TABLE OF AUTHORITIES.......................................................................... iii

STATEMENT IN SUPPORT OF ORAL ARGUMENT............................... 1

JURISDICTIONAL STATEMENT................................................................. 1

STATEMENT OF THE ISSUES..................................................................... 2

STATEMENT OF THE CASE....................................................................... 3

A. Statement of Facts................................................................................. 3

B. Course of Proceedings and the District Court’s Decision................ 12

SUMMARY OF ARGUMENT..................................................................... 18

STANDARD OF REVIEW........................................................................... 19

ARGUMENT................................................................................................ 20

I. Summary judgment was not appropriate with respect to the EEOC’s prima facie case................................................................................................................. 20

A. The EEOC established a prima facie violation on behalf of Cordaro and Green as compared to the male Fraud Investigators............................................. 21

B. The EEOC established a genuine dispute as to whether the claimants and the Enforcement Officer comparators performed substantially equal work. 23

II. MIA did not establish any affirmative defense as a matter of law... 37

A. The district court erred in finding that a merit system justified the unequal pay. 39

B. The district court erred in finding that any other factor other than sex justified the unequal pay............................................................................................... 43

III. Sufficient evidence exists to find that MIA’s violation was willful. 50

CONCLUSION............................................................................................. 53

CERTIFICATE OF COMPLIANCE............................................................ 54

CERTIFICATE OF SERVICE....................................................................... 55

TABLE OF AUTHORITIES

Cases

Aldrich v. Randolph Central School District, 963 F.2d 520 (2d Cir. 1992) 43, 44

Beck-Wilson v. Principi, 441 F.3d 353 (6th Cir. 2006)............................ 28, 30

Belfi v. Prendergast, 191 F.3d 129 (2d Cir. 1999).......................................... 20

Brennan v. Prince William Hospital Corp., 503 F.2d 282 (4th Cir. 1974)...... 24

Brewster v. Barnes, 788 F.2d 985 (4th Cir. 1986).............................. 24, 25, 26

Brinkley v. Harbour Recreation Club, 180 F.3d 598 (4th Cir. 1999).............. 38

Brinkley-Obu v. Hughes Training, Inc., 36 F.3d 336 (4th Cir. 1994)..... passim

Brobst v. Columbus Services International, 761 F.2d 148 (3d Cir. 1985)....... 25

Brown v. Fred’s, Inc., 494 F.3d 736 (8th Cir. 2007)...................................... 46

Celotex Corp. v. Catrett, 477 U.S. 317 (1986)................................................. 19

Cohens v. Maryland Department of Human Resources, 933 F. Supp. 2d 735 (D. Md. 2013)................................................................................ 14, 17, 39, 42

Corning Glass Works v. Brennan, 417 U.S. 188 (1974)................ 20, 30, 32, 33

Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003).............................................. 38

EEOC v. Aetna Insurance Co., 616 F.2d 719 (4th Cir. 1980)........................ 40

EEOC v. White & Son Enterprises, 881 F.2d 1006 (11th Cir. 1989)............. 21

Ewald v. Royal Norwegian Embassy, 82 F. Supp. 3d 871, 937 (D. Minn. 2014)................................................................................................................... 31

Hodgson v. Brookhaven General Hospital, 436 F.2d 719 (5th Cir. 1970)........ 25

Hodgson v. Fairmont Supply Co., 454 F.2d 490 (4th Cir. 1972)................... 34

Keziah v. W.M. Brown & Son, Inc., 888 F.2d 322 (4th Cir. 1989).......... 38, 46

King v. Acosta Sales & Marketing, Inc., 678 F.3d 470 (7th Cir. 2012).......... 44

Kling v. Montgomery County, No. 15-cv-2866, 2016 WL 3940237 (D. Md. July 20, 2016).................................................................................................... 43

Lawrence v. CNF Transportation, Inc., 340 F.3d 486 (8th Cir. 2003)............ 38

Marshall v. Kent State University, 589 F.2d 255 (6th Cir. 1978)................... 42

Maxwell v. City of Tucson, 803 F.2d 444 (9th Cir. 1986).............................. 42

McCullough v. Xerox Corp., --- F. Supp. 3d ----, 2016 WL 7229134 (W.D.N.Y. Dec. 14, 2016)........................................................................................... 25

McLaughlin v. Richland Shoe Co., 486 U.S. 128 (1988)........................... 51, 52

McMillan v. Massachusetts Society for Prevention of Cruelty to Animals, 140 F.3d 288 (1st Cir. 1998).............................................................................. 31, 33

Mickelson v. New York Life Insurance Co., 460 F.3d 1304 (10th Cir. 2006).. 38

Miranda v. B&B Cash Grocery Store, Inc., 975 F.2d 1518 (11th Cir. 1992).. 25

Nealon v. Stone, 958 F.2d 584 (4th Cir. 1992).............................................. 51

Pender v. Bank of America Corp., 788 F.3d 354 (4th Cir. 2015).................... 19

Pollis v. New School for Social Research, 132 F.3d 115 (2d Cir. 1997)........... 52

Riser v. QEP Energy, 776 F.3d 1191 (10th Cir. 2015).................................. 30

Ryduchowski v. Port Authority of New York & New Jersey, 203 F.3d 135 (2d Cir. 2000).......................................................................................................... 42

Stanziale v. Jargowsky, 200 F.3d 101 (3d Cir. 2000)......................... 38, 47, 50

Steele v. Pelmor Laboratories Inc., 642 F. App’x 129 (3d Cir. 2016).............. 28

Trans World Airlines, Inc. v. Thurston, 469 U.S. 111 (1985)......................... 51

Wellman v. Bobcat Oil & Gas, Inc., No. 3:10-cv-00147, 2011 WL 3735975 (S.D. W. Va. Aug. 24, 2011).............................................................................. 47

Wheatley v. Wicomico County, 390 F.3d 328 (4th Cir. 2004)................. passim

Wildi v. Alle-Kiski Medical Center, 659 F. Supp. 2d 640 (W.D. Pa. 2009).... 21

Statutes

28 U.S.C. § 1291.............................................................................................. 2

28 U.S.C. § 1331.............................................................................................. 1

28 U.S.C. § 1345.............................................................................................. 1

29 U.S.C. § 206(d)(1).............................................................................. passim

29 U.S.C. § 255(a).................................................................................... 13, 51

Title VII of the Civil Rights Act of 1964...................................................... 20

Fair Labor Standards Act............................................................................ 13

Regulations

29 C.F.R. § 800.121....................................................................................... 24

29 C.F.R. § 1620.13....................................................................................... 29

29 C.F.R. § 1620.14(a)................................................................................... 30

29 C.F.R. § 1620.15....................................................................................... 28

Rules

Fed. R. App. P. 4(a)(1)(B)(ii)........................................................................... 2

Fed. R. Civ. P. 30(b)(6)........................................................................... 41, 47

Fed. R. Civ. P. 56(a)................................................................................ 19, 46

STATEMENT IN SUPPORT OF ORAL ARGUMENT

The Equal Employment Opportunity Commission (“EEOC”) contends in this appeal that the district court erred in granting summary judgment to the Maryland Insurance Administration (“MIA”) because MIA paid female employees less than male employees for performing identical or substantially equal work in violation of the Equal Pay Act, 29 U.S.C. 206(d)(1) (“EPA”). This case presents two important questions: (1) whether, in light of this Court’s standard for job equality under the EPA, the jobs of the EEOC’s claimants were substantially equal to the jobs held by the relevant male comparators, even though some of those comparators had a different job title; and (2) whether the district court erred in accepting MIA’s bare assertions in support of its affirmative defenses, on which it carried the burden of proof, while ignoring contrary evidence the EEOC submitted. The EEOC believes oral argument would assist the Court in applying the EPA’s burden-shifting framework and standards to this case.

JURISDICTIONAL STATEMENT

The district court had jurisdiction over this case under 28 U.S.C. §§ 1331 and 1345. On October 14, 2016, the district court granted summary judgment to MIA. JA-431.[1] Pursuant to Fed. R. App. P. 4(a)(1)(B)(ii), the EEOC filed a timely notice of appeal on December 12, 2016. JA-432-33. This Court has jurisdiction under 28 U.S.C. § 1291.

STATEMENT OF THE ISSUES

1. Did the district court err in granting summary judgment on the EEOC’s EPA claim even though the EEOC established, and MIA did not contest, that its claimants performed identical work as males in the same position who earned higher salaries?

2. Did the district court err in ruling that the claimants and some male comparators performed work that was unequal as a matter of law, where the jobs shared common duties, and MIA’s internal studies found that they “ranked equally on all factors” and constituted “substantially equal work?”

3. Did the district court err in concluding that there was no genuine dispute over whether MIA paid males higher starting salaries due to their prior work experience and credentials, where the EEOC’s claimants had comparable experience, and there was no evidence that such experience and credentials in fact motivated MIA to pay the males more?

STATEMENT OF THE CASE

A. Statement of Facts

1. MIA’s Fraud Investigation Unit and its Compliance and Enforcement Unit

MIA is a state agency that performs various functions related to regulating Maryland’s insurance industry. JA-24. It is “an independent agency of the State” and thus has discretion to set its employees’ salaries. JA-31. MIA consists of several units, including a Fraud Investigation Unit and a Compliance and Enforcement Unit. R.23-1 at 2-3. Employees in the Fraud Investigation Unit are known as “Fraud Investigators,” and those in the Compliance and Enforcement Unit are “Enforcement Officers.”[2]

Fraud Investigators are charged with investigating allegations of criminal insurance fraud perpetrated by individuals. JA-72. Enforcement Officers conduct investigations into complaints involving insurance policies and unauthorized insurance agencies. JA-73. “The primary purpose of [both] positions is to investigate alleged insurance fraud,” which generally involves “reviewing and evaluating allegations, organizing and drafting reports or orders, receiving complaints and following up on information.” JA-74; JA-90. The EEOC identified males in both positions as valid comparators for purposes of the Equal Pay Act.

2. Wages paid to the claimants and male Fraud Investigators

The EEOC seeks relief in this case on behalf of Alexandra Cordaro, Marlene Green, and Mary Jo Rogers (“claimants”). All three claimants are female and worked as Fraud Investigators. Cordaro joined MIA as a Fraud Investigator in December 2009. JA-42. At that point, she had more than two years of experience as a Fraud Investigator for Tower Federal Credit Union, the largest federal credit union in Maryland, and twelve years as a criminal investigator for the Baltimore County State’s Attorney’s Office. JA-78-80. She earned a Bachelor’s degree from Towson State University. JA-79.

Green began working for MIA as a Fraud Investigator in November 2010. JA-45. She came to MIA with over twenty years of experience working for the Baltimore City Police Department, largely as a detective. JA-81-84. Green earned a Bachelor of Science degree from The Johns Hopkins University. JA-81.

Rogers transferred into the Fraud Investigator position from another position with MIA in July 2011. JA-92. Before joining MIA, Rogers had eight years of experience working in various positions, including special investigator, with Interstate Auto Insurance Company, and she had been a police officer in Baltimore County for eight years. JA-93-95.

The wages MIA paid to Cordaro and Green were lower than those it paid to multiple male Fraud Investigators who by all accounts performed identical work. In the proceedings before the district court, the EEOC identified male Fraud Investigators, Bruno Conticello, Jay Hurley, Donald Jacobs, and Homer Pennington, as comparators. Whereas Cordaro and Green were hired into their jobs at an annual rate of $43,459 and $43,759, respectively, these males earned starting wages of more than $45,000 per year. JA-167-172. MIA paid Conticello, another male Fraud Investigator, $49,842 per year—approximately $6,000 more per year than it paid Cordaro or Green. Id. The chart below reflects these pay differences.

Cordaro

(F)

Green

(F)

Hurley

(M)

Jacobs

(M)

Pennington

(M)

Conticello

(M)

Starting Salary

$43,495

$43,759

$45,298

$45,360

$49,842

The record shows that, in addition to the four male Fraud Investigator comparators the EEOC specifically identified, nine others—Mark Bilger, Daniel Buchler, Martin Disney, William Johns, Benjamin Kellam, Kevin Miller, Edward Spragg, Todd Young, and Thomas Zanfardino—also earned higher starting wages than Cordaro or Green. JA-345-349. Moreover, although Rogers earned $46,268 as a starting salary, she earned less than other males doing substantially equal work, to be discussed in detail below, and the average starting salary MIA paid to the four male Fraud Investigator comparators was higher than the average salary it paid the claimants—even accounting for Rogers’ salary. JA-167-172. Specifically, the Fraud Investigator comparators earned an average starting salary of $46,450 and the claimants earned an average starting salary of $44,507. Id.

3. The Harrison studies and MIA’s statements during the EEOC’s administrative investigation

In July 2012, Cordaro complained to MIA’s then-Senior Human Resources Specialist, on behalf of herself and other Fraud Investigators, including Rogers, that two male Enforcement Officers, Jeffrey Gross and Maurice Xenos, were “making significantly more than” they were, which Cordaro said “seem[ed] unfair.” JA-96-101. In response to this complaint, MIA assigned Carla Harrison, a newly hired Human Resources Specialist, to analyze the salary classifications for both positions. JA-137-138. As part of her analysis, Harrison interviewed Cordaro, Rogers, and three male Enforcement Officers, including Gross. JA-71.

Harrison found that Fraud Investigators’ duties include: “locat[ing] witnesses and suspects . . . to obtain information concerning the alleged [insurance fraud] allegation”; “compil[ing] information gathered”; “prepar[ing] cases by organizing, drafting, and preparing reports, subpoenas, orders to produce, applications for statement of charges or orders, and proposed testimony.” JA-72. Harrison’s report also indicates that Fraud Investigators make recommendations to their superiors and others regarding whether to bring fraud charges against individuals. Id.

With respect to Enforcement Officers, Harrison found that their duties include: “interview[ing] the complainant . . . to establish a case; [and] draft[ing] chronological comprehensive reports to prove [a] violation.” JA-73. “After the investigations are completed,” Harrison’s study went on, “the Enforcement Officer will determine the insurance code violation, and make recommendations to the assistant Chief Enforcement Officer and Chief Enforcement Officer on how to proceed with the case and the appropriate penalty.” Id. Thus, Harrison found that conducting interviews, preparing notes and other case materials, drafting factual summaries, and recommending criminal or civil insurance fraud enforcement actions were duties common to both jobs.

Harrison’s study concluded that “[t]he primary purpose of the [two] positions is to investigate alleged insurance fraud,” and she deconstructed the two jobs into component parts, isolating characteristics such as “qualifications,” “nature and purpose of contacts,” “responsibility for planning,” and “supervision received.” JA-176-177. All told, Harrison focused on seven criteria, and concluded that the jobs “ranked equally . . . on all factors.” JA-178. She thus recommended that Fraud Investigators receive a one-grade increase in base compensation on MIA’s salary classification system, placing them at the same level as Enforcement Officers. Id.[3] MIA accepted Harrison’s ultimate recommendation and retroactively raised the pay of all Fraud Investigators, including Cordaro and Rogers, effective July 1, 2013. JA-68; see also JA-352.

Despite the pay increase Cordaro and Rogers received as a result of the Harrison study, MIA continued to pay these women less than Gross and Xenos, the Enforcement Officers whose greater pay prompted Cordaro’s original complaint. Specifically, on July 1, 2013, when the reclassification took effect, Cordaro earned $48,462 and Rogers earned $50,300, but Gross and Xenos were earning salaries of $54,856 and $51,828, respectively. JA-167-172.[4] The chart below reflects the disparities which continued at the time the Fraud Investigators’ pay increase went into effect:

Cordaro (F)

Green (F)

Rogers (F)

Xenos (M)

Gross (M)

Starting Salary

$43,495

$43,759

$46,268

$50,811

$52,754

Salary as of

July 1, 2013

$48,462

n/a[5]

$50,300

$51,828

$54,856

In light of the foregoing, Cordaro and Rogers filed EEOC charges against MIA in early 2014, alleging, among other things, violations of the Equal Pay Act. In response, MIA submitted position statements. JA-85-91; JA-351-357. In those, it contended that it has a “neutral salary practice,” which is based on the State Personnel Management System and assigns each job to a “Grade,” which “represents a salary range,” and other “factors that affect salary are reflected in the step assigned to an employee.” JA-353. MIA also explained in the position statements that, after Cordaro and Rogers filed their EEOC charges, MIA “undertook a review to identify individuals who perform,” in its words, “substantially equal work.” JA-356.

The underlying review, written again by Harrison, identifies Gross and Xenos as “similarly situated” to Cordaro and Rogers. JA-187.[6] This report further observed that, since the job study, both Fraud Investigators and Enforcement Officers have been “compensated at a salary grade 16,” which—according to MIA—reflects the equal “skill, effort, responsibility, experience, and working conditions” inherent in the two positions. JA-186-187; JA-87. The report concluded: “Based on the duties and responsibilities identified for all of the Investigators, [Enforcement Officers] perform substantially equal work as the Fraud Investigator.” JA-187.

B. Course of Proceedings and the District Court’s Decision

The EEOC instituted this action under the EPA, alleging that MIA discriminated against Cordaro, Rogers, and Green by paying them lower wages than it paid their male counterparts for performing equal work. JA-5-12. After discovery, the EEOC filed a motion for summary judgment. As relevant here, the Commission argued that “there is no factual dispute that all of [MIA’s] Fraud Investigators performed equal work” yet MIA paid Cordaro and Green lower wages than male Fraud Investigators Hurley, Jacobs, Pennington, and Conticello. R.22-1 at 10. The EEOC also pointed out that “the wage disparity extended to the men in another department[,] Compliance and Enforcement,” arguing that these men also “performed equal work.” Id. at 12. In support of the proposition that Enforcement Officers and Fraud Investigators performed substantially equal work, the EEOC relied in part on: Harrison’s “in-depth evaluation,” which concluded that the positions “ranked equally . . . on all factors,” as well as her subsequent analysis in response to the EEOC charges, which concluded, “[b]ased on the duties and responsibilities identified for all Investigators, [Enforcement Officers] perform substantially equal work as the Fraud Investigator.” Id. at 12-13.

The Commission next contended that no jury could find that MIA paid males higher wages based on a factor other than sex, observing that during discovery MIA was unable to “proffer a justification for the wage differentials” and arguing that the “laundry list of generic justifications” that MIA advanced in litigation constituted nothing more than “post hoc rationales,” entitling the EEOC to judgment as a matter of law. Id. at 16-22.[7]

MIA disagreed, filing a summary judgment motion of its own. R.23; R.23-1. It emphasized that the claimants were compensated pursuant to the “State of Maryland Standard Salary Schedule,” which it argued was by definition “a merit system for purposes of the EPA.” R.23-1 at 3, 6-8 (quoting Cohens v. Md. Dep’t of Human Res., 933 F. Supp. 2d 735, 749-50 (D. Md. 2013) (quotations omitted)). Relatedly, MIA criticized the EEOC’s choice of comparators, accusing the EEOC of “omit[ing] male employees” as comparators who it hired at the same “Grade and Step” in the same “fiscal year[ ]” as Cordaro and Green. Id. at 7, 26.

MIA further argued, with respect to the Enforcement Officer comparators, that the job these men performed was different from the one the claimants performed. Id. at 12. Relying on Wheatley v. Wicomico County, 390 F.3d 328, 333 (4th Cir. 2004), and again on Cohens, 933 F. Supp. 2d at 747, it contended that the EEOC failed to demonstrate that “the jobs of a . . . Fraud Investigator . . . and [those] of [Enforcement] Officers . . . are ‘virtually identical.’” Id. at 11-12. MIA also faulted the EEOC for “plac[ing] heavy emphasis on [MIA’s] classification job study in an attempt to prove” that the jobs of Fraud Investigators and Enforcement Officers were substantially equal, saying: “The job study did not conclude that the positions of Insurance Fraud Investigator and Enforcement Officer were the same job.” Id. at 17-18. In the alternative, MIA argued that, even if the positions were substantially equal for purposes of the EPA, the Enforcement Officers’ higher wages were based on their experience and training. Id. at 21-22.

MIA contended that it paid the male Fraud Investigator comparators higher wages for reasons “not based on sex.” Id. at 23. It continued: “Direct evidence is found on the resumes of the individuals, such as [their] seniority due to former State employment, relevant investigative experience, and preferred certifications and/or training.” Id. at 23.

The district court agreed with MIA, granting its summary judgment motion, denying the EEOC’s, and entering judgment in favor of MIA and against the EEOC. JA-431. In a three-page opinion containing almost no legal reasoning, the court found that the male Fraud Investigators were invalid comparators because they “were hired at higher steps than were Cordaro, Green, and Rogers.” JA-428-429. It noted that Conticello, Hurley, and Pennington had substantial experience and credentials, and it seemed to agree with MIA’s suggestion that the EEOC should have instead selected as comparators two males who, like Cordaro and Green, were hired “at approximately the same time” also “at a Grade 15, Step 4.”JA-429.[8] The district court also accepted MIA’s contention that the different starting salaries were based on prior experience. In that regard, it noted that “Cord[a]ro and Green did not have prior State experience,” that Conticello and Hurley, unlike Rogers, had obtained a “Certified Fraud Examiner designation,” and that Pennington had trained “at the National Fire Academy on arson investigations.” JA-429.

Next, the district court rejected the EEOC’s use of male Enforcement Officers as comparators. Id. To support that conclusion, the court referred to Harrison’s deposition testimony, in which she testified that “Fraud Investigators and Enforcement Officers did not perform the same job.” Id. It also observed that Gross and Xenos “worked in entirely different units” and said, in reference to the results of the Harrison study, that the “mere fact that jobs were reclassified under [MIA’s salary schedule] does not ipso facto establish a violation of the EPA.” JA-429-430. The court found that even if the jobs were equivalent under the EPA, the male Enforcement Officers’ higher pay was based not on sex, but on their superior experience and credentials. JA-430. “Thus,” the district court concluded, “reasons other than gender justified the pay disparity between” the claimants and “all of the comparable male employees to which the EEOC points[.]” JA-429.[9] Finally, the court seemed to accept MIA’s argument that its salary schedule was a categorical defense to liability, saying: “In any event, the MIA hires people under what has been characterized as ‘a merit system for purposes of the EPA.’” JA-429-430 (quoting Cohens, 933 F. Supp. 2d at 750).

SUMMARY OF ARGUMENT

The record demonstrates that a prima facie EPA violation was established here as a matter of law because MIA paid Fraud Investigators Cordaro and Green lower wages than it paid to male Fraud Investigators who, it is undisputed, performed identical work. Also, a reasonable jury could find that the Enforcement Officers’ job duties were substantially equal to those of Fraud Investigators—although the two positions had different titles—because, as MIA acknowledged before the EEOC filed suit, they shared a common core of tasks, their primary purpose was the same, they were performed under similar conditions, and they required substantially equal levels of skill, effort, and responsibility.

This being so, it was MIA’s burden to prove, by uncontroverted and credible evidence, not post hoc justifications, that its decision to pay the males higher wages was actually based on a factor other than sex. MIA’s evidence did not meet this standard because a reasonable jury could find that it did not set wages based on a predetermined merit system, and that the comparators’ higher wages were not actually predicated on any factor other than sex, such as superior work experience or credentials. The district court’s award of summary judgment was thus incorrect.

STANDARD OF REVIEW

The district court granted MIA’s motion for summary judgment and denied the EEOC’s. This Court “review[s] a district court’s disposition of cross-motions for summary judgment de novo, examining each motion seriatim[,]” and it “view[s] the facts and inferences arising therefrom in the light most favorable to the non-moving party to determine whether there exists any genuine dispute of material fact or whether the movant is entitled to judgment as a matter of law.” Pender v. Bank of Am. Corp., 788 F.3d 354, 361 (4th Cir. 2015) (citations omitted).[10] Summary judgment is appropriate only if there are no genuine disputes of material fact. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

ARGUMENT

I. Summary judgment was not appropriate with respect to the EEOC’s prima facie case.

The EPA sets forth, in relevant part: “[n]o employer . . . shall discriminate . . . between employees on the basis of sex by paying wages to employees . . . at a rate less than the rate at which he pays wages to employees of the opposite sex . . . for equal work[.]” 29 U.S.C. § 206(d)(1). “[T]o make out a [prima facie] case under the [EPA], the [plaintiff] must show that an employer pays different wages to employees of opposite sexes ‘for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.’” Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974) (quoting statutory text). Unlike Title VII of the Civil Rights Act of 1964, the EPA does not require a showing of discriminatory intent; rather a plaintiff just must show a disparity in wages for one sex vis-à-vis the opposite sex for work involving equal skill, effort, and responsibility, which is performed under similar conditions. In other words, the disparity in pay between the sexes for performing equal work is itself the “discrimination” the statute prohibits. See, e.g., Belfi v. Prendergast, 191 F.3d 129, 136 (2d Cir. 1999) (“Under the EPA, proof of the employer’s discriminatory intent is not necessary for the plaintiff to prevail. . . . Thus, a prima facie showing gives rise to a presumption of discrimination.”) (citations omitted). Moreover, an EPA plaintiff is not required to demonstrate that males as a class are paid higher wages than females as a class, but only that there is “discrimination in pay against an employee vis-à-vis one employee of the opposite sex.” EEOC v. White & Son Enters., 881 F.2d 1006, 1009 (11th Cir. 1989); see also Wildi v. Alle-Kiski Med. Ctr., 659 F. Supp. 2d 640, 660 (W.D. Pa. 2009) (same).

A. The EEOC established a prima facie violation on behalf of Cordaro and Green as compared to the male Fraud Investigators.

It is undisputed that MIA paid Cordaro and Green lower starting salaries than Conticello, Hurley, Jacobs, and Pennington, the male Fraud Investigator comparators. In addition, MIA readily admitted that “the Complainants performed an identical job as other Insurance Fraud Investigators.” R.23-1 at 12. Thus, because Cordaro and Green earned less than the male Fraud Investigator comparators, and there is no dispute that they performed equal work, the EEOC established a prima facie violation of the EPA with respect to these claimants, as compared to any of the four Fraud Investigator comparators.

Although its reasoning is a bit cryptic, the district court seemed to deem these men invalid comparators for purposes of the EEOC’s prima facie case because they “were hired at higher steps than were Cordaro, Green, and Rogers.” JA-428-429. But MIA’s decision to assign males to higher steps in no way undermines the EEOC’s prima facie case. In Brinkley-Obu v. Hughes Training, Inc., 36 F.3d 336, 339 n.3, 340-41 (4th Cir. 1994), for example, the employer “ha[d] a salary system,” by which employees were assigned “a job grade,” and the male comparators in that case were assigned to different job grades than the plaintiff for much of the relevant time period. This Court nevertheless focused on the salaries, duties, and functions of the plaintiff and her comparators, not their job grade designations. Id. at 351-53. This Court ultimately sustained a jury verdict for the plaintiff, even though she was assigned a different job grade than her comparators. Id. at 356. Accordingly, MIA’s decision to hire male Fraud Investigators at higher steps does not—despite the district court’s apparent belief otherwise—defeat the EEOC’s prima facie case.

Nor was there any merit to the district court’s suggestion that the EEOC should have designated as comparators “other employees” who MIA hired at the same grade and step as Cordaro and Green “at approximately the same time[.]” JA-429. The only “other employee[ ]” matching this description is Todd Young, who—like the comparators the EEOC did designate—earned a higher starting salary than Cordaro and Green, even though he was not “hired at [a] higher step[ ].” Id. The fact that MIA hired Young around the same time and at the same step as Cordaro and Green, and yet paid him more for identical work, strengthens, rather than undermines, the prima facie inference of sex discrimination in pay.

B. The EEOC established a genuine dispute as to whether the claimants and the Enforcement Officer comparators performed substantially equal work.

The district court also erred in concluding that the Enforcement Officers were not valid comparators. It is true, as the district court observed, that the male Enforcement Officers “did not perform the same job” as Fraud Investigators, and they “worked in entirely different units.” Id. However, jobs need not be identical—that is, “the same”—to be compared for purposes of the EPA. They must instead be “substantially equal,” i.e., share a “common core of tasks,” involve equal levels of “skill, effort, and responsibility, and . . . [be] performed under similar working conditions.” Brewster v. Barnes, 788 F.2d 985, 991 (4th Cir. 1986) (citations and quotations omitted). Articulating this standard a bit differently, this Court has said that “the jobs involved should be virtually identical, that is very much alike or closely related to each other.” Wheatley, 390 F.3d at 333 (citations and quotations omitted).

It is well-established that when determining whether work is equal under the EPA, “[j]ob descriptions and titles . . . are not decisive. Actual job requirements and performance are controlling.” Brennan v. Prince William Hosp. Corp., 503 F.2d 282, 288 (4th Cir. 1974) (citing 29 C.F.R. § 800.121 and Hodgson v. Brookhaven Gen. Hosp., 436 F.2d 719, 724 (5th Cir. 1970)). This Court and others also have emphasized that “whether the jobs to be compared” are “substantially equal” under the EPA “is purely a question of fact to be decided by the fact-finder.” Brinkley-Obu, 36 F.3d at 351 (citing Brewster, 788 F.2d at 991); see also Brobst v. Columbus Servs. Int’l, 761 F.2d 148, 156 (3d Cir. 1985) (“Given the fact intensive nature of the [equal work] inquiry, summary judgment will often be inappropriate.”). As one district court recently observed, summary judgment is only appropriate on this issue “where the undisputed facts establish that the positions at issue are manifestly unequal.” McCullough v. Xerox Corp., --- F. Supp. 3d ----, 2016 WL 7229134, at *2 (W.D.N.Y. Dec. 14, 2016).

The district court should not have granted summary judgment here because reasonable minds could disagree on whether the jobs at issue were substantially equal for purposes of the EPA. See Miranda v. B&B Cash Grocery Store, Inc., 975 F.2d 1518, 1534 (11th Cir. 1992) (reversing grant of summary judgment because “reasonable minds could differ” on whether comparison jobs were sufficiently alike under the EPA). To begin with, MIA’s position statements in response to the claimants’ EEOC charges acknowledged that employees in both jobs: “perform[ed] investigations by reviewing and evaluating allegations, organiz[ed] and draft[ed] reports or orders, and receiv[ed] complaints and follow[ed] up on information[.]” JA-90; JA-356. Moreover, the Harrison report of April 2014 found that both jobs involved “[r]eview[ing],” “evaluat[ing],” or “analyzing” “complaints” or “allegations” of “insurance fraud.” JA-183-184.

Harrison testified at her deposition that “contacting witnesses to gather information” and “making recommendations” based on that information were “responsibilit[ies] for both positions.” JA-148-149. Further, Martin Disney, who worked in both positions, testified that the focus of each was looking into allegations or complaints of insurance fraud, which entailed interviewing witnesses, drafting factual summaries, recommending criminal charges or administrative actions, and testifying at trials or hearings. JA-365-367. This constitutes “a common core of tasks,” Brewster, 788 F.2d at 991, and demonstrates that the jobs were “very much alike or closely related to each other.” Wheatley, 390 F.3d at 333. Harrison essentially admitted as much when she wrote in April 2014 that: “Based on the duties and responsibilities identified for all of the Investigators, [Enforcement Officers] perform substantially equal work as the Fraud Investigator.” JA-187.

Moreover, there is sufficient evidence to find that the jobs required equal levels of skill and responsibility. See Wheatley, 390 F.3d at 332 (explaining that “equal skills and equal responsibility” are “two textual touchstones of the EPA”). After Harrison’s study, MIA placed Fraud Investigators and Enforcement Officers on the same grade of its salary schedule, which MIA itself stated was “determined by skill, effort, responsibility, . . . and working conditions”— the very factors the statute identifies as relevant to the “equal work” inquiry. See 29 U.S.C. § 206(d)(1); see also JA-87. MIA does not dispute that both jobs entailed equal levels of responsibility, as neither involved supervisory duties. Nor does it dispute that the claimants and comparators worked in similar conditions.

The regulations interpreting the EPA explain that “[s]kill includes consideration of such factors as experience, training, education, and ability” and that “[i]f an employee must have essentially the same skill in order to perform either of the two jobs, the jobs will qualify under the EPA[.]” 29 C.F.R. § 1620.15. Here, Disney testified that working as a Fraud Investigator gave him the “skill sets necessary” to be an Enforcement Officer and that when he went from one position to the other, he did so “seamlessly,” JA-365, 367, which supports the inference that “essentially the same skill[s]” were required of the two jobs. Cf. Beck-Wilson v. Principi, 441 F.3d 353, 364 (6th Cir. 2006) (affirming the district court’s conclusion that the plaintiffs had established a prima facie EPA violation because their positions and the comparator positions were “fungible”). Both positions required the same type of prior experience and training—in “investigative work or law enforcement”; and the educational requirements of the two positions, a high school diploma “or equivalency certificate,” were identical. Compare JA-360 and JA-364; see also Steele v. Pelmor Labs. Inc., 642 F. App’x 129, 136 (3d Cir. 2016) (“Factors to be considered in determining whether tasks are similar [under the EPA] include whether they require similar . . . education, [and] relevant prior work experience[.]”) (citing 29 C.F.R. § 1620.13).

To the extent differences existed between the jobs, the evidence demonstrates that the Fraud Investigator position, occupied by the females, actually demanded greater effort. The record contains a memorandum from Carolyn Henneman, who was MIA’s Associate Commissioner in charge of the Fraud Investigation Unit, in which she stated that “the job functions of Fraud Investigators are more difficult, challenging and diverse than those of Enforcement Officers.” JA-109. Moreover, when Harrison initially completed her job study, she concluded that “the Fraud [Investigator] positions . . . ranked higher” in terms of difficulty than the Enforcement Officer positions. JA-75.

Although this evidence reinforces the notion that the jobs were not identical, it nevertheless supports the EEOC’s prima facie case vis-à-vis the male Enforcement Officers. In Brinkley-Obu, this Court rejected the defendant’s argument that the plaintiff’s claim failed on the basis that “her responsibilities were greater and more difficult than” her comparator’s, saying: “additional duties performed by the lesser paid employee do not remove the claim from the ambit of the Equal Pay Act.” 36 F.3d at 352. In Beck-Wilson, 441 F.3d at 360, the Sixth Circuit explained that “[w]hile differences in skill, effort, or responsibility might be sufficient to justify a finding that two jobs are not equal if the greater skill, effort, or responsibility has been required of the higher paid sex, such differences do not justify such a finding where the greater skill, effort or responsibility is required of the lower paid sex.” (quoting 29 C.F.R. § 1620.14(a) (alterations omitted) (emphasis added)). The Tenth Circuit recently echoed this point, saying: “the fact that a female employee performed additional duties beyond a male comparator does not defeat the employee’s prima facie case under the EPA.” Riser v. QEP Energy, 776 F.3d 1191, 1197 (10th Cir. 2015) (citing 29 C.F.R. § 1620.14(a) and Beck-Wilson, 441 F.3d at 360). It would undermine the remedial purpose of the EPA to permit MIA to avoid liability for paying its female Fraud Investigators less than its male Enforcement Officers because the females performed jobs that were, in Henneman’s words, “more difficult, challenging, and diverse.” See generally Corning Glass Works, 417 U.S. at 208 (holding that the EPA “is broadly remedial” and “should be interpreted and applied so as to fulfill the underlying purposes which Congress sought to achieve”).

Nor is it dispositive, despite the district court’s finding to the contrary, that the jobs were “in entirely different units.” JA-429. Courts repeatedly have held that jobs in different departments may be compared under the EPA. See, e.g., McMillan v. Mass. Soc’y for the Prevention of Cruelty to Animals, 140 F.3d 288, 299 (1st Cir. 1998) (agreeing with district court’s conclusion that the plaintiff, who was head of the radiology department in a veterinary hospital, performed work requiring equal skill, effort, and responsibility as males who were in charge of the cardiology and pathology departments); see also Ewald v. Royal Norwegian Embassy, 82 F. Supp. 3d 871, 937 (D. Minn. 2014) (“[M]erely because two jobs are in different departments is not determinative of a lack of substantial equivalence” under the EPA.) (citations omitted). Even in Wheatley, in which this Court held that the jobs at issue were not sufficiently alike, the Court examined the actual duties and functions of the comparators and the plaintiffs, and its grant of summary judgment was not purely because they worked in different departments. 390 F.3d at 332-34.

The district court also criticized the EEOC’s reliance on the conclusions of the Harrison study, saying that “[t]he mere fact that jobs were reclassified under” MIA’s salary schedule “does not ipso facto establish a violation of the EPA.” JA-430. The district court’s finding on this point was again somewhat unclear, but in any event there is nothing wrong with relying on MIA’s internal job analyses as evidence to support the proposition that Fraud Investigators and Enforcement Officers performed substantially equal work. To the contrary, in Corning Glass Works, the Supreme Court said that the employer could not escape liability by arguing that the comparison jobs were not equal because “all of its own job evaluation plans . . . have consistently treated them equal in all respects.” 417 U.S. at 202-03. The Corning Glass Works Court went on to say: “Significantly, it is not the [plaintiff] who is trying to look behind [the defendant’s] bona fide job evaluation system to require equal pay for jobs which [the defendant] has historically viewed as unequal work. Rather, it is [the defendant] which asks us to differentiate between jobs which the company has always equated.” Id. at 203. Similarly, in McMillan, the First Circuit affirmed a jury’s finding that the plaintiff’s position as a radiology department head was substantially equal to jobs in the pathology and medical departments because, among other things, an independent job analysis the employer conducted years earlier had concluded that “radiology was ranked equally with pathology and medicine in seven out of eight categories of responsibility.” 140 F.3d at 299. Thus, the EEOC was correct, and certainly permitted, to rely on MIA’s internal job studies in establishing the equal work element of its prima facie case.

In its motion for summary judgment, MIA equated this case with Wheatley, in which this Court said: “We decline to hold that having a similar title plus similar generalized responsibilities is equivalent to having equal skills and equal responsibilities.” 390 F.3d at 334. MIA’s position below was essentially that Fraud Investigators and Enforcement Officers had only “similar generalized responsibilities,” not ”virtually identical” work.

But MIA’s comparison to Wheatley is misplaced for two reasons. First, the Court in that case defined “virtually identical” to mean “very much alike or closely related” and, for the reasons already discussed, that standard is met here. Wheatley did not announce a different, more demanding standard for job-equality under the EPA than this Court first recognized in Hodgson v. Fairmont Supply Co., 454 F.2d 490, 493 (4th Cir. 1972), which held that EPA plaintiffs “need not show” that comparison jobs are “identical,” but rather just that they “require[ ] equal skill, effort, and responsibility.” Wheatley reaffirmed that “‘equal means substantially equal’”—not “the same” or “identical.” 390 F.3d at 332 (quoting Hodgson, 454 F.2d at 493 (citation and brackets omitted).

Moreover, key factual differences exist between this case and Wheatley, which render it non-controlling. The plaintiffs in Wheatley were female supervisors in Wicomico County’s Emergency Services Department. Id. at 330. The theory underlying their claim was that the employer paid male department leaders more even though they “all perform[ed] the same general duties,” such as “supervis[ing] subordinates, conduct[ing] staff meetings, prepar[ing] budgets, answer[ing] to the same County Council, and otherwise manag[ing] their departments.” Id. at 331 (emphasis added). The Wheatley Court rejected this claim, holding that the plaintiffs could not “indiscriminately aim at all department supervisors collectively, and then expect to meet the EPA standard of substantial equality [in] skill, effort, [and] responsibility.” Id. at 334 (citations and quotations omitted). The Wheatley Court also pointed out that the various department heads in that case “perform[ed] completely different functions.” Id. at 333. For example, one was in charge of “park maintenance”; another was “responsible for coordinating the dredging of waterways”; and another’s job involved “coordinating resources in the event of a disaster.” Id. Meanwhile, the plaintiffs “operate[d] the 911 call center.” Id. at 330. Although “at a high level of abstraction these positions all require directors to . . . supervise, coordinate, and organize,” said the Court in Wheatley, “the EPA demands more than a comparison of job functions from a bird’s eye view.” Id. at 333.

Here, by contrast, the jobs were not equal only at a “high level of abstraction” or “from a bird’s eye view.” Conducting interviews, preparing case materials, drafting reports, summarizing facts, recommending criminal or civil insurance-fraud enforcement actions, and testifying at trials or hearings were duties common to both jobs. Nor did Fraud Investigators and Enforcement Officers serve completely different functions. As Harrison’s study observed, and MIA does not dispute, “[t]he primary purpose” of both jobs was “to investigate alleged insurance fraud.” JA-74. This is a far cry from Wheatley, where the plaintiffs and comparators performed much different work.

The Court in Wheatley reasoned that the plaintiffs’ claim also failed because they compared themselves to “a hypothetical male” employee, not to any specific male on a “factor-by-factor” basis. Id. at 334. But here, the EEOC identified two male Enforcement Officers as comparators, and the Harrison study concluded that they performed work that “ranked equally . . . on all factors.” JA-178. Thus, Gross and Xenos are valid comparators, even in light of Wheatley.

It bears noting that in the event this Court disagrees and finds that Wheatley forecloses the EEOC’s prima facie case with respect to the Enforcement Officer comparators, a prima facie EPA violation would still lie with respect to the Fraud Investigator comparators who, by all accounts, performed identical work. This case could be likened to Brinkley-Obu, in which this Court affirmed a jury verdict for the plaintiff even though she first identified five male comparators but “withdrew her claim” as to one and the “jury rejected [her] claims based on” another. 36 F.3d at 342, 351 n.33. In other words, where, as here, an EPA claim is predicated on various comparators, the employer cannot avoid liability altogether by demonstrating that some of those comparators performed different work.

II. MIA did not establish any affirmative defense as a matter of law.

Once the EEOC establishes a prima facie violation of the EPA, the burden shifts to MIA to prove that the wage differential was due to one or more of the statute’s four enumerated affirmative defenses: (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex. 29 U.S.C. § 206(d)(1). This is a “heavy” burden for EPA defendants to meet, especially on a motion for summary judgment. See, e.g., Keziah v. W.M. Brown & Son, Inc., 888 F.2d 322, 325 (4th Cir. 1989) (describing burden as “heavy”); see also Brinkley v. Harbour Recreation Club, 180 F.3d 598, 614 (4th Cir. 1999) (explaining that, at summary judgment, a “defendant may prevail . . . and establish an affirmative defense” only if “it has produced credible evidence . . . that would entitle it to a directed verdict if not controverted at trial”) (citations and quotations omitted), overruled on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003).

The Third and Tenth Circuits have explained that where, as here, employers seek summary judgment as to an Equal Pay Act claim, they must “submit evidence from which a reasonable factfinder could conclude not merely that the employer’s proffered reasons could explain the wage disparity, but that the proffered reasons do in fact explain the wage disparity.” Stanziale v. Jargowsky, 200 F.3d 101, 107-08 (3d Cir. 2000) (citations omitted); see also Mickelson v. N.Y. Life Ins. Co., 460 F.3d 1304, 1312 (10th Cir. 2006) (same); accord Lawrence v. CNF Transp., Inc., 340 F.3d 486, 493 (8th Cir. 2003) (“Under the EPA, a defendant cannot escape liability merely by articulating a legitimate non-discriminatory reason for the employment action. Rather, the defendant must prove that the pay differential was based on a factor other than sex.”) (quotations and citations omitted)). Thus, MIA must prove by credible and uncontroverted evidence, not post hoc justifications, that reasons other than sex actually motivated its decision to pay lower wages to Cordaro, Green, and Rogers. MIA’s evidence does not satisfy that heavy burden.

A. The district court erred in finding that a merit system justified the unequal pay.

Relying on Cohens, the district court held that “MIA hires people under what has been characterized as ‘a merit system for purposes of the EPA.’” JA-429-430 (quoting 933 F. Supp. 2d at 750). In other words, the district court found that MIA’s grade-step salary schedule was a categorical and complete defense to EPA claims, irrespective of the manner in which employees were assigned to that system. If the court is affirmed on this point, any employer using a salary schedule would seemingly be insulated from liability under the EPA. Such a sweeping conclusion is unfounded and runs counter to the law of this Court.

It is a longstanding principle within this Circuit that an employer cannot mount a “merit system” defense unless it proves that it based wages on “an organized and structured procedure whereby employees are evaluated systematically according to predetermined criteria.” EEOC v. Aetna Ins. Co., 616 F.2d 719, 725 (4th Cir. 1980) (citations omitted). The merit system defense would allow MIA to escape liability for disparities in starting salaries only if it established that it evaluated new hires and set their wages based on “predetermined criteria.” Id. However, throughout this case—from the pre-suit administrative investigation through summary judgment briefing—MIA could not consistently articulate the factors it considered in establishing the salaries of its newly hired investigators.

During the EEOC’s administrative investigation, MIA cited a host of factors that it considered when determining its employees’ starting salaries: “recruitment or retention issues, the salaries of current employees in similar positions, the length of prior relevant work experience, and length of employment at the MIA and with the State.” JA-88. In its interrogatory responses during litigation, MIA cited additional factors: “the training and skill of an applicant, the complexity of matters assigned to a job title, the unit under which a job title is held, . . . positions held and salaries earned by applicants, the responsibility assigned to a job title, the knowledge of an applicant, [and] whether a job title is entry level or full performance[.]” JA-212. Then, in her deposition, MIA’s Fed. R. Civ. P. 30(b)(6) witness essentially reverted back to the position MIA took during the EEOC’s pre-suit investigation, citing just three factors to explain its pay decisions: the applicant’s experience, existing staff salaries, and the difficulty in filling the position. JA-35. Also, most of MIA’s witnesses testified that an applicant’s education was not a factor in setting salaries, see, e.g., JA-193-194, but Harrison said otherwise, testifying that she did consider education when recommending salaries. JA-124-125. Thus, depending on the decision-maker, in some instances education might matter; in others it did not.

To be sure, MIA is entitled to make pay decisions based on any combination of these factors, but if its criteria were in fact “predetermined,” it should have had no trouble articulating a consistent set of characteristics which controlled starting pay—whether it was in response to an investigative request for information, an interrogatory, or a deposition question. A jury could reasonably conclude that the pay disparities were not based on “predetermined” criteria and thus were not justified by a merit system. See Ryduchowski v. Port Auth. of N.Y. & N.J., 203 F.3d 135, 143 (2d Cir. 2000) (“[I]t is clear that the jury could have reasonably concluded that Port Authority employees were not evaluated systematically. Without systematic evaluation, a valid merit system cannot be said to exist.”); see also Maxwell v. City of Tucson, 803 F.2d 444, 447 (9th Cir. 1986) (rejecting the argument that a “pay classification system,” which “operates in compliance with the civil service laws” was a merit system); Marshall v. Kent State Univ., 589 F.2d 255, 255-56 (6th Cir. 1978) (same).[11]

B. The district court erred in finding that any other factor other than sex justified the unequal pay.

In ruling that “reasons other than gender justified the pay disparity,” the district court observed that the male Fraud Investigator comparators “were hired at higher steps.” JA-429. This could be understood not only as a critique of the EEOC’s selection of comparators but also to mean that the district court agreed with MIA that its use of a salary schedule established an affirmative defense under the fourth prong. As a preliminary matter, it is well-established that “employers cannot meet their burden of proving that a factor-other-than-sex is responsible for a wage differential by asserting use of a gender-neutral [salary] classification system without more.” Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 525 (2d Cir. 1992); see also Kling v. Montgomery Cty., No. 15-cv-2866, 2016 WL 3940237, at *7 (D. Md. July 20, 2016) (rejecting employer’s defense that its pay disparities were justified by its use of “a complex classification system”). Hiring male investigators “at higher steps” does not, on its own, justify the wage differentials or constitute an affirmative defense in this case. Rather, an employer must show that “job-related distinctions underlie” sex-based wage disparities even if they were predicated on a salary schedule. Aldrich, 963 F.2d at 525.

According to MIA and the district court, the principal job-related distinctions between the claimants and the comparators was their prior work experience. For example, MIA asserted, without any citation to the record, that Hurley’s higher pay was based on his “over five years of State employment, including three years with [MIA],” and that Pennington was paid more because of his “thirty years of law enforcement experience, including training obtained at the National Fire Academy on arson investigations.” R.23-1 at 25. The district court simply incorporated into its opinion these non-discriminatory rationales offered by MIA in its brief without demanding any evidence to back them up. JA-429. In so doing, the district court contravened the principle that the party seeking summary judgment must proffer evidence, not assertions, in order to prevail; and this principle has even greater force where, as here, that party bears the burden of proof at trial. See King v. Acosta Sales & Mktg., Inc., 678 F.3d 470, 474 (7th Cir. 2012) (ruling that the plaintiff’s “claim under the Equal Pay Act must be returned to the district court for a trial at which [the employer] will need to prove, and not just assert, that . . . experience account[s] for these [salary] differences”).

The district court’s finding also fails because it does not take into account that the claimants, like the comparators, had significant experience in law enforcement jobs and in investigating insurance fraud. Specifically, before working for MIA, Cordaro spent two years working as a Fraud Investigator for a federal credit union and thirteen years as a criminal investigator for the Baltimore County State’s Attorney’s Office. JA-78-79. Green had twenty years’ experience working for the Baltimore City Police Department, seventeen of which she spent serving as a Detective, as well as experience conducting federal background investigations and working as Lead Investigator in the Office of the State’s Attorney for Baltimore City’s Identity Theft Unit. JA-81-84. As MIA observed in an internal memorandum recommending her for hire, Green “had extensive law enforcement investigative experience . . . in the closely related area of white collar crime[.]” JA-350. In addition, when Rogers became a Fraud Investigator in July 2011, she had already been working as an investigator for MIA in another unit, and before that, she worked for eight years as an officer in the Baltimore County Police Department as well as in various positions, including investigator, at an insurance company. JA-93-95.

The district court mentioned none of this in its opinion. It merely adopted MIA’s asserted justifications for the higher pay. But where, as here, there is evidence that the claimants and the comparators share similar levels of experience, a district court may not grant summary judgment based on the “any other factor other than sex” affirmative defense by pointing to the experience of the higher-paid males while ignoring that of the underpaid females. In so doing here, the district court weighed the evidence, failed to consider the EEOC’s evidence, and resolved disputed facts in favor of the moving party, in contravention of Fed. R. Civ. P. 56. See Keziah, 888 F.2d at 325 (reversing summary judgment because the district court “disregarded” evidence of the plaintiff’s prior experience, which was “[a]rguably . . . as related to her position” “as [her comparator’s] prior experience” was to his); Brown v. Fred’s, Inc., 494 F.3d 736, 742 (8th Cir. 2007) (affirming jury verdict in favor of EPA plaintiff because “a reasonable juror could conclude that [the plaintiff’s] experience was comparable to that of some of the male employees who received higher pay”).

In any event, a jury would not be compelled to conclude based on MIA’s evidence that the comparators’ prior experience “actually motivated the wage disparity.” Stanziale, 200 F.3d at 108. For example, at the deposition of Larry Short, MIA’s former Human Resources Director who approved Cordaro’s and Green’s salaries, when the EEOC’s attorney asked, “Do you know why Ms. Cordaro was placed on Step 4 of Grade 15?” Short answered “No, I don’t.” JA-198. When MIA’s 30(b)(6) witness, Tracey Dailey, was asked in her deposition “[c]an you explain why Ms. Green was hired at [a] lower salary as compared to Mr. Jacobs?” she answered, “I can’t. I can’t answer that.” JA-65.[12] Similarly, when Dailey was asked at her deposition why Jacobs was paid $45,298 per year as a starting salary, she said “I would assume that it was his experience . . . [p]erhaps his investigative experience.” JA-50A (emphasis added). As the EEOC stated below, “[s]peculation, conjecture, and post-hoc rationales cannot satisfy [MIA’s] heavy burden” of establishing an EPA affirmative defense as a matter of law. R.22-1 at 19.

Although the district court deemed it significant that Conticello and Hurley had obtained a “Certified Fraud Examiner designation” and Pennington had “training obtained at the National Fire Academy on arson investigations,” JA-429, the record is bereft of any evidence to support the notion, much less prove, that these credentials actually motivated MIA’s decision to pay these men more. If anything, the evidence casts doubt on the district court’s finding that MIA paid Conticello and Hurley higher salaries due to their Certified Fraud Examiner designations. This is because, as the EEOC pointed out below, MIA hired Thomas Zanfardino, who had earned the Certified Fraud Examiner designation, in the same month and at the same salary as Williams Johns, who had not. Compare JA-368-369 and JA-370-372; see also JA-345. Because MIA was not consistent in rewarding those with Certified Fraud Examiner credentials with higher pay, a jury would not be compelled to conclude that such a credential was the true reason for the higher pay it awarded Conticello and Hurley. See Brinkley-Obu, 36 F.3d at 353 (affirming jury’s rejection of employer’s argument that the plaintiff’s unequal pay resulted from experience because employer paid male employees with less experience higher salaries than more experienced males).

Likewise, the evidence belies the district court’s observations that Gross had “substantial experience in the private sector” or that Xenos “had substantial experience in real estate transactions.” JA-430. Xenos, for example, had no documented experience in real estate transactions, and before he worked for MIA, he had been a security guard and a bus driver. JA-105-106. For his part, Gross had worked in the private sector for, at most, two years—as a sales consultant and insurance producer—before joining MIA. JA-103-104. But even if it were true that this constitutes “substantial experience in the private sector” and “in real estate transactions,” the record contains no evidence that these purported qualifications actually played into MIA’s decision to pay Gross and Xenos higher wages than the claimants. Again, the district court simply accepted MIA’s rationales as true without demanding evidence. It is one thing to point to items on a resume after the fact, as MIA did, and it is quite another to actually prove—by uncontroverted evidence—that such qualifications motivated the original pay decision. In other words, although MIA’s “reasons could explain the wage disparity,” the evidence would not compel a reasonable jury to find that they “do in fact explain the wage disparity.” Stanziale, 200 F.3d at 107-08. Therefore, to the extent the district court granted summary judgment based on MIA’s affirmative defenses, it erred.

III. Sufficient evidence exists to find that MIA’s violation was willful.

The district court did not address the parties’ arguments on willfulness. However, as noted above, the EEOC’s ability to recover on behalf of Green depends on a showing of willfulness because she left her employment with MIA in February 2013, and this suit was filed in April 2015. Ordinarily, an EPA action must be filed within two years after the cause of action accrues, and a claim accrues each time a discriminatory paycheck is issued. See 29 U.S.C. § 255(a); Nealon v. Stone, 958 F.2d 584, 591 (4th Cir. 1992). The exception to the two-year limitations period arises in cases of “willful violation[s],” in which case plaintiffs may avail themselves of a three-year statute of limitations. 29 U.S.C. § 255(a).

In McLaughlin v. Richland Shoe Co., 486 U.S. 128, 131 (1988), the Supreme Court held that an employer commits “a willful violation [where] ‘it knew or showed reckless disregard for the matter of whether its conduct was prohibited by the [EPA].’” (quoting Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 125-30 (1985)). To establish willfulness, the EEOC need not show that MIA intended to discriminate or acted in bad faith, just that it knew of its obligations under the EPA and recklessly disregarded whether its conduct may be in violation of that statute. Id.

Here, MIA’s Director of HR, Larry Short, testified that he was “aware that it’s against the law to pay lower wages to women employees . . . than male employees for doing equal work because of their sex.” JA-191. Moreover, the uncontroverted evidence demonstrates that, as of October 18, 2013, when Harrison published her study, MIA knew or should have known that it paid female Fraud Investigators less than male Enforcement Officers for performing work that, in Harrison’s words, “ranked equally . . . on all factors.” JA-178.

Although it accepted the conclusions of Harrison’s study and had independent discretion over the claimants’ pay, MIA still failed to provide them with a raise sufficient to match the wages of the male Enforcement Officers, Gross and Xenos, whose salaries prompted Cordaro’s initial complaint of unequal pay. This was a deliberate choice, and once MIA had the conclusions of Harrison’s study, a jury could find that it “showed reckless disregard for the matter of whether its conduct was prohibited” by the EPA. McLaughlin, 486 U.S. at 131; see also Pollis v. New Sch. for Soc. Research, 132 F.3d 115, 120 (2d Cir. 1997) (“This evidence—that the [employer] knew that [the plaintiff] was paid less than comparable males, but did not rectify the situation—is sufficient to support the jury’s finding of [a] reckless or willful violation of the Equal Pay Act.”).

CONCLUSION

For the foregoing reasons, the district court’s decision to grant summary judgment for MIA was incorrect. This Court should reverse that decision and remand the case for further proceedings.

Respectfully submitted,

JAMES L. LEE

Deputy General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

LORRAINE C. DAVIS

Assistant General Counsel

s/Philip M. Kovnat

PHILIP M. KOVNAT

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4769

philip.kovnat@eeoc.gov

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s/Philip M. Kovnat

PHILIP M. KOVNAT

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4769

philip.kovnat@eeoc.gov

Dated: February 21, 2017

[1] Citations to the Joint Appendix take the form JA-[page #]. Documents not appropriate for inclusion in the Joint Appendix are identified by the document number in the district court’s docket, i.e., R.[docket #] at [page #].

[2] This job title appears in the record interchangeably as “Enforcement Officer,” “Compliance Officer,” and “Compliance and Enforcement Officer.” The district court referred to it as “Enforcement Officer,” JA-429, and we do the same here for the sake of consistency.

[3] Harrison initially recommended that Fraud Investigators receive a two-grade increase in compensation, which would place them at a level higher than Enforcement Officers. JA-75. However, she later amended her conclusions to recommend instead that Fraud Investigators and Enforcement Officers both “be compensated at a grade 16.” JA-178.

[4] After the reclassification based on the Harrison study, Cordaro began to earn more than Hurley, Jacobs, and Pennington, but that was only because those males had retired or resigned before Harrison’s recommendation took effect. Had the males continued to work for MIA after it awarded retroactive pay increases to all Fraud Investigators, the male Fraud Investigator comparators would have continued to earn more than Cordaro. JA-167-172.

[5] Green left MIA in February 2013 and thus never benefitted from the pay increase awarded to all Fraud Investigators based on the Harrison study.

[6] The review identified an additional male, Peter Brady, as “similarly situated” to Cordaro and Rogers, and Brady earned $54,834 as of April 23, 2014—about $2,000 more per year than Rogers and over $3,000 more per year than Cordaro. Id.

[7] The EEOC also argued that MIA’s actions were “willful,” and that a three-year statute of limitations thus applied. See generally 29 U.S.C. § 255(a) (stating that actions under the Fair Labor Standards Act, of which the EPA is a part, must be commenced within two years “except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued”). The EEOC’s ability to recover relief on behalf of Green, who separated from MIA more than two years before the EEOC filed suit, depends on a finding of willfulness.

[8] Neither MIA nor the district court provided a citation to the record in support of this statement, so it is unclear which alternative male comparators they had in mind. In any event, there is only one potential male comparator who fits this description—Todd Young. MIA hired Young, a Fraud Investigator, five months before Cordaro and about a year before Green, at the same grade and step. Although he was placed at the same grade and step, Young earned a higher salary than either Cordaro or Green. Specifically, MIA paid Young $44,610 and it paid Cordaro and Green $43,495 and $43,759, respectively. JA-345-346.

[9] Although the court found that MIA carried its burden of justifying the pay disparity “as to all of the comparable male employees,” id. (emphasis added), it did not identify any justification for MIA’s decision to pay comparator Donald Jacobs, a male Fraud Investigator, more than Cordaro or Green.

[10] The EEOC is not advancing the position in this appeal that it is entitled to affirmative summary judgment but rather just that the district court erred in granting summary judgment to MIA.

[11] The district court relied on Cohens in holding that “MIA hires people under what has been characterized as ‘a merit system for purposes of the EPA.’” JA-429-430. But in Cohens, the pro se plaintiff conceded that she was paid pursuant to a “merit system.” 933 F. Supp. 2d at 750. So when the court “characterized” her pay structure as such, it carried no legal significance; it was uncontested. Here, by contrast, the EEOC has argued consistently that MIA’s merit system defense is unavailing.

[12] Dailey’s inability to respond to this and other basic questions is troubling given that, as MIA’s 30(b)(6) designee, she was obligated to “testify about information known or reasonably available to the organization.” Fed. R. Civ. P. 30(b)(6); see also Wellman v. Bobcat Oil & Gas, Inc., No. 3:10-cv-00147, 2011 WL 3735975, at *1 (S.D. W. Va. Aug. 24, 2011) (“Federal law is well-settled that service of a Rule 30(b)(6) deposition notice triggers a duty of the . . . defendant to prepare the designated witness or witnesses so that they may give knowledgeable and binding answers for the [employer].”) (citations and quotations omitted).