Vermont Human Rights Commission, Lynne Silloway, Mary Bertrand and Lisa DeBlois
v.
State of Vermont, Department of Corrections and Department of Human Services
Page 189
[Copyrighted Material Omitted]
Page 190
[Copyrighted Material Omitted]
Page 191
On
Appeal from Superior Court, Washington Unit, Civil Division.
Helen M. Toor, J.
Affirmed.
Emily
J. Joselson, Kevin E. Brown and Katherine B. Kramer of
Langrock Sperry & Wool, LLP, Middlebury, for
Plaintiffs-Appellants Silloway and Bertrand, and Karen L.
Richards, Executive Director, Montpelier, for
Plaintiff-Appellant Vermont Human Rights Commission.
William H. Sorrell, Attorney General, and David Groff,
Assistant Attorney General, Montpelier, for
Defendants-Appellees.
Margaret Martin Barry, Alexander W. Banks and Christina
Gongaware (Law Clerk), Vermont Law School, South Royalton,
for Amici Curiae Vermont Commission on Women, Vermont Legal
Aid, American Association of University Women of Vermont,
South Royalton Legal Clinic and League of Women Voters of
Vermont.
Present:
Reiber, C.J., Dooley, Skoglund and Eaton, JJ., and Morris,
Supr. J. (Ret.), Specially Assigned
OPINION
Page 192
Eaton,
J.
[¶1] The Vermont Human Rights Commission and
three female employees of the Vermont Department of
Corrections (DOC) filed suit against the State -- the DOC and
the Vermont Department of Human Resources (DHR) -- claiming
that the DOC violated the Vermont Fair Employment Practices
Act (VFEPA), 21 V.S.A. § § 495-496a, by paying a
male employee in the same position as the female plaintiffs
as much as $10,000 more annually without a legally
defensible, gender-neutral reason. The trial court granted
summary judgment to the State, concluding that although
plaintiffs established a prima facie case, the undisputed
facts established that the wage disparity was due to
legitimate business reasons and not gender-based. We affirm.
[¶2] The undisputed facts presented at
summary judgment are as follows. In July 2010, plaintiff
Lynne Silloway, who began state employment in 2002, learned
that she was earning approximately $10,000 less annually than
her male colleague John Doe.[1] At the time, both were
employed by the DOC as business managers at a state prison.
Two other female business managers, plaintiffs Mary Bertrand
and Lisa DeBlois, subsequently also determined that they were
being paid less than Doe. The ensuing investigation into
Doe's salary revealed the following.
[¶3] Doe began his employment with the DOC
in September 2003 after he responded to a notice for a
food-service-supervisor position at the soon-to-be opened
correctional facility in Springfield, Vermont. DOC employee
Keith Tallon was hired as the first supervisor of the
facility, and setting up the facility required him to employ
135 staff members. The job posting for the food service
supervisor position stated that it required a high school
diploma or equivalent and four years of experience in volume
cooking.
[¶4] As a state job, the food-services
position was classified as pay grade 18, which at step 1
equated to an hourly wage of $13.65. The state employee
classification system assigns every state job to one of
twenty-eight pay grades, labeled 5 through 32. See 3 V.S.A.
§ 310(b) (requiring department of human resources "
to perform job evaluations for each position based on current
job descriptions which describe the nature, scope, and
accountabilities for each class of employees" ). There
are 15 steps within each pay grade, and through seniority and
merit increases an individual can advance through the steps.
New hires typically start at step 1 unless they are "
hired into range." This policy, set forth in the State
of Vermont Personnel Policy and Procedure Manual Policy
Number 12.2, allows new hires to be compensated above the
entry-level rate when there is a " compelling reason to
make an exception to the basic principle that employees are
hired at the entry rate established for the job." Prior
approval is required based on the following justifications:
o There is a shortage of qualified applicants for the
position;
o An applicant who has special qualifications, training, or
experience that while are not necessarily a requirement of
the job, have some unique value to the organization;
o The candidate possesses exceptional and outstanding
qualifications that exceed those of other applicants and to
such an extent that not hiring that particular
Page 193
employee will be detrimental to the State.
To
instigate the hire-into-range process, the affected agency
must submit a request to the Department of Human Resources,
detailing several items, including information about the
candidate, the other applicants, the hiring process and the
implications on existing employees or classes.
[¶5] The DOC received applications from nine
individuals who met the minimum qualifications, and
interviewed three of them, including Doe. Only one applicant
was female, and she did not respond to a request for an
interview.
[¶6] Doe's application reflected the
following relevant training and experience: a bachelor's
degree in Hotel and Restaurant Administration, an
associate's degree in Culinary Arts and Restaurant
Management, and twenty-three years of relevant experience.
Doe was making an hourly wage of $35.17 in his position as
the Director of Environmental Services, Nutrition, Food
Services and Laundry at a hospital. Of all the applicants,
Doe had the most experience and the most advanced degrees,
and he also received the highest interview score.
[¶7] Superintendent Tallon believed
Doe's qualifications exceeded those of the other
applicants and sought permission from the DOC's central
office to submit a hire-into-range request. Permission was
granted, and the superintendent prepared an official
hire-into-range request, which was submitted to the
Department of Personnel, now the Department of Human
Resources.
[¶8] The hire-into-range request proposed to
hire Doe into step 13 of pay grade 18 at a rate of $19.94
instead of the standard step 1 of pay grade 18 rate of $13.65
per hour. The request supported the increased starting pay
with the following explanation and reasons. There were a
limited number of applicants. Although there were nine
qualified applicants, only three were interviewed for reasons
outside of the DOC's control. Doe's qualifications
exceeded all of the other applicants insofar as he had two
degrees related to food service, and over twenty-three years
of experience in the business. Because of the combination of
Doe's " extensive work history, education, training,
and experience," Doe would bring " unique
value" to the correctional facility and it would be
" detrimental" to the DOC not to hire him. Even
with the hire into range, Doe would be losing almost half of
his current rate of pay of $35.17 per hour. Because the new
facility was due to open in a month, the new hire would be
required to take immediate action to hire, train, and
supervise new staff. As a result of this short time frame,
the need for a high level of skills and Doe's exceptional
qualifications, the request summarized that the hire into
range was " absolutely essential." The request did
not specifically address the other employees that could be
affected by the request or include information about other
recent hires in the same or similar classes.
[¶9] The request was approved by the
personnel department the day after it was submitted. Doe was
offered and accepted the position.[2]
[¶10] During Doe's subsequent years of
employment with the DOC, his salary increased pursuant to the
terms of the collective bargaining agreement. Doe received
Page 194
scheduled step increases and annual cost of living
assessments (COLAs). He also received raises when the
food-services position was reclassified. Other individuals in
the same position received the same percentage increases in
their pay.
[¶11] With these increases, by August 2006,
Doe was at pay grade 20, step 12, with an hourly wage of
$23.07. Doe was then placed into the new job of Business
Manager A, which was a pay grade 21 position. Because this
position entailed supervision, pursuant to the collective
bargaining agreement, he received the step increase and an 8%
increase in his pay, and consequently was placed in pay grade
21, step 13 with an hourly wage of $25.01. Over the following
years, Doe continued to receive scheduled step increases and
annual COLAs, when those were provided for state employees.
His position was also reclassified several times, which
resulted in a 5% raise each time. As of July 2013, Doe was at
a pay grade 24, step 13, with an hourly wage of $32.95.
[¶12] In mid-2006, after Doe first became
business manager, he had the same role as plaintiffs
Bertrand, Silloway, and DeBlois. At that point, when he had
been a state employee for three years, Doe's hourly wage
of $25.01 exceeded the plaintiffs' wage rates. Bertrand
had been with the state eight years, working as a business
manager for seven years, and was earning $21 an hour;
Silloway had been with the state four years, a business
manager for three years, and was earning $20 an hour; and
DeBlois was hired one year earlier, became a business manager
forty-five days after Doe, and was earning $18.50 an hour.
From 2006 forward, plaintiffs received the same percentage
raises as Doe pursuant to reclassifications of their
position, COLAs, and step increases. By fiscal year 2012,
Doe's annual salary was $58,531. In the same year,
Bertrand, Silloway, and DeBlois made between $6,385 and
$10,200 less annually than Doe.
[¶13] Based on these undisputed facts, the
parties filed cross-motions for summary judgment. Plaintiffs
argued that they had made a showing of wage discrimination
because Doe was receiving a higher wage for the same work and
there was no legally defensible reason for the disparity. The
State argued that any wage differential was due to the
hire-into-range decision, which was based on legitimate
business-related reasons other than gender, and that
therefore they had presented an affirmative defense. The
trial court concluded that plaintiffs had made a prima facie
case of discrimination under the VFEPA. The court further
concluded, however, that the DOC met its burden of
demonstrating an affirmative defense because the
hire-into-range decision was based on bona fide reasons other
than gender, including Doe's work history, education, and
prior salary, and the DOC's exigent need; and granted
summary judgment to the State. Plaintiffs appeal.
[¶14] Summary judgment is appropriate where
" the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment
as a matter of law." V.R.C.P. 56(a). On appeal, this
Court employs the same standard as the trial court. White
v. Quechee Lakes Landowners' Ass'n, 170 Vt. 25,
28, 742 A.2d 734, 736 (1999). To determine whether there is a
disputed issue of material fact, the allegations made by the
nonmoving party are accepted as true " so long as they
are supported by affidavits or other evidentiary
material." Id.
I.
Legal Backdrop
[¶15] The complaint in this case alleges
that the State violated the Vermont Fair Employment Practices
Act (VFEPA), 21 V.S.A. § ...