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September 8, 1980


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.

Defendants have moved for summary judgment as to Count III of the Complaint,*fn1 which alleges a violation of the Equal Pay Act of 1963 (the "Act"), 29 U.S.C. § 206(d)(1):

    (d)(1) No employer having employees subject to any
  provisions of this section shall discriminate, within
  any establishment in which such employees are
  employed, between employees on the basis of sex by
  paying wages to employees in such establishment at a
  rate less than the rate at which he pays wages to
  employees of the opposite sex in such establishment
  for equal work on jobs the performance of which
  requires equal skill, effort, and responsibility, and
  which are performed under similar working conditions,
  except where such payment is made pursuant to (i) a
  seniority system; (ii) a merit system; (iii) a system
  which measures earnings by quantity or quality of
  production; or (iv) a differential based on any other
  factor other than sex: Provided, That an employer
  who is paying a wage rate differential in violation
  of this subsection shall not, in order to comply with
  the provisions of this subsection, reduce the wage
  rate of any employee.

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 16-17:

  If plaintiff is able to prove at trial that there is
  significant disparity in the assignment of males
  and females to the positions of Tax Auditor and
  Revenue Agent and that as a Tax Auditor she performed
  duties substantially equal to those performed by
  Revenue Agents but at an unequal rate of pay, she
  will be entitled to relief under the Equal Pay Act.
  [emphasis supplied]

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 ...

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