when "it is essential to the proper disposition of the claim."⁵ The court must view the evidence and all reasonable inferences in the light most favorable to the nonmoving party.⁶

The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact.⁷ In attempting to meet this standard, the moving party need not disprove the nonmoving party's claim; rather, the movant must simply point out the lack of evidence on an essential element of the nonmoving party's claim.⁸

If the moving party carries its initial burden, the party opposing summary judgment cannot rest on the pleadings but must bring forth "specific facts showing a genuine issue for trial."⁹ The opposing party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant."¹⁰ "To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein."¹¹ Conclusory allegations alone cannot defeat a properly supported motion for summary judgment.¹² The nonmovant's "evidence, including testimony, must be based on more than mere speculation, conjecture, or surmise."¹³

Finally, summary judgment is not a "disfavored procedural shortcut," but it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action."¹⁴

III. Analysis

Plaintiff alleges that she was discriminated against in her pay in violation of the EPA, Title VII, and KAAD; she was terminated in retaliation for protected activity in violation of the EPA, Title VII, and KAAD; she was terminated because of her gender in violation of Title VII and KAAD; and she was not provided timely annual statements for her 401 k or an SPD in violation of 29 U.S.C. § 1024. The Court will address each contention.

A. Unfair Pay under the EPA¹⁵

Plaintiff asserts that Defendants paid her less than similarly situated males for work that was substantially equal. Defendants assert that they are entitled to summary judgment because they have advanced legitimate reasons for any alleged pay disparity.

To establish a prima facie case under the EPA, a plaintiff must demonstrate that "(1) the plaintiff was performing work which was substantially equal to that of employees of the opposite sex, taking into consideration the skills, duties, supervision, effort and responsibilities of the jobs; (2) the conditions where the work was performed were basically the same; [and] (3) employees of the opposite sex were paid more under such circumstances."¹⁶ If the plaintiff can establish a prima facie case, the burden of persuasion then shifts to the defendant to establish that the wage disparity was justified because of "(1) a seniority system; (2) a merit system; (3) a pay system based on quantity or quality of output; [or] (4) a disparity based on any factor other than sex."¹⁷ "[B]ecause the employer's burden in an EPA claim is one of ultimate persuasion, in order to prevail at the summary judgment stage, the employer must prove at least one affirmative defense so clearly that no rational jury could find to the contrary."¹⁸

There is a significant difference between the burden of proof under the EPA and under Title VII.¹⁹ "Under Title VII, the plaintiff always bears the burden of proving that the employer intentionally paid her less than a similarly-situated male employee. The EPA, however, has been described as imposing a form of strict liability on employers who pay males more than females for performing the same work—in other words, the plaintiff in an EPA case need not prove that the employer acted with discriminatory intent."²⁰ The employer is required "to submit evidence from which a reasonable factfinder could conclude not merely that the employer's proffered reasons could explain the wage disparity, but that the proffered reasons do in fact explain the wage...