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The Honorable William R. Wilson, Jr., United States District Judge for the

Eastern District of Arkansas.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-3972

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Betty A. Simpson, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the Eastern

* District of Arkansas

Merchants & Planters Bank, *

*

Appellant. *

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Submitted: October 14, 2005

Filed: March 20, 2006

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Before BYE, BEAM, and SMITH, Circuit Judges.

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BEAM, Circuit Judge.

The primary question for this court is whether to reverse a jury's finding of a

willful violation of the Equal Pay Act. 29 U.S.C. § 206(d). Finding sufficient

evidence to allow a reasonable jury to find such violation, we affirm.1
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I. BACKGROUND

Because Merchants & Planters Bank appeals the district court's denial of a

motion for judgment as a matter of law, we "assume as proven all facts the nonmoving

party's evidence tended to show, resolve all conflicts in favor of the nonmoving party,

and draw all reasonable inferences in favor of the nonmoving party." Jones v.

Fitzgerald, 285 F.3d 705, 712 (8th Cir. 2002).

Merchants & Planters Bank was founded in 1890 in Clarendon, Arkansas. In

late 2000, the Bank named J. Baxter Sharp, III, the co-chairman of its Board. He

served in that capacity until 2001, when he became the chair. Sharp has also served

as the Bank's counsel since 1992, a role which included policy development. The

Bank's Personnel Policy provided for an annual evaluation for each employee. 

Betty Simpson was hired by the Bank in 1977, and worked there until 2002.

After leaving the Bank, Simpson sued the Bank for violating the Equal Pay Act. 29

U.S.C. § 206(d). Simpson alleged that she was paid less than J. Kendall Henry, a male

co-worker, and that his job was equal to hers. In order "[t]o recover under the Equal

Pay Act, [Simpson] must prove that [the Bank] discriminated on the basis of sex by

paying 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.'" Tenkku v. Normandy Bank, 348 F.3d

737, 740 (8th Cir. 2003) (quoting 29 U.S.C. § 206(d)(1)).

Simpson began working as a teller on October 27, 1977. Approximately one

year later, she moved to the loan department as its sole employee. She became

assistant cashier and loan officer in 1982. According to the complaint Simpson filed

with the Equal Employment Opportunity Commission (EEOC), when Simpson had

replaced a male employee, she earned several thousand dollars less than the male

predecessor in the same position. 
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By March of 1989, Simpson had become an Assistant Vice President. In this

capacity, Simpson provided Federal Deposit Insurance Corporation (FDIC) and

Arkansas State Bank required reports to the Board. She also created a spreadsheet,

writing macros that would automatically produce six pages of calculations, to recreate

a Board report derived from a national bankers' meeting. Simpson was responsible

for determining the Bank's annual income and the Bank's shareholders' dividends. In

1991, Simpson learned how the Bank's accountants performed the conversion to cash,

which resulted in a ten thousand dollar savings to the Bank that year. This costsavings process was performed by Simpson annually thereafter. Simpson also saved

the Bank thirteen thousand dollars one year by inventorying the Bank's commercial

property and ensuring that the Bank was not taxed on property it no longer owned.

Simpson completed numerous reports to governmental agencies, none of which

was ever rejected. Simpson compiled a monthly voluntary self-audit for the Arkansas

State Bank. She produced the call report, a thirty-six page report to the FDIC,

requiring the signature of the President and three Board members. Her work was only

reviewed by the Board of Directors for the Bank and was never rejected by them. No

one directly supervised Simpson, and even the Senior Vice President and Cashier

could not answer questions about the call report. Simpson consulted and interpreted

the FDIC regulations independently. Bonds provided the majority of the Bank's

income, and Simpson was responsible for calculating the advantage in purchasing

bonds at a discount or premium and the tax ramifications of the Bank's bond holdings.

The President often asked Simpson her opinion on which bonds to purchase.

Simpson served as duty officer every fourth week. The duty officer had to

close the Bank and set the alarms. This position rotated among Henry, Simpson, and

two other employees. When Estelle Catlett, the Senior Vice President and Cashier,

was on vacation or sick, Simpson performed her duties, including payroll and error

reconciliation. Simpson also supervised all employees at the Bank, except the
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President and Vice President, during Catlett's daily lunch break and while Catlett was

on vacation or sick. 

All of the skills needed to do every job at the Bank were on-the-job acquired.

During her time at the Bank, Simpson successfully completed a management school

program at the University of Arkansas; the Arkansas Bankers Association's Lending,

Marketing, and Management Schools; the Mid South School of Banking, Memphis

State University; and investment seminars provided by First Tennessee Bank. In

1997, Simpson attended one computer school in South Dakota and another one in St.

Louis. Simpson also publicly represented the Bank, including meeting with Senator

Marion Berry, teaching a checkbook class, organizing a batting helmet drive for

Mothers for Safer Little League, and serving on the Operations Committee for the

Arkansas Bankers Association. In response to Simpson's 2002 EEOC complaint, the

Bank reported that Simpson's duties were preparing monthly self-exam and quarterly

reports, booking income and expenses, back-up bookkeeping, serving as security

officer, issuing corporate shares and dividend checks, and providing investment

information for monthly Board reports.

Simpson's sole written evaluation, for 1980, contained seven categories.

Simpson received the highest possible score in six categories, and the next-highest

score in the remaining category. The previous year, she had received a nine hundred

dollar per annum raise. Simpson also performed work outside of regular hours,

including at her house, and once even while she was in the hospital.

At trial, Simpson compared her position with a male employee, J. Kendall

Henry. Henry was hired by the Bank in 1982. While working at the Bank, he

completed a degree in finance at the University of Arkansas, Fayetteville. He attended

the Mid South School of Banking, Memphis State University; the Arkansas Bankers

Association's Basic/Intermediate, Audit, Lending, Marketing, and Management

Schools; and the Dale Carnegie Course. Henry attended one of the two computer
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training programs that Simpson had attended. Henry represented the Bank by helping

another bank with its compliance program and by serving with the Young Bankers.

The Bank's 2002 EEOC response explained that Henry worked after hours and on

weekends. It also stated that Henry's jobs were information system coordinator, loan

review officer, bank secrecy act officer, part-time teller, and loan department

associate. However, as of 1998, another employee had taken over as bank secrecy act

officer. In addition, Henry performed the Bank's internal audits.

Henry received a written evaluation in 1996, which contained thirty-one

categories. He received top marks in twenty-two categories and the next-highest score

in the other nine categories. In 1996, the Bank's President requested that Henry

receive a ten thousand dollar per annum raise, because he would graduate from the

Mid South School of Banking the following year and had been trained to operate the

computers which would be delivered the following year. Henry's salary exceeded

Simpson's in 1996. At that time, he was an untitled bank officer and she was Assistant

Vice President, and the computers had not yet been installed. Henry was promoted

to Vice President in February 1997, and received approximately $7,000 more in salary

that year than did Simpson. Henry did not graduate from the Mid South School of

Banking until 1998.

In addition to the comparison between Henry's salary and Simpson's salary,

Simpson introduced other evidence. The Bank's personnel policy treated male and

female employees differently. For example, the policy addressed the scheduling

problems for "ladies . . . with children going to school" and stated that sick leave could

not be taken for maternity leave. A former Bank employee testified that the Bank

President had said, I wish "the bitch would quit," when told that Simpson was absent

from work.

At trial, Simpson offered further examples of inequitable treatment she

received. Simpson made suggestions to the Bank President about putting in a wide-
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angle camera and new lighting in the drive-in for better security. He dismissed her

ideas, but adopted them a year later when suggested by Henry. Henry was given

greater latitude with working hours and often left work without telling anyone; in

contrast, Simpson had to ask permission to leave and was twice denied permission to

attend meetings required for re-qualification as the security officer. On December 31,

1999, Henry left at ten o'clock in the morning to be at a sporting event the following

day, telling the employees who were finishing the year-end balancing to call a

computer support company in South Dakota. Rheta Griffith, the Executive Vice

President and a member of the Board, admitted that she had probably said a man was

needed at the Bank, because so few men worked there. Finally, Simpson testified that

Griffith had told her that men in Clarendon need to be paid more than women.

The jury returned a verdict in favor Simpson on her Equal Pay Claim, finding

that (1) Simpson and Henry were employed by Merchants & Planters Bank in jobs

requiring substantially equal skill, effort and responsibility, (2) the two jobs were

performed under similar working conditions, (3) Simpson was paid a lower wage than

a member of the opposite sex doing equal work, (4) the difference in pay was not the

result of factors other than sex, (5) the amount of Simpson's damages was $35,664.37,

and (6) Merchants & Planters Bank's conduct with respect to Simpson's pay was

willful. The Bank appeals.

II. DISCUSSION

A. Prima Facie Case of Wage Discrimination

We review de novo the district court's denial of judgment as a matter of law,

which should be granted if there is not sufficient evidence to support the jury's verdict,

viewing all evidence in the light most favorable to the verdict. Jones, 285 F.3d at 712.
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The Bank argues that Simpson's and Henry's jobs are not the same; therefore,

they are not equal. Much of the precedent regarding unequal jobs involves comparing

two jobs with a common core of duties, but with the higher-paid job having additional

duties. See, e.g., Horn v. Univ. of Minn., 362 F.3d 1042, 1045-46 (8th Cir. 2004)

(finding that the jobs of two hockey coaches were not equal because the female

hockey coach served as a public representative to the hockey team, in addition to the

administrative duties she had in common with the male hockey coach), McLaughlin

v. Esselte Pendaflex Corp., 50 F.3d 507, 513-14 (8th Cir. 1995) (finding two jobs not

equal because male employee performed other tasks in addition to the tasks female

employee had previously performed), Krenik v. County of Le Sueur, 47 F.3d 953, 961

(8th Cir. 1995) (holding two maintenance employees' jobs not equal where male

maintenance engineer had supervisory duties in addition to the job functions that

female assistant performed). Simpson did not attempt to prove that she and Henry had

the same job and that he had no additional duties. She attempted to prove the jobs

were equal, which is the relevant inquiry.

We have previously determined that "jobs need not be identical to be considered

'equal' under the EPA; they need only be substantially equal." Hunt v. Neb. Pub.

Power Dist., 282 F.3d 1021, 1029 (8th Cir. 2002). The inquiry as to whether two jobs

are equal is a factual one:

Whether two jobs entail equal skill, equal effort, or equal responsibility

requires a practical judgment on the basis of all the facts and

circumstances of a particular case. Skill includes such considerations as

experience, training, education, and ability. Effort refers to the physical

or mental exertion necessary to the performance of a job. Responsibility

concerns the degree of accountability required in performing a job.

Application of the Equal Pay Act depends not on job titles or

classifications but on the actual requirements and performance of the job.

In all cases, therefore, a court must compare the jobs in question in light

of the full factual situation and the broad remedial purpose of the statute.
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EEOC v. Universal Underwriters Ins. Co., 653 F.2d 1243, 1245 (8th Cir. 1981) (citing

29 C.F.R. §§ 800.114-.132). Thus, whether Simpson and Henry had equal jobs is a

factual inquiry, dependent on their job requirements, not their job titles, and anchored

around skill, effort, and responsibility.

In evaluating the first factor, the skill required to perform the jobs, a reasonable

jury could have concluded that Simpson and Henry possessed the same experience,

training, education, and ability to perform their jobs. Simpson had worked at the Bank

longer and, thus, had more practical experience. The two had attended the same

banking schools and computer training. Further, Simpson's sole written evaluation

was as positive as Henry's written performance evaluation, so their abilities were the

same. Henry's college degree is not relevant to determining the skill required to

perform the jobs, since all the skills needed at the Bank were on-the-job acquired. See

Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1533 (11th Cir. 1992)

(explaining that in establishing a prima facie case under the Equal Pay Act, "only the

skills and qualifications actually needed to perform the jobs are considered").

Likewise, on the second factor, effort, a reasonable jury could have determined

that Simpson's and Henry's jobs required the same effort. Both were required to apply

the same base of banking knowledge to their jobs. Further, both were required to

work after-hours and both represented the Bank at public functions.

Finally, a reasonable jury could have determined that Simpson's and Henry's

jobs required the same responsibility. Simpson's degree of accountability was very

high. She prepared reports which were signed by Board members and submitted to

federal and state agencies, including a voluntary self-audit. She had to interpret FDIC

regulations, and no one checked her work. Henry's degree of accountability was

similar, because he performed the Bank's internal audits.
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Therefore, a reasonable jury could have determined that Simpson was paid less

than Henry "for equal work on jobs the performance of which requires equal skill,

effort, and responsibility." 29 U.S.C. § 206(d)(1).

B. Bank's Affirmative Defense – Pay Differential Based on

Factors other than Sex

As an affirmative defense, the Bank asserts that it proved that the pay

differential between Simpson and Henry was based on factors other than sex: Henry's

college degree, work after hours and on weekends for the computer system, activity

in the community, and efforts by other Banks to recruit Henry. The jury rejected the

Bank's contention, so we will disturb the verdict only if no reasonable jury could have

returned a verdict for the non-moving party, viewing all evidence in the light most

favorable to the verdict. Jones, 285 F.3d at 712. "'Under the EPA, a defendant cannot

escape liability merely by articulating a legitimate non-discriminatory reason for the

employment action. Rather, the defendant must prove that the pay differential was

based on a factor other than sex.'" Lawrence v. CNF Transp., Inc., 340 F.3d 486, 493

(8th Cir. 2003) (quoting Taylor v. White, 321 F.3d 710, 716 (8th Cir. 2003)).

A reasonable jury could have rejected Henry's college degree as a reason for the

pay differential, since all the skills needed at the Bank were on-the-job acquired. See,

Miranda, 975 F.2d at 1533 (11th Cir. 1992) ("only the skills and qualifications

actually needed to perform the jobs are considered"). The after-hours work could also

have been rejected, since Simpson worked late as well, even while in the hospital.

The jury may have also rejected the Bank's reasoning that Henry's computer support

justified his greater pay, since Simpson had received more computer training and

Henry's pay exceeded Simpson's before the computers were installed. Though Henry

was active in the community, Simpson was also active in the community and

represented the Bank in at least one meeting with a Senator. Finally, while Henry may

have been recruited by other Banks, the jury may have found that the recruitment did
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not excuse the Bank's duty to pay Simpson on an equal basis. Exterior salary

pressures have been rejected as reasons for pay differential by other circuits, and the

jury here was not unreasonable in doing so also. See Irby v. Bittick, 44 F.3d 949, 955

(11th Cir. 1995) ("if prior salary alone were a justification, the exception would

swallow up the rule and inequality in pay among genders would be perpetuated"

(quotation omitted)).

C. Willfulness and the Award of Liquidated Damages

The jury determined that the Bank's actions were willful. The district court

used this finding to award liquidated damages to Simpson. The Bank contends that

this was error because (1) there was insufficient evidence at trial to support the verdict

of willfulness and (2) the Bank established that it had acted in good faith and had

reasonable grounds for believing that it was not violating the Equal Pay Act.

The Equal Pay Act's penalties include liquidated damages in an amount equal

to actual damages. 29 U.S.C. § 216(b). However, an employer can avoid paying

some or all of these liquidated damages if it can prove that it acted in good faith.

Jarrett v. ERC Props., Inc., 211 F.3d 1078, 1083 (8th Cir. 2000) (citing 29 U.S.C. §

260). In addition, if an employee can show that the employer willfully violated the

Equal Pay Act, the statute of limitations is three years, rather than the presumptive

two-year statute of limitations, which could lengthen the time period for which

damages can be awarded. 29 U.S.C. § 255(a). A finding of willfulness requires

behavior on the part of the employer that exceeds negligence; the employer must act

knowingly or with reckless disregard of whether the contested conduct was prohibited.

See EEOC v. Cherry-Burrell, Inc., 35 F.3d 356, 364 (8th Cir. 1994) (citing

McLaughlin v. Richland Shoe Co., 486 U.S. 128 (1988)). 

At trial, Simpson introduced evidence that a reasonable jury could have used

to support its finding that the Bank knew or showed reckless disregard for the fact that
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The Bank points out that the district court did not use the willfulness finding

to extend the ordinary two-year statute of limitations to three years, as provided by 29

U.S.C. § 255(a). This issue was not fully briefed by the parties and the amount of

damages, and the issue of whether the correct statute of limitations was imposed, is

not properly before us.

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its conduct was prohibited by the Equal Pay Act. First, Sharp, the Bank's counsel, was

on the Board, which decided the salary of each employee. A reasonable jury could

have concluded that Sharp, as an attorney, would been aware of the Equal Pay Act.

Mere awareness of this law, standing alone, would not have been a willful violation

of the Equal Pay Act. Id.

However, Simpson introduced other circumstantial evidence, which would

enable a reasonable jury to determine that the Bank's violation of the Equal Pay Act

was willful. Sharp was responsible for the Bank's personnel policy, which treated

situations for male and female employees differently. In addition, the Executive Vice

President, another Board member, said men were needed at the Bank and that men in

Clarendon needed to be paid more than women. Viewing all the evidence in the light

most favorable to the jury's finding, we conclude that a reasonable jury could have

found that the Bank committed a willful violation of the Equal Pay Act.

The Bank failed to meet its burden of proving a good faith defense, particularly

since Simpson proved willfulness. Jarrett, 211 F.3d at 1084 (noting employer's

difficulty in mounting a good-faith defense where the same employer was found to

have willfully violated provisions of the Fair Labor Standards Act). Therefore, we

affirm the district court's award of liquidated damages.2

D. Attorney's Fees

The Bank argues that the district court abused its discretion in not further

reducing the amount of attorney's fees awarded to Simpson. The Supreme Court has
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provided guidelines for determining the amount of attorney's fees where Congress has

authorized awarding them to a prevailing party. Hensley v. Eckerhart, 461 U.S. 424

(1983). First, the district court should determine "the number of hours reasonably

expended on the litigation multiplied by a reasonable hourly rate." Id. at 433. If the

prevailing party did not achieve success on all claims, this fee may be reduced, taking

into account the most critical factor, "the degree of success obtained," with discretion

residing in the district court. Id. at 436-37.

The Bank does not contest the district court's initial calculation of a reasonable

fee, but argues that the twenty-percent reduction was inappropriate because the relief

sought was much larger than the results obtained. The Bank suggests that the

percentage of attorney's fees awarded should reflect the percentage of relief obtained

versus that sought. We disagree. Though we have imposed a pro rata reduction in

one extreme instance, where the attorney had unreasonably run up $488,960.25 in fees

in comparison to $20,832 in compensatory damages requested in closing arguments,

we were sure to emphasize that a pro rata reduction would not normally be

appropriate. Gumbhir v. Curators of the Univ. of Mo., 157 F.3d 1141, 1146-47 (8th

Cir. 1998). We have, indeed, explicitly rejected a "rule of proportionality" in civil

rights cases because tying the attorney's fees to the amount awarded would discourage

litigants with small amounts of damages from pursuing a civil rights claim in court.

Jackson v. Crews, 873 F.2d 1105, 1110 (8th Cir. 1989). 

We review the district court's award of attorney's fees for abuse of discretion.

Hensley, 461 U.S. at 437. Most of the other claims that Simpson brought were either

voluntarily dismissed or were disposed of on summary judgment. The claims that

proceeded to trial were for constructive discharge (based on sex and based on

disability) and for Equal Pay Act violations. We cannot say that the twenty-percent

reduction was an abuse of discretion, and we therefore, affirm.
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III. CONCLUSION

For the foregoing reasons, we affirm the district court's denial of judgment as

a matter of law and its award of liquidated damages and attorney's fees.

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