Fowler v. Land Management Groupe, Inc.

• Decision Date: 28 October 1992
• Docket Number: No. 91-1763,91-1763
• Citation: 978 F.2d 158
• Court: U.S. Court of Appeals — Fourth Circuit
• Parties: 60 Fair Empl.Prac.Cas. (BNA) 315, 60 Empl. Prac. Dec. P 41,848, 61 USLW 2289, 123 Lab.Cas. P 35,723, 1 Wage & Hour Cas.2d (BNA) 140 Barbara Johnston FOWLER, Plaintiff-Appellant, v. LAND MANAGEMENT GROUPE, INCORPORATED; John Long; John S. Groupe, IV; Long Enterprises, Incorporated; Long Commercial, Incorporated, Defendants-Appellees.

Page 158

978 F.2d 158

60 Fair Empl.Prac.Cas. (BNA) 315,

60 Empl. Prac. Dec. P 41,848, 61 USLW 2289,

123 Lab.Cas. P 35,723,

1 Wage & Hour Cas.2d (BNA) 140

Barbara Johnston FOWLER, Plaintiff-Appellant, v. LAND MANAGEMENT GROUPE, INCORPORATED; John Long; John S.

Groupe, IV; Long Enterprises, Incorporated; Long

Commercial, Incorporated, Defendants-Appellees.

No. 91-1763.

United States Court of Appeals, Fourth Circuit.

Argued April 8, 1992.

Decided Oct. 28, 1992.

Michael L. Goldberg, Mandell, Lewis & Goldberg, P.C., McLean, Va., (Joel P. Bennett, Law Offices of Joel P. Bennett, P.C., Colette Fjermestad, Washington, D.C., on brief), for plaintiff-appellant.

David Harold Dickieson, Silverstein & Mullens, Washington, D.C., for defendants-appellees.

Before ERVIN, Chief Judge, MURNAGHAN, Circuit Judge, and TILLEY, United States District Judge for the Middle District of North Carolina, sitting by designation.

OPINION

ERVIN, Chief Judge:

Barbara Johnston Fowler appeals the district court's imposition of judgment notwithstanding the verdict ("JNOV") on her claim under the Equal Pay Act, 29 U.S.C. § 206(d). She also disputes various rulings of the district court relevant to the issue of damages. We hold that JNOV was improperly entered on Fowler's claim, and we remand the case to the district court for further proceedings on the issue of damages.

I.

Fowler is a thirty-three year old woman with a Masters degree in Civil Engineering. In March 1987, Land Management Groupe, Inc. ("LMG"), a real estate development company in Northern Virginia, hired Fowler as a Project Manager. Fowler's starting salary was $32,000 a year. Fowler worked for LMG for approximately three years until she was laid off in February 1990. During that time, Fowler attained the position of Vice President of Building Development. Her annual salary at termination was $60,000.

Following her termination, Fowler filed a claim with the Equal Employment Opportunity Commission ("EEOC") charging that she had been discriminated against in her employment in violation of the Equal Pay Act and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5. EEOC notified Fowler that she was free to pursue the action on her own behalf.

Fowler filed a two count complaint in the Eastern District of Virginia on November 15, 1990, charging violations of the Equal Pay Act and Title VII. The defendants were LMG; John Groupe, IV, President of LMG; John Long, partial owner of LMG; and Long Enterprises, Inc. and Long Commercial, Inc., alleged "alter-egos" of LMG. The case went to trial on August 12, 1991--the Equal Pay Act claim to a jury, the Title VII claim to the judge. At the conclusion of Fowler's case, the court directed a verdict in favor of John Long, Long Enterprises, Inc., and Long Commercial, Inc. The Equal Pay Act claim was submitted to the jury which found in favor of Fowler. The trial court, however, finding that "[t]he case was totally absent of any evidence at all of sexual discrimination," granted the defendants' motion for JNOV. For the same reason, the trial court also found against Fowler on the Title VII claim. Fowler appeals the grant of JNOV, but does not appeal the adverse decision on the Title VII claim.

II.

The Equal Pay Act states:

No employer having employees subject to any provisions of this section 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 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....

29 U.S.C. § 206(d). Under this provision, a female plaintiff bears the burden of proof of establishing a prima facie case by showing that (1) her employer pays her a lower wage than a male counterpart (2) for "equal work on jobs the performance of which requires equal skill, effort and responsibility." See Keziah v. W.M. Brown & Son, Inc., 888 F.2d 322, 324 (4th Cir.1989). Once the prima facie case is established, the burden shifts to the defendant to show, by a preponderance of the evidence, that the wage differential resulted from one of the allowable causes enumerated by the statute. Id.

In reviewing a JNOV, we must view the evidence in the light most favorable to the non-moving party. See, e.g., Persinger v. Norfolk & Western Ry. Co., 920 F.2d 1185, 1187 (4th Cir.1990). JNOV is appropriate only when "there is no legally sufficient evidentiary basis for a reasonable jury to have found for [the non-moving] party...." Fed.R.Civ.P. 50(a)(1).

In this case LMG concedes that there was sufficient evidence for a reasonable jury to conclude that Fowler had succeeded in establishing her prima facie case. The evidence shows that another Vice President of the company, Bruce Reese, was hired six months after Fowler. Reese's starting annual salary was $62,000 (compared to Fowler's $32,000). At the time LMG terminated Fowler's employment, Reese's annual salary was $73,500 (compared to Fowler's $60,000). At trial, LMG strongly contested whether the positions held by Fowler and Reese were "equal work requiring equal skill, effort and responsibility." While LMG continues to believe that the weight of the evidence favored its position, it admits that there was sufficient conflicting evidence to support a jury determination to the contrary.

LMG does contend, and the judge below agreed, that the evidence as to nondiscriminatory justification was so overwhelming that no reasonable jury could have found that LMG had not met its burden of rebutting the prima facie case. LMG points to various aspects of the trial testimony which established that: (1) Reese had certain professional qualifications that Fowler did not possess (he possessed an engineer's license and a surveyor's license); (2) Reese had greater practical experience; (3) Reese's expertise in site preparation and zoning were more useful to the company than Fowler's expertise in building construction because the majority of LMG's properties were not yet undergoing construction; (4) Reese's activities generated a greater share of the company's profits than did Fowler's activities; and (5) Reese was considered a "more important" employee of LMG.

While these justifications are persuasive, we do not believe they rise to such an overwhelming level that no reasonable jury could find that the pay differential was unjustified. Contradicting LMG's position, several LMG employees testified that they discerned no difference in the respective tasks performed by Reese and Fowler or in the degree of authority that they appeared to exercise on behalf of the company. In contrast to Reese's greater experience, Fowler possessed a higher level of formal education (Fowler had a Masters degree in Civil Engineering; Reese did not complete college). Furthermore, there is no evidence that Reese was ever called upon to use his engineering or surveying licenses while in the employ of LMG. Viewed in the light most favorable to Fowler, we believe the evidence adequately supports the jury's verdict.

LMG argues that it is entitled to JNOV because Fowler was unable to present any direct evidence of sexual discrimination at the company. Contrary to LMG's assertions, however, direct evidence of sexual discrimination is not required to counter the contention that a pay disparity is justified. See, e.g., Maxwell v. Tucson, 803 F.2d 444, 445-46 (9th Cir.1986) ("discriminatory intent is not part of the employee's ... burden [of proof] under the Equal Pay Act"). The jury was within its discretion to decline to credit LMG's evidence of justification on the strength of Fowler's prima facie case alone. Fowler was not required to adduce direct evidence of discrimination, above and beyond the prima facie case, to counter LMG's assertion of justification.

In short, we hold that the question of whether the pay differential between Reese and Fowler was adequately justified by nondiscriminatory factors was appropriately a matter for determination by the jury. The district court erred in substituting its evaluation of the evidence for that of the jury, and, as a result, we reverse the district court's grant of JNOV.

III.

Fowler raises several issues related to the proper measure of damages. First, she contends that the district court erred in determining that LMG had not "willfully" violated the provisions of the Equal Pay Act. A finding of "willfulness" would have extended the applicable statute of limitations from two years to three years, and thereby allowed Fowler to recover damages for an extra year of unequal wages. See 29 U.S.C. § 255(a). Fowler contends that the issue of "willfulness" is a question of fact that should have been submitted to the jury, and that, therefore, the trial judge erred by ruling on the issue himself.

Apparently, no reported case has decided whether the resolution of "willfulness," for purposes of section 255(a), is properly a question for the judge or the jury. Several published decisions have reviewed the merits of a "willfulness" determination under this statute without regard to whether judge or jury made the determination and without discussion of which entity should properly be vested with the decision-making responsibility. Compare, e.g., McLaughlin v. Richland Shoe Co., 486 U.S. 128, 108 S.Ct. 1677, 100 L.Ed.2d 115 (1988) (reviewing trial judge's finding of "willfulness") with, e.g., E.E.O.C. v. Delaware Dept. of Health and Social Services, 865 F.2d 1408 (3rd Cir.1989) (reviewing jury determination of "willfulness"). In E.E.O.C. v. City of Detroit Health Dept., 920 F.2d 355, 357-58 (6th Cir.1990) ("Detroit Health"), the Sixth Circuit...