Author: Brynn Stylinski, Contributing Member, University of Cincinnati Law Review
Discrimination and equal pay have been brought back into the public eye through recent celebrity revelations of huge disparities between the salaries of actors and actresses and the boycott of the Oscars by several stars. These issues have long been a part of our society, however, and courts have attempted to navigate protective legislation such as Title VII in many different ways over the years. Earlier this year, the Seventh Circuit addressed the case of a Mexican-American woman who believed she had been discriminated against through a failure to be properly compensated and subsequent retaliation.[1] Although the plaintiff in that specific case may have failed to produce sufficient evidence, the Circuit’s blunt dismissal of her Title VII discrimination claims could lead to a more narrow interpretation of Title VII that would exclude many victims of subtle discrimination from the law’s protection.
Jaburek Background
In Jaburek v. Foxx, the plaintiff, Roberta Jaburek, was a woman of Mexican descent who was employed by the Federal Aviation Administration (FAA) initially as a secretary.[2] While she was briefly promoted to the position of Program Analyst at a higher pay grade in 1995, she was subsequently reassigned to a new position as an Administrative Support Assistant four months later. In 2008, a new manager, Julia Hale was hired for the FAA’s Engineering Support Group. Because she worked out of the Fort Worth office as opposed to the Des Plaines, Iowa office—in which the Jaburek was employed—she assigned Jaburek to support for an Engineering Technical Officer (ETO).[3] While she was in this position Jaburek worked alongside two Program Analysts, each of whom had much higher pay grades. After each of these Program Analysts left their positions, Jaburek took over their duties.[4] When the engineering technical officer left, Jaburek requested, and was granted, permission to continue signing for the items that required an ETO signature.
After Hale left her position as manager, Walter Wilson became acting manager, followed by Lourdes Lay. In response to a request from Wilson that employees describe their roles and job responsibilities, Jaburek sent an email describing her duties, including those which she had taken up on behalf of the former Program Analysts. She specifically stated that she was “acting in the capacity of the FAA Program Analyst.”[5] She sent the same description to Lay upon a similar request. Neither communication included a description of her paygrade or compensation. Upon receiving this description, Lay responded by sending Jaburek a description of her “duties as a secretary” and having another employee restrict her access to the PRISM database, stating that her duties did not require her to access the system, and that another employee was responsible for using it to process such requests.[6]
Rather than granting her the promotion and pay raise for the work which she had been responsible for performing for months, she was told to go back to her old duties and referred to as a secretary, despite having not held that title since 1995.[7] She filed a complaint with her Equal Employment Opportunity counselor within the agency, stating that her description of her work constituted a request for a desk audit to determine if she was entitled to a promotion. This claim was rejected and she brought suit under Title VII for race and sex discrimination based on the FAA’s failure to pay her as Program Analyst, as well as a Title VII retaliation claim. The District court granted summary judgment on the grounds of insufficient evidence. The Seventh Circuit upheld this decision.[8]
The Circuit’s Limited Title VII Discrimination Analysis
The Circuit applied the analysis for failure to promote under Title VII although Jaburek had not framed her claim in that manner. In order to survive summary judgment under Title VII when there is no direct evidence of discrimination, the Seventh Circuit requires the plaintiff to establish a prima facie case of discrimination. A plaintiff proves a prima facie case by showing that the plaintiff was a member of a protected class, was meeting the employer’s legitimate job expectations, experienced an adverse employment action through the failure to promote, and a similarly situated employee outside of the plaintiff’s class was treated more favorably, in the case of failure to promote, by promoting someone outside the protected class who was not better qualified.[9]
In looking at the failure to promote claim, the Circuit abruptly dismissed the possibility that Jaburek might have been denied a promotion because it found that she had failed to explicitly apply for a new position.[10] It rejected her contention that she had requested a desk audit as well as the possibility that a request for a desk audit could constitute a request for a promotion.[11] A simple description of one’s job duties may not be sufficient to constitute a request for the reconsideration of one’s pay grade. But there may be circumstances under which a request to review one’s job duties, in light of pay grade, could be sufficient to constitute a request for a promotion. If a plaintiff could show that they had been doing work above their pay grade and had specifically requested a review of their work in order to reassess that pay grade, it is logical that this could constitute an application for a promotion. The Circuit’s unqualified exclusion of such requests from the realm of an application for a promotion fails to take such a possibility into account. It narrows the reach of Title VII, and it leaves plaintiffs open to being taken advantage of.
Similarly, the court rejected Jaburek’s argument that the two program analysts whose duties she assumed were appropriate for comparison. The Circuit held that although they were outside of the plaintiff’s protected class—being white women—they were not promoted to Program Analyst instead of the plaintiff, therefore they were not treated more favorably than she was treated.[12] The Circuit dismissed Jaburek’s actual argument that the FAA should have compensated her for the work that she was actually performing, the work of a Program Analyst, and that the two previous Program Analysts were appropriate comparators because they were compensated for the same work at twice her pay grade.[13] It found that although such discrepancy might warrant a desk audit, it did not support a Title VII claim.
The Problem with the Court’s Rejection
The court’s dismissal of Jaburek’s argument fails to properly address the language of Title VII, which prohibits discrimination in the “compensation, terms, conditions, or privileges of employment, because of such individual’s race, color… or national origin.”[14] Jaburek’s pay grade was at half the level of the two Program Analysts, who were both white, and during her brief promotion to the position of Program Analyst, her pay increased by only a single grade.[15] These circumstances could create an inference of discrimination in the failure to properly compensate the plaintiff, and the other Program Analysts could be appropriate comparators.[16] While the evidence in this case was limited, the failure to even address the possibility that a person could be intentionally kept in a lower position, performing the job duties of a higher position at a much lower pay grade, creates the potential for future courts to ignore much stronger inferences of discrimination when they exist.
The Circuit’s analysis of the Title VII retaliation claim did properly address the issues raised by this specific case. It acknowledged the fact that there may have been an adverse employment action in Lay’s order for Jaburek to return to purely administrative duties, but found that because her limited description of her job duties did not constitute an action in opposition to discrimination as required under Title VII, there was no retaliation.[17] Because a retaliation claim requires there to be opposition to discrimination, such as a complaint or a charge, or participation in an investigation of discrimination, this analysis was proper based on the court’s previous findings.[18]
Conclusion
There was a limited amount of evidence present in Jaburek. The Seventh Circuit properly recognized this fact. However, its abrupt rejection of the potential for a similar case with more facts to meet the standards of a prima facie case and its failure to create an analysis, on which a future court could rely in similar circumstances, will likely leave many future plaintiffs vulnerable to summary judgment when they have sufficient evidence to support their claim.
[1] Jaburek v. Foxx, No. 15-2165, 2016 WL 143459 (7th Cir. Jan. 13, 2016).
[2] Id. at *1.
[3] Id.
[4] Id.
[5] Id. at *1-2.
[6] Jaburek, 2016 WL 143459, at *2.
[7] Id.
[8] Id. at *2, 7
[9] Cung Hnin v. TOA (USA), LLC, 751 F.3d 499, 504 (7th Cir. 2014); Garofalo v. Vill. of Hazel Crest, 754 F.3d 428, 439 (7th Cir. 2014).
[10] Jaburek, 2016 WL 143459 at *4
[11] Id.
[12] Id. at *5.
[13] Id. at *1, 5.
[14] 42 U.S.C. § 2000e-2(a)(1).
[15] Jaburek, 2016 WL 143459, at *1, 5. In December 1995, Plaintiff was promoted to Program Analyst at a GS 7 pay grade. In April 1996 she went back to Administrative Support Assistant and a GS 6 pay grade. The two Program Analysts had pay grades of GS 11 and 12.
[16] Cung Hnin, 751 F.3d at 504 (“A similarly situated employee must be directly comparable to the plaintiff in all material respects, which is a common-sense, flexible analysis of relevant factors”)
[17] Jaburek, 2016 WL 143459, at *6.
[18] Burlington N. and Santa F. Ry. Co. v. White, 548 U.S. 53, 59 (2006) (quoting 42 U.S.C. § 2000e–3(a))
