Irby v. Bittick

• Decision Date: 08 September 1993
• Docket Number: Civ. A. No. 92-404-3-MAC (WDO).
• Citation: 830 F. Supp. 632
• Parties: Barbara R. IRBY, Plaintiff, v. John Cary BITTICK, in his capacity as Sheriff of Monroe County, GA, et al., Defendants.
• Court: U.S. District Court — Middle District of Georgia

830 F. Supp. 632

Barbara R. IRBY, Plaintiff, v. John Cary BITTICK, in his capacity as Sheriff of Monroe County, GA, et al., Defendants.

Civ. A. No. 92-404-3-MAC (WDO).

United States District Court, M.D. Georgia, Macon Division.

September 8, 1993.

Susan S. Cole, John William Collier, Macon, GA, for plaintiff.

W. Franklin Freeman, Jr., Forsyth, GA, for defendants.

ORDER

OWENS, Chief Judge.

Before the court are cross motions for summary judgment in this Equal Pay Act case. Plaintiff Barbara Irby ("Irby") brought suit against her employers, Sheriff John Bittick ("Bittick") and the Monroe County Board of Commissioners ("Monroe County"), under the Equal Pay Act, 29 U.S.C. § 206(d); the Civil Rights Act of 1871, 42 U.S.C. § 1983; the Fourteenth Amendment to the United States Constitution; and the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202.

I. FACTS

Plaintiff Irby is a female deputy sheriff with the Monroe County Sheriff's Department, investigation division. The Sheriff's Department is divided into three divisions: support services, patrol, and investigation. No rank is attached to any particular division and deputies can be transferred among them. Instead, rank is achieved by promotion to sergeant, lieutenant, or captain, with a corresponding pay increase.

Plaintiff Irby was hired by the Monroe County Sheriffs Department in 1987 and initially served in the investigations division as an undercover drug agent. She subsequently worked in the support services department before being transferred back to investigations where she presently serves. The five other Monroe County investigators are all male and are paid substantially more than plaintiff. (Plaintiff's Exhibit 1.) However, all Monroe County deputies hired in 1987, including plaintiff, earned the same salary regardless of gender. (Bittick Affidavit, Exhibit A.) Further, with the exception of Deputies Ronnie Evans and Robert Jones (hereinafter "Evans and Jones"), deputies are hired at the same salary, which is set annually, regardless of gender, education or prior experience.¹ (Id.)

Plaintiff Irby urges the court to use Deputies Evans and Jones as comparators as they are paid more than she although they perform equal work and have similar responsibilities. In July 1983, Deputies Evans and Jones began working for the investigations unit of the Monroe County Sheriff's Department under a contract for services between the City of Forsyth ("Forsyth"), Monroe County, and Sheriff Bittick. Pursuant to the contract, Forsyth paid the salaries of the two deputies; however, they were deputized and served under Sheriff Bittick under State law. (Bittick Affidavit, Exhibit C.) In exchange, the Monroe County Sheriff's Department agreed to provide felony and drug investigation services to Forsyth. (Id.) Forsyth terminated the contract in 1988, at which time, Sheriff Bittick hired Evans and Jones. In 1988, Monroe County paid Evans and Jones the same salary which they had been receiving from Forsyth under the contract even though this was substantially more money than Monroe County paid incoming deputies.² Sheriff Bittick explained that this differential was based on unique circumstances and explained that he did not want the two deputies to take a pay cut while performing the same job for Monroe County. (Bittick Deposition, pp. 16-17.)

II. SUMMARY JUDGMENT STANDARD

The Court should grant summary judgment only if "there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The applicable substantive law identifies which facts are material in the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). "The movant bears the initial burden to show, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial." Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991). When the moving party has the burden of proof at trial, that party must carry its burden at summary judgment by presenting evidence affirmatively showing that, "on all the essential elements of its case ..., no reasonable jury could find for the non-moving party." United States v. Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir.1991) (en banc). When the non-moving party has the burden of proof at trial, the moving party may carry its burden at summary judgment either by presenting evidence negating an essential element of the non-moving party's claim or by pointing to specific portions of the record which demonstrate that the non-moving party cannot meet its burden of proof at trial; merely stating that the non-moving party cannot meet its burden at trial is not sufficient. See Clark, 929 F.2d at 606-608 (explaining Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) and Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Any evidence presented by the movant must be viewed in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970).

If — and only if — the moving party carries the initial burden, then the burden shifts to the non-moving party "to demonstrate that there is indeed a material issue of fact that precludes summary judgment." Clark, 929 F.2d at 608. The non-moving party cannot carry its burden by relying on the pleadings or by repeating conclusory allegations contained in the complaint. Morris v. Ross, 663 F.2d 1032, 1033-34 (11th Cir. 1981), cert. denied, 456 U.S. 1010, 102 S.Ct. 2303, 73 L.Ed.2d 1306 (1982). Rather, the non-moving party must respond by affidavits or as otherwise provided in Fed.R.Civ.P. 56. "The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255, 106 S.Ct. at 2513. A genuine issue of material fact will be said to exist "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248, 106 S.Ct. at 2510.

The time for filing materials in opposition to the motions for summary judgment has expired, and the motions are ripe for consideration. The court will proceed to review the applicable substantive law and inquire whether the parties have carried their burdens. See Clark, 929 F.2d at 609 n. 9.

III. ANALYSIS

The Equal Pay Act, 29 U.S.C. § 206(d)(1), provides that no employer shall discriminate between employees on the basis of sex by paying an employee at a lower rate than that which he pays an employee 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...." 29 U.S.C. § 206(d)(1). This prohibition has four exceptions: "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." Id.

An employee establishes a prima facie case by showing that her employer has paid different wages to male and female employees for "equal work" as defined by the Act. Corning Glass Works v. Brennan, 417 U.S. 188, 195, 94 S.Ct. 2223, 2228, 41 L.Ed.2d 1, 10 (1974); E.E.O.C. v. White & Son Enterprises, 881 F.2d 1006, 1009 (11th Cir.1989). Once a prima facie case is established, the burden shifts to the employer to justify the disparity by affirmatively proving one of the four exceptions listed in the Act. Corning Glass, 417 U.S. at 196-97, 94 S.Ct. at 2229; Price v. Lockheed Space Operations Co., 856 F.2d 1503, 1505 (11th Cir.1988). If the employer establishes that the pay disparity is because of one of the four exceptions, then plaintiff must produce affirmative evidence that the proffered reason is a pretext for gender discrimination. Schwartz v. Florida Board of Regents, 954 F.2d 620, 623 (11th Cir.1991).

Plaintiff has established a prima facie case of discrimination in pay under the Act. This defendants do not dispute. (Brief in Support of Defendants' Response to Plaintiff's Motion for Summary Judgment, p. 16.) A prima facie case is established by showing discrimination in terms of pay vis-a-vis one employee of the opposite sex. Price, 856 F.2d at 1505. Plaintiff has pointed to the disparity between her salary and that of deputies Evans and Jones.

In response, defendants assert the affirmative defenses that the pay disparity is due to a seniority system and a factor other than sex. Defendants must not only produce evidence of a statutory exception, they must affirmatively prove the defense by a preponderance of the evidence.³ Schwartz, 954 F.2d at 623; Price, 856 F.2d at 1505; Glenn v. General Motors Corp., 841 F.2d 1567, 1569 (11th Cir.), cert. denied, 488 U.S. 948, 109 S.Ct. 378, 102 L.Ed.2d 367 (1988).

A. SENIORITY SYSTEM

Defendants argue that they have an informal seniority system where all new hires, except for deputies Evans and Jones, enter at the same rate of pay and all deputies receive annual percentage rate across-the-board increases. Neither the Act nor case-law is specific concerning the essentials of a valid seniority system. However, a seniority system, like a merit system, should be uniformly enforced and written. See Brock v. Georgia Southwestern College, 765 F.2d 1026, 1036 (11th Cir.1985) (requiring formal and systematic merit systems).

Defendants' seniority system is not a valid defense to plaintiff's prima facie case of a violation of the Equal Pay Act. The system is neither uniformly applied nor written; defendants admit that Evans and Jones were paid considerably more than starting salary when they were put on the Monroe County payroll. While the system may be uniformly applied to all employees other than Evans and Jones, it does not justify the pay disparity between plaintiff and coworkers Evans and Jones.

B. FACTOR...