The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
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
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.
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 ...