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July 19, 1984

Equal Employment Opportunity Commission, PLaintiff
American Pharmaceutical Association, Defendant.

The opinion of the court was delivered by: PENN

Before WRIGHT, TAMM* and BORK, Circuit Judges.

PENN, D.J.: The Equal Employment Opportunity Commission (hereinafter EEOC), on behalf of Ms. Cyrelle K. Gerson, a former employee of the defendant, American Pharmaceutical Association (APHA), brought this action alleging violations of Section 216(c) and 217 of the Fair Labor Standards Act (FLSA) of 1938, as amended 29 U.S.C. § 201 et seq. More specifically, plaintiff alleges violations of the Equal Pay Act of 1963 (EPA), 29 U.S.C. § 206. Plaintiff alleges that from June 1977, until August 4, 1981, the date of the complaint was filed, APHA violated the Act by sexually discriminating between two employees, Cyrelle Gerson and Arthur P. Herrmann, by paying them unequal salaries for equal work. Plaintiff alleges that even though the job that Gerson was hired to perform required equal skill, effort and responsibility as that of her male counterpart, she was paid lower wages because of her sex. Defendant affirmatively answers the allegations by stating: "Any differentials in the rate of pay between employees of the American Pharmaceutical Association are based solely upon differences in skill, effort, responsibility and other factors other than sex." See Defendant's Answer at 2.

 This case is now before the Court on defendant's motion for summary judgment. After giving careful consideration to the motion and the opposition thereto, as well as the record in this case, the Court concludes that the motion should be granted.


 Most of the salient facts have been outlined in a Joint Stipulation of Facts (J.S.) entered and filed by both parties. Very briefly, Ms. Gerson commenced employment with APHA on June 6, 1977 as a staff member in the Association's Professional Affairs Division supervised by Dr. Richard P. Penna. Ms. Gerson's job title was Director of Special Projects. She was hired at an annual salary of $16,900. Her salary ws increased, effective May 1, 1978, to $19,500, on August 27, 1979 to $22,000. On September 6, 1980, she was evaluated by her supervisor, Dr. Penna, who found her to be a "satisfactory" employee. Ms. Gerson generated some project ideas of her own during the period of her employment, which were approved by APHA and later completed by Ms. Gerson. She nevertheless submitted her resignation from defendant's employ, effective June 12, 1981. She satisfactorily performed her duties up until the effective date of her resignation.

 Dr. Herrmann commenced employment with APHA on the same day as plaintiff, as a staff member in the Association's Professional Affairs Division. Dr. Herrmann's job title was Director of Clinical Practices, and his starting salary was $26,000. Dr. Herrmann was passed over for a salary raise on the first anniversary of his employment. He was given a raise in salary on August 27, 1978 to $27,040. He received no other raises in salary while employed at APHA. In August 1979, Dr. Herrmann's job performance was evaluated by Dr. Richard P. Penna, his immediate supervisor, and he was deemed to be average or slightly below average.IN five out of six areas of evaluation, Dr. Herrmann scored a three or four, out of a possible eight. See J.S., Ex. F. Dr. Herrmann frequently reported to work late. After reporting to work, he would often "disappear" for lengthy periods during the day. As a result, Dr. Herrmann was unable to keep up with his own assignments, or provide meaningful imput and guidance to other staff members in his area of responsibility.

 In some instances, Dr. Herrmann failed to develop continuing education programs within his area of responsibility as planned by APHA so the development of these programs had to be reassigned to outside contractors. By mid-1979, Dr. Herrmann's performance had deteriorated to the point where he was unable to complete the majority of projects assigned to him and his analytical and communication skills were substantially impaired. After providing Dr. Herrmann with notice of his termination and some time to obtain employment, APHA advised him that he would be terminated by June 20, 1980. Dr. Herrmann thereafter resigned from APHA effective July 11, 1980.

 The job description for Director of Clinical Practices indicates that Dr. Herrmann was required to work with APHA in connection with clinical pharmacy, nuclear pharmacy, drug utilization review programs, institutional acute pharmacy practice, and professional standards review organizations [PSRO's]. See J.S., Ex. D; Penna Affidavit. A 5; see also Plaintiff's Memorandum of Points and Authorities in Oposition To Defendant's Motion for Summary Judgment (Plaintiff's Memo) at 5. Ms. Gerson as Director of Special Projects was required to work in the areas of Long Term Care, Home Health Care, Medicare/Medicaid and Health Maintenance Organizations. See J.S. Ex. B; Gerson deposition at 15-21, 47 55, 63. Plaintiff asserts that the two positions required equal work skill and responsibility.

 First, plaintiff argues that there is a genuine issue of fact as to whether the two jobs involved were substantially equal under the EPA because they allegedly required equal skill, effort and responsibility. It is abundantly clear from the submissions of each party that the two were not substantially equal as envisaged by the drafters of the EPA.

 The affidavit of Dr. Apple sets forth what the Court views as sound and practical reasons for holding the job that Dr. Herrmann occupied as more demanding than that of Ms. Gerson, and consequently deserving more compensation. The affidavit makes it clear that APHA expected a great deal more from Dr. Herrmann as Director of Clinical Practices than was expected of Ms. Gerson as Director of Special Projects. Dr. Apple, who served as the Chief Executive Officer of APHA, had full and final responsibility for the employment of all APHA staff members, as well as their initial salaries and periodic salary increases. Dr. Apple personally approved the employment, initial salaries and periodic salary increases of both Dr. Herrmann and Ms. Gerson.

 With regard to hiring these two employees, Dr. Apple, states in pertinent part that:

 6. In January, 1977, Dr. Pierre S. Del Prato, a member of the APHA Professional Affairs Division staff, resigned his position. Dr. Del Prato, at the time of his resignation, was responsible for Professional Affairs Division on going activities relating to institutional pharmacy, clinical pharmacy, Professional Standards Review Organization, drug utilization review programs and procedures, and nuclear pharmacy. His departure required tn expeditious search for a pharmacist qualified to replace him and to assume responsibility immediately for those ongoing activities with a minimum of supervision. I authorized Dr. Richard P. Penna, Director of the Professional Affairs Division, to promptly recruit a pharmacist appearing to have such qualifications.

 8. After reviewing Dr: Hermann's curriculum vita and taking with him by telephone, Dr. Penna recommended to me that Dr. Herrmann be considered to succeed Dr. Del Prato. We then had Dr. Herrmann in for a personal interview and I decided to try to recruit him. Dr. Herrmann appeared to be a particularly appealing candidate for the position because of his Doctor of Pharmacy (Pharm.D.) degree and his extensive practical experience in the field of institutional pharmacy practice one of his planned areas of primary job responsibility. Dr. Herrmann also had extensive experience running continuing education programs. Taking into account the current salary and responsibilities of the position to be filled together with Dr. Herrmann's education background and professional experience, as well as his current salary as Chief Pharmacist in a hospital in Florida, an initial salary of $26,000 was negotiated and Dr. Herrmann agreed to join the APHA staff to assume Dr. Del Prato's responsibilities and to take on other responsibilities to be later agreed upon. Although Dr. Herrmanna could not begin his employment with APHA until early June of that year, Dr. Penna believed, and I agreed, that the Association was not likely to find an apparently better qualified candidate to replace Dr. Del Prato before Dr. Herrmann could join the APHA staff. His employment was therefore confirmed on the basis of guideline (A) described above.

 9. I first learned of Ms. Gerson interest in employment with APHA through Pharmacist Robert Schwartz of Madison, Wisconsin. Mr. Schwartz is a long-time personal friend and former student of mine when I was a member of the faculty at the University of Wisconsin prior to becoming the Chief Executive Officer of APHA. Ms. Gerson was, or had been, working with Mr. Schwartz at his pharmacy in Madison for approximately five months and was looking for other employment.

 10. Mr. Schwartz spoke highly of Ms. Gerson and her interest in Association work. Because of his personal recommendation, I decided to see whether a position could be made available for her under guideline (B) described above. Dr. Penna reviewed Ms. Gerson's educational background and professional experience and we had her in for a personal interview to determine whether he would be able to give her some meaningful assignments and whether he would have sufficient time available to supervise her work. Dr. Penna informed me that he wished to initiate the development of background papers and educational programs regarding pharmaceutical services in long-term care facilities, based on some initial work done in this area by a former staff member. He also stated that he believed Ms. Gerson had the capacity to develop such activities under his direction. He indicated he would be able to provide adequate guidance and supervision for Ms. Gerson with regard to long-term care activities were she to be employed by the Association. Based on all these factors, I determined that we could provide Ms. Gerson employment and training and offered her an initial salary of ...

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