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7th Circuit upholds judgment for Pearson on sex discrimination claim

October 15, 2018

A former employee of Pearson Education, Inc. has lost her sex discrimination appeal against the educational products supplier after the 7th Circuit Court of Appeals found the woman failed to show she was similarly situated to three male employees she claimed were treated better than her.

Appellant Vicki Barbera began working for Pearson Education, Inc. in 1989 and stayed with the company until February 2016. During her tenure with the company, Pearson adopted a severance policy in 2007 that allowed only employees who were involuntarily terminated without cause to receive severance pay. However, the company amended its policy in 2013 to offer severance to certain employees who left voluntarily as part of an effort to reduce warehouses.

Barbera was not eligible for the 2013 voluntary separation plan, but she was eligible for a 2014 plan that would have allowed her to voluntarily resign and receive severance. Barbera declined to accept the 2014 offer, and Pearson reinstated its original 2007 policy after February 2014. But at issue in the instant appeal are three men whom Barbera claims voluntarily left the company under the 2007 policy and still received severance.

Specifically, Paul Zale was given severance when he voluntarily left Pearson in September 2014, Thomas Lukasik was given severance when he voluntarily left in June 2015 and Tony Ramsey was given severance when he left in April 2015. Both Lukasik and Ramsey said Pearson was looking to do additional budget/employee reductions at the time they left the company.

Then in the summer of 2015, Pearson decided to transfer its warehouses and print services to R.R. Donnelley & Sons Co., and Barbera was informed that she would become a Donnelley employee. The transfer became effective in February 2016, but Barbera began asking “in the later part of 2015” if she could leave Pearson entirely with severance.

Pearson argued on summary judgment that Barbera began asking to leave with severance around September 2015, but the 7th Circuit Court of Appeals noted there was no evidence indicating whether she made her requests before or after that month. This absence of evidence is significant, the court said, because Barbera did not prove that she asked for severance in the same period as the three men at issue on appeal.

Regardless of when her requests first began, Pearson employees were informed of the Donnelly transfer in January 2016, the same month when Barbera sent an email to senior vice president Michael Nathanson about the possibility of leaving with severance. The email exchange is missing, but according to Barbera, her request was denied because she did not ask to leave within the deadline for the 2014 voluntarily separation plan. Her request was later denied a second time because her separation from Pearson was part of a “merger or acquisition” and because Donnelly had offered her a job.

In her district court litigation — which raised sex discrimination claims under Title VII of the Civil Rights Act of 1964 — Barbera argued Pearson destroyed the email chain between her and Nathanson. A magistrate judge barred Pearson from disputing Barbera’s description of the emails, but declined to grant additional sanctions, and the 7th Circuit upheld that course of action as reasonable.

The circuit court also upheld the grant of summary judgment to Pearson on Barbera’s sex discrimination claim, finding that because the three men requested to leave with severances “well before” Barbera made her requests, they could not be considered similarly situated. Further, the court noted the three men were not offered jobs with Donnelley, but Barbera was.

“This is significant because the Severance Policy prohibited severance pay in the event of a corporate transaction when the employee was offered employment by the acquiring entity …,” Judge Daniel Manion wrote for the court.

Finally, the court rejected Barbera’s pretext claim, finding that the two explanations she was given for the denial of her request for severance pay were different, but not mutually exclusive. The case is Vicki Barbera v. Pearson Education, Inc., 18-1085.

 

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