Vermont Human Rights Comm'n v. State, Department of Corrections and Department of Human Services

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          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

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          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

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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

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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. § ...