Mickelson v. New York Life Insurance

F I L E D
United States Court of Appeals
Tenth Circuit
PU BL ISH
August 28, 2006
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

JEN N IFER J. M IC KELSO N ,

Plaintiff - Appellant,

v. No. 05-3049

NEW Y ORK LIFE INSURANCE
C OM PA N Y ,

Defendant - Appellee.

_____________________________

EQ U A L EM PLO Y ME N T
O PPO RTU N ITY CO M M ISSIO N,

Amicus Curiae.

A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE DISTRICT OF KANSAS
(D . C t. No. 03-CV-2294-CM )

M ark A. Buchanan, Sanders, Simpson & Fletcher, L. C., Kansas City, M issouri,
appearing for the Appellant.

Elaine Drodge Koch (Jeremiah J. M organ and Heather S. Esau Zerger, with her on
the brief), Bryan Cave LLP, Kansas City, M issouri, appearing for the Appellee.

Julie G antz, Attorney (Eric S. Dreiband, General Counsel, Carolyn L. W heeler,
Acting Associate General Counsel, and Vincent J. Blackwood, Assistant General
Counsel, with her on the brief), Equal Employment Opportunity Commission,
Office of General Counsel, W ashington, D.C., appearing for amicus curiae Equal
Employment Opportunity Commission.
Before TA CH A, Chief Circuit Judge, BALDOCK , and LUCERO, Circuit
Judges.

TA CH A, Chief Circuit Judge.

Plaintiff-Appellant Jennifer J. M ickelson sued her employer, Defendant-

Appellee New York Life Insurance Company (“NYL”), alleging retaliation and

discrimination on the basis of sex under Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e et seq., and salary discrimination under the Equal Pay Act

(“EPA”), 29 U.S.C. § 206(d). The District Court granted summary judgment in

favor of NYL on all claims. On appeal, M s. M ickelson argues that there is a

genuine issue of material fact regarding whether she was paid less than male

employees performing the same w ork because of her sex and whether the actions

of her employer constitute an adverse employment action. W e take jurisdiction

under 28 U.S.C. § 1291 and REVERSE.

I. BACKGROUND

NYL sells life insurance products to independent insurance brokers

throughout the United States. Sales are made mainly through field

directors— marketing representatives who promote the sale of NYL products and

services to the independent insurance brokers. Field directors receive internal

support from marketing service consultants (“M SC”). An M SC acts as a liaison

between the field directors, who are out in the field selling insurance, and NYL’s

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producing groups. Six M SCs worked in NYL’s Leawood, Kansas office.

That office hired M s. M ickelson as an M SC in September 2000. M s.

M ickelson’s resume indicates that she graduated from law school in M ay 2000

and that for the six years before and during law school she worked part-time for

another life insurance company, first in the underwriting department, and later

(for the last six months), as a marketing service representative— a position very

similar to the one she was hired to perform at NYL. Because of her law degree,

M s. M ickelson was assigned to the M SC group responsible for high net worth

clients and corporations; for this reason, the group was considered relatively

prestigious. A lthough a law degree was not required for her position, NYL

believed it added to M s. M ickelson’s credibility when dealing with those clients;

additionally, M s. M ickelson used her legal knowledge to prepare estate planning

illustrations for those clients. Although she did not have any insurance-related

professional licences when she was hired, she steadily worked toward and

obtained a Series 6 license. 1 In addition, M s. M ickelson earned a “Fellow Life

M anagement Insurance” designation, which indicates extensive knowledge of

products in the life insurance industry, as w ell as a “Chartered Life U nderw riter”

designation, which indicates passage of ten professional courses.

W hen a new employee is hired, NYL assigns him or her to a grade level;

1
A Series 6 license is required in order to sell mutual funds and variable
annuities.

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each grade level carries a specific salary range. Typically, M SCs are assigned to

grade level 13, which carries a salary range of $45,100 to $69,900. John Begley,

the director of human resources at the Leawood office, and James Vavra, the vice-

president of operations at the Leawood office, assigned M s. M ickelson to grade

level 13 and set her salary, without negotiation, at $50,000. By September 2002

she was earning $53,400.

Vickie Day was hired as an M SC in O ctober 2000, the month after M s.

M ickelson. M s. Day brought to NYL five years of experience working in the life

insurance industry, as well as eleven years experience in an administrative

assistant position. She had a Bachelor’s degree and Series 6 and 63 2 professional

licenses. Her salary immediately prior to being hired at NYL was $48,000. Like

M s. M ickelson, M s. Day was assigned to grade level 13 and her starting salary

was $50,000. By September 2002, M s. Day’s salary was $52,500.

M ark Shelton was hired as an M SC in December 2000, three months after

M s. M ickelson. M r. Shelton had a Bachelor’s degree and twenty years of

experience in the insurance industry. His salary immediately prior to being hired

at NYL was $43,000. He w as assigned to grade level 14, which carries a salary

range of $51,100 to $79,200, and his salary was set at $60,000. By September

2002, his salary was $61,300.

Kevin Harriman was hired as an M SC in February 2002. M r. Harriman had

2
A Series 63 license is required to be a securities agent.

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two years of experience as a marketing and business analyst at a life insurance

company. It appears that M r. Harriman’s experience in the life insurance industry

is limited to these two years. He also had three years of experience w orking as a

securities trader and financial analyst, and two years of experience as a mutual

fund representative in which he acted as a liaison between the fund and the

broker/dealer. M r. Harriman had a Bachelor’s degree and was w orking tow ard

obtaining his M asters in Business Administration when he was hired. He also had

Series 6, 7, 3 and 63 professional licenses. In his most recent job prior to being

hired at NYL, he earned $55,000, although for the six months prior to being hired

at NYL he was unemployed. He was assigned to grade level 13 and M r. Begley,

M r. Vavra, and Tracie Billings, the M SC supervisor, set his starting salary at

$60,000. No documents were prepared describing how M r. Harriman’s salary was

set.

Two other M SCs worked in the Leawood office— James W irtz and Susan

Hairgrove. Both were hired in 1993. Although the record does not reveal their

qualifications, starting salaries, or performance histories, in 2000, M s. Hairgrove

earned $51,732, compared to M r. W irtz’s $55,737 salary. By September 2002,

both were considered senior M SCs but M s. Hairgrove earned $63,915 while M r.

W irtz earned $72,265— a difference of over $8,000.

3
A Series 7 license is required in order to trade in corporate securities,
other than commodities and futures.

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 Shortly after M r. Harriman was hired, M s. M ickelson learned that his

starting salary was set at $60,000. She made a written inquiry to M s. Billings

asking what criteria were involved in setting salaries. M s. Billings and M r. Vavra

met with M s. M ickelson to discuss her concerns. M r. Vavra told M s. M ickelson

that four factors w ere taken into consideration in setting M r. Harriman’s

salary— experience, qualifications, market factors, and salary history. Not

satisfied that these reasons could explain the disparity in pay, M s. M ickelson

made a formal complaint of salary discrimination to NYL’s home office in New

York City. She sent a copy of the complaint to M r. Begley. NYL conducted an

internal investigation of the complaint and concluded that the disparity in pay was

warranted based upon M r. Harriman’s relevant experience in the broker-dealer

market, NYL’s current need for expertise in that market, M r. Harriman’s and M s.

M ickelson’s relative salary histories, and their respective professional licenses.

In M arch 2002, M s. M ickelson filed a charge of discrimination with the Equal

Employment Opportunity Commission (“EEOC”).

According to M s. M ickelson, after she filed her complaint, she experienced

several adverse employment actions. First, although M r. Vavra had personally

comm itted to look for opportunities for M s. M ickelson in NYL’s legal

department, he never reported back to her about whether there were any such

openings. Second, M s. Billings cancelled a business trip to Boston that M s.

M ickelson was scheduled to take. Third, M s. Billings told M s. M ickelson that

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she would need to use her vacation time to study for a bar examination she was

taking the following week, although M s. M ickelson was previously told that she

did not have to use her vacation time. 4 Fourth, M r. Vavra sent M s. M ickelson an

e-mail, which she considered demeaning, informing her that one of her projects

was “DEAD.” Fifth, she met with M r. Vavra, M s. Billings, and another employee

named Louis Gardner to discuss the fact that M s. M ickelson was asking M r.

Gardner questions regarding work w hen he w as not her supervisor. M r. Vavra

became extremely angry during the meeting. Sixth, after she became engaged to

the field director to whom she provided support services, M s. M ickelson asked

that she be promoted to a “key accounts” position or moved to another

distribution source because she felt that it was not in the “company’s best interest

to have a married couple working on the same marketing team.” M s. Billings

initially suggested that the “key accounts” position would be a good move for M s.

M ickelson; but later, M s. Billings indicated that there were no openings for that

position. She was then reassigned to a different field director in a less-prestigious

M SC group.

Finally, in D ecember 2002, M s. M ickelson took medical leave pursuant to

4
M s. M ickelson had previously taken two bar exams and both times she
received paid time off to study. After M s. Billings said she would need to use her
vacation time to study for the third bar exam, M s. M ickelson had her previous
supervisor confirm that she previously received paid time off. Accordingly, when
M s. M ickelson sat for her third exam, she received the same time off that she did
the previous two times.

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the Family and M edical Leave Act (“FM LA”) and was treated for depression and

panic attacks. Her leave w as scheduled for December 9, 2002, through January

13, 2003. After she had been on leave for approximately two weeks, however,

she inquired as to w hether she could return to w ork on a part-time basis because

her doctor indicated it would be “a good step” for her. M s. Billings denied her

request, stating that because of business demands and staffing requirements, her

position had to be filled by a full-time employee. This response came despite the

fact that NYL’s employee handbook indicates that FM LA leave for a serious

health condition “can be taken intermittently or on a reduced schedule if

medically necessary,” and despite the fact that M s. Hairgrove, another M SC,

suffered a back injury at work in December 2002 and was permitted to return to

work part-time from M arch through M ay 2003. After M s. M ickelson’s request to

work part-time was denied, M s. M ickelson’s condition worsened. She had to

extend her leave until February 19, 2003, which was when her FM LA leave was

exhausted. W hen she could still not return to work, she was fired.

M s. M ickelson filed this complaint against NYL in M ay 2003, alleging

salary discrimination on the basis of sex in violation of both Title VII, see 42

U.S.C. § 2000e-2, and the Equal Pay Act, see 29 U.S.C. § 206(d)(1). She also

alleged that NYL retaliated against her for filing her salary discrimination

complaint, also in violation of Title VII, see 42 U.S.C. § 2000e-3. The District

Court granted summary judgment in favor of NYL on all claims. In dismissing

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the salary discrimination claims, the court held that NYL showed that the reason

for the disparity in pay between M s. M ickelson and the male employees was

based upon their relative experience and qualifications. As to her retaliation

claim, the court held that M s. M ickelson had not shown an adverse employment

action. M s. M ickelson now timely appeals the District Court’s order granting

summary judgment.

II. D ISC USSIO N

A. Standard of Review

W e review the District Court’s entry of summary judgment de novo. Plotke

v. White, 405 F.3d 1092, 1093 (10th Cir. 2005). Summary judgment is

appropriate “if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, 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.” Fed. R. Civ. P. 56(c). W e view the evidence, and

draw reasonable inferences therefrom, in the light most favorable to the

nonmoving party. Plotke, 405 F.3d at 1093–94.

B. Salary Discrimination

There are two ways a plaintiff can proceed on a claim of salary

discrimination: on a theory of intentional discrimination on the basis of sex in

violation of Title VII, or on a theory of wage discrimination on the basis of sex in

violation of the EPA. This is a significant distinction because a plaintiff’s burden

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to prove discrimination varies depending on the statute at issue. Under Title VII,

the plaintiff always bears the burden of proving that the employer intentionally

paid her less than a similarly-situated male employee. The EPA, however, has

been described as imposing a form of strict liability on employers who pay males

more than females for performing the same work— in other words, the plaintiff in

an EPA case need not prove that the employer acted with discriminatory intent.

Ryduchowski v. Port Auth. of N.Y. & N.J., 203 F.3d 135, 142 (2d Cir. 2000);

Sinclair v. Auto. Club of Okla., Inc., 733 F.2d 726, 729 (10th Cir. 1984); M iranda

v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1533 (11th Cir. 1992) (stating

that the EPA “prescribes a form of strict liability”).

Because of this difference in the statutes, the analysis involved in

determining whether the plaintiff has met her burden differs depending on the

statute at issue. Under Title VII, a plaintiff must prove that the employer

intentionally discriminated against her because of her sex. Jaramillo v. Colo.

Judicial Dept., 427 F.3d 1303, 1306 (10th Cir. 2005). W hen the plaintiff relies

on circumstantial evidence of discrimination— as is the case here— we apply the

three-step burden-shifting framew ork set forth in M cDonnell Douglas and its

progeny. M cDonnell Douglas Corp. v. Green, 411 U.S. 792, 800–07 (1973);

Plotke, 405 F.3d at 1100. Under M cDonnell Douglas, the aggrieved employee

must first establish a prima facie case of discrimination. M cDonnell Douglas,

411 U.S. at 802. Relevant to this case, a prima facie showing of discrimination

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consists of evidence that a female employee “occupies a job similar to that of

higher paid males.” M iller v. Auto. Club of N.M ., Inc., 420 F.3d 1098, 1114 (10th

Cir. 2005) (quotation omitted). If the plaintiff makes such a showing, the burden

of production shifts to the employer “to state a legitimate, nondiscriminatory

reason for its adverse employment action.” Plotke, 405 F.3d at 1099 (quotation

omitted). “If the employer meets this burden, then summary judgment is

warranted unless the employee can show there is a genuine issue of material fact

as to whether the proffered reasons are pretextual.” Id.

Claims based upon the EPA, however, do not follow the same M cDonnell

Douglas burden-shifting framework. Rather, EPA claims proceed in two steps.

First, the plaintiff must establish a prima facie case of discrimination by

demonstrating that employees of the opposite sex were paid differently for

performing substantially equal work. M iller, 420 F. 3d at 1119. 5 Having met

this, the burden of persuasion then shifts to the defendant to prove that the wage

disparity was justified by one of four permissible reasons. Tidwell v. Fort

Howard Corp., 989 F.2d 406, 409 (10th Cir.1993). “These reasons are: (1) a

seniority system; (2) a merit system; (3) a pay system based on quantity or quality

5
Specifically, a prima facie case of discrimination under the EPA consists
of proof that (1) the plaintiff was performing work which was substantially equal
to that of employees of the opposite sex, taking into consideration the skills,
duties, supervision, effort and responsibilities of the jobs; (2) the conditions
where the work was performed were basically the same; (3) employees of the
opposite sex were paid more under such circumstances. M iller, 420 F.3d at 1119.

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of output; (4) a disparity based on any factor other than sex.” Id. (citing 29

U.S.C. § 206(d)(1)). If the employer “fails to convince the jury with its evidence

of one or more of the ‘affirmative defenses’ . . . the plaintiff will prevail on her

prima facie case.” Id. This is not to say that an employer may never be entitled

to summary judgment on an EPA claim if the plaintiff establishes a prima facie

case. But, because the employer’s burden in an EPA claim is one of ultimate

persuasion, “in order to prevail at the summary judgment stage, the employer

must prove at least one affirmative defense so clearly that no rational jury could

find to the contrary.” Stanziale v. Jargowsky, 200 F.3d 101, 107 (3rd Cir. 2000)

(quotation omitted).

The employer’s burden in an EPA case differs from its burden in a Title

VII case for another reason. W hereas in a Title VII case the employer need only

proffer a legitimate, nondiscriminatory reason for the challenged action, with no

need to establish that the reason actually motivated the decision, the EPA

prohibits a disparity in pay between men and women “except where such payment

is m ade pursuant to” one of the four aforementioned affirmative defenses. 29

U .S.C . § 206(d)(1) (emphasis added). The Third Circuit has explained, and we

agree, that this language requires an employer to “submit evidence from which a

reasonable factfinder could conclude not merely that the employer’s proffered

reasons could explain the wage disparity, but that the proffered reasons do in fact

explain the wage disparity.” Stanziale, 200 F.3d at 107–108. Accordingly,

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“where, as here, employers seek summary judgment as to [an] Equal Pay Act

claim, they must produce sufficient evidence such that no rational jury could

conclude but that the proffered reasons actually motivated the wage disparity of

which the plaintiff complains.” Id. at 108; see also Tenkku v. Normandy Bank,

348 F.3d 737, 741 n.2 (8th Cir. 2003) (“At the summary judgment stage of the

proceedings, the employer’s justification for the differences is irrelevant, unless it

is strong enough to establish one of the statutory affirmative defenses as a matter

of law.”).

Because of the varying burdens of proof, it is conceivable that in some

cases an employer would be entitled to summary judgment on the Title VII claim,

but not on the EPA claim. W e leave that discussion for another time, however,

because in this case we hold the following with respect to NYL’s proffered

reasons for paying the male employees more than M s. M ickelson: (1) that M s.

M ickelson has presented sufficient evidence of pretext to survive summary

judgment on her Title VII claim; and (2) that NYL has failed to establish that its

proffered reasons were in fact the reason for the disparity in pay as a matter of

law on the EPA claim. W e first turn our attention to the EPA claim.

Significantly, NYL admitted for purposes of summary judgment, that M s.

M ickelson made a prima facie showing of discrimination under the EPA.

Therefore, summary judgment for NYL is inappropriate unless “no rational jury

could conclude but that the proffered reasons actually motivated the wage

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disparity of which the plaintiff complains.” Stanziale, 200 F.3d at 108. Before

the District Court, and at oral argument, NYL focused on M r. Harriman’s relevant

experience in the broker-dealer market— which refers to the market for variable

life insurance products— as warranting the disparity in pay because, at the time he

was hired, NYL was trying to break into the broker-dealer market to sell variable

life insurance products and needed M r. Harriman’s expertise to do so. Indeed, an

employee’s prior experience is a factor “other than sex” for purposes of the Equal

Pay Act. Angove v. Williams-Sonoma, Inc., 70 Fed. App’x 500, 508 (10th Cir.

2003) (citing Irby v. Bittick, 44 F.3d 949, 955 (11th Cir. 1995)), see also Balmer

v. HCA, Inc., 423 F.3d 606, 612 (6th Cir. 2005). Although this reason could

explain the wage disparity, we cannot conclude, as a matter of law , that it in fact

explained the wage disparity.

To begin, no documents were executed contemporaneously with M r.

Harriman’s hiring that indicated NYL was looking for someone w ith broker-

dealer experience or that M r. Harriman was hired because of his broker-dealer

experience. W hen M s. M ickelson first inquired as to why M r. Harriman’s starting

salary was twenty percent higher than her own, M r. Vavra made no mention of

NYL’s need for someone with experience in the broker-dealer market. He merely

said that M r. Harriman’s “experience, qualifications, market factors, and salary

history” w arranted the disparity in pay. The form prepared after M r. Harriman’s

interview states that the reason he was hired was because of his “life ins[urance]

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background, self-motivation/drive, team orientation, relevant non-life [insurance]

experience (i.e. marketing, communications, securities[)].” A lthough M r.

Harriman’s experience and qualifications necessarily include his broker-dealer

experience, the first indication that NYL was looking for such experience and that

M r. Harriman’s background in that field warranted the disparity in pay came from

the New York office’s internal investigation of M s. M ickelson’s complaint. It is

undisputed, however, that the New York office played no role in setting either

M s. M ickelson’s salary or M r. Harriman’s salary. The results of its internal

investigation, therefore, cannot be conclusive on this issue.

M oreover, though NYL maintains that it was trying to penetrate the broker-

dealer market at the time it hired M r. Harriman, M r. Vavra admitted that the

market for those products crashed in the summer of 2001, well before M r.

Harriman was hired, and that NYL sold very few variable life insurance products

as a result. Also, what is conspicuously missing from the record is any

suggestion that M r. Harriman ever used his experience in the broker-dealer

market in any capacity at NYL. In fact, M r. Vavra admitted that M r. Harriman’s

responsibilities were essentially the same as M s. M ickelson’s.

In addition, it is undisputed that M s. M ickelson and M s. Day had more life

insurance industry experience than M r. Harriman— M r. Harriman’s resume

reflects that he had only two years of experience in the life insurance industry. In

contrast, M s. M ickelson had approximately six part-time years in the life

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insurance industry before she was hired at NYL, and another eighteen months of

experience in the industry by the time M r. Harriman w as hired. Similarly, M s.

Day had five years of experience in the life insurance industry when she was

hired, and another seventeen months’ experience by the time M r. Harriman was

hired. Of course, M r. Shelton had the most experience of all— eighteen

years— and if he w ere the only higher-paid M SC at NYL’s Leawood office, we

might well conclude that his experience so far outweighed the w omen’s

experience that no rational trier of fact could conclude other than that his

experience was the determinative factor in setting his salary. But that is not the

case: M r. Harriman, with the least amount of experience in the life insurance

industry of all the M SCs, was paid substantially more than both M s. M ickelson

and M s. Day. M oreover, as of September 2002, he was earning $3,900 less than

M s. Hairgrove, a senior M SC who had been working at NYL for approximately

nine years.

There are also disputed issues of fact as to whether “market factors” and

“salary history” warranted the disparity in pay. As to “market factors” playing a

role in setting M r. Harriman’s salary, M s. Billings recalled that M r. Harriman had

multiple job offers and that NYL had to compete for his services. See Stanley v.

Univ. of Southern Cal., 13 F.3d 1313, 1322 (9th Cir. 1994) (“An employer may

consider the marketplace value of the skills of a particular individual when

determining his or her salary.”). But NYL produced no evidence that it had to

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pay him $60,000 in order to retain him. Further, it is undisputed that M r.

Harriman w as unemployed for six months prior to being hired at NYL, and M s.

M ickelson said that during the interview process, which she took part in, that M r.

Harriman said he w as “desperately” trying to find a job. As for M r. Harriman’s

prior salary history as justification for the wage disparity, this reason is

undermined by the fact that at her previous job M s. Day was making $48,000 and

her salary was set at $50,000, while M r. Shelton was making $43,500 at his

previous job and his salary was set at $60,000. 6

Casting further doubt on NYL’s asserted justifications for the disparity in

pay is that one of its reasons w as that M r. Harriman has more NASD licenses,

which refers to the Series 6, 7, and 63 licenses. To begin, NYL presented no

evidence that a Series 7 license is either required or even relevant to the M SC job.

Further, M s. M ickelson had a Series 6 license and a CLU designation— which

neither M r. Shelton nor M r. Harriman had. M r. Vavra testified that the CLU

designation was more important to the position than a Series 7 license. Indeed,

NYL’s advertisement for the M SC position states that it prefers an applicant with

a CLU designation. Finally, M s. Day had both a Series 6 and 63 when she was

hired, and her starting salary was twenty percent less than M r. Harriman’s.

6
W e note that M r. Shelton received an unspecified bonus as part of his prior
employment, which means that his total compensation could have been
significantly higher than $43,000. Because we must consider the facts in the light
most favorable to M s. M ickelson, however, we cannot make such an assumption.

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 Based on the foregoing, and based on the fact that the employer bears the

burden of persuasion, we conclude that the District Court erred in granting

summary judgment in favor of NYL on the EPA claim. W hen the evidence is

viewed in the light most favorable to M s. M ickelson, a jury would not be

compelled to find that the reasons proffered by NYL were, in fact, the reason for

the disparity in pay. To be sure, these reasons could explain the disparity, but the

evidence here is not so overwhelming as to require that conclusion. To the

contrary, a jury could reasonably conclude that the common denominator between

the $60,000 salaries was being male, not the level of experience, and the common

denominator between the $50,000 salaries was being female, not the level of

inexperience.

Turning to M s. M ickelson’s Title VII claim, we first must address an

evidentiary matter. M s. M ickelson argues that the District Court improperly

excluded evidence that other females had complained of discriminatory treatment

by NYL. Specifically, the District Court disregarded the affidavits of Julie

Hamm er-M iller, a former service associate at NYL, and Rhonda Kunz, a former

human resources administrative assistant at NYL. M s. Hammer-M iller averred

that she helped to train M s. M ickelson and M r. Shelton as M SCs and that both

needed an equal amount of training. M s. Hammer-M iller also claimed that she

herself sought a promotion to the M SC position because she was already

performing the same duties as an M SC, but for less money. W hen she asked M r.

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Begley for the promotion he repeatedly told her that it was “in the works” but she

never was promoted. She ultimately resigned in M arch 2001; at that time her

salary was $35,000.

M s. Kunz, whose position involved reviewing personnel records, keeping

track of attendance and vacation schedules, and ensuring that pay raises earned by

employees were actually received, averred that she believed there was “no

concern for equal pay for equal work” at NYL’s Leawood office. Indeed, when

she and two others earned their bachelor’s degrees at the same time, only the male

of the group received a $5,900 raise, while the women did not.

The District Court disregarded these affidavits, finding that they

“contain[ed] conclusory allegations that are not supported by the record.” See

Nichols v. Hurley, 921 F.2d 1101, 1113 (10th Cir. 1990). As a general rule,

however, “the testimony of other employees about their treatment by the

defendant is relevant to the issue of the employer’s discriminatory intent.”

Spulak v. K M art Corp., 894 F.2d 1150, 1156 (10th Cir. 1990); see also Atchley v.

Nordam Group, Inc., 180 F.3d 1143, 1149 (10th Cir. 1999). Both these women

testified from personal knowledge. M s. Hammer-M iller said that she trained both

M s. M ickelson and M r. Shelton for the M SC position and that they needed the

same amount of training. W hen the employer’s proffered reason for the twenty

percent difference in their salaries is, in part, based upon experience and

qualifications, that both employees needed the same amount of training is relevant

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to determination of discriminatory intent. Similarly, M s. Kunz’s testimony that a

similarly situated male received a raise while she and another woman did not is

relevant to the issue of discriminatory intent. The District Court erred in

disregarding these affidavits. See Spulak, 894 F.2d at 1156 (citing Stumph v.

Thom as & Skinner, Inc., 770 F.2d 93, 97 (7th Cir.1985) (reversing summary

judgment for employer, holding that affidavits of former employees created a

genuine issue of fact on issue of defendant’s discriminatory intent)).

W e turn now to the M cDonnell Douglas framework. As with M s.

M ickelson’s EPA claim, the parties agree that M s. M ickelson has met her burden

to establish a prima facie case of discrimination— that is, she occupies a job

similar to that of higher paid males— and that NYL met its burden to proffer a

legitimate, nondiscriminatory reason for the disparity in pay— namely, the relative

experience, qualifications, market factors, and salary histories of the higher paid

male employees. The remaining question, therefore, is whether M s. M ickelson

has produced sufficient evidence that NYL’s proffered reasons are pretext for

unlawful discrimination to survive summary judgment. “A plaintiff can show

pretext by revealing such w eaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions in the employer’s proffered legitimate reasons for

its action that a reasonable factfinder could rationally find them unw orthy of

credence.” Green v. New M exico, 420 F.3d 1189, 1192–93 (10th Cir. 2005)

(internal quotations omitted).

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 As the above discussion demonstrates, M s. M ickelson has cast doubt on all

NYL’s proffered reasons for paying M r. Harriman a substantially larger salary for

performing identical work such that a jury might reasonably disbelieve N YL’s

proffered reasons for the disparity in pay, and conclude, instead, that NYL

discriminated on the basis of sex in setting salaries. See Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 148 (2000) (holding that “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.”). W e therefore conclude that the District Court erred

in granting summary judgment in favor of NYL on the Title VII claim.

C. Retaliation

To state a prima facie case of retaliation, a plaintiff is required to

demonstrate: “(1) that [she] engaged in protected opposition to discrimination, (2)

that a reasonable employee would have found the challenged action materially

adverse, and (3) that a causal connection existed between the protected activity

and the materially adverse action.” Argo v. Blue Cross & Blue Shield of Kan.,

Inc., 452 F.3d 1193, 1202 (10th Cir. 2006) (citing Burlington N. & Santa Fe Ry.

Co. v. White, 126 S. Ct. 2405 (2006)) (footnote omitted). Once the plaintiff

establishes a prima facie case, the burden of production shifts to the employer to

articulate a legitimate, nondiscriminatory reason for the adverse action. Id. The

burden then shifts back to the plaintiff to show that the employer’s proffered

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reason is pretext. Id. at 1203. The District Court concluded that M s. M ickelson

failed to make a prima facie showing of retaliation because she failed to show that

she suffered from any adverse employment action.

After review ing the record, we conclude that the District Court erred in

granting NYL’s motion for summary judgment with respect to NYL’s refusal to

allow M s. M ickelson to work part-time while she recovered from depression, and

as to her ultimate termination. The FM LA requires covered employers to allow

qualified employees twelve w eeks’ leave, within a twelve-month period, because

of a serious health condition. 29 U.S.C. § 2612(a)(1)(D). Leave “may be taken

intermittently or on a reduced leave schedule when medically necessary.” 29

U.S.C. § 2612(b)(1). Failure to adhere to the mandates of the FM LA, without

sufficient justification, can constitute actionable conduct under Title VII. See O rr

v. City of Albuquerque, 417 F.3d 1144, 1151 (10th Cir. 2005). The District Court

appears to have concluded that the refusal to allow an individual to work on a

part-time basis could only be actionable if the employee raises and establishes a

violation of the FM LA. Since M s. M ickelson did not raise an FM LA claim, the

court found that she failed to establish that she suffered from an adverse

employment action. W e disagree.

Prior to the expiration of her FM LA leave, M s. M ickelson requested to

return to work on a part-time basis, indicating that her physician thought it would

be “a good step” for her. NYL, however, refused her request, her condition

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worsened, and by early January 2003, M s. M ickelson had exhausted her paid

leave. Therefore, NYL’s denial of M s. M ickelson’s request to work part-time

before she exhausted her FM LA leave prevented her from earning income on a

part-time basis. It also caused her to exhaust her FM LA leave sooner. In this

way, NYL’s conduct caused her to lose both salary and benefits. See White, 126

S. Ct. at 2408 (“[M ]any reasonable employees w ould find a month without a

paycheck to be a serious hardship.”); Duncan v. M anager, Dept. of Safety, 397

F.3d 1300, 1314 (10th Cir. 2005) (adverse employment action includes those

decisions “causing a significant change in benefits”). M oreover, if M s.

M ickelson was permitted to return on a part-time basis, she may have recovered

from her depression before her FM LA leave expired, and consequently, would not

have lost her job. Indeed, “[i]t hardly requires stating that when an employer tells

an employee that she no longer has a job, that employee’s job status has been

significantly and materially altered.” Wells v. Colo. Dept. of Transp., 325 F.3d

1205, 1216 (10th Cir. 2006). W e easily conclude that the prospect of losing

wages, benefits, and ultimately a job would “dissuade[] a reasonable worker from

making or supporting a charge of discrimination.” White, 126 S. Ct. at 2415.

M s. M ickelson has also raised a genuine issue of fact as to whether the

denial of her request for leave was causally connected to her protected conduct.

M s. M ickelson filed a complaint with the EEOC in M arch 2002. She was denied

permission to work part-time in December of that year. W hile the timing between

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these events, alone, would not support an inference of causation in this instance,

see Wells, 325 F.3d at 1217, “[i]f the employee can show that the employer’s

proffered reason for taking adverse action is false, the factfinder could infer that

the employer was lying to conceal its retaliatory motive,” id. at 1218. 7 NYL’s

proffered reason for denying M s. M ickelson’s request was that the M SC position

must be filled by a regular, full-time employee. But this contention is belied by

the fact that just three months later, NYL permitted M s. Hairgrove to transition

back to work on a part-time basis following a back injury. NYL contends that the

situation is different because M s. Hairgrove suffered from a w orker’s

com pensation injury, w hile M s. M ickelson did not. NYL fails to explain— and w e

do not see— how this distinction is relevant to the disputed m atter. NYL’s

accommodation of M s. Hairgrove provides evidence that the M SC position could

be filled by a part-time employee, and therefore bolsters M s. M ickelson’s position

7
As we explained in Wells:

[B]y considering an employer’s proffered reasons for taking adverse
action in the causal-connection portion of the prima facie case, we
are assessing pretext evidence that is typically considered in a later
phase of the M cDonnell Douglas analysis. But . . . evidence of
pretext can be useful in multiple stages of a Title VII retaliation
claim . . . “and nothing about the M cDonnell Douglas formula
requires us to ration the evidence betw een one stage or the other. . . .
[W ]e will not limit the kinds of evidence that can be probative of a
causal link any more than the courts have limited the type of
evidence that can be used to demonstrate pretext.”

325 F.3d at 1218 (quoting Farrell v. Planters Lifesavers Co., 206 F.3d 271, 286
(3d Cir. 2000)).

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that NYL’s justification of its denial of her request is pretextual. NYL also

contends that M s. M ickelson requested to work on a part-time basis permanently,

and seeks to distinguish its refusal of her request to work part-time on this basis.

Again, the record reveals the opposite. M s. M ickelson specifically requested to

work part-time as a first step toward resuming her normal duties.

That M s. M ickelson did not raise a claim under the FM LA does not change

this analysis. Even if NYL was under no legal obligation to allow M s. M ickelson

to work part time or allow her to return to work after her FM LA leave expired, its

failure to do so, in light of her request, and in light of the fact that it permitted

another M SC to do so, could be viewed as retaliation. See Wells, 325 F.3d at

1219 (stating that an employer’s termination of an employee after exhaustion of

sick leave could be considered retaliatory). The causal-connection inquiry does

not focus on what the FM LA or personnel rules required the employer to do, but

whether the employer treated an employee differently than it would have if she

had not engaged in protected activity. Id. In sum, M s. M ickelson’s evidence that

she was denied the ability to work part-time and was terminated in retaliation for

her wage discrimination complaint is sufficient to satisfy the causal-connection

element of the prima facie case. 8

8
The District Court correctly dismissed M s. M ickelson’s claim relating to
her reassignment to a different M SC group. Reassignment of job duties is not
automatically actionable. White, 126 S. Ct. at 2417. M s. M ickelson suggests,
however, that the new group was less prestigious than her previous group, which
(continued...)

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 W e next turn to the second and third steps of the M cDonnell Douglas

burden-shifting framew ork for a retaliation claim— namely, whether the employer

had proffered a legitimate, nondiscriminatory reason for the adverse action and

whether the employee has produced sufficient evidence of pretext. As the causal-

connection discussion above shows, M s. M ickelson produced sufficient evidence

that N YL’s proffered reasons for the adverse action was pretextual. See id.

(acknowledging that in some cases, evidence of causation and evidence of pretext

may be the same and the tests for causation and pretext may be conflated).

Because M s. M ickelson has demonstrated that genuine issues of fact remain as to

M s. M ickelson’s claim that NYL retaliated against her by denying her the ability

to work part-time and in terminating her, we conclude that summary judgment

was inappropriate.

W ith regard to M s. M ickelson’s other allegations of retaliation, we agree

with the District Court that she has failed to establish actionable conduct. As to

her claim that M r. Vavra failed to locate a position in the legal department for her

and that NYL failed to promote her to a key accounts position, a plaintiff must

apply for a position to state a claim for retaliatory failure to promote, see Stover

8
(...continued)
is a factor that is appropriately considered in determining whether the conduct is
actionable. See id. Nevertheless, because it is undisputed that M s. M ickelson
sought a transfer once she became engaged to her previous group’s supervisor,
M s. M ickelson has failed to establish a causal connection between this action and
her protected conduct.

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v. M artinez, 382 F.3d 1064, 1072 (10th Cir. 2004), and there is no evidence that

either position existed at the time she sought the promotions. As to her claim

relating to the time she was absent due to the bar examination, there is no

evidence that she was actually treated differently when studying for her third bar

examination as compared to when she studied for her first two. W ith regard to

the email M s. M ickelson considered derogatory and M r. Vavra’s unruly behavior

during a meeting, the retaliation provision prohibits employer’s actions “that are

likely to deter victims of discrimination from complaining to the EEOC,” and a

“lack of good manners will not create such deterrence.” White, 126 S. Ct. 2415

(citing 2 EEOC 1998 M anual § 8, p. 8–13) (internal quotation marks omitted).

III. CONCLUSION

For the foregoing reasons, we conclude that the District Court erred in

entering summary judgment in favor of NYL on M s. M ickelson’s allegations of

wage discrimination and retaliation. Accordingly, the judgment of the District

Court is REVERSED and the cause REM ANDED for further proceedings

consistent with this opinion.

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