Houck v. Virginia Polytechnic Institute and State University

Decision Date27 October 1993
Docket NumberNo. 92-1234,92-1234
Citation10 F.3d 204
Parties63 Fair Empl.Prac.Cas. (BNA) 188, 63 Empl. Prac. Dec. P 42,646, 126 Lab.Cas. P 33,026, 87 Ed. Law Rep. 390, 1 Wage & Hour Cas. 2d (BNA) 1169 Cherry K. HOUCK, Plaintiff-Appellant, v. VIRGINIA POLYTECHNIC INSTITUTE and STATE UNIVERSITY, Defendant-Appellee.
CourtU.S. Court of Appeals — Fourth Circuit

Harriet Dickinson Dorsey, Blacksburg, VA, argued, for plaintiff-appellant.

Jerry Dean Cain, General Counsel and Sp. Asst. Atty. Gen., Virginia Polytechnic Institute and State University, Blacksburg, VA, argued (Mary Sue Terry, Atty. Gen. of Virginia, Kay Heidbreder, Associate Gen. Counsel, on brief), for defendant-appellee.

Before WIDENER and WILKINSON, Circuit Judges, and HILTON, United States District Judge for the Eastern District of Virginia, sitting by designation.

OPINION

HILTON, Senior District Judge:

Appellant Cherry K. Houck is a Professor at Virginia Polytechnic Institute and State University in the College of Education's Curriculum and Instruction Division. She sued the appellee university for violating the Equal Pay Act for fiscal years 1988-89, 1989-90, and 1990-91. 29 U.S.C. Sec. 206(d)(1). After hearing part of her evidence ore tenus, hearing oral arguments and asking questions to counsel, and after both parties stipulated the balance of the evidence and proffered exhibits, the District Court dismissed her suit under Rule 50 of the Federal Rules of Civil Procedure for failing to establish a prima facie case under the Equal Pay Act.

Appellant testified that men in her department received higher pay than she did despite having the same skill, effort, and responsibility and working conditions. Without identifying colleagues or reciting facts on which any specific job comparison could be made, Professor Houck testified that there were men in her division who both made more and less than she did. She testified that she considers her job to be of equal skill, effort and responsibility under the same working conditions as unspecified male comparators. This comparison was based solely on when she saw various men and women colleagues in their offices.

Appellant stipulated statistical testimony of Dr. Donald Gantz of George Mason University that there existed men of all ranks and equal ranks in the same division and college that received higher merit salary adjustments than Dr. Houck. Dr. Gantz made statistical charts that purported to adjust for factors such as calendar year versus academic year, cost of living adjustments for Northern Virginia faculty, and "equity" to conclude that Professor Houck received lower salary adjustments than males in her division.

Appellant stipulated testimony of fellow faculty members Dr. Terry Graham, Dr. Susan Asselin, and Dr. Larry Harris that Dr. Houck is isolated and disliked by many in her division. Finally, appellant stipulated testimony of various other faculty members to attack the university's merit pay system.

There are twenty males in the Curriculum and Instruction Division and fewer than ten females. University records indicate that during the years in question, Professor Houck received an average raise of 7.03% compared to the 6.23% raise males in her division received.

The District Court ruled against the plaintiff because she failed to compare herself to a particular male comparator. The court noted that she compared herself to a hypothetical male, not a male that exists. When the court asked appellant to identify her male comparator, she responded, "the comparators are any men who got any higher salary increases than she did, any and all of them." She could not identify a particular male comparator from the trial record when queried by this court either.

In order to establish a prima facie case under the Equal Pay Act, the plaintiff must show that she receives less pay than a male coemployee performing work substantially equal in skill, effort, and responsibility under similar working conditions. This comparison must be made factor by factor with the male comparator. The plaintiff may not compare herself to a hypothetical male with a composite average of a group's skill, effort, and responsibility, but must identify a particular male for the inquiry. EEOC v. Liggett & Myers, Inc., 690 F.2d 1072, 1076-78 (4th Cir.1982).

The District Court properly found that appellant failed to make a prima facie case. Appellant failed to...

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