United States District Court, M.D. Alabama, Southern Division
OPINION AND ORDER
MYRON H. THOMPSON, District Judge.
Plaintiff Lucille Youngblood brought this action against defendants George C. Wallace Community College ("WCC") in Dothan, Alabama and college president Linda C. Young. Youngblood asserts violations of the Equal Pay Act of 1963, as amended (29 U.S.C. § 206(d)), Title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. §§ 1981a & 2000e to 2000e-17), the Equal Protection Clause of the Fourteenth Amendment (as enforced by 42 U.S.C. § 1983), and 42 U.S.C. § 1981 (as enforced by 42 U.S.C. § 1983). Subject-matter jurisdiction is proper under 28 U.S.C. §§ 1331 (federal question) and 1343 (civil rights), as well as 42 U.S.C. § 2000e-5(f)(3) (Title VII) and 29 U.S.C. § 216(b) (Equal Pay Act). The cause is before the court on the defendants' motion for summary judgment. For the reasons that follow, the motion will be denied.
I. SUMMARY-JUDGMENT STANDARD
"A party may move for summary judgment, identifying each claim or defense-or the part of each claim or defense-on which summary judgment is sought. The court shall grant summary judgment 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 must view the admissible evidence in the light most favorable to the non-moving party and draw all reasonable inferences in favor of that party. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986).
Youngblood alleges that WCC paid her less than she deserved, and less than other comparable employees earned, all because she is a black woman.
Youngblood worked for colleges in Alabama's two-year college system for approximately 25 years, from when she was a student at WCC in 1986 through her retirement in 2011. For the first ten years, until 1996, she was employed at the Alabama Aviation and Technical College. In late 1997, the aviation college and WCC merged. Youngblood was reassigned to the WCC print shop in early 1998. The two colleges subsequently separated in 2003, but Youngblood remained at WCC until her retirement in 2011. Young became president of the community college in 1999, not long after Youngblood transferred there.
Alabama's two-year college system used, and continues to use, a system of salary schedules for its employees. Much of this case concerns Schedule E, which contains various levels, ' such' as E4, 05' or E5, 07'. An employee's level is supposed to be determined by reference to the employee's job description and responsibilities. In addition, each employee is assigned a step, ' from 0 to 27, depending on experience. The employee's salary is a product of her salary schedule and step.
After her arrival at WCC, Youngblood's salary schedule was evaluated by Dr. Keith Ward, an outside job-classification consultant. He concluded that schedule E5, 07 was appropriate for Youngblood's job. Ward reviewed her job at least four times altogether, and always reached the same conclusion.
In 2000, Youngblood's supervisor in the print shop, John Herring, retired. The administration approached Youngblood about taking over the supervisor position, but at that time she declined. Later, when the college posted a formal job announcement, she had a change of heart and applied. The supervisor position was not filled. Instead, Dean Mark Shope, who had supervised Herring, took over direct supervision of the print shop.
Shortly thereafter, a white male employee named Wade Glover was reassigned to the print shop at the request of Dean Shope and Dean Lynn Bell and with President Young's approval. Glover had previously been employed as a supervisor of grounds and maintenance, on the higher E4, 05 salary schedule. Shope and Bell noted that, upon Glover's transfer to the print shop, "There will be no salary adjustment." Memorandum (Doc. No. 78-2) at 36. The documentary evidence does not reflect the reason for this transfer, but the defendants have offered testimony that it was on account of Glover's health. According to testimony from WCC personnel, the maintenance of Glover's salary was pursuant to the community colleges's policy of not reducing salaries as a result of transfers.
Glover and Youngblood both worked in the print shop from October 2000, until Youngblood's retirement on November 1, 2011. Glover retired shortly after that. Before Glover's arrival, various documents had referred to Youngblood by different job titles, including "Duplicating Clerk, " "Duplications Clerk, " and "Duplications Technician." See, e.g., Contract (Doc. No. 81-8) at 14; Memorandum (Doc. No. 70-1) at 112. In 2001, Shope indicated that the proper title for both Youngblood and Glover was "Printing/Duplication Technician." Memorandum (Doc. No. 77-5) at 2. They both maintained that title until their respective retirements. Neither was in the position of supervising the other.
Glover maintained his higher E4, 05 salary schedule associated with his previous position as a supervisor of grounds and maintenance throughout this time, while Youngblood remained at the E5, 07 schedule assigned to the Printing/Duplication Technician position. President Young signed the employment contracts for both Youngblood and Glover, containing their different salary schedules.
Shortly after Youngblood's notice that she would be retiring in late 2011, WCC prepared a job announcement for the position of "Duplications Technician." 2011 Announcement (Doc. No. 79-9) at 2. When no allegedly qualified individuals applied, the college prepared a new announcement, again for a "Duplications Technician" but this time with less demanding educational qualifications. 2012 Announcement (Doc. No. 79-10) at 2. Both announcements set the position's salary at E4, 05. Eventually, Kimberly Johnson, a white woman, was hired for the new position. Since Glover retired, Johnson has been working alone in the print shop.
Youngblood learned of Glover's higher pay in October 2011, after she had announced her retirement. Around the same time she also became aware of the higher salary schedule for the position announced when she was preparing to retire. Thereafter, Youngblood filed a charge with the Equal Employment Opportunity Commission ("EEOC") and the instant lawsuit.
Youngblood asserts the following claims: sex discrimination in pay by WCC in violation the Equal Pay Act; race and sex discrimination in pay by the community college in violation of Title VII; race and sex discrimination in pay by Young in her individual capacity in violation of the Equal Protection Clause; and race discrimination in pay by Young in her individual capacity in violation of § 1981. The defendants move for summary judgment on a variety of grounds. The court will group and address those arguments by the claims to which they apply.
A. Equal Pay Act
The Equal Pay Act, a portion of the Fair Labor Standards Act, prohibits sex discrimination in the form of unequal pay "for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions." 29 U.S.C. § 206(d)(1). To establish a prima-facie case, "a plaintiff must show that an employer pays different wages to employees of opposite sexes'" for such equal work. Schwartz v. Florida Bd. of Regents , 807 F.2d 901, 907 (11th Cir. 1987) (quoting Corning Glass Works v. Brennan , 417 U.S. 188, 195 (1974)). "Once plaintiff has established a prima facie case, the burden shifts to the employer to prove that the difference in pay is justified by one of the four exceptions to the Equal Pay Act: (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any factor other than sex." Schwartz , 807 F.2d at 907 (internal quotation marks omitted); see also 29 U.S.C. § 206(d)(1). To carry their burden, "[d]efendants must show that the factor of sex provided no basis for the wage differential, " Schwartz , 807 F.2d at 907, and this "burden is a heavy one." Mulhall v. Advance Sec., Inc. , 19 F.3d 586, 590 (11th Cir. 1994). Because the four statutory exceptions "constitute affirmative defenses, " if a defendant proves one of them he "is absolved of liability as a matter of law." Id.
The community college has not argued that Youngblood failed to make a prima-facie case, and the court finds that she has made such a showing. It is undisputed that Glover, a male employee of the community college, earned more than Youngblood, a female employee, during the entire eleven-year period that they both worked in the print shop. Their jobs were somewhat different: Glover was primarily responsible for offset printing, which involves manual printing on a printing press, while Youngblood's responsibilities focused on printing and binding of electronic materials. According to her testimony, she also had a range of additional responsibilities including computer programing, negotiations with vendors, accounting and budgeting, troubleshooting, and even offset printing. "The jobs held by the employees of opposite sexes need not be identical; rather, they need only be substantially equal." Miranda v. B & B Cash Grocery Store, Inc. , 975 F.2d 1518, 1533 (11th Cir. 1992). In this case, with the evidence considered in the light most favorable to Youngblood, it is clear that her job was substantially equal to Glover's, and to the extent they differed Youngblood had more responsibilities.
The community college's principal argument regarding this claim goes instead to the affirmative defense. It argues that Glover was kept at his original, higher salary after transferring to the print shop based not on his sex but on the community college's policy of not lowering employees' salaries upon transfer. It goes on to argue that the decision to transfer him was, in turn, also based not on sex, but on concerns that his health was being harmed by his outside grounds and maintenance work. According to the community college, this justification (namely that it maintained Glover's salary pursuant to its policy after transferring him for health reasons) was "a differential based on any other factor other than sex, " 29 U.S.C. § 206(d)(1)(iv), and specifically was a legitimate example of the practice of red circling.'
"The term red circle' describes certain unusual, higher than normal, wage rates which are maintained for many reasons.'" Mulhall , 19 F.3d at 595 (quoting Gosa v. Bryce Hospital , 780 F.2d 917, 918 (11th Cir. 1986)). The legislative history of the Equal Pay Act indicates that "Congress intended to include this practice as a factor other than sex that explains a wage differential and constitutes an affirmative defense." Mulhall , 19 F.3d at 595. "Numerous courts, including [the Eleventh Circuit Court of Appeals], acknowledge red-circling where current employees are transferred to lower paying positions but retain their higher pay." Id.
Youngblood argues that the red-circle principle does not apply to this case because Glover was transferred on a permanent, rather than temporary, basis. In support, she points to testimony from her expert witness, Dr. James Buford, that the community college misapplied the red-circle principle by allowing the wage difference to continue perpetually. See Buford Dep. (Doc. No. 75-3) at 19; Buford Notes (Doc. No. 82-12) at 2 ("the red circle principle allows for a time frame for employers to remove the pay disparity... [and] it is not a justification for perpetuating a disparity that has existed over 13 years"). She also cites testimony by the defendants' expert witness, Dr. Toni Locklear, in which she agreed that "ideally the red circle application is intended to be resolved at some point in time." Locklear Dep. (Doc. No. 76-1) at 24.
However, the proper question here is not what the term red circle' means to experts on employment and human resources, nor what red-circle practices are reasonable in the industry. Rather, this is fundamentally a matter of statutory construction. Congress intended to include red circling under the fourth affirmative defense to the Equal Pay Act, as a factor other than sex, see Gosa , 780 F.2d at 918, and so the question is what Congress meant that term to encompass. That is not a question of fact to be resolved by reference to experts on current practice but a question of law to be decided by the court.
The text of the statute itself is silent on the question of whether red circling must be temporary; indeed, it does not mention red circling at all. The legislative history contains the following discussion of the red-circle principle:
"[The factor-other-than-sex exception] recognizes certain special circumstances, such as "red circle rates." This term is borrowed from War Labor Board parlance and describes certain unusual, higher than normal wage rates which are maintained for many valid reasons. For instance, it is not uncommon for an employer who must reduce help in a skilled job to transfer employees to other less demanding jobs but to continue to pay them a premium rate in order to have them available when they are again needed for their former jobs.'"
Glenn v. Gen. Motors Corp. , 841 F.2d 1567, 1571 (11th Cir. 1988) (quoting H.R.Rep. No. 309, 88th Cong., 1st Sess. 3, reprinted in 1963 U.S. Code Cong. & Admin. News 687, 689). The single example cited in this passage does involve temporary transfer of personnel, somewhat supporting Youngblood's interpretation.
However, the EEOC's interpretive regulation addressing red-circle rates suggests that Youngblood's argument, that those rates apply to only temporary transfers, is flawed. See 29 C.F.R. § 1620.26. "[A]dministrative interpretations by the EEOC, as the enforcing agency, are entitled to great deference." Pettway v. Am. Cast Iron Pipe Co. , 494 F.2d 211, 254 n.127 (5th Cir. 1974) (citing Griggs v. Duke Power Co. , 401 U.S. 424 (1971)); see also United States v. Mead Corp. , 533 U.S. 218, 229 (2001) (generally no deference of the type set forth in Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc. , 467 U.S. 837 (1984), without delegated authority to promulgate binding regulations); Morgado v. Birmingham-Jefferson Cnty. Civil Def. Corps , 706 F.2d 1184, 1189 n.1 (11th Cir. 1983) (no congressional authorization to promulgate binding regulations under the Equal Pay Act).
As the community college notes, § 1620.26 actually "describe[s] two different examples of red-circling." Arthur v. Coll. of St. Benedict , 174 F.Supp.2d 968, 976 n.7 (D. Minn. 2001) (Rosenbaum, J.). Subsection (b), on which Youngblood principally relies, describes the circumstances under which, "[f]or a variety of reasons an employer may require an employee, for a short period, to perform the work of a job classification other than the employee's regular classification." 29 C.F.R. § 1620.26(b) (emphasis added). Such temporary reassignments, such as the example discussed in the legislative history, may be necessary for a variety of reasons, and unequal wages may be maintained during the short period of time. However, the regulation specifies that "failure to pay the higher rate to a reassigned employee after it becomes known that the reassignment will not be of a temporary nature would raise a question whether sex rather than the temporary nature of the assignment is the real basis for the wage differential, " and "[g]enerally, ...