WASHINGTON – A federal appeals court has denied a claim by two female Wicomico County employees who said the county was unfairly paying them less than men who held similar positions.
The published opinion by a three-judge panel of the 4th U.S. Circuit Court of Appeals upheld a lower court ruling that said that while the women’s jobs as emergency services department supervisors may have been similar to the men’s in rank and title, they could not prove the jobs were equal in skill and responsibility.
If it was determined that the work was equal, the pay disparity would have violated the federal Equal Pay Act (EPA) of 1963.
“We decline to accept the argument . . . that employees with the same titles and only the most general similar responsibilities must be considered ‘equal’ under the EPA,” wrote Judge J. Harvie Wilkinson III in the Monday opinion.
Sandra Wheatley and Jane Grogan — the director and deputy director of the Wicomico County Emergency Services Department — claimed they were paid $25,000 a year less, on average, than male directors and deputy directors in other county agencies.
The two sued and Wheatley testified in U.S. District Court that, “aside from a difference in subject-matter, all department heads bore the same responsibilities,” including staff supervision, budget preparation and legislative accountability.
But the county argued that the women failed to prove that the EPA applied to their situation and District Judge J. Frederick Motz agreed, granting the county’s motion to dismiss.
The women appealed and the circuit court heard the case Sept. 29. But the appeals panel agreed with Motz that the EPA offered no basis for relief.
“Plaintiffs present a classic example of how one can have the same title and the same general duties as another employee, and still not meet two textual touchstones of the EPA — equal skills and equal responsibility,” Wilkinson wrote.
He noted that the director and deputy director of public works in Wicomico County are required to hold graduate degrees in civil engineering, while Wheatley’s and Grogan’s positions had no advanced-degree requirements.
“While it is certainly true that the plaintiffs provide valuable services to the county, it would be disingenuous to argue that their jobs require skills substantially equal to the jobs which require engineers to direct the Department of Public Works,” Wilkinson wrote.
The appeals court also refused to consider what it said was a second argument advanced by the women’s attorney during deliberations over the motion to dismiss in district court. It agreed with Motz that the argument — that Wheatley’s and Grogan’s work should be compared to work done by men in similar pay grades, not those with similar titles — was advanced too late in the trial.
“The adversary system cannot function properly if lawyers are allowed to dump arguments on a district court at the last minute, without developing them during the course of litigation,” Wilkinson wrote.
But the women’s attorney, Francis J. Collins, said Tuesday that the pay-grade argument was not entirely new but “was a subset of my original argument.” As such, it should have been considered, he said, adding that it “has never been intimated that a trial lawyer has to lay out every aspect of his argument” to a judge.
Collins noted that the county had set up the pay-grade system to ensure EPA compliance.
“Anybody in the legal community will tell you that the 4th Circuit is very narrow in its interpretation of discrimination laws,” Collins said.
Wicomico County officials could not be reached to comment Tuesday on the ruling.
University of Virginia law Professor George Rutherglen said the appeals court relied heavily on past cases in reaching its opinion. He said the “the interpretation of the EPA has been pretty well settled” and the court likely did not break any new ground in labor litigation on this issue, which has been extensively argued.
But Monday’s ruling just demonstrates “that there are serious loopholes in the EPA,” said Jennifer Sweeney, director of public policy at Business and Professional Women USA.
-30- CNS 11-23-04