By Marjorie Johnson, J.D.
A reasonable jury could find that a female radio DJ’s statement to her employer that she was seeking other employment offers was part of her protected activity of demanding equal pay for equal work, and not a legitimate reason for firing her. Denying summary judgment against her on her gender bias and retaliation claims, a federal court in Tennessee also found that triable issues existed as to whether her state law claims were time-barred by her employment contract and whether a male colleague who was paid more than her was similarly situated (Wheeler v. Saga Communication of Tuckessee, LLC, June 7, 2018, Crenshaw, W.).
The employee worked as an “on air personality” for a radio broadcasting company that operated seven radio stations in Clarksville, Tennessee. During her tenure, she worked for three of those stations. One was the largest-watt station, generating the most revenue, another was the second-largest, and the third was a smaller station. On-air personalities that worked the morning-drive shift (5:00 a.m. to 9:00 a.m.) were generally paid the highest while those that worked the afternoon-drive shift (2:00 p.m. to 7:00 p.m.) were generally paid the second-highest.
Lowest annual salary. When she was hired in 2007, the employee received an annual salary of $22,000, which was the lowest for any on-air personality. She signed a 12-month contract each year, and her 2015 contract provided her a $24,000 annual salary. Though company records showed she received more, she was still paid less than her male colleagues. That year, she worked the 9:00 a.m. to 2:00 p.m. shift for the second-largest station and the afternoon-drive shift for the smaller station. She also worked weekend shifts on both station.
Seeks job with better pay. After she inadvertently saw documentation that a male on-air personality had an annual salary of $36,000, she began looking for other employment opportunities. When her supervisor presented her with a contract for the 2016 calendar year with a salary of $24,000, she indicated that she was hesitant to sign it since she was being paid less than her male counterparts. A few days later, he told her that he was surprised about how little she was making and that he would convey her complaints to his manager.
On November 30, she asked for more time to decide whether to sign the contract. He informed his manager, who instructed him to give her until December 11 to decide. When he later asked her if she was ready to sign the 2016 contract, she stated she was not because she was expecting a more lucrative job offer. His manager then authorized him to offer her a temporary 30-day contract, which ran through January and which she signed.
On January 11, the manager told the employee that she was not going to be getting any more money and “there is no discussion to be had about that.” In response, she indicated that she would sign the contract, but would ask to be released if she received a better offer during the year. He responded, “I’m not going to renew your contract. I’m going to give you the gift of freedom to pursue another opportunity where you won’t feel that you’re being discriminated against.” She then indicated that she was disappointed that her pay was lower than her male counterparts after being with the company for nine years and that he chose to treat her poorly when raising the issue.
Seeking other offers as protected activity. The employer argued that she could not prove the causation element of her retaliation claims since she was not terminated for complaining about gender discrimination, but because she stated that she would not honor her twelve-month contract if she received a more lucrative offer. This argument did not entitle it to summary judgment, however, since a reasonable jury could find that her statement that she would consider other offers was part of her protected activity of demanding equal pay for equal work. In effect, she only stated she would consider other offers because she was being paid less than men and felt discriminated against. Indeed, the fact that the employer admitted that this was the reason it terminated her showed that a reasonable jury could find that her protected activity was the “but-for” cause of her termination.
Did contractual limitations period bar state law claims? The employer also argued that her state law claims were time-barred pursuant to her employment contract. Though these claims were timely under the statutory one-year limitations periods since she filed her lawsuit 11 months after her termination, her 2015 employment agreement contained a clause in which she agreed to bring any employment-related actions within six months and to waive “any statutes of limitations to the contrary.” However, a triable issue existed as to whether her 2015 contract was in effect at the time of her termination. Though the employer argued that her 30-day contract simply extended the 2015 contract, she testified that it was a separately executed contract.
Male comparators. The court also rejected the employer’s contention that her gender bias claims failed since she could not establish that she was treated differently than any similarly-situated male employee. She pointed to two male comparators and it undisputed that at least one of them performed the same work but had a higher salary. Moreover, although he worked at the largest radio station, there was no evidence that the radio personalities got paid differently based on which station they worked at. Rather, the record only showed radio personalities who worked the afternoon drive were generally paid more than the second-highest and that the employee, working the afternoon shift, was paid the lowest of all the on-air radio personalities.
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