Opinion
Civil Action No. 04-844.
January 27, 2005
MEMORANDUM
Pro se Plaintiff, Jeff Stanley Dorsey ("Dorsey"), alleges that he was paid less than a female employee for the same job in violation of the Equal Pay Act ("EPA"), 29 U.S.C. § 206(d). Before this Court are the Defendants' Motion for Summary Judgment and Plaintiff's Cross-Motion for Summary Judgment. For the reasons that follow, the Defendants' Motion for Summary Judgment is granted. Plaintiff's Cross-Motion for Summary Judgment is denied.
I. BACKGROUND
On or about September 19, 1999, Dorsey was employed by The Salvation Army as a case manager for the Stepping Stone Program at The Salvation Army located in Delaware County, Pennsylvania. (Am. Compl. ¶ 10). As a case manager, Dorsey assisted homeless clients in finding housing, employment, transportation, clothing and shelter. (Id. ¶ 11). Dorsey also executed referrals to other agencies for assisting the homeless clients according to their needs. (Id. ¶ 11). Dorsey alleges that Lucy Jones ("Jones"), also a case manager in the Stepping Stone Program, received at least $5.22 more an hour than himself and other male case managers performing the same job functions. (Id. ¶¶ 12-14).
Defendant, The Salvation Army, is a nonprofit organization. (Am. Compl. ¶ 2). Defendant, Captain Timothy Clark, is the Commanding Officer of The Salvation Army in Delaware County, Pennsylvania. (Id. ¶ 3). Defendant, Thomas McCaney, is the Director of the Stepping Stone Program. (Id. ¶ 4).
On or about February 13, 2004, Dorsey filed a pro se action in the Court of Common Pleas of Delaware County, Pennsylvania. (See Defs.' Not. Removal). The Defendants removed the action to this Court on February 26, 2004 because Dorsey's claims were being brought under the EPA, the Fair Labor Standards Act of 1938 ("FLSA"), 29 U.S.C. § 201 et seq. and Title VII of the Civil Rights Act of 1964 ("Title VII"), § 701 et seq., 42 U.S.C. § 2000e et seq. During his deposition, Dorsey clarified that his claim based upon Jones' higher wage brought pursuant to the EPA and the FLSA are exactly the same. (Defs.' Supplemental Attach. to Mot. Summ. J., p. 82) (confirming that Dorsey's claim under the FLSA is exactly the same as his claim under the EPA). Also during his deposition, Dorsey abandoned his discrimination claim under Title VII. (Id., p. 66-68, 87) (confirming that Dorsey is not asserting any claim under Title VII and he is making a claim based upon being paid less than Jones, not based upon his termination). Likewise, Dorsey abandoned any claims based upon any act for retaliation discrimination. (Id., p. 68).
"A pro se complaint must be held to less stringent standards than formal pleadings drafted by lawyers." London v. Pa. Bd. of Prob. and Parole, 135 F. Supp. 2d 612, 614 n. 5 (E.D. Pa. 2001) (citing Haines v. Kerner, 404 U.S. 519 (1972); Lewis v. Att'y Gen. of United States, 878 F.2d 714, 722 (3d Cir. 1989)). Since Dorsey is proceeding pro se I will construe his pleadings liberally. Haines, 404 U.S. at 520.
Dorsey, whose employment was terminated by The Salvation Army on December 19, 2001, originally claimed that his termination was based upon sex discrimination. (See Am. Compl.). Although Dorsey abandoned his Title VII claim during his deposition, his Cross-Motion for Summary Judgment and Opposition to Defendants' Motion for Summary Judgment includes some allegations of discrimination pursuant to Title VII. Even if Dorsey did not abandon his claim, he would be precluded from bringing a claim pursuant to Title VII because it is time-barred. On August 7, 2003, the Equal Employment Opportunity Commission ("EEOC") issued Dorsey a "Dismissal and Notice of Rights" letter informing him that he has the right to file a lawsuit based on his charge within 90 days of his receipt of the letter. (See Defs.' Not. Removal). "Section 2000e-5(f)(1) requires that claims brought under Title VII be filed within ninety days of the claimant's receipt of the EEOC right to sue letter." Figueroa v. Buccaneer Hotel Inc., 188 F.3d 172, 176 (3d Cir. 1999). "This requirement has been treated by the courts as a statute of limitations rather than a jurisdictional prerequisite to suit."Id. (citation omitted).
"[I]n the absence of other evidence, courts will presume that a plaintiff received [his] right-to-sue letter three days after the EEOC mailed it." Seitzinger v. The Reading Hosp. and Med. Ctr., 165 F.3d 236, 239 (3d Cir. 1999) (citations omitted). Applying this presumption to the instant case, and accounting for an intermediate weekend, Dorsey received the right to sue letter from the EEOC on or about August 12, 2003. Approximately ninety days from August 12, 2003 is November 12, 2003. Dorsey filed his Complaint in the state court on or about February 13, 2004 and it was removed to this Court on February 26, 2004. Thus, Dorsey's Title VII claim is untimely because he did not file his action within the requisite ninety day period. See Figueroa, 188 F.3d at 176 (noting that the Court of Appeals for the Third Circuit has held that "a claim filed even one day beyond th[e] ninety day window [for filing court action after receipt of right to sue letter] is untimely and may be dismissed absent an equitable reason for disregarding this statutory requirement."). Since Dorsey failed to timely file his Complaint, and there does not appear to be any equitable reason to disregard the ninety day period, Dorsey's Title VII claim is time-barred. Nevertheless, even if Dorsey was able to properly assert a Title VII claim, it would not withstand scrutiny because he has not demonstrated that the Defendants discriminated against him on the basis of his sex.
Dorsey's Amended Complaint included an allegation that the termination of his employment was based, in part, upon retaliation due to his numerous complaints about unequal pay. (See Am. Compl.). Since Dorsey has abandoned any claim based upon retaliation, I have not included any factual background or legal analysis regarding the issue of any alleged retaliation.
As a result, Dorsey's remaining claim regarding the issue of unequal pay is brought pursuant to the EPA and the FLSA. "The EPA exists within the Fair Labor Standards Act (FLSA)." Marburger v. Upper Hanover Township, 225 F. Supp. 2d 503, 507 (E.D. Pa. 2002); see also Sandom v. Travelers Mortg. Servs., Inc., 752 F. Supp. 1240, 1243 n. 3 (D.N.J. 1990) ("The EPA is an amendment to the Fair Labor Standards Act, 29 U.S.C. § 201 et seq."). Dorsey's claim is based upon an allegation of unequal pay, therefore, it will be examined pursuant to the EPA. The Defendants have moved for summary judgment arguing that Dorsey's claim fails in light of the Defendants' affirmative defense that they paid Jones a higher wage based upon her superior educational background and relevant experience. Dorsey filed a Cross-Motion for Summary Judgment and Opposition to Defendants' Motion for Summary Judgment. Upon consideration of the Motions, I conclude that the Defendants are entitled to summary judgment.
II. LEGAL STANDARD
Pursuant to Federal Rule of Civil Procedure 56(c), summary judgment is proper "if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The moving party has the initial burden of informing the court of the basis for the motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact.Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). An issue is genuine only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party.Anderson, 477 U.S. at 249. A factual dispute is material only if it might affect the outcome of the suit under governing law.Id. at 248.
To defeat summary judgment, the non-moving party cannot rest on the pleadings, but rather that party must go beyond the pleadings and present "specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(e). Similarly, the non-moving party cannot rely on unsupported assertions, conclusory allegations, or mere suspicions in attempting to survive a summary judgment motion. Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir. 1989) (citing Celotex, 477 U.S. at 325 (1986)). Further, the non-moving party has the burden of producing evidence to establish prima facie each element of its claim. Celotex, 477 U.S. at 322-23. If the court, in viewing all reasonable inferences in favor of the non-moving party, determines that there is no genuine issue of material fact, then summary judgment is proper. Id. at 322; Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 83 (3d Cir. 1987).
III. DISCUSSION
Dorsey claims that the Defendants paid him less than female employee, Jones, for substantially the same work in violation of the EPA. The EPA provides, in relevant part, as follows:
[n]o 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.29 U.S.C. § 206(d)(1). "Claims based upon the EPA follow a two-step burden shifting paradigm." Ryan v. Gen. Mach. Prods., 277 F. Supp. 2d 585, 596 (E.D. Pa. 2003) (citing Stanziale v. Jargowsky, 200 F.3d 101, 107 (3d Cir. 2000)). First, "[t]he plaintiff must . . . establish a prima facie case by demonstrating that employees of the opposite sex were paid differently for performing `equal work,' which is work of substantially equal skill, effort and responsibility, under similar working conditions." Id. (citing Stanziale, 200 F.3d at 107). "In order to prove an EPA claim, a plaintiff need only establish that [he] was paid differentially because of [his] sex with respect to a single [female] employee." Id. (citations omitted).
Once a plaintiff meets his initial burden, "[t]he burden of persuasion then shifts to the employer to demonstrate the applicability of one of the four affirmative defenses available under the EPA, which are: (1) a bona fide seniority system; (2) a merit system; (3) a system which measures earnings by quantity or quality of production; or (4) a differential based on any factor other than sex." Id. (citation omitted). "Because the employer bears the burden of proof at trial, in order to prevail at the summary judgment stage, the employer must prove at least one affirmative defense so clearly that no rational jury could find to the contrary." Id. (citation and internal quotation marks omitted). "Not only must the employer submit evidence from which a reasonable factfinder could conclude that the employer's proffered reasons could explain the wage disparity, but the employer must produce sufficient evidence from which a reasonable factfinder could conclude that the proffered reasons actually motivated the wage disparity." Id. (citation omitted).
Assuming arguendo that Dorsey has met his initial burden of establishing a prima facie case under the EPA, the Defendants base their Motion for Summary Judgment upon the premise that they established the affirmative defense of a "differential based on any factor other than sex." Specifically, the Defendants assert that Jones was paid a higher wage due to her superior educational background and relevant experience. In support of their Motion, the Defendants argue that, as compared to Dorsey, Jones has superior educational and experiential qualifications. The Defendants state that Jones' educational background and experience formed the basis of the decision as to where, within the salary range, her salary was to fall.
Regarding the issue of education, the Defendants point to Jones' educational experience which includes a high school diploma and two years at Delaware County Community College. (Defs.' Mot. Summ. J. at 6; Ex. A). The Defendants show that Dorsey dropped out of high school in the eleventh grade and did not graduate. (Id. at 4). The Defendants argue that Jones' educational background was given weight regarding her pay rate as a case manager. (Id. at 6).
Dorsey admits that he dropped out of high school in the eleventh grade and did not graduate. (Pl.'s Cross-Mot. Summ. J. and Opp'n Defs.' Mot. Summ. J. at 4). In his deposition, Dorsey stated that he took some high school equivalency courses, as well as some college courses. (See Defs.' Supplemental Attach. to Mot. Summ. J.). Dorsey stated that he obtained enough credits to receive his high school diploma, but he never converted the credits. (Id., p. 18-20). Consequently, Dorsey never formally received a high school diploma or a General Equivalency Diploma. (Id.).
As for the issue of counseling experience, the Defendants point out that Jones had ten years of counseling experience at Delaware County Women Against Rape. (Id.; Ex. A). According to the Defendants, Jones' counseling experience was given great weight based upon the counseling nature of the job of case manger. In contrast to Jones' counseling experience, the Defendants disclose that Dorsey had limited counseling experience. From 1989 through 1991, Dorsey was employed as a counselor at the Juvenile Evaluation Center. (Defs.' Supplemental Attach. to Mot. Summ. J., p. 20-21, 23). In that position, Dorsey "was on a lock unit counseling boys from 12 to 18 years old. Activities with clients. Helping with homework . . . [and] going to meetings with other team members." (Id., p. 24). Regarding counseling, Dorsey stated that "mostly I would listen to them and then I would tell them to listen to yourself." (Id., p. 26). Dorsey stated that most of his advising was based upon his personal experience, as well as "[w]hatever [he] learned in classes . . . [or] workshops." (Id., p. 26-31). Dorsey was also a night counselor at Black Mountain Alcohol and Drug Counseling Center where he would "[d]o a running log, make rounds, make sure everybody's in their rooms." (Id., p. 33-34). Dorsey stated that he really did not give advice in his position as a night counselor. (Id., p. 34). Dorsey was subsequently hired by The Salvation Army as a shelter monitor which did not require any counseling responsibilities. (Id., p. 61). In 1999, Dorsey became a case manager for The Salvation Army Stepping Stone Program. (Am. Compl. ¶ 10). In light of the varying counseling experience possessed by Jones and Dorsey, the Defendants argue that Jones' ten years of counseling experience was given great weight.
Over the years, Dorsey has been employed in various occupations. (See Defs.' Supplemental Attach. to Mot. Summ. J.). Some of his non-counseling related employment consisted, in part, of the following: performing various odd jobs; janitor; healthcare technician; nursing assistant; shelter monitor; and supervisor at Community Action Agency of Delaware County. (Id.). Dorsey is also a certified alcohol and drug counselor, a paralegal and a public notary. (Pl.'s Cross-Mot. Summ. J. and Opp'n Defs.' Mot. Summ. J. at 5). Dorsey apparently owns and operates Dorsey's Paralegal and Notary Service, as well as a child day care. (Id.).
As mentioned earlier, in order to prevail at the summary judgment stage, "[n]ot only must the employer submit evidence from which a reasonable factfinder could conclude that the employer's proffered reasons could explain the wage disparity, but the employer must produce sufficient evidence from which a reasonable factfinder could conclude that the proffered reasons actually motivated the wage disparity." Ryan, 277 F. Supp. 2d at 596. The Defendants proffer Jones' education and counseling experience as reasons explaining the wage disparity. However, the Defendants also provide evidence from which a reasonable factfinder could conclude that the proffered reasons actually motivated the wage disparity. The Defendants accomplished this by submitting the affidavit of Carla Pickard ("Pickard"), the Human Resources Director for the Pennsylvania and Delaware Division of The Salvation Army. (See Defs.' Mot. Summ. J., Ex. B). In her affidavit, Pickard stated that she had "first hand knowledge and experience pertaining to the decision making process regarding the respective salaries paid to Jeff Dorsey and Lucy Jones during their employment with The Salvation Army." (Id. ¶ 2). According to Pickard, "[t]he factors which are considered in the determination of salary include educational background and employment background." (Id. ¶ 7). Pickard stated that "Ms. Jones' salary which was higher than Mr. Dorsey's, was based upon the fact that she had superior educational and job experience to that of Mr. Dorsey." (Id. ¶ 8). Pickard went on to state that "[s]pecifically, great weight was given to the fact that [Jones] had 10 years of experience in a counseling position, relevant experience with The Salvation Army, a high school diploma and two years of college." (Id.).
Pickard's affidavit affirmatively states that Jones' higher wage was, in fact, the result of her educational and experiential qualifications. Dorsey argues that Pickard's affidavit is untrue, but does not produce any meaningful evidence establishing that it is false. (Pl.'s Cross-Mot. Summ. J. and Opp'n Defs.' Mot. Summ. J. at 5). Notably, Dorsey does not proffer any evidence concerning the decision making process, or the factors that were actually weighed, regarding the respective salaries paid to Jones and himself. Dorsey argues that the position of case manager did not require the following qualifications: counselor skills; ten years counseling experience; or education. However, the Defendants never argue that those qualifications were required for the case manager position. The Defendants, through Pickard's affidavit, show that education and counseling experience were the factors that were weighed in the determination of Jones' salary. As a result of Pickard's affidavit, the Defendants establish that it was the combination of Jones' education and experience which caused her salary to be at higher rate than Dorsey's salary.
Dorsey asserts that Lucy Jones' salary was higher than the male case managers' salaries because she was very close friends with Captain Gillnets of The Salvation Army and his wife. (Pl.'s Cross-Mot. Summ. J. and Opp'n Defs.' Mot. Summ. J. at 4). Specifically, Dorsey states that "Lucy Jones['] salary was not [based] on education, experience, or skills. It was base[d] on friendship." (Id.). "Under the EPA, an employer is proscribed from discriminating, on the basis of gender, by paying lower wages to employees of one gender than those paid to employees of the other gender who are performing equal work on jobs that require equal skill and responsibility." Gaul v. ZEP Mfg. Co., No. 03-2439, 2004 WL 234370, at *3 (E.D. Pa. Jan. 30, 2004) (citing 29 U.S.C. § 206(d)(1)). Since the EPA proscribes discrimination based upon gender, the Defendants' alleged actions based upon friendship are not actionable. It is further noted that neither Dorsey, nor the record, reveal any decision by the Defendants that was based upon gender.
Through the affidavit of Pickard, the Defendants have proffered evidence from which a reasonable factfinder could conclude that the wage disparity at issue was actually motived by the Defendants' affirmative defense that Jones' higher pay rate was due to "a differential based on any other factor than sex." In other words, the combination of Jones' educational background and counseling experience. In light of their proffered reasons, as well as Pickard's affidavit confirming that Jones' higher wage was due to the Defendants' proffered factors of education and experience, the Defendants have proven their affirmative defense based upon "a differential based on any other factor than sex" so clearly that no rational jury could find to the contrary. As a result, the Defendants are entitled to summary judgment.
An appropriate Order follows.
ORDER
AND NOW, this 27th day of January, 2005, upon consideration of the Defendants' Motion for Summary Judgment (Doc. No. 21), and Plaintiff's Response thereto, it is hereby ORDERED that the Defendants' Motion is GRANTED. IT IS FURTHER ORDERED that Plaintiff's Cross-Motion for Summary Judgment (Doc. No. 24) is DENIED.