MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendant’s Motion for Summary Judgment [Doc. No. 15]. For the reasons stated below, this Court denies Defendant’s Motion.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Jean Grover alleges that she was discriminated against because of her gender while she was an employee of Defendant Smarte Carte, Inc. Specifically, Grover alleges that she was paid less than similarly situated male employees and that she was overlooked for career- and compensation-enhancing opportunities that were ultimately awarded to male employees. Grover also alleges that she was fired in retaliation for complaining about her unequal treatment.
Smarte Carte is a Minnesota-based international retailer of rentable luggage carts, lockers, and strollers. Smarte Carte’s products are available in airports, theme parks, ski resorts, and retail establishments. Smarte Carte’s principal revenue stream comes from its airport luggage-cart business. Smarte Carte has had a tumultuous corporate history; Smarte Carte has changed hands multiple times in the last twenty-five years and filed for bankruptcy in February 2005. (Rudis Decl. ¶ 3.)
Grover worked for Smarte Carte from 1994 to 2007. Grover started out as a sales representative and, through a series of promotions over the years, eventually rose to the level of vice president. Grover earned salary increases along with her various promotions. From 1999 until her termination in 2007, Grover was Vice President of Business Development and Operations of Smarte Carte’s domestic locker and retail business. (Erickson Decl. Ex. 2.) Grover also testified that, in addition to the domestic market, she was responsible for business development in Canada, parts of Europe, and other international locations. (Grover Dep. at 105, 181-82; Grover Aff. ¶¶ 15, 20.) Grover’s focus was the development and growth of the company’s stroller and locker product lines in the retail (or non-airport) market. (Grover Dep. at 66-67, 98.)
Before September 1999, Grover was supervised by then-CEO Brad Stanius. Most, if not all, of Grover’s promotions occurred during Stanius’s tenure.
The record shows that Grover was quite successful during her tenure with Smarte Carte. Under her leadership, sales attributable to the locker and retail division accounted for between 15.2% and 18.6% of Smarte Carte’s total sales.
On May 28, 2004, Grover responded to the 2003 review in a memorandum to Ru-dis. (Rudis Dep., Ex. 13.) Grover complained that the negative comments in her review stemmed from a “biased power base” among management from which she was excluded. Grover asserted that she was increasingly unable to work with her peers and superiors because their bias against her undercut her ability to communicate effectively. (Id. at 1.) Grover, specifically noted that “senior management perceive [her] comments, directives and recommendations differently than those voiced by [her] peers.” (Id.) Grover also complained that she was underpaid vis-avis her male peers: “I have expressed my concern about compensation vs. demonstrated performance and responsibility compared to my peers a few times to you over the last year. These concerns remain un-addressed.” (Id.) Grover then compared her compensation and responsibilities to those of one of her alleged comparators, Arthur Spring, and requested a response. (Id. at 1-2.) At the time, Arthur Spring was Vice President of Carts and Lockers — International. (Erickson Deck, Ex. 2 at 4.) It is not clear from the record whether Rudis ever responded formally to Grover’s memorandum.
On June 9, 2004, Grover sent Rudis a follow-up memorandum again outlining her perceived unequal treatment. (Rudis Dep., Ex. 13 at 3-4.) She attached various graphs showing her performance from 1996 to 2003 and her perceived unfavorable compensation as compared with that of Arthur Spring. (Id. at 5-8.) Again, the record is unclear as to whether or how Rudis responded to Grover’s memorandum.
In March 2005, Grover met with Rudis to discuss a new bonus plan that she felt treated her unfairly by providing for similar bonuses to the airport line of business for reaching a lower sales threshold. (Grover Aff., Ex 2 at 5.) Rudis told her that he would discuss the matter with the company’s Chief Financial Officer. (Id.)
On April 15, 2005, Grover again met with Rudis to discuss her concern that she was being compensated unfairly. (Id. at 214-16.) On April 23, 2005, Rudis responded to Grover’s complaints of unequal pay in writing. (Rudis Dep., Ex. 14.) Rudis first dismissed Grover’s assertion that she was unfairly paid less than her male peers: “I continue to believe that your current compensation including base salary and bonus plan is in line with your level of responsibility within the organization.” (Id.) Rudis stated, however, that Grover would be offered additional incentives in the form of deferred salary and stock options, which were “intended to recognize [Grover’s] contribution to the growth of new business for Smarte Carte.”
On January 12, 2006, Grover’s review for 2005 indicated that her job was in jeopardy due to- her “struggle with managing interpersonal relationships with peers.” (Rudis Dep., Ex. 15.)
Throughout 2006 and 2007, Grover continued to formally complain to Rudis about her unequal pay and her belief that she was treated less respectfully than her male peers and that her decisions were actively undermined by senior management. (See Grover Aff. ¶¶ 22-26.) On May 8, 2007, Grover again met with Rudis to discuss these issues and again provided documentation supporting her belief that she was paid less than her male peers and that she was treated with less respect and given less autonomy than her male peers. (Grover Aff. ¶¶ 25-26; id., Ex. 1; Grover Dep. at 251-52.)
On May 31, 2007, Smarte Carte terminated Grover without cause. (Grover Dep., Ex. 18.) Rudis told Grover that she was being discharged due to a reduction in force, but it is not clear from the record whether other employees were fired along with Grover. It does appear, however, that Grover’s position was not filled and that her responsibilities were rolled into an existing position. (See Sarnoski Decl., Ex. H at 2.)
On February 22, 2008, Grover filed a complaint with the Equal Employment Opportunity Commission (“EEOC”), charging Smarte Carte with violating the Equal Pay Act of 1963 (“EPA”), 29 U.S.C. § 206(d), et seq., and Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et seq. (Erickson Decl., Ex. 1.) Grover’s EEOC complaint states that the discrimination took place between February 14, 2004 and May 30, 2007.(M) After receiving evidence from both parties, the EEOC issued Grover a right-to-sue letter.
On November 19, 2009, Grover filed the present case, again claiming violations under the EPA and Title VII and for retaliation. [Doc. No. 1.] Grover also brought claims under the Minnesota Human Rights Act, MinmStat. §§ 363A.01, 363A.15. In October 2010, the parties stipulated to the dismissal of Grover’s state-law claims.
Smarte Carte now moves for summary judgment, arguing that there are no genuine issues of material fact as to whether Smarte Carte discriminated or retaliated against Grover.
II. DISCUSSION
A. Standard of Review
Summary judgment is proper if there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party bears the burden of showing that the material facts in the case are undisputed. Celotex Corp. v. Catrett,
B. Equal Pay Act Claim
To establish a prima facie case under the EPA, Grover must show that Smarte Carte paid her less than similarly situated male employees for equal work in jobs that required equal skill, effort, and responsibility and that were performed under similar working conditions. 29 U.S.C. § 206(d)(1); Taylor v. White,
1. Unequal Pay
The threshold issue is whether Grover was paid less that her alleged comparators, Johnny Chiu and Arthur Spring. The records support Grover’s contention that she was paid less in guaranteed pay than either comparator from 2002 through her termination in 2007. (Pl.’s Opp’n Mem. at 6; Grover Dep., Ex. 2; Sarnoski Deck, Exs. A-C.) Although the parties’ numbers do not square exactly, the exhibits show that for each year from 2002 forward, Grover received less in guaranteed pay (base salary and commission, and retention bonus) than at least one of her comparators. {See Carr Deck, Ex. C; Sarnoski Deck, Exs. A-C.) Moreover, Grover’s base pay was substantially less than either Chiu’s or Spring’s for each of those years. For example, in 2005, Grover’s base pay was $163,523, while Chiu’s base pay was $211,150 and Spring’s was $300,515. {See id.)
Smarte Carte argues, however, that the Court must look at Grover’s “aggregate” compensation between 2002 and 2007 to determine whether she was paid less than her male peers. Under this approach, Grover’s overall compensation appears greater than that of her comparators. The difference, however, is due solely to Grover’s receipt of nearly $1.4 million for her stock options in 2006 and 2007.
Smarte Carte’s aggregate approach finds no support in the law. Smarte Carte has pointed to no case standing for the proposition that courts must consider multiple years of compensation in the aggregate when considering the merits of an EPA claim. Smarte Carte relies on Mitchell v. Diversified Reality Corp., No. 4:09-CV-224,
In sum, Grover has established a prima facie case that she was paid less than her
2. Propriety of Comparators
The next issue is whether Chiu and Spring are proper comparators. As explained above, to establish a prima facie case, Grover must identify male employees who were paid more for equal work in jobs that required equal skill, effort, and responsibility and that were performed under similar working conditions. Taylor,
Grover and Smarte Carte have submitted conflicting evidence regarding whether Grover and Chiu and/or Spring were similarly situated.
a. Johnny Chiu
Chiu joined Smarte Carte in August 2000 as Vice President of Business Development and Domestic Airport Operations. In this role, Chiu was responsible for business development relating to Smarte Carte’s domestic' airport cart and locker businesses. (Rudis Decl. ¶ 8.) Beginning in 2003, Chiu was also responsible for Smarte Carte’s locker operations in China. (7</.¶¶ 8-9, 12-13.) Rudis promoted Chiu to Senior Vice President of Business Development and Operations in 2004. Chiu retained that position until he left Smarte Carte in May 2005.
It is not clear how or even whether Chiu’s responsibilities changed along with his promotion. It is clear, though, that Chiu’s promotion did not put him in a position of authority over Grover. In fact, Smarte Carte’s organizational chart show that Grover and Chiu occupied similar roles within the company, both before and after Chiu’s promotion. (Erickson Deck, Ex. 2 at 1, 2.) Both Grover and Chiu were responsible for business lines; Grover was responsible for the domestic locker business and Chiu was responsible for the domestic cart business. (Id.) Smarte Carte argues that Chiu’s role within the company was much more substantial because he was responsible for the company’s primary source of revenue (carts) and because he was responsible for the development of business in China. Indeed, Ru-dis testified that Chiu was promoted to Senior Vice President because of his work in China. (Rudis Dep. at 53.)
Grover counters such allegations by pointing to Rudis’s testimony that Chiu was not responsible for actually developing business in China: “Johnny’s role [in China] was to help travel with our engineering staff to China, go in and meet factories, function as an interpreter, and really help our people who had never been to China before, navigate their way around.” (Id. at 74.) The Court notes that Grover also had international responsibilities in Cana
In summary, there are genuine issues of material fact surrounding the question of whether Grover and Chiu performed substantially equal work for Smarte Carte. They held distinct positions, but a jury may well deem those positions to be equivalent for compensation purposes.
“To establish a prinia facie case, a plaintiff need only demonstrate that the jobs at issue are substantially similar; a plaintiff does not have to show that the skills or qualifications of the actual male and female employees holding the positions are also substantially equivalent.” Arrington v. Cobb County,
b. Arthur Spring
Grover’s second comparator, Arthur Spring, was hired by Rudis in April 2001 as a vice president responsible for European business operations and development. (Rudis Dep. at 66-67; Sarnoski Deck, Ex. C at 1.) Spring was based in Paris, France, and was technically employed by a subsidiary of Smarte Carte (Smarte Carte France SAS), which appears to have been created for the sole purpose of administering Spring’s payroll. (Sarnoski Ex. C at 9-10.) According to Grover, Spring’s job duties mirrored her own: development and implementation of the company’s business strategy, leading the European business line, building client relationships, negotiating contracts, and pursuing expansion opportunities. (Grover Aff. ¶¶ 15-10.) Yet Spring was paid more than Grover.
In 2006, Smarte Carte relocated Spring to the United States and promoted him to Senior Vice President of Business Development and International Operations. Aside from his relocation, it is unclear that Spring’s job duties changed along with his promotion.
Smarte Carte argues that Spring cannot serve as a comparator in this case because from 2001 through 2006 Spring was employed by Smarte Carte France SAS, whereas Grover worked for Smarte Carte, Inc. Smarte Carte also argues that Spring cannot serve as a comparator because he was based in France, whereas Grover was based in Minnesota.
The EPA is expressly limited to employees working in the same “establishment.” 29 U.S.C. § 206(d)(1). “Establishment” has been defined by regulation as:
a distinct physical place of business rather than to an entire business or “enterprise” which may include several separate places of business. Accordingly, each physically separate place of business is ordinarily considered a separate establishment.
29 C.F.R. § 1620.9(a). However, courts have recognized that there are circumstances under which separate locations within an organization may be deemed one “establishment” for purposes of the EPA. Specifically, courts consider whether there is central control of job descriptions, salary administration, and assignment of job functions. See, e.g., Brennan v. Goose Creek Consol. Ind. Sch. Dist.,
Here, given that Spring and Grover both reported to Rudis and both performed similar work for Smarte Carte, Inc., a reasonable trier of fact could infer that a single establishment exists for purposes of the EPA. The fact that Spring was technically employed by a French subsidiary for a portion of the relevant time period does not alter the analysis at this juncture. Even while employed by the company’s French subsidiary, Spring reported to Rudis, CEO of Smarte Carte, Inc., his pay was determined by Smarte Carte, Inc., and he performed his duties on behalf of Smarte Carte, Inc. A reasonable trier of fact could conclude that Grover and Spring worked for a single establishment for purposes of the EPA.
Smarte Carte also argues that Spring is not a proper comparator because his position differed from Grover’s position. A review of the record reveals that Spring and Grover were employed in similar capacities. They were both vice presidents (albeit of different business units), they both reported to Rudis, and they had similar job responsibilities. Indeed, their employment agreements contain nearly identical job descriptions. (Sarnoski Deck, Ex. A at 21, Ex. C at 12.) Thus, Grover has established a prima facie case that Spring is a proper comparator.
3. Nondiscriminatory Basis for Unequal Pay
Smarte Carte has done little in its moving papers to establish that Grover’s compensation was determined by factors other than gender. Smarte Carte argues — unpersuasively — that Grover was paid the same or more than her male counterparts and that even if she was paid less, it was due to the nature of her job responsibilities rather than her gender. Smarte Carte has fallen short of meeting its burden of providing a legitimate nondiscriminatory factor on which Grover’s pay was based. Sowell v. Alumina Ceramics, Inc.,
C. Pay Discrimination Under Title VII
Grover alleges that Smarte Carte’s failure to pay her the same amount as her male counterparts also establishes a violation of Title VII. The Eighth Circuit has long held that “[wjhere a claim is for unequal pay for equal work based upon sex, the standards of the Equal Pay Act apply whether the suit alleges a violation of the Equal Pay Act or of Title VII.” McKee v. Bi-State Dev. Agency,
D. Disparate Treatment Under Title VII
Grover also bases her Title VII claim on gender discrimination relating to disparate treatment, i.e., Smarte Carte’s failure to promote her and give her additional career-enhancing opportunities and subjecting her to offensive and derogatory comments in meetings. (Compl. ¶¶ 19-20.) Smarte Carte did not move for summary judgment on this aspect of Grover’s Title VII claim. Smarte Carte argues, however, that the Court may sua sponte enter summary judgment on this claim. Smarte Carte relies on Enowmbitang v. Seagate Tech., Inc.,
Here, in contrast, Grover has properly stated a claim under Title VII. She alleges that, as a result of Smarte Carte’s gender discrimination, she was denied earned promotions and the opportunity to expand her areas of responsibility. If her allegations are true, Grover has suffered adverse employment action.
E. Retaliation Under Title VII
Grover also raises a retaliation claim under Title VII. She alleges that she was fired in retaliation for her consistent complaints regarding her unequal pay and disparate treatment. To establish a claim of retaliation, Grover must show: (1) that she was engaged in protected activity; (2) she suffered an adverse employment action; and (3) there was a causal connection between the protected activity and the adverse action. Sowell,
Although “[a]n inference of a causal connection between a charge of discrimination and termination can be drawn from the timing of the two events, ... in general more than a temporal connection is required to present a genuine factual issue on retaliation.” Peterson v. Scott Cnty.,
Because of the temporal proximity in this case, an inference of retaliatory motive is appropriate. Giving Grover the benefit of all favorable inferences, a jury could find that Smarte Carte’s decision to terminate Grover’s employment was in retaliation for her complaints of disparate treatment.
Smarte Carte also argues that the retaliation claim should be dismissed because it terminated Grover for legitimate business reasons. The record is unclear on this point. Smarte Carte states that it terminated Grover as part of a reduction in force due to its dire financial condition at
F. Limitations Period
Grover filed her charge with the EEOC on February 27, 2008 and filed the instant action on November 19, 2009. [Doc. 1.] In her Complaint, Grover alleges a continued practice of inequality beginning as early as 2002.
The EPA carries a two-year statute of limitations, 29 U.S.C. 255(a), but that period may be extended to three years if the employee can show the employer’s violation was willful, meaning that the employer “knew or showed reckless disregard for whether its conduct violated” the EPA. Smith v. Heartland Auto. Servs., Inc.,
Smarte Carte’s statute of limitations argument as to Grover’s Title VII claims likewise fails. Under Title VII, a discrimination charge must be filed with the EEOC within 300 days of the alleged discrimination. 42 U.S.C. § 2000e-5(e)(3)(A). Grover met this standard by filing her EEOC claim on February 27, 2008, less than 300 days after her termination. In cases of alleged continuing violations, as in this case, a claim will be timely as long as one act of discrimination occurred within that 300-day period. Moreover, under the “continuing violation” theory, the conduct underlying Grover’s claims are not curtailed by the limitations period. “Conduct which occurred more than 300 days before the date of filing cannot be grounds for a suit unless it is part of a continuing violation which is systemic or serial.” Klein v. McGowan,
As discussed above, Grover has met this standard by presenting evidence that would support a finding that Smarte Carte engaged in a longstanding pattern of discrimination. Smarte Carte’s limitations arguments do not support a determination that summary judgment is appropriate.
Based on the foregoing, and all the files, records and proceedings herein, IT IS HEREBY ORDERED that Defendant’s Motion for Summary Judgment [Doc. No. 15] is DENIED.
Notes
. There is a dispute as to whether Grover was "promoted" sometime in 2001 or whether she was only given a change in pay. (PL's Opp'n Mem. at 11-12.) The pay change increased Grover's base pay, but eliminated her ability to earn commissions. Grover contends that her overall pay decreased as a result of this change. (Id. at 12.)
. Airport locker sales decreased significantly after September 11, 2001, due to heightened airport security measures. (See Rudis Dep. at 18-19; id., Ex. 13 at 1.) Grover drove sales back to pre-September 11 levels by 2007. (Id., Ex. 1 at 8.)
. Between 2006 and 2007, Grover received a total of $1.4 million for her stock options and in deferred compensation. (Grover Dep. at 226.)
. Grover testified that she is not basing her EPA claim on the amount she received from stock options. (Grover Dep. at 226-27.)
. It is questionable whether Grover's allegations relating to derogatory comments rises to the level of adverse action, but the Court need not decide that issue under the present procedural posture.
. Smarte Carte argues that Grover's hostile work environment claim should be dismissed, but there does not appear to be any such claim in the Complaint. (Def.’s Supp. Mem. at 40-41.) At oral argument, counsel for Grover acknowledged that Grover has not raised a hostile work environment claim.
. The record supports Grover's contention that Rudis began termination proceedings on or before May 18, 2007, just 10 days after Grover’s last complaint to him. (Sarnoski Deck, Ex. H.) Whether the adverse action was 10 days or 23 days after Grover’s complaint to Rudis, the inference is the same.
. Smarte Carte argues that the time frame of Grover's allegations should be limited to those beginning on February 13, 2004, the date identified in Grover’s EEOC charge, because she has failed to exhaust any claims occurring prior to that date. Smarte Carte’s argument, even if correct, is not dispositive and thus does not affect the outcome of this motion.