1

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

___________

No. 02-1165

___________

Esther S. Taylor, *

*

Appellant, * Appeal from the United States

* District Court for the Eastern

v. * District of Arkansas.

*

Thomas E. White, Secretary of the *

Army, *

*

Appellee. *

___________

Submitted: June 28, 2002

Filed: March 4, 2003

___________

Before WOLLMAN, MORRIS SHEPPARD ARNOLD, and MELLOY, Circuit

Judges.

___________

MELLOY, Circuit Judge.

In this Title VII unequal pay case, Plaintiff/Appellant Esther S. Taylor appeals

the district court's1

 grant of summary judgment in favor of her employer,
2

GS or General Schedule refers to a government pay scale used to classify

employees and positions.

3

The WG pay scale is separate from the General Schedule. It is applicable

to certain jobs at the Arsenal. Generally, for a given numerical grade (e.g. GS-4

and WG-4), WG salaries are lower than GS salaries.

2

Defendant/Appellee Secretary of the Army Thomas E. White (the Army). Because

Taylor failed to identify evidence that would create a genuine question of material

fact to rebut the Army's affirmative defense, we affirm.

I.

Taylor was a civilian employee at the Army's Pine Bluff, Arkansas Arsenal (the

Arsenal). From early February 1995 through June 1998, she worked on a temporary

program known as the Munitions Items Disposition Action System or MIDAS.

Taylor's duties under the MIDAS program related to the preparation of detailed

technical reports to describe unwanted conventional munitions. The purpose of the

MIDAS program was to facilitate the disposal of these munitions. 

Taylor was not a veteran, but she had worked for the Arsenal for many years

before joining the MIDAS program. She first worked for the Arsenal from 1963

through 1969, at which time she quit to raise her family. In 1981 she returned to the

Arsenal as a grade GS-4 timekeeper in the office of the Directorate of Manufacturing

Operations.2

 Between 1983 and 1993 she worked as a munitions inspector and

progressed in salary and title from grade WG-6 munitions inspector to grade WG-9

munitions inspector.3

 In 1993, through a formal reduction-in-force process, she was

downgraded and transferred to the Arsenal's Directorate of Product Assurance as a

grade GS-4 quality assurance clerk. 
4

§ 5362 mandates salary retention for certain government employees who

have worked for at least 52 consecutive weeks prior to placement in a lower

salaried position through a formal reduction-in-force process. Because Taylor's

present complaints did not arise from a reduction-in-force process, and because

they are unrelated to her earlier demotion that occurred under a reduction-in-force

process, the statutory salary retention policy of § 5362 is not under examination.

3

Due to application of the statutory salary retention policy of 5 U.S.C. § 5362,

Taylor was entitled to retain her higher, WG-9 grade and salary for a limited period

of time following the reduction-in-force.4

 Therefore, immediately prior to joining the

MIDAS program under the Directorate of Product Assurance in 1995, she worked as

a GS-4 quality assurance clerk in the Directorate of Product Assurance but received

statutorily protected pay at the WG-9 level. She does not allege that her demotion

during the earlier reduction-in-force involved discrimination or that her GS-4 ranking

demonstrated historical discrimination by the Army.

Theodis J. Thornton and Willie J. Early were Taylor’s male co-workers on the

MIDAS program. Both were GS-11 quality assurance specialists before placement

with the MIDAS program. Thornton was an Army veteran and Arsenal employee

since 1978. Early was a Marine veteran and Arsenal employee since 1979. Linda

Jones was Taylor's female coworker on the MIDAS program. Jones was a GS-9

engineering technician.

Prior to placement with the MIDAS program, Taylor, Early and Thornton were

on the Arsenal's "surplus roster." On the surplus roster, they faced uncertain job

security. The record is not clear regarding the precise nature of this uncertainty such

as the likelihood or timing of possible layoffs or demotions. However, it is

undisputed that Arsenal management generally attempted to fill vacant positions with

surplus roster personnel to avoid layoffs. Jones was not on the surplus roster prior

to her placement with the MIDAS program.
4

The MIDAS program originally had the potential to be funded for three years,

but was obtained as a temporary program of uncertain duration. Ultimately, control

over the MIDAS program rested with the U.S. Army Defense Ammunition Center and

School in Savannah, Illinois. Local control over the MIDAS program at the Arsenal

was originally held by the Arsenal's Directorate of Engineering and Technology.

While Taylor, Early, and Thornton were on the surplus roster, quality assurance

supervisor John Hill negotiated transfer of the MIDAS program jobs and funding

from the Arsenal's Directorate of Engineering and Technology to the Directorate of

Product Assurance. Hill was able to obtain local control of the MIDAS program from

the Directorate of Engineering and Technology due to poor performance by that

Directorate and due to a threat from Savannah to withdraw the MIDAS program and

its funding from the Arsenal. By securing the MIDAS program for the Directorate

of Product Assurance, Hill created positions for Taylor, Thornton, and Early thus

removing these three employees from the surplus roster.

Taylor, her female coworker Jones, and her male coworkers Thornton and

Early commenced work under the MIDAS program in late January and early February

1995. At that time, the Civilian Personnel Office (CPO) had not yet classified the

MIDAS positions and duties under the GS system. Taylor, Jones, Thornton, and

Early simply assumed new duties, received limited group training, and continued to

receive pay at their prior, unequal, pre-MIDAS grades – Taylor at the WG-9 level,

Jones at the GS-9 level, and Thornton and Early at the GS-11 level. Previously, when

the MIDAS program was under the Directorate of Engineering and Technology, one

of the MIDAS workers was a male rated at level GS-12. The record is unclear

regarding the historical grades and duties of other, prior MIDAS workers. 

Notwithstanding these different classifications and salaries, it is undisputed

that during at a least a portion of their time together under the MIDAS program,

Taylor, Jones, Thornton, and Early performed identical work under identical

conditions. When their MIDAS work began Taylor and her co-workers shared a lack
5

of relevant experience and training. They learned to perform MIDAS work together

by trial and error and through joint training. 

In the summer of 1995, Hill submitted a written description of the MIDAS

workers' duties to the CPO. In addition, he claims to have recommended

classification of these duties at grade GS-9. In August of 1995, about six months

after Taylor and her coworkers joined the MIDAS program, but before Taylor's

statutory salary retention benefits expired, the CPO classified the MIDAS positions

at grade GS-7. After the classification, Thornton and Early maintained their GS-11

grades and salaries. Because Jones returned to her previous position shortly before

the classification, she was unaffected by the CPO's action. Jones maintained her

grade GS-9 status throughout her entire tenure with the MIDAS program. 

After the CPO classification, Taylor was promoted from grade GS-4 to grade

GS-7. Because she had been receiving statutorily protected pay at the WG-9 level for

two years, her three grade promotion did not appear to provide a dramatic salary

increase. Taylor's two year benefit period under 5 U.S.C. § 5362 would have expired

in October of 1995 had she not been promoted to the GS-7 level.

Jacquelyne Evans, a position classification specialist from the CPO, claims that

the CPO relied on Hill's written description to classify the MIDAS duties at grade

GS-7. Taylor does not dispute that the CPO relied on Hill's written description.

However, she alleges that reliance on the written description was irregular and notes

that Evans does not recall Hill recommending classification at grade GS-9. In

addition, Taylor notes that no CPO personnel conducted a "desk audit" or personal

interview of Taylor, Early, or Thornton to explore first-hand the tasks involved with

the performance of their MIDAS duties. Although Taylor attacks the classification

process, she presents no evidence to suggest that a desk audit was required, that such

interviews were a mandatory part of the position classification process, or that

reliance on a supervisor's written description was impermissible. Accordingly,
6

although Taylor has identified a question of fact regarding whether or not Hill

recommended classification at grade GS-9, it is clear that the CPO did not rely on any

such recommendation and Taylor's unsupported critique of the classification process

cannot support an inference of discrimination. 

Shortly after the CPO classification, Thornton acquired additional, non-MIDAS

program duties and devoted only about fifty percent of his time to the MIDAS

program. In April 1996, he was promoted to GS-12. Although Thornton continued

to share some duties that were identical to those of Taylor and Early, Taylor does not

allege that her workload was equal to that of Thornton's after the scope of his duties

expanded. Early continued to receive a GS-11 salary under the MIDAS program until

October 11, 1997, when he returned to his prior, GS-11 position. Taylor performed

the same work as Early throughout this entire time but received pay at the GS-7 level.

Taylor remained with the MIDAS program through its termination in May, 1997. At

that time she returned to a GS-4 position to perform GS-4 duties, but maintained her

GS-7 grade and salary.

In September 1995, after Taylor was promoted to grade GS-7, she met with the

Arsenal's EEO Officer to complain about the disparity between her salary and the

salaries of her male coworkers. The Officer made an appointment for Taylor to meet

with James L. Bacon, the Executive Assistant and second-in-command at the Arsenal.

In October of 1995, Bacon met with Taylor and told her that he would respond at a

later time. On May 9, 1996, after receiving no response for over six months, Taylor

sent Bacon a memo requesting action to correct the wage disparity and requesting a

status report. Bacon did not respond to Taylor's May 9 memo. However, in the same

general time frame that Bacon received Taylor's memo–six months after Taylor first

complained and over sixteen months after Early's placement in the MIDAS

program–Bacon's office acted to formalize and document Early's status as a GS-11

worker performing GS-7 duties. The documentation accompanying Early's change

of status indicated that the change was originally requested in November 1995, was
7

not acted upon until May 1996, became effective May 12, 1996 and was to last for

a period not to exceed 120 days. After Early's status was formalized, he was

considered a GS-11 quality assurance specialist "detailed" to a GS-7 position.

Pay above the GS-7 level that Thornton, Early, and Jones received while under

the MIDAS program was not mandated by the statutory, saved-pay provisions of 5

U.S.C. § 5362. Similarly, the out-of-grade pay received by Taylor after she left the

MIDAS program was not mandated by statute. Accordingly, it is undisputed that the

Arsenal employed a non-statutory salary retention policy for the employees involved

in this case. The details of this non-statutory policy are disputed.

Ultimately, Taylor filed a claim with the Equal Employment Opportunity

Commission followed by this suit. The district court granted summary judgment

finding no evidence to rebut the Army's assertion of the non-statutory salary retention

policy as a gender-neutral defense to Taylor's claim of discrimination.

II

Our review of the district court's grant of summary judgment is de novo. The

district court did not find, and the Army does not contend that there is an absence of

factual questions in this case. Rather, the district court and the Army assert that all

outstanding questions of fact are immaterial. Accordingly, we must examine the

record to assess the materiality of the disputed facts. In conducting this examination,

we consider Taylor's evidence to be true and draw justifiable inferences arising from

the evidence in her favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255

(1986). "If this evidence is merely colorable, or is not significantly probative,

summary judgment may be granted." Id. at 249-50 (internal citations omitted). Thus,

although Taylor does not have to provide direct proof that genuine issues of fact exist

for trial, the facts and circumstances that she relies "upon must attain the dignity of

substantial evidence and not be such as merely to create a suspicion.” Metge v.
5

29 U.S.C. §206(d)(1) states:

No employer having employees subject to any provisions of this

section shall discriminate, within any establishment in which such

employees are employed, between employees on the basis of sex

by paying wages to employees in such establishment at a rate less

than the rate at which he pays wages to employees of the opposite

sex in such establishment for equal work on jobs the performance

of which requires equal skill, effort, and responsibility, and which

are performed under similar working conditions, except where

such payment is made pursuant to (i) a seniority system; (ii) a

8

Baehler, 762 F.2d 621, 625 (8th Cir. 1985). In essence, the evidence must be “such

that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477

U.S. at 248. 

Taylor alleges gender-based discrimination under Title VII, 42 U.S.C. § 2000e2(a)(1). Because her allegations of discrimination relate solely to unequal pay for

equal work, her claim is governed by the standards of the Equal Pay Act, 29 U.S.C.

§ 206(d) (EPA). Buettner v. Arch Coal Sales Co., Inc., 216 F.3d 707, 718-19 (8th

Cir. 2000) (conducting analysis of a Title VII claim under the framework of the EPA

where the alleged discrimination related solely to unequal pay for equal work); see

also Hutchings v. International Brotherhood of Teamsters, 177 F.3d 1076, 1080-81

(8th Cir. 1999) and McKee v. Bi-State Dev. Agency, 801 F.2d 1014, 1019 (8th Cir.

1986). Under the EPA, a plaintiff must establish a prima facie case by "show[ing]

that the defendant paid male workers more than she was paid for equal work in jobs

that required equal skill, effort, and responsibility and work performed under similar

conditions." Buettner, 216 F.3d at 719. If a plaintiff makes this showing, the burden

shifts to the defendant to prove one of the affirmative defenses set forth under the

EPA. The last of the statutory affirmative defenses set forth in the EPA is a catch-all

provision that excuses pay discrepancies "based on any other factor other than sex .

. ." 29 U.S.C. §206(d)(1)(iv).5
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 . . . (emphasis added)

6

The Army argues that the burden shifting analysis of McDonnell Douglas

should apply in this Title VII unequal pay case. However the cases the Army cites

do not support its argument. See Simmons v. New Pub. Sch. Dist. No. Eight, 251

F.3d 1210, 1214-15 (8th Cir. 2001). Simmons was not exclusively an unequal pay

case. Id. (refusing to apply the burden shifting analysis to a gender discrimination

claim that was based on the non-renewal of an employment contract). Further, the

court in Simmons only applied the McDonnell Douglas analysis to a claim based on

unequal pay because there was no direct evidence that the plaintiff was paid less than

the employee chosen for comparison, her eventual replacement. Id. at 1217. In

Kindred v. Northome/Indus. Sch. Dist. No. 363, 154 F.3d 801, 803-804 (8th Cir.

1998), the court again noted that it was applying the McDonnell Douglas standard

only because the plaintiff-employee had presented no direct evidence of

discrimination under either Title VII or the Equal Pay Act. In fact, however, the court

in Kindred did not apply the McDonnell Douglas burden shifting analysis. Rather it

determined that the plaintiff-employee had not performed work that was "equal" to

the work she sought to use for comparison. Id. at 804.

9

This analytical framework differs from the McDonnell Douglas burden shifting

analysis.6

 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Under the

EPA, a defendant cannot escape liability merely by articulating a legitimate nondiscriminatory reason for the employment action. Rather, the defendant must prove

that the pay differential was based on a factor other than sex. County of Washington

v. Gunther, 452 U.S. 161, 170 (1981) ("Equal Pay Act litigation, therefore, has been

structured to permit employers to defend against charges of discrimination where

their pay differentials are based on a bona fide use of 'other factors other than sex.'").

The Army's summary judgment motion relies solely on the EPA's catch-all,

"factor other than sex" affirmative defense. 29 U.S.C. § 206(d)(1)(iv). Therefore, for

the purpose of this motion, it is undisputed that Taylor established a prima facie case

under the EPA. The Army argues specifically that the pay discrepancy resulted from
10

a non-statutory salary retention policy intended to retain skilled workers and protect

workers' salaries. The Army argues further that, like her two male and one female coworkers, Taylor was the beneficiary of the informal salary retention policy because

she was allowed to retain her GS-7 grade and salary upon her return to a lowersalaried, GS-4 position. Further, unlike the other MIDAS workers, she received and

preserved a three-grade promotion under MIDAS. The Army claims that the rationale

for such a salary retention policy is to retain skilled employees during periods of time

when their services are not required by preventing job loss and allowing employees

to perform less demanding, lower grade work without suffering a reduction in grade

or salary.

Taylor does not dispute the existence of a non-statutory salary retention policy.

She argues instead that the Army raises the non-statutory policy as a mere pretext to

hide gender-based wage discrimination. In support of her argument, she describes the

non-statutory policy not as an informal system but as a well-structured system that

requires documentation and provides a finite number of formal mechanisms for

exchanging workers between departments and positions: permanent "assignments",

formally documented but temporary "details" limited in duration to 120 days, and

undocumented, unofficial short-term borrowing or lending of labor. She asserts that

because the Army did not properly document its treatment of her co-workers in

accordance with the well structured system she describes, the Army's actions were

"subjective and loose" and questions of fact remain regarding whether the Army's

application of its policy was inconsistent and discriminatory. In essence, she argues

that sloppiness and informality in the Army's execution of its non-statutory salary

retention policy necessarily supports an inference of discrimination. 

Taylor also argues that, as a matter of law, an employer should not be allowed

to rely on prior salary or a salary retention policy as a defense under the EPA because

reliance on such factors permits the perpetuation of unequal wage structures.
11

The district court initially agreed with Taylor and denied summary judgment,

specifically finding there to be a genuine question of material fact regarding whether

Taylor's male coworkers were "detailed" or "assigned" to the MIDAS program.

However, two days after denying summary judgment, the district court issued a

second opinion in which it reversed itself. In this second opinion, the district court

did not deny the existence of Taylor's factual questions regarding the mechanisms

used for placement of her male coworkers (i.e., were the workers detailed, assigned,

or loaned to the MIDAS program). Rather, the district court determined that, even

after viewing the evidence in a light most favorable to Taylor, the outstanding

questions of fact were not material because, even if resolved in favor of Taylor, they

did not demonstrate a deviation from gender neutrality. The court stated, "Plaintiff

argues that Mr. Early was not 'detailed' and that Defendant is grossly misrepresenting

this in his briefs. I find that whether or not Mr. Early was, in fact, detailed is of little

significance. Defendant still succeeds with his defense." The district court

determined that, although Taylor had demonstrated informality at the Arsenal in the

processing of workers' movements between positions and sloppiness in the

documentation of such movements, she had not presented any evidence to rebut the

Army's claims of gender neutrality in the application of its salary retention policy. 

III.

We first address Taylor's general arguments that the subjective, informal nature

of the Army's asserted policy necessarily gives rise to an inference of discrimination

and that employers cannot rely on salary retention policies to explain unequal pay. 

This court previously has rejected the general argument that subjectivity in an

employment decision necessarily supports an inference of discrimination. See Elliot

v. Montgomery Ward & Co., 967 F.2d 1258, 1263 (8th Cir. 1992) ("[t]hat an

evaluation process contains some subjective components cannot in and of itself prove

pretext or discriminatory intent"). Accordingly, if it is permissible to rely upon a
7

See, e.g., House Comm. on Equal Pay Act of 1963, H.R. Rep. No. 309

(1963), reprinted in 1963 U.S.C.C.A.N. 687, 689:

Three specific exceptions and one broad general exception are also

listed. It is the intent of this committee that any discrimination based

upon any of these exceptions shall be exempted from the operation of

this statute. As it is impossible to list each and every exception, the

broad general exclusion has also been included. Thus, among other

things, shift differentials, restrictions on or differences based on time of

day worked, hours of work, lifting or moving heavy objects, differences

based on experience, training, or ability would also be excluded. It also

recognizes certain special circumstances, such as "red circle rates." This

term is borrowed from War Labor Board parlance and describes certain

unusual, higher than normal wages rates which are maintained for many

valid reasons. For instance, it is not uncommon for an employer who

must reduce help in a skilled job to transfer employees to other less

demanding jobs but to continue to pay them a premium rate in order to

12

salary retention policy, the unwritten nature of the policy or the presence of

subjectivity or informality in the structure or administration of the policy cannot,

standing alone, support an inference of discrimination. The underlying question of

whether it is permissible to rely upon a salary retention policy depends upon the

meaning of the "factor other than sex" affirmative defense in the EPA. 29 U.S.C. §

206(d)(1)(iv).

On its face, the EPA does not suggest any limitations to the broad catch-all

"factor other than sex" affirmative defense. The more specific factors that are

enumerated – seniority systems, merit systems, and systems that measure earnings by

quality or quantity of output – provide examples of the type of gender-neutral factors

envisioned by the legislature. Id. The legislative history supports a broad

interpretation of the catch-all exception, listing examples of exceptions and expressly

noting that the catch-all provision is necessary due to the impossibility of predicting

and listing each and every exception.7

 Given this facially broad exception, we are
have them available when they are again needed for their former jobs.

(Emphasis added).

13

reluctant to establish any per se limitations to the "factor other than sex" exception

by carving out specific, non-gender-based factors for exclusion from the exception.

While we recognize that salary retention policies might lead to wage decisions

based on factors unrelated to an individual's qualifications for a particular job, such

policies are not necessarily gender biased. As discussed in footnote 7, the relevant

legislative history recognizes that salary retention policies may serve legitimate,

gender-neutral business purposes, such as the retention of skilled workers who may

be needed in the future to perform higher level work. The Army has raised this

rationale and, in fact, Thornton, Early, and Taylor were spared from the surplus roster

due to their placement with the MIDAS program. The undisputed evidence

demonstrates that Thornton, Early, Taylor, and Jones were retained as employees at

the Arsenal and all four returned to positions graded at or above their prior salary

grades following their placements with the MIDAS program.

Further, although we recognize that an employer might apply a salary retention

policy in a discriminatory fashion or use such a policy as a vehicle to perpetuate

historically unequal wages caused by past discrimination, these potential abuses do

not provide valid bases to adopt a per se rule that declares all salary retention

practices inherently discriminatory. Rather, these risks simply highlight the need to

carefully examine the record in cases where prior salary or salary retention policies

are asserted as defenses to claims of unequal pay. In particular, it is important to

ensure that employers do not rely on the prohibited "market force theory" to justify

lower wages for female employees simply because the market might bear such

wages. See Corning Glass Works v. Brennan, 417 U.S. 188, 205 (holding that,

although women may have been willing to work for lower wages than men and

market forces therefore dictated that an employer could pay women less than men,
14

reliance on such a market force theory "nevertheless became illegal once Congress

enacted into law the principle of equal pay for equal work."). In addition it is

important to ensure that reliance on past salary is not simply a means to perpetuate

historically lower wages. Kouba v. Allstate Ins. Co., 691 F.2d 873, 876 (9th Cir.

1982) (stating that "a factor like prior salary . . . can easily be used to capitalize on the

unfairly low salaries historically paid to women"). 

In conducting this examination, our concern is not related to the wisdom or

reasonableness of the asserted defense. It is related solely to the issue of whether the

asserted defense is based on a "factor other than sex." 29 U.S.C. § 206(d)(1)(iv). We

"'do not sit as a super-personnel department that re-examines an entity's business

decisions.'" Kipp v. Mo. Highway and Trans. Comm'n., 280 F.3d 893, 898 (8th Cir.

2002). As such we are reluctant to establish a per se rule that might chill the

legitimate use of gender-neutral policies and practices. In this regard, we reach the

same conclusion as the Seventh Circuit which refused to adopt a per se rule that

would exclude salary retention or past salary as qualifying "factors other than sex."

Covington v. Southern Illinois Univ., 816 F.2d 317, 322-323 (7th Cir. 1987). 

In Covington, the Seventh Circuit determined that a university's salary

retention policy, differences in education, and differences in experience were all

qualifying factors other than sex under 29 U.S.C. § 206(d)(1)(iv). The Covington

court stated:

We conclude that SIU's salary retention policy qualifies as a factor other

than sex. We do not believe that the EPA precludes an employer from

implementing a policy aimed at improving employee morale when there

is no evidence that that policy is either discriminatorily applied or has

a discriminatory effect. Although we realize that a plaintiff need not

establish discriminatory intent to recover under the EPA, we do not

believe that the Act precludes an employer from carrying out a policy

which, although not based on employee performance, has in no way

been shown to undermine the goals of the EPA.
15

Id. at 322. Similarly, the Ninth Circuit has held that, "the Equal Pay Act does not

impose a strict prohibition against the use of prior salary." Kouba, 691 F.2d at 878.

In Kouba, the Ninth Circuit found that the per se rejection of reliance on prior

salary as a factor other than sex would be inconsistent with Congress's decision to

adopt a broad, catch-all affirmative defense. However, the court in Kouba ultimately

remanded the case to the district court to determine whether the employer's

consideration of past salary was reasonable. The court stated, "[a] pragmatic

standard, which protects against abuse yet accommodates employer discretion, is that

the employer must use the factor reasonably in light of the employer's stated purpose

as well as its other practices." Id. at 876-77. Therefore although the court in Kouba

refused to adopt a bright line rule against reliance on salary retention or past salary

as factors other than sex, it was willing to sit in review of the employer's decisions.

This "reasonableness" level of review is greater than that provided in the Seventh

Circuit and greater than that which we believe to be required under Title VII and the

EPA. As noted above, we do not sit as a "super personnel department" and we do not

review the wisdom of an employer's chosen means to accomplish its goals. Like

Kouba, we believe a careful review of the record is required. However, we would

limit that review to a search for evidence that contradicts an employer's claims of

gender-neutrality.

In contrast to Covington and Kouba, the Eleventh Circuit in Glenn v. General

Motors Corp., 841 F.2d 1567, 1570 (11th Cir. 1988) did state a bright line prohibition

against reliance on prior salary except in limited, exigent circumstances. In Glenn,

the pay discrepancy arose from a facially non-discriminatory policy purportedly

intended to promote the switch of hourly employees to salaried positions. Under the

policy, General Motors guaranteed hourly employees that they would not suffer a

drop in pay if they would switch from hourly to salaried positions. As a result of the

policy, some male employees who switched to salaried positions received higher
16

wages than newly hired, female salaried employees and female salaried employees

who had not switched from hourly positions. The court in Glenn rejected GM's policy

as an affirmative defense stating that GM was attempting to rely on a "market force

theory", i.e., a theory based on the belief that labor market supply and demand

dictates that women may be paid less than men. Glenn, 841 F.2d at 1570 (citing

Corning Glass Works, 417 U.S. at 205). 

The Glenn court found further support for its position by adopting a limited

reading of the legislative history that we quote above at Note 7. House Comm. on

Equal Pay Act of 1963, H.R. Rep. No. 309, reprinted in 1963 U.S. Code Cong. &

Admin. News 687, 689 ("For instance, it is not uncommon for an employer who must

reduce help in a skilled job to transfer employees to other less demanding jobs but to

continue to pay them a premium rate in order to have them available when they are

again needed for their former jobs."). Glenn interpreted the reference to the retention

of skilled workers as only applying in special exigent circumstances. Glenn, 841 F.2d

at 1571 ("The legislative history thus indicates that the 'factor other than sex'

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.") (emphasis added). Therefore, while

falling short of an outright prohibition on the consideration of prior salary, Glenn

established a rule that would reject reliance on prior salary (or any other factor

unrelated to a particular applicant's qualifications or a particular job's requirements)

except in situations where the employer demonstrates that the pay discrepancy was

required by a business exigency. 

We do not adopt the Glenn court's narrow reading of the EPA's legislative

history. Rather, we believe a case-by case analysis of reliance on prior salary or

salary retention policies with careful attention to alleged gender-based practices

preserves the business freedoms Congress intended to protect when it adopted the

catch-all "factor other than sex" affirmative defense. To conduct a reasonableness
17

inquiry into the actions of the employer or to limit the application of a salary retention

policy to only exigent circumstances would, we believe, unnecessarily narrow the

meaning of the phrase "factor other than sex." Accordingly, we reject Taylor's

argument that a salary retention policy cannot serve as a factor other than sex.

Having done so, we must examine the record and the alleged questions of fact

surrounding the Army's asserted defense.

IV.

Our review of the record leads to the conclusion that the outstanding issues of

fact raised by Taylor are immaterial and that summary judgment is appropriate.

Evans, the position classification specialist with the Arsenal, stated in her declaration:

When we lose funding which impacts the jobs being performed, we do

our best to ensure that employees have another job at the Arsenal and do

not suffer a pay cut. When the only positions open are at a lower pay

grade, we frequently detail these employees to these positions so that

their pay is not reduced and so they can remain gainfully employed.

Appellant's App. at 40. Evan's representation summarizes the Army's affirmative

defense. The Army claims that more highly paid employees may be informally placed

in less demanding, lower salaried positions while retaining their higher salaries and

that such downward placements may occur without documentation and without time

limitations on the placements. Examining the Army's treatment of employees in this

case, this non-statutory salary retention policy is consistent with the undisputed

evidence and with the Army's claims of gender neutrality. Taylor, Early, Thornton,

and Jones – the male and female MIDAS workers – all retained their salaries when

placed in the MIDAS program and maintained their salaries upon transfer from the

program. The Army's described policy was applied to preserve their employment 
18

status (placement in the MIDAS program rather than exposure to the risks of being

named on the surplus roster) to preserve their salaries, and, in the case of Taylor, to

preserve her promotion.

That having been said, a careful review of the record and consideration of the

reasonable inferences supported by the record do reveal uncertainty regarding

application of the Army's non-statutory salary retention policy. However, this

uncertainty does not "attain the dignity of substantial evidence" and rather is "such

as merely to create a suspicion.” Metge, 762 F.2d at 625. 

Evans and other witnesses who were deposed or who testified at the EEOC

hearing conceded that the Army did, in fact, have a structured, non-statutory salary

retention policy. Under this policy, the term "detail" was a technical term of art

defined as an out-of-grade placement that did not impact grade or salary and that was

not to exceed 120 days. A detail was a personnel action that required documentation

and differed from a permanent assignment or an informal, short term exchange of

borrowed labor between departments or positions. Evans explained that the purpose

for documenting and limiting the duration of details to 120 days was to ensure that

the placement of lower grade workers in higher grade positions (upward details)

occurred through advertised competitive processes that afforded advancement

opportunities to lower grade employees (rather than through "details" of extended

duration that necessarily would result in a noncompetitive process of appointments

without advertisement). 

Consistent with this explanation, Evans stated that the Department of the Army,

at some time during 1994, sent a memo instructing that, because of downsizing and

an inability to process paperwork, documentation and time limits were no longer

required for details involving the placement of higher-grade workers in lower-grade

positions (downward details). As Evans explained, there were no competitive

concerns at issue with downward details so the justification for time limits did not
8

Evans testified as follows:

The primary purpose that you would want to watch for a detail

would be that you're not detailing someone to higher graded

positions, and that you're limited by only being able to detail them

for a hundred and twenty (120) days, non-competitively. If it's to

the same grade or to a lower grade, there's no advantage to the

employee or to management other than documenting that. Now,

then, the CPOC, that's the South Central Region, has discouraged

our even processing formal details because of their downsizing,

for two (2) reasons: one, because they downsized; they really

don't have the staff. If it's not going to affect the pay, why do it?

So, they've asked us, unless we just absolutely think we need to,

don't do a detail because they don't have the staff, and they're

servicing 36,000 employees; and, number two, there are interface

problems between the Personnel Data System and the Payroll

Data System, so in order to cut down any possible glitches that

could occur between those systems, we try not to process any

paperwork unless it's necessary.

EEOC hearing transcript, 122-23.

9

Evans further testified:

Q. And then what was the nature of their – and I hate to use the

word, detail, but what was the nature of their assignment to a

lower grade? Can you explain why that was done and what the

result was?

A. I guess just to document that they were doing those duties. I

mean, it's to no advantage to them or disadvantage to them

because details are frequently used throughout the Arsenal; and,

in fact, a lot of times we have a lot of people on what we call

loaned and borrowed labor, where there is no detail done at all, no

19

apply.8

 Finally, the Army presented evidence of other workers similarly placed in

lower grade positions.9
documentation whatsoever.

Q. Are there some members of the Arsenal, even today, who have

been quote, detailed, and I'm saying they're working at another

lower grade?

A. There are –

Q. Can you give me some examples?

A. There are many people on this Arsenal who are not even

detailed at all, and there are at least nine (9) people on the Arsenal

currently that are officially detailed. But, for example, we have

about four (4) employees, let's see, Lock Burns, Carolyn DeVoss,

and Paulette Christy, who are on another, doing totally different

jobs than what their original function is, and it hasn't affected

their pay; but they're working on the MEO because of the A-76 of

ours being contracted out. Myself, along with may other

employees several years ago were on a reorganization team, none

of us were detailed, but our duties totally changed.

E.E.O.C. Hearing Transcript at 124-25.

20

Taylor argues that Evans' explanation is contradicted by the Army's actions in

this case. Specifically, she notes that approximately 16 months after Early was placed

in the MIDAS program, he was "officially" detailed to the GS-7 position. According

to Taylor, the official detail occurred when his placement was documented as a detail.

She argues that the documenting of this detail and the imposition of a 120 day limit

would not have been necessary under the informal salary retention policy claimed by

the Army. Taylor also argues that the Army's after-the-fact compliance with the

documentation and post-hoc imposition of a time-limit requirement belie the sincerity

of its defense and create a question of fact regarding whether or not Early was

actually detailed.
21

In addition, Taylor attacks the timing and manner in which the Army formally

processed Early's change in status. The documentation surrounding Early's change

in status indicates that the official documentation of his detail was requested in

November 1995, after Taylor's meetings with the EEOC Officer and Bacon, and over

nine months after Early's placement with MIDAS. The request was not acted upon

until May 1996. Bacon's signature approving the request is undated and the change

in status did not become effective until May 12, after Bacon's receipt of Taylor's

follow-up memo. However, there is no dispute surrounding the fact that Early had,

since the commencement of MIDAS work under the Directorate of Product

Assurance, performed work as a MIDAS program worker. The post-hoc

documentation of this fact, while arguably suspicious, did nothing to alter his status,

duties, or pay in any manner.

While the Army's actions concerning the documentation of Early's status

following Taylor's initial voicing of a grievance may be suspicious, we cannot find

that these actions rise above the level of being merely suspicious. Even when

properly viewed in a light most favorable to Taylor, there is no basis upon which to

infer a departure from gender neutrality. We believe the district court correctly

determined that the technical details concerning the processing of the MIDAS

employees are immaterial. Even if a finder of fact were to focus on the Army's

actions concerning the after-the-fact documentation of Early's status and the timing

of these actions, no reasonable finder of fact could reject the undisputed evidence

concerning the actual treatment of the employees in this case and the benefits

received by these employees. In short, we agree with the district court that Taylor,

as the non-moving party, failed to present evidence “such that a reasonable jury could

find a verdict" in her favor. Anderson, 477 U.S. at 248. 

The judgment of the district court is affirmed.
22

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.