Esther S. Taylor v. Thomas E. White ( 2003 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 02-1165
___________
Esther S. Taylor, *
*
Appellant, * Appeal from the United States
* District Court for the Eastern
v. * District of Arkansas.
*
Thomas E. White, Secretary of the *
Army, *
*
Appellee. *
___________
Submitted: June 28, 2002
Filed: March 4, 2003
___________
Before WOLLMAN, MORRIS SHEPPARD ARNOLD, and MELLOY, Circuit
Judges.
___________
MELLOY, Circuit Judge.
In this Title VII unequal pay case, Plaintiff/Appellant Esther S. Taylor appeals
the district court's1 grant of summary judgment in favor of her employer,
1
The Honorable William R. Wilson, Jr., United States District Judge for the
Eastern District of Arkansas.
Defendant/Appellee Secretary of the Army Thomas E. White (the Army). Because
Taylor failed to identify evidence that would create a genuine question of material
fact to rebut the Army's affirmative defense, we affirm.
I.
Taylor was a civilian employee at the Army's Pine Bluff, Arkansas Arsenal (the
Arsenal). From early February 1995 through June 1998, she worked on a temporary
program known as the Munitions Items Disposition Action System or MIDAS.
Taylor's duties under the MIDAS program related to the preparation of detailed
technical reports to describe unwanted conventional munitions. The purpose of the
MIDAS program was to facilitate the disposal of these munitions.
Taylor was not a veteran, but she had worked for the Arsenal for many years
before joining the MIDAS program. She first worked for the Arsenal from 1963
through 1969, at which time she quit to raise her family. In 1981 she returned to the
Arsenal as a grade GS-4 timekeeper in the office of the Directorate of Manufacturing
Operations.2 Between 1983 and 1993 she worked as a munitions inspector and
progressed in salary and title from grade WG-6 munitions inspector to grade WG-9
munitions inspector.3 In 1993, through a formal reduction-in-force process, she was
downgraded and transferred to the Arsenal's Directorate of Product Assurance as a
grade GS-4 quality assurance clerk.
2
GS or General Schedule refers to a government pay scale used to classify
employees and positions.
3
The WG pay scale is separate from the General Schedule. It is applicable
to certain jobs at the Arsenal. Generally, for a given numerical grade (e.g. GS-4
and WG-4), WG salaries are lower than GS salaries.
2
Due to application of the statutory salary retention policy of 5 U.S.C. § 5362,
Taylor was entitled to retain her higher, WG-9 grade and salary for a limited period
of time following the reduction-in-force.4 Therefore, immediately prior to joining the
MIDAS program under the Directorate of Product Assurance in 1995, she worked as
a GS-4 quality assurance clerk in the Directorate of Product Assurance but received
statutorily protected pay at the WG-9 level. She does not allege that her demotion
during the earlier reduction-in-force involved discrimination or that her GS-4 ranking
demonstrated historical discrimination by the Army.
Theodis J. Thornton and Willie J. Early were Taylor’s male co-workers on the
MIDAS program. Both were GS-11 quality assurance specialists before placement
with the MIDAS program. Thornton was an Army veteran and Arsenal employee
since 1978. Early was a Marine veteran and Arsenal employee since 1979. Linda
Jones was Taylor's female coworker on the MIDAS program. Jones was a GS-9
engineering technician.
Prior to placement with the MIDAS program, Taylor, Early and Thornton were
on the Arsenal's "surplus roster." On the surplus roster, they faced uncertain job
security. The record is not clear regarding the precise nature of this uncertainty such
as the likelihood or timing of possible layoffs or demotions. However, it is
undisputed that Arsenal management generally attempted to fill vacant positions with
surplus roster personnel to avoid layoffs. Jones was not on the surplus roster prior
to her placement with the MIDAS program.
4
§ 5362 mandates salary retention for certain government employees who
have worked for at least 52 consecutive weeks prior to placement in a lower
salaried position through a formal reduction-in-force process. Because Taylor's
present complaints did not arise from a reduction-in-force process, and because
they are unrelated to her earlier demotion that occurred under a reduction-in-force
process, the statutory salary retention policy of § 5362 is not under examination.
3
The MIDAS program originally had the potential to be funded for three years,
but was obtained as a temporary program of uncertain duration. Ultimately, control
over the MIDAS program rested with the U.S. Army Defense Ammunition Center and
School in Savannah, Illinois. Local control over the MIDAS program at the Arsenal
was originally held by the Arsenal's Directorate of Engineering and Technology.
While Taylor, Early, and Thornton were on the surplus roster, quality assurance
supervisor John Hill negotiated transfer of the MIDAS program jobs and funding
from the Arsenal's Directorate of Engineering and Technology to the Directorate of
Product Assurance. Hill was able to obtain local control of the MIDAS program from
the Directorate of Engineering and Technology due to poor performance by that
Directorate and due to a threat from Savannah to withdraw the MIDAS program and
its funding from the Arsenal. By securing the MIDAS program for the Directorate
of Product Assurance, Hill created positions for Taylor, Thornton, and Early thus
removing these three employees from the surplus roster.
Taylor, her female coworker Jones, and her male coworkers Thornton and
Early commenced work under the MIDAS program in late January and early February
1995. At that time, the Civilian Personnel Office (CPO) had not yet classified the
MIDAS positions and duties under the GS system. Taylor, Jones, Thornton, and
Early simply assumed new duties, received limited group training, and continued to
receive pay at their prior, unequal, pre-MIDAS grades – Taylor at the WG-9 level,
Jones at the GS-9 level, and Thornton and Early at the GS-11 level. Previously, when
the MIDAS program was under the Directorate of Engineering and Technology, one
of the MIDAS workers was a male rated at level GS-12. The record is unclear
regarding the historical grades and duties of other, prior MIDAS workers.
Notwithstanding these different classifications and salaries, it is undisputed
that during at a least a portion of their time together under the MIDAS program,
Taylor, Jones, Thornton, and Early performed identical work under identical
conditions. When their MIDAS work began Taylor and her co-workers shared a lack
4
of relevant experience and training. They learned to perform MIDAS work together
by trial and error and through joint training.
In the summer of 1995, Hill submitted a written description of the MIDAS
workers' duties to the CPO. In addition, he claims to have recommended
classification of these duties at grade GS-9. In August of 1995, about six months
after Taylor and her coworkers joined the MIDAS program, but before Taylor's
statutory salary retention benefits expired, the CPO classified the MIDAS positions
at grade GS-7. After the classification, Thornton and Early maintained their GS-11
grades and salaries. Because Jones returned to her previous position shortly before
the classification, she was unaffected by the CPO's action. Jones maintained her
grade GS-9 status throughout her entire tenure with the MIDAS program.
After the CPO classification, Taylor was promoted from grade GS-4 to grade
GS-7. Because she had been receiving statutorily protected pay at the WG-9 level for
two years, her three grade promotion did not appear to provide a dramatic salary
increase. Taylor's two year benefit period under 5 U.S.C. § 5362 would have expired
in October of 1995 had she not been promoted to the GS-7 level.
Jacquelyne Evans, a position classification specialist from the CPO, claims that
the CPO relied on Hill's written description to classify the MIDAS duties at grade
GS-7. Taylor does not dispute that the CPO relied on Hill's written description.
However, she alleges that reliance on the written description was irregular and notes
that Evans does not recall Hill recommending classification at grade GS-9. In
addition, Taylor notes that no CPO personnel conducted a "desk audit" or personal
interview of Taylor, Early, or Thornton to explore first-hand the tasks involved with
the performance of their MIDAS duties. Although Taylor attacks the classification
process, she presents no evidence to suggest that a desk audit was required, that such
interviews were a mandatory part of the position classification process, or that
reliance on a supervisor's written description was impermissible. Accordingly,
5
although Taylor has identified a question of fact regarding whether or not Hill
recommended classification at grade GS-9, it is clear that the CPO did not rely on any
such recommendation and Taylor's unsupported critique of the classification process
cannot support an inference of discrimination.
Shortly after the CPO classification, Thornton acquired additional, non-MIDAS
program duties and devoted only about fifty percent of his time to the MIDAS
program. In April 1996, he was promoted to GS-12. Although Thornton continued
to share some duties that were identical to those of Taylor and Early, Taylor does not
allege that her workload was equal to that of Thornton's after the scope of his duties
expanded. Early continued to receive a GS-11 salary under the MIDAS program until
October 11, 1997, when he returned to his prior, GS-11 position. Taylor performed
the same work as Early throughout this entire time but received pay at the GS-7 level.
Taylor remained with the MIDAS program through its termination in May, 1997. At
that time she returned to a GS-4 position to perform GS-4 duties, but maintained her
GS-7 grade and salary.
In September 1995, after Taylor was promoted to grade GS-7, she met with the
Arsenal's EEO Officer to complain about the disparity between her salary and the
salaries of her male coworkers. The Officer made an appointment for Taylor to meet
with James L. Bacon, the Executive Assistant and second-in-command at the Arsenal.
In October of 1995, Bacon met with Taylor and told her that he would respond at a
later time. On May 9, 1996, after receiving no response for over six months, Taylor
sent Bacon a memo requesting action to correct the wage disparity and requesting a
status report. Bacon did not respond to Taylor's May 9 memo. However, in the same
general time frame that Bacon received Taylor's memo–six months after Taylor first
complained and over sixteen months after Early's placement in the MIDAS
program–Bacon's office acted to formalize and document Early's status as a GS-11
worker performing GS-7 duties. The documentation accompanying Early's change
of status indicated that the change was originally requested in November 1995, was
6
not acted upon until May 1996, became effective May 12, 1996 and was to last for
a period not to exceed 120 days. After Early's status was formalized, he was
considered a GS-11 quality assurance specialist "detailed" to a GS-7 position.
Pay above the GS-7 level that Thornton, Early, and Jones received while under
the MIDAS program was not mandated by the statutory, saved-pay provisions of 5
U.S.C. § 5362. Similarly, the out-of-grade pay received by Taylor after she left the
MIDAS program was not mandated by statute. Accordingly, it is undisputed that the
Arsenal employed a non-statutory salary retention policy for the employees involved
in this case. The details of this non-statutory policy are disputed.
Ultimately, Taylor filed a claim with the Equal Employment Opportunity
Commission followed by this suit. The district court granted summary judgment
finding no evidence to rebut the Army's assertion of the non-statutory salary retention
policy as a gender-neutral defense to Taylor's claim of discrimination.
II
Our review of the district court's grant of summary judgment is de novo. The
district court did not find, and the Army does not contend that there is an absence of
factual questions in this case. Rather, the district court and the Army assert that all
outstanding questions of fact are immaterial. Accordingly, we must examine the
record to assess the materiality of the disputed facts. In conducting this examination,
we consider Taylor's evidence to be true and draw justifiable inferences arising from
the evidence in her favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). "If this evidence is merely colorable, or is not significantly probative,
summary judgment may be granted." Id. at 249-50 (internal citations omitted). Thus,
although Taylor does not have to provide direct proof that genuine issues of fact exist
for trial, the facts and circumstances that she relies "upon must attain the dignity of
substantial evidence and not be such as merely to create a suspicion.” Metge v.
7
Baehler, 762 F.2d 621, 625 (8th Cir. 1985). In essence, the evidence must be “such
that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477
U.S. at 248.
Taylor alleges gender-based discrimination under Title VII, 42 U.S.C. § 2000e-
2(a)(1). Because her allegations of discrimination relate solely to unequal pay for
equal work, her claim is governed by the standards of the Equal Pay Act, 29 U.S.C.
§ 206(d) (EPA). Buettner v. Arch Coal Sales Co., Inc., 216 F.3d 707, 718-19 (8th
Cir. 2000) (conducting analysis of a Title VII claim under the framework of the EPA
where the alleged discrimination related solely to unequal pay for equal work); see
also Hutchings v. International Brotherhood of Teamsters, 177 F.3d 1076, 1080-81
(8th Cir. 1999) and McKee v. Bi-State Dev. Agency, 801 F.2d 1014, 1019 (8th Cir.
1986). Under the EPA, a plaintiff must establish a prima facie case by "show[ing]
that the defendant paid male workers more than she was paid for equal work in jobs
that required equal skill, effort, and responsibility and work performed under similar
conditions." Buettner, 216 F.3d at 719. If a plaintiff makes this showing, the burden
shifts to the defendant to prove one of the affirmative defenses set forth under the
EPA. The last of the statutory affirmative defenses set forth in the EPA is a catch-all
provision that excuses pay discrepancies "based on any other factor other than sex .
. ." 29 U.S.C. §206(d)(1)(iv).5
5
29 U.S.C. §206(d)(1) states:
No employer having employees subject to any provisions of this
section shall discriminate, within any establishment in which such
employees are employed, between employees on the basis of sex
by paying wages to employees in such establishment at a rate less
than the rate at which he pays wages to employees of the opposite
sex in such establishment for equal work on jobs the performance
of which requires equal skill, effort, and responsibility, and which
are performed under similar working conditions, except where
such payment is made pursuant to (i) a seniority system; (ii) a
8
This analytical framework differs from the McDonnell Douglas burden shifting
analysis.6 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). 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. County of Washington
v. Gunther, 452 U.S. 161, 170 (1981) ("Equal Pay Act litigation, therefore, has been
structured to permit employers to defend against charges of discrimination where
their pay differentials are based on a bona fide use of 'other factors other than sex.'").
The Army's summary judgment motion relies solely on the EPA's catch-all,
"factor other than sex" affirmative defense. 29 U.S.C. § 206(d)(1)(iv). Therefore, for
the purpose of this motion, it is undisputed that Taylor established a prima facie case
under the EPA. The Army argues specifically that the pay discrepancy resulted from
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 . . . (emphasis added)
6
The Army argues that the burden shifting analysis of McDonnell Douglas
should apply in this Title VII unequal pay case. However the cases the Army cites
do not support its argument. See Simmons v. New Pub. Sch. Dist. No. Eight, 251
F.3d 1210, 1214-15 (8th Cir. 2001). Simmons was not exclusively an unequal pay
case. Id. (refusing to apply the burden shifting analysis to a gender discrimination
claim that was based on the non-renewal of an employment contract). Further, the
court in Simmons only applied the McDonnell Douglas analysis to a claim based on
unequal pay because there was no direct evidence that the plaintiff was paid less than
the employee chosen for comparison, her eventual replacement. Id. at 1217. In
Kindred v. Northome/Indus. Sch. Dist. No. 363, 154 F.3d 801, 803-804 (8th Cir.
1998), the court again noted that it was applying the McDonnell Douglas standard
only because the plaintiff-employee had presented no direct evidence of
discrimination under either Title VII or the Equal Pay Act. In fact, however, the court
in Kindred did not apply the McDonnell Douglas burden shifting analysis. Rather it
determined that the plaintiff-employee had not performed work that was "equal" to
the work she sought to use for comparison. Id. at 804.
9
a non-statutory salary retention policy intended to retain skilled workers and protect
workers' salaries. The Army argues further that, like her two male and one female co-
workers, Taylor was the beneficiary of the informal salary retention policy because
she was allowed to retain her GS-7 grade and salary upon her return to a lower-
salaried, GS-4 position. Further, unlike the other MIDAS workers, she received and
preserved a three-grade promotion under MIDAS. The Army claims that the rationale
for such a salary retention policy is to retain skilled employees during periods of time
when their services are not required by preventing job loss and allowing employees
to perform less demanding, lower grade work without suffering a reduction in grade
or salary.
Taylor does not dispute the existence of a non-statutory salary retention policy.
She argues instead that the Army raises the non-statutory policy as a mere pretext to
hide gender-based wage discrimination. In support of her argument, she describes the
non-statutory policy not as an informal system but as a well-structured system that
requires documentation and provides a finite number of formal mechanisms for
exchanging workers between departments and positions: permanent "assignments",
formally documented but temporary "details" limited in duration to 120 days, and
undocumented, unofficial short-term borrowing or lending of labor. She asserts that
because the Army did not properly document its treatment of her co-workers in
accordance with the well structured system she describes, the Army's actions were
"subjective and loose" and questions of fact remain regarding whether the Army's
application of its policy was inconsistent and discriminatory. In essence, she argues
that sloppiness and informality in the Army's execution of its non-statutory salary
retention policy necessarily supports an inference of discrimination.
Taylor also argues that, as a matter of law, an employer should not be allowed
to rely on prior salary or a salary retention policy as a defense under the EPA because
reliance on such factors permits the perpetuation of unequal wage structures.
10
The district court initially agreed with Taylor and denied summary judgment,
specifically finding there to be a genuine question of material fact regarding whether
Taylor's male coworkers were "detailed" or "assigned" to the MIDAS program.
However, two days after denying summary judgment, the district court issued a
second opinion in which it reversed itself. In this second opinion, the district court
did not deny the existence of Taylor's factual questions regarding the mechanisms
used for placement of her male coworkers (i.e., were the workers detailed, assigned,
or loaned to the MIDAS program). Rather, the district court determined that, even
after viewing the evidence in a light most favorable to Taylor, the outstanding
questions of fact were not material because, even if resolved in favor of Taylor, they
did not demonstrate a deviation from gender neutrality. The court stated, "Plaintiff
argues that Mr. Early was not 'detailed' and that Defendant is grossly misrepresenting
this in his briefs. I find that whether or not Mr. Early was, in fact, detailed is of little
significance. Defendant still succeeds with his defense." The district court
determined that, although Taylor had demonstrated informality at the Arsenal in the
processing of workers' movements between positions and sloppiness in the
documentation of such movements, she had not presented any evidence to rebut the
Army's claims of gender neutrality in the application of its salary retention policy.
III.
We first address Taylor's general arguments that the subjective, informal nature
of the Army's asserted policy necessarily gives rise to an inference of discrimination
and that employers cannot rely on salary retention policies to explain unequal pay.
This court previously has rejected the general argument that subjectivity in an
employment decision necessarily supports an inference of discrimination. See Elliot
v. Montgomery Ward & Co., 967 F.2d 1258, 1263 (8th Cir. 1992) ("[t]hat an
evaluation process contains some subjective components cannot in and of itself prove
pretext or discriminatory intent"). Accordingly, if it is permissible to rely upon a
11
salary retention policy, the unwritten nature of the policy or the presence of
subjectivity or informality in the structure or administration of the policy cannot,
standing alone, support an inference of discrimination. The underlying question of
whether it is permissible to rely upon a salary retention policy depends upon the
meaning of the "factor other than sex" affirmative defense in the EPA. 29 U.S.C. §
206(d)(1)(iv).
On its face, the EPA does not suggest any limitations to the broad catch-all
"factor other than sex" affirmative defense. The more specific factors that are
enumerated – seniority systems, merit systems, and systems that measure earnings by
quality or quantity of output – provide examples of the type of gender-neutral factors
envisioned by the legislature. Id. The legislative history supports a broad
interpretation of the catch-all exception, listing examples of exceptions and expressly
noting that the catch-all provision is necessary due to the impossibility of predicting
and listing each and every exception.7 Given this facially broad exception, we are
7
See, e.g., House Comm. on Equal Pay Act of 1963, H.R. Rep. No. 309
(1963), reprinted in 1963 U.S.C.C.A.N. 687, 689:
Three specific exceptions and one broad general exception are also
listed. It is the intent of this committee that any discrimination based
upon any of these exceptions shall be exempted from the operation of
this statute. As it is impossible to list each and every exception, the
broad general exclusion has also been included. Thus, among other
things, shift differentials, restrictions on or differences based on time of
day worked, hours of work, lifting or moving heavy objects, differences
based on experience, training, or ability would also be excluded. It also
recognizes certain special circumstances, such as "red circle rates." This
term is borrowed from War Labor Board parlance and describes certain
unusual, higher than normal wages rates which are maintained for many
valid reasons. For instance, it is not uncommon for an employer who
must reduce help in a skilled job to transfer employees to other less
demanding jobs but to continue to pay them a premium rate in order to
12
reluctant to establish any per se limitations to the "factor other than sex" exception
by carving out specific, non-gender-based factors for exclusion from the exception.
While we recognize that salary retention policies might lead to wage decisions
based on factors unrelated to an individual's qualifications for a particular job, such
policies are not necessarily gender biased. As discussed in footnote 7, the relevant
legislative history recognizes that salary retention policies may serve legitimate,
gender-neutral business purposes, such as the retention of skilled workers who may
be needed in the future to perform higher level work. The Army has raised this
rationale and, in fact, Thornton, Early, and Taylor were spared from the surplus roster
due to their placement with the MIDAS program. The undisputed evidence
demonstrates that Thornton, Early, Taylor, and Jones were retained as employees at
the Arsenal and all four returned to positions graded at or above their prior salary
grades following their placements with the MIDAS program.
Further, although we recognize that an employer might apply a salary retention
policy in a discriminatory fashion or use such a policy as a vehicle to perpetuate
historically unequal wages caused by past discrimination, these potential abuses do
not provide valid bases to adopt a per se rule that declares all salary retention
practices inherently discriminatory. Rather, these risks simply highlight the need to
carefully examine the record in cases where prior salary or salary retention policies
are asserted as defenses to claims of unequal pay. In particular, it is important to
ensure that employers do not rely on the prohibited "market force theory" to justify
lower wages for female employees simply because the market might bear such
wages. See Corning Glass Works v. Brennan, 417 U.S. 188, 205 (holding that,
although women may have been willing to work for lower wages than men and
market forces therefore dictated that an employer could pay women less than men,
have them available when they are again needed for their former jobs.
(Emphasis added).
13
reliance on such a market force theory "nevertheless became illegal once Congress
enacted into law the principle of equal pay for equal work."). In addition it is
important to ensure that reliance on past salary is not simply a means to perpetuate
historically lower wages. Kouba v. Allstate Ins. Co., 691 F.2d 873, 876 (9th Cir.
1982) (stating that "a factor like prior salary . . . can easily be used to capitalize on the
unfairly low salaries historically paid to women").
In conducting this examination, our concern is not related to the wisdom or
reasonableness of the asserted defense. It is related solely to the issue of whether the
asserted defense is based on a "factor other than sex." 29 U.S.C. § 206(d)(1)(iv). We
"'do not sit as a super-personnel department that re-examines an entity's business
decisions.'" Kipp v. Mo. Highway and Trans. Comm'n., 280 F.3d 893, 898 (8th Cir.
2002). As such we are reluctant to establish a per se rule that might chill the
legitimate use of gender-neutral policies and practices. In this regard, we reach the
same conclusion as the Seventh Circuit which refused to adopt a per se rule that
would exclude salary retention or past salary as qualifying "factors other than sex."
Covington v. Southern Illinois Univ., 816 F.2d 317, 322-323 (7th Cir. 1987).
In Covington, the Seventh Circuit determined that a university's salary
retention policy, differences in education, and differences in experience were all
qualifying factors other than sex under 29 U.S.C. § 206(d)(1)(iv). The Covington
court stated:
We conclude that SIU's salary retention policy qualifies as a factor other
than sex. We do not believe that the EPA precludes an employer from
implementing a policy aimed at improving employee morale when there
is no evidence that that policy is either discriminatorily applied or has
a discriminatory effect. Although we realize that a plaintiff need not
establish discriminatory intent to recover under the EPA, we do not
believe that the Act precludes an employer from carrying out a policy
which, although not based on employee performance, has in no way
been shown to undermine the goals of the EPA.
14
Id. at 322. Similarly, the Ninth Circuit has held that, "the Equal Pay Act does not
impose a strict prohibition against the use of prior salary." Kouba, 691 F.2d at 878.
In Kouba, the Ninth Circuit found that the per se rejection of reliance on prior
salary as a factor other than sex would be inconsistent with Congress's decision to
adopt a broad, catch-all affirmative defense. However, the court in Kouba ultimately
remanded the case to the district court to determine whether the employer's
consideration of past salary was reasonable. The court stated, "[a] pragmatic
standard, which protects against abuse yet accommodates employer discretion, is that
the employer must use the factor reasonably in light of the employer's stated purpose
as well as its other practices." Id. at 876-77. Therefore although the court in Kouba
refused to adopt a bright line rule against reliance on salary retention or past salary
as factors other than sex, it was willing to sit in review of the employer's decisions.
This "reasonableness" level of review is greater than that provided in the Seventh
Circuit and greater than that which we believe to be required under Title VII and the
EPA. As noted above, we do not sit as a "super personnel department" and we do not
review the wisdom of an employer's chosen means to accomplish its goals. Like
Kouba, we believe a careful review of the record is required. However, we would
limit that review to a search for evidence that contradicts an employer's claims of
gender-neutrality.
In contrast to Covington and Kouba, the Eleventh Circuit in Glenn v. General
Motors Corp., 841 F.2d 1567, 1570 (11th Cir. 1988) did state a bright line prohibition
against reliance on prior salary except in limited, exigent circumstances. In Glenn,
the pay discrepancy arose from a facially non-discriminatory policy purportedly
intended to promote the switch of hourly employees to salaried positions. Under the
policy, General Motors guaranteed hourly employees that they would not suffer a
drop in pay if they would switch from hourly to salaried positions. As a result of the
policy, some male employees who switched to salaried positions received higher
15
wages than newly hired, female salaried employees and female salaried employees
who had not switched from hourly positions. The court in Glenn rejected GM's policy
as an affirmative defense stating that GM was attempting to rely on a "market force
theory", i.e., a theory based on the belief that labor market supply and demand
dictates that women may be paid less than men. Glenn, 841 F.2d at 1570 (citing
Corning Glass Works, 417 U.S. at 205).
The Glenn court found further support for its position by adopting a limited
reading of the legislative history that we quote above at Note 7. House Comm. on
Equal Pay Act of 1963, H.R. Rep. No. 309, reprinted in 1963 U.S. Code Cong. &
Admin. News 687, 689 ("For instance, it is not uncommon for an employer who must
reduce help in a skilled job to transfer employees to other less demanding jobs but to
continue to pay them a premium rate in order to have them available when they are
again needed for their former jobs."). Glenn interpreted the reference to the retention
of skilled workers as only applying in special exigent circumstances. Glenn, 841 F.2d
at 1571 ("The legislative history thus indicates that the 'factor other than sex'
exception applies when the disparity results from unique characteristics of the same
job; from an individual's experience, training, or ability; or from special exigent
circumstances connected with the business.") (emphasis added). Therefore, while
falling short of an outright prohibition on the consideration of prior salary, Glenn
established a rule that would reject reliance on prior salary (or any other factor
unrelated to a particular applicant's qualifications or a particular job's requirements)
except in situations where the employer demonstrates that the pay discrepancy was
required by a business exigency.
We do not adopt the Glenn court's narrow reading of the EPA's legislative
history. Rather, we believe a case-by case analysis of reliance on prior salary or
salary retention policies with careful attention to alleged gender-based practices
preserves the business freedoms Congress intended to protect when it adopted the
catch-all "factor other than sex" affirmative defense. To conduct a reasonableness
16
inquiry into the actions of the employer or to limit the application of a salary retention
policy to only exigent circumstances would, we believe, unnecessarily narrow the
meaning of the phrase "factor other than sex." Accordingly, we reject Taylor's
argument that a salary retention policy cannot serve as a factor other than sex.
Having done so, we must examine the record and the alleged questions of fact
surrounding the Army's asserted defense.
IV.
Our review of the record leads to the conclusion that the outstanding issues of
fact raised by Taylor are immaterial and that summary judgment is appropriate.
Evans, the position classification specialist with the Arsenal, stated in her declaration:
When we lose funding which impacts the jobs being performed, we do
our best to ensure that employees have another job at the Arsenal and do
not suffer a pay cut. When the only positions open are at a lower pay
grade, we frequently detail these employees to these positions so that
their pay is not reduced and so they can remain gainfully employed.
Appellant's App. at 40. Evan's representation summarizes the Army's affirmative
defense. The Army claims that more highly paid employees may be informally placed
in less demanding, lower salaried positions while retaining their higher salaries and
that such downward placements may occur without documentation and without time
limitations on the placements. Examining the Army's treatment of employees in this
case, this non-statutory salary retention policy is consistent with the undisputed
evidence and with the Army's claims of gender neutrality. Taylor, Early, Thornton,
and Jones – the male and female MIDAS workers – all retained their salaries when
placed in the MIDAS program and maintained their salaries upon transfer from the
program. The Army's described policy was applied to preserve their employment
17
status (placement in the MIDAS program rather than exposure to the risks of being
named on the surplus roster) to preserve their salaries, and, in the case of Taylor, to
preserve her promotion.
That having been said, a careful review of the record and consideration of the
reasonable inferences supported by the record do reveal uncertainty regarding
application of the Army's non-statutory salary retention policy. However, this
uncertainty does not "attain the dignity of substantial evidence" and rather is "such
as merely to create a suspicion.” Metge, 762 F.2d at 625.
Evans and other witnesses who were deposed or who testified at the EEOC
hearing conceded that the Army did, in fact, have a structured, non-statutory salary
retention policy. Under this policy, the term "detail" was a technical term of art
defined as an out-of-grade placement that did not impact grade or salary and that was
not to exceed 120 days. A detail was a personnel action that required documentation
and differed from a permanent assignment or an informal, short term exchange of
borrowed labor between departments or positions. Evans explained that the purpose
for documenting and limiting the duration of details to 120 days was to ensure that
the placement of lower grade workers in higher grade positions (upward details)
occurred through advertised competitive processes that afforded advancement
opportunities to lower grade employees (rather than through "details" of extended
duration that necessarily would result in a noncompetitive process of appointments
without advertisement).
Consistent with this explanation, Evans stated that the Department of the Army,
at some time during 1994, sent a memo instructing that, because of downsizing and
an inability to process paperwork, documentation and time limits were no longer
required for details involving the placement of higher-grade workers in lower-grade
positions (downward details). As Evans explained, there were no competitive
concerns at issue with downward details so the justification for time limits did not
18
apply.8 Finally, the Army presented evidence of other workers similarly placed in
lower grade positions.9
8
Evans testified as follows:
The primary purpose that you would want to watch for a detail
would be that you're not detailing someone to higher graded
positions, and that you're limited by only being able to detail them
for a hundred and twenty (120) days, non-competitively. If it's to
the same grade or to a lower grade, there's no advantage to the
employee or to management other than documenting that. Now,
then, the CPOC, that's the South Central Region, has discouraged
our even processing formal details because of their downsizing,
for two (2) reasons: one, because they downsized; they really
don't have the staff. If it's not going to affect the pay, why do it?
So, they've asked us, unless we just absolutely think we need to,
don't do a detail because they don't have the staff, and they're
servicing 36,000 employees; and, number two, there are interface
problems between the Personnel Data System and the Payroll
Data System, so in order to cut down any possible glitches that
could occur between those systems, we try not to process any
paperwork unless it's necessary.
EEOC hearing transcript, 122-23.
9
Evans further testified:
Q. And then what was the nature of their – and I hate to use the
word, detail, but what was the nature of their assignment to a
lower grade? Can you explain why that was done and what the
result was?
A. I guess just to document that they were doing those duties. I
mean, it's to no advantage to them or disadvantage to them
because details are frequently used throughout the Arsenal; and,
in fact, a lot of times we have a lot of people on what we call
loaned and borrowed labor, where there is no detail done at all, no
19
Taylor argues that Evans' explanation is contradicted by the Army's actions in
this case. Specifically, she notes that approximately 16 months after Early was placed
in the MIDAS program, he was "officially" detailed to the GS-7 position. According
to Taylor, the official detail occurred when his placement was documented as a detail.
She argues that the documenting of this detail and the imposition of a 120 day limit
would not have been necessary under the informal salary retention policy claimed by
the Army. Taylor also argues that the Army's after-the-fact compliance with the
documentation and post-hoc imposition of a time-limit requirement belie the sincerity
of its defense and create a question of fact regarding whether or not Early was
actually detailed.
documentation whatsoever.
Q. Are there some members of the Arsenal, even today, who have
been quote, detailed, and I'm saying they're working at another
lower grade?
A. There are –
Q. Can you give me some examples?
A. There are many people on this Arsenal who are not even
detailed at all, and there are at least nine (9) people on the Arsenal
currently that are officially detailed. But, for example, we have
about four (4) employees, let's see, Lock Burns, Carolyn DeVoss,
and Paulette Christy, who are on another, doing totally different
jobs than what their original function is, and it hasn't affected
their pay; but they're working on the MEO because of the A-76 of
ours being contracted out. Myself, along with may other
employees several years ago were on a reorganization team, none
of us were detailed, but our duties totally changed.
E.E.O.C. Hearing Transcript at 124-25.
20
In addition, Taylor attacks the timing and manner in which the Army formally
processed Early's change in status. The documentation surrounding Early's change
in status indicates that the official documentation of his detail was requested in
November 1995, after Taylor's meetings with the EEOC Officer and Bacon, and over
nine months after Early's placement with MIDAS. The request was not acted upon
until May 1996. Bacon's signature approving the request is undated and the change
in status did not become effective until May 12, after Bacon's receipt of Taylor's
follow-up memo. However, there is no dispute surrounding the fact that Early had,
since the commencement of MIDAS work under the Directorate of Product
Assurance, performed work as a MIDAS program worker. The post-hoc
documentation of this fact, while arguably suspicious, did nothing to alter his status,
duties, or pay in any manner.
While the Army's actions concerning the documentation of Early's status
following Taylor's initial voicing of a grievance may be suspicious, we cannot find
that these actions rise above the level of being merely suspicious. Even when
properly viewed in a light most favorable to Taylor, there is no basis upon which to
infer a departure from gender neutrality. We believe the district court correctly
determined that the technical details concerning the processing of the MIDAS
employees are immaterial. Even if a finder of fact were to focus on the Army's
actions concerning the after-the-fact documentation of Early's status and the timing
of these actions, no reasonable finder of fact could reject the undisputed evidence
concerning the actual treatment of the employees in this case and the benefits
received by these employees. In short, we agree with the district court that Taylor,
as the non-moving party, failed to present evidence “such that a reasonable jury could
find a verdict" in her favor. Anderson, 477 U.S. at 248.
The judgment of the district court is affirmed.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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