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CODY v. PRIVATE AGENCIES COLLABORATING TOGETHER

November 30, 1995

MS. CECILIA CODY, Plaintiff,
v.
PRIVATE AGENCIES COLLABORATING TOGETHER, INC., Defendant.



The opinion of the court was delivered by: ATTRIDGE

 Pending before the Court are 5 post judgment motions. Two involve cross motions for attorney fees, another concerns taxation of costs, and the remaining two seek to change the judgment itself. The plaintiff urges that the judgment be amended to provide for liquidated damages and prejudgment interest; whereas, the defendant urges that the judgment in favor of the plaintiff on the Equal Pay Act be set aside and judgment entered in its favor as a matter of law.

 Background

 The plaintiff, Cecilia Cody, a former employee of the defendant Private Agencies Collaborating Together, Inc. (PACT), sued the defendant alleging sexual discrimination in employment in violation of Title VII, pay discrimination because of her sex in violation of the Equal Pay Act, defamation, breach of contract and intentional interference with business prospects.

 Cody was first employed by PACT in May of 1991, as a part-time consultant. In October 1991, she became a full-time employee with the title of Associate Director for Latin America, at an annual salary of $ 31,500.

 On November 1, 1992, Cody was given a title change to Regional Director for Latin America and received a salary increase to $ 35,500. On January 1, 1993, a cost of living increase raised her salary to $ 36,678.72.

 On or about November 1, 1990, David Williams, a male colleague, was hired by PACT as Associate Director for Africa at an annual salary of $ 36,000. On February 1, 1991, a cost of living adjustment raised his salary to $ 37,500. On October 1, 1991, Williams was named interim Regional Director for Africa at an annual salary of $ 40,000, and on December 1, 1992, he became the Regional Director for Africa with an annual salary of $ 45,000.

 Following a cost of living adjustment, his salary was raised to $ 46,492.80, effective January 1, 1993. Following a merit increase on November 1, 1993, his salary was $ 51,142.08 and, effective January 1, 1994, a cost of living adjustment raised his salary to $ 52,414.54.

 Following her termination by PACT in June, 1994, Cody brought suit against PACT charging violations of Title VII, The Equal Pay Act, breach of contract, defamation, and intentional interference with business prospects. At the conclusion of the plaintiff's case, the defendant's motion for judgment as a matter of law was granted as to the retaliation claim under Title VII, breach of contract and intentional interference with business prospects counts. *fn1" The motion was taken under advisement as to the Title VII discriminatory discharge and Equal Pay Act claims. The jury returned a verdict for the defendant on the Title VII claim and found in favor of the plaintiff on the Equal Pay Act claim awarding her damages of $ 9,928.92.

 The defendant has renewed its motion for judgment as a matter of law pursuant to Fed. R. Civ. P. 50(b), and the plaintiff has moved pursuant to 29 U.S.C. § 216(b) to amend or alter the judgment to include liquidated damages in an amount equal to that awarded her by the jury and for prejudgment interest. *fn2"

 A. Defendant's Judgment as a Matter of Law

 The Equal Pay Act is a broadly remedial statute created to correct an endemic problem of employment discrimination. Goodrich v. International Brotherhood of Electrical Workers, AFL-CIO, 229 U.S. App. D.C. 456, 712 F.2d 1488, 1490 (D.C. Cir. 1983). "An employer violates the [act] by paying unequal wages for 'equal work on jobs the performance of which requires equal skill, effort, and responsibility and which are performed under similar working conditions.'" Thompson v. Sawyer, 219 U.S. App. D.C. 393, 678 F.2d 257, 270 (D.C. Cir. 1982) (quoting 29 U.S.C. § 206(d)(1)(1976).

 The defendant initially challenges the plaintiff's prima facie case and argues that she failed to prove that her job and that of David Williams were "equal." The defendant correctly points out that the standard "equal" does not mean "comparable" or "identical" work. "Instead, the test under the Act is 'substantial equality' [that is] whether the jobs in question are substantially related and substantially similar in skill, effort, responsibility, and working conditions." Goodrich, 712 F.2d at 1492 (citations omitted).

 PACT concedes that if Cody met her burden, then, and in that event, "PACT could (only) prevail . . . by rebutting the showing of equality of jobs and/or asserting one of the affirmative defenses available under the Act, including that any wage differential was based on any fact other than sex." (Renewed motion for Judgment as a Matter of Law at 3 (Jan. 28, 1995).

 PACT argues that it produced uncontroverted and unrebutted evidence that the wage differential between Cody and Williams was based on factors other than sex; more specifically, experience, skill, judgment, responsibility and supervision.

 The evidence before the jury viewed in the light most favorable to the plaintiff shows that Williams' full-time employment with PACT as an associate director began on November 1, 1990, at a salary of $ 36,000; and on the other hand, Cody started with the same title on October 1, 1991, at a salary of $ 31,500. A year later, on November 1, 1992, Cody was given a $ 4,000 raise and a month after that, Williams was given a $ 5,000 raise. On January 1, 1993, both were given a cost of living adjustment which brought Cody's annual salary to $ 36,678.72 and Williams' annual salary to $ 46,492,80. Therefore, not only was Cody's starting salary $ 4,500 less than Williams' starting salary but a little over a year after she began her employment, she was earning almost $ 10,000 a year less than Williams.

 Although PACT's Personnel Manual, (Pl.'s Exhibit 6- which according to Williams was not in effect when he was hired) leaves it to the sole discretion of the chief executive officer (CEO) to determine the salaries of all employees. The factors he is to consider are all very subjective.

 The very nature of the jobs themselves, which were professional and result oriented rather than ministerial, raised genuine issues of material fact as to whether both exercised the same skill and judgment in carrying out their responsibilities. Indeed, factual issues relevant to whether their responsibilities were equal, either in the global context or specific context, were also present, particularly since both jobs had as their ultimate end the marketing of PACT's services.

 The jury found that both Cody and Williams performed substantially equal work. That determination was fact specific. Moreover, the threshold defense of unequal work was so factually intertwined with and rested on the same contentions as the defendant's affirmative or residuary defense, that factors other than Cody's gender accounted for the salary differential, so as to preclude ...


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