Irby v. Bittick

• Decision Date: 13 February 1995
• Docket Number: No. 93-9205,93-9205
• Citation: 44 F.3d 949
• Parties: 67 Fair Empl.Prac.Cas. (BNA) 70, 66 Empl. Prac. Dec. P 43,459, 2 Wage & Hour Cas.2d (BNA) 1125 Barbara R. IRBY, Plaintiff-Appellant, v. John Cary BITTICK, In his capacity as Sheriff of Monroe County, Georgia and Monroe County, Georgia, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 949

44 F.3d 949

67 Fair Empl.Prac.Cas. (BNA) 70, 66 Empl.

Prac. Dec. P 43,459,

2 Wage & Hour Cas.2d (BNA) 1125

Barbara R. IRBY, Plaintiff-Appellant, v. John Cary BITTICK, In his capacity as Sheriff of Monroe

County, Georgia and Monroe County, Georgia,

Defendants-Appellees.

No. 93-9205.

United States Court of Appeals, Eleventh Circuit.

Feb. 13, 1995.

Susan S. Cole, Anderson, Walker & Reichert, John W. Collier, Macon, GA, for appellant.

W. Franklin Freeman, Jr., James Albe Vaughn, Forsyth, GA, for appellees.

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

Before BIRCH and CARNES, Circuit Judges, and BLACKBURN ^*, District Judge.

BIRCH, Circuit Judge:

This case focuses upon whether an employer adequately demonstrated that disparity in pay between two male employees and a female employee doing the same work was justified under the Equal Pay Act of 1963, 29 U.S.C. Sec. 206 ("EPA"). On cross motions for summary judgment, the district court found that the employers proved that there were no genuine issues of material fact and that the employers were entitled to judgment as a matter of law. We AFFIRM.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 1987, plaintiff-appellant Barbara R. Irby was hired by defendants-appellees, Sheriff John Cary Bittick and Monroe County, Georgia, to work for the Monroe County Sheriff's Department. She initially was assigned to undercover duty in the criminal investigations division, one of three divisions within the Sheriff's Department. ¹ After serving several months as an undercover agent, she was transferred to jail and radio room operations. Irby spent approximately eighteen months in this division before transferring to criminal investigations in November, 1989. The Sheriff's Department employs six investigators in the criminal investigations division; Irby is the only female investigator. ²

In 1983, Sheriff Bittick, Monroe County and the City of Forsyth entered into a contract which stipulated that in exchange for criminal investigation services from the Sheriff's Department, the city would provide two investigators to work in the Department's investigations division. The city appointed Robert Jones and Ronald Evans. Jones and Evans's salaries were set and paid by the city. When the city terminated the contract in 1989, Jones and Evans were given the opportunity to continue as employees of the city; however, they instead elected to join the Sheriff's Department as county criminal investigators. Despite the change in employers, their job descriptions remained the same. Nevertheless, Jones and Evans were actually paid more by the county initially than they had been by the city, although the exact amount of the increase is unclear. In his deposition, Sheriff Bittick testified that overtime accrued by Evans and Jones in the previous year was inadvertently included in the base salary offered by the county. Therefore, their initial base salary with the county was the sum of their city base salary plus overtime. Consequently, investigators Jones and Evans are paid substantially more than investigator Irby. ³ It is this pay disparity that Irby challenges as a violation of the Equal Pay Act. ⁴

Irby filed suit seeking injunctive relief, damages and a declaratory judgment under 29 U.S.C. Sec. 206(d), 42 U.S.C. Sec. 1983, and the Fourteenth Amendment to the United States Constitution. After discovery, Irby moved for summary judgment on her claim for declaratory judgment under the EPA. Sheriff Bittick and Monroe County filed a cross motion for summary judgment. The district court denied Irby's summary judgment motion and granted that of Sheriff Bittick and Monroe County. Irby appeals.

II. DISCUSSION

A. Summary Judgment

We review the district court's grant of summary judgment in EPA cases de novo. Mulhall v. Advance Sec., Inc., 19 F.3d 586, 589-90 (11th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 298, 130 L.Ed.2d 212 (1994). Summary judgment is properly granted if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The court examines the substantive law involved to determine which facts are material. Mulhall, 19 F.3d at 590 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 254, 106 S.Ct. 2505, 2510, 2513, 91 L.Ed.2d 202 (1986)). All reasonable doubts about facts are resolved in favor of the non-moving party. Browning v. Peyton, 918 F.2d 1516, 1520 (11th Cir.1990).

If the moving party bears the burden of proof at trial, it must demonstrate that "on all the essential elements of its case on which it bears the burden of proof at trial, 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). "Once a moving party has sufficiently supported its motion for summary judgment, the non-moving party must come forward with significant, probative evidence demonstrating the existence of a triable issue of fact." Chanel, Inc. v. Italian Activewear, Inc., 931 F.2d 1472, 1477 (11th Cir.1991); see Fed.R.Civ.P. 56(e). The non-moving party cannot rely solely on its pleadings, Fed.R.Civ.P. 56(e); it "must do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (emphasis added). Under this rubric, we first review the burdens of proof in EPA cases and then examine whether summary judgment was properly granted.

B. Burdens of Proof in EPA Cases

A prima facie case of an EPA violation is shown if an employer "pays different wages to employees of opposite sexes 'for equal work on jobs ... [requiring] equal skill, effort, and responsibility, and which are performed under similar working conditions.' " Corning Glass Works v. Brennan, 417 U.S. 188, 195, 94 S.Ct. 2223, 2228, 41 L.Ed.2d 1 (1974) (quoting 29 U.S.C. Sec. 206(d)(1)); Mitchell v. Jefferson County Bd. of Educ., 936 F.2d 539, 547 (11th Cir.1991). Once a prima facie case is demonstrated, to avoid liability the employer must prove by a preponderance of the evidence, Mulhall, 19 F.3d at 590, that the differential is justified by one of four exceptions set forth in the EPA, Corning Glass Works, 417 U.S. at 196-97, 94 S.Ct. at 2229. Those exceptions are: "(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. Sec. 206(d)(1). The employer bears the burden of proof for these affirmative defenses, Corning Glass Works, 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); Meeks v. Computer Assocs. Int'l, 15 F.3d 1013, 1018 (11th Cir.1994). The burden is a "heavy one," Mulhall, 19 F.3d at 590, because the "defendants must show that the factor of sex provided no basis for the wage differential," id. If the defendant fails to meet this burden, the court must enter judgment for the plaintiff. Miranda v. B & B Cash Grocery Store, 975 F.2d 1518, 1533 (11th Cir.1992). When the defendant overcomes the burden, the plaintiff must rebut the explanation by showing with affirmative evidence that it is pretextual or offered as a post-event justification for a gender-based differential. Schwartz v. Florida Bd. of Regents, 954 F.2d 620, 623 (11th Cir.1991) (per curiam); see Hodgson v. Behrens Drug Co., 475 F.2d 1041, 1045 (5th Cir.1973) (quoting Shultz v. First Victoria Nat'l Bank, 420 F.2d 648, 655 (5th Cir.1969)). If plaintiff is able to create the inference of pretext, there is an issue which should be reserved for trial.

C. Analysis

Appellees do not dispute that Irby performs the same work involving identical skill, effort, responsibility, and working conditions, as Evans and Jones. Therefore, Irby has set forth a prima facie case of an EPA violation. We now consider whether appellees have carried their burden of proof on any of the affirmative defenses. Appellees assert two justifications for the pay disparity at issue: "a seniority system" and "factors other than sex." They do not contend that the differential was justified by a merit system or by a production measurement system.

1. Seniority System

Whether a seniority system exists is a matter of law. Mitchell, 936 F.2d at 544 (examining a seniority system under Sec. 703(h) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e-2(h)). The district court found that the Sheriff's Department did not maintain a seniority system justifying the salary difference between investigator Irby and investigators Evans and Jones. Irby v. Bittick, 830 F.Supp. 632, 636 (M.D.Ga.1993). The court stated that "a seniority system, like a merit system, should be uniformly enforced and written." Id. (citing Brock v. Georgia Southwestern College, 765 F.2d 1026, 1036 (11th Cir.1985) (merit system)). We agree. If a seniority "system" based on longevity with the Sheriff's Department is to be relied upon as an affirmative defense, appellees must be able to identify standards for measuring seniority which are systematically applied and observed. Cf. California Brewers Ass'n v. Bryant, 444 U.S. 598, 606-09, 100 S.Ct. 814, 820-21, 63 L.Ed.2d 55 (1980) (requiring ancillary rules in order to constitute a valid seniority system under Sec. 703(h) of Title VII); Mitchell, 936 F.2d at 544-45, 547 (rejecting a "seniority system" defense to both Title VII and EPA claims for failure to relate benefits to length of employment).

Appellees argue that transfers between divisions do not constitute promotions or demotions and that generally, pay is based solely upon year of hire by the Sheriff's Department. Under this "system," all investigators, patrol officers and support services officers are deputies, and the only way to be promoted is through elevation in rank, such as, to...