5th Circuit Revives Unequal Pay Claims

By Jeffrey Rhodes April 7, 2021
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stressed restaurant manager

The 5th U.S. Circuit Court of Appeals revived the unequal pay claims of a female food and beverage director at Omni Hotels based on the higher salaries of her male predecessors.

The plaintiff started her career with Omni Hotels as a server at the Omni Tucson National Resort in Arizona. She was first promoted to an hourly supervisor position within the resort's food and beverage division in 2007, then to an outlet manager position within the same division in 2008, and finally to a general manager position at the resort's steakhouse in 2009.

For most of her time in Tucson, the plaintiff was supervised by a male manager who she alleged engaged in inappropriate behavior, including touching her hair and sexually harassing other female servers. In 2010, the plaintiff was promoted to the assistant director of the food and beverage division at the Omni hotel in Corpus Christi, Texas. At first, she reported to Corpus Christi's food and beverage director. When he resigned, the plaintiff took his position.

Her starting salary was $70,851. That was $11,649 lower than the former director's starting salary and $6,149 and $4,149 lower than the director's two male predecessors' starting salaries. The plaintiff lodged a complaint with human resources that she was paid less than her male predecessors and many of the male employees she supervised. The plaintiff also claimed that her former supervisor in Tucson was promoted and made sexually inappropriate remarks to her and others.

In 2015, the plaintiff was asked to interview for the food and beverage director position at the Omni hotel in Houston. She sent an e-mail to her former supervisor twice to gain his support for the position but received no response. Nonetheless, the Houston HR director discussed salary, relocation and an offer letter with her. Then the plaintiff had a final, 10-minute interview with Omni Houston's general manager.

The plaintiff claimed the general manager told her that her former supervisor said she was not qualified and that two other candidates were better qualified. But the general manager claimed he had decided to hire her, that the plaintiff's former supervisor agreed with his decision, and that he instructed human resources to proceed with hiring her. The plaintiff withdrew her name from consideration, offended by some interview questions and concerned that her former supervisor had tarnished her reputation. The hiring manager tried to convince her to proceed, but the plaintiff refused.

The plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). She alleged that the Corpus Christi general manager retaliated against her by holding team meetings and making decisions without her, reducing her team's review scores and yelling at her. She sought leave under the Family and Medical Leave Act (FMLA) due to trauma from the alleged discrimination and retaliation. When she returned, she alleged that Omni continued to retaliate against her by lowering her annual review scores and deleting documents on her computer. She took FMLA leave again in May 2016 and then resigned in June 2016.

The plaintiff filed suit in October 2017, alleging pay discrimination, promotional discrimination and retaliation for filing an EEOC charge and taking FMLA leave. Omni moved for summary judgment, which the district court granted in full. The plaintiff appealed to the 5th Circuit.

On appeal, the 5th Circuit agreed with the district court that the plaintiff could not show promotional discrimination or retaliation. It found that the plaintiff could have received a promotion at Omni if she reconsidered her withdrawal from the application process and that Omni's alleged retaliatory conduct did not rise to the level of an adverse action.

The plaintiff presented evidence of unequal pay based on the higher salaries of her male predecessors and directors at other hotels. The 5th Circuit found that, while the plaintiff might be able to compare her salary to other hotels' directors under Title VII of the Civil Rights Act of 1964 and state law, the Equal Pay Act limited her claims to the hotel at issue. In any event, Omni had not disproved her evidence that her predecessors were paid more, and the court thus revived her pay claims for Omni to address and the district court to reconsider.

As a result, the 5th Circuit reversed summary judgment on the plaintiff's unequal pay claims.

Lindsley v. TRT Holdings Inc., 5th Cir., No. 20-10263 (Jan. 7, 2021).

Professional Pointer: Employers should actively address unequal pay concerns, as plaintiffs may rely on several statutes with various proof schemes. Without benchmarking studies or other explanations of disparities, employers can easily proceed to trial on these claims.

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.

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