TABLE OF CONTENTS
TABLE
OF AUTHORITIES..................................................................... ii
STATEMENT
OF INTEREST.................................................................. 1
STATEMENT
OF THE ISSUES.............................................................. 2
STATEMENT
OF THE CASE................................................................. 2
A. Statement of the Facts............................................................ 3
B. The District Court Decision................................................... 9
ARGUMENT............................................................................................ 11
The
district court properly instructed the jury that Allsteel could not rely on
economic conditions to justify plaintiffs’ pay and acted within its discretion
in denying Allsteel’s motion for a new trial on this basis....................
A.
Allsteel offered no trial evidence
that adverse economic conditions caused the plaintiffs’ original pay
disparities............................................... 13
B.
Allsteel cannot rely on a
later-developing economic downturn to justify its continuation of pre-existing
pay disparities that are based on sex. 17
C.
Even if the instruction was in
error, the error was harmless. ..... 21
CONCLUSION......................................................................................... 22
CERTIFICATE
OF COMPLIANCE......................................................... 23
CERTIFICATE
OF SERVICE
Table of
Authorities
Page(s)
Cases
Boaz v. Fed. Express Corp., 107 F. Supp. 3d 861 (W.D. Tenn. 2015) ........... 15
Blackburn v. Cypress Equities 1, 2014 WL 4771765 (N.D. Tex. Sept. 24, 2014) ................................................................................................................... 19
Brokaw v. Weiser Security, 780 F. Supp. 2d 1233 (S.D. Ala. 2011) ............... 18
Brown v. Sandals Resorts Int’l, 284 F.3d 949 (8th Cir. 2002) .............. 2, 12,
15
Campos v. City of Blue Springs, Mo., 289 F.3d 546 (8th Cir. 2002) ........ 15, 16
Corning Glass Works v. Brennan, 417 U.S. 188 (1974) ............................. 2,
17
County of Washington v. Gunther, 452 U.S. 161 (1981) ................................ 16
Der v. Connolly,
666 F.3d 1120 (8th Cir. 2012) ................................ 10,
13, 21
EEOC v. J.C. Penney Co., 843 F.2d 249 (6th Cir. 1988) ................................. 9
EEOC v. Maricopa Cnty. Cmty. Coll. Dist.,
.... 736 F.2d 510 (9th Cir. 1984) ................................................................ 2,
18
Flockhart v. Iowa Beef Processors, Inc., 192 F. Supp. 2d 947
.... (N.D. Iowa
2001) ...................................................................................... 20
Hallmark Cards, Inc. v. Murley, 703 F.3d 456 (8th Cir. 2013) ....................... 21
Joyner v. Town of Elberta, 22 F. Supp. 3d 1201 (S.D. Ala. 2014) ................. 19
Kienzle v. Gen. Motors, LLC, 903 F. Supp. 2d 532 (E.D. Mich. 2012) .......... 20
Lawrence v. CNF Transp., Inc., 340 F.3d 486 (8th Cir. 2003) ....................... 12
MacGregor
v. Mallinckrodt, Inc.,
373 F.3d 923 (8th Cir. 2004) ......... 11, 13, 15
Prive
v. N. States Power Co., 664 F.3d 1186 (8th Cir. 2011) ......................... 16
Ratts
v. Bus. Sys., Inc.,
686 F. Supp. 546 (D.S.C. 1987) ................................ 20
Ross
v. Garner Printing Co., 285 F.3d 1106 (8th Cir. 2002) .......................... 11
Simpson
v. Merchants & Planters Bank, 441 F.3d 572 (8th Cir. 2006) .......... 12
Taylor
v. White, 321 F.3d
710 (8th Cir. 2003) ......................................... 12,
17
Wood v. Tech. for Energy Corp., 2015 WL 2341084
.... (E.D. Tenn. May 14, 2015), appeal
pending, No. 15-5649 (6th Cir.) ....... 19
Statutes
Equal Pay Act of 1963,
29 U.S.C. §§ 206 et seq. ......................................... 1,
2
Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. .............. 2
29 U.S.C.
§ 206(d)(1) ...................................................................................... 1
29
U.S.C. § 206(d)(1)(iv) ......................................................................... 12,
13
29
U.S.C. § 255(a) ........................................................................................... 3
42 U.S.C.
§ 2000e-2(a)(1) .............................................................................. 16
Other Authorities
EEOC Compliance Manual,
Section 10: Compensation Discrimination, No. 915.003 (12/5/2000) .................................................................................. 15
Federal Rule of Appellate
Procedure 29(a)....................................................... 1
Federal Rule of Civil
Procedure 59(a) .............................................................. 9
STATEMENT
OF INTEREST
The Equal Employment Opportunity
Commission (“EEOC” or “Commission”) is the primary agency charged by Congress
with interpreting, administering, and enforcing federal laws prohibiting
workplace discrimination, including the Equal Pay Act of 1963 (“EPA”). The
EPA prohibits employers from paying employees of the opposite sex unequal wages
to perform “equal work on jobs the performance of which requires equal skill,
effort, and responsibility.” 29 U.S.C. § 206(d)(1).
The statute provides four grounds (statutory affirmative defenses) on which
employers are permitted to discriminate in wages on the basis of sex: “where
such payment is made pursuant to (i) a seniority system; (ii) a merit system;
(iii) a system which measures earning by quantity or quality of production;”
and a fourth, catch-all defense on which Allsteel, Inc., relied here: “(iv) a
differential based on any other factor other than sex.” Id. This
appeal raises the question of whether, given Allsteel’s trial evidence, the
district court properly instructed the jury that it was not allowed to consider
“economic conditions” in deciding whether Allsteel met its burden to establish
the fourth affirmative defense. Because resolution of this legal issue will
affect enforcement of the EPA by the Commission
and other plaintiffs, the Commission offers its views to the Court. See
Fed. R. App. P. 29(a).
STATEMENT
OF THE ISSUES
Where the trial evidence shows that plaintiffs’ pay disparities began before
the date on which Allsteel claims the economic downturn began to impact the
company, did the district court act within its discretion in denying Allsteel’s
motion for a new trial because (a) the court properly instructed the jury that
Allsteel could not rely on “market forces or economic conditions” as “a factor
other than sex to justify any pay differential complained of” by the plaintiffs
and (b) even assuming, arguendo, the instruction was in error, any such
error caused no prejudice to Allsteel?
Apposite cases: Corning Glass Works v. Brennan, 417 U.S. 188
(1974)
Brown v. Sandals Resorts
Int’l, 284 F.3d 949 (8th Cir. 2002)
EEOC v. Maricopa Cnty. Cmty.
Coll. Dist., 736 F.2d 510
(9th Cir. 1984)
STATEMENT
OF THE CASE
Plaintiffs Erin Dindinger, Lisa
Loring, and Elizabeth Freund sued Defendant Allsteel, Inc., in October 2011
alleging unequal pay under the Equal Pay Act, 29 U.S.C. §§ 206 et seq.,
and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.
Joint Appendix Volume I (“I-JA.”) at 1-6. The district court conducted a
five-day jury trial, after which the jury rendered a verdict in the plaintiffs’
favor on all of their equal pay claims. II-JA.433. Allsteel moved for a new trial, arguing among other
things that the district court erred in instructing the jury and in admitting
or refusing to admit certain evidence. II-JA.468-469. This is Allsteel’s
appeal from the district court’s denial of Allsteel’s motion.
A. Statement of
the Facts
Erin Dindinger, Lisa Loring, and
Elizabeth Freund are three former female managers for Allsteel, a manufacturer
of office furniture located in Iowa. VI‑JA.1290. During the relevant time
period, Dindinger and Loring were both Safety Managers (Dindinger from 2000
until her employment ended in May 2011, when she left for another position;
Loring from March 2008 until December 2013). Id. Freund was a Member
and Community Relations (“MCR”) Manager—Allsteel’s title for a human resources
official (see III-JA.675)—from April 2008 until December 2009. VI‑JA.1290.
The EPA limits backpay and liquidated damages to
three years (assuming a plaintiff establishes a willful violation). See
29 U.S.C. § 255(a).
Because these plaintiffs filed suit in October 2011, October 2008 was the
earliest date for which they could recover backpay and damages under the EPA.
The evidence presented at trial, however, shows that plaintiffs’ gender-based
pay disparities all began prior to October 2008.
Dindinger began working for Allsteel in 1995 as an
hourly employee in the manufacturing division. III-JA.812-813. She received
her first promotion within a year, and by 1999 Allsteel had promoted her to the
position of production group leader supervising hourly employees—one of the
only women holding this position. III-JA.813-815. In July 2000, Allsteel
promoted her to the position of Safety and Environmental Manager at an annual
salary of $52,000. III-JA.551, 815-819. At the time, she was the only person
holding that position. III-JA.818-819. In November 2001, Allsteel created a
second Safety and Environmental Manager position and promoted a man, Don
McCullough, to the position at an annual salary of $63,700. III-JA.552-553, 819-820.
In 2004, the company acquired a new division and transferred Steve Paulsen to
serve as the safety manager to cover that division. III-JA.571. Paulsen
became a manager four years after Dindinger, and Allsteel assigned him fewer
job responsibilities as safety manager than it assigned Dindinger. III-JA.571,
577 (Paulsen was a safety manager; Dindinger was a safety and environmental
manager); V-JA.1095-1096 (Steve “had no environmental duties at all”), 1112
(same). Nevertheless, as it had with McCullough, Allsteel paid Paulsen more
than Dindinger. III-JA.572.
Loring began working for Allsteel in 1996 as an
hourly employee. III‑JA.575. By the end of 2007, after a succession of
promotions, Loring was working as a supervisor earning a salary of $76,230 a
year. V-JA.1084-1089, 1091-1092. At Allsteel’s urging, she applied for a
management opening, and in March 2008, Allsteel promoted her to the position of
Safety and Environmental Manager working alongside Dindinger and McCullough.
III-JA.577; V-JA.1090, 1093. Allsteel paid her a starting salary in this
position of $64,480—substantially less than she had been earning as a
supervisor, and less than what Allsteel was paying male managers McCullough and
Paulsen to perform the same job. III-JA.576, V‑JA.1092. Loring questioned
Allsteel about the low salary and was told this was the proper starting point
for her as a manager. V-JA.1092-1093. When McCullough retired, she took over
his position and began working more hours. V‑JA.1098-1099, 1102-1103. Her
salary remained substantially less than the men who were or had been performing
the same work.
Freund began working for Allsteel in 2007 as a human
resources professional. III-JA.597. In April 2008, Allsteel promoted her to
the position of MCR manager at a salary of $60,194—$11,000 less than the man
who held the position before her. III-JA.598, 627-629, 717-718, 760-761.
There were two other MRC managers performing the same job at the time: a woman
earning a salary comparable to Freund’s and a man (Mike Allbee) earning
approximately $25,000 to $30,000 more than the two women. III-JA.628, 718-719,
761-762. In March 2009, Allbee left Allsteel and the company transferred
Freund to his position. III‑JA.732-733. Although Freund assumed Allbee’s job
duties, Allsteel continued to pay her approximately $30,000 less than the
company had paid Allbee to perform the same work. III‑JA.733-737.
The jury also heard evidence of other women who held
managerial positions at Allsteel and were paid less than male managers
performing the same job. E.g. III-JA.582, 616-623. In 2007, one group
leader, Michelle Mattingly, accidentally received an e-mail from Allsteel
management listing the pay of Allsteel’s group leaders and managerial staff.
IV-JA.871-872, 874. She reviewed it and determined that all of the women were
being paid less than the men working in equivalent jobs. IV‑JA.872-873.
Mattingly complained to Allsteel’s Human Resources (HR) department that there
appeared to be across-the-board wage discrimination at Allsteel.
III-JA.631-633; IV-JA.873-876. Eventually, she filed a lawsuit against Allsteel
for wage discrimination, IV‑JA.877, which Allsteel settled.
Allsteel’s representatives testified that the three
plaintiffs were paid less than their male comparators because: 1) their jobs
were different; 2) their prior experience and education were different; and 3)
Loring and Dindinger had less seniority than their male comparator(s). E.g.
III-561-564, 572-574, 577-580, 603, 606-608, 628-629, 683-689, 695-697, 703-704;
see generally III-JA.657-659. Plaintiffs introduced contrary evidence
that Allsteel did not apply these factors uniformly to all its employees. E.g.,
III-JA.582-596, 700-702, 704-707; IV‑JA.873-874, 894-896, 898-899;
V-JA.1255-1258.
The jury also heard evidence that beginning in
October 2008, Allsteel started to feel the effects of the nationwide economic
downturn. E.g. III-JA.625; V‑JA.1156. Allsteel’s witnesses told the
jury that the company began laying off portions of its workforce, beginning
with temporary employees, followed by provisional employees hired within the
last 90 days. III-JA.625-626; V-JA.1157. Allsteel also imposed a twelve-month
pay freeze, from March 2009 through March 2010. IV-JA.1002; see
VI-JA.1293. Freund attested that the freeze affected merit increases only and
not pay increases associated with promotions or transfers. III-JA.762-763,
765-766 (Freund knew of “raises or increases for promotions during” 2008 and
2009). Allsteel also announced a restructuring in May 2009. III-JA.702. None
of Allsteel’s witnesses, however, testified that the economic downturn or any
of the steps the company took in response to that downturn (i.e., downsizing,
reductions in force, and restructuring) was the basis for the pay differences
between the plaintiffs and their male comparators.
At the close of trial, the court instructed the jury
that if it found that the plaintiffs had proven the elements of an EPA claim by
a preponderance of the evidence, it must consider whether Allsteel had proven
that any difference in pay was not because the plaintiffs were female, “but was
instead due to a factor other than sex.” VI-JA.1293. The court explained that
“[f]actors other than sex could include job performance, education, experience,
or tenure with the company.” Id. Further explaining Allsteel’s burden
in this case, the court stated:
Allsteel cannot
rely on market forces or economic conditions as a factor other than sex
to justify any pay differential complained of by [a plaintiff]. These market
forces and economic conditions include downsizing, reductions in force,
restructuring, and economic downturns. If the pay differential complained
of by [Plaintiff] was based in any part upon her sex, market forces and
economic conditions cannot justify perpetuation of that differential. It is
not a defense under the Equal Pay Act that a woman may be paid less than a man
in the same position simply because the woman is willing to accept less pay or
because the man demands more pay.
Id.
Before the court gave this instruction to the jury, it discussed its proposed
instructions with the parties. V-JA.1272. Allsteel objected to the above-noted
instruction. V-JA.1273. Of relevance here, Allsteel argued that the court was
incorrectly equating “market forces,” which the Supreme Court has held is not
a defense to a claim of unequal pay, with “economic conditions,” which Allsteel
argued is not encompassed in market forces and is a proper justification for
unequal pay under the EPA’s catch-all fourth affirmative defense.
V-JA.1275-1276.
The jury returned a verdict for all three plaintiffs
on their equal pay claims under the EPA and Title VII and awarded the
plaintiffs $204,000. II-JA.413-426. Allsteel moved for a new trial pursuant
to Federal Rule of Civil Procedure 59(a). II-JA.468-470. Allsteel argued,
among other things, that the district court committed legal error when it
equated “economic conditions” with “market forces” in its jury instructions and
precluded Allsteel from relying on economic conditions as a factor other than
sex to explain the pay disparity between plaintiffs and their male comparators.
See II-JA.468. Plaintiffs opposed Allsteel’s motion on the ground that
the instruction was correct and Allsteel, in any event, could not show
prejudice. District Court Record Number (“R.”) 198 at 2, 9-12.
B. The District
Court Decision.
The court denied Allsteel’s motion
for a new trial. VI-JA.1288-1315. Noting
Allsteel’s concession that the EPA did not permit a market forces defense, the
court identified the question in Allsteel’s new-trial motion as “whether
‘economic conditions’ are a valid ‘factor other than sex.’” VI-JA.1294. The
court reasoned that although the statutory language of the fourth affirmative
defense, by itself, does not suggest any limitation on what can be a “factor
other than sex,” courts have, in fact, applied limits. VI-JA.1295 (citing EEOC
v. J.C. Penney Co., 843 F.2d 249, 253 (6th Cir. 1988) (“the catchall is not
ordinarily understood to ‘include literally any other factor’”)). The
court concluded that the jury instructions, as a whole, fairly and adequately
represented the evidence and the applicable law in light of the issues
presented to the jury in this case. VI-JA.1291-1298 (citing, at VI-JA.1291, Der
v. Connolly, 666 F.3d 1120, 1126 (8th Cir. 2012) (other citations
omitted)).
The court further held that, in any
event, “the instructions, even if incorrect, did not affect the jury’s
verdict.” VI-JA.1298. The court noted that the plaintiffs had alleged, and
the jury ultimately found, that the pay differentials in this case “began before
the economic downturn.” VI-JA.1296. Allsteel had suggested to the jury during
trial “that education, experience, performance, and seniority were factors
other than sex justifying the pay differentials.” VI-JA.1299 n.13. In
awarding plaintiffs damages, the jury necessarily rejected these contentions
and “found that Plaintiffs’ sex was a part of the basis for the wage
differential.” VI-JA.1299. Furthermore, by awarding plaintiffs damages dating
back to October 2008, the jury necessarily found that this sex-based
differential began “before the market downturn descended on Allsteel,
meaning the market downturn was no justification for the pay differentials.” VI-JA.1299
& n.13 (citations omitted). Since a jury could find in Allsteel’s favor
only if it determined that “the factor of sex provide[d] no part of the basis
for the wage differential,” VI-JA.1298 (citations omitted), and since the jury
necessarily rejected all of Allsteel’s alternative contentions, the subsequent
market downturn could not legally justify the pay differential that Allsteel
had imposed on the plaintiffs before Allsteel began to feel the effects of the
downturn in the economy. VI-JA.1299. On this basis, the court determined that
“Allsteel thus suffered no prejudice from the Court’s instruction” and “even if
the jury instruction was incorrect, a new trial is unwarranted.” VI‑JA.1299-1300.
Allsteel has now appealed this
ruling, arguing that it was prejudiced by the court’s instruction “because it
essentially nullified Allsteel’s affirmative defense that a ‘factor other than
sex’ was used to determine Plaintiffs’ pay.” Appellant Allsteel’s Brief
(“Allsteel Brf”) at 12.
ARGUMENT
The district court properly instructed
the jury that Allsteel could not rely on economic conditions to justify
plaintiffs’ pay and acted within its discretion in denying Allsteel’s motion
for a new trial on this basis.
The district court correctly instructed the jury
that Allsteel could not rely on economic conditions—including “downsizing,
reductions in force, restructuring, and economic downturns”—to justify any pay
differential complained of by the plaintiffs in this case. Jury instructions
are required to reflect the record created during the trial and the evidence
and legal issues presented to the jury for decision. MacGregor v.
Mallinckrodt, Inc., 373 F.3d 923, 929-30 (8th Cir. 2004); Ross v. Garner
Printing Co., 285 F.3d 1106, 1112 (8th Cir. 2002) (“A party is entitled to
an instruction reflecting that party’s theory of the case if the instruction is
legally correct and there is evidence to support it.”) (citation omitted). An
employer can defeat an equal pay claim under the EPA if the employer establishes
one of the EPA’s affirmative defenses, including that the pay differential was
based on “any other factor other than sex.” 29 U.S.C. § 206(d)(1)(iv); Taylor
v. White, 321 F.3d 710, 715 (8th Cir. 2003) (applying EPA’s affirmative
defenses to plaintiff’s equal pay claim under Title VII). When a defendant in
an EPA case offers evidence supporting a particular factor other than sex and
the plaintiffs offer evidence to the contrary, it falls on the jury to decide
which witnesses to believe and to determine whether the defendant has met its
heavy burden of proof. Simpson v. Merchants & Planters Bank, 441
F.3d 572, 579 (8th Cir. 2006) (upholding jury verdict in plaintiff’s favor
because the jury could have believed plaintiff’s evidence and disbelieved the
defendant’s); Lawrence v. CNF Transp., Inc., 340 F.3d 486, 493-95
(8th Cir. 2003) (same). If, on the other hand, the defendant fails to present
any evidence at trial to support a particular affirmative defense, no
instruction on the defense is warranted. Brown v. Sandals Resorts Int’l,
284 F.3d 949, 953 (8th Cir. 2002) (trial court “not required to instruct on
issues that do not find support in the record”).
In this case, the plaintiffs’ pay disparities all
began before the date on which Allsteel says it began to feel the
effects of the economic downturn. Therefore, the downturn in the economy could
not possibly explain why Allsteel set the plaintiffs’ pay at rates less than
men performing the same jobs. Under such circumstances, as the district court
correctly concluded, the later-arising adverse economic conditions cannot
justify the original pay rate. Nor, as the district court also properly held,
can such an explanation serve as an excuse to perpetuate an unlawful pay
disparity that began before the adverse economic conditions commenced.
A. Allsteel offered
no trial evidence that adverse economic conditions caused the plaintiffs’
original pay disparities.
The district court correctly denied Allsteel’s
motion for a new trial based on the EPA jury instructions. On appeal, Allsteel
argues that the court’s instruction unfairly hampered its ability to
demonstrate its proffered EPA affirmative defense: that the pay differentials
for all three plaintiffs were “based on any other factor other than sex.” 29
U.S.C. § 206(d)(1)(iv). Allsteel’s argument has no merit, however,
because the instructions the court delivered to the jury concerning Allsteel’s
asserted affirmative defense fairly reflect the evidence Allsteel presented to
the jury.
In support of Allsteel’s contention that the
plaintiffs’ pay disparities were based on “factors other than sex,” the
company’s representative testified at trial that 1) the plaintiffs’ jobs
differed from the jobs of their male comparators (a challenge the jury
obviously rejected and that Allsteel appears to have abandoned on appeal); 2)
the plaintiffs’ prior experience differed from that of their male comparators;
3) Loring and Dindinger had less seniority than their male comparators;
and 4) Loring’s job performance became unsatisfactory in 2011-2013. See
page 6, supra. Because the jury ultimately ruled in the plaintiffs’
favor, however, the jury necessarily rejected Allsteel’s contention that any of
these considerations explained the plaintiffs’ lower rate of pay.
Allsteel does not argue on appeal that the jury’s
rejection of its proffered evidence on any of these specific contentions is
against the weight of the evidence. Instead, Allsteel argues that the district
court improperly hampered its defense by instructing the jury that Allsteel
could not rely on adverse economic conditions to justify the plaintiffs’ pay
disparities. See Allsteel Brf. at 15-18. But although Allsteel
introduced evidence that the company had experienced adverse economic
conditions beginning October 2008, it none of that evidence tied the economic
downturn to any of the decisions setting the plaintiffs’ rate of pay.
Indeed, the trial evidence showed
that the pay differentials underlying Dindinger’s claim began in 2001 (with
comparator McCullough) and 2004 (with comparator Paulson). The pay
differentials underlying Loring’s and Freund’s claims began in March 2008 and
April 2008, respectively. Allsteel claimed it began to feel the effects of the
downturn in October 2008, and imposed a salary freeze only in March 2009.
Thus, the evidence presented to the jury showed that Allsteel established all
three plaintiffs’ salaries months or years before the economic downturn hit
Allsteel, and at least a year before the company instituted a pay freeze on its
workforce in the spring of 2009. Under these circumstances, the economic
downturn could not possibly explain why Allsteel began paying the plaintiffs
less than men performing equal work. See EEOC Compliance Manual,
Section 10: Compensation Discrimination, No. 915.003 (12/5/2000), at §10-IV F.2
(employer invoking factor other than sex defense “must establish that a
gender-neutral factor, applied consistently, in fact explains the
compensation disparity”) (emphasis added); Boaz v. Fed. Express Corp.,
107 F. Supp. 3d 861, 882 (W.D. Tenn. 2015) (“An ‘illusory’ and ‘post-event’
justification for unequal pay is not a valid factor other than sex.”).
As noted above, a district court is obligated to
fashion jury instructions that fairly reflect “the issues of law and fact
appropriate to the case.” MacGregor, 373 F.3d at 929-30. This
Court has stated that “[t]he jury should receive instructions on issues
supported by competent evidence in the record,” explaining that “the trial
court is not required to instruct on issues that do not find support in the
record.” Brown, 284 F.3d at 953 (citation omitted). Thus, in Campos
v. City of Blue Springs, Mo., 289 F.3d 546 (8th Cir. 2002), for example,
this Court found no error in the district court’s refusal to instruct the jury
that the plaintiff’s own view of the adequacy of her job performance was
irrelevant, where the defendant employer had never argued that poor job performance
caused the supervisor’s abusive behavior toward the plaintiff and it was
generally undisputed that plaintiff was performing satisfactorily. Id.
at 551-52. Likewise, here, where
the trial evidence showed that the economic downturn began after Allsteel had
already established the plaintiffs’ salaries at a level lower than men
performing the same work, the district court properly instructed the jury that
Allsteel could not rely on adverse economic conditions to justify the
plaintiffs’ lower salaries or to demonstrate that those salaries resulted from
“any other factor other than sex.”
B. Allsteel cannot
rely on a later-developing economic downturn to justify its continuation of pre-existing
pay disparities that are based on sex.
As the district court noted, Allsteel sought to use
the defense of economic conditions to justify the freezing of plaintiffs’ wages
below those of their male comparators. VI-JA.1296. Allsteel cannot rely on the
economic downturn to justify its perpetuation of the pay differential after it
was created. Congress, as the district court underscored, enacted the EPA to eliminate
pay disparities and to ensure that women receive equal pay for equal work.
VI-JA.1295. Citing the Supreme Court’s decision in Corning Glass Works v.
Brennan, 417 U.S. 188 (1974), the district court quoted Congress’s findings
“that discriminatory wage differentials based on sex ‘depress[] wages and
living standards for employees necessary for their health and efficiency” and
observed that “[r]aising these depressed wages,” according to the Supreme
Court, “was the EPA’s ‘whole purpose.’” VI-JA.1295-1296 (citing and quoting Corning
Glass, 417 U.S. at 206-07). See also Corning Glass, 417 U.S. at 207
(noting comment of Rep. Dwyer that “[t]he objective of equal pay legislation .
. . is . . . to raise women to the levels enjoyed by men in cases where
discrimination is still practiced.”) (citation omitted). Allowing the jury to
consider “economic conditions” under these circumstances would be contrary to
that congressional purpose. Cf. Taylor, 321 F.3d at 718-19
(emphasizing importance of examining the defendant’s asserted factor other than
sex—which, in Taylor, was employer’s reliance on employees’ past
salaries—to ensure it is not used as “simply a means to perpetuate [payment of]
historically lower wages” to women).
Once an employer is aware that it is paying female
employees less to perform the same work as male employees—as the jury found
here, when it found Allsteel liable for a “willful” violation—the employer is
obligated to act within a reasonable time to remedy the pay disparity. See,
e.g., EEOC v. Maricopa Cnty. Cmty. Coll. Dist., 736 F.2d 510, 515
(9th Cir. 1984) (district-wide freeze on position reevaluations could not
justify failure to remedy pay disparity for female loan clerk performing higher
level work at lower pay). It would undermine the congressional purpose
underlying the statute if an employer, having committed an EPA violation, could
delay addressing the situation and then rely on a later adverse change in its
financial circumstances, as Allsteel attempted to do here, to avoid rectifying
the disparity it had previously created.
In none of the cases Allsteel cites did a district
court hold that a subsequent economic downturn absolved an employer from
remedying a wage disparity that predated the adverse economic conditions. See
Allsteel Brief at 18-20. In Brokaw v. Weiser Security, 780 F. Supp. 2d
1233 (S.D. Ala. 2011), for example, revenues and overall productivity for the
branch at issue had dropped significantly under the prior manager and, thus,
the adverse economic conditions existed before the defendant hired the
plaintiff and established her salary. Id. at 1252. The case thus
provides no support for Allsteel’s proposition that an economic downturn that
arose after the lower wages were already set could justify the company’s failure
to rectify the unlawfully-established pay.
The other cases Allsteel cited likewise provide no
support for Allsteel’s position. See Wood v. Tech. for Energy Corp.,
2015 WL 2341084 (E.D. Tenn. May 14, 2015) (granting summary judgment
because “relative skill and experience” justified plaintiff’s lower initial
salary, and plaintiff’s job performance justified defendant’s subsequent failure
to increase her salary), appeal pending, No. 15-5649 (6th Cir.); Joyner
v. Town of Elberta, 22 F. Supp. 3d 1201, 1207-10 (S.D. Ala. 2014) (granting
summary judgment because pay disparity was justified by male comparator’s prior
pay and superior experience and education, or, alternatively, by plaintiff’s knowledge
that interim position was only temporary; declining to grant summary judgment based
on changed economic circumstances because evidence on that point was in
dispute); Blackburn v. Cypress Equities 1, 2014 WL 4771765, at *7 (N.D.
Tex. Sept. 24, 2014) (plaintiff was reassigned to general counsel position—at
lower salary than prior general counsel—after economic crisis was already
affecting company; denying defendant summary judgment because evidence showed
defendant hired and awarded raises to other employees during period when it
claimed financial conditions prevented it from remedying plaintiff’s pay
disparity); Kienzle v. Gen. Motors, LLC, 903 F. Supp. 2d 532, 546-47
(E.D. Mich. 2012) (pay decision occurred after company underwent restructuring
and bankruptcy; denying summary judgment because GM failed to show economic
conditions justified paying plaintiff part-time wages while requiring her to
work full-time hours); Flockhart v. Iowa Beef Processors, Inc., 192 F.
Supp. 2d 947, 972 (N.D. Iowa 2001) (rejecting, as based on too large a gap in
time, plaintiff’s comparison to male employee who assumed her former position
three years after she left; noting, additionally, that significant fluctuation
of wage levels for that job classification during those intervening three years
made any comparison “inconclusive and inappropriate”); Ratts v. Bus. Sys.,
Inc., 686 F. Supp. 546, 551-52 (D.S.C. 1987) (noting that salary
freeze on all company executives because of adverse economic conditions in
conjunction with fact that plaintiff’s duties and responsibilities differed
from other company vice presidents could justify plaintiff’s lower salary).
Thus, as the district court correctly concluded (VI-JA.1296-1298),
none of the cases Allsteel cites support Allsteel’s contention that the
economic downturn that caused the company to freeze salaries as of March 2009
offers a legal defense to its failure to remedy pay disparities that began a
year, or several years, earlier. The district court acted well within its
discretion when it instructed the jury that Allsteel could not rely on
“economic conditions,” including “downsizing, reductions in force,
restructuring, and economic downturns,” to justify any pay differential
complained of by the plaintiffs.
C. Even
if the instruction was in error, the error was harmless.
The absence of evidentiary support in the trial
record for Allsteel’s proposed instruction compels the further conclusion that even
assuming arguendo that the district court erred, any such error was
harmless. The undisputed trial evidence showed that Allsteel made the relevant
salary decisions concerning the plaintiffs’ salaries in 2001, 2004, March 2008,
and April 2008. Allsteel presented no evidence to the jury that it
based any of those salary decisions on economic conditions. To the contrary,
Allsteel’s representative testified that the company began to feel the effects
of the economic downturn only in October 2008—after the salary decisions at
issue—and waited another five months (until March 2009) before implementing a
salary freeze as a result of the downturn.
As this Court has stated, many errors in jury
instructions are harmless. For this reason, a court will “order a new trial
only if the error ‘misled the jury or had a probable effect on its verdict.’” Hallmark
Cards, Inc. v. Murley, 703 F.3d 456, 460 (8th Cir. 2013). See also Der,
666 F.3d at 1126 (“[E]ven if we find that a district court erroneously
instructed the jury, we will reverse only where the error affects the
substantial rights of the parties.”) (quotation and citation omitted). Allsteel
failed to offer any witness testimony at trial that the onset of the economic
downturn in late 2008 explained the already-existing differences in salary
between the three plaintiffs and their respective male comparators. This
evidentiary omission compels the conclusion that even if there were any error
in giving the instruction, it was harmless.
CONCLUSION
For the foregoing reasons, the Commission
urges this Court to affirm the district court’s decision denying Allsteel’s
motion for a new trial based on the court’s jury instructions.
Respectfully
submitted,
P.
DAVID LOPEZ
General
Counsel
JENNIFER
S. GOLDSTEIN
Associate
General Counsel
MARGO
PAVE
Assistant
General Counsel
s/ Susan R. Oxford
SUSAN
R. OXFORD
Attorney
U.S.
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
Office
of General Counsel
131
M Street, NE, Fifth Floor
Washington,
DC 20507
(202)
663-4791
susan.oxford@eeoc.gov
