NOT RECOMMENDED FOR PUBLICATION
File Name: 05a0052n.06
Filed: January 19, 2005
No. 03-6222
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JUDY C. THOMAS, )
)
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
OWEN ELECTRIC COOPERATIVE, INC., ) EASTERN DISTRICT OF KENTUCKY
)
Defendant-Appellee. )
)
)
)
)
)
BEFORE: MERRITT, DAUGHTREY, and SUTTON, Circuit Judges.
MERRITT, Circuit Judge. Plaintiff Judy C. Thomas appeals the District Court’s grant of
summary judgment to her former employer, defendant Owen Electric Cooperative, Inc. (the “Co-
op”), on her state claims of sex and age discrimination in violation of the Kentucky Civil Rights Act,
Ky. Rev. Stat. Ann. § 344.040, her federal claims of sex discrimination in violation of the federal
Equal Pay Act, 29 U.S.C. § 206(d), and her state claims of retaliation. Thomas’s claims arise from
the Co-op’s decision to restructure her position and their subsequent treatment of her in effectuating
that change. We agree with the District Court that the Co-op had a legitimate business reason for
changing the nature of Thomas’s position and that she has failed to produce evidence sufficient to
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create a genuine issue of material fact. Hence we find that the order of summary judgment was
appropriate and AFFIRM the District Court’s judgment.
I. Background
Judy Thomas was hired as a dispatcher for the Co-op in 1986. She served in this capacity
until May of 2001 when Robert Marshall, the President and CEO of the Co-op, restructured the
dispatcher position. When Marshall came to the Co-op in January of 2000, there were five
dispatchers, all of whom were female. Marshall indicated concern regarding the dispatcher’s lack
of field knowledge and experience but made no immediate changes. In January 2001, the Co-op
retained the services of the National Consulting Group to conduct an organizational analysis. After
discussing his concerns with the consultants, Marshall decided to change the dispatcher position.
According to the Co-op, dispatchers would no longer merely relay information regarding power
outages and customer complaints to personnel in the field, but would analyze problems from the
dispatch room and then direct field personnel to restore power in the most efficient manner.
In May of 2001, the Co-op posted a revised position description and began accepting
applications. According to the old description, the dispatcher was “[t]o assist the maintenance
department during outages” and “provide general and non-technical information in response to
questions from the public,” whereas the revised description required dispatchers “[t]o provide work
direction and leadership during outages” and “provide general and technical information in response
to questions from the public.” Also, the new job description explicitly added several new job
responsibilities. For instance, the new dispatchers would be required to “[a]nalyze[] problems as
they occur and take the appropriate action to alleviate such problems.” Additionally, the dispatchers
would have the responsibility to “[p]rovide[] guidance to field personnel during outages by
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analyzing all of the useful information obtained from the various systems available to the
dispatcher.” The plaintiff maintains that these alterations were merely semantic, but the position
description also listed new education and experience standards stating that completion of a
lineman’s training course, five years of field experience in line construction, and one year in a
supervisory position were desired qualifications. The position was reclassified from a Grade 6,
paying between $13.02 and $18.25 per hour, to a Grade 11, paying between $19.28 and $27.75 per
hour. Shortly thereafter, in the fall of 2001, the Co-op changed the position title from Dispatcher
to Systems Operator. The plaintiff maintains that she was told that she would be considered for the
new position automatically.
The Co-op hired four new dispatchers/systems operators, all of whom were males who
transferred from journeyman lineman positions. No female linemen applied for the position. The
former dispatchers remained in dispatch during a training period in which the new
dispatchers/systems operators learned the daily tasks of the job and the computer programs used.
During this period, the former dispatchers, including Thomas, were given the title Assistant
Dispatcher and were partially responsible for training the new dispatchers/systems operators. Two
of the former dispatchers moved to new jobs at the Co-op. One of the former dispatchers, Cindy
Wilhoite, remained in dispatch and was eventually promoted to the new position of systems operator
in February of 2002, despite not having all of the desired qualifications.
During the training of the new dispatchers, the Co-op considered the plaintiff for numerous
other positions and offered her several employment opportunities. She applied and interviewed for
an Engineering Clerk position, a job that was eventually awarded to one of the other former
dispatchers. Thomas asserts that she was qualified for a customer service position, but the Co-op
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did not consider her for that position. On August 21, 2001, Thomas met with the Co-op president
and another official regarding a position as Special Services Clerk. Feeling she was not qualified
for this job, the plaintiff rejected the Co-op’s offer in writing. Following this rejection, Marshall,
the Co-op president, wrote Thomas a memorandum stating that he was committed to providing her
with the time and training to appropriately prepare for the position as Special Services Clerk.
Marshall went on to explain that if she did not accept the Special Services Clerk position, the only
job he could offer her was a meter-reading position. In a meeting on August 30, 2001, the plaintiff
again rejected the Special Services Clerk position. When Marshall inquired as to whether she would
be interested in the meter reading job, she responded that she was physically unable to do the job
due to a heart condition. Marshall then indicated that the Co-op anticipated creating a new Field
Services position, which would have paid more than her job as a dispatcher. The plaintiff agreed
that she could perform the duties of this type of position or would “die trying.” Despite the
employment opportunities presented to the plaintiff at the August 30th meeting, she opted to accept
the Co-op’s voluntary early retirement program. She received an early retirement lump sum
payment of $144,868 plus a severance payment equal to one year’s base salary in the amount of
$29,848.
Thomas brought suit claiming sex and age discrimination in July of 2002. On September
5, 2003, the District Court granted the Co-op’s motion for summary judgment and Thomas properly
appealed.
II. Analysis
This Court reviews the grant of summary judgment de novo, applying the same standards
as the District Court. Rowan v. Lockheed Martin Energy Systems, Inc.360 F.3d 544, 547 (6th Cir.
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2004); Terry Barr Sales Agency, Inc. v. All-Lock Co., Inc. 96 F.3d 174, 178 (6th Cir. 1996).
Summary judgment is appropriate only if there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). When reviewing a motion
for summary judgment, we must view the evidence in the light most favorable to the party opposing
the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986).
A. State Law Discrimination Claims
Under Kentucky law, it is unlawful for an employer to “fail or refuse to hire, or to discharge
any individual, or otherwise to discriminate against an individual . . . because of the individual’s .
. . gender [or] age.” Ky. Rev. Stat. Ann. § 344.040(1). Kentucky courts begin their examination of
claims brought under this statute by utilizing the McDonnell Douglass burden-shifting analysis.
Brooks v. Lexington-Fayette Urban County Housing Authority, 132 S.W. 3d 790, (Ky. 2004) (citing
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); see also Pierce v. Commonwealth Life
Ins. Co., 40 F.3d 796, 802 & n.8 (6th Cir. 1994) (“Kentucky courts apply the McDonnell Douglas
framework to discrimination cases brought under state law.”) (citing Kentucky Ctr. for the Arts v.
Handley, 827 S.W.2d 697, 699 (Ky. Ct. App. 1991)). The statute thus requires plaintiff employees
to bear the initial burden of proving a prima facie case of discrimination by demonstrating: (1) that
she is a member of a protected class; (2) that she was qualified for the job; (3) that she suffered an
adverse employment decision; and (4) that similarly situated non-protected employees were treated
more favorably. McDonnell Douglas, 411 U.S. at 802. Upon the plaintiff’s establishment of a
prima facie case, the burden shifts to the employer “to articulate a legitimate non-discriminatory
reason” for the decision. Id. Finally, the plaintiff must be afforded an opportunity to demonstrate
that the stated reason is merely a pretext, masking a discriminatory motive. Id. at 804-05.
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In granting summary judgment to the Co-op, the District Court presented two alternative
grounds. First, the court ruled that Thomas failed to establish a prima facie case of discrimination.
Second, the court determined that even if Thomas had carried her preliminary burden, summary
judgment would still be appropriate. While we find that the District Court erred in its prima facie
determination, we affirm the court’s grant of summary judgment on these claims. The Co-op
successfully articulated a legitimate, non-discriminatory reason for their employment decision, and
Thomas failed to present evidence that this reason was a pretext for discrimination.
The District Court found that Thomas met only three of the four prongs of McDonnell
Douglas and thus failed to establish a prima facie case of age or sex discrimination. The court had
little trouble determining that Thomas was a member of protected age and gender classes, that she
suffered an adverse employment decision in not being hired for the revised dispatcher position, and
that four of the five replacement dispatchers were younger men. Yet the court found that Thomas
did not establish a prima facie case of age or sex discrimination as she was not “qualified” for the
new dispatcher position. This ruling was based on the fact that Thomas did not have several of the
“qualifications” for the job. She had not completed the lineman’s training course. Nor did she have
field experience in line construction. But these education and experience criteria were listed in the
job description as “desired” rather than “required.” The only “required” educational qualification
was a high school diploma or equivalency, and there was no “required” level of experience.
Employment discrimination actions are not defeated simply because plaintiffs do not have each and
every desired qualification. “The prima facie burden of showing that a plaintiff is qualified can .
. . be met by presenting credible evidence that his or her qualifications are at least equivalent to the
minimum objective criteria required for employment in the relevant field.” Wexler v. White's Fine
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Furniture, Inc., 317 F.3d 564, 575-76. (6th Cir. 2003). Thomas plainly had the minimum objective
qualifications for the revised position. Thus, the District Court erred in finding that Thomas failed
to meet her prima facie burden.
As Thomas successfully established a prima facie case of sex and age discrimination, the
burden should have shifted to the Co-op to articulate a legitimate, non-discriminatory reason for
choosing the male candidates over the plaintiff. The evidence supports the District Court’s
conclusion that the Co-op made a legitimate business decision to lodge greater technical and
supervisory responsibilities in the revised dispatch position. In furtherance of this decision, the Co-
op chose to hire dispatchers who were more highly qualified than the plaintiff. Thomas contends
that the position did not actually change significantly, and that she was capable of doing the job
without the desired qualifications. But, it is well-established that “[t]he soundness of an employer’s
business judgment may not be questioned as a means of showing pretext.” Chappell v. GTE
Products Corp., 803 F.3d 890, 898 (6th Cir. 1997); see also Rowan v. Lockheed Martin Energy
Systems, Inc., 360 F.3d 544, 550 (6th Cir. 2004) (“The plaintiffs may not simply substitute their own
business judgment for that of the defendant.”). In order to survive a summary judgment motion, the
plaintiff must demonstrate that a reasonable jury could conclude that the proffered business decision
was merely a pretext for unlawful discrimination. The evidence demonstrates that the Co-op made
serious and real changes to the dispatcher position. The revised position had greater responsibility
and authority, greater knowledge and skill requirements, and higher pay rates than the dispatch
position held by Thomas. There is no evidence that these changes were made to camouflage the Co-
op’s attempt to replace their female employees with males or their older employees with younger
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ones. We therefore affirm the District Court’s grant of summary judgment to the defendant on the
state law discrimination claims.
B. Federal Equal Pay Act Claims
The Equal Pay Act prohibits employers from paying an employee a lower wage than that
paid to employees of the opposite sex for equal work. 29 U.S.C. § 206(d)(1). To make out a prima
facie case under this statute, a plaintiff must show that “an employer pays different wages to
employees of opposite sexes ‘for equal work on jobs the performance of which requires equal skill,
effort, and responsibility, and which are performed under similar working conditions.’” Corning
Glass Works v. Brennan, 417 U.S. 188, 195 (1974) (quoting 29 U.S.C. § 206(d)(1)); accord Buntin
v. Breathitt County Board of Education, 134 F.3d 796 (6th Cir. 1998). If a plaintiff carries the initial
burden of demonstrating unequal pay for equal work, the defendant employer has the opportunity
of showing that the unequal pay is justified due to one of four statutory exceptions: “(i) a seniority
system, (ii) a merit system, (iii) a system which measures earnings by quantity or quality of
production; or (iv) a differential based on any other factor other than sex.” 29 U.S.C. § 206(d)(1).
The District Court ruled that Thomas failed to make out a prima facie case and that, even if she had,
the Co-op established that any pay differential was based on a non-gender factor.
It is undisputed that Thomas was paid a lower wage than that paid to the replacement
dispatchers. Instead the parties dispute whether the male employees in the new positions and the
female employees in the old positions performed equal work. Equal work “does not require that the
jobs be identical,” but only that there exist “‘substantial equality of skill, effort, responsibility and
working conditions.’” Odomes v. Nucare, Inc., 653 F.2d 246, 250 (6th Cir. 1981). It is undisputed
that the old dispatchers and their male replacements faced similar working conditions. Thus, if
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Thomas demonstrates that the two dispatcher positions required substantially equal skill,
responsibility, and effort, she has succeeded in making out a prima facie case. The Co-op contends
that the new dispatchers had greater skills and responsibilities than the females they replaced.
Regarding the skill differential, the Co-op asserts that the new dispatchers had greater
technical proficiency evidenced by field experience and linemen’s training. Thomas contends that
the inquiry should focus not on the qualifications and skills of the persons holding the job but on the
skill required to do the job. But, the federal regulations indicate that experience and training are
relevant to the determination of “skill” in suits under the Equal Pay Act:
Where the amount or degree of skill required to perform one job is substantially
greater than that required to perform another job, the equal pay standard cannot apply
even though the jobs may be equal in all other respects. Skill includes consideration
of such factors as experience, training, education, and ability.
29 C.F.R. § 1620.15(a) (emphasis added).
The Co-op also claims that the new dispatchers had greater levels of responsibility than the
replaced dispatchers. Rather than being responsible simply for “information relay,” the new
dispatchers were expected as the District Court found, “to analyze problems that occur in the field,
direct linemen to the exact location of the problem, provide advice on how to restore service, and
give direction as to the proper action to take.” “Responsibility” according to the federal regulations,
“is concerned with the degree of accountability required in the performance of the job, with
emphasis on the importance of the job obligation.” 29 C.F.R. § 1620.17(a). This regulation points
out that there is a difference in responsibility where one employee is called upon to “assume[s]
supervisory duties” where the other does not. Id. § 1620.17(b)(1). The new dispatchers were
responsible for providing guidance to personnel on the ground in a way that the former dispatchers
were not. The evidence demonstrates that the job responsibilities were greater after the change in
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position and that the new dispatchers were more skilled than the plaintiff as measured by relevant
education and experience. Thus, the District Court’s ruling that the jobs were not substantially equal
and thus did not call for equal pay appears correct. As Thomas failed to make out a prima facie case
of an Equal Pay Act violation, we affirm the grant of summary judgment for the Co-op.
C. Retaliation
Thomas also claims that the Co-op retaliated against her for her opposition to the unlawful
age and sex discrimination of the Co-op. In the retaliation context, a plaintiff can establish a prima
facie case by showing that (1) she engaged in protected opposition to discrimination, (2) that her
exercise of protected rights was known to the Co-op, (3) that she was subjected to an adverse
employment action subsequent to or contemporaneous with the protected activity; and (4) that there
was a causal relationship between the protected activity and the adverse employment action. Canitia
v. Yellow Freight System, Inc., 903 F.2d 1064, 1066 (6th Cir. 1990). Thomas claims that she made
several complaints about pay disparity to Co-op officials. First, after the replacement dispatchers
started, she went to one of the Co-op’s vice presidents and asked if her pay rate would be raised to
the level the male replacement was being paid. Second, when interviewing for the engineering clerk
position, she said that she would not take a pay cut. Importantly, these complaints occurred after
the dispatch position was restructured and after men were hired for the new positions. Thomas
claims that in response to her two comments, the Co-op retaliated by refusing to offer her the
engineering clerk position and refusing to consider her for a job in customer service. She also
maintains that the Co-op’s offers of other positions were adverse employment actions as she was
unqualified for the jobs and they did not offer the same opportunity for overtime pay. Assuming this
Court were to find that Thomas’s complaints of pay disparity amounted to protected opposition to
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the Co-op’s policies, her prima facie case of retaliation would plainly fail as there is no evidence of
any causal connection between her complaints and any subsequent employment decisions. No
reasonable jury could find that the Co-op’s actions toward Thomas after the new dispatchers were
hired were retaliatory. As the District Court held, “the evidence shows that the Co-op made specific
and affirmative efforts to find jobs for Plaintiff.” The Co-op also offered to provide the plaintiff
with additional training so that she could perform the jobs she was offered. Just before opting for
retirement, she was offered a position in field services, which would have meant a pay increase. The
plaintiff does not put forth any facts to call these conclusions into question. Thus, we affirm the
District Court’s grant of summary judgment against the plaintiff’s retaliation claim.
V. Conclusion
Even drawing all inferences in the favor of the plaintiff, there is no genuine issue of material
fact regarding any of Thomas’s claims. Her discrimination, equal pay, and retaliation are not
supported by the evidence in the record. We, therefore, AFFIRM the District Court’s grant of
summary judgment for the defendant.
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