HILDA TAGLE, Senior District Judge.
BE IT REMEMBERED, that on July 26, 2013, the Court considered Defendant's Motion for Summary Judgment and Brief in Support, Dkt. No. 32; the response and reply Dkt. Nos. 59, 61; Defendant's motion to dismiss on jurisdictional grounds not raised in the motion for summary judgment, Dkt. No. 62; the filings related to that motion, Dkt. Nos. 60, 62-63, 64-65;
Plaintiff Mary Jane Sauceda ("Sauceda") has been an associate professor at The University of Texas at Brownsville's ("UTB") School of Business since 1994 and has taught accounting courses continuously since 2001.
Sauceda attaches an affidavit to her response to UTB's motion for summary judgment in which she declares: "I am Hispanic. I am a female." Dkt. No. 59 Ex. A at 1. In her First Amended Complaint, she compares her salary to that of other professors she describes as "Anglo/Caucasian" women and men. Dkt. No. 58 at 3, 4, 5, 6. UTB disputes none of these factual propositions. That is, the parties do not dispute that Sauceda's national origin differs from that of her proposed comparators for TCHRA purposes, and they
UTB apparently set the salaries of all of the faculty members teaching in its School of Business each academic year by issuing one-year memoranda of appointment. See Summary of Starting Salaries of UTB AQ Faculty, Dkt. No. 32 app. A; Sauceda Decl. ¶ 20 (setting forth annual salaries by academic year); Mem. Appointing Faculty for Each Academic Year, Dkt. No. 32 Ex. C-10 to C-12; Dkt. No. 59 Ex. B, C-5, C-6. In the 2007-08 academic year, Sauceda earned $79,620 annually. Summary of Starting Salaries, Dkt. No. 32 app. A. UTB paid her $82,009 in the 2008-09 academic year and $82,830 in the 2009-10 academic year. Id. She received $90,212 in the 2010-11 academic year and $90,212 the following academic year. Id.
In her First Amended Complaint, Sauceda compares her salary to that of five present and former School of Business faculty members. UTB categorizes its School of Business faculty members as either academically or professionally qualified under accreditation standards promulgated by the Association to Advance Collegiate Schools of Business (AACSB). Dkt. No. 32 Ex. ¶¶ 6-7. The first two comparators — Carol Collinsworth ("Collinsworth") and Lauran Schmid ("Schmid") — do not hold terminal degrees. See Dkt. No. 59 Ex. G at 22:20-21 (Deposition of Collinsworth); id. Ex. H at 9:4-21 (Deposition of Schmid). UTB considers them professionally qualified. Dkt. No. 32 Ex. H ¶ 7. The other three faculty members — Paul G. Robertson ("Robertson"), David Boyd ("D. Boyd") and Sanithia Boyd ("S. Boyd") — earned doctoral degrees, and UTB considers them academically qualified. Id. ¶ 6.
The following table summarizes the annual salaries of faculty categorized as academically qualified from the 1992-93 academic year through the 2012-13 academic year. Dkt. No. 32 Ex. 1.
Sauceda originally filed this case in Texas
UTB has moved for summary judgment, Dkt. No. 32, and the Court also has before it jurisdictional memoranda and a motion to dismiss addressing the question whether Sauceda has exhausted her administrative remedies regarding Robertson as to her TCHRA claim. UTB argues that Sauceda's TCHRA claim is time-barred.
UTB also seeks summary judgment dismissing Sauceda's Equal Pay Act claim. As discussed more fully in Part III, UTB alleges that it paid Robertson and the Boyds a higher salary to attract them and thereby bolster UTB's efforts to obtain AACSB accreditation for its School of Business. See Dkt. No. 32 Ex. ¶ 18; Id. Ex. G at 43:9-12. AACSB accreditation guidelines require at least 50% of a business school's faculty to be academically qualified. Dkt. No. 32 Ex. ¶ 9. Based on its conclusion that Sauceda had not produced sufficient qualifying academic publications or other intellectual contributions, UTB did not consider Sauceda academically qualified when it hired Robertson and the Boyds. See id ¶¶ 8-9. UTB asserts that it set what it believed to be the most competitive salary it could to attract academically qualified faculty like Robertson and the Boyds from other institutions. See id. Ex. G at 29:12-24. It contends that due to a phenomenon known as salary compression, new hires from outside an institution can often command a greater salary than existing faculty members, and the salary disparities between Sauceda on the one hand and Robertson and D. Boyd on the other resulted from this legitimate, non-discriminatory phenomenon. Dkt. No. 32 at 33.
UTB's motions raise two jurisdictional challenges to Sauceda's national origin discrimination claim under the TCHRA. Both rely on the theory that Sauceda failed to exhaust her administrative remedies before filing suit. First, UTB argues that Sauceda's national origin discrimination claim is time-barred because no cognizable act of intentional discrimination occurred within 180 days of March 19, 2010, the date on which she filed her charge of discrimination with the Texas Workforce Commission. See TEX. LAB.CODE § 21.202(a) (West 2013). Second, UTB asserts in its pending motion to dismiss that Sauceda cannot compare her salary to that of Paul G. Robertson because his name does not appear on that charge. The Court finds the first question dispositive and consequently does not reach the second.
"The [T]CHRA ... establishes a `comprehensive administrative review system,' under which the `exhaustion of administrative remedies is a mandatory prerequisite to filing a civil action alleging violations of the [T]CHRA.'" Hoffmann — La Roche, Inc. v. Zeltwanger, 144 S.W.3d 438, 446 (Tex.2004) (quoting Schroeder v. Tex. Iron Works, Inc., 813 S.W.2d 483, 485, 488 (Tex.1991)); see also City of Waco v. Lopez, 259 S.W.3d 147, 149, 154 (Tex.2008). As more fully discussed below, TCHRA claims must generally be filed within a 180-day limitations period. See TEX. LAB.CODE § 21.202(a) (West 2013). This 180-day limitations period has been construed as "`mandatory and jurisdictional' under Texas law." Pegram v. Honeywell, Inc., 361 F.3d 272, 281 (5th Cir.2004) (quoting Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 492 (Tex.1996) (per curiam)); accord. Collins-Pearcy
The parties do not dispute the facts relevant to the timeliness inquiry under § 21.202(a), only their legal significance. The Court therefore resolves the jurisdictional questions raised by UTB in its motion for summary judgment based on the undisputed facts just as a Texas court would. See Univ. of Tex. v. Poindexter, 306 S.W.3d 798, 806 (Tex.App.-Austin 2009) (citing Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004)) ("If, however, the facts relevant to jurisdiction are undisputed, the court should make the jurisdictional determination as a matter of law based solely on those undisputed facts.").
Sauceda filed her intake questionnaire with the TWC on March 19, 2010. Dkt. No. 32 Ex. L; Dkt. No. 59 Ex. A-9. She checked the box for a national origin claim and wrote "Hispanic" in the blank provided to identify her national origin. See Dkt. No. 59 Ex. A-9 at 1. In the blank provided for a list of "employees treated more fairly than you," Sauceda wrote "Carol Collinsworth" and "Lauran Schmid." Ibid. at 2. UTB increased Collinsworth and Schmid's salaries beginning in the 2008-09 academic year. See Memoranda of Appointment from Juliet V. Garcia, President, to Caroline Collinsworth & Lauran Schmid (Sept. 1, 2008), Dkt. No. 32 Ex. C-11 at 1, Ex. C-12 at 1. UTB hired Robertson to begin teaching in the 2009-10 academic year. Pl.'s First Am. Compl. 3, Dkt. No. 58.
Sauceda states in her First Amended Complaint that she sent an email message to the Interim Dean of the College of Business stating "that she expected a raise after the recent hiring of an accounting Ph.D. faculty member" on March 23, 2009. Id. She further alleges that she followed up with a second e-mail to the Interim Dean asking about a raise and stating "that she was earning $25,000 less than the new hire, Dr. Paul Robertson." Id. at 4.
Sauceda wrote December 22, 2009 — a date facially within the limitations period — in the space labeled "Date of First Harm" on her intake questionnaire. Dkt. No. 59 Ex. A-9 at 2. In the blank for "Employment Harms or Actions," Sauceda wrote "Raise denied." Id. She included the following narrative:
UTB does not challenge Sauceda's assertion that the December 22, 2009, event to which she refers in the intake questionnaire is a pair of e-mail messages between Sauceda and Alan Artibise ("Artibise") exchanged on that date. See Dkt. No. 59 Ex. A-8 at 18. Sauceda sent the first message to Artibise. See id. She wrote in that message: "At the beginning of this semester, I asked ... for a market adjustment
The parties disagree as to whether, under Texas law, Artibise's December 22, 2008, e-mail message and his subsequent failure to respond to Sauceda amount to an occurrence of an alleged unlawful employment practice which commenced the running of the limitations period for filing a claim with the TWC. Section 21.202 of the Texas Labor Code provides as follows:
TEX. LAB.CODE § 21.202 (West 2013).
Relying on the Texas Supreme Court's recent decision in Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500 (Tex. 2012), UTB contends that Sauceda had to file her national origin discrimination complaint within 180 days of March 28, 2007, when she "discovered" that Collinsworth and Schmid received pay increases. Dkt. No. 32 Ex. L at 2; Dkt. No. 59 Ex. A-9 at 2.
The Chatha court considered whether a professor timely filed a TCHRA charge two years after she received a promotion to full professor without an accompanying salary increase. See 381 S.W.3d at 503. The University promoted the plaintiff from the rank of associate professor to professor in 2004. Id. At that time, the plaintiff "complained to the University that her salary was inequitable but was told there were no funds available for a salary adjustment." Id. Approximately two years later, she filed a pay-discrimination complaint with the TWC. Id.
Chatha argued that her claim was timely because she received a paycheck within 180 days of filing her complaint, and she would have been paid more had she not been allegedly subjected to salary discrimination in 2004. See id. at 504. She invited the Texas Supreme Court to adopt the definition of the occurrence of an employment practice enacted by Congress in the Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5. See id. at 507. The Ledbetter Fair Pay Act amended the cognate limitations provision of Title VII of the Civil Rights Act of 1964 to provide that "an unlawful employment practice occurs... [, inter alia,] ... when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice." 42 U.S.C.A. § 2000e-5(e)(3)(A) (2013).
The Chatha court expressly declined the plaintiff's invitation and held that § 21.202 of the TCHRA does not incorporate the Ledbetter Act's definition of when a discriminatory act occurs. See 381 S.W.3d at 507-09. The Court reasoned the Texas legislature had not passed an analogous
Consequently, the Chatha court held that the standard enunciated in its prior cases construing § 21.202(a) as meaning that "the 180-day limitations period in the TCHRA commences `when the employee is informed of the allegedly discriminatory employment decision, not when that decision comes to fruition'" remains the law of Texas notwithstanding Congress's passage of the Ledbetter Fair Pay Act. Id. at 505 (quoting Specialty Retailers, 933 S.W.2d at 493). In reaching this conclusion, the Chatha court expressly acknowledged that its decision was consistent with that of the United States Supreme Court in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 127 S.Ct. 2162, 167 L.Ed.2d 982 (2007), which it described as "recogniz[ing] that a paycheck containing a discriminatory amount is not a present violation, but rather the effect of a prior act of discrimination." Chatha, 381 S.W.3d at 506 (citing Ledbetter, 550 U.S. at 628, 127 S.Ct. 2162). Reasoning that "[i]n pay discrimination cases, the setting of an alleged discriminatory pay rate is a discrete act — that is, the only act taken with a discriminatory motive is the pay-setting decision." Id. at 510. The Chatha court held that the plaintiff could not rely on the paychecks she received within the 180-day limitations period. Id. ("[s]ubsequent paychecks containing an alleged discriminatory pay amount are merely consequences of past discrimination and do not constitute an unlawful employment practice under the TCHRA.").
Because of the limitations provision in § 21.202(a), then, this Court has jurisdiction only over discrete acts of alleged discrimination which occurred on or after September 20, 2009, 180-days before Sauceda filed her charge with the TWC. See Chatha, 381 S.W.3d at 505. Because Sauceda stated in her intake questionnaire that on March 28, 2007, she "discovered" that UTB increased Collinsworth and Schmid's salaries beginning in the 2008-09 academic year, she had 180-days from March 28, 2007, to file a complaint based on that decision. This court lacks jurisdiction to consider her TCHRA national origin claim to the extent it is based on any decision made on or before March 28, 2007, to increase Collinsworth and Schmid's salaries. See Chatha, 381 S.W.3d at 510; Specialty Retailers, 933 S.W.2d at 492. Similarly, Sauceda's allegations in her First Amended Complaint demonstrate that she knew of Robertson's hire and his salary by the time she sent an e-mail message alleging that she earned $25,000 less than Robertson did. See Dkt. No. 58 at 4. This court therefore lacks jurisdiction over Sauceda's national origin claim to the extent it is based on pre-September 4, 2009, decision to hire Robertson and set his pay. See Chatha, 381 S.W.3d at 510.
However, the e-mail messages between Sauceda and Artibise which Sauceda alleges amount to a constructive denial of her request for a pay increase, include header fields facially showing that they were sent on December 22, 2009, within 180 days of March 19, 2010, See Dkt. No. 32 Ex. A-8 at 18. UTB argues that, like
The Chatha decision does not address the question of whether and in what circumstances the denial of a subsequent request for a pay increase amounts to a "mere continuation" of the original pay-setting decision. See id. at 510.
Because the parties do not cite any binding decisions of the Texas Supreme Court, this Court must hazard an Erie guess and "attempt to predict state law, not to create or modify it." Gines v. D.R. Horton, Inc., 699 F.3d 812, 816 (5th Cir. 2012) (quoting Am. Waste & Pollution Control Co. v. Browning — Ferris, Inc., 949 F.2d 1384, 1386 (5th Cir.1991)) (other citation omitted); See also Gaia Tech. Inc. v. Recycled Prods. Corp., 175 F.3d 365, 375 n. 11 (5th Cir. 1999) (making Erie guess on claims under Texas law where court had supplemental jurisdiction over state-law claims). In making an Erie guess, this Court "defer[s] to intermediate state appellate court decisions, unless convinced by other persuasive data that the higher court of the state would decide otherwise." Cerda v. 2004-EQR1 L.L.C., 612 F.3d 781, 794 (5th Cir.2010).
The Texas Supreme Court ruled that the issuance of a paycheck is not separately actionable in Chatha because "the discriminatory employment decision is the practice made with discriminatory intent." 381 S.W.3d at 509. According to the Chatha court, no discriminatory intent separate from the original pay-setting decision can be attributed to the decision to issue a paycheck. See id. at 509-10.
In Ledbetter, on which the Chatha Court relied, see id. at 506, the United States Supreme Court held that the denial of a request for a raise was not separately actionable as an intentional act of employment discrimination where the employee argued only that the timely raise denial "`carried forward' the effects of prior, uncharged discrimination decisions." 550 U.S. at 624-25, 127 S.Ct. 2162 (quoting petitioner's brief). The Chatha Court likewise grounded its holding on the TCHRA's requirement of discriminatory intent accompanied by a discrete act within the limitations period. Compare Ledbetter,
The Court therefore turns to Sauceda's First Amended Complaint and the undisputed evidence to determine whether she alleges discriminatory intent. In her First Amended Complaint and response to UTB's motion for summary judgment, Sauceda sets forth the substance of her e-mail message to Artibise requesting a raise on December 22, 2009, and Artibise's response that same day. See Dkt. No. 58 at 4-5; Dkt. No. 59 at 8-9. She then asserts that Artibise did not send a response.
In sum, then, Sauceda alleges only that she sent an e-mail message requesting a pay increase to Artibise, Artibise stated that he would "investigate it", and Sauceda heard nothing further from Artibise. This evidence is consistent with an intent to carry forward the prior pay-setting decision, and the Court predicts that Texas courts would decline to infer discriminatory intent in the absence of further allegations or evidence from the plaintiff. See
"In short, [the Equal Pay Act] demands that equal wages reward equal work." Siler-Khodr v. Univ. of Tex. Health Sci. Ctr. San Antonio, 261 F.3d 542, 546 (5th Cir.2001) (citing Corning Glass Works v. Brennan, 417 U.S. 188, 195, 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974)). The text of the Equal Pay Act provides:
UTB moves for summary judgment dismissing Sauceda's claim under the Equal Pay Act because, it argues, the pay differential between Sauceda and two male professors teaching in UTB School of Business resulted from factors other than sex.
"Unlike Title VII, the burden of persuasion may shift from the plaintiff to the defendant in a suit under the Equal Pay Act." Jones v. Flagship Intl., 793 F.2d 714 (5th Cir.1986). The plaintiff bears the initial burden of making out a prima facie case of discrimination under the Equal Pay Act by "showing that an employer compensates employees differently for equal work." King v. Univ. Healthcare Sys., L.C., 645 F.3d 713, 723 (5th Cir.2011) (citing Siler-Khodr, 261 F.3d at 546). To make out a prima facie case under the Equal Pay Act, a plaintiff must show that "1. her employer is subject to the Act; 2. she performed work in a position requiring equal skill, effort, and responsibility under similar working conditions; and 3. she was paid less than the employee of the opposite sex providing the basis of comparison." Chance v. Rice Univ., 984 F.2d 151, 153 (5th Cir.1993). If the plaintiff makes out a prima facie case, the burden of proof "shifts to the employer to show that the differential is justified under one of the Act's four exceptions." The four enumerated exceptions to the Equal Pay Act "are affirmative defenses on which the employer has the burden both of production and of persuasion." Jones, 793 F.2d at 722 (quoting Corning Glass Works, 417 U.S. at 197, 94 S.Ct. 2223).
A motion for Summary judgment must be granted when the movant establishes that the pleadings, affidavits, and other evidence available to the Court demonstrate that no genuine issue of material fact exists, and the movant is thus entitled
The non-movant has no duty to respond to a motion for summary judgment until the moving party carries its initial burden of showing that no genuine issue of fact exists. See Lockett, 337 F.Supp.2d at 891 (citing Ashe v. Corley, 992 F.2d 540, 543 (5th Cir.1993)). However, if the movant carries its burden, the non-movant must then come forward with specific evidence to show that there is a genuine issue of fact. Lockett, 337 F.Supp.2d at 891; see also Ashe, 992 F.2d at 543. The non-movant may not merely rely on conclusory allegations or the pleadings. Lockett, 337 F.Supp.2d at 891. Rather, it must cite specific facts identifying a genuine issue to be tried in order to avoid summary judgment. See FED. R. CIV. P. 56(e); Piazza's Seafood World, LLC, 448 F.3d at 752; Lockett, 337 F.Supp.2d at 891. "Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment." Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 & n. 7 (5th Cir.1992)). Thus, once it is shown that a genuine issue of material fact does not exist, "[s]ummary judgment is appropriate... if the non-movant `fails to make a showing sufficient to establish the existence of an element essential to that party's case.'" Arbaugh v. Y & H Corp., 380 F.3d 219, 222-23 (5th Cir.2004) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).
By its very nature, an affirmative defense generally "places the burden of proof on the party pleading it." Frame v. City of Arlington, 657 F.3d 215, 239 (5th Cir. 2011) (en banc) (footnote, quotation, and citations omitted); see also FED. R. CIV. P. 8(c). To succeed on a motion for summary judgment "[w]here the movant bears the burden of proof on an affirmative defense..., the movant `must establish beyond peradventure all of the essential elements of the defense to warrant judgment in his favor.'" Addicks Servs., Inc. v. GGP-Bridgeland, LP, 596 F.3d 286, 293 (5th Cir.2010) (internal quotation marks omitted) (quoting Chaplin v. NationsCredit Corp., 307 F.3d 368, 372 (5th Cir.2002) (ellipsis omitted)).
In a footnote to its motion for summary judgment, UTB states that it "does not concede that Plaintiff can establish a prima facie case and holds Plaintiff to her burden." Def.'s M. for Summ. J. 23 n. 7, Dkt. No. 32. Sauceda responds with arguments and summary-judgment evidence
Sauceda states in her declaration that UTB paid Robertson and D. Boyd more than it paid her for performing substantially similar work. See Dkt. No. 59 Ex. A ¶¶ 21, 25. Her summary-judgment evidence confirms the existence of a pay differential beginning when UTB hired Robertson and D. Boyd continuing through the 2011-12 academic year when Robertson left UTB and the 2012-13 academic year when D. Boyd left UTB.
To establish that she performed substantially similar work to Robertson and D. Boyd, Sauceda cites the deposition of Paul Otero ("Otero").
The record also includes evidence that Sauceda holds the rank of associate professor as did Robertson. See Sauceda Decl. ¶ 8, Dkt. No. 59 Ex. A; Decl. of Musa Essayyad ¶ 15, Dkt. No. 32 Ex. H. UTB did not, however, appoint Robertson with tenure; Sauceda, on the other hand, has earned tenure.
Relying primarily on the deposition of Hugh M. Shane ("Shane"), Dkt. No. 32 Ex. G, and the affidavit of Essayyad, id. Ex. G-H, UTB argues that its summary-judgment evidence establishes beyond peradventure that the salary differential between Sauceda on the one hand and Robertson and D. Boyd on the other is based on cognizable factors other than sex. Shane served as Dean of UTB's School of Business from the 2006-07 academic year through August of 2009, Shane Dep. At 21:17-18; Essayyad held the title of Associate Dean in that school from August 1, 2007 through July 23, 2012, Essayyad Aff. ¶ 2. In short, UTB asserts that it needed to pay Robertson and D. Boyd greater salaries to attract them to UTB and make their portfolio of scholarly publications and other accreditation-qualifying activities a part of the School of Business's accreditation application with the AACSB. See id. ¶ 12; M. for Summ. J. 28, Dkt. No. 32. As previously mentioned, supra, UTB further contends that forces of supply and demand for individuals with a Ph.D. in business seeking teaching positions also influenced the higher salaries for Robertson and D. Boyd in a phenomenon described as salary compression or inversion. See M. for Summ. J. at 29-31. Sauceda responds that UTB's alleged factor other than sex boils down to the contention that "the salary paid to a new employee is driven almost entirely by market forces the University must expend resources to attract qualified individuals in a market where other organizations have the same goal," and the Fifth Circuit held that a defendant cannot rely on such evidence alone to obtain summary judgment on a factor-other-than-sex defense in Siler-Khodr, 261 F.3d at 549.
In 1969, the Fifth Circuit held that only reasons which are "in harmony with the Congressional purpose [of the Equal Pay Act]: The elimination of those subjective assumptions and traditional stereotyped misconceptions regarding the value of women's work," amount to cognizable factors other than sex which justify a pay differential under that Act. Shultz v. First Victoria Nat'l Bank, 420 F.2d 648, 656 (5th Cir. 1969) (footnote omitted); see also Corning Glass Works v. Brennan, 417 U.S. 188, 210-11, 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974) (citing Griggs v. Duke Power Co.,
So long as it is consistent with the purposes of the Equal Pay Act
In his deposition, Shane testifies that UTB was pursuing AACSB accreditation when he joined the School of Business in 2006 and restarted the process by submitting a new application in the Spring of 2007. See Shane Dep. 14:12-16:5. AACSB accreditation rules required at least 50% of a school of business's faculty to have a terminal degree and meet the AACSB's definition of academically qualified ("AQ"). Essayyad Aff. ¶ 9. Other faculty may be professionally qualified ("PQ"). Id. ¶ 7 (discussing standards for PQ faculty); Dkt. No. 32 Ex. B-2 at 20, 24, 42 (setting forth accreditation standards).
Essayyad avers that the departure of three faculty members he considered to be AQ in 2006, 2007, and 2008, see Dkt. No. 32 Ex. C-20 to C-22, left UTB's School of Business with five faculty members in 2008-09 academic year. See Dkt. No. 32 Ex. H ¶¶ 6, 13. Based on a review of their history of publications and other AACSB-qualified intellectual contributions, Essayyad states that he did not consider Sauceda and one other professor with a terminal degree
Essayyad avers that UTB developed an action plan to strengthen its chances of obtaining AACSB accreditation. Essayyad Aff. ¶ 10. That plan included hiring AQ faculty members and supporting Sacueda's efforts to produce scholarly publications. See id. According to his declaration, Essayyad reviewed "salary information of peer institutions"
A reasonable fact finder viewing this evidence in the light most favorable to Sauceda could view UTB's actions are inconsistent with its assertion that the pay differential is based on the need to fortify the School of Business's AACSB application. See Siler-Khodr, 261 F.3d at 548; TXI Operations, L.P., 394 F.Supp.2d at 879. First, Essayyad states that UTB offered D. Boyd $8,000-per-year less after D. Boyd indicated that he did not want a tenure-track position. See Dkt. No. 32 Ex.
UTB also asserts that the salary differential was based on market forces of supply and demand for newly-hired accounting faculty, i.e., salary compression or inversion. See Essayyad Aff. ¶ 11; Dkt. No. 32 Ex. C-7 at 1 (asserting that AQ faculty salaries set based on market rate at time of hire). Essayyad states that he and the committee that eventually hired Robertson and D. Boyd consulted the salaries at peer institutions. Dkt. No. 32 Ex. H ¶ 11; see also Shane Dep. 29:19-30:13 (stating that market rate believed to be between $110,000 and $120,000). UTB also points to AACSB annual salary surveys for the 2008-09 academic year through the 2011-12 academic year which it contends tend to show that salaries for newly-hired faculty consistently exceed existing-faculty salaries and that salaries for new hires have increased at a greater rate than those of existing faculty in the same period.
Turning to the question of causation, without citing further summary-judgment evidence,
Indeed, the Fifth Circuit's opinion in Siler-Khodr, 261 F.3d at 549, placed the burden of production and persuasion on the defendant who relied an affirmative defense based purely on market forces. There, the defendant asserted that two factors other than sex formed the basis of its decision to pay a newly-hired male professor at an annual salary of $20,000 more than the female plaintiff who taught in the same department. See id. at 544. The university relied, among other things, on the testimony of a dean. See id. at 549. He testified "that the salary paid to a new employee is driven almost entirely by market forces [and] the University must expend resources to attract qualified individuals in a market where other organizations have the same goal." Id. The Siler-Khodr court rejected this evidence as insufficient to show that the pay differential was based on a factor other than sex, explaining that "[t]his Court has previously stated that the University's market forces argument is not tenable and simply perpetuates the discrimination that Congress wanted to alleviate when it enacted the [Equal Pay Act]." Id. (citing Brennan v. City Stores, Inc., 479 F.2d 235, 241 n. 12 (5th Cir.1973)).
The panel in Siler-Khodr, found the university's evidence regarding the market for professors to be similar to that of the defendant in City Stores. There, a department store argued that "the tighter market for salesmen and male tailors justifies [the defendant's] hiring of men with such skills at a rate higher than that paid to obtain women of similar skills." City Stores, 479 F.2d at 241 n. 12. Factors other than sex such as customer embarrassment
The opinion in Siler-Khodr does not indicate that the plaintiff produced any evidence tending to show that the market for professors from which her comparator was hired was infected with discriminatory stereotypes or assumptions as one would expect if the plaintiff bore the burden of production on that issue. See 261 F.3d at 549. Rather, the Fifth Circuit rejected the university's evidence as insufficient, implying that that the defendant had the burden of production, and, absent a showing by the defendant sufficient to obtain summary judgment, the unseen hand of the market does not enjoy a presumption that it is free from the discriminatory assumptions and stereotypes in the labor market Congress passed the Equal Pay Act to eradicate.
UTB does not expressly allege that it acted in good faith, but the Court briefly turns to Essayyad's statement that the salary-setting decisions here were "not based on gender, and we were not looking to hire a male faculty member but the most qualified applicant." Dkt. No. 32 Ex. H ¶ 11. The Court does not in this opinion make any finding or express any view concerning the intent of Essayyad or any of the UTB officials involved. That issue is not now before the Court. See King v. Univ. Healthcare Sys., L.C., 645 F.3d 713, 725 (5th Cir.2011) (citing 29 U.S.C. § 216(b) and Lowe v. Southmark Corp., 998 F.2d 335, 337 (5th Cir.1993)) ("Unless an employer can demonstrate that it violated the EPA in good faith and with reasonable grounds for believing it was not violating the Act, an award of liquidated damages is mandatory.").
For the foregoing reasons, the Court
It is so
401 U.S. at 436, 91 S.Ct. 849.
Relying on this language, the Court in City of Los Angeles, Dept. of Water and Power v. Manhart, 435 U.S. 702, 709, 98 S.Ct. 1370, 55 L.Ed.2d 657 (1978 (footnotes omitted)), writing of the Equal Pay Act, that acknowledged the facially neutral actuarial studies could identify differences in the life expectancies based sex, race, or national origin which had been used to justify requiring all female employees to make larger contributions to pension funds than male employees, "[b]ut a statute that was designed to make race irrelevant in the employment market, could not reasonably be construed to permit a take-home-pay differential based on a racial classification." Id. at 709, 98 S.Ct. 1370; see also id. at 711-14 & n. 24, 98 S.Ct. 1370 (explaining that differential was not based on a cognizable factor other than sex because only sex was used in classification of employees).
Equal Pay Act of 1963, Pub. L. No. 88-38 § 2, 77 Stat. 56, quoted in First Victoria Nat'l Bank, 420 F.2d at 658 n. 19.
