Wheatley v. Wicomico County MD

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
SANDRA WHEATLEY; JANE GROGAN, 
Plaintiffs-Appellants,
v.  No. 03-2406
WICOMICO COUNTY, MARYLAND,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, District Judge.
(CA-01-1665-JFM-1)
Argued: September 29, 2004
Decided: November 22, 2004
Before WILKINSON and LUTTIG, Circuit Judges,
and Henry E. HUDSON, United States District Judge
for the Eastern District of Virginia,
sittting by designation.
Affirmed by published opinion. Judge Wilkinson wrote the opinion,
in which Judge Luttig and Judge Hudson joined.
COUNSEL
Francis Joseph Collins, KAHN, SMITH & COLLINS, P.A., Balti-
more, Maryland, for Appellants. Shirlie Norris Lake, ECCLESTON
& WOLF, Baltimore, Maryland, for Appellee.
2 WHEATLEY v. WICOMICO COUNTY
OPINION
WILKINSON, Circuit Judge:
Sandy Wheatley and Jane Grogan supervise the Wicomico County,
Maryland, Emergency Services Department, which includes the 911
call center. In June 2001, they sued the County, alleging violations of
the Equal Pay Act and Title VII. Ms. Grogan and Ms. Wheatley claim
that male department supervisors are paid significantly more than
female department supervisors, despite the fact that all perform sub-
stantially equal managerial work. The plaintiffs also accuse the
County of sex discrimination.
We are unpersuaded that "equal work" under the Equal Pay Act can
be established when two employees have similar titles but responsi-
bilities that bear no more than the most general resemblance. We like-
wise affirm the district court’s dismissal of plaintiffs’ Title VII
claims.
I.
Wicomico County employs over 500 people, organized in approxi-
mately eleven different departments. The departments vary in size and
function. The Emergency Services Department is comprised of
approximately 22 people; it operates the 911 call center 24 hours a
day, 365 days a year. Since 1986, Sandy Wheatley has served as
director of the Emergency Services Department. Jane Grogan has
been the deputy director since 1997. Neither woman’s job compe-
tence has been questioned.
Beginning in 1999, Wicomico County commissioned a study to
evaluate its compensation schedule for all 500 of its employees. The
purpose of the study was to ensure that County employees were being
paid equally for equal work, and also to guarantee that they were
being paid comparably to persons in the same positions in other juris-
dictions. This "Hendricks Study," performed by Charles Hendricks,
led Wicomico County to reconfigure its pay schedule.
The new plan created 22 separate grades and assigned a numerical
WHEATLEY v. WICOMICO COUNTY 3
grade to all County jobs. Grade assignments were based on seven
criteria: education, job complexity, scope and impact, supervision,
working relationships, working environments, and physical demands.
Mr. Hendricks chose these seven criteria because he found them com-
parable to the four criteria set forth in the Equal Pay Act.1
Once the jobs were assigned a grade, individual salaries were set
using a mathematical formula, based in part on pre-study salaries.
Within each grade, the Hendricks study recommended a minimum,
maximum, and mid-point salary. Ms. Wheatley’s job was originally
classified as Grade 16, though it was re-classified as Grade 17 after
she filed a complaint with the County Administrative Director.
Although she received an 18% pay increase as a result of the Hen-
dricks study, her salary was set below the mid-point of her grade. Ms.
Grogan’s job was classified as a Grade 13 — her pay increased by a
similar proportion, but she too received a salary below the mid-point
of her grade. Ms. Wheatley now earns $65,808 annually, and Ms.
Grogan earns $49,164.
The case proceeded to trial on October 20, 2003. Ms. Wheatley and
Ms. Grogan offered statistical evidence to demonstrate a pay disparity
between male department leaders and female department leaders.
Both plaintiffs suggested that they are paid, on average, $25,000 a
year less than the male directors and deputy directors in other depart-
ments. Additionally, plaintiffs submitted statistics indicating that
while they were assigned salaries below the midpoint for their Hen-
dricks grades, all male directors and deputy directors were given sala-
ries above their grade midpoints.
Ms. Wheatley and Ms. Grogan also attempted to demonstrate that
department managers all perform the same general duties. Ms. Wheat-
ley testified that, like herself, directors of other departments supervise
subordinates, conduct staff meetings, prepare budgets, answer to the
same County Council, and otherwise manage their departments. She
1
The EPA mandates equal pay for the performance of jobs which
require (1) equal skill, (2) equal effort, (3) equal responsibility, and
which are performed under (4) equal working conditions. 29 U.S.C.
§ 206(d)(1)(2000).
4 WHEATLEY v. WICOMICO COUNTY
told the jury that, aside from a difference in subject-matter, all depart-
ment heads bore the same responsibilities.
After two and a half days of presenting evidence, plaintiffs rested.
Before putting on its case, the County made a motion for judgment
as a matter of law. The trial judge heard argument on the motion. It
was during this argument that plaintiffs’ counsel first articulated a
new theory of the case. He argued that plaintiffs perform work sub-
stantially equal to the work performed by male employees whose jobs
are assigned the same Hendricks Grades. On this new theory of the
case, Ms. Wheatley would point not to other department heads but to
male employees in Grade 17 as her comparators, and Ms. Grogan
would compare herself to males in Grade 13.
At this point in the hearing, the district court expressed frustration
with the new strategy. He emphasized that "from the outset," the case
had been tried "on the theory that the heads of the departments are
comparable positions, both for purposes of Title VII and the Equal
Pay Act." The court concluded that plaintiffs had failed to establish
sufficient comparability with these department leaders. As for a
potential comparison to employees in the same Hendricks grade, he
concluded that this theory of the case should have been identified ear-
lier. Since it was not announced until after all of plaintiffs’ evidence
had already been submitted, the trial judge refused to entertain the
new argument.
The district court granted the County’s motion for judgment as a
matter of law, and plaintiffs now appeal.
II.
The granting of a motion for judgment as a matter of law is
reviewed de novo. Corti v. Storage Tech. Corp., 304 F.3d 336, 341
(4th Cir. 2002). Such a motion is properly granted "if the nonmoving
party failed to make a showing on an essential element of his case
with respect to which he had the burden of proof." Singer v. Dungan,
45 F.3d 823, 827 (4th Cir. 1995)(internal quotation omitted).
Ms. Wheatley and Ms. Grogan allege Wicomico County violated
the Equal Pay Act ("EPA") which provides:
WHEATLEY v. WICOMICO COUNTY 5
No employer . . . shall discriminate . . . between employees
on the basis of sex by paying wages to employees . . . at a
rate less than the rate at which he pays wages to employees
of the opposite sex . . . for equal work on jobs the perfor-
mance of which requires equal skill, effort, and responsibil-
ity, 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 produc-
tion; or (iv) a differential based on any other factor other
than sex.
29 U.S.C. § 206(d)(1)(2000). To make out a prima facie case under
the EPA, the burden falls on the plaintiff to show that the skill, effort
and responsibility required in her job performance are equal to those
of a higher-paid male employee. Corning Glass Works v. Brennan,
417 U.S. 188, 195 (1974). In interpreting the EPA, "‘[e]qual means
substantially equal.’" Hodgson v. Fairmont Supply Co., 454 F.2d 490,
493 (4th Cir. 1972)(quoting Schultz v. Wheaton Glass Co., 421 F.2d
259, 265 (3d Cir. (1970)).
The plaintiffs eventually articulated two separate legal theories,
both anchored in the EPA. The district court found their first argu-
ment to be deficient, and their second argument to be tardy. For the
reasons that follow, we agree.
A.
We first address plaintiffs’ original theory of the case — the one
relied upon at trial. As expressed in their opening statement, Ms.
Wheatley and Ms. Grogan’s strategy was to compare their jobs to jobs
held by male department heads. To support their theory, the women
relied on evidence that all managers — regardless of department sub-
ject matter — ultimately perform the same supervisory duties. They
all, for instance, prepare budgets, monitor employees, and conduct
meetings.
We decline to accept the argument, however, that employees with
the same titles and only the most general similar responsibilities must
be considered "equal" under the EPA. In actuality, plaintiffs present
6 WHEATLEY v. WICOMICO COUNTY
a classic example of how one can have the same title and the same
general duties as another employee, and still not meet two textual
touchstones of the EPA — equal skills and equal responsibility.
First, it is simply not the case that all department director positions
require equal skills. Both the Director and Deputy Director of Public
Works in Wicomico County, for instance, are required to hold gradu-
ate degrees in civil engineering. By contrast, Ms. Wheatley and Ms.
Grogan perform their jobs well without possessing any advanced
degrees at all. While it is certainly true that plaintiffs provide valuable
services to the County, it would be disingenuous to argue that their
jobs require skills substantially equal to the jobs which require engi-
neers to direct the Department of Public Works. Indeed, to accept
plaintiffs’ position would mean that although market demand for dif-
ferent skills may vary greatly, the salaries that employers pay for such
skills must be the same.
The case law reveals a helpful analogy. In Soble v. University of
Maryland, 778 F.2d 164 (4th Cir. 1985), a female Assistant Professor
sought to compare herself, for purposes of the EPA, to other assistant
professors in a dental school. Professor Soble, who taught in the field
of community dentistry, held degrees in sociology and social work.
Id. at 167. The vast majority of her colleagues, however, held degrees
in dentistry. We found that merely possessing the same title of "assis-
tant professor" was not enough to satisfy the EPA requirement of
"equal skills." Id. Because the professorships in other departments
were "highly specialized and require[d] distinct skills" we foreclosed
Professor Soble from making an EPA comparison to them. See also
Strag v. Bd. of Trustees, 55 F.3d 943, 950 (4th Cir. 1995)(employing
similar analysis for the EPA claim of a female math instructor). Simi-
larly, pointing to the mere appellation of "department head" does not
suffice to carry plaintiffs’ burden under the skills prong of the EPA.
In addition to their failure to show equal skills, Ms. Wheatley and
Ms. Grogan also fall short of satisfying a second major EPA require-
ment. They fail to establish that their jobs and the jobs of other
department heads carry substantially equal responsibilities. We have
explained that jobs do not automatically involve equal effort or
responsibility even if they "entail most of the same routine duties."
Hodgson, 454 F.2d at 493. Jobs are considered unequal — despite
WHEATLEY v. WICOMICO COUNTY 7
having the same general core responsibilities — "if the more highly
paid job involves additional tasks which (1) require extra effort . . .
(2) consume a significant amount of the time . . . and (3) are of an
economic value commensurate with the pay differential." Id. (internal
quotation omitted).
Despite plaintiffs’ arguments to the contrary, it is significant that
different Wicomico County departments perform completely different
functions. The Director of Recreation, Parks & Tourism is, among
other things, responsible for park maintenance; the Director of Public
Works is responsible for coordinating the dredging of waterways; and
the Director of Emergency Services is responsible for coordinating
resources in the event of a disaster. Granted, at a high level of abstrac-
tion these positions all require directors to do the same thing — super-
vise, coordinate, and organize. But, the EPA demands more than a
comparison of job functions from a bird’s eye view.
In enacting the EPA, Congress chose the word "equal" over the
word "comparable" in order "to show that the jobs involved should
be virtually identical, that is . . . very much alike or closely related
to each other." Brennan v. City Stores, Inc., 479 F.2d 235, 238 (5th
Cir. 1973)(internal quotation omitted). See also Waters v. Turner,
Wood & Smith Ins. Agency, Inc., 874 F.2d 797, 799 (11th Cir. 1989);
EEOC v. Madison Community Unit School Dist., 818 F.2d 577, 582
(7th Cir. 1987). Here, we have employees whose jobs demand the
performance of quite different functions. Ms. Wheatley and Ms. Gro-
gan do not deny that the various County departments differ in subject-
matter. In fact, although Ms. Wheatley testified that all directors bear
the same type of job responsibilities, she admitted that on a day-to-
day basis, they work in "different world[s]."
It may well be true that all Wicomico County department directors
prepare budgets and work schedules. It is certainly not true, however,
that all departments have budgets and workforces of equal size. If
there is a director or deputy director whose job involves the same
responsibilities as does Ms. Wheatley’s or Ms. Grogan’s, and if any
extra tasks performed by this director are indeed inconsequential,
plaintiffs certainly failed to identify him.
We do not suggest that Ms. Wheatley and Ms. Grogan’s action fal-
tered because it failed to identify one specific individual who consti-
8 WHEATLEY v. WICOMICO COUNTY
tutes a perfect male comparator. The text of the EPA may not be
brushed with such a demanding gloss. However, in choosing a proper
comparator position, plaintiffs cannot indiscriminately aim at all
department supervisors collectively, and then expect to meet the EPA
standard of "substantial equality [in] skill, effort [and] responsibility."
Kovachevich v. Kent State University, 224 F.3d 806, 826 (6th Cir.
2000). See also Hodgson, 454 F.2d at 493 (same). The inquiry must
be more specific. The comparison to the male employee has to be
made "factor by factor" and cannot be made to "a hypothetical male
with a composite average of a group’s skill, effort, and responsibil-
ity." Houck v. Virginia Polytechnic Inst., 10 F.3d 204, 206 (4th Cir.
1993). It is here that plaintiffs fall short.
Accepting the EPA argument relied on by plaintiffs at trial would
be unfaithful to the statutory text. In essence, plaintiffs ask us to con-
vert the EPA equality standard into a similarity test. We decline to
hold that having a similar title plus similar generalized responsibili-
ties is equivalent to having equal skills and equal responsibilities.
Were we to adopt that position, we would deprive compensation
structures of all flexibility and deny employers the chance to create
pay differentiations that reflect differing tasks and talents. In passing
the EPA, Congress embraced "the principle of equal pay for equal
work regardless of sex." Corning Glass 417 U.S. at 190. Congress did
not authorize the courts "to engage in wholesale reevaluation of any
employer’s pay structure in order to enforce their own conceptions of
economic worth." Prince William Hosp. Corp., 503 F.2d at 285.
There is no question that Ms. Wheatley and Ms. Grogan are valuable
assets to Wicomico County. But it is not the job of the courts to dis-
card Congress’ studied use of the term "equality" and set the price for
their services.
For the above reasons, we agree with the district court that plain-
tiffs’ original EPA argument lacks merit.
B.
Plaintiffs also ask us to consider a second EPA argument, which
was unveiled moments before the district judge granted judgment for
the defendant. Rather than comparing themselves to other County
directors and deputy directors, Ms. Wheatley and Ms. Grogan
WHEATLEY v. WICOMICO COUNTY 9
switched course and asked to be compared to male employees
assigned their same Hendricks grade (Grade 17 and 13 respectively).
We need not address the merits of this argument, however, for we
agree with the lower court that this theory came too late in the day
for the case to be fairly tried on it.
Issues raised for the first time on appeal "are generally not consid-
ered absent exceptional circumstances." Williams v. Prof. Transp.
Inc., 294 F.3d 607, 614 (4th Cir. 2002). See also Singleton v. Wulff,
428 U.S. 106, 120 (1976). The policies behind the rule are obvious:
"respect for the lower court, [an avoidance of] unfair surprise to the
other party, and the need for finality in litigation and conservation of
judicial resources." Tele-Communications, Inc. v. Commissioner, 12
F.3d 1005, 1007 (10th Cir. 1993)(internal quotation omitted).
Although the plaintiffs technically voiced their second EPA argu-
ment to the lower court, those policy concerns are still implicated.
Plaintiffs raised their new theory at the eleventh hour — once they
sensed that their original theory was doomed. The new argument did
not appear in the complaint, nor was it mentioned to the jury in open-
ing statements. And the switch caught the trial judge and opposing
counsel completely by surprise. With some frustration, the trial court
addressed plaintiffs’ counsel:
I don’t want to be impatient with you . . . [but] you’re telling
me that you can now go to the jury on a whole different the-
ory than was presented in opening statement, [and] was
presented in your client’s testimony. . . .
....
. . . [Plaintiffs] are the ones who should have identified
[their theory] early, not leaving it up, just throwing it all up
and say, well, we’ll decide that later, Judge, you decide it as
the case gets narrowed down. That’s just not the way trials
work.
The adversary system cannot function properly if lawyers are
allowed to dump arguments on a district court at the last minute, with-
10 WHEATLEY v. WICOMICO COUNTY
out developing them during the course of litigation. Certainly, liti-
gants are permitted to make alternative arguments as part of their
case-in-chief. But there is a thin line between an alternative argument
and a last-minute switch in strategy which risks severely prejudicing
an opponent and surprising the district court. This situation is an
example of the latter.
Despite plaintiffs’ contention to the contrary, it is insufficient that
the evidentiary basis for their second argument may exist somewhere
in the record. An appellate court "cannot assume the functions of a
special master and roam at large over the record, . . . any attempt on
its part to do so would probably do a great deal more harm than
good." Hutchinson v. Fidelity Inv. Ass’n, 106 F.2d 431, 436 (4th Cir.
1939). Lawyers have a duty not just to submit evidence, but to pro-
vide some focus to their argument. This was not done here.
III.
We thus decline to address the merits of plaintiff’s second EPA
argument, and we affirm the district court’s holding on their first.2
The judgment of the district court is
AFFIRMED.
2
Plaintiffs additionally contend that the district court erred by awarding
judgment to defendant on their Title VII claims. "Although the evidenti-
ary burdens shift back and forth under the McDonnell Douglas frame-
work, ‘the ultimate burden of persuading the trier of fact that the
defendant intentionally discriminated against the plaintiff remains at all
times with the plaintiff.’" Love-Lane v. Martin, 355 F.3d 766, 786 (4th
Cir. 2004), (quoting Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S.
248, 253 (1981)).
The trial judge noted that "perhaps one could make a policy decision
that the head of Emergency Services should be paid the same as the head
of Public Works." But to say that Title VII requires such an outcome is
a different matter altogether. The county contended throughout that any
pay differentials reflected nothing more than the fact that employees
were performing different jobs. The evidence provides no basis for con-
cluding that this explanation serves as a pretext for the practice of inten-
tional sex discrimination.