Wanda BIRCH, Plaintiff-Appellant, v. CUYAHOGA COUNTY PROBATE COURT; John J. Donnelly, Presiding Judge, Defendants-Appellees.
No. 03-3228.
United States Court of Appeals, Sixth Circuit.
Argued: June 10, 2004. Decided and Filed: Dec. 1, 2004.
392 F.3d 151
Moreover, information provided to us by our sister Circuits indicates that Moran is best viewed as a limited exception to the general rule. Two Courts of Appeals have held that an FTCA claim cannot be dismissed for lack of subject matter jurisdiction where the disputed jurisdictional facts concerning immunity are inextricably intertwined with the merits of the plaintiff‘s claim. Citing our decision in Williamson v. Tucker, 645 F.2d 404 (5th Cir.1981), as the controlling precedent on the issue, the Eleventh Circuit specifically has held in the context of the FTCA that a claim against the United States may not be dismissed for lack of subject matter jurisdiction under
IV. Conclusion
According to case law in this Circuit, and consistent with the decisions of our sister Circuits, the district court should not have resolved disputed facts dispositive of both subject matter jurisdiction and the merits of an FTCA claim on a
Before: KEITH, CLAY, and GIBBONS, Circuit Judges.
OPINION
CLAY, Circuit Judge.
Plaintiff Wanda Birch, a magistrate in the Release of Assets Department of the Cuyahoga County Court of Common Pleas Probate Court (“Probate Court“), appeals the January 27, 2003 order of the United States District Court for the Northern District of Ohio, granting summary judgment in favor of the Probate Court and Defendant Judge John J. Donnelly, Presiding Judge of the Probate Court, on her claims for race and sex discrimination under Title VII of the Civil Rights Act of 1964, as amended,
I.
A. Substantive Facts
On September 7, 1993, Plaintiff Wanda Birch was hired as a Probate Court magistrate after interviewing with Probate Court Administrator/Magistrate John Polito, as well as Judge Donnelly, Presiding Judge.1 The Probate Court has six departments: Front Office, Accounts, Adoption, Guardianship, Psychiatric, and Release of Assets. Birch was hired as a Release of Assets magistrate and continues to serve in that capacity.
In 1998, the magistrates of the Domestic Relations Division of the Cuyahoga County Court of Common Pleas conducted a study of the salary levels of all the magistrates in each of the Divisions of the Court of Common Pleas as part of a state-wide survey of magistrate positions. The salary survey showed that the average salary of female Probate Court magistrates was lower than the average salary of male Probate Court
The four female magistrates met with Judge Donnelly and Magistrate Polito in October, 1998. In response to Birch‘s concern about her low salary, Judge Donnelly stated that certain departments in the Probate Court had more responsibility and therefore justified higher salaries compared to the Release of Assets Department. According to Birch, Judge Donnelly added, “I don‘t know how I would make these salaries fair. I rely on the men to do the important work of the Court.”
Birch then asked Judge Donnelly why she was the lowest paid Magistrate at the court and whether he had a concern about her work. Judge Donnelly responded that he did not “trust her work,” adding, “I would prefer that you not work here.”2 When Birch asked if she was being fired, Judge Donnelly responded that she was not fired, only that he would prefer that she not work at the court. He also allegedly told Birch, “I don‘t have to hire women,” and told all of the female magistrates that if they do not want to work at the court, they do not have to do so.
Birch alleges that following the meeting with Judge Donnelly, she was denied spillover work from the Front Office Department for a period of time, as was Magistrate Heidi Koenig, who also had participated in the meeting with Judge Donnelly. Magistrate Koenig subsequently was promoted to a position in the Front Office in 2001. Birch also alleges that her work was subject to greater scrutiny in retaliation for her complaint about her lower salary.
B. Procedural History
On July 12, 2001, Birch filed a complaint against the Probate Court and Judge Donnelly, alleging race, sex and age discrimination, retaliation, and intentional infliction of emotional distress. On January 27, 2003, the district court granted Defendants’ motions for summary judgment. Although the district court rejected Defendants’ argument that Birch is not covered by Title VII, the ADEA, and the Equal Pay Act, it dismissed the race, sex and age discrimination claims on the ground that Birch had not shown an adverse employment action with respect to her failure-to-promote claim or that persons outside of her protected classes had been treated differently. With respect to Birch‘s wage discrimination claims brought under Title VII and the Ohio Civil Rights Act, the court held that Defendants’ reasons for Birch‘s lower wages compared to the male magistrates on the Probate Court were legitimate and undisputed. The court stated:
The various magistrates perform widely divergent tasks, and many of these tasks are far more challenging and time-consuming than others. In the present case, while Birch was the lowest paid magistrate, it is uncontestably established before this Court that she lacked any job experience when she was hired, was the least senior magistrate, complet-
As to her wage discrimination claim brought under the Equal Pay Act, the court held that Birch‘s magistrate position was not substantially equal to the higher-paid magistrate positions, and, in any event, the wage differential was justified on the basis of seniority and merit. The court dismissed the intentional infliction of emotional distress claim because Birch had failed to establish that Judge Donnelly‘s conduct toward her was sufficiently outrageous under Ohio law. The court never directly addressed Birch‘s retaliation claim, but the court‘s summary judgment order implicitly dismissed that claim as well.
On appeal, Birch has not contested the district court‘s dismissal of her race and age discrimination claims, nor her failure-to-promote claim and her claim for intentional infliction of emotional distress. Therefore, she has waived review of those portions of the district court‘s order. The remaining issues for review are whether the district court erred in dismissing Birch‘s claim for sex-based wage discrimination, whether brought under Title VII, the Equal Pay Act or the Ohio Civil Rights Act, and in dismissing her claims for retaliation under
II.
A. Standard of Review
This Court reviews de novo a district court‘s decision to grant summary judgment. Cockrel v. Shelby County Sch. Dist., 270 F.3d 1036, 1048 (6th Cir.2001). Summary judgment must be granted if the pleadings and evidence “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
B. Birch‘s Coverage by Title VII and the Equal Pay Act
1. Title VII
Title VII makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual” because of sex.
[t]he term “employee” means an individual employed by an employer, except that the term “employee” shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer‘s personal staff, or an appointee on the policy making level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office. The exemption set forth in the preceding sentence shall not include employees subject to the civil service laws of a State government, governmental agency or political subdivision.
Defendants argue that Birch is not an “employee” for Title VII purposes and, therefore, she cannot sue under that statute. They argue that she is an exempt employee because she is not subject to Ohio‘s civil service laws and because she either serves on the personal staff of an elected state official (Judge Donnelly) or is an appointee on the policy-making level. Since it is undisputed that Judge Donnelly is an elected official, see
a. “Personal staff” exemption
A state government employee, not subject to the civil service laws, is not an “employee” for Title VII purposes if she works on an elected official‘s “personal staff.”
- whether the elected official has plenary powers of appointment and removal,
- whether the person in the position at issue is personally accountable to only that elected official,
- whether the person in the position at issue represents the elected official in the eyes of the public,
- whether the elected official exercises a considerable amount of control over the position,
- the level of the position within the organization‘s chain of command, and
- the actual intimacy of the working relationship between the elected official and the person filling the position.
Walton v. State of Mich., No. 90-1116, 1990 WL 182033, at *2 (6th Cir. Nov.23, 1990) (quoting Teneyuca v. Bexar County, 767 F.2d 148, 151 (5th Cir.1985)). “The ‘personal staff’ exception becomes less applicable the lower the particular employee‘s position because the exception was primarily intended to exempt the elected official‘s immediate subordinates or those who are his first line advisors.” Montgomery v. Brookshire, 34 F.3d 291, 296 (5th Cir.1994) (internal quotation marks and citations omitted). Despite the fact that the exemption is to be construed narrowly and involves a highly factual inquiry, Teneyuca, 767 F.2d at 152, summary judgment nevertheless may be appropriate when there is no genuine issue of material fact as to the applicability of the relevant factors.
As to the sixth factor, the evidence suggests that Birch has an intimate working relationship with Judge Donnelly because Birch is only one of ten magistrate judges at the Probate Court, and Judge Donnelly depends on Birch to complete the work of the court. Birch contends that the relationship is not intimate because Judge Donnelly has provided very little by way of hands-on or day-to-day interaction with Birch. Her contention, however, is supported only by her vague, conclusory denial of regular contact with Judge Donnelly. See J.A. 325 (“My contact with management on a day-to-day basis occurs much more frequently with Magistrate Polito than with ... Judge Donnelly.“). The undisputed facts remain that Birch, like the other magistrate judges, represents Judge Donnelly in the eyes of the public, completes work that Judge Donnelly cannot himself complete, and makes substantive recommendations to Judge Donnelly on matters before the court. Thus, Birch‘s relationship with Judge Donnelly is intimate in the sense that their respective duties are heavily interdependent. Their relationship does not lose its intimate status merely because Birch is afforded a necessary degree of autonomy in her work, such that she and Judge Donnelly need not interact on a daily basis. Based on the totality of the factors, we hold that Birch is exempt from Title VII‘s coverage as a member of Judge Donnelly‘s personal staff.
b. “Policy making employee” exemption
Defendants also argue that Birch is exempt from Title VII as “an appointee on the policy making level,” relying on the district court decision in Dyer v. Radcliffe, supra. In that case, Plaintiff James Dyer, a referee (the same as a magistrate) was appointed by Judge Gerald Radcliffe of the Ohio Court of Common Pleas to serve in the Juvenile Division. The court held that Dyer was a policy-making employee, unprotected by Title VII, reasoning as follows:
Under Ohio law, “the juvenile judge may appoint ... referees ....”
O.R.C. § 2151.16 . The Sixth Circuit has determined that “the referee effectively makes policy for, or suggests policy to, the court on each occasion that he resolves a dispute in the court‘s name or recommends a disposition to the judge.”
Dyer, 169 F.Supp.2d at 774-75.
As was the case in Dyer, Judge Donnelly, an elected official, has the authority to appoint magistrates like Birch, who are exempt from the civil service laws. See
Unquestionably, the inherent duties of an Ohio domestic relations court referee entail a relationship of confidence between the referee and the judge(s) which he serves. The referee is privy to confidential litigation materials and internal court communications in the discharge of his duties, and further maintains a personal confidential relationship with the judge(s) which [sic] he serves. See Blair v. Meade, 76 F.3d 97, 101 (6th Cir.1996); Balogh v. Charron, 855 F.2d 356 (6th Cir.1988). Moreover, the referee effectively makes policy for, or suggests policy to, the court on each occasion that he resolves a dispute in the court‘s name or recommends a disposition to a judge. Consequently, his supervising judge must be convinced that the judgment capabilities of the referee, and the confidential relationships that arise as a result of the intimate judicial and quasi-judicial discussions, are unquestionable.... Ohio law expressly assigns some discretionary adjudicative authority to the referees, permits Ohio judges to delegate other adjudicative powers to the referees, and provides that the referees shall proffer advice (often in confidence) to the judges concerning the disposition of cases and other legal controversies. For these reasons, this court is constrained to rule that Mumford‘s former position as a referee for the Domestic Relations Court was an inherently political post....
Id. at 272. Since the inherent duties of a probate magistrate are delineated by the same Ohio Rules of Civil Procedure that govern a domestic relations magistrate,5 Mumford compels us to conclude that Birch effectively makes policy for the Probate Court by resolving disputes and recommending dispositions to Judge Donnelly. Accordingly, we affirm the dismissal of Birch‘s Title VII claim on the independent ground that she is exempt from the stat-
2. Equal Pay Act
The Fair Labor Standards Act, which the Equal Pay Act amended, contains “personal staff” and “policy maker” exemptions that parallel Title VII‘s exemptions. The FLSA‘s protections (and thus the Equal Pay Act‘s protections) do not extend to an individual:
(i) who is not subject to the civil service laws of the State, political subdivision, or agency which employs him; and
(ii) who-
(I) holds a public elective office of that State, political subdivision, or agency,
(II) is selected by the holder of such an office to be a member of his personal staff, [or]
(III) is appointed by such an officeholder to serve on a policymaking level[.]
C. Birch‘s Sex-Based Wage Discrimination Claim under the Ohio Civil Rights Act
The only remaining basis for Birch to sue for sex discrimination is under Ohio law. Ohio‘s Minimum Fair Wage Standard Act (“MFWSA“) prohibits sex-based wage discrimination.
Defendants argue that, to prove sex discrimination, Birch is required to satisfy this “equal work” standard, namely, she
In response, Birch points to the experience of Magistrate Heidi Koenig, who handled guardianship and appropriation cases before moving to the Front Office. After a year and a half on the job, Koenig testified that the Front Office work was different in that there was a wider span of probate law at issue and she was required to conduct more evidentiary hearings than in her non-Front Office position, but she could not say that her work in the Front Office was more demanding. She further testified that any other magistrate could handle work in the Front Office with the proper training.
If anything, Magistrate Koenig‘s experience tends to show that the fundamental nature of the Front Office work is different from Release of Assets work because Front Office magistrates generally must spend significantly more time conducting evidentiary hearings and engaging in complex legal analyses. The fact that a non-Front Office magistrate might have to be trained to perform in the Front Office further suggests that Birch was not performing substantially equal work in the Release of Assets Department. Finally, at oral argument, Birch‘s counsel characterized a magistrate‘s movement to the Front Office as a “promotion,”8 a fact that, if true, suggests that Front Office work is not substantially equal to Release of Assets work.
Yet, Birch‘s arguable failure to satisfy the “equal work” standard is not necessarily fatal to her sex-based wage discrimination claim, because she has not alleged a claim under the MFWSA. Birch‘s first amended complaint invoked the Ohio Civil Rights Act,
Title VII, which prohibits discrimination in compensation because of sex,
In practical terms, [the petitioners’ argument] means that a woman who is discriminatorily underpaid could obtain no relief-no matter how egregious the discrimination might be-unless her employer also employed a man in an equal job in the same establishment, at a higher rate of pay. Thus, if an employer hired a woman for a unique position in the company and then admitted that her salary would have been higher had she been male, the woman would be unable to obtain legal redress under petitioners’ interpretation. Similarly, if an employer used a transparently sex-biased system for wage determination, women holding jobs not equal to those held by men would be denied the right to prove that the system is a pretext for discrimination.... Congress surely did not intend the Bennett Amendment to insulate such blatantly discriminatory practices from judicial redress under Title VII.
Id. at 178-79, 101 S.Ct. 2242. Thus, Gunther instructs that a Title VII plaintiff suing for wage discrimination (and, by extension, a plaintiff suing under
The dissent contends that the above-quoted language from Gunther was intended to be a “very narrow exception to the ‘equal work’ standard in Title VII sex-based wage discrimination claims” and argues that the exception applies only (1) where an employer admits to sex discrimination (i.e., the plaintiff must present “direct evidence of intentional wage discrimination“) or (2) in situations involving transparently sex-biased systems for wage determination. Read in context, however, it is clear that the Supreme Court proffered these two examples of blatant sex discrimination in order to starkly demonstrate the untenability of the argument
Even assuming that Birch cannot satisfy the equal work standard, her burden under
Contrary to the dissent‘s position, a Title VII plaintiff (and, therefore, a plaintiff suing under Ohio‘s Title VII counterpart) is not required to submit direct evidence of intentional discrimination. Courts are not supposed to “depart from the ‘[c]onventional rul[e] of civil litigation [that] generally appl[ies] in Title VII cases.‘” Desert Palace, Inc. v. Costa, 539 U.S. 90, 99, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003) (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 253, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989)). “That rule requires a plaintiff to prove his case ‘by a preponderance of the evidence,’ [Price Waterhouse, 490 U.S. at 253, 109 S.Ct. 1775,] using ‘direct or circumstantial evidence,’ Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 714 n. 3, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983).” Id. (emphasis added). “The reason for treating circumstantial and direct evidence alike is both clear and deep-rooted: ‘Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence.‘” Id. at 100, 123 S.Ct. 2148 (quoting Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 508 n. 17, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957)).
Following the lead of Title VII cases, the Court of Appeals of Ohio, interpreting
We hold that Birch has proffered “direct” evidence of intentional discrimination, as the Ohio courts define that concept. During the October, 1998 meeting, when Birch and the other female magistrates confronted Judge Donnelly about their salary concerns, Judge Donnelly allegedly responded that he did not “have to hire women“; that the female magistrates did not have to work at the court if they do not want to; and that he did not know how to make the salaries fair because he “rel[ied] on the men to do the important work of the Court.”11 He also allegedly told Birch that she was fired, a statement he subsequently retracted. Assuming Judge Donnelly made these statements (as the Court must in the summary judgment context), they constitute highly probative evidence of sexual bias by the individual most familiar with and responsible for setting the magistrates’ salaries, a bias that he expressed in the context of Birch‘s complaint about being underpaid. Moreover, there was a direct correlation between Judge Donnelly‘s sexual animus and his refusal to increase Birch‘s pay in order to make it fair compared to the salary of males. Indeed, Judge Donnelly‘s initial response was to cut Birch‘s pay altogether by firing her, although he subsequently retracted that decision. No inference is required to conclude from the context of Judge Donnelly‘s comments that he intended to set Birch‘s pay based, at least in part, on her sex, and that he resented being presented with the equal pay request. His statements were not random “thoughts” on the inferiority of women, but were evidence of a purposeful motivation to maintain Birch‘s pay at its current level because of her sex.
Summary judgment is unwarranted, even assuming, arguendo, that Judge Donnelly‘s comments are more appropriately classifieds as “circumstantial” evidence of discriminatory intent. According to the dissent, Birch cannot prove discrimination through the McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) paradigm utilized for intentional discrimination cases premised solely on circumstantial evidence. We disagree.
It is true that, in typical disparate treatment cases, this Court applies the McDonnell Douglas four-part test for a prima facie case and has held that the fourth element of the test is satisfied with evidence that a similarly-situated person outside the protected class received more favorable treatment. E.g., Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992) (applying Ohio law).12 It does not
The Supreme Court made this very point in Gunther when it held that there may be viable cases of sex-based wage discrimination even where the plaintiff cannot point to a similarly-situated employee of the opposite sex who is earning more. Gunther, 452 U.S. at 178-79, 101 S.Ct. 2242. Yet, requiring such a plaintiff, as part of her prima facie case, to produce evidence that comparably situated employees of the opposite sex were treated more favorably (i.e. received unequal pay for equal work) would directly conflict with the Court‘s holding. Therefore, this type of comparative evidence cannot, as a matter of logic, be a necessary part of the plaintiff‘s prima facie burden.
According to the Supreme Court, the purpose of the prima facie burden is to “eliminate[] the most common nondiscriminatory reasons” for the adverse action and raise an inference that the adverse action was motivated by discriminatory animus. Burdine, 450 U.S. at 253-54, 101 S.Ct. 1089 (citations omitted); see also Price Waterhouse, 490 U.S. at 270, 109 S.Ct. 1775 (O‘Connor, J., concurring) (“The prima facie case established [in McDonnell
Because we hold that Birch has met her prima facie burden of demonstrating sex-based wage discrimination, the remaining question under the McDonnell Douglas paradigm is whether she has created a genuine issue of material fact as to whether Defendants’ non-discriminatory justifications for her rate of pay are a pretext for sex discrimination. According to the Supreme Court, “a plaintiff‘s prima facie case, combined with sufficient evidence to find that the employer‘s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.” Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 148, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). As discussed below, Birch has submitted evidence suggesting that several of Defendants’ explanations are false.
Defendants proffered several reasons for Birch‘s lower salary compared to the higher-paid male magistrates, including Birch‘s relatively fewer years of service with the Probate Court and her allegedly deficient performance. But the record suggests that Defendants do not exclusively or consistently rely on years of service to set salaries. Three female magistrates (Ann Wenneman, Heidi Koenig, and Rosanne Hillow) earn less than a male magistrate (Richard Gedeon) even though he has less court tenure than they. In addition, two of those magistrates (Wenneman and Hillow) earn the same salary as a male magistrate (Alan Shankman), even though the female magistrates have greater court tenure. Thus. a factfinder reasonably could reject Defendants’ assertion that Birch‘s lower pay is explainable by her relatively fewer years with the court.
Defendants’ assertion that Birch‘s lower salary is explainable by her allegedly deficient performance also raises a significant credibility issue. Defendants’ sole support for this argument is Judge Donnelly‘s declaration, which states, “In reviewing the daily work of all the Magistrates, I observed that the error rate of Plaintiff Wanda Birch was greater than the other Magistrates. As a result, I have less confidence in Plaintiff‘s work, her abilities and her judgment.” Defendants have provided absolutely no explanation of what is meant by Birch‘s alleged “error rate.” More importantly, Judge Donnelly never explained how Birch‘s alleged error rate was connected to her lower rate of pay. Indeed, the following evidence suggests that there is no such connection: (1) at no time during the four years prior to the date Birch first confronted Judge Donnelly about her salary concerns had Defendants told her they had been dissatisfied with her job
In sum, the record contains sufficient evidence to create a genuine issue of material fact as to whether Birch‘s salary was set lower than it would have been had she been a man. The most significant evidence in this regard are Judge Donnelly‘s alleged biased statements indicating that Birch‘s sex was a consideration when he set and/or refused to increase her salary. In addition, several of Defendants’ facially non-discriminatory justifications for Birch‘s lower salary are in material dispute, permitting the inference that they are a pretext for a discriminatory motive. For these reasons, we reverse the district court‘s dismissal of Birch‘s sex-based wage discrimination claim under the Ohio Civil Rights Act.
D. Birch‘s Retaliation Claims
Birch‘s first amended complaint alleged retaliation claims against Defendants pursuant to
Defendants argue that Birch cannot bring a retaliation claim under
Ultimately, Birch‘s retaliation claims, whether brought under
III.
For all the foregoing reasons, we AFFIRM the dismissal of Birch‘s Title VII and Equal Pay Act claims, as well as her claims for race discrimination, age discrimination, and intentional infliction of emotional distress. However, we REVERSE the district court‘s dismissal of her sex-based wage discrimination claim under the Ohio Civil Rights Act.
JULIA SMITH GIBBONS, Circuit Judge, concurring in part and dissenting in part.
I agree with the majority that Birch cannot recover on her claim of sex-based wage discrimination under either Title VII or the Equal Pay Act. I also agree that Birch cannot establish a claim of retaliation under
I.
The majority concludes that Birch raises a genuine issue of material fact on her sex-
I cannot agree with the majority‘s conclusion. Gunther was intended to be a very narrow exception to the “equal work” standard in Title VII sex-based wage discrimination claims. Indeed, the Supreme Court explicitly declined to “decide ... the precise contours of lawsuits challenging sex discrimination in compensation under Title VII.” Id. at 181, 101 S.Ct. 2242. The opinion, instead of finding the “equal work” standard of the Equal Pay Act wholly inapplicable to Title VII cases, as the majority would hold, carves out exceptions from the “equal work” requirement in a few isolated situations, such as instances where an individual holds a unique job and the employer has expressly admitted that the individual would be paid more but for the individual‘s sex and situations involving “transparently sex-biased system[s] for wage determination.” Id. at 179, 101 S.Ct. 2242.
Federal courts hearing cases involving sex-based wage discrimination claims have read Gunther narrowly, rather than expansively, as the majority does today. See Clark v. Johnson & Higgins, No. 97-4233, 1999 WL 357804, at *3 (6th Cir. May 28, 1999) (finding the Gunther rationale inapplicable in a case where the employer made no admission that the employee would have been paid more had she been male and where no “transparently sex-biased system for wage determination” existed, and holding that a claims of wage discrimination under Title VII and the Equal Pay Act are subject to standards which are substantially similar such that the outcome of both claims should be identical); Plemer v. Parsons-Gilbane, 713 F.2d 1127, 1133 (5th Cir.1983) (stating that Gunther‘s rationale is limited to cases of “transparently sex-biased system[s] for wage determination” and cases involving direct evidence that the employer paid the employee less because of his or her sex); EEOC v. Sears, Roebuck & Co., 628 F.Supp. 1264, 1333 (N.D.Ill.1986) (noting that the Gunther analysis is only appropriate in instances of intentional discrimination that is direct, or violations that are blatant, and noting that federal courts have refused to apply Gunther analysis where the claim involves a subjective assessment of different positions with different duties).
The majority chooses not only to read the Gunther case as broadly exempting sex-based wage discrimination claims from satisfying the “equal work” standard, but extends that exemption to Ohio state law.1 Such an expansion of Gunther is unjustified by case law interpreting
Thus, I would hold that Birch‘s claim under
II.
Even assuming arguendo that the “equal work” standard does not apply to Birch‘s claim, so that Title VII analysis, rather than Equal Pay Act analysis, governs Birch‘s wage discrimination claim under
In order to establish a case of sex discrimination under Title VII analysis, a plaintiff must prove discriminatory intent. Mauzy v. Kelly Servs., Inc., 75 Ohio St.3d 578, 664 N.E.2d 1272, 1277 (1996). The plaintiff may satisfy this burden by producing either direct or circumstantial evidence of sex discrimination. See McGowan v. Cuyahoga Metro. Hous. Auth., No. 84041, 2004 WL 1752867, at *1 (Ohio App. Aug. 5, 2004). In a direct evidence case, the plaintiff must present “direct testimony that the employer acted with a discriminatory motive.” Vincenti v. Hilliard-Lyons, Inc., No. 91-5374, 1991 WL 256708, at *2 (6th Cir. Dec.5, 1991) (citing Blalock v. Metals Trades, Inc., 775 F.2d 703, 707 (6th Cir.1985)). While it is necessary to produce evidence which supports a finding of discriminatory intent, such proof alone is insufficient. Mauzy, 664 N.E.2d at 1280. Rather, “[t]he critical inquiry ... is whether gender was a factor in the employment decision at the moment it was made.” Price Waterhouse v. Hopkins, 490 U.S. 228, 241, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). As such, the plaintiff attempting to establish a claim of sex discrimination using direct evidence must also point to an action or omission made with respect to the plaintiff‘s employment and connect the action to the discriminatory intent. See id. at 262, 109 S.Ct. 1775 (O‘Connor, J., concurring) (noting that Title VII was not intended to be a “thought control bill,” and that it is necessary to have the requisite discriminatory intent coupled with an adverse employment action in order to establish a prima facie case). Thus, the plaintiff bears the burden of not only showing that the employer had discriminatory thoughts, but also that the adverse employment action that she complains of
Birch produces three statements made by Donnelly during the context of a discussion about the existing salary discrepancies between men and women at the office as direct evidence of discrimination: (1) Donnelly‘s assertion that he “did not have to hire women,” as there was no law which mandated that he do so; (2) Donnelly‘s statement that the female magistrates were not obligated to work at the court if they did not want to; and (3) Donnelly‘s statement that he would not know how to make the salaries fair, as he relied on men to do the important work of the court. Certainly, these statements display troubling discriminatory animus toward the female magistrates on Donnelly‘s part. However, as noted above, evidence of discriminatory thought or intent alone is not enough. Birch is required, additionally, to present evidence permitting an inference that the adverse employment action she complains of-namely, the pay differential between her salary and the salaries of her male co-workers-was taken because of Donnelly‘s discriminatory thoughts toward her because of her sex. Thus, while Donnelly‘s statements provide direct evidence of generalized discriminatory animus, they do not provide direct evidence to support Birch‘s specific claim.
Birch cannot meet this burden, and thus her claim of direct discrimination fails. It is true, as the majority notes, that the statements listed above were made in the context of a discussion between Donnelly and four female magistrates, including Birch, regarding the women‘s salary concerns. However, the record reveals no evidence permitting a finding of a connection between Donnelly‘s discriminatory views and the setting of Birch‘s salary. Therefore, while the statements can be used as circumstantial evidence of discrimination against Birch, they fail to permit an inference of discrimination based on direct evidence. See Anderson v. Twitchell-A Tyco Int‘l Ltd., 76 F.Supp.2d 1279, 1285 (M.D.Ala.1999).
In the absence of direct evidence of sex discrimination, the plaintiff may also establish her claim by producing circumstantial evidence of discrimination. Title VII requires that a plaintiff meet the familiar McDonnell Douglas test when establishing a claim of discrimination using circumstantial evidence. See Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir.1992) (Title VII sex discrimination case applying the four-part test articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). To satisfy the four-part test for a prima facie case of discrimination, the plaintiff must show that: (1) she was a member of a protected class; (2) she suffered an adverse employment action; (3) she was qualified for the position; and (4) a similarly situated person outside the protected class received more favorable treatment. Id. Birch is clearly a member of a protected class, and has identified an adverse employment action in the form of the difference between her salary and that of her male co-workers. However, Birch is unable to identify a male co-worker who is similarly situated. Therefore, Birch is unable to meet her prima facie burden.
Birch is required, to meet her prima facie burden, to identify a non-protected employee who was similarly situated, or directly comparable, in all material respects. See Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998); McGowan, 2004 WL 1752867, at *2. The most important factors to be considered may vary from case to case, but in order to meet this burden, Birch was required to identify someone who has dealt with the same supervisor, has been subject to the same standards, and has engaged in the same conduct without differentiating
The majority correctly notes that there may conceivably be situations in which a plaintiff cannot establish a prima facie case under conventional McDonnell Douglas analysis, yet may still withstand summary judgment in a circumstantial evidence case. This, however, is not such a case. Here, the plaintiff has made no effort whatever to compare herself to any other individual employee. Her evidence of Donnelly‘s statements permits only an inference that Donnelly harbored discriminatory attitudes about women employees in general, not an inference that the setting of Birch‘s salary was motivated by sex-based discrimination. A claim of sex-based discrimination cannot succeed based on such diffuse evidence of discriminatory animus, where the record contains no evidence connecting the discriminatory attitude to any employment decision involving the plaintiff. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (holding that the trait protected under Title VII “must have actually played a role in the employer‘s decisionmaking process and had a determinative influence on the outcome.“) (internal quotation marks and citation omitted).
For the all of the reasons stated above, I cannot conclude that Birch has raised a genuine issue of material fact on her sex-based wage discrimination claim under the Ohio Civil Rights Act and therefore would find that the district court properly granted summary judgment in favor of the defendants.
CLAY, CIRCUIT JUDGE.