Tennessee Appeals Court Addresses Similarly Situated Standards

Sharon Hartman worked for Tennessee Tech for about 13 years as a Stock Clerk.  Her job was to purchase supplies and equipment, which required her to be intimately familiar with Tech's purchasing policies.  Tech fired Ms. Hartman after she made unauthorized purchases which exceeded the monetary limits of her authority.  The mistake was inadvertent but had Hartman followed the purchasing policies it would not have occurred.

In Ms. Hartman's sex discrimination claim under the Tennessee Human Rights Act, she argued she was similarly situated to a male named Parks who was plumbing shop supervisor.  Unlike Hartman, Parks was not charged with being familiar with Tech's purchasing policies.  On one ocassion, Parks ordered plumbing supplies which exceeded the same monetary limits.  Unlike Hartman, however, when Parks learned the supplies were over the limit, he rejected the order and went through the appropriate procedures for the purchase.

The court of appeals rejected Hartman's argument that she and Parks were similarly situated, explaining:

The duties and responsibilities listed on Ms. Hartman’s official job description include: “Maintains warehouse stock item inventory. Solicits, evaluates and awards bids; and orders warehouse stock items,” “Initiates bid process for warehouse stock items,” “Makes contract award recommendations to Purchasing [Office] regarding warehouse inventory stock items,” “Secures additional specification recommendations to Purchasing regarding warehouse inventory stock items.”

Troy Parks’s official job description, by contrast, does not contain a single reference to the purchasing guidelines or the bidding process. According to Ms. Hartman, Mr. Parks was required to work with a Buyer from the Purchasing Office, or someone with equivalent purchasing authority in order to make purchases. The affidavit of Dr. Michael Nivens, the director of Facilities and Business Services, states that “Troy Parks does not have the same kind of purchasing authority as [Ms. Hartman.] [Ms. Hartman] was a purchaser. Mr. Parks is not, and he is not expected to have the same level of knowledge regarding the purchasing policies.” The affidavit of Dr. Claire Stinson, the Vice-President for Finance and Planning, states, “[Troy Parks] is not expected to be familiar with the purchasing guidelines. It was a job requirement that [Ms. Hartman] be familiar with the purchasing guidelines.”

Ms. Hartman does not dispute these facts. Instead she contends the court should not consider the differing levels of responsibility and authority when evaluating whether she is similarly situated to Troy Parks. In essence, she asserts that the only relevant similarity in this case is the fact that both she and Mr. Parks were subject to the same purchasing rules and that they both violated those rules. We find no merit in this argument. It was a job requirement for Ms. Hartman to know and understand the purchasing policies because she had significant discretion in carrying out purchases using public funds. Mr. Parks on the other hand, required supervision when carrying out purchases, often times supervision by Ms. Hartman. He did not fail to fulfill an essential job requirement when he violated the purchasing policy.

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Moreover, Ms. Hartman’s conduct was different from Mr. Parks’s. Troy Parks voluntarily informed his supervisors about his order before the University was required to pay the supplier. By contrast, Ms. Hartman’s supervisors approached her after the first invoice arrived on the filters, which were custom made and non-refundable. Even at that time, she did not inform her supervisors that the order was not complete, and that a second invoice would be arriving. Ms. Hartman argues that the effects of her actions vis á vis those of Mr. Parks are irrelevant, because the fact remains that they both violated the same rule. Again, we disagree. It is significant that Mr. Parks voluntarily notified his supervisors at a time when the damage could be limited.

The decision is significant because it recognized that job responsibilities as well as differences in conduct may establish that two employees are not similarly situated. 

Glimpses – Three Recent Sixth Circuit Employment Decisions

The unpublished decisions I'll mention here do not warrant separate (or much) discussion so I'll just summarize the important parts.

One decision, Stimpson v. United Parcel Service, upheld UPS' firing of an employee over the employee's FMLA objections. The employee had been in a bike/car accident and had phoned UPS. The court held the employee had given adequate initial notice of his condition but ultimately rejected the argument that the employee's firing violated the FMLA. The court concluded that the employee had not shown he had a "serious health condition." The employee's medical records showed he had "suffered only contusions and mild to moderate back pain." The return to work forms the employee presented simply said he could not work "for medical reasons." This fell "far short" the court held, of establishing "(1) the date on which the serious health condition began, (2) the probable duration of the condition, (3) the appropriate medical facts within the health care provider's knowledge, and (4) a statement that the employee is unable to perform [his] job duties" as required by prior court decisions. Because the employee failed to show that "his back pain significantly limited his movement or lifting ability, particularly when treated with the prescription [the employee] refused to take", the employee could not establish he had a serious health condition.

The second decision, Johnson v. Interstate Brands Corp., upheld the firing of an employee for fighting. Fighting, of course, requires two (or more) employees and employers often draw pretty fine distinctions in the discipline imposed depending on who started the fight, who escalated it, whether blows were thrown (or made contact) and even the consequences of the fight. This decision is no different. Two female employees fought in the break room. The facts as to who did what were disputed including among the witnesses. One employee (who was not fired) threw water on the fired employee. The fired employee raised her arm to block the water and made contact with the other employee's arm. The employer decided to fire her because she made physical contact but its past disciplinary practices (these were union employees) would not have justified firing the employee who "merely" threw the water on the fired employee. The court upheld this distinction. Flinging water was not, the court said, the same as physically striking someone.

The final one, Harps v. TRW Automotive U.S. LLC, concerns an employer's change to retiree health care benefits. A lot could be written about this area of employment law. It is enough to say generally that when an employer agrees in a collective bargaining agreement to pay health care benefits to retirees, it must do so very carefully. Sixth Circuit law all but creates an irrefutable presumption that the retiree benefits (when established in a CBA) cannot be cancelled after the term of the CBA. Oddly, ERISA does not require retiree health benefits to be "vested." Employers, however, can do so by agreement and that is where the litigation battle occurs. Sixth Circuit caselaw on when language in a CBA will "vest" retiree health benefits is extremely favorable to retirees. So much so that unions and retirees file these kind of lawsuits in the Sixth Circuit even if none of the work was performed within Ohio, Tennessee, Kentucky or Michigan, the States that comprise the Sixth Circuit. These kind of lawsuits can be won, however. In this case, the Sixth Circuit held that the CBA unambiguously disclaimed the employer's obligation to provide retiree medical benefits beyond the term of the CBA. The CBA provision which governed the payment of retiree medical benefits concluded by saying "[t]his clause shall not be construed to convey any rights to those beyond the term of this agreement." I will caution that this level of contract drafting is not for the inexperienced. The costs of providing vested retiree medical benefits can be enormous and there are subtle wording issues that have cost employers significant amounts of money. I mention the Harps case simply because it is relatively rare when the employer wins one of these cases.

Preparing for Fair Pay Legislation - Part 9A

In my prior post, I emphasized the need to only group similar situated employees together. I should have mentioned another reason for this.

When defending a compensation discrimination claim, one of the initial battles that must be fought is over who are the proper comparators to the employee. In Ledbetter v. Goodyear Tire & Rubber Co., 127 S. Ct. 2162 (2007), for example, the district court upheld the jury's verdict of discrimination saying that the jury could have based its decision on Ledbetter's comparison to the highest paid of four managers (one other was, of course, Ledbetter).

Understand that the battle is not over who is the proper comparator but who are the proper comparators. If there is more than one comparator, the court should not permit the employee to make a comparison to only the highest paid or a higher paid employees. There is ample precedent for this in discrimination decisions:

"A plaintiff who wants a court to infer discrimination from the employer's treatment of comparable cases has to analyze a goodly sample.” Kuhn v. Ball State Univ., 78 F.3d 330, 332 (7th Cir. 1996). Another court of appeals refused to permit a plaintiff to rely upon a single comparator in an Age Discrimination in Employment Act case explaining that courts cannot view a comparison to a single member of a protected class in a vacuum. Simpson v. Kay Jewelers, 142 F.3d 639, 645-47 (3d Cir. 1998). And in Bush v. Commonwealth Edison Co., 990 F.2d 928, 931 (7th Cir. 1993), the Seventh Circuit opined that "a black plaintiff cannot establish racial discrimination by singling out one white person who was treated more favorably when there were other white persons who were treated less favorably than other black persons.”

To get to the point, when employers group similarly situated employees together "on the same page" that makes it much easier for a revewing agency or court to agree that the comparison to the group not to just the highest paid individual is the appropriate comparison.

Preparing for Fair Pay Legislation - Part 9

This is the fourth part of guidance on how employers can better protect themselves from compensation discrimination claims.

#5 – Group employees into similarly situated job groups

The very first instruction the EEOC states in the Compensation Discrimination Compliance Manual is “Investigators should identify similarly situated employees both inside and outside the charging party's protected class.”

Therefore, in setting salaries or salary increases, if comparisons are made between or among employees (as they almost always are), the employee groupings should be unambiguously defined and the grouping should be limited to employees who are similarly situated.
Avoid the expediency of lumping employees into one or two ill-defined categories in which the employees do not perform the same or similar work.

Why? The Equal Pay Act looks to whether the compared employees are performing “equal work;” Title VII examines whether the plaintiff’s job is “similarly situated” to the jobs worked by the comparators. Employers who “compare” the salaries of employee “A” with employee “B” will have a more difficult time proving that they were not really working in comparable jobs. If you must group dissimilar jobs (say, for purposes of dividing up a finite pot of money), make sure the paperwork unambiguously states the reason for the grouping.

Group employees by the job being performed – not by the characteristics of the employee who holds the job. Beck-Wilson v. Principi, 441 F.3d 353, 363 (6th Cir. 2006) (“the comparison at the prima facie stage is of the jobs and not the employees”). An employee who has worked for 10 years may rightly deserve (all other things being equal) to be paid more than an employee who has worked 5 years, but if they perform the same or similar job, they should be included in the same comparison group. The relative experience, of course, may be used to justify any salary disparity.

When investigating or prosecuting a claim of compensation discrimination, the EEOC (or OFCCP as the case may be) can and will "revise" an employer’s pay categories in order to compare employees who are performing the same or similar work. The EEOC instructs its investigators:

The investigator should determine the similarity of jobs by ascertaining whether the jobs generally involve similar tasks, require similar skill, effort, and responsibility, working conditions, and are similarly complex or difficult. The actual content of the jobs must be similar enough that one would expect those who hold the jobs to be paid at the same rate or level. Job titles and formal job descriptions are helpful in making this determination, but because jobs involving similar work may have different titles and descriptions, these things are not controlling. Similarly, the fact that employees work in different departments or other organizational units may be relevant, but is not controlling.
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Factors other than job content also may be important in identifying similarly situated comparators. For example, minimum objective qualifications, such as a specialized license or certification should be taken into account. Persons in jobs requiring certain minimum objective qualifications should not be grouped together with persons in jobs that do not require those qualifications, even though the jobs otherwise are similar. Although minimum objective qualifications should be taken into account in defining the pool of similarly situated employees, employees' relative qualifications should not be considered at this stage.