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Heiat v. Eastern Montana College3/4/1996
seh has pointed to inconsistencies in EMC's explanation that could support an inference of discrimination. The District Court found that Nafisseh had established a prima facie case because she had "proved that she is a woman and her male colleague with the same credentials, who performs substantially the same work, receives a higher salary than her." See St. Mary's Honor Ctr., 509 U.S. at ___, 113 S.Ct. at 2747 (discussing the elements of a prima facie case in the racial discrimination context); Sorba, 821 F.2d at 203 (discussing the elements of a prima facie case in the ADEA context). Additionally, Nafisseh submitted affidavits which, in addition to the facts making up the prima facie case, raise an inference that the defendant's proffered reason is pretextual. Chauhan, 897 F.2d at 128. Under the standard we now announce, Nafisseh would not be required to produce affidavits establishing her prima facie case until the defendant moves for summary judgment and proffers a legitimate nondiscriminatory reason for the salary disparity.
In her affidavit, Nafisseh stated that she "was not advised that the reason Dr. Abbas Heiat was receiving a higher salary than mine was because he occupied an `anchor position' in the department and that it was the practice of the college to pay a premium salary to fill such `anchor positions.'" Further, Nafisseh stated that she was told that she was receiving a lower salary because of "budgetary problems." In his affidavit, Abbas stated that when he was hired he was not advised that one of the reasons he was offered a salary of $40,000 was because he was occupying an "anchor position." In addition, he stated that he has not "been assigned any extra duties, chores, assignments, or responsibilities relative to said `anchor position.'"
Contrary to the dissent's suggestion that the Heiats have done nothing more than establish an "understandable lack of knowledge as to the basis for administrative decisions made by EMC," these affidavits raise genuine issues as to material facts in at least three particulars: (1) neither Nafisseh nor Abbas were advised of the "anchor position" rationale when they were hired or during their tenure of teaching; (2) EMC has propounded two differing reasons for Nafisseh's lesser pay; budgetary concerns on the one hand, and the "anchor position" rationale on the other; and (3) contrary to what one would expect if Abbas were in fact an "anchor" — he was never assigned any additional duties or responsibilities commensurate with such a position on the faculty. These are not mere conclusions but, rather, material facts which give rise to genuine issues, not the least of which is the question of whether the "anchor position" rationale was, as Nafisseh claims, merely an afterthought or pretext. These material facts are sufficient to overcome the motion for summary judgment. Hagen, 863 P.2d at 416 (citing D'Agostino v. Swanson (1990), 240 Mont. 435, 442, 784 P.2d 919, 924).
Nafisseh argues, and we agree, that, at best, there is a disputed issue of material fact as to whether Abbas was hired to fill a so-called "anchor position" and, at worst, an issue of whether the whole concept of an "anchor position" was merely a pretext developed after the fact to escape the consequences of EMC's actions which led to this suit. Nafisseh testified that she was told that budgetary problems were the reason she was offered a lower salary. Resolution of this discrepancy was a question of material fact. A jury should have the opportunity to weigh the credibility of the witnesses and the testimony to determine whether Nafisseh has indeed been discriminated against because of her sex. This question of material fact, whether there was a nondiscrimi
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