Taylor v. White

• Decision Date: 04 March 2003
• Docket Number: No. 02-1165.,02-1165.
• Citation: 321 F.3d 710
• Parties: Esther S. TAYLOR, Appellant, v. Thomas E. WHITE, Secretary of the Army, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

321 F.3d 710

Esther S. TAYLOR, Appellant, v. Thomas E. WHITE, Secretary of the Army, Appellee.

No. 02-1165.

United States Court of Appeals, Eighth Circuit.

Submitted: June 28, 2002.

Filed: March 4, 2003.

John T. Lavey, argued, Little Rock, AR, for appellant.

Captain Kevin J. Mikolashek, argued, Department of Army, Arlington, VA, for appellee.

Before WOLLMAN, MORRIS SHEPPARD ARNOLD, and MELLOY, Circuit Judges.

MELLOY, Circuit Judge.

In this Title VII unequal pay case, Plaintiff/Appellant Esther S. Taylor appeals the district court's¹ grant of summary judgment in favor of her employer, Defendant/Appellee Secretary of the Army Thomas E. White (the Army). Because Taylor failed to identify evidence that would create a genuine question of material fact to rebut the Army's affirmative defense, we affirm.

I.

Taylor was a civilian employee at the Army's Pine Bluff, Arkansas Arsenal (the Arsenal). From early February 1995 through June 1998, she worked on a temporary program known as the Munitions Items Disposition Action System or MIDAS. Taylor's duties under the MIDAS program related to the preparation of detailed technical reports to describe unwanted conventional munitions. The purpose of the MIDAS program was to facilitate the disposal of these munitions.

Taylor was not a veteran, but she had worked for the Arsenal for many years before joining the MIDAS program. She first worked for the Arsenal from 1963 through 1969, at which time she quit to raise her family. In 1981 she returned to the Arsenal as a grade GS-4 timekeeper in the office of the Directorate of Manufacturing Operations.² Between 1983 and 1993 she worked as a munitions inspector and progressed in salary and title from grade WG-6 munitions inspector to grade WG-9 munitions inspector.³ In 1993, through a formal reduction-in-force process, she was downgraded and transferred to the Arsenal's Directorate of Product Assurance as a grade GS-4 quality assurance clerk.

Due to application of the statutory salary retention policy of 5 U.S.C. § 5362, Taylor was entitled to retain her higher, WG-9 grade and salary for a limited period of time following the reduction-in-force.⁴ Therefore, immediately prior to joining the MIDAS program under the Directorate of Product Assurance in 1995, she worked as a GS-4 quality assurance clerk in the Directorate of Product Assurance but received statutorily protected pay at the WG-9 level. She does not allege that her demotion during the earlier reduction-in-force involved discrimination or that her GS-4 ranking demonstrated historical discrimination by the Army.

Theodis J. Thornton and Willie J. Early were Taylor's male co-workers on the MIDAS program. Both were GS-11 quality assurance specialists before placement with the MIDAS program. Thornton was an Army veteran and Arsenal employee since 1978. Early was a Marine veteran and Arsenal employee since 1979. Linda Jones was Taylor's female coworker on the MIDAS program. Jones was a GS-9 engineering technician.

Prior to placement with the MIDAS program, Taylor, Early and Thornton were on the Arsenal's "surplus roster." On the surplus roster, they faced uncertain job security. The record is not clear regarding the precise nature of this uncertainty such as the likelihood or timing of possible layoffs or demotions. However, it is undisputed that Arsenal management generally attempted to fill vacant positions with surplus roster personnel to avoid layoffs. Jones was not on the surplus roster prior to her placement with the MIDAS program.

The MIDAS program originally had the potential to be funded for three years, but was obtained as a temporary program of uncertain duration. Ultimately, control over the MIDAS program rested with the U.S. Army Defense Ammunition Center and School in Savannah, Illinois. Local control over the MIDAS program at the Arsenal was originally held by the Arsenal's Directorate of Engineering and Technology. While Taylor, Early, and Thornton were on the surplus roster, quality assurance supervisor John Hill negotiated transfer of the MIDAS program jobs and funding from the Arsenal's Directorate of Engineering and Technology to the Directorate of Product Assurance. Hill was able to obtain local control of the MIDAS program from the Directorate of Engineering and Technology due to poor performance by that Directorate and due to a threat from Savannah to withdraw the MIDAS program and its funding from the Arsenal. By securing the MIDAS program for the Directorate of Product Assurance, Hill created positions for Taylor, Thornton, and Early thus removing these three employees from the surplus roster.

Taylor, her female coworker Jones, and her male coworkers Thornton and Early commenced work under the MIDAS program in late January and early February 1995. At that time, the Civilian Personnel Office (CPO) had not yet classified the MIDAS positions and duties under the GS system. Taylor, Jones, Thornton, and Early simply assumed new duties, received limited group training, and continued to receive pay at their prior, unequal, pre-MIDAS grades — Taylor at the WG-9 level, Jones at the GS-9 level, and Thornton and Early at the GS-11 level. Previously, when the MIDAS program was under the Directorate of Engineering and Technology, one of the MIDAS workers was a male rated at level GS-12. The record is unclear regarding the historical grades and duties of other, prior MIDAS workers.

Notwithstanding these different classifications and salaries, it is undisputed that during at a least a portion of their time together under the MIDAS program, Taylor, Jones, Thornton, and Early performed identical work under identical conditions. When their MIDAS work began Taylor and her co-workers shared a lack of relevant experience and training. They learned to perform MIDAS work together by trial and error and through joint training.

In the summer of 1995, Hill submitted a written description of the MIDAS workers' duties to the CPO. In addition, he claims to have recommended classification of these duties at grade GS-9. In August of 1995, about six months after Taylor and her coworkers joined the MIDAS program, but before Taylor's statutory salary retention benefits expired, the CPO classified the MIDAS positions at grade GS-7. After the classification, Thornton and Early maintained their GS-11 grades and salaries. Because Jones returned to her previous position shortly before the classification, she was unaffected by the CPO's action. Jones maintained her grade GS-9 status throughout her entire tenure with the MIDAS program.

After the CPO classification, Taylor was promoted from grade GS-4 to grade GS-7. Because she had been receiving statutorily protected pay at the WG-9 level for two years, her three grade promotion did not appear to provide a dramatic salary increase. Taylor's two year benefit period under 5 U.S.C. § 5362 would have expired in October of 1995 had she not been promoted to the GS-7 level.

Jacquelyne Evans, a position classification specialist from the CPO, claims that the CPO relied on Hill's written description to classify the MIDAS duties at grade GS-7. Taylor does not dispute that the CPO relied on Hill's written description. However, she alleges that reliance on the written description was irregular and notes that Evans does not recall Hill recommending classification at grade GS-9. In addition, Taylor notes that no CPO personnel conducted a "desk audit" or personal interview of Taylor, Early, or Thornton to explore first-hand the tasks involved with the performance of their MIDAS duties. Although Taylor attacks the classification process, she presents no evidence to suggest that a desk audit was required, that such interviews were a mandatory part of the position classification process, or that reliance on a supervisor's written description was impermissible. Accordingly, although Taylor has identified a question of fact regarding whether or not Hill recommended classification at grade GS-9, it is clear that the CPO did not rely on any such recommendation and Taylor's unsupported critique of the classification process cannot support an inference of discrimination.

Shortly after the CPO classification, Thornton acquired additional, non-MIDAS program duties and devoted only about fifty percent of his time to the MIDAS program. In April 1996, he was promoted to GS-12. Although Thornton continued to share some duties that were identical to those of Taylor and Early, Taylor does not allege that her workload was equal to that of Thornton's after the scope of his duties expanded. Early continued to receive a GS-11 salary under the MIDAS program until October 11, 1997, when he returned to his prior, GS-11 position. Taylor performed the same work as Early throughout this entire time but received pay at the GS-7 level. Taylor remained with the MIDAS program through its termination in May, 1997. At that time she returned to a GS-4 position to perform GS-4 duties, but maintained her GS-7 grade and salary.

In September 1995, after Taylor was promoted to grade GS-7, she met with the Arsenal's EEO Officer to complain about the disparity between her salary and the salaries of her male coworkers. The Officer made an appointment for Taylor to meet with James L. Bacon, the Executive Assistant and second-in-command at the Arsenal. In October of 1995, Bacon met with Taylor and told her that he would respond at a later time. On May 9, 1996, after receiving no response for over six months, Taylor sent Bacon a memo requesting action to correct the wage disparity and requesting a status report. Bacon did not respond to Taylor's May 9 memo. However, in the same general time frame that Bacon received Taylor's memo-six months after Taylor first complained and over sixteen months after Early's placement in the MIDAS program-Bacon's office acted to formalize and document Early's status as a GS-11 worker performing GS-7 duties. The documentation accompanying Early's...