Mickelson v. New York Life Ins. Co.

• Decision Date: 28 August 2006
• Docket Number: No. 05-3049.,05-3049.
• Citation: 460 F.3d 1304
• Parties: Jennifer J. MICKELSON, Plaintiff-Appellant, v. NEW YORK LIFE INSURANCE COMPANY, Defendant-Appellee. Equal Employment Opportunity Commission, Amicus Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

460 F.3d 1304

Jennifer J. MICKELSON, Plaintiff-Appellant, v. NEW YORK LIFE INSURANCE COMPANY, Defendant-Appellee Equal Employment Opportunity Commission, Amicus Curiae.

No. 05-3049.

United States Court of Appeals, Tenth Circuit.

August 28, 2006.

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Mark A. Buchanan, Sanders, Simpson & Fletcher, L. C., Kansas City, MO, for the Appellant.

Elaine Drodge Koch (Jeremiah J. Morgan and Heather S. Esau Zerger, with her on the brief), Bryan Cave LLP, Kansas City, MO, for the Appellee.

Julie Gantz, Attorney (Eric S. Dreiband, General Counsel, Carolyn L. Wheeler, Acting Associate General Counsel, and Vincent J. Blackwood, Assistant General Counsel, with her on the brief), Equal Employment Opportunity Commission, Office of General Counsel, Washington, D.C., for amicus curiae Equal Employment Opportunity Commission.

Before TACHA, Chief Circuit Judge, BALDOCK, and LUCERO, Circuit Judges.

TACHA, Chief Circuit Judge.

Plaintiff-Appellant Jennifer J. Mickelson sued her employer, Defendant-Appellee New York Life Insurance Company ("NYL"), alleging retaliation and discrimination on the basis of sex under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and salary discrimination under the Equal Pay Act ("EPA"), 29 U.S.C. § 206(d). The District Court granted summary judgment in favor of NYL on all claims. On appeal, Ms. Mickelson argues that there is a genuine issue of material fact regarding whether she was paid less than male employees performing the same work because of her sex and whether the actions of her employer constitute an adverse employment action. We take jurisdiction under 28 U.S.C. § 1291 and REVERSE.

I. BACKGROUND

NYL sells life insurance products to independent insurance brokers throughout the United States. Sales are made mainly through field directors — marketing representatives who promote the sale of NYL products and services to the independent insurance brokers. Field directors receive internal support from marketing service consultants ("MSC"). An MSC acts as a liaison between the field directors, who are out in the field selling insurance, and NYL's producing groups. Six MSCs worked in NYL's Leawood, Kansas office.

That office hired Ms. Mickelson as an MSC in September 2000. Ms. Mickelson's resume indicates that she graduated from law school in May 2000 and that for the six years before and during law school she worked part-time for another life insurance company, first in the underwriting department, and later (for the last six months), as a marketing service representative — a position very similar to the one she was hired to perform at NYL. Because of her law degree, Ms. Mickelson was assigned to the MSC group responsible for high net worth clients and corporations; for this reason, the group was considered relatively prestigious. Although a law degree was not required for her position, NYL believed it added to Ms. Mickelson's credibility when dealing with those clients; additionally, Ms. Mickelson used her legal knowledge to prepare estate planning illustrations for those clients. Although she did not have any insurance-related professional licences when she was hired, she steadily worked toward and obtained a Series 6 license.¹ In addition, Ms. Mickelson earned a "Fellow Life Management Insurance" designation, which indicates extensive knowledge of products in the life insurance industry, as well as a "Chartered Life Underwriter" designation, which indicates passage of ten professional courses.

When a new employee is hired, NYL assigns him or her to a grade level; each grade level carries a specific salary range. Typically, MSCs are assigned to grade level 13, which carries a salary range of $45,100 to $69,900. John Begley, the director of human resources at the Leawood office, and James Vavra, the vice-president of operations at the Leawood office, assigned Ms. Mickelson to grade level 13 and set her salary, without negotiation, at $50,000. By September 2002 she was earning $53,400.

Vickie Day was hired as an MSC in October 2000, the month after Ms. Mickelson. Ms. Day brought to NYL five years of experience working in the life insurance industry, as well as eleven years experience in an administrative assistant position. She had a Bachelor's degree and Series 6 and 63² professional licenses. Her salary immediately prior to being hired at NYL was $48,000. Like Ms. Mickelson, Ms. Day was assigned to grade level 13 and her starting salary was $50,000. By September 2002, Ms. Day's salary was $52,500.

Mark Shelton was hired as an MSC in December 2000, three months after Ms. Mickelson. Mr. Shelton had a Bachelor's degree and twenty years of experience in the insurance industry. His salary immediately prior to being hired at NYL was $43,000. He was assigned to grade level 14, which carries a salary range of $51,100 to $79,200, and his salary was set at $60,000. By September 2002, his salary was $61,300.

Kevin Harriman was hired as an MSC in February 2002. Mr. Harriman had two years of experience as a marketing and business analyst at a life insurance company. It appears that Mr. Harriman's experience in the life insurance industry is limited to these two years. He also had three years of experience working as a securities trader and financial analyst, and two years of experience as a mutual fund representative in which he acted as a liaison between the fund and the broker/dealer. Mr. Harriman had a Bachelor's degree and was working toward obtaining his Masters in Business Administration when he was hired. He also had Series 6, 7,³ and 63 professional licenses. In his most recent job prior to being hired at NYL, he earned $55,000, although for the six months prior to being hired at NYL he was unemployed. He was assigned to grade level 13 and Mr. Begley, Mr. Vavra, and Tracie Billings, the MSC supervisor set his starting salary at $60,000. No documents were prepared describing how Mr. Harriman's salary was set.

Two other MSCs worked in the Leawood office—James Wirtz and Susan Hairgrove. Both were hired in 1993. Although the record does not reveal their qualifications, starting salaries, or performance histories, in 2000, Ms. Hairgrove earned $51,732, compared to Mr. Wirtz's $55,737 salary. By September 2002, both were considered senior MSCs but Ms. Hairgrove earned $63,915 while Mr. Wirtz earned $72,265 — a difference of over $8,000.

Shortly after Mr. Harriman was hired, Ms. Mickelson learned that his starting salary was set at $60,000. She made a written inquiry to Ms. Billings asking what criteria were involved in setting salaries. Ms. Billings and Mr. Vavra met with Ms. Mickelson to discuss her concerns. Mr. Vavra told Ms. Mickelson that four factors were taken into consideration in setting Mr. Harriman's salary — experience, qualifications, market factors, and salary history. Not satisfied that these reasons could explain the disparity in pay, Ms. Mickelson made a formal complaint of salary discrimination to NYL's home office in New York City. She sent a copy of the complaint to Mr. Begley. NYL conducted an internal investigation of the complaint and concluded that the disparity in pay was warranted based upon Mr. Harriman's relevant experience in the broker-dealer market, NYL's current need for expertise in that market, Mr. Harriman's and Ms. Mickelson's relative salary histories, and their respective professional licenses. In March 2002, Ms. Mickelson filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC").

According to Ms. Mickelson, after she filed her complaint, she experienced several adverse employment actions. First, although Mr. Vavra had personally committed to look for opportunities for Ms. Mickelson in NYL's legal department, he never reported back to her about whether there were any such openings. Second, Ms. Billings cancelled a business trip to Boston that Ms. Mickelson was scheduled to take. Third, Ms. Billings told Ms. Mickelson that she would need to use her vacation time to study for a bar examination she was taking the following week, although Ms. Mickelson was previously told that she did not have to use her vacation time.⁴ Fourth, Mr. Vavra sent Ms. Mickelson an e-mail, which she considered demeaning, informing her that one of her projects was "DEAD." Fifth, she met with Mr. Vavra, Ms. Billings, and another employee named Louis Gardner to discuss the fact that Ms. Mickelson was asking Mr. Gardner questions regarding work when he was not her supervisor. Mr. Vavra became extremely angry during the meeting. Sixth, after she became engaged to the field director to whom she provided support services, Ms. Mickelson asked that she be promoted to a "key accounts" position or moved to another distribution source because she felt that it was not in the "company's best interest to have a married couple working on the same marketing team." Ms. Billings initially suggested that the "key accounts" position would be a good move for Ms. Mickelson; but later, Ms. Billings indicated that there were no openings for that position. She was then reassigned to a different field director in a less-prestigious MSC group.

Finally, in December 2002, Ms. Mickelson took medical leave pursuant to the Family and Medical Leave Act ("FMLA") and was treated for depression and panic attacks. Her leave was scheduled for December 9, 2002, through January 13, 2003. After she had been on leave for approximately two weeks, however, she inquired as to whether she could return to work on a part-time basis because her doctor indicated it would be "a good step" for her. Ms. Billings denied her request, stating that because of business demands and staffing requirements, her position had to be filled by a full-time employee. This response came despite the fact that NYL's employee handbook indicates that FMLA leave for a serious health condition "can be taken intermittently or on a reduced schedule...