Brinkley v. Harbour Recreation Club

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ELIZABETH K. BRINKLEY,
Plaintiff-Appellant,
v. No. 98-2035
HARBOUR RECREATION CLUB,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of North Carolina, at New Bern.
Terrence W. Boyle, Chief District Judge.
(CA-97-84-4-1-BO)
Argued: January 25, 1999
Decided: June 14, 1999
Before WILKINSON, Chief Judge, and WILLIAMS
and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by published opinion. Judge Williams wrote the majority
opinion, in which Chief Judge Wilkinson joined. Judge Motz wrote
a dissenting opinion.
_________________________________________________________________
COUNSEL
ARGUED: William Joseph Austin, Jr., WARD & SMITH, P.A., New
Bern, North Carolina, for Appellant. Sharon L. McConnell, KIL-
PATRICK STOCKTON, L.L.P., Raleigh, North Carolina, for Appel-
lee. ON BRIEF: Carrie D. Storer, KILPATRICK STOCKTON,
L.L.P., Raleigh, North Carolina, for Appellee.
_________________________________________________________________
OPINION
WILLIAMS, Circuit Judge:
Elizabeth Brinkley appeals the grant of summary judgment in favor
of her former employer, Harbour Recreation Club (HRC), on her Title
VII, 42 U.S.C.A. § 2000e-2(a)(1) (West 1994), and Equal Pay Act, 29
U.S.C.A. § 206(d) (West 1998), claims. Brinkley, who was general
manager (GM) of HRC, argues that she created a genuine issue of
material fact on her Title VII claim when she put forth evidence that
demonstrated that some of her superiors on the HRC Board of Trust-
ees (Board) favored her termination because they lamented the loss
of a particular greens superintendent who had publicly stated that he
was not pleased to work for a woman. Brinkley also asserts that the
district court made two errors in addressing her Equal Pay Act claim.
First, she alleges that the district court based its summary judgment
ruling on an affirmative defense that was improperly raised. Second,
she contends that the district court erred when it granted summary
judgment to HRC on the basis that HRC had established the "factor-
other-than-sex" defense, 29 U.S.C.A. § 206(d)(1)(iv), because HRC
had produced insufficient evidence that such a factor motivated
HRC's decision to pay her male successor a higher salary. Because
we determine that summary judgment was appropriate, we affirm.1
I.
These facts, drawn from Brinkley's pleadings, affidavits, and depo-
sitions, are expressed in the light most favorable to her as the non-
moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986) (stating that an appellate court reviewing a grant of summary
judgment is required to view the facts in the light most favorable to
the non-moving party and must draw all reasonable inferences there-
from).
In October 1993, a group of homeowners in the Fairfield Harbour
development in New Bern, North Carolina, having purchased their
_________________________________________________________________
1 Our disposition makes it unnecessary for us to address Brinkley's
contention that her common law claim for breach of her employment
contract should be reinstated. See 28 U.S.C.A. § 1367(c)(3) (West 1993).
2
residential community's country club during Chapter 11 bankruptcy
proceedings, organized HRC as a member-owned club. The officers
of the HRC Board hired Brinkley to be the club's business manager
on October 7, 1993. Brinkley possessed a bachelor's degree in busi-
ness administration from Ithaca College, but at the time she took the
position as HRC's business manager, she had no previous country
club experience.2 Brinkley received a starting salary of $30,000. Her
duties as business manager included: setting up and supervising the
business office; organizing and maintaining membership records;
coordinating insurance coverages; implementing contracts; maintain-
ing corporate documents such as bylaws; assisting the Board in estab-
lishing budgets; supervising accounting, record-keeping, and
reporting procedures; communicating with members; and selecting
and maintaining a computerized point-of-sale system. 3
In January 1995, after a vote by the HRC Board, Brinkley was pro-
moted to the position of GM of HRC. Shortly before they voted on
promoting Brinkley, members of the Board discussed during a meet-
ing with the club staff the possibility of promoting Brinkley to GM.
Board members asked the staff whether anyone would have difficulty
working with Brinkley in that capacity. One staff member, Dick Bran-
del, the greens superintendent, stated that he wasn't sure he could
work for a woman.
_________________________________________________________________
2 According to her application for employment, Brinkley had previ-
ously worked as the corporate finance manager at an electrical supply
company in New Bern, North Carolina from 1989 - 1993 and received
an annual salary of $26,000. Prior to 1989, Brinkley resided in Massa-
chusetts, where she was the owner/manager/treasurer of a restaurant in
Salisbury from 1976 - 1989 and reported a salary of $30,000. While she
resided in Massachusetts, Brinkley also held a position as an Administra-
tive Assistant at the Newburyport YMCA from 1988 - 1989 and was
compensated at a rate of $10.00 per hour. From 1976 - 1977, Brinkley
was financial manager for the Northeast Institute of Alcohol Studies in
Peabody, Massachusetts and was paid $10.00 per hour. From 1972 -
1976, Brinkley performed a series of finance-oriented jobs in upstate
New York, each paying $10.00 per hour.
3 At the time Brinkley was HRC's Business Manager there was no GM.
Brinkley continued to perform these duties after she was promoted; no
new Business Manager was hired. It is undisputed that Brinkley was a
highly competent business manager and performed these functions well.
3
HRC and Brinkley entered into an employment contract prepared
by Brinkley on February 16, 1995. The initial term of the contract was
three years and provided that her starting salary was $50,000.4 Brink-
ley was eligible for cost-of-living increases as well as merit raises
over the term of the contract.5 Further, the contract provided that a
two-thirds majority of the Board could vote to terminate Brinkley
without cause. In the event of such an occurrence, the Board would
be obligated to pay Brinkley for the remainder of the contract term.
If, however, a two-thirds majority of the Board determined that Brink-
ley was guilty of fraud and abuse in the performance of her duties or
of gross negligence, the employment contract could be terminated
immediately.
At the end of Brinkley's first year as GM, the club had lost
$166,111. At the same time, the Board became concerned about the
poor working relationship that had developed between Brinkley and
Brandel, the greens superintendent. Brinkley and Brandel became
embroiled in a dispute regarding expenses Brandel had incurred.
Brinkley concluded that Brandel had incurred unauthorized personal
expenses and requested that he reimburse HRC. Brandel refused to
reimburse HRC; Brinkley considered the refusal to be an act of insub-
ordination and requested that the Board support Brandel's termina-
tion. A majority of the Board did not support Brandel's termination.
Instead, the Board altered the reporting relationship between Brandel
and Brinkley. After the Board's vote, Brinkley and Brandel were
instructed that henceforth Brandel was to report to the golf pro rather
than to Brinkley. Additional concerns over her job performance arose
among members of the Board when Brinkley led a membership forum
meeting in February 1996 during which the Board members con-
cluded that Brinkley had made inappropriate comments about HRC's
management and her relationship with the Board.
Dick Brandel eventually resigned from HRC in May of 1996.
Later, Brinkley was informed that "you did not win with Dick Bran-
del leaving." (J.A. at 393.) Also in May, a Board member circulated
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4 Brinkley proposed the $50,000 figure and the Board agreed to that
amount.
5 Over the course of her employment as GM, Brinkley never received
a raise.
4
a memorandum proposing that golf operations be made a separate
autonomous operation headed by the director of golf and suggesting
that Brinkley be demoted back to the position of business manager.
Although this plan was never formally implemented, on June 5, 1996,
Brinkley was instructed "not to micromanage golf." (J.A. at 393-94.)
A few days later, during a discussion with the golf pro, Brinkley
expressed her anger with the fact that the golf pro had been communi-
cating directly with the Board. Brinkley complained that this behavior
was undermining her authority as GM. At the conclusion of their
meeting Brinkley said, "If this [is] the way you're going to do it, you
can sink or swim on your own." (J.A. at 37.)
On June 11, 1996, the Board had a meeting with the golf pro. After
the meeting, representatives of the Board approached Brinkley and
told her that they would have to abide by her decision to relinquish
management of the golf operation on a temporary basis, but that the
Board wanted a cohesive management team and was disturbed by the
division of management. After considering their options, the Board
informed Brinkley that her employment contract for the GM position
would not be renewed as a result of her decision to give up managing
HRC's golf operation. On July 9, 1996, the Board proposed that
Brinkley continue at HRC as restaurant manager. On July 11, 1996,
Brinkley informed that Board that she would not accept the position
of restaurant manager.
Nevertheless, the Board decided to hire someone new to take over
management of HRC. After an interview on July 13, 1996, James Pas-
chal, who had eleven years of country club management experience,
was hired to take on the position of chief operating officer6 (COO) on
a temporary, ninety-day basis while the Board decided how to pro-
ceed. On July 19, 1996, Paschal signed a ninety-day contract provid-
ing that his salary would be $1,200 per week plus free meal privileges.7
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6 The position was renamed to avoid confusion with Brinkley, who was
still serving as the GM at the time Paschal started at HRC, and to reflect
the current trend in country club management.
7 On an annualized basis, the salary of $1,200 per week would be
$62,400 ($12,400 more than Brinkley was earning as GM). Additionally,
although Brinkley received discounted meals at the club, she did not
receive free meals as provided to Paschal.
5
This salary represented a mutually agreeable temporary arrangement
based upon what the Board felt it could afford.
Prior to the termination of his ninety-day contract, the Board
decided to hire Paschal as the permanent COO. On September 1,
1996, Paschal and HRC entered into a contract that provided for a sal-
ary of $75,400 per year. Under the contract, Paschal's free meal privi-
leges continued. Additionally, the contract provided that Paschal
would be compensated in the amount of $300 per month as an auto-
mobile allowance. The Board determined that $75,400 would be an
appropriate salary on the basis of Paschal's prior salary history and
information it sought from the Country Club Managers Association
regarding the average salary figures at similar-sized clubs. At about
the same time, on August 30, 1996, Brinkley took three weeks of
vacation at the direction of Paschal. Upon her return, on September
23, 1996, the Board terminated Brinkley's employment contract for
cause. The Board determined by a unanimous vote that Brinkley had
been grossly negligent in the performance of her duties. Specifically,
the Board noted that Brinkley unilaterally had terminated her manage-
ment of the golf operation, had exercised poor judgment handling two
problematic contracts, had failed to consult with the Board over per-
sonnel matters, had promoted an unqualified employee to the position
of restaurant manager, had given misinformation regarding a capital
equipment purchase, and had publicly aired her opinion that she did
not agree with Board policy to HRC members.
II.
As a result of the foregoing events, Brinkley filed a written charge
with the EEOC claiming that she had been demoted, terminated, and
otherwise discriminated against on the basis of sex. After receiving
a right-to-sue letter, Brinkley filed suit in the United States District
Court for the Eastern District of North Carolina. In her complaint,
Brinkley made three claims for relief. First, Brinkley claimed that her
termination from HRC was the result of discrimination on the basis
of sex, a violation of Title VII. 42 U.S.C.A. § 2000e-2(a)(1) (West
1994). In her second claim, Brinkley alleged that HRC hired a male
as COO to perform identical duties to those that she had performed
as GM and paid him a higher salary in violation of the Equal Pay Act.
29 U.S.C.A. § 206(d) (West 1998). Finally, Brinkley averred that her
6
termination was a result of HRC's breach of her employment con-
tract.
After undertaking discovery, the parties filed cross-motions for
summary judgment. The district court denied Brinkley's motion for
summary judgment and granted HRC's. As a result, the district court
also dismissed without prejudice the breach of contract claim over
which it had taken supplemental jurisdiction. In granting HRC's sum-
mary judgment motion, the district court reasoned that Brinkley had
failed to establish a prima facie case of discrimination under Title VII.
Specifically, the district court held that Brinkley had not met her bur-
den of proving that she was replaced by a man with comparable quali-
fications because HRC had established that Paschal had significant
prior experience in country club management lacked by Brinkley.
Additionally, the district court concluded that Brinkley had not been
performing her job as GM at a level that met the Board's expecta-
tions. The district court also concluded that summary judgment was
appropriate on Brinkley's Equal Pay Act claim because HRC had
proven an affirmative defense under the Act, i.e., that the pay differ-
ential was based upon a "factor other than sex." Specifically, the dis-
trict court determined that HRC had presented adequate evidence to
show that Paschal's superior experience and salary history, neither a
factor related to sex, accounted for the pay differential between
Brinkley and Paschal. Brinkley filed a timely notice of appeal.
On appeal, Brinkley makes three primary arguments. First, Brink-
ley asserts that the district court erred when it concluded that she had
not made out a prima facie case on her Title VII claim. Next, she
claims that the district court erred when it considered HRC's affirma-
tive defense -- that the pay differential between Paschal and Brinkley
was based upon a "factor other than sex" -- because that affirmative
defense was not properly raised in HRC's answer, but rather was first
raised in HRC's summary judgment motion in violation of Rule 8 of
the Federal Rules of Civil Procedure. In the alternative, Brinkley
maintains that the district court erred in granting summary judgment
to HRC on the Equal Pay Act claim because, even if the affirmative
defense was properly raised, the evidence put forth by HRC was
insufficient to establish the defense by a preponderance of the evi-
dence.
7
We review de novo the district court's decision to grant HRC sum-
mary judgment. See Higgins v. E.I. DuPont de Nemours & Co., 863
F.2d 1162, 1167 (4th Cir. 1988). Summary judgment is appropriate
only "if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact." Fed. R. Civ. P. 56;
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In deciding
whether there is a genuine issue of material fact, the evidence of the
non-moving party is to be believed and all justifiable inferences must
be drawn in her favor. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986). Guided by these principles, we address Brinkley's
arguments that summary judgment was improper seriatim.
III.
Brinkley first contends that the district court erred when it granted
summary judgment on her Title VII claim. Brinkley's claim in this
regard is two-fold. First, she asserts that the district court erred
because she had produced sufficient direct and indirect evidence that
discrimination led to her demotion and eventual termination from the
GM position to establish a prima facie case without applying the
McDonnell Douglas presumption. Second, Brinkley asserts that even
if she had not produced sufficient direct and indirect evidence of dis-
crimination, then she produced circumstantial evidence sufficient to
satisfy the McDonnell Douglas proof scheme. See McDonnell Doug-
las Corp. v. Green, 411 U.S. 792 (1973). Upon those two bases,
Brinkley argues that the district court erred in ruling that she had not
established a prima facie case.
A.
There are two avenues of proof by which an aggrieved employee
can prove a Title VII violation. See Burns v. AAF-McQuay, Inc., 96
F.3d 728, 731 (4th Cir. 1996). First, an employee may utilize "ordi-
nary principles of proof using any direct or indirect evidence relevant
to and sufficiently probative of the issue." Tuck v. Henkel Corp., 973
F.2d 371, 374 (4th Cir. 1992). To overcome a summary judgment
motion based upon this method of proof, the plaintiff "must produce
direct evidence of a stated purpose to discriminate and/or [indirect]
evidence of sufficient probative force to reflect a genuine issue of
8
material fact." Goldberg v. Green & Co., 836 F.2d 845, 848 (4th Cir.
1988). "What is required is evidence of conduct or statements that
both reflect directly the alleged discriminatory attitude and that bear
directly on the contested employment decision." Fuller v. Phipps, 67
F.3d 1137, 1142 (4th Cir. 1995). If such evidence is lacking, the
plaintiff may nevertheless proceed under McDonnell Douglas. See
Tuck, 973 F.2d at 374.
McDonnell Douglas first requires that the plaintiff establish a
prima facie case of discrimination by a preponderance of the evi-
dence. See McDonnell Douglas, 411 U.S. at 802. To establish a prima
facie case of discrimination under Title VII, Brinkley must show (1)
that she is a member of a protected class; (2) that she suffered an
adverse employment action; (3) that at the time of the adverse
employment action she was performing at a level that met her
employer's legitimate job expectations; and (4) that the position
remained open to or was filled by similarly qualified applicants out-
side the protected class. See St. Mary's Honor Center v. Hicks, 509
U.S. 502, 506-07 (1993); Karpel v. Inova Health Sys. Servs., 134 F.3d
1222, 1228 (4th Cir. 1998); Williams v. Cerberonics, Inc., 871 F.2d
452, 455 (4th Cir. 1989). Once the prima facie case is established, the
burden shifts to the employer to articulate a legitimate, nondiscrimi-
natory reason for the adverse employment action. See Texas Dep't of
Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). If the
employer meets its burden of production, the presumption of discrimi-
nation raised by the prima facie case is rebutted and "drops from the
case," id. at 255 n.10, and the plaintiff bears the ultimate burden of
proving that she has been the victim of discrimination, see St. Mary's
Honor Ctr., 509 U.S. at 507.
B.
Brinkley initially claims that she has put forth sufficient direct and
indirect evidence of discrimination to create a genuine issue of mate-
rial fact to survive summary judgment on her Title VII claim. She
points to several pieces of evidence in support of this assertion. First,
Brinkley notes that prior to her promotion to the GM position, Bran-
del, the greens superintendent, a future subordinate, announced that
he would have difficulty working for a woman. Next, she asserts that
Brandel was a very popular and highly valued employee among male
9
members of the Board who eventually made the decision to terminate
her. Further, she alleges that because Brandel did not function well
under female management, the Board reorganized the reporting rela-
tionships so that Brandel would report to the male golf pro. Brinkley
also claims that several male members of the Board found her to be
blame-worthy for Brandel's eventual resignation from HRC. Brinkley
additionally points to statements in an affidavit from a former club
treasurer that indicate that the treasurer believed that a specific male
member of the Board had difficulty accepting women's views if they
differed from his own. Finally, Brinkley asserts that her replacement,
Paschal, made sexually suggestive comments about another female
employee in her presence and also made several stern warnings that
Brinkley's job was in jeopardy.8
The evidence Brinkley catalogs is not sufficiently probative to raise
a genuine issue of material fact on the issue of whether the Board har-
bored discriminatory animus that resulted in Brinkley's demotion and
termination. To survive summary judgment on the basis of direct and
indirect evidence, Brinkley must produce evidence that clearly indi-
cates a discriminatory attitude at the workplace and must illustrate a
nexus between that negative attitude and the employment action. See
Fuller, 67 F.3d at 1142; EEOC v. Clay Printing, 955 F.2d 936, 942
(4th Cir. 1992). In this case, Brinkley has produced a few isolated
statements indicating sexist attitudes at HRC, but utterly fails to con-
nect any of the incidents with her eventual demotion and termination.
Certainly, Brinkley's evidence that Brandel made a statement that
he could not work for a woman is an example of a derogatory com-
ment uttered by a coworker. Derogatory remarks may in some
instances constitute direct evidence of discrimination, see O'Connor
v. Consolidated Coin Caterers Corp., 56 F.3d 542, 548 (4th Cir.
1995), rev'd in part on other grounds, 517 U.S. 308 (1996), but "Title
VII was not designed to create a federal remedy for all offensive lan-
guage . . . in the workplace." Hopkins v. Baltimore Gas & Elec., 77
F.3d 745, 754 (4th Cir. 1996). Thus, to prove discriminatory animus,
_________________________________________________________________
8 Due to Brinkley's employment contract and efforts to keep Brinkley
at HRC in an alternate position or reach a financial settlement with her,
Brinkley's replacement, Paschal, was hired approximately two months
prior to her termination.
10
the derogatory remark cannot be stray or isolated and "[u]nless the
remarks upon which plaintiff relies were related to the employment
decision in question, they cannot be evidence of[discrimination]."
McCarthy v. Kemper Life Ins. Cos., 924 F.2d 683, 686 (7th Cir.
1991). Here, the remark was an isolated event; the record reflects that
Brandel uttered it only once. Further, it is plain that there was no
nexus between the remark and Brinkley's eventual termination from
HRC. Brandel's statement was made at a meeting prior to Brinkley's
promotion to GM. It is not a reasonable inference from the evidence
that the derogatory comment caused Brinkley's termination, when in
fact the Board ignored the remark and promoted Brinkley shortly after
the comment was made. Brinkley was not terminated for over eigh-
teen months after the offensive utterance. Brinkley makes three other
factual assertions regarding Brandel that are also insufficient to create
a genuine issue of material fact: (1) that male members of the Board
highly valued Brandel's professional services; (2) that reporting rela-
tionships were reorganized so Brandel could report to a man; and (3)
that several male members of the Board blamed Brinkley for Bran-
del's eventual resignation from HRC. The evidence contained in the
record, however, belies Brinkley's claims that the Board's attitude
was related to her sex. Brinkley and Brandel were having a dispute
and were not working well together. The record indisputably shows
that the Board's revamping of the reporting relationship between
Brinkley and Brandel was a result of the Board's desire to avoid fur-
ther conflict. Although Brinkley makes bald assertions to the con-
trary, there is simply no evidence to support her contentions that the
Board acted on the basis of her sex. Finally, Brinkley's claim that cer-
tain male members of the Board valued Brandel's services highly and
held Brinkley accountable for his resignation, simply is not probative
of the issue of discriminatory animus.
Additionally, Paschal's inappropriate statement about the physical
attributes of a waitress is not relevant evidence of discriminatory ani-
mus leading to Brinkley's termination, because the decision to demote
Brinkley had already been made at the time Paschal began work at
HRC. At that time, Brinkley had already been offered, and had
rejected, the alternative position of restaurant manager. Although
Brinkley was still at the club and still technically the GM while she
and the Board were negotiating possible job alternatives or a potential
financial settlement, the Board's decision-making was completed
11
before Paschal arrived. The record does not support the conclusion
that Paschal acted in a manner that affected the Board's eventual deci-
sion to terminate Brinkley.
Finally, the treasurer's statement that a certain male member of the
Board was not receptive to women's views is also inadequate direct
evidence to show discriminatory animus against Brinkley. The trea-
surer's affidavit merely states her personal opinion in a conclusory
fashion. The affidavit cites no specific factual examples supporting
her opinion that male members of the Board discredited women's
ideas.
In sum, none of the evidence Brinkley lists, taken singularly or col-
lectively, is sufficient to raise a genuine issue of material fact as direct
or indirect proof of discrimination. Although Brinkley points to some
unpleasant occurrences during her tenure at HRC, the evidence she
has adduced lacks a sufficient connection to the employment decision
to be probative on whether her demotion and termination were the
result of discrimination.
C.
Next, Brinkley claims that the district court erred when it con-
cluded that she had not proven her prima facie case under McDonnell
Douglas. Here, the prima facie case contains four elements: (1) that
Brinkley is a member of a protected class; (2) that she suffered an
adverse employment action; (3) that at the time of the adverse
employment action she was performing at a level that met her
employer's legitimate job expectations; and (4) that the position
remained open to or was filled by similarly qualified applicants from
outside the protected class. See St. Mary's Honor Center, 509 U.S. at
506-07; Karpel, 134 F.3d at 1228; Williams, 871 F.2d at 455. There
is no dispute that Brinkley established the first two elements of the
prima facie case. Thus, we focus our review of the district court's
grant of summary judgment to HRC on the third and fourth elements
of Brinkley's prima facie case.
Regarding the third element of the prima facie case, whether Brink-
ley had been performing her job at a level that met her employer's
expectations, the district court initially noted that there was conflict-
12
ing evidence presented regarding "how well Brinkley functioned in
her role as [GM]." (J.A. at 503.) Ultimately, however, the district
court concluded that "Brinkley was not performing her duties in the
manner that HRC expected and this caused conflict between employer
and employee." (J.A. at 506.) After a thorough review of the record,
we conclude that the district court's observation and ultimate conclu-
sion that Brinkley was not meeting the Board's expectations was cor-
rect; Brinkley did not adduce sufficient evidence to raise a genuine
issue of material fact on this issue.
There is no doubt that the Board was pleased with Brinkley's per-
formance as business manager prior to her promotion to GM. In depo-
sition testimony, several Board members praised Brinkley's
performance as business manager. A performance evaluation of
Brinkley's work as business manager was conducted in December of
1994 and she received an overall rating of "B+." Brinkley's good
work as business manager is further verified by the Board's decision
to give her the opportunity to become GM of HRC. Brinkley argues
that she performed many of the same functions initially assigned to
her while she was business manager after she was promoted to GM,
and that therefore, because the Board was satisfied with her perfor-
mance as business manager, she has raised a genuine issue of material
fact on the issue of the Board's satisfaction with her overall perfor-
mance. Brinkley's argument, however, misses the mark.
After Brinkley was promoted to GM, the Board continued to be
satisfied with her performance in the business office, and indeed was
satisfied with that portion of her job performance until she was termi-
nated. Unfortunately, work in the business office no longer accounted
for Brinkley's entire job, and the Board was concerned with her per-
formance in other areas. The record conclusively demonstrates that,
beginning in December of 1995, the Board determined that Brinkley
needed improvement in some important job areas. Specifically, in
December of 1995, Brinkley's evaluation noted that she most needed
improvement in five areas. Two of the five areas in which the Board
noted a need for improvement involved relationship-building skills.
The Board concluded that she needed improvement in developing
"[w]orking relationship[s] with department managers to form a cohe-
sive management team." (J.A. at 408.) The evaluation also noted that
13
she needed to concentrate on improving her working relationships
with committee members.9
Each of the three extensive deposition excerpts of Board members
indicate the same thing: the Board's concern with Brinkley's lack of
a team-building management style. The Board was not only disturbed
by the degeneration of Brinkley's relationship with Brandel, but also
by the fact that Brinkley was unable to mend fences and return to
working productively with him after the Board had settled their dis-
pute.
The Board's continuing concern over Brinkley's team-building
skills reached a peak when Brinkley became angry at the golf pro for
circumventing her authority by reporting directly to the Board, and
she told him that he could "sink or swim on [his] own." (J.A. at 37.)
The Board concluded that not only had Brinkley given up on manag-
ing the golf operation at the club, one of her primary duties, but also
that she had done so in a way that irreparably damaged her relation-
ship with the golf pro. Representatives of the Board discussed the fact
that they were troubled by Brinkley's management style at great
length in her verbal evaluation conducted July 9, 1996, shortly before
Paschal was hired. The crux of the conversation during her verbal
evaluation was that the Board was displeased that Brinkley was not
able to form a cohesive management team, and that as a result they
thought Brinkley should no longer perform the duties of GM.
Thus, the overwhelming evidence supports the district court's con-
clusion that Brinkley had not been performing her job satisfactorily.
There is a long and well-documented pattern of rising levels of con-
cern among Board members over Brinkley's apparent inability to
bring together the different managers at the club to form a single
team. As a result of this undisputed evidence, summary judgment was
appropriate because Brinkley could not establish the third element of
her prima facie case.
_________________________________________________________________
9 The Board also noted that Brinkley needed improvement in the areas
of "[f]ollow-up and interim status reporting on matters in process;"
"[b]udget preparation procedures;" and"[d]ocumentation and implemen-
tation of operating procedures." (J.A. at 408.)
14
The district court also ruled that Brinkley had not been successful
in proving the fourth element of her prima facie case, that Paschal, her
replacement, possessed similar qualifications. The district court con-
cluded that "Paschal had superior qualifications for the position of
chief of operations of HRC. He had extensive prior experience in
country club management while [Brinkley] had no such experience
prior to her employment with HRC." (J.A. at 505.)
Here, too, the district court's conclusion was correct. It is undis-
puted that Paschal had eleven years of country club management
experience and that he previously had been the GM at two other coun-
try clubs. The two positions that Brinkley held at HRC were her first
exposure to country club employment. Brinkley argues, however, that
the district court should have assessed additional factors before con-
cluding that Brinkley and Paschal were not comparably qualified.
First, Brinkley notes that she completed her bachelor's degree in busi-
ness administration while Paschal had not completed his bachelor's
degree. Further, Brinkley points out that Paschal had been terminated
from a hotel manager position listed on his resume, while Brinkley's
employment history was completely favorable.
These additional differences between Brinkley and Paschal, how-
ever, do not lead to the conclusion that the two possessed substan-
tially similar qualifications. Instead, Brinkley further demonstrates the
contrast between herself and Paschal. Although HRC initially gave its
unproven business manager the opportunity to advance within the
company and try her hand as GM, when HRC became dissatisfied
with Brinkley's performance it sought a candidate with distinctly dif-
ferent credentials -- an extensive history of country club manage-
ment. Experience in the industry, including two prior GM positions,
constitutes a qualitatively different criterion upon which to base an
employee's selection. Cf. Causey v. Balog, 162 F.3d 795, 801 (4th
Cir. 1998) (noting that experience in the relevant field is a legitimate
basis upon which to differentiate employees). Thus, we agree with the
district court's conclusion that Brinkley and Paschal were not simi-
larly qualified for the position and that as a result Brinkley was unable
to establish her prima facie case under the McDonnell Douglas proof
scheme.
As a result of Brinkley's inability to establish either the third or the
fourth elements of her prima facie case, the district court did not err
15
in granting summary judgment to HRC on Brinkley's Title VII claim.
We note, however, that although helpful, the McDonnell Douglas
framework should not be applied in a "rigid, mechanized, or ritualis-
tic" manner. Furnco Constr. Corp. v. Waters , 438 U.S. 567, 577
(1978). Rather, the test is "merely a means to fine-tune the presenta-
tion of proof and, more importantly, to sharpen the focus on the ulti-
mate question -- whether the plaintiff successfully demonstrated that
the defendant intentionally discriminated against her." Ennis v.
National Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 59 (4th Cir.
1995). Although Brinkley may have adduced sufficient evidence from
which a reasonable juror could conclude that the Board had treated
her callously, such evidence is insufficient to support a Title VII
claim. Brinkley has utterly failed to meet her burden of demonstrating
that she was demoted and terminated because of sex.
IV.
Brinkley also challenges the district court's grant of summary judg-
ment on her Equal Pay Act claim. 29 U.S.C.A. § 206(d) (West 1998).
She does so on two grounds: (1) that the district court erred when it
considered HRC's affirmative defense that the pay differential
between Paschal and Brinkley was based upon a "factor other than
sex," 29 U.S.C.A. § 206(d)(1)(iv), because that affirmative defense
was not properly raised in HRC's answer, but rather was first raised
in HRC's summary judgment motion in violation of Rule 8 of the
Federal Rules of Civil Procedure; and (2) that the district court erred
in granting summary judgment to HRC on the basis that it had estab-
lished the "factor-other-than-sex" defense because evidence put forth
by HRC was insufficient to establish that affirmative defense at the
summary judgment stage of the proceedings. We address these con-
tentions in turn.
A.
Brinkley first asserts that HRC waived its affirmative defense that
the pay differential between Brinkley and Paschal was the result of
"any other factor other than sex," 29 U.S.C.A.§ 206(d)(1)(iv) (West
1998), when it did not raise that defense in its answer, but instead first
raised it in its motion for summary judgment. Because the defense
was not properly raised, Brinkley argues that it was error for the dis-
16
trict court to consider the defense. We conclude that Brinkley was not
unfairly surprised or prejudiced by HRC's late notice that it intended
to rely on the "factor-other-than-sex" defense. Therefore, we deter-
mine that the district court did not err when it considered the defense.
Federal Rule of Civil Procedure 8(c) provides, in pertinent part, as
follows: "In pleading to a preceding pleading, a party shall set forth
affirmatively . . . [any] matter constituting an avoidance or affirmative
defense." Fed. R. Civ. P. 8(c). Such defenses should be set forth in
"short and plain terms," Fed R. Civ. P. 8(b), and should be "simple,
concise, and direct," Fed. R. Civ. P. 8(e)(1). The parties agree that the
"factor-other-than-sex" defense to the Equal Pay Act is an affirmative
defense. See Brinkley-Obu v. Hughes Training, Inc., 36 F.3d 336, 344
(4th Cir. 1994). Therefore, under Rule 8(c), the defense should have
been raised in HRC's answer. HRC did not note its intention to rely
upon the defense in its answer.
Although it is indisputably the general rule that a party's failure to
raise an affirmative defense in the appropriate pleading results in
waiver, see 5 Charles Alan Wright & Arthur R. Miller, Federal Prac-
tice and Procedure § 1278 (1990), there is ample authority in this Cir-
cuit for the proposition that absent unfair surprise or prejudice to the
plaintiff, a defendant's affirmative defense is not waived when it is
first raised in a pre-trial dispositive motion, see Peterson v. Airline
Pilots Ass'n, 759 F.2d 1161, 1164 (4th Cir. 1985) (holding that
waiver is not automatic, but requires a showing of prejudice or unfair
surprise); see also American Recovery Corp. v. Computerized Ther-
mal Imaging, Inc., 96 F.3d 88, 96 (4th Cir. 1996) (evaluating preju-
dice to plaintiff when considering timeliness of affirmative defense of
arbitration); Nasim v. Warden, 42 F.3d 1472, 1475-76 (4th Cir.) (not-
ing that, in limited circumstances, affirmative defense of statute of
limitations need not be raised in answer if demonstrated conclusively
on the face of the complaint), vacated on other grounds, 64 F.3d 951(4th Cir. 1995) (en banc); Polsby v. Chase, 970 F.2d 1360, 1364 (4th
Cir. 1992) (noting that affirmative defenses may be pleaded in pre-
trial motions and that the district court did not abuse its discretion by
permitting defendant to raise an affirmative defense after the answer);
vacated and remanded on other grounds, 507 U.S. 1048 (1993). This
view is in accord with the vast majority of our sister circuits. See, e.g.,
Blaney v. United States, 34 F.3d 509, 512 (7th Cir. 1994) (stating that
17
an unpleaded untimeliness defense could be raised in motion to dis-
miss); Camarillo v. McCarthy, 998 F.2d 638, 639 (9th Cir. 1993)
(holding that an affirmative defense may be raised at summary judg-
ment absent prejudice to opposing party); Moore, Owen, Thomas &
Co. v. Coffey, 992 F.2d 1439, 1445 (6th Cir. 1993) (asserting that an
affirmative defense may be raised in response to summary judgment
motion); Kleinknecht v. Gettysburg College, 989 F.2d 1360, 1374 (3d
Cir. 1993) (noting that an affirmative defense may be raised at sum-
mary judgment absent prejudice); Ball Corp. v. Xidex Corp., 967 F.2d
1440, 1443-44 (10th Cir. 1992) (raising affirmative defense in sum-
mary judgment motion preserved defense for trial three months later).
But see Harris v. Secretary, U.S. Dep't of Veterans Affairs, 126 F.3d
339, 342 (D.C. Cir. 1997) (disagreeing with the majority approach
and holding that the approach alters the structure dictated by Rules
8(c) and 15(a) by relieving parties of the need to request amendment
and by promoting strategic behavior); Ashe v. Corley, 992 F.2d 540,
545 n.7 (5th Cir. 1993) (disposing of several affirmative defenses not
raised in the answer without evaluating prejudice to the plaintiff).
In this instance, the district court correctly concluded that Brinkley
was not unfairly surprised or prejudiced by HRC's delay in raising the
"factor-other-than-sex" defense. HRC had raised and litigated this
defense during the EEOC's consideration of the matter. Therefore,
Brinkley had fair warning that the defense was likely to arise again
in the district court. See American Recovery Corp., 96 F.3d at 96
(finding no prejudice where plaintiff was on notice of defendant's
plan to pursue arbitration prior to answer even though defendant
failed to raise it in answer). Further, Brinkley had ample opportunity
to respond to HRC's summary judgment motion in which it initially
raised the "factor-other-than-sex" defense. As a result, we conclude
that Brinkley was not unfairly surprised or prejudiced by HRC's delay
in raising its affirmative defense; the district court did not err in con-
sidering it.
B.
Brinkley next claims that the district court erred when it ruled that
HRC had conclusively demonstrated that a "factor other than sex," 29
U.S.C.A. § 206(d)(1)(iv), motivated its decision to pay Paschal a
higher salary than Brinkley had been earning to perform the identical
18
job and granted summary judgment to HRC upon that basis. Brinkley
claims that insufficient evidence supported the district court's ruling
in HRC's favor and that genuine issues of material fact remained to
be resolved regarding whether HRC has paid Paschal a higher salary
based upon a factor other than sex.
1.
The Equal Pay Act provides:
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 establish-
ment 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 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: Provided, That an
employer who is paying a wage rate differential in violation
of this subsection shall not, in order to comply with the pro-
visions of this subsection, reduce the wage rate of any
employee.
29 U.S.C.A. § 206(d)(1).
As under Title VII, a plaintiff bringing a claim under the Equal Pay
Act must first establish a prima facie case of wage discrimination. To
establish a prima facie case, Brinkley must prove: (1) that her
employer has paid different wages to employees of opposite sexes; (2)
that said employees hold jobs that require equal skill, effort, and
responsibility; and (3) that such jobs are performed under similar
working conditions. See Corning Glass Works v. Brennan, 417 U.S.
188, 195 (1974). Plaintiff may use her successor in the position as a
salary comparator for purposes of establishing the prima facie case.
See 29 C.F.R. § 1620.13(b)(4) (1998).
19
Unlike a Title VII case, however, under the Equal Pay Act, upon
establishing a prima facie case, both the burdens of production and
persuasion shift to the defendant. See Brinkley-Obu v. Hughes Train-
ing, Inc., 36 F.3d 336, 344 (4th Cir. 1994). The defendant bears the
burden of proving by a preponderance of the evidence that the wage
difference between the male and female employees was the result of
one of the four enumerated statutory 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.A. § 206(d)(1);
see also Strag v. Craven Commun. College, 55 F.3d 943, 948 (4th Cir.
1995).
In this case, the district court ruled that HRC had adduced suffi-
cient evidence to establish that Paschal was paid"a differential based
on any other factor other than sex," 29 U.S.C.A.§ 206(d)(1)(iv), at
the summary judgment stage of the proceedings. The defendant may
prevail on its motion for summary judgment and establish an affirma-
tive defense when it has produced "credible evidence -- using any of
the materials specified in Rule 56(c) -- that would entitle it to a
directed verdict if not controverted at trial." Celotex Corp. v. Catrett,
477 U.S. 317, 331 (1986) (Brennan, J., dissenting); accord Fitzpatrick
v. Atlanta, 2 F.3d 1112, 1116 (11th Cir. 1993); Mesnick v. General
Elec. Co., 950 F.2d 816, 825 (1st Cir. 1991); International Shortstop,
Inc. v. Rally's, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991). When
the defendant produces such evidence supporting its affirmative
defense, the burden of production shifts back to the plaintiff who
"must come forward with ``specific facts showing that there is a genu-
ine issue for trial.'" White v. Rockingham Radiologists, Ltd., 820 F.2d
98, 101 (4th Cir. 1987) (quoting Fed. R. Civ. P. 56(e)). "[S]ummary
judgment will not lie if the dispute about a material fact is ``genuine,'
that is, if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). A motion for summary judgment may not
be defeated, however, by evidence that is "merely colorable" or "is
not significantly probative."10 Id. at 249-50.
_________________________________________________________________
10 The dissent misreads this paragraph and erroneously focuses on the
first sentence to reach its conclusion that "this statement improperly sug-
20
2.
On appeal, the parties do not dispute that Brinkley established a
prima facie case of an Equal Pay Act violation. The first question
before us, then, is whether HRC supplied the district court with suffi-
cient credible evidence to support the "factor-other-than-sex" defense.
Such evidence is sufficient if the court can conclude that had the same
evidence been presented and remained uncontested at trial, HRC
would be entitled to a directed verdict. See International Shortstop,
939 F.2d at 1264-65.
HRC presented the following evidence in support of its affirmative
defense: (1) Paschal's resume indicating his extensive country club
management experience; (2) Paschal's deposition in which he stated
that he understood that he received a higher salary and better perks
because he had a higher salary history, had initially taken the job on
a temporary basis, and had a high level of knowledge about the coun-
try club industry gained in his prior GM positions; (3) Brinkley's
employment application indicating her lack of country club experi-
ence and her low salary history; (4) the fact that when Brinkley
accepted the position of GM, she received a $20,000 raise from the
salary she had been earning as business manager; (5) deposition testi-
mony by members of the Board that they reached mutual agreement
on Paschal's salary based upon what they felt the country club could
afford to pay; and (6) deposition testimony by Board members stating
_________________________________________________________________
gests that a court may award summary judgment on the basis of the
movant's evidence alone." Post at 27. The paragraph when fairly read as
a whole makes it quite clear that the moving party's production of evi-
dence is only the first step in the summary judgment inquiry when, as in
this case, the moving party will bear the burden of proof at trial. Of
course, in instances when the nonmoving party presents no evidence at
all to contest the moving party's proffer, no genuine issue of material
fact has been created and summary judgment is appropriate based upon
the moving party's evidence alone. See Strag v. Craven Commun.
College, 55 F.3d 943, 951 (4th Cir. 1995) ("Indeed, although a motion
for summary judgment generally should not be granted if there exists a
genuine issue of material fact that warrants a trial on the issues, such a
motion cannot be denied unless the non-moving party puts forth specific
facts evidencing that such a genuine issue does exist.").
21
that they researched appropriate salary through consultation with the
Country Club Managers Association, which indicated that a typical
salary for a club of their size was approximately $100,000 per year.
With this evidence, HRC met its burden of producing sufficient
evidence, which, if uncontroverted, would have entitled it to a
directed verdict had the case proceeded to trial. The evidence pres-
ented by HRC points clearly to only one conclusion-- that HRC and
Paschal followed procedures that are standard in the employment
marketplace. HRC reviewed a resume and salary history, assessed its
financial situation, compared its situation with that of other similarly
situated entities, and negotiated with Paschal to reach a mutually sat-
isfying agreement as to an appropriate salary. The evidence indicates
that HRC reached this agreement on the basis of Paschal's individual
merits, not on the basis of his sex. A survey of the record reflects that
the Board followed the same procedures when it evaluated Brinkley's
initial salary.11
Our inquiry does not end, here, however. When the defendant pro-
duces sufficient evidence in support of its affirmative defense, the
burden of production shifts back to the plaintiff. See International
Shortstop, 939 F.2d at 1265. The plaintiff must produce specific evi-
dentiary materials that demonstrate the existence of a "genuine issue
for trial." White v. Rockingham Radiologists, Ltd., 820 F.2d at 101
(citing Fed. R. Civ. P. 56(e)). Brinkley has not produced sufficient
evidence to meet this burden.12 She has not produced any evidence
_________________________________________________________________
11 The dissent makes much of the fact that the Board "fail[ed] to inves-
tigate an appropriate salary" for Brinkley before promoting her to the
General Manager position, as it did before offering the position to Pas-
chal. Post at 30. Brinkley never raised the Board's failure to research an
appropriate salary as proof of discrimination, nor could she -- the Board
gave her a $20,000 raise, exactly what she requested.
12 The dissent chides us because we haven't cited Fowler v. Land Man-
agement Groupe, Inc., 978 F.2d 158 (4th Cir. 1992), and Keziah v. W.M.
Brown & Son, Inc., 888 F.2d 322 (4th Cir. 1989). Those cases demon-
strate that when the plaintiff adduces sufficient evidence controverting an
employer's assertion that higher salary is due to more experience, a gen-
uine issue of material fact can arise. The legal proposition is unremark-
able. Factually, we conclude that the quantum of evidence adduced by
22
that indicates that Paschal was paid more, or that she was paid less,
because of sex.13
_________________________________________________________________
Keziah and Fowler distinguish the cases. In Keziah, although the
employer stated that Keziah was paid less due to inferior experience, the
evidence tended to show that Keziah has ten years of experience within
the relevant industry whereas the male comparator had no similar experi-
ence and was required to attend a two-week training course to familiarize
himself with the industry. See 888 F.2d at 325. Also, although the com-
pany stated that it expected the male to generate more revenue for the
company, evidence demonstrated that the sales manager had set equal
sales goals for Keziah and the male comparator for the first two years
and that in the third year of employment Keziah was assigned a higher
sales goal. See id. at 326. Similarly, in Fowler the plaintiff produced sev-
eral witnesses to contradict the employer's statement regarding the value
of the comparator's experience. See 978 F.2d at 161. Brinkley did not
produce a similar quantity of evidence to controvert HRC's affirmative
defense and did not raise a genuine issue of material fact. See Strag, 55
F.3d 943, 951 (4th Cir. 1995) (holding that the plaintiff must put forth
evidence to rebut the defendant's initial evidence showing a gender neu-
tral reason for the pay differential).
13 The dissent places too much emphasis upon the prima facie case
under the Equal Pay Act. As a result, the dissent creates a schema under
which all Equal Pay Act claims in which the prima facie case has been
made out must proceed to trial. The dissent's first error is characterizing
the prima facie case as "creat[ing] a presumption of discrimination." Post
at 27. Actually, the Equal Pay Act's prima facie case is a traditional one
-- proof of the elements establishes a violation of the Act. No presump-
tion, as that phrase is most often used in common legal parlance, has
been created. Although the dissent is correct in noting that Brinkley-Obu
v. Hughes Training, Inc., 34 F.3d 336, 344 (4th Cir. 1994), uses the term
"presumption" to describe the effect of establishing the EPA's prima
facie case, Brinkley-Obu does not use the term in the McDonnell-
Douglas sense, nor does it describe an irrebuttable presumption. Through
the prima facie case, the plaintiff has demonstrated a pay differential --
that an employer has paid members of the opposite sex different wages
to perform jobs that require "equal skill, effort, and responsibility, and
which are performed under similar working conditions," 29 U.S.C.A.
§ 206(d)(1) (West 1998). If the defendant does not justify the differential
by proving one of the statutory affirmative defenses, the defendant loses
the case.
23
In support of her argument that summary judgment was inappropri-
ate, Brinkley points to the gender hostility evident at the club as veri-
fied by Brandel's remark that he could not work for a woman as well
as Paschal's inappropriate comment about the physical attributes of
a waitress. As we noted earlier, however, Brandel's statement was
made before Brinkley was promoted to the position of GM. The
Board effectively ignored this isolated comment when it promoted
Brinkley, and thus, it is not indicative of a gender-hostile workplace.
Additionally, Paschal was reprimanded by the Board for his statement
about the waitress, an action that also indicated that the Board was not
harboring gender-based hostility.
Further, Brinkley disputes the contention that Paschal had superior
qualifications for the GM position. She notes that Paschal lacked a
bachelor's degree and had been fired from a hotel manager position
listed on his resume. These purported deficiencies, however, do not
overcome the undisputed fact that Paschal's resume indicated that he
had eleven years of industry experience, and that his experience was
significant to the Board members when they made their salary decision.14
_________________________________________________________________
Once the affirmative defenses are at issue, the focus of the inquiry
shifts away from the existence of the pay differential (the prima facie
case) toward seeking an explanation for why that pay differential has
occurred. The dissent is simply incorrect in stating that the plaintiff's evi-
dence underlying the prima facie case is necessarily sufficient to satisfy
the plaintiff's burden of production, see Strag , 55 F.3d at 948 (stating
that when the defendant brings forth sufficient evidence of its affirmative
defense under the Equal Pay Act, the plaintiff must rebut the evidence
in order to prevail), and create a genuine issue of material fact sufficient
to preclude summary judgment in the defendant's favor on its affirmative
defense. In some circumstances, the evidence underlying the prima facie
case may still be relevant, but the pay differential at the heart of the
prima facie case is already acknowledged in the structure of the affirma-
tive defenses. Thus, evidence that merely points to the existence of a pay
differential does nothing to further the plaintiff's cause. To survive sum-
mary judgment, the plaintiff must produce evidence, direct or circum-
stantial, that controverts the defendant's evidence that a legitimate
ground justifies the pay difference.
14 Although the dissent recognizes that experience and salary history
can be proper bases for a salary differential, it suggests that we should
24
Brinkley has produced only the slimmest shreds of evidence from
which it might be possible to infer that sex played a factor in the sal-
ary differential between her and Paschal. Her version of events, which
is not supported by any concrete proof, is simply not enough to con-
trovert the large quantity of undisputed material that HRC put into the
record below in support of its affirmative defense. Brinkley has not
raised a genuine issue of material fact that she was paid less because
of her sex. Therefore, we affirm the district court's grant of summary
judgment on Brinkley's Equal Pay Act claim.
V.
Based upon the foregoing discussion, we conclude that the district
court's grant of summary judgment to HRC on both Brinkley's Title
VII and Equal Pay Act claims were correct.
AFFIRMED
DIANA GRIBBON MOTZ, Circuit Judge, dissenting:
Respectfully, I dissent. Elizabeth Brinkley did not receive what the
Equal Pay Act promises -- equal wages for equal work.
I.
In January, 1995, the Harbor Recreation Club (HRC) chose Brink-
ley to be its General Manager and agreed to pay her $50,000 annually.
_________________________________________________________________
superimpose a "job-relatedness requirement" upon the factor-other-than-
sex defense. Post at 30. This Court has not previously adopted this
approach and neither the parties nor the district court have suggested it.
Further, there is disagreement among our sister circuits on this issue. See
Randolph Cent. Sch. Dist. v. Aldrich, 506 U.S. 965 (1992) (White, J.,
with whom Rehnquist, C.J. and O'Connor, J. joined, dissenting from
denial of certiorari). We decline to consider this question without the
benefit of briefing and argument. See Karpel v. Inova Health Sys. Servs.,
134 F.3d 1222, 1227 (4th Cir. 1998) (declining to review issues not
raised in the district court); Cavallo v. Star Enter., 100 F.3d 1150, 1152,
n.2 (4th Cir. 1996) (holding that arguments not raised on appeal by
appellants until their reply brief were not properly before the appellate
court regardless of whether question was raised in district court).
25
In the eighteen months that she served in this position, HRC never
raised Brinkley's salary. Then, dissatisfied with Brinkley's perfor-
mance, HRC hired James Paschal to take over the management of the
club, and agreed to pay him first $1,200 a week, or $62,400 per year,
and ultimately $75,400 annually. The club subsequently fired Brink-
ley. HRC concedes that Brinkley and Paschal performed the same
duties under the same working conditions and there can be no dispute
that Brinkley received lower pay than Paschal for performing these
duties. Thus, Brinkley unquestionably has made out a prima facie
case under the Equal Pay Act (EPA), 29 U.S.C.A.§ 206(d)(1)(West
1998). See Corning Glass Works v. Brennan, 417 U.S. 188, 195
(1974).
"Once a plaintiff presents a prima facie case, the defendant has the
burden of showing, by a preponderance of the evidence, that the pay
differential was based on one of the four statutory exceptions." Keziah
v. W. M. Brown & Son, Inc., 888 F.2d 322, 325 (4th Cir. 1989)
(emphasis added). The majority ignores the requirement that these
statutory exceptions, including the final catchall exception -- that the
pay differential is based on a factor other than sex-- "must be nar-
rowly construed" as well as the frequent admonition that an employ-
er's burden in demonstrating that it is entitled to one of the statutory
defenses is a "heavy" one. Id.; see also Timmer v. Michigan Dep't of
Commerce, 104 F.3d 833, 843, 844 (6th Cir. 1997). Although the
majority does acknowledge that, with respect to the affirmative
defenses, the employer must meet both the burden of production and
of persuasion, see Corning Glass, 417 U.S. at 196; 29 U.S.C.A.
§ 206(d)(1); see also Brinkley-Obu v. Hughes Training, Inc., 36 F.3d
336, 344 (4th Cir. 1994), it refuses to hold HRC to this burden.
Instead the majority improperly shifts the burden of proof to Brink-
ley by distorting applicable summary judgment principles. It does so
by focusing almost exclusively on the movant's initial burden, mis-
construing that burden in this Equal Pay Act case, and then virtually
ignoring the crux of the summary judgment inquiry: whether, viewing
all of the evidence in the light most favorable to the non-movant,
there exists a material issue for trial. See Anderson v. Liberty Lobby,
477 U.S. 242, 255 (1986).
The majority asserts that a "defendant may prevail on its motion
for summary judgment and establish an affirmative defense when it
26
has produced ``credible evidence . . . that would entitle it to a directed
verdict if not controverted at trial.'" Ante at 20 (emphasis added)
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 331 (1986) (Bren-
nan, J., dissenting)). While technically accurate, i.e., a defendant with
such evidence may ultimately prevail, this statement improperly sug-
gests that a court may award summary judgment on the basis of the
movant's evidence alone. In fact, a court considers whether a
movant's evidence taken alone could support a directed verdict only
to determine if a movant who has the burden of persuasion at trial has
established its initial burden on summary judgment. See Celotex, 477
U.S. at 331 (Brennan, J., dissenting). If the movant passes this initial
hurdle, only the burden of production shifts to the non-movant. Id.The ultimate burden of persuading the court of "the nonexistence of
a ``genuine issue' [remains] on the party moving for summary judg-
ment." Id. at 330; see also Custer v. Pan Am. Life Ins. Co., 12 F.3d
410, 416 (4th Cir. 1993).
Although it concentrates its attention on the initial summary judg-
ment burden, the majority fails to recognize the full scope of that bur-
den in the context of this case. A prima facie case under the Equal
Pay Act creates a presumption of discrimination, see Brinkley-Obu,
36 F.3d at 344,* and thus the defendant's evidence supporting an
affirmative defense under the Act is never truly uncontroverted.
Accordingly, an Equal Pay Act defendant must do more than merely
produce evidence of its affirmative defense; it must overcome the pre-
sumption of discrimination and the evidence giving rise to it.
The majority's remaining summary judgment analysis is likewise
seriously flawed. In fact, in holding that HRC is entitled to summary
_________________________________________________________________
*The majority's suggestion that I err in "characterizing the prima facie
case as ``creat[ing] a presumption of discrimination,'" ante at 23 n.13,
ignores recent circuit precedent that so holds. See Brinkley-Obu 36 F.3d
at 344 ("Under the Equal Pay Act, the plaintiff creates a presumption of
discrimination when she establishes a prima facie case."). The majority's
refusal to follow this precedent is as ill-advised as it is improper. In this
Circuit "a panel considers itself bound by the prior decision of another
panel, absent an in banc overruling or a superseding contrary decision of
the Supreme Court." Busby v. Crown Supply, Inc., 896 F.2d 833, 840-41
(4th Cir. 1990).
27
judgment because Brinkley "has not produced any evidence that indi-
cates that Paschal was paid more, or that she was paid less, because
of sex," ante at 22-23, the majority misconstrues the burden of proof
under both the Equal Pay Act and the summary judgment rule. Nei-
ther require Brinkley, as the majority does, see id., to produce evi-
dence that the salary differential was based on sex. Rather, in making
out a prima facie case under the Equal Pay Act, Brinkley created a
presumption of discrimination based on sex. See Brinkley-Obu, 36
F.3d at 344. To overcome that presumption, HRC as her "employer
must prove that sex provide[d] no part of the basis for the wage dif-
ferential." Timmer, 104 F.3d at 844 (emphasis added) (internal quota-
tions and citations omitted). Brinkley, by contrast, merely needs to
point to "specific facts showing there is a genuine issue for trial" in
order to respond to the defendant's initial summary judgment show-
ing. White v. Rockingham Radiologists, Ltd., 820 F.2d 98, 101 (4th
Cir. 1987). Indeed, to meet her burden of production, Brinkley need
only "come forward with facts sufficient to create a triable issue of
fact." Temkin v. Frederick County Comm'rs, 945 F.2d 716, 718-19
(4th Cir. 1991); see also, Celotex, 477 U.S. at 331 (Brennan, J., dis-
senting). This she unquestionably did. See infra at 30-32.
The ultimate burden of persuasion on summary judgment indispu-
tably rests with the movant, and thus it was HRC's burden to demon-
strate its entitlement to judgment as a matter of law based on the
record as a whole. See Celotex, 477 U.S. at 330 & n.2 (in determining
whether moving party has met its burdens and is entitled to summary
judgment, "the court is obligated to take account of the entire setting
of the case and must consider all papers of record as well as any mate-
rials prepared for the motion") (Brennan, J., dissenting); see also 10A
Charles Alan Wright et al., Federal Practice and Procedure § 2727, at
476, 480 (3d ed. 1998). Accordingly, HRC had to demonstrate that no
reasonable factfinder faced with all of the evidence forecast by HRC
and by Brinkley could conclude that Brinkley was paid less than Pas-
chal because of her sex.
Instead of requiring HRC to carry this burden, the majority effec-
tively bases its affirmance of summary judgment to HRC solely on its
conclusion that HRC carried its initial summary judgment burden; the
majority stalwartly refuses to consider carefully either the presump-
tion of discrimination created by Brinkley's prima facie case or her
28
evidence of numerous material factual disputes. The majority thus
denies Brinkley that to which all parties opposing summary judgment
are entitled, i.e., the court's construction of the "facts and inferences
in the light most favorable" to them. United States v. Leak, 123 F.3d
787, 794 (4th Cir. 1997) (quoting Donmar Enter., Inc. v. Southern
Nat'l Bank of N.C., 64 F.3d 944, 946 (4th Cir. 1995)). See also 10A
Wright et al, supra § 2727, at 459 ("Because the burden is on the
movant, the evidence presented to the court always is construed in
favor of the party opposing the motion and the opponent is given the
benefit of all favorable inferences that can be drawn from it.")
(emphasis added) (citing numerous cases, including Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986)).
In sum, the majority is only able to affirm here by holding that
Brinkley failed to carry a burden of production that she never had,
and by exempting HRC from a burden of persuasion that it should
have been required to carry. If the majority had held HRC to its heavy
burden of proof rather than improperly shifting this burden to Brink-
ley, and if the majority had evaluated the evidence in the summary
judgment record in the light most favorable to Brinkley as the non-
moving party, it could only have reversed the grant of summary judg-
ment to HRC.
II.
The majority also seriously errs in its analysis of the reasons prof-
fered by HRC for payment of a greater salary to a man than it had
paid to a woman for the same work.
First, notwithstanding the majority's suggestion, HRC's decision to
pay Brinkley less than Paschal for the same work cannot be justified
simply because the market would bear this result. As the Supreme
Court has explained, while it may be "understandable as a matter of
economics" that a company wishes to take advantage of a market in
which it can pay a woman less than a man for the same work, such
"differential[s] nevertheless became illegal once Congress enacted
into law the principle of equal pay for equal work." Corning Glass,
417 U.S. at 205. For this reason, we and many of our sister circuits
have expressly held that the fact that a woman has less bargaining
power to demand a higher salary than a man does not constitute a
29
valid factor "other than sex" under the Equal Pay Act. See, e.g., Brock
v. Georgia Southwestern College, 765 F.2d 1026, 1037 (11th Cir.
1985); Horner v. Mary Inst., 613 F.2d 706, 714 (8th Cir. 1980);
Brennan v. Prince William Hosp. Corp., 503 F.2d 282, 286 (4th Cir.
1974); Brennan v. Victoria Bank & Trust Co., 493 F.2d 896, 902 (5th
Cir. 1974); Brennan v. City Stores, Inc., 479 F.2d 235, 241 n.12 (5th
Cir. 1973); Hodgson v. Brookhaven Gen. Hosp., 436 F.2d 719, 726
(5th Cir. 1970).
Second, contrary to the majority's statement that"the record
reflects that the Board followed the same procedures when it evalu-
ated Brinkley's initial salary" as when it evaluated Paschal's, ante at
22, the record reveals nothing of the kind. Rather, the record evidence
is that HRC totally failed to research comparable club salaries when
it hired Brinkley. Moreover, its failure to investigate an appropriate
salary for Brinkley provides no justification for its payment of a far
greater salary to Paschal for the same work. In Brewster v. Barnes,
788 F.2d 985 (4th Cir. 1986), we rejected this excuse and concluded
that the employer had not met its burden of proving its affirmative
defense when it had failed to investigate whether the plaintiff was eli-
gible for a pay-raise. Id. at 992. Thus, the fact that HRC researched
the proper salary range in order to pay Paschal the"going rate" for
country club managers cannot justify its payment to Brinkley of con-
siderably less money for the same work.
This leaves Paschal's asserted better experience and salary history,
which allegedly indicated that he was a more valuable employee than
Brinkley, as the only bases other than sex for paying Paschal more
than Brinkley. Experience and salary history differentials may, in the
proper case, constitute bases upon which to pay a man more than a
woman for the same work. However, only if an employer has prof-
fered some valid business reason for believing that these factors jus-
tify paying a man more than a woman (or a woman more than a man)
should the employer be permitted to rely on such rationales because
"[w]ithout a job-relatedness requirement, the factor-other-than-sex
defense would provide a gaping loophole in the statute through which
many pretexts for discrimination would be sanctioned." Aldrich v.
Randolph Cent. Sch. Dist., 963 F.2d 520, 525 (2d Cir. 1992); see also
EEOC v. J.C. Penney Co., Inc., 843 F.2d 249, 253 (6th Cir. 1987);
Bence v. Detroit Health Corp., 712 F.2d 1024, 1030-31 (6th Cir.
30
1983). HRC, of course, provided no such evidence. But even if HRC
were not held to this business-relatedness requirement, the record
unquestionably reveals a genuine dispute as to whether Paschal's
experience was actually "better" than Brinkley's and whether his sal-
ary history actually did demonstrate that he was"worth more" to
HRC than Brinkley.
With regard to the varying past experience between Paschal and
Brinkley, Paschal submitted a resume listing eleven years of experi-
ence working in country clubs, but he had no college degree, no for-
mal business education, and no professional certification. At the time
HRC made Brinkley its General Manager, her only previous country
club experience was her two years as Business Manager with HRC;
however, in that position she had been responsible, in HRC's words,
for "many of the duties usually assumed by a General Manager" and
had performed them so well that HRC promoted her to General Man-
ager. Moreover, prior to being hired by HRC, Brinkley had earned a
college degree, majoring in business administration, completed some
credits toward a graduate degree, and, after taking additional courses
and passing an examination, had been certified as a Credit Executive.
Brinkley also had twenty years of general business experience,
including twelve years as owner and operator of a restaurant. Brink-
ley's longer experience in the business world and far more extensive
business training resulted in concrete benefits for HRC -- for exam-
ple, she could operate HRC's computer system and understood its
accounting programs; Paschal could do neither.
A jury could conclude that Paschal's greater country club experi-
ence justified HRC's paying him substantially more than it paid
Brinkley even though, when the club hired him, Paschal was an
unknown quantity while Brinkley had intimate knowledge of HRC,
greater general business experience, and far superior business train-
ing. But a reasonable jury could as easily reach the opposite conclu-
sion; it could conclude that Paschal's experience was not superior to
Brinkley's and so could not serve as a basis other than sex upon
which to justify the pay differential. Such a conclusion would be
entirely supported by the record, particularly in light of Paschal's
admission that he had been fired from or forced to leave earlier posi-
tions, evidence that certainly raises a dispute as to the quality of his
experience. In the end it is up to the jury to decide if Brinkley's busi-
31
ness experience is enough to "overcome" Paschal's longer tenure in
the field. See ante at 24.
As for salary history, Paschal maintained that he held jobs ranging
in salary from $65,000 to $85,000 before coming to HRC, while
Brinkley's highest salary prior to being appointed General Manager
of the club paid only $30,000. However, Paschal admitted in deposi-
tion that he had been fired from one previous country club position
and forced to retire from another. Furthermore, HRC failed to contact
Paschal's last employer in order to determine if he was valued at such
a high salary, an omission that even an HRC board member catego-
rized as "careless."
A reasonable jury could conclude that Paschal's higher salary did
signal that he was a more valuable employee. But a jury certainly
could just as reasonably conclude that Paschal's checkered job history
demonstrated that his "worth" in the job market did not exceed (or
even equal) Brinkley's and that HRC failed to prove by a preponder-
ance of the evidence that it paid Paschal more than Brinkley based on
a factor other than sex.
Keziah constitutes clear circuit precedent with facts stunningly
close to those at hand. See 888 F.2d 322. There, as here, the employer
paid a man a higher salary for performing "the exact same job" as the
female plaintiff. Id. at 324. There, as here, the district court granted
summary judgment to the employer on the plaintiff's Equal Pay Act
claim, finding the salary differential justified by the man's "experi-
ence and customer base" despite the fact that the female plaintiff
offered evidence of her own prior experience, which, while different,
"[a]rguably . . . was as related to her position" as her comparator's
experience. Id. at 325. There, as here,"objective evidence in the
record" cast doubt on the comparator's experience. Id. In Keziah, we
reversed the grant of summary judgment to the employer, explaining
that the "record, when reviewed as a whole, demonstrates the compa-
ny's failure to prove that the salary differential resulted from ``any fac-
tor other than sex'" and remanded due to the genuine dispute as to
whether the male comparator's experience was really better than the
female plaintiff's so as to justify a higher wage. Id. (emphasis added).
Similarly, in Fowler v. Land Management Groupe, Inc., 978 F.2d
158 (4th Cir. 1992), we reversed the district court's grant of judgment
32
for the employer on the plaintiff's Equal Pay Act claim. In Fowler,
as here, the employer conceded that the plaintiff presented ample evi-
dence for a jury to find that plaintiff made out a prima facie case
under the Act. Id. at 161. However, the employer in Fowler con-
tended, as HRC does, that its evidence justifying the pay differential
on a basis other than sex -- including the comparator's greater pro-
fessional qualifications and licenses, greater and more relevant practi-
cal experience in the field, higher profit-making potential, and a
general impression that he was a "more important" employee -- was
so overwhelming that no reasonable jury could have found for plain-
tiff. Id. Although the district court agreed and granted judgment for
the employer after a jury verdict for the plaintiff, we reversed. We
noted that although the employer's evidence was persuasive, evidence
in the record -- including evidence of the plaintiff's higher level of
formal education -- served to counter the employer's proffered rea-
sons for paying the comparator more than the plaintiff. Id. Thus again
in Fowler, as here, evidence in the record placed the employer's justi-
fication into doubt; as such "the question of whether the pay differen-
tial between [comparator] and [plaintiff] was adequately justified by
nondiscriminatory factors was appropriately a matter for determina-
tion by the jury." Id. at 162.
Keziah and Fowler require reversal here. The record in this case,
as in Keziah and Fowler, unquestionably reveals a material dispute as
to whether a factor other than sex served as the basis for paying Pas-
chal far more than Brinkley. By calling into doubt HRC's evidence,
Brinkley clearly did more than "merely point[ ] to the existence of a
pay differential," ante at 24 n.13, she"produce[d] evidence, direct or
circumstantial, that controverts the defendant's evidence that a legiti-
mate ground justifies the pay difference," id., and placed the issue
squarely in dispute. Judgment as a matter of law for the employer is
therefore as improper in this case as it was in Keziah and Fowler. The
majority's relegation of Keziah and Fowler to a footnote and its fail-
ure to offer any meaningful distinction of them speaks volumes.
III.
The Supreme Court explained twenty-five years ago that Congress
enacted the Equal Pay Act to remedy a "serious and endemic prob-
lem" -- the fact that the wage structure of"many segments of Ameri-
33
can industry has been based on an ancient but outmoded belief that
a man, because of his role in society, should be paid more than a
woman even though his duties are the same." Corning Glass, 417
U.S. at 195 (internal quotation marks omitted). Today, in depriving
Brinkley of a trial on her Equal Pay Act claim, the majority frustrates
Congress's clear purpose in enacting this legislation. I regret the
majority's ill-advised action and dissent from it.
34