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Drum v. Leeson Electric Corp., No. 08-1678 (8th Cir. May 15, 2009); Duffett v. LaHood, No. 07-1831 (2d Cir. May 15, 2009)

| May 14, 2009 | Daily Developments in EEO Law |

To end the week, here’s a notably progressive decision from the Eighth Circuit construing the “factor other than sex” defense under the Equal Pay Act, as adopted by Title VII. And in an unpublished Second Circuit decision, a Rehabilitation Act trial results in an adverse jury verdict finding that the employee, an air traffic controller, was not regarded as substantially limited the major life activity of “work.”

Drum v. Leeson Electric Corp., No. 08-1678 (8th Cir. May 15, 2009):  Always heartening to see a good case emerge from the Eighth Circuit, and this is better than most.  Here is a summary of the facts:

“Drum began working for Leeson’s predecessor in 1990. In 1999, she was promoted to Human Resources Manager (HRM). In 2005, her HRM salary was $41,548. She was promoted to another position with a salary of $45,600. Her male HRM replacement, Thomas C. Crosier, was hired from outside the company at an annual salary of $62,500.”

The Equal Pay Act, Title VII and the Missouri Human Rights Act all borrow from the same framework, allowing the plaintiff to present a prima facie case that she was paid less than a similarly-situated male employee, and then giving the employer four affirmative defenses — the most commonly evoked being “factors other than sex.”  Although the defendant got summary judgment on the defense in this case, the Eighth Circuit reversed:

“It is undisputed that there is a pay differential between Crosier’s salary and Drum’s. His approximated the market rate while hers was well below it. Because they performed equal work, the burden of proof shifts to Leeson, which claims that the differential was based on a factor other than sex.

“Leeson fails to identify the factor other than sex. The district court interpreted the factor as: ‘Leeson hired Crosier because he was the most qualified candidate and Crosier required an annual salary of $62,500.’ This defense is insufficient as a matter of law. Justifying Crosier’s salary does not justify Drum’s salary. It is the differential that must be explained.”

Because the burden of proof is on the employer for this defense, the court holds that the record fails to establish the defense as a matter of law:

“Leeson asserts that Drum’s salary resulted from a hiring policy that set salaries slightly under industry averages, but Crosier was hired under a new ‘broad band salary structure.’ It is disputed whether the new policy was implemented before Crosier was hired. Still, Leeson submits that ‘since 2005, every new HRM hired from the outside under the new policy has been given a higher salary than that of the former HRM except one, who was given the same salary.’ However, Leeson provides only the names of the new and former HRMs, their genders, and their salaries. Because Leeson does not provide their education, experience, or other qualifications, Leeson’s data does not prove that the difference in salaries was due to a change in policy.
On this record, Leeson fails to prove as a matter of law that the pay differential between Drum’s and Crosier’s salaries was due to a factor other than sex. Therefore, summary judgment is inappropriate on the EPA and Title VII claims.”

Duffett v. LaHood, No. 07-1831 (2d Cir. May 15, 2009):  The plaintiff — whose disability is not disclosed in the opinion — asserted that he was blocked from resuming employment in his field.  “Duffett was assigned to various positions in the Department that fell within the broad field of air traffic control. Duffett was excluded, however, from positions involving ‘live’ air traffic control in light of the possibility that lingering effects of his
condition would interfere with his ability to perform this critical, public safety function.”

After losing at trial, the plaintiff took a pro se appeal on the issue of whether the jury’s finding — that he was not regarded as disabled by the agency, because he was not barred from a “broad class of jobs” — was unsupported by sufficient evidence.  Insofar as this issue was the employee’s burden, not the employer’s, it would appear that the standard of review would be steep and greased against plaintiff.  But the panel does not discuss this issue.  Instead, it holds that there was plenty enough evidence:  “As we explained in an
analogous case, an employer who regarded an employee “as disabled from police or other investigative or security jobs that involve a substantial risk of physical confrontation” did not regard that employee as ‘disabled’ within the meaning of the statute because no evidence indicated that the employer regarded the employee as disabled from a ‘broad class of jobs’ in the field, such as non-patrol police duty or private security and investigation, that might not ‘carry the same nature or degree of risk.’ Giordano v. City of New York, 274 F.3d 740, 749 (2d Cir. 2001). Based on the evidence admitted at trial, the jury could have relied on similar reasoning to conclude that the Department did not regard Duffett as having an impairment that substantially limited the major life function of working in the broad field of air traffic control, even though he was not permitted to work in positions involving ‘live’ air traffic control. Accordingly, sufficient evidence supported the jury’s verdict in favor of defendant.”

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