Betty A. Simpson v. Merchants & Planters ( 2006 )


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  •                      United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 04-3972
    ___________
    Betty A. Simpson,                       *
    *
    Appellee,                  *
    * Appeal from the United States
    v.                                * District Court for the Eastern
    * District of Arkansas
    Merchants & Planters Bank,              *
    *
    Appellant.                 *
    ___________
    Submitted: October 14, 2005
    Filed: March 20, 2006
    ___________
    Before BYE, BEAM, and SMITH, Circuit Judges.
    ___________
    BEAM, Circuit Judge.
    The primary question for this court is whether to reverse a jury's finding of a
    willful violation of the Equal Pay Act. 
    29 U.S.C. § 206
    (d). Finding sufficient
    evidence to allow a reasonable jury to find such violation, we affirm.1
    1
    The Honorable William R. Wilson, Jr., United States District Judge for the
    Eastern District of Arkansas.
    I.    BACKGROUND
    Because Merchants & Planters Bank appeals the district court's denial of a
    motion for judgment as a matter of law, we "assume as proven all facts the nonmoving
    party's evidence tended to show, resolve all conflicts in favor of the nonmoving party,
    and draw all reasonable inferences in favor of the nonmoving party." Jones v.
    Fitzgerald, 
    285 F.3d 705
    , 712 (8th Cir. 2002).
    Merchants & Planters Bank was founded in 1890 in Clarendon, Arkansas. In
    late 2000, the Bank named J. Baxter Sharp, III, the co-chairman of its Board. He
    served in that capacity until 2001, when he became the chair. Sharp has also served
    as the Bank's counsel since 1992, a role which included policy development. The
    Bank's Personnel Policy provided for an annual evaluation for each employee.
    Betty Simpson was hired by the Bank in 1977, and worked there until 2002.
    After leaving the Bank, Simpson sued the Bank for violating the Equal Pay Act. 
    29 U.S.C. § 206
    (d). Simpson alleged that she was paid less than J. Kendall Henry, a male
    co-worker, and that his job was equal to hers. In order "[t]o recover under the Equal
    Pay Act, [Simpson] must prove that [the Bank] discriminated on the basis of sex by
    paying 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.'" Tenkku v. Normandy Bank, 
    348 F.3d 737
    , 740 (8th Cir. 2003) (quoting 
    29 U.S.C. § 206
    (d)(1)).
    Simpson began working as a teller on October 27, 1977. Approximately one
    year later, she moved to the loan department as its sole employee. She became
    assistant cashier and loan officer in 1982. According to the complaint Simpson filed
    with the Equal Employment Opportunity Commission (EEOC), when Simpson had
    replaced a male employee, she earned several thousand dollars less than the male
    predecessor in the same position.
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    By March of 1989, Simpson had become an Assistant Vice President. In this
    capacity, Simpson provided Federal Deposit Insurance Corporation (FDIC) and
    Arkansas State Bank required reports to the Board. She also created a spreadsheet,
    writing macros that would automatically produce six pages of calculations, to recreate
    a Board report derived from a national bankers' meeting. Simpson was responsible
    for determining the Bank's annual income and the Bank's shareholders' dividends. In
    1991, Simpson learned how the Bank's accountants performed the conversion to cash,
    which resulted in a ten thousand dollar savings to the Bank that year. This cost-
    savings process was performed by Simpson annually thereafter. Simpson also saved
    the Bank thirteen thousand dollars one year by inventorying the Bank's commercial
    property and ensuring that the Bank was not taxed on property it no longer owned.
    Simpson completed numerous reports to governmental agencies, none of which
    was ever rejected. Simpson compiled a monthly voluntary self-audit for the Arkansas
    State Bank. She produced the call report, a thirty-six page report to the FDIC,
    requiring the signature of the President and three Board members. Her work was only
    reviewed by the Board of Directors for the Bank and was never rejected by them. No
    one directly supervised Simpson, and even the Senior Vice President and Cashier
    could not answer questions about the call report. Simpson consulted and interpreted
    the FDIC regulations independently. Bonds provided the majority of the Bank's
    income, and Simpson was responsible for calculating the advantage in purchasing
    bonds at a discount or premium and the tax ramifications of the Bank's bond holdings.
    The President often asked Simpson her opinion on which bonds to purchase.
    Simpson served as duty officer every fourth week. The duty officer had to
    close the Bank and set the alarms. This position rotated among Henry, Simpson, and
    two other employees. When Estelle Catlett, the Senior Vice President and Cashier,
    was on vacation or sick, Simpson performed her duties, including payroll and error
    reconciliation. Simpson also supervised all employees at the Bank, except the
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    President and Vice President, during Catlett's daily lunch break and while Catlett was
    on vacation or sick.
    All of the skills needed to do every job at the Bank were on-the-job acquired.
    During her time at the Bank, Simpson successfully completed a management school
    program at the University of Arkansas; the Arkansas Bankers Association's Lending,
    Marketing, and Management Schools; the Mid South School of Banking, Memphis
    State University; and investment seminars provided by First Tennessee Bank. In
    1997, Simpson attended one computer school in South Dakota and another one in St.
    Louis. Simpson also publicly represented the Bank, including meeting with Senator
    Marion Berry, teaching a checkbook class, organizing a batting helmet drive for
    Mothers for Safer Little League, and serving on the Operations Committee for the
    Arkansas Bankers Association. In response to Simpson's 2002 EEOC complaint, the
    Bank reported that Simpson's duties were preparing monthly self-exam and quarterly
    reports, booking income and expenses, back-up bookkeeping, serving as security
    officer, issuing corporate shares and dividend checks, and providing investment
    information for monthly Board reports.
    Simpson's sole written evaluation, for 1980, contained seven categories.
    Simpson received the highest possible score in six categories, and the next-highest
    score in the remaining category. The previous year, she had received a nine hundred
    dollar per annum raise. Simpson also performed work outside of regular hours,
    including at her house, and once even while she was in the hospital.
    At trial, Simpson compared her position with a male employee, J. Kendall
    Henry. Henry was hired by the Bank in 1982. While working at the Bank, he
    completed a degree in finance at the University of Arkansas, Fayetteville. He attended
    the Mid South School of Banking, Memphis State University; the Arkansas Bankers
    Association's Basic/Intermediate, Audit, Lending, Marketing, and Management
    Schools; and the Dale Carnegie Course. Henry attended one of the two computer
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    training programs that Simpson had attended. Henry represented the Bank by helping
    another bank with its compliance program and by serving with the Young Bankers.
    The Bank's 2002 EEOC response explained that Henry worked after hours and on
    weekends. It also stated that Henry's jobs were information system coordinator, loan
    review officer, bank secrecy act officer, part-time teller, and loan department
    associate. However, as of 1998, another employee had taken over as bank secrecy act
    officer. In addition, Henry performed the Bank's internal audits.
    Henry received a written evaluation in 1996, which contained thirty-one
    categories. He received top marks in twenty-two categories and the next-highest score
    in the other nine categories. In 1996, the Bank's President requested that Henry
    receive a ten thousand dollar per annum raise, because he would graduate from the
    Mid South School of Banking the following year and had been trained to operate the
    computers which would be delivered the following year. Henry's salary exceeded
    Simpson's in 1996. At that time, he was an untitled bank officer and she was Assistant
    Vice President, and the computers had not yet been installed. Henry was promoted
    to Vice President in February 1997, and received approximately $7,000 more in salary
    that year than did Simpson. Henry did not graduate from the Mid South School of
    Banking until 1998.
    In addition to the comparison between Henry's salary and Simpson's salary,
    Simpson introduced other evidence. The Bank's personnel policy treated male and
    female employees differently. For example, the policy addressed the scheduling
    problems for "ladies . . . with children going to school" and stated that sick leave could
    not be taken for maternity leave. A former Bank employee testified that the Bank
    President had said, I wish "the bitch would quit," when told that Simpson was absent
    from work.
    At trial, Simpson offered further examples of inequitable treatment she
    received. Simpson made suggestions to the Bank President about putting in a wide-
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    angle camera and new lighting in the drive-in for better security. He dismissed her
    ideas, but adopted them a year later when suggested by Henry. Henry was given
    greater latitude with working hours and often left work without telling anyone; in
    contrast, Simpson had to ask permission to leave and was twice denied permission to
    attend meetings required for re-qualification as the security officer. On December 31,
    1999, Henry left at ten o'clock in the morning to be at a sporting event the following
    day, telling the employees who were finishing the year-end balancing to call a
    computer support company in South Dakota. Rheta Griffith, the Executive Vice
    President and a member of the Board, admitted that she had probably said a man was
    needed at the Bank, because so few men worked there. Finally, Simpson testified that
    Griffith had told her that men in Clarendon need to be paid more than women.
    The jury returned a verdict in favor Simpson on her Equal Pay Claim, finding
    that (1) Simpson and Henry were employed by Merchants & Planters Bank in jobs
    requiring substantially equal skill, effort and responsibility, (2) the two jobs were
    performed under similar working conditions, (3) Simpson was paid a lower wage than
    a member of the opposite sex doing equal work, (4) the difference in pay was not the
    result of factors other than sex, (5) the amount of Simpson's damages was $35,664.37,
    and (6) Merchants & Planters Bank's conduct with respect to Simpson's pay was
    willful. The Bank appeals.
    II.   DISCUSSION
    A.     Prima Facie Case of Wage Discrimination
    We review de novo the district court's denial of judgment as a matter of law,
    which should be granted if there is not sufficient evidence to support the jury's verdict,
    viewing all evidence in the light most favorable to the verdict. Jones, 
    285 F.3d at 712
    .
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    The Bank argues that Simpson's and Henry's jobs are not the same; therefore,
    they are not equal. Much of the precedent regarding unequal jobs involves comparing
    two jobs with a common core of duties, but with the higher-paid job having additional
    duties. See, e.g., Horn v. Univ. of Minn., 
    362 F.3d 1042
    , 1045-46 (8th Cir. 2004)
    (finding that the jobs of two hockey coaches were not equal because the female
    hockey coach served as a public representative to the hockey team, in addition to the
    administrative duties she had in common with the male hockey coach), McLaughlin
    v. Esselte Pendaflex Corp., 
    50 F.3d 507
    , 513-14 (8th Cir. 1995) (finding two jobs not
    equal because male employee performed other tasks in addition to the tasks female
    employee had previously performed), Krenik v. County of Le Sueur, 
    47 F.3d 953
    , 961
    (8th Cir. 1995) (holding two maintenance employees' jobs not equal where male
    maintenance engineer had supervisory duties in addition to the job functions that
    female assistant performed). Simpson did not attempt to prove that she and Henry had
    the same job and that he had no additional duties. She attempted to prove the jobs
    were equal, which is the relevant inquiry.
    We have previously determined that "jobs need not be identical to be considered
    'equal' under the EPA; they need only be substantially equal." Hunt v. Neb. Pub.
    Power Dist., 
    282 F.3d 1021
    , 1029 (8th Cir. 2002). The inquiry as to whether two jobs
    are equal is a factual one:
    Whether two jobs entail equal skill, equal effort, or equal responsibility
    requires a practical judgment on the basis of all the facts and
    circumstances of a particular case. Skill includes such considerations as
    experience, training, education, and ability. Effort refers to the physical
    or mental exertion necessary to the performance of a job. Responsibility
    concerns the degree of accountability required in performing a job.
    Application of the Equal Pay Act depends not on job titles or
    classifications but on the actual requirements and performance of the job.
    In all cases, therefore, a court must compare the jobs in question in light
    of the full factual situation and the broad remedial purpose of the statute.
    -7-
    EEOC v. Universal Underwriters Ins. Co., 
    653 F.2d 1243
    , 1245 (8th Cir. 1981) (citing
    
    29 C.F.R. §§ 800.114
    -.132). Thus, whether Simpson and Henry had equal jobs is a
    factual inquiry, dependent on their job requirements, not their job titles, and anchored
    around skill, effort, and responsibility.
    In evaluating the first factor, the skill required to perform the jobs, a reasonable
    jury could have concluded that Simpson and Henry possessed the same experience,
    training, education, and ability to perform their jobs. Simpson had worked at the Bank
    longer and, thus, had more practical experience. The two had attended the same
    banking schools and computer training. Further, Simpson's sole written evaluation
    was as positive as Henry's written performance evaluation, so their abilities were the
    same. Henry's college degree is not relevant to determining the skill required to
    perform the jobs, since all the skills needed at the Bank were on-the-job acquired. See
    Miranda v. B & B Cash Grocery Store, Inc., 
    975 F.2d 1518
    , 1533 (11th Cir. 1992)
    (explaining that in establishing a prima facie case under the Equal Pay Act, "only the
    skills and qualifications actually needed to perform the jobs are considered").
    Likewise, on the second factor, effort, a reasonable jury could have determined
    that Simpson's and Henry's jobs required the same effort. Both were required to apply
    the same base of banking knowledge to their jobs. Further, both were required to
    work after-hours and both represented the Bank at public functions.
    Finally, a reasonable jury could have determined that Simpson's and Henry's
    jobs required the same responsibility. Simpson's degree of accountability was very
    high. She prepared reports which were signed by Board members and submitted to
    federal and state agencies, including a voluntary self-audit. She had to interpret FDIC
    regulations, and no one checked her work. Henry's degree of accountability was
    similar, because he performed the Bank's internal audits.
    -8-
    Therefore, a reasonable jury could have determined that Simpson was paid less
    than Henry "for equal work on jobs the performance of which requires equal skill,
    effort, and responsibility." 
    29 U.S.C. § 206
    (d)(1).
    B.     Bank's Affirmative Defense – Pay Differential Based on
    Factors other than Sex
    As an affirmative defense, the Bank asserts that it proved that the pay
    differential between Simpson and Henry was based on factors other than sex: Henry's
    college degree, work after hours and on weekends for the computer system, activity
    in the community, and efforts by other Banks to recruit Henry. The jury rejected the
    Bank's contention, so we will disturb the verdict only if no reasonable jury could have
    returned a verdict for the non-moving party, viewing all evidence in the light most
    favorable to the verdict. Jones, 
    285 F.3d at 712
    . "'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.'" Lawrence v. CNF Transp., Inc., 
    340 F.3d 486
    , 493
    (8th Cir. 2003) (quoting Taylor v. White, 
    321 F.3d 710
    , 716 (8th Cir. 2003)).
    A reasonable jury could have rejected Henry's college degree as a reason for the
    pay differential, since all the skills needed at the Bank were on-the-job acquired. See,
    Miranda, 
    975 F.2d at 1533
     (11th Cir. 1992) ("only the skills and qualifications
    actually needed to perform the jobs are considered"). The after-hours work could also
    have been rejected, since Simpson worked late as well, even while in the hospital.
    The jury may have also rejected the Bank's reasoning that Henry's computer support
    justified his greater pay, since Simpson had received more computer training and
    Henry's pay exceeded Simpson's before the computers were installed. Though Henry
    was active in the community, Simpson was also active in the community and
    represented the Bank in at least one meeting with a Senator. Finally, while Henry may
    have been recruited by other Banks, the jury may have found that the recruitment did
    -9-
    not excuse the Bank's duty to pay Simpson on an equal basis. Exterior salary
    pressures have been rejected as reasons for pay differential by other circuits, and the
    jury here was not unreasonable in doing so also. See Irby v. Bittick, 
    44 F.3d 949
    , 955
    (11th Cir. 1995) ("if prior salary alone were a justification, the exception would
    swallow up the rule and inequality in pay among genders would be perpetuated"
    (quotation omitted)).
    C.     Willfulness and the Award of Liquidated Damages
    The jury determined that the Bank's actions were willful. The district court
    used this finding to award liquidated damages to Simpson. The Bank contends that
    this was error because (1) there was insufficient evidence at trial to support the verdict
    of willfulness and (2) the Bank established that it had acted in good faith and had
    reasonable grounds for believing that it was not violating the Equal Pay Act.
    The Equal Pay Act's penalties include liquidated damages in an amount equal
    to actual damages. 
    29 U.S.C. § 216
    (b). However, an employer can avoid paying
    some or all of these liquidated damages if it can prove that it acted in good faith.
    Jarrett v. ERC Props., Inc., 
    211 F.3d 1078
    , 1083 (8th Cir. 2000) (citing 
    29 U.S.C. § 260
    ). In addition, if an employee can show that the employer willfully violated the
    Equal Pay Act, the statute of limitations is three years, rather than the presumptive
    two-year statute of limitations, which could lengthen the time period for which
    damages can be awarded. 
    29 U.S.C. § 255
    (a). A finding of willfulness requires
    behavior on the part of the employer that exceeds negligence; the employer must act
    knowingly or with reckless disregard of whether the contested conduct was prohibited.
    See EEOC v. Cherry-Burrell, Inc., 
    35 F.3d 356
    , 364 (8th Cir. 1994) (citing
    McLaughlin v. Richland Shoe Co., 
    486 U.S. 128
     (1988)).
    At trial, Simpson introduced evidence that a reasonable jury could have used
    to support its finding that the Bank knew or showed reckless disregard for the fact that
    -10-
    its conduct was prohibited by the Equal Pay Act. First, Sharp, the Bank's counsel, was
    on the Board, which decided the salary of each employee. A reasonable jury could
    have concluded that Sharp, as an attorney, would been aware of the Equal Pay Act.
    Mere awareness of this law, standing alone, would not have been a willful violation
    of the Equal Pay Act. 
    Id.
    However, Simpson introduced other circumstantial evidence, which would
    enable a reasonable jury to determine that the Bank's violation of the Equal Pay Act
    was willful. Sharp was responsible for the Bank's personnel policy, which treated
    situations for male and female employees differently. In addition, the Executive Vice
    President, another Board member, said men were needed at the Bank and that men in
    Clarendon needed to be paid more than women. Viewing all the evidence in the light
    most favorable to the jury's finding, we conclude that a reasonable jury could have
    found that the Bank committed a willful violation of the Equal Pay Act.
    The Bank failed to meet its burden of proving a good faith defense, particularly
    since Simpson proved willfulness. Jarrett, 
    211 F.3d at 1084
     (noting employer's
    difficulty in mounting a good-faith defense where the same employer was found to
    have willfully violated provisions of the Fair Labor Standards Act). Therefore, we
    affirm the district court's award of liquidated damages.2
    D.     Attorney's Fees
    The Bank argues that the district court abused its discretion in not further
    reducing the amount of attorney's fees awarded to Simpson. The Supreme Court has
    2
    The Bank points out that the district court did not use the willfulness finding
    to extend the ordinary two-year statute of limitations to three years, as provided by 
    29 U.S.C. § 255
    (a). This issue was not fully briefed by the parties and the amount of
    damages, and the issue of whether the correct statute of limitations was imposed, is
    not properly before us.
    -11-
    provided guidelines for determining the amount of attorney's fees where Congress has
    authorized awarding them to a prevailing party. Hensley v. Eckerhart, 
    461 U.S. 424
    (1983). First, the district court should determine "the number of hours reasonably
    expended on the litigation multiplied by a reasonable hourly rate." 
    Id. at 433
    . If the
    prevailing party did not achieve success on all claims, this fee may be reduced, taking
    into account the most critical factor, "the degree of success obtained," with discretion
    residing in the district court. 
    Id. at 436-37
    .
    The Bank does not contest the district court's initial calculation of a reasonable
    fee, but argues that the twenty-percent reduction was inappropriate because the relief
    sought was much larger than the results obtained. The Bank suggests that the
    percentage of attorney's fees awarded should reflect the percentage of relief obtained
    versus that sought. We disagree. Though we have imposed a pro rata reduction in
    one extreme instance, where the attorney had unreasonably run up $488,960.25 in fees
    in comparison to $20,832 in compensatory damages requested in closing arguments,
    we were sure to emphasize that a pro rata reduction would not normally be
    appropriate. Gumbhir v. Curators of the Univ. of Mo., 
    157 F.3d 1141
    , 1146-47 (8th
    Cir. 1998). We have, indeed, explicitly rejected a "rule of proportionality" in civil
    rights cases because tying the attorney's fees to the amount awarded would discourage
    litigants with small amounts of damages from pursuing a civil rights claim in court.
    Jackson v. Crews, 
    873 F.2d 1105
    , 1110 (8th Cir. 1989).
    We review the district court's award of attorney's fees for abuse of discretion.
    Hensley, 
    461 U.S. at 437
    . Most of the other claims that Simpson brought were either
    voluntarily dismissed or were disposed of on summary judgment. The claims that
    proceeded to trial were for constructive discharge (based on sex and based on
    disability) and for Equal Pay Act violations. We cannot say that the twenty-percent
    reduction was an abuse of discretion, and we therefore, affirm.
    -12-
    III.   CONCLUSION
    For the foregoing reasons, we affirm the district court's denial of judgment as
    a matter of law and its award of liquidated damages and attorney's fees.
    ______________________________
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