Maria Mayorga v. Marsden Building Maintenance LLC

United States Court of Appeals
For the Eighth Circuit
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No. 22-1630
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Maria Mayorga
Plaintiff - Appellant
v.
Marsden Building Maintenance LLC
Defendant - Appellee
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Appeal from United States District Court
for the Southern District of Iowa - Central
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Submitted: September 20, 2022
Filed: December 20, 2022
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Before SHEPHERD, KELLY, and GRASZ, Circuit Judges.
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KELLY, Circuit Judge.
Maria Mayorga sued her former employer, Marsden Building Maintenance,
L.L.C., alleging wage discrimination, sex discrimination, and retaliation in violation

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of the Iowa Civil Rights Act (ICRA). Mayorga now appeals the district court’s1
grant of summary judgment in favor of Marsden. We affirm.
I.
Marsden, a commercial cleaning company, hired Mayorga as a general
cleaner in 2013. Mayorga was paid $12 an hour and performed basic janitorial tasks,
such as cleaning and sanitizing, vacuuming, and trash disposal. Mayorga left
Marsden in 2014 but returned to the company in 2018. Upon return, Mayorga
remained a general cleaner and was paid the same rate. Mayorga was also given
additional responsibilities as an assistant manager, whereby she inspected the work
of other general cleaners.
In December 2019, Mayorga took a personal leave of absence from Marsden.
By the time Mayorga returned, her position had been filled,2 but Marsden wanted to
retain her because she was a “hard worker.” Marsden had a general cleaner/floater
position available, but it only paid $9 or $10 an hour. There was also a position
available in the special services department. That position, however, required
technical knowledge of machinery, and the job’s responsibilities included heavy-
duty cleaning, such as stripping and waxing floors, carpet cleaning and extractions,
power washing, grout cleaning, and emergency cleanup. The hourly wage for
special services employees was between $13 and $15, and most employees in the
department were men. Yerko Mena, Mayorga’s direct supervisor, suggested to
Marsden that Mayorga might be “an option” for the position, as he knew she had
some experience in floor work and she could be trained on the rest of the position’s
responsibilities. When Mena gave Mayorga a choice, she accepted the position in
special services over the general cleaner/floater position because she knew the
hourly pay for the special services position started at $13. Marsden, however,
1 The Honorable Robert W. Pratt, United States District Judge for the Southern
District of Iowa.
2 Mayorga does not challenge Marsden’s decision to fill her position.

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intended to keep Mayorga at the same rate of pay as her previous general cleaner
position until another position opened up or until she was trained on the equipment
used in special services.
Mayorga returned to work in January 2020. Before her first shift, Mayorga
met with Gabriel Velasquez, Marsden’s operations manager. Velasquez initially
told Mayorga there were no open positions available. Mayorga countered that Mena
had told her about the special services position and that she had seen an external
posting for a job at Marsden. Velasquez briefly left the room, and when he returned,
he told Mayorga she could start in special services. But he explained the job was
temporary until Marsden found Mayorga another position. Mayorga asked
Velasquez whether her rate of pay would be $13 an hour, and he replied, “[Y]es, but
with experience.”
Around the same time, Marsden hired three other special services employees,
including two men, Christopher Wright and Miguel Cabezas. Wright started at $13
an hour. Wright had worked for a different cleaning company, where he had gained
some experience in special services, and he could operate all the machines Marsden
used. Cabezas started at $14 an hour. Cabezas had at least 12 years of experience
cleaning warehouse floors and he also had experience in special services.
Soon after starting her new position, Mayorga received her first paycheck and
saw that she had only been paid $12 an hour. Mayorga thought she would be paid
$13 an hour. Mayorga asked her special services manager, Aaron Foley, to speak to
Velasquez about her wages on her behalf. After Foley’s efforts were unsuccessful,
Mayorga decided to speak with Velasquez herself. On February 3, 2020, Mayorga
met with Velasquez and asked to be paid $13 an hour, based on the $13- to $15-an-
hour range for the special services position. Velasquez explained the higher rate of
pay was only for employees with experience, and that Mayorga could not be paid at
that rate because she was “not fully trained on all the equipment” used by special
services. Mayorga asserted she had sufficient experience based on her previous
work as a general cleaner at Marsden. Velasquez said he would see what he could

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do. Velasquez later met with Foley, who said Mayorga still had “a lot to learn” and
needed more training.
A week later, Mayorga and Velasquez met again. Mayorga told Velasquez
she wanted a final answer regarding a raise to $13 an hour. Velasquez told her he
would not give her a raise and that she could “take it or leave it.” The two began to
argue. The conversation heated up, and Velasquez eventually told Mayorga, “[G]et
out of here. You don’t have a job anymore.” Mayorga asked if she was being fired,
and Velasquez said “yes.”
On May 18, 2020, Mayorga filed a complaint with the Iowa Civil Rights
Commission. After exhausting her administrative remedies, Mayorga filed suit in
Iowa state court on November 5, 2020, alleging wage discrimination, sex
discrimination, and retaliation in violation of the ICRA, Iowa Code §§ 216.6,
216.6A, 216.11. Mayorga alleged that she was paid less than her male colleagues,
though she performed the same work, and that she was terminated because she was
a woman. Mayorga also alleged that after she complained to Marsden about the
unequal wages, Marsden retaliated against her by terminating her position. Marsden
removed the case to federal court, and the district court subsequently granted
summary judgment in Marsden’s favor. Mayorga appeals the grant of summary
judgment on her wage and sex discrimination claims.
II.
We review a district court’s grant of summary judgment de novo, viewing the
evidence in the light most favorable to the nonmoving party. Martinez v. W.W.
Grainger, Inc., 664 F.3d 225, 229 (8th Cir. 2011). Summary judgment is appropriate
if there is no genuine dispute as to any material fact and the moving party is entitled
to judgment as a matter of law. Meyer v. McKenzie Elec. Coop., Inc., 947 F.3d 506,
508 (8th Cir. 2020); Fed. R. Civ. P. 56(a). To defeat summary judgment, “the
nonmoving party must come forward with specific facts showing that there is a

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genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986) (cleaned up).
III.
A.
Mayorga first argues that the district court erred in granting summary
judgment on her wage discrimination claim. The ICRA prohibits employers from
paying unequal wages to employees on the basis of their sex. See Iowa Code
§ 216.6A. To establish a prima facie claim of sex-based wage discrimination under
the ICRA, a plaintiff must 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.”
Dindinger v. Allsteel, Inc., 853 F.3d 414, 421–22 (8th Cir. 2017) (quoting Hunt v.
Neb. Pub. Power Dist., 282 F.3d 1021, 1029 (8th Cir. 2002)).3 The jobs need not be
identical to be considered “equal,” they need only be substantially equal. Hunt, 282
F.3d at 1029. And neither job classifications nor titles are dispositive. Id.
Once a plaintiff makes out a prima facie case, the burden shifts to the
employer to establish one of four enumerated affirmative defenses. An employer
may justify the wage differential by showing that the disparity was based on (1) a
seniority system, (2) a merit system, (3) a system which measures earnings by
quantity or quality of production, or (4) “any other factor other than” the sex of the
employee. Iowa Code § 216.6A(3). But an employer “cannot escape liability merely
by articulating a legitimate non-discriminatory reason for the employment action.”
3 The ICRA was modeled after Title VII of the Civil Rights Act. Vivian v.
Madison, 601 N.W.2d 872, 873 (Iowa 1999). Therefore, when interpreting
discrimination claims arising under the ICRA, Iowa courts “turn to federal law” for
guidance. Deboom v. Raining Rose, Inc., 772 N.W.2d 1, 7 (Iowa 2009); see
Dindinger v. Allsteel, Inc., 860 N.W.2d 557, 564–65 (Iowa 2015) (looking to the
federal Equal Pay Act to interpret wage discrimination claims under Iowa Code
§ 216.6A).

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Taylor v. White, 321 F.3d 710, 716 (8th Cir. 2003). Rather, an employer must
“prove that the pay differential was based on a factor other than sex.” Id.
Assuming, without deciding, that Mayorga established a prima facie case of
sex-based wage discrimination, we agree with the district court that Marsden
sustained its burden of proving an affirmative defense: that the difference between
Mayorga’s pay and that of the two male comparators, Wright and Cabezas, was
justified based on the employees’ prior work experience.
A “differential that is based on education or experience is a factor other than
sex.” Hutchins v. Int’l Bhd. of Teamsters, 177 F.3d 1076, 1081 (8th Cir. 1999).
Marsden considered prior experience during the hiring process, and experience was
generally used to set wages. Here, the evidence established that Wright and Cabezas
had more relevant experience than Mayorga when they were hired into special
services. Wright had operated the machinery used by Marsden in a previous special
services position with another company, and Cabezas had over a decade of
experience in cleaning services and special services combined. Mayorga, in
contrast, had worked in general cleaning services only, had no experience in special
services, and had to learn how to use some of the special services equipment.
Mayorga testified that she was learning on the job, but she points to no evidence that
creates a factual dispute about her male counterparts’ prior experience at the time of
hire.
On this record, Marsden has met its burden to prove the pay differential
between Mayorga and her male counterparts was based on a factor other than sex.
See Schottel v. Neb. State Coll. Sys., 42 F.4th 976, 982 (8th Cir. 2022) (finding the
employer offered sufficient evidence that a pay differential was based on a factor
other than sex where the male comparator had five years more teaching experience
and seven years more relevant professional experience than the female plaintiff);
Hutchins, 177 F.3d at 1081 (holding that the employer proved its affirmative defense
where, compared to the female plaintiff, each male comparator had one or more
additional qualifications at the time of their hire, including “more experience in

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organizing; more formal education, particularly in the area of labor and employment;
more union experience; and union experience at higher levels”).4
B.
Mayorga also argues that the district court erred in granting summary
judgment to Marsden on her sex discrimination claim. The ICRA prohibits
discrimination in employment based on an applicant’s or employee’s sex. See Iowa
Code § 216.6(1)(a). To survive summary judgment, Mayorga may offer direct
evidence of discrimination or create an inference of it under the burden-shifting
framework established in McDonnell Douglas. See Ames v. Nationwide Mut. Ins.
Co., 760 F.3d 763, 767 (8th Cir. 2014); Smidt v. Porter, 695 N.W.2d 9, 14 (Iowa
2005).
Because Mayorga has not presented any direct evidence of discrimination, we
analyze her claim under the McDonnell Douglas burden-shifting framework. Cf.
Findlator v. Allina Health Clinics, 960 F.3d 512, 514 (8th Cir. 2020) (“Direct
evidence consists of a specific link between a challenged decision and
discriminatory animus.”). Under this framework, the plaintiff has the initial burden
of making a prima facie case of discrimination. See Grant v. City of Blytheville,
841 F.3d 767, 773 (8th Cir. 2016). If she makes a prima facie case, the employer
has the burden of articulating a legitimate, nondiscriminatory reason for the adverse
employment action. Id. If the employer meets this burden, then the plaintiff has the
burden to produce evidence that the proffered nondiscriminatory reason is a pretext
for discrimination. Id.
4 Mayorga maintains that even if Marsden has proved the wage differential
was based on experience, Marsden’s rationale is pretextual. But the “analytical
framework” for a wage discrimination claim “differs from” the McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), burden shifting analysis. Taylor, 321 F.3d at
716; see also Price v. N. States Power Co., 664 F.3d 1186, 1192 (8th Cir. 2011).
Instead, for a wage discrimination claim, “an employer will be entitled to summary
judgment if it proves that any pay differential is explained by a statutory affirmative
defense.” Price, 664 F.3d at 1193.

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The district court concluded that Mayorga failed to prove a prima facie case
of sex discrimination, and that even if she did, there was insufficient evidence for a
reasonable jury to find that Marsden’s proffered reasons for Mayorga’s termination
were pretextual. To establish a prima facie case of sex discrimination under the
ICRA, Mayorga must demonstrate that: (1) she belongs to a protected group, (2) she
was qualified to retain the job, (3) she was terminated, and (4) it is “more likely than
not” that the termination was based on sex. See Hamer v. Iowa C.R. Comm’n, 472
N.W.2d 259, 264 (Iowa 1991).
On appeal, only the fourth element of Mayorga’s prima facie case is at issue.
This element is satisfied if a plaintiff presents evidence that “the discharge occurred
under circumstances giving rise to an inference of discrimination.” Elam v. Regions
Fin. Corp., 601 F.3d 873, 879 (8th Cir. 2010) (quotations omitted). Reasonable
inferences are those that can be drawn from the evidence without resort to
speculation. Id. at 877. A plaintiff can establish an inference of discrimination in
multiple ways, such as by showing more favorable treatment of similarly situated
employees who are not in the protected class, biased comments by a decisionmaker,
or that the employer failed to follow its own policies or shifted its explanation of the
employment decision. See Grant, 841 F.3d at 774.
Mayorga asserts that Velasquez was motivated by bias. More specifically,
she claims that Velasquez terminated her because “he could not tolerate being
challenged by a woman.” However, Mayorga offers no evidence to support this
allegation. Mayorga also takes issue with how Velasquez conducted himself in the
role of operations manager. But none of the evidence she presented supports a
reasonable inference that Velasquez’s decision to fire her is “more likely than not”
explained by an intent to discriminate against her on the basis of her sex.
IV.
For the foregoing reasons, we affirm the judgment of the district court.
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