Barbara Perry v. Zoetis LLC ( 2021 )

United States Court of Appeals
For the Eighth Circuit
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No. 20-2232
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Barbara Perry
lllllllllllllllllllllPlaintiff - Appellant
v.
Zoetis, LLC
lllllllllllllllllllllDefendant - Appellee
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Appeal from United States District Court
for the District of Nebraska - Lincoln
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Submitted: May 11, 2021
Filed: August 6, 2021
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Before COLLOTON, WOLLMAN, and KOBES, Circuit Judges.
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KOBES, Circuit Judge.
Barbara Perry sued her former employer, Zoetis, LLC, because she thought it
discriminated against her by paying her less than similarly situated male employees.
The district court1 granted summary judgment to Zoetis because Perry failed to make
a prima facie case of sex discrimination. Perry appeals that decision, arguing that the
district court misapplied the law. We affirm.
I.
Zoetis is an animal health company that makes veterinary vaccines and
pharmaceuticals. It employs lab technologists who have different duties, job
requirements, and responsibilities based on seniority. There are four grades of lab
tech. From lowest to highest: 10-2, 20-1, 20-2, and 30-1. Perry started in the
microbiology lab in September 2013 at the lowest grade lab tech position and was
paid $16.50 per hour. Zoetis promoted her to the next grade in April 2015 and
increased her pay to either $17.41 or $17.93 per hour. When she resigned in April
2017, Perry was a 20-1 lab tech making $18.99 per hour. Zoetis does not dispute that
Perry took on many extra tasks and responsibilities and that she was a good
employee.
Perry became dissatisfied with her pay when she found a former coworker’s
hiring documents in his desk after he was fired. The documents revealed that the
coworker, N.G., had a starting pay of $21.00 per hour when he was hired for the
highest grade position in November 2015. The district court found that Zoetis’s lab
supervisor and its human resource manager set N.G.’s pay rate based on his
education, training, and relevant experience. Zoetis fired him after eight months
because his performance did not meet expectations.
Perry met with Zoetis’s human resources manager to discuss the difference in
pay. She told the manager that she “was performing more job duties and making less
1
The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
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money than what [N.G.] had been making.” App. 78–79. Perry’s later requests for
a raise were denied, and she quit four months after the meeting. A year later, Perry
sued Zoetis, arguing that it violated the Nebraska Equal Pay Act and the Nebraska
Fair Employment Practices Act by giving her male counterparts better pay despite her
stronger work performance. Perry pointed to N.G. and M.F., a male lab tech
employed at grade 20-2, as similarly situated male employees who were paid more.
Zoetis removed the case to federal court based on diversity jurisdiction and
both parties moved for summary judgment. The court granted summary judgment to
Zoetis on all of Perry’s claims, finding that the “uncontroverted evidence
demonstrate[d] that the pay differentials between [Perry] and her two compar[a]tors
are due to factors ‘other than sex.’” D. Ct. Dkt. 84 at 15. Perry appeals, arguing that
the court misapplied the law and disregarded evidence that showed there was a
genuine issue of material fact.
II.
We review a grant of summary judgment de novo. Brown v. Diversified
Distrib. Sys., LLC, 801 F.3d 901, 907 (8th Cir. 2015). We view the record in the light
most favorable to Perry, and we will affirm the grant of summary judgment if there
are no genuine issues of material fact. Id. “Because this is a diversity case, we apply
state substantive law and federal procedural law.” Smith v. Toyota Motor Corp., 964
F.3d 725, 728 (8th Cir. 2020). The Nebraska Equal Pay Act (NEPA) and the
Nebraska Fair Employment Practices Act (NFEPA) are both modeled on their federal
law counterparts, so Nebraska applies federal caselaw. Knapp v. Ruser, 901 N.W.2d
31, 46 (Neb. 2017); Hartley v. Metro. Utils. Dist. of Omaha, 885 N.W.2d 675, 692
(Neb. 2016).
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A. Nebraska Equal Pay Act
Perry argues that the district court erred by granting summary judgment to
Zoetis on her NEPA claim. When bringing a claim of pay discrimination based on
sex under the NEPA, a plaintiff must first establish a prima facie case. Knapp, 901
N.W.2d at 46; Price v. N. States Power Co., 664 F.3d 1186, 1191 (8th Cir. 2011).
This requires Perry to show that: “(1) she was paid less than a male employed in the
same establishment; (2) for equal work on jobs requiring equal skill, effort, and
responsibility; (3) which were performed under similar working conditions.” Knapp,
901 N.W.2d at 46; see also Neb. Rev. Stat. § 48-1221(1). This case turns on the
second element—whether the jobs required equal skill, effort, and responsibility.
The record shows that N.G.’s and M.F.’s positions called for different skills
and had materially different responsibilities than Perry’s. Perry says that she actually
performed all the duties of M.F.’s job and most of the duties of N.G.’s job. But she
presents no facts that would establish that she was required to do so. The record
shows that Perry was a diligent worker who frequently volunteered to take on tasks
that Zoetis did not require.2 While Perry’s work ethic is laudable, the fact that she
was not paid more for the extra tasks, or for her skill in completing them, is not proof
of sex discrimination. See 29 C.F.R. § 1620.15(a) (“Possession of a skill not needed
to meet the requirements of the job cannot be considered in making a determination
regarding equality of skill. The efficiency of the employee’s performance in the job
is not in itself an appropriate factor to consider in evaluating skill.”); see also Cullen
2
Perry’s arguments that she performed many of the duties of the higher grade
lab tech positions better than her male comparators actually highlight the differences
in duties and responsibilities between her position and theirs. Compared to Perry’s
20-1 position, the record establishes that M.F.’s 20-2 position had 12 more assigned
duties and that N.G.’s 30-1 position had 28 more.
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v. Ind. Univ. Bd. of Trs., 338 F.3d 693, 699 (7th Cir. 2003) (“[T]he comparison at this
juncture is between positions, not individuals.”).
Perry says that the district court erred in its comparison of her job and the jobs
of her comparators by relying only on Zoetis’s general descriptions of their
requirements and responsibilities. It is true that “neither job classifications nor titles
are dispositive for determining whether jobs are equal.” Hunt v. Neb. Pub. Power
Dist., 282 F.3d 1021, 1029 (8th Cir. 2002). But before the court could begin to
compare the actual work performed by the male and female employees, Perry was
required to present evidence that shows they “were doing equal work requiring equal
responsibility.” Knapp, 901 N.W.2d at 47 (cleaned up) (citation omitted). She did
not. Nothing in the record suggests that Perry’s position required her to take on the
additional duties and responsibilities of her higher-ranked coworkers. Because the
facts presented were insufficient to establish Perry’s prima facie NEPA case, the
district court properly granted Zoetis’s motion for summary judgment.
B. Nebraska Fair Employment Practices Act
Perry next argues that the district court erred in granting summary judgment to
Zoetis on her NFEPA claim. When bringing a claim of pay discrimination based on
sex under the NFEPA, a plaintiff “may survive an employer’s motion for summary
judgment in one of two ways.” McCullough v. Univ. of Ark. for Med. Scis., 559 F.3d
855, 860 (8th Cir. 2009). She may either produce direct evidence of the
discrimination, or she may present a genuine dispute using the burden-shifting
framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
McCullough, 559 F.3d at 860. She does not succeed either way.
Perry says that she presented direct evidence that shows “a strong causal link
between the alleged discriminatory bias and the adverse employment decision.”
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Id. at 861. She points only to her testimony recalling the meeting with Zoetis’s
human resource manager. In Perry’s own words, “I told [the manager] that I was
performing more job duties and making less money than what [N.G.] had been
making. . . . [The manager] looked on the computer. And then she told me that he
wasn’t making that much more than I was making.” App. 78–79. This is not direct
evidence of discrimination. Direct evidence “most often comprises remarks by
decisionmakers that reflect, without inference, a discriminatory bias.” McCullough,
559 F.3d at 861. While Perry’s testimony establishes that there was a difference in
pay between two differently ranked employees, it does not “provide[] a strong causal
link between the alleged discriminatory bias” and the pay difference. Id.Without direct evidence, Perry must establish a prima facie case under the
McDonnell Douglas framework. If she can, “then the burden of production shifts to
the defendant to articulate a legitimate, nondiscriminatory reason” for paying Perry
less than her male coworkers. Id. at 860. If Zoetis produces evidence that suggests
nondiscriminatory reasons, then the burden shifts back to Perry to prove that Zoetis’s
reasons “were not its true reasons, but were a pretext for discrimination.” Hartley,
885 N.W.2d at 694 (citation omitted). The Nebraska Supreme Court has found the
McDonnell Douglas framework to be an appropriate method for resolving a
discrimination claim. Knapp, 901 N.W.2d at 43.
To prove her prima facie case, Perry must show that: (1) she is a member of
a protected class; (2) she was qualified to work in the position she was in; (3) she
suffered an adverse employment action; and (4) she was treated differently than the
male employees who were similarly situated at Zoetis. Id. Perry satisfies the first
three prongs, but her prima facie case under the NFEPA fails for the same reasons her
NEPA claim failed. She does not point to any facts that would support an inference
that the male employees to whom she compares herself were “similarly situated in all
relevant respects.” Blackwell v. Alliant Techsystems, Inc., 822 F.3d 431, 435 (8th Cir.
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2016) (citation omitted). Her proposed male comparators were lab techs with
different duties and responsibilities.
Even assuming that Perry’s argument could shift the burden onto Zoetis, her
case would still fail to survive summary judgment. Zoetis produced “evidence that
would support a finding that unlawful discrimination was not the cause of the
employment action.” Hartley, 885 N.W.2d at 694. It showed that N.G. earned more
than Perry because new employee pay rates were based on different levels of
responsibility, the employee’s education, and their related experience. Zoetis also
showed that M.F. earned more because Zoetis has an internal policy to keep an
employee’s pay rate the same when they transfer from a different department. This
evidence is enough to rebut Perry’s proposed prima facie case.
To survive summary judgment, Perry had to show some evidence suggesting
Zoetis “offered a phony excuse” for the disparate treatment. McNary v. Schreiber
Foods, Inc., 535 F.3d 765, 769 (8th Cir. 2008) (citation omitted). She did not.
Because Perry’s evidence was insufficient either to establish her prima facie case
under the NFEPA or to show that Zoetis’s reasons for the pay disparity were
pretextual, the district court properly granted Zoetis’s motion for summary judgment.
III.
The judgment of the district court is affirmed.
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