Reddy M.D. et al v. Department of Education, The State of Alabama

Filing 49

MEMORANDUM OPINION. Signed by Magistrate Judge Staci G Cornelius on 9/28/18. (MRR, )

FILED
2018 Sep-28 PM 03:20
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
KRISHNA REDDY, M.D., et al.,
Plaintiffs,
v.
STATE OF ALABAMA
DEPARTMENT OF EDUCATION,
Defendant.

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Case No.: 2:16-cv-01844-SGC

MEMORANDUM OPINION1
The plaintiffs, Krishna Reddy, M.D., and Gloria Sellman, M.D., commenced
this action against the defendant, the State of Alabama Department of Education,
stating counts for sex discrimination under Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e, et seq., and a violation of the Equal Pay Act, 29 U.S.C. §
206(d). (Doc. 1). Pending before the undersigned are the parties’ cross-motions
for summary judgment and the defendant’s motion to strike portions of the
plaintiffs’ briefs in support of their summary judgment motions. For the reasons
discussed below, the plaintiffs’ motions for summary judgment (Docs. 30, 31) are
due to be denied, the defendant’s motion for summary judgment (Doc. 24) is due

1

The parties have consented to the exercise of dispositive jurisdiction by a magistrate judge
pursuant to 28 U.S.C. § 636(c). (Doc. 8).

to be granted, the defendant’s motion to strike (Doc. 35) is due to be denied as
moot, and this action is due to be dismissed with prejudice.
I. Material Facts2
The plaintiffs are female Disability Determination Physicians employed by
Disability Determination Services, a division of the State of Alabama Department
of Education. (Doc. 26-1 at 3). Their comparator, Peter Sims, M.D., is a male
Disability Determination Physician employed by the same state agency. (Id.). The
position of Disability Determination Physician is assigned to Pay Grade 91 in the
State’s pay plan. (Doc. 32-2). Pay Grade 91 has eighteen steps. (Id.). Typically,
appointment to the position is at Step 1. (Doc. 25 at 5 (citing Rule 670-X-8-.02 of
the Alabama Administrative Code)). However, appointment above the minimum
step is possible.

(Doc. 26-1 at 2; Doc. 26-2 at 6).

Dr. Reddy received an

appointment to the position effective October 1, 2009, at Step 3, earning
$122,232.00 annually. (Doc. 26-1 at 3-4). Dr. Sellman received an appointment to
the position effective September 1, 2010, at the same step, earning the same annual
salary. (Id. at 4). Dr. Sims received an appointment to the position effective
December 16, 2014, at Step 14, earning $160,440.00 annually. (Id. at 4-5). On
completion of a six-month probationary period following their respective
appointments, Drs. Reddy, Sellman, and Sims each advanced two steps on the
2

The following facts are undisputed, unless otherwise noted. They are viewed in the light most
favorable to the non-movant, with the non-movant given the benefit of all reasonable inferences.

2

applicable pay grade.

(Doc. 1 at 7; Doc. 26-3 at 15; Doc. 32-10 at 19-22).

Thereafter, they each received a two-step merit raise each year those raises were
not frozen for budgetary reasons. (Doc. 1 at 7; Doc. 26-1 at 6, 9-71; Doc. 26-2 at
7). Two steps is the maximum number of steps that may be awarded as a merit
raise.3 (Doc. 26-1 at 6; Doc. 26-2 at 7). Dr. Sims “topped out,” reaching Step 18
of the applicable pay grade, on June 1, 2016. (Doc. 32-10 at 20). Drs. Reddy and
Sims continue to climb the steps on that pay grade. (Id.).
Dr. Reddy is a board-certified neurologist. (Doc. 32-4 at 4). She practiced
neurology at Birmingham Neurology, P.A. from July 1980 to her retirement in
August 2005. (Id. at 3). During that time, she intermittently performed physical
examinations for Disability Determination Services. (Doc. 32-24 at 3). Between
2007 and 2008, she was employed by the Association of Retarded Citizens, St.
Clair County as a residential worker caring for three mentally disabled men4and by
Pell City Parks and Recreation as an office worker. (Id. at 2-3). In May 2008, Dr.
Reddy began working as a clinical research coordinator in the Department of
Nephrology at the University of Alabama at Birmingham. (Doc. 27-2 at 10, 15).
Dr. Reddy testified the position would normally be staffed by a registered nurse.
3

Special merit raises – awarded for performance exceeding that which would justify a two-step
merit raise – were frozen for budgetary reasons from January 1, 2009, to January 21, 2015 (Doc.
42-1 at 2-4), and the Department of Education has not requested a special merit raise for any of
its employees since those raises were frozen in 2009 (Doc. 26-1 at 7; Doc. 26-2 at 9).
4
She was not providing medical care to the men. (Doc. 27-2 at 8). Her caregiving role was in
the nature of a supervisor. (Id.).

3

(Id. at 10). In describing her responsibilities, Dr. Reddy testified she looked at
patient records, talked to patients, collected lab data and input it into a database,
collected patient specimens, and performed cost studies. (Id. at 15). Additionally,
in the latter half of 2008, Dr. Reddy began examining Veterans for neurological
conditions every other Saturday for the Veterans Administration. (Id. at 12).
As part of the application process for the position of Disability
Determination Physician, Dr. Reddy submitted a Form W-2 indicating she earned
$77,908.65 during the last six months she practiced neurology at Birmingham
Neurology, P.A. (Doc. 26-1 at 4; Doc. 27-2 at 10). Dr. Reddy did not submit any
information regarding the pay she received as a clinical research coordinator or
examining Veterans. (Doc. 27-2 at 12). She testified her salary as a clinical
research coordinator was $57,000.00 annually and that she earned $230.00 per
hour working approximately six hours every other Saturday for the Veterans
Administration. (Doc. 27-2 at 13-14).
Dr. Sellman is a board-certified anesthesiologist. (Doc. 32-30 at 5). From
1986 to 1996, she held concurrent academic appointments and clinical positions at
Georgetown University School of Medicine, the National Institutes of Health, the
University of North Carolina at Chapel Hill School of Medicine, the University of
Alabama at Birmingham School of Medicine, and the Children’s Hospital of
Alabama. (Doc. 32-30 at 6). Between 1998 and 2007, she was employed as the
4

chief executive officer of VectorLogics, Inc., a biotechnology company. (Id. at 5).
From August 2008 to September 2010, she worked under contract as a medical
consultant for the Department of Disability Services.

(Id.). As part of the

application process for the position of Disability Determination Physician, Dr.
Sellman submitted her medical consultant contract with the Department of
Disability Services. (Doc. 26-1 at 4). That contract allowed her to earn up to
approximately $140,000.00 annually, although in 2009 and the first eight months
of 2010 she only worked enough hours to earn $101,232.00 and $71,854.00,
respectively. (Doc. 26-1 at 4; Doc. 27-4 at 17; Doc. 32-31 at 3).
Dr. Sims is a board-certified psychiatrist. Prior to his appointment to the
position of Disability Determination Physician, he worked under contract as a parttime medical consultant for the Department of Disability Services for
approximately fourteen years. (Doc. 27-5 at 2). Additionally, he had maintained a
private practice in psychiatry since the early- to mid-1990s. (Id. at 3; Doc. 29-1 at
31-32; Doc. 32-10 at 11-12). As part of the application process for the position,
Dr. Sims submitted documentation showing a cumulative salary in excess of
$198,950.00. (Doc. 26-1 at 4).
Tommy Warren was the Director of Disability Services at the time Drs.
Reddy and Sellman were appointed to the position of Disability Determination
Physician. (Doc. 27-3 at 2). He recommended their appointments, as well as the
5

step at which each should be appointed. (Id.). Norman Ippolito was the Director
of Disability Services at the time Dr. Sims was appointed to the position of
Disability Determination Physician. (Doc. 27-5 at 2). He recommended Dr. Sims
appointment and the step at which Dr. Sims should be appointed. (Id.). Jim
Methvin is the current Director of Disability Services. (Doc. 28-3 at 1). He
interviewed Drs. Reddy, Sellman, and Sims for the position of Disability
Determination Physician. (Id. at 2). He also investigated the grievances Drs.
Reddy and Sims lodged regarding their salaries. (Doc. 32-24 at 4; Doc. 32-31 at 15). He sent a letter to each of the plaintiffs informing her he had determined her
grievance was unfounded. (Doc. 32-24 at 4; Doc. 32-31 at 1-5).
Warren, Ippolito, and Methvin testified that appointment above the
minimum step of the applicable pay grade involves consideration of several
factors, including an applicant’s current work and past experience with Disability
Determination Services and other employers. (Doc. 27-3 at 2; Doc. 27-5 at 2; Doc.
28-3 at 2). They testified that whether, at the time of his or her appointment, a
physician is working in a clinical setting, providing medical treatment to and
interacting with patients, is extremely important in considering an above-theminimum appointment. (Doc. 27-3 at 2; Doc. 27-5 at 2; Doc. 28-3 at 2). Ippolito
testified it is difficult to recruit and retain psychiatrists to work for Disability
Determination Services. (Doc. 27-5 at 2). He further testified he felt it was
6

important for Disability Determination Services to have a full-time psychiatrist on
staff to evaluate mental health claims and that it would be a great benefit to the
operation of Disability Determination Services to employ a psychiatrist with Dr.
Sims’ experience evaluating these types of claims. (Id. at 2-3). It was Ippolito’s
understanding Disability Determination Services had never employed a
psychiatrist full-time before Dr. Sims. (Id. at 2). Methvin echoed Ippolito’s
testimony that Disability Determination Services has difficulty recruiting
psychiatrists and further testified Drs. Reddy and Sellman did not have a
specialization that was difficult to recruit. (Doc. 28-3 at 3). Warren, Ippolito, and
Methvin testified an applicant’s current salary is another factor relevant to an
above-the-minimum appointment but is considered only in conjunction with other
factors. (Doc. 27-3 at 2; Doc. 27-5 at 2; Doc. 28-3 at 2).
II. Standard of Review
A district court must grant summary judgment if the movant shows there is
no genuine issue as to any material fact and that the movant is entitled to judgment
as a matter of law. FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986). The movant bears the initial burden of informing the court of the basis
for its motion and identifying those portions of the pleadings or filings it believes
demonstrate the absence of a genuine issue of material fact. FED. R. CIV. P. 56(a);
Celotex Corp., 477 U.S at 323. Once the movant has met its burden, the non7

movant must go beyond the pleadings and identify specific facts showing there is a
genuine issue for trial. FED. R. CIV. P. 56(c); Celotex Corp., 477 U.S. at 324.
The substantive law identifies which facts are material and which are
irrelevant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The
court should resolve all reasonable doubts about the facts, and draw all justifiable
inferences, in the non-movant’s favor. Fitzpatrick v. City of Atlanta, 2 F.3d 1112,
1115 (11th Cir. 1993).

A dispute is genuine if the evidence would allow a

reasonable jury to return a verdict for the non-movant. Anderson, 477 U.S. at 248.
If the evidence is merely colorable, or is not significantly probative, summary
judgment may be granted.

Id. at 249.

Moreover, mere conclusions and

unsupported factual allegations are not sufficient to defeat summary judgment.
Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005).
III. Discussion
A. Equal Pay Act Claim
An employee demonstrates a prima facie case of an Equal Pay Act violation
by showing the employer paid employees of opposite sexes different wages for
equal work for jobs that require equal skill, effort, and responsibility and that are
performed under similar working conditions. 29 U.S.C. § 206(d)(1); Steger v.
Gen. Elec. Co., 318 F.3d 1066, 1077-78 (11th Cir. 2003). Once the employee
demonstrates a prima facie case, the employer may avoid liability by proving by a
8

preponderance of the evidence the difference in pay is based on (i) a seniority
system, (ii) a merit system, (iii) a system that measures earnings by quantity or
quality of production, or (iv) any other factor other than sex.
206(d)(1); Steger, 318 F.3d at 1078.

29 U.S.C. §

The burden to prove these affirmative

defenses is heavy and requires the employer to show sex provided no basis for the
difference in pay and that no decision-maker was influenced by sex. Id. at 1078.
Once the employer has met this burden, the employee must rebut the explanation
by showing with affirmative evidence that it is pretextual or offered as a post-event
justification for a sex-based pay differential. Id. If the employee is able to create
an inference of pretext, there is an issue that should be reserved for trial. Irby v.
Bittick, 44 F.3d 949, 954 (11th Cir. 1995). Assuming Drs. Reddy and Sellman
have established a prima facie case of an Equal Pay Act violation, the defendant
has proved by a preponderance of the evidence that factors other than sex account
for the difference in pay between the plaintiffs and their comparator, and the
plaintiffs have failed to rebut this explanation.5

5

The defendant has moved for summary judgment on a variety of grounds, including that (1) it is
not a proper party to this action because the State Personnel Board, not the Department of
Education, establishes pay for Disability Determination Physicians, (2) the plaintiffs have failed
to establish a prima facie case of an Equal Pay Act violation, and (3) the State of Alabama’s
merit system is an affirmative defense to any such violation. (Doc. 25). Because the defendant
has demonstrated factors other than sex were responsible for the step at which Dr. Sims was
appointed as compared to the step at which Drs. Reddy and Sellman were appointed, it is not
necessary to address these arguments.

9

The fourth affirmative defense to an Equal Pay Act violation is a “catch-all”
that prevents a court for substituting its own judgment for that of an employer.
Prewett v. Alabama Dep’t of Veterans Affairs, 533 F. Supp. 2d 1160, 1176 (M.D.
Ala. 2007). The Eleventh Circuit has found that factors other than sex justifying a
pay differential include unique characteristics of the same job; an individual’s
experience, training, or ability; and special exigent circumstances connected with
the business. Glenn v. General Motors Corp., 841 F.2d 1567, 1571 (11th Cir.
1988). Prior salary alone is not a legitimate reason other than sex for a pay
differential. Irby, 44 F.3d at 955. “[I]f prior salary alone were a justification, the
exception would swallow up the rule and inequality in pay among genders would
be perpetuated.” Id. (internal quotation marks omitted). However, prior salary and
experience, together, may satisfy an employer’s burden of proving a factor other
than sex accounts for a pay differential. Id. (“This court has not held that prior
salary can never be used by an employer to establish pay, just that such a
justification cannot solely carry the affirmative defense.”).

The question is

whether other business reasons reasonably explain the use of prior salary. Id.
As an initial matter, the undersigned notes the dispositive question is
whether factors other than sex account for the different steps at which the plaintiffs
and their comparator were appointed.

From the time of their respective

appointments, Drs. Reddy, Sellman, and Sims have each received the same two10

step raises. They each received a two-step raise on completion of an initial sixmonth probationary period. (Doc. 1 at 7; Doc. 26-3 at 15; Doc. 32-10 at 19-22).
Thereafter, they each received a two-step merit raise each year those raises were
not frozen for budgetary reasons. (Doc. 1 at 7; Doc. 26-1 at 6, 9-71; Doc. 26-2 at
7). Two steps is the maximum number of steps that may be awarded as a merit
raise. (Doc. 26-1 at 6; Doc. 26-2 at 7). Special merit raises were frozen for
budgetary reasons from January 1, 2009, to January 21, 2015 (Doc. 42-1 at 2-4),
and the Department of Education has not requested a special merit raise for any of
its employees since those raises were frozen in 2009 (Doc. 26-1 at 7; Doc. 26-2 at
9). The plaintiffs claim the pay gap between themselves and Dr. Sims should have
been further narrowed because their work is more onerous than his and they have
outperformed him. (Doc. 36 at 17-18, 23; Doc. 39 at 17-18). They further claim
the gap could have been further narrowed because Disability Determination
Services is federally funded and not subject to state budgetary considerations.
(Doc. 36 at 25-26; Doc. 39 at 19 n.7). Both of these arguments are irrelevant.
Regardless of the quantity and quality of the plaintiffs’ work relative to their
comparator, and whether Disability Determination Services is federally funded, the
plaintiffs could not have advanced more steps on the applicable pay grade since
their respective appointments.

Accordingly, analysis of the plaintiffs’ claims

focuses on the steps at which they and their comparator were appointed.
11

1. Prior Experience with Disability Determination Services
The defendant has shown a variety of factors other than sex justified
appointing Dr. Sims at Step 14 of the applicable pay grade, while Drs. Reddy and
Sellman were appointed at Step 3. First, Dr. Sims worked part-time for Disability
Determination Services as a contracted medical consultant reviewing disability
applications for approximately fourteen years before he received an appointment to
the position of Disability Determination Physician. (Doc. 27-5 at 2). While Dr.
Sellman also worked for Disability Determination Services as a contracted medical
consultant reviewing disability applications prior to her appointment, the length of
that experience – approximately two years – does not compare to the length of Dr.
Sims’ experience.

(Doc. 36 at 21).

Dr. Reddy’s experience with Disability

Determination Services prior to her appointment was limited to intermittent
physical examinations of disability applicants while working at Birmingham
Neurology. (Doc. 32-24 at 3; Doc. 36 at 21).
Drs. Reddy and Sellman argue this explanation is pretextual because at the
time of Dr. Sims’ appointment, they had worked more hours and reviewed more
cases for Disability Determination Services than Dr. Sims. (Doc. 36 at 21; Doc. 39
at 20).

However, the relevant inquiry is not the amount of experience with

Disability Determination Services Drs. Reddy and Sellman had accrued at the time
of Dr. Sims’ appointment. Rather, it is the amount of experience each physician
12

had with Disability Determination Services at the time of their respective
appointments.

The defendant has shown Dr. Sims had substantially more.

Disability Determination Services had the benefit of more than a decade to
familiarize itself with Dr. Sims’ work, and likewise, Dr. Sims came into his
position as a Disability Determination Physician with more than a decade’s worth
of knowledge of the position and what was expected. This was not true for the
plaintiffs.
2. Current Clinical Experience at Time of Appointment
Second, at the time of his appointment to the position of Disability
Determination Physician, Dr. Sims maintained a private practice in psychiatry.
(Doc. 27-5 at 3; Doc. 29-1 at 31-32). Warren, Ippolito, and Methvin testified that
whether, at the time of his or her appointment, a physician is working in a clinical
setting, providing medical treatment to and interacting with patients, is extremely
important in considering an above-the-minimum appointment. (Doc. 27-3 at 2;
Doc. 27-5 at 2; Doc. 28-3 at 2). Dr. Sellman had not treated patients for more than
ten years preceding her appointment. (Doc. 32-30 at 5-6). While the parties
disagree whether Dr. Reddy’s employment as a clinical research coordinator could
be considered clinical experience, it is undisputed Dr. Reddy was not examining or
treating patients as a physician. Dr. Reddy testified the position would normally be
staffed by a registered nurse. (Doc. 27-2 at 10). In describing her responsibilities,
13

Dr. Reddy testified she looked at patient records, talked to patients, collected lab
data and input it into a database, collected patient specimens, and performed cost
studies. (Id. at 15). Although her testimony is evidence she interacted with
patients in a clinical setting, it demonstrates she was not examining or treating
them as a physician.

Dr. Reddy was examining Veterans for neurological

conditions on behalf of the Veterans Administration at the time of her appointment,
but she only performed these examinations every other Saturday. (Doc. 27-2 at
12). That limited amount of patient contact, commenced a matter of months before
her appointment, is distinguishable from the regular patient contact that comes
with maintaining a private practice, even part-time.
Finally, Drs. Reddy and Sellman claim they have more cumulative years of
and/or greater experience examining and treating patients than Dr. Sims. (Doc. 36
at 19; Doc. 39 at 19-20). Dr. Reddy further claims she is the only Disability
Determination Physician still performing clinical work. (Doc. 36 at 20). However,
the relevant inquiry is the extent to which Drs. Reddy and Sellman were engaged
in the practice of medicine at the time of their respective appointments.

As

discussed above, this consideration distinguishes Dr. Sims from Drs. Reddy and
Sellman.

14

3. Specialty
Third, Disability Determination Services placed a high value on Dr. Sims’
specialty – psychiatry.

Ippolito testified it is difficult to recruit and retain

psychiatrists to work for Disability Determination Services. (Doc. 27-5 at 2). He
further testified he felt it was important for Disability Determination Services to
have a full-time psychiatrist on staff to evaluate mental health claims and that it is
a great benefit to the operation of Disability Determination Services to employ a
psychiatrist with Dr. Sims’ experience evaluating these types of claims. (Id. at 23). It was Ippolito’s understanding Disability Determination Services had never
employed a psychiatrist full-time before Dr. Sims. (Id. at 2). Methvin echoed
Ippolito’s testimony Disability Determination Services has difficulty recruiting
psychiatrists and further testified Drs. Reddy and Sellman did not have a
specialization that was difficult to recruit. (Doc. 28-3 at 3).
As evidence of pretext, Drs. Reddy and Sellman note Dr. Sims approached
Disability Determination Services about the position of Disability Determination
Physician, while they claim to have been recruited. (Doc. 36 at 23-24; Doc. 39 at
23). They further note the job posting to which Dr. Sims responded was not
directed to psychiatrists specifically. (Doc. 36 at 24; Doc. 39 at 24). Finally, they
claim Dr. Sims was “in a three-way tie for 2nd place” on a list of eligible applicants
for the position of Disability Determination Physician and point out he did not
15

negotiate his salary. (Doc. 36 at 24; Doc. 39 at 23-24).6 None of this evidence
creates a reasonable inference Dr. Sims’ specialty was not a consideration in
setting his starting salary.
Additionally, Drs. Reddy and Sellman argue the defendant’s reliance on
Sims’ hard-to-recruit specialty is a post-event justification for a sex-based pay
differential because it was not identified as a justification in letters Methvin sent
them informing them he had determined their grievances were unfounded. (Doc.
36 at 20; Doc. 39 at 21). While Methvin’s letter to Dr. Reddy did not explicitly
state it is difficult for Disability Determination Services to recruit and retain
psychiatrists, it did note Dr. Sims was the first psychiatrist appointed to the
position of Disability Determination Physician and identify Dr. Sims’ specialty as
a distinguishing feature between Dr. Sims and Dr. Reddy. (Doc. 32-24 at 3-4).
Methvin’s letter is consistent with the defendant’s briefing of its affirmative
defense.7
6

The plaintiffs claim they attempted to negotiate for a higher salary but were told by Methvin
that appointing them any higher than at Step 3 would require a lot of paperwork and delay.
(Doc. 33 at 7; Doc. 34 at 6). Given that the plaintiffs acknowledge Dr. Sims did not negotiate his
salary either, Methvin’s alleged statement does not create an inference of pretext.
7
Drs. Reddy and Sellman further argue the defendant does not really value experience or
specialty because Victoria Hogan, M.D., was appointed to the position of Disability
Determination Physician effective August 18, 2008, at Step 11 of Pay Grade 91 with no prior
experience working for Disability Determination Services, at most two years of clinical
experience, and no alleged hard-to-recruit specialty. (Doc. 36 at 22; Doc. 39 at 22-23).
However, Warren, Ippolito, and Methvin testified current, not cumulative, experience examining
and treating patients is extremely important in considering an above-the-minimum appointment.
(Doc. 27-3 at 2; Doc. 27-5 at 2; Doc. 28-3 at 2). Moreover, prior experience with Disability
Determination Services and specialty are only two of the factors considered in determining the

16

4. Prior Salary
Finally, Dr. Sims’ income at the time of his appointment exceeded that of
Drs. Reddy and Sellman at the time of their respective appointments. In applying
for the position of Disability Determination Physician, Dr. Sims submitted
documentation showing a cumulative annual income exceeding $198,950.00 (Doc.
26-1 at 4), Dr. Reddy submitted documentation showing income of $77,908.65 in
the first six months of 2005 (Doc. 26-1 at 4; Doc. 27-2 at 10),8 and Dr. Sellman
submitted documentation showing an income of $101,232.00 in 2009 and
$71,854.00 in the first eight months of 2010 (Doc. 26-1 at 4; Doc. 27-4 at 17; Doc.
32-31 at 3). The Directors of Disability Determination Services who appointed
Drs. Reddy and Sellman and Dr. Sims, respectively, testified an applicant’s current
salary is a consideration in determining whether to appoint him or her at a step
above the minimum within the applicable pay grade but only in conjunction with
other factors, including those discussed above. Although prior pay alone is not a

step at which an applicant is appointed. (Doc. 27-3 at 2; Doc. 27-5 at 2; Doc. 28-3 at 2).
Accordingly, the example of Dr. Hogan does not create a reasonable inference of pretext.
8
The Classification and Pay Manager for the State Personnel Department testified she used this
documentation to extrapolate an annual salary of approximately $155,000.00 that would support
Dr. Reddy’s appointment at Step 3 of the applicable pay grade. (Doc. 26-3 at 17-18). She
further testified her reliance on this documentation was in error because the State Personnel
Department only accepts documentation of an applicant’s current salary or salary within the prior
six months. (Id. at 18). The defendant claims acceptable documentation – documentation
showing Dr. Reddy’s annual income of $57,000.00 from the University of Alabama at
Birmingham and additional income from the Veterans Administration – would have required her
appointment at Step 1. (Doc. 25 at 10).

17

defense to an Equal Pay Act violation, prior pay coupled with other legitimate
factors other than sex, such as those discussed above, is. See Irby, 44 F.3d at 955.
Drs. Reddy and Sellman argue this explanation is pretext because it was not
identified as a justification in the aforementioned Methvin letter. (Doc. 36 at 20;
Doc. 39 at 21). However, Methvin’s letter did note current salary was one factor
relevant to an applicant’s appointment above the minimum step and that Dr. Sims
submitted documentation showing a cumulative annual income exceeding
$198,950.00. (Doc. 32-24 at 2-3; Doc. 32-31 at 2, 4). Dr. Sellman further claims
the explanation is pretext because the income Dr. Sims earned as a contractor for
Disability Determination Services was used in determining the step at which he
was appointed, while hers was not. (Doc. 39 at 22). She cites no evidence that
supports this claim.
In sum, the defendant has established by a preponderance of the evidence
that factors other than sex account for the appointment of Dr. Sims at Step 14,
while Drs. Reddy and Sellman were appointed at Step 3.
B. Title VII Claim
Like the Equal Pay Act, Title VII prohibits wage discrimination on the basis
of sex. 42 U.S.C. § 2000e-2(a).

Moreover,

the

Bennett

Amendment

incorporates the Equal Pay Act’s affirmative defenses into Title VII. Prewett, 533
F. Supp. 2d at 1185 (citing County of Washington v. Gunther, 452 U.S. 161, 17018

71 (1981)).

Accordingly, employers may defend against a Title VII sex

discrimination claim by demonstrating that factors other than sex explain a pay
differential. Prewett, 533 F. Supp. 2d at 1185-86 (citing Corning Glass Works v.
Brennan, 417 U.S. 188, 198-201 (1974)). Where a defendant has established an
Equal Pay Act affirmative defense and a plaintiff has failed to rebut it by creating
an inference of pretext, that defense is dispositive of a Title VII claim based on the
same underlying facts. Prewett, 533 F. Supp. 2d at 1186.
The Title VII claim asserted by Drs. Reddy and Sellman is based on the
same facts underlying their Equal Pay Act claim. (Doc. 1). Because the defendant
has established that factors other than sex account for the different steps at which
the plaintiffs and their comparator were appointed, and the plaintiffs have failed to
rebut this defense with affirmative evidence of pretext, the plaintiffs’ Title VII
claim fails, as well. See Prewett, 533 F. Supp. 2d at 1185-86.9

9

The undersigned notes that in the context of their Title VII claim, the plaintiffs offer the
additional argument that an intent to discriminate is evidenced by Methvin’s response to their
grievances regarding the inequity of their pay. (Doc. 36 at 29-30; Doc. 39 at 28-30). They
describe Methvin’s investigation of their grievances as scant because Methvin did not compare
the annual performance appraisal scores, production rates, or job duties of the Disability
Determination Physicians and did not interview or observe the work of the plaintiffs or their
comparator. (Doc. 36 at 29-30; Doc. 39 at 28-30). None of these things are relevant to the
determination whether sex motivated the step at which each physician was appointed. They
allege Methvin told them “life isn’t fair” and came across as nonchalant regarding their concerns.
(Doc. 36 at 29-30; Doc. 39 at 28-30). Even assuming the allegation is true, it is not sufficiently
probative to defeat summary judgment in the defendant’s favor on the plaintiffs’ Title VII claim.

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IV. Conclusion
For the foregoing reasons, the plaintiffs’ motions for summary judgment
(Docs. 30, 31) are due to be denied, and the defendant’s motion for summary
judgment (Doc. 24) is due to be granted. Because the statements the defendant
sought to strike from the plaintiffs’ briefs were not dispositive to the resolution of
the parties’ respective summary judgment motions, the defendant’s motion to
strike (Doc. 35) is due to be denied as moot. This action is due to be dismissed
with prejudice. A separate final order will be entered.
DONE this 28th day of September, 2018.

______________________________
STACI G. CORNELIUS
U.S. MAGISTRATE JUDGE

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