36. Contrary to plaintiff's assertion that the agency's decision not to promote her was retaliatory, the Court finds that Ms. Lomax was especially careful to fully review the plaintiff's qualifications thoroughly and ensure that she was fairly considered along with the other applicants.
37. The Court finds that there was no evidence presented by plaintiff to suggest that Sandra Brooks was not better qualified for the Program Analyst promotion. Plaintiff has not presented any credible evidence questioning Sandra Brooks' ability to work well with others, or challenging that her legislative experience was more specifically related to the responsibilities of the subject position. Plaintiff's implication that Sandra Brooks was hired out of nepotism was clearly rebutted by the testimony of Earl Jones. Moreover, plaintiff's allegation that the Program Analyst position was tailored by management to fit Sandra Brooks' qualifications was rebutted by the testimony of John Neale that these positions were created by Personnel completely separate and apart from management.
38. The Court finds that there is ample evidence that plaintiff possesses an unfortunate personality and was unable to get along with her colleagues as well as persons outside the organization.
39. The agency articulated legitimate, nondiscriminatory reasons for promoting Sandra Brooks to Program Analyst, GS-13, that were not shown to be pretextual. Specifically, Sandra Brooks' legislative experience and ability to get along with other people was superior to that of any of the other candidates, including the plaintiff.
40. Based on the totality of the evidence, including an assessment of the demeanor and credibility of the witnesses, the Court concludes that the plaintiff has failed to establish by a preponderance of the evidence that her failure to be promoted to a GS-13 Program Analyst was retaliatory or otherwise discriminatory.
(iii) The Desk Audit
41. Plaintiff has failed to show that the agency's decision to reduce her responsibilities rather than to upgrade her pay after the Desk Audit was tainted by reprisal for previous discrimination claims against the agency. The Court concludes that the defendant articulated legitimate, nondiscriminatory reasons for the challenged action that were not shown to be pretextual.
42. The evidence reveals that the agency considered a class of similarly situated employees as well as other legitimate nondiscriminatory factors in deciding a course of action subsequent to the Desk Audit. Thus, the Court concludes that plaintiff has failed to establish by a preponderance of the evidence that the agency's decision to reduce her responsibilities in Region 10 as a result of the Desk Audit was retaliatory or otherwise discriminatory.
C. EQUAL PAY ACT
43. In a sex discrimination case alleging unequal compensation such as this one, Title VII and the Equal Pay Act
must be construed in harmony. Orahood v. Board of Trustees, 645 F.2d 651, 654 (8th Cir. 1981); see County of Washington v. Gunther, 452 U.S. 161, 101 S. Ct. 2242, 68 L. Ed. 2d 751 (1981); Kouba v. Allstate Insurance Co., 691 F.2d 873 (9th Cir. 1982) (once a prima facie case has been made, employer bears the burden of proving affirmative defenses under the Equal Pay Act). Title VII explicitly recognizes the overlay between the two laws by providing that any differential authorized by the Equal Pay Act shall not constitute a violation of Title VII. See 42 U.S.C. § 2000e-2(h); Gunther, 452 U.S. at 167.
44. Furthermore, to establish liability in a suit under the Equal Pay Act, plaintiff must demonstrate that both her supervisors and the classifiers of her agency had knowledge of the existing salary discrepancy. See Cayce v. Adams, 439 F. Supp. 606, 609 (D.D.C. 1977); see also Usery v. Board of Education, 462 F. Supp. 535, 568 (D.Md. 1978); cf. EEOC v. Maricopa County Community College District, 736 F.2d 510, 515 (9th Cir. 1984) (supervisor initiated plaintiff's assumption of greater job responsibilities).
45. To make a prima facie case for violation of the Equal Pay Act, 29 U.S.C. § 206(d)(1), plaintiff must establish that "the employer pays workers of one sex more than workers of the opposite sex for equal work." Corning Glass Works v. Brennan, 417 U.S. 188, 196, 94 S. Ct. 2223, 41 L. Ed. 2d 1 (1974). Thus, the issue is not whether a complainant performs at a higher grade than that at which she was paid. Rather, the plaintiff must show that she performed work of "equal skill, effort, and responsibility" as a member of the opposite sex, but was not paid as much. 29 U.S.C. § 206(d)(1).
46. Employment under a merit system is a defense under the Equal Pay Act. Id. Shamey's position was, and is, one in a merit system; it is covered by the civil service classification scheme. 5 U.S.C. §§ 5102(a), 5107.
47. If examined under the standard set forth in the statute, the amended complaint fails to allege a prima facie case of a violation of the Equal Pay Act. Plaintiff has failed to allege that males who performed equivalent work were paid more, were the same grade as she, and performed work of "equal skill, effort, and responsibility"; she has failed to allege that the merit system under which the payments were made was not a bona fide system; and finally, Shamey has included women, members of the protected class, in the list of co-workers she claims are discriminatorily paid more than she is paid. See EEOC v. Aetna Insurance Co., 616 F.2d 719, 725-26 (4th Cir. 1980). Removal of duties without a decrease in pay does not create an Equal Pay Act claim. See Leveen v. Stratford Housing Authority, 629 F. Supp. 228 (D.Conn. 1986).
48. The true gravamen of plaintiff's Equal Pay Act allegation is that she was performing GS-13 work while a GS-12. See generally Complaint. It is not a sex based complaint. Indeed, she complains that she was performing as well as certain female GS-13s. Plaintiff's real complaint is that her position was misclassified. The proper avenue of redress is to appeal the classification of her duties to the Office of Personnel Management. See 5 U.S.C. § 5107.
49. For the reasons discussed above, the Court finds that plaintiff has failed to establish a prima facie case under the Equal Pay Act.
50. For all of the foregoing reasons, judgment is entered in favor of the defendant on all discrimination claims raised by plaintiff in this action and this case shall stand dismissed with prejudice.
An order consistent with the foregoing has been entered this day.
Date: January 19, 1990
ORDER - January 23, 1990, Filed
This case was tried before this Court on May 8, 9, and 10, 1989. The Court has considered the evidence presented, the arguments of both parties, and the applicable legal standards. For the reasons stated in accompanying Findings of Fact and Conclusions of Law entered this day, it is this 19th day of January, 1990,
ORDERED that judgment is entered in favor of defendant on all discrimination claims raised by plaintiff in this action; and it is
FURTHER ORDERED that this case is dismissed with prejudice.