Cochran v. The Southern Company
MEMORANDUM and ORDER, GRANTING 32 APCo's Motion for Summary Judgment. Signed by Senior Judge Callie V. S. Granade on 5/19/2017. (mab)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
MYRA PAUL COCHRAN,
ALABAMA POWER COMPANY1,
) CIVIL ACTION NO. 16-00193-CG-B
MEMORANDUM and ORDER
This matter is before the Court on a motion for summary judgment and brief
in support filed by Defendant Alabama Power Company (“APCo”). (Doc. 32; Doc.
33). Plaintiff Myra Paul Cochran (“Cochran”) filed a response in opposition (Doc.
42), to which APCo replied (Doc. 43). Based on the following, the Court GRANTS
I. NATURE OF THE CASE
This cause of action arises from a pay dispute between Cochran and APCo,
her employer. In her First Amended Complaint, Cochran alleges APCo required her
to complete work substantially similar to male comparators but for significantly less
pay in violation of the Equal Pay Act of 1963 (“EPA”), 29 U.S.C. § 201, et sequentes.
Alabama Power Company avers that Myra Cochran improperly named the
defendant in this matter as “The Southern Company d/b/a Alabama Power.” (Doc.
32, p. 1 n.1). Alabama Power Company contends that The Southern Company is a
separate entity and, further, is not Cochran’s employer. Despite this error,
Alabama Power Company does not argue improper service or whether it is the
proper employer. Further, Cochran does not dispute her error. Therefore, in as
much as Cochran improperly named her employer, the Clerk is ORDERED to
change the named defendant in this action to Alabama Power Company.
(Doc. 16, p. 2). Also, within the same count, Cochran contends APCo denied her the
opportunity to earn additional income through out-of-town “storm work” but
allowed her male comparators to “enjoy[ ] the lucrative assignments on a regular
basis.” Id. APCo now moves for summary judgment on all counts. Cochran
responds that a genuine issue of material fact exists as to the substantial similarity
between her work and her comparator’s work. Cochran, however, concedes that her
claim based on out-of-town storm work “is due to be dismissed.” (Doc. 42, p. 4).
Therefore, the Court GRANTS APCo’s motion in as much as Count I alleges gender
discrimination in assigning out-of-town storm work. The parties having fully
briefed the remaining EPA issue, this matter is ripe for consideration.
II. AGREED FACTS2
APCo has employed Cochran since 1985. Cochran served as an office clerk
for the first several years of her employment. As an office clerk, Cochran processed
paperwork for various APCo engineers. In 1999, Cochran secured a position as a
Technician I in the Mobile Division of APCo’s Power Delivery Distribution
Department. APCo promoted Cochran to Senior Technician in 2000, which is the
position Cochran has held since that time. Since 2003, Cochran has worked in the
Mobile-Hillcrest APCo office, one of several branches within the Mobile Division.
From 2003 until June 2016, James (Jim) Dunning (“Supervisor Dunning”), the
Engineering Supervisor for the Mobile-Hillcrest office, was Cochran’s immediate
Cochran adopted APCo’s factual statement for the purpose of deciding APCo’s
motion. (Doc. 42, p. 1). Thus, to the extent APCo’s factual statement is relevant,
the Court utilizes such as undisputed facts in deciding APCo’s motion.
supervisor. Additionally, Supervisor Dunning was the supervisor of Cochran’s two
male comparators: Joe Costa and Hank Anderson.
A. Cochran’s Duties as a Senior Technician
Cochran describes her Senior Technician position as, “in layman’s terms, I’m
probably an engineering aide.” (Doc. 34-4, p. 5). Cochran’s duties are
geographically limited to the West Mobile section of the Wilmer community and
part of the Town of Semmes. Wilmer is predominately rural; Semmes is slightly
more urban. In servicing her territory, Cochran works to establish and maintain
power delivery to new and existing APCo customers through electricity distribution
systems, including the design, inventory, permitting, and cost estimates relating to
said systems. The majority of Cochran’s work focuses on establishing power for
customers, “usually a mom-and-pop or some young people,” who are seeking to
establish power to a mobile home or some other type of building. (Doc. 34-4, p. 6).
Additionally, Cochran responds to customer complaints, inspects outages, and
performs other maintenance-type work for customers in her territory.
Typically, Cochran submits a work estimate to her supervisor for approval
once she has examined a customer’s request for power, prepared an inventory, and
diagrammed a plan. Occasionally, Cochran’s supervisor spots an error in her work,
thereupon corrections are made or changes to the estimate are discussed with
Cochran before approving the project. Upon supervisor approval of the plan, APCo
issues the plan to a crew foreman, who actually performs the work related to the
power delivery project at issue.
B. Background and the Duties of the Male Comparators
Costa and Anderson, the male comparators mentioned above, are both
Distribution Specialist I in the Mobile-Hillcrest office. Costa became a Senior
Distribution Specialist at APCo in January 1994, then a Distribution Specialist I in
October 2015. Before becoming a Distribution Specialist, Costa obtained field
experience as a utility man, tree trimmer, and truck driver.
Anderson became a Senior Technician in April 2003, a Distribution Specialist
in March 2005, and then a Senior Distribution Specialist in December 2008. Like
Costa, Anderson became a Distribution Specialist I in October 2015.3 Before
becoming a Senior Technician and Distribution Specialist, Anderson obtained field
and line crew experience working as a truck driver and lineman for nearly seven
Costa and Anderson are also responsible for engineering, designing, and
maintaining electricity distribution systems across an assigned territory. But Costa
and Anderson primarily work on jobs that are larger, more complicated, and often
more commercial (i.e., more complex distribution systems, more connections, more
equipment, and greater budget). For example, Costa and Anderson work
underground subdivisions. Cochran testified she has never done such work. (Doc.
34-4, p. 15). Additionally, Anderson has completed large-scale commercial power
In October 2015, APCo amended the Distribution Specialist job family from two
the three levels. As part of that process, Costa and Anderson were reclassified from
Senior Distribution Specialist to Distribution Specialist I, a newly created position
within the Distribution Specialist job family. This change was not considered a
setups, such as setting up power to a shopping center anchored by Gander
Mountain outdoor stores.
In order to qualify to complete such complex tasks, each Distribution
Specialist candidate is required to reach two mandatory milestones, which are
outlined in APCo literature provided to Cochran. First, each Distribution Specialist
candidate must successfully complete Electric System Operation Procedure
(“ESOP”) training4 and pass a test signifying that the employee is qualified to
perform switching work on the APCo electricity operating system (i.e., these
employees know how and when to turn power on and off to a certain portion of a
distribution line in coordination with line crews working a particular project).
Second, a Distribution Specialist I is required to be on the Official Clearance List.
This list is essentially those employees who have passed the ESOP. Supervisor
Dunning explained that achieving these milestones demonstrates a Distribution
Specialist I’s knowledge and experience of what decisions to make, and when to
make them, on complex issues, which enables the Distribution Specialist I to
understand and complete larger, more complex projects. Moreover, a Distribution
Specialist candidate must demonstrate through day-to-day observation a sufficient
understanding of the APCo distribution system.
Cochran acknowledged in testimony that in her job position, Senior
Technician, she is not on the “switching list to give switching instructions to the line
Each ESOP training session takes place at an off-site location and is conducted by
an independent instructor. The session lasts four days and is fully paid by APCo.
The expense associated with the training typically involves travel expenses and the
loss of the employee for the time of attendance.
crew or whoever is opening and closing the switches out in the field, because there
is a procedure for that. You have to pass the test and know all the ins and outs.”
(Doc. 34-4, p. 14). Cochran further explained switching is, indeed, a “life and death”
matter. Id. at 15. Because mistakes can be deadly, APCo strictly scrutinizes the
capabilities of those tasked with switching work.
Costa and Anderson have successfully completed ESOP training and are on
the Clearance List. Both Costa and Anderson regularly perform switching work on
APCo distribution lines in the performance of their jobs as Distribution Specialist I.
Supervisor Dunning found both Costa and Anderson to be exemplary employees in
completing this work.
C. Pay for a Senior Technician and a Distribution Specialist I
As a Senior Technician, Cochran is an hourly employee. The natural next
step in the line of progression for Cochran is Distribution Specialist, followed by
Senior Distribution Specialist.
A Distribution Specialist I, like Costa or Anderson, is a salaried employee.
Distribution Specialist is a job family and each progressive level has the
opportunity to earn more than the previous level. All Distribution Specialist levels
(including Senior Distribution Specialist) have the opportunity to earn a higher rate
of pay than a Senior Technician.
The total pay history for Cochran, Costa, and Anderson for three years
preceding this lawsuit is illustrated in the following chart (designating in
parenthesis each person’s job position at the indicated time):
March 1, 2013
March 1, 2014
March 1, 2015
March 1, 2016
(Senior Technician) (Senior
D. Cochran’s Documented Work Performance and Attempts at Becoming a
Since 2000, Cochran has made four attempts at passing the ESOP but has
been unsuccessful each time. APCo has not precluded Cochran from taking the test
additional times; the only caveat is that no applicant is allowed to take the test
more than once within a 90-day period. Though Cochran realizes that she possibly
could be promoted to Distribution Specialist if she passed, she has not taken the
ESOP test since 2012 because she has not had the time.
In addition to passing the ESOP test, a Distribution Specialist candidate
must demonstrate through day-to-day observation a sufficient understanding of the
APCo distribution system. Supervisor Dunning expressed doubts that Cochran had
demonstrated the necessary job knowledge and technical expertise to become a
Distribution Specialist. He explained that one of the necessary understandings of
the APCo system for a Distribution Specialist is knowledge of three-phase bank
installations; however, Supervisor Dunning explained that Cochran told him shortly
before bringing this suit that she was uncomfortable working three-phase systems,
a skill he expected her to be proficient in at this stage in her career.
APCo conducts documented evaluations for each employee. The employee’s
supervisor completes each evaluation. Cochran’s performance review for 2012 noted
“Myra has shown little gain in knowledge[ ] of the distribution system. 40% to 50%
of her jobs are returned due to inventory errors.” (Doc. 34-3, p. 22). Her
performance review for 2013 gave her an overall rating of “Needs Improvement”
and observed that she “shows difficulties engineering and estimating W.E.’s [work
estimates].” Id. at 23, 28. Cochran’s performance review for 2014 concluded that
Ms. Cochran’s “Knowledge of Job” and “Quality of Work” both “Needs
Improvement,” that her “jobs require frequent revisions,” and that Cochran “needs
to request additional input and training from team members and foreman.” Id. at
51. Supervisor Dunning explained that Cochran had the highest error rate of all of
his subordinates during the years he supervised Cochran. He repeatedly observed
problems with Cochran’s infrequent work on small commercial projects, such as a
drug store project, and even with her routine rural work, such as ordering the
wrong size transformer for a single power pole.
II. SUMMARY JUDGMENT STANDARD
Federal Rule of Civil Procedure 56(a) provides that summary judgment shall
be granted: “if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” The trial court’s
function is not “to weigh the evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986). The mere existence of a factual dispute will not
automatically necessitate denial; rather, only factual disputes that are material
preclude entry of summary judgment. Lofton v. Sec’y of Dep’t of Children & Family
Servs., 358 F.3d 804, 809 (11th Cir. 2004). "If the evidence is merely colorable, or is
not significantly probative, summary judgment may be granted." Anderson, at 249250 (internal citations omitted).
Once the movant satisfies his initial burden under Rule 56(c), the non-moving
party "must make a sufficient showing to establish the existence of each essential
element to that party's case, and on which that party will bear the burden of proof
at trial." Howard v. BP Oil Company, 32 F.3d 520, 524 (11th Cir. 1994) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). Otherwise stated, the nonmovant must “demonstrate that there is indeed a material issue of fact that
precludes summary judgment.” See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608
(11th Cir. 1991). The non-moving party “may not rely merely on allegations or
denials in its own pleading; rather, its response .... must be by affidavits or as
otherwise provided in this rule set out specific facts showing a genuine issue for
trial.” Vega v. Invsco Group, Ltd., 432 F. App’x 867, 870 (11th Cir. 2011). In
reviewing whether a non-moving party has met its burden, the Court must draw all
justifiable inferences in favor of the non-moving party. Tipton v. Bergrohr GMBHSiegen, 965 F.2d 994, 998–99 (11th Cir. 1992) (citations omitted). Thus the inquiry
is “whether the evidence presents a sufficient disagreement to require submission to
a jury or whether it is so one-sided that one party must prevail as a matter of law.”
Liberty Lobby, 477 U.S. at 251–52.
A. Prima Facie Case Under the Equal Pay Act
The EPA provides,
No employer [subject to this section] shall discriminate, within any
establishment in which such employees are employed, between
employees on the basis of sex by paying wages to employees … at a
rate less than the rate at which he pays wages to employees of 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, except 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; Provided, that an employer
who is paying a wage rate differential in violation of this subsection
shall not, in order to comply with the provisions of this subsection,
reduce the wage rate of any employee.
29 U.S.C. § 206(d)(1). “To establish a prima facie case under the Equal Pay Act of
1963, a complainant must show that an employer pays 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.” Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1532 (11th
Cir. 1992) (internal marks and italics omitted).
To begin, a plaintiff must “compar[e] the jobs held by the female and male
employees, and [show] that those jobs are substantially equal, not by comparing the
skills and qualification of the individual employees holding those jobs.” Miranda,
975 F.2d at 1533. “The standard for determining whether jobs are equal in terms of
skill, effort, and responsibility is high.” Waters v. Turner, Wood & Smith Ins.
Agency, Inc., 874 F.2d 797, 799 (11th Cir. 1989). “When Congress enacted the Equal
Pay Act, it substituted the word ‘equal’ for ‘comparable’ to show that the ‘jobs
involved must be virtually identical, that is, they would be very much alike or
closely related to each other.’ The restrictions in the Act were meant ‘to apply only
to jobs that are substantially identical or equal.’” Id. (quoting Brennan v. City
Stores, Inc., 479 F.2d 235, 238 (5th Cir. 1973) (footnote omitted)). Indeed, Congress
did not intend the EPA to eliminate “employers’ wide discretion in evaluating work
for pay purposes.” Id. As the Eleventh Circuit’s predecessor articulated, the
standard for equality is clearly higher than mere comparability yet lower than
absolute identity ….” Brennan, 479 F.2d at 238.
Further, “[t]he prima facie case also focuses solely on the primary duties of
each job, not duties that are incidental or insubstantial. Any extra duties that
might be used to distinguish two jobs may not be tasks that are typically performed
by other personnel at lower pay.” Miranda, 975 F.2d at 1533. And job titles, while
entitled to some weight, are not controlling; rather, the Court must look to the
“actual duties the respective employees are called upon to perform.” Id.
Cochran contends she performed work substantially similar to Costa and
Anderson during the relevant time frame. (Doc. 42, p. 2). Specifically, all three
employees have been responsible for engineering, designing, and maintaining
electricity distribution systems in his or her respective territory. Id. Any difference
in the actual work performed by each of the three employees is admittedly due to
the differences in their assigned territories. Id. Thus, the job titles are a distinction
without difference. APCo, however, insists that fundamental differences exist
between a Senior Technician and a Distribution Specialist I. For instance, a
Distribution Specialist I completes “larger, more complicated, and often more
commercial work.” (Doc. 33, p. 17). Additionally, a Distribution Specialist I
performs unique tasks that can only be done after an APCo employee reaches two
critical milestones. Id.
Evaluating the responsibilities of a Senior Technician, the majority of
Cochran’s work involves setting up power for residential customers. As Cochran
described it, she usually sets up “a mom-and-pop or some young people” seeking to
establish power to a mobile home or some building. (Doc. 34-4, p. 6). Her initial
contact with such an employee does require engineering and submitting a work
estimate for the project, but a foreman performs any work beyond this point.
Additionally, Cochran responds to customer complaints, inspects outages, and
performs other maintenance-type work for customers in her territory.
On the other hand, a Distribution Specialist I is expected to possess
accumulated know-how and demonstrate technical expertise pertaining to complex
issues that a Senior Technician does not deal with. For instance, large-scale
commercial projects routinely fall on a Distribution Specialist I, and a Distribution
Specialist I is expected to work on underground subdivision projects. This is
something Cochran admits she has not done as a Senior Technician. Most
importantly, a Distribution Specialist I is expected to complete the important task
of switching work described above. An APCo employee is not even qualified to
provide switching orders until he or she passes the ESOP and is included on the
Comparing these two positions, the undisputed facts show that Cochran,
although performing a somewhat simpler version of work, does not perform work
substantially similar to her male comparators. The skill necessary to deal with the
more complex jobs of a Distribution Specialist I and responsibility inherent in the
additional qualifications is substantially different. Quiet simply, switching work is,
in Cochran’s own words, “life and death” work a Senior Technician does not
perform. Therefore, Cochran’s argument that any distinction in work is caused by
the assigned territory is unpersuasive. Instead, it is the skill, effort, and
responsibility of a Senior Technician that limits Cochran’s work and, subsequently,
her pay. See Miranda, 975 F.2d at 1533 (focusing on “the skills and qualifications
actually needed to perform the jobs” in deciding whether a plaintiff established a
prima facie EPA case). So, even if Cochran’s, Costa’s, and Anderson’s work region
were the same, there would not be a substantial similarity in their work given a
Senior Technician cannot complete the work of a Distribution Specialist I.
Moreover, just because Cochran is able to point to some core functions that
may overlap (engineering, designing, and maintaining electricity distribution
systems), she does not necessarily establish a prima facie EPA case. Several courts
have rejected arguments analogous to Cochran’s “similar core functions can
establish a prima facie EPA case” argument upon which she hangs her hat. See,
e.g., Rollins v. Alabama Cmty. Coll. Sys., 814 F. Supp. 2d 1250, 1315 (M.D. Ala.
2011) (holding the plaintiff did not establish a prima facie EPA case based on
general similarities in positions); Byrd v. Auburn Univ. at Montgomery, No. 2:05-cv835-CSC, 2007 WL 1140424, at *9 (M.D. Ala. Apr. 17, 2007) (concluding a prima
facie case must focus on the primary duties of each job and not the similarities in
“core tasks” inherent in each job). The Court finds Rollins and Byrd persuasive
and, like those decisions, declines to adopt Cochran’s “similar core functions”
argument. In short, Cochran failed to establish a prima facie EPA case because her
male comparators, as Distribution Specialist I, are responsible for complex and
critical electricity distribution system functions that are not part of a Senior
B. Equal Pay Act Exceptions
But even if Cochran could establish a prima facie case, she would not survive
summary judgment because APCo established that at least one of the EPA’s four
exceptions apply. Once a plaintiff establishes her prima facie case, “the burden
shifts to the employer to prove the difference in pay is justified by one of the four
exceptions” stated in the Act. Miranda, 975 F.2d at 1532. In this sense, the EPA
“prescribes a form of strict liability: Once the disparity in pay between substantially
similar jobs is demonstrated, the burden shifts to the defendant to prove that a
‘factor other than sex’ is responsible for the differential. If the defendant fails, the
plaintiff wins. The plaintiff is not required to prove discriminatory intent on the
part of the defendant.” Id. at 1533.
APCo contends non-sex reasons justify Costa’s and Anderson’s greater rate of
pay. To begin, Cochran is not a Distribution Specialist I but Costa and Anderson
are. (Doc. 33, p. 21). The “increasing steps in job positions are a legitimate
business reason for the challenged pay disparity, and has nothing to do with sex.”
Id. Additionally, Costa and Anderson have field experience that increases their
value to APCo. Id. at 22. Conversely, Cochran’s office experience is not as relevant
as her male comparator’s field experience; she has not accomplished the training
milestones of her comparators; and has a documented history of poor performance.
Cochran does not attack these allegations. She simply circles back around to
her earlier argument and doubles down on each employee engineering, designing,
and maintaining electricity distribution systems for his or her respective area and
that this work is substantially similar. Id. At best, Cochran continues, Hall v.
Siemens VDO Auto, 481 F. App’x 499 (11th Cir. 2012), establishes that any
difference in job responsibility and training is a question of fact for a jury. Id. The
Court finds Cochran’s position unavailing.
To be sure, an employer does not necessarily run afoul of the EPA by
implementing a job classification system that pays distinct positions differently, as
long as the distinction in positions is not based on sex. Such an understanding has
been in place since the EPA was initially enacted. See Cong. Rec., Vol. 109, Part 7,
Page 9209 (88th Congress, 1st Session) (“Seventh. Differences in pay that are based
upon a bona fide job classification system will not violate this act, if not based on
sex.”) Therefore, APCo’s greater remuneration of a Distribution Specialist I because
it is part of a graduating job classification scheme is a reason other than sex for a
pay differential. And citation to Hall does not repair Cochran’s claim because Hall
is materially distinguishable. In Hall, the plaintiff and comparators held the same
position. 481 F. App’x at 500. It is undisputed that Cochran and her male
comparators do not hold the same position with APCo.
Next, APCo has established that the comparators possess valuable prior field
experience. Costa worked in the field as a utility man, tree trimmer, and truck
driver; Anderson had nearly seven years in the field as a truck driver and lineman.
Cochran concedes this experience is valuable. (Doc. 34-4, p. 17). The prior work
experience of a comparator is a reason other than sex for a pay differential.
Miranda, 975 F.2d at 1533 n.18; see also Cazeau v. Wells Fargo Bank, N.A., 614 F.
App’x 972, 981 (11th Cir. 2015) (affirming a district court’s grant of summary
judgment on an EPA claim where an employer relied on a comparator’s greater
experience as a non-sex factor for a pay differential).
Lastly, undisputed evidence shows Cochran has a significantly higher error
rate in her work than any other employee under Supervisor Dunning’s direction.
Supervisor Dunning also expressed how Cochran is uncomfortable operating threephase systems, a system he said Cochran should be proficient in at this point in her
career, and how Cochran has not demonstrated the know-how necessary for more
complex and perilous jobs. But Supervisor Dunning did not express the same
reservations about Costa and Anderson; instead, he characterized each
comparator’s performance as exemplary. This difference in work performance is a
factor other than sex reconciling the pay differential. See Schwartz v. Florida Bd. of
Regents, 954 F.2d 620, 623 (11th Cir. 1991) (affirming a district court’s
determination that employee performance is one of multiple factors other than sex
satisfying a defendant employer’s burden under the EPA); Seldon v. Total Sys.
Servs., Inc., 653 F. Supp. 2d 1349, 1363–64 (M.D. Ga. 2009) (including a plaintiff’s
poor work performance and demonstrated lack of know-how as relevant factors
other than sex in finding “gender played no part” in a wage differential). Thus,
even if Cochran was able to establish a prima facie EPA claim, APCo has
established that the pay differential between Cochran and her male comparators,
Costa and Anderson, is driven by a factor other than sex.
Based on the foregoing, the Court GRANTS APCo’s Motion for Summary
Judgment (Doc. 32). A Judgment dismissing all claims with prejudice will be
DONE and ORDERED this 19th day of May, 2017.
/s/ Callie V. S. Granade
SENIOR UNITED STATES DISTRICT JUDGE
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