Basting v. San Francisco Bay Area Rapid Transit District ( 2021 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 KAREN BASTING, Case No. 20-cv-05981-SI 8 Plaintiff, ORDER GRANTING DEFENDANT'S 9 v. MOTION FOR SUMMARY JUDGMENT 10 SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT, Re: Dkt. No. 31 11 Defendant. 12 13 Before the Court is a Motion for Summary Judgment filed by defendant San Francisco Bay 14 Area Rapid Transit District (“BART”) against plaintiff Karen Basting on September 24, 2021. Dkt. 15 No. 31. The Court reviewed the parties’ briefs and held a hearing on November 19, 2021. After 16 careful consideration of the arguments raised and the materials submitted, the Court will GRANT 17 defendant’s Motion for Summary Judgment. 18 19 BACKGROUND 20 In 2019, BART commissioned Segal Waters Consulting to conduct a study on BART’s 21 employee classification and compensation practices. Compl. ¶ 12 (“Segal Study”). Historically, 22 BART has classified its non-represented employees into various “pay bands,” wherein each pay 23 band has a range of approximately $50,000. Dkt. No. 31-3 ¶ 4. Among other things, the Segal 24 Study recommended that BART bump salaries to the midpoint for all employees who (i) had two or 25 more years of service within a classification, and (ii) were below the midpoint of the salary band. 26 Id. ¶ 10. To implement the recommendation in such a way as to maintain “fiscal responsibility,” 27 BART granted salary increases to the midpoint for all sub-midpoint employees who had been in 1 their classification for two or more years as of June 30, 2019. Dkt. 31-3, Ex. D at 47. 2 Karen Basting become BART’s Manager of Customer Service on January 19, 2018. Compl. 3 ¶ 9. The Segal Study would later re-classify her as the Director of Customer Service within the 4 Office of External Affairs. Dkt. No. 31-3 ¶¶ 9, 14. Practically speaking,1 Basting had occupied her 5 classification for 18 months and was below the mid-point of her salary band when BART 6 implemented the Segal Study’s recommended salary increases. Because Basting was not in her 7 classification for at least two years as of June 30, 2019, BART did not increase Basting’s salary to 8 the midpoint. Dkt. No. 37 at 9 (Basting’s Opposition) (collecting deposition testimony that the 9 “only reason” Basting was not given a raise was due to not meeting the two-year cutoff). Basting 10 tried to negotiate for an exception to the two-year rule, to no avail. See id. (detailing unsuccessful 11 efforts to negotiate). When Basting finally reached two years in her classification, she again 12 attempted to negotiate an increase. Dkt. No. 38-1 at 49, Ex. O. Basting’s request was again denied. 13 BART informed her that it had “no intent to continue making adjustments on a rolling basis after 14 the implementation” of the Segal Study. Id. 15 The Office of External Affairs had three other Directors in addition to Basting: Aaron 16 Weinstein, Director of Marketing and Research; Roddrick Lee, Director of Government Relations; 17 and Alicia Troost, Director of Communications. Dkt. No. 31-3 ¶ 14. The three other Directors— 18 two men, one woman—all received pay increases pursuant to the Segal Study because they had been 19 in their classification for at least two years as of June 30, 2019 and were below the midpoint. Id. 20 Basting sued BART on July 10, 2020 in state court. The case was subsequently removed to 21 this Court. In Basting’s view, BART’s refusal to grant her a salary increase to the midpoint both 22 before and after she had secured two years in her classification amounted to wage discrimination 23 based on gender. As Basting sees it, BART gave the salary increase to the two male Directors who 24 occupied nearly identical roles but refused to give her an increase. The complaint alleged (1) 25 violations of the federal and state Equal Pay Acts, (2) Title VII discrimination, and (3) retaliation 26 under state law. Now before the Court is BART’s Motion for Summary Judgement on all claims. 27 1 Dkt. No. 31. In the briefing for the motion, Basting agreed to drop the retaliation claim. 2 Accordingly, the Court only considers whether summary judgment should issue in favor of BART 3 on Basting’s state and federal Equal Pay Act claims and the Title VII discrimination claim. 4 5 LEGAL STANDARD 6 The Court should grant summary judgment “if the movant shows that there is no genuine 7 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 8 Civ. P. 56(a). The moving party bears the initial burdens of production and persuasion. Nissan Fire 9 & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). If the movant meets 10 its initial burden, the opposing party must go beyond the pleadings and “by its own evidence set 11 forth specific facts showing that there is a genuine issue for trial.” Far Out Productions, Inc. v. 12 Oskar, 247 F.3d 986, 997 (9th Cir. 2001). Importantly, the Court cannot weigh conflicting evidence, 13 and all justifiable inferences must be drawn in favor of the non-movant. Matsushita Elec. Indus. 14 Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). 15 16 DISCUSSION 17 I. Equal Pay Act Claims 18 A. Applicable Law 19 The federal Equal Pay Act (“EPA”) bars employers from paying different wages for “equal 20 work,” on the basis of sex. 29 U.S.C. § 206(d). In a lawsuit brought under the EPA, the “plaintiff 21 has the burden of establishing a prima facie case of discrimination by showing that employees of 22 the opposite sex were paid different wages for equal work.” Stanley v. Univ. of S. California, 178 23 F.3d 1069, 1073–74 (9th Cir. 1999). Perfect equality is not required. Rather, a plaintiff may 24 demonstrate that jobs are “substantially equal.” Id. at 1074 (the “crucial finding on the equal work 25 issue is whether the jobs to be compared have a ‘common core’ of tasks, i.e. whether a significant 26 portion of the two jobs is identical.”). To do so, the Court must consider the “specific facts involved” 27 rather than generalizations based on job titles. Id.; 29 CFR § 1620.13(e). For example, two jobs 1 Coll. of Educ., 718 F.2d 910, 914 (9th Cir. 1983) (reversing a finding that a teacher who spent 100% 2 of her time teaching lecture classes held a job that was “substantially similar” to a teacher who spent 3 75% of his time lecturing and 25% of his time coaching varsity basketball). 4 Even if a plaintiff makes out a prima facie case of different pay for equal work, a “defendant 5 may rebut a prima facie case by showing that the disparity in pay” is pursuant to “(i) a seniority 6 system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of 7 production; or (iv) a differential based on any other factor other than sex.” Stanley, 178 F.3d at 8 1075; 29 U.S.C. § 206(d)(1). These four justifications operate as “affirmative defenses to EPA 9 claims.” Rizo v. Yovino, 950 F.3d 1217, 1219 (9th Cir. 2020). Notably, the fourth justification, “any 10 other factor other than sex,” must still somehow relate to “job experience, job qualifications, and 11 job performance.” Rizo, 950 F.3d at 1224, 1226 (declining to adopt an “expansive reading of the 12 fourth exception” because the “equal-pay-for-equal-work mandate would mean little if employers 13 were free to justify paying an employee of one sex less than an employee of the opposite sex for 14 reasons unrelated to their jobs.”). 15 Once a defendant provides an acceptable justification for the pay differential, the plaintiff 16 may nonetheless defeat summary judgment by showing “that the employer’s proffered 17 nondiscriminatory reason is a ‘pretext for discrimination.’” Stanley, 178 F.3d at 1076. Plaintiff’s 18 burden to demonstrate a material fact regarding pretext is “minimal,” id., and may be met by offering 19 some “meaningful evidence” that “undermine[s]” the defendant’s assertion that its differential 20 treatment was based on an acceptable factor. Id. See also EEOC v. Maryland Ins. Admin., 879 F.3d 21 114, 121 (4th Cir. 2018) (“once the plaintiff has established a prima facie case the employer will not 22 prevail at the summary judgment stage unless the employer proves its affirmative defense so 23 convincingly that a rational jury could not have reached a contrary conclusion.”). 24 25 B. Analysis 26 Basting’s complaint alleges that BART violated the EPA when it refused to raise her salary 27 to the midpoint range of her classification while granting raises to the male directors in the Office 1 BART submits that it declined to raise Basting’s salary because, unlike the other directors in her 2 office (two males and one female), Basting had not occupied her classification for at least two years 3 as of June 30, 2019. The Court finds that even if Basting were able to show a genuine issue of 4 disputed fact whether her position was “equal” to the other directors, summary judgment would be 5 appropriate were BART able to prove “not simply” that the two-year rule “could explain the wage 6 disparity,” but that the two-year rule does “in fact explain the wage disparity.” Rizo, 950 F.3d at 7 1222 (9th Cir. 2020), quoting EEOC, 879 F.3d at 121. Stated differently, if Basting is unable to 8 demonstrate a genuine dispute of material fact as to BART’s proffered affirmative defense, the Court 9 may grant the motion without resolving the “equal work” component of the EPA claim. 10 BART submits that the Segal Study’s recommended pay bumps were applied uniformly to 11 all non-represented employees who met the criteria, irrespective of gender. Dkt. No. 31-3 ¶¶ 10, 12 14. Further, as applied to all non-represented employees, women fared better than men under the 13 policy. Id. at 51, Ex. E (Disparate Impact Study). As arbitrary as the two-year bright line cut off 14 might appear to Basting, BART’s uniform criteria for increasing the salaries of the other directors 15 in Basting’s office (i.e., two men and one woman) constitutes an acceptable “differential based on 16 any other factor other than sex.” 29 U.S.C. § 206(d)(1). 17 The “any other factor” may incorporate job-related elements such as “shift differentials, 18 differences based on time of day worked, hours of work, lifting or moving heavy objects, and 19 differences based on experience, training, or ability.” Rizo, 950 F.3d at 1226, citing H.R. Rep. No. 20 88-309, at 3 (1963). Critically, the “any other factor” must relate “to the job for which an EPA 21 plaintiff must demonstrate unequal pay for equal work.” Rizo, 950 F.3d at 1227. The Ninth Circuit 22 thus held in Rizo that a pay differential based on a plaintiff’s prior pay in “a different job” was not 23 sufficiently job-related as to justify the differential wage. Id. Here, BART implemented the two- 24 year cutoff per the Segal Study’s observation that an employee would generally achieve 25 “proficiency” within their job classification after two years. Dkt. No. 38-1 at 49, Ex. O. Unlike 26 prior pay, BART’s proficiency presumption was not exogenous to the job at issue; it relates directly 27 to the job on which the EPA claim is predicated. Accordingly, the factor is sufficiently job-related 1 time pay bumps were pursuant to a “seniority system.” 2 Basting fails to dispute that BART consistently adhered to the two-year rule when justifying 3 the salary differential. Even Basting’s own opposition brief cites record evidence indicating that 4 “the only reason Ms. Basting was not put at midpoint was because she was not in her classification 5 for two years.” Dkt. No. 37 (Oppo) at 9 (emphasis added); Id. (“Mr. Hathorn also confirmed that 6 the only reason Aaron Weinstein was placed at midpoint was because he had two years in his 7 classification.). In passing, Basting states that BART “negotiated” increases with “some 8 employees” who did not meet the cutoff, id. at 11, citing Dkt. No. 38-2 at 25 (Hathorne Deposition), 9 perhaps to suggest that the two-year rule was not uniformly applied. However, the relevant 10 deposition testimony indicates that the “some employees” referred to were part of the AFSCME 11 union and were thus not the subject to Segal Study (which applied to non-represented employees). 12 Accordingly, these “some employees” do not create an issue of material fact as to whether the Segal 13 Study’s two-year rule “do[es] in fact explain” the differential among non-represented employees. 14 Rizo, 950 F.3d at 1222 (9th Cir. 2020), quoting EEOC, 879 F.3d at 121 15 Basting also points to BART’s subsequent refusal to increase her salary after she reached 16 her two-year anniversary as evidence of gender discrimination. But this evidence cuts the other 17 way. It demonstrates BART’s uniform adherence to its decision to bump salaries only to those 18 employees who were in their classification for two years as of June 30, 2019. Finally, Basting 19 argues that the Court should infer pretext from BART’s “shifting reasons” for not placing her at the 20 midpoint at the salary scale. On the one hand, she argues, BART justifies the differential based on 21 “unequal work,” and on the other hand, BART states the differential is based solely on the two-year 22 policy. But these are not shifting reasons; they are arguments directed at different levels of the 23 EPA’s analytical structure. The first point, which attempts to distinguish the skills required for the 24 positions, attacks the formation of a prima facie case. The second point, which provides a non- 25 discriminatory justification, acts as an affirmative defense to an established prima facie case. See 26 Freyd v. Univ. of Oregon, 990 F.3d 1211, 1223 (9th Cir. 2021); Hein, 718 F.2d at 913 (“Once the 27 plaintiff has established a prima facie case, the burden shifts to the employer to prove that the 1 Because BART has tendered a factually supported and gender-neutral reason for the pay 2 difference per 29 U.S.C. § 206(d)(1)(iv), and because Basting has failed to meet her “minimal 3 burden” to suggests that the two-year policy is a façade for gender discrimination, Basting’s federal 4 Equal Pay Act claims fail even if she could establish a prima facie case. 5 6 II. California Equal Pay Act Claims 7 Plaintiff’s claims under the analogous California Equal Pay Act fail for the same reasons as 8 her federal claim. Even if California’s statute offers a more liberal conception of “equal work,” 9 (i.e., “substantially similar work”), BART’s two-year policy constitutes a “bona fide” factor for the 10 pay difference that is (1) not based on sex, (2) is job-related, and (3) is consistent with a business 11 necessity. California Labor Code 1197.5 (a)(1)(D). As discussed above, the two-year rule applied 12 to all employees uniformly. A female director in Basting’s office who met the two-year cutoff was 13 thus given a pay bump, indicating that the factor was not based on sex. The factor was job related, 14 as the two-year rule was used as a proxy for proficiency within a classification. Dkt. No. 38-1 at 15 49, Ex. O. Finally, the factor was related to business necessity. BART decided on a one-time pay 16 bump based on the two-year cutoff in order to implement the Segal Study’s recommendation in a 17 financially viable manner. Dkt. 31-3, Ex. D at 47. Bastings fails to offer record evidence that would 18 call into question the factual predicates of BART’s “bona fide” reason. Accordingly, BART is 19 entitled to summary judgment on the California Equal Pay Act claims. 20 21 III. Title VII Discrimination 22 To meet the initial burden for a Title VII discrimination claim, a “plaintiff must offer 23 evidence that gives rise to an inference of unlawful discrimination, either through the McDonnell 24 Douglas framework or with direct evidence of discriminatory intent.” Siring v. Oregon State Bd. of 25 Higher Educ. ex rel. E. Oregon Univ., 927 F. Supp. 2d 1030, 1053 (D. Or. 2012). Direct evidence 26 of discriminatory intent may include “conduct or statements” by relevant decision-makers “that may 27 to infer that the attitude was more likely than not a motivating factor in the employer’s decision.” 1 2 Enlow v. Salem–Keizer Yellow Cab Co., 389 F.3d 802, 812 (9th Cir. 2004). 3 Under the McDonnell Douglas framework, a female plaintiff’s prima facie case of gender 4 discrimination must show that she was denied an employee benefit despite performing her job 5 satisfactorily while similarly qualified male employees received the benefit. See McDonnell 6 Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) (describing the test for racial discrimination 7 claims). If the plaintiff establishes a prima facie case, the burden shifts to the defendant to 8 “articulate some legitimate, nondiscriminatory reason” for the differential treatment. Id. Once a 9 10 defendant makes such a showing, the burden shifts back to the plaintiff to offer evidence that the 11 articulated reason is pretextual. Id. at 804. “Especially” relevant evidence of pretext can include 12 evidence that the employer did not uniformly apply the stated criterion across male and female 13 employees; facts “as to the petitioner’s treatment of respondent during his prior term of employment; 14 petitioner’s reaction, if any, to respondent’s legitimate civil rights activities; and petitioner’s general 15 policy and practice with respect to [female] employment.” Id. 16 As in the Equal Pay Act claims, BART submits that Basting was treated differently from the 17 18 male Directors of Marketing and Government Relations was because she, unlike the other Directors, 19 had not been in her classification for at least two years as of June 30, 2019. Given this legitimate 20 and nondiscriminatory reason for the pay difference, Basting counters that “[a]lthough BART 21 negotiated with some employees, BART did not negotiate with me to increase my salary to the 22 midpoint even after multiple attempts to negotiate BART’s decision to not place me at the midpoint 23 equal to the two male Directors.” Dkt. No. 39 ¶ 7. But to establish that BART did not uniformly 24 25 apply its policy, Basting needs to point to evidence that non-represented male employees who 26 occupied their roles for less than two years were given a salary increase to the midpoint. Conclusory 27 allegations that “BART negotiated with some employees” does not provide the required evidentiary 1 from which a fact finder could infer discriminatory intent. 2 CONCLUSION 3 For the reasons articulated above, BART’s Motion for Summary Judgment is GRANTED. 4 IT IS SO ORDERED. 5 Dated: December 6, 2021 Ste WU tee 6 ON ae 7 SUSAN ILLSTON United States District Judge 8 9 10 11 12 15 16 & = 17 Z 18 19 20 21 22 23 24 25 26 27 28