Corder v. The Defense Finance and Accounting Service et al

Filing 55

OPINION AND ORDER denying 45 Motion for Summary Judgment. The parties shall contact Magistrate Judge Jolson within 14 days to arrange for participation in an upcoming Settlement Week or schedule a Mediation/Settlement Conference outside of a designated Settlement Week. Signed by Judge George C. Smith on 6/14/2017. (agm) Modified text on 6/14/2017 (agm).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
KAREN CORDER,
Plaintiff,
Case No.: 2:14–CV–314
JUDGE SMITH
Magistrate Judge Jolson

v.

THE DEFENSE FINANCE AND
ACCOUNTING SERVICE, et al.,
Defendants.

OPINION AND ORDER
This matter is before the Court upon the Motion for Summary Judgment of Defendants
the Defense Finance and Accounting Service (“DFAS”) and General Jim Mattis, Secretary of
Defense1 (Doc. 41). Plaintiff opposed Defendants’ Motion (Doc. 42) and Defendants replied in
support (Doc. 44). The Motion is now ripe for review. For the following reasons, Defendants’
Motion is DENIED.
I.

BACKGROUND

This case arises out of Plaintiff Karen Corder’s (“Plaintiff”) employment with DFAS.
(Doc. 14, Am. Compl. at ¶ 9). Plaintiff started with DFAS in 1989 as a temporary clerk typist.
(Doc. 54-2, Corder Dep. at 15). After a few job changes throughout numerous years with DFAS,
Plaintiff became a Budget Analyst with DFAS’ Contracting Division, with a level 13 salary on

1

Secretary of Defense Mattis shall be substituted for former Secretary of Defense Chuck Hagel under Rule 25(d) of
the Federal Rules of Civil Procedure.

the General Schedule (“GS”).2 (Id. at 26). In 2008, DFAS, as part of an effort to reorganize,
determined that Plaintiff was performing GS-12 duties. (Id. at 29–30). Fearing a possible
mandatory reassignment to a new group, Plaintiff sought a GS-13 position with a new group.
(Id. at 30–31). Plaintiff moved to a position as a Lead Financial Specialist for a program within
the Desktop Management Initiative system (“DMI”) called the Desktop Continuing Government
Activity (“DCGA”) program. (Doc. 49-1, Corder Aff. at ¶¶ 1–2).
As even those within DFAS admit, DFAS’ organizational structure is confusing and is
filled with overlapping groups and internal jargon. Accordingly, the Court attempts to lay out
the structure before addressing Plaintiff’s claims. Within DFAS are “directorates” and the one
specifically at issue in this case is called the Information and Technology Directorate. (Doc. 4518, Pre-reorganization Org. Chart; Doc. 54-4, McNutt Dep. at 11–13). To add to the confusion,
the Information and Technology Directorate has its own sub-directorates which are also called
directorates. (Id.). The sub-directorate at issue in this case is the Infrastructure Production
Support Directorate (“IPS”).

(Id.).

IPS has three “divisions:” Infrastructure Engineering,

Production Support, and Infrastructure Operations.

(Id.).

Under each division, there are

branches which support the division. (Id.). Additionally, and confusingly, there are three major
“systems” within IPS: DMI, the enterprise local area network (“ELAN”), and Teleservices.
(Doc. 54-3, Lassen Dep. at 12). The systems are not organizational categories per se, but they
generally fall under the three divisions and above the branches. Each system has its own
manager. Last, there are also “programs” within IPS—such as the DCGA program for which
Plaintiff worked—that support the systems.

2

Both parties refer to positions as “GS-#” to designate a person’s salary and the Court will do the same, e.g.,
“Plaintiff worked as a GS-13 Budget Analyst.”

2

In 2011, James McNutt served as the Director of the IPS Group, Daryl Lassen was the
Division Manager of Infrastructure Engineering, and Michael Moore was the Division Manager
of Infrastructure Operations. At the time, the deputy director of the DCGA program was June
Helligrath. Id. Helligrath performed the system management duties for DMI and was the acting
DCGA supervisor, receiving GS-14 pay. (Id.). Working under Helligrath, Corder oversaw the
budget for a contract which provided laptops and other computers to DFAS employees. (Doc.
54-2, Corder Dep. at 33, 37–38). In 2011, Moore asked Plaintiff to fully take over Helligrath’s
position after a period where Plaintiff was temporarily performing Helligrath’s duties. (Doc. 491, Corder Aff. at ¶¶ 4–5). Plaintiff told Moore she did not want the systems manager and
technical point of conduct duties and Moore informed Plaintiff that he would take over the
technical point of conduct duties. (Id.). Plaintiff alleges that Moore never took over the duties
and that she demanded that he do so or that she be elevated to a GS-14. (Id. at ¶ 6). Moore did
neither. (Id.).
Around the same time, the Teleservices and ELAN system managers were replaced.
(Doc. 49-1, Corder Aff. at ¶ 8). Norm Ott took over the system manager duties from Darryl
Lassen.

(Id.).

Lassen kept the division management responsibilities of Infrastructure

Engineering but Ott still received GS-14 pay. (Id.). Similarly, Robert Shreffler replaced Mike
Leist as the system manager of Teleservices as a GS-14 but did not assume any division
management duties. (Id.). Shreffler had been a teleservices branch supervisor but no longer
performed those duties once he because the system manager.3 (Id.). Corder had both system

3

In May 2013, Banton replaced Shreffler as the system manager for Teleservices. (Doc. 54-1, Banton Dep. at 10).
Banton had served as the supervisor of the engineering branch as a GS-13 but was elevated to GS-14 when he
assumed the system manager position. (Id. at 12).

3

management duties over DMI and division management over the DCGA program. 4 (Id. at ¶ 9).
At a later date, DCGA became a branch called Desktop Management Support (DMS). (Id.).
DFAS does not dispute that Plaintiff is the only system manager who manages a branch beneath
her own system. (Doc. 54-4, McNutt Dep. at 33).
In late 2011, McNutt and another DFAS employee, Joe Latchaw, led a restructuring
project of IPS, with the goal of putting employees into a structure where all of those who
supported the same system—i.e. ELAN, Teleservices, or DMI—worked within the same
command structure under one manager. (Doc. 54-4, McNutt Dep. 20–22). The restructuring
placed the majority of the system managers with the employees who were supporting the system
being managed. (Doc. 54-4, McNutt Dep. at 26). McNutt attempted to place the system
managers at the lowest organizational level possible based on the number of employees who
supported the system. (Doc. 54-4, McNutt Dep. at 28–30). To accomplish this, McNutt split the
supporting staff for each system into branches of twenty to twenty-five people. (Id.). If a system
had more than one branch, the system manager would be put at the level of a division manager.
(Id.). McNutt determined that Teleservices and ELAN required more than one branch while
DMI only needed one branch. (Id.). McNutt used projections to determine that Teleservices
would need two branches, not the current staffing numbers. (Id.).
While performing the restructuring, McNutt also devised a new method for determining
whether a system manager should receive GS-13 or GS-14 pay. The new method was allegedly
designed to “help [DFAS] differentiate the scope of the work that was done on our hundred—
roughly 100 different systems.” (Doc. 54-4, McNutt Dep. at 31). McNutt used a budget and

4

At a later date, DCGA became a branch called Desktop Management Support (“DMS”). (Doc. 49-1, Corder Aff.
at ¶ 9).

4

work years5 threshold to determine the pay grade of each system manager, and essentially
decided that if a system would require a budget of over $7.5 million and over 30 work years, the
system manager should receive GS-14 pay. (Id.). The budget and work year determinations for
the systems were made off of projections or forecasts of what would be necessary. (Doc. 54-4,
McNutt Dep. at 30–32). Ultimately, both ELAN and Teleservices were projected to be above
those thresholds and accordingly, Ott and Shreffler kept their GS-14 salary. Plaintiff, however,
as the system manager of DMI, continued to receive a GS-13 salary, allegedly because McNutt
only forecast eighteen employees for DMI. (Doc. 54-4, McNutt Dep. at 30).
Related to the new positions and pay methods, new position descriptions were written for
Corder and the other system managers. Two DFAS employees testified that, generally, position
descriptions were written after an employee’s pay grade was already determined. (Doc. 53,
Moore Dep. at 50–51; Doc. 54-3, Lassen Dep. at 39). Although Moore testified earlier that he
“look[s] at all the positions descriptions and you pick one that—the closely matches what the
person’s responsibilities would be,” he later admitted that in doing so, he works from a list of
position descriptions for each pay grade level. (Doc. 53, Moore Dep. 36, 51).
In the years following the restructuring, McNutt’s projections did not match reality for
DMI and Teleservices.6 In 2013, 2014, and 2015, Teleservices met the budget requirements but
failed to achieve the requisite work years. (Doc. 49-6, DFAS Interrog. Resp. at 4). Although
DMI did not meet the work year requirement in 2013, DMI met both requirements in 2014, and
2015. (Id. at 6). Throughout, Plaintiff remained at a GS-13 level despite the increase in work
years required for DMI and her continued performance in the dual roles of branch manager and

5

Neither party really explained the concept of “work years” but it appears to generally refer to an internal method of
calculating the number of employees necessary in a given year.
6
ELAN exceeded both goals in 2013 and 2014. (Doc. 49-6, DFAS Interrog. Resp. at 3).

5

system manager. (Corder Aff at ¶¶ 9, 11–12). McNutt was not aware of any system managers
within DFAS who had supervision duties other than Corder. (Doc. 54-4, McNutt Dep. 50–51).
In 2016, after the filing of this lawsuit, DFAS determined that the method of determining
pay grades for system managers was impermissible and thus, decided to review Plaintiff’s job
description to determine if her pay grade was correct. At some point, Amos Brown—the head of
Infrastructure Operations and Plaintiff’s supervisor—worked with a classification specialist to
make a new job description for Plaintiff. (Doc. 54-4, McNutt Dep. at 53–54). At the time he
prepared the new job description, Brown had only been Plaintiff’s supervisor for a year and did
not consult with her on her job description. (Doc. 49-1, Corder Aff. at ¶ 15). Amanda Roberson,
a DFAS human resources director, determined that Plaintiff should be a GS-13 based on the
major duties, responsibilities, and supervisory relationships Plaintiff had. (Doc. 45-1, Roberson
Aff. ¶¶ 8–10). Plaintiff alleges that Brown’s job description does not fully capture her job duties
and responsibilities and that in reality, her job duties resemble those in the ELAN and
Teleservices system manager job descriptions. (Id.).
Plaintiff began informally expressing her concerns to her bosses within DFAS about her
salary starting in 2011. Plaintiff formally reported her concerns with her salary in 2013 and a
Department of Defense investigator performed a fact finding conference on November 14, 2013.
(Doc. 54-2, Corder Dep. at 71, Doc. 45-8). After both DFAS and DFAS EEO investigation
failed to remedy her claims, Plaintiff filed suit in this case on April 4, 2014. Plaintiff’s Amended
Complaint now brings claims for violations of the Equal Pay Act (“EPA”) and Title VII of the
Civil Rights Act.

6

II.

STANDARD OF REVIEW

Defendants move for summary judgment pursuant to Rule 56 of the Federal Rules of
Civil Procedure. Summary judgment is appropriate “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.” Fed. R. Civ. P. 56(a). The Court’s purpose in considering a summary judgment motion 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). A
genuine issue for trial exists if the Court finds a jury could return a verdict, based on “sufficient
evidence,” in favor of the nonmoving party; evidence that is “merely colorable” or “not
significantly probative,” however, is not enough to defeat summary judgment. Id. at 249–50.
The party seeking summary judgment shoulders the initial burden of presenting the court
with law and argument in support of its motion as well as identifying the relevant portions of
“‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56). If this initial
burden is satisfied, the burden then shifts to the nonmoving party to set forth specific facts
showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e); see also Cox v.
Kentucky Dep’t of Transp., 53 F.3d 146, 150 (6th Cir. 1995) (after burden shifts, nonmovant
must “produce evidence that results in a conflict of material fact to be resolved by a jury”). In
considering the factual allegations and evidence presented in a motion for summary judgment,
the Court must “afford all reasonable inferences, and construe the evidence in the light most
favorable to the nonmoving party.” Id.

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III.

DISCUSSION

Plaintiff brings two claims related to her pay grade determination by DFAS: (1) a
violation of the EPA; and (2) a violation of Title VII of the Civil Rights Act for gender-based
wage discrimination. Defendants argue that Plaintiff cannot provide evidence to support an
EPA-based claim because she was not performing equal work to her comparators and that the
pay differential was based on a merit system other than sex. Regarding the Title VII claim,
Defendants argue that Plaintiff’s job duties were not similar to her comparators and that there is a
legitimate non-discriminatory reason for the pay disparity.

Plaintiff disputes Defendants’

arguments regarding both claims on legal and factual grounds, which will be discussed in greater
detail below.
A.

Federal Equal Pay Act Claim
The EPA provides that men and women performing “equal work” in the “same

establishment” must receive “equal pay” unless the employer can justify a pay differential by
pointing to a justification other than sex. 29 U.S.C. § 206(d)(1). A plaintiff alleging a violation
of the federal equal pay statute must make a prima facie showing that (1) the employer paid
different wages to male and female employees (2) for substantially equal work. Corning Glass
Works v. Brennan, 417 U.S. 188, 195 (1974); EEOC v. Romeo Cmty. Schs., 976 F.2d 985, 987
(6th Cir. 1992). “Whether a job is substantially equal for purposes of the EPA is determined on a
case-by-case basis and “resolved by an overall comparison of the work, not its individual
segments.” Beck-Wilson v. Principi, 441 F.3d 353, 359–60 (6th Cir. 2006) (citing Odomes v.
Nucare, Inc., 653 F.2d 246, 250 (6th Cir. 1981)).
“‘Unlike the showing required under Title VII’s disparate treatment theory, proof of
discriminatory intent is not required to establish a prima facie case under the Equal Pay Act.’”
Beck-Wilson, 411 F.3d at 360 (quoting Peters v. City of Shreveport, 818 F.2d 1148, 1153 (5th
8

Cir. 1987), abrogated on other grounds, Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)). If
Plaintiff successfully proves the prima facie case, Defendants may “‘prove’ that the differential
is justified under one of the four affirmative defenses set forth under § 206(d)(1) of the Equal
Pay Act: (1) a seniority system; (2) a merit system; (3) a system which measures earnings by
quantity or quality of production; or (4) any other factor other than sex.” Buntin v. Breathitt Cty.
Bd. of Educ., 134 F.3d 796, 799 (6th Cir. 1998) (citing Corning Glass Works, 417 U.S. at 196).
In the Sixth Circuit, these affirmative defenses must be proven by Defendants such that there
remains “no genuine issue as to whether the difference in pay is due to a factor other than sex.”
Id. (citing Romeo Cmty. Schs., 976 F.2d at 989). “Put another way: an ‘EPA plaintiff bears the
burden of producing evidence of pretext solely where a reasonable jury viewing the defendant’s
evidence could find only for the defendant.’” Schleicher v. Preferred Sols., Inc., 831 F.3d 746,
753 (6th Cir. 2016), cert. denied, 137 S. Ct. 531 (2016) (quoting Buntin, 134 F.3d at 800 n.7).
1.

Equal Work

Plaintiff argues that she has presented sufficient evidence to support her claims that she
performs equal work for less pay than her male comparators under any criteria, that the
differences cited by DFAS are inconsequential differences, and that some of the differences cited
are factually in dispute. DFAS argues that Plaintiff’s job requires less skill, less effort, less
responsibility, and fewer certifications than the jobs performed by ELAN and Teleservices.
The EPA statute provides that “equal work” consists of jobs which “require equal skill,
effort, and responsibility, and which are performed under similar working conditions.” 29
U.S.C. § 206(d)(1). The Sixth Circuit has clarified that courts should focus “on actual job
requirements and duties, rather than job classifications or titles.” Beck-Wilson, 441 F.3d at 362
(citing Brennan v. Owensboro–Daviess Cty. Hosp., 523 F.2d 1013, 1017, n. 7 (6th Cir. 1975)).

9

Further, at the prima facie stage, the Court only considers the skills and qualifications actually
needed to perform the comparable jobs. Id. Plaintiff need not show that the jobs are perfectly
equal, but rather that they are similar enough such that a jury could decide the jobs are
substantially equal. Id. at 363.
As an initial matter, Defendants admitted in their Motion that the “system management
functions of ELAN, Teleservices and DMI were essentially the same.” (Doc. 45, Mot. at 12
(citing Doc. 54-4, McNutt Dep. at 58–59)). McNutt’s testimony is particularly important as he
oversees all three of the system managers at issue in this case. McNutt testified that the day-today job responsibilities for each system manager are essentially the same. (Doc. 54-4, McNutt
Dep. at 58–59).
However, Defendants still argue that there are differences between Plaintiff and her
comparators because the ELAN system manager provides strategic direction for security, new
hardware, and long-range planning and that on some issues DMI falls under ELAN. Defendants
argue that the Teleservices system manager also performs strategic planning for modernization
and briefing.

Specifically, Defendants cite Lassen’s deposition, where he notes that for

accreditation of systems, “if another agency is unhappy with how we’ve done the ELAN or the
desktops or teleservices for the ELAN, they will go -- desktop, they will go to the ELAN system
manager . . . .” (Doc. 54-3, Lassen Dep. at 17). Defendants also note that Plaintiff does not have
the responsibility of reporting to the CIO as the ELAN and Teleservices system managers do.
Comparing each system, Defendants emphasize the differences in complexity between the
ELAN and Teleservices systems and DMI.
Plaintiff argues that the jobs are similar, noting that Lassen’s testimony “refers to the
preparation of certifications packages for system accreditation,” and that Plaintiff is heavily

10

involved in that process. (Doc. 49, Mem. Opp. at 33). Plaintiff notes that she serves as the
“User Representative for ELAN for the Defense Information Assurance Certification
Accreditation Program . . . .” (Id. at 33). Plaintiff also argues that any differences cited by the
Defendants are inconsequential because those differences have never formed the basis of any pay
disparity at DFAS. Additionally, Plaintiff argues that she actually performs more work than her
male comparators because she has supervisory duties and they do not. Last, Corder affirmed that
she performs all of the job duties outlined in the ELAN and teleservices position descriptions.
(Doc. 49-1, Corder Aff. at ¶ 11).
Defendant states that the pay disparity is created by “the differences in the[ system]
functions and the skill, effort and responsibilities needed to perform those functions . . . .” (Doc.
45, Mot. at 12). But, it is undisputed that from the time of the reorganization in 2012 until this
case was filed, the disparity in pay among system managers was created by 2012 budget and
workload projections for each system, not the actual skill, effort, and responsibilities of each
system manager.

Further, the current position descriptions for Plaintiff’s job and for the

Teleservices System Manager’s job list the same complexity level, the same scope and effect
level, and the same level of personal and purpose of contacts. (Doc. 45-9, DMI Sys. Manager
Pos. Description at 5–6; Doc. 45-10, Teleservices Sys. Manager Pos. Description at 5–6).
Additionally, during the 2013 Fact Finding conference, Latchaw, when asked to explain the
differences in complexity, stated that “the primary difference between [DMI and ELAN and
Teleservices] is the number of government employees that are supporting the system.” (Doc. 458, Fact Finding Tr. at 92). At the time, ELAN had between 70 and 90 employees, Teleservices
had 30, and DMI had 10. Now, however, DMI has consistently required greater staffing than
Teleservices, which, according to Latchaw, means that DMI is now significantly more complex

11

than Teleservices. (Doc. 49-6, DFAS Interrog. Resp. at 4, 6). Ultimately, from the evidence
submitted by both parties, Plaintiff has presented sufficient evidence that she performs equal
work to her male comparators.
2.

Affirmative Defenses

Defendants argue that one of the statutory affirmative defenses applies in this case
because the pay differential (both before and following the commencement of this litigation) was
based on a factor other than sex. Defendants argue that Plaintiff’s pay is currently based on the
GS classification of her position and that previously, it was based off of the work years and
budget criteria set forth during the reorganization. Plaintiff argues that the evidence shows that
the reorganization criteria were not gender neutral because they did not account for changes to
the figures in later years and were designed by Plaintiff’s two male superiors.
The defense that the disparity in pay was based on a factor other than sex “does not
include literally any other factor, but a factor that, at a minimum, was adopted for a legitimate
business reason.” EEOC v. J.C. Penney Co., Inc., 843 F.2d 249, 253 (6th Cir. 1988) (citing
Bence v. Detroit Health Corp., 712 F.2d 1024, 1029–31 (6th Cir. 1983)). The defense is strictly
interpreted and the Defendant must show that “‘the factor of sex provides no part of the basis for
the wage differential . . . .’” Beck-Wilson, 441 F.2d at 365 (quoting Brennan, 523 F.2d at 1031).
In this case, there is a genuine issue as to whether sex played a factor because even
though Defendants identified a system by which Plaintiff and her comparators were paid
differently, the system used by Defendants does not provide the sort of proof required to satisfy
the affirmative defense. Plaintiff has identified facts showing that even when Plaintiff’s system
met the arbitrary standards set forth by Defendants, she still did not receive the same pay as her
male comparators. Further, the system used by Defendants did not adjust her male comparator’s

12

pay downward when Teleservices failed to meet the baselines. Again, this defense requires that
the Defendant articulate some legitimate business reason for the pay disparity. McNutt testified
that the employee/budget system was to help “differentiate the scope of the work that was done
on our hundred -- roughly 100 different systems.” (Doc. 54-4, McNutt Dep. at 31). If the goal
was to differentiate the systems and there was a legitimate business purpose for using work hours
and budget as the basis for the differentiation, then Defendants cannot show that there was a
legitimate business purpose for continuing to pay the Teleservices manager as a GS-14 despite
that system failing to meet the baselines while continuing to pay the DMI manager as a GS-13
when her system met those same baselines.
Defendants abandon the argument that the reorganization criteria were gender neutral in
their Reply and instead argue that the Office of Personnel Management establishes the pay
grades and thus, the gender neutral GS determines Plaintiff’s pay.

Defendants argue that

Plaintiff’s pay is dependent on her position description, “which describes management
assignment of duties, responsibilities, and supervisory relationships . . . .” (Doc. 52, Reply at 6).
Defendants argue that “Mr. Moore clearly stated that in selecting a position description he chose
the one that matched the person’s responsibilities.” (Id. (citing Doc. 53, Moore Dep. at 36)).
However, Moore clearly stated that if he is making a GS-13 position description, he would look
through position descriptions that are just for the GS-13 jobs. (Doc. 53, Moore Dep. at 50–51).
Defendants also cannot explain why Lassen testified that he also looks at the position
descriptions for just GS-14s when a position has already been determined to be a GS-14.
Q. When you’re selecting a position description, what do you take into account?
Are you looking simply -- do you just pick -- you know it’s going a be a GS-14,
so you just look under the GS-14 listed position descriptions and you pick the one
that’s closest or do you -- how do you do it?
A. Look at the one that’s closest.

13

Q. Within the GS-14?
A. Correct, within the GS-14 level going on what this area and the front portion of
it -- for the duties to match up to what is being done by that GS-14.
(Doc. 54-3, Lassen Dep. 39).
Plaintiff also points to a portion of Moore’s deposition where he noted that an earlier
version of Plaintiff’s position description did not actually include all of her duties. (Doc. 53,
Moore Dep. at 45–46). Plaintiff also notes that her position description “shows significant
differences between [Helligrath’s] position [description] and the one held by Plaintiff.” (Doc.
49-8, McGrath Expert Report at 31). As Plaintiff notes, Plaintiff’s former supervisor admitted
that she performed all of Helligrath’s duties. (Doc. 49-10, Fact Find Tr. at 230).
In her affidavit, Corder stated that she does all of the duties listed in the current ELAN
and Teleservices job descriptions and that her current position description does not fully account
for all of her duties. (Doc. 49-1, Corder Aff. at ¶ 11). Again, Defendants attempt to argue that
“Plaintiff fails to appreciate the complexity and scope the ELAN and Teleservices system
manager positions require,” but cannot explain why the position descriptions for Teleservices
and DMI have identical scores for the “complexity” and “scope” factors. (Doc. 52, Reply at 6,
Doc. 45-9, DMI Sys. Manager Pos. Description at 5–6; Doc. 45-10, Teleservices Sys. Manager
Pos. Description at 5–6). Accordingly, Plaintiff has provided significant evidence that the
position description does not match her current job description and Defendants have not
provided any evidence that basing an employee’s salary on an incomplete and/or incorrect
position description serves any legitimate business purpose. Defendants Motion for Summary
Judgment as to Plaintiff’s EPA claim is DENIED.

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B.

Title VII Wage Discrimination Claim
Next, the Court must consider Plaintiff’s Title VII claims of gender discrimination on the

basis that Defendants paid her less and required her to perform more work than her male
colleagues.
Regarding the discrimination in unequal pay claim, as Defendants suggest, the standards
of liability under both the EPA and Title VII are sufficiently similar that “‘disposition with
respect to the two claims should be the same.’” (Doc. 45, Defs.’ Mot. at 19 (quoting Crowder v.
Railcrew Xpress, 557 F. App’x 487, 494 (6th Cir. 2002)). The Court agrees. The Sixth Circuit
has repeatedly held that “[a] finding of ‘sex discrimination in compensation’ under one Act is
tantamount to a finding of ‘pay discrimination on the basis of sex’ under the other.” Korte v.
Diemer, 909 F.2d 954, 959 (6th Cir. 1990); Clark v. Johnson & Higgins, 1999 WL 357804, 181
F.3d 100 (6th Cir. 1999) (table). To be even more specific, the Sixth Circuit has held that
“where the plaintiff defeats the defendant’s motion for judgment as a matter of law with respect
to her EPA claim by raising a genuine issue as to the defendant’s reason for the differential
wage, she also defeats their motion for judgment as a matter of law brought against her parallel
Title VII claim.” Buntin, 134 F.3d at 801. Accordingly, summary judgment as to Plaintiff’s
Title VII claim regarding her pay is DENIED.
Regarding Plaintiff’s claim that she is performing more work than her male colleagues,
Plaintiff provided evidence to support a prima facie claim of gender discrimination because she
asserted that she is a member of a protected class, that she performs a job which Defendants
admit should be split into two positions, and she received less pay than her male comparators
who only work one job. Lassen, one of her current supervisors, admitted that at times, Plaintiff’s
work load is like having two jobs and that he believed the job duties should be split. (Doc. 54-3,
Lassen Dep. at 30). Additionally, he testified that splitting the duties of each system manager
15

was one of the intentions of the reorganization. (Id. at 28–29). McNutt testified that he is not
aware of any other system manager who has supervisory duties. (Id.).
Defendants attempt to explain Plaintiff’s extra duties by insisting that Plaintiff accepted
the job after the reorganization and that Plaintiff accepted the job knowing it came with more
duties. However, the evidence does not support either of these arguments. First, Plaintiff
assumed Helligrath’s job in September 2011, before the reorganization in October 2011. (Doc.
49-1, Corder Aff. at ¶ 5; Doc. 54-4, McNutt Dep. at 17). Second, although Helligrath was
already performing the duties of DMI system manager and DCGA manager, Plaintiff stated that
Moore ensured her that she would not have both duties at the time Plaintiff accepted the position.
(Doc. 49-1, Corder Aff. at ¶¶ 5–6). Plaintiff’s argument is not that DFAS has heaped extra
duties on her that her peers did not get, but rather that her peers had extra duties removed from
their job but that Plaintiff continues to do the extra duties. Further, no DFAS employee has
provided any reason why Plaintiff’s supervisory duties have not been split apart like those of her
male colleagues who receive higher pay. In fact, Lassen and McNutt explicitly stated that the
job should be split and that they have the power to split the job. (Doc. 54-4, McNutt Dep. at 51;
Doc. 54-3, Lassen Dep. at 30–32).
Defendants’ legitimate non-discriminatory basis argument is that it was “oversight” that
Plaintiff’s job was not split. Oversight is not a legitimate non-discriminatory basis for requiring
a woman to perform more duties than her male counterparts. Specifically, Plaintiff’s complaints
about her dual role from the time she accepted the job in 2011 to the filing of this case put
Defendants on notice that her job should be switched. Further, as noted above, Lassen admitted
that splitting such duties was one of the intents of the 2011 reorganization. (Doc. 54-3, Lassen
Dep. at 28–29). Even if the Court accepted oversight as a legitimate, non-discriminatory basis,

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Defendants’ continued failure for five years to remedy a problem which they knew existed and
had the power to change is sufficient evidence of pretext to overcome “oversight” as a nondiscriminatory basis. Accordingly, Defendants’ Motion is DENIED as to Plaintiff’s claims
under Title VII.
IV.

CONCLUSION

Based on the foregoing, Defendants’ Motion for Summary Judgment is DENIED. The
Clerk shall REMOVE Document 45 from the Court’s pending motions list. In light of this
decision, the parties shall contact Magistrate Judge Jolson within 14 days to arrange for
participation in an upcoming Settlement Week or schedule a Mediation/Settlement Conference
outside of a designated Settlement Week.
IT IS SO ORDERED.
__/s/ George C. Smith
___
GEORGE C. SMITH, JUDGE
UNITED STATES DISTRICT COURT

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