The opinion of the court was delivered by: Shadur, District Judge.
Plaintiff is a 57 year old black woman employed in the
Examination Division of the Chicago District Office of the
Internal Revenue Service ("IRS"). Except for the period next
discussed, she has been a GS-9 pay level tax auditor since 1971.
In 1975 she applied for lateral reassignment to the position of
GS-9 revenue agent. Although the pay for that post is the same as
for a GS-9 tax auditor, it offered her an opportunity for
promotion to GS-11 revenue agent (unavailable to her as a tax
auditor). Plaintiff was selected for a training program for the
GS-9 revenue agent position but was then dismissed from the
training program and reassigned to her former position as tax
auditor (there is a dispute between the parties as to whether
this was due to defendants' alleged bias or because of
plaintiff's poor performance in the training program). This
action was filed December 16, 1976.
This action, including the fully-briefed pending motion, has been
reassigned to this Court. For the reasons stated in this
memorandum opinion and order, defendants' motion is granted.
One initial question posed by the parties is not decided by the
Court: the validity and applicability of plaintiff's argument in
its Memorandum in Opposition to Defendants' Motion To Dismiss
It is clear that a total rejection of that proposition would
permit the purposes of the Act to be frustrated by tokenism.
That concept of course can pose complex issues, but this Court's
acceptance of defendants' other arguments makes it unnecessary to
determine the question either in the abstract or as applied to
the facts regarding GS-9 tax auditors and GS-11 revenue agents.
On the merits, plaintiff contends that the work she performs as
a GS-9 tax auditor is "equal" to that performed by GS-11 revenue
agents, but without equal compensation. Defendants respond that
the GS-9 tax auditor position does not require the same "skill,
effort and responsibility" as the GS-11 revenue agent position,
nor is a tax auditor's work done under "similar working
conditions," so that relief under the Act is unavailable.
Under the terms of the Act recovery must be predicated on the
satisfaction of the four criteria relied on by defendants: The
lower-paying position must require equal skill, effort and
responsibility to that required in the higher-paying position,
and must be performed under similar working conditions.
Regulations promulgated under the Act state that equal skill,
effort and responsibility "constitute three separate tests, each
of which must be met in order for the equal pay standards to
apply." 29 C.F.R. § 800.122(a); accord, Christopher v. Iowa,
559 F.2d 1135, 1138 n. 14 (8th Cir. 1977).
In addition, the courts have read the "equal work" language of
the Act to impose a "threshold requirement, evident in the
legislative history and confirmed in case law, that the jobs to
be equated be substantially the same. The requirement of equality
of job content inheres in the statutory term `equal work.'"
Angelo v. Bacharach Instrument Co., 555 F.2d 1164, 1173 (3d
Cir. 1977). Plaintiff acknowledges her need to satisfy this
standard as well as the four statutory tests already referred to.
Plaintiff's argument is at the core a Gertrude Stein assertion:
A tax audit is a tax audit is a tax audit. As contemplated by
Fed.R.Civ.P. 56, defendants have presented a comprehensive
factual presentation through affidavits to demonstrate "that
there is no genuine issue as to any material fact." Defendants'
affidavits confirm the invalidity of plaintiff's simplistic
arguments. They show in graphic form the differences between the
two job positions, familiar to every practitioner who works in
the tax field. We deal with each of the applicable criteria,
though not in the order contained in the Act.
Equal Work-Substantial Identity of Job Function
There is no question of the sharp distinctions in job content
between the tax auditor and revenue agent jobs, distinctions
described in the affidavit of Richard Schickel, a Branch Chief in
what used to be termed the IRS Audit Division. Nor are those
distinctions cosmetic, as plaintiff suggests. Returns Program
Manager Leonard Lencioni's affidavit and the attached tables
demonstrate that the separation of functions is neither general
nor theoretical but both meaningful and real. Affidavits of
plaintiff's supervisor, Louise Cobb, and the former Chief of the
Stabilization Division, George Levin, establish that the
differences in job content have been mirrored directly in
plaintiff's own assignments. This Court adopts, without the
necessity of repeating, the analysis at defendants' Memorandum
12-15. On this ground alone summary judgment for defendants is
Defendants argue that the corporate and partnership returns
that comprise a major part of the workload of revenue agents, but
virtually none of that of tax auditors,*fn3 are
more complex. They point to the greater average amount of time
required to audit such returns when compared to the auditing time
on individual returns.*fn4 Moreover, the Lencioni affidavit
establishes that among individual income tax returns a
pre-assignment screening process is established to direct the
returns with more complex problems to revenue agents for field
audits, and more simple returns to tax auditors for office
Mental as well as physical exertion is part of the "effort"
standard established by the Act. "Effort is concerned with the
measurement of the physical or mental exertion needed for the
performance of a job." 29 C.F.R. § 800.127. "[A]lmost as a matter
of definition, a job which is more complex than another involves,
for the average person, more mental effort to accomplish."
Dunlop v. General Electric Co., 401 F. Supp. 1353, 1361 (W.D.Va.
In the Court's view defendants should prevail on the inequality
of "effort" in the two positions, in the sense that term is
employed in the Regulation and case law. But even if it were
argued that the greater volume of returns reviewed by tax
auditors makes the total "effort" equal, the same factors support
a determination of the inequality of the "skill" factor discussed
later in this opinion.
Similar Working Conditions
Revenue agents conduct audits at the place of business of the
taxpayer or taxpayer's representative, while tax auditors work
entirely at the IRS office. This environmental distinction does
not persuade the Court that a difference in "working conditions"
exists in the legal sense. What it does reflect, however, are
the differences in function that are both the cause and the
effect of the different locations in which the audits occur, as
stated in the Schickel affidavit:
2. The jobs performed by tax auditors and revenue
agents differ markedly. The tax auditor's work is
generally limited to audits of individual income tax
returns; the tax auditor is not assigned corporate,
partnership or fiduciary returns for audit. Most of
the audits conducted by tax auditors involve
interviews of individual taxpayers of [sic] their
representatives who bring the relevant tax records
into the IRS office for examination. Tax Auditors
generally lack prior knowledge of the case, and the
audits are usually limited in scope to specific
issues or items which are presented for examination
by the Returns Program Manager. The designated areas
of examination are often limited to a determination
of whether the taxpayer can produce sufficient
records to substantiate the matters appearing on his
return. Supervisory approval is normally required
before the tax auditor can expand the scope of the
audit beyond the identified area. In contrast, the
revenue agent audits individual, corporate,
partnership and fiduciary returns. With the exception
of fraud cases, revenue agents conduct almost all of
their audits at the place of business of the taxpayer
or his representative. Unlike the tax auditor, the
revenue agent himself determines the probable scope
of his audit and formulates a comprehensive plan for
the examination. As the audit develops, the revenue
agent retains wide latitude in directing or changing
the course of the examination and the scope of the
3. While the tax auditor's work is generally
limited to individual tax returns and unsophisticated
accounting systems, the revenue agent examines
individual, corporate, partnership and fiduciary
returns which exhibit a wide variety of complex
accounting systems, business transactions and
business relationships. The revenue agent's work
of tax law with which the tax auditor rarely, if
ever, becomes involved. The broader variety and
greater complexity of issues dealt with by the
revenue agent demands a greater knowledge and more
thorough understanding of the Internal Revenue Code,
Treasury Regulations, tax law principles, audit
techniques and accounting methods.
These differences too are critical to the lack of "equal skill"
"Responsibility is concerned with the degree of accountability
required in the performance of the job, with emphasis on the
importance of the job obligation." 29 C.F.R. § 800.129.
Defendants put the proposition that "within the context of the
IRS audit function, the obvious yardstick of job importance and
responsibility is the amount of money which is at issue in the
audits and which might result in additional tax assessments."
Exhibit 5 B reflects not only the far greater absolute dollars in
taxes and penalties assessed by revenue agents (over $283
million) than those assessed by tax auditors (over $22 million)
but the fact that revenue agent audits produce an average
assessment of $8,252, in contrast to the comparable figure of
$390 in tax auditors' audits.
In addition, the contrast described in the Schickel affidavit
quoted in the preceding section of this memorandum reflects an
inequality of responsibility in the ordinary sense of that term.
This Court finds the differences between the two positions in
overall terms of responsibility both obvious and meaningful.
Again the factors bear importantly on the issue of "equal skill,"
"Skill includes consideration of such factors as experience,
training, education and ability . . . measured in terms of the
performance requirements of the job." 29 C.F.R. § 800.125;
Brennan v. People's Electric Cooperative, 385 F. Supp. 581, 584
(E.D. Okla. 1974). In addition to all the factors already referred
to in this opinion that negate an equality of skill required for
the GS-11 revenue agent and GS-9 tax auditor posts, defendants
submit the affidavit of Henry Wessel (Chief of the Employment
Section, Personnel Office, Resources Management Division of the
IRS Chicago District) together with the detailed Qualification
Standards and Promotion Opportunity Announcements for the two
positions. Wessel's affidavit accurately portrays the differing
job requirements established by the documents themselves:
3. In general, the revenue agent position is
considered to be a professional accounting position,
whereas the tax auditor position is a technical
position concerned with the resolution of federal
income tax questions which do not involve
professional accounting issues or procedures. The
qualification requirements reflect this significant
difference. The GS-9 tax auditor position requires
four years of general experience and one year of
specialized experience which may be satisfied by the
performance of a variety of administrative duties. In
contrast, the GS-11 revenue agent position requires
four years of general experience and three years of
professional accounting experience. In terms of
educational qualifications, the GS-11 revenue agent
position requires 24 semester hours of college
accounting courses whereas the GS-9 tax auditor job
demands only 6 semester hours of accounting.
Even if it were to be assumed (and the record before the Court
does not so establish) that plaintiff has met the higher
requirements of the revenue agent job, the fact that the
performance requirements of the tax auditor position do not
necessitate the same skills bars recovery under the Act. Dunlop
v. General Electric Co., 401 F. Supp. 1353, 1360 n. 8 (W.D.Va.
None of plaintiff's several arguments on the subject of equal
skill rises to the level of creating a genuine issue of material
fact — the definitive test under Fed.R.Civ.P. 56(c). Most
particularly, plaintiff's contention that the qualification
standards in Exhibits
7A and 7B "should be given no weight" because they "each refer to
the entire range of tax auditors and revenue agents instead of
only the GS-9 tax auditor and GS-11 revenue agent" simply
misreads the Exhibits themselves. Though they do cover the
general requirement for all grades within the positions, they
specifically reflect the different requirements for each of
Accordingly the Court determines that on the basis of the
"equal skill" criterion alone plaintiff has not met the
requirements of the Act as a matter of law and defendants are
entitled to summary judgment.
There is no genuine issue as to any material fact relating to
the cause of action sought to be asserted by plaintiff in Count
III of the Complaint under the Equal Pay Act. Accordingly
defendants are entitled to a judgment under Count III as a matter
of law. Entry of such judgment is deferred until it can comprise
part of the entry of final judgment in this action.