Labor & Employment Law Daily Omni food and beverage director, paid less than male predecessors, gets second chance at pay bias claims
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Tuesday, January 12, 2021

Omni food and beverage director, paid less than male predecessors, gets second chance at pay bias claims

By Kathleen Kapusta, J.D.

Acknowledging that pay disparities can exist for any number of reasons, the court stressed that “what we do not accept are pay disparities due to the employee’s race or sex. And that is the problem here.”

Noting that “a core component of our promise of equal opportunity, regardless of the circumstances of one’s birth, is non-discrimination in pay,” the Fifth Circuit reversed the grant of summary judgment against the Title VII, Equal Pay Act, and state law claims of a Omni hotel food and beverage director who was undisputedly paid less than all three men who preceded her in that job. That, said the court, was enough to establish a prima facie case of pay discrimination and the court below erred in concluding otherwise. Because Omni did not put forth a nondiscriminatory reason for the pay disparity, the court remanded to give it the opportunity to do so. The court, however, affirmed summary judgment on her EPA claim insofar as it relied on unnamed male food and beverage directors from other Omni hotels. Summary judgment, however, was affirmed against her promotional discrimination and retaliation claims (Lindsley v. TRT Holdings, Inc., January 7, 2021, Ho, J.).

Lower starting salary. Ten years after she was hired as a fine dining server in an Omni Arizona resort, the employee accepted Omni’s Corpus Christie food and beverage director position. Her $70,851 salary was not only $11,649 lower than the resigning male director’s starting salary, it was also $6,149 and $4,149 lower than his two male predecessors. Although she complained to HR about the pay disparity, she did not receive a salary increase.

Withdrew name. Several years later, she interviewed for the food and beverage director position at Omni Houston but during the final interview, she alleged, the GM told her Omni’s food and beverage VP, who was also her former supervisor, did not think she was qualified. Believing she would be rejected, the employee withdrew her name from consideration. Although the GM asked her to reconsider, she refused, later testifying that “I felt at that point that he was being forced to take me and I want to earn my promotions on my own merits.”

FMLA leave. She subsequently filed a complaint with the EEOC and in response, she alleged, Omni retaliated against her. Not long thereafter, she asked the HR director about taking FMLA leave and was purportedly told that because she was an essential employee, she could not take leave without losing her job. The HR director corrected her mistake and the employee took several weeks of leave. Upon her return, she alleged that Omni again retaliated against her.

Lower court proceedings. After taking additional leave, she left the company. In her subsequent lawsuit, she asserted claims of pay and promotional discrimination and retaliation. The district court granted summary judgment against all claims.

Pay discrimination. Addressing on appeal her claims of pay discrimination in violation of Title VII, the EPA, and the Texas Labor Code, the Fifth Circuit, noting it was undisputed she was paid less than her three immediate predecessors as the food and beverage director of Omni Corpus Christi, found, contrary to the court below, that she established a prima facie case of pay discrimination. It was also undisputed that she held the same job title at the same hotel as those three men. Further, Omni agreed she established a prima facie case as to her immediate predecessor, who held the position immediately after the other two men, and there was no evidence the position had changed.

“Far from failing to show that her job was ‘in any way similar’ to the two men who preceded her immediate predecessor, as the district court held, the appeals court found she showed she held the same position they had held, at the same hotel, just a few years after they did, and that she was paid less than they were. “No more is needed to establish a prima facie case.” Accordingly, the court remanded to allow Omni the opportunity to provide a nondiscriminatory reason for the pay disparity.

Comparators at other Omni locations. And while the court also found it undisputed the employee was paid less than other male food and beverage directors at other Omni locations, she could not use these comparators to support her EPA claim as under the EPA a plaintiff must show that the pay violation occurred within a “single establishment. Pursuant to the governing regulations, the court observed, “establishment” “refers to a distinct physical place of business rather than to an entire business or ‘enterprise’” and there was no evidence to warrant a departure from the default rule that “each physically separate place of business is ordinarily considered a separate establishment.”

While there was evidence that corporate executives at Omni exercised some control over hiring and salaries, the general manager of each hotel is the primary force behind new hires and the job duties of each food and beverage director differ by location. Accordingly, the court affirmed the grant of summary judgment on this issue.

Title VII and the Texas Labor Code, however, do not have the same “establishment” requirement. Because the district court did not address whether the employee established a prima facie case under those statutes based on male food and beverage directors at different locations, the court also remanded this issue to the lower court.

Promotional discrimination. Turning to the employee’s claim that Omni violated Title VII by declining to promote her because of her sex, the appeals court, agreeing with the court below, found she was not rejected by Omni for the Omni Houston food and beverage director position; rather, she rejected the opportunity when she withdrew her name from consideration. It was undisputed, the court pointed out, that she knew she would get the job if she reconsidered.

Retaliation. Affirming summary judgment against her retaliation claims as well, the court found she failed to demonstrate an adverse action. Although she argued that “material parts of her job were removed,” she provided only one example—the Omni Corpus Christi GM emailed her team about a deadline for a menu promotion without allowing her to speak to her team directly. “This one instance does not amount to a material change in job duties,” said the court.

Nor did she establish an adverse action in response to her requesting and taking FMLA leave. While she claimed that the HR director threatened her and intentionally misinformed her that if she took leave, she would not have a job when she returned, this mistake was quickly corrected and there was no evidence the HR director was threatening her or creating a hostile environment.

Constructive discharge. Finally, as to her claim she was constructively discharged, the evidence she “presents in support of her constructive discharge argument does not differ from the evidence she presents in support of her claim of an adverse employment action. Nor does our legal conclusion.”

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