PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SANDRA WHEATLEY; JANE GROGAN, 

Plaintiffs-Appellants,

v.  No. 03-2406

WICOMICO COUNTY, MARYLAND,

Defendant-Appellee. 

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

J. Frederick Motz, District Judge.

(CA-01-1665-JFM-1)

Argued: September 29, 2004

Decided: November 22, 2004

Before WILKINSON and LUTTIG, Circuit Judges,

and Henry E. HUDSON, United States District Judge

for the Eastern District of Virginia,

sittting by designation.

Affirmed by published opinion. Judge Wilkinson wrote the opinion,

in which Judge Luttig and Judge Hudson joined. 

COUNSEL

Francis Joseph Collins, KAHN, SMITH & COLLINS, P.A., Baltimore, Maryland, for Appellants. Shirlie Norris Lake, ECCLESTON

& WOLF, Baltimore, Maryland, for Appellee. 
OPINION

WILKINSON, Circuit Judge: 

Sandy Wheatley and Jane Grogan supervise the Wicomico County,

Maryland, Emergency Services Department, which includes the 911

call center. In June 2001, they sued the County, alleging violations of

the Equal Pay Act and Title VII. Ms. Grogan and Ms. Wheatley claim

that male department supervisors are paid significantly more than

female department supervisors, despite the fact that all perform substantially equal managerial work. The plaintiffs also accuse the

County of sex discrimination. 

We are unpersuaded that "equal work" under the Equal Pay Act can

be established when two employees have similar titles but responsibilities that bear no more than the most general resemblance. We likewise affirm the district court’s dismissal of plaintiffs’ Title VII

claims.

I.

Wicomico County employs over 500 people, organized in approximately eleven different departments. The departments vary in size and

function. The Emergency Services Department is comprised of

approximately 22 people; it operates the 911 call center 24 hours a

day, 365 days a year. Since 1986, Sandy Wheatley has served as

director of the Emergency Services Department. Jane Grogan has

been the deputy director since 1997. Neither woman’s job competence has been questioned. 

Beginning in 1999, Wicomico County commissioned a study to

evaluate its compensation schedule for all 500 of its employees. The

purpose of the study was to ensure that County employees were being

paid equally for equal work, and also to guarantee that they were

being paid comparably to persons in the same positions in other jurisdictions. This "Hendricks Study," performed by Charles Hendricks,

led Wicomico County to reconfigure its pay schedule.

The new plan created 22 separate grades and assigned a numerical

2 WHEATLEY v. WICOMICO COUNTY
grade to all County jobs. Grade assignments were based on seven

criteria: education, job complexity, scope and impact, supervision,

working relationships, working environments, and physical demands.

Mr. Hendricks chose these seven criteria because he found them comparable to the four criteria set forth in the Equal Pay Act.1

Once the jobs were assigned a grade, individual salaries were set

using a mathematical formula, based in part on pre-study salaries.

Within each grade, the Hendricks study recommended a minimum,

maximum, and mid-point salary. Ms. Wheatley’s job was originally

classified as Grade 16, though it was re-classified as Grade 17 after

she filed a complaint with the County Administrative Director.

Although she received an 18% pay increase as a result of the Hendricks study, her salary was set below the mid-point of her grade. Ms.

Grogan’s job was classified as a Grade 13 — her pay increased by a

similar proportion, but she too received a salary below the mid-point

of her grade. Ms. Wheatley now earns $65,808 annually, and Ms.

Grogan earns $49,164. 

The case proceeded to trial on October 20, 2003. Ms. Wheatley and

Ms. Grogan offered statistical evidence to demonstrate a pay disparity

between male department leaders and female department leaders.

Both plaintiffs suggested that they are paid, on average, $25,000 a

year less than the male directors and deputy directors in other departments. Additionally, plaintiffs submitted statistics indicating that

while they were assigned salaries below the midpoint for their Hendricks grades, all male directors and deputy directors were given salaries above their grade midpoints.

Ms. Wheatley and Ms. Grogan also attempted to demonstrate that

department managers all perform the same general duties. Ms. Wheatley testified that, like herself, directors of other departments supervise

subordinates, conduct staff meetings, prepare budgets, answer to the

same County Council, and otherwise manage their departments. She

1The EPA mandates equal pay for the performance of jobs which

require (1) equal skill, (2) equal effort, (3) equal responsibility, and

which are performed under (4) equal working conditions. 29 U.S.C.

§ 206(d)(1)(2000). 

WHEATLEY v. WICOMICO COUNTY 3
told the jury that, aside from a difference in subject-matter, all department heads bore the same responsibilities. 

After two and a half days of presenting evidence, plaintiffs rested.

Before putting on its case, the County made a motion for judgment

as a matter of law. The trial judge heard argument on the motion. It

was during this argument that plaintiffs’ counsel first articulated a

new theory of the case. He argued that plaintiffs perform work substantially equal to the work performed by male employees whose jobs

are assigned the same Hendricks Grades. On this new theory of the

case, Ms. Wheatley would point not to other department heads but to

male employees in Grade 17 as her comparators, and Ms. Grogan

would compare herself to males in Grade 13. 

At this point in the hearing, the district court expressed frustration

with the new strategy. He emphasized that "from the outset," the case

had been tried "on the theory that the heads of the departments are

comparable positions, both for purposes of Title VII and the Equal

Pay Act." The court concluded that plaintiffs had failed to establish

sufficient comparability with these department leaders. As for a

potential comparison to employees in the same Hendricks grade, he

concluded that this theory of the case should have been identified earlier. Since it was not announced until after all of plaintiffs’ evidence

had already been submitted, the trial judge refused to entertain the

new argument. 

The district court granted the County’s motion for judgment as a

matter of law, and plaintiffs now appeal. 

II.

The granting of a motion for judgment as a matter of law is

reviewed de novo. Corti v. Storage Tech. Corp., 304 F.3d 336, 341

(4th Cir. 2002). Such a motion is properly granted "if the nonmoving

party failed to make a showing on an essential element of his case

with respect to which he had the burden of proof." Singer v. Dungan,

45 F.3d 823, 827 (4th Cir. 1995)(internal quotation omitted). 

Ms. Wheatley and Ms. Grogan allege Wicomico County violated

the Equal Pay Act ("EPA") which provides: 

4 WHEATLEY v. WICOMICO COUNTY
No employer . . . shall discriminate . . . between employees

on the basis of sex by paying wages to employees . . . at a

rate less than the rate at which he pays wages to employees

of the opposite sex . . . for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working

conditions, except where such payment is made pursuant to

(i) a seniority system; (ii) a merit system; (iii) a system

which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other

than sex.

29 U.S.C. § 206(d)(1)(2000). To make out a prima facie case under

the EPA, the burden falls on the plaintiff to show that the skill, effort

and responsibility required in her job performance are equal to those

of a higher-paid male employee. Corning Glass Works v. Brennan,

417 U.S. 188, 195 (1974). In interpreting the EPA, "‘[e]qual means

substantially equal.’" Hodgson v. Fairmont Supply Co., 454 F.2d 490,

493 (4th Cir. 1972)(quoting Schultz v. Wheaton Glass Co., 421 F.2d

259, 265 (3d Cir. (1970)). 

The plaintiffs eventually articulated two separate legal theories,

both anchored in the EPA. The district court found their first argument to be deficient, and their second argument to be tardy. For the

reasons that follow, we agree.

A.

We first address plaintiffs’ original theory of the case — the one

relied upon at trial. As expressed in their opening statement, Ms.

Wheatley and Ms. Grogan’s strategy was to compare their jobs to jobs

held by male department heads. To support their theory, the women

relied on evidence that all managers — regardless of department subject matter — ultimately perform the same supervisory duties. They

all, for instance, prepare budgets, monitor employees, and conduct

meetings. 

We decline to accept the argument, however, that employees with

the same titles and only the most general similar responsibilities must

be considered "equal" under the EPA. In actuality, plaintiffs present

WHEATLEY v. WICOMICO COUNTY 5
a classic example of how one can have the same title and the same

general duties as another employee, and still not meet two textual

touchstones of the EPA — equal skills and equal responsibility. 

First, it is simply not the case that all department director positions

require equal skills. Both the Director and Deputy Director of Public

Works in Wicomico County, for instance, are required to hold graduate degrees in civil engineering. By contrast, Ms. Wheatley and Ms.

Grogan perform their jobs well without possessing any advanced

degrees at all. While it is certainly true that plaintiffs provide valuable

services to the County, it would be disingenuous to argue that their

jobs require skills substantially equal to the jobs which require engineers to direct the Department of Public Works. Indeed, to accept

plaintiffs’ position would mean that although market demand for different skills may vary greatly, the salaries that employers pay for such

skills must be the same. 

The case law reveals a helpful analogy. In Soble v. University of

Maryland, 778 F.2d 164 (4th Cir. 1985), a female Assistant Professor

sought to compare herself, for purposes of the EPA, to other assistant

professors in a dental school. Professor Soble, who taught in the field

of community dentistry, held degrees in sociology and social work.

Id. at 167. The vast majority of her colleagues, however, held degrees

in dentistry. We found that merely possessing the same title of "assistant professor" was not enough to satisfy the EPA requirement of

"equal skills." Id. Because the professorships in other departments

were "highly specialized and require[d] distinct skills" we foreclosed

Professor Soble from making an EPA comparison to them. See also

Strag v. Bd. of Trustees, 55 F.3d 943, 950 (4th Cir. 1995)(employing

similar analysis for the EPA claim of a female math instructor). Similarly, pointing to the mere appellation of "department head" does not

suffice to carry plaintiffs’ burden under the skills prong of the EPA.

In addition to their failure to show equal skills, Ms. Wheatley and

Ms. Grogan also fall short of satisfying a second major EPA requirement. They fail to establish that their jobs and the jobs of other

department heads carry substantially equal responsibilities. We have

explained that jobs do not automatically involve equal effort or

responsibility even if they "entail most of the same routine duties."

Hodgson, 454 F.2d at 493. Jobs are considered unequal — despite

6 WHEATLEY v. WICOMICO COUNTY
having the same general core responsibilities — "if the more highly

paid job involves additional tasks which (1) require extra effort . . .

(2) consume a significant amount of the time . . . and (3) are of an

economic value commensurate with the pay differential." Id. (internal

quotation omitted). 

Despite plaintiffs’ arguments to the contrary, it is significant that

different Wicomico County departments perform completely different

functions. The Director of Recreation, Parks & Tourism is, among

other things, responsible for park maintenance; the Director of Public

Works is responsible for coordinating the dredging of waterways; and

the Director of Emergency Services is responsible for coordinating

resources in the event of a disaster. Granted, at a high level of abstraction these positions all require directors to do the same thing — supervise, coordinate, and organize. But, the EPA demands more than a

comparison of job functions from a bird’s eye view. 

In enacting the EPA, Congress chose the word "equal" over the

word "comparable" in order "to show that the jobs involved should

be virtually identical, that is . . . very much alike or closely related

to each other." Brennan v. City Stores, Inc., 479 F.2d 235, 238 (5th

Cir. 1973)(internal quotation omitted). See also Waters v. Turner,

Wood & Smith Ins. Agency, Inc., 874 F.2d 797, 799 (11th Cir. 1989);

EEOC v. Madison Community Unit School Dist., 818 F.2d 577, 582

(7th Cir. 1987). Here, we have employees whose jobs demand the

performance of quite different functions. Ms. Wheatley and Ms. Grogan do not deny that the various County departments differ in subjectmatter. In fact, although Ms. Wheatley testified that all directors bear

the same type of job responsibilities, she admitted that on a day-today basis, they work in "different world[s]." 

It may well be true that all Wicomico County department directors

prepare budgets and work schedules. It is certainly not true, however,

that all departments have budgets and workforces of equal size. If

there is a director or deputy director whose job involves the same

responsibilities as does Ms. Wheatley’s or Ms. Grogan’s, and if any

extra tasks performed by this director are indeed inconsequential,

plaintiffs certainly failed to identify him. 

We do not suggest that Ms. Wheatley and Ms. Grogan’s action faltered because it failed to identify one specific individual who constiWHEATLEY v. WICOMICO COUNTY 7
tutes a perfect male comparator. The text of the EPA may not be

brushed with such a demanding gloss. However, in choosing a proper

comparator position, plaintiffs cannot indiscriminately aim at all

department supervisors collectively, and then expect to meet the EPA

standard of "substantial equality [in] skill, effort [and] responsibility."

Kovachevich v. Kent State University, 224 F.3d 806, 826 (6th Cir.

2000). See also Hodgson, 454 F.2d at 493 (same). The inquiry must

be more specific. The comparison to the male employee has to be

made "factor by factor" and cannot be made to "a hypothetical male

with a composite average of a group’s skill, effort, and responsibility." Houck v. Virginia Polytechnic Inst., 10 F.3d 204, 206 (4th Cir.

1993). It is here that plaintiffs fall short. 

Accepting the EPA argument relied on by plaintiffs at trial would

be unfaithful to the statutory text. In essence, plaintiffs ask us to convert the EPA equality standard into a similarity test. We decline to

hold that having a similar title plus similar generalized responsibilities is equivalent to having equal skills and equal responsibilities.

Were we to adopt that position, we would deprive compensation

structures of all flexibility and deny employers the chance to create

pay differentiations that reflect differing tasks and talents. In passing

the EPA, Congress embraced "the principle of equal pay for equal

work regardless of sex." Corning Glass 417 U.S. at 190. Congress did

not authorize the courts "to engage in wholesale reevaluation of any

employer’s pay structure in order to enforce their own conceptions of

economic worth." Prince William Hosp. Corp., 503 F.2d at 285.

There is no question that Ms. Wheatley and Ms. Grogan are valuable

assets to Wicomico County. But it is not the job of the courts to discard Congress’ studied use of the term "equality" and set the price for

their services. 

For the above reasons, we agree with the district court that plaintiffs’ original EPA argument lacks merit.

B.

Plaintiffs also ask us to consider a second EPA argument, which

was unveiled moments before the district judge granted judgment for

the defendant. Rather than comparing themselves to other County

directors and deputy directors, Ms. Wheatley and Ms. Grogan

8 WHEATLEY v. WICOMICO COUNTY
switched course and asked to be compared to male employees

assigned their same Hendricks grade (Grade 17 and 13 respectively).

We need not address the merits of this argument, however, for we

agree with the lower court that this theory came too late in the day

for the case to be fairly tried on it. 

Issues raised for the first time on appeal "are generally not considered absent exceptional circumstances." Williams v. Prof. Transp.

Inc., 294 F.3d 607, 614 (4th Cir. 2002). See also Singleton v. Wulff,

428 U.S. 106, 120 (1976). The policies behind the rule are obvious:

"respect for the lower court, [an avoidance of] unfair surprise to the

other party, and the need for finality in litigation and conservation of

judicial resources." Tele-Communications, Inc. v. Commissioner, 12

F.3d 1005, 1007 (10th Cir. 1993)(internal quotation omitted). 

Although the plaintiffs technically voiced their second EPA argument to the lower court, those policy concerns are still implicated.

Plaintiffs raised their new theory at the eleventh hour — once they

sensed that their original theory was doomed. The new argument did

not appear in the complaint, nor was it mentioned to the jury in opening statements. And the switch caught the trial judge and opposing

counsel completely by surprise. With some frustration, the trial court

addressed plaintiffs’ counsel:

I don’t want to be impatient with you . . . [but] you’re telling

me that you can now go to the jury on a whole different theory than was presented in opening statement, [and] was

presented in your client’s testimony. . . . 

. . . . 

. . . [Plaintiffs] are the ones who should have identified

[their theory] early, not leaving it up, just throwing it all up

and say, well, we’ll decide that later, Judge, you decide it as

the case gets narrowed down. That’s just not the way trials

work. 

The adversary system cannot function properly if lawyers are

allowed to dump arguments on a district court at the last minute, withWHEATLEY v. WICOMICO COUNTY 9
out developing them during the course of litigation. Certainly, litigants are permitted to make alternative arguments as part of their

case-in-chief. But there is a thin line between an alternative argument

and a last-minute switch in strategy which risks severely prejudicing

an opponent and surprising the district court. This situation is an

example of the latter. 

Despite plaintiffs’ contention to the contrary, it is insufficient that

the evidentiary basis for their second argument may exist somewhere

in the record. An appellate court "cannot assume the functions of a

special master and roam at large over the record, . . . any attempt on

its part to do so would probably do a great deal more harm than

good." Hutchinson v. Fidelity Inv. Ass’n, 106 F.2d 431, 436 (4th Cir.

1939). Lawyers have a duty not just to submit evidence, but to provide some focus to their argument. This was not done here. 

III.

We thus decline to address the merits of plaintiff’s second EPA

argument, and we affirm the district court’s holding on their first.2

The judgment of the district court is 

AFFIRMED.

2Plaintiffs additionally contend that the district court erred by awarding

judgment to defendant on their Title VII claims. "Although the evidentiary burdens shift back and forth under the McDonnell Douglas framework, ‘the ultimate burden of persuading the trier of fact that the

defendant intentionally discriminated against the plaintiff remains at all

times with the plaintiff.’" Love-Lane v. Martin, 355 F.3d 766, 786 (4th

Cir. 2004), (quoting Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S.

248, 253 (1981)). 

The trial judge noted that "perhaps one could make a policy decision

that the head of Emergency Services should be paid the same as the head

of Public Works." But to say that Title VII requires such an outcome is

a different matter altogether. The county contended throughout that any

pay differentials reflected nothing more than the fact that employees

were performing different jobs. The evidence provides no basis for concluding that this explanation serves as a pretext for the practice of intentional sex discrimination. 

10 WHEATLEY v. WICOMICO COUNTY