Job titles — and pay — don’t always keep pace with an employee’s responsibilities. Yet this common situation can lead to a lawsuit. Such was the case in Jaburek v. Foxx, where the U.S. Court of Appeals for the Seventh Circuit considered discrimination and retaliation claims under Title VII and the Equal Pay Act (EPA).

NEW DUTIES, OLD TITLE

The plaintiff, a woman of Mexican descent, was hired as a secretary by the Federal Aviation Administration (FAA) at a pay grade of GS-5. She was promoted to Administrative Support Assistant with a pay grade of GS-6. Later, she was briefly promoted to Program Analyst with a pay grade of GS-7. Four months after that, she was reassigned to her Administrative Support Assistant position and her pay was reduced to the GS-6 pay grade.

Some time afterwards, the plainti was assigned to another location where she worked with two Program Analysts. One of the analysts retired and another changed positions, so the plaintiff began to perform their tasks. She didn’t receive a pay increase, nor did she ask for an increase when she took on the new tasks.

Management changed and the plaintiff was asked to create a description of her duties. In her description, she stated that she was “acting in the capacity of the FAA Program Analyst.” Thereafter, the employer removed the plaintiff’s Program Analyst duties, describing in a letter her “assigned duties as a secretary.” The employer also revoked her access to a government database to which secretaries didn’t have access.

COMPLAINTS MADE AND DENIED

The plaintiff led an internal complaint contending that her manager’s acts of sending her the secretary job description and revoking her database access constituted discrimination and retaliation. The plaintiff claimed that the FAA should have conducted an audit of her duties after she submitted a description of them when acting as a Program Analyst. Management claimed that the plaintiff never requested an audit. No discrimination was found and her internal complaint was dismissed.

The plaintiff then led an action against the FAA claiming that she was discriminated against because of her gender and national origin in violation of TitleVII and the Equal Pay Act (EPA). She alleged that she was paid less than other employees who did the same work and wasn’t promoted. In addition, she alleged that she was retaliated against for complaining of the discrimination. The trial court granted summary judgment in favor of the employer, holding that the plaintiff had failed to produce necessary evidence to establish prima facie claims for any of her causes of action.

NO CAUSAL CONNECTION

The appeals court found that the plaintiff couldn’t establish a prima facie case of failure to promote because she’d never applied for the position of Program Analyst and thus wasn’t rejected for the position. Moreover, no one else was promoted to the position. The court determined that the plaintiff’s letter to management with a description of her duties and her claim that she’d requested an audit didn’t establish that she’d applied for the Program Analyst position.Therefore, she didn’t establish a failure-to-promote claim and couldn’t prove that she should have been compensated at a higher pay grade.

In addition, the plaintiff’s retaliation claim failed because the alleged adverse action (loss of access to the database) had occurred prior to her complaints of discrimination. So she couldn’t establish a causal connection between the two events.

EPA CLAIM FAILS

The EPA prohibits employers from paying different rates to men and women for the same work at the same “establishment.” To establish an EPA claim, a plaintiff must show that 1) higher wages were paid to opposite-sex employees for equal work requiring substantially similar skills, effort and responsibilities, and 2) the work was performed under similar working conditions.

The appeals court noted that the same “establishment” means the same geographical city. The plaintiff had identified three male Program Analysts. However, none of them worked in the same offices as the plaintiff. In addition, her EPA claim failed because she didn’t produce evidence of the male employees’ duties or of common tasks that would allow a jury to determine the comparability of the work.

ON NOTICE

Although the employer in this case prevailed, Jaburek should put employers on notice. To avoid EPA claims, ensure that your employees’ job duties match their job titles and pay grades. Also, employees with the same core responsibilities and seniority should be paid equally.