. .

Case 2:00-cv-01674-RDP-SRW Document 78 Filed 11/07/2001 Page 1 of 22
<- ..

-

~'L E D HE (; f. I ![ I'BE UNITED STATES DISTRICT COURT [

.
j

MIDDLE DISTRICT OF ALABAMA

VICKIKor;i .DCi)

*

et. al.,

*

vs.
STATE OF ALABAMA DEPARTMENT OF VETERANS AFFAIRS AND THE ALABAMA STATE PERSONNEL DEPARTMENT,
Defendants.

* * * * CIVIL ACTION NO: 00-T-1674-N * * * * * * *

SECOND AMENDED COMPLAINT

I. PRELIMINARY STATEMENT

Plaintiffs and the Plaintiff Class hereby further amend their

complaint, having now received statutory notices of right-to-sue,

to establish and perfect jurisdiction for their claims asserted

under 42 U.S.C. § 2000(e), et. seg., Title VII of the Civil Rights

Act of 1964, as amended.

1. Plaintiffs, present and former employees of the State of

Alabama Department of Veterans Affairs, seek declaratory and

injunctive relief, backpay, prejudgment interest upon backpay,

frontpay, liquidated damages, compensatory damages, expenses, and

attorney fees from Defendants arising from Defendants' violation of

the rights guaranteed to Plaintiffs under the Equal Pay Act, 29

U.S.C. Section 206(d) (1) and under the Equal Protection Cause of

the United States Constitution and Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000(e), et. seg., including 42 U.S.C. §

2000e(5) (f), as amended by the Civil Rights Act of 1991, and the

remedy provided under 42 U.S.C. § 1983. The named Plaintiffs bring

, , " " Case 2:00-cv-01674-RDP-SRW Document 78 Filed 11/07/2001 Page 2 of 22
their equal pay action as a collective action under 29 U.S.C. § 216(b) on behalf of themselves and other female employees similarly situated subject to receiving written consent from all such employees to be parties to this action. Finally, the named Plaintiffs bring this action as a class action under Title VII on behalf of all female employees similarly situated.
II. JURISDICTION 2. This Court has jurisdiction under 28 U.S.C. Sections 1331 and 1343 (a) (1) , (3) , (4) . 3. Plaintiffs' claims are authorized by 29 U.S.C. Sections 216(b) and 260, 28 U.S.C. Sections 2201 and 2202 (declaratory judgments), and Fed. R. Civ. P. 57,42 U.S.C. § 2000(e), et. seg., and 42 U.S.C. § 1983 and 1988. 4. Additionally, one or more of the named Plaintiffs have filed charges of gender discrimination with the Equal Employment Opportunity Commission and have received statutory notices of right-to-sue which are appended to this complaint as "Exhibit BR.
III. PARTIES 5. Plaintiff Vickie K. Prewett is a female resident of Baldwin County, Alabama and is beyond the age of majority. 6. Plaintiff Christine Hale is a female resident of Perry County, Alabama and is beyond the age of majority. 7. Plaintiff Deborah Coker is a female resident of Butler County, Alabama and is beyond the age of majority.
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Case 2:00-cv-01674-RDP-SRW Document 78 Filed 11/07/2001 Page 3 of 22

8. Plaintiff Vicky Brown is a female resident of Pike County, Alabama and is beyond the age of majority.
9. Plaintiff Lisa Jackson is a female resident of Montgomery County, Alabama and is beyond the age of majority.
10. Plaintiff Teresa Thomason is a female resident of Colbert County, Alabama and is beyond the age of majority.
11. Susan w. Collier is a female resident of Mobile County,
Alabama and is beyond the age of majority 12. Plaintiff Valerie Porter Williams is a female resident of
Russell County, Alabama and is beyond the age of majority. 13. Plaintiff Betty Dubose is a female resident of Bullock
County, Alabama and is beyond the age of majority. 14. Plaintiff Sandra M. Bro~is a female resident of Jackson
County, Alabama and is beyond the age of majority.
-/
15. Plaintiff Deborah G. Murphree is a female resident of Calhoun County, Alabama and is beyond the age of majority.
16. Plaintiff Cecelia J. Talley - is a female resident of Etowah County, Alabama and is beyond the age of majority.
17. Plaintiff Jan Robbins "is a female resident of Ta11edega County, Alabama and is beyond the age of majority .
./
18. Plaintiff Sue Judkins is a female resident of Cullman County, Alabama and is beyond the age of majority.
/
19. Plaintiff Shirl J. Brogdon is a female resident of Etowah County, Alabama and is beyond the age of majority.
20. Defendant State of Alabama, Department of Veterans Affairs, is the duly constituted agency of the State of Alabama
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created pursuant to Alabama Code § 31-5-1, et. seg. to provide assistance to veterans of the United Stated A~ed Forces.
21. Defendant the Alabama State Personnel Department is the agency of Alabama created under Alabama Code § 36-26-1, et. seg. which administers the State of Alabama personnel and merit system.
IV. FACTUAL ALLEGATIONS 22. Named Plaintiffs Vickie le. Prewett, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Valerie Porter Williams and Betty Dubose have each been employed for more than three years in the position of County Veterans Affairs Assistant (classified as Administrative Support Assistant) with Defendant Alabama Department of Veterans Affairs. In that position each of these named Plaintiffs perfo~s many duties related to the delivery of counseling and other services to citizens of Alabama who are veterans, fo~er members of the A~ed Services of the United States of America. 23. Named Plaintiffs Teresa Thomason and Susan W. Collier were employed within the last two years in the position of County Veterans Affairs Assistant (classified as administrative support assistant) with Defendant Alabama Department of Veterans Affairs. In that position they perfo~ed many duties related to the delivery of counseling and other services to citizens of Alabama who are veterans, fo~er members of the A~ed Services of the United States of America. 24. Throughout the period in which the named Plaintiffs enumerated in paragraphs 22 and 23 above have perfo~ed these
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Case 2:00-cv-01674-RDP-SRW Document 78 Filed 11/07/2001 Page 5 of 22

duties and continuing to the present date, Defendants have employed males in the position of "Veteran Service Officer," including one such male employed in close proximity to each of these named Plaintiffs, at a salary level substantially higher than the named Plaintiffs. The duties the males perform are essentially the same as the duties of the named Plaintiffs, requiring equal skill, effort and responsibility and performed under similar working conditions as those performed by the named Plaintiffs. Specifically, each of the named Plaintiffs have been employed in close proximity to a Veteran Service Officer, a male performing equal work, who has been compensated and is compensated at a rate as much as fifty percent higher than the rate of compensation paid by Defendants to each named Plaintiff.
25. On numerous occasions it has been called to the attention of Defendants that they were compensating female administrative assistants, such as the Plaintiffs in the instant litigation, at levels considerably below the compensation paid to male Veteran Service Officers despite the fact that the two groups of employees were performing equal work. However, Defendants have persisted in their policy of providing the female administrative assistants with unequal pay, discriminating against them on account of their gender, female.
26. At all times relevant to this litigation Defendants have known that Plaintiffs were receiving unequal pay and were being discriminated against in salary on the basis of sex, female, and had no reasonable grounds for believing that their action did not
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Case 2:00-cv-01674-RDP-SRW Document 78 Filed 11/07/2001 Page 6 of 22

violate the law, but Defendants have intentionally and willfully maintained this practice and refused to correct it.
27. On November 30, 2000 named Plaintiffs Vickie K. Prewett, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Valerie Porter Williams and Betty Dubose filed charges of discrimination with the United States Equal Employment Opportuni ty Commission addressing the sex discrimination described above. On September 26, 2001 the United States Equal Employment Opportunity Commission issued statutory notices of right-to-sue to those Plaintiffs which are attached hereto as Exhibit B.
28. As a result of Defendants' discriminatory practice of compensating male Veteran Service Officers at a higher rate than that of the female administrative support assistants described above, even though males are performing work equal to that of the Plaintiffs, and as a result of Defendants' repeated failure and refusal to rectify this sex discrimination, the Plaintiffs in this action, and the Plaintiff Class subsequently described herein have not only been denied the salaries to which they should be entitled but have also incurred severe mental distress and emotional suffering.
29. Plaintiff Susan W. Collier, and, upon information and belief, other former female County Veteran Affairs Assistants employed by Defendants within the last three years, were constructively terminated by Defendants' policy of grossly underpaying said females, by comparison to male Veteran Service Officers, which presented working conditions which would be deemed intolerable to
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Case 2:00-cv-01674-RDP-SRW Document 78 Filed 11/07/2001 Page 7 of 22
a reasonable person and which caused Collier and others to resign or retire from those positions as a result of Defendants' discriminatory salary policies.
30. Throughout the State of Alabama and possibly beyond there are many present and former female administrative support assistants employed by Defendants in proximity to male Veteran Service Officers and who are being or have been paid unequal pay under circumstances closely similar or identical to those described for the named Plaintiffs above. Accordingly, the Plaintiffs, subject to the requirements and restrictions of Section 16(b) of the Fair Labor Standards Act, 29 U.S.C. § 216(b), bring this action on behalf not only of themselves but on behalf of the other female employees similarly situated and suffering from violation of their rights under the Equal Pay Act. Plaintiffs incorporate into their SECOND AMENDED COMPLAINT by reference the written consents of the named Plaintiffs to be parties to this action, previously attached to their original and amended complaint as II Exhibi t A" and the subsequently filed written consents of Sandra M. Brown, Deborah G. Murphree, Cecelia J. Talley, Jan Robbins, Sue Judkins and Shirl J. Brogdon. Plaintiffs have previously filed a motion with the Court pursuant to the provisions of 29 U.S.C. § 216(b) to proceed with contacting all other similarly situated females requesting their written consent to become parties in this collective action and will amend this complaint appropriately if additional written consents are received.
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"
v. COUNT ONE - EQUAL PAY ACT CLAIM
31. Plaintiffs reaver and incorporate by reference the allegations set out in paragraphs 1 through 30 above.
32. Defendants have discriminated against Plaintiffs by paying salaries to Plaintiffs at a rate less than the rate at which they pay to an employee of the opposite sex for equal work on a job the performance of which requires equal skill, effort and responsibility and which are performed under similar working conditions to those experienced by Plaintiffs. Accordingly Defendants have violated the Federal Pay Act, 29 U.S.C. Section 206(d) (1).
33. Defendants' violations of the EPA have been intentional and willful and Defendants have had no reasonable grounds for believing that their actions did not violation the law.
34. Through the above-described actions of Defendants, Plaintiffs have been damaged in that they has been denied a proper and appropriate salary as described above.
PRAYER FOR RELIEF, EQUAL PAY ACT CLAIMS WHEREFORE, the premises considered, Plaintiffs respectfully pray: 1. That this Court upon hearing, issue a declaratory judgment that the acts and practices of the Defendants, described above, have willfully violated Plaintiffs' rights under the Equal Pay Act, 29 U.S.C. Section 206(d) (1), et. seq. 2. That this Court, upon hearing, issue a permanent injunction affirmatively enjoining Defendants from failing to
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Case 2:00-cv-01674-RDP-SRW Document 78 Filed 11/07/2001 Page 9 of 22
compensate Plaintiffs at a salary level commensurate with that paid to male supervisors performing jobs equal to that performed by Plaintiffs.
3. That this Court, upon hearing, award to Plaintiffs back wages pursuant to 29 U.S.C. Section 2l6(b) and prejudgment interest upon back wages.
4. That this Court award to Plaintiffs pursuant to 29 U. S. C. Section 2l6(b) liquidated damages in amounts equal to the awards of backpay, plus prejudgment interest, prayed for above.
5. That this Court award reasonable fees to the Plaintiffs' attorneys and litigation expenses pursuant to 29 U.S.C. Section 216(b) and allow Plaintiffs their costs pursuant to Fed. R. Civ. P. 54(d), and award such additional or alternative relief as may be just, proper and equitable.
VI. COUNT TWO - CLAIMS UNDER TITLE VII AND THE EQUAL PROTECTION CLAUSE FOR SEX DISCRIMINATION
35. Plaintiffs reaver and incorporate by reference the allegations set out in paragraph 1 through 30 above.
36. In their actions described above, Defendants have intentionally discriminated against Plaintiffs on the basis of their sex by intentionally failing and refusing to pay them salaries equal to those paid to males performing equal work.
PRAYER FOR RELIEF, TITLE VII AND EQUAL PROTECTION CLAIM WHEREFORE, Plaintiffs respectfully pray this Court to advance this case on the docket, order a speedy hearing at the earliest,
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Case 2:00-cv-01674-RDP-SRW Document 78 Filed 11/07/2001 Page 10 of 22
practical date, and upon such hearing to: (A) Grant a preliminary and permanent injunction
enjoining Defendant, their agent, successors, employees, attorneys and those acting in concert with them at their direction for failing to compensate Plaintiffs at a level equal to the salary Defendants are paying to the highest paid male performing work equal to that of Plaintiffs; and
(B) Grant Plaintiffs a declaratory judgment that the policies and practices complained of herein violate the provisions of 42 U.S.C. § 2000(e), et. seg., 42 U.S.C. § 1983 and the Equal Protection Clause of the United States Constitution; and
(C) Issue injunctive and equitable relief determining that Plaintiff Susan W. Collier has been constructively terminated from her position by Defendants' discriminatory salary policies and reinstate said Plaintiff into her previous position with proper salary or award frontpay to compensate her for her ongoing loss of salary incurred as a result of her constructive termination by Defendants.
(D) Award Plaintiffs backpay to compensate them for the loss of salary they have incurred by being paid less than males performing equal work; and
(E) Award Plaintiffs compensatory damages for Plaintiffs' emotional pain and suffering, inconvenience, mental anguish and loss off enjoyment of life; and
(F) Award Plaintiffs their costs and expenses in prosecuting this action, including an award of reasonable attor-
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neys' fees; and (G) Grant Plaintiffs such other and further relief as
equity and justice require.
CLASS ACTION, TITLE VII AND EQUAL PROTECTION CLAIMS 37. Named Plaintiffs Vickie Prewett, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Valerie Porter Williams and Betty Dubose also bring this action on their own behalf and, pursuant to Rules 23(b) (2) and (3) of the Federal Rules of Civil Procedure on behalf of a class of Plaintiffs described as:
All adult females in Alabama who, at any time since two years before the filing of the present lawsuit have been employed by Defendants as County Veterans Affairs Assistants (Administrative Support Assistants) doing work equal to males employed as Veteran Service Officers but receiving lesser, unequal pay. 38. The class of persons Plaintiffs seek to represent is so numerous that joinder of all members is impractical. There are questions of law and fact common to the class. Plaintiffs' claims are typical of those of the class. Plaintiffs will, in their representative capacities fairly and adequately protect the interest of the class.
TITLE VII/EQUAL PROTECTION CLASS FACTUAL ALLEGATIONS 39. For at least two years prior to the filing of this action
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Case 2:00-cv-01674-RDP-SRW Document 78 Filed 11/07/2001 Page 12 of 22
the members of the Plaintiff class, including the named Plaintiffs, have been employed as County Veterans Affairs Assistants {Administrative Support Assistants} in Alabama and have been doing the same work as males employed as Veteran Service Officers while the males have received salaries of approximately fifty percent higher than the salaries received by members of the Plaintiff class.
40. Defendants have maintained a discriminatory salary policy and schedule as described above intentionally and willfully discriminating against the members of the Plaintiff class on account of their gender, female.
41. The members of the class have suffered damage in that they have received discriminatory lower salaries, as compared to the male comparators, have been constructively terminated from their positions and have also suffered severe mental suffering and emotional distress.
PRAYER FOR CLASS RELIEF WHEREFORE, the premises considered, the Plaintiff class respectfully prays that this Honorable Court:
(A) Certify this action as a class action with respect to the above-described claims arising under 42 U.S.C. § 2000(e), § 1981(a) and § 1983 and the Equal Protection Clause of the United States Constitution and direct issuance of notice to all class members of the pendency of this action: and
(B) Upon appropriate hearings grant a declaratory judgment that the policies and practices complained of herein
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Case 2:00-cv-01674-RDP-SRW Document 78 Filed 11/07/2001 Page 13 of 22
violate the provisions of 42 U.S.C. § 2000(e), et. seq., and the Equal Protection Clause of the United States Constitution and that the members of Plaintiff class are entitled to a remedy under 42 U.S.C. § 1983; and
(C) Grant a preliminary and permanent injunction enjoining Defendants, their agents, successors, employees, attorneys and those acting in concert with them or at their discretion from failing to compensate all members of the Plaintiff class at levels equal to the salaries Defendants are paying to the highest paid males performing work equal to that of members of the Plaintiff class, reinstating or awarding frontpay to all members of the Plaintiff class who have been constructively terminated from their positions; and
(D) Award each member of the Plaintiff class backpay to compensate her for the loss of salary she has incurred by being paid less than males performing equal work; and
(E) Award each member of the Plaintiff class compensatory damages for her emotional pain and suffering, inconvenience, mental anguish and loss of enjoyment of life occasioned by Defendants' discrimination against her on the basis of gender; and
(F) Award the Plaintiff class its costs and expenses in prosecuting this action, including an award of reasonable attorneys' fees; and
(G) Grant the Plaintiff class such other and further relief as justice requires.
Respectfully submitted this the ~~ay of September,
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Case 2:00-cv-01674-RDP-SRW Document 78 Filed 11/07/2001 Page 14 of 22

2001.

HENRY H. CADDELL ASB-9244-L53H THIRY & CADDELL Attorney for Plaintiffs
RICHARD L. THIRY ASB-1906-R73R THIRY & CADDELL Attorney for Plaintiffs
GREGORY B. STEIN ASB-1107-I51G STEIN & BREWSTER Attorney for Plaintiffs

OF COUNSEL:
RHONDA BROWNSTEIN, ESQ. ASB-3193-064R SOUTHERN POVERTY LAW CENTER Post Office Box 2087 Montgomery, Alabama 36102-2087

ADDRESS OF COUNSEL:
THIRY & CADDELL 1911 Government Street Mobile, Alabama 36606 (251) 478-8880
STEIN & BREWSTER Post Office Box 1051 Mobile, Alabama 36633-1051 (251) 433-2002

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Case 2:00-cv-01674-RDP-SRW Document 78 Filed 11/07/2001 Page 15 of 22

CERTIFICATE OF SERVICE
1~ay I, Henry H. Caddell, hereby certify that on this the
of September, 2001, a true and correct of the foregoing was-sirved on all opposing counsel by placing same in the United States Mail, postage prepaid and properly addressed to:
Alice A. Byrne, Esq. State Personnel Department 64 North Union Street, Suite 316 Montgomery, Alabama 36130
Margaret L. Flemming, Esq. Assistant Attorney General 11 South Union Street Montgomery, Alabama 36130-0000

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Case 2:00-cv-01674-RDP-SRW

Document

78 U.S.

Filed 11/07/2001 Page
Departml~".;'. AJusti.ce

16

oEf X22HIBIT

B

Civil Rights Division NOTICE OF RIGHT TO SUE
WITHIN 90 DAYS

CERTIFIED MAIL 0922 1.775
Ms. Vickie K. Prewett c/o Gregory B. stein, Esquire Law Offices of stein and Brewster Attorneys at Law Post Office Box 1.051. Mobile, AL 36633-1.051.

Employment Litigation Section P.D. Bcu: 65968 Washington. DC 20035-5968
September 13, 2001

Re: EEOC Charge Against State of Alabama, Dept. of Veterans' Affairs, et al. No. 1.30A1.0677

Dear Ms. Prewett:
Because you filed the above charge with the Equal Employment ~ Opportunity Commission, and more than 180 days have elapsed since
the date the Commission assumed jurisdiction over the charge, and no suit based thereon has been filed by this Department, and because you through your attorney have specifically requested this Notice, you are hereby notified that you have the right to institute a civil action under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e, et seq., against the above-named respondent.
If you choose to commence a civil action, such suit must be filed in the appropriate Court within 90 days of your receipt of this Notice.
This Notice should not be taken to mean that the Department of Justice has made a judgment as to whether or not your case is meritorious.
Sincerely,

Ralph F. Boyd, Jr. Assist nt Attorney General
Ci 1 Rights Division
by ~~F1::::::rrrCivil Rights Analyst Employment Litigation Section

cc: Birmingham District Office, EEOC State of Alabama, Dept. of Veterans' Affairs, et al.

..

Case 2:00-cv-01674-RDP-SRW Document 78 u.sF. iDleedpa1r1t/m07\r./2-_0,o0f1JustPicaege 17 of 22

Civil Rights Division NOTICE OF RIGHT TO SUE
WITHIN 90 DAYS

CERTIFIED MAIL 0922 1775
Ms. Christine B. Hale c/o Gregory B. Stein, Esquire Law Offices of Stein and Brewster Attorneys at Law Post Office Box 1051 Mobile, AL 36633-1051

Employment Litigation Section P.O. Box 65968 Washington, DC 20035-5968
September 13, 2001

Re: EEOC Charge Against State of Alabama, Dept,. of Veterans' Affairs, et al. No. 130A10678

Dear Ms. Hale:
Because you filed the above charge with the Equal Employment Opportunity Commission, and more than 180 days have elapsed since the date the Commission assumed jurisdiction over the charge, and no suit based thereon has been filed by this Department, and because you through your attorney have specifically requested this Notice, you are hereby notified that you have the right to institute a civil action under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e, et seq., against the above-named respondent.
If you choose to commence a civil action, such suit must be filed in the appropriate Court within 90 days of your receipt of this Notice.
This Notice should not be taken to mean that the Department of Justice has made a judgment as to whether or not your case is meritorious.
Sincerely,

Ralph F. Boyd, Jr.
Assista t Attorney General Civ' Rights Division
by . ~. ~Ocrv---

Karen L. Ferguson Civil Rights Analyst Employment Litigation Section

cc: Birmingham District Office, EEOC State of Alabama, Dept. of Veterans' Affairs, et al.

· .

Case 2:00-cv-01674-RDP-SRW Document 78 Filed 11/07/2001 Page 18 of 22

~

U.S. Departm... _ Jf Justice

Civil Rights Division NOTICE OF RIGHT TO SUE
WITHIN 90 DAYS

CERTIFIED MAIL 0922 1775
Ms. Deborah Coker c/o Gregory B. Stein, Esquire Law Offices of Stein and Brewster Attorneys at Law Post Office Box 1051 Mobile, AL 36633-1051

Employment Litigation Section P.O. Box 65968 Washington, DC 20035-5968
September 13, 2001

Re: EEOC Charge Against State of Alabama, Dept .. of Veterans' Affairs, et al. No. 130A10679

Dear Ms. Coker:
Because you filed the above charge with the Equal Employment ~ Opportunity Commission, and more than 180 days have elapsed since
the date the Commission assumed jurisdiction over the charge, and no suit based thereon has been filed by this Department, and because you through your attorney have specifically requested this Notice, you. are hereby notified that you have the right to instit~te a civil action under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e, et seq., against the above-named respondent.
If you choose to commence a civil action, such suit must be filed in the appropriate Court within 90 days of your receipt of this Notice.
This Notice should not be taken to mean that the Department of Justice has made a judgment as to whether or not your case is meritorious.

Sincerely,

Ralph F. Boyd, Jr. Assistan Attorney General
Civi Rights Division
by ~~e~~

Civil Rights Analyst Employment Litigation Section

cc: Birmingham District Office, EEOC State of Alabama, Dept. of Veterans' Affairs, et al.

..

Case 2:00-cv-01674-RDP-SRW Document 78 u:sF. iDleedp1a1r/0t7m/2~0o0f1JustPicaege 19 of 22

Civil Rights Division NOTICE OF RIGHT TO SUE
WITHIN 90 DAYS

CERTIFIED MAIL 0922 1775
Ms. Vicky R. Brown c/o Gregory B. Stein, Esquire Law Offices of Stein and Brewster Attorneys at Law Post Office Box 1051 Mobile, AL 36633-1051

Employment Litigation Section P.o. Box 65968 Washington. DC 20035-5968
September 13, 2001

Re: EEOC Charge Against State of Alabama, Dept. of Veterans' Affairs, et al. No. 130A10680

Dear Ms. Brown:
Because you filed the above charge with the Equal Employment Opportunity Commission, and more than 180 days have elapsed since the date the Commission assumed jurisdiction over the charge, and no suit based thereon has been filed by this Department, and because you through your attorney have specifically requested this Notice, you are hereby notified that you have the right to institute a civil action under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e, et seq., against the above-named respondent.
If you choose to commence a civil action, such suit must be filed in the appropriate Court within 90 days of your receipt of this Notice.
This Notice should not be taken to mean that the Department of Justice has made a judgment as to whether or not your case is meritorious.
Sincerely,

Ralph F. Boyd, Jr.

Assistant Attorney General

r;:::;:;:;~ by

~ Karen L. Ferguson

Civil Rights Analyst

Employment Litigation Section

cc: Birmingham District Office, EEOC State of Alabama, Dept. of Veterans' Affairs, et al.

· .

Case 2:00-cv-01674-RDP-SRW Document 78 Filed 11/07./2~001 Page 20 of 22

U.S. Departm of Justice '"

Civil Rights Division NOTICE OF RIGHT TO SUE
WITHIN 90 DAYS

CERTIFIED MAIL 0922 ~775
Ms. Lisa P. Jackson c/o Gregory B. Stein, Esquire Law Offices of stein and Brewster Attorneys at Law Post Office Box 1051 Mobile, AL 36633-1051

Employment Litigation Section P.O. Box 65968 Washington, DC 20035-5968
September 13, 2001

Re: EEOC Charge Against State of Alabama, Dept. of Veterans' Affairs, et al. No. 130A~0681

Dear Ms. Jackson:
Because you filed the above charge with the Equal Employment ~ Opportunity Commission, and more than 180 days have elapsed since
the date the Commission assumed jurisdiction over the charge, and no suit based thereon has been filed by this Department, and because you through your attorney have specifically requested this Notice, you are hereby notified that you have the right to institute a civil action under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e, et seq., against the above-named respondent.
If you choose to commence a civil action, such suit must be filed in the appropriate Court within 90 days of your receipt of this Notice.
This Notice should not be taken to mean that the Department of Justice has made a judgment as to whether or not your case is meritorious.

Sincerely,

Ralph F. Boyd, Jr. Assistant Attorney General
}~r=r~ c~ Rights Division
by

Civil Rights Analyst Employment Litigation Section

cc: Birmingham District Office, EEOC State of Alabama, Dept. of Veterans' Affairs, et al.

..

Case 2:00-cv-01674-RDP-SRW Document 78 Filed 11/07/2001 Page 21 of 22

,~.

U.S. Departm. of Justice

Civil Rights Division NOTICE OF RIGHT TO SUE
WITHIN 90 DAYS

CERTIFIED MAIL 0922 1775
Ms. Betty DuBose c/o Gregory B. Stein, Esquire Law Offices of Stein and Brewster Attorneys at Law Post Office Box 1051 Mobile, AL 36633-1051

Employment Litigation Section P.O. Box 65968 Washington. DC 20035-5968
September 13, 2001

Re: EEOC Charge Against State of Alabama, Dept. of Veterans' Affairs, et al. No. 130A10682

Dear Ms. DuBose:
Because you filed the above charge with the Equal Employment ~ Opportunity Commission, and more than 180 days have elapsed since
the date the Commission assumed jurisdiction over the charge, and no suit based thereon has been filed by this Department, and because you through your attorney have specifically requested this Notice, you are hereby notified that you have the right to institute a civil action under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e, et seq., against the above-named respondent.
If you choose to commence a civil action, such suit must be filed in the appropriate Court within 90 days of your receipt of this Notice.
This Notice should not be taken to mean that the Department of Justice has made a judgment as to whether or not your case is meritorious.

Sincerely,

Ralph F. Boyd, Jr. Assista t Attorney General
Civ' Rights Division
by ~!F~:r0-Civil Rights Analyst Employment Litigation Section

cc: Birmingham District Office, EEOC State of Alabama, Dept. of Veterans' Affairs, et al.

Case 2:00-cv-01674-RDP-SRW Document 78 Filed 11/07/2001 Page 22 of 22 ~ U.S. Departn.. . of Justice

Civil Rights Division
NOTICE OF RIGHT TO SUE WITHIN 90 DAYS

CERTIFIED MAIL 0922 1775
Ms. Valerie Porter Williams c/o Gregory B. Stein, Esquire Law Offices of Stein and Brewster Attorneys at Law Post Office Box 1051 Mobile, AL 36633-1051

Employment Litigation Section P.O. Box 65968 Washington. DC 20035-5968
September 13, 2001

Re: EEOC Charge Against State of Alabama, Dept: of Veterans' Affairs, et ale No. 130A10683

Dear Ms. Williams:
Because you filed the above charge with the Equal Employment Opportunity Commission, and more than 180 days have elapsed since the date the Commission assumed jurisdiction over the charge, and no suit based thereon has been filed by this Department, and because you through your attorney have specifically requested this Notice, you are hereby notified that you have the right to institute a civil action under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e, et seq., against the above-named respondent.
If you choose to commence a civil action, such suit must be filed in the appropriate Court within 90 days of your receipt of this Notice.
This Notice should not be taken to mean that the Department of Justice has made a judgment as to whether or not your case is meritorious.
Sincerely,

Ralph F. Boyd, Jr. Assista t Attorney General
Civ' Rights Division
by ~!F~JjQ>-

Civil Rights Analyst Employment Litigation Section

cc: Birmingham District Office, EEOC State of Alabama, Dept. of Veterans' Affairs, et ale

 
 Case 2:00-cv-01674-RDP-SRW Document 7 Filed 01/11/2001 Page 1 of 12

[ F I L E D l RECEirfl'tSDUNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

2001 JAN " A q: 35

VICKIE K. PREWETT,
CHRIST~?ETT. ClK

*

".

T COURT

DEBOAARf.{ll(B leT ALA

*

VICKY BROWN,

t-

CLERK

U. S. DISTRICT COURT

MIDDLE DIST. OF ALA.

LISA JACKSON,

*

TERESA THOMASON,

SUSAN W. COLLIER,

*

VALERIE PORTER WILLIAMS,

BETTY DUBOSE, and all

*

females, collectively,

employed in Alabama as County

*

Veteran Affairs Assistants under

circumstances similar to those

*

of the named Plaintiffs

and the class of all such

*

individuals affected by salary

policies which discriminate on

*

the basis of gender,

*
Plaintiffs,

*

vs.

CIVIL ACTION NO: 2:COCV1674(T)

*

STATE OF ALABAMA

DEPARTMENT OF VETERANS

*

AFFAIRS AND THE ALABAMA
STATE PERSONNEL DEPARTMENT, *

Defendants.

*

PLAINTIFFS' MOTION TO CONDITIONALLY CERTIFY COLLECTIVE ACTION AND TO AUTHORIZE
NOTICE TO SIMILARLY SITUATED EMPLOYEES
Plaintiffs move the Court, pursuant to 29 U.S.C. Section 216(b), to conditionally
1

Case 2:00-cv-01674-RDP-SRW Document 7 Filed 01/11/2001 Page 2 of 12
certify this action as a collective action on behalf of plaintiffs and similarly situated employees of the State of Alabama Department of Veterans Affairs, and to authorize that appropriate notice be given by plaintiffs to the similarly situated employees. As grounds for this motion, plaintiffs would show the Court as follows:
1. Named plaintiffs are female present and former employees of the State of Alabama Department of Veterans Affairs. Named plaintiffs are or were employed in the job position of County Veterans Affairs Assistants. Complaint, ~ 1.
2. Named plaintiffs allege that defendants have employed males in the job position of "Veterans Service Officer," at salary levels substantially higher than named plaintiffs. Complaint, ~ 18. Further, named plaintiffs allege that the males so employed perform duties which are essentially the same as the duties of the plaintiffs, requiring equal skill, effort and responsibility, and performed under similar working conditions as those performed by the plaintiffs. Complaint, ~18.
3. Named plaintiffs allege that throughout the State of Alabama defendants employ many females County Veteran Affairs Assistants who are being paid unequal pay under circumstances closely similar or identical to those of the named plaintiffs. Complaint, ~24. Accordingly, named plaintiffs seek to bring this action as a collective action on behalf of themselves and similarly situated female employees, pursuant to Section 16(b) of the Fair Labor Standards Act, 29 U.S.C. § 216(b). Complaint, ~24.
4. In support of these allegations, and in support of this motion, plaintiffs submit
2

Case 2:00-cv-01674-RDP-SRW Document 7 Filed 01/11/2001 Page 3 of 12
the attached affidavit attached as Exhibit A, verifying the factual allegations of the complaint.
5. Under authority of29 U.S.C.§ 216(b), plaintiffs may bring an action on behalf of similarly situated employees if each such employee"gives his [or her] consent in writing to become a party and such consent is filed in the Court in which the action is brought."
6. Plaintiffs ask that they be authorized to send appropriate notice and consent forms to similarly situated employees of the State of Alabama Department of Veteran Affairs, and suggest that the notice attached hereto is Exhibit B be approved by the Court. In seeking a order authorizing that notice and consent forms be sent to similarity situated employers, plaintiffs rely upon the Supreme Court's and this Court's decisions which point out that early judicial participation in the notice process in an Equal Pay Act case serves a number of important goals: providing judicial oversight of the contents of the notice; ensuring that all potential plaintiffs receive timely notice of a pending action; and, providing a cut-off date for receipt of consents. Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165, 171 (1989); Garner v. G.D. Searle Pharmaceuticals & Co., 802 F. Supp 418, 422 (M.D. Ala. 1991).
8. Plaintiffs will or may later seek class certification under Rule 23 of the Federal Rules of Civil Procedure to prosecute claims on behalf of a class of women under Title VII, 42 U.S.C. Section 1983, and the Equal Protection clause of the
3

Case 2:00-cv-01674-RDP-SRW Document 7 Filed 01/11/2001 Page 4 of 12
Fourteenth Amendment to the United States Constitution. Plaintiffs ask that the Court
consider the instant motion to conditionally certify a collective action under the Equal
Pay Act separately from class certification under Rule 23.
WHEREFORE, these premises considered, plaintiffs move the Court:
(l) to conditionally certify this action as a collective action pursuant to
29 U.S.C. Section 216(b), and define the class of plaintiffs as all women who have been
employed by the State of Alabama as County Veterans Affairs Assistants or Administrative Support Assistants at any time since December 7, 1997; and,
(2) to authorize plaintiffs to mail the notice attached hereto as Exhibit B
to all females employed by defendants as a County Veterans Affairs Assistant or
Administrative Support Assistant at any point in time since December 7, 1997.
I Respectfully submitted this Ot:S.day of January, 2001.
Richard L. Thiry Henry H. Caddell THIRY and CADELL
1911 Government st.
Mobile, AL 36606 Telephone: (334) 478-8880 Facsimile: (334) 478-8885
STEIN and BREWSTER Post Office Box 1051 Mobile, AL 36633 Telephone: (334) 433-2002 Facsimile: (334) 432-7756
4

•

Case 2:00-cv-01674-RDP-SRW Document 7 Filed 01/11/2001 Page 5 of 12

Attorneys for Plaintiffs
OF COUNSEL:
Rhonda Brownstein, Esq. SOUTHERN POVERTY LAW CENTER Post Office Box 2087 Montgomery, Alabama 36102-2087
CERTIFICATE OF SERVICE
I hereby certify that on this I~ay of January, 2001, a copy of the foregoing was
served upon the following:
Alice A. Byrne, Esq. Attorney for State Personnel Department 64 North Union Street, Suite 316 Montgomery, AL 36130
Margaret L. Fleming, Esq. Assistant Attorney General Alabama State House 11 South Union Street Montgomery, AL 36130
Alabama Department of Veteran Affairs Post Office Box 1509 Montgomery, AL 36192-3071

Case 2:00-cv-01674-RDP-SRW Document 7 Filed 01/11/2001 Page 6 of 12

RECEI'fiEt}lE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA

VICKIElfIt.J-'itlE*,q: 3S
CHRISTINE HALE, DEB0RA¥;·£~~~CKETT. ClK VICKY S~iTR1CT COURT LISA JA~iQSONOI3TRICT AL~ , TERESA THOMASON, SUSAN W. COLLIER, VALERIE PORTER WILLIAMS, BETTY DUBOSE and all females, collectively, employed in Alabama as " County Veteran Affairs Assistants under circumstances similar to those of the named Plaintiffs and the class of all such individuals affected by salary policies which discriminate on the basis of gender,
Plaintiffs,
vs.
STATE OF ALABAMA DEPARTMENT OF VETERANS AFFAIRS AND THE ALABAMA STATE PERSONNEL DEPARTMENT,
Defendants.

* * * *
* *
* * * * * * *
* * * * * * * * * * * CIVIL ACTION NO: 00-T-1674-N * * *
*
*
* *

AFFIDAVIT VERIFYING COMPLAINT STATE OF ALABAMA: COUNTY OF BALDWIN:
Vickie K. Prewett, being duly sworn on oath, deposes and says as follows:
My name is Vickie K. Prewett. My address is Post Office Box 2711, Gulf Shores, Alabama 36507. I am a plaintiff in the abovestyled action.
I have read the complaint that was filed in this action in the Middle District of Alabama on December 7, 2000. All of the facts

EXHIBIT A

Case 2:00-cv-01674-RDP-SRW Document 7 Filed 01/11/2001 Page 7 of 12
set forth in that complaint are true and correct to the best of my knowledge, information and belief.
VICKIE K. PREWETT
SWORN BEFORE NOTARY STATE OF ALABAMA: COUNTY OF BALDWIN:
Personally appeared before me, the undersigned authority in and for said State and County, Vickie K. Prewett, who after being duly sworn by me, doth depose and say that the foregoing affidavit is true and correct to the best of her knowledge.
Done this the ,-/-Jl day of \. )i1nllQ '''j . dOOI
·~bsfL; :V~Y' NOARY PUBLIC My Commission Expires: 6/JltIJ00 3
-2-

Case 2:00-cv-01674-RDP-SRW Document 7 Filed 01/11/2001 Page 8 of 12

RECE l\fl80HE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA

ront JAN II A q: 35

VICKIE K. PREWETT,

*

DCHERIBS6rl~l~i~_,~~~:T.~eALK

*

VICKY'BROWN,

LISA JACKSON,

*

TERESA THOMASON,

SUSAN W. COLLIER,

*

VALERIE PORTER WILLIAMS,

BETTY DUBOSE, and all

*

females, collectively,

employed in Alabama as County

*

Veteran Affairs Assistants under

circumstances similar to those

*

of the named Plaintiffs

and the class of all such

*

individuals affected by salary

policies which discriminate on the basis of gender,
Plaintiffs,
vs.
STATE OF ALABAMA DEPARTMENT OF VETERANS

*
*
*
CIVIL ACTION NO: 2:COCV1674(T)
* *

AFFAIRS AND THE ALABAMA
STATE PERSONNEL DEPARTMENT, *

Defendants.

*

NOTICE OF PENDENCY OF EQUAL PAY ACT COLLECTIVE ACTION AND CONSENT FORM
Important! Please read this notice carefully. It may affect your legal rights.

EXHIBIT B

--, Case 2:00-cv-01674-RDP-SRW Document 7 Filed 01/11/2001 Page 9 of 12
To: All adult females in Alabama who, at any time since December 7, 1997, have been employed by the State of Alabama Department of Veterans Affairs as County Veterans Affairs Assistants (Administrative Support Assistants) doing work equal to males employed as Veteran Service Officers but receiving lesser, unequal pay.
If you (1) are a female, and (2) have been employed by the State of Alabama Department of Veterans Affairs as a County Veterans Affairs Assistant (Administrative Support Assistant) at any time since December 7, 1997 (even if you have since left that employment), this notice is to inform you of a pending lawsuit which may affect your legal rights. Vickie K. Prewett, Christine Hale, Deborah Coker, Vickie Brown, Lisa Jackson, Theresa Thomason, Susan W. Collier, Valerie Porter Williams, and Betty Dubose have filed a lawsuit in the federal court in Montgomery, Alabama, claiming that women employed as County Veterans Affairs Assistants (Administrative Support Assistants) do work essentially equal to males employed as Veteran Service Officers but are payed less, unequal pay. These persons, "the plaintiffs," claim that the unequal pay for equal work violates the "Equal Pay Act," 29 United States Code Sections 206(d)(I) and 216(b). The plaintiffs seek to bring this lawsuit for themselves and as a "collective action" on behalf of all other women who have been employed as County Veterans Affairs Assistants (Administrative Support Assistants) for some or all of the time since December 7, 1997.
In order for you to participate in this lawsuit, you need to complete, sign and file with the Court a written consent form like the one attached to this notice as APPENDIX
2

Case 2:00-cv-01674-RDP-SRW Document 7 Filed 01/11/2001 Page 10 of 12
1. If you do not sign and file a written consent form with the Court, you will not be
allowed to participate in the lawsuit and will not be allowed to share in any monies or
other relief obtained by the plaintiffs.
You are encouraged to consult a lawyer and obtain legal advice on whether to
participate in this lawsuit. You may consult a lawyer of your own choosing or may
consult the lawyers who represent the plaintiffs in this lawsuit, whose names and
telephone numbers, addresses, and email addresses are as follows:
Henry H. Caddell, Esq Thiry & Caddell 1911 Government Street Mobile, AL 36606 Telephone: (334) 478-8880 Fax: (334) 478-8885 Email: caddelllaw@zebra.net
Richard L. Thiry, Esq. Thiry & Caddell 1911 Government Street Mobile, AL 36606 Telephone: (334) 478-8880 Fax: (334) 478-8885
Gregory B. Stein, Esq. Stein and Brewster 205 N. Conception St. Mobile, AL 36602 Telephone: (334) 433-2002 Fax: (334) 432-7756 Email: gstein@steinandbrewster.com
3

Case 2:00-cv-01674-RDP-SRW Document 7 Filed 01/11/2001 Page 11 of 12

You will not be charged any fee or costs by the lawyers (listed above) in consulting with

them in connection with this lawsuit.

When and how to file a written consent form

You should mail or hand deliver the attached consent form, or a similar writing, to

the Clerk of the United States District Court for the Middle District of Alabama in

Montgomery, Alabama. The name and address of the Clerk is as follows:

Debra P. Hackett, Clerk United States District Court
for the Middle District of Alabama 15 Lee Street Post Office Box 711 Montgomery, AL 36101

If you wish, one of the lawyers for the plaintiffs listed above will help you file the

consent form. You should file the written consent form with the Clerk no later than 5:00

p.m., Friday, May 18,2001. The consent form should be received by the Clerk on that

day, not just postmarked. If you do not file the written consent form by that day you may

be excluded from the lawsuit. A decision whether to exclude persons who file written

consent forms after May 18,2001 will be made by the judge. If you wish to participate in

the lawsuit, you should protect your legal rights by filing the form on or before May 18,

2001.

Clerk, United States District Court for the Middle District of Alabama

Attachment: APPENDIX 1, WRITTEN CONSENT TO BE A PARTY PLAINTIFF

00880002equalpaynotice,wpd

4

Case 2:00-cv-01674-RDP-SRW Document 7 Filed 01/11/2001 Page 12 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA

VICKIE K. PREWETT,

*

et aI.,

Plaintiffs,

*

vs.

*

STATE OF ALABAMA

*

DEPARTMENT OF VETERANS

AFFAIRS AND THE ALABAMA

*

STATE PERSONNEL DEPARTMENT,

*

Defendants.

*

CIVIL ACTION NO: 2:COCV1674(T)

WRITTEN CONSENT TO BE A PARTY PLAINTIFF

I, _ _ _ _ _ _ _ _ _ _ _ _ _, hereby give written consent to be a

party Plaintiff in the above-styled action seeking relief under the federal Equal Pay Act.

DATE: _ _ _ __

SIGNED

Please print below

Full Name Address

Home Telephone _ _ _ _ __ Work Telephone _ _ _ _ __ Email address (optional)- - - -
APPENDIX 1

 
 Case 2:00-cv-01674-RDP-SRW Document 16 Filed 02/02/2001 Page 1 of 12

"'''E''''-lV~n

(FILED]

K Gc LfN'THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

20m FEB -2 A q: 00

VICKIE K. PREWETT,
DCHERBI(SJTiWINftF}J~~B~~~~LAK

* *

~ ClER

,

, ~

U. S. DISTRICT COURT
MIDDLE DIST. OF ALA.

'

VICKY BROWN,

LISA JACKSON,

*

TERESA THOMASON,

SUSAN W. COLLIER,

*

VALERIE PORTER WILLIAMS,

BETTY DUBOSE, and all

*

females, collectively,

employed in Alabama as County

*

Veteran Affairs Assistants under

circumstances similar to those

*

of the named Plaintiffs

and the class of all such

*

individuals affected by salary

policies which discriminate on

*

the basis of gender,

*
Plaintiffs,

*

vs.

CIVIL ACTION NO: 2:COCV1674(T)

*

STATE OF ALABAMA

DEPARTMENT OF VETERANS

*

AFFAIRS AND THE ALABAMA
STATE PERSONNEL DEPARTMENT, *

Defendants.

*

PLAINTIFFS' RENEWED MOTION TO CONDITIONALLY CERTIFY COLLECTIVE ACTION AND TO AUTHORIZE
NOTICE TO SIMILARLY SITUATED EMPLOYEES
Plaintiffs move the Court, pursuant to 29 U.S.C. Section 216(b), to conditionally
certify this action as a collective action on behalf of plaintiffs and similarly situated
1

Case 2:00-cv-01674-RDP-SRW Document 16 Filed 02/02/2001 Page 2 of 12
employees of the State of Alabama Department of Veterans Affairs, and to authorize that appropriate notice be given by plaintiffs to the similarly situated employees. As grounds for this motion, plaintiffs would show the Court as follows:
1. Named plaintiffs are female present and former employees of the State of Alabama Department of Veterans Affairs. Named plaintiffs are or were employed in the job position of County Veterans Affairs Assistants. Complaint, ~ 1.
2. Named plaintiffs allege that defendants have employed males in the job position of "Veterans Service Officer,II at salary levels substantially higher than named plaintiffs. Complaint, ~ 18. Further, named plaintiffs allege that the males so employed perform duties which are essentially the same as the duties of the plaintiffs, requiring equal skill, effort and responsibility, and performed under similar working conditions as those performed by the plaintiffs. Complaint, ~18.
3. Named plaintiffs allege that throughout the State of Alabama defendants employ many females County Veteran Affairs Assistants who are being paid unequal pay under circumstances closely similar or identical to those of the named plaintiffs. Complaint, ~24. Accordingly, named plaintiffs seek to bring this action as a collective action on behalf of themselves and similarly situated female employees, pursuant to Section 16(b) of the Fair Labor Standards Act, 29 U.S.C. § 216(b). Complaint, ~24.
4. In support of these allegations, and in support of this motion, plaintiffs submit a copy of the attached affidavit attached as Exhibit A, verifying the factual allegations of the complaint. The original of the affidavit was filed on January 11,2001, as part of
2

Case 2:00-cv-01674-RDP-SRW Document 16 Filed 02/02/2001 Page 3 of 12
"Plaintiffs' motion to conditionally certify collective action and to authorize notice to similarly situated employees", which the Court denied with leave to renew.
S. Under authority of29 U.S.C.§ 216(b), plaintiffs may bring an action on behalf of similarly situated employees if each such employee"gives his [or her] consent in writing to become a party and such consent is filed in the Court in which the action is brought."
6. Plaintiffs ask that they be authorized to send appropriate notice and consent fonns to similarly situated employees of the State of Alabama Department of Veteran Affairs, and suggest that the notice attached hereto is Exhibit B be approved by the Court. In seeking a order authorizing that notice and consent fonns be sent to similarity situated employers, plaintiffs rely upon the Supreme Court's, the Eleventh Circuit's, and this Court's decisions which point out that early judicial participation in the notice process in an Equal Pay Act case serves a number of important goals: providing judicial oversight of the contents of the notice; ensuring that all potential plaintiffs receive timely notice of a pending action; and, providing a cut-off date for receipt of consents. Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165, 171 (1989); Grayson v. K-Mart Corp., 79 F.3d 1086, 1096 (11 th Cir. 1996); Garner v. G.D. Searle Pharmaceuticals & Co., 802 F. Supp 418,422 (M.D. Ala. 1991).
7. Plaintiffs will or may later seek class certification under Rule 23 of the Federal Rules of Civil Procedure to prosecute claims on behalf of a class of women under Title VII, 42 U.S.C. Section 1983, and the Equal Protection clause of the
3

Case 2:00-cv-01674-RDP-SRW Document 16 Filed 02/02/2001 Page 4 of 12
Fourteenth Amendment to the United States Constitution. Plaintiffs ask that the Court consider the instant motion to conditionally certify a collective action under the Equal Pay Act separately from class certification under Rule 23.
WHEREFORE, these premises considered, plaintiffs move the Court: (1) to conditionally certify this action as a collective action pursuant to
29 U.S.C. Section 216(b), and define the class of plaintiffs as all women who have been employed by the State of Alabama as County Veterans Affairs Assistants or Administrative Support Assistants at any time since December 7, 1997; and,
(2) to authorize plaintiffs to mail the notice attached hereto as Exhibit B to all females employed by defendants as a County Veterans Affairs Assistant or Administrative Support Assistant at any point in time since December 7, 1997.
Respectfully submitted this 31.d-day of January, 2001. Richard L. Thiry Henry H. Caddell THIRY and CADELL 1911 Government St. Mobile, AL 36606 Telephone: (334) 478-8880 Facsimile: (334) 478-8885
4

Case 2:00-cv-01674-RDP-SRW Document 16 Filed 02/02/2001 Page 5 of 12
OF COUNSEL: Rhonda Brownstein, Esq. SOUTHERN POVERTY LAW CENTER Post Office Box 2087 Montgomery, Alabama 36102-2087
CERTIFICATE OF SERVICE
I hereby certify that on this31-~y of January, 2001, a copy of the foregoing was
served upon the following: Alice A. Byrne, Esq. Attorney for State Personnel Department 64 North Union Street, Suite 316 Montgomery, AL 36130 Margaret L. Fleming, Esq. Assistant Attorney General Office of the Attorney General 11 South Union Street, 3rd Floor Montgomery, AL 36130
5

Case 2:00-cv-01674-RDP-SRW Document 16 Filed 02/02/2001 Page 6 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA

VICKIE K. PREWETT, CHRISTINE HALE, DEBORAH COKER, VICKY BROWN, LISA JACKSON, . TERESA THOMASON, SUSAN W. COLLIER, VALERIE PORTER WILLIAMS, BETTY DUBOSE and all females, collectively, employed in Alabama as County Veteran Affairs Assistants under circumstances similar to those of the named Plaintiffs and the class of all such individuals affected by salary policies which discriminate on the basis of gender,
Plaintiffs,
vs.
STATE OF ALABAMA DEPARTMENT OF VETERANS AFFAIRS AND THE ALABAMA STATE PERSONNEL DEPARTMENT,
Defendants.

* * * * * * * * * * * * * * * * * * * * * * * * CIVIL ACTION NO: 00-T-1674-N * * * * * * *

AFFIDAVIT VERIFYING COMPLAINT STATE OF ALABAMA: COUNTY OF BALDWIN:
Vickie K. Prewett, being duly sworn on oath, deposes and says as follows:
My name is Vickie K. Prewett. My address is Post Office Box 27ll, Gulf Shores, Alabama 36507. I am a plaintiff in the abovestyled action.
I have read the complaint that was filed in this action in the Middle District of Alabama on December 7, 2000. All of the facts

EXHIBIT A

Case 2:00-cv-01674-RDP-SRW Document 16 Filed 02/02/2001 Page 7 of 12 set forth in that complaint are true and correct to the best of my knowledge, information and belief.
SWORN BEFORE NOTARY STATE OF ALABAMA: COUNTY OF BALDWIN:
Personally appeared before me, the undersigned authority in and for said State and County, Vickie K. Prewett, who after being duly sworn by me, doth depose and say that the foregoing affidavit is true and correct to the best of her knowledge.
4 Done this the Jl day of ,)ctn!!O '+j ,dOO\
·~b,,:?~trJ NO ARY PUBLIC My Commission Expires: 6/JLRIJ003
- 2-

Case 2:00-cv-01674-RDP-SRW Document 16 Filed 02/02/2001 Page 8 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA

VICKIE K. PREWETT,

*

CHRISTINE HALE,

DEBORAH COKER,

*

VICKY BROWN,

LISA JACKSON,

*

TERESA THOMASON,

SUSAN W. COLLIER,

*

VALERIE PORTER WILLIAMS,

BEITY DUBOSE, and all

*

females, collectively,

employed in Alabama as County

*

Veteran Affairs Assistants under

circumstances similar to those

*

of the named Plaintiffs

and the class of all such

*

individuals affected by salary

policies which discriminate on

*

the basis of gender,

*
Plaintiffs,

*

vs.

*

STATE OF ALABAMA

DEPARTMENT OF VETERANS

*

AFFAIRS AND THE ALABAMA
STATE PERSONNEL DEPARTMENT, *

CIVIL ACTION NO: 2:COCV1674(T)

Defendants.

*

NOTICE OF PENDENCY OF EOUAL PAY ACT COLLECTIVE ACTION AND CONSENT FORM
Important! Please read this notice carefully. It may affect your legal rights.

1

Case 2:00-cv-01674-RDP-SRW Document 16 Filed 02/02/2001 Page 9 of 12
To: All adult females in Alabama who, at any time since December 7, 1997, have been employed by the State of Alabama Department of Veterans Affairs as County Veterans Affairs Assistants (Administrative Support Assistants) doing work equal to males employed as Veteran Service Officers but receiving lesser, unequal pay.
If you (1) are a female, and (2) have been employed by the State of Alabama Department of Veterans Affairs as a County Veterans Affairs Assistant (Administrative Support Assistant) at any time since December 7, 1997 (even if you have since left that employment), this notice is to inform you of a pending lawsuit which may affect your legal rights. Vickie K. Prewett, Christine Hale, Deborah Coker, Vickie Brown, Lisa Jackson, Theresa Thomason, Susan W. Collier, Valerie Porter Williams, and Betty Dubose have filed a lawsuit in the federal court in Montgomery, Alabama, claiming that women employed as County Veterans Affairs Assistants (Administrative Support Assistants) do work essentially equal to males employed as Veteran Service Officers but are payed less, unequal pay. These persons, "the plaintiffs," claim that the unequal pay for equal work violates the "Equal Pay Act," 29 United States Code Sections 206(d)( 1) and 216(b). The plaintiffs seek to bring this lawsuit for themselves and as a "collective action" on behalf of all other women who have been employed as County Veterans Affairs Assistants (Administrative Support Assistants) for some or all of the time since December 7, 1997.
In order for you to participate in this lawsuit, you need to complete, sign and file with the Court a written consent form like the one attached to this notice as APPENDIX
2

Case 2:00-cv-01674-RDP-SRW Document 16 Filed 02/02/2001 Page 10 of 12
1. If you do not sign and file a written consent form with the Court, you will not be
allowed to participate in the lawsuit and will not be allowed to share in any monies or
other relief obtained by the plaintiffs.
You are encouraged to consult a lawyer and obtain legal advice on whether to
participate in this lawsuit. You may consult a lawyer of your own choosing or may
consult the lawyers who represent the plaintiffs in this lawsuit, whose names and
telephone numbers, addresses, and email addresses are as follows:
Henry H. Caddell, Esq Thiry & Caddell 1911 Government Street Mobile, AL 36606 Telephone: (334) 478-8880 Fax: (334) 478-8885 Email: caddelllaw@zebra.net
Richard L. Thiry, Esq. Thiry & Caddell 1911 Government Street Mobile, AL 36606 Telephone: (334) 478-8880 Fax: (334) 478-8885
Gregory B. Stein, Esq. Stein and Brewster 205 N. Conception St. Mobile, AL 36602 Telephone: (334) 433-2002 Fax: (334) 432-7756 Email: gstein@steinandbrewster.com
3

Case 2:00-cv-01674-RDP-SRW Document 16 Filed 02/02/2001 Page 11 of 12

You will not be charged any fee or costs by the lawyers (listed above) in consulting with

them in connection with this lawsuit.

When and how to file a written consent form

You should mail or hand deliver the attached consent form, or a similar writing, to

the Clerk of the United States District Court for the Middle District of Alabama in

Montgomery, Alabama. The name and address of the Clerk is as follows:

Debra P. Hackett, Clerk United States District Court
for the Middle District of Alabama 15 Lee Street Post Office Box 711 Montgomery, AL 36101

If you wish, one of the lawyers for the plaintiffs listed above will help you file the

consent form. You should file the written consent form with the Clerk no later than 5:00

p.m., Friday, May 18,2001. The consent form should be received by the Clerk on that

day, not just postmarked. If you do not file the written consent form by that day you may

be excluded from the lawsuit. A decision whether to exclude persons who file written

consent forms after May 18, 2001 will be made by the judge. If you wish to participate in

the lawsuit, you should protect your legal rights by filing the form on or before May 18,

2001.

Clerk, United States District Court for the Middle District of Alabama

Attachment: APPENDIX 1, WRITTEN CONSENT TO BE A PARTY PLAINTIFF

00880002eq ualpaynotice. wpd

4

Case 2:00-cv-01674-RDP-SRW Document 16 Filed 02/02/2001 Page 12 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA

VICKIE K. PREWETT,

'"

et aI.,

Plaintiffs,

'"

vs.

'"

STATE OF ALABAMA

*

DEPARTMENT OF VETERANS

AFFAIRS AND THE ALABAMA

'"

STATE PERSONNEL DEPARTMENT,

'"

Defendants.

*

CIVIL ACTION NO: 2:COCV1674(T)

WRITTEN CONSENT TO BE A PARTY PLAINTIFF

I, _ _ _ _ _ _ _ _ _ _ _ _ _, hereby give written consent to be a

party Plaintiff in the above-styled action seeking relief under the federal Equal Pay Act.

DATE: _ _ _ __

SIGNED

Please print below

Full Name Address

Home Telephone _ _ _ _ __ Work Telephone _ _ _ _ __ Email address (optional)_ _ __

APPENDIX 1

 
 Case 2:00-cv-01674-RDP-SRW Document 119-1 Filed 03/03/06 Page 1 of 52

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

VICKIE K. PREWETT, et al., Plaintiffs,
v. STATE OF ALABAMA DEPARTMENT OF VETERANS AFFAIRS, et al.,
Defendants.

) ) ) ) ) Case No. 2:00-cv-1674-F ) (WO - for publication) ) ) ) )

MEMORANDUM OPINION AND ORDER

In this action, Plaintiffs, who are current and former employees of the State of

Alabama Department of Veterans Affairs, claim entitlement to a variety of remedies for

alleged violations of the Equal Pay Act, 29 U.S.C. § 206(d)(1) (hereinafter “EPA”) and Title

VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et. seq. (hereinafter “Title VII”). This

cause is presently before the Court on Defendants’ Motion for Summary Judgment (Doc. #

72) filed on November 1, 2001. The Court has carefully considered the arguments in support

of and in opposition to the motion and finds that the motion is due to be GRANTED IN

PART and DENIED IN PART.

I. JURISDICTION AND VENUE

The Court exercises subject matter jurisdiction over this action pursuant to 28 U.S.C.

§ 1331 (federal question) and 28 U.S.C. § 1343 (civil rights). The parties do not contest

personal jurisdiction or venue, and the Court finds adequate allegations supporting both.

Case 2:00-cv-01674-RDP-SRW Document 119-1 Filed 03/03/06 Page 2 of 52
II. SUMMARY JUDGMENT STANDARD Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party asking for summary judgment “always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Id. at 323. The movant can meet this burden by presenting evidence showing there is no dispute of material fact, or by showing the nonmoving party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof. Id. at 322-23. Once the moving party has met its burden, Rule 56(e) “requires the nonmoving party to go beyond the pleadings and by [his] own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’” Id. at 324. To avoid summary judgment, the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). On the other hand, a court ruling on a motion for summary judgment must believe the evidence of
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the non-movant and must draw all justifiable inferences from the evidence in the non-moving party's favor. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); McCormick v. City of Fort Lauderdale, 333F.3d 1234, 1243 (11th Cir. 2003) (the evidence and all reasonable inferences from the evidence must be viewed in the light most favorable to the nonmovant). After the nonmoving party has responded to the motion for summary judgment, the court must grant summary judgment if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c).
The mere existence of some factual dispute will not defeat summary judgment unless that factual dispute is material to an issue affecting the outcome of the case. The relevant rules of substantive law dictate the materiality of a disputed fact. A genuine issue of material fact does not exist unless there is sufficient evidence favoring the nonmoving party for a reasonable jury to return a verdict in its favor. Chapman v. AI Transp., 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc) (quoting Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995) (internal marks and citations omitted)).
III. PROCEDURAL BACKGROUND On December 7, 2000, Vickie K. Prewett, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, and Betty Dubose (hereinafter collectively “Plaintiffs”) filed a Complaint against the State of Alabama Department of Veterans Affairs (hereinafter “the Alabama VA”) and the Alabama State Personnel Department (hereinafter “SPD”) (referred to collectively hereinafter as
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“Defendants”). As current and former employees of the Alabama VA, these women sought declaratory and injunctive relief, back pay, prejudgment interest, front pay, liquidated damages, compensatory damages, expenses and attorney fees from Defendants for alleged violations of rights guaranteed under the EPA, the Equal Protection Clause of the United States Constitution1, and Title VII. Plaintiffs have all worked at some time as County Veterans Affairs Assistants. Plaintiffs allege that male employees employed in the position of Veteran Service Officers were paid substantially more than Plaintiffs even though they performed essentially the same duties as Plaintiffs, which duties required equal skill, effort and responsibility as those performed by Plaintiffs, and they performed those duties under similar working conditions as Plaintiffs’ working conditions.
On February 12, 2001, Plaintiffs filed an Amended Complaint (Doc. # 25). The Amended Complaint added several state officials as defendants. Then Governor Don Siegelman was named individually and as Governor of Alabama. Frank D. Wilkes was named individually and as Director of the Alabama VA. Thomas G. Flowers was named individually and as Director of SPD. However, on March 7, 2001, Plaintiffs filed a Notice of Dismissal by which they dismissed several of the claims and Defendants to the action. (Doc. # 39). Specifically, Plaintiffs dismissed all of their claims under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and all of their claims pursuant to 42 U.S.C. § 1983. Plaintiffs also dismissed all of their claims against Frank D.
1 Plaintiffs sought a remedy for the alleged violations of the United States Constitution pursuant to 42 U.S.C. § 1983.
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Wilkes, Thomas G. Flowers, and Don Siegelman in their individual and official capacities. On March 26, 2001, the Court entered an Order (Doc. # 47) dismissing all claims brought under the Equal Protection Clause of the Fourteenth Amendment and 42 U.S.C. § 1983 and all claims against Frank D. Wilkes, Thomas G. Flowers, and Don Siegelman in their individual and official capacities. Thus, as of the end of March of 2001, the sole Defendants in this case were the Alabama VA and SPD and the sole claims in the case were brought pursuant to the EPA and Title VII.
On October 18, 2001, Plaintiffs sought leave of court to add new plaintiffs to the action. Specifically, Plaintiffs sought to file a Second Amended Complaint which added claims against Defendants on behalf of Sandra Brown, Deborah Murphree, Cecelia Talley, Jan Robbins, Sue Judkins, and Shirl Brogdon. (Doc. # 66). On November 7, 2001, the Court granted Plaintiffs leave to add these additional plaintiffs. (Doc. # 77). Consequently, the Second Amended Complaint was filed on November 7, 2001. (Doc. # 78). Strangely enough, the Second Amended Complaint reasserted claims arising under the Equal Protection Clause of the Fourteenth Amendment brought pursuant to 42 U.S.C. § 1983 even though Plaintiffs had dismissed such claims from the First Amended Complaint approximately six months before seeking leave to file the Second Amended Complaint.
Early in the case, SPD and the Alabama VA filed motions to dismiss (Docs. # 12, 14, & 34). On November 7, 2001, the Court denied these motions. (Doc. # 76). On November 1, 2001, SPD and the Alabama VA jointly filed a Motion for Summary Judgment (Doc. #
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72). This is the motion currently before this Court. Plaintiffs opposed the Motion for Summary Judgment. (Doc. # 94). On January 14, 2002, Defendants filed supplemental submissions in support of their Motion for Summary Judgment and addressed the claims and parties added by the Second Amended Complaint. (Doc. # 95). On January 28, 2002, Plaintiffs submitted a reply to the Defendants’ supplemental submissions. (Doc. # 96). Plaintiffs supplemented their submissions again in April of 2002 (Doc. # 103) and in July of 2003 (Doc. # 108).
Although the original Complaint in this case contained a jury demand, the amendments to the Complaint did not. The parties eventually agreed that this case should be tried without a jury. The Court ordered that the case would proceed as a non-jury case on February 25, 2002. (Doc. # 102). This case was assigned to the undersigned on February 19, 2003.
On December 15, 2004, the parties filed a Joint Motion to Dismiss Remaining Claims brought under 42 U.S.C. § 1983 and the Equal Protection Clause (Doc. # 114), stipulating to the dismissal, with prejudice, of Plaintiff’s remaining 42 U.S.C. § 1983 and Equal Protection Clause claims in the Second Amended Complaint. On December 16, 2004, the Court entered an Order (Doc. # 115) dismissing all claims brought under 42 U.S.C. § 1983 and the Equal Protection Clause in the Second Amended Complaint. Thus, the sole Defendants in the case are now the Alabama VA and SPD and the sole claims in the case are those brought pursuant to the EPA and Title VII.
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On September 6, 2005, the Court entered an Amended Scheduling Order, setting this case for a non-jury trial on July 31, 2006 (Doc. # 118).
IV. FACTS The Court has carefully considered all deposition excerpts and documents submitted in support of and in opposition to the motion. The submissions of the parties, viewed in the light most favorable to the nonmoving parties, establish the following material facts. Plaintiffs are present and former County Veterans Affairs Assistants (hereinafter “CVAAs”). CVAAs are state employees, and are subject to the Alabama Merit System Act. Their positions are classified as Administrative Support Assistant (hereinafter “ASA”) positions. Plaintiffs work (or worked) in county VA offices throughout Alabama as CVAAs. Plaintiffs are all female and at the time the suit was filed, there had never been a male CVAA. As CVAAs, Plaintiffs perform a variety of duties related to the delivery of counseling and other services to citizens of Alabama who are veterans the United States’ Armed Services. Throughout the period in which Plaintiffs were employed as CVAAs, they have worked alongside male Veteran Service Officers (hereinafter “VSOs”),2 who are employees of the Alabama VA. It is undisputed that most of the VSOs receive significantly higher
2 The VSO position is open to males and females, but the vast majority of VSOs are male. Plaintiffs are only comparing themselves to the male VSOs.
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salaries than the Plaintiffs.3 Plaintiffs allege that the VSOs perform essentially the same duties, and that said duties require equal skill, effort, and responsibility and are performed under similar working conditions as those performed by Plaintiffs. Plaintiffs further allege that Defendants knew that Plaintiffs were receiving unequal pay for performing equal work and intentionally refused to correct the problem. A. Dual Classification System
The CVAAs and VSOs fall under two different classification systems. The CVAAs are state employees employed by the SPD. The VSOs are employed directly by the Alabama VA. Specifically, the State Board of Veterans’ Affairs appoints a State Service Commissioner (more commonly known as the Director of VA) who appoints a VSO to serve in each county.
The CVAAs, as state employees, are subject to the Alabama Merit System Act, Ala. Code § 36-26-1, et. seq. The Act governs benefits and regulations concerning, among other things, the hiring process, job performance standards, promotion, transfer, demotion, layoff, dismissals, suspension, classification of positions, and salary plans. The regulations include a guaranteed right to appeal terminations and disciplinary actions. SPD, with the approval
3 As an example, Plaintiff Vicky Brown was hired in March 1993 at a salary of $717.72 biweekly. At the time of filing this lawsuit, her salary was $870.19 bi-weekly. VSO H. Michael Knodel was hired in May 1993 at a salary of $800.00 bi-weekly. At the time of filing this lawsuit, his salary was $1,231.30 bi-weekly. Similar pay differentials exist between most of the Plaintiffs and VSO comparators. The average bi-weekly salary of Plaintiffs employed at the time this suit was filed was $983.00, while the average salary of VSO comparators was $1,379.00. The few VSOs who receive lower or insignificantly higher salaries than each individual Plaintiff will not be compared to that Plaintiff in evaluating her claims. See infra at 19 (discussion of VSO comparators).
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of the Governor and the Finance Director, sets the salary ranges for all merit system employees, including CVAAs. The SPD Director recommends pay plans for each classification to the SPD Board. The SPD Board then adopts the pay plans with the approval of the Governor. However, the Alabama VA actually pays the salaries of the CVAAs.
VSOs are not subject to the Alabama Merit System Act, but serve instead at the discretion of the Director of VA and the State Board of Veterans’s Affairs. The Director of VA has the authority to hire, dismiss, establish salaries, and determine merit raises for VSOs. VSOs may be dismissed for cause, including conduct unbecoming a VSO. A VSO may request review of the dismissal by the State Board of Veterans’ Affairs, but review is discretionary. After the Director of VA hires an individual, that individual assumes the responsibilities of a VSO for a six-month probationary period. Upon successful completion of the probationary period, the Director of VA recommends the individual for approval to the State Board of Veterans’ Affairs. If the Board approves, the individual then becomes a VSO. B. Salaries
CVAAs are entitled to annual merit raises except in cases of extraordinary circumstances. The director of VA determines whether a VSO receives a merit raise based on that VSO’s productivity, work ethic, the recommendation of the VSO’s district manager, and the availability of funds. Plaintiffs claim that despite their entitlement to annual merit raises, overall they have received fewer and smaller raises than the VSOs.
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C. Comparison of Positions of CVAAs and VSOs Defendants assert that the qualifications and work requirements for CVAAs and
VSOa are significantly different. Plaintiffs claim that the two positions require virtually the same work. A number of the Plaintiffs4 further claim that when they were hired, they were told the work would be primarily secretarial in nature, but later found out that they would be assisting clients and doing other work similar to the work of VSOs.
1. Qualifications VSOs are required to be honorably-discharged wartime veterans. Alabama Code Section 31-5-9 states that a VSO “shall be a veteran who served on active duty in the military or naval forces of the United States for a period of 60 days or more in any war in which the United States shall have been engaged, and shall have been honorably discharged therefrom.” Ala. Code § 31-5-9 (1975). ASA series employees, including CVAAs, are not required to be wartime veterans, and none of the Plaintiffs are in fact veterans. Their veteran status permits VSOs to become “accredited representatives” before the Board of Veterans’ Appeals. Accredited representatives may argue cases in front of the Board. Because Plaintiffs are not veterans, they cannot become accredited representatives and cannot argue cases in front of the Board. However, though only the VSOs are veterans, cases are randomly assigned to either
4 These Plaintiffs are Brogdon, S. Brown, V. Brown, Coker, Dubose, Robbins, and Talley. 10

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a CVAA or VSO; veteran status is not taken into account when assigning cases.5 Furthermore, although VSOs are all wartime veterans, many just happened to be in the military during wartime and did not serve in combat. In fact, only five of the initial thirteen VSO comparators have served in combat.6
VSOs must have experience and training equivalent to two years of a college education. The CVAAs are only required to have training or experience equivalent to graduation from a standard senior high school.
2. Duties outside working hours Defendants assert that VSOs are required to be “on call” 24 hours a day, seven days a week, to assist veterans in their counties. They are required to reside in the county of their appointment, be a qualified elector of that county, and maintain “listed” telephone numbers in order to increase their accessibility to veterans and their dependents. They are also prohibited from holding outside employment without approval of the Director of VA. Plaintiffs contend that several VSOs have unlisted home telephone numbers and that the requirement for having a listed home telephone number was created in response to the
5 The Court notes that one VSO, Morris Steenson, testified to a few instances in which the CVAA in his office, Plaintiff Teresa Thomason, referred a veteran to him because as a veteran he had a better understanding of things such as military terminology and military campaigns. Thomason recalls one client who she referred to Steenson because she could not get the necessary information from that client, but claims that Steenson was also unsuccessful in getting the information. The testimony from Thomason and the other Plaintiffs that cases are not specifically routed to VSOs or CVAAs is uncontradicted.
6 Harrison, Graf, Horton, Lehe, Knodel, Manning, Cowart, and Graves have never served in combat. Vaughan, Haley, Rowell, Steenson, and Ross have had combat experience.
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present litigation. Plaintiffs also name many VSOs who have held and continue to hold outside employment.
Defendants allege that VSOs are often required to work on state holidays, such as Memorial Day or Veterans’ Day, to help organize and conduct ceremonies commemorating the service of veterans. They are required to belong to and attend meetings of various veterans’ organizations, such as the American Legion, many of which meetings occur after business hours and on weekends. Because VSOs are exempt from the Fair Labor Standards Act, they are not entitled to any compensation for hours worked in excess of 40 hours a week. Plaintiffs have testified, however, that neither the VSOs nor the CVAAs perform a significant amount of work outside of the regular 40-hour work week. Plaintiffs also testified that VSOs and CVAAs were equally subject to being contacted by clients outside of working hours, encountering clients in the community, and making periodic visits to clients at their homes, in hospitals, and in other institutions. Plaintiffs stated that they have never been compensated for overtime work and were not aware that they were eligible to receive overtime pay until the issue was raised in the present litigation. As to VSO involvement in veterans’ organizations, Plaintiffs maintain that this involvement is not a significant or substantial part of the VSOs’ work. In addition, many of the Plaintiffs testified that they have been involved in such organizations to the same or similar extent as the VSOs.
3. Standard of Conduct In order to become a VSO, an individual must take an oath of office and must execute
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a bond in the amount of $5,000, “conditioned upon the faithful performance of their official duties.” Ala. Code § 31-5-11 (1975). CVAAs are not required to take an oath of office or execute a bond. Defendants allege that VSOs serve in a position of public trust and therefore must adhere to higher ethical and moral standards of conduct than CVAAs, both on and offduty. Plaintiffs assert that there is no difference in conduct expected and cite periodic uncorrected lapses in the conduct of VSOs. Plaintiffs testified that the Alabama VA’s expectations of VSOs and CVAAs have been the same.
4. Supervision by VSOs Defendants claim that VSOs are responsible for the work performed in their county offices, while CVAAs are not. Plaintiffs testified that they bear equal responsibility for the operation of their offices and that they have not observed situations in which VSOs have been held ultimately responsible for the operation of their offices. Defendants claim that VSOs are responsible for property inventory in their offices, while CVAAs are not. Defendants further claim that VSOs supervise CVAAs. The parties agree that VSOs serve as the Alabama Merit System “rating supervisors” on the CVAAs’ annual performance appraisals filed with the SPD, but disagree about the existence of any other supervisory duties of the VSOs. Defendants claim that though the annual appraisal forms are only filled out once a year, evaluation of the CVAAs takes place year round in order to accurately fill out the forms. Plaintiffs claim that the evaluation process is a formality with little meaning that takes almost no time on the part of the VSOs. Numerous Plaintiffs testified that filling
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out the evaluation forms for the SPD only takes about half an hour to an hour per year. Defendants also claim that VSOs have the authority to discipline CVAAs and give oral and written reprimands for CVAA misconduct. Most of the Plaintiffs claim that any supervision by VSOs is in name only. Plaintiff Sandra Brown testified that the VSOs do not supervise them in their everyday work, but instead that the CVAAs and VSOs are co-workers who mutually assist one another. This testimony was corroborated by most of the Plaintiffs.
However, Defendants assert that Plaintiffs Christine Hale, Vicky Brown, and Deborah Coker admitted that the VSOs were their supervisors. Plaintiff Hale, when asked if the VSO in her office was her supervisor, said yes. Plaintiff V. Brown, when asked, “Would you agree, then, that [the VSO] is your boss?” responded yes. She also admitted that the VSO can tell her what to do and override any of her decisions. Plaintiff Coker, when asked if the VSO has the ability and authority to assign her work, responded that “[h]e probably has the authority to.” D. Knowledge of Unequal Pay and Attempts to Raise CVAAs’ Salaries
On numerous occasions since 1983, Director of the Alabama VA Frank Wilkes (hereinafter “Wilkes”) has requested that CVAAs be compensated at a higher rate. He testified that he believes that the work of CVAAs is parallel to that of VSOs and far exceeds the work of a clerk or secretary. SPD has rejected all of these requests, but has acknowledged the similarity of the work of VSOs and CVAAs.
In 1985, a study was made by the SPD of clerical positions in the county veterans’
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offices to determine if those positions involved duties and responsibilities outside of those required for the clerical series. It was determined that those positions fell within the specifications for the clerical series, mostly at the Clerk Typist II level (now known as ASA II). In 1987, Wilkes sent a letter to Dr. Halcyon Ballard (hereinafter “Ballard”), the State Personnel Director, requesting an upgrading of CVAAs because their duties and responsibilities differed only slightly from those of the VSOs. After numerous discussions, Ballard rejected this proposal was rejected. In 1989, Wilkes and a committee of CVAAs developed a proposal for a new position classification for CVAAs. At that time, an extensive review of the position was made again and Ballard again rejected a change in the CVAAs’ classification. In the alternative, Ballard suggested that the Alabama VA and SPD jointly propose legislation to bring the VSOs under the Alabama Merit System. Wilkes testified that he rejected Ballard’s proposal and stated that he would support such legislation “when hell freezes over.” Also in 1989, Wilkes held additional meetings with a committee of CVAAs and Ruth Harrell, a member of the SPD. Harrell also proposed a new classification for CVAAs to Ballard, which Ballard also rejected.
In 1999, Wilkes began meeting again with a committee of CVAAs to work on upgrading/promoting CVAAs. The result of these meetings was that the Alabama VA decided to accept that the SPD would not change the classification of CVAAs and that they would work within the ASA classification system. Also in 1999, Wilkes received a letter from State Senator Hank Sanders expressing concern over the difference in salary between
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VSOs and CVAAs suggesting that the matter might be subject to legal attack for gender discrimination. In January 2000, all CVAA positions were reallocated to the highest possible classifications within the ASA series. CVAAs were required to take appropriate merit system examinations and score high enough to be “reachable” on the register (ranked in the top 10). All Plaintiffs who were eligible to be promoted were promoted. In April 2000, despite his earlier agreement that he would not ask to change the CVAAs’ classification, Wilkes again requested a separate classification for CVAAs and such request was again denied by the SPD.
The majority of CVAAs, including many of the Plaintiffs, oppose any change in the law that would remove them from the Alabama Merit System. Wilkes and the Alabama VA management are opposed to a change in the law that would bring the VSOs under the Alabama Merit System.
The Director of VA and the Alabama VA management have acknowledged that CVAAs do the same work as VSOs for unequal pay. In addition to the letters written by Wilkes to Ballard, conversations that took place during Alabama VA management staff meetings also reveal that the Wilkes and other Alabama VA management believed that the CVAAs deserved more money for their work and that their work was basically the same as the work of the VSOs:
District Manager Taylor: And we’re talking about these ladies, and I’m certainly in agreement that – they do basically – and I know we don’t never want to put that in writing or admit to it. But basically, they do the same thing and have been doing the same thing that we’ve –
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District Manager Richardson: Uh-huh.
District Manager Taylor: – done for years. In light of that, you know – and I’m all behind this movement to get them upgraded and get more money for them and so forth.
Conversations during staff meetings also show that there was concern among the
managers about a lawsuit over unequal pay:
District Manager Richardson: [I]f it gets into federal court, you may not have a choice . . .
Director of VA Wilkes: About what?
Richardson: Reclassifying the VSOs.
Wilkes: Under the merit system?
Richardson: Yeah. . . . They can turn around and do things such as EEOC cases and take a look at equal pay for equal responsibilities. That may be something that could get involved. But hopefully, we’re doing what we can to address it and resolve it.
V. DISCUSSION
A. Equal Pay Act
The EPA prohibits employers from paying an employee at a rate less than that paid
to employees of the opposite sex for equal work. See 29 U.S.C. § 206(d)(1). Specifically,
the EPA provides that:
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
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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). When Congress enacted the EPA, its purpose was to remedy what was perceived to be a serious and endemic problem of employment discrimination in private industry – the fact that the wage structure in many segments of American industry has been based on an ancient but outmoded belief that a man, because of his role in society, should be paid more than a woman even though his duties are the same. Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974) (citations omitted). To establish a violation of the EPA, a plaintiff must first establish a prima facie case by showing that she performed work substantially equal to that of a male comparator and that she was paid less than the male comparator. If she succeeds in establishing a prima facie case, the burden then shifts to the defendant to establish one of four affirmative defenses, each of which requires the defendant to show that the reason for the pay differential was something other than sex. If the defendant presents sufficient evidence to establish an affirmative defense, the burden then shifts back to the plaintiff to show that the alleged reason for the pay differential is a pretextual one, and that the real reason for the differential is sex. See Corning Glass Works, 417 U.S. 188. 1. Preliminary Issues Prior to evaluating whether Plaintiffs have established a prima facie EPA violation,
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the Court must address several preliminary issues raised by the Defendants in relation to Plaintiffs’ EPA claims.
a. VSO Comparators7 Defendants assert that Plaintiffs have failed to identify adequate male comparators to establish a prima facie case under the EPA. Plaintiffs respond that in order to be entitled to summary judgment against any individual Plaintiff, Defendants must present evidence eliminating all VSO comparators for that Plaintiff, not just chip away at the list of comparators. The Court agrees with Plaintiffs that summary judgment may not be granted against any individual Plaintiff for lack of an adequate VSO comparator unless Defendants present sufficient evidence to eliminate all of the VSO comparators claimed by that Plaintiff. However, in evaluating Defendants’ Motion for Summary Judgment on the EPA claims, the Court must compare each individual Plaintiff only to VSOs who qualify as acceptable comparators for the purpose of evaluating equality of work under the EPA . Therefore, prior to deciding whether each Plaintiff has put forth enough evidence to establish a prima facie case of violation of the EPA, the Court must decide which VSOs, if any, each Plaintiff may be compared with to determine equality of work. Thus, the Court will now address
7 Plaintiffs claim that their Title VII claims, unlike their EPA claims, do not require naming specific VSO comparators because the standard for similarity of jobs under Title VII is not as exacting as the standard under the EPA. Defendants do not appear to be arguing the issue of VSO comparators in relation to Title VII, therefore if the Court eliminates a VSO comparator in relation to an individual Plaintiff, it does not mean that that Plaintiff may not cite evidence related to that VSO to support her Title VII claim.
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Defendants’ specific arguments as to VSO comparators. Defendants first claim that because Plaintiffs have listed a number of VSO
comparators, it is not clear how much each Plaintiff believes she should be making since it is not clear which VSO’s salary she is asking for. Plaintiffs respond that each Plaintiff is seeking backpay based upon the highest salary of all of her VSO comparators. The Court accepts this as adequate evidence of what each Plaintiff is requesting in terms of backpay.
Defendants next assert that each Plaintiff names the same twenty-eight8 VSO comparators, despite the fact that some of the VSOs have served for a longer time than some of the Plaintiffs. Plaintiffs claim that because Defendants are not asserting a “seniority system” defense, Plaintiffs are not limited to naming comparators who have served for the same amount of time as they have. The fact that Defendants are not asserting a “seniority system” defense is irrelevant to whether the VSO comparators must have a length of service comparable to that of Plaintiffs because length of service may be relevant to equality of work. However, a VSO who has served longer than a particular Plaintiff cannot automatically be eliminated from that Plaintiff’s list of comparators. Instead, that Plaintiff must be given the opportunity to show that despite the difference in length of service, the work of that VSO is substantially equal to that Plaintiff.
Defendants assert that Plaintiffs cannot name VSO comparators who work in different
8 Plaintiffs initially listed twenty-nine VSOs as comparators, but erroneously included the name “Jeffrey Thomas.” The correct name is “Jeff Thompson,” who was already one of the other twenty-eight listed comparators.
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county offices than they do. Plaintiffs assert that they are not limited by physical proximity in naming comparators because all VSOs in the state of Alabama are part of the same “establishment” as defined by the EPA.9 “[C]entral control and administration of disparate job sites can support a finding of a single establishment for purposes of the EPA. The hallmarks of this standard are centralized control of job descriptions, salary administration, and job assignments or functions.” Mulhall v. Advance Sec., Inc., 19 F.3d 586, 591 (11th Cir. 1994). As discussed above, both the CVAAs and the VSOs throughout Alabama are subject to centralized control despite working in different job sites. All CVAAs are controlled by the Alabama Merit System, while all VSOs are regulated by the Director of VA. This is enough evidence for Plaintiffs to create a factual issue as to whether CVAAs may legitimately be compared with VSOs who work in other offices, therefore at this point the Court cannot disqualify VSO comparators in who work in different offices than Plaintiffs.10 Defendants further claim that Plaintiffs cannot list as comparators VSOs who work in larger offices in larger cities than they do because those VSOs have heavier caseloads, and therefore do not perform equal work as required to establish a prima facie case under the EPA. Plaintiffs assert that they have put forth sufficient evidence that VSOs throughout the
9 The EPA states that “[n]o employer . . . shall discriminate, within any establishment . . .”29 U.S.C. § 206(d)(1) (emphasis added).
10 Defendants assert that Plaintiff Christine Hale does not have a valid EPA claim because she works in an office in which the only VSO is female. However, if Plaintiffs prove that CVAAs and VSOs statewide are part of the same establishment, Hale may compare herself to male VSOs in other offices in order to make her EPA claim. Thus, Hale may have a valid EPA claim and the Court will not grant summary judgment against her.
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state of Alabama perform work equal to that of the CVAAs to keep the Court from disqualifying these VSOs as comparators. Several Plaintiffs testified that they carried the same or greater caseloads than VSOs in larger offices. Furthermore, the statements that CVAAs and VSOs perform equal work made during the Alabama VA managers’ meetings do not differentiate among the various county offices.11 The Court finds that this is adequate evidence to keep from disqualifying VSO comparators based on office size and location at the summary judgment stage.
Defendants assert that by listing all twenty-eight VSOs as comparators, some Plaintiffs are attempting to compare themselves to VSOs who in fact earn less than they do. Plaintiffs respond that they have clearly stated that each Plaintiff is only comparing herself with the VSO comparators who earn more than her. The Court acknowledges that Plaintiffs may not validly compare themselves to VSOs who earn a lower salary than they do, and therefore the Court eliminates from each Plaintiff’s list of comparators those VSOs who earn less than she does. The Court will not consider those VSOs when evaluating Plaintiffs’ EPA claims.
Defendants claim that Plaintiffs cannot list comparators who are no longer VSOs (or were no longer VSOs at the time this suit was filed). Plaintiffs assert that they may list
11 To refute Plaintiffs’ evidence, Defendants point to Plaintiff Murphree’s testimony that the caseload of a VSO in Mobile County would “probably be a tad bigger than Calhoun County, larger volume of clientele” and to the testimony of Glen Reynolds, the Administrative Assistant to the Director of VA, who testified about the heavier caseloads in certain counties. On summary judgment, this is not enough evidence for the Court to disqualify VSOs based on office size and location.
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comparators who are no longer VSOs because the EPA permits comparison between successors to the same position as well as between those who work simultaneously in similar positions. While true, this only means that a plaintiff may compare her salary to the individual who she replaced or who replaced her if there are no similarly-situated employees employed concurrently with the plaintiff. It does not mean that a plaintiff can compare herself to any previous employee. Second, Plaintiffs claim that liability under Title VII may be based on acts occurring outside of the two-year statute of limitations period as long as a current violation is also shown. The Court does not decide whether this is true of Title VII claims, but holds that this assertion is irrelevant to the consideration of the propriety of VSO comparators for the EPA claims. However, the Fourth Circuit has held that
The statute of limitations applicable to Equal Pay Act and Title VII violations constitutes a jurisdictional bar that operates in relation to the injury to the plaintiff. Statutes of limitations do not operate as an evidentiary bar controlling the evidence admissible at the trial of a timely-filed cause of action. In other words, the statute of limitations does not operate to limit the evidence [plaintiff] may introduce regarding her co-workers. In the context of the Equal Pay Act, the statute of limitations does not dictate which co-workers the plaintiff may submit as comparators. . . . It is immaterial that a member of the higher paid sex ceased to be employed prior to the period covered by the applicable statute of limitations period for filing a timely suit under the EPA. Brinkley-Obu v. Hughes Training, Inc., 36 F.3d 336, 346 (4th Cir. 1994). The court went on to state that the relevant injury is the diminished paycheck that the plaintiff continues to receive; the work and wages of the comparator are merely pieces of evidence relevant to the legitimacy of the plaintiff’s case. Id. Therefore, Plaintiffs may include as comparators VSOs who are no longer employed by the Alabama VA and who were not so employed prior to the
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statute of limitations period.12 Finally, Defendants claim that Plaintiffs cannot compare themselves to VSOs who are
district managers13 because the work of district managers is different from the work of CVAAs. Plaintiffs did not respond directly to this claim, but they do claim that each VSO, including the district managers, testified that he does the same work as the Plaintiffs. However, the testimony of the four district managers only supports the general claim that VSOs and CVAAs do the same work. None of the four district managers testified that he himself does the same work as the CVAAs. Therefore, even viewing the evidence in the light most favorable to Plaintiffs, Plaintiffs cannot list the district manager VSOs as comparators because they have presented no evidence that the district managers do substantially the same work as the CVAAs.
Eliminating the VSOs who earn less than each individual Plaintiff and the VSOs who are (or were) district managers, there are still several VSO comparators left for each Plaintiff.14 Thus, the Court must compare each Plaintiff to her remaining VSO comparators to determine whether she has set forth a prima facie case of violation of the EPA.
b. Timeliness of Plaintiff Judkins’ EPA Action Defendants claim that Plaintiff Sue Judkins failed to timely file her EPA action. The
12 These comparators are Robert Story, Samuel Flanigan, and Lawrence Battiste. 13 The four VSOs who are (or were) district managers are Louis Graf, Charles Horton, Willie E. Moore, and Harold S. Taylor. 14 See Appendix for a list of the remaining VSO comparators for each Plaintiff.
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EPA provides that actions alleging violation of the EPA must be filed within two years after the cause of action accrues, except that suits for “willful” violations may be commenced up to three years after the cause of action accrues. 29 U.S.C. § 255(a). Judkins retired on August 31, 1998 and the present action was filed on December 7, 2000. Thus, the action was filed slightly more than two years and three months after the cause of action accrued. Defendants claim that the two-year statute of limitations applies to her claim, and that therefore she untimely filed her EPA action. Plaintiffs assert that Defendants willfully violated the EPA, and that therefore the three-year statute of limitations applies and Judkins’ action is timely. An employer commits a willful violation where it “knew or showed reckless disregard for the matter of whether its conduct was prohibited.” McLaughlin v. Richland Shoe Co., 486 U.S. 128, 130, 108 S. Ct. 1677, 1680, 100 L.Ed.2d 115 (1988). Plaintiffs assert that Defendants meet this standard because both the Alabama VA and the SPD have acknowledged several times that the pay was inequitable and because when CVAAs were hired, they were told their work was going to be purely secretarial, then were given work equal to that of VSOs. The Court finds that this is enough evidence to create a genuine issue of fact as to whether Defendants willfully violated the EPA. Therefore, the Court will not grant summary judgment against Plaintiff Judkins for failure to timely file her EPA claim.
c. Right to Injunctive Relief Defendants assert that Plaintiffs are not entitled to injunctive relief because the EEOC has exclusive jurisdiction to seek injunctive relief under the EPA. The right to bring an
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action for injunctive relief under the Fair Labor Standards Act (“FLSA”) rests exclusively with the Secretary of Labor. Powell v. Florida, 132 F.3d 677, 678 (11th Cir. 1998). The EPA is part of the FLSA. Plaintiffs concede that they cannot seek an injunction correcting the pay of CVAAs who are not parties to this action, but assert they may seek injunctive relief prospectively correcting their own salaries. Courts have ordered prospective changes to plaintiffs’ salaries in EPA cases. See, e.g., Ramsey v. Sate of Alabama Public Svc. Comm’n, 86 F. Supp. 2d 1124, 1130 (M.D. Ala. 2000) (holding the employer liable for back pay “with plaintiff Ramsey to be paid at the higher salary from then on”). Therefore, Plaintiffs here may seek injunctive relief under the EPA regarding their own salaries.
d. Plaintiff Collier’s Constructive Discharge Claim Plaintiff Susan Collier resigned from her position as a CVAA in February 2000. In the Second Amended Complaint, Plaintiffs allege that Collier was constructively terminated by Defendants policy of underpaying CVAAs as compared to male VSOs and request reinstatement, or in the alternative front pay for damages occurring as a result of her constructive termination. On summary judgment, Defendants claim that Collier fails to prove a claim of constructive discharge. Plaintiffs have not responded to Defendants’ claim. A finding of constructive discharge rests on the plaintiff proving that “working conditions would have been so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign.” Garner v. Wal-Mart Stores, Inc., 807 F.2d 1536, 1539 (11th Cir. 1987). While unequal pay is relevant to a determination of constructive discharge,
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“a difference in pay alone cannot constitute such an aggravated situation that a reasonable employee would be forced to resign.” Pittman v. Hattiesburg Mun. Separate Sch. Dist., 644 F.2d 1071, 1077 (5th Cir. Unit A May 1981).15 Collier testified that she left her position because of the amount of stress caused by the workload and by clients she saw, though she admitted that she enjoyed assisting clients. She also complained that other people were getting paid more for doing the same work. Under the Eleventh Circuit’s constructive discharge standard, this is not enough evidence to maintain a constructive discharge claim, therefore summary judgment is due to be granted in favor of Defendants as to Plaintiff Collier’s constructive discharge.
e. Eleventh Amendment Immunity Defendants raise the defense of Eleventh Amendment immunity regarding the EPA claims. As Defendants recognize, the Eleventh Circuit has held that states are not immune from EPA suits, Hundertmark v. State of Fla. Dept. of Transp., 205 F.3d 1272 (11th Cir. 2000), and that holding is binding precedent on this Court. Therefore, the Court holds that Defendants do not have Eleventh Amendment immunity from Plaintiffs’ EPA claims. Now that the preliminary issues have been addressed, the Court will evaluate whether Plaintiffs have set forth a prima facie case of an EPA violation. 2. Prima Facie Case
15 Decisions of the Fifth Circuit handed down prior to September 30, 1981 are binding precedent on the district courts of the Eleventh Circuit. See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981).
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To establish a prima facie case under the EPA, the plaintiff must show “that an employer pays different wages to employees of opposite sexes ‘for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.’” Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1532 (11th Cir. 1992)(quoting Corning Glass Works, 417 U.S. at 195). Thus, establishing the prima facie case requires comparison of the plaintiff’s work and earnings to that of a person of the opposite sex; the person of the opposite sex to whom a plaintiff compares herself for purposes of showing a wage discrepancy is referred to as a “comparator.” Gosa v. Bryce Hosp., 780 F.2d 917, 918 (11th Cir. 1986). A plaintiff need not prove that her job is identical to that of her comparator; rather, she must only demonstrate that the jobs are “substantially equal.” Miranda, 975 F.2d at 1533.
A court’s resolution of a plaintiff’s claim that the work she performed is “equal” to that of the comparator does not depend simply on a comparison of job titles or classifications, but on a comparative analysis of actual job requirements and performance. 29 C.F.R. § 1620.13(e); Pearce v. Wichita County, City of Wichita Falls, Tex., Hosp. Bd., 590 F.2d 128, 133 (5th Cir. 1979) (while the job title is entitled to some weight in the assessment of comparative responsibility the actual job content is dispositive). In making this comparison, a court must focus solely on the primary duties of each job, not the duties that are incidental or insubstantial. Miranda, 975 F.2d at 1533. Furthermore, a court should compare only the jobs held by the male and female employees, not the skills and qualifications of the
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individual employees holding those jobs. That is, the court should consider only the skills and qualifications actually needed to perform the jobs. Id.
a. Equal Skill “Skill includes consideration of such factors as experience, training, education, and ability. . . . Possession of a skill not needed to meet the requirements of the job cannot be considered in making a determination regarding equality of skill.” 29 C.F.R. § 1620.15(a). Defendants first argue that the requirement that VSOs be wartime veterans makes the skills necessary for the CVAA and VSO positions unequal. Defendants assert that VSOs being veterans gives the Alabama VA an established presence in the community, makes VSOs uniquely qualified to sympathize and connect with fellow veterans, and permits VSOs to be “accredited representatives” before the Board of Veterans’ Appeals. On the other hand, Plaintiffs have presented evidence that veteran status is not required to perform the job. For instance, the fact that cases are randomly assigned to VSOs and CVAAs suggests that veteran status is unimportant to performance of the job. On Defendants’ Motion for Summary Judgement, viewing all facts in the light most favorable to the Plaintiffs, Plaintiffs’ evidence is sufficient to establish that being a veteran is not necessary to perform the job, and therefore cannot be considered in determining equality of skill. Defendants also argue that the VSO position requires greater skill than the CVAA position because VSOs are required to have experience and training equivalent to two years of college, while CVAAs are only required to have experience and training equivalent to
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graduation from high school. Again, Plaintiffs have presented enough evidence that this difference in skill is not necessary to meet the requirements of the job, and therefore cannot be considered in determining equality of skill.
Thus, Plaintiffs have presented sufficient evidence to create a question of fact as to whether VSO and CVAA positions require equal skill.
b. Equal Effort “Effort is concerned with the measurement of the physical or mental exertion needed for performance of a job. Job factors which cause mental fatigue and stress, as well as those which alleviate fatigue, are to be considered.” 29 C.F.R. § 1620.16(a). Defendants argue that the VSO position requires greater effort than the CVAA position because of the after hours work required of VSOs for which they do not receive additional compensation (described in detail above). Plaintiffs claim that they perform essentially the same after hours work, also without compensation. The evidence presented by Plaintiffs to this effect is sufficient to create a question of fact as to whether VSO and CVAA positions require equal effort.
c. Equal Responsibility “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 § 1620.17(a). Defendants assert that the VSO position requires greater responsibility because of the high standard of conduct required of VSOs (detailed above) and the VSOs’ responsibility for the work performed in their respective offices. Additionally, Defendants
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assert that the VSO position entails greater responsibility because the VSOs supervise the CVAAs. Plaintiffs claim that the standard of conduct for VSOs is equal to or less than that of CVAAs and that VSOs are not held ultimately responsible for the work of their offices. Plaintiffs admit that VSOs are “rating supervisors” on the CVAAs’ annual performance appraisals, but most of the Plaintiffs assert that VSOs are supervisors in name only and that filling out the annual performance appraisals is a minimal part of their jobs. However, the evidence, viewed in the light most favorable to the Plaintiffs, supports Defendants’ assertion that Plaintiffs Vicky Brown and Christine Hale admitted that the VSOs are their supervisors. Since supervisors inherently have more responsibility than their subordinates, these two Plaintiffs have failed to show that their work is substantially similar to the VSOs, and therefore have failed to establish a prima facie EPA violation. Thus, summary judgment is due to be granted in favor of Defendants as to the EPA claims of Plaintiffs V. Brown and Hale. While Defendants also claim that Plaintiff Coker admitted that the VSO was her supervisor, her statement that he probably has the authority to assign her work is insufficient for the Court to hold that they do not have equal responsibility, thus the Court will not grant summary judgment against Coker for this reason. As to the other Plaintiffs, they have presented enough evidence to create a question of fact as to whether VSO and CVAA positions require equal responsibility.
d. Similar Working Conditions Defendants contend that the after hours work performed by VSOs demonstrates that
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VSOs and CVAAs do not perform their jobs under similar working conditions. The term ‘similar working conditions’ encompasses two subfactors: ‘surroundings’ and ‘hazards.’ ‘Surroundings measure the elements, such as toxic chemicals or fumes, regularly encountered by a worker, their intensity and their frequency. ‘Hazards’ take into account the physical hazards regularly encountered, their frequency and the severity of the injury they can cause.
29 C.F.R. § 1620.18. See also Corning Glass Works, 417 U.S. at 201-02. After hours work has no relation to either the surroundings or hazards of the job. Moreover, even if the after hours work could somehow fall within the definition of “working conditions,” Plaintiffs assert that CVAAs perform the substantially the same after hours work, and therefore have created a question of fact as to whether VSOs and CVAAs perform their jobs under similar working conditions.
As Plaintiffs have put forth sufficient evidence to create an issue of fact as to whether VSOs and CVAAs perform equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, they have established a prima facie case of violation of the EPA.
3. Affirmative Defenses “Once a prima facie case is demonstrated, to avoid liability the employer must prove by a preponderance of the evidence that the differential is justified by one of four exceptions set forth in the EPA.” Irby v. Bittick, 44 F.3d 949, 954 (11th Cir. 1995)(internal quotations and citations omitted). The four affirmative defenses available to the employer are: (1) a seniority system; (2) a merit system; (3) a system which measures earnings by quantity or
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quality of production; or (4) a differential based on any additional factor other than sex. See 29 U.S.C. § 206(d)(1). Importantly, a defendant invoking an affirmative defense under the EPA must show that the factor of sex provided no basis for the wage differential. Gosa, 780 F.2d at 918 (the requirements for proving an exception are not met unless the factor of sex provides no part of the basis for the wage differential). A defendant’s burden in establishing the application of one of the exceptions is a heavy one. See Corning Glass Works, 417 U.S. at 196-97. However, if a defendant proves an affirmative defense, that defendant is absolved of liability as a matter of law. Mulhall, 19 F.3d at 591. The Eleventh Circuit has noted that it is difficult to dispose of an affirmative defense by way of summary judgment because “[c]redibility and the weight to be given to such ‘explanations’ are traditionally matters left to the consideration of factfinders.” Id. at 595. Defendants argue that the difference in pay between the CVAAs and the VSOs is justified by two of the four exceptions.
First, Defendants assert that the difference in pay falls under the “merit system” exception. The Eleventh Circuit defines a merit system as a system which “presents a means of order or advancement or reward for merit.” Brock v. Georgia S.W. Coll., 765 F.2d 1026, 1036 (11th Cir. 1985) overruled on other grounds by McLaughlin v. Richland Shoe Co., 486 U.S. 128, 108 S. Ct. 1677, 100 L.Ed.2d 115 (1988). The employer must show that its merit system is administered systematically and objectively. Hodgson v. Brookhaven Gen. Hosp., 436 F.2d 719, 726 (5th Cir. 1970). The merit system exception must be strictly construed
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against the employer. Id. Clearly, the Alabama Merit System, under which the CVAAs are employed, qualifies as a merit system under this definition. The Alabama Merit System Act sets forth objective standards and processes for hiring, promotion, transfer, and many other aspects of advancement. However, it is undisputed that the VSOs are not governed by the Act and are not merit system employees. The Equal Pay Act excepts “payment . . . made pursuant to . . . a merit system.” This language suggests that the Plaintiffs and their comparators must be part of the same merit system. Based on the Eleventh Circuit’s definition of “merit system” and analysis of the merit system exception, it appears that the rationale behind the exception is that if both a plaintiff and her comparator are part of a merit system, each one’s pay has been determined fairly and objectively by the system, and therefore the difference in pay is justified by legitimate factors other than sex. However, in this case, Plaintiffs and their comparators are not part of the same merit system, thus their relative pay has not been determined objectively by the same system. Therefore, the fact that the CVAAs are governed by a merit system is not any evidence that their pay has been determined fairly in relation to the VSOs’ pay. Thus, Defendants cannot assert the merit system exception as an affirmative defense.
Second, Defendants contend that the difference in pay falls within the “factor other than sex” exception. Defendants cite four factors other than sex that justify the pay difference – the dual classification system, the veteran status requirement, Defendants’ good faith belief that all employees were properly classified, and the fact that creation of a new
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classification could violate the Frazer order. The legislative history of the EPA suggests that
Congress intended for the “factor other than sex” exception to be broad, allowing for
differentials in pay based on any factor or factors other than sex. See County of Washington
v. Gunther, 452 U.S. 161, 170 n.11 (1981). The Eleventh Circuit, however, has suggested
that the exception be applied more narrowly, requiring that the “factor other than sex” have
a legitimate business purpose.16 The Eleventh Circuit also requires that defendants present
“an explanation of how those factors [other than sex] actually resulted in an individual
employee earning more than another.” Brock, 765 F.2d at 1037.
Defendants first assert that the “dual classification system” is a factor other than sex.
Defendants do not specifically argue that the dual classification system serves a legitimate
business purpose, but instead cite decisions of other courts finding that the fact that salaries
are paid from two different sources may be a factor other than sex. None of the cases cited
16 See Price v. Lockheed Space Operations Co., 856 F.2d 1503, 1506 (11th Cir. 1988)(stating that “[a]n employer will have violated the Act . . . if other business reasons do not reasonably justify the utilization of prior salary [to determine current salary]”); Glenn v. General Motors Corp., 841 F.2d 1567, 1571 (11th Cir. 1988)(stating that the exception applies “when the disparity results from unique characteristics of the same job; from an individual’s experience, training or ability; or from special exigent circumstances connected with the business”). The Second, Sixth, and, Ninth Circuits also require the “factor other than sex” to be business related. See Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520,525 (2d Cir. 1992)(holding that an employer must prove that the “system resulting in differential pay is rooted in legitimate business-related differences in work responsibilities and qualifications”); EEOC v. J.C. Penney Co., 843 F.2d 249, 253 (6th Cir. 1988)(requiring that the factor “was adopted for a legitimate business reason”); Kouba v. Allstate Ins. Co., 691 F.2d 873, 876 (9th Cir. 1982)(stating that “[a]n employer thus cannot use a factor which causes a wage differential between male and female employees absent an acceptable business reason”). The Seventh and Eighth Circuits require only that the factor be bona fide (used in good faith) and gender neutral on its face. See Fallon v. Illinois, 882 F.2d 1206, 1211 (7th Cir. 1989); Taylor v. White, 321 F.3d 710, 717-719 (8th Cir. 2003).
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support Defendants’ argument. A number of the cases apply too broad a definition of “factor other than sex.” See, e.g., Riordan v. Kempiners, 831 F.2d 690 (7th Cir. 1987). While the Fourth Circuit stated in one case that it was “satisfied that the pay differential was not based on sex . . . [but was] [i]nstead attributable to the existence of two distinct salary programs,” EEOC v. Aetna Ins. Co., 616 F.2d 719, 726 (4th Cir. 1980), the Eleventh Circuit has held that Aetna “does not stand for the proposition that pay disparity is justified when it results from two distinct nondiscriminatory merit systems. Rather, the Fourth Circuit validated the differential because of the male comparator’s experience and background.” Glenn, 841 F.2d at 1571 n.9. Thus, the existence of a dual classification system alone does not count as a “factor other than sex” and Defendants cannot assert the dual classification system alone as an affirmative defense.
Defendants also claim that the requirement that VSOs be wartime veterans is a “factor other than sex.” Defendants claim that assisting veterans is clearly a legitimate business purpose. They claim that the state owes a debt of gratitude to veterans for their service; that veterans are likely to possess certain qualities, such as courage, which are valuable qualifications for a public officeholder; and that veterans should be aided in relocation and rehabilitation. Defendants also make factual allegations concerning the importance of veteran status to the VSO position (detailed above). These claims are enough to meet the burden of showing that veteran status may be a “factor other than sex” which justifies the
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difference in pay.17 Third, Defendants assert that the SPD’s good faith belief that the CVAAs are properly
classified as ASAs is a “factor other than sex.” Defendants claim that the Court must defer to the SPD’s good faith business judgment that Plaintiffs are properly classified. “Under the Equal Pay Act, the courts . . . are not permitted to ‘substitute their judgment for the judgment of the employer ... who [has] established and applied a bona fide job rating system,’ so long as it does not discriminate on the basis of sex.” Gunther, 452 U.S. at 170-71, 101 S. Ct. at 2248-49 (citing 109 Cong. Rec. 9209 (1963)(statement of Rep. Goodell)). However, this does not suggest that “Congress . . . envisioned as a bona fide ‘other factor’ an employer’s mere belief, untested by any objective job rating system, that men and women are not engaging in equal work.” Laffey v. Northwest Airlines, Inc., 740 F.2d 1071, 1079 (D.C. Cir. 1984). Thus, whether good faith belief may be considered to be a “factor other than sex” turns on whether the decision to pay men and women unequally was the result of the application of an objective job rating system. While it is clear that the merit system governing CVAAs is an objective job rating system, there exists a question of fact as to whether the salaries of CVAAs are determined objectively in relation to the salaries of the
17 Defendants also assert that the burden is on Plaintiffs to negate every conceivable justification for the statutory requirement that a VSO be a veteran. They assert that this is because the state statute requiring VSOs to be veterans is gender neutral, and that therefore a challenge to the statute is subject to the rational basis standard of review. The Court agrees with Plaintiffs that this argument is irrelevant to the issues in this case. Plaintiffs are not challenging the requirement that VSOs be veterans. Plaintiffs are not trying to become VSOs. Instead, Plaintiffs are claiming that the veteran status requirement does not legitimately justify the difference in pay between CVAAs and VSOs, and thus the requirement is really a pretext for sex discrimination.
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VSOs. Therefore, Defendants have met their burden of showing that good faith may be a
“factor other than sex.” Furthermore, even if Plaintiffs are not properly classified,
Defendants claim that a wage disparity due to a good faith mistake in classification can be
a “factor other than sex.” The Sixth Circuit has held that a wage disparity due to mistake
may be a “factor other than sex,” as long as the employer proves that sex provides no part of
the basis for the wage differential. Timmer v. Michigan Dep’t of Commerce, 104 F.2d 833,
843-44 (6th Cir. 1997). There is a question of fact as to whether sex was a part of the basis
for the difference between CVAA and VSO wages. Therefore, Defendants may be able to
assert the affirmative defense of “factor other than sex” based on mistaken classification.
Finally, Defendants assert that the creation of a new classification could violate the Frazer decree’s no-bypass rule,18 which is a “factor other than sex” as to why the pay of
CVAAs cannot be changed. However, there is no evidence that reclassifying the CVAAs would necessarily have to violate the no-bypass rule.19 Clearly, the rule could still apply
18 Frazer refers to the case of United States v. Frazer, 317 F. Supp. 1079 (M.D. Ala. 1970), which concerned the Alabama Merit System. The Frazer no-bypass rule is as follows:
Defendants shall not appoint or offer a position to a lower-ranking white applicant on a certificate in preference to a higher-ranking available Negro applicant, unless the defendants have first contacted and interviewed the higher-ranking Negro applicant and have determined that the Negro applicant cannot perform the functions of the position, is otherwise unfit for it, or is unavailable. In every instance where a determination is made that the Negro applicant is unfit or unavailable, documentary evidence shall be maintained by the defendants that will sustain such finding. Id. at 1091. 19 In fact, Defendants only assert that a new classification “could” violate the Frazer order, not that it would necessarily violate the Frazer order.
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within the new classification. The mere suggestion that a new classification could hypothetically violate the no-bypass rule is not enough to meet the Eleventh Circuit’s standard concerning the “factor other than sex” exception.
Because Defendants have presented adequate evidence that, if true, would permit them to assert the affirmative defense of “factor other than sex”as to veteran status or good faith belief, the Court must determine whether either of these justifications may be a pretext for sex discrimination.
4. Pretext When the defendant overcomes the burden of proving an affirmative defense, the plaintiff must rebut the explanation by showing, with affirmative evidence, that the defendant’s reason is pretextual or offered as a post-event justification for a gender-based differential. See Schwartz v. Florida Bd. of Regents, 954 F.2d 620, 623 (11th Cir. 1991). If the plaintiff is able to create the inference of pretext, there is an issue which should be reserved for trial; otherwise summary judgment is appropriate. Irby, 44 F.3d at 954. The question of pretext places the burden of production on the plaintiff to come forward with evidence that could disprove the affirmative defense. On summary judgment, this means “evidence from which it may reasonably be inferred that the real factor behind wage differentials was not the identified factor other than sex.” Behm v. United States, No. 00222C, 2005 WL 276554, *4 (Fed. Cl. Oct. 24, 2005). First, Defendants claim that the fact that VSOs are required to be wartime veterans
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accounts for the pay differential. Plaintiffs have put forth evidence showing that the VSOs’ wartime veteran status does not result in their work being any different from the work of CVAAs, and that therefore their veteran status does not justify their higher salaries. This evidence is sufficient to infer that veteran status is not the real reason for the pay differential.
Second, Defendants argue that the good faith belief that the Plaintiffs were properly classified is the reason for the difference in pay. Plaintiffs claim that the evidence, particularly the meetings of the Alabama VA management, shows that neither the Alabama VA nor the SPD in good faith believed that Plaintiffs were properly classified. Plaintiffs also claim there is no evidence of any mistake in classification because Defendants knew that Plaintiffs were improperly classified. Again, this is sufficient evidence from which it could be inferred that the good faith belief that Plaintiffs were properly classified is not the real reason for the pay differential.
5. Conclusion Plaintiffs (other than Vicky Brown and Christine Hale) have created a genuine issue of fact as to whether their jobs are “substantially equal” to those of the VSOs, and therefore, for the purposes of Defendants Motion for Summary Judgment, they have established a prima facie case of an EPA violation. In response, Defendants asserted the affirmative defenses of “merit system” and “factor other than sex.” While Defendants did not meet their burden of production on the “merit system” defense, they did present adequate evidence to create an issue of fact as to whether they may assert the “factor other than sex” defense on
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the basis of the veteran status requirement or a good faith belief that Plaintiffs were properly classified. However, Plaintiffs also presented adequate evidence from which it could be inferred that Defendants’ two claimed factors other than sex were not the real reasons for the pay disparity, and that the pay disparity was due to sex. Therefore, summary judgment on Plaintiffs Vicky Brown and Christine Hale’s EPA claims is due to be granted, while summary judgment on all of the other Plaintiffs’ EPA claim is due to be denied. B. Title VII
Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating “against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex.” 42 U.S.C. § 2000e-2(a)(1). When an employee seeks to prove a claim of gender-based wage discrimination, the test to be applied is the familiar burden-shifting analysis articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and its progeny. Miranda, 975 F.2d at 1528.
1. Preliminary Issues Prior to evaluating the substantive issues relating to Plaintiffs’ claims that Defendants violated Title VII, the Court must address several preliminary issues raised by the Defendants in relation to Plaintiffs’ Title VII claims.
a. Timeliness of EEOC Charges Under Title VII, an individual must file a charge with the EEOC “within 180 days after the alleged unlawful employment practice occurred.” 42 U.S.C § 2000e-5(e)(1).
41

Case 2:00-cv-01674-RDP-SRW Document 119-1 Filed 03/03/06 Page 42 of 52
The parties agree that the Title VII claims of Plaintiffs Collier, Thomason, and Judkins are due to be dismissed because they untimely filed their EEOC petitions. Thus, summary judgment is due to be granted as to these three Plaintiffs on their Title VII claims.
Additionally, Defendants claim that Plaintiffs Shirl Brogdon, Sandra Brown, Deborah Murphree, Jan Robbins, and Cecilia Talley failed to timely file EEOC charges, and thus have not satisfied the prerequisites to a Title VII action.20 It is undisputed that these Plaintiffs never filed charges with the EEOC. While timely filing of an EEOC charge is a prerequisite to a Title VII action, in certain instances, a plaintiff who has not filed an EEOC charge may rely on another plaintiff’s charge. In multiple-plaintiff, non-class action suits, a plaintiff can rely on the charge of her co-plaintiff if the charge relied on is timely and not otherwise defective and the individual claims of the filing and non-filing plaintiffs have arisen out of similar discriminatory treatment in the same time frame. Calloway v. Partners Nat’l Health Plans, 986 F.2d 446, 449-50 (11th Cir. 1993). Defendants do not contest the validity of the other Plaintiffs’ EEOC charges. Furthermore, it is clear that the claims of both the filing and non-filing Plaintiffs are basically identical in terms of time frame and discriminatory treatment alleged. Therefore, despite the fact that they did not file EEOC charges, Plaintiffs Brogdon, S. Brown, Murphree, Robbins, and Talley may still assert their Title VII claims.
b. Right-to-Sue Letters
20 Defendants assert that filing on an EEOC charge is a jurisdictional prerequisite, but Eleventh Circuit precedent is to the contrary. Grayson v. K-Mart Corp., 79 F.3d 1086, 1103 n.32 (11th Cir. 1996)(stating that “[t]he timely filing on an EEOC charge is not a jurisdictional prerequisite to bringing a Title VII suit in federal court and is thus subject to waiver and estoppel”).
42

Case 2:00-cv-01674-RDP-SRW Document 119-1 Filed 03/03/06 Page 43 of 52
As a condition precedent to bringing a Title VII action against a governmental agency, a plaintiff must obtain a right-to-sue letter from the Attorney General. See 29 C.F.R. § 1601.28(d). Defendants claim that Plaintiffs’ Title VII claims are due to be dismissed because their right-to-sue letters were signed by Karen L. Ferguson, a Civil Rights Analyst in the Employment Litigation Section of the Civil Rights Division of the U.S. Department of Justice, not by the Attorney General. However, Ms. Ferguson signed on behalf of Ralph F. Boyd, Jr., Assistant Attorney General for the Civil Rights Division. A number of courts have accepted right-to-sue letters signed by the Assistant Attorney General as fulfilling the right-to-sue letter requirement. See, e.g., Marrero Rivera v. Dep’t of Justice of the Commonwealth of Puerto Rico, 821 F. Supp. 65, 67 (D. P.R. 1993); Quarles v. N. Miss. Retardation Ctr., 455 F. Supp. 52, 54 (N.D. Miss. 1978). This Court also finds that the signature of the Assistant Attorney General (by the Civil Rights Analyst) fulfills the requirement of a right-to-sue letter. Thus, Plaintiffs’ Title VII claims are not barred by failure to comply with the right-to-sue letter requirement.
c. Exclusion of State Statutes Privileging Veterans Title VII provides that “[n]othing in this subchapter shall be construed to repeal or modify any Federal, State, territorial, or local law creating special rights or preferences for veterans.” 42 U.S.C. § 2000e-11. Defendants assert that this provision prevents Plaintiffs from bringing their Title VII claims because it excludes from Title VII’s coverage the Alabama statute requiring VSOs to be wartime veterans. Plaintiffs respond by again stating
43

Case 2:00-cv-01674-RDP-SRW Document 119-1 Filed 03/03/06 Page 44 of 52
that they are not challenging the veteran status requirement and do not want to become VSOs. Plaintiffs point out that all of the cases cited by Defendants are hiring cases in which a non-veteran seeks to be hired into a position that has a veteran preference. See, e.g., Skillern v. Bolger, 725 F.2d 1121, 1123 (7th Cir. 1984). The Court agrees with Plaintiffs that such cases are distinguishable from the present pay disparity case. Plaintiffs are not asking to be hired as VSOs despite the fact that they are not veterans; instead, they are asking to be paid equally for equal work. Thus, Title VII’s exclusion of veteran preference statutes is inapplicable to this case.
As there are Title VII claims that remain after addressing the preliminary issues, the Court will now evaluate Plaintiffs’ substantive Title VII claims.
2. Prima Facie Case First, a plaintiff must establish a prima facie case of sex discrimination. To do so, the plaintiff must demonstrate that she is female and that the job she occupies is similar to higher paying jobs occupied by males. Miranda, 975 F.2d at 1529. Under Title VII, there is a more relaxed standard of similarity between the plaintiff’s job and her comparator’s job than under the EPA. Id. at 1526. As discussed above, most of the Plaintiffs have put forth enough evidence to establish a prima facie case under the EPA, therefore, because of the more relaxed standard, they have also established a prima facie case under Title VII. Plaintiffs Vicky Brown and Christine Hale failed to establish a prima facie case under the EPA because they admitted that the VSOs were their supervisors. However, under the more
44

Case 2:00-cv-01674-RDP-SRW Document 119-1 Filed 03/03/06 Page 45 of 52
relaxed Title VII standard of similarity, those admissions are insufficient for the Court to find that they have failed to establish a prima facie case under Title VII. Thus, the Court holds that all of the Plaintiffs have put forth enough evidence to establish a prima facie Title VII violation.
3. Legitimate, Nondiscriminatory Reason for Pay Differential Once a plaintiff establishes the requisite elements of the prima facie case, the defendant has the burden of producing a legitimate, non-discriminatory reason for the challenged employment action. See, e.g., Holifield v. Reno, 115 F.3d at 1564 (citing Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981)). The employer’s burden is “exceedingly light.” Holifield, 115 F.3d at 1564. Defendants assert that they have three legitimate, non-discriminatory reasons for paying VSOs higher salaries: the dual classification system, the veteran status requirement, and a good faith belief that Plaintiffs are appropriately classified. Plaintiffs concede that Defendants have met their burden on the “dual classification” reason. For the reasons discussed in relation to Defendants’ affirmative defenses under the EPA, the Court finds that Defendants have introduced enough evidence to meet their burden of showing that the veteran status requirement and good faith belief in proper classification are legitimate, nondiscriminatory reasons for the difference in pay. 4. Pretext The burden now shifts back to the Plaintiffs “to establish by a preponderance of the evidence that the proffered justifications are actually a pretext for gender-based
45

Case 2:00-cv-01674-RDP-SRW Document 119-1 Filed 03/03/06 Page 46 of 52
discrimination.” Miranda, 975 F.2d at 1529. The Plaintiffs may seek to demonstrate that the proffered justification was not the true reason for the pay differential “either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.” Burdine, 450 U.S. at 256; Miranda, 975 F.2d at 1529. While Plaintiffs ultimately have the burden of proving an intent to discriminate on the basis of sex, Miranda, 975 F.2d at 1526, “[a]t summary judgment, plaintiffs’ burden is simply to raise a genuine factual question as to the existence of pretext. . . . Summary judgment is appropriate when evidence of discriminatory intent is totally lacking. This will seldom be the case when the elusive factual question of intentional discrimination is involved.” Mulhall, 19 F.3d at 598 (internal citations and quotations omitted).
Plaintiffs claim that the veteran status requirement is pretextual because the fact that cases are not routed to CVAAs or VSOs based on veteran status suggests that veteran status is irrelevant to their work. This is adequate to create a triable issue as to whether the veteran status requirement is a pretext for discrimination. As to Defendants’ other two reasons, Plaintiffs assert that they are pretextual because there is evidence that Defendants admitted that CVAAs perform basically the same work as VSOs, but refused to fix the pay differential. Thus, Plaintiffs claim, the dual classification system is not the true explanation for the difference in pay and there was no good faith mistake in classification because Defendants knew the classification was wrong. This is enough evidence to create a genuine question of
46

Case 2:00-cv-01674-RDP-SRW Document 119-1 Filed 03/03/06 Page 47 of 52
fact as to pretext and preclude summary judgment on Plaintiffs’ Title VII claims. Therefore, summary judgment is due to be denied on the remaining Plaintiffs’ Title VII claims.21 C. Potential Liability of the Alabama VA
Defendants assert that, even assuming Plaintiffs’ pay is in violation of the EPA and/or Title VII, Defendant Alabama VA cannot be held liable because it does not exercise any control over Plaintiffs’ pay or classification. Defendants cite the Eighth Circuit case Strecker v. Grand Forks County Soc. Serv. Bd., 640 F.2d 96 (8th Cir. 1981) abrogated on other grounds by Robino v. Norton, 682 F.2d 192 (8th Cir. 1982), to support their argument. In that case, plaintiff worked for the Grand Forks County Social Service Board, but her salary and classification were determined by the Central Personnel Division. The Board could only recommend changes in classification, which it did several times, but could not actually change her classification. The court held that “[t]he evidence may well support the conclusion that the classification underpaid capable people . . . however, there is no showing that the system was designed to, or in fact resulted in underpaying persons because of their sex.” Id. at 103. The court then went on to note that
In any event, the bottom line is that . . . the Board could not advance [plaintiff] without Central Personnel either altering its classification requirements or reevaluating [plaintiff’s] personal qualifications. . . . [T]he board supported [plaintiff] in efforts to have her advanced. On the record it is difficult to understand what more . . . the Board could do to help [plaintiff]. It is obvious that Central Personnel controlled her advancement, not . . . the Board.
21 That is, those Plaintiffs whose Title VII claims are not due to be dismissed for failure to timely file an EEOC charge.
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Case 2:00-cv-01674-RDP-SRW Document 119-1 Filed 03/03/06 Page 48 of 52
Id. Because the court held that there was no showing that the plaintiff was underpaid because of her sex, these statements concerning the Board’s inability to raise her salary are dicta. So, though the relationship between the Board and Central Personnel in Strecker is similar to the relationship between the Alabama VA and SPD in the present action, Strecker does not support the Defendants’ contention that the Alabama VA cannot be held liable for Plaintiffs’ salary.
Plaintiffs argue that the Alabama VA may be held liable for EPA and/or Title VII violations, citing the Eleventh Circuit case Morgado v. Birmingham-Jefferson County Civil Defense Corps, 706 F.2d 1184 (11th Cir. 1983). There, plaintiff was employed by the Birmingham-Jefferson County Civil Defense Corps (hereinafter “Corps”). For jobs within the Corps, including plaintiff’s job, the Jefferson County Personnel Board (hereinafter “Board”) wrote the descriptions, recruited and screened applicants, and set salaries. The Board had sole authority to increase plaintiff’s pay. At various times, plaintiff requested salary increases from the Board. These requests were supported by the Corps’ Director, who supervised her work, but nonetheless were consistently rejected by the Board. The district court made an award against the Corps and the co-chairmen of the Birmingham-Jefferson County Civil Defense Mayors’ Advisory Council for the amount of actual underpayment of plaintiff’s wages. The district court also awarded liquidated damages against the Board, but held that the Corps was not liable for liquidated damages because the Corps was prohibited from increasing plaintiff’s pay by virtue of state law and Board regulations. The district
48

Case 2:00-cv-01674-RDP-SRW Document 119-1 Filed 03/03/06 Page 49 of 52
court further held that the Board was not liable for back pay as a matter of law because plaintiff’s salary was not paid by the Board, but merely controlled by it. On appeal, the Corps contended that it should not be held liable for back pay because it had consistently attempted to obtain a pay increase for plaintiff but continued to underpay her because the Board prohibited a salary increase and because of state law. The plaintiff argued that both the Corps and the Board should be jointly liable for back pay. The Eleventh Circuit stated that because “the Corps paid [plaintiff] and . . . the Board . . . set that pay . . . [t]he two entities are not independent; one is making a management or employment decision for the other.” Id. at 1190. The court then held that the district court’s conclusion that “since the Corps paid [plaintiff], it was liable for the underpayment, and since the Personnel Board had set the policy, it was liable for liquidated damages” was reasonable. Id. Similarly, in the present case, the SPD determines Plaintiffs’ salaries, but the Alabama VA pays their salaries. Therefore, as in Morgado, both entities may be held liable to the Plaintiffs for violation of the EPA and/or Title VII.
CONCLUSION In sum, summary judgment is due to be granted in favor of Defendants as to the EPA claims of Plaintiffs Vicky Brown and Christine Hale and as to the Title VII claims of Plaintiffs Susan Collier, Sue Judkins, and Theresa Thomason. Summary judgment is also due to be granted in favor of Defendants as to Plaintiff Collier’s constructive discharge claim. Summary judgment is due to be denied as to all of the other Plaintiffs’ EPA and Title
49

Case 2:00-cv-01674-RDP-SRW Document 119-1 Filed 03/03/06 Page 50 of 52 VII claims.
Therefore, for the reasons stated above, the Defendants’ Motion for Summary Judgment (Doc. # 72) is hereby GRANTED IN PART and DENIED IN PART.
DONE this the 3rd day of March, 2006. /s/ Mark E. Fuller
CHIEF UNITED STATES DISTRICT JUDGE
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Case 2:00-cv-01674-RDP-SRW Document 119-1 Filed 03/03/06 Page 51 of 52
Appendix Remaining VSO Comparators for Each Plaintiff 1. For Vickie K. Prewett: John R. Haley, Robert I. Story, Samuel L. Flanigan, Lawrence Battiste, Joseph Morris, James Baggett, Dalton Wester, Al Mollette, Charles Abron, Jimmy Sims, Mike Beaird, Steven Louis, August R. Lehe, Michael H. Graves, James F. Vaughn, Henry Michael Knodel, William C. Cowart, James E. Rowell, Dale M. Harrison, James E. Manning, Morris R. Steenson, Charles R. Ross. 2. For Deborah Coker: John R. Haley, Robert I. Story, Samuel L. Flanigan, Lawrence Battiste, Joseph Morris, James Baggett, Dalton Wester, Al Mollette, Charles Abron, Jimmy Sims, Steven Louis, August R. Lehe, Michael H. Graves, James F. Vaughn, Henry Michael Knodel, William C. Cowart, James E. Rowell, Dale M. Harrison, James E. Manning, Morris R. Steenson. 3. For Lisa Jackson: John R. Haley, Robert I. Story, Samuel L. Flanigan, Lawrence Battiste, Joseph Morris, James Baggett, Dalton Wester, Al Mollette, Charles Abron, Jimmy Sims, Mike Beaird, Steven Louis, August R. Lehe, Michael H. Graves, James F. Vaughn, Henry Michael Knodel, William C. Cowart, James E. Rowell, Dale M. Harrison, James E. Manning, Morris R. Steenson, Charles R. Ross. 4. For Betty Dubose: John R. Haley, Robert I. Story, Samuel L. Flanigan, Lawrence Battiste, Joseph Morris, James Baggett, Dalton Wester, Al Mollette, Charles Abron, Jimmy Sims, Steven Louis, August R. Lehe, Michael H. Graves, James F. Vaughn, Henry Michael Knodel, William C. Cowart, James E. Rowell, Dale M. Harrison, James E. Manning, Morris R. Steenson, Charles R. Ross. 5. For Theresa Thomason: John R. Haley, Robert I. Story, Samuel L. Flanigan, Lawrence Battiste, Charles David McElwee, Joseph Morris, James Baggett, Dalton Wester, Charles Abron, Jimmy Sims, Mike Beaird, Jeff Thompson, August R. Lehe, Michael H. Graves, James F. Vaughn, Henry Michael Knodel, William C. Cowart, James E. Rowell, Dale M. Harrison, James E. Manning, Morris R. Steenson. 6. For Valerie Porter Williams: John R. Haley, Robert I. Story, Samuel L. Flanigan, Lawrence Battiste, Charles David McElwee, Joseph Morris, James Baggett, Dalton Wester, Al Mollette, Charles Abron, Jimmy Sims, Mike Beaird, Steven Louis, Jeff Thompson, August R. Lehe, Michael H. Graves, James F. Vaughn, Henry Michael Knodel, William C. Cowart, James E. Rowell, Dale M. Harrison, James E. Manning, Morris R. Steenson, Charles R. Ross. 7. For Susan Collier: John R. Haley, Robert I. Story, Samuel L. Flanigan, Lawrence Battiste, Charles David McElwee, Joseph Morris, James Baggett, Dalton Wester, Charles Abron, Jimmy Sims, Mike Beaird, Steven Louis, Jeff Thompson, August R. Lehe, Michael H. Graves, James F. Vaughn, Henry Michael Knodel, William C. Cowart, James E. Rowell, Dale M. Harrison, James E. Manning, Morris R. Steenson. 8. For Sandra M. Brown: John R. Haley, Robert I. Story, Samuel L. Flanigan, Lawrence Battiste, Joseph Morris, James Baggett, Dalton Wester, Al Mollette, Jimmy Sims,
51

Case 2:00-cv-01674-RDP-SRW Document 119-1 Filed 03/03/06 Page 52 of 52
Steven Louis, August R. Lehe, Michael H. Graves, James F. Vaughn, Henry Michael Knodel, William C. Cowart, James E. Rowell, Dale M. Harrison, James E. Manning, Morris R. Steenson. 9. For Jan Robbins: John R. Haley, Robert I. Story, Samuel L. Flanigan, Lawrence Battiste, Joseph Morris, James Baggett, Dalton Wester, Al Mollette, Charles Abron, Jimmy Sims, Steven Louis, August R. Lehe, Michael H. Graves, James F. Vaughn, Henry Michael Knodel, William C. Cowart, James E. Rowell, Dale M. Harrison, James E. Manning, Morris R. Steenson. 10. For Deborah G. Murphree: John R. Haley, Robert I. Story, Samuel L. Flanigan, Lawrence Battiste, Joseph Morris, James Baggett, Dalton Wester, Al Mollette, Jimmy Sims, Steven Louis, August R. Lehe, Michael H. Graves, James F. Vaughn, Henry Michael Knodel, William C. Cowart, James E. Rowell, Dale M. Harrison, James E. Manning, Morris R. Steenson. 11. For Cecilia J. Talley: John R. Haley, Robert I. Story, Samuel L. Flanigan, Lawrence Battiste, Joseph Morris, James Baggett, Dalton Wester, Al Mollette, Charles Abron, Jimmy Sims, Steven Louis, August R. Lehe, Michael H. Graves, James F. Vaughn, Henry Michael Knodel, William C. Cowart, James E. Rowell, Dale M. Harrison, James E. Manning, Morris R. Steenson, Charles R. Ross. 12. For Shirl J. Brogdon: John R. Haley, Robert I. Story, Samuel L. Flanigan, Lawrence Battiste, Joseph Morris, James Baggett, Dalton Wester, Al Mollette, Charles Abron, Jimmy Sims, Steven Louis, August R. Lehe, Michael H. Graves, James F. Vaughn, Henry Michael Knodel, William C. Cowart, James E. Rowell, Dale M. Harrison, James E. Manning, Morris R. Steenson, Charles R. Ross. 13. For Sue Judkins: John R. Haley, Robert I. Story, Samuel L. Flanigan, Lawrence Battiste, Charles David McElwee, Joseph Morris, James Baggett, Dalton Wester, Al Mollette, Charles Abron, Jimmy Sims, Mike Beaird, Jeff Thompson, August R. Lehe, Michael H. Graves, James F. Vaughn, Henry Michael Knodel, William C. Cowart, James E. Rowell, Dale M. Harrison, James E. Manning, Morris R. Steenson, Charles R. Ross.
52

 
 III

Case 2:00-cv-01674-RDP-SRW Document 1 Filed 12/07/00 Page 1 of 15

,0'

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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

( F I L E D IJ
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~~-~. JpJ~W~~T'
eti~ISTINE HAL~I\' DEBOlWi'[~lt~~~~ ,',
~~~i~j=~~:}~LI~'

* * * *

*

TERESA THOMASON,

*

SUSAN W. COLLIER,

*

VALERIE PORTER WILLIAMS,

*

BETTY DUBOSE and all

*

females, collectively,

*

employed in Alabama as

*

County Veteran Affairs

*

Assistants under circum-

*

stances similar to those

*

of the named Plaintiffs

*

and the class of all such

*

individuals affected by

*

salary policies which

*

discriminate on the

*

basis of gender,

*

CLERK

','

U. S. DISTRICT COURT

MIDDLE DIST. OF ALA. :

Plaintiffs,
vs.
STATE OF ALABAMA DEPARTMENT OF VETERANS AFFAIRS AND THE ALABAMA STATE PERSONNEL DEPARTMENT,
Defendants.

*

*

*

* * *

CIVIL ACTION NO:

J

j(jl () ,.1",-IlJ ?1'10

*

*

*

*

*

COMPLAINT

I. PRELIMINARY STATEMENT

1. Plaintiffs, present and former employees of the State of
Alabama Department of Veterans Affairs, seek de(:laratory and injunctive relief, backpay, prejudgment interest upon backpay, frontpay, liquidated damages, compensatory damages,. expenses, and attorney fees from Defendants arising from Defendant$' violation of the rights guaranteed to Plaintiffs under the Equ Pay Act, 29 U.S.C. Section 206(d) (1) and under the Equal Protection Cause of

\

III
Case 2:00-cv-01674-RDP-SRW Document 1 Filed 12/07/00 Page 2 of 15

the united States Constitution and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e), et. seg., includ:Lng 42 U.S.C. §
I
2000e (5) (f), as amended by the Civil Rights Act of 1 1991, and the remedy provided under 42 U.S.C. § 1983. The named Plaintiffs bring their equal pay action as a collective action under 29 U.S.C. § 216(b) on behalf of themselves and other female employees similarly situated subject to receiving written consent from all such employees to be parties to this action. Finally, the named Plaintiffs bring this action as a class action under Title VII on behalf of all female employees similarly situated subject to perfection of jurisdiction by receipt of notice of right-to-sue from the EEOC.

II. JURISDICTION

2. This Court has jurisdiction under 28 u. S. C,. Sections 1331

and 1343 (a) (1) , (3) , (4) .

3. Plaintiffs' claims are authorized by 29 U.S.C. Sections

216 (b) and 260, 28 U.S.C. Sections 2201 and 2202 (declaratory

judgments), and Fed. R. Civ. P. 57, 42 U.S.C. § 2000(e), et. seg.,

and 42 U.S.C. § 1983 and 1988.

4. Additionally, one or more of the named Plaintiffs have

filed charges of gender discrimination with the Equal Employment

Opportunity Commission and will request statutory notices of right-

:e::I st::m;:::: lfte to-sue. When named Plaintiffs receive the statutpry notices of

::g::~::~:::~O:h::d::ITli t:~

tR:;h:~ ~e::::~i::

I
I
-2-

III Case 2:00-cv-01674-RDP-SRW Document 1 Filed 12/07/00 Page 3 of 15
amended, 42 U.S.C. § 2000(e) et. seg.
III. PARTIES 5. Plaintiff Vickie K. Prewett is a fema~e resident of Baldwin County, Alabama and is beyond the age of m~jority. 6. Plaintiff Christine Hale is a female restdent of Dallas County, Alabama and is beyond the age of majority. 7. Plaintiff Deborah Coker is a female resiaent of Butler County, Alabama and is beyond the age of majority. 8. Plaintiff Vicky Brown is a female reslident of Pike County, Alabama and is beyond the age of majority. 9. Plaintiff Lisa Jackson is a female resident of Montgomery County, Alabama and is beyond the age of majority. 10. Plaintiff Teresa Thomason is a female resi~ent of Colbert County, Alabama and is beyond the age of majority. 11. Susan W. Collier is a female resident of Mobile County, Alabama and is beyond the age of majority 12. Plaintiff Valerie Porter Williams is a fem~l1e resident of Russell County, Alabama and is beyond the age of m~.jIority. 13. Plaintiff Betty Dubose is a female residlent of Bullock County, Alabama and is beyond the age of majority. 14. Defendant State of Alabama, Department of Veterans Affairs, is the duly constituted agency of the St~te of Alabama created pursuant to Alabama Code § 31-5-1, et. ~. to provide assistance to veterans of the United Stated Armed ~Qrces. 15. Defendant the Alabama State Personnel De rtment is the
-3-

III
Case 2:00-cv-01674-RDP-SRW Document 1 Filed 12/07/00 Page 4 of 15

agency of Alabama created under Alabama Code § 36-26-1, et. seq.

which administers the State of Alabama personnel and merit system.

I

I

IV. FACTUAL ALLEGATIONS

16. Named Plaintiffs Vickie K. Prewett, Cltu;istine Hale,

Deborah Coker, Vicky Brown, Lisa Jackson, Valerie Porter Williams

and Betty Dubose have each been employed for more than three years

in the position of County Veterans Affairs Assistant (classified as

Administrative Support Assistant) with Defendant Alalj>c!una Department

of Veterans Affairs. In that position each of these named Plain-

tiffs performs many duties related to the delivery of counseling

and other services to citizens of Alabama who are veterans, former

members of the Armed Services of the United States of America.

17. Named Plaintiffs Teresa Thomason and Su.an W. Collier

were employed within the last two years in the position of County

Veterans Affairs Assistant (classified as administ!rative support

assistant) with Defendant Alabama Department of Vetierans Affairs.
In that position they performed many duties related to the delivery

of counseling and other services to citizens of Alabama who are

veterans, former members of the Armed Services of th~ United States

of America.

18. Throughout the period in which the n~ed Plaintiffs

enumerated in paragraphs 16 and 17 above have pelrformed these

duties and continuing to the present date, Defendant~ have employed

males in the position of "Veteran Service Officer," including one

such male employed in close proximity to each

these named

-4-

I I

i

!

III
Case 2:00-cv-01674-RDP-SRW Document 1 Filed 12/07/00 Page 5 of 15

Plaintiffs, at a salary level substantially higher than the named

Plaintiffs. The duties the males perform are essentially the same

I

i

as the duties of the named Plaintiffs, requirins: equal skill,

effort and responsibility and performed under s~Jnilar working

conditions as those performed by the named PlaintiffS. Specifical-

ly, each of the named Plaintiffs have been employed in close

proximity to a Veteran Service Officer, a male pelrforming equal

work, who has been compensated and is compensated at a rate as much

as fifty percent higher than the rate of compenEilation paid by

Defendants to each named Plaintiff.

19. On numerous occasions it has been called t~ the attention

of Defendants that they were compensating female administrative

assistants, such as the Plaintiffs in the instant litigation, at

levels considerably below the compensation paid to male Veteran

Service Officers despite the fact that the two grou~$ of employees

were performing equal work. However, Defendants have persisted in

their policy of providing the female administrative aSsistants with

unequal pay, discriminating against them on acdount of their

gender, female.

20. At all times relevant to this litigation Defendants have

known that Plaintiffs were receiving unequal pay and were being

discriminated against in salary on the basis of s~x, female, and

had no reasonable grounds for believing that their action did not

violate the law, but Defendants have intentionall~ and willfully

maintained this practice and refused to correct it~

21. On November 30, 2000 named Plaintiffs

K. Prewett,

-5-

I

!

I" Case 2:00-cv-01674-RDP-SRW Document 1 Filed 12/07/00 Page 6 of 15
Christine Hale, Deborah Coker, Vicky Brown, Lisa JiCkSOn, Valerie
Porter Williams and Betty Dubose filed charges of Idiscrimination
with the United States Equal Employment Commission addressing the
sex discrimination described above. Those charges remain pending
with the United States Equal Employment opportun~ty Commission.
Those named Plaintiffs will request that the EEO~ expeditiously
!
process the charges and 1• ssue to those named Pla1• n~I1. ffs statutory notices of right-to-sue at the earliest possible da~e. As soon as
I I
these named Plaintiffs have received their notices of right-to-sue,
I
the notices will be filed with this Court along wi~h an amendment
to the complaint in the instant lawsuit allegingl perfection of jurisdiction under Title VII of the 1964 Civil ~ights Act, as amended, 42 U.S.C. § 2000(e), et. seg.
I
22. As a result of Defendants' discriminato~y practice of compensating male Veteran Service Officers at a h~gher rate than that of the female administrative support assistlants described
above, even though males are performing work equal Ito that of the
Plaintiffs, and as a result of Defendants' repea~Ied failure and
refusal to rectify this sex discrimination, the Plafntiffs in this action, and the Plaintiff Class subsequently descri~ed herein have
not only been denied the salaries to which they sho*ld be entitled
but have also incurred severe mental distress, and emotional suffering.
23. Plaintiff Susan W. Collier, and, upon ~nformation and
belief, other former female County Veteran Affa·.rs Assistants
I
employed by Defendants within the last three years, ~ere construc-
I
- 6-

III
Case 2:00-cv-01674-RDP-SRW Document 1 Filed 12/07/00 Page 7 of 15
tively terminated by Defendants' policy of grossly underpaying said females, by comparison to male Veteran Service Officers, which presented working conditions which would be deemed II~: ntolerable to a reasonable person and which caused Collier and o~ners to resign or retire from those positions as a result of Defend~nts' discriminatory salary policies.
24. Throughout the State of Alabama and possibly beyond there are many present and former female administrative slupport assistants employed by Defendants in proximity to male Veteran Service Officers and who are being or have been paid unequal pay under circumstances closely similar or identical to those described for the named Plaintiffs above. Accordingly, the Plaintiffs, subject to the requirements and restrictions of Section 16(b) of the Fair Labor Standards Act, 29 U.S.C. § 216 (b), bring this action on behalf not only of themselves but on behalf of the other female employees similarly situated and suffering from violation of their rights under the Equal Pay Act. Attached to this complaint as "Exhibit A" are the written consents of the named Plaintiffs to be parties in this action. Plaintiffs will be filing' a motion with the Court pursuant to the provisions of 29 U.S.C. § 216{b) to proceed with contacting all other similarly situated females requesting their written consent to become parties in this collective action and will amend this complaint a~propriately if additional written consents are received.
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Case 2:00-cv-01674-RDP-SRW Document 1 Filed 12/07/00 Page 8 of 15
v. COUNT ONE - EQUAL PAY ACT CLAIM
25. Plaintiffs reaver and incorporate by reference the
allegations set out in paragraphs 1 through 24 abo~e.
I
26. Defendants have discriminated against !~laintiffs by paying salaries to Plaintiffs at a rate less than th~ rate at which they pay to an employee of the opposite sex for equa~ work on a job the performance of which requires equal skill, effor~ and responsibility and which are performed under similar workin~ conditions to those experienced by Plaintiffs. Accordingly D~fendants have violated the Federal Pay Act, 29 U.S.C. Section 20~Cd) (1).
27. Defendants' violations of the EDA have b~en intentional and willful and Defendants have had no reasonab~$ grounds for believing that their actions did not violation the law.
28. Through the above-described actions df Defendants, Plaintiffs have been damaged in that they has been 4enied a proper and appropriate salary as described above.
PRAYER FOR RELIEF, EQUAL PAY ACT CLA~MS WHEREFORE, the premises considered, Plaintif~s respectfully pray:
1. That this Court upon hearing, issue a declaratory
judgment that the acts and practices of the Defend~nts, described above, have willfully violated Plaintiffs' rights qnder the Equal Pay Act, 29 U.S.C. Section 206(d) (1), et. seg.
I
2. That this Court, upon hearing, issu~ a permanent injunction affirmatively enjoining Defendants fr failing to
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Case 2:00-cv-01674-RDP-SRW Document 1 Filed 12/07/00 Page 9 of 15
compensate Plaintiffs at a salary level commensurate with that paid to male supervisors performing jobs equal to that performed by Plaintiffs.
3. That this Court, upon hearing, award to ~laintiffs back wages pursuant to 29 U.S.C. Section 216 (b) and preju4gment interest upon back wages.
4. That this Court award to Plaintiffs pursuap,t to 29 U. S. C. Section 216(b) liquidated damages in amounts equal to the awards of backpay, plus prejudgment interest, prayed for above.
5. That this Court award reasonable fees to ~he Plaintiffs' attorneys and litigation expenses pursuant to 29 U.S.C. Section 216(b) and allow Plaintiffs their costs pursuant to '~d. R. Civ. P. 54(d), and award such additional or alternative relief as may be just, proper and equitable.
VI. COUNT TWO - CLAIMS UNDER TITLE VII AND PROTECTION CLAUSE FOR SEX DISCRIMIN
29. Plaintiffs reaver and incorporate by reference the allegations set out in paragraph 1 through 24 abov~.
30. In their actions described above, D~fendants have intentionally discriminated against Plaintiffs on the basis of their sex by intentionally failing and refusing to pay them salaries equal to those paid to males performing e~al work.
PRAYER FOR RELIEF, TITLE VII AND EQUAL PROTECltON CLAIM WHEREFORE, Plaintiffs respectfully pray this C ~rt to advance this case on the docket, order a speedy hearing a the earliest,
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Case 2:00-cv-01674-RDP-SRW Document 1 Filed 12/07/00 Page 10 of 15

practical date, and upon such hearing to:

(A) Grant a preliminary and permanent injunction
enjoining Defendant, their agent, successors, emplo~1es, attorneys and those acting in concert with them at their I ~irection for

I

i

failing to compensate Plaintiffs at a level equal; to the salary

Defendants are paying to the highest paid male p~!rforming work

equal to that of Plaintiffs; and
i
(B) Grant Plaintiffs a declaratory jud~ent that the

policies and practices complained of herein violatelJhe provisions
I
of 42 U.S.C. § 2000 (e), et. seg., 42 U.S.C. § 1983i and the Equal

Protection Clause of the United States constituti09;' and
(C) Issue injunctive and equitable relil~f determining
I
that Plaintiff Susan W. Collier has been constructit~ly terminated
I
from her position by Defendants' discriminatory salaW policies and
reinstate said Plaintiff into her previous Positi~n with proper

salary or award frontpay to compensate her for her ~~going loss of

salary incurred as a result of her constructive Itlermination by

Defendants.

(D) Award Plaintiffs backpay to compensa~~ them for the
loss of salary they have incurred by being paid l~ISS than males

performing equal work; and

(E) Award Plaintiffs compensatory dama"s for Plain-

tiffs' emotional pain and suffering, inconvenience, IxtLental anguish

and loss off enjoyment of life; and

(F) Award Plaintiffs their costs

expenses in
I

prosecuting this action, including an award of re 10nable attor-

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Case 2:00-cv-01674-RDP-SRW Document 1 Filed 12/07/00 Page 11 of 15

neys' fees; and (G) Grant Plaintiffs such other and further relief as
equity and justice require.
CLASS ACTION, TITLE VII AND EQUAL PROTECTIO~ CLAIMS
31. Named Plaintiffs Vickie Prewett, Christin. Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, ,Valerie Porter Williams and Betty Dubose also bring this actioIlj on their own behalf and, pursuant to Rules 23{b) (2) and (3) of th~ Federal Rules of Civil Procedure on behalf of a class of P1aintiff~ described as:
I
All adult females in Alabama who, at anylij,ime
I
since two years before the filing of the I
present lawsuit have been employed by D~.en­
dants as County Veterans Affairs AssisJ",nts
I
(Administrative Support Assistants) doing work equal to males employed as Veteran Se:t!'vice Officers but receiving lesser, unequal pJy.
I
32. The class of persons Plaintiffs seek to ~epresent is so numerous that joinder of all members is impractic~l. There are questions of law and fact common to the class. p1a~ntiffs' claims are typical of those of the class. Plaintiffs Will, in their representative capacities fairly and adequate1~ protect the interest of the class.

TITLE VII E UAL PROTECTION CLASS FACTUAL 33. For at least two years prior to the fi1in

ATIONS this action

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Case 2:00-cv-01674-RDP-SRW Document 1 Filed 12/07/00 Page 12 of 15

the members of the Plaintiff class, including the named Plaintiffs,

have been employed as County Veterans Affairs Assistants (Adminis-

beenl~Oing trative Support Assistants) in Alabama and have

the same

work as males employed as Veteran Service Officers ,~ile the males

have received salaries of approximately fifty perc~nt higher than

I
the salaries received by members of the Plaintiff qlass.

34. Defendants have maintained a discriminato~ salary policy

and schedule as described above intentionally :and willfully

discriminating against the members of the Plainbiff class on

account of their gender, female. 35. The members of the class have suffered ~~age in that

they have received discriminatory lower salaries, als compared to

the male comparators, have been constructively t~pninated from

I

I

i
their positions and have also suffered severe menta~ suffering and

emotional distress.

PRAYER FOR CLASS RELIEF WHEREFORE, the premises considered, the Plaintiff class respectfully prays that this Honorable Court:
(A) Certify this action as a class actiqn with respect to the above-described claims arising under 42 U.S.iI e. § 2000 (e), § 1981(a) and § 1983 and the Equal Protection Claus, of the United States Constitution and direct issuance of notic~ to all class members of the pendency of this action: and
(B) Upon appropriate hearings grant ;~ declaratory
i
judgment that the policies and practices compla' ~ed of herein
I
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Case 2:00-cv-01674-RDP-SRW Document 1 Filed 12/07/00 Page 13 of 15

violate the provisions of 42 U.S.C. § 2000{e), et. seg., and the

Equal Protection Clause of the United States Constiijution and that

r~edY the members of Plaintiff class are entitled to a

under 42

U.S.C. § 1983; and

(C) Grant a preliminary and permanep1t injunction
I
enjoining Defendants, their agents, successor~, employees, attorneys and those acting in concert with the~ or at their

discretion from failing to compensate all members o~ the Plaintiff

ar~ class at levels equal to the salaries Defendants

paying to the

highest paid males performing work equal to that of 1members of the

Plaintiff class, reinstating or awarding frontpay tol all members of
I
the Plaintiff class who have been constructively tierminated from

their positions; and
I
(D) Award each member of the Plaintiff class backpay to compensate her for the loss of salary she has inc~rred by being

paid less than males performing equal work; and
I
(E) Award each member of the Plaintiff clt's compensato-

ry damages for her emotional pain and suffering, inconvenience,

mental anguish and loss of enjoyment of life ~ccasioned by

Defendants' discrimination against her on the basis of gender; and
(F) Award the Plaintiff class its costs ~nd expenses in
prosecuting this action, including an award of re~sonable attor-

neys' fees; and
I
(G) Grant the Plaintiff class such othr~ and further
I
relief as justice requires.

Respectfully submitted this the

day of D

2000.

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Case 2:00-cv-01674-RDP-SRW Document 1 Filed 12/07/00 Page 14 of 15

RICHARD L. THIRY

ASB-1906-R73R

!

!

THIRY & CADDELL n I
Attorney for Plai ~iffs

i

:

HEE.~jc)m

ASB-9244-L53H THIRY CADDELL
A t. ~t.-.-.~ ~

R i:
Attorney for Plai~~iffS
I
OF COUNSEL:
RHONDA BROWNSTEIN, ESQ. ASB-3193-064R SOUTHERN POVERTY LAW CENTER Post Office Box 2087 Montgomery, Alabama 36102-2087

JURY DEMAND
Plaintiffs respectfully demand trial by triable by jury.

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:

all issues

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Case 2:00-cv-01674-RDP-SRW Document 1 Filed 12/07/00 Page 15 of 15
ADDRESS OF COUNSEL: THIRY & CADDELL 1911 Government Street Mobile, Alabama 36606 (334) 478-8880 STEIN & BREWSTER Post Office Box 1051 Mobile, Alabama 36633-1051 (334) 433-2002
PLEASE SERVE THE DEFENDANTS BY CERTIFIED MAIL AT THE FOLLOWING ADDRESSES: DEPARTMENT OF VETERANS AFFAIRS Post Office Box 1509 Montgomery, Alabama 36192-3071 ALABAMA STATE PERSONNEL DEPARTMENT 64 N. Union Street, Room 300 Montgomery, Alabama 36130
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I

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

VICKIE K. PREWETT, et al.,
Plaintiffs,
v.
STATE OF ALABAMA DEPARTMENT OF VETERANS AFFAIRS, et al.,
Defendants.

}

}

}

}

}

Case No. 2:00-CV-1674-RDP-SRW

}

}

}

}

}

}

MEMORANDUM OPINION

After reassignment of this Equal Pay Act (“EPA”) and Title VII case to the undersigned from

The Honorable Mark E. Fuller, and having received requests from the parties to revisit certain issues

previously decided in this case, the court permitted each side to request reconsideration of two prior

rulings. As a result of those efforts,1 the following motions are before the court, which have been

fully briefed and were argued at a hearing held earlier this year: (1) Plaintiffs’ Second Motion for

Reconsideration (Doc #184); (2) Defendant Alabama Department of Veterans Affairs’ ("Alabama

VA") Motion for Reconsideration (Doc #186); (3) Defendant Alabama State Personnel Department’s

("SPD") Motion for Reconsideration (Doc #185); and (4) Defendants’ Motion to Amend/Correct

Order on Motion to Alter Judgment (Doc #192).2

1 In conjunction with those motions, the court also granted several requests from the parties for additional discovery related to the matters before the court on reconsideration.
2 The court also has before it the parties' dueling motions to strike the chart summaries of each Plaintiff’s Equal Pay Act prima facie case that were submitted in response to the court's February 7, 2007 order (Docs. # 223, 228), and Defendant SPD’s belated motion to strike portions of the "unsworn declarations" that Plaintiffs submitted as part of their January 2002 opposition to Defendants' motion for summary judgment (Doc. # 225). Having considered the parties' arguments on these motions, the court finds that all of the motions to strike are due to be denied. (Docs. # 223,

All four of the motions request reconsideration of issues that were previously decided by
Chief Judge Fuller in his March 3, 2006 Memorandum Opinion on Defendants’ Rule 56 motion
(Docs. # 119, 120-2)(“Judge Fuller’s Summary Judgment Opinion”)3 and subsequent modification
thereof (Doc. # 155). In his Summary Judgment Opinion, Judge Fuller rejected the bulk of
Defendants’ arguments and therefore, with only a few exceptions,4 he denied summary judgment on
Plaintiffs’ EPA and Title VII claims. (Docs. # 119, 120-2). Collectively,5 two of Defendants'
motions to reconsider challenge virtually each step of Judge Fuller’s analysis denying summary
judgment. (Docs. # 185, 186). As to the limited claims on which Judge Fuller granted summary
judgment for Defendants, the parties seek reconsideration of only the dismissal of the EPA claims
of Plaintiffs Vicky Brown and Christine Hale and the subsequent, partial reinstatement of those
claims.6 (Docs. #184, 192). Nevertheless, the court does not reach the merits of the motions to
225, 228). Additionally, all pending requests to exclude evidence at trial - filed many moons before the undersigned received this case by reassignment - are mooted by the court’s rulings herein. (See Docs. # 146, 153, 168, 169, 170, 171, 172, 173).
3 The opinion can also be found at Prewett v. State of Alabama Dept. of Veterans Affairs, 419 F. Supp. 2d 1338, 1343-49 (M.D. Ala. March 3, 2006). For the sake of convenience, the court will cite herein to the published opinion.
4 Judge Fuller granted summary judgment with respect to: (1) the EPA claims of Plaintiffs Vicky Brown and Christine Hale; (2) the Title VII claims of Plaintiffs Susan Collier, Sue Judkins, and Theresa Thomason; and (3) Plaintiff Collier's constructive discharge claim. Prewett, 419 F. Supp. 2d at 1365.
5 Although each reconsideration motion was filed by a separate Defendant, for the purposes of this opinion the court will address these motions as if they were filed by both Defendants given that the court permitted each side - not each party - to challenge two prior rulings.
6 Judge Fuller originally determined that Plaintiffs Brown and Hale “have failed to show that their work is substantially similar to the VSOs . . . to establish a prima facie EPA violation” because they “admitted that the VSOs [in their particular offices] are their supervisors . . . . [who] inherently have more responsibility than their subordinates.” Prewett, 419 F. Supp. 2d at 1356. However, he
2

reconsider that are focused on the limited issues regarding Brown and Hale’s claims, because it finds that Defendants are due judgment as a matter of law on all of Plaintiffs’ claims for the reasons outlined below.
This opinion has been a long time coming. Suffice it to say that the undersigned has struggled immeasurably - both in time and depth - with the issues presented by the parties’ motions to reconsider. Aside from the unique and difficult legal questions presented by the facts of this case, the sheer magnitude of wading through seven years of voluminous litigation was daunting, especially considering that the undersigned only recently was invited to the party. By far, however, the most difficult challenge was that the parties’ motions seek vacatur of a very thorough opinion authored by a distinguished judge of this court.
In its analysis on reconsideration, this court has assumed that the facts of the case have not changed from the date that Judge Fuller entered his Summary Judgment Opinion.7 Indeed, this opinion relies entirely on, and assumes familiarity with, the detailed and thorough recitation of the facts set out by Judge Fuller (and incorporated by reference herein). Prewett, 419 F. Supp. 2d at1343-49. Likewise, the parties’ arguments are not new. They are the same arguments presented in the Rule 56 materials that were filed initially in 2001 and repackaged for the undersigned in 2007.
later reinstated Brown and Hale’s EPA claims “as to those time periods during which there was no VSO in the office in which they were serving” (Doc. # 155), when Plaintiffs “brought to the Court’s attention that both Brown and Hale served for periods of time without VSOs in their offices.” (Doc. # 134).
7 Although the parties have conducted additional discovery since the issuance of that opinion, any additional evidence proffered by the parties fails to materially alter Judge Fuller’s summary of the facts, viewed in the light most favorable to Plaintiffs.
3

What has changed, and what sets the stage for this court’s complete one hundred and eightydegree turn on the Rule 56 arguments, is that in their most recent motions, the parties have finally focused their attention on the unique legal issues at play in this case. Given the limitation on the number of matters that this court was willing to reconsider - each side was allotted only two bites at the apple - the parties were forced to hone their arguments. It is through this refocused lens that the undersigned views the applicable law. And it is for the reasons outlined below that the undersigned concludes that Defendants are entitled to judgment as a matter of law on all of Plaintiffs’ claims. I. Applicable Standards of Review
The pending motions to reconsider, permitted by the undersigned at the parties’ request in light of the reassignment of this case, have asked this court to take a second look at the issues decided by Judge Fuller’s Summary Judgment Opinion. Those requests, therefore, invoke again the well-worn Rule 56 standard of review. Summary judgment is only appropriate if there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). It is the moving party’s initial burden to identify evidence which could indicate an absence of disputed fact issues. Id. at 323. Once the non-moving party presents evidence to show that there are genuine issues for trial, the court must believe this evidence and draw all inferences in favor of the non-moving party. Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986). The existence of any material factual dispute on an issue affecting the outcome of the case can defeat summary judgment. Chapman v. AI Transp., 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc).
4

II. Discussion The court begins with an analysis of the EPA claims, as the resolution of those claims is
dispositive of the Title VII claims as well. A. Equal Pay Act The EPA prohibits employers from paying an employee at a rate less than that paid to
employees of the opposite sex for equal work, 29 U.S.C. § 206(d)(1), and it “prescribes a form of strict liability: Once the disparity in pay between substantially similar jobs is demonstrated, the burden shifts to the defendant to prove that a ‘factor other than sex’ is responsible for the differential. If the defendant fails, the plaintiff wins. The plaintiff is not required to prove discriminatory intent on the part of the defendant." Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1533 (11th Cir. 1992) (citing Mitchell v. Jefferson County Bd. of Educ., 936 F.2d 539 (11th Cir.1991)).8 When Congress enacted the EPA, its purpose was:
to remedy what was perceived to be a serious and endemic problem of employment discrimination in private industry-the fact that the wage structure in many segments of American industry has been based on an ancient but outmoded belief that a man, because of his role in society, should be paid more than a woman even though his duties are the same. Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974) (citations omitted). Although there is no question in this Circuit that the EPA governs the compensation of not only the private employers who were targeted by the statute initially but also state employers in the public sector, see Hundertmark v. State of Florida Dept. of Transp., 205 F.3d 1272, 1276 (11th Cir. 2000), neither the
8 Nevertheless, even absent a requirement of proof of discriminatory intent, "[t]he EPA's broad defense for employers ensures that the Act targets only intentional purposeful discrimination." Adams v. Florida Power Corp., 255 F.3d 1322, 1329 (11th Cir. 2001)(Barkett, J., specially concurring).
5

statute, the interpretive regulations, nor the applicable case law provides much guidance as to how the EPA can, and should, be applied in the context of public employment when the jobs at issue are governed by state statute.
1. The Prima Facie Case A female employee9 demonstrates a prima facie case of an Equal Pay Act violation by showing that her employer paid male employees different wages for equal work for jobs which require “‘equal skill, effort, and responsibility, and which are performed under similar working conditions.’” Irby v. Bittick, 44 F.3d 949, 954 (11th Cir.1995) (quoting Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974) and 29 U.S.C. § 206(d)(1)). Although formal job titles or descriptions may be considered, the controlling factor in the court's assessment of whether two jobs are substantially equal must be actual job content. Miranda, 975 F.2d at 1533; Arrington v. Cobb Cty., 139 F.3d 865, 876 (11th Cir. 1998) ("[A]lthough formal job titles or descriptions may be considered, the controlling factor in the court's assessment of whether two jobs are substantially equal must be actual job content."); Hodgson v. Brookhaven Gen'l Hosp., 436 F.2d 719, 724 (5th Cir. 1970) ("Job descriptions prepared by the employer may or may not fairly describe job content.").10 Thus, "[t]he prima facie case . . . focuses solely on the primary duties of each job, not duties that are incidental or insubstantial." Miranda, 975 F.2d at 1533 (emphasis added). A plaintiff need only demonstrate that the jobs at issue are substantially similar, not identical. Miranda, 975 F.2d at 1533. Nonetheless, “[t]he standard for determining whether jobs are equal in
9 All of the Plaintiffs in this case are female. 10 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981.
6

terms of skill, effort, and responsibility is high.” Waters v. Turner, Wood, & Smith Ins. Agency, Inc., 874 F.2d 797, 799 (11th Cir.1989). Indeed, Plaintiffs’ EPA burden of proving that their positions are equivalent to the positions of their comparators is a more difficult burden than the comparison which must be made to support their Title VII claims. Miranda, 975 F.2d at 1526.11
As noted earlier, the unique facts of this public employer case do not easily fit into the EPA mold. Most of this Circuit’s case law interpreting the EPA was developed in the context of private employers and is therefore not tailored to the unique posture of governmental employees. The case law does not contemplate a comparator position that was created by statute, especially where - as in this case - that statutory scheme also dictates the qualifications for, and the responsibilities of, the position itself. Although the Eleventh Circuit has pronounced that formal job titles or descriptions are not to be equated with job content, statutory provisions are far more influential than a job description that exists only on paper and is subject to change on a whim. Indeed, as the court’s analysis demonstrates below, the statutes governing the positions in this case are inextricably intertwined with the content of those jobs.
Thus, the challenge for this court has been to give the appropriate deference to Alabama’s statutory scheme while remaining true to this Circuit’s interpretation of EPA analysis. Against that backdrop, the court has given careful consideration to each prong of the tripartite test of skill, effort,
11 The former Fifth Circuit noted that when Congress drafted the EPA, it substituted “equal” for “comparable” to indicate that “the jobs involved must be virtually identical, that is, they would be very much alike or closely related to each other.” Brennan v. City Stores, Inc., 479 F.2d 235, 238 (5th Cir.1973). More recently, the Eleventh Circuit echoed that observation: “Congress manifested its intent to narrow the applicability of the Act . . . . [and] intended to permit employers wide discretion in evaluating work for pay purposes. Thus, although employees do not have to prove jobs are identical, they have the heavy burden of proving ‘substantial identity of job functions.’” Waters, 874 F.2d at 799.
7

and responsibility which “constitute separate tests, each of which must be met in order for the equal pay standard to apply.” 29 C.F.R. § 1620.14 (1986) (emphasis added).12
a. Equal Effort
“Effort is concerned with the measurement of the physical or mental exertion needed for
performance of a job. Job factors which cause mental fatigue and stress, as well as those which
alleviate fatigue, are to be considered.” 29 C.F.R. § 1620.16(a) (1986). As noted earlier, the court’s
analysis must focus not on the incidental or insubstantial duties of a job, but on the “primary duties”– a term of art that is sprinkled throughout the EPA jurisprudence of this Circuit13 but not as of yet
clearly defined. It is apparent from the case law that “primary” most certainly refers to the
significance of a duty when viewed as a component of overall job content - primary duties cannot
be incidental, nonessential, or unimportant. See, e.g., Miranda, 975 F.2d at 1533.
Less clear in the “primary” analysis, however, is what importance should be placed on the
amount of time devoted to a duty. Although the effort required of two jobs may be deemed unequal
12 The court is aware that Plaintiffs must also establish “similar working conditions,” which has been interpreted to relate only to surroundings or hazards of the job. 29 C.F.R. § 1620.18; Corning Glass Works, 417 U.S. at 201-02. Because that aspect of the prima facie case is not in dispute, the court does not analyze it here.
13 In fact, the most recent EPA opinion issued by the Eleventh Circuit (which was not selected for publication) emphasizes that a court must first determine if a duty is “primary” before that duty can be considered in the substantially similar analysis:
Moreover, the parties raise genuine issues of fact as to whether field maintenance and generation of revenue were primary duties of the baseball coach. Such a distinction is material because, to the extent that they were not primary duties, it was improper for the district court to consider them in determining whether the two coaching positions were substantially similar. Hankinson v. Thomas County School System, 2007 WL 4226389, *2 (11th Cir. December 3, 2007).
8

if one job demands the performance of an additional duty that takes up a substantial amount of
time,14 the case law suggests that time alone is not the determinative factor of what duties are
“primary” to job content. As the former Fifth Circuit observed, “a wage differential can be justified
for employees who are available to perform an important differentiating task even though they do
not spend large amounts of time at the task.” Marshall v. Dallas Independent School District, 605
F.2d 191, 195 (5th Cir.1979); Hodgson v. Golden Isles Convalescent Homes, Inc., 468 F.2d 1256,
1258 (5th Cir.1972); see also Mulhall v. Advance Sec., Inc., 19 F.3d 586, 593 (11th Cir.
1994)(finding that even in the absence of evidence “of the time actually spent” in the investigative
function of the purported comparator’s job, the skills related to that function are “more than an
incidental part”of his job as a whole, rendering the jobs incomparable); Beall v. Curtis, 603 F.Supp.
1563 (M.D.Ga.), aff'd without op., 778 F.2d 791 (11th Cir.1985) (applying the “important
differentiating factor” analysis to the “equal skill” prong of the prima facie case). In reaching the
conclusion that the amount of time devoted to a duty may not signify its importance to overall job
content, the former Fifth Circuit relied on the legislative history of the statute:
It is not merely comparable skill and responsibility that Congress sought to address, but a substantial identity of job functions . . . . Congress intended to permit employers wide discretion in evaluating work for pay purposes. In the House Subcommittee Report on the Equal Pay Act, 109 Cong.Rec. 9209-9210 (1963), examples were debated to illustrate that a wage differential can be justified for employees who are available to perform an important differentiating task even though they do not spend large amounts of time at the task. Again, this approach requires examination of equal work claims in the light of practice in the particular employment.
14 See Brookhaven Gen’l Hospital, 436 F.2d at 725 (“[J]obs do not entail equal effort, even though they entail most of the same routine duties, if the more highly paid job involves additional tasks which (1) require extra effort, (2) consume a significant amount of the time of all those whose pay differentials are to be justified in terms of them, and (3) are of an economic value commensurate with the pay differential.”).
9

Hodgson, 468 F.2d at 1258. The interpretive regulations echo that sentiment. See 29 C.F.R. § 1620.14 (“[T]he amounts of time which employees spend in the performance of different duties are not the sole criteria. It is also necessary to consider the degree of difference in terms of skill, effort, and responsibility. These factors are related in such a manner that a general standard to determine equality of jobs cannot be set up solely on the basis of a percentage of time.”).
In this case, it appears from the undisputed facts that the majority of time expended by both the female Plaintiffs, who are all "County Veterans' Affairs Assistants" ("CVAAs"),15 and their male comparator Veteran Service Officers (“VSOs”)16 is devoted to the delivery of counseling and other Alabama VA services to United States' Armed Services veterans who reside in Alabama. The parties are in agreement that with few exceptions, when a veteran enters a county VA office, that veteran’s case is randomly assigned to either the CVAA or VSO who is stationed there. Thus, the facts suggest that CVAAs and VSOs typically provide identical, or at least substantially similar, services to the veterans who seek assistance from the Alabama VA at a county office.
The crux of the dispute, then, is whether the VSOs perform additional duties outside of the office environment that differentiates the content of their positions from that of the CVAAs. The Alabama Legislature has certainly mandated that should be the case as a VSO is statutorily obligated to “devote his entire time” to an enumerated list of tasks that do not apply to CVAAs. See Ala. Code
15 According to Defendants, the “CVAA” moniker has now been replaced with the “official merit system title of ASA” or “Administrative Support Assistant.” (Doc. # 186, at 2 n.1). For the sake of continuity, however, the court will refer to Plaintiffs as “CVAAs,” which is the term used throughout Judge Fuller’s Summary Judgment Opinion.
16 The VSO position is open to males and females, but the vast majority of VSOs are male. Plaintiffs are only comparing themselves to the male VSOs.
10

§ 31-5-10.17 Nonetheless, the court is cognizant of the fact that when considering whether the VSOs
and CVAAs expend “equal effort” in the performance of their jobs, it must go beyond the duties
17 The statute provides, in pertinent part:
(b) It shall be the duty of the county service commissioner [VSO] and district service commissioner [District VSO] to:
(1) Cooperate with and assist the volunteer county veterans' service committees in his district or county in the development of a veterans' assistance program for his district or county.
(2) Furnish information and data to the office of the [Director of the VA] relative to the various aspects of the problems of veterans and dependents of veterans in his jurisdiction.
(3) Provide in his office an information and referral service to veterans seeking aid and assistance in connection with matters pertaining to employment and reemployment, educational and vocational training, health, medical, rehabilitation and housing services and facilities, emergency financial assistance and other matters of similar or relative and appropriate natures.
(4) Cooperate with all national, state and local governmental and private agencies offering services or any benefits to veterans, their families and dependents.
(5) Aid all residents of the district or county who served in the military or naval forces or other armed services during any war in which the United States has been engaged, and members of the armed services during peacetime who have been discharged under conditions other than dishonorable from the services, their relatives, beneficiaries and dependents to receive from the United States any and all compensation, hospitalization, insurance and other aid or benefits to which they may be entitled under existing laws of the United States, or such as may hereafter be enacted, and he shall perform such other duties in connection therewith as may be assigned by the state board.
(6) To seek out and advise the veterans of the district or county of their rights and benefits under state and federal laws, and to encourage their taking advantage of the educational opportunity, trade and vocational training, and to counsel and advise widows, orphans and beneficiaries to the end that veterans and citizens of the county shall secure the maximum return from the available benefits.
Ala. Code § 31-5-10 (b).
11

established by the Alabama Code and focus instead on what duties the VSOs actually perform. In
other words, when it comes to “equal effort,” the duties listed in the Alabama Code may or may not be carried out by a VSO in daily practice.18
Nevertheless, even when the lens is focused not on what the statute says a VSO must do, but
on what the VSOs actually do, Plaintiffs simply cannot overcome the fact that VSOs perform or are
“available to perform” important differentiating tasks that CVAAs cannot. Marshall, 605 F.2d at
195. As Defendants put it, a VSO is eligible to perform duties “beyond that veterans-only door” that
Plaintiffs could never perform as non-veterans. (Doc. # 186, at 2). It is undisputed that VSOs can
become "accredited representatives" to argue cases before the Board of Veterans' Appeals while
CVAAs cannot. It is undisputed that VSOs can belong to, and attend meetings of, various veterans’ organizations like the American Legion whose membership is closed to non-veterans like CVAAs.19
Thus, only a VSO is available to perform those tasks on behalf of the Alabama VA, which are
undoubtedly important to the position because they fulfill the goals set for a VSO by the Alabama
Legislature: (1) to “aid all [veterans] . . . to receive from the United States any and all compensation,
hospitalization, insurance and other aid or benefits to which they may be entitled” (which may be
18 Thus, as Plaintiffs point out, it is certainly relevant that various Alabama VA employees (management and otherwise) believe that Plaintiffs and their comparators expend equal effort on their daily tasks. Nonetheless, it is important to assign the appropriate weight to that evidence. Although relevant, those comments by Defendants are not a de facto admission of EPA liability. That some employees have opined that the effort expended by VSOs and CVAAs is equal does not make their jobs equal under the tripartite test. Thus, while relevant, that evidence alone is not sufficient to satisfy Plaintiffs’ heavy burden of substantial similarity, Waters, 874 F.2d at 799, especially given the interplay of statutory provisions that bear upon the prima facie case here.
19 Although some of the Plaintiffs testified that they have assisted with functions or events sponsored by some of those organizations, it is undisputed that non-veterans like Plaintiffs cannot be members of those groups.
12

accomplished by arguing cases before the Board); and (2) “to seek out and advise the veterans of the district or county of their rights and benefits under state and federal laws” (which may be accomplished by membership in veterans-only organizations). See Ala. Code Ala. Code § 31-5-10 (b)(5), (6).
Although Plaintiffs have focused their arguments on the lack of significant time spent on those two tasks, the law makes clear that time is not the only consideration for ferreting out whether those functions are properly termed “primary duties.” Indeed, even in the absence of evidence “of the time actually spent” in a particular job function, it can still constitute “more than an incidental part” of job content. Mulhall, 19 F.3d at 593. Accordingly, the court concludes that regardless of the amount of time each VSO spends arguing veterans cases before the Board or attending the meetings of veterans-only organizations, the availability of a VSO to perform those important differentiating tasks, that a CVAA undisputedly cannot perform, is sufficient to distinguish the primary duties of the VSO and CVAA positions.20
Accordingly, the court concludes that Plaintiffs have not established the “equal effort” prong of their prima facie case. Because each prong of the tripartite test must be established to fulfill the prima facie burden, for this reason alone Defendants are entitled to judgment as a matter of law on Plaintiffs’ EPA claims. Nevertheless, because this case presents such a unique fact pattern, the court will continue with its analysis of the other prima facie requirements in the alternative.
20 To borrow Defendants’ analogy, VSOs, like attorneys, possess a key credential that permits special access that CVAAs, like paralegals, would be denied - even if that access may be infrequently used. (Doc. # 186, at 10-11 (citing Beall, 603 F. Supp. at 1578-80)).
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b. Equal Skill The former Fifth Circuit, drawing upon the regulations published by the Secretary of Labor, found that “[s]kill includes consideration of such factors as experience, training, education, and ability.” Pearce v. Wichita County, 590 F.2d 128, 133 (5th Cir.1979) (citing 29 C.F.R. § 800.125 (1977)).21 Nonetheless, “[p]ossession of a skill not needed to meet the requirements of the job cannot be considered.” 29 C.F.R. § 1620.15 (1986). Indeed, “at this stage the jobs and not the employees are compared, [and thus] only the skills and qualifications actually needed to perform the jobs are considered.” Miranda, 975 F.2d at 1533 (emphasis added). In the analysis of “equal skill,” this court sees an important distinction between (on the one hand) standard experience, training, or education required for a position and possessed by all individuals in that position, and (on the other hand) any additional or unique experience, training, or education not required for a position but that an individual may bring to the table. The Eleventh Circuit has made clear that consideration of the latter category of skills - those unique qualifications possessed by a particular employee holding a job - is proper only at the affirmative defense stage to “operate as a defense to liability rather than as part of a plaintiff's prima facie case under the Act.” Miranda, 975 F.2d at 1533 n.18; see also Mulhall,19 F.3d at 594 n.18 (finding that “individual employee qualifications are relevant only to defendant's affirmative defenses”). Therefore, if a particular individual’s experience, training, or education is not relevant to the prima facie case, it logically follows that the only experience, training, or education that could be relevant to the prima facie case is that which may be properly characterized as a job requirement, prerequisite, or
21 The court noted that, although those regulations are not binding, they should be given great weight. Pearce, 590 F.2d at 133 n. 7. The more recent replication of the regulations cited by the court in Pearce can be found at 29 C.F.R. § 1620.15(a) (1986).
14

qualification applied to any person in that position. Such a distinction is consistent with the Eleventh
Circuit’s prima facie focus on a comparison of the jobs and not the individuals who hold those
jobs.22
Here, the statutory requirement that all VSOs be honorably discharged wartime veterans has
been mandated by the Alabama Legislature as a threshold qualification for the position since at least
1945. Ala. Code § 31-5-9; See Acts 1945, No. 173, p. 304, § 6. Whether characterized as
“education,” “experience,” “training,” or “ability,” being a veteran is not solely a matter of status,
it is a skill undisputedly required of all VSOs regardless of gender. None of the CVAAs are required
to be veterans and, in fact, none of them are. Indeed, veteran status is the skill that makes an
individual eligible to be hired into the statutory position of VSO and the very reason why a VSO
serves at the pleasure of the Alabama VA State Service Commissioner (more commonly known as
22 Indeed, in the absence of such a distinction, the former Fifth Circuit’s inclusion of “education, training, and experience” as components of the “equal skill” analysis would be meaningless as those characteristics would not be relevant until after the prima facie analysis is complete. The court is aware that the Eleventh Circuit has not made this distinction in so many words. Nonetheless, in analyzing the “equal skill” requirement, recent case law in this Circuit has left open the possibility that an employer-mandated “job requirement” of education, training, or experience may be used to differentiate two positions in the EPA prima facie analysis. In Mulhall, although the court found it irrelevant to the prima facie equal skill analysis that the comparator had an accounting degree and the plaintiff did not, the court made clear that “Defendants deny that an accounting degree is a job requirement.” Mulhall, 19 F.3d at 594. In Miranda, although the court found that the comparator’s prior experience as a manager was irrelevant, there was no evidence that managerial experience was a prerequisite for the buyer position that plaintiff and her comparator both held. Miranda, 975 F.2d at 1533. Neither of those cases forecloses the conclusion that a skill required of all individuals who hold a position may distinguish two positions in the EPA prima facie analysis. At least one other district court in this Circuit has concluded that a skill such as education may be considered as part of the EPA prima facie case in the context of college professors where “degrees and education are intrinsic to the qualifications of university professors.” Schultz v. Board of Trustees of University of West Florida, 2007 WL 2066183, *19 (N.D.Fla. 2007) (finding that Plaintiff and her comparators held different degrees and thus did not possess “equal skill” and distinguishing Mulhall because the accounting degree found to be irrelevant in Mulhall was not required for the position).
15

the Director of VA) to whom the VSO is “administratively responsible.” Ala. Code §§ 31-5-9, 31-5-
10. It is that skill which indelibly distinguishes the VSO position from the CVAA position.
It is also evident from the statutory scheme that veteran status is a skill necessary for the
VSO position. Plaintiffs have repeatedly stated that they do not challenge the constitutionality of
the statutory requirements for the VSO position.23 In the absence of a constitutional challenge, this
court is not postured to question the validity of the veteran status requirement for the VSO position
because to do so would substitute the court’s judgment for that of the legislature. Thus, because the
Alabama Legislature has said that veteran status is necessary for the position of VSO, it is.24
Nonetheless, the statute makes clear that the requirement that all VSOs have wartime service
experience serves a necessary purpose. It provides the Director of VA with a battalion of actual
veterans that he can dispatch to those counties where he sees a need for an actual veteran to serve
as a representative of his Department. See Ala. Code §§ 31-5-9, 31-5-10. The statute gives the
Commissioner discretion to “study the requirements of each separate county, and to decide from time
to time whether or not there is a need for a [VSO] in any particular county . . . . tak[ing] into
23 See, e.g., Doc. # 177, p. 3 ("[P]laintiffs do not challenge the wartime veteran status requirement for VSOs.”).
24 The court recognizes that it has afforded the statutes greater weight when analyzing the “equal skill” factor than it did in the earlier “equal effort” analysis where it noted that the statutory duties of a VSO may or may not be applied in practice. This seemingly inconsistent outcome was intentional. When it comes to skill and responsibility, the legislature has clearly pronounced which skills it deems necessary for the performance of the VSO position and what level of accountability or responsibility is required of the VSOs. These provisions are not hypothetical - they are the job content when it comes to the skill and level of accountability required of a VSO. On the other hand, when it comes to the analysis of “equal effort,” the court recognizes that the Alabama Legislature’s listing of duties for a VSO may or may not translate into the actual effort that a VSO expends in the performance of his job. Thus, the court has weighted the varying impact of the statutory scheme accordingly at each point in the prima facie analysis.
16

consideration the total population of the county, the number of men inducted into the armed services from the county, the number of veterans of all wars present in the county and special circumstances and facts involving the concentration of industries or other problems which may have a tendency to increase or decrease the number of veterans in certain localities.” Ala. Code § 31-5-9. Although there is no dispute that the CVAAs also perform a valuable service on behalf of the Alabama VA to the veterans in their respective counties, none of the CVAAs are - or could be - the veteran representative in those counties where the [Director of VA] sees a need for such a representative “who served in the military or naval forces or other armed services.” Ala. Code § 31-5-10.
Against that broad statutory grant of authority to the Commissioner to establish a veteran presence on his behalf in each county, Plaintiffs’ focus on the day-to-day random assignment of cases to the CVAA or VSO in each county office - as “evidence” that veteran status is irrelevant to the performance of the VSO position - is quite myopic. As outlined above, the statutory scheme makes clear that the establishment of the VSO position was intended for a much broader purpose than simply processing veterans’ claims. Although evidence that some CVAAs and VSOs perform many of the same daily duties certainly is relevant to the equal effort prong of the prima facie EPA case, to find that wartime veteran status is not a skill needed to perform the VSO position when, in fact, the Alabama Legislature has clearly pronounced that to be the case, would require this court to act impermissibly as a “superlegislature.” At this stage, the court’s analysis focuses on whether the jobs require equal skill and thus can be properly compared for pay purposes. It would literally take
17

an Act of Congress (or, in this case, the Alabama Legislature) to equalize the skills of the VSO
position and the skills of the CVAA position.25
At the very least, the importance placed on wartime veteran status by the Alabama
Legislature renders that skill “more than an incidental part” of the VSO position. As the Eleventh
Circuit noted in Mulhall (with application to the facts of this case in bold, brackets and the original
text in italics):
“We cannot so easily dismiss the [veteran representative] investigative component of [the VSO] Hill's job. While there is no evidence before us of the time actually spent in this particular job function, [wartime veteran status] investigative skills no doubt play[s] some role in one's ability to [serve as the representative of the VA in each county] direct investigations, making [wartime veteran status] investigative knowledge more than an incidental part of [the VSO] Hill's position. Plaintiff does not assert that she possessed [the status of wartime veteran] any investigative skills. Accordingly, we agree with the district court that under the strict similarity requirement imposed in EPA cases, the plaintiff failed to establish a prima facie case as it relates to the [VSOs] Group 2 comparator, William Hill.
Mulhall, 19 F.3d at 593. Just as with the “important differentiating factor” case law outlined above
in the analysis of “equal effort,” this Circuit made clear in Mulhall that the amount of time (or lack
thereof) that an employee actually utilizes a skill is not necessarily indicative of that skill’s
importance to the job.26 Surely the prominence placed by the Alabama Legislature on the skill of
25 Accordingly, the court respectfully disagrees with Judge Fuller’s assessment that “Plaintiffs’ evidence is sufficient to establish that being a veteran is not necessary to perform the job [of VSO].” (Doc. # 120, at 29).
26 This concept is bolstered by the persuasive Eleventh Circuit affirmance of another district court’s application of the “important differentiating factor” analysis to the “equal skill” prong of the prima facie case. See Beall v. Curtis, 603 F.Supp. 1563 (M.D.Ga.), aff'd without op., 778 F.2d 791 (11th Cir.1985). In Beall, the district court concluded that the six female nurse practitioner plaintiffs who were employed at the University of Georgia Health Service failed to satisfy their EPA prima facie burden because the skill required of their positions was not comparable to that of a physician’s assistant (Curran) who “possesse[d] skills, by virtue of his experience, training, education, and ability, that plaintiffs have not acquired.” Beall, 603 F.Supp. at 1578. The court observed,
18

veteran status - as demonstrated by its codification in statute - is at least equal to the court’s
hypothesis in Mulhall that “investigative skills no doubt play some role in one's ability to direct
investigations.” Mulhall, 19 F.3d at 593. Thus, the court alternatively concludes that the skill of
wartime veteran status “is more than an incidental part” of the VSO position, distinguishing it from
the CVAA position under the “strict similarity” requirement. Mulhall, 19 F.3d at 593.
Numerous witnesses testified about the training, skills used, and available skills of plaintiffs and of Mr. Curran. There is no doubt that the physicians, registered nurses, physician's assistants, and nurse practitioners who work at the University of Georgia Health Service usually provide identical or substantially similar health care services to patients. The overlap of categories of health care providers does not, however, make irrelevant the different levels of medical competence, skill, and expertise, or the different responsibilities, of persons in different categories. No one would argue that a physician and a nurse who routinely handle identical problems and provide identical treatment perform an identical job; a physician is expected to demonstrate greater expertise that makes him or her more valuable in the unusual case.
Beall, 603 F.Supp. at 1570-71. Although the nurse practitioner plaintiffs suggested that any extra skills possessed by the physician’s assistant were a “‘superfluous, expensive redundancy,’” and they urged the court to “compare skills actually required and used on the job rather than skills that create merely hypothetical differences in job performance,” the court rejected plaintiffs’ attempt to equate the minimal time devoted to using those skills with their importance to the overall job content. Beall, 603 F.Supp. at 1578. Relying on the “important differentiating factor” case law from the former Fifth Circuit, the court observed that “even if Mr. Curran's skills are seldom used, whether that is because patients needing those skills rarely appear at the Health Service, or consult physicians there instead, or are immediately referred to an outside hospital, they are relevant to distinguish his work from that of plaintiffs.” Beall, 603 F.Supp. at 1578. Although the Eleventh Circuit affirmed that reasoning without opinion, it also cited with approval to the Beall prima facie case analysis in Waters v. Turner, Wood & Smith Ins. Agency, Inc. 874 F.2d 797, 800 (11th Cir. 1989).
Just as the district court observed in Beall with respect to certain skills possessed by practitioners in the field of medicine, the state legislature has determined that when it comes to serving the veterans of Alabama, “the availability of skills not often used is an important component of competence . . . .” Beall, 603 F.Supp. at 1578. Although a VSO’s background may not determine which case he or she is assigned when a veteran walks in the door, it cannot be said that such a skill is completely unnecessary to the VSO position when considering job content as a whole.
19

The court has struggled in vain for months to find the perfect analogy that can be likened to the facts of this case. Perhaps the unique nature of a comparator position created by state statute in the public sector - which is like forcing a square peg into the round hole of a federal statute originally drafted to remedy pay differentials in private industry - is to blame for the lack of kindred fact patterns. In any event, the court finds that the characteristics of the CVAA and VSO positions are not unlike the circumstances of the two law clerks who were appointed to work for the undersigned. Both law clerks are paid by the Administrative Office of the United States Courts. Both expend substantially similar effort in attending to their day-to-day job duties because each is responsible for managing approximately half of the undersigned's civil cases. Like the veteran cases handled by CVAAs and VSOs in the county offices, cases are not routed to one law clerk or the other based upon experience or education or any other qualification - they are merely assigned randomly based upon whether the terminal digit of the civil action number is even or odd. To any outsider looking in, the job content of the law clerks' primary duties would appear virtually identical.
Nonetheless, despite the appearance of similarity, each law clerk has a different appointment in the federal system based upon the job requirements for those positions. One of the law clerks is a male who recently graduated from law school with no prior work experience. Because he lacks post-graduate experience, no matter what other credentials or skills he brings to the table, he is only eligible for the "JSP-11" level appointment - which then corresponds with a certain salary range. See https://lawclerks.jdc.ao.dcn/employinfo.htm. On the other hand, the second law clerk is a female who has two years of post-graduate work experience which qualifies her for a "JSP-13" level governmental appointment and entitles her to a much higher pay scale. The reasoning behind the higher appointment level available to her is obvious - although she may not use the experience
20

gleaned from her post-graduate work experience in daily practice, it is available for her (and the undersigned) to draw upon when a matter requires it.
Just like the Plaintiffs, who may perform the same day-to-day duties as a VSO but are not statutorily eligible to be paid as a VSO because they are not veterans, the law clerk who is a recent graduate lacks the post-graduate work experience that would qualify him for a different federal appointment and higher pay scale. In both my chambers and at the Alabama VA, the skill required for the higher paid position applies to all persons who hold that job regardless of gender and thus is the very reason why the positions and pay of those two employees simply cannot be compared at all.
Plaintiffs’ failure to satisfy the “equal skill” prong of the test, just as with the “equal effort” prong, is independently fatal to their EPA claims. Nonetheless, the court will forge ahead to the final stage of the prima facie analysis.
c. Equal Responsibility “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. § 1620.17(a). Just as the “veteran status” skill required by statute could not be brushed aside as a theoretical job description, the same is true of the level of accountability required of a VSO as outlined in the Code. When establishing the VSO position, the Alabama Legislature prescribed intrinsic accountability: “The [VSO] . . . shall be administratively responsible to the [Director of VA].” Ala.Code § 31-5-10 (a). That all VSOs are held responsible by the Director for the "faithful performance of their official duties" is sealed by the requirement that each VSO take an oath of office and have a surety bond executed on his or her behalf. Ala. Code §§ 31-5-11 (1975). It is undisputed that CVAAs are not
21

required to execute a surety bond or take an oath of office, nor are they held administratively responsible to the Director of VA.
Although the statutory accountability outlined above should alone be sufficient to distinguish the responsibility of a VSO from that of a CVAA, additional accountability is required of the VSOs as “rating supervisors” over the CVAAs. Despite that “most of the Plaintiffs assert that VSOs are supervisors in name only,” Prewett, 419 F.Supp.2d at 1356, there is no dispute that VSOs are the rating supervisors on the CVAAs' annual performance appraisals. Although Plaintiffs focus on the minimum amount of time VSOs expend actually putting pen to paper on the annual performance reviews (some of the CVAAs aver that they filled out their own reviews that the VSOs then signed), that argument is merely a quarrel with whether or not certain VSOs are putting forth their best effort when rating the performance of their respective CVAAs. It does not change the undisputed fact that VSOs are held accountable as the rating supervisors over CVAAs – in other words, a VSO must appraise the sum and substance of his or her assigned CVAA’s year-long performance, even if the actual completion of the review form takes a matter of seconds. “Supervising more employees . . . requires greater skill, effort, and responsibility.” Slattery v. Precision Response Corp., 167 Fed.Appx. 139, 143 (11th Cir. 2006) (citing Irby, 44 F.3d at 954; Waters, 874 F.2d at 799-800). For this independent reason, the VSO and CVAA positions are not comparable in responsibility or accountability for EPA purposes.
The court has outlined above three independent reasons why Plaintiffs have failed to satisfy their prima facie EPA burden in this case and Defendants are due summary judgment on those claims. Alternatively, however, the court finds that even if the Plaintiffs could establish a prima
22

facie case and thus shift the burden to Defendants to demonstrate the application of an affirmative defense, summary judgment in Defendants’ favor is still warranted.
2. The Affirmative Defenses Under the EPA, once the employee presents a prima facie case, the employer may avoid liability by proving by a preponderance of the evidence that the pay differences are based on “(i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) . . . any other factor other than sex.” 29 U.S.C. § 206(d)(1). The fourth affirmative defense (i.e., any factor other than sex) is a broad “catch-all” exception, Corning Glass Works, 417 U.S. at 197, that encompasses an almost limitless number of gender-neutral factors. The availability of that defense prevents courts from substituting their judgment for the employer’s judgment. County of Washington v. Gunther, 452 U.S. 161, 171 (1981). The Eleventh Circuit has made clear that the burden to prove these affirmative defenses is heavy, and the employer must demonstrate that “the factor of sex provided no basis for the wage differential.” Mulhall, 19 F.3d at 590. In this case, Defendants have asserted that two of the four available affirmative defenses are the real reasons for the pay differential: (1) a merit system; and (2) a “factor other than sex.” (See Doc. # 74, at 31). The court will discuss each defense in turn. Just as Judge Fuller found in his Summary Judgment Opinion, Defendants’ reliance on the bona fide “merit system” defense can be disposed with in short order. Although the court does not disagree with Defendants that the Alabama Merit System Act, under which the CVAAs are employed and paid, qualifies as a bona fide merit system that does not discriminate on the basis of sex (see Doc. # 74, at 31; see also Prewett, 419 F.Supp.2d at 1357), the Alabama Merit System alone fails to explain the pay differential between VSOs and CVAAs. As Judge Fuller noted, “Plaintiffs
23

and their comparators are not part of the same merit system, [and] their relative pay has not been determined objectively by the same system." Prewett, 419 F.Supp.2d at 1357. "[T]he fact that the CVAAs are governed by a merit system is not any evidence that their pay has been determined fairly in relation to the VSOs' pay." Prewett, 419 F.Supp.2d at 1357. The court finds, therefore, as did Judge Fuller, that Defendants cannot explain the pay differential at issue here by pointing to the narrow "merit system" defense. That failure, however, does not preclude Defendants from relying on evidence that the CVAAs’ pay is determined by the Alabama Merit System as part of their “factor other than sex” explanation for the pay differential, to which the court now turns.
To establish the “factor other than sex” affirmative defense, an employer may not rely on a “general practice” but may consider factors such as the “ unique characteristics of the same job; ... an individual's experience, training or ability; or . . . special exigent circumstances connected with the business.” Glenn v. General Motors Corp., 841 F.2d 1567, 1571 (11th Cir.1988). “Experience is an acceptable factor other than sex if [it is] not used as a pretext for differentiation because of gender.” Irby, 44 F.3d at 956. The Eleventh Circuit has strongly suggested that the factor other than sex must be business-related. See Price v. Lockheed Space Operations Co., 856 F.2d 1503, 1506 (11th Cir. 1988) (remanding for jury determination of whether any additional and legitimate business reasons existed); Glenn, 841 F.2d at 1571 (noting that exigent circumstances should be “connected with the business”). At the very least, Defendants must present “an explanation of how those factors actually resulted in an individual employee earning more than another.” Brock v. Georgia S.W. Coll., 765 F.2d 1026, 1037 (11th Cir.1985), overruled on other grounds by McLaughlin v. Richland Shoe Co., 486 U.S. 128 (1988).
24

In their initial brief in support of summary judgment, Defendants offered the following explanation of their “factor other than sex” defense:
[T]he State of Alabama has in place a valid merit system that does not discriminate on the basis of sex. See Ala. Code §§ 36-26-1, et. seq. (1991). Moreover, the Alabama state statutes require VSOs to be Veterans and provide[] that VSOs be nonmerit employees. See Ala. Code §§ 31-5-3(d), 31-5-9 (1998). Thus, VA has in place a “dual classification system” for VA employees. The presence of a “dual classification system,” the requirement of Veteran status, and a good faith belief that employees were properly classified are all a “factor other than sex.” Any creation of a new classification without appropriate justification that would effectively allow white employees to pass over higher ranked minorities could be a violation of the Frazer order. (See Doc. # 74, at 31). When Judge Fuller analyzed that defense in his Summary Judgment Opinion, he separated Defendants’ arguments into four “factors other than sex” that he analyzed as standalone defenses: (1) the dual classification system; (2) the veteran status requirement; (3) Defendants' good faith belief that all employees were properly classified; and (4) the fact that creation of a new classification could violate the Frazer order. Prewett, 419 F.Supp.2d at 1357-58. After parsing out the evidence that supported each of those factors, Judge Fuller concluded that none of the four proffered explanations were independently sufficient to entitle Defendants to judgment as a matter
25

of law.27 Based upon that paradigm of four separate “factors other than sex,” this court agrees that
none of those reasons - standing alone - explains the pay differential in this case.28
However, the undersigned respectfully disagrees that the components of Defendants’ “factor
other than sex” defense can be considered independent of one another. Although the reasoning
offered by Defendants consists of several layers, those layers are inextricably intertwined by the
statutory scheme underlying the facts of this case. In other words, when properly viewed,
Defendants’ “factor other than sex” explanation should be analyzed comprehensively as a whole, and
the whole is greater than the sum of its parts. With the paradigm shifted to this perspective, for the
reasons outlined in more detail below, the court finds as a matter of law that the disparity between
the pay of CVAAs and VSOs is not based on sex, but is a byproduct of the different statutes that
govern those positions.
27 Specifically, Judge Fuller found that, as a matter of law, Defendants failed to meet their heavy burden as to the dual classification system defense and the defense regarding a potential violation of the Frazer order. Prewett, 419 F.Supp.2d 1338, 1357-59. Although Judge Fuller found that Defendants “did present adequate evidence to create an issue of fact as to whether they may assert the ‘factor other than sex’ defense on the basis of the veteran status requirement or a good faith belief that Plaintiffs were properly classified,” he ultimately concluded that the factfinder should decide whether “those two claimed factors other than sex were not the real reasons for the pay disparity, and that the pay disparity was due to sex.” Prewett, 419 F.Supp.2d 1338, 1359-61.
28 That is not to say that “[i]f applied in good faith and in a nondiscriminatory manner, . . . wartime veteran status can[not] be a legitimate factor other than sex.” Fallon v. State of Illinois, 882 F.2d 1206, 1212 (7th Cir. 1989). In this case, veteran status certainly explains why VSOs are VSOs and CVAAs are not. However, veteran status does not - standing alone - paint the whole picture of why VSOs and CVAAs are paid differently. As outlined in more detail infra, veteran status must be viewed in the context of the statutory dual classification system which establishes the pay differential between VSOs and other VA support personnel (including CVAAs). There is no evidence that the Alabama Legislature acted in bad faith or with a discriminatory purpose when it created, some sixtyodd years ago, the statutory classifications that apply to VSOs and CVAAs. Thus, veteran status the distinguishing characteristic of the different pay classifications in the statutory scheme - has been “applied in good faith and in an nondiscriminatory manner” in this case.
26

It is undisputed that by statute the CVAAs and the VSOs fall under two different systems of
pay - as Defendants put it, the VA employs a “dual classification system.” The statute provides as
follows:
(d) The state board shall have the power, and it shall be its duty, to fix the salaries and minimum standards of service and personnel of all service commissioners, and subject to the State Merit System, where applicable, to fix salaries and minimum standards of service and personnel, according to the schedules and rules prescribed by the State Personnel Board, for other employees and personnel.
Ala. Code § 31-5-10(d). Thus, the pay of VSOs (to whom the statute refers as “service
commissioners”) is left completely to the discretion of the VA. See Ala.Code § 31-5-3 (d) (“The
[State Board of Veterans' Affairs] shall have the power, and it shall be its duty, to fix the salaries and
minimum standards of service and personnel of all service commissioners . . . ”). VSOs are not
entitled to the protections of the Alabama Merit System Act but instead are paid at the pleasure of
the Director of VA.29
On the other hand, although the statute gives the VA Director input into the pay of CVAAs
as “other employees and personnel,” VA input is “subject to the State Merit System” and limited
by “the schedules and rules prescribed by the State Personnel Board.” Ala.Code 1975 § 31-5-3(d).
29 As Judge Fuller’s recitation of the facts explains:
The Director of VA has the authority to hire, dismiss, establish salaries, and determine merit raises for VSOs. VSOs may be dismissed for cause, including conduct unbecoming a VSO. A VSO may request review of the dismissal by the State Board of Veterans' Affairs, but review is discretionary. After the Director of VA hires an individual, that individual assumes the responsibilities of a VSO for a six-month probationary period. Upon successful completion of the probationary period, the Director of VA recommends the individual for approval to the State Board of Veterans' Affairs. If the Board approves, the individual then becomes a VSO.
Prewett, 419 F.Supp.2d at 1345-46. 27

As beneficiaries of the State Merit System Act, CVAAs are entitled to the range of pay (and other
benefits) established for their designated classification of “Administrative Support Assistant”or
“ASA”- a classification that includes a number of clerical employees employed statewide in
numerous state agencies.30 Thus, while the Alabama VA may be able to “fix” where a CVAA’s pay
falls within the range of pay established for their ASA classification, the VA has no authority to step
outside of that classification and pay a CVAA more than any other state employee who is classified
as an “ASA.”31
The practical application of that statutory limitation is that many of the CVAAs - including
many of the Plaintiffs in this case - are “topped out” at the high point of their ASA pay range.
Indeed, the evidence is undisputed that just prior to the filing of this lawsuit, Defendants
implemented a statewide CVAA reallocation such that, if a CVAA was eligible to be promoted, she
was.32 As many CVAAs reach the height of their allowable pay in the ASA classification, the pay
30 The Alabama Merit System Act, Ala.Code § 36-26-1, et seq., governs benefits and regulations concerning, among other things, the hiring process, job performance standards, promotion, transfer, demotion, layoff, dismissals, suspension, classification of positions, and salary plans. The regulations include a guaranteed right to appeal terminations and disciplinary actions. The State Personnel Department, with the approval of the Governor and the Finance Director, sets the salary ranges for all Merit System employees, including CVAAs. The SPD Director recommends pay plans for each classification to the SPD Board, and the SPD Board then adopts the pay plans with the approval of the Governor. The CVAAs are assigned to work for the Alabama VA and their salaries are paid from the Alabama VA budget.
31 Ironically, the VA Director has, “[o]n numerous occasions since 1983 . . . requested that CVAAs be compensated at a higher rate.” Prewett, 419 F.Supp.2d at 1348. The VA has even lobbied on behalf of the CVAAs for the creation of a new position classification. Prewett, 419 F.Supp.2d at 1348-49. The parties agree that, for reasons outlined infra, all requests to pay CVAAs outside of the ASA classification ultimately have been rejected.
32 “In January 2000, all CVAA positions were reallocated to the highest possible classifications within the ASA series. CVAAs were required to take appropriate merit system examinations and score high enough to be ‘reachable’ on the register (ranked in the top 10). All
28

of VSOs continues to rise with every discretionary raise granted by the Director of VA, who is not restrained by a legislatively-established ceiling in the determination of VSO salaries.
Although, in theory, the creation of a new Merit System classification for CVAAs could reset the upper-limit of their pay range to be commensurate with the higher pay of their comparator VSOs, Defendants have explained that they cannot simply create a new classification at the drop of a hat. Rather, for the better part of the time that this action has been pending, and for years before it was filed, the creation of a new classification for Plaintiffs was negatively affected by two things: (1) the “no-bypass rule” of the Frazer order33 prohibiting the appointment of any White candidate if a higher-ranking African-American candidate is eligible for the position; and (2) the relationship that the CVAAs share with other employees statewide who are classified as ASAs under the SPD system. (Doc. # 74, at 39-44). First, Defendants point out that, “[t]he creation of a new classification [would violate the Frazer order because it] would effectively allow employees who would otherwise be blocked by the Frazer order to achieve promotions to which they would not otherwise be entitled.”
Plaintiffs who were eligible to be promoted were promoted.” Prewett, 419 F.Supp.2d at 1348-49. 33 Frazer refers to the case of United States v. Frazer, 317 F.Supp. 1079 (M.D.Ala.1970),
which alleged a pattern and practice of race discrimination in the Alabama Merit System. The Frazer no-bypass rule is as follows:
Defendants shall not appoint or offer a position to a lower-ranking white applicant on a certificate in preference to a higher-ranking available Negro applicant, unless the defendants have first contacted and interviewed the higher-ranking Negro applicant and have determined that the Negro applicant cannot perform the functions of the position, is otherwise unfit for it, or is unavailable. In every instance where a determination is made that the Negro applicant is unfit or unavailable, documentary evidence shall be maintained by the defendants that will sustain such finding. Frazer, 317 F.Supp. at 1091.
29

(Doc. # 74, at 43-44). Although the court agrees with Judge Fuller that Defendants cannot rely solely on a hypothetical violation of the no-bypass rule as their entire “factor other than sex” defense, see Prewett, 419 F.Supp.2d at 1360, it nonetheless is a relevant part of Defendants’ comprehensive explanation that a number of variables like the Frazer order - and not the factor of sex - have had an impact on the pay differential here.
Defendants also explain that any efforts to create a new classification are limited by the fact that the CVAAs are not the only employees in the “ASA” Merit System designation; the “ASA” classification encompasses not only Alabama VA employees but also many other clerical positions in numerous state agencies across Alabama. Through both internal audits and validation studies conducted by outside experts, the State Personnel Department has “on [many] occasions, reviewed the job duties and responsibilities of the ASAs who are employed by the Department of Veterans Affairs. On each and every occasion, it was determined that the job duties and responsibilities of these positions are clerical in nature and fall within the existing job classification of ASA.” (Doc. # 73, Ex. B, Affidavit of Tommy Flowers, at 5 and Ex. 2). For example, internal audits revealed that the counseling services provided to veterans by CVAAs were comparable in responsibility and type to the duties of ASA-series employees at the County Health Department and the General Contractors Licensing Board. (Flowers Affidavit, at 8-9 and Ex. 2). “While the focus of many clerical positions [in the ASA series] differ from agency to agency, the overall tasks, responsibilities, scope, and level of work performed are comparable.” (Flowers Affidavit, at 9). Thus, any momentum to create a new classification for CVAAs cannot be viewed in a vacuum: “[t]o provide specific classifications for each [state] agency would frustrate the concept of position classification and . . . hinder[] the
30

efficient and effective administration of the merit system.” (Flowers Affidavit, at 9-10).34 The
creation of a special CVAA classification would also undoubtedly lead to assertions by other
employees in the ASA classification (who do not work for the VA) that CVAAs should not be paid
at a higher rate than them.35
The undisputed evidence shows that the “no-bypass rule” and the relationship of CVAAs to
other ASA-series employees are gender-neutral considerations that impacted the decision to continue
paying CVAAs in the ASA classification. Although it may be argued that either reason standing
alone is insufficient to justify the pay differential between CVAAs and VSOs, they are valid
34 As Defendants explained at the January 24, 2007 oral argument on the motions to reconsider:
MS. BYRNE [on behalf of Defendant SPD]: In Reynolds we were required to undertake a massive job study of the job classifications in the state that were in use at the Department of Transportation. Nearly 200 classifications.
THE COURT: Are there ASA positions used with the Department of Transportation?
MS. BYRNE: Yes, Your Honor. And those were identified. They were looked at by outside experts; looked at by ourselves.
THE COURT: And validation studies?
MS. BYRNE: Validation studies, yes, Your Honor, absolutely; performed by outside experts who came in and examined our system. So we could not under any circumstances go in and say oh, well, yes, because you can't get past a minority under Frazer, we are going to create a new classification, even though we have already determined, and outside experts have determined, and the Court has determined that these job duties are appropriate in this classification.
(Doc. # 229, at 85). 35 Indeed, the internal reviews and validation studies initially conducted at the behest of the
CVAAs would bolster any such claims because they indicate that CVAAs are properly classified as ASAs.
31

limitations on the ability of Defendants to alter the pay differential and therefore must be considered
together as part of Defendants’ comprehensive explanation. It is not this court’s job to second-guess
the valid business decisions of Defendants, nor to find that Defendants should have created a new
classification for the CVAAs. Gunther, 452 U.S. at 171. Rather, this court’s focus is limited to
whether Defendants have shown that business-related, non-sex based reasons explain the pay
differential.
The court recognizes that, in the context of dual pay systems, the Eleventh Circuit has
intimated (in footnote dicta) that the mere fact that two systems exist will not alone satisfy
Defendants’ affirmative defense burden under the EPA “without record support that experience and
background justify the pay disparity.” Glenn v. General Motors Corp., 841 F.2d 1567, 1571, n. 9
(11th Cir. 1988).36 Even if that is the law of this Circuit, the statutory requirement of “veteran
status” provides that justification here – to qualify for pay determined solely by the Director of the
VA outside of the Merit System, one must have the background and experience as a veteran that
36 In Glenn, the Eleventh Circuit rejected the defendant’s attempt to justify a pay disparity between female and male salaried workers by relying on a corporate-wide policy that prohibited hourly employees from taking a pay cut when transferring to salaried positions like the ones held by the male comparators in that case. Glenn, 841 F.2d at 1570-71. The court agreed with the district court’s finding that the "policy" was nothing more than a potentially violative practice to pay workers what it takes to induce them to accept employment and noted that historically women have been hired at lower starting salaries. Glenn, 841 F.2d at 1570-71. In so finding, the court dropped a footnote rejecting defendant’s reliance on a Fourth Circuit case “for the proposition that pay disparity is justified when it results from two distinct nondiscriminatory merit systems” and noting that defendant could not justify the pay disparity of the “basis of the systems alone, without record support that experience and background justify the pay disparity.” Glenn, 841 F.2d at 1571, n. 9. Although the relevant footnote in Glenn is dicta, it makes logical sense that an employer should not be permitted to satisfy its “heavy burden” of production on this defense by simply pointing out that the plaintiff is part of a merit system while her comparator is not. Such a cursory explanation for the pay disparity would not demonstrate that the relative pay of the plaintiff and her comparator has been determined objectively by the same standards.
32

qualifies a person to be a VSO. As outlined in the statutory scheme, VSOs and CVAAs were not arbitrarily segregated into two different classifications. Rather, the Alabama Legislature has made clear that being a veteran - not being of a certain gender - is the threshold that must be crossed for an employee of the VA to qualify for the classification paid outside of the Merit System. It is not the prerogative of this court to question whether the Alabama Legislature made a good decision when it chose “veteran status” as the differentiating factor between the two pay classifications because that amounts to nothing more than a challenge to the validity of the statute.37 The court must only
37 And perhaps the lack of constitutional challenge in this case is due in part to the Supreme Court’s pronouncement that a statute bestowing a job preference on veterans - even if that preference is absolute and disadvantages women - nonetheless passes constitutional muster in the absence of evidence of purposeful discrimination. See Personnel Adm’r of Massachusetts v. Feeney, 442 U.S. 256, 272 (1979). As the Court noted, “[t]he calculus of effects, the manner in which a particular law reverberates in a society, is a legislative and not a judicial responsibility.” Feeney, 442 U.S. at 272.
33

analyze whether the statutory designations justify the pay disparity for reasons other than sex.38
Here, there is no evidence to the contrary.39
38 In light of the fact that Plaintiffs have not challenged the constitutionality of the “veteran status” requirement, Defendants moved earlier in this case to clarify their burden of proof regarding the legitimate business purpose of that requirement:
It is disingenuous for Plaintiffs to claim that they are not attacking the veteran requirement in the [Alabama] statute and then argue that Defendants have to prove that same veteran status is justified by business necessity [under the “factor other than sex” defense]. Plaintiffs cannot have it both ways: either they are attacking the veteran status requirement of the statute or they are conceding that it is a legitimate business necessity.
(Doc. # 161, at 2-3). The court denied Defendants’ motion and held that because “Plaintiffs concede that they have not challenged the constitutionality of the statute establishing the veteran status requirement for Veteran Service Officers, . . . [] the ‘rational basis’ standard of review used to analyze the constitutionality of a statute is not applicable in this case.” (Doc. # 220). The court then outlined the following standards to be applied to the affirmative defense, which it has relied upon in this opinion:
(1) the burden of proof for the affirmative defense is on the employer, Irby v. Bittick, 44 F.3d 949, 954 (11th Cir. 1995); (2) the employer must provide “an explanation of how those factors [other than sex] actually resulted in an individual employee earning more than another,” Brock v. Georgia S.W. Coll., 765 F.2d 1026, 1037 (11th Cir. 1985) overruled on other grounds by McLaughlin v. Richland Shoe Co., 486 U.S. 128 (1988); and (3) the employer may need to show that the “factor other than sex” has a legitimate business purpose, Price v. Lockheed Space Operations Co., 856 F.2d 1503, 1506 (11th Cir. 1988); Glenn v. General Motors Corp., 841 F.2d 1567, 1571 (11th Cir. 1988).
(Doc. # 220).
39 Although Plaintiffs point to statements from various employees of Defendant who suggest that the employment of CVAAs to do VSO work means that the VA can get the same work “on the cheap,” that does not suggest that sex played a role in the pay disparity. It is undisputed that neither the CVAA or VSO position is open to only one gender - indeed there are both male and female VSOs- and therefore even if cost motivated the establishment of two different pay systems, it was not targeted at one gender.
Other Circuits that require employers to demonstrate that business-related reasons justify the pay differential have accepted pay systems motivated solely by cost control, of course always with the proviso that the systems themselves are not sex-based. See Belfi v. Prendergast, 191 F.3d 129,
34

In the end, it is the statutes, and not Defendants, that have assigned separate pay systems to
each of the jobs at issue here. It is neither within the authority of Defendants nor this court to force
the CVAAs and VSOs into the same pay system where their wages can be appropriately weighted
against one another. As Judge Fuller recognized, it would literally require a “change in the law” by
the Alabama Legislature to accomplish that feat. See Prewett, 419 F.Supp.2d at 1349 (“The majority
of CVAAs, including many of the Plaintiffs, oppose any change in the law that would remove them
from the Alabama Merit System. Wilkes and the Alabama VA management are opposed to a change
136 (2nd Cir. 1999); EEOC v. J.C. Penney, 843 F.2d 249, 253 (6th Cir. 1988). Additionally, the Act's legislative history suggests that wage differentials implicating the total cost of employing both men and women are exempt from the Act's scope:
It is the intention of the committee that where it can be shown that, on the basis of all of the elements of the employment costs of both men and women, an employer will be economically penalized by the elimination of a wage differential, the Secretary can permit an exception similar to those he can permit for a bona fide seniority system or other exception ...
S.Rep. No. 88-176, 1st Sess., at 4 (1963). As the Court of Claims aptly noted:
As long it is not based upon the lesser cost of employing one sex versus the other, an employer's attempt to minimize cost is a valid business reason for implementing a pay and classification system. What, indeed, could be more basic to private enterprise than minimizing costs while maximizing income? Achieving economy in government, however elusive a goal, is also a most desirable aspiration. While Congress might be accused of wasting taxpayers' money, could a court read into the Act a legislative intent to preclude cost-savings as a legitimate business justification for the federal government?
Lissak v. U.S., 49 Fed.Cl. 281, 287 (Fed.Cl. 2001). As outlined above, the court is not in a position to question whether the Alabama Legislature had valid reasons for enacting the statutory dual classification system in this case. Nonetheless, even if it were appropriate for the court to scrutinize the legislature’s intent, being motivated to contain costs by paying CVAAs and VSOs differently is certainly a valid business reason - especially in the context of public employment.
35

in the law that would bring the VSOs under the Alabama Merit System.”).40 In the absence of intervention by the legislature, the pay of VSOs and CVAAs will continue to track parallel paths.
The court is fully mindful of Congress' intent that the exemptions in the Equal Pay Act be narrowly construed and recognizes that it is difficult, but not impossible,41 to dispose of an affirmative defense by way of summary judgment because “credibility and the weight to be given to such ‘explanations’ are traditionally matters left to the consideration of factfinders.” Mulhall, 19 F.3d at 595. Nonetheless, the facts of this case are quite different from those at issue in a typical EPA case. The “explanations” proffered by Defendants as factors other than sex are not merely reasons that they, as employers, have articulated to explain the pay differential. Rather, those “explanations” are based in part on statutory provisions articulated by the state legislature, the validity of which has not been constitutionally challenged in this case. Under these unique circumstances, the court is persuaded that Defendants have satisfied their heavy burden of showing they are entitled to summary judgment on the issue of whether the factor of sex provided any basis for the wage differential here.
40 Accordingly, whether or not Defendants desire for VSOs and CVAAs to be consolidated into one pay system is immaterial here. They do not have the power to make that happen and neither does this court.
41 See, e.g., Hudson v. Mr. Burch Formal Wear, Inc.,193 Fed.Appx. 859 (11th Cir. 2006) (affirming grant of summary judgment on affirmative defense because Plaintiff failed to show that Defendant’s reason for the pay differential was pretextual); Gossage v. Wal-Mart Stores, Inc., 2007 WL 2874781, at *8 (M.D.Ga. September 27, 2007) (“[T]he Court finds that the undisputed evidence establishes the validity of Defendant's affirmative defense. Since no genuine issues of material fact exist regarding Defendant's affirmative defense, Defendant is entitled to summary judgment on Plaintiff's EPA claim”).
36

This court is not the first district court in this Circuit to find that statutory differences
between two positions can result in a valid EPA affirmative defense. In Beall v. Curtis, supra, the
Middle District of Georgia concluded that although there were many similarities between the jobs
of “nurse practitioner” and “physician’s assistant,” state law prescribed statutory differences between
the positions, resulting in a valid defense to plaintiff’s EPA claim. Beall, 603 F.Supp. at 1579-80.
Specifically, the court noted that nurse practitioners were, by law, limited in their practice to certain
protocols, while physician’s assistants were, by law, permitted to perform “any function performed
by the applying physician.” Beall, 603 F.Supp. at 1579 (quoting Ga. Code. Ann. § 43-34-103(d)).
Thus, the court concluded that the distinction in job functions articulated by state statute constituted
a “factor other than sex” justifying a pay differential. Beall, 603 F.Supp. at 1580.42
42 Particularly relevant to this case is that the Beall court relied on the statutory distinction in job functions as a “factor other than sex” in spite of the fact that plaintiffs and their comparators “usually provide identical or substantially similar health care services to patients.” Beall, 603 F.Supp. at 579-80. The court held:
Despite the many similarities, there is one important difference which affords defendants a valid defense. A physician's assistant may perform “any functions performed by the applying physician which the physician's assistant is qualified to perform.” Off.Code Ga.Ann. § 43-34-103(d). Thus, even though the practice of a physician's assistant is normally limited to the powers contained in the job description upon which his or her certification is based, the job description is not absolutely binding. Even if the job description were binding, Mr. Curran's job description lists, under “therapeutic duties”, the duty to “[p]erform all functions as dictated by demonstrated education and competency as directed by and under the supervision of the physician.”
No similar provision exists for plaintiffs. To the contrary, a rule of the Georgia Board of Nursing states that a nurse practitioner “must practice according to written protocols mutually agreed upon by the Nurse Practitioner and physician for all delegated medical functions.” Ga.Admin.Comp. 410-12-.01(5). The protocols governing the practice of plaintiffs at the Health Service clearly state at the outset that “[i]f there is no guideline defining a condition and its management, the nurse practitioner must not diagnose or treat the condition without direct physician
37

The statutes in this case are far more convincing than the regulatory scheme in Beall as a “factor other than sex” that explains the pay differential. In Beall - unlike in this case - it was undisputed that “the State of Georgia has, in its merit system, treated nurse practitioners and physician's assistants alike” despite the statutorily-defined differences in the two positions. Beall, 603 F.Supp. at 1580. Nonetheless, the Beall court rejected Plaintiffs’ argument that it “must or may ignore these legislative and regulatory distinctions” simply because “another unit of the state [] may employ nurse practitioners and physician's assistants in the same capacity,” finding instead “no adequate reason to conclude that the classifications are improper or insignificant and may not be relied upon.” Beall, 603 F.Supp. at 1580. Unlike Beall, the statutes in this case not only distinguish the characteristics of the CVAA and VSO positions, but they also create separate pay structures for those positions.
When all parts of the equation are viewed together in light of the statutory scheme, the court finds that Defendants have offered a cohesive explanation "of how those factors actually resulted in an individual employee earning more than another." Brock, 765 F.2d at 1037. For all of these reasons, the court concludes that even if Plaintiffs have overcome their prima facie burden, Defendants have created a pay differential based upon a legitimate “other factor other than sex.”
involvement.” As a result, Mr. Curran's professional status, as recognized by statute and regulations, makes his job different from those of plaintiffs. He can legally perform medical treatment beyond the written confines of specifically enumerated powers, as long as he has the education and competence necessary to do so. Plaintiffs cannot. No matter how well trained, no matter how able, nurse practitioners are confined by their guidelines and protocols. Their practice is less flexible, and they may not lawfully perform some medical services that Mr. Curran is entitled to perform. Beall, 603 F.Supp. at 1580.
38

3. Evidence of Pretext The EPA analysis set forth by the Eleventh Circuit provides that at this stage, where Defendants have successfully established that the basis for the divergent rate of pay falls under one of the four statutory defenses, the burden then shifts once more to Plaintiffs who must rebut the proffered justification with "affirmative evidence that [the proffered reason] is pretextual or offered as a post-event justification for a gender-based differential." Irby, 44 F.3d 949 (finding that if the plaintiff is able to create the inference of pretext, there is an issue which should be reserved for trial). Such a requirement presents a conundrum, however, as the court has already determined that the undisputed evidence establishes the validity of Defendant's affirmative defense that “the factor of sex provided no basis for the wage differential.” Mulhall, 19 F.3d at 590. In so finding, this court has already - and necessarily - considered Plaintiffs’ evidence that sex did pay a role in the differential. At this point, a separate inquiry into whether Plaintiffs have presented “affirmative evidence” of pretext would merely repeat the court’s prior analysis. Indeed, as the court in Mulhall noted, because “the exceptions granted within the EPA constitute affirmative defenses . . . .[, i]f proven, defendant is absolved of liability as a matter of law.” Mulhall, 19 F.3d at 590.43 Nevertheless, out of an abundance of caution, the court separately concludes that the record is clearly void of affirmative evidence that “the explanation [for the pay disparity] ... is pretextual or offered as a
43 The Beall court also skipped a separate analysis of pretext evidence and terminated the analysis when it found that Defendants had met their burden as to the affirmative defense by relying on a statutory scheme that distinguished the positions. Beall, 603 F.Supp. at 1580 (“Because the Court concludes that plaintiffs have failed to establish a prima facie case and that, in any event, defendant Board of Regents has created a pay differential based upon a legitimate “other factor other than sex,” the Court determines that defendant Board of Regents prevails on plaintiffs' Equal Pay Act claim.”)
39

post-event justification for a gender-based differential.” Steger, 318 F.3d at 1078 (internal quotation marks and citation omitted). Plaintiffs’ failure to “create the inference of pretext,” Irby, 44 F.3d at 954, is the final fatal blow to their EPA claims.
For each and all of the independent reasons outlined above, the court finds that Defendants are due summary judgment on all of Plaintiffs’ EPA claims. B. Title VII Claims
Title VII provides that “[i]t shall be an unlawful employment practice for an employer . . . to discriminate against any individual with respect to compensation . . . because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). Here, Plaintiffs' Title VII claims - which are based on the same facts underlying their EPA claims - allege only intentional disparate pay on the basis of sex.44 While wage discrimination is forbidden under both Title VII and the EPA, Title VII is in some respects broader because Plaintiffs are not required to meet the exacting burden of showing substantial equality of jobs. Gunther, 452 U.S. at 170-71, 181. At the same time, however, Plaintiffs have the additional Title VII burden to prove Defendants intended to discriminate against them on the basis of sex. Miranda, 975 F.2d at 1526.
Crucial to the court’s analysis of Plaintiffs’ Title VII claims here is the incorporation of the EPA affirmative defenses into Title VII by the Bennett Amendment.45 See Gunther, 452 U.S. at
44 In other words, as Plaintiffs have readily conceded, there is no disparate impact claim in this case.
45 The Bennett Amendment provides: It shall not be an unlawful employment practice under this subchapter for any employer to differentiate upon the basis of sex in determining the amount of the wages or compensation paid or to be paid to employees of such employer if such differentiation is authorized by the provisions of section 206(d) of title 29 [the
40

170-171. This incorporation allows employers to defend against charges of discrimination under Title VII where the evidence establishes that their pay differentials are based on a bona fide use of “other factors other than sex.” See Corning Glass Works v. Brennan, 417 U.S. 188, 198-201 (1974). Where, as here, Defendants have established as a matter of law one of the EPA affirmative defenses, that defense is also dispositive of any Title VII claims based upon the same underlying facts.
Therefore, assuming arguendo that Plaintiffs could establish a prima facie case of intentional discrimination under Title VII, they have not overcome, or shown to be pretextual, the explanation offered by Defendants that factors other than sex are to blame for the pay differential here. For this reason, Defendants are due summary judgment on Plaintiffs’ claims of intentional discrimination under Title VII. III. Conclusion
For the reasons outlined above, the court finds that Defendant VA’s Motion for Reconsideration (Doc #186) and Defendant SPD’s Motion for Reconsideration (Doc #185) are due to be granted, with the exception of Defendants’ contention that they have established the “merit system” affirmative defense. Plaintiffs’ Second Motion for Reconsideration (Doc #184) and Defendants’ Motion to Amend/Correct Order on Motion to Alter Judgment (Doc #192) are moot. All pending requests to exclude evidence at trial are moot. (See Docs. # 146, 153, 168, 169, 170, 171, 172, 173). The court will vacate its earlier rulings on Defendants’ Motion for Summary Judgment (Docs. # 120-2, 155) and grant summary judgment in favor of Defendants (Doc. # 72). A separate order dismissing this case will be entered.
affirmative defenses to the Equal Pay Act]. 42 U.S.C. § 2000e-2(h).
41

DONE and ORDERED this 27th day of December, 2007. ___________________________________ R. DAVID PROCTOR UNITED STATES DISTRICT JUDGE
42

 
 Case: 2:00-cv-1674 As of: 09/25/2012 07:43 AM CDT 1 of 29
U.S. District Court Alabama Middle District (Montgomery) CIVIL DOCKET FOR CASE #: 2:00−cv−01674−RDP−SRW

CLOSED

Prewett, et al v. Dept. of Veterans, et al Assigned to: The Honorable R. David Proctor Referred to: Honorable Judge Susan Russ Walker Demand: $0 Cause: 29:206(d) The Equal Pay Act
Plaintiff

Date Filed: 12/07/2000 Date Terminated: 12/27/2007 Jury Demand: None Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

Vickie K. Prewett on behalf of herself and other female employees similarly situated

represented by Gregory Brent Stein Stein Brewster &Pilcher PO Box 1051 Mobile, AL 36633−1051 251−433−2002 Fax: 251−432−7756 Email: gstein@mobilebaylaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Henry Harris Caddell Thiry &Caddell 1911 Government Street Mobile, AL 36606 251−478−8880 Fax: 251−478−8885 Email: hhc45@bellsouth.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rhonda C. Brownstein Southern Poverty Law Center PO Box 2087 Montgomery, AL 36102−2087 334−956−8200 Fax: 334−956−8481 Email: rhonda.brownstein@splcenter.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Lawrence Thiry Thiry &Caddell 1911 Government Street Mobile, AL 36606 251−478−8880 Fax: 251−478−8885 Email: rlt44@bellsouth.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Christine Hale on behalf of herself and other female employees similarly situated

represented by Gregory Brent Stein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Henry Harris Caddell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:00-cv-1674 As of: 09/25/2012 07:43 AM CDT 2 of 29

Rhonda C. Brownstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Lawrence Thiry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Deborah Coker on behalf of herself and other female employees similarly situated

represented by Gregory Brent Stein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Henry Harris Caddell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rhonda C. Brownstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Lawrence Thiry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Vicky Brown on behalf of herself and other female employees similarly situated

represented by Gregory Brent Stein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Henry Harris Caddell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rhonda C. Brownstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Lawrence Thiry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Lisa Jackson on behalf of herself and other female employees similarly situated

represented by Gregory Brent Stein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Henry Harris Caddell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:00-cv-1674 As of: 09/25/2012 07:43 AM CDT 3 of 29

Rhonda C. Brownstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Lawrence Thiry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Teresa Thomason on behalf of herself and other female employees similarly situated

represented by Gregory Brent Stein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Henry Harris Caddell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rhonda C. Brownstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Lawrence Thiry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Susan W. Collier on behalf of herself and other female employees similarly situated

represented by Gregory Brent Stein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Henry Harris Caddell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rhonda C. Brownstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Lawrence Thiry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Valerie Porter Williams on behalf of herself and other female employees similarly situated

represented by Gregory Brent Stein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Henry Harris Caddell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:00-cv-1674 As of: 09/25/2012 07:43 AM CDT 4 of 29

Rhonda C. Brownstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Lawrence Thiry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Betty Dubose on behalf of herself and other female employees similarly situated

represented by Gregory Brent Stein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Henry Harris Caddell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rhonda C. Brownstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Lawrence Thiry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Sandra M. Brown

represented by Gregory Brent Stein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Henry Harris Caddell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rhonda C. Brownstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Lawrence Thiry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Deborah G. Murphree

represented by Gregory Brent Stein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Henry Harris Caddell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:00-cv-1674 As of: 09/25/2012 07:43 AM CDT 5 of 29

Rhonda C. Brownstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Lawrence Thiry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Cecelia J. Talley

represented by Gregory Brent Stein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Henry Harris Caddell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rhonda C. Brownstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Lawrence Thiry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Jan Robbins

represented by Gregory Brent Stein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Henry Harris Caddell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rhonda C. Brownstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Lawrence Thiry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Sue Judkins

represented by Gregory Brent Stein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Henry Harris Caddell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:00-cv-1674 As of: 09/25/2012 07:43 AM CDT 6 of 29

Rhonda C. Brownstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Lawrence Thiry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Shirl J. Brogdon

represented by Gregory Brent Stein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Henry Harris Caddell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rhonda C. Brownstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Lawrence Thiry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
State of Alabama Department of Veterans Affairs

represented by Henry Harris Caddell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Margaret Lindsey Fleming State of Alabama Office of the Attorney General 501 Washington Ave. Montgomery, AL 36130 334−353−3738 Fax: 334−353−8440 Email: mfleming@ago.state.al.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sandra Ingram Speakman Alabama Department of Veterans Affairs 770 Washington Avenue Suite 470 Montgomery, AL 36102 334−353−5033 Fax: 334−242−5102 Email: sandy.speakman@va.alabama.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Lee Rouse Alabama Department of Corrections

Case: 2:00-cv-1674 As of: 09/25/2012 07:43 AM CDT 7 of 29

Legal Office 301 South Ripley Street Montgomery, AL 36104 334−353−3879 Fax: 334−353−3891 Email: scott.rouse@doc.alabama.gov TERMINATED: 06/05/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alice Ann Byrne Alabama Department of Personnel Legal division 300 Folsom Administrative Bldg 64 N Union Street Montgomery, AL 36130−4100 334−242−3451 Fax: 334−353−4481 Email: aliceann.byrne@personnel.alabama.gov ATTORNEY TO BE NOTICED

Defendant
The Alabama State Personnel Department

represented by Alice Ann Byrne (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Henry Harris Caddell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sandra Ingram Speakman (See above for address) ATTORNEY TO BE NOTICED

Defendant
Hon. Don Siegelman individually and as Governor of Alabama TERMINATED: 03/26/2001

represented by Henry Harris Caddell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Margaret Lindsey Fleming (See above for address) TERMINATED: 03/26/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Frank D. Wilkes individually and as Director of the Alabama Department of Veterans Affairs TERMINATED: 03/26/2001

represented by Henry Harris Caddell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Margaret Lindsey Fleming (See above for address) TERMINATED: 03/26/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant

represented by

Case: 2:00-cv-1674 As of: 09/25/2012 07:43 AM CDT 8 of 29

Thomas Flowers individually and as Director of the Alabama State Personnel Department TERMINATED: 03/26/2001

Henry Harris Caddell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 12/07/2000 12/07/2000
12/11/2000 12/11/2000 12/13/2000 12/15/2000 12/20/2000 12/22/2000 01/04/2001 01/11/2001
01/12/2001 01/12/2001 01/18/2001
01/18/2001 01/23/2001 01/26/2001

# Docket Text
1 COMPLAINT Filing Fee $ 150.00 Receipt # 85036 (sl) Additional attachment(s) added on 8/2/2006 (sl, ). (Entered: 02/26/2002)
1 DEMAND for Jury Trial by Vickie K. Prewett, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose (AS TO ORDER DATED 2/25/02, STRIKING JURY DEMAND) h(hc) Modified on 02/25/2002 (Entered: 12/11/2000)
2 SUMMONS issued for Dept. of Veterans, State Personnel; Summons &Cmplt mailed CMRRR h(hc) Additional attachment(s) added on 8/2/2006 (sl, ). (Entered: 12/11/2000)
File referred to Judge Myron H. Thompson h(hc) (Entered: 12/11/2000)
3 RETURN RECEIPT CARD showing service of Summons &Cmplt on Sherry Roberts on 12/12/00 for State Personnel. Answer due on 1/2/01 for State Personnel h(hc) Additional attachment(s) added on 8/2/2006 (sl, ). (Entered: 12/15/2000)
Atty Admission Paid for Atty Richard L. Thiry; FEE $70; RECEIPT #85140 h(hc) (Entered: 12/15/2000)
4 ANSWER to Complaint by State Personnel; (Attorney Alice Ann Byrne). Referred to Judge Myron H. Thompson (dkt clerk) Additional attachment(s) added on 8/2/2006 (sl, ). (Entered: 12/21/2000)
5 ORDER that the Rule 26(f) report containing the discovery plan shall be filed as soon as practicable but not later than 1/12/01; ( signed by Judge Myron H. Thompson ). Copies provided to counsel. (dkt clerk) (Entered: 12/22/2000)
6 RETURN RECEIPT CARD showing service of Summons &Cmplt on James O. Carnegin on 1/3/01 for Dept. of Veterans. Answer due on 1/23/01 for Dept. of Veterans h(hc) (Entered: 01/05/2001)
7 MOTION by Vickie K. Prewett, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose to Conditionally Certify Collective Action and to Authorize Ntc to Similary Situated Employees (Exhibit A &B attached), referred to Judge Myron H. Thompson h(hc) (Entered: 01/12/2001)
8 MOTION (REQ) by Dept. of Veterans for Extension of Time until 01/30/01 to file Rpt of Parties Planning Meeting , referred to Judge Myron H. Thompson h(hc) Modified on 01/16/2001 (Entered: 01/16/2001)
9 RPT of Planning Meeting by Plas, referred to Judge Myron H. Thompson h(hc) (Entered: 01/16/2001)
10 ORDER denying [7−1] motion to Conditionally Certify Collective Action, denying [7−2] motion to Authorize Ntc to Similary Situated Employees, with leave to renew this motion after the parties have filed their Rule 26 (f) report. ( signed by Judge Myron H. Thompson ) , copies provided to counsel. (kcg) (Entered: 01/18/2001)
11 ORDER granting [8−1] motion for Extension of Time until 01/30/01 to file Rpt of Parties Planning Meeting. ( signed by Judge Myron H. Thompson ) , copies provided by facsimile per order. (kcg) (Entered: 01/18/2001)
12 MOTION by Dept. of Veterans to Dismiss Civil Action , referred to Judge Myron H. Thompson h(hc) (Entered: 01/24/2001)
13 ORDER that [12−1] motion to Dismiss Civil Action by Dept. of Veterans set for submission on 2/9/01, without oral argument, with all briefs due by 2/9/01, as

Case: 2:00-cv-1674 As of: 09/25/2012 07:43 AM CDT 9 of 29

01/29/2001 01/30/2001 02/02/2001
02/02/2001 02/07/2001 02/07/2001 02/07/2001
02/09/2001 02/09/2001
02/09/2001 02/12/2001 02/12/2001 02/15/2001 02/15/2001

further set out ( signed by Judge Myron H. Thompson ) copies provided to counsel. (dkt clerk) (Entered: 01/26/2001)
14 MOTION by State Personnel to Dismiss Civil Action , referred to Judge Myron H. Thompson h(hc) (Entered: 01/30/2001)
15 RPT of Planning Meeting by Plas and Dfts, referred to Judge Myron H. Thompson h(hc) (Entered: 01/31/2001)
16 RENEWED MOTION by Vickie K. Prewett, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose to Conditionally Certify Collective Action and to Authorize Ntc to Similarly Situated Employees (Exhibit A and Ntc of Pendency of Equal Pay Act Collective Action and Consent Form attached), referred to Judge Myron H. Thompson h(hc) (Entered: 02/02/2001)
17 ORDER [14−1] Motion to Dismiss Civil Action by State Personnel set for submission on 2/9/01 without Oral argument with all Brf due by said date (signed by Judge Myron H. Thompson), copies provided to Counsel. h(hc) (Entered: 02/02/2001)
18 ORDER that within 21 days Mag. Judge Susan R. Walker shall develop a Discovery Plan (signed by Judge Myron H. Thompson), copies provided to Counsel. Furnished to Mag. Judge Susan R. Walker. h(hc) (Entered: 02/07/2001)
19 ORDER [16−1] Renewed Motion to Conditionally Certify Collective Action by Plas set for submission on 2/28/01 without Oral Argument, with all Brf an Evidentiary Material due by said date (signed by Judge Myron H. Thompson), copies provided to Counsel. h(hc) (Entered: 02/07/2001)
20 SCHEDULING ORDER setting Pretrial Conf for 1/30/02 before Judge Myron H. Thompson; Jury Trial set for 3/11/02 before Judge Myron H. Thompson; Motion Filing deadline on 11/1/01; Mediation Notice deadline on 11/27/01; set Amended Pleading deadline for 5/30/01; Discovery cutoff 12/3/01; Form AO85 attached (signed by Judge Myron H. Thompson), copies provided to Counsel. Furnished to SC, WAR, YG, HC. h(hc) (Entered: 02/07/2001)
21 MOTION by Vickie K. Prewett, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose for Leave to Amend [1−1] Cmplt (Amd Cmplt attached), referred to Judge Myron H. Thompson h(hc) (Entered: 02/09/2001)
22 MEMO BRF by Vickie K. Prewett, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose in opposition to [12−1] Motion to Dismiss Civil Action and [14−1] Motion to Dismiss Civil Action, referred to Judge Myron H. Thompson h(hc) (Entered: 02/09/2001)
23 BRF by State Personnel in support of [14−1] Motion to Dismiss Civil Action, referred to Judge Myron H. Thompson h(hc) (Entered: 02/12/2001)
24 ORDER granting [21−1] Motion for Leave to Amend [1−1] Cmplt (signed by Judge Myron H. Thompson), copies provided to Counsel. h(hc) (Entered: 02/12/2001)
25 AMENDED CMPLT by Vickie K. Prewett, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose against Don Siegelman, Frank D. Wilkes, Thomas Flowers Amending [1−1] Cmplt h(hc) (Entered: 02/12/2001)
26 SUMMONS issued for Don Siegelman, Frank D. Wilkes (at 64 North Union Street and 770 Washington St − Suite 530, Montg AL 36104) and Thomas Flowers; Summons and Amd Cmplt mailed CMRRR h(hc) (Entered: 02/15/2001)
27 NTC of Sandra M. Brown, Deborah G. Murphree, Cecelia J. Talley, Jan Robbins, Sue Judkins and Shirl J. Brogdon of Filing of Written Consents to become Party Plas and Ntc of Appearance of Collective Class Members Through Counsel (Written Consents attached), referred to Judge Myron H. Thompson h(hc)

Case: 2:00-cv-1674 As of: 09/25/2012 07:43 AM CDT 10 of 29

02/20/2001 02/20/2001 02/21/2001 02/21/2001 02/21/2001 02/23/2001
03/01/2001 03/01/2001 03/01/2001
03/02/2001
03/06/2001
03/07/2001 03/07/2001

(Entered: 02/16/2001)
28 RETURN RECEIPT CARD showing service of Summons &Amd Cmplt on S. Roberts on 2/16/01 for Thomas Flowers. Answer due on 3/8/01 for Thomas Flowers h(hc) (Entered: 02/21/2001)
29 RETURN RECEIPT CARD showing service of Summons &Amd Cmplt on Pam Blezlal on (undated) for Don Siegelman. Answer due on 3/12/01 for Don Siegelman h(hc) (Entered: 02/21/2001)
30 RETURN RECEIPT CARD showing service of Summons &Amd Cmplt on James O. Carnega on 2/20/01 for Frank D. Wilkes. Answer due on 3/12/01 for Frank D. Wilkes h(hc) (Entered: 02/21/2001)
31 ORDER outlining Discovery Plan as further set out in Order (signed by Mag. Judge Susan R. Walker), copies provided to Counsel. h(hc) (Entered: 02/21/2001)
32 OBJ by Vickie K. Prewett, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose to [20−1] Uniform Scheduling Order, referred to Judge Myron H. Thompson h(hc) (Entered: 02/22/2001)
33 ORDER TO SHOW CAUSE by Dfts why Plas' Objections to Uniform Scheduling Order should not be Sustained: Rsp to Order to Show Cause due on 3/9/01 for Dept. of Veterans, for State Personnel, for Don Siegelman, for Frank D. Wilkes, for Thomas Flowers (signed by Judge Myron H. Thompson), copies provided to Counsel. h(hc) (Entered: 02/23/2001)
34 MOTION by Dept. of Veterans, Don Siegelman, Frank D. Wilkes to Dismiss Amended Cmplt , referred to Judge Myron H. Thompson h(hc) (Entered: 03/02/2001)
35 MOTION by Dept. of Veterans, Don Siegelman, Frank D. Wilkes for Protective Order and to Stay Discovery Pending Resolution of Issue of Qualified Immunity , referred to Mag. Judge Susan R. Walker h(hc) (Entered: 03/02/2001)
36 MEMO BRF by Vickie K. Prewett, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose in support of [16−1] Motion to Conditionally Certify Collective Action and [16−2] Motion to Authorize Ntc to Similarly Situated Employees by Plas, referred to Judge Myron H. Thompson h(hc) (Entered: 03/02/2001)
37 ORDER [16−1] Motion to Conditionally Certify Collective Action by Plas and [16−2] Motion to Authorize Ntc to Similarly Situated Employees by Plas set for submission on 3/9/01 without Oral Argumetn, with All Brfs due by said date (signed by Judge Myron H. Thompson), copies provided to Counsel. h(hc) (Entered: 03/02/2001)
38 ORDER [35−1] motion for Protective Order by Frank D. Wilkes, Don Siegelman, Dept. of Veterans set for submission on 3/30/01, [35−2] motion to Stay Discovery Pending Resolution of Issue of Qualified Immunity by Frank D. Wilkes, Don Siegelman, Dept. of Veterans set for submission on 3/30/01, [34−1] motion to Dismiss Amended Cmplt by Frank D. Wilkes, Don Siegelman, Dept. of Veterans set for submission on 3/30/01 (signed by Judge Myron H. Thompson), copies provided to counsel, SC. (ajr) (Entered: 03/06/2001)
39 MOTION (NTC) by Vickie K. Prewett, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose of Dismissal of Certian Claism and Dfts , referred to Judge Myron H. Thompson h(hc) (Entered: 03/08/2001)
40 AFFIDAVIT by Vickie K. Prewett, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose in support of [16−1] Motion to Conditionally Certify Collective Action (w/attachments), referred to Judge Myron H. Thompson h(hc) (Entered: 03/08/2001)

Case: 2:00-cv-1674 As of: 09/25/2012 07:43 AM CDT 11 of 29

03/08/2001
03/09/2001 03/09/2001 03/22/2001 03/22/2001 03/23/2001 03/26/2001
03/26/2001 03/30/2001 03/30/2001 04/02/2001 04/19/2001 04/19/2001

41 RSP by Vickie K. Prewett, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose to [35−1] Motion for Protective Order and [35−2] Motion to Stay Discovery Pending Resolution of Issue of Qualified Immunity by Frank D. Wilkes, Don Siegelman, Dept. of Veterans, referred to Mag. Judge Susan R. Walker h(hc) (Entered: 03/09/2001)
42 OBJ by Dept. of Veterans, Don Siegelman, Frank D. Wilkes, State Personnel to [16−1] motion to Conditionally Certify Collective Action and [16−2] Motion to Authorize Ntc to Similarly Situated Employees by Plas, referred to Judge Myron H. Thompson h(hc) (Entered: 03/12/2001)
43 RETURN RECEIPT CARD showing service of Summons &Amd Cmplt on James O. Carnegia on 3/7/01 for Frank D. Wilkes. Answer due on 3/27/01 for Frank D. Wilkes h(hc) (Entered: 03/12/2001)
44 MOTION by Vickie K. Prewett, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose to Compel Dft Alabama State Personnel Dept to Submit Certain Discovery (w/Attachments A − C), referred to Mag. Judge Susan R. Walker h(hc) Additional attachment(s) added on 9/25/2006 (sl, ). (Entered: 03/23/2001)
45 MOTION by Vickie K. Prewett, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose to Compel Dft Alabama State of Veteran Affairs to Submit Certain Discovery (w/Attachments A − C), referred to Mag. Judge Susan R. Walker h(hc) Additional attachment(s) added on 9/25/2006 (sl, ). (Entered: 03/23/2001)
46 ANSWER by State Personnel (Atty Alice A. Byrne) to Amended Cmplt, referred to Judge Myron H. Thompson h(hc) (Entered: 03/26/2001)
47 ORDER sustaining [32−1] Objections; amending the uniform scheduling order as follows: extending amending pleadings in the manner that the plaintiffs be allowed to amend the complaint to allege receipt of statutory notices of Right to Sue in perfection of Title VII jurisdiction at any time prior to pre−trial and defendants may file answers to the amended complaint within 20 days thereafter; and amending the deadline for motion for class certification in the same manner described; granting [39−1] motion to Dismiss as follows: 1) dismissing all claims brought under the equal protection clause of the 14th amendment; 2) dismissing all claims brought pursuant to 42 U.S.C.A. Section 1983; 3) dismissing Defendants Frank D. Wilkes, Thomas G. Flowers, and Don Siegelman completely, that is in both their individual and official capacities; finally, denying [35−1] motion for Protective Order and [35−2] motion to Stay; (signed by Judge Myron H. Thompson). Copies provided to counsel. (dkt clerk) (Entered: 03/26/2001)
48 ANSWER by State Personnel (Attorney ) to amended complaint referred to Judge Myron H. Thompson (kcg) (Entered: 03/27/2001)
50 BRF by Dept. of Veterans in support of [34−1] Motion to Dismiss Amended Cmplt, referred to Judge Myron H. Thompson h(hc) (Entered: 04/02/2001)
51 MEMO BRF by Vickie K. Prewett, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose in opposition to [34−1] Motion to Dismiss Amended Cmplt, referred to Judge Myron H. Thompson h(hc) (Entered: 04/02/2001)
49 ORDER that on or before 04/16/01 Parties shall conduct Face−to−Face Meeting and Attempt to Resolve Issues Presented by Plas' Motion to Compel (signed by Mag. Judge Susan R. Walker), copies provided to Counsel. h(hc) (Entered: 04/02/2001)
52 ORDER reset Scheduling Order Deadlines: Jury Trial reset for 3/4/02 before Judge Myron H. Thompson from 03/11/02 (signed by Judge Myron H. Thompson), copies provided to Counsel. Furnished SC, WAR, YG, HC. h(hc) (Entered: 04/19/2001)
53 Plaintiffs' certification of face−to−face meeting and specification of issues remaining for resolution by the magistrate. Referred to Mag. Judge Walker (sl)

Case: 2:00-cv-1674 As of: 09/25/2012 07:43 AM CDT 12 of 29

04/26/2001
04/27/2001 05/30/2001
06/05/2001 06/15/2001 08/31/2001 09/05/2001 09/11/2001
09/26/2001 10/12/2001 10/18/2001 10/19/2001 10/24/2001 10/24/2001

(Entered: 04/20/2001)
54 ORDER that on or before 05/04/01 Dfts file Rsp to Certification; Tele Conf call to Address Certification and Rsp, set Telephone Con for 4:30 5/16/01 before Mag. Judge Susan R. Walker ; directing Counsle for Pla to set up Conf Call (signed by Mag. Judge Susan Walker), copies provided to Counsel. Furnished to JT, YG, HC. h(hc) (Entered: 04/26/2001)
55 RESPONSE by Dept. of Veterans, State Personnel to [53−1] plaintiff's certification. referred to Mag. Judge Susan R. Walker (sl) (Entered: 04/30/2001)
56 ORDER denying [44−1] motion to Compel Dft Alabama State Personnel Dept to Submit Certain Discovery; denying [45−1] motion to Compel Dft Alabama State of Veteran Affairs to Submit Certain Discovery, as further set out in order ( signed by Mag. Judge Susan R. Walker ) , copies provided to counsel. (sl) (Entered: 05/30/2001)
58 ORDER TO SHOW CAUSE,in writing, as to why the motion to modify, etc., filed by plaintiffs on May 30, 2001 should not be granted. Response to Order to Show Cause due on 6/14/01 for State Personnel, for Dept. of Veterans ( signed by Judge Myron H. Thompson ) , copies provided to counsel. (sl) (Entered: 06/05/2001)
59 ORDER granting [57−1] motion to Modify [20−1] Scheduling order extending the May 30, 2001 deadline for motions to add parties ( signed by Judge Myron H. Thompson ) , copies provided to counsel. (sl) (Entered: 06/15/2001)
60 MOTION by Vickie K. Prewett, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose to Stay deadline for requesting additional discovery time ; referred to Mag. Judge Susan R. Walker (mfm) (Entered: 09/04/2001)
61 ORDER directing the defendants file a response to the [60−1] motion to Stay deadline for requesting additional discovery time on or before 9/11/01 ; directing the clerk to fax the order ( signed by Mag. Judge Susan R. Walker ) , copies provided to counsel by scan &fax, as directed. (djy) (Entered: 09/05/2001)
62 RESPONSE by Dept. of Veterans Affairs to [61−2] order; objecting to plaintiff's motion to stay deadline, filed 8/31/01 and renewed objection to certification of collective action; or in the alternative, request for extension of dispositive motion deadline. (Exhibit A attached) Referred to Judge Myron H. Thompson (sl) Modified on 09/12/2001 (Entered: 09/12/2001)
63 RESPONSE by Vickie K. Prewett, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose in opposition to [62−1] order response by Dept. of Veterans referred to Judge Myron H. Thompson (sl) (Entered: 09/27/2001)
64 NOTICE of Attorney Appearance for Dept. of Veterans Affairs by Sandra Ingram Speakman (sl) Modified on 10/15/2001 (Entered: 10/15/2001)
66 MOTION by Vickie K. Prewett, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose for Leave to add parties plaintiff (proposed second amended complaint attached) referred to Judge Myron H. Thompson (sl) (Entered: 10/18/2001)
67 MOTION by Vickie K. Prewett, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose to Extend Time to conduct discovery referred to Judge Myron H. Thompson (sl) (Entered: 10/22/2001)
68 MOTION by Dept. of Veterans, State Personnel to Strike attachment to [66−1] motion for Leave to add parties plaintiff by plaintiffs referred to Judge Myron H. Thompson (sl) (Entered: 10/25/2001)
69 RESPONSE in opposition by Dept. of Veterans, State Personnel to [66−1] motion for Leave to add parties plaintiff by plaintiffs. referred to Judge Myron H. Thompson (sl) (Entered: 10/25/2001)

Case: 2:00-cv-1674 As of: 09/25/2012 07:43 AM CDT 13 of 29

10/24/2001 11/01/2001 11/01/2001 11/01/2001 11/01/2001 11/01/2001 11/06/2001 11/06/2001
11/06/2001 11/07/2001 11/07/2001 11/07/2001
11/07/2001 11/07/2001 11/07/2001

70 RESPONSE by Dept. of Veterans, State Personnel to [67−1] motion to Extend Time to conduct discovery by plaintiff. (Exhibit A attached) referred to Judge Myron H. Thompson (sl) Modified on 10/25/2001 (Entered: 10/25/2001)
71 Submission of additional facts by Dept. of Veterans, State Personnel in opposition to [66−1] motion for Leave to add parties plaintiff. (Exhibit A attached) Referred to Judge Myron H. Thompson (sl) (Entered: 11/02/2001)
71 Conditional MOTION by Dept. of Veterans, State Personnel to Extend Time to file dispositive motions and evidentiary materials and to conduct discovery referred to Judge Myron H. Thompson (sl) (Entered: 11/02/2001)
72 MOTION by Dept. of Veterans, State Personnel for Summary Judgment referred to Judge Myron H. Thompson (sl) Additional attachment(s) added on 9/21/2006 (sl, ). (Entered: 11/02/2001)
73 EVIDENTIARY SUBMISSION by Dept. of Veterans, State Personnel in support of [72−1] motion for Summary Judgment (Vols I, II, III &IV maintained in four separate binders) referred to Judge Myron H. Thompson . (sl) (Entered: 11/02/2001)
74 BRIEF by Dept. of Veterans, State Personnel in support of [72−1] motion for Summary Judgment referred to Judge Myron H. Thompson (sl) (Entered: 11/02/2001)
75 MOTION by plaintiffs' to preclude defendants from introducing any exhibits at trial for failure to comply with FRCP 26(a)(3) and this court's uniform scheduling order referred to Judge Myron H. Thompson (sl) (Entered: 11/06/2001)
Motion hearing held by telephone conference re: [71−1] motion to Extend Time to file dispositive motions and evidentiary materials and to conduct discovery by State Personnel, Dept. of Veterans, [68−1] motion to Strike attachment to [66−1] motion for Leave to add parties plaintiff by plaintiffs by State Personnel, Dept. of Veterans, [67−1] motion to Extend Time to conduct discovery by plaintiffs (sl) Modified on 11/07/2001 (Entered: 11/07/2001)
84 Courtroom Deputy's MINUTES of proceedings: Telephone Conference (Motion Hearing) Court Reporter−James Dickens. (sl) (Entered: 11/07/2001)
76 ORDER denying [12−1] motion to Dismiss Civil Action; denying [34−1] motion to Dismiss Amended Cmplt; denying [14−1] motion to Dismiss Civil Action ( signed by Judge Myron H. Thompson ) , copies provided to counsel. (sl) (Entered: 11/07/2001)
77 ORDER granting [66−1] motion for Leave to add parties plaintiff ( signed by Judge Myron H. Thompson ) , copies provided to counsel. (sl) (Entered: 11/07/2001)
78 AMENDED COMPLAINT by Vickie K. Prewett, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose, Sandra M. Brown, Deborah G. Murphree, Cecelia J. Talley, Jan Robbins, Sue Judkins, Shirl J. Brogdon amending [1−1] complaint. (sl) (Entered: 11/07/2001)
79 ORDER denying as MOOT [67−1] motion to Extend Time to conduct discovery ( signed by Judge Myron H. Thompson ) , copies provided to counsel. (sl) (Entered: 11/07/2001)
80 ORDER denying [68−1] motion to Strike attachment to [66−1] motion for Leave to add parties plaintiff by plaintiffs ( signed by Judge Myron H. Thompson ) , copies provided to counsel. (sl) (Entered: 11/07/2001)
81 ORDER granting [71−1] motion to Extend Time to file dispositive motions and evidentiary materials and to conduct discovery resetting Scheduling Order Deadlines: Discovery cutoff to 1/4/02 ; dispositive Motion Filing to 1/4/02 ; ( signed by Judge Myron H. Thompson ) , copies provided to counsel. (sl) (Entered: 11/07/2001)

Case: 2:00-cv-1674 As of: 09/25/2012 07:43 AM CDT 14 of 29

11/07/2001 11/07/2001 11/16/2001
11/16/2001 11/20/2001 12/03/2001
12/06/2001
12/20/2001 12/20/2001
12/21/2001 12/21/2001
12/21/2001 01/10/2002

82 ORDERED that the [72−1] motion for Summary Judgment by State Personnel, Dept. of Veterans is set for submission, without oral argument, on 1/11/02 setting reply brief deadline for 1/11/02 for plaintiffs ( signed by Judge Myron H. Thompson ) , copies provided to counsel. (sl) (Entered: 11/07/2001)
83 ORDER denying as resolved [75−1] motion to preclude defendants from introducing any exhibits at trial for failure to comply with FRCP 26(a)(3) and this court's uniform scheduling order ( signed by Judge Myron H. Thompson ) , copies provided to counsel. (sl) (Entered: 11/07/2001)
85 Notice Concerning Settlement Conference and Mediation filed by Vickie K. Prewett, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose, Sandra M. Brown, Deborah G. Murphree, Cecelia J. Talley, Jan Robbins, Sue Judkins, Shirl J. Brogdon referred to Judge Myron H. Thompson (sl) (Entered: 11/16/2001)
86 ANSWER by Dept. of Veterans, State Personnel to second amended complaint referred to Judge Myron H. Thompson (sl) (Entered: 11/16/2001)
87 OBJECTION by State Personnel, Dept. of Veterans to plaintiffs' trial exhibits referred to Judge Myron H. Thompson (sl) (Entered: 11/21/2001)
88 RENEWED OBJECTION TO and MOTION by Vickie K. Prewett, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose, Sandra M. Brown, Deborah G. Murphree, Cecelia J. Talley, Jan Robbins, Sue Judkins, Shirl J. Brogdon to exclude defendants' exhibits (w/attachment); referred to Judge Myron H. Thompson (cc) (Entered: 12/04/2001)
89 ORDER resetting Scheduling Order Deadlines: Pretrial Conference for 9:40 1/30/02 in chambers in Montgomery before Judge Myron H. Thompson ; Proposed Pretrial Order due 1/28/02 ; Jury Trial set for 3/4/02 trial term in Montgomery before Judge Myron H. Thompson ( signed by Judge Myron H. Thompson ) , copies provided to counsel; furnished to YG, HC, WAR, SC. (mfm) (Entered: 12/06/2001)
Tele−conference held before Judge Myron H. Thompson on 12.20.01 (sl) (Entered: 12/21/2001)
90 Courtroom Deputy's MINUTES of proceedings: Telephone conference held on plaintiffs' objection and motion to exclude defendants' exhibits (#88). Order to issue directing defendants to identify persons in exhibit #1 and directing plaintiffs to identify comparetors no later than 1/2/02; ten days later defendant shall narrow their exhibit list. Motion to exclude will be denied. Deadline for filing discovery motions will be extended to 1/14/02. Court Reporter: Mitchell Reisner. (sl) (Entered: 12/21/2001)
91 ORDER overruling [88−1] renewed objection; denying [88−1] motion to exclude defendants' exhibits ( signed by Judge Myron H. Thompson ) , copies provided to counsel. (sl) (Entered: 12/21/2001)
92 ORDER setting Scheduling Order Deadlines: Jury Trial set for term of court beginning 4/1/02 before Judge Myron H. Thompson as further set out in order; proposed jury instructions due on 3/18/02; voir dire questions due 3/18/02 ( signed by Judge Myron H. Thompson ) , copies provided to counsel. Furnished to YG, HC, SC, JURY (sl) (Entered: 12/21/2001)
Deadline updated per order 12/21/01; setting Scheduling Order Deadlines: Jury selection set for 4/1/02 (sl) (Entered: 12/21/2001)
93 ORDERED that the [72−1] motion for Summary Judgment by State Personnel, Dept. of Veterans is re−set for submission, without oral argument, on 1/28/02 with the defendants to supplement their motion by 1/14/02, with plaintiffs to file their brief and evidentiary materials as further set out in order setting reply brief deadline for plaintiffs for 1/28/02 signed by Judge Myron H. Thompson ) , copies provided to counsel. (sl) (Entered: 01/10/2002)

Case: 2:00-cv-1674 As of: 09/25/2012 07:43 AM CDT 15 of 29

01/14/2002 01/14/2002 01/28/2002 02/07/2002 02/08/2002 02/12/2002 02/21/2002 02/22/2002 02/25/2002
04/12/2002 04/15/2002 08/27/2002 02/19/2003 02/21/2003
07/10/2003 07/15/2003

94 BRIEF by plaintiffs in opposition to [72−1] motion for Summary Judgment. (Affidavits of plaintiffs; Deposition Testimony, Vols. I &II; Plaintiffs' Index of Exhibits maintained in 3 separate binders) referred to Judge Myron H. Thompson (sl) Modified on 01/15/2002 (Entered: 01/15/2002)
95 Supplemental BRIEF by Dept. of Veterans, State Personnel in support of [72−1] motion for Summary Judgment. (Exhibits Q−Z maintained in separate 2 separate binders) referred to Judge Myron H. Thompson (sl) (Entered: 01/15/2002)
96 Reply BRIEF by plaintiffs in opposition to [72−1] motion for Summary Judgment referred to Judge Myron H. Thompson (sl) (Entered: 01/29/2002)
97 ORDERED that the pretrial and trial of this cause are continued generally terminated deadlines−pretrial and trial dates ( signed by Judge Myron H. Thompson ) , copies provided to counsel. Furnished to YG, HC, WAR, SC. (sl) Modified on 02/07/2002 (Entered: 02/07/2002)
98 MOTION by plaintiffs to Strike [1−1] demand jury contained in plaintiff's original complaint and set this action for trial on the non−jury docket referred to Judge Myron H. Thompson (sl) (Entered: 02/08/2002)
99 ORDER that the [98−1] motion to Strike [1−1] demand jury contained in plaintiff's original complaint is set for submission, without oral argument, on 2/22/02 with all briefs due by said date. ( signed by Judge Myron H. Thompson , copies provided to counsel. (sl) (Entered: 02/12/2002)
100 RESPONSE by Dept. of Veterans, State Personnel to [98−1] motion to Strike [1−1] demand jury contained in plaintiff's original complaint and set this action for trial on the non−jury docket. referred to Judge Myron H. Thompson (sl) (Entered: 02/22/2002)
101 BRIEF by plaintiffs in support of [98−1] motion to Strike [1−1] demand jury contained in plaintiff's original complaint and set this action for trial on the non−jury docket referred to Judge Myron H. Thompson (sl) (Entered: 02/22/2002)
102 ORDER granting [98−1] motion to Strike [1−1] demand jury contained in plaintiff's original complaint and set this action for trial on the non−jury docket; that this case will now proceed non−jury; terminating [1−1] demand jury ( signed by Judge Myron H. Thompson ), copies provided to counsel. (dkt clerk) (Entered: 02/25/2002)
103 NOTICE of filing of corrected Exhibits 112 and 113 in support of plaintiffs' opposition to defendants' motion for summary judgment by plaintiffs. (Exhibits 112 and 113 attached) Referred to Judge Thompson (sl) Additional attachment(s) added on 9/25/2006 (sl, ). (Entered: 04/15/2002)
104 April 12, 2002 Supplementation to Trial Exhibit List by plaintiffs. Referred to Judge Thompson (sl) (Entered: 04/16/2002)
105 ORDER denying as MOOT [60−1] motion to Stay deadline for requesting additional discovery time ( signed by Mag. Judge Susan R. Walker ) , copies provided to counsel. (sl) (Entered: 08/27/2002)
CASE reassigned to Judge Mark E. Fuller (djy) (Entered: 02/19/2003)
Motion(s) referred to Judge Mark E. Fuller : [72−1] motion for Summary Judgment referred to Judge Mark E. Fuller, [16−1] motion to Conditionally Certify Collective Action referred to Judge Mark E. Fuller, [16−2] motion to Authorize Ntc to Similarly Situated Employees referred to Judge Mark E. Fuller (djy) (Entered: 02/21/2003)
106 MOTION by plaintiff's for Leave to File supplemental memorandum brief in opposition to defendant's Motions for summary judgment (Proposed Brief attached) referred to Judge Mark E. Fuller (sl) (Entered: 07/11/2003)
107 Stamped ORDER granting [106−1] motion for Leave to File supplemental memorandum brief in opposition to defendant's Motions for summary judgment ( by Judge Mark E. Fuller ) , copies provided to counsel. (sl) (Entered: 07/15/2003)

Case: 2:00-cv-1674 As of: 09/25/2012 07:43 AM CDT 16 of 29

07/15/2003 08/12/2004 08/18/2004 09/02/2004 12/03/2004 12/07/2004
12/15/2004 12/16/2004
08/03/2005 08/30/2005 09/06/2005

108 Supplemental Memorandum BRIEF by Vickie K. Prewett, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose, Sandra M. Brown, Deborah G. Murphree, Cecelia J. Talley, Jan Robbins, Sue Judkins, Shirl J. Brogdon in opposition to defendant's [72−1] motion for Summary Judgment (per order entered on 7/15/03) referred to Judge Mark E. Fuller (sl) (Entered: 07/15/2003)
109 MOTION to Expedite Ruling by Shirl J. Brogdon, Sandra M. Brown, Vicky Brown, Deborah Coker, Susan W. Collier, Betty Dubose, Christine Hale, Lisa Jackson, Sue Judkins, Deborah G. Murphree, Vickie K. Prewett, Jan Robbins, Cecelia J. Talley, Teresa Thomason, Valerie Porter Williams. (sl, ) (Entered: 08/13/2004)
110 ORDER denying 109 Motion to Expedite Ruling. Signed by Judge Mark E. Fuller on 08/18/04. (sl, ) (Entered: 08/18/2004)
111 MEMORANDUM OPINION AND ORDER denying plaintiff's 16 Renewed Motion to Conditionally Certify Collective Action and to Authorize Notice to Similarly Situated Employees.. Signed by Judge Mark E. Fuller on 09/02/04. (sl, ) (Entered: 09/02/2004)
112 ORDERED that should plaintiffs wish to amend the Second Amended Complaint to remove their claims pursuant to 42 USC 1983 and the Equal Protection Clause, they can file a motion for leave to amend the complaint no later than 12/13/04. In the alternative, plaintiff may voluntarily dismiss such claims in accordance with FRCP 41(a)(1)(ii) by 12/13/04. Signed by Judge Mark E. Fuller on 12/3/04. (sl, ) (Entered: 12/03/2004)
113 [STRICKEN PER ORDER ENTERED ON 12/16/04] MOTION Dismissal of Remaining Claims Brought Under 42 U.S.C. Section 1983 and the Equal Protection Clause by Sandra M. Brown, Deborah G. Murphree, Cecelia J. Talley, Jan Robbins, Sue Judkins, Vickie K. Prewett, Shirl J. Brogdon, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose. (Stein, Gregory) Modified on 12/16/2004 (sl, ). Additional attachment(s) added on 12/16/2004 (sl, ). (Entered: 12/07/2004)
114 Joint MOTION to Dismiss Plaintiffs' and Defendants' Joint Motion to Dismiss Remaining Claims Brought Under 42 U.S.C. Section 1983 and The Equal Protection Clause by State of Alabama Department of Veterans Affairs. (Fleming, Margaret) (Entered: 12/15/2004)
115 ORDERED that plaintiffs' 113 Dismissal of Remaining Claims Brought Under 42 USC Sec. 1983 and the Equal Protection Clause be STRICKEN; the other motion pending before this Court is plaintiffs' and defendants' 114 Joint Motion to Dismiss Remaining Claims Brought Under 42 USC 1983 and the Equal Protection Clause. This motion is due to be GRANTED. Accordingly, it is the order of this Court that plaintiffs' claims brought pursuant to 42 USC Sec. 1983 and the Equal Protection Clause of the United States' Constitution are DISMISSED with PREJUDICE. This order is not intended to have any effect on any of the other claims urged by plaintiffs in the Second Amended Complaint. Signed by Judge Mark E. Fuller on 12/16/04. (sl, ) (Attachment #1 Civil Appeals Checklist) (Entered: 12/16/2004)
116 ORDERED that a status conference is set for 8/31/2005 at 9:00 AM in chambers of U. S. District Judge Mark E. Fuller, United States Courthouse, One Church Street, A−300, Montgomery, AL. Signed by Judge Mark E. Fuller on 8/3/05. (sl, ) (Entered: 08/03/2005)
117 ORDERED that the 8/31/05 status conference is CONTINUED to 9/6/05 at 10:00 a.m. in the Chambers of United States District Judge Mark E. Fuller, at the United States Courthouse, One Church Street, A−300, Montgomery, AL. Signed by Judge Mark E. Fuller on 8/30/05. (sl, ) (Entered: 08/30/2005)
118 AMENDED SCHEDULING ORDER: Pretrial Conference set for 5/12/2006 at 10:00 AM in the chambers of United States District Judge Mark E. Fuller, United States Courthouse, One Church Street, A−300, Montgomery, AL; Jury Trial set for 7/31/2006 in Montgomery, AL; Discovery shall be completed by 4/28/2006 as further set out in order. Signed by Judge Mark E. Fuller on 9/6/05. (sl, ) Modified on 9/6/05 to reflect that this is an AMENDED scheduling order.(sl, ). Modified on

Case: 2:00-cv-1674 As of: 09/25/2012 07:43 AM CDT 17 of 29

09/06/2005 09/07/2005
03/03/2006
03/08/2006 03/15/2006 05/18/2006 05/22/2006 05/22/2006
05/25/2006 05/30/2006 05/31/2006 05/31/2006
06/02/2006 06/02/2006

9/7/2005 to reflect that this case is set for a non−jury trial rather than a jury trial (pursuant to order entered 2/25/02) (sl, ). (Entered: 09/06/2005)
NOTICE of Docket Text Correction re 118 Scheduling Order to reflect that this is an AMENDED scheduling order. (sl, ) (Entered: 09/06/2005)
NOTICE of Docket Text Correction re 118 Amended Scheduling Order to reflect that this case is set for Non−Jury Trial on 7/31/06 rather than Jury Trial. (Order 102 entered on 2/25/02 granted the 98 Motion to Strike jury demand contained in plaintiff's original complaint and set this action for trial on the non−jury docket.) (sl, ) (Entered: 09/07/2005)
119 (VACATED PURSUANT TO 239 ORDER) MEMORANDUM OPINION AND ORDER that the defendants' 72 Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART. Signed by Judge Mark E. Fuller on 3/3/06. (sl, ) Additional attachment(s) added on 3/8/2006 (cb, ). Modified on 3/8/2006 to add corrected pdf(cb, ). Modified on 12/27/2007 (wcl, ). (Entered: 03/03/2006)
120 NOTICE of Correction re 119 Memorandum Opinion and Order, (Attachments: # 1 Corrected Document)(cb, ) (Entered: 03/08/2006)
121 ORDERED that the pretrial conference scheduled in this case for 5/12/06 is CONTINUED to 6/19/06 in the Chambers of United States District Judge Mark E. Fuller, Montgomery, AL. Signed by Judge Mark E. Fuller on 3/15/06. (sl, ) (Entered: 03/15/2006)
122 ORDER setting Pretrial hearing on 6/19/2006 at 8:30 AM in chambers before Judge Mark E. Fuller; Non−Jury Trial set for trial term commencing on 7/31/2006 in Montgomery, AL as further set out in order. Signed by Judge Mark E. Fuller on 5/18/06. (sl, ) (Entered: 05/18/2006)
123 [WITHDRAWN PURSUANT TO 133 ORDER FILED ON 6/16/06] MOTION to reopen Discovery for the purpose of obtaining admissions as to updated salary histories by plfs (Attachments: # 1 attachment)(djy, ) Modified on 6/16/2006 (sl, ). (Entered: 05/22/2006)
124 MOTION Admit Depositions and Exhibits Offerred in Support of and in Opposition to Summary Judgment by Sandra M. Brown, Deborah G. Murphree, Cecelia J. Talley, Jan Robbins, Sue Judkins, Vickie K. Prewett, Shirl J. Brogdon, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose. (Stein, Gregory) (Entered: 05/22/2006)
125 ORDER TO SHOW CAUSE as to why 123 Motion to reopen Discovery and 124 Motion to admit depositions and exhibits should not be granted; Show Cause Response due by 6/2/2006. Signed by Judge Mark E. Fuller on 5/25/06. (djy, ) (Entered: 05/25/2006)
126 RESPONSE to Motion re 123 MOTION for Discovery to Reopen Discovery filed by State of Alabama Department of Veterans Affairs, The Alabama State Personnel Department. (Speakman, Sandra) (Entered: 05/30/2006)
127 MOTION to Withdraw as Attorney by State of Alabama Department of Veterans Affairs. (Rouse, Scott) (Entered: 05/31/2006)
128 RESPONSE in Support re 123 MOTION for Discovery filed by Sandra M. Brown, Deborah G. Murphree, Cecelia J. Talley, Jan Robbins, Sue Judkins, Vickie K. Prewett, Shirl J. Brogdon, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose. (Caddell, Henry) (Entered: 05/31/2006)
129 RESPONSE in Opposition re 124 MOTION Admit Depositions and Exhibits Offerred in Support of and in Opposition to Summary Judgment filed by State of Alabama Department of Veterans Affairs, The Alabama State Personnel Department. (Byrne, Alice) (Entered: 06/02/2006)
130 RESPONSE in Opposition re 123 MOTION for Discovery and Plaintiffs' Further Response in Support of their Motion (doc. 128) filed by State of Alabama

Case: 2:00-cv-1674 As of: 09/25/2012 07:43 AM CDT 18 of 29

06/05/2006 06/05/2006 06/16/2006
06/16/2006
06/16/2006 06/19/2006 06/19/2006 06/20/2006 06/20/2006
06/20/2006
06/21/2006 06/21/2006 06/21/2006 06/21/2006 06/23/2006

Department of Veterans Affairs, The Alabama State Personnel Department. (Speakman, Sandra) (Entered: 06/02/2006)
131 ORDER granting 127 Motion for Scott L. Rouse to Withdraw as Attorney . Signed by Judge Mark E. Fuller on 6/5/06. (sl, ) (Entered: 06/05/2006)
*** Attorney Scott Lee Rouse terminated pursuant to 131 Order filed on 6/5/06. (sl, ) (Entered: 06/05/2006)
132 First MOTION to Withdraw Motion to Re−Open Discovery by Sandra M. Brown, Deborah G. Murphree, Cecelia J. Talley, Jan Robbins, Sue Judkins, Vickie K. Prewett, Shirl J. Brogdon, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose. (Caddell, Henry) (Entered: 06/16/2006)
133 ORDER granting 132 Motion to Withdraw 123 Motion to Re−open Discovery. The Clerk is directed to terminate plaintiff's 123 Motion to Re−Open Discovery for the Purpose of Obtaining Admissions as to Updated Salary Histories as that motion is WITHDRAWN. Signed by Judge Mark E. Fuller on 6/16/06. (sl, ) (Entered: 06/16/2006)
134 First MOTION to Alter Judgment And Brief to Reconsider Summary Judgment by Christine Hale, Vicky Brown. (Entered: 06/16/2006)
135 ORDER denying 124 Motion to Admit Depositions and Exhibits Offered in Support of and in Opposition to Summary Judgment as set out in order. Signed by Judge Mark E. Fuller on 6/19/06. (sl, ) (Entered: 06/19/2006)
Minute Entry for proceedings held before Judge Mark E. Fuller : Pretrial Conference held on 6/19/2006. [no pdf attached] (kcg, ) (Entered: 07/06/2006)
136 ORDERED that defendants show cause in writing on or before 6/26/06 as to why the 134 Motion and Brief to Reconsider Summary Judgment Upon EPA Claims of Vicky Brown and Christine Hale should not be granted. Signed by Judge Mark E. Fuller on 6/20/06. (sl, ) (Entered: 06/20/2006)
137 [August 2, 2006 TRIAL OF THIS CASE IS CONTINUED GENERALLY PURSUANT TO ORDER ENTERED ON 7/19/06.] ORDER on Pretrial Hearing setting Non−Jury Trial for 8/2/2006 at 9:00 AM, United States Courthouse in Montgomery, AL. All deadlines not otherwise effected by this order will remain as set forth in the 118 Amended Scheduling Order entered 9/6/05 as further set out. Signed by Judge Mark E. Fuller on 6/20/06. (N/J Trial−7/31/06)(sl, ) Modified on 7/19/2006 (sl, ). (Entered: 06/20/2006)
138 First MOTION to Substitute Corrected Copy of Prewett Salary Analysis Exhibits A and B to the Order on Pretrial Hearing by Sandra M. Brown, Deborah G. Murphree, Cecelia J. Talley, Jan Robbins, Sue Judkins, Vickie K. Prewett, Shirl J. Brogdon, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose. (Caddell, Henry) (Entered: 06/20/2006)
139 Exhibit List by State of Alabama Department of Veterans Affairs.. (Speakman, Sandra) (Entered: 06/21/2006)
140 Witness List by State of Alabama Department of Veterans Affairs. (Speakman, Sandra) (Entered: 06/21/2006)
141 Witness List by The Alabama State Personnel Department. (Byrne, Alice) (Entered: 06/21/2006)
142 Exhibit List by The Alabama State Personnel Department.. (Byrne, Alice) (Entered: 06/21/2006)
143 ORDER granting 138 Motion for Filing of Corrected Copy of Prewett Salary Analysis Exhibits "A" and "B" to the Order on Pretrial Hearing. Exhibits "A" and "B" are submitted by reference for pages 19−27 of the 137 Order on Pretrial Hearing.. Signed by Judge Mark E. Fuller on 6/23/06. (sl, ) (Entered: 06/23/2006)

Case: 2:00-cv-1674 As of: 09/25/2012 07:43 AM CDT 19 of 29

06/26/2006 06/26/2006 06/26/2006 06/26/2006 06/26/2006 06/28/2006 06/29/2006
06/29/2006
06/29/2006 06/29/2006
06/30/2006
07/05/2006
07/06/2006
07/07/2006

144 RESPONSE to Motion re 134 First MOTION to Alter Judgment And Brief to Reconsider Summary Judgment filed by State of Alabama Department of Veterans Affairs, The Alabama State Personnel Department. (Byrne, Alice) (Entered: 06/26/2006)
145 Joint MOTION for Sanctions, Joint MOTION to Compel Discovery by State of Alabama Department of Veterans Affairs, The Alabama State Personnel Department. (Attachments: # 1 Exhibit Exhibits to Defendants' Joint Motion to Compel/Sanctions)(Speakman, Sandra) (Entered: 06/26/2006)
Joint MOTION to Compel Discovery. (This document has no pdf attached. See 145 for pdf.) (sl, ) (Entered: 06/26/2006)
MOTION to Compel REFERRED to Judge Walker. (sl, ) (Entered: 06/26/2006)
MOTIONS 145 Joint MOTION for SanctionsJoint REFERRED to Judge Walker. (sl, ) (Entered: 06/26/2006)
146 Deposition Designations and Objections in Response to Deposition Designations by Plaintiffs by State of Alabama Department of Veterans Affairs, The Alabama State Personnel Department.. (Byrne, Alice) (Entered: 06/28/2006)
147 Exhibit List Plaintiffs' Identification and Disclosure of Trial Exhibits by Sandra M. Brown, Deborah G. Murphree, Cecelia J. Talley, Jan Robbins, Sue Judkins, Vickie K. Prewett, Shirl J. Brogdon, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose.. (Caddell, Henry) (Entered: 06/29/2006)
148 Exhibit List Plaintiffs' Identification of Depositions and Deposition Exhibits by Sandra M. Brown, Deborah G. Murphree, Cecelia J. Talley, Jan Robbins, Sue Judkins, Vickie K. Prewett, Shirl J. Brogdon, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose.. (Caddell, Henry) (Entered: 06/29/2006)
149 Witness List by Sandra M. Brown, Deborah G. Murphree, Cecelia J. Talley, Jan Robbins, Sue Judkins, Vickie K. Prewett, Shirl J. Brogdon, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose. (Caddell, Henry) (Entered: 06/29/2006)
150 Deposition Designations by Sandra M. Brown, Deborah G. Murphree, Cecelia J. Talley, Jan Robbins, Sue Judkins, Vickie K. Prewett, Shirl J. Brogdon, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose.. (Attachments: # 1 Letter to counsel)(Stein, Gregory) (Entered: 06/29/2006)
151 RESPONSE to Motion re 145 Joint MOTION for SanctionsJoint MOTION to Compel Discovery filed by Sandra M. Brown, Deborah G. Murphree, Cecelia J. Talley, Jan Robbins, Sue Judkins, Vickie K. Prewett, Shirl J. Brogdon, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose. (Stein, Gregory) (Entered: 06/30/2006)
152 MOTION for Discovery to reopen for the limited purpose of pursuing emotional distress and mental anguish claims by two plaintiffs which were previously undisclosed by State of Alabama Department of Veterans Affairs, The Alabama State Personnel Department. (Attachments: # 1 Exhibit)(Byrne, Alice) (Entered: 07/05/2006)
153 Response to defendants' objections to deposition designations and MOTION Definitive Order re 146 Deposition Designations by Sandra M. Brown, Deborah G. Murphree, Cecelia J. Talley, Jan Robbins, Sue Judkins, Vickie K. Prewett, Shirl J. Brogdon, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose. (Stein, Gregory) (Entered: 07/06/2006)
154 ORDERED that the 145 Motion to Compel is granted as further set out in order; Ordered that the 145 motion for discovery sanctions is denied at this time. Signed by Judge Susan Russ Walker on 7/7/06. (sl, ) (Entered: 07/07/2006)

Case: 2:00-cv-1674 As of: 09/25/2012 07:43 AM CDT 20 of 29

07/10/2006 07/10/2006 07/11/2006 07/11/2006 07/12/2006
07/17/2006 07/17/2006 07/17/2006 07/17/2006 07/18/2006 07/18/2006 07/18/2006 07/18/2006

155 (VACATED PURSUANT TO 239 ORDER) ORDERED that the 134 Motion and Brief to Reconsider Summary Judgment upon EPA Claims of Vicky Brown and Christine Hale is granted in part and denied in part as set out in order. Signed by Judge Mark E. Fuller on 7/10/06. (sl, ) Modified on 12/27/2007 (wcl, ). (Entered: 07/10/2006)
156 MOTION to Take Deposition from Christine Hale and Vicky Brown and to reopen discovery for the limited purpose of pursuing claims that were alleged for the first time on a motion to reconsider summary judgment by State of Alabama Department of Veterans Affairs, The Alabama State Personnel Department. (Byrne, Alice) (Entered: 07/10/2006)
157 RESPONSE to 152 Discovery Request from State of Alabama Department of Veterans Affairs, et al by Sandra M. Brown, Vicky Brown.(Caddell, Henry) (Entered: 07/11/2006)
158 REPLY to Response to Motion re 152 MOTION for Discovery to reopen for the limited purpose of pursuing emotional distress and mental anguish claims by two plaintiffs which were previously undisclosed filed by State of Alabama Department of Veterans Affairs, The Alabama State Personnel Department. (Byrne, Alice) (Entered: 07/11/2006)
159 ORDER granting defendants' 152 Request to Reopen Discovery for the Limited Purpose of Pursuing "Mental Anguish" and "Emotional Distress" Claims of two plaintiffs which were previously undisclosed; and granting 156 defendants' Request to Reopen Discovery for the Limited Purpose of Pursuing plaintiffs Hale and Brown's claims that were alleged for the first time on a Motion to Reconsider Motion for Summary Judgment as further set out in order. Signed by Judge Mark E. Fuller on 7/12/06. (sl, ) (Entered: 07/12/2006)
160 Exhibit List Amended Identification and Disclosure of Trial Exhibits by Sandra M. Brown, Deborah G. Murphree, Cecelia J. Talley, Jan Robbins, Sue Judkins, Vickie K. Prewett, Shirl J. Brogdon, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose.. (Caddell, Henry) (Entered: 07/17/2006)
161 MOTION to Clarify BURDEN OF PROOF REGARDING LEGITIMATE BUSINESS PURPOSE OF THE STATUTORY REQUIREMENT OF VETERAN STATUS by State of Alabama Department of Veterans Affairs, The Alabama State Personnel Department. (Byrne, Alice) (Entered: 07/17/2006)
162 Exhibit List SECOND AMENDED DISCLOSURE OF TRIAL EXHIBITS by Sandra M. Brown, Deborah G. Murphree, Cecelia J. Talley, Jan Robbins, Sue Judkins, Vickie K. Prewett, Shirl J. Brogdon, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose.. (Caddell, Henry) (Entered: 07/17/2006)
163 NOTICE by Sandra M. Brown, Deborah G. Murphree, Cecelia J. Talley, Jan Robbins, Sue Judkins, Vickie K. Prewett, Shirl J. Brogdon, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose of filing (Stein, Gregory) (Entered: 07/17/2006)
164 Exhibit List Plaintiffs' Third Amended Identification and Disclosure of Trial Exhibits by Sandra M. Brown, Deborah G. Murphree, Cecelia J. Talley, Jan Robbins, Sue Judkins, Vickie K. Prewett, Shirl J. Brogdon, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose.. (Caddell, Henry) (Entered: 07/18/2006)
165 Exhibit List Amendment by State of Alabama Department of Veterans Affairs.. (Speakman, Sandra) (Entered: 07/18/2006)
166 ORDERED that this case is set for a telephone Status Conference on 7/19/2006 at 2:00 PM. The court will initiate the conference call with counsel. Signed by Judge Mark E. Fuller on 7/18/06. (sl, ) (Entered: 07/18/2006)
167 ORDERED that the plaintiffs show cause in writing on or before 7/28/06 as to why the 161 Motion to Clarify Burden of Proof should not be granted. Signed by Judge

Case: 2:00-cv-1674 As of: 09/25/2012 07:43 AM CDT 21 of 29

07/18/2006 07/18/2006 07/18/2006 07/18/2006 07/18/2006 07/18/2006 07/18/2006 07/19/2006 07/19/2006
07/19/2006
07/19/2006

Mark E. Fuller on 7/18/06. (sl, ) (Entered: 07/18/2006)
168 Objection to re 162 Exhibit List,, 160 Exhibit List,, 147 Exhibit List,, 164 Exhibit List, Plaintiffs' Designated Trial Exhibits filed by The Alabama State Personnel Department. (Byrne, Alice) (Entered: 07/18/2006)
169 BRIEF/MEMORANDUM in Support of Objections to Defendants' Exhibits and Motion to Exclude from Evidence filed by Sandra M. Brown, Deborah G. Murphree, Cecelia J. Talley, Jan Robbins, Sue Judkins, Vickie K. Prewett, Shirl J. Brogdon, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose. (Stein, Gregory) (Entered: 07/18/2006)
170 Objection to 139 165 Exhibits of Defendant Alabama Department of Veterans Affairs filed by Sandra M. Brown, Deborah G. Murphree, Cecelia J. Talley, Jan Robbins, Sue Judkins, Vickie K. Prewett, Shirl J. Brogdon, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose. (Stein, Gregory) (Entered: 07/18/2006)
171 Objection to 142 Exhibits of Defendant Alabama State Personnel Department filed by Sandra M. Brown, Deborah G. Murphree, Cecelia J. Talley, Jan Robbins, Sue Judkins, Vickie K. Prewett, Shirl J. Brogdon, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose. (Stein, Gregory) (Entered: 07/18/2006)
172 Objection to re 162 Exhibit List,, 160 Exhibit List,, 147 Exhibit List,, 164 Exhibit List, Plaintiffs' Identification of Trial Exhibits filed by State of Alabama Department of Veterans Affairs. (Speakman, Sandra) (Entered: 07/18/2006)
173 Objection to re 142 Exhibit List of Defendant State Personnel Department filed by State of Alabama Department of Veterans Affairs. (Speakman, Sandra) (Entered: 07/18/2006)
MOTION to exclude from evidence by Sandra M. Brown, Deborah G. Murphree, Cecelia J. Talley, Jan Robbins, Sue Judkins, Vickie K. Prewett, Shirl J. Brogdon, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose. (This document has no pdf attached. See 169 for pdf.) (sl, ) (Entered: 07/19/2006)
174 Exhibit List PLAINTIFFS' FOURTH AMENDMENT TO TRIAL EXHIBITS by Sandra M. Brown, Deborah G. Murphree, Cecelia J. Talley, Jan Robbins, Sue Judkins, Vickie K. Prewett, Shirl J. Brogdon, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose.. (Caddell, Henry) (Entered: 07/19/2006)
175 MOTION for Protective Order Regarding Scheduling Deposition of Sandra Brown by Sandra M. Brown, Deborah G. Murphree, Cecelia J. Talley, Jan Robbins, Sue Judkins, Vickie K. Prewett, Shirl J. Brogdon, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose. (Attachments: # 1 Exhibit Exhibit A# 2 Exhibit Exhibit B# 3 Exhibit Exhibit C# 4 Exhibit Exhibit C − pg 2# 5 Exhibit Exhibit D# 6 Exhibit Exhibit E# 7 Errata Exhibit E − pg 2# 8 Exhibit Exhibit E − pg 3# 9 Exhibit Exhibit E − pg 4)(Caddell, Henry) (Entered: 07/19/2006)
176 ORDERED as follows: (1) the 8/2/06 trial of this cause is CONTINUED generally. The parties should anticipate that this case will be reassigned to a visiting judge for trial in the near future; (2) the parties are to contact the Chambers of the Honorable Dave Proctor, United States District Judge for the Northern District of Alabama as soon as possible to arrange a telephone conference to be conducted within the next two weeks; (3) plaintiffs' 175 Motion for Protective Order Regarding Scheduling Deposition of Sandra Brown is DENIED; (4) the deadline set in paragraph three of this court's 159 Order for the completion of depositions is extended to 8/11/06. Signed by Judge Mark E. Fuller on 7/19/06. (sl, ) (Entered: 07/19/2006)
Minute Entry for proceedings held before Judge Mark E. Fuller : Status Conference held on 7/19/2006. [no pdf attached] (kcg, ) (Entered: 07/20/2006)

Case: 2:00-cv-1674 As of: 09/25/2012 07:43 AM CDT 22 of 29

07/28/2006 08/02/2006 08/04/2006 08/09/2006 08/10/2006
08/11/2006
08/11/2006 08/11/2006 08/11/2006 08/11/2006

177 RESPONSE to Motion re 161 MOTION to Clarify BURDEN OF PROOF REGARDING LEGITIMATE BUSINESS PURPOSE OF THE STATUTORY REQUIREMENT OF VETERAN STATUS filed by Sandra M. Brown, Deborah G. Murphree, Cecelia J. Talley, Jan Robbins, Sue Judkins, Vickie K. Prewett, Shirl J. Brogdon, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose. (Stein, Gregory) (Entered: 07/28/2006)
178 Case Reassigned to Judge R. David Proctor. Judge Mark E. Fuller no longer assigned to the case. (sl, ) (Entered: 08/02/2006)
179 REPLY to Response to Motion re 161 MOTION to Clarify BURDEN OF PROOF REGARDING LEGITIMATE BUSINESS PURPOSE OF THE STATUTORY REQUIREMENT OF VETERAN STATUS filed by State of Alabama Department of Veterans Affairs, The Alabama State Personnel Department. (Byrne, Alice) (Entered: 08/04/2006)
180 First MOTION to Take Deposition from SDVA Commissioner Clyde Marsh by Sandra M. Brown, Deborah G. Murphree, Cecelia J. Talley, Jan Robbins, Sue Judkins, Vickie K. Prewett, Shirl J. Brogdon, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose. (Caddell, Henry) (Entered: 08/09/2006)
181 First MOTION to Amend/Correct Plaintiffs' 180 Motion for Leave to Take The Deposition of SDVA Commissioner Clyde Marsh by Sandra M. Brown, Deborah G. Murphree, Cecelia J. Talley, Jan Robbins, Sue Judkins, Vickie K. Prewett, Shirl J. Brogdon, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose. (Attachments: # 1 Exhibit Exhibit A# 2 Exhibit Exhibit# 3 Exhibit Exhibit B# 4 Exhibit Exhibit C# 5 Exhibit Exhibit D# 6 Errata Exhibit E# 7 Exhibit Exhibit F# 8 Exhibit Exhibit# 9 Exhibit Exhibit# 10 Exhibit Exhibit)(Caddell, Henry) (Entered: 08/10/2006)
182 ORDER; During the telephone conference on 7/20/06, the court set the following deadlines: (1) any opposition to defendants' 161 MOTION to Clarify BURDEN OF PROOF should have been filed on or before 7/28/06. Any reply in support of the motion should have been filed on or before 8/4/06. To the extent they have not already done so, the parties shall email a WordPerfect version of all filed submissions to the court's chambers as set out in order. On or before 8/11/06, the parties shall file any motions for reconsideration of prior rulings in this case. Any opposition to the motions for reconsideration shall be filed on or before 8/21/06. Any reply in support of the motions shall be filed on or before 8/28/06. On or before 9/15/06, the parties are Ordered to meet and confer regarding matters set out in order. Parties are directed to file a joint status report on or before 9/15/06. Signed by Judge R. David Proctor on 8/11/06. (sl, ) (Entered: 08/11/2006)
183 MOTION for Reconsideration by Sandra M. Brown, Deborah G. Murphree, Cecelia J. Talley, Jan Robbins, Sue Judkins, Vickie K. Prewett, Shirl J. Brogdon, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose. (Stein, Gregory) (Entered: 08/11/2006)
184 Second MOTION for Reconsideration by Sandra M. Brown, Deborah G. Murphree, Cecelia J. Talley, Jan Robbins, Sue Judkins, Vickie K. Prewett, Shirl J. Brogdon, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose. (Caddell, Henry) (Entered: 08/11/2006)
185 MOTION for Reconsideration of the "Merit System" as an Affirmative Defense to the Equal Pay Act by The Alabama State Personnel Department. (Byrne, Alice) (Entered: 08/11/2006)
186 MOTION for Reconsideration re 119 Memorandum and Opinion by State of Alabama Department of Veterans Affairs. (Fleming, Margaret) Modified on 8/14/2006 to delete the relationship between this entry and 120 . This pleading should have been linked to 119 instead(cb, ). (Entered: 08/11/2006)

Case: 2:00-cv-1674 As of: 09/25/2012 07:43 AM CDT 23 of 29

08/11/2006 08/14/2006 08/18/2006
08/21/2006
08/21/2006 08/21/2006
08/22/2006 08/22/2006 08/22/2006 08/28/2006 08/28/2006 09/06/2006

MOTION to Amend 72 Motion for Summary by State of Alabama Department of Veterans Affairs. No pdf attached to this entry. See 186 Motion for Reconsideraton for pdf. (cb, ) (Entered: 08/14/2006)
187 NOTICE of Correction re 186 MOTION for Reconsideration notifying the parties that this pleading is referencing 119 the Memorandum Opinion and Order, instead of the 120 Notice of Correction.(cb, ) (Entered: 08/14/2006)
188 Additional Support of 181 MOTION to Take Deposition from SCVA Commissioner Clyde Marsh Additional Support for their Motion (Doc. 181) for Leave to Take Deposition by Sandra M. Brown, Deborah G. Murphree, Cecelia J. Talley, Jan Robbins, Sue Judkins, Vickie K. Prewett, Shirl J. Brogdon, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose. (Caddell, Henry) Modified on 8/22/2006 (sl, ). (Entered: 08/18/2006)
189 BRIEF/MEMORANDUM in Opposition re 185 MOTION for Reconsideration of the "Merit System" as an Affirmative Defense to the Equal Pay Act filed by Sandra M. Brown, Deborah G. Murphree, Cecelia J. Talley, Jan Robbins, Sue Judkins, Vickie K. Prewett, Shirl J. Brogdon, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose. (Attachments: # 1 Appendix # 2 Appendix)(Stein, Gregory) (Entered: 08/21/2006)
190 RESPONSE in Opposition re 183 MOTION for Reconsideration, 184 Second MOTION for Reconsideration to Admit Depositions and Exhibits Offered in Support of and in Opposition to Summary Judgment &to Fully Reinstate the EPA Claims of Vicky Brown and Christine Hale filed by State of Alabama Department of Veterans Affairs, The Alabama State Personnel Department. (Speakman, Sandra) (Entered: 08/21/2006)
191 RESPONSE in Opposition re 186 MOTION for Reconsideration re 120 Notice of Correction Plaintiffs' Response in Opposition to the SDVA's Motion to Revise the Summary Judgment Memorandum Opinion and Order filed by Sandra M. Brown, Deborah G. Murphree, Cecelia J. Talley, Jan Robbins, Sue Judkins, Vickie K. Prewett, Shirl J. Brogdon, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose. (Caddell, Henry) (Entered: 08/21/2006)
NOTICE of Docket Text Correction re 188 MOTION to Take Deposition from SCVA Commissioner Clyde Marsh. This document should have been filed as an Amended Document to Supplement the 181 Motion to Take Deposition rather than a Motion. (sl, ) (Entered: 08/22/2006)
192 Joint MOTION to Amend/Correct 155 Order Granting in Part Plaintiffs' Motion to Reconsider Summary Judgment on the EPA Claims of Vicky Brown by State of Alabama Department of Veterans Affairs, The Alabama State Personnel Department. (Attachments: # 1 Exhibit A)(Speakman, Sandra) (Entered: 08/22/2006)
193 RESPONSE in Opposition re 188 MOTION to Take Deposition from SCVA Commissioner Clyde Marsh Additional Support for their Motion (Doc. 181) for Leave to Take Deposition, 181 First MOTION to Amend/Correct Plaintiffs' Motion for Leave to Take The Deposition of SDVA Commissioner Clyde Marsh filed by State of Alabama Department of Veterans Affairs, The Alabama State Personnel Department. (Speakman, Sandra) (Entered: 08/22/2006)
194 REPLY to Response to Motion re 185 MOTION for Reconsideration of the "Merit System" as an Affirmative Defense to the Equal Pay Act filed by The Alabama State Personnel Department. (Byrne, Alice) (Entered: 08/28/2006)
195 REPLY BRIEF in support re 186 MOTION for Reconsideration re 119 Memorandum Opinion and Order filed by State of Alabama Department of Veterans Affairs. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Fleming, Margaret) (Entered: 08/28/2006)
196 RESPONSE to Motion re 192 Joint MOTION to Amend/Correct 155 Order on Motion to Alter Judgment Granting in Part Plaintiffs' Motion to Reconsider

Case: 2:00-cv-1674 As of: 09/25/2012 07:43 AM CDT 24 of 29

09/15/2006 09/22/2006
09/25/2006 09/27/2006 09/29/2006 10/20/2006 10/20/2006 10/20/2006
10/23/2006

Summary Judgment on the EPA Claims of Vicky Brown Plaintiffs' Response to Defendants' Joint Motion to Correct Order (Doc 192) filed by Sandra M. Brown, Deborah G. Murphree, Cecelia J. Talley, Jan Robbins, Sue Judkins, Vickie K. Prewett, Shirl J. Brogdon, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose. (Caddell, Henry) (Entered: 09/06/2006)
197 STATUS REPORT Parties Joint Status Report pursuant to 182 Order by Sandra M. Brown, Deborah G. Murphree, Cecelia J. Talley, Jan Robbins, Sue Judkins, Vickie K. Prewett, Shirl J. Brogdon, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose. (Thiry, Richard) (Entered: 09/15/2006)
198 ORDER setting oral agument on documents 72 , 73 , 74 , 94 , 95 , 96 , 103 , and 108 on Tuesday, 11/21/06 at 10:00 a.m. in Courtroom 2D in the Frank M. Johnson Federal Courthouse Complex in Montgomery, AL. Plaintiff's 180 and 181 motion for leave to take the deposition of SVDA Commissioner Clyde Marsh is granted, provided that the deposition is completed on or before 10/13/06. The parties shall have until 10/20/06 to submit to the court any supplemental evidence or argument arising out of Marsh's deposition that is relevenat to the court's analysis of the above−referenced motions and until 10/31/06 to respond to their opponents' 10/20/06 submission. Signed by Judge R. David Proctor on 9/22/06. (sl, ) (Entered: 09/22/2006)
Original case file with all exhibits sent to Judge Proctor via UPS. (sl, ) (Entered: 09/25/2006)
199 First MOTION for Leave to File Motion to Subpoena Documents at the Deposition of SDVA Comm. Clyde Marsh by Sandra M. Brown, Deborah G. Murphree, Cecelia J. Talley, Jan Robbins, Sue Judkins, Vickie K. Prewett, Shirl J. Brogdon, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose. (Attachments: # 1 Supplement RULE 45 SUBPOENA)(Caddell, Henry) (Entered: 09/27/2006)
200 ORDER granting 199 Motion for Leave to Subpoena Documents at the Deposition of SDVA Commissioner Clyde Marsh. Signed by Judge R. David Proctor on 9/29/06. (sl, ) (Entered: 09/29/2006)
201 BRIEF/MEMORANDUM in Support Motions for Reconsideration of Summary Judgment filed by The Alabama State Personnel Department. (Byrne, Alice) (Entered: 10/20/2006)
202 BRIEF/MEMORANDUM in Support of Motion for Reconsideration of Summary Judgment filed by State of Alabama Department of Veterans Affairs. (Attachments: # 1 Exhibit A: Deposition of Admiral W. Clyde Marsh)(Speakman, Sandra) (Entered: 10/20/2006)
203 Evidentiary Submission re 198 Order,,, Set Hearings,,, Terminate Motions,, Plaintiffs' Submission of Mar sh Deposition, Documents and Argument in Further Support of Plaintiffs' Position on Pending Motions filed by Sandra M. Brown, Deborah G. Murphree, Cecelia J. Talley, Jan Robbins, Sue Judkins, Vickie K. Prewett, Shirl J. Brogdon, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose. (Attachments: # 1 Exhibit deposition# 2 Exhibit deposition# 3 Exhibit depositions# 4 Exhibit depositions# 5 Exhibit depositions# 6 Exhibit depositions# 7 Exhibit depositions# 8 Exhibit depositions# 9 Exhibit depositions)(Caddell, Henry) (Entered: 10/20/2006)
204 First MOTION for Leave to File Plaintiffs' Motion for Leave to Subpoena Tapes and Transcripts from SDVA's Staff Meeting by Sandra M. Brown, Deborah G. Murphree, Cecelia J. Talley, Jan Robbins, Sue Judkins, Vickie K. Prewett, Shirl J. Brogdon, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose. (Attachments: # 1 subpoena# 2 correspondence# 3 correspondence# 4 Exhibit Plaintiffs' Exhibt 276)(Caddell, Henry) (Entered: 10/23/2006)

Case: 2:00-cv-1674 As of: 09/25/2012 07:43 AM CDT 25 of 29

10/24/2006
10/24/2006 10/25/2006 10/27/2006 10/30/2006 10/31/2006
10/31/2006 11/06/2006
12/12/2006

205 (STRICKEN FROM RECORD AS A PENDING MOTION PURSUANT TO CONVERSATION WITH COUNSEL. THIS PLEADING WAS FILED IN ERROR AND WILL BE RE−EFILED CORRECTLY.) First MOTION for Leave to File Excess Pages Plaintiffs' Filing of Corrected Copy of Marsh Deposition Exhibit 265 by Sandra M. Brown, Deborah G. Murphree, Cecelia J. Talley, Jan Robbins, Sue Judkins, Vickie K. Prewett, Shirl J. Brogdon, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose. (Attachments: # 1 Exhibit Plaintiffs' Exhibit 265)(Caddell, Henry) Modified on 10/25/2006 to strike pleading as a pending motion. (cb, ). (Entered: 10/24/2006)
206 NOTICE of Error re: 205 Motion to reflect that this pleading was filed in error and will be re−filed by e−filer. This Motion was stricken from the record as a pending motion pursuant to conversation with e−filer. (sl, ) (Entered: 10/25/2006)
207 First MOTION for Leave to File Motion for Leave to Substitute Corrected Copy of Marsh Deposition Exhibit 265 by Sandra M. Brown, Deborah G. Murphree, Cecelia J. Talley, Jan Robbins, Sue Judkins, Vickie K. Prewett, Shirl J. Brogdon, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose. (Attachments: # 1 Exhibit Plaintiffs' Exhibit 265)(Caddell, Henry) (Entered: 10/25/2006)
208 RESPONSE in Opposition re 204 First MOTION for Leave to File Plaintiffs' Motion for Leave to Subpoena Tapes and Transcripts from SDVA's Staff Meeting filed by State of Alabama Department of Veterans Affairs. (Speakman, Sandra) (Entered: 10/27/2006)
209 ORDER granting 207 Motion for Leave to Substitute Corrected Copy of Marsh Deposition, Exhibit 265. Signed by Judge R. David Proctor on 10/30/06. (sl, ) (Entered: 10/30/2006)
210 BRIEF/MEMORANDUM in Opposition Plaintiffs' Responses to the October 20, 2006 Submissions 201 and 202 of the SDVA and SPD filed by Sandra M. Brown, Deborah G. Murphree, Cecelia J. Talley, Jan Robbins, Sue Judkins, Vickie K. Prewett, Shirl J. Brogdon, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose. (Attachments: # 1 Affidavit Unsworn Declaration of Sandra Brown# 2 Affidavit Unsworn Declaration of Vicky Brown McCann# 3 Affidavit Unsworn Declaration of Deborah Coker# 4 Affidavit Unsworn Declaration of Vickie Prewett# 5 Affidavit Unsworn Declaration of Jan Robbins# 6 Affidavit Unsworn Declaration of Cecilia Talley)(Caddell, Henry) Modified on 11/1/2006 to create a link with documents 201 and 202 (cc, ). (Entered: 10/31/2006)
211 BRIEF/MEMORANDUM in Opposition re 203 Evidentiary Submission,, filed by State of Alabama Department of Veterans Affairs, The Alabama State Personnel Department. (Speakman, Sandra) (Entered: 10/31/2006)
212 ORDER granting plaintiff's 204 Motion for Leave to Subpoena Tapes and Transcripts from SDVA's Staff Meeting. Oral argument previously scheduled for 11/21/06 at 10:00 a.m. has been RESET for 1/24/07 at 10:00 a.m. in Courtroom 2D in the Frank M. Johnson Federal Courthouse Complex in Montgomery, AL. The parties shall have until 12/12/06 to submit to the court any supplemental evidence or argument arising out of the subpoenaed items that is relevant to the court's analysis of the motions referenced in footnote 1 supra, and until 12/22/06 to respond to their opponents' 12/12/06 submissions. Signed by Judge R. David Proctor on 11/6/06. (sl, ) (Entered: 11/06/2006)
213 Evidentiary Submission Plaintiffs' Submission of Supplemental Evidence/Affidavits and Argument Arising from Subpoenaed Tapes of SDVA's April 14,2006 Staff Meeting Discussing the Work of Plaintiffs and Their Comparators filed by Sandra M. Brown, Deborah G. Murphree, Cecelia J. Talley, Jan Robbins, Sue Judkins, Vickie K. Prewett, Shirl J. Brogdon, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose. (Attachments: # 1 Affidavit Affidavit of Vickie Prewett# 2 Affidavit Affidavit of Deborah Coker# 3 Affidavit Affidavit of Christine Hale# 4 Exhibit April 14, 2006 Minutes Disk 2 of 2 Part 1# 5 Exhibit April 14, 2006 Minutes Disk 2 of 2 Part 2# 6 Exhibit April 14, 2006 Minutes Disk 2 of 2 Part 3# 7 Exhibit April

Case: 2:00-cv-1674 As of: 09/25/2012 07:43 AM CDT 26 of 29

12/12/2006 12/13/2006 01/10/2007 01/17/2007
01/18/2007 01/24/2007 02/07/2007
02/16/2007 02/16/2007

14, 2006 Minutes Disk 2 of 2 Part 4# 8 Exhibit April 14, 2006 Minutes Disk 2 of 2 Part 5# 9 Exhibit April 14, 2006 Minutes)(Caddell, Henry) (Entered: 12/12/2006)
214 First MOTION for Discovery Plaintiffs Motion to Reopen Discovery by Sandra M. Brown, Deborah G. Murphree, Cecelia J. Talley, Jan Robbins, Sue Judkins, Vickie K. Prewett, Shirl J. Brogdon, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose. (Attachments: # 1 Text of Proposed Order Plaintiffs' Request for Admissions/Interrogatories to Defendants Regarding Identities of Speakers reflected in April 14,2006 SDVA Staff Meeting)(Caddell, Henry) (Entered: 12/12/2006)
215 ORDER STAMP GRANTING 214 First Motion for Discovery. The parties are Ordered to work out a mutually agreeable schedule for production of the requested information. If the parties' proposed schedule modifies the court's previous briefing schedule and oral argument date, the parties are Ordered to contact chambers of the undersigned as soon as possible. Signed by Judge R. David Proctor on 12/13/06. (sl, ) (Entered: 12/13/2006)
216 REPLY BRIEF re 213 Evidentiary Submission,,, filed by State of Alabama Department of Veterans Affairs. (Speakman, Sandra) (Entered: 01/10/2007)
217 First MOTION for Leave to File Discovery Materials − The SDVA's Admissions/Responses Regarding Identity of Speakers Reflected In April 14, 2006 SDVA Staff Meeting Tape by Sandra M. Brown, Deborah G. Murphree, Cecelia J. Talley, Jan Robbins, Sue Judkins, Vickie K. Prewett, Shirl J. Brogdon, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose. (Attachments: # 1 Exhibit SDVA's Response to Plaintiffs' Request for Admissions/Interrogatories Regarding Identities of Speakers Reflected in April 14, 2006 SDVA Staff Meeting)(Caddell, Henry) (Entered: 01/17/2007)
218 ORDER granting 217 Motion for Leave to File Discovery Materials−The SDVA's Admissions/Responses Regarding Identity of Speakers Reflected in April 14, 2006 SDVA Staff Meeting Tape. Signed by Judge R. David Proctor on 1/18/07. (sl, ) (Entered: 01/18/2007)
219 Minute Entry for proceedings held before Judge R. David Proctor : Oral Argument held on 1/24/2007. (Court Reporter Anita McCorvey.) (kcg, ) (Entered: 01/25/2007)
220 ORDERED that on or before 2/16/07, plaintiffs submit a chart for each plaintiff addressing each element of the Equal Pay Act prima facie case as it applies to that plaintiff in particular, as further set out in order. The court will allow defendants to respond to plaintiffs' prima facie case submissions on or before 2/23/07. On or before 2/19/07, the parties are PERMITTED to submit supplemental briefs of no more than 15 pages addressing any outstanding issues that were presented at oral argument but not thoroughly discussed. On or before 2/26/07, the parties may reply to each other's submission by submitting briefs of no more than 10 pages. Plaintiffs' 183 First Motion for Reconsideration is DENIED for the same reasons outlined in Judge Fuller's order denying plaintiffs' initial Motion to Admit Depositions and Exhibits at trial. Defendants' 161 Motion to Clarify Burden of Proof is DENIED for the same reasons outlined in Judge Fuller's summary judgment opinion. Signed by Judge R. David Proctor on 2/7/07. (sl, ) (Entered: 02/07/2007)
221 BRIEF/MEMORANDUM in Support Charts of Plaintiffs' Prima Facie Cases Under the EPA filed by State of Alabama Department of Veterans Affairs, The Alabama State Personnel Department, Don Siegelman, Frank D. Wilkes, Thomas Flowers, Sandra M. Brown, Deborah G. Murphree, Cecelia J. Talley, Jan Robbins, Sue Judkins, Vickie K. Prewett, Shirl J. Brogdon, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose. (Attachments: # 1 Appendix Appendix A)(Caddell, Henry) (Entered: 02/16/2007)
222 BRIEF/MEMORANDUM in Support Plaintiffs' Further Memorandum Brief Relating To Pending Motions filed by State of Alabama Department of Veterans

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02/16/2007 02/20/2007 02/20/2007 02/20/2007 02/20/2007 02/21/2007
02/21/2007
02/23/2007 02/26/2007
02/26/2007
02/26/2007 04/20/2007 12/06/2007

Affairs, The Alabama State Personnel Department, Don Siegelman, Frank D. Wilkes, Thomas Flowers, Sandra M. Brown, Deborah G. Murphree, Cecelia J. Talley, Jan Robbins, Sue Judkins, Vickie K. Prewett, Shirl J. Brogdon, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose. (Caddell, Henry) (Entered: 02/16/2007)
223 MOTION to Strike 221 BRIEF/MEMORANDUM in Support,, by State of Alabama Department of Veterans Affairs, The Alabama State Personnel Department. (Byrne, Alice) (Entered: 02/16/2007)
224 BRIEF/MEMORANDUM in Support re 220 Order,,,,, Terminate Motions,,,, filed by State of Alabama Department of Veterans Affairs. (Attachments: # 1 Exhibit A)(Fleming, Margaret) (Entered: 02/20/2007)
225 BRIEF/MEMORANDUM in Support and Motion to Strike filed by The Alabama State Personnel Department. (Attachments: # 1 Appendix A (1−25)# 2 Affidavit A(26−50))(Byrne, Alice) (Entered: 02/20/2007)
MOTION to Strike Portions of Unsworn Declarations of Plaintiffs by The Alabama State Personnel Department. (This document has no pdf attached. See 225 for pdf.) (sl, ) (Entered: 02/21/2007)
MOTION to Strike Portions of Unsworn Declaration of Plaintiffs by The Alabama State Personnel Department. (This document has no pdf attached. See 225 for pdf.) (sl, ) (Entered: 02/21/2007)
[THIS NOTICE SHOULD BE DISREGARDED BY PARTIES] NOTICE of Docket Text Correction 225 MOTION to Strike portions of unsworn declarations of plaintiffs. This was incorrectly docketed as an additional Motion to Strike. Pursuant to telephone conversation from e−filer, this is NOT an additional Motion to Strike, but rather a brief in support of the previous 223 Motion to Strike. (sl, ) (sl, ) Modified on 2/21/2007 (sl, ). (Entered: 02/21/2007)
NOTICE of Docket Text Correction re 225 Supplemental Brief and Motion to Strike Portions of Unsworn Declaration of Plaintiffs. (Pursuant to follow−up telephone call from Attorney Byrne, the 225 Supplemental Brief of State Personnal Department DOES contain a Motion to Strike; therefore, the previous Notice of Docket Text Correction should be disregarded.) (sl, ) (Entered: 02/21/2007)
226 REPLY BRIEF re 221 BRIEF/MEMORANDUM in Support,, filed by State of Alabama Department of Veterans Affairs, The Alabama State Personnel Department. (Attachments: # 1 Exhibit)(Byrne, Alice) (Entered: 02/23/2007)
227 REPLY BRIEF Plaintiffs' Reply to Briefs/Submissions of Defendants (Docs 224 and 225) filed by Sandra M. Brown, Deborah G. Murphree, Cecelia J. Talley, Jan Robbins, Sue Judkins, Vickie K. Prewett, Shirl J. Brogdon, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose. (Caddell, Henry) (Entered: 02/26/2007)
228 First MOTION to Strike Plaintiffs' Motion to Strike Unauthorized Submissions and Erroneous Charts of Defendants in their Response (Doc 226) Regarding Plaintiffs' Prima Facie Cases by Sandra M. Brown, Deborah G. Murphree, Cecelia J. Talley, Jan Robbins, Sue Judkins, Vickie K. Prewett, Shirl J. Brogdon, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose. (Caddell, Henry) (Entered: 02/26/2007)
229 TRANSCRIPT of Oral Argument Proceedings (PDF available for court use only) held on 1/24/07 before Judge R. David Proctor. Court Reporter: Anita M. McCorvey. (kcg, ) (Entered: 03/08/2007)
230 AMENDED DOCUMENT by State of Alabama Department of Veterans Affairs, The Alabama State Personnel Department. Amendment to 226 Reply Brief. (Attachments: # 1 Appendix Byrd v. AUM slip opinion)(Fleming, Margaret) (Entered: 04/20/2007)
231 Notice of Deficiency requiring filing of Corporate Disclosure/Conflict Statement sent to Vickie K. Prewett, Christine Hale, Deborah Coker, Vicky Brown, Lisa

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12/06/2007 12/06/2007 12/07/2007 12/10/2007 12/10/2007 12/11/2007 12/27/2007 12/27/2007
01/25/2008 01/28/2008 01/30/2008

Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose, Sandra M. Brown, Deborah G. Murphree, Cecelia J. Talley, Jan Robbins, Sue Judkins, Shirl J. Brogdon; Corporate Disclosures due by 12/20/2007. (Attachments: # 1 Corporate/Conflict Attachment)(wcl, ) (Entered: 12/06/2007)
232 Notice of Deficiency requiring filing of Corporate Disclosure/Conflict Statement sent to State of Alabama Department of Veterans Affairs; Corporate Disclosures due by 12/20/2007. (Attachments: # 1 Corporate/Conflict Attachment)(wcl, ) (Entered: 12/06/2007)
233 Notice of Deficiency requiring filing of Corporate Disclosure/Conflict Statement sent to The Alabama State Personnel Department; Corporate Disclosures due by 12/20/2007. (Attachments: # 1 Corporate/Conflict Attachment)(wcl, ) (Entered: 12/06/2007)
234 Corporate/Conflict Disclosure Statement by The Alabama State Personnel Department re 233 Notice of Deficiency requiring filing of Corporate Disclosure/Conflict Statement. (Byrne, Alice) Additional attachment(s) added on 12/10/2007 to attach the corrected PDF document to include an electronic signature for the certificate of service (wcl, ). (Entered: 12/07/2007)
235 NOTICE of Correction re 234 Corporate/Conflict Disclosure Statement, to attach the corrected PDF document to include an electronic signature for the certificate of service. (Attachments: # 1 Corrected Main Document to Docket Entry 234 )(wcl, ) (Entered: 12/10/2007)
236 Corporate/Conflict Disclosure Statement by Sandra M. Brown, Deborah G. Murphree, Cecelia J. Talley, Jan Robbins, Sue Judkins, Vickie K. Prewett, Shirl J. Brogdon, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose re 231 Notice of Deficiency requiring filing of Corporate Disclosure/Conflict Statement,. (Stein, Gregory) (Entered: 12/10/2007)
237 Corporate/Conflict Disclosure Statement by State of Alabama Department of Veterans Affairs re 232 Notice of Deficiency requiring filing of Corporate Disclosure/Conflict Statement. (Speakman, Sandra) (Entered: 12/11/2007)
238 MEMORANDUM OPINION. Signed by Judge R. David Proctor on 12/27/2007. (wcl, ) (Entered: 12/27/2007)
239 (MODIFIED PURSUANT TO 243 ORDER TO REFLECT THAT COSTS ARE TAXED AS PAID) ORDER granting 185 and 186 Motions for Reconsideration, with the exception of Dfts' "merit system" affirmative defense, which the court has rejected; All pending motions to strike are DENIED (Docs. # 223 , 225 , 228 ). Plfs' Second Motion for Reconsideration (Doc. # 184 ) and Dfts' Motion to Amend/Correct Order on Motion to Alter Judgment (Doc. # 192 ) are MOOT. All pending requests to exclude evidence at trial are MOOT (Docs. # 146 , 153 , 168 , 169 , 170 , 171 , 172 , 173 ). The court, having found that there are no genuine issues of material fact and that Dfts are entitled to judgment as a matter of law, VACATES its prior summary judgment rulings (Docs. # 119 , 120−2, 155 ) and, consistent with the Memorandum Opinion entered this day, GRANTS Dfts' Motion for Summary Judgment (Doc. # 72 ). It is hereby ORDERED, ADJUDGED, AND DECREED that final judgment be entered in favor of Dfts Alabama Department of Veterans Affairs and Alabama State Personnel Department. Costs are taxed against Plfs. Signed by Judge R. David Proctor on 12/27/2007. (Attachments: # 1 civil appeals checklist)(wcl, ) Modified on 2/6/2008 (wcl, ). (Entered: 12/27/2007)
240 BILL OF COSTS by State of Alabama Department of Veterans Affairs, The Alabama State Personnel Department. (Attachments: # 1 Affidavit # 2 Exhibit)(Byrne, Alice) (Entered: 01/25/2008)
241 (VACATED PURSUANT TO 243 ORDER) Costs Taxed in amount of $ 24,918.04 against Plaintiffs. (wcl, ) Modified on 2/6/2008 (wcl, ). (Entered: 01/28/2008)
242 First MOTION Plaintiffs' Motion to Retax Costs by State of Alabama Department of Veterans Affairs, The Alabama State Personnel Department, Don Siegelman,

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02/06/2008

Frank D. Wilkes, Thomas Flowers, Sandra M. Brown, Deborah G. Murphree, Cecelia J. Talley, Jan Robbins, Sue Judkins, Vickie K. Prewett, Shirl J. Brogdon, Christine Hale, Deborah Coker, Vicky Brown, Lisa Jackson, Teresa Thomason, Susan W. Collier, Valerie Porter Williams, Betty Dubose. (Caddell, Henry) (Entered: 01/30/2008)
243 ORDER granting 242 MOTION to Retax Costs; The Clerk of Court's 1/28/2008 taxing of costs is VACATED (Doc. # 241 ), and the court's 12/27/2007 order is MODIFIED to reflect that costs are taxed as paid (Doc. # 239 ). Signed by Judge R. David Proctor on 2/6/2008. (wcl, ) (Entered: 02/06/2008)