Joyner v. Town of Elberta

CALLIE V.S. GRANADE

Motion granted.

Charles Michael Quinn, H. Wallace Blizzard, Wiggins, Childs, Quinn, and Pantazis, LLC, Birmingham, AL, Utopia Conger Cassady, Cassady & Cassady, P.C., Fairhope, AL, for Plaintiff. Melissa Gail Hunter, Thomas O. Gaillard, III, Galloway, Wettermark, Everest, Rutens & Gaillard, LLP, Mobile, AL, for Defendant.

This is an Equal Pay Act (“EPA”) lawsuit brought by the former interim police chief of the Town of Elberta, Alabama, against the town. Now before the court are the defendant Town of Elberta's motion for summary judgment (Doc. 36), the plaintiff Julie M. Joyner's (“Joyner”) response (Doc. 40) and the Town of Elberta's reply (Doc. 42). For the reasons stated below, the Town's motion for summary judgment due to be granted.

The Town of Elberta argues that Joyner cannot establish a prima facie case under the EPA because Joyner's position as Interim Chief is not sufficiently comparable to the position of permanent Police Chief. The court disagrees. As Interim Chief for eleven months, Joyner handled disciplinary issues, computer system security, background checks, NCIC, dispatch, budgets, and jail contracts in addition to her duties as sergeant. (Doc. 40–2 at 69–70). The responsibilities assumed by Joyner were the same duties the permanent Police Chief performs. (Doc. 40–3 at 46). Moreover, Mayor Williams testified that Joyner was qualified for the position of permanent Police Chief and that she performed her duties well. Id. The fact that Joyner remained an hourly employee who was eligible for overtime while the permanent Police Chief is a salaried position is irrelevant to the comparative analysis of actual job requirements and performance. The evidence demonstrates that the position of Interim Police Chief and permanent Police Chief are substantially equal in terms of skill, effort and responsibility.

It is undisputed that Joyner made approximately $45,000 per year as Interim Chief and DeVane was hired as permanent Police Chief at a salary of $54,000. The record also reflects that the job functions of Interim Chief and permanent Police Chief are substantially the same. Thus, the court finds that Joyner has established a prima facie case under the EPA.

Where a plaintiff makes a prima facie showing under the EPA, the defendant “may avoid liability by proving by a preponderance of the evidence that the pay differences are based on ... any other factor other than sex.” Steger v. General Elec. Co., 318 F.3d 1066, 1077–78 (11th Cir.2003). This is an affirmative defense, and the defendant's burden of proof is “heavy,” in the sense that the employer “must demonstrate that the factor of sex provided no basis for the wage differential.” Id. (citations and internal quotation marks omitted). The Eleventh Circuit has found factors other than sex to “include ‘unique characteristics of the same job; ... an individual's experience, training or ability; or ... special exigent circumstances connected with the business.” Irby v. Bittick, 44 F.3d 949, 955 (11th Cir.1995). “[S]o long as subjective business justifications ... are not overly subjective so as to render them incapable of being rebutted, they are legitimate factors to be considered.” Schwartz v. Florida Bd. of Regents, 954 F.2d 620, 623 (11th Cir.1991).

If the defendant meets that burden, the plaintiff must rebut the explanation by showing that the stated reason for a differential in pay is pretextual or offered as a post-event justification for a gender-based differential. Id. (citation omitted). The plaintiff is not required to prove discriminatory intent on the part of the defendant. Id. (citation omitted). “If the plaintiff is able to create the inference of pretext, there is an issue which should be reserved for trial.” Id. (citation omitted).

The Town of Elberta argues that DeVane's prior pay and experience, the temporary nature of Joyner's position as Interim Police Chief, and a change in the Town's revenue are factors other than sex that account for the difference in pay. “[P]rior pay plus experience establishes an affirmative defense under the EPA.” White v. ThyssenKrupp Steel USA, LLC, 743 F.Supp.2d 1340, 1354 (S.D.Ala.2010); Irby, 44 F.3d at 955 (“While an employer may not overcome the burden of proof on the affirmative defense of relying on ‘any other factor other than sex’ by resting on prior pay alone, as the district court correctly found, there is no prohibition on utilizing prior pay as part of a mixed-motive, such as prior pay and more experience.”).

When he was considered as a candidate for the position, DeVane had a total of 34 years experience in law enforcement. Joyner had a total of 18 years law enforcement experience. DeVane was a twenty-five year veteran of the Dothan Police Department where he served as squad commander for nine years. As squad commander, DeVane supervised a twenty-officer patrol squad. Joyner had eight years experience as a sergeant, supervising three to five officers. DeVane held a bachelor's degree in criminal justice, was graduate of the FBI National Academy, and had over 17,000 hours of law enforcement training. Joyner was a thirteen-year veteran of the Elberta Police Department. After Joyner was promoted to the rank of Sergeant, she spent eight years supervising three to five officers and served as Interim Police Chief March 2011 to February 2012. Joyner had an associate's degree in criminal justice, and beyond her graduation from the police academy, the record shows no additional training.

Mayor Williams and two former council members testified that they considered DeVane's prior pay with the Pardon and Parole Board and experience when making the decision to appoint him as Police Chief and pay him a greater salary than the compensation provided to Joyner. (Doc. 37–1 at 58–59; Doc. 37–19, 37–20).

The court finds that this evidence clearly supports, by more than a preponderance, that the pay differential between Joyner and DeVane was justified by the prior pay and superior experience of DeVane. This is “factor other than sex.” Steger v. General Elec. Co., 318 F.3d 1066, 1077–78 (11th Cir.2003).

Joyner contends that the Town of Elberta's proffer of prior pay and experience is pretextual because Joyner had more relevant experience working for the Elberta Police Department, including eleven months as Interim Chief, while DeVane had no experience working with the Elberta Police Department or as a Police Chief. The court finds that it would be unreasonable to find the Town's reliance on DeVane's superior education and work experience in the relevant field of law enforcement to be pretextual simply because Joyner had acted as interim Chief for 9 months on a police force with fewer than 10 officers. There is no evidence that Elberta's police department is unique in any way that would make Joyner's short service as interim Chief weigh more heavily in terms of qualification than DeVane's prior service and education. Thus the court finds that plaintiff has not created an inference of pretext or post-event justification in regard to this factor and that summary judgment is due to be granted for the defendant.

Even though summary judgment is due to be granted on this factor alone, because additional factors “other than sex” are proffered by the defendant, the court will address those as well.

The temporary nature of a position is another “factor ‘other than sex’ to justify an otherwise illegal pay disparity, provided that the position was temporary in fact and that the employee in that position knew it was temporary.” Nelson v. Chattahoochee Valley Hosp. Soc., 731 F.Supp.2d 1217, 1236 (M.D.Ala.2010) In this case, the defendant herself acknowledged that she knew the position was temporary. In her deposition she explained why she wrote the August 15, 2011, letter to the town council and mayor in which she gave conditions to her accepting the permanent position: a salary of $53,000 a year and a contract guaranteeing she could regain her former job as sergeant if the council newly-elected in the future did not retain her as chief. She testified: “I felt like that the period of interim, that I was not being paid any more money was—It was time to move forward. Either with them sending applications or doing something to make it permanent.” (Doc. 37–2 at 30). The evidence clearly supports the finding that the Interim Chief position was temporary, and that Plaintiff was aware that it was temporary.

A decline in revenue is also a sufficient affirmative defense under the EPA. Brokaw v. Weiser Sec., 780 F.Supp.2d 1233, 1233 (S.D.Ala.2011) (holding that a “$4,000 difference in pay between male branch manager with contract security services company and the female manager hired to replace him after he resigned was based on a factor ‘other than sex,’ and thus female's lesser salary did not violate the Equal Pay Act, where male manager had been paid a salary of $44,000 per year and company hired female replacement at salary of $40,000, but the salary for the position had been reduced due to annual revenue losses at branch of $1,069,727 during male manager's employment period”). It is undisputed that the Town of Elberta paid $9,000 more per year to DeVane to be the permanent Police Chief than it paid Joyner when she served as Interim Chief. The Town of Elberta explains that this pay difference resulted from the decline in revenue during Joyner's employment. The Town's evidence shows that revenue declined 8.67% between 2009 and 2011 at which time Joyner served as Interim Police Chief. (Doc. 37–9). At the end of 2011, it was discovered that the Town's revenue increased 26.79% over the previous year. Id. The Town of Elberta asserts that as a result of increased sales tax revenue, ad valorem taxes and franchise fees, the Town could afford to hire DeVane at a salary of $54,000. (Doc. 37–1 at 23–24); see Id. (“It cannot be gainsaid that an employer may lawfully pay a new manager less money when the branch's revenues are far lower than they were when the old manager's pay was set.”).

To show pretext, Joyner argues that despite the decline in revenue, the Town had enough money to pay her a salary of $53,000 during her service as Interim Chief. To support her argument, Joyner points to the testimony of Steve Kirkpatrick, a member of the Town Counsel at the time, that when Joyner was offered the job of permanent Police Chief the Town of was financially able to pay her a salary of $53,000. See Doc. 40–4. When viewing the facts in the light most favorable to Joyner, the court finds that this is sufficient evidence to rebut the Town's affirmative defense of the decline in revenue as pretextual or a post-event justification for a gender-based differential.

Although the court has found that there is a genuine issue of fact as to the third factor raised by the Town of Elberta, the first two factors are each independent “factors other than sex.” Thus, the court concludes that the Town of Elberta's motion for summary judgment is due to be granted.

The Town of Elberta's motion for summary judgment (Doc. 36) is GRANTED. -------- Notes: