inquiry into the mechanics of promotions at the "journeyman" level, "it would have been reasonable for her to inform herself of those governing promotion into the limited ranks of EAS-28s." Defendant's Motion to Dismiss or for Summary Judgment at 11. The defendant asks the Court to adopt the reasoning of the Commission and the EEOC and hold that plaintiff's Title VII claim is untimely.
However, the defendant's argument obscures the central issue -- whether the plaintiff has shown a genuine issue of material fact to survive summary judgment. The Court concludes that she has. The plaintiff alleges that she did not know of the disputed promotion policy of the Commission until May 1989, see Complaint paras. 13-14, and she supports this allegation with an affidavit. See Plaintiff's Objection to Defendant's Motion to Dismiss or for Summary Judgment, Affidavit of Lola Hatcher-Capers para. 12. Although the defendant marshals a number of facts to show that the plaintiff must have known of the unwritten promotion policy of the Commission, the plaintiff's affidavit creates a genuine issue of material fact regarding whether she knew or should have known of the allegedly discriminatory promotion policy. At bottom, the defendant asks the Court to weigh the evidence and make a credibility determination that the plaintiff is not being truthful, or at least that it was facially unreasonable for her not to know about or inquire into the Commission's unwritten promotion policy.
Yet, "credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment. . . . The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [her] favor." Liberty Lobby, 477 U.S. at 255. Because the plaintiff provides more than a mere scintilla of evidence to controvert the defendant's sole argument to her Title VII claim, the Court shall deny the defendant's motion for summary judgment on this claim.
Although the defendant's arguments might ultimately prove successful, the evidence on whether the plaintiff knew or should have known of the Commission's promotion policy long before she filed suit presents a genuine issue of material fact which precludes summary judgment.
D. Equal Pay Act
Finally, the defendant moves for summary judgment on plaintiff's Equal Pay Act ("EPA") claim. The plaintiff alleges that the Commission's pay structure and promotion practice is connected to the sex of the employees, and states in an affidavit filed in support of her Title VII claim that she has the same responsibilities, assignments and duties, but is paid less than the attorneys in the EAS-28 grade.
The defendant argues that there has been no violation of the EPA because any disparity in pay between the plaintiff and her co-workers is the outcome of a differential unconnected with the sex of the workers involved. See 29 U.S.C. § 206(d)(1)(iv). The defendant supports its allegation with an affidavit of the Commission's personnel officer, Cyril J. Pittack. Although only women remain in the EAS-25 positions, the defendant claims that this is not the result of any discrimination against women. According to the defendant, the present composition of the EAS-25 workforce exists only because the males who had been at the EAS-25 level had resigned, and the Commission has no need to fill any vacated positions. The plaintiff offers no competent evidence to dispute the defendant's explanation of the pay differential.
The Equal Pay Act provides, in pertinent part:
No employer . . . shall discriminate . . . between employees on the basis of sex by paying . . . employees . . . less than the rate at which he pays wages to employees of the opposite sex . . . for equal work on jobs the performance of which requires equal skill, effort, and responsibility.
29 U.S.C. § 206(d)(1). However, a difference in wages for equal work will not violate the Equal Pay Act if the employer can show that "such payment is made pursuant to . . . a differential based on any factor other than sex." 29 U.S.C. § 206(d)(1)(iv).
To establish a prima facie case, the plaintiff must show that the defendant paid different wages to employees of opposite sexes for "substantially equal" work. EEOC v. Maricopa County Comm. College Dist., 736 F.2d 510, 513 (9th Cir. 1984). Even assuming that the plaintiff did enough to establish a prima facie case under the Equal Pay Act, she failed to produce any competent evidence to dispute the defendant's explanation for the pay differential. When the plaintiff makes a prima facie case that she was paid less than male employees for substantially the same work, the burden shifts to the employer to show that the wage differential is based on a factor other than sex. See Corning Glass Works v. Brennan, 417 U.S. 188, 196-97, 41 L. Ed. 2d 1, 94 S. Ct. 2223 (1974); Kouba v. Allstate Insurance Co., 691 F.2d 873, 875 (9th Cir. 1982); Girdis v. EEOC, 688 F. Supp. 40, 45-46 (D.Mass. 1987).
However, once the employer establishes under section 206(d)(1)(iv) that the pay differential is based on a factor other than sex:
The plaintiff cannot rest on the same evidence supporting her prima facie case of unequal pay for equal work. For purposes of this summary judgment motion under the Equal Pay Act, therefore, once the defendant has demonstrated some non-discriminatory reason for its payment policy, the burden shifts back to the plaintiff to produce evidence sufficient to raise an inference that the defendant's proffered reasons are not legitimate and serve merely as a cover for sex-based discrimination.