Equal pay for equal work and “red lined” positions
Fenton v St. Lawrence County, 36 AD3d 1102
Deanna Fenton and C. Kevin McDonough both served as personnel technicians with St. Lawrence County. Fenton’s annual salary, however, was significantly less than McDonough’s annual salary.
Fenton’s salary was based on a grade-step salary schedule contained in a Taylor Law contract while McDonough's salary reflected the salary he was receiving of his previous higher salaried position – Personnel Director – when he was “downgraded” to a lower grade position. When McDonough was downgraded, his salary was “red lined.”
In response to Fenton’s complaining about this salary discrepancy, her supervisors had a “desk audit” of her position performed. As a result, Fenton’s position was allocated to a higher salary grade but this did not resolve the underlying salary discrepancy between Fenton and McDonough.
Fenton filed a complaint with the Equal Employment Opportunity Commission [EEOC] alleging the difference between her salary and McDonough’s constituted a violation of the Equal Pay Act of 1963 (29 USC § 206 [d]. Fenton also complained that after filing her complaint with EEOC she had been subjected to retaliation.
Eventually EEOC issued a right to sue letter and Fenton brought and action in State Supreme Court seeking compensation for gender discrimination. Supreme Court issued an order summarily dismissing Fenton’s petition. The Appellate Division affirmed the lower court’s action.
The Appellate Division said that in order to maintain a cause of action under the Equal Pay Act, the plaintiff must “establish a prima facie case of wage discrimination by demonstrating that:
(1) The employer pays different wages to employees of the opposite sex:
(2) The employees perform equal work on jobs requiring equal skill, effort, and responsibility; [and]
(3) The jobs are performed under similar working conditions” citing, Aldrich v Randolph Cent. School Dist., 963 F.2d 520, 524, cert denied 506 US 965.
St. Lawrence County conceded that Fenton had established a prima facie case of unlawful discrimination, Accordingly, the burden of going forward shifted to it to demonstrate that the pay disparity was justified – i.e. the differences in the wages paid to Fenton and to McDonough was due to a factor “other than sex”
The County contended that it had met its burden by establishing that Fenton’s salary was lower than McDonough's because McDonough’s salary reflected the compensation he had been receiving in his former, higher grade position, and his salary rate had been “red lined” or “red circled” for legitimate business reasons.
The Appellate Division said that it agreed and dismissed Fenton’s appeal.
The court explained that:
“The term 'red circle' rate is used to describe certain unusual, higher than normal, wage rates which are maintained for reasons unrelated to sex” such as reclassification or reallocation of position as a result of reorganization or for other legitimate administrative purposes. Where a position is red circled for legitimate business reasons, it may result in the maintenance of an employee's salary at a higher rate despite a decrease in the employee's responsibilities or duties.” This constitutes a “factor other than sex” and thus qualifies as an affirmative defense under the Equal Pay Act.”
In this instance St. Lawrence County “red circled” an incumbent’s salary to avoid financially injuring the downgraded employee. The court noted that the County had red circled the salaries of both male and female employees affected by its reorganization.
This evidence established the requisite affirmative defense, shifting the burden to Fenton to raise a triable issue of fact regarding whether County’s' red circling of these position was a pretext for gender discrimination.
In the court’s view, Fenton “failed to meet” her burden of rebutting the County’s affirmative defense by proving that its reason was “mere pretext” for unlawful discrimination.