Race, Gender-Based Pay Discrimination Claim Dismissal Affirmed; Alleged “Shifting Explanations” Did Not Permit Finding of Pretext

In Boatright v. U.S. Bancorp, 20-4236-cv, 2022 WL 351059 (2d Cir. Feb. 7, 2022), the U.S. Court of Appeals for the Second Circuit affirmed the summary judgment dismissal of plaintiff’s race- and gender-based discrimination claims under Title VII of the Civil Rights Act of 1964, the New York State Human Rights Law, and the New York City Human Rights Law.

Plaintiff’s discrimination claim was based primarily on the contention that defendants compensated her less than a white male colleague for the same work.

From the decision:

We analyze Boatright’s claims under Title VII and the NYSHRL using the familiar McDonnell Douglas burden-shifting framework. See Walsh v. N.Y.C. Hous. Auth., 828 F.3d 70, 74–75 (2d Cir. 2016). Under that framework, the District Court determined that, to the extent Boatright’s discrimination claims rely on comparing herself to Nagelson, she failed to show that the Defendants’ legitimate non-discriminatory reasons for the pay gap were a pretext for discrimination. We agree for several reasons. First, the circumstances of Nagelson’s recruitment were different from Boatright’s and resulted in a perceived need to recruit him aggressively with an unusually high pay offer, in addition to which he was hired to work within the Defendants’ prime geographic region, whereas Boatright was not. Second, Nagelson had substantially more prior experience in banking than Boatright. Third, he was responsible for serving as the supervisory principal of the Defendants’ San Francisco office (and had a license that qualified him to do so), whereas Boatright lacked such a license and worked in an office that already had a supervisory principal. Thus, while Boatright and Nagelson had the same job title, their jobs were quite different in practice. Fourth, the Defendants’ system for awarding bonuses accounted for interpersonal skills and the quantity and quality of revenue generation — metrics on which Nagelson indisputably outperformed Boatright. In short, Boatright failed to show that the Defendants’ explanations were a pretext for discrimination, much less that the pay gap was “more likely than not based in whole or in part on discrimination.”

The court rejected plaintiff’s argument that defendants’ responses to the Equal Employment Opportunity Commission (EEOC) and their answer to her complaint amounted to “shifting explanations” for the pay gap and for her termination that demonstrated pretext, noting that “the record shows that the Defendants acknowledged a pay gap between Boatright and Nagelson and consistently asserted to the EEOC that the difference in experience levels, job responsibilities, and geographic locations contributed to the gap.”

Even if defendants’ proffered reasons were false, held the court, that alone would not be sufficient, absent evidence that reasonably supports a finding of prohibited discrimination. The court cited, inter alia, Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133 (2000) for the proposition that “it is not enough to disbelieve the employer; the factfinder must believe the plaintiff’s explanation of intentional discrimination.” [Cleaned up.]

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