Elizabeth Murray

Free Press Staff Writer

A former Rutland deputy prosecutor says the state paid her less than a man in the same position, according to a lawsuit filed in U.S. District Court in Burlington.

Jane O’Neill of Rutland made the allegations in a lawsuit filed last month against the Rutland County State's Attorneys Office and the Vermont Department of State's Attorneys and Sheriffs. She served as a deputy state's attorney from 2009 to 2014.

O'Neill said she resigned after supervisors ignored her questions about her pay and her work conditions became “intolerable” due to retaliation from a superior, according to the lawsuit.

According to the complaint, O’Neill said the Rutland County State’s Attorney’s Office and the Department of State’s Attorneys and Sheriffs violated the Equal Pay Act and Vermont’s Fair Employment Practices Act. She alleges her boss and the department set the compensation of a male employee hired in 2011 at a rate 26 percent higher than her salary.

The complaint alleges that O’Neill and the male employee “performed equal work that required equal skill, effort and responsibility, and was performed under substantially similar working conditions.”

Another female deputy state’s attorney, hired in 2013, also had a salary 25 percent lower than the male employee's pay, according to the lawsuit.

Neither of the lawyers is identified in O'Neill's lawsuit.

O'Neill's lawyer John Paul Faignant said his client was "frustrated" and "demoralized" by roadblocks when inquiring about her salary.

"She viewed herself as part of this family of people doing the right thing, and she was willing to accept, on the representation that the pay was not negotiable, a very low starting salary," Faignant said. "It must have been difficult for her having a sense that something was wrong, and not being able to get a responsible response."

The Attorney General's Office, representing the defendants, last week filed a motion to dismiss the case, arguing the Rutland County State's Attorney's Office and the Department of State's Attorneys and Sheriffs is shielded from being sued in federal court.

Former Rutland County State’s Attorney Marc Brierre, O’Neill’s former boss, declined comment about the case. He said he was aware of the allegations and referred questions to the Attorney General’s Office.

Current State’s Attorney Rose Kennedy, who was a deputy prosecutor under Brierre, also declined to comment. She declined to say whether she had seen or experienced pay inequity while an employee under Brierre.

“The allegations are based on a time before I took office as State’s Attorney,” Kennedy wrote in an email.

Deputy Attorney General Susanne Young also declined to comment on the lawsuit.

O’Neill is requesting back wages necessary to bring her earnings in line with those of the male employee, attorney fees, her retirement vesting that she lost when she resigned, and other damages.

Asking tough questions

When O’Neill was hired, her salary was set at the entry level, and she was told the wage was “not negotiable,” the lawsuit states. Her salary was based on a 40-hour workweek, even though O’Neill and other deputies regularly would work 50 to 60 hours a week.

According to John Campbell, executive director of the Department of State’s Attorneys and Sheriffs, deputy state’s attorneys receive no overtime pay because they are salaried employees. Campbell, who also is president pro tem of the state Senate, started as executive director in May.

Campbell said he was unable to speak about the events outlined in the lawsuit but could discuss generally the payment process within the department.

When O'Neill's male colleague was hired, O’Neill asked her boss, Brierre, if their salaries were the same. Brierre refused to answer, the lawsuit states.

The complaint also states Brierre “embarked on a course of retaliatory conduct to demean and marginalize Ms. O’Neill’s job duties.” This included assigning to her lesser tasks that should have gone to a newer and less experienced employee, according to court papers.

“He also failed to include Ms. O’Neill on important office function meetings and procedures, and lashed out at Ms. O’Neill whenever she pressed her inquiry about salary,” the complaint states.

In 2013, the Rutland County State’s Attorney’s Office hired a female deputy state’s attorney.

O’Neill continued to inquire about her pay, but Brierre instead referred her to then-executive director of the Department of State’s Attorneys and Sheriffs Bram Kranichfeld. Kranichfeld, who served in that position from January 2013 to January 2015, now works as a deputy state’s attorney in Chittenden County.

O’Neill confronted Kranichfeld, but he was “non-committal in his response” and directed O’Neill to speak with Brierre, the lawsuit states.

“During my tenure as Executive Director, the Department was committed to treating everyone in it fairly and equitably,” Kranichfeld wrote in a statement in response to questions from the Burlington Free Press. “I am sorry Ms. O’Neill believes that she was not treated this way. I look forward to the process and am confident that it will produce a just outcome.”

In July 2014, O’Neill learned the male prosecutor was receiving about $14,000 more than O’Neill each year since the time of his hire, the lawsuit states.

“The Defendants knew at the time they hired Plaintiff, and throughout her employment, that the wage difference being paid to Ms. O’Neill under the circumstances they existed, were in violation of Ms. O’Neill’s statutory and constitutional rights, the very laws the Defendants are charged with enforcing,” reads the lawsuit.

The complaint states that on at least two occasions, Brierre lost his temper over O’Neill’s pressing him about her pay. The situation got “to the point where Ms. O’Neill believed State’s Attorney Marc Brierre would fire her if she pressed further.”

At the end of July 2014, O’Neill resigned after her “working conditions had become so intolerable, she felt she had no other choice,” the complaint states. She is a stay-at-home mom and continues to practice law, O'Neill's lawyer Faignant said.

Equal pay?

Faignant said he believes his client should have been paid more than the male colleague hired in 2011 "if you're using experience as your barometer." According to an online Vermont state employee salary database, O'Neill's salary was about $44,122 during her first full year of pay.

"For an attorney of her experience, this is a relatively low wage for an attorney in Vermont," Faignant said.

Before being hired in Rutland County, O'Neill worked for six years as a supervisor on violent sex-offense cases in a New York district attorney's office, her lawyer Faignant said.

The Burlington Free Press collected data on all Rutland County deputy state's attorneys from 2009 to 2014 using the online state employee salary database.

The data show another male deputy prosecutor was hired in 2009. This employee is not mentioned in the lawsuit, but he earned the same salary O'Neill did, the database shows. According to the lawyer's LinkedIn profile, he had significantly less experience than O'Neill before being hired in Rutland.

Two lawyers were hired in the Rutland office as deputy prosecutors during the time in question, state records show: Peter Bevere in 2011 and Rosemary Kennedy in 2013.

Salary data show Bevere's pay was about $60,205 during fiscal year 2013. Kennedy's pay for fiscal 2014 was about $47,628.

Kennedy's LinkedIn profile shows that she served as a deputy prosecutor in Chittenden County from February 1999 to June 2006. Bevere also served as a deputy Chittenden County prosecutor before coming to Rutland, but he declined to provide to the Burlington Free Press information about his employment history. The state rejected a public-records request seeking the information.

Department of Human Resources records show that salaries for all state employees were reduced 3 percent in fiscal 2011, and pay levels were frozen for all state employees. The 3 percent was restored in 2013. John Campbell, the State's Attorneys and Sheriffs Department executive director, said these factors could have contributed to the situation described in O'Neill's lawsuit by making it more difficult to give raises across the board.

The Legislature determines how much money is given to state employees annually. Employees are eligible for predetermined "step increases," or raises, if money is available in the budget, Campbell said. He said the department asks for money to allow for raises each year but might not necessarily receive the money.

State's attorneys are allowed to advocate to hire a new deputy at a higher pay level, but money would need to be available for that to be an option. Prosecutors also may be required to present a letter stating why the person should be hired at a higher salary, Campbell said.

'Difficult' cases to prove

Karen Richards, executive director of the Vermont Human Rights Commission, said people who sue over equal-pay issues are not required to prove the unequal pay was intentional, but only that equal work done by members of both genders "required equal skill, effort and responsibility, and is performed under similar working conditions."

However, Richards said, a number of defenses could shield an employer from liability. These include that the pay difference is based on a seniority system, a merit system, a system in which earnings are based on quantity or quality of production, or "any factor other than sex," Richards said.

"You have to have a legitimate business reason for it. You can't just have any old reason that you want to throw out there," Richards said.

Richards said employees' experience levels fit into the defenses.

"It is very difficult to prove an equal-pay case, because the courts generally have been willing to pretty much accept any reason that an employer can come up with," Richards said.

Faignant, the lawyer for O'Neill, said he believes the state intended to pay female employees less than male counterparts.

"These are the top law enforcement officers of the counties," Faignant said. "If they're not going to follow the law, I guess it does make a statement."

No hearings have been scheduled in the case.

This story was first posted online on Aug. 15, 2016. Contact Elizabeth Murray at 651-4835 or emurray@freepressmedia.com. Follow her on Twitter at @LizMurraySMC.

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