No. 16-2408

 

IN THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

 

 

 

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

          Plaintiff/Appellant,

 

v.

 

MARYLAND INSURANCE ADMINISTRATION,

          Defendant/Appellee.

 

 

On Appeal from the United States District Court

for the District of Maryland,

No. 1:15-cv-01091-JFM

The Honorable J. Frederick Motz, Senior United States District Judge

 

REPLY BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION AS APPELLANT

 

JAMES L. LEE

Deputy General Counsel

 

JENNIFER S. GOLDSTEIN

Associate General Counsel

 

LORRAINE C. DAVIS

Assistant General Counsel

 

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

 

TABLE OF CONTENTS

 

TABLE OF AUTHORITIES........................................................................... ii

 

ARGUMENT.................................................................................................. 1

 

1.           MIA is not entitled to summary judgment on the EEOC’s prima facie case.          ………………………………………………………………………………2

 

a..... Equal Work........................................................................................... 5

 

b.... Comparator Identification.................................................................. 14

 

2.           MIA is not entitled to summary judgment based on any affirmative defense.     18

 

a..... Merit System....................................................................................... 20

 

b.... Any Other Factor Other Than Sex..................................................... 20

 

3.           MIA’s argument against a finding of willfulness is unpersuasive. 29

 

CONCLUSION............................................................................................. 30

 

CERTIFICATE OF COMPLIANCE............................................................ 32

 

CERTIFICATE OF SERVICE......................................................................... 1

 

TABLE OF AUTHORITIES

 

Cases

Beck-Wilson v. Principi, 441 F.3d 353 (6th Cir. 2006).................................. 18

Brennan v. City Stores, Inc., 479 F.2d 235 (5th Cir. 1973)........................... 11

Brennan v. Prince William Hospital Corp., 503 F.2d 282 (4th Cir. 1974)...... 11

Brewster v. Barnes, 788 F.2d 985 (4th Cir. 1986)...................................... 4, 12

Brinkley v. Harbour Recreation Club, 180 F.3d 598 (4th Cir. 1999).............. 18

Brinkley-Obu v. Hughes Training, Inc., 36 F.3d 336 (4th Cir. 1994) 4, 15, 16, 26

Brown v. Fred’s, Inc., 494 F.3d 736 (8th Cir. 2007).......................... 25, 27, 28

Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).............................. 9

Cohens v. Maryland Department of Human Resources, 933 F. Supp. 2d 735 (D. Md. 2013).................................................................................................. 20

Corning Glass Works v. Brennan, 417 U.S. 188 (1974).................................... 3

EEOC v. Aetna Insurance Co., 616 F.2d 719 (4th Cir. 1980).................. 17, 20

EEOC v. Delaware Department of Health & Human Services, 865 F.2d 1408 (3d Cir. 1989).................................................................................................. 21

EEOC v. Port Authority of New York & New Jersey, 768 F.3d 247 (2d Cir. 2014)............................................................................................................. 12, 13

EEOC v. White & Son Enterprises, 881 F.2d 1006 (11th Cir. 1989)............. 28

Fowler v. Land Management Groupe, Inc., 978 F.2d 158 (4th Cir. 1992)........ 3

Hodgson v. Brookhaven General Hospital, 436 F.2d 719 (5th Cir. 1970)........ 11

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

Keziah v. W.M. Brown & Son, Inc., 888 F.2d 322 (4th Cir. 1989).......... 18, 25

King v. Acosta Sales & Marketing, Inc., 678 F.3d 470 (7th Cir. 2012).......... 22

Lavin-McEleney v. Marist College, 239 F.3d 476 (2d Cir. 2001)..................... 4

McCullogh v. Xerox Corp., --- F. Supp. 3d ----, 2016 WL 7229134, at *2 (W.D.N.Y. Dec. 14, 2016)........................................................................... 4

Merrill v. Cintas Corp., 941 F. Supp. 1040 (D. Kan. 1996)........................... 28

Mickelson v. New York Life Insurance Co., 460 F.3d 1304 (10th Cir. 2006) 19, 23

Miranda v. B&B Cash Grocery Store, Inc., 975 F.2d 1518 (11th Cir. 1992).. 18

Mitchell v. Jefferson County Board of Education, 936 F.2d 539 (11th Cir. 1991)................................................................................................................... 16

Riser v. QEP Energy, 776 F.3d 1191 (10th Cir. 2015).................................. 15

Stanziale v. Jargowsky, 200 F.3d 101 (3d Cir. 2000)..................................... 19

Strag v. Board of Trustees, 55 F.3d 943 (4th Cir. 1995)................................... 3

Tenkku v. Normandy Bank, 348 F.3d 737 (8th Cir. 2003)............................. 24

Tomka v. Seiler Corp., 66 F.3d 1295 (2d Cir. 1995)................................... 9, 23

Vereen v. Woodland Hills Sch. Dist., No. 06-cv-462, 2008 WL 794451 (W.D. Pa. March 24, 2008)........................................................................................ 24

Wheatley v. Wicomico County, 390 F.3d 328 (4th Cir. 2004).................... 6, 11

Statutes

29 U.S.C. § 206(d)(1)....................................................................... 3, 7, 10, 18

Rules and Regulations

29 C.F.R. § 800.121....................................................................................... 11

29 C.F.R. § 1620.13(b)(2), (4), and (5).......................................................... 16

29 C.F.R. § 1620.14(a)................................................................................... 10

Fed. R. App. P. 32(a)(5)................................................................................ 32

Fed. R. App. P. 32(a)(6)................................................................................ 32

Fed. R. App. P. 32(a)(7)(B)........................................................................... 32

Fed. R. App. P. 32(a)(7)(B)(iii)..................................................................... 32

Fed. R. Civ. P. 30(b)(6)................................................................................. 25

Fed. R. Evid. 801(d)(2)................................................................................... 8

 

ARGUMENT

The EEOC filed suit in this Equal Pay Act (“EPA”) litigation seeking relief for three female claimants, Alexandra Cordaro, Marlene Green, and Mary Jo Rogers. All three claimants worked for the Maryland Insurance Administration (“MIA”) as Fraud Investigators. For purposes of comparison, the EEOC designated six males—four of whom, like the claimants, worked as Fraud Investigators, and two of whom occupied the job of Enforcement Officer. MIA contends in its opposition brief that “[t]he district court was correct in determining that the EEOC failed to establish a prima facie case,” MIA Br. at 20, and it insists that “any pay disparity between employees is the result of neutral reasons.” MIA Br. at 26.

However, as set forth in the EEOC’s opening brief, there is no dispute that the claimants performed identical work as four of the six comparators, the male Fraud Investigators; and a jury could reasonably find that the claimants performed substantially equal work as the Enforcement Officer comparators, even though they had a different job title. MIA’s additional argument against the prima facie case—that the comparators selected by the EEOC were invalid because MIA hired them at higher steps on its pay scale—is also unavailing. MIA Br. at 19-20. Summary judgment for MIA thus was not appropriate with respect to the EEOC’s prima face case.

A reasonable jury could also disagree with MIA’s contention that the pay disparities were the result of neutral reasons. It is true that MIA has articulated non-discriminatory explanations for some of the pay differentials in this case, but this gets it only so far. To prevail on an EPA affirmative defense as a matter of law, MIA must submit evidence that, when viewed in the light most favorable to the EEOC, permits no conclusion but that all of the pay differences at issue resulted from factors other than sex. MIA’s evidence does not satisfy this standard.

1.     MIA is not entitled to summary judgment on the EEOC’s prima facie case.

 

“[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 29 U.S.C. § 206(d)(1)). This Court has indicated that an EPA plaintiff may establish a prima facie violation by showing that she earns less than a single male comparator for performing equal work. See Strag v. Bd. of Trs., 55 F.3d 943, 948 (4th Cir. 1995) (reciting the first prong of the EPA prima facie case as requiring a plaintiff to show “that she (1) receives lower pay than a male co-employee”) (emphasis added); see also Fowler v. Land Mgmt. Groupe, Inc., 978 F.2d 158, 161 (4th Cir. 1992) (“A female plaintiff bears the burden of proof of establishing a prima facie case by showing that (1) her employer pays her a lower wage than a male counterpart.”).[1]

It is also well-established that jobs need not be identical to be compared under the EPA. The standard is that they 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) (quotations and citations omitted); Hodgson v. Fairmont Supply Co., 454 F.2d 490, 493 (4th Cir. 1972). Unless the undisputed evidence establishes that the positions at issue are “manifestly unequal,” summary judgment on this question is not appropriate. See Brinkley-Obu v. Hughes Training, Inc., 36 F.3d 336, 351 (4th Cir. 1994) (noting that “whether the jobs to be compared” are “substantially equal” is “purely a question of fact to be decided by the fact-finder”); see also McCullogh v. Xerox Corp., --- F. Supp. 3d ----, 2016 WL 7229134, at *2 (W.D.N.Y. Dec. 14, 2016) (citing Lavin-McEleney v. Marist Coll., 239 F.3d 476, 480 (2d Cir. 2001), for the proposition that, “While summary judgment dismissing an EPA claim based on a plaintiff’s failure to prove ‘substantial equivalence’ may be appropriate where the undisputed facts establish that the positions at issue are manifestly unequal, where the salient facts are disputed, [substantial equivalence] is a question for the jury.”) (quotations and citations omitted).

a.     Equal Work

 

Although the comparators in this case fall into two categories—Fraud Investigator and Enforcement Officer—only one “equal work” inquiry is necessary. This is because MIA does not dispute that the claimants and the Fraud Investigator comparators performed identical work. Indeed, before the district court, MIA affirmatively admitted that the claimants “performed an identical job as other Insurance Fraud Investigators.” R.23-1 at 12. And in its opposition brief here, MIA identifies no difference between the duties of the claimants vis-à-vis the male Fraud Investigators. Rather, it refers to Fraud Investigators as a singular category, making no distinctions among them, and confirming that they perform identical duties. MIA Br. at 7-10. It can thus be taken as a given that four of the six comparators performed the same job as the claimants.   

Instead of taking issue with that portion of the EEOC’s prima facie case, MIA argues that “[t]he record establishes that insurance fraud investigators and [ ] enforcement officers do not perform ‘substantially equal’ work.” MIA Br. at 23 (citing Wheatley v. Wicomico Cty., 390 F.3d 328, 332 (4th Cir. 2004)). In other words, MIA urges this Court to find that the Fraud Investigator and Enforcement Officer jobs are unequal as a matter of law. However, as already discussed in the EEOC’s opening brief, ample evidence exists here to support a jury’s finding to the contrary.

Much of that evidence comes from the statements of MIA’s own agents. In particular, before this lawsuit was filed, Carla Harrison, MIA’s Senior Human Resources Specialist, conducted a job study at MIA’s behest to determine whether the salary classifications for the positions at issue were appropriate. See JA-173-178. After analyzing job descriptions, interviewing incumbents, and identifying key responsibilities for each position, Harrison concluded: “The primary purpose of [both] positions is to investigate alleged insurance fraud.” JA-176.[2] She also identified seven “grade-determining” characteristics of the jobs, finding that they “ranked equally . . . on all factors.” JA-176, 178. In a follow-up study, Harrison again reviewed job descriptions for the two positions and found: “Based on the duties and responsibilities identified for all of the Investigators, Enforcement Officer[s] perform substantially equal work as the Fraud Investigator.” JA-187.  

Relying at least in part on Harrison’s findings, MIA reclassified Fraud Investigators to be compensated at the same pay grade as Enforcement Officers on its salary classification system. JA-89-90. And, as MIA later explained to the EEOC, “the [g]rades are determined by skill, effort, responsibility, experience, and working conditions.” JA-87; see also 29 U.S.C. § 206(d)(1) (defining “equal work” as “jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions”). Further, in its submissions to the EEOC during the administrative phase of this case, MIA embraced the conclusions in Harrison’s studies, and acknowledged that Fraud Investigators and Enforcement Officers “perform similar job duties”—which it summarized as “performing investigations by reviewing and evaluating allegations, organizing and drafting reports or orders, receiving complaints and following up on information.” JA-90; see also JA-356 (same). Such evidence supports the conclusion that the jobs were equal under the EPA, it is admissible as an admission of a party opponent under Fed. R. Evid. 801(d)(2), and a jury should be free to consider it.   

Rather than offer a valid justification for the district court’s decision to grant summary judgment despite Harrison’s studies, MIA tries to diminish their significance by asserting that they were not analyses “of the actual essential job functions.” MIA Br. at 25. But MIA itself said to the EEOC in its pre-suit position statements that Harrison’s study of October 2013 involved “thoroughly analyzing the duties performed by the investigators in Insurance Fraud with the duties of investigators in the Compliance and Enforcement Unit.” JA-89-90 (emphasis added). MIA’s contention on this point is also belied by the content of Harrison’s study, in which she explored at length the duties and responsibilities of the two jobs, after reviewing position descriptions and interviewing incumbents working in both. JA-173-176. Perhaps most telling, when Harrison wrote that Fraud Investigators and Enforcement Officers “perform[ed] substantially equal work,” she expressly said that her conclusion was “[b]ased on the duties and responsibilities identified for all of the investigators.” JA-187 (emphasis added). The EEOC was thus wholly justified in relying on Harrison’s studies as support for its prima facie case.

Nor is the EEOC taking the position, as MIA and the district court suggest, that MIA’s reclassification of the Fraud Investigators on its pay scale “‘ipso facto establish[es] a violation of the [EPA].’” MIA Br. at 25 (quoting district court opinion). Rather, the EEOC is advocating just that this reclassification constitutes evidence for a jury to consider—along with other evidence in the record—that would tend to support the conclusion that the jobs are equal for purposes of the EPA. This position is squarely backed up by case law. See, e.g., Tomka v. Seiler Corp., 66 F.3d 1295, 1311 (2d Cir. 1995) (concluding that the defendant’s “decision to classify the jobs in the same compensation range is evidence that the purported differences between the positions may not be substantial”) abrogated on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998). It is also supported by the EEOC’s regulations. See 29 C.F.R. § 1620.14(a) (“In determining whether job differences are so substantial as to make jobs unequal, it is pertinent to inquire whether and to what extent significance has been given to such differences in setting the wage levels for such jobs.”). In fact, relying on MIA’s reclassification is particularly appropriate here, given that MIA said its pay grades were based on “skill, effort, responsibility, . . . and working conditions”—the very factors the statute identifies as relevant to the equal work analysis. See 29 U.S.C. § 206(d)(1).

MIA next criticizes the EEOC for “not engag[ing] in a side-by-side comparison of [ ] each position’s essential job functions and duties.” MIA Br. at 24. But the sworn declaration of D. Martin Disney does just that. Disney, who worked for MIA in both positions, testified that as a Fraud Investigator, he “investigat[ed] allegations of insurance fraud,” whereas as an Enforcement Officer, he “investigat[ed] complaints against insurance producers.” JA-366. He added that in both jobs he “interview[ed] witnesses,” “recommend[ed]” either “criminal charges” or “administrative actions,” and “testif[ied]” at “trials” or “administrative hearings.” Id. He further stated that, as a Fraud Investigator, he “prepar[ed] reports, subpoenas, and applications for statement of charges,” and as an Enforcement Officer he “draft[ed] reports that summarized facts obtained during the investigation.” Id. This testimony, which MIA utterly ignores, constitutes a valid “side-by-side comparison,” and confirms the jobs were “‘very much alike or closely related to each other.’” Wheatley, 390 F.3d at 333 (quoting Brennan v. City Stores, Inc., 479 F.2d 235, 238 (5th Cir. 1973)).

As evidence to support its argument that the jobs have “different purposes, essential job functions, and duties,” MIA relies almost exclusively on the written “position descriptions for insurance fraud investigators and [ ] enforcement officers.” MIA Br. at 23-24; see also MIA Br. at 8-10, 11-13 (quoting and citing written job descriptions). But, as the EEOC explained in its opening brief, “[j]ob descriptions and titles . . . are not decisive[;] [a]ctual 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)). Therefore, the job descriptions MIA invokes do not negate Disney’s testimony, which was drawn from his real-life experience in both positions. Nor does it overcome Harrison’s studies, which involved “thoroughly analyzing the duties performed” by employees in both jobs. JA-89.[3]

The cases MIA principally relies on are Wheatley and EEOC v. Port Authority of New York & New Jersey, 768 F.3d 247 (2d Cir. 2014). MIA Br. at 25. But these decisions do not support MIA’s view that the jobs at issue were unequal as a matter of law. The EEOC has already set forth in its opening brief the ways in which Wheatley is not controlling, see EEOC Br. at 33-36, and because MIA offers no response in its opposition, they need not be repeated here. For present purposes, it suffices to say that unlike the plaintiffs in Wheatley, the EEOC in this case did not attempt to compare the claimants to all male employees with similar job titles across multiple departments. It limited the comparison to males who even MIA described as “similarly situated comparators.” See JA-187.

Port Authority is even less helpful to MIA’s cause than Wheatley. There, the EEOC sued on behalf of female nonsupervisory attorneys working for the Port Authority, comparing them to male nonsupervisory attorneys—irrespective of practice area, which ranged from “Contracts to Maritime and Aviation, and from Labor Relations to Workers’ Compensation.” Port Auth. of N.Y. & N.J., 768 F.3d at 249. The court in Port Authority deemed the EEOC’s allegations “‘broad generalities about attorneys in general,’” such as that they all “have ‘the same professional degree,’ work ‘under time pressures and deadlines,’ and utilize both ‘analytical’ and ‘legal’ skills.” Id. at 249, 251. It also concluded that the EEOC did not “allege any facts particular to the attorneys’ actual job duties” and characterized its theory as “‘an attorney is an attorney is an attorney’” Id. at 249.

Here, by contrast, there is ample evidence—as discussed above—that the actual duties of the Fraud Investigator claimants were substantially equal to those of their counterparts in the Compliance and Enforcement unit. Nor is the theory of this case “an investigator is an investigator is an investigator.” It is, rather, that employees may be validly compared under the EPA where the employer’s own senior human resources official has readily admitted that their jobs: (1) share a single “primary purpose”; (2) “rank[ ] equally on all factors”; and (3) constitute “substantially equal work.” See JA-176; JA-178; JA-187.

b.    Comparator Identification

 

In addition to arguing that the Enforcement Officers’ work was not equal to Fraud Investigators’ as a matter of law, MIA finds fault with the EEOC’s prima facie case on another ground. It argues that the comparators the EEOC designated are not legitimate because MIA hired them at higher steps on its salary classification system, and at times when different salary schedules were in effect. See, e.g., MIA Br. at 19 n.7 (“Comparison of employees’ grade and step is the inquiry, rather than looking at initial salaries when the Schedules change annually.”).[4] Here, MIA suggests that an EPA plaintiff may only select comparators whom the employer hired at the same level of its pay scale. The district court seemed to agree, rejecting the male Fraud Investigators as comparators because they “were hired at higher steps.” JA-428-429. Such reasoning, however, is misguided.

If the view of MIA and the district court is upheld, any employer would be able to escape liability under the EPA by simply assigning employees of opposite sexes to different grades and steps on its pay scale. This would plainly undermine the remedial purpose of the statute. It is not surprising, then, that MIA’s position is at odds with the law of this Circuit and other courts. See Brinkley-Obu, 36 F.3d at 339 n.3, 340-41 (sustaining a jury verdict for the plaintiff, where her comparators were assigned to different “job grade[s]” on the employer’s “salary system”); see also Riser v. QEP Energy, 776 F.3d 1191, 1199 (10th Cir. 2015) (reversing grant of summary judgment to the employer where the plaintiff’s position was “Grade 5” on the pay scale, but her comparators’ jobs were “classified” as “Grade 7”); Mitchell v. Jefferson Cty. Bd. of Educ., 936 F.2d 539, 541 (11th Cir. 1991) (finding an EPA violation where the plaintiff selected a male comparator who was “ranked two grades higher” when the employer first adopted its salary schedule).[5]

In Brinkley-Obu, this Court observed: “[b]oth the regulations promulgated by the EEOC and cases from several circuits” hold that an EPA plaintiff may compare herself to male “predecessors or successors, as long as they performed substantially similar work.” 36 F.3d at 348 (citing 29 C.F.R. § 1620.13(b)(2), (4) and (5), and collecting cases). The rule that an EPA plaintiff may compare herself to a predecessor or successor is virtually impossible to reconcile with the notion advanced by MIA—that EPA plaintiffs may compare themselves only to employees hired at the same grade and step, at a time when the same salary schedule was in effect. Put simply, MIA has no authority for the proposition that an EPA plaintiff may only select comparators who the employer hired at the same level of its pay scale, and this Court should reject its novel interpretation of the statute.

Thus, the EEOC is entitled to a trial on its prima facie case. It has identified numerous males who earned higher pay than the female claimants. Four of these comparators by all accounts performed identical work, and the evidence discussed above raises a triable issue of fact as to whether the other two comparators performed substantially equal work. Nor is there any merit to the contention that the comparators are improper because they were hired at higher steps. In other words, to the extent the district court granted summary judgment for MIA based on the EEOC’s prima facie case, it erred and its decision should be reversed.[6]

2.     MIA is not entitled to summary judgment based on any affirmative defense.

 

Given that summary judgment was inappropriate as to the prima facie case, it is next MIA’s obligation to prove that the wage differentials were due to one or more of the statute’s four 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). As the EEOC said in its opening brief, proving one of these defenses 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); 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”) (quotations and citations omitted); see also Stanziale v. Jargowsky, 200 F.3d 101, 107-08 (3d Cir. 2000) (holding that, to obtain summary judgment on an EPA affirmative defense, an employer 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”); see also Mickelson v. N.Y. Life Ins. Co., 460 F.3d 1304, 1312 (10th Cir. 2006) (same).[7] Thus, MIA must do more than merely articulate non-discriminatory reasons for the pay differentials. It must prove by credible and uncontroverted evidence that reasons other than sex in fact led to its decision to pay the claimants lower wages. This MIA did not do.

 

 

a.     Merit System

 

Even though the district court seemingly agreed with MIA’s argument that the “State of Maryland Salary Schedule” is, by definition, “a merit system for purposes of the EPA,” R.23-1 at 6-9 (quoting Cohens v. Md. Dep’t of Human Res., 933 F. Supp. 2d 735, 749-50 (D. Md. 2013) (quotations omitted)), MIA does not advance this argument on appeal. Rather, in its opposition brief, MIA makes the broader assertion that “any pay disparity . . . is the result of neutral reasons,” MIA Br. at 26. In so doing, MIA does not rebut the EEOC’s position—which, as explained in the EEOC’s opening brief, is compelled by this Court’s decision in EEOC v. Aetna Insurance Co., 616 F.2d 719, 725 (4th Cir. 1980)—that the merit system defense is inapplicable to the facts of this case. See EEOC Br. at 39-42. Because MIA focuses exclusively on the any-other-factor-other-than-sex defense, that is the only affirmative defense that must be addressed in this appeal.

b.    Any Other Factor Other Than Sex

 

MIA has offered various justifications for the pay differentials in this case. For example, it devotes considerable space in its brief to explaining Maryland’s State Personnel Management System, which establishes a standard salary plan for state employees, consists of “26 pay grades,” and sets a base salary and “a range of steps . . . from one to 20.” MIA Br. at 4-5 (citations omitted). It also says that even though it is an agency with “independent salary-setting authority,” it voluntarily follows this pay classification system, and “considers background experience and relevant professional designations, licenses or certifications in setting the entry-level step placement of a new employee.” MIA Br. at 6, 13. The takeaway from this discussion is that MIA has a standardized pay scale.

But the existence of MIA’s pay classification system is not in dispute. The question instead is how MIA implemented the pay scale with respect to the specific claimants and comparators at issue in this case. See EEOC v. Del. Dep’t of Health & Human Servs., 865 F.2d 1408, 1412, 1415 (3d Cir. 1989) (rejecting a district court’s finding that evidence of an employer’s “job classification system compelled the conclusion that the pay disparity was based on a ‘factor other than sex’” because such evidence “did not demonstrate how the system operated with respect to the particular positions at issue”). It is in this regard that MIA’s evidence falls short.

Indeed, MIA lacks proof that factors other than sex actually motivated it to place the claimants and comparators on different steps of its pay scale. For instance, MIA observes that Pennington had “significant relevant experience” in “arson investigations” and in “law enforcement”; Hurley and Conticello “had the designation of Certified Fraud Examiner”; Jacobs had prior state experience when he applied to work for MIA; and Xenos “had specialized expertise in the area of title insurance and title agents.” MIA Br. at 18 n.6, 19, 30. But regardless of the veracity of these observations, the record lacks evidence to demonstrate that such factors were in fact what led MIA to pay these comparators what it did. In the absence of such evidence, MIA cannot meet its burden of persuasion and it is not entitled to summary judgment on the any-other-factor-other-than-sex defense. See, e.g., 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”); see also Tomka, 66 F.3d at 1312 (reversing grant of summary judgment for the employer because its “mere assertion that [the male comparator’s] salary was based on his experience is insufficient to meet [its] burden”).

If MIA could avoid liability by merely articulating non-discriminatory rationales for the pay differentials after the fact, the burden of persuasion an employer must meet to establish an EPA affirmative defense would be indistinguishable from the burden of production it must meet at step two of the McDonnell-Douglas burden-shifting framework. This is plainly not the law. See Mickelson, 460 F.3d at 1312 (“The employer’s burden in an EPA case differs from its burden in a Title VII case [because] [w]hereas in a Title VII case the employer need only proffer a legitimate, nondiscriminatory reason for the challenged action, with no need to establish that the reason actually motivated the decision, the EPA prohibits a disparity in pay between men and women ‘except where such payment is made pursuant to’ one of the four aforementioned affirmative defenses.”) (quoting statute and citing Tenkku v. Normandy Bank, 348 F.3d 737, 741 n.2 (8th Cir. 2003), for the proposition that, “[a]t the summary judgment stage of [an EPA case], the employer’s justification for the differences is irrelevant, unless it is strong enough to establish one of the statutory affirmative defenses as a matter of law”); see also Vereen v. Woodland Hills Sch. Dist., No. 06-cv-462, 2008 WL 794451, at *25 (W.D. Pa. March 24, 2008) (“In a Title VII case, the plaintiff . . . must establish that the employer discriminated against her with respect to the terms of her compensation because of her sex. In contrast, in an Equal Pay Act case, the defendant employer relying on the Equal Pay Act’s catch-all defense must establish that an aggrieved employee . . . is not being paid less because of her sex.”) (citations omitted).

These decisions make clear that, at this stage, the EEOC need not disprove MIA’s purportedly non-discriminatory reasons for the pay differentials. But it is still notable that the evidence casts doubt on MIA’s contention that “background experience and relevant professional designations, licenses, or certifications” account for the differences in pay here. MIA Br. at 13. As the EEOC said in its opening brief, because the claimants’ level of experience was comparable to that of the comparators, a jury could legitimately question whether the comparators deserved higher pay based on this factor. See EEOC Br. at 46-47 (citing Keziah, 888 F.2d at 325, and Brown v. Fred’s, Inc., 494 F.3d 736, 742 (8th Cir. 2007)). Indeed, even MIA’s witnesses did not seem so sure at their depositions. For instance, when the EEOC’s attorney asked Tracey Dailey, MIA’s Fed. R. Civ. P. 30(b)(6) witness, why Jacobs was paid $45,298 per year as a starting salary, she testified in response: “I would assume that it was his experience . . . , [p]erhaps his investigative experience.” JA-50A. Another example of this was when Dailey was asked “[c]an you explain why Ms. Green was hired at [a] lower salary as compared to Mr. Jacobs?,” and she replied, “I can’t. I can’t answer that.” JA-65. If MIA’s own 30(b)(6) witness, who was obligated to speak for the organization, cannot be certain that experience justified Jacobs’ pay, a reasonable jury could also be unconvinced.  

Although MIA now contends it is “required by law to consider . . . prior state employment,” MIA Br. at 14, it paid Jacobs and Hurley, who both had prior experience working for the state, less than Pennington, who did not, despite hiring Pennington within a year of the other men. JA-346.[8] Similarly, even if MIA is correct that “[p]referred qualifications include the designation of Certified Fraud Examiner,” MIA Br. at 9, MIA was not consistent in awarding higher pay based on this credential. Compare JA-368-369 with JA-370-372; see also JA-345; EEOC Br. at 48-49 (observing the record evidence that MIA hired one male who had earned the Certified Fraud Examiner designation in the same month and at the same salary as another male who had not). As the EEOC argued in its opening brief, this Court has made clear that such inconsistencies would permit a jury to disbelieve the employer’s purportedly non-discriminatory rationalizations. See EEOC Br. at 49 (citing Brinkley­-Obu, 36 F.3d at 353). Therefore, not only has MIA failed to produce evidence to prove that sex-neutral factors accounted for the pay differences, but a reasonable jury could also conclude that the reasons it has put forward are false.

In a further attempt to demonstrate that there was “no pay disparity based on sex,” MIA points to examples of males who earned salaries that were equal to, or less than, the salaries of the claimants. MIA Br. at 28-29. Specifically, MIA identifies Todd Young as a male it claims had a salary equal to Cordaro’s when she joined MIA. MIA Br. at 29. It also mentions Michael Stefanowitz and Thomas Bradford, Enforcement Officers who for some period of time earned lower pay than the claimants. MIA Br. at 28-29. But the fact that some males did not earn higher pay than the claimants cannot overcome the EEOC’s prima facie case as to those who did.

The Eighth Circuit’s decision in Brown helps to illustrate this point. There, the employer “offered evidence . . . that one female manager made more money than many of the male managers in her district, and that [the plaintiff] had the same salary as one male manager, and had a higher salary than two others.” 494 F.3d at 742. The Brown court recognized that this constituted “some evidence that pay differences . . . were based on a factor other than sex.” Id. Yet it found that “a reasonable jury could have rejected this defense” because of countervailing evidence in the record that males earned more than the plaintiff for equal work in the same facility. Id.

Likewise, here, MIA may submit evidence at trial that some males did not earn more than the claimants, but this would not be enough to compel judgment for MIA as a matter of law. Cf. Merrill v. Cintas Corp., 941 F. Supp. 1040, 1044 n.4 (D. Kan. 1996) (“[T]he EPA, as a matter of law, does not require a plaintiff to show that she was paid less than every male employee.” (citing EEOC v. White & Son Enters., 881 F.2d 1006, 1009 (11th Cir. 1989))). MIA states in its brief that it employed 27 individuals in the Insurance Fraud division. MIA Br. at 8. Of these, it identifies only one male employee—Todd Young—who it says was paid the same as Cordaro. By comparison, the EEOC, as noted above, has pointed to nine males (not including the six comparators it already designated) who earned higher starting salaries than Cordaro and Green. JA-345-347. In addition, although MIA identifies two male Enforcement Officers—Stefanowitz and Bradford—who were reportedly underpaid vis-à-vis the claimants, it neglects to mention that these men received a substantial pay increase in March 2013. JA-348. The point is that even if some males did not earn higher pay than the claimants, a jury could weigh that fact against the evidence of those who did, and find that MIA did not prove its defense.

Accordingly, MIA has not established any EPA affirmative defense. It no longer argues that a merit system justifies the pay differentials. Its evidence establishing that it is subject to a pay classification system, and its assertions that it considers certain sex-neutral factors in setting its employees’ pay, are too generalized to entitle it to judgment as a matter of law. Also insufficient for purposes of summary judgment is the fact that not all males working for MIA were overpaid vis-à-vis the claimants. Thus, to the extent the district court granted summary judgment for MIA based on an affirmative defense, it erred and its decision should be reversed.

3.     MIA’s argument against a finding of willfulness is unpersuasive.

 

MIA argues in cursory fashion at the end of its opposition brief that “there was no evidence of a willful violation of the [EPA].” MIA Br. at 30. For support, it recites the correct legal standard and then recapitulates some of the arguments it made in response to the EEOC’s claims of liability. MIA Br. at 30. Of course, if MIA did not violate the EPA at all it cannot be held to have done so with knowledge or reckless disregard. But its opposition brief adds nothing to the willfulness analysis. Thus, the EEOC need not repeat the arguments it made in support of its view that a reasonable jury could indeed find a willful violation here, see EEOC Br. at 50-52, and it rests on its opening brief for this point.

CONCLUSION

For the foregoing reasons, as well as those in the EEOC’s opening brief, the district court’s grant of summary judgment for MIA was incorrect. This Court should reverse that decision and remand the case for a jury trial.

 

 

 

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

U.S. 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

CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Fed. R. App. P.  32(a)(7)(B) because it contains 6,035 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii) and this Court’s local rules.

This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2016 in Palatino Linotype 14 point.

 

/s/ Philip M. Kovnat

PHILIP M. KOVNAT

Attorney

U.S. 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:  May 1, 2017

CERTIFICATE OF SERVICE

I, Philip M. Kovnat, hereby certify that I electronically filed the foregoing brief with the Court via the appellate CM/ECF system this 1^st day of May, 2017.  I also certify that all counsel of record for Defendant-Appellee Maryland Insurance Administration, who have consented to electronic service, will be served the foregoing brief via the appellate CM/ECF system.