19 F.3d 586 (11th Cir. 1994), 93-8481, Mulhall v. Advance Sec., Inc.

Docket Nº:93-8481.
Citation:19 F.3d 586
Party Name:1 Wage & Hour Cas. 2d (BNA) 1668 Marilyn M. MULHALL, Plaintiff-Appellant, v. ADVANCE SECURITY, INC., Figgie International, Inc., Defendants-Appellees.
Case Date:April 22, 1994
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 586

19 F.3d 586 (11th Cir. 1994)

1 Wage & Hour Cas. 2d (BNA) 1668

Marilyn M. MULHALL, Plaintiff-Appellant,


ADVANCE SECURITY, INC., Figgie International, Inc.,


No. 93-8481.

United States Court of Appeals, Eleventh Circuit

April 22, 1994

Page 587

Richard N. Hubert, Chamberlain Hrdlicka White Williams & Martin, Atlanta, GA, for plaintiff-appellant.

Edward Katze, Kimberly Anne Weber, Constangy Brooks & Smith, Atlanta, GA, James G. Johnson, Hill Farrer & Burrill, Los Angeles, CA, for defendants-appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before BLACK, Circuit Judge, FAY, Senior Circuit Judge, and UNGARO-BENAGES [*], District Judge.

FAY, Senior Circuit Judge:

This is a disparate pay employment discrimination suit. Plaintiff, a former employee of defendant corporations, appeals the district court's grant of summary judgment on behalf of defendants. The district court's order disposed of plaintiff's claims brought under the Equal Pay Act, 1 Title VII of the Civil Rights Act of 1964, 2 the Civil Rights Act of 1991, 3 and various state law causes of action. We AFFIRM summary judgment on the claims arising under state law, 4 resting on the Civil Rights Act of 1991, and resulting from defendants' failure to promote plaintiff. We VACATE and REMAND for further consideration the disparate pay claims arising under the Equal Pay Act and the Civil Rights Act of 1964.


  1. Facts

    Plaintiff Marilyn Mulhall worked for Defendant Advance Security, Inc. ("Advance")

    Page 588

    from 1978 until her resignation in 1991. Advance is a Georgia-based company that provides security services to customers around the country. It is a wholly-owned subsidiary of Defendant Figgie International, Inc. ("Figgie").

    Advance employed plaintiff as a Manager of Services in 1978, promoted her to Manager of Administration in 1979, and subsequently promoted her to Vice-President, Administration in 1981. She remained in this position until 1991, when she resigned. As Vice-President, Administration, Mulhall's responsibilities included risk management, personnel, loss prevention, salary administration, worker's compensation, purchasing, litigation, general liability insurance claims, group insurance programs for hourly personnel, hourly personnel 401(k) programs, salaried employees' payroll, equal employment opportunity, affirmative action, fidelity insurance claims, contract reviews, insurance certification programs, labor relations, applicant and employee testing programs, licensing, leases, corporate services and staff, and the Department of Defense industrial security program. On the government contracts, she had operational responsibility and did short and long-term cost-forecasting. Mulhall had a clear understanding of the financial relationship between Figgie and Advance.

    Plaintiff was the only female within Figgie with responsibility for a profit center in addition to her duties as a corporate staff department head. She was the only manager or vice-president responsible for a profit center who did not receive bonuses based on the profitability of the profit center. Plaintiff argues that Advance should have paid her $55,979 in bonuses between 1986 and 1990.

    In 1984, Advance placed Mulhall in the Figgie Executive Compensation Program, entitling her to an executive bonus in addition to her base salary. Only three Advance employees were in the compensation program at that time: the Vice-President, Administration (Mulhall), the Vice-President, Controller (Michael Roquemore, Larry Nelson's predecessor), and the President. Bonuses arising from the operation of a profit center were apparently distinct from those springing from the Executive Compensation plan.

    The success of plaintiff's suit under both the EPA and Title VII rests on the comparison of her pay and job functions with those of persons whom she designates as "comparators." 5 She names eight men whose positions are discussed here, as they were in the district court, based on logical groupings.

    Group 1 consists of three project managers working on two of Advance's government contracts: Joe Beranek and his replacement, Richard Johnson from the Sandia Livermore contract (in Nevada), and Michael Zimmerman from the Sandia Tonapah contract (in California). 6

    Group 2 consists of one individual, William Hill. Hill was hired in 1988 to start up Investigations Corporation of America ("ICA"), a new division of defendant corporations.

    Group 3 consists of one individual, Larry Nelson, Advance's Vice-President, Controller.

    Group 4 consists of three individuals who were formerly owners or principals in businesses purchased by Advance: Guido Massimei and John Gregg, Vice-Presidents, Operations, and Edward Trumbull, Regional Manager.

    Unquestionably, all eight comparators are male and all earned more money than plaintiff. 7 Where necessary, we will discuss at length the specifics of their jobs.

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  2. Procedure

    In September 1990, prior to her resignation, Mulhall filed a charge of discrimination with the EEOC. That charge stated in full:

    I. I have worked for the company for twelve years. I have been in the position of Vice President since 1981. I am denied equal pay for the work I perform.

    II. I was given no satisfactory reason for the harm I experienced.

    III. I believe that I was discriminated against because of my sex (female) in violation of Title VII of the Civil Rights Act of 1964, as amended, and the Equal Pay Act.

    The present suit was filed in May, 1991, resting exclusively on equal pay violations arising under the EPA and Title VII. Mulhall later amended her complaint to assert claims for denial of promotion and state tort law violations. The district court granted defendants' motion for summary judgment, adopting the Magistrate Judge's Report and Recommendation in full.

    Specifically, the court held that as to the EPA claims: Group 1 (Beranek, Zimmerman, and Johnson) did not consist of proper comparators because the men did not work in the same establishment as plaintiff; Group 2 (Hill) and Group 3 (Nelson) were not proper comparators because their jobs did not require substantially similar skill, effort and responsibility as plaintiff's; in the case of Hill, work did not occur in the same conditions as plaintiff's; and Group 4 (Massimei, Gregg, and Trumbull) consisted of proper comparators but there was no genuine issue of material fact regarding defendants' affirmative defense that they paid the men higher salaries for a reason other than sex.

    The district court also granted summary judgment in favor of defendants on plaintiff's Title VII claims because: as to Group 1 (Beranek, Zimmerman, and Johnson) and Group 4 (Massimei, Gregg, and Trumbull), although plaintiff established her prima facie case, she failed to prove that the nondiscriminatory reasons proffered by defendant for the pay disparity were pretextual; and as to Group 2 (Hill) and Group 3 (Nelson) plaintiff failed to establish a prima facie case for the same reasons discussed in the EPA claims.

    Finally, the court ruled that (1) plaintiff's promotion claims brought under the EPA and Title VII were barred by her failure to file an administrative complaint alleging discriminatory denial of promotion; 8 and (2) the Civil Rights Act of 1991 did not operate retroactively. 9


    We review de novo a district court's grant of a motion for summary judgment. Brown

    Page 590

    v. Crawford, 906 F.2d 667, 669 (11th Cir.1990), cert. denied, 500 U.S. 933, 111 S.Ct. 2056, 114 L.Ed.2d 461 (1991). On a motion for summary judgment, the court must assess the proof in order to see whether there is a genuine need for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Summary judgment is appropriate only if the record shows that there is no genuine issue as to any material fact. Fed.R.Civ.P. 56(c). The substantive law identifies which facts are material, and the trial judge ruling on a summary judgment motion evaluates the evidence presented by the substantive evidentiary burden. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 254, 106 S.Ct. 2505, 2510, 2513, 91 L.Ed.2d 202 (1986). Material facts are those that might affect the outcome of the suit under the governing law. Id. at 248, 106 S.Ct. at 2505. All justifiable inferences about the facts must be resolved in favor of the non-movant. United States v. Four Parcels of Real Property, 941 F.2d 1428, 1437 (11th Cir.1991) (en banc) (internal quotations marks and citations omitted). Finally, the court must avoid weighing conflicting evidence or making credibility determinations. Welch v. Celotex Corp., 951 F.2d 1235, 1237 (11th Cir.1992).


  3. The Equal Pay Act Claims

    Plaintiff's claims of employment discrimination are based in part on the Equal Pay Act (the "EPA"), 29 U.S.C. Sec. 206(d), which provides:

    No employer ... 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 establishments at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work in 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 ... (iv) a differential based on any other factor other than sex....

    Where summary judgment is granted on claims arising under the EPA, we must first review the evidentiary burdens assigned to the parties under the substantive law as dictated by the statute, and then superimpose on that framework the proper summary judgment analysis.

    In Schwartz v. Florida Bd. of Regents, 807 F.2d 901 (11th Cir.1987), this Court analyzed the shifting burdens in a sex...

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