Davis v. South Carolina Department of Health and Environmental Control
Filing
59
ORDER AND OPINION RULING ON REPORT AND RECOMMENDATION. The court ACCEPTS the Report 52 but REJECTS its finding regarding the effort prong of the EPA analysis, and GRANTS 32 DHECs Motion for Summary Judgment. Signed by Honorable J Michelle Childs on 9/24/2015. (asni, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Gretha G. Davis,
Plaintiff,
v.
South Carolina Department of Health and
Environmental Control,
Defendant.
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Civil Action No.
3:13-cv-02612-JMC
ORDER AND OPINION
This matter is before the court on Defendant South Carolina Department of Health
and Environmental Control’s (“DHEC”) Motion for Summary Judgment filed on January
22, 2015. (ECF No. 32.) Plaintiff Gretha G. Davis (“Davis”) filed this action against
DHEC, her employer, alleging claims of race discrimination pursuant to Title VII of the
Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e, et seq., and sex
discrimination pursuant to the Equal Pay Act of 1963 (“EPA”), 29 U.S.C. § 206(d).
(ECF No. 1.)1
In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) for the
District of South Carolina, the matter was referred to United States Magistrate Judge
1
The court notes that Davis’s Complaint attempted to raise a separate cause of action for
an alleged violation of the Lilly Ledbetter Fair Pay Act of 2009 (the “Act”) (ECF No. 1);
however, as noted in DHEC’s Motion for Summary Judgment (ECF No. 32-1 at 2) and
acknowledged in Davis’s Response in Opposition (ECF No. 50 at 1 n.1), the Act does not
create a cause of action. See Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2,
123 Stat. 5 (2009). “[T]he Act does not create substantive rights, but instead clarifies the
point of commencement of the statute of limitations in instances of wage discrimination.”
Rodriguez–Torres v. Gov't Dev. Bank of Puerto Rico, 704 F. Supp. 2d 81, 96 n.6 (D.P.R.
2010).
1
Paige J. Gossett for pretrial handling. On July 30, 2015, the Magistrate Judge issued a
Report and Recommendation (the “Report”) recommending that the court grant DHEC’s
Motion for Summary Judgment. (ECF No. 52.) Davis filed an Objection to the Report
(ECF No. 55) and DHEC filed a Reply (ECF No. 56). The court ACCEPTS the Report
but REJECTS its finding regarding a part of the EPA analysis, and GRANTS DHEC’s
Motion for Summary Judgment (ECF No. 32).
I.
JURISDICTION
This court has jurisdiction pursuant to 28 U.S.C. § 1331, which provides that
“[t]he district courts shall have original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.”
II.
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
DHEC hired Davis, an African-American female, in 1984 for the position of
Microbiologist I. (ECF No. 52 at 2.) At the time she was hired, Davis had a Bachelor’s
degree in Microbiology. (Id.) During her employment, Davis completed a Master’s
degree in Public Health in 1996.
(Id.)
In 2005, DHEC promoted Davis to a
Microbiologist III position to supervise the Milk and Dairy Laboratory, for which she
received a 9.5 % salary increase from $43,832 to $47,996. (ECF Nos. 50-2, 52 at 2.)
On or around July 26, 2011, Davis sent a letter to Dr. Arthur Wozniak (“Dr.
Wozniak”), Chief of the Bureau of Laboratories, relaying her concerns of pay inequity
due to her race. (ECF No. 32-3 at 2.) Davis expressed that her salary lagged behind the
salary of employees with less education and/or experience and that she should be
“granted equal compensation for equal credentials” and back pay. (ECF Nos. 32-3 at 2,
50-8 at 2.)
Thereafter, around November 2011, Gloria Tyler (“Tyler”), DHEC’s
2
Employee Relations Manager, and Quinton Chavis, DHEC’s Equal Employment
Opportunity Commission Director, instituted an investigation. (ECF No. 50-4 at 6, 12.)
Tyler concluded that there was a pay inequity but that this inequity was not based
on race. (ECF Nos. 50-4 at 13, 50-9 at 2.) Tyler indicated that although Davis’s salary
was less than Ms. Bandstra, a white female employee hired in 2009 for a similar position,
it is not uncommon for a “long term employee to be at a lesser salary than a newer
employee because of the increases that are received over the year and where they actually
started.” (ECF No. 50-4 at 13, 15.) In light of this salary inequity, DHEC approved
Davis’s salary for a Special Pay Raise of 12.5%, which resulted in a salary increase from
$53,400 to $60,168, effective on March 17, 2012.
(ECF Nos. 32-5, 50-8, 50-16
(suggesting that since Davis’s last promotion in 2005, her salary had increased to
$53,400).) This salary was in line with Ms. Bandstra, who was earning about $60,000.
(ECF Nos. 32-5, 50-8, 50-16.)
In a letter to Tyler dated March 19, 2012, Davis relayed her dissatisfaction with
this resolution claiming that the adjusted salary continued to leave a significant salary
discrepancy between her pay and that of another Microbiologist III. (ECF No. 50-8.) In
a letter dated March 30, 2012, Tyler defended the proposal and maintained that the other
Microbiologist III position, held by Dr. Christopher Evans (“Dr. Evans”), a white male,
was completely different in terms of actual job skills and responsibilities. (ECF No. 50-9
(emphasizing that the pay difference was the result of Dr. Evans’s doctorate degree,
entomology expertise, and higher salary ranges for medical entomologists in either the
public or private sector).)
3
On April 3, 2012, Davis filed a Charge of Discrimination with the South Carolina
Human Affairs Commission alleging that she was “denied equal wages beginning on or
about August 8, 2011, and continuing through March 19, 2012” on the basis of her race.2
(ECF No. 32-6.)
Davis filed her Complaint on September 24, 2013, alleging race
discrimination under Title VII and sex discrimination under the EPA. (ECF No. 1.)
DHEC responded with a Motion for Summary Judgment. (ECF No. 32.) Davis filed a
Response in Opposition (ECF No. 50) and DHEC filed a Reply (ECF No. 51). The
Magistrate Judge issued a Report recommending that the court grant DHEC’s Motion for
Summary Judgment. Thereafter, Davis filed an Objection (ECF No. 55) to the Report
and DHEC filed a Reply (ECF No. 56).
III.
LEGAL STANDARD
A. The Magistrate Judge’s Report and Recommendation
The Magistrate Judge makes only a recommendation to this court.
recommendation has no presumptive weight.
The
The responsibility to make a final
determination remains with this court. See Mathews v. Weber, 423 U.S. 261, 270-71
(1976).
The court reviews de novo only those portions of a Magistrate Judge’s
recommendation to which specific objections are filed, and reviews those portions which
are not objected to -- including those portions to which only “general and conclusory”
objections have been made -- for clear error. Diamond v. Colonial Life & Acc. Ins. Co.,
416 F.3d 310, 315 (4th Cir. 2005); Camby v. Davis, 718 F.2d 198, 200 (4th Cir. 1983);
2
The court observes that Davis amended her Charge of Discrimination on December 21,
2012, to indicate that she had been involuntary transferred on or about November 2,
2012, and was not given an explanation. (ECF No. 50-12.) Davis was informed that she
was being transferred from Health Services to Environmental Quality Control, but that no
changes were anticipated in her job functions and responsibilities. (ECF Nos. 50-11, 5012.)
4
Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). The court may accept, reject, or
modify, in whole or in part, the recommendation of the Magistrate Judge or recommit the
matter with instructions. See 28 U.S.C. § 636(b)(1).
B. Summary Judgment
Summary judgment should 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.” Fed. R. Civ. P. 56(a). A fact is “material” if proof of its existence or nonexistence would affect the disposition of the case under the applicable law.
See
Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248-49 (1986). In ruling on a motion for
summary judgment, a court must view the evidence in the light most favorable to the
non-moving party. See Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th
Cir. 1990). “Mere unsupported speculation . . . is not enough to defeat a summary
judgment motion.” Ennis v. Nat’l Ass’n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th
Cir. 1995).
“In discrimination cases, a party is entitled to summary judgment if no reasonable
jury could rule in the non-moving party’s favor.”
Tavernier v. Healthcare Mgmt.
Assocs., Inc., C/A No. 0:10-01753-MBS, 2012 WL 1106751, at *5 (D.S.C. Mar. 30,
2012) (citing Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir.
2002)). “The court cannot make credibility determinations or weigh the evidence, but the
court should examine uncontradicted and unimpeached evidence offered by the moving
party.” Id. (citing Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133, 150 (2000)).
5
C. Equal Pay Act
To establish a prima facie case under the EPA, the plaintiff must demonstrate: (1)
that the employer has paid different wages to employees of opposite sexes, (2) for equal
work in jobs, which require equal skill, effort, and responsibility, and (3) which are
performed under similar working conditions. See Gustin v. W. Va. Univ., 63 F. App’x
695, 698 (4th Cir. 2003) (quoting Brinkley v. Harbour Recreation Club, 180 F.3d 598,
613 (4th Cir. 1999)).
“Additionally, the plaintiff must identify a particular male
‘comparator’ for purposes of the inquiry, and may not compare herself to a hypothetical
or ‘composite’ male.” Strag v. Bd. of Trs., Craven Cmty. Coll., 55 F.3d 943, 948 (4th
Cir. 1995) (citing Houck v. Va. Polytechnic Inst., 10 F.3d 204, 206 (4th Cir. 1993)).
Once a plaintiff establishes a prima facie case of salary discrimination, the burden
shifts to the employer to prove, by a preponderance of evidence, that the pay differential
is justified by the existence of one of the four statutory exceptions set forth in §
206(d)(1): (1) a seniority system, (2) a merit system, (3) a system that measures earnings
by quantity or quality of production, or (4) a differential based on any factor other than
sex. See Strag, 55 F.3d at 948 (citing Houck, 10 F.3d at 207). “If this burden is
successfully carried by the employer, the plaintiff's claim must fail unless the plaintiff
can satisfactorily rebut the defendant's evidence.” Id.
D. Title VII
Title VII prohibits discrimination in compensation based on an individual's race.
See 42 U.S.C. § 2000e–2(a)(1). To establish a prima facie case of wage discrimination
under Title VII, a plaintiff must show: (1) that she is a member of a protected class; (2)
she was paid less than an employee outside the class; and (3) the higher paid employee
6
was performing a substantially similar job. See Brown v. Thomas Supply Co., Inc., C/A
No. 2:08–3124, 2010 WL 2640498, at *2 (D.S.C. July 1, 2010) (citing Brinkley–Obu v.
Hughes Training, Inc., 36 F.3d 336, 343 (4th Cir. 1994) and Kress v. Mun. Employees
Credit Union of Baltimore, Inc., 319 F. Supp. 2d 637, 644 (D. Md. 2004)).
A plaintiff suing under Title VII may “avert summary judgment” through direct
evidence of discrimination or through the burden-shifting framework of McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973).3 “A plaintiff can survive a motion for
summary judgment by presenting direct or circumstantial evidence that raises a genuine
issue of material fact as to whether an impermissible factor such as race motivated the
employer's adverse employment decision.” Diamond, 416 F.3d at 318 (citing Hill v.
Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 284 (4th Cir. 2004)). “[T]he
impermissible factor need not have been the sole factor.” Id. “As long as it motivated the
adverse action, the plaintiff can establish an unlawful employment practice.” Id. (citing
42 U.S.C.A. § 2000e–2(m)).
Alternatively, under the burden-shifting framework, once a plaintiff establishes a
prima facie case, the defendant must articulate a legitimate, non-discriminatory reason
for the pay disparity. See Merritt v. Old Dominion Freight, 601 F.3d 289, 294 (4th Cir.
2010) (citation omitted); Wojciechowski v. Nat’l Oilwell Varco, L.P., 763 F. Supp. 2d
832, 854 (S.D. Tex. 2011) (quoting Meeks v. Computer Assocs. Intern., 15 F.3d 1013,
3
See Foster v. Univ. of Maryland-Eastern Shore, 787 F.3d 243, 249 (4th Cir. 2015)
(indicating that these two “avenues of proof” are often referred to as the “mixed-motive”
framework and the “pretext” framework, respectively); Diamond v. Colonial Life & Acc.
Ins. Co., 416 F.3d 310, 318 (4th Cir. 2005); see also Desert Palace, Inc., v. Costa, 539
U.S. 90, 92 (2003) (defining a mixed motive case as one where both legitimate and
illegitimate reasons motivated the decision); see also Collins v. Landmark Military
Newspapers, Inc., No. 2:06cv342, 2007 WL 2301549, at *17 (E.D. Va. Aug. 6, 2007)
(articulating the standard under Title VII).
7
1019 (11th Cir. 1994)) (emphasizing that defendant’s burden is “exceedingly light”).
Once the defendant advances such a justification, the plaintiff must demonstrate by a
preponderance of the evidence that the neutral reasons offered by the employer “were not
its true reasons, but were a pretext for discrimination.” Merritt, 601 F.3d at 294 (quoting
Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981)). “The final pretext
inquiry ‘merges with the ultimate burden of persuading the court that [the plaintiff] has
been the victim of intentional discrimination,’ which at all times remains with the
plaintiff.” Id. (quoting Burdine, 450 U.S. at 256).
IV.
A.
ANALYSIS
The Report and Recommendation
The Magistrate Judge found that DHEC was entitled to summary judgment on
Davis’s EPA and Title VII claims. (ECF No. 52.) With respect to Davis’s EPA claim,
the Magistrate Judge determined that the only element in dispute was the second element
of the prima facie case (i.e., equal work in jobs which require equal skill, effort, and
responsibility).
The Magistrate Judge found that Davis and the identified male
comparator, Dr. Evans, held jobs that were not substantially equal. (Id. at 6 (concluding
that the skills, training, effort, and responsibilities were not the same).) Specifically, the
Magistrate Judge determined that Dr. Evans’s position requires, inter alia, the
performance of complex entomological duties, the design of studies to monitor infectious
diseases, and preparation of manuscripts for scientific journals.
(Id.)
While
acknowledging that job descriptions were not determinative, the Magistrate Judge
advised that the job “descriptions bear little resemblance to one another.” (Id. at 7
(adding that “[Davis] admitted in her deposition that she and Evans ‘do different
8
things’”).) Relying on various cases, the Magistrate Judge concluded that despite similar
job titles, because the skills were different and Dr. Evans’s job responsibilities were more
expansive and required added efforts, the two jobs were not substantially equal. (Id. at 6,
8-9 (concluding that Dr. Evans was not a proper comparator).) Moreover, even if Davis
could establish a prima facie case, DHEC had carried its burden of showing that the
disparity in pay was based on a factor other than sex. (Id. at 9 (finding that Dr. Evans’s
Ph.D. and prior salary history were permissible factors other than sex to explain a
disparity in pay).)
As for Davis’s Title VII claim, the Magistrate Judge determined that direct
evidence of discrimination was lacking and proceeded to the burden shifting analysis.
(Id. at 10.) Applying this standard, the Magistrate Judge concluded that despite the
relaxed standard of similarity between male and female occupied jobs under Title VII,
Davis had failed to “adduce facts showing that she was similarly situated to her proposed
comparator – Evans.” (Id. at 12.)
B.
Davis’s Objections
Davis has filed two objections to the Report that maintain that the Magistrate
Judge erred (1) in considering evidence not previously produced in discovery and (2) in
failing to accept Davis’s identified comparator for her EPA claim and her Title VII claim.
(ECF No. 55.) Davis argues that in her Response in Opposition to DHEC’s Motion for
Summary Judgment, she specifically objected to DHEC’s use of various relevant and
requested exhibits.
(Id. at 4.)
Davis maintains that discovery was open for
approximately two years, yet DHEC failed to produce these exhibits during discovery,
and waited until its summary judgment motion. (Id.) Davis indicates that despite Rule
9
37(c) of the Federal Rules of Civil Procedure providing an “automatic sanction” of
exclusion, the Magistrate Judge reopened discovery for the purposes of deposing Tyler.
(Id. (arguing that Tyler’s testimony was of little benefit).) Davis maintains that the
Magistrate Judge should have omitted DHEC’s exhibits to its summary judgment motion.
(Id. at 5 n.3 (adding that DHEC primarily relies on these exhibits to distinguish Dr. Evans
as a comparator).)
With respect to the Magistrate Judge’s alleged failure to accept Dr. Evans as a
comparator for her EPA claim, Davis argues that the Report focuses only on the fact that
the training is different and that the parties use different abilities. (Id. at 5 (arguing that
Dr. Evans’s Ph.D. is of no consequence).) Davis argues that although DHEC makes no
reference to training differences, the Magistrate Judge concluded that there was a
difference in training; that despite her resume indicating she has more experience, that
fact alone should not disqualify Dr. Evans from being her comparator; and that with
respect to effort, the job positions suggest that the levels of effort are similar. (Id.)
Finally, in considering responsibility, Davis argues that she and Dr. Evans maintain a
degree of accountability that is comparable. (Id. at 6-7 (arguing that Dr. Evans maintains
a lab, whereas Davis maintains a lab mandatory under state law and provides direction to
subordinates).)
As for the Title VII claim, Davis argues that DHEC acknowledged an inequity in
salary between her and Dr. Evans in 2012 and that DHEC’s explanation that it was not
discriminatorily motivated was superficial. (Id. at 7 (adding that her lab was relocated
thereafter).)
Finally, Davis maintains that DHEC increased her salary because it
perceived her job as comparable to Dr. Evans’s job. (Id. at 8.)
10
C.
DHEC’s Reply to Objection
DHEC maintains that Davis’s objections to the Magistrate Judge’s considerations
of certain evidence are curious because those issues have already been addressed by the
court and are baseless because the documents are admissible under Rules 803(6), 803(8)
and 902 of the Federal Rules of Evidence. (ECF No. 56 at 1-2 (referring to evidentiary
rules addressing “Records of a Regularly Conducted Activity,” “Public Records,” and
“Evidence That Is Self-Authenticating” respectively).)
DHEC argues that Davis’s
argument that she was ambushed by the information in these documents is simply not
accurate. (Id. at 2.) Moreover, DHEC maintains that the Magistrate Judge engaged in a
thorough review of the record and the applicable law in finding that Dr. Evans was not a
proper comparator. (Id. at 4 (maintaining that the Magistrate Judge properly found that
the EPA claim should be dismissed).) With respect to the Title VII claim, DHEC
contests Davis’s argument that it was unable to point to any other basis other than
unlawful discrimination to explain the pay inequity.
(Id.)
DHEC indicates that it
presented other reasons to explain the difference in pay. (Id. at 4-5 (responding that the
Magistrate Judge properly found that the Title VII claim should be dismissed).)
D.
The Court’s Review
Davis essentially raises two objections to the Report’s findings: the Magistrate
Judge improperly considered evidence not previously produced by DHEC during
discovery and erred in failing to accept Davis’s identified comparator for the EPA and
Title VII claims.
11
1. Discovery
Having reviewed the Magistrate Judge’s decision to grant in part Davis’s Motion
for Failure to Disclose in Discovery and to reopen discovery for the limited purpose of
allowing Davis to depose Tyler, the court finds that the Magistrate Judge properly
exercised its broad discretion under Rule 37(c) to determine whether a nondisclosure of
evidence is substantially justified or harmless.4 (See ECF No. 46.)
2. EPA and Title VII Claims
a. EPA Claim
Davis argues that she performed equal work in a job, which requires equal skill,
effort, and responsibility. To determine whether two jobs are equal, courts look to
“whether the jobs have a ‘common core of tasks, i.e., whether a significant portion of the
two jobs is identical.’” Merillat v. Metal Spinners, Inc., 470 F.3d 685, 695 (7th Cir.
2006) (quoting Cullen v. Indiana Univ. Bd. of Trs., 338 F.3d 693, 698 (7th Cir. 2003)).
Once a plaintiff establishes a common core of tasks, the court inquires “whether any
additional tasks make the jobs ‘substantially different’” and whether “each of the
elements listed in the EPA (skill, effort and responsibilities) [are] met . . . .” Id. (quoting
Cullen, 338 F.3d at 698).
Courts look to the actual job duties performed, not the job
description or title. Id. (citing Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1461 (7th
4
See S. States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 597 (4th Cir.
2003) (“[I]n exercising its broad discretion to determine whether a nondisclosure of
evidence is substantially justified or harmless for purposes of a Rule 37(c)(1) exclusion
analysis, a district court should be guided by the following factors: (1) the surprise to the
party against whom the evidence would be offered; (2) the ability of that party to cure the
surprise; (3) the extent to which allowing the evidence would disrupt the trial; (4) the
importance of the evidence; and (5) the nondisclosing party's explanation for its failure to
disclose the evidence.”).
12
Cir. 1994)). Importantly, the court observes that in enacting the EPA, “Congress chose
the word ‘equal’ over the word ‘comparable’ in order ‘to show that the jobs involved
should be virtually identical, that is . . . very much alike or closely related to each other.’”
Wheatley v. Wicomico Cnty., 390 F.3d 328, 333 (4th Cir. 2004) (quoting Brennan v. City
Stores, Inc., 479 F.2d 235, 238 (5th Cir. 1973)).
Davis maintains that her position as Microbiologist III requires equal skill as Dr.
Evans’s position as Microbiologist III. “Skill includes consideration of such factors as
experience, training, education, and ability.” Cullen, 338 F.3d at 699 (quoting 29 C.F.R.
§ 1620.15(a)) (emphasizing that the “comparison at this juncture is between positions, not
individuals”)). “Possession of a skill not needed to meet the requirements of the job
cannot be considered in making a determination regarding equality of skill.” Id. (quoting
§ 1620.15(a)). “[Skill] must be measured in terms of the performance requirements of
the job.” § 1620.15(a). 5 Though job descriptions are not dispositive, the Magistrate
Judge properly concluded that the two written job descriptions showed numerous and
significant differences. (ECF No. 52 at 7 (acknowledging that job descriptions are not
dispositive).) Despite identical job titles, the Magistrate Judge correctly determined that
the actual skill set required for each position is different. (See ECF No. 52 at 6-9
(discussing the skills required to perform the job).) In a letter dated March 30, 2012,
Tyler articulated DHEC’s position regarding the difference in actual job skills and
5
Moreover, § 1620.15(a) also states that:
If an employee must have essentially the same skill in order
to perform either of two jobs, the jobs will qualify under
the EPA as jobs the performance of which requires equal
skill, even though the employee in one of the jobs may not
exercise the required skill as frequently or during as much
of his or her working time as the employee in the other job.
13
responsibilities involved in the respective positions. (ECF No. 50-9.) Tyler described
and distinguished Dr. Evans’s position and duties as follows:
[Dr. Evans’s position] is akin to a specialty in
microbiology, and is important to the agency’s public
health mission due to the number and complexity of major
chronic and other illnesses being borne by insects and
potentially affecting a large portion of the population. Dr.
Evans works as a co-investigator in the Emerging Diseases
Laboratory Surveillance Program. In addition, this position
requires extensive intra-agency and outreach duties and
responsibilities, including publication in scientific journals
and professional publications and representations to agency
partners, clients and the public. There is no supervisory
role.
(ECF No. 50-9 (distinguishing Dr. Evans’s and Davis’s positions).) Moreover, Davis
indicated that she and Dr. Evans had different educational backgrounds and duties:
Q: (DHEC’s Counsel). Well, let me rephrase the question.
Is it fair to say given – I understand you have seen his
position description. Given what you know about what
people like Ms. Tyler have told you about his position, is it
fair to say that what he does is just different than what you
do?
A: (Davis). Yes, sir, it’s different.
Q: Is it fair to say that you do not have the same
educational background?
A: It’s fair to say that. But when I was given the additional
pay increase and was told that it was not racial
discrimination, I asked what factor was found to be
associated with the pay discrepancy and nobody was able
to tell me anything.
Q: Well, if I’m telling you right now that you obviously
have different educational backgrounds, that would be true,
wouldn’t it?
A: That would be true.
Q: And it’s obvious that you just do different things,
correct?
A: That’s true.
14
(ECF No. 50-1 at 18 (indicating Davis’s response to job duty similarities and educational
background questions).) 6 Accordingly, the court finds that the skill set required to
perform these jobs are different.
With respect to responsibility, Davis argues that she and Dr. Evans maintain a
comparable degree of accountability. (ECF No. 55 at 6-7 (arguing that while Dr. Evans
prepares publications and presentations, Davis is responsible for maintaining a laboratory
that is mandatory under the law).) “Responsibility is concerned with the degree of
accountability required in the performance of the job, with emphasis on the importance of
the job obligation.” 29 C.F.R. § 1620.17(a). The record indicates that Davis’s and Dr.
Evans’s responsibilities are different. As Davis mentioned during her deposition, she and
Dr. Evans did not have similar duties:
Q: (DHEC’s Counsel). And Mr. Evans, Dr. Evans, he
reported directly to Dr. Meredith?
A: (Plaintiff). Yes, sir.
Q: And was over the Medical Entomology section?
A: Yes, sir.
Q: So his duties were different than yours; is that correct?
A: Yes, sir.
(ECF No. 50-1 at 11 (indicating Davis’s response to job duty similarities).)
7
Furthermore, Tyler indicated that while Davis had supervisory requirements, she had
6
The court observes that the Report makes a conclusion regarding Dr. Evans’s training
without the proper foundation. (See ECF No. 52 at 6 (stating that the training for these
positions is not the same); but see ECF No. 55 at 6 (arguing that DHEC makes no
reference to training differences in its memorandum).)
7
See Pearce v. Wichita County, City of Wichita Falls, Tex., Hosp. Bd., 590 F.2d 128,
133 (5th Cir. 1990) (“Although job titles are entitled to some weight in the assessment of
comparative responsibility, ‘(t)he controlling factor under the Equal Pay Act is job
content [—] the actual duties that the respective employees are called upon to perform.’”
(quoting Hodgson v. Brookhaven Gen. Hosp., 436 F.2d 719, 724 (5th Cir. 1979))); see
also Myers v. Crestone Intern., LLC, 121 F. App’x 25, 29 (5th Cir. 2005) (discussing
responsibility in terms of duties).
15
more general duties in her field.
(Id. (maintaining that the actual job skills and
responsibilities are completely different).) Accordingly, the court finds that Davis and
Dr. Evans have different responsibilities.
Finally, Davis maintains that there is “nothing in the record that would imply
[Dr.] Evans works any harder or is subjected to more mental exertion than [her].” (ECF
No. 55 at 6.) “Effort is concerned with the measurement of the physical or mental
exertion needed for the performance of a job.” 29 C.F.R. § 1620.16(a). “Job factors
which cause mental fatigue and stress, as well as those which alleviate fatigue are to be
considered in determining the effort required by the job.” Id. “[J]obs may require equal
effort in their performance even though the effort may be exerted in different ways . . . .”
Id. Davis argues that she and Dr. Evans are tasked with performing laboratory activities
and tests, and that the “stress and fatigue that accompanies producing productive results
in their respective fields are equal.” (ECF No. 50 at 10.) Although the Magistrate Judge
found that Dr. Evans’s job requires more effort as a result of his public outreach efforts
related to publications and presentations, the court disagrees and finds that there is
insufficient evidence to conclusively determine that Dr. Evans’s job necessarily requires
more effort (i.e., physical or mental exertion).
In conclusion, despite identical job titles and arguably similar levels of effort
exerted in their respective positions, the record indicates that the actual job skill and
responsibilities performed by Davis and Dr. Evans do not meet the exacting standard set
forth under the EPA of work that is “virtually identical” or “very much alike or closely
related to each other.” Wheatley, 390 F.3d at 333 (articulating the EPA standard); see
16
also Rollins v. Alabama Cmty. Coll. Sys. , 814 F. Supp. 2d 1250, 1267 (M.D. Ala. 2011)
(“The Equal Pay Act requires a plaintiff to meet a ‘fairly strict’ burden of proving she did
‘substantially similar’ work for less pay.” (citing Beavers v. Am. Cast Iron Pipe Co., 975
F.2d 792, 795 (11th Cir. 1992))). Accordingly, the court finds that Dr. Evans is not a
proper comparator to Davis and she cannot establish a prima facie case of an EPA
violation.
Moreover, the Magistrate Judge properly concluded that assuming Davis could
establish a prima facie case for salary discrimination under the EPA, DHEC had carried
its burden of demonstrating that the pay disparity was based on a factor other than sex.
Real difference in educational background is a recognized factor other than sex under the
EPA. See Merillat, 470 F.3d at 697; see also Brinkley, 180 F.3d at 620 (“Experience and
salary history differentials may, in the proper case, constitute bases upon which to pay a
man more than a woman for the same work.”). DHEC indicated that Dr. Evans’s salary
was based on his Ph.D. and prior salary history. (ECF No. 52 at 9 (citing ECF No. 32-10
at 2-5).) Because Davis failed to rebut DHEC’s reason, DHEC’s Motion for Summary
Judgment on the EPA claim is GRANTED.
b. Title VII Claim
Davis maintains that the Magistrate Judge erred in failing to accept Dr. Evans as a
comparator for her Title VII claim. (ECF No. 55 at 7.) Davis argues that she has
demonstrated sufficient direct and circumstantial evidence for a reasonable jury to
conclude that race was a motivating factor in explaining the pay disparity. (ECF No. 50
at 19.) Specifically, Davis maintains that she has shown:
(1) that she is/has consistently been paid from $5,000$15,000 less per year than her nearest comparator who is
17
nearly identical to her in all employment-related aspects,
save race; (2) that [DHEC] has specifically acknowledged
inequity between [Davis] and her counterparts; (3) that
[DHEC] relies on mere bald conclusory statements that
while an inequity exists it was purportedly not racially
motivated; and (4) that she continues to be subjected to
evasion of the matter by [DHEC], including the involuntary
transfer of her laboratory.
(ECF No. 50 at 19-20 (stating Davis’s arguments).)
“Regarding direct proof of
discriminatory intent, ‘[w]hat is required is evidence of conduct or statements that both
reflect directly the alleged discriminatory attitude and that bear directly on the contested
employment decision.’” Collins v. Landmark Military Newspapers, Inc., No. 2:06cv342,
2007 WL 2301549, at * 17 (E.D. Va. Aug. 6, 2007) (quoting Brinkley, 180 F.3d at 607).
At Davis’s deposition, Davis stated that the salary differential between she and Dr. Evans
may not be related to race:
Q: (DHEC’s Counsel). So if Mr. Evans’ hiring at a salary
rate of above $65,000 was approved by Mr. Chappell, [an
African-American] do you conclude that whatever the
cause was for that decision, it was not race?
A: (Davis). It may not have been race, but I believe it was
based on a lack of facts or information needed to make a
decision.
(ECF No. 50-1 at 17.) Although Davis’s response does not exclude race from being a
motivating factor, Davis has not presented evidence that demonstrates a discriminatory
intent. The Magistrate Judge properly determined that direct evidence of discriminatory
intent was lacking. (ECF No. 52 at 10.) Accordingly, Davis may not avert summary
judgment under the direct method of proof.
Similarly, under the burden shifting framework, the Magistrate Judge correctly
concluded that despite a relaxed standard of similarity, Davis had not established a prima
18
facie case of wage discrimination under Title VII.8 (See ECF No. 52 at 12.) Assuming
Davis could establish a prima facie case, DHEC has proffered evidence of legitimate
non-discriminatory reasons that satisfy the light burden of production under Title VII:
higher educational credentials, more complex tasks, and different salary history. (ECF
No. 32-1 at 12.) Davis has not produced evidence that rebuts these proffered reasons, and
that show that the real reason was discrimination. In fact, Davis indicated that she
believes it may not have been about race, but rather a lack of information. Accordingly,
the court grants summary judgment on the Title VII wage disparity claim.
V.
CONCLUSION
The court ACCEPTS the Report (ECF No. 52) but REJECTS its finding
regarding the effort prong of the EPA analysis, and GRANTS DHEC’s Motion for
Summary Judgment based on the reasons discussed herein. (ECF No. 32).
IT IS SO ORDERED.
United States District Judge
September 24, 2015
Columbia, South Carolina
8
See Lewis v. Smith, 255 F. Supp. 2d 1054, 1061 (D. Ariz. 2003) (stating that a finding
that a plaintiff’s job, while not substantially equal as a matter of law under the EPA, may
still be considered substantially similar under Title VII).
19
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