NMSU Rebuffed in Bid to Have Pay Discrimination Claim Dismissed
A federal judge from the District of New Mexico has denied a motion for summary judgment filed by New Mexico State University (NMSU) and New Mexico State University Board of Regents in a case in which they were sued for pay discrimination by the United States, on behalf of a female athletic department employee, for violating provisions of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq.
NMSU has a track and field program, which from 2007-11, consisted of men’s and women’s cross country teams and a women’s track and field team. The cross country teams competed during the fall season, while the women’s track and field team competed during the winter indoor season and the spring outdoor season. Generally, the female cross country athletes were also members of the women’s track and field team, and they would compete during all three seasons. NMSU did not sponsor a men’s track and field team, but the male cross country athletes were allowed to practice with the women’s track and field team during the winter and spring seasons. The men could participate in up to five track and field meets during the spring outdoor season, but did not compete during the winter indoor season.
Plaintiff Meaghan Harkins began working at NMSU in January 2008 as a volunteer coach for the track and field program. She held a USA Track and Field (USATF) Level I Certification and had previously coached cross country and track at Cohoes High School, at the College of Saint Rose, and at Brown University, although the parties dispute the extent of her experience in these positions. NMSU hired Harkins as a part-time track and field specialist in March 2008, and then moved her into a full-time position as an assistant coach in July 2009. By the time she became an assistant coach, Harkins had gained 16 more months of collegiate coaching experience at NMSU. Harkins’ responsibilities remained the same throughout her paid employment at NMSU, regardless of her change in title. She coached the men’s and women’s distance and middle distance runners, and she assisted with recruitment, team travel, coordination of practices and competitions, and various administrative tasks such as ordering equipment, serving as an academic liaison, and providing athletes with nutritional counseling. Her starting annual salary as an assistant coach was $23,998, which was the amount that had been budgeted for her position.
In addition to Harkins, the NMSU track and field program employed a head coach, Orin Richburg (Richburg), and two male assistant coaches, Paul Harkins (Harkins) and Anthony Scott Fister (Fister). Mr. Harkins, Ms. Harkins, and Fister were all full-time coaches hired under the same official job title and description, but their actual coaching duties were not identical. Harkins and Harkins both coached primarily distance and middle distance runners and divided up recruitment and administrative tasks. While Fister was authorized to coach both the track and field team and the cross country teams, he focused on field events and in fact coached only certain female track and field athletes. Fister did not coach during the cross country season, he recruited only for specific field events, and he had limited administrative duties. However, the parties dispute the scope of Ms. Harkins’ duties as compared to those of Mr. Harkins and Fister.
Defendants paid Mr. Harkins and Fister more than they paid Ms. Harkins. NMSU hired Mr. Harkins as an assistant coach in August 2007 for an annual salary of $29,500, although only $23,660 had been budgeted for his position. At the time he was hired, Mr. Harkins had a Master’s Degree in Health Promotion and Wellness Management, USATF Level I Certification, three years experience coaching college cross country, and just over two years experience coaching high school cross country, only one year of which was paid. In July 2008 Mr. Harkins’ annual salary was raised to $30,090, where it remained until he resigned in September 2011.
NMSU also hired Fister as an assistant coach in August 2007. At that time, Fister had a Bachelor’s Degree in Physical Education-Exercise Science and Sports Medicine, and he held USATF Level I and Level II Certifications in Throws, Jumps, Sprints/Hurdles, and Multi-events. He had approximately three-and-a- half years of post-degree experience as a paid coach at the university level, including two prior years working at NMSU as an assistant coach. Fister had also previously coached track and field at several high schools and universities, in addition to private coaching and working with a youth track and field club that he owned. However, much of this experience was unpaid and/or took place before Fister earned his Bachelor’s Degree, and his private coaching was intermittent and often concurrent with his high school coaching. Additionally, none of Fister’s high school coaching or private coaching, other than the track club, appeared on the resume Fister submitted to NMSU when he applied for his position. The amount budgeted for Fister’s position was $26,713, but he was hired at an annual salary of $28,000. In July 2008, Fister’s annual salary was raised to $28,560, where it remained throughout Ms. Harkins’ employment. The parties dispute the amount of Fister’s experience and the degree to which NMSU was aware of any experience Fister did not list on his resume at the time that it hired him and set his salary.
From 2007-11, the athletic director, the sport administrator, and the head coach were officially responsible for setting the assistant coaches’ salaries at NMSU. Salaries were supposed to be based on consideration of the person’s duties, experience, and education, in addition to market data and the budgeted salary for the position. Once a proposed salary had been determined by the athletics department, NMSU’s Human Resource Services (HRS) was to review the salary proposal and conduct an equity review comparing it to the salaries for other individuals in the same or similar positions. HRS would then require the department to justify any disparity by pointing to differences in the position or the qualifications of the applicant. NMSU considered prior coaching experience at the university level to be directly related to an assistant coaching position, and therefore gave it more weight than high school coaching experience. When comparing salaries, NMSU did not generally take into account any experience that had been gained prior to earning the degree that was required for the position, nor did it consider unpaid volunteer experience.
“However, the specific process by which the salaries for Mr. Harkins, Fister, and Ms. Harkins were actually determined is unclear,” according to the court. “No evidence was presented as to how the salaries for Mr. Harkins or Fister were set. The parties dispute the facts concerning how Ms. Harkins’ salary was set. Most of the individuals officially responsible for setting Ms. Harkins’ salary deny any involvement or have no recollection of the process. Defendants admit that HRS did not conduct an equity review before NMSU hired Ms. Harkins as a track and field specialist in 2008 and that they have no evidence that HRS conducted an equity review before Ms. Harkins became an assistant coach in July 2009. Ms. Harkins complained about the pay discrepancy in March 2011, and NMSU compared her salary to market data. Based on this survey NMSU concluded Ms. Harkins’ salary was $7,650 under market. In July 2011 Ms. Harkins received a raise to $26,079 per year, a figure that was still $5,570 under market and was less than the starting salaries of both male assistant coaches. Ms. Harkins then tendered her letter of resignation in September 2011. She resigned in December 2011.
On May 10, 2012, the plaintiff filed a charge of discrimination against NMSU with the Equal Employment Opportunity Commission (EEOC). The EEOC investigated the charge and found reasonable cause to believe that the defendants had discriminated against Ms. Harkins with respect to compensation because of her sex. After voluntary conciliation was unsuccessful, the EEOC referred the matter to the United States Department of Justice. On Aug. 11, 2016, the United States filed a claim against Defendants on behalf of Ms. Harkins. The United States requested that the court enjoin the defendants from discriminating in violation of Title VII, award backpay and all other appropriate monetary relief to the plaintiff, and order the defendants to institute policies and training to ensure a nondiscriminatory workplace. The plaintiff sued and the defendants moved for summary judgment
The court began its analysis by noting that Title VII prohibits pay discrimination based on gender. 42 U.S.C. § 2000e-2(a)(1). To prove a Title VII claim, a plaintiff has the ultimate burden of proving that the defendants intentionally discriminated against the plaintiff. See Riser, 776 F.3d at 1199. The plaintiff may “establish this by either direct evidence or circumstantial evidence that creates an inference of intentional discrimination.” Id.
Where a plaintiff seeks to use circumstantial evidence to show discriminatory intent, the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) applies. First a plaintiff must establish a prima facie case of pay discrimination. If the plaintiff succeeds, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its actions. If the defendant does so, the burden shifts back to the plaintiff to show that his or her protected characteristic was a determinative factor in the defendant’s employment decision or that the defendant’s explanation was merely pretextual. Id. at 1199-1200.
The court found that the defendants “articulated three legitimate reasons for paying Ms. Harkins less than they paid Mr. Harkins or Fister: (1) her job duties were limited, (2) she was less qualified, and (3) NMSU was constrained by its budget. The burden therefore shifts back to the plaintiff to prove that these explanations are pretextual.”
The United States contends that Defendants’ asserted reasons are implausible because Ms. Harkins’ actual duties were not more limited than those of the other assistant coaches, she was not less qualified, and her salary was not set based on any perceived limitations in her position, lack of education or experience, or budgetary constraint. The United States disputes whether any limitations on Ms. Harkins’ coaching or recruiting responsibilities under NCAA rules were ever communicated to Ms. Harkins or applied to her assigned duties in practice. It presents evidence that Ms. Harkins was unaware of any limits to her duties, that she coached and recruited for both the cross country teams and the track and field team with the knowledge and approval of her supervisors, and that she actually had greater responsibilities than Fister. The United States further disputes that Ms. Harkins was less qualified than Fister or Mr. Harkins, and it presents evidence that her background at the time she was hired as an assistant coach was comparable to the education and experience that the male assistant coaches possessed on their dates of hire. Additionally, the United States argues that no alleged limitation on her duties or deficiency in her qualifications was actually used by NMSU as the basis for her lower salary. It presents evidence of conflicting testimony as to who was responsible for setting Ms. Harkins’ salary and what their reasons were for doing so. Finally, the United States presents evidence that suggests Ms. Harkins’ salary was not limited by the defendants’ budget, because both Mr. Harkins and Fister were hired at salaries above the amount originally budgeted for their positions.”
Thus, the court found that the evidence “is sufficient to create genuine issues of material fact such that a reasonable juror could conclude that the defendants’ explanations” were pretextual.
United States of America v. New Mexico State University et al.; D.N.M.; No. 16-CV-911-JAP-LF, 2018 U.S. Dist. LEXIS 19003; 2/6/18
Attorneys of Record: (for plaintiff) Kali Jones Schellenberg, LEAD ATTORNEY, U.S. Department of Justice, Washington, DC; Ruth Fuess Keegan, LEAD ATTORNEY, U.S. Attorney’s Office, Albuquerque, NM; Delora Kennebrew, Meredith Burrell, PRO HAC VICE, USDOJ, Civil Rights Division, Washington, DC; Emily Given, Kathleen O’Malley Lawrence, PRO HAC VICE, USDOJ, Civil Rights Division/Employment Litigation Section, Washington, DC. (for defendants) CaraLyn Banks, LEAD ATTORNEY, Kemp Smith, LLP, Las Cruces, NM; Clara B Burns, Kemp Smith LLP, El Paso, TX.
