be paid less than a man merely because she works in a different location.
This does not mean, of course, that the government may not distinguish between and among its employees on the basis of the duties and responsibilities vested in them. Nor does the Court hold that such distinctions are impermissible if geography is a factor.
However, if the duties and responsibilities of the position are substantially equal,
the burden is appropriately placed on the government, in view of the existence of a single nation-wide Civil Service system, to explain why it should be permitted to pay a lower wage or salary to a female employee in a particular geographic location, notwithstanding the Equal Pay Act, merely because she is employed at that location.
What the government may not do -- as it argues it has the authority to do -- is to refuse to take even the first step under the Equal Pay Act, that is, to compare the duties and responsibilities of similarly-situated employees of different genders to determine whether they warrant equal pay, merely because the employees happen to be assigned to different locations.
In order to determine what comparisons between and among employees should be made for Equal Pay Act purposes, using the standard of function rather than that of mere geography, the Court now turns to the specific facts of this case. With regard to function, it is appropriate to inquire into three principal factors: the decree of centralized control in the Office of General Counsel of the Customs Service, the work performed in the Regional Offices, and the position description under which the plaintiff operated.
First. The various Regional Offices were subject to regulation and control from the Chief Counsel who treated them in every respect as being entirely under his jurisdiction. Thus, the Regional Counsel Offices are described in official documents as being "a part of the Office of the Chief Counsel" and every Regional Counsel is placed "under the general administrative direction of the Chief Counsel"
(presumably as distinguished from that of the particular Regional Commissioner of the Customs Service). The Regional Offices do not automatically handle all cases that come in to them; assignments may be, and occasionally are, made by the Chief Counsel's Office in Washington. That Office also controls the settlement of cases.
The Chief Counsel likewise controls the pay and budget process for all the regions, and he monitors the activities of the Regional Counsel Offices through various means, including regular monthly reports. In fact, the Chief Counsel recently reorganized his Office, and that reorganization eliminated the Regional Office in which plaintiff was employed.
Second. All the Regional Offices of the Customs Service legal department perform the same basic functions regardless of their size or location. Not only did the Treasury not reduce the duties and responsibilities of the Baltimore Office or those of the individual occupying it,
but during plaintiff's incumbency that Office handled more cases than at least one other Regional Office (occupied by a male GS-15). Furthermore, while plaintiff was Regional Counsel in Baltimore, the caseload doubled compared to what it was when her male GS-15 predecessor was in charge.
Third. Plaintiff was operating under a standard position description which is the same that was used for all other Regional Counsel positions.
That document classified the position held by plaintiff as a GS-15.
The classification was not changed after plaintiff's predecessor left office,
nor was it changed at any time during plaintiff's tenure.
In response to these facts regarding the position description, the government's papers
suggest only two relatively minor problems. The government argues, first, that the vacancy announcement described the position merely as a GS-14/15 (rather than as the GS-15 as the position description required). But that vacancy announcement did not and it obviously could not vary the basic description of the job which, as indicated, called for a grade GS-15. Beyond that, the government seems to assert that the continued viability of the GS-15 position description in the context of plaintiff's application was the result of "inadvertence." That bare suggestion, unsupported by any evidence, is plainly insufficient to create a genuine issue of material fact.
Moreover, there would have been no basis whatever for the sudden establishment of a new position description. The position was what it had always been: the highest legal position in one of the nine regions in the Customs Service with duties and responsibilities equal to those of the other eight regions.
The government's motion for summary judgment, which is predicated on the theory that the Baltimore Regional Office of the Customs Service is a separate "establishment" within the meaning of the Equal Pay Act, will therefore be denied.
Both plaintiff and the government have moved for summary judgment or partial summary judgment on alternative grounds.
These motions revolve primarily around regulations modelled on the so-called Whitten Amendment,
which generally requires a federal employee to serve at least one year in a particular grade before being eligible for promotion to the next higher grade. A regulation promulgated by OPM provides that
an agency head may advance an employee to a position at GS-12 or above only after he has served one year at the next lower grade.
The government claims that the OPM regulation constitutes a bona fide seniority system within the meaning of the Equal Pay Act
and that, irrespective of any other considerations, plaintiff cannot complain of a violation of that statute. That is so, the government reasons, because when Ms. Grumbine was appointed a Regional Counsel, she was only a GS-13 and she therefore could not have been given a GS-15 rating without running afoul of the OPM regulation. While also making several other claims,
plaintiff responds primarily by pointing to the experience of one Paul Wilson who was appointed Regional Counsel at the same time as plaintiff at the GS-15 grade even though he, too, lacked the requisite one year in grade GS-14.
It is obvious that, inasmuch as the one-year-in-grade requirement was waived
for Wilson, the OPM regulation is not iron-clad as the government would make it appear. Certainly, if that regulation was enforced selectively or discriminatorily, the government could not rely on it or the existence of a bona fide seniority system in defense of its actions, and the exception to the Equal Pay Act would not apply. And of course in this context as in others -- such as under Title VII of the Civil Rights Act -- the question of discriminatory treatment is primarily one of fact. There are here sharply differing views on the operative factors.
Thus, the government contends that, for various reasons, plaintiff was not situated as was Wilson. The latter, according to the government, had more experience; his assignment to a Regional Counsel position entailed significant personal hardship; and, unlike plaintiff, he specifically requested waiver of the regulation on hardship grounds.
Plaintiff, on the other hand, maintains that her prior experience was equivalent to Wilson's,
and that, unlike Wilson, she was never given an opportunity to apply for a hardship waiver.
It is apparent from a mere recitation of these contentions that genuine issues of material fact exist with respect to the alternative summary judgment motions which cannot be resolved without a trial.
Accordingly, both of these motions will be denied.
[EDITOR'S NOTE: The following court-provided text does not appear at this cite in 586 F. Supp.]
For the reasons stated in the Opinion filed this date in the above-captioned case, it is this 3rd day of April, 1984,
ORDERED That defendants' motion for summary judgment be and it is hereby denied, and it is further
ORDERED That plaintiff's alternative motion for summary judgment and defendants' alternative motion for summary judgment be and they are hereby denied, and it is further
ORDERED That plaintiff's motion to file an amended complaint be and it is hereby granted, and it is further
ORDERED That the stay of discovery be and it is hereby dissolved.