Lewis v. Smith

255 F.Supp.2d 1054

Mark LEWIS, Plaintiff, v. Eugene D. SMITH, et al., Defendants.

No. 01-0748-PHX-ROS.

United States District Court, D. Arizona.

April 4, 2003.

James M. Jellison, Schleier Jellison & Schleier PC, Phoenix, AZ, for Plaintiff.

Michael King Goodwin, Office of Attorney General Liability Management Section, Phoenix, AZ, for Defendants.

ORDER

SILVER, District Judge.

Pending before the Court are cross-motions for summary judgment. Plaintiff Mark Lewis is suing Defendant Board of Regents of the Universities and State Colleges of Arizona ("Board of Regents") for gender-based wage discrimination in violation of the Equal Pay Act, 29 U.S.C. § 206(d)(1) ("EPA"), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Plaintiff is also suing Defendant Board of Regents for unlawful retaliation in violation of the EPA and Title VII, and is suing Defendants Eugene Smith and Charli Turner Thorne for retaliation in violation of the First Amendment under 42 U.S.C. § 1983. Defendants jointly filed Defendants' Motion for Summary Judgment on June 17, 2002 [Doc. # 56]. Plaintiff filed a Response and Cross-Motion for Partial Summary Judgment on July 22, 2002 [Doc. #62]. In addition, Plaintiff filed Motion to Strike Portions of Defendants' Statement of Facts [Doc. # 64], and Defendants filed Motion to Strike Portions of Plaintiffs Summary Judgment Papers [Doc. # 72]. In an Order dated March 31, 2003, the Court granted in part and denied in part Defendants' Motion for Summary Judgment and denied Plaintiffs Cross-Motion, promising that a written opinion would follow. This is that opinion.

I. Factual Background

Plaintiff Mark Lewis was employed as an Assistant Coach for the Arizona State University's ("ASU") Women's Basketball Team from 1996 until his appointment was not renewed on or about April 13, 2001. PSOF ¶¶ 16-19, 214.¹ Plaintiff was an Assistant Coach for five seasons, and served under a series of five one-year appointments, subject to renewal each year. DSOF 119, Aff. of Kennedy, Exh. 4 to DSOF 113. Defendant Charli Turner Thorne ("Turner Thorne") is the Head Coach for ASU's Women's Basketball Team. PSOF HI. Turner Thorne hired Plaintiff in 1996 shortly after she herself was hired as Head Coach. PSOF ¶4. Defendant Eugene Smith ("Smith") became ASU Director of Intercollegiate Athletics in August 2000 and was Turner Thome's supervisor in April of 2001. PSOF ¶5. Both Turner Thorne and Smith contributed to the decision not to renew Plaintiffs appointment in April 2001. PSOF ¶¶ 173,174.

There are three Assistant Coach positions on the ASU Women's Basketball Team, two "non-restricted" positions which allow recruiting, and one "restricted" position with limited recruiting duties. DSOF ¶7, Aff. of Turner Thorne, Exh. 3 to DSOF, H 2. In the five seasons in which Plaintiff was employed, from 1996 to 2001, the restricted coach position received a considerably lower salary than the other two assistant coach positions. Aff. of Kennedy, Exh. 4 to DSOF, H 3. Though one assistant coach, Laura Hughes, has moved between the "restricted" and "non-restricted" position in different seasons, Plaintiff has always been employed as a non-restricted coach. Id. Plaintiffs salary in the 1996-97 season was slightly lower than the salary of the other non-restricted coach, a female, but his salary was higher than that of the other non-restricted coach, a female, in each of the next three years. Id. However, in 2000-01, Defendants hired a new assistant coach, Kim Gervasoni ("Gervasoni") whose annual base salary was $80,000, considerably more than Plaintiffs $63,860. Id, PSOF H 96. At all times, Plaintiff was the only male on the coaching staff.

Though the parties dispute the extent of Turner Thome's dissatisfaction with Plaintiff in previous seasons, Plaintiff and Turner Thorne had some professional difficulties in the 2000-1 season. In October 2000, for example, they had a meeting to discuss some issues regarding Plaintiffs attitude and performance. Lewis Depo at 97-98. Also, Plaintiff strongly objected to the hiring of Gervasoni. Plaintiff and Carrie Greene-Shiverdecker ("Shiverdecker"), the Coordinator of Operations for the ASU Women's Basketball Team, made up the search committee that screened applications for the assistant coach position in 2000. PSOF H 79-81. Plaintiff and Shiverdecker proceeded in the initial screening according to instructions set forth by Turner Thorne, PSOF HIT 63, 66, but Turner Thome made the ultimate decision after interviewing the final candidates. Plaintiff did not agree with the selection of Gervasoni, who had been the head coach at a community college in California, because he thought she lacked sufficient experience coaching or recruiting at the NCAA Division I level. PSOF H 103.

On March 26, 2001, Plaintiff learned that Gervasoni's annual base salary was $80,000. The next day, Plaintiff visited Turner Thorne at her home and informed her that he had discovered the salary discrepancy and requested a pay raise. PSOF 11187, 189. During the conversation, Plaintiff told Turner Thorne that he had lost "trust and respect" for her. Lewis Notes, Exh. 10 to DSOF; Turner Thorne Depo at 20. Turner Thorne testified that, after the March 27 conversation, she no longer felt that Plaintiff could support her or "sell" her to recruits, and she decided not to renew his appointment. PSOF H 192, Turner Thorne Depo at 11-12.

Plaintiff and Turner Thorne spoke a few times in the week after March 27, and Turner Thorne indicated that Plaintiff would not get a raise, though she did not tell him his appointment would not be renewed. PSOF ¶¶ 195, 196, 204. Around this time, Turner Thorne had discussions with Smith about Plaintiffs employment status, and she made the decision, with Smith's approval, to not renew Plaintiffs appointment. PSOF H 203, Smith Depo at 34-5, 41. At a meeting on April 11 between the two, Plaintiff informed Smith that he had filed a charge of wage discrimination with the EEOC. PSOF 11208. On April 13, Turner Thorne met with Plaintiff and informed him that his appointment would not be renewed. PSOF H 214. On April 27, 2001, Plaintiff filed his Complaint [Doc. # 1] alleging wage discrimination on the basis of sex and unlawful retaliation.

II. Legal Standard on Summary Judgment

A court must grant summary judgment if the pleadings and supporting documents, viewed in the light most favorable to the non-moving party, "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), Jesinger v. Nev. Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir. 1994). Substantive law determines which facts are material, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 411 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see Jesinger, 24 F.3d at 1130. In addition, the dispute must be genuine, that is, "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 411 U.S. at 248,106 S.Ct. 2505.

Furthermore, the party opposing summary judgment "may not rest upon the mere allegations or denials of [the party's] pleadings, but ... must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir.1995). There is no issue for trial unless there is sufficient evidence favoring the non-moving party; if the evidence is merely colorable or is not significantly probative, summary judgment may be granted. Anderson, 411 U.S. at 249-50 106 S.Ct. 2505. However, because "[credibility determinations, the weighing of evidence, and the drawing of inferences from the facts are jury functions, not those of a judge, ... [t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor" at the summary judgment stage. Id. at 255, 106 S.Ct. 2505 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)); see Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir.1995).

III. Plaintiffs Wage Discrimination Claims

A. Legal Standards Under the Equal Pay Act and Title VII

The EPA prohibits discrimination "on the basis of sex by paying wages to employees ... at a rate less than the rate at which [the employer] pays wages to employees off the opposite sex ... for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions..." 29 U.S.C. § 206(d)(1). For purposes of comparison, "the jobs need not be identical, but they must be `substantially equal.'" Stanley v. University of Southern Cal, 13 F.3d 1313, 1321 (9th Cir.1994) (Stanley I) (quoting Hein v. Oregon College of Educ, 718 F.2d 910, 913 (9th Cir.1983)). Furthermore, "[e]ach of these components [skill, effort, and responsibility] must be substantially equal to state a claim." Stanley I, 13 F.3d at 1321.

The Ninth Circuit has outlined a burden-shifting framework in EPA cases. Initially, "the plaintiff has the burden of establishing a prima facie case of discrimination by showing that employees of the opposite sex were paid different wages for equal work." Stanley v. Univ. of Southern Cal, 178 F.3d 1069, 1073-1 (9th Cir.1999) (Stanley II). At this stage, "[t]he prima facie case is limited to a comparison of the jobs in question, and does not involve a comparison of the individuals who hold the jobs." Stanley II, 178 F.3d at 1074. The plaintiff thus bears the burden of showing that his job was "substantially equal" to a job with a higher...