SANTIAGO v. USA

Filing 27

OPINION: granting 16 Motion for Partial Dismissal and for Summary Judgment and denying 20 Cross-Motion for Summary Judgment. The Clerk is directed to enter judgment. Signed by Senior Judge John P. Wiese. (jwg) Copy to parties.

In the United States Court of Federal Claims
No. 10-695C
Filed: November 8, 2012

HECTOR SANTIAGO,
Plaintiff,
v.
THE UNITED STATES,
Defendant.

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The Equal Pay Act, 29 U.S.C. § 206(d):
(1) Statute of Limitations. Defendant
may assert a statute of limitations
defense, despite having failed to plead
such a defense in its answer to the
complaint, where plaintiff suffers no
prejudice as a result. Mere awareness
of the Equal Pay Act is insufficient to
prove that defendant’s alleged violation
of the Act was willful and thus that the
statute of limitations period should be
extended from two to three years.
29 U.S.C. § 255(a).
(2) Prima Facie Case. Plaintiff has
failed to make a prima facie case under
the Equal Pay Act where plaintiff did
not perform two significant tasks
associated with the position of
supervisor and therefore did not show
that his work was substantially equal to
the work of his female comparator.

Vladimir Mihailovich, Carolina, Puerto Rico, counsel for plaintiff.
K. Elizabeth Witwer, with whom were Acting Assistant Attorney General
Stuart F. Delery, Director Jeanne E. Davidson, and Assistant Director Deborah A.
Bynum, U.S. Department of Justice, Civil Division, Commercial Litigation
Branch,Washington, D.C., counsel for defendant. Michael Carlson, U.S. Army
Litigation Division, Fort Belvoir, Virginia, and William G. Latimer, U.S. Army, Fort
Buchanan, Puerto, Rico, of counsel.
OPINION
WIESE, Senior Judge.
This suit arises under the Equal Pay Act, 29 U.S.C. § 206(d) (2006) (“the
Act”). Plaintiff, a civilian employee of the United States Army, alleges a violation
of the Act claiming that he was paid less than his female supervisor despite having

performed substantially equal work for an eleven-month period during which the
supervisor was largely absent from the office and for the following two-year period
during which the supervisor position was vacant. Defendant has moved for partial
dismissal of plaintiff’s complaint for lack of subject matter jurisdiction on the ground
that several of plaintiff’s claims are time barred. Additionally, defendant has moved
for summary judgment with respect to the remainder of plaintiff’s claims. Plaintiff
filed a cross-motion for summary judgment in response. The court heard oral
argument on the parties’ motions on September 20, 2012. For the reasons set forth
below, defendant’s motion for partial dismissal and for summary judgment is granted
and plaintiff’s cross-motion is denied.

FACTS
This case involves the United States Army’s Equal Employment Opportunity
(“EEO”) office at Fort Buchanan, Puerto Rico. Pursuant to the Army’s manpower
allotments, Fort Buchanan is authorized two employees in the EEO career field: an
EEO specialist and an EEO supervisor. From August 2007 until May 2011, plaintiff
was employed as the EEO specialist. At the time plaintiff was hired and for six
months thereafter, Ms. Magda Figueroa was employed as the EEO supervisor.
In April 2008, Ms. Figueroa was temporarily promoted to the position of
Deputy to the Garrison Commander, resulting in her physical absence from Fort
Buchanan’s EEO office. The promotion was not intended to be permanent, however,
so Ms. Figueroa retained her official title of EEO supervisor and continued to
supervise plaintiff and to oversee certain aspects of the EEO office during her
temporary reassignment. Ms. Figueroa, recognizing that additional duties would be
required of plaintiff in her absence, requested that plaintiff receive a temporary, fivepercent pay increase to compensate him for additional work performed. The Army
granted plaintiff this pay increase in May 2008.
Plaintiff worked alone in the EEO office from April 2008 until July 2008,
when the Army hired a second on-site employee, Mr. Reinaldo Rodriguez, as an
administrative technician. Mr. Rodriguez was not in the EEO career field. Plaintiff
and Mr. Rodriguez worked together in the office until Mr. Rodriguez’s departure in
January 2010.
In March 2009, Ms. Figueroa’s temporary reassignment as Deputy ended.
Rather than having her return to the EEO office as originally planned, however, the
Army permanently reassigned Ms. Figueroa to the position of Executive Officer,
leaving the position of EEO supervisor vacant. When it became clear that
Ms. Figueroa would not be returning to the EEO office and as a consequence, that
plaintiff would continue to perform additional duties until the EEO supervisor
2

position was filled, the Army made plaintiff’s temporary, five-percent pay increase
permanent, indicating in his personnel file that the increase in pay was the “[r]esult
of additional duties and responsibilities.” In July 2009, plaintiff received another
five-percent pay increase to compensate him for the additional duties he continued
to perform.1
From March 2009 until February 2011, the Army attempted to fill the EEO
supervisor position competitively but was unable to do so. In February 2011, the
Army temporarily assigned Ms. Barbara Quillin to the position of EEO supervisor.
Ms. Quillin served in that capacity until May 6, 2011. Two days later, on May 8,
2011, plaintiff left the EEO office for a new position at Fort Buchanan as a Logistics
Management Specialist. The Army did not fill the position of EEO supervisor until
July 2011.
Plaintiff filed suit in this court on October 14, 2010. In his complaint,
plaintiff alleges that the Army acted in violation of the Equal Pay Act “in a willful
manner and in bad faith.” In plaintiff’s view, he served as the “acting” EEO
supervisor from April 2008 (when Ms. Figueroa first left the EEO office to assume
the position of Deputy to the Garrison Commander) until February 2011 (when
Ms. Quillin temporarily assumed the position of EEO supervisor), but did not receive
the salary associated with that position. Plaintiff thus asks the court to award him the
difference in salary between the EEO specialist and supervisor positions, liquidated
damages, costs, and attorney’s fees, and a promotion to the pay grade at which the
EEO supervisor position is classified.

DISCUSSION
Section 206(d) of the Equal Pay Act prohibits consideration of gender as the
basis for an employee’s pay. In particular, the Act directs as follows:
No employer having employees subject to any provisions of
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 in such establishment at a rate less
than the rate at which he pays wages to employees of the opposite sex
in such establishment for equal work on jobs the performance of
which requires equal skill, effort, and responsibility, and which are
1

In addition to the five-percent pay increases he received, plaintiff also
received permanent, performance-based increases to his salary in January 2009 and
January 2010, as well as a one-time, lump-sum performance bonus in each of those
two years.
3

performed under similar working conditions . . . .
29 U.S.C. § 206(d). The Act makes four exceptions, however, permitting a pay
differential that is based on: “(i) a seniority system; (ii) a merit system; (iii) a system
which measures earnings by quantity or quality of production; or (iv) . . . any other
factor other than sex.”
To establish a prima facie case under the Act, a plaintiff must show that the
employer pays different wages to employees of the opposite sex even though the
employees perform equal work on jobs requiring equal skill, effort, and responsibility
under similar working conditions. Corning Glass Works v. Brennan, 417 U.S. 188,
195 (1974); Branch v. United States, 101 Fed. Cl. 411, 414 (2011). “[I]n prescribing
‘equal’ work,” however, Congress “did not require that the jobs be identical, but only
that they must be substantially equal.” Shultz v. Wheaton Glass Co., 421 F.2d 259,
265 (3d Cir. 1970). In proving such a case, the plaintiff must identify a particular
“comparator” for a “factor by factor” comparison and may not compare
himself/herself to a hypothetical or “composite” member of the opposite sex. Strag
v. Bd. of Trs., 55 F.3d 943, 948 (4th Cir. 1995); Moorehead v. United States, 88 Fed.
Cl. 614, 619 (2009). Once the plaintiff has made a prima facie case, the burden shifts
to the defendant to show that the pay differential is justified by one of the statute’s
enumerated exceptions. County of Wash. v. Gunther, 452 U.S. 161, 169 (1981);
Corning Glass, 417 U.S. at 196. A claim brought under the Act must be filed within
two years from the time it first accrues, or in the case of a willful violation, within
three years from such accrual. 29 U.S.C. § 255(a).
In the instant case, plaintiff maintains that during the almost three-year period
in which the EEO office operated without a supervisor physically present, he
performed work equal to the work performed by Ms. Figueroa in her capacity as EEO
supervisor but was paid less for that work in direct violation of the Act. Defendant
responds that plaintiff’s claims arising prior to October 14, 2008, are barred by the
statute of limitations, 29 U.S.C. § 255(a), because they accrued more than two years
before plaintiff filed suit in this court on October 14, 2010. Defendant additionally
argues that plaintiff’s remaining claims must be dismissed because they are deficient
as a matter of law. We address these arguments in turn below.

I.
The applicable statute of limitations for Equal Pay Act claims is found in the
Fair Labor Standards Act, 29 U.S.C. § 255(a) (“FLSA”), which establishes a twoyear limitations period for violations of the Equal Pay Act. When an employer’s
violation of the Act is shown to be “willful,” however, the statute of limitations is

4

extended to three years.2 The burden of proving willfulness rests with the plaintiff.
McLaughlin v. Richland Shoe Co., 486 U.S. 128, 135 (1988) (“To obtain the benefit
of the 3-year [limitations period], the [plaintiff] must prove that the employer’s
conduct was willful . . . .”); Adams v. United States, 350 F.3d 1216, 1229 (Fed. Cir.
2003) (“[T]he employee bears the burden of proving the willfulness of the
employer’s FLSA violations.”).
A claim accrues under the Equal Pay Act each time an allegedly insufficient
paycheck is issued. Lange v. United States, 79 Fed. Cl. 628, 631 (2007). As a
consequence, a claim arising from a pay check issued more than two years before a
suit is brought (or more than three years if the defendant’s violation is willful) will
be time-barred under 29 U.S.C. § 255(a). Id. at 629 (concluding that “each deficient
paycheck gives rise to a separate violation of the [Act], and each violation must have
occurred within the limitations period in order to be actionable”). Plaintiff filed his
complaint in this court on October 14, 2010. Defendant therefore argues that any
claim arising prior to October 14, 2008, must be dismissed as out of time.
Plaintiff offers two arguments in response. First, plaintiff maintains that the
government waived its statute of limitations argument by failing to plead it as an
affirmative defense in its answer to the complaint as required by this court’s rules.
RCFC 8.3 Second, and in the alternative, plaintiff argues that his April 2008 to

2

29 U.S.C. § 255 provides in relevant part as follows:

Any action . . . to enforce any cause of action for unpaid
minimum wages, unpaid overtime compensation, or liquidated
damages, under the Fair Labor Standards Act . . .
(a) . . . may be commenced within two years after the
cause of action accrued, and every such action shall be forever
barred unless commenced within two years after the cause of
action accrued, except that a cause of action arising out of a
willful violation may be commenced within three years after
the cause of action accrued . . . .
3

RCFC 8 provides in relevant part as follows:

(c) Affirmative Defenses.
(1)

In General. In responding to a pleading, a party must
affirmatively state any avoidance or affirmative defense,
including:
(continued...)
5

October 2008 claims are timely because a three-year limitations period is applicable
due to the Army’s willful violation of the Act. 29 U.S.C. § 255(a).
We cannot accept either position. Plaintiff is correct that a statute of
limitations defense is identified in this court’s rules as one that must be pleaded
affirmatively in the government’s answer to plaintiff’s complaint. RCFC 8(c);
Hodgson v. Humphries, 454 F.2d 1279, 1284 (10th Cir. 1972) (“We think it clear that
[29 U.S.C. § 255(a)] . . . must be pleaded as an affirmative defense in accordance
with the requirements of [Rule 8(c)].”). And plaintiff is additionally correct that such
a defense, if not raised, may be seen as waived. Strauss v. Douglas Aircraft Co., 404
F.2d 1152, 1158 (2d Cir. 1968). We cannot, however, accept plaintiff’s assertion that
defendant waived its statute of limitations defense on the facts of this case.
As the Court of Claims (the Federal Circuit’s statutory predecessor)
recognized in Cities Serv. Helex, Inc. v. United States, 543 F.2d 1306, 1313 n.14 (Ct.
Cl. 1976), the failure to plead an affirmative defense does not always result in a
waiver of that defense. Bull v. United States, 68 Fed. Cl. 212, 272 n.66 (2005), aff’d,
479 F.3d 1365 (2007); see also Schwind v. EW Assocs., Inc., 357 F. Supp. 2d 691,
699 (S.D.N.Y. 2005) (finding that an employer does not necessarily waive an
affirmative defense in an FLSA action when the employer fails to raise it in its
answer). Rather, as defendant points out, “a court may allow a non-plead affirmative
defense to be raised if it would not result in prejudice to the party.” City of
Gettysburg, S.D. v. United States, 64 Fed. Cl. 429, 449 (2005), aff’d, 173 F. App’x
827 (Fed. Cir. 2006). We do not believe defendant’s failure to plead its statute of
limitations defense in its answer was in any way prejudicial to plaintiff.
The requirement that a party must plead an affirmative defense is designed
to alert the opposing side about a matter in dispute. Id.; see also Bull, 68 Fed. Cl. at
272 n.66 (“In determining what defenses . . . must be pleaded affirmatively, resort
often must be had to considerations of policy, fairness, and to whether the plaintiff
will be taken by surprise by the assertion . . . of a defense not pleaded affirmatively
by the defendant.”) (internal quotations and citation omitted). Plaintiff asserted in
his complaint that the Army had “willfully” violated the Equal Pay Act—a clear
reference to the requirement stated in the statute for extending the limitations period
from two to three years. Defendant denied that allegation in its answer.
Additionally, defendant points out, the parties addressed the issue of willfulness in
their joint preliminary status report, a document that was filed on March 29,
3

(...continued)
* * * * *
•

statute of limitations . . . .
6

2011—forty-six days after the filing of defendant’s answer and prior to the
commencement of discovery. Plaintiff was thus aware by the end of March 2011,
and certainly before the start of discovery, that defendant intended to challenge the
timeliness of his claim, at least in part. As a consequence, plaintiff had sufficient
notice of defendant’s statute of limitations defense and thus had an adequate
opportunity to develop facts to refute defendant’s position.
Indeed, plaintiff has not alleged that he will suffer any prejudice if the court
were to evaluate the issue of willfulness upon the merits, nor has he identified any
information helpful to his position that he could have sought but did not. Given these
circumstances, we are unable to conclude that defendant waived its right to assert a
statute of limitations defense.
Nor can we accept plaintiff’s contention that the Army’s alleged violation of
the Equal Pay Act was willful and therefore that a three-year limitations period
should apply. The regulations define a violation as willful under the Act if it occurs
“in circumstances where the agency knew that its conduct was prohibited by the Act
or showed reckless disregard of the requirements of the Act.” 5 C.F.R. § 551.104;
see also Bull v. United States, 479 F.3d 1365, 1379 (Fed. Cir. 2007) (observing that
“[p]roof of willfulness requires the plaintiffs to show that [the agency] either knew
or showed reckless disregard for the matter of whether its conduct was prohibited by
the statute.”) (internal quotation and citation omitted). “Reckless disregard” is
further defined in the regulations as the “failure to make adequate inquiry into
whether conduct is in compliance with the Act.” 5 C.F.R. § 551.104; see also
Alvarez v. IBP, Inc., 339 F.3d 894, 908–09 (9th Cir. 2003) (pointing out that “[f]or
§ 255’s extension to apply, an employer need not knowingly have violated the FLSA;
rather, the three-year term can apply where an employer disregarded the very
possibility that it was violating the statute . . . .”) (internal quotation and citation
omitted).
Plaintiff alleges in his complaint that the Army violated the EPA “in a willful
manner and in bad faith.” In support of this assertion, plaintiff contends that he
“started complaining since the month of May 2008 and the Defendant chose to ignore
him.” In addition, plaintiff alleges that Ms. Figueroa promised “to do something
about” plaintiff’s pay and to “take care of” plaintiff, but failed to do so, an omission
plaintiff characterizes as a willful violation “by definition.” Finally, plaintiff
contends that the Army willfully violated the Act because “the Defendant has known
that [the Act] is in question during all this time, which is the question that should be
asked” (citing Coleman v. Jiffy June Farms, Inc., 458 F.2d 1139, 1142 (5th Cir.
1971)).
Plaintiff’s allegations, however, do not demonstrate that the Army “either
knew that its conduct was prohibited by the Act or showed reckless disregard of the
7

requirements of the Act.” 5 C.F.R. § 551.104. As an initial matter, we do not read
Ms. Figueroa’s promises to “do something about” plaintiff’s situation as an
acknowledgment that the Army was in violation of the Act; rather, we read such
assurances as a recognition of the additional duties plaintiff was expected to perform
in Ms. Figueroa’s absence. Notably, Ms. Figueroa indeed followed through on such
a promise: she successfully sought a discretionary pay increase to compensate
plaintiff for his additional duties.
Nor can we accept plaintiff’s argument that a finding of willfulness is
justified here because of defendant’s presumed awareness of the applicability of the
Act. In support of this position, plaintiff cites the test adopted in Jiffy June, 458 F.2d
at 1142, defining a violation as willful when “the employer knew or suspected that
his actions might violate the FLSA.” This test, however, was expressly rejected by
the Supreme Court in McLaughlin, 486 U.S. at 132–33, in which the Court held that
“the Jiffy June standard of willfulness—a standard that merely requires that an
employer knew that the FLSA ‘was in the picture’—virtually obliterates any
distinction between willful and nonwillful violations.” The Court further held that
willfulness requires more than mere awareness. Id. Accordingly, plaintiff’s
contention that the Army was aware of the Act is insufficient to demonstrate that the
Army willfully violated the Act and that a three-year limitations period therefore
should govern this action. We thus conclude that plaintiff’s claims arising prior to
October 14, 2008, are out of time.

II.
With respect to plaintiff’s remaining claims, defendant has moved for
summary judgment on essentially two grounds. First, defendant argues that plaintiff
did not perform work that was substantially equal to the work performed by
Ms. Figueroa because his activities did not include two important functions
associated with the EEO supervisor’s role: (i) the acceptance and dismissal of EEO
complaints on behalf of the Army; and (ii) the performance of certain director-level
responsibilities such as rating, disciplining, and recommending the promotion of
subordinate-level employees. In addition, defendant points out that plaintiff was
assisted in his day-to-day responsibilities by Ms. Figueroa and by the staff at the
regional EEO office in Georgia during the period he alleges he was the acting EEO
supervisor. Second, and in the alternative, defendant argues that even if
Ms. Figueroa and plaintiff performed substantially equal work, the pay differential
between them was nevertheless justified by the second exception set forth in the Act:
the difference in pay was based on a merit system. Defendant thus urges the court

8

to dismiss plaintiff’s remaining claims as deficient as a matter of law.4

A.
In determining whether work is substantially equal, the “controlling factor
under the Equal Pay Act is job content—the actual duties that the respective
employees are called upon to perform.” Pearce v. Wichita Cnty., 590 F.2d 128, 133
(5th Cir. 1979) (quoting Hodgson v. Brookhaven Gen. Hosp., 436 F.2d 719, 724 (5th
Cir. 1970)). “Whether two jobs entail equal skill, equal effort, or equal responsibility
requires a practical judgment on the basis of all the facts and circumstances of a
particular case. . . . Application of the Equal Pay Act depends not on job titles or
classifications but on the actual requirements and performance of the job.” EEOC
v. Universal Underwriters Ins. Co., 653 F.2d 1243, 1245 (8th Cir. 1981). The
relevant issue, in other words, is not the name under which the position was
classified but rather the work that was actually performed. Usery v. Allegheny Cnty.
Inst. Dist., 544 F.2d 148, 153 n.4 (3d Cir. 1976).
In his complaint, plaintiff identifies the various duties he contends he
performed during his tenure in the EEO office. Specifically, plaintiff maintains that
he managed the EEO complaints process (including writing complaint case reports);
provided training to employees and supervisors; provided advice to the Garrison
Commander in carrying out the installation’s EEO policies; provided advice to
management officials regarding the installation’s affirmative action plan, reasonable
accommodation program, and special emphasis program; managed the budget;
provided education on prevention of sexual harassment; was involved in settlement
negotiations; and was responsible for supervising immediate and collateral staff.
Plaintiff additionally testified during his deposition that he was solely responsible for
submitting to the Garrison Commander a report called the “MD 715 Report” (an
affirmative employment report described by a senior EEO officer as “a very
important report, if not the most important report, submitted by an EEO office”
4

Defendant additionally argues that Ms. Figueroa is not, in any event, a
proper comparator for the purpose of making an Equal Pay Act claim because the use
of a single agency employee is the type of “isolated . . . or random” comparison that
the United States Court of Appeals for the Fourth Circuit found was insufficient to
support a prima facie case of discrimination, without evidence that “the entire
relevant group of employees” was similarly affected by the “phenomenon of
inequality.” Strag, 55 F.3d at 950 (quoting Houck v. Virginia Polytechnic Institute,
10 F.3d 204, 206–07 (4th Cir. 1993)). In plaintiff’s view, Ms. Figueroa is a proper
comparator precisely because she held the same job at the same office as plaintiff,
working under the same conditions. We agree with plaintiff: Ms. Figueroa is the best
comparator there is.
9

(Caruthers Decl. ¶ 8, Feb. 14, 2012)) and that he was responsible for hiring and
supervising Mr. Rodriguez, the office’s administrative technician.
Defendant acknowledges that plaintiff performed a number of the duties of
an EEO supervisor while the position remained vacant, but contends that plaintiff did
not perform two key functions associated with that position: the acceptance and
dismissal of EEO complaints and the supervision of subordinate employees.5 Those
responsibilities, defendant maintains, continued to belong at all relevant times either
to Ms. Figueroa or to individuals in the regional EEO office in Georgia. Plaintiff, in
other words, was not treated as a de facto supervisor and the duties he and
Ms. Figueroa performed were not equal.
In support of its argument, defendant observes that during the six months
Ms. Figueroa and plaintiff worked together in the EEO office, Ms. Figueroa was
responsible for accepting and dismissing EEO complaints on behalf of the Army.
Defendant further notes that when Ms. Figueroa left the office in April 2008,
responsibility for accepting and dismissing complaints did not fall to plaintiff, but
was instead given to the regional EEO office. The regional office continued to
perform this function until Ms. Quillin was temporarily assigned to the position of
EEO supervisor, at which point she assumed responsibility for accepting and
dismissing complaints. At no time was plaintiff responsible for accepting and
dismissing complaints on behalf of the Army.
Similarly, defendant notes that while Ms. Figueroa had responsibility for
supervising subordinate employees, plaintiff did not. Although plaintiff contends
that he interviewed Mr. Rodriguez, recommended his hiring, and regularly assigned
him work, defendant points out that plaintiff did not have the authority to promote,
reassign, or discipline Mr. Rodriguez, did not develop performance plans for
Mr. Rodriguez, and was not responsible for rating Mr. Rodriguez. Indeed, defendant
observes that Ms. Figueroa continued to rate both plaintiff and Mr. Rodriguez after
she left the EEO office. Defendant thus argues that given the absence of any
responsibility for accepting and dismissing EEO complaints and for supervising
subordinate staff, plaintiff cannot make the case that the work he and Ms. Figueroa
performed was substantially equal.
5

The procedures for accepting and dismissing EEO complaints are governed
by Army Regulation 690-600. Pursuant to this regulation, an EEO supervisor
reviews a formal EEO complaint to determine if the complaint meets any of the
indicated grounds for dismissal (e.g., the complaint has failed to state a claim, is
untimely, or is moot). If the EEO supervisor identifies no ground for dismissing the
complaint, the supervisor is required to provide the complainant with a written
decision accepting the claim as well as request assignment of the case to an
investigator.
10

B.
Even if the court were to find that plaintiff’s work was substantially equal to
Ms. Figueroa’s despite these differences in responsibility, defendant argues in the
alternative that the pay differential was nevertheless permitted under the Act because
it was based on a merit system, specifically on the National Security Personnel
System (“NSPS”) pay scale.6 Under the NSPS, each employee was assigned a
classification code that indicated the employee’s career field, position, and base pay.
Plaintiff, hired as the office’s EEO specialist, was assigned the designation YA-026002, identifying him as being in a “Nonsupervisory Professional/Analytical”
occupation (YA), in the EEO career field (0260), in the second pay band (02). In her
role of EEO supervisor, by contrast, Ms. Figueroa was classified as a YC-0260-02,
identifying her as being in a “Supervisory/Management” occupation (YC), also in the
EEO career field (0260), in the second pay band (02).7
Pursuant to the NSPS classification structure, an employee could be

6

The Army employed the NSPS pay system from mid-2006 until
October 2009, when Congress repealed the NSPS pay system and began restoring all
Department of Defense employees to the General Schedule (GS) pay system.
7

Under the NSPS pay system, an employee was assigned to one of three pay
bands (01, 02, or 03), based on such factors as the type and level of work to be
performed, indicating the employee’s minimum and maximum base salary. For
2010, the pay range for an EEO specialist position (indicated by the designation YA)
was as follows:
Pay Band 1—Base Salary (per annum) $26,858–$65,371
Pay Band 2—Base Salary (per annum) $40,695–$93,175
Pay Band 3—Base Salary (per annum) $79,535–$135,993
The pay range for an EEO supervisor position (indicated by the designation YC)
during that same period was as follows:
Pay Band 1—Base Salary (per annum) $33,270–$65,371
Pay Band 2—Base Salary (per annum) $59,014–$115,610
Pay Band 3—Base Salary (per annum) $82,926–$135,993
Notably, the minimum salary for a supervisor in the 02 pay band (Ms. Figueroa’s
classification) was almost $20,000 higher than the minimum salary for a
nonsupervisory employee in the 02 pay band (plaintiff’s classification), a pay
differential that defendant explains was directly related to the additional supervisory
duties required of a YC employee.
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designated as a supervisor—and thus receive a supervisor’s YC salary—only if the
employee, at a minimum, had “responsibility for a subordinate workforce” and
“perform[ed] the supervisory functions of an Immediate Supervisor.” Such
supervisory functions included: (a) assigning work to subordinates based on
priorities, difficulty of assignments, and the capabilities of employees; (b) providing
technical oversight; (c) developing performance plans and rating employees; (d)
interviewing candidates for subordinate positions; (e) recommending hiring,
promotion, or reassignments; (f) taking disciplinary measures, such as warnings and
reprimands; (g) identifying developmental and training needs of employees; and (h)
providing and/or arranging for needed development and training. Positions
“exercising less than the minimum supervisory authorities of an Immediate
Supervisor” were expressly excluded from the YC pay schedule and were “assigned
to a pay band” in the YA pay schedule.
In light of this classification structure, defendant maintains that the Army’s
assignment of plaintiff to the YA pay grade was not only proper but was mandatory
given that plaintiff—in contrast to Ms. Figueroa—was not responsible for performing
all of the minimum supervisory authorities of an immediate supervisor. Further,
defendant argues, the difference in plaintiff’s and Ms. Figueroa’s respective salaries
was attributable solely to the differences in the YA and YC pay scales. Defendant
thus contends that a pay differential based on the NSPS pay scale constitutes a valid
defense under the Equal Pay Act as a differential based on a merit system rather than
on gender.8

C.
Having carefully considered the opposing arguments, we conclude that
plaintiff and Ms. Figueroa did not perform substantially equal work and as a
consequence, that plaintiff has failed to make a prima facie case under the Equal Pay
Act. In particular, the evidence demonstrates that key responsibilities that ordinarily
would have belonged to the EEO supervisor were discharged either by Ms. Figueroa
or by the regional office during the almost three-year period that plaintiff contends
he was the acting supervisor. Most notably, the record shows that Ms. Figueroa, the
regional office, and Ms. Quillin—but not plaintiff—were responsible during that time
for accepting and dismissing EEO complaints.

8

Defendant additionally notes that plaintiff, following his July 2009 pay
increase, had reached his “full performance level or band” for the position of EEO
specialist and consequently could not receive any further increases to his base salary.
The Army, in other words, had compensated plaintiff for additional duties to the
extent of its authority under the regulations.
12

As Mr. Rufus Caruthers, then the Regional EEO Director for the Southeast
Region of the Installation Management Command in Georgia with responsibility for
overseeing the Fort Buchanan EEO office, explained, he had “made the decision that
the acceptance and/or dismissal of EEO complaints should be handled” by the
regional office because plaintiff “lacked the necessary experience and expertise to
accept and/or dismiss complaints on behalf of the Army” and that plaintiff
accordingly “had no responsibility for accepting and/or dismissing EEO complaints.”
Caruthers Decl. ¶¶ 5–6. As Ms. Figueroa went on to explain in her declaration:
Accepting and dismissing complaints is a critical function of the EEO
office and is one of the most important jobs of an EEO officer. This
duty should not be taken lightly as it determines whether an
employee’s claims will be reviewed and adjudicated. To properly
accept and dismiss complaints, an EEO officer must receive specific
training and should have a certain level of expertise and experience
before performing such a duty. When I left the EEO office to join the
Command Group . . . Mr. Santiago . . . had only been in the EEO
career field a few months . . . and I did not feel he had the experience
to perform this function. The regional director assumed the
responsibilities to accept and/or dismiss Fort Buchanan’s EEO
complaints. Therefore, at no time did Mr. Santiago accept or dismiss
complaints.
Figueroa Decl. ¶ 15, Feb. 16, 2012. Such responsibility is central to the position of
EEO supervisor and the fact that plaintiff did not perform this key function directly
contradicts plaintiff’s assertion that he was the acting EEO supervisor in
Ms. Figueroa’s absence.9
9

In addition to Ms. Figueroa’s declaration, defendant submitted declarations
from three other senior EEO officers attesting to the fact that the accepting and
dismissing of complaints is a significant responsibility of the EEO supervisor and is
an important aspect of the Army’s EEO program. Mr. Caruthers for instance,
described the accepting and dismissing of complaints as “a very important part of the
Army’s EEO program.” Caruthers Decl. ¶ 6. Similarly, Ms. Quillin, Ms. Figueroa’s
temporary replacement as EEO supervisor, characterized the accepting and
dismissing of EEO complaints as “one of the principal duties of the EEO officer” and
“a very important part of the Army’s EEO program.” Quillin Decl.¶ 5, Feb. 13,
2012. Finally, Ms. Rosa Garris-Turner, then the Senior EEO Specialist for the
Southeast Region with oversight responsibility for Fort Buchanan, testified that the
accepting and dismissing of EEO complaints is “a crucial part of the Army’s EEO
program” and is “not a function that would be performed by an employee with only
a few months experience in the EEO career field,” but rather is one that “requires
(continued...)
13

In addition, the record shows that plaintiff did not have responsibility for
supervising a subordinate workforce. Although plaintiff worked with, and even
assigned work to, Mr. Rodriguez from July 2008 until January 2010, both men
continued to report to Ms. Figueroa during that time. As Ms. Figueroa explained in
her declaration, although she “was not physically located in the EEO office on a daily
basis from April 2008 until Mr. Santiago left the EEO office in May 2011, [she]
continued to supervise Mr. Santiago even in [her] capacity as the Deputy to the
Garrison Commander and then later as the Executive Officer” and she could attest,
“[b]ased upon [her] personal knowledge . . . that Mr. Santiago did not perform all of
the duties [she] performed as the EEO supervisor.” Figueroa Decl. ¶ 10.
Ms. Figueroa’s declaration continued as follows:
[W]hen I was the EEO supervisor, I performed a number of
supervisory duties, including assigning work to subordinates,
providing technical oversight, developing performance plans and
rating subordinates, recommending the promotion and reassignments
of subordinates, taking disciplinary measures, and identifying and
providing training for subordinates. . . . When I was the EEO
supervisor, I supervised Mr. Santiago and performed these duties.
After I left in April 2008, the only employee in the EEO office was
Mr. Santiago. In July 2008 the Army recruited Mr. Rodriguez and I
was Mr. Rodriguez’s supervisor at all times. Mr. Santiago did not
rate Mr. Rodriguez’s performance or develop performance plans
against which to evaluate Mr. Rodriguez’s performance. I did. Also,
Mr. Santiago never selected candidates for vacancies, he had no
authority to promote or reassign subordinate employees, and he had
no authority to take disciplinary measures. I had the authority to
make those decisions for the EEO office while serving as the EEO
supervisor and after I left the EEO office.
Figueroa Decl. ¶¶ 11–12. Mr. Caruthers also spoke to this point in his declaration
as follows:
9

(...continued)
training and a high-level of experience and expertise.” Garris-Turner Decl. ¶ 3, Feb.
14, 2012. Plaintiff challenges the admissibility of these declarations, claiming that
he was not given “a chance to depose those witnesses and to conduct any discovery
related to their testimonies.” The record does not support this assertion. To the
contrary, defendant’s “Rule 26(a)(1) Disclosures,” served on plaintiff on June 10,
2011 (four months before discovery was initiated by plaintiff), listed these same
individuals, together with a brief description of their respective job responsibilities,
as witnesses who “may have discoverable information and may be relied upon by
defendant in this matter.”
14

After Ms. Figueroa left the EEO office, I also knew that, due to his
lack of in-depth knowledge and skills in the EEO field, Mr. Santiago
would need close supervision in the day-to-day management of the
EEO office and performance of the EEO program components. As a
result, I became more involved in the day to day operation by calling
and instructing Mr. Santiago to call my office on a regular basis
before he acted on or responded to issues he was unsure of. On the
whole, my office provided very close oversight, guidance, and
direction to Mr. Santiago as he performed assigned responsibilities.
The nature of the oversight, guidance, and direction we provided was
markedly different from that provided while Ms. Figueroa was the
EEO director.
Caruthers Decl. ¶ 7.10 As with the accepting and dismissing of complaints, the
supervision of subordinate employees is crucial to the position of EEO supervisor
and the fact that plaintiff did not perform this function further undermines plaintiff’s
contention that he acted as the EEO supervisor in Ms. Figueroa’s absence.11
In the absence of such responsibilities, we cannot conclude that Ms. Figueroa
and plaintiff performed substantially equal work for the purposes of the Equal Pay

10

In addition to his argument claiming lack of timely notice regarding the
identification of defendant’s potential witnesses (see supra note 9), plaintiff
separately objects to defendant’s reliance on the declaration of Mr. Caruthers, then
the Regional EEO Director for the Southeast Region. Mr. Caruthers, plaintiff points
out, “was the official who resolved . . . plaintiff’s EEO complaint”—a circumstance
that plaintiff now argues renders Mr. Caruthers’ testimony an “anti-ethical intrusion
in this case” and therefore inadmissible. Plaintiff offers no support for this position
and the court in turn can discern no basis for declaring inadmissible the testimony of
a knowledgeable witness regarding the administrative oversight that his office
provided to plaintiff in the day-to-day management of Fort Buchanan’s EEO office.
That the witness’s knowledge of this oversight role can reasonably be assumed to
have also guided his decision rejecting plaintiff’s EEO complaint adds nothing to
plaintiff’s charge.
11

The importance of such supervisory duties to the position of EEO
supervisor is beyond dispute: the differences in the job descriptions of an EEO
specialist and an EEO supervisor and the corresponding differential in their salaries
were tied directly to the additional responsibility and supervisory duties required of
a supervisor.
15

Act.12 The fact that plaintiff did not perform these essential tasks justifies the wage
differential. Branch, 101 Fed. Cl. at 414 (observing that “wage differentials can be
justified when employees perform an important differentiating task”); see also Krenik
v. Cnty. of Le Sueur, 47 F.3d 953, 961 (8th Cir. 1995) (holding that two workers’
jobs were not equal when the comparison worker had additional supervisory duties);
Marshall v. Dallas Indep. School Dist., 605 F.2d 191, 195 (5th Cir. 1979) (quoting
Hodgson v. Golden Isles Convalescent Homes, Inc., 468 F.2d 1256, 1258 (5th Cir.
1972), for the proposition that “a wage differential can be justified for employees
who are available to perform an important differentiating task”).
We have no doubt that plaintiff was called upon to perform additional duties
in Ms. Figueroa’s absence—Ms. Figueroa and the Army’s higher command
acknowledged as much —and employee evaluations suggest that plaintiff rose to the
challenge exceedingly well. But plaintiff was compensated for those additional
responsibilities through discretionary increases in his base pay. The Equal Pay Act
does not require any additional compensation.

CONCLUSION
For the reasons set forth above, defendant’s motion for partial dismissal and
for summary judgment is granted and plaintiff’s cross-motion for summary judgment
is denied. The Clerk is directed to enter judgment accordingly. No costs.

s/John P. Wiese
John P. Wiese
Senior Judge
12

Because we conclude that Ms. Figueroa and plaintiff did not perform
substantially equal work, we need not reach the question of whether the pay
differential was justified as being based on a merit system. We note, however, that
if the work had been substantially equal, we are doubtful that the Army successfully
could have relied on the NSPS pay scale as a defense. As defendant itself notes in
its brief, “[a]pplication of the equal pay act standard is not dependent on job
classifications or titles but depends rather on actual job requirements and
performance.” 29 C.F.R. § 1620.13(e); see also Thomas v. United States, 86 Fed. Cl.
633, 639 n.8 (2009), aff’d, 351 Fed. App’x 433 (Fed. Cir. 2009). The relevant issue,
then, is not the name under which the position was classified but rather the work that
was actually performed. Usery, 544 F.2d at 153 n.4. Had Ms. Figueroa legitimately
warranted assignment to the YC pay scale, it would have been difficult for defendant
to show that plaintiff, if performing substantially equal work, would not have
warranted the same.
16