UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

KIMBERLY LAUTERBORN, :

:

 Plaintiff : No. 4:CV-05-0541

:

vs. : (Complaint filed 03/17/05)

:

R & T MECHANICAL, INC., : (Judge Muir)

:

Defendants : 

ORDER

January 3, 2006

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

On March 17, 2005, Plaintiff Kimberly Lauterborn initiated

this action by filing a complaint in which she alleges that

Defendant R & T Mechanical, Inc. (hereinafter “R & T

Mechanical”), violated the Federal Equal Pay Act and the

Pennsylvania Equal Pay Law. 

On December 1, 2005, R & T Mechanical filed a motion for

summary judgment and a supporting brief. In its motion R & T

Mechanical states that the motion was filed “in accordance with

F.R.C.P. 1286.” The reference to Rule 1286 is erroneous because

no such Federal Rule of Civil Procedure exists. On December 2,

2005, R & T Mechanical filed an amended summary judgment motion

to correct the error and to refer to the proper rule, Federal

Rule of Civil Procedure 56. Lauterborn filed a brief opposing

the summary judgment motion on December 16, 2005. R & T

Mechanical filed its reply brief on December 23, 2005, thereby

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ripening for disposition its summary judgment motion.

Summary judgment is appropriate only when there is no

genuine issue of material fact which is unresolved and the moving

party is entitled to a judgment as a matter of law. Fed. R. Civ.

P. 56(c). Summary judgment should not be granted when there is a

disagreement about the facts or the proper inferences which a

fact finder could draw from them. Peterson v. Lehigh Valley Dist.

Council, 676 F.2d 81, 84 (3d Cir. 1982). “When a motion for

summary judgment is made and supported as provided in ...[Rule

56], an adverse party may not rest upon mere allegations or

denials of the adverse party’s pleading....” Fed. R. Civ. P.

56(e).

Initially, the moving party has a burden of demonstrating

the absence of a genuine issue of material fact. Celotex

Corporation v. Catrett, 477 U.S. 317, 323 (1986). This may be

met by the moving party pointing out to the court that there is

an absence of evidence to support an essential element as to

which the non-moving party will bear the burden of proof at

trial. Id. at 325. 

Rule 56 provides that, where such a motion is made and

properly supported, the adverse party must show by affidavits,

pleadings, depositions, answers to interrogatories, and

admissions on file that there is a genuine issue for trial. Fed.

R. Civ. P. 56(e). The United States Supreme Court has commented

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that this requirement is tantamount to the non-moving party

making a sufficient showing as to the essential elements of their

case that a reasonable jury could find in its favor. Celotex

Corporation v. Catrett, 477 U.S. 317, 322-23 (1986).

When addressing a motion for such a judgment, our inquiry

focuses on “whether the evidence presents a sufficient

disagreement to require submission to the jury or whether it is

so one-sided that one party must prevail as a matter of law.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52

(1986)(emphasis added). As summarized by the Advisory Committee

On Civil Rules, “[t]he very mission of the summary judgment

procedure is to pierce the pleadings and to assess the proof in

order to see whether there is a genuine need for trial.” Fed. R.

Civ. P. 56 advisory committee note to 1963 Amendment.

Before discussing the substantive merit’s of the summary

judgment motion, one preliminary threshold matter needs to be

addressed. Lauterborn argues that R & T Mechanical’s motion

should summarily be denied because it was filed after the

December 1, 2005, deadline for dispositive motions. This

argument has merit only if the original motion filed on that date

is disregarded, and the amended summary judgment motion filed on

December 2, 2005, is considered to be the only one on the docket.

Lauterborn has given us no reason to ignore the motion filed

by R & T Mechanical on December 1, 2005. Surely no prejudice has

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befallen Lauterborn as a result of the filing of the amended

summary judgment motion on December 2, 2005. Although we

consider the original motion to have been superseded by the

amended motion for summary judgment, the filing of the original

motion was within the deadline set for dispositive motions. 

Consequently, we will deny the initial summary judgment motion

because it has been superseded, and will proceed to address the

merits of the amended motion for summary judgment.

The United States Supreme Court has stated that in order to

prevail on a claim brought under the Federal Equal Pay Act a

plaintiff is required to prove “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.’” Corning Glass Works v. Brennan, 417 U.S. 188, 195,

94 S.Ct. 2223, 2228 (1974)(quoting 29 U.S.C. § 206(d)(1)).

R & T Mechanical first contends that it is entitled to

summary judgment with respect to Lauterborn’s Federal Equal Pay

Act claim because she is unable to 

set forth facts sufficient to proceed to trial on her claim

that she performed equal work to her male counterparts but

was paid less than her male counterparts in violation of the

Equal Pay Act[.]

(Brief in Support of Summary Judgment Motion, p. 5) 

The undisputed material facts establish that Lauterborn was

employed by R & T Mechanical from June 8, 1994, to some point in

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July of 2004. Lauterborn was initially paid $9.00 per hour

(which was the amount she requested when hired), and received

raises over time which increased her wages to $12.25 per hour by

the time her employment with R & T Mechanical ended. All persons

working for R & T Mechanical were classified as laborers.

However, in addition to those facts, it is necessary to

consider how Lauterborn’s pay compares to that of her male coworkers who performed “equal work on jobs the performance of

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

are performed under similar working conditions.” 29 U.S.C. §

206(d)(1).

Lauterborn submitted the affidavit of Arthur Weiler, Jr., in

connection with her brief opposing the summary judgment motion. 

In his affidavit Weiler represents the following:

1. [H]e was employed by R & T Mechanical from February 5,

1997, to July 19, 2004.

2. When [he] last worked at R & T Mechanical [he] held the

position of General Supervisor and reported directly to

the Plant Manager.

3. As General Supervisor [he] was aware of the employee

rates of pay and each employee’s job responsibilities.

4. During the time that [Lauterborn] worked for R & T

Mechanical she earned less than male employees who

performed the same work that she performed.

5. Even though [Lauterborn] performed work that required

equal skill, effort, and responsibility as her male coemployees, she was paid less than her male coemployees.

6. The following male employees are some of those who were

paid more than [Lauterborn] for performing equal work:

Eric Potter, Dennis Williams, Greg Setzer, Jamie

Burros, Terry Roloson, Greg Naggy, Roger Hurd, and Adam

Antwell.

7. The difference in pay between [Lauterborn] and her male

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co-employees was not a result of the male employees’

experience, education, or qualifications because almost

all R & T Mechanical employees were trained “in-house.”

(Affidavit of Arthur Weiler, Jr., pp. 1-2) R & T Mechanical

asserts various arguments in its reply brief in an attempt to

discount the significance Weiler’s affidavit. However, none of

those arguments relates to the admissibility of the facts set

forth therein; instead, R & T Mechanical’s points relate to the

weight which a finder of fact may ascribe to Weiler’s assertions.

We are of the view that the facts set forth in Weiler’s

affidavit are material and create sufficient factual disputes to

warrant a denial of R & T Mechanical’s amended motion for summary

judgment. Perhaps most significant is the parties’ dispute with

respect to which employees may be considered to have been in

sufficiently comparable positions to Lauterborn. 

While R & T Mechanical contends that only Setzer’s and

Burros’s wages may be compared to Lauterborn’s, Lauterborn argues

that every employee referenced in Weiler’s affidavit should be

considered. That dispute, in and of itself, precludes the entry

of summary judgment in favor of R & T Mechanical. See Gardner v.

Blue Mountain Forest Ass’n, 902 F. Supp. 14, 17-18 (D.N.H.

1995)(denying defendant’s motion for summary judgment because the

question of whether certain “tasks constitute ‘equal work on jobs

the performance of which requires equal skill, effort, and

responsibility’ ... plainly constitutes a genuine issue of

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material fact.”). We will deny R & T Mechanical’s amended motion

for summary judgment as it relates to liability on Lauterborn’s

federal Equal Pay Act claim.

R & T Mechanical’s only other contention in its amended

summary judgment motion is that the period for which Lauterborn

may recover, if at all, is limited to the two years immediately

preceding the filing of the complaint in this action. In her

complaint Lauterborn seeks damages from the time her employment

with R & T Mechanical commenced in 1998.

The federal regulations promulgates pursuant to the Equal

Pay Act provide that “[a] 2-year statute of limitations applies

to the recovery of unpaid wages, except that an action on a cause

of action arising out of a willful violation may be commenced

within 3 years after the cause of action accrued. 29 C.F.R.

§1620.33(b). Because Lauterborn’s claims are not based on any

allegedly willful violation, the two-year statute of limitations

applies.

Lauterborn contends that she may recover for a period longer

than two years because R & T Mechanical’s alleged violations of

the Equal Pay Act constitute an ongoing violation. The Court of

Appeals for the Third Circuit has held that 

[s]ex-based, discriminatory wage payments constitute a

continuing violation of the Equal Pay Act .... To hold

otherwise would permit perpetual age discrimination by an

employer whose violation of the Equal Pay Act had already

lasted without attack for over two years.

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Carenas v. Massey, 269 F.3d 251, 257 (3d Cir. 2001). Under such

circumstances “each paycheck she continue[d] to receive

constitutes an alleged violation.” Ryan v. General Machine

Products, 277 F. Supp. 2d 585, 596 (E.D. Pa. 2003)(Finch, C.J.). 

The continuing violation theory relates to when a plaintiff

is required to file her lawsuit after an alleged violation of the

Equal Pay Act has occurred. There is no authority to support

Lauterborn’s proposition that the continuing nature of the

alleged violation alters the standard two-year period set forth

in the statute. 

We will grant R & T Mechanical’s amended motion for summary

judgment to the extent that the period for which Lauterborn may

recover, if at all, is limited to the two years preceding the

filing of her complaint.

NOW, THEREFORE, IT IS ORDERED THAT:

1. R & T Mechanical’s initial motion (Document 17) for

summary judgment is denied because it has been

superseded by the amended motion for summary judgment.

2. R & T Mechanical’s amended motion (Document 19) for 

summary judgment is denied in part and granted in part

as provided in paragraphs 3 and 4 of this order.

3. Any recovery by Lauterborn on her federal Equal Pay Act

claim shall be limited to the two-year time period

preceding the filing of this action.

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4. R & T Mechanical’s amended motion for a summary

judgment is denied in all other respects.

s/Malcolm Muir 

MUIR, U.S. District Judge

MM:ga

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