Hitesman v. University of Utah

2021 UT App 99THE UTAH COURT OF APPEALS
MISTY VONDELL HITESMAN,
Appellant,
v.
UNIVERSITY OF UTAH,
Appellee.
Opinion
No. 20190884-CA
Filed September 23, 2021
Third District Court, Salt Lake Department
The Honorable Mark S. Kouris
No. 170900636
Mary J. Woodhead, Attorney for Appellant
Sean D. Reyes and J. Clifford Petersen, Attorneys
for Appellee
JUDGE JILL M. POHLMAN authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and DIANA HAGEN concurred.
POHLMAN, Judge:
¶1 For nearly nine years, Misty Vondell Hitesman worked as
a sponsored project officer at the University of Utah in its Office
of Sponsored Projects (the OSP). After resigning in 2017, she
brought a claim against the University for violations of the Equal
Pay Act of 1963, a federal statute that protects against wage
discrimination based on sex.
¶2 The University moved for summary judgment, arguing
that it paid Hitesman less than her male colleagues due to factors
other than gender. The district court was persuaded and granted
the University’s motion. Hitesman now appeals, contending that
there are material questions of fact that preclude summary
judgment on her claim. We agree and reverse.
Hitesman v. University of Utah
BACKGROUND1
The OSP
¶3 The University hired Hitesman in January 2008 to work in
the OSP as a sponsored project officer. In that role, Hitesman
primarily analyzed and facilitated the assignment, allocation,
and budgeting of grants and contracts brought to the University
by faculty. She also ensured that grants complied with federal
law and University policies.
¶4 Hitesman was just one of many sponsored project officers
in the OSP, including W.E. and J.P.—both men. W.E. was hired
by the University more than a decade before Hitesman; J.P. was
hired one and a half years after Hitesman. All three employees
were paid different salaries and all were supervised by B.B.,
Director of the OSP (Director). Director assigned work to the
sponsored project officers and he was aware of, and had input
on, the salaries they received.
The Salaries
¶5 In 2008, Hitesman’s starting salary was $53,325. When she
resigned nine years later, her salary had increased by
approximately $6,000—to $59,648.
¶6 According to Director, the OSP bases salary on “an
individual’s duties, competency, experience, performance, and
market forces and not on gender. It considers an employee’s
duties, seniority, performance, work load, experience, market
rates, and education . . . .” Director would, at times, advocate for
salary adjustments for sponsored project officers in the OSP,
1. When reviewing a grant of summary judgment, we view “the
facts in a light most favorable to the losing party below.”
Goodnow v. Sullivan, 2002 UT 21, ¶ 7, 44 P.3d 704 (cleaned up).
20190884-CA 2 2021 UT App 99Hitesman v. University of Utah
although not always at the same rates. In 2013, Director
advocated for a salary increase for Hitesman and other OSP
employees so as to compensate them “commensurate with their
experience levels.” Director did the same in 2014, explaining that
the “minimal increases” Hitesman in particular had received
since she joined the OSP “ha[d] certainly not kept pace with the
skills and experience that [she] ha[d] gained over the last 6
years.”
¶7 Although Hitesman was consistently paid less than
W.E.—who was making $75,940 at the time of Hitesman’s
resignation—her salary was “generally on par” with J.P.’s until
“approximately the first part of 2013.” By the time Hitesman
resigned in 2017, J.P.’s salary had increased to $68,340—nearly
$9,000 more than Hitesman’s.
The Pay Disparity Explanations
¶8 Director testified that W.E.’s twenty-year “career and
experience at age 66 justify a salary differential in relation to
Hitesman’s approximately 9 years with the OSP.” Director also
compared the number of “transactions” W.E. completed against
the number Hitesman completed between July 1, 2013, and June
30, 2015. W.E. completed 831 transactions compared to
Hitesman’s 269.
¶9 In comparing J.P. to Hitesman, Director testified that J.P.’s
higher salary was “supported by [his] very good performance
and high quantity of work in relation to his peers,” including
Hitesman. Between July 1, 2013, and June 30, 2015, J.P.
completed 390 transactions compared to Hitesman’s 269.
¶10 Director also attributed Hitesman’s lower pay raise in
2016 in comparison to her male colleagues to her “low
productivity, and her failure to build positive working
relationships in performing her work.” In addition, Director
referenced a complaint he received in 2013 from a faculty
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member “about Hitesman’s performance, professionalism, and
attitude.” However, one of Hitesman’s other supervisors told
her that the faculty member was a “habitual complainer,” and
the complaint never led to a written notice or any other
discipline. (Cleaned up.)
¶11 In fact, during Hitesman’s tenure at the OSP, she never
received any written evaluation or other written notice that her
performance “was other than acceptable.” Hitesman received
her last formal evaluation in 2013 and was told she “[met]
expectations.” She “never received another formal evaluation
and never received any written evaluation or other written
notice that [her] performance was other than acceptable.”
Instead, she “often received positive feedback from departments
with whom [she] worked.”
¶12 With regard to productivity, Hitesman had no ability to
influence the number of transactions her assigned departments
received. Some transactions could be “very simple and take very
little time to negotiate and finalize,” while others “involved
substantial work and were more difficult depending on the other
party and the research or other work involved.” Further, during
Hitesman’s time at the OSP, “discussions of productivity,
performance and customer service were not tied to numbers of
transactions” and “[p]roductivity statistics were never part of
salary or performance reviews.” Director “never indicated that
he considered numbers of transactions when determining the
salaries of other employees,” nor did he keep Hitesman up to
date on her transaction rates.
The Litigation
¶13 After resigning in 2017, Hitesman sued the University
under the Equal Pay Act, alleging that the University paid her
less than several male employees, including W.E. and J.P., for
performing the same work.
20190884-CA 4 2021 UT App 99Hitesman v. University of Utah
¶14 Following discovery, the University filed a motion for
summary judgment in which it argued that Hitesman had not
established a prima facie case under the Act because “the work
she performed was not substantially equal to that of the male
employees she name[d] as comparators.” In the alternative, the
University invoked affirmative defenses under the Act and
claimed that Hitesman’s lower pay was based on factors other
than her gender. Specifically, it argued that W.E. and J.P. were
paid more than Hitesman because of their higher transaction
numbers. It further justified Hitesman’s lower salary by pointing
out that Director had “received complaints about Hitesman’s
unprofessional work performance” but had not received
comparable complaints about J.P. Lastly, regarding W.E., the
University argued that his higher salary was, at least in part, due
to his years of experience.
¶15 The district court first determined that Hitesman “was
unable to meet her prima facie burden as it related to” five of the
employees she named in her complaint.2 Next, it rejected the
University’s argument that Hitesman could not make out a
prima facie case for an Equal Pay Act claim regarding W.E. and
J.P. But the court agreed with the University that Hitesman’s
difference in pay was based on either a “system that measures
earnings by quantity [or quality]” or “factors other than sex.”
(Cleaned up.) The court thus granted the University’s motion
and dismissed Hitesman’s claim. Hitesman appeals.
2. Hitesman does not challenge the district court’s determination
that she failed to establish a prima facie case for those five
employees. Thus, we do not address the merits of Hitesman’s
claim relative to those five employees, and the court’s ruling on
that point remains intact.
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ISSUE AND STANDARD OF REVIEW
¶16 Hitesman contends that the district court improperly
granted summary judgment in the University’s favor on her
claim for violations of the Equal Pay Act. In reviewing a district
court’s grant of summary judgment, we review its legal
conclusions and its ultimate grant of summary judgment for
correctness. Cochegrus v. Herriman City, 2020 UT 14, ¶ 14, 462
P.3d 357.
ANALYSIS
¶17 The district court rejected the University’s argument that,
on summary judgment, Hitesman could not make out a prima
facie case for Equal Pay Act violations with regard to two of her
coworkers: W.E. and J.P. Still, it granted summary judgment to
the University on Hitesman’s claim, concluding that the
University established one of two statutory affirmative defenses
to the pay disparity between Hitesman and her male colleagues.
Citing W.E.’s twenty years of experience and the men’s greater
transaction numbers, the court concluded that the University
demonstrated, as a matter of law, that the pay disparity was
attributable to “a system which measures earnings by quantity
or quality of production” or a “factor other than sex.” 29 U.S.C.
§ 206(d)(1)(iii), (iv).
¶18 Hitesman appeals, challenging the district court’s
determination that the University proved any one affirmative
defense as a matter of law. Specifically, she contends that
questions of material fact regarding why W.E. and J.P. were paid
more preclude summary judgment in the University’s favor. In
contrast, the University defends the court’s decision, arguing
that it firmly established an affirmative defense to Hitesman’s
claim. Alternatively, the University invites this court to affirm on
the ground that Hitesman cannot make a prima facie case.
20190884-CA 6 2021 UT App 99Hitesman v. University of Utah
¶19 “Summary judgment is only appropriate ‘if the moving
party shows that there is no genuine dispute as to any material
fact and the moving party is entitled to judgment as a matter of
law.’” Arnold v. Grigsby, 2018 UT 14, ¶ 8, 417 P.3d 606 (quoting
Utah R. Civ. P. 56(a)). Accordingly, “[t]he district court must
deny a motion for summary judgment if it finds that there is a
genuine issue of material fact that bears on its legal
determination or if it finds, as a matter of law based on the
undisputed facts, that the moving party is not entitled to a legal
ruling in its favor.” Normandeau v. Hanson Equip., Inc., 2009 UT
44, ¶ 9, 215 P.3d 152. To determine whether a genuine factual
dispute exists, we ask “whether reasonable jurors, properly
instructed, would be able to come to only one conclusion, or if
they might come to different conclusions, thereby making
summary judgment inappropriate.” Cochegrus v. Herriman City,
2020 UT 14, ¶ 14, 462 P.3d 357 (cleaned up).
¶20 We begin our analysis by discussing the contours of and
the parties’ relative burdens under the Equal Pay Act—a federal
statute that has received little attention from Utah courts.3 We
then address the issue of Hitesman’s prima facie case and the
University’s contention that she has failed to demonstrate that
she received unequal pay for substantially equal work. Finally,
we address Hitesman’s challenge to the district court’s
3. As best we can tell, the only Utah appellate case addressing
the Equal Pay Act is Kopp v. Salt Lake City, 506 P.2d 809 (Utah
1973), in which the Utah Supreme Court concluded that “the test
as to discrimination in rate of pay cannot properly be based
solely upon whether the plaintiff was doing the same work,
and/or with the same degree of competence as other employees,
but can also be determined on the basis of classification,
seniority and other factors,” including experience and training.
Id. at 811 & n.2.
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determination that the University has established at least one
statutory affirmative defense as a matter of law.
A. The Equal Pay Act
¶21 Congress enacted the Equal Pay Act in 1963 to remedy “a
serious and endemic problem of employment discrimination in
private industry” by mandating equal pay for equal work
regardless of an employee’s sex. See Corning Glass Works v.
Brennan, 417 U.S. 188, 195 (1974) (noting congressional concerns
that “the wage structure of many segments of American
industry has been based on an ancient but outmoded belief that
a man, because of his role in society, should be paid more than a
woman even though his duties are the same” (cleaned up)). The
Act requires employers to pay employees the same wages it pays
to “the opposite sex” for equal work that requires “equal skill,
effort, and responsibility, and which [is] performed under
similar working conditions.” 29 U.S.C. § 206(d)(1).
¶22 To bring a wage discrimination claim under the Equal
Pay Act, a plaintiff need prove only that (1) the employee was
performing work that was “substantially equal” to that of an
employee of the opposite sex “considering the skills, duties,
supervision, effort and responsibilities of the jobs”; (2) “the
conditions where the work was performed were basically the
same”; and (3) the employee of the opposite sex was “paid more
under such circumstances.” Tidwell v. Fort Howard Corp., 989 F.2d
406, 409 (10th Cir. 1993); see also Corning, 417 U.S. at 195. The
Equal Pay Act imposes a form of strict liability on employers;
once a plaintiff demonstrates wage disparity within the scope of
the Act, the plaintiff “need not prove that the employer acted
with discriminatory intent.” EEOC v. Maryland Ins. Admin., 879
F.3d 114, 120 (4th Cir. 2018); see also Mickelson v. New York Life
Ins., 460 F.3d 1304, 1310–11 (10th Cir. 2006).
¶23 Once a plaintiff makes a prima facie case, the burden of
proof shifts to the employer to show that the wage disparity was
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justified by at least one of four permissible bases, Corning, 417
U.S. at 196–97: “(i) a seniority system; (ii) a merit system; (iii) a
system which measures earnings by quantity or quality of
production; or (iv) a differential based on any other factor other
than sex,” 29 U.S.C. § 206(d)(1). An employer’s burden of
proving one or more of these exceptions “is one of ultimate
persuasion.” Mickelson, 460 F.3d at 1311. In other words, an
employer must “submit evidence from which a reasonable
factfinder could conclude not merely that the employer’s
proffered reasons could explain the wage disparity, but that the
proffered reasons do in fact explain the wage disparity.” Id. at
1312 (cleaned up). “At the summary judgment stage, this means
an employer must prove at least one affirmative defense so
clearly that no rational jury could find to the contrary.” Riser v.
QEP Energy, 776 F.3d 1191, 1198 (10th Cir. 2015) (cleaned up).
B. Hitesman’s Prima Facie Case
¶24 Before addressing its alleged justification for the pay
disparity between Hitesman and her male colleagues, the
University invites us to affirm the district court’s decision on an
alternative ground. The University contends that it was entitled
to summary judgment because Hitesman cannot prove that she
performed work “substantially equal to that of” W.E. and J.P.,
and thus she cannot establish a prima facie case. Specifically, the
University contends that Hitesman’s work was not substantially
equal to W.E. and J.P. because the men “had significantly higher
transaction completion numbers than Hitesman.” (Cleaned up.)
On this record, we are not persuaded.
¶25 Work is “substantially equal” for purposes of the Equal
Pay Act if it “requires equal skill, effort, and responsibility.” 29
U.S.C. § 206(d)(1). This inquiry “turns on the actual content of
the job,” Riser, 776 F.3d at 1196, “not the ability of the employees
holding those positions,” Cooke v. United States, 85 Fed. Cl. 325,
342 (2008). That is, work is considered substantially equal so
long as employees have the same duties or perform the same
20190884-CA 9 2021 UT App 99Hitesman v. University of Utah
tasks, even if one employee performs those tasks with
“[d]isproportionate frequency.” Brennan v. Prince William Hosp.
Corp., 503 F.2d 282, 287 (4th Cir. 1974); see also Fallon v. Illinois,
882 F.2d 1206, 1209 (7th Cir. 1989) (explaining that under the
Equal Pay Act, a plaintiff need show only that the relevant jobs
“have a common core of tasks” (cleaned up)); Savignac v. Jones
Day, No. 19-2443 (RDM), 2021 WL 1700193, at *1, *9 (D.D.C. Apr.
28, 2021) (rejecting the argument that a plaintiff must establish as
part of her prima facie case under the Equal Pay Act that “she in
fact performed equally to her comparators”).
¶26 Here, Hitesman, W.E., and J.P. all shared the same duties
and performed the same tasks. They held the same job title; they
worked in the same department; and they each were required to
analyze and facilitate the assignment, allocation, and budgeting
of grants and contracts brought to the University by faculty.
Although W.E. and J.P. completed transactions at a greater
frequency than Hitesman during the 2013–2015 time period, the
University has not shown that W.E. and J.P. were required to
complete more transactions than Hitesman. Instead, the
evidence produced on summary judgment established that the
positions held by Hitesman, W.E., and J.P. required equal skill,
effort, and responsibility, even if W.E. and J.P. ultimately
completed more transactions.
¶27 The University’s position fails for the additional reason
that it is built on an, as yet, unproved premise. The University
argues that “the completion numbers speak for themselves” and
“show substantially different skills, duties, efforts, and
responsibilities.” (Cleaned up.) But the evidence in the summary
judgment record undermines the University’s claim that a higher
transaction rate necessarily equals greater skills and duties.
Hitesman averred that some transactions are “very simple” and
require little effort, while others are more difficult and “involve[]
substantial work.” Thus, it is not enough for the University to
simply point to higher transaction completion numbers as proof
that W.E.’s and J.P.’s positions required greater skill. The
20190884-CA 10 2021 UT App 99Hitesman v. University of Utah
completed transactions would need to be comparable for the
differential to be meaningful. This unanswered qualitative
differentiation leaves a material factual question in dispute.
¶28 In sum, the evidence presented on summary judgment
demonstrated that the positions held by Hitesman, W.E., and J.P.
required equal skill, effort, and responsibility. Thus, we conclude
that the district court did not err in deciding that Hitesman had
established a prima facie case under the Equal Pay Act, and we
decline to affirm the court’s decision on this alternative ground.
C. The University’s Affirmative Defenses
¶29 After rejecting the University’s contention that Hitesman
could not establish a prima facie case for Equal Pay Act
violations based on a comparison to W.E. and J.P., the district
court concluded that the University was yet entitled to summary
judgment based on its assertion of two statutory affirmative
defenses. Specifically, the court concluded that the University
had shown, as a matter of law, either that the pay disparity was
due to “a system that measures earnings by quantity [or quality]
of production” or that it was due to “factors other than sex.”
(Cleaned up.) Hitesman attacks both of these justifications. In
assessing Hitesman’s arguments, we are mindful that for the
University to prevail at the summary judgment stage, it “must
prove at least one affirmative defense so clearly that no rational
jury could find to the contrary.” Mickelson v. New York Life Ins.,
460 F.3d 1304, 1311 (10th Cir. 2006) (cleaned up).
1. A system which measures earnings by production
quantity or quality
¶30 The district court determined, as a matter of law, that the
University proved that Hitesman’s pay disparity was based, at
least in part, on the third affirmative defense under the Equal
Pay Act—“a system which measures earnings by quantity or
quality of production.” 29 U.S.C. § 206(d)(1)(iii). Hitesman
20190884-CA 11 2021 UT App 99Hitesman v. University of Utah
argues that the court erred in its decision because the University
did not demonstrate the existence of such a system.4
¶31 A system which measures earnings by quantity or quality
of production is one of three “system” defenses available to
employers under the Equal Pay Act. See id. § 206(d)(1)(i)–(iii).
The Act does not define the word “system,” but the Supreme
Court has held that the word should be interpreted the same
way under the Equal Pay Act as it is under Title VII of the Civil
Rights Act. County of Washington v. Gunther, 452 U.S. 161, 170
(1981).
¶32 The first type of system—a seniority system—has been
addressed in depth by the Supreme Court. See generally California
Brewers Ass’n v. Bryant, 444 U.S. 598 (1980). To successfully apply
the affirmative defense of a seniority system, an employer must
show that the system is “bona fide.” Id. at 610–11 (cleaned up). In
other words, the system must have “ancillary rules that
accomplish certain necessary functions . . . [and] rules that
delineate how and when the seniority time clock begins ticking,
as well as rules that specify how and when a particular person’s
seniority may be forfeited.” Id. at 607. Similar guidelines have
been applied to the use of the second defense—a merit system.
See, e.g., Hodgson v. Brookhaven Gen. Hosp., 436 F.2d 719, 726 (5th
Cir. 1970) (“The employer must show that its ‘merit system’ is
administered, if not formally, at least systematically and
objectively.”); Flory v. Salt Lake County Sheriff’s Office, 680 F.
4. Hitesman also argues that the district court erred when it
granted summary judgment to the University based on the first
affirmative defense under the Equal Pay Act—the existence of a
seniority system. But the University did not argue, and the court
did not conclude, that the pay disparity in the OSP was due to a
seniority system. Because the court did not rely on this
affirmative defense to grant summary judgment to the
University, it cannot be a basis for error.
20190884-CA 12 2021 UT App 99Hitesman v. University of Utah
Supp. 1504, 1506 (D. Utah 1988) (explaining that a valid merit
system “must be an organized and structured procedure
whereby employees are evaluated systematically according to
predetermined criteria” (cleaned up)).
¶33 Likely because the third defense—a system which
measures earnings by quantity or quality of production—is so
similar to a merit system, there is very little case law discussing
it. See 1 Susan M. Omilian & Jean P. Kamp, Sex-Based Employment
Discrimination § 8:4 (June 2021 Update). But it makes sense that
the same type of organization and structure required of a
seniority and merit system would be required of a system
measuring production quantity or quality. And this view is
supported by other jurisdictions that have addressed the third
system as an affirmative defense. For example, in Diamond v. T.
Rowe Price Associates, Inc., 852 F. Supp. 372 (D. Md. 1994), the
court stated that the third type of system must rely on
“performance-based or other objectively verifiable criteria.” Id. at
391. Similarly, the court in EEOC v. Shelby County Government,
707 F. Supp. 969 (W.D. Tenn. 1988), determined that the
employer failed to establish the third type of system because,
other than “a fleeting reference,” it provided “no evidence
supporting the existence of such a system.” Id. at 984.
¶34 Applying these principles here, the University need not
prove the existence of a formal, written system that measures
earnings by production quantity or quality to defeat Hitesman’s
Equal Pay Act claim. But for an employer to successfully rely on
such a system as an affirmative defense, there must be some sort
of objective standards to measure its employees’ production
quantity or quality. And those standards should be applied
uniformly. Subjective criteria applied at random, especially
when known only to the employer, do not qualify as a system
which measures earnings by production quantity or quality. The
University has not met its burden.
20190884-CA 13 2021 UT App 99Hitesman v. University of Utah
¶35 For one thing, the University points to no set of rules or a
structured procedure whereby salaries were set according to
productivity criteria. There is no explanation of how transactions
were valued or how closed transactions translated into wage
increases. Instead, Director claims that W.E.’s and J.P.’s higher
productivity justified their higher wages, but Director does not
describe a system whereby those wages were set. Further, even if
productivity was considered when setting salaries in the OSP,
there is no evidence that objectively verifiable criteria were
applied. In fact, while Hitesman worked at the OSP, productivity
statistics were not part of performance reviews, and Director
never indicated to Hitesman that he considered transaction rates
when determining employee salaries.
¶36 Based on this record, we cannot conclude that the
evidence is so overwhelming that no rational jury could reject
the University’s claim that the pay disparity between Hitesman
and her male colleagues was based on a system which measures
earnings by quantity or quality of production. See Riser v. QEP
Energy, 776 F.3d 1191, 1199 (10th Cir. 2015). Thus, the district
court erred to the extent that it relied on the third affirmative
defense to grant summary judgment in favor of the University.
2. Any other factor other than sex: the catch-all
¶37 Hitesman next challenges the district court’s
determination that the University established the fourth
affirmative defense under the Equal Pay Act as a matter of law.
This fourth exception, known as the “catch-all exception,”
Corning Glass Works v. Brennan, 417 U.S. 188, 196–97, 204 (1974),
allows for a pay “differential based on any other factor other
than sex,” 29 U.S.C. § 206(d)(1)(iv).
¶38 This broadly worded exception has been interpreted by
the United States Court of Appeals for the Seventh Circuit as
“embrac[ing] an almost limitless number of factors, so long as
they do not involve sex.” Fallon v. Illinois, 882 F.2d 1206, 1211
20190884-CA 14 2021 UT App 99Hitesman v. University of Utah
(7th Cir. 1989). But the majority of the federal circuit courts have
concluded that although the “any other factor other than sex”
exception is broad, it must still be business related. Rizo v.
Yovino, 950 F.3d 1217, 1223–24 (9th Cir. 2020) (en banc) (joining
the Second, Fourth, Sixth, Tenth, and Eleventh Circuits in
concluding that the fourth affirmative defense to the Equal Pay
Act is limited in scope and “comprises only job-related factors”).
In other words, any factor that does not relate to sex and does
not fit into one of the first three exceptions, falls into this last
exception so long as it “is rooted in legitimate business-related
differences in work responsibilities and qualifications for the
particular positions at issue.” See Riser, 776 F.3d at 1198 (cleaned
up).
¶39 The University contends that Hitesman was paid a lower
wage than W.E. and J.P. for business-related reasons other than
sex. Specifically, the University argues that Hitesman’s lower
wage was justified because the OSP had received complaints
about her performance, she completed fewer transactions than
her colleagues, and, with regard to W.E., she had less time on the
job. But to meet its burden of persuasion, it is not enough for the
University to produce evidence that could explain the wage
disparity; instead, the evidence must be so clear that no rational
jury could conclude otherwise. Id. We agree with Hitesman that
although “these reasons could explain the disparity, . . . the
evidence here is not so overwhelming as to require that
conclusion.” See Mickelson v. New York Life Ins., 460 F.3d 1304,
1314 (10th Cir. 2006).
¶40 Despite Director’s statement that he had received
complaints about Hitesman, she was never disciplined. Rather,
she was led to believe that the complaint the University relies on
to make its case was not taken seriously by the OSP because it
had been made by a “habitual complainer.” (Cleaned up.)
Indeed, the only performance evaluation Hitesman received
during her nine years at the OSP indicated that she met
expectations.
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¶41 Further, Director’s attempts to explain the pay disparity
between Hitesman and W.E. and J.P. were equivocal and conflict
with other evidence. For example, while Director claims that
W.E.’s and J.P.’s higher salaries are justified by higher
productivity, Director does not attest that productivity actually
played a role in setting their salaries.5 In other words,
productivity could explain the wage disparity, but the
University, at least at this stage of the proceedings, has not
shown that productivity was the reason the salaries were set as
they were. The University’s claim also conflicts with Hitesman’s
testimony that transaction rates were not a factor in setting
salaries at the OSP. Such conflicts in the evidence must be
resolved by the factfinder at trial, not as a matter of law on
summary judgment.
¶42 Similarly, Director’s claim that W.E.’s higher salary was
justified by more years on the job does not establish that the
University set W.E.’s salary based on that seniority. After all,
Hitesman was senior to J.P. but was paid less. Thus, the
affirmative defense has not been proved so clearly that “no
rational jury could conclude but that the proffered reasons
actually motivated the wage disparity of which [Hitesman]
complains.” See id. at 1312 (cleaned up).
5. Without addressing W.E. and J.P. directly, Director did aver
that Hitesman’s “normal cost of living increase” in 2016 was
reduced by .5% due to complaints about Hitesman and her “low
productivity” and that “this measure was intended to reinforce
the message that Hitesman was not meeting the expectations of
her job.” Yet Hitesman disputes Director’s claim, attesting that
he “never told [her] that [her] raise had been limited in 2016 to
half a percentage due to alleged poor performance.” Moreover,
Director’s averment does not account for the entirety of the pay
disparity between Hitesman and her male colleagues.
20190884-CA 16 2021 UT App 99Hitesman v. University of Utah
¶43 The University, of course, may ultimately be able to prove
that the pay disparity of which Hitesman complains is based on
factors other than sex. But the University’s assertions that
productivity and seniority justify the pay differential are,
without more, insufficient to prove that the University, in fact,
based the pay of the OSP staff on these factors and that no jury
could conclude otherwise. At the very least, the evidence is not
so overwhelming as to compel the conclusion as a matter of law
at the summary judgment stage. Thus, we reverse the district
court’s grant of summary judgment in favor of the University.6
CONCLUSION
¶44 We conclude that the district court did not err in
determining that Hitesman established a prima facie case under
the Equal Pay Act. We also conclude that the University did not
prove, as a matter of law, that Hitesman’s pay disparity was due
to a system which measures earnings by production quantity or
quality or due to a factor other than sex. Because there is a
genuine dispute as to material facts in this case, we reverse the
district court’s order granting summary judgment in favor of the
University and remand for further proceedings.
6. Hitesman also argues that justifications based on seniority and
productivity cannot be considered under the fourth affirmative
catch-all defense because they are factors that apply, if at all,
under one of the first three defenses. In other words, Hitesman
argues that if the University cannot prove a seniority or
productivity defense, it cannot rely on those factors in asserting
the catch-all defense. Because we resolve this appeal on other
grounds, we do not reach this argument.
20190884-CA 17 2021 UT App 99