Simpson v. Merchants & Planters Bank

• Decision Date: 20 March 2006
• Docket Number: No. 04-3972.,04-3972.
• Citation: 441 F.3d 572
• Parties: Betty A. SIMPSON, Appellee, v. MERCHANTS & PLANTERS BANK, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

441 F.3d 572

Betty A. SIMPSON, Appellee, v. MERCHANTS & PLANTERS BANK, Appellant.

No. 04-3972.

United States Court of Appeals, Eighth Circuit.

Submitted: October 14, 2005.

Filed: March 20, 2006.

COPYRIGHT MATERIAL OMITTED

William S. Jackson, argued, Little Rock, Arkansas (Michelle M. Kaemmerling, on the brief), for appellant.

Eugene Hunt, argued, Pine Bluff, Arkansas, for appellee.

Before BYE, BEAM, and SMITH, Circuit Judges.

BEAM, Circuit Judge.

The primary question for this court is whether to reverse a jury's finding of a willful violation of the Equal Pay Act. 29 U.S.C. § 206(d). Finding sufficient evidence to allow a reasonable jury to find such violation, we affirm.¹

I. BACKGROUND

Because Merchants & Planters Bank appeals the district court's denial of a motion for judgment as a matter of law, we "assume as proven all facts the nonmoving party's evidence tended to show, resolve all conflicts in favor of the nonmoving party, and draw all reasonable inferences in favor of the nonmoving party." Jones v. Fitzgerald, 285 F.3d 705, 712 (8th Cir. 2002).

Merchants & Planters Bank was founded in 1890 in Clarendon, Arkansas. In late 2000, the Bank named J. Baxter Sharp, III, the co-chairman of its Board. He served in that capacity until 2001, when he became the chair. Sharp has also served as the Bank's counsel since 1992, a role which included policy development. The Bank's Personnel Policy provided for an annual evaluation for each employee.

Betty Simpson was hired by the Bank in 1977, and worked there until 2002. After leaving the Bank, Simpson sued the Bank for violating the Equal Pay Act. 29 U.S.C. § 206(d). Simpson alleged that she was paid less than J. Kendall Henry, a male co-worker, and that his job was equal to hers. In order "[t]o recover under the Equal Pay Act, [Simpson] must prove that [the Bank] discriminated on the basis of sex by paying different wages to employees of opposite sexes 'for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.'" Tenkku v. Normandy Bank, 348 F.3d 737, 740 (8th Cir.2003) (quoting 29 U.S.C. § 206(d)(1)).

Simpson began working as a teller on October 27, 1977. Approximately one year later, she moved to the loan department as its sole employee. She became assistant cashier and loan officer in 1982. According to the complaint Simpson filed with the Equal Employment Opportunity Commission (EEOC), when Simpson had replaced a male employee, she earned several thousand dollars less than the male predecessor in the same position.

By March of 1989, Simpson had become an Assistant Vice President. In this capacity, Simpson provided Federal Deposit Insurance Corporation (FDIC) and Arkansas State Bank required reports to the Board. She also created a spreadsheet, writing macros that would automatically produce six pages of calculations, to recreate a Board report derived from a national bankers' meeting. Simpson was responsible for determining the Bank's annual income and the Bank's shareholders' dividends. In 1991, Simpson learned how the Bank's accountants performed the conversion to cash, which resulted in a ten thousand dollar savings to the Bank that year. This cost-savings process was performed by Simpson annually thereafter. Simpson also saved the Bank thirteen thousand dollars one year by inventorying the Bank's commercial property and ensuring that the Bank was not taxed on property it no longer owned.

Simpson completed numerous reports to governmental agencies, none of which was ever rejected. Simpson compiled a monthly voluntary self-audit for the Arkansas State Bank. She produced the call report, a thirty-six page report to the FDIC, requiring the signature of the President and three Board members. Her work was only reviewed by the Board of Directors for the Bank and was never rejected by them. No one directly supervised Simpson, and even the Senior Vice President and Cashier could not answer questions about the call report. Simpson consulted and interpreted the FDIC regulations independently. Bonds provided the majority of the Bank's income, and Simpson was responsible for calculating the advantage in purchasing bonds at a discount or premium and the tax ramifications of the Bank's bond holdings. The President often asked Simpson her opinion on which bonds to purchase.

Simpson served as duty officer every fourth week. The duty officer had to close the Bank and set the alarms. This position rotated among Henry, Simpson, and two other employees. When Estelle Catlett, the Senior Vice President and Cashier, was on vacation or sick, Simpson performed her duties, including payroll and error reconciliation. Simpson also supervised all employees at the Bank, except the President and Vice President, during Catlett's daily lunch break and while Catlett was on vacation or sick.

All of the skills needed to do every job at the Bank were on-the-job acquired. During her time at the Bank, Simpson successfully completed a management school program at the University of Arkansas; the Arkansas Bankers Association's Lending, Marketing, and Management Schools; the Mid South School of Banking, Memphis State University; and investment seminars provided by First Tennessee Bank. In 1997, Simpson attended one computer school in South Dakota and another one in St. Louis. Simpson also publicly represented the Bank, including meeting with Senator Marion Berry, teaching a checkbook class, organizing a batting helmet drive for Mothers for Safer Little League, and serving on the Operations Committee for the Arkansas Bankers Association. In response to Simpson's 2002 EEOC complaint, the Bank reported that Simpson's duties were preparing monthly self-exam and quarterly reports, booking income and expenses, back-up bookkeeping, serving as security officer, issuing corporate shares and dividend checks, and providing investment information for monthly Board reports.

Simpson's sole written evaluation, for 1980, contained seven categories. Simpson received the highest possible score in six categories, and the next-highest score in the remaining category. The previous year, she had received a nine hundred dollar per annum raise. Simpson also performed work outside of regular hours, including at her house, and once even while she was in the hospital.

At trial, Simpson compared her position with a male employee, J. Kendall Henry. Henry was hired by the Bank in 1982. While working at the Bank, he completed a degree in finance at the University of Arkansas, Fayetteville. He attended the Mid South School of Banking, Memphis State University; the Arkansas Bankers Association's Basic/Intermediate, Audit, Lending, Marketing, and Management Schools; and the Dale Carnegie Course. Henry attended one of the two computer training programs that Simpson had attended. Henry represented the Bank by helping another bank with its compliance program and by serving with the Young Bankers. The Bank's 2002 EEOC response explained that Henry worked after hours and on weekends. It also stated that Henry's jobs were information system coordinator, loan review officer, bank secrecy act officer, part-time teller, and loan department associate. However, as of 1998, another employee had taken over as bank secrecy act officer. In addition, Henry performed the Bank's internal audits.

Henry received a written evaluation in 1996, which contained thirty-one categories. He received top marks in twenty-two categories and the next-highest score in the other nine categories. In 1996, the Bank's President requested that Henry receive a ten thousand dollar per annum raise, because he would graduate from the Mid South School of Banking the following year and had been trained to operate the computers which would be delivered the following year. Henry's salary exceeded Simpson's in 1996. At that time, he was an untitled bank officer and she was Assistant Vice President, and the computers had not yet been installed. Henry was promoted to Vice President in February 1997, and received approximately $7,000 more in salary that year than did Simpson. Henry did not graduate from the Mid South School of Banking until 1998.

In addition to the comparison between Henry's salary and Simpson's salary, Simpson introduced other evidence. The Bank's personnel policy treated male and female employees differently. For example, the policy addressed the scheduling problems for "ladies . . . with children going to school" and stated that sick leave could not be taken for maternity leave. A former Bank employee testified that the Bank President had said, I wish "the bitch would quit," when told that Simpson was absent from work.

At trial, Simpson offered further examples of inequitable treatment she received. Simpson made suggestions to the Bank President about putting in a wide-angle camera and new lighting in the drive-in for better security. He dismissed her ideas, but adopted them a year later when suggested by Henry. Henry was given greater latitude with working hours and often left work without telling anyone; in contrast, Simpson had to ask permission to leave and was twice denied permission to attend meetings required for re-qualification as the security officer. On December 31, 1999, Henry left at ten o'clock in the morning to be at a sporting event the following day, telling the employees who were finishing the year-end balancing to call a computer support company in South Dakota. Rheta Griffith, the Executive Vice President and a member of the Board, admitted that she had probably said a man was needed at the Bank, because so few men worked there. Finally, Simpson testified that Griffith had told her that men in Clarendon need to be paid more than women.

The jury returned a verdict in favor Simpson on her Equal Pay Claim, finding that (1) Simpson and Henry were employed by Merchants & Planters Bank in jobs requiring substantially equal...