Nixon v. State

⁴⁸⁹ CATHELL, Judge. Appellant, Lois T. Nixon, appeals from an order of the Circuit Court for Howard County in favor of the State of Maryland, appellee. Appellant presents four questions which we rephrase as follows: I. Did the trial court err in finding that appellant and her “comparator” did not perform work of comparable character or comparable skill?

II

Did the trial court correctly find that the State met its burden in establishing that the salary differentials were based upon a merit system which does not discriminate on the basis of sex?

III

Did the trial court err in finding that all claims arising more than three years prior to the filing of the instant case were barred by the statute of limitations contained in Annotated Code of Maryland, section 3-307(c) of the Labor and Employment article? 1 IV. If this case is remanded, should the appellee be equitably estopped from attempting to introduce evidence concerning the setting of pertinent salaries in 1973? Facts Appellant began her employment as an instructor with Coppin State College (hereinafter “Coppin”) in 1971. She testified that she was told by Coppin that she would not be promoted until she received a doctorate degree.

Appellant further testified that prior to her enrollment in the doctoral program of Union Graduate School (hereinafter “Union”), she had received written assurance from Dr. Calvin Burnett at Coppin that her degree from Union would be “accepted.” Union was unaccredited at the time appellant enrolled and remained unaccredited until 1985. In 1977, appellant received ⁴⁹⁰ a doctorate degree from Union and was promoted to assistant professor. 2 Since the time that Dr. Burnett assured appellant in 1971 that her degree from Union would be “accepted” at Coppin, the Board of Trustees changed their policy regarding promotions and degrees from institutions that were unaccredited and refused to accept degrees from unaccredited institutions for promotional purposes in respect to associate or full professorships. Colonel T. Hawkins was hired by Coppin as an assistant professor in 1973. At that time he did not have a doctorate degree, but he had completed two years in a doctoral program at the University of Pittsburgh, an accredited institution.

He was also working on a doctoral dissertation and had taught classes for one year at Bowie State College. Dr. Hawkins was promoted to associate professor in 1983 upon the receipt of his doctorate degree. Appellant filed a request for promotion to associate professor in 1982, which was denied because Union remained unaccredited. Coppin, however, did promote appellant to associate professor upon Union’s accreditation in 1985.

Appellant filed the present suit alleging a violation of Maryland’s Equal Pay for Equal Work Act (Maryland Act) 3 on September 8, 1987. The Maryland Act generally prohibits gender-based wage discrimination between employees of different sexes. It contains exceptions relating to seniority, shifts, merit systems, ability, and work classifications. Generally, appellant alleged discrimination based on her perception of the higher salary of Dr. Hawkins, alleged by her to be doing work of comparable character.

On June 27, 1992, the court granted, in part, the State’s motion for summary judgment and dismissed appellant’s claims arising out of conduct by the State that did not occur within three years prior to the ⁴⁹¹ filing of her complaint. On July 8,1992, a court trial was held on the remaining claims. During the trial, the trial court prevented appellant from introducing evidence regarding the hiring and promotion requirements to assistant professor for the 1973 year. The court entered judgment in favor of appellee, opining: I don’t find that Dr. Hawkins and the Plaintiff performed work of comparable character.... [B]ut even assuming for the sake of argument, that they do ... perform comparable work requiring comparable skills, clearly I find by a preponderance, that the State has established by a preponderance of the evidence that the salary differential is based on a provision of the statute, one of the exceptions of the statute.

That it’s clearly based, evaluation or variation in salary is based upon a merit system.... [Tjhat doesn’t discriminate on the basis of sex. We affirm the trial court. We shall supply further facts as necessary. I. Appellant argues that the trial court erred in finding that she and Dr. Hawkins did not perform work of comparable character or comparable skill.

We hold that the evidence presented in this case clearly supports the judgment of the trial court. The standard of review for court trials is well-established. Maryland Rule 8 — 131(c) provides that in an action tried without a jury, an appellate court “will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses.” See also Reisterstown Plaza Assocs. v. General Nutrition Ctr., Inc., 89 Md.App. 232, 240 , 597 A.2d 1049 (1991). “Unless the factual findings of the trial court are clearly erroneous, an appellate court may not arrive at different factual conclusions. If there is any competent material evidence to support the factual findings of the trial court, those findings cannot be held to be clearly errone ⁴⁹² ous.” Fantasy Valley Resort, Inc. v. Gaylord Fuel Corp., 92 Md.App. 267, 275, 607 A.2d 584 (1992) (citation omitted).

Appellant contends in her brief that: What is significantly different about the Maryland Act, if it is analyzed according to the federal model, is that a prima facie case is made out by a showing of “work of comparable character or work on the same operations, business or type of work in the same establishment”, while the prima facie case under the federal EPA requires “equal skill, effort, and responsibility”. The Maryland Act, by contrast, appears to allow the defendant employer to defeat the claim by showing that the subject work requires “different skill or ability, different duties or services performed regularly”. Appellant argues that she has made a prima facie showing of work of comparable character as required by the Maryland Equal Pay Act. Md.Code Ann., Lab. & Emp. § 3-304 (1991).

She further contends that appellee has failed to rebut her prima facie showing. We hold that appellant failed to establish a prima facie case under the Maryland Act. We explain. The Maryland Equal Pay Act provides as follows: (a) In general. — An employer may not discriminate between employees in any occupation by paying a wage to employees of 1 sex at a rate less than the rate paid to employees of the opposite sex if both employees work in the same establishment and perform work of comparable character or work on the same operation, in the same business, or of the same type.

(b) Effect of requirement. — Subsection (a) of this section does not prohibit a variation in a wage that is based on: (1) a seniority system that does not discriminate on the basis of sex; (2) a merit increase system that does not discriminate on the basis of sex; (3) jobs that require different abilities or skills; (4) jobs that require the regular performance of different duties or services; or ⁴⁹³ (5) work that is performed on different shifts or at different times of day. Lab. & Emp. § 3-304(a) and (b). Appellant relies extensively on the federal case interpretations as persuasive authority for her contentions as to the alleged violations of the Maryland Act. The standard for establishing a prima facie case under the Federal Equal Pay Act is well-settled: [T]he plaintiff is required to prove at trial “that an employer pays different wages to employees of 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.’ ” Schwartz v. Florida Bd. of Regents, 954 F.2d 620 , 623 (11th Cir.1991) (quoting Corning Glass Works v. Brennan, 417 U.S. 188, 195 , 94 S.Ct. 2223, 2228 , 41 L.Ed.2d 1 (1974), quoting 29 U.S.C. § 206 (d)(1)). “Once the plaintiff has established a prima facie case, the burden shifts to the employer to prove that the difference in pay is justified by one of the four exceptions to the Equal Pay Act: (i) a seniority system; (ii) a merit pay system; (iii) a system which measures earnings by a quantity or quality of production; or (iv) a differential based on any factor other than sex.

If the employer establishes that the disparity is justified by one of these exceptions then the plaintiff must come forward with affirmative evidence that indicates that the proffered reason for the disparity is actually a pretext for sex discrimination.” Schwartz, 954 F.2d at 623 (quoting Brock v. Georgia Southwestern College, 765 F.2d 1026, 1036 (11th Cir.1985)) (citation omitted). In Schwartz, a male professor who taught courses in the College of Education at Florida State University filed suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. section 2000e et seq., and the Federal Equal Pay Act. He alleged that female professors in the same department were paid a higher salary than comparable male professors because ⁴⁹⁴ the male professors were not permitted to participate in a certain academic study. The Court held that the District Court’s finding that the salary disparity resulted from factors other than sex was not clearly erroneous. 954 F.2d at 623.

The discretionary raises were based upon certain factors: “outstanding service to the university, administrative duties, publications, research, supervision of doctoral students, and performance.” 954 F.2d at 623. The Court further held that the plaintiff was not entitled to relief under Title VII because even if he had been allowed to participate in the academic study, he would not have received a pay adjustment because his salary differential was not the result of sex discrimination. 954 F.2d at 624. See also Brock, 765 F.2d at 1033-34 (holding “that plaintiff can meet its burden of going forward by showing that the teachers compared are in the same discipline and that their job is to teach classes to students in that discipline.”) (footnote omitted); Hassman v. Valley Motors, Inc., 790 F.Supp. 564, 568-69 (D.Md.1992) (holding that where evidence supported conclusions that male co-workers of female claimant performed duties requiring greater skill and responsibility, that her male counterparts were significantly more experienced and qualified, and where defendant established a legitimate non-discriminatory reason for the wage differential and plaintiff failed to show by a preponderance of the evidence that the proffered excuse was pretextual, plaintiffs claims under the sex discrimination provisions of Title VII, the Federal Equal Pay Act, and the Maryland Equal Pay Act were without merit). In the case sub judice, appellant failed to establish a prima facie showing that her duties required equal skill, effort, and responsibility.

Moreover, she failed to make a prima facie showing that she and Dr. Hawkins performed work of comparable character. At trial, appellant testified on her own behalf and called only one witness, Dr. Hawkins. She testified regarding her qualifications, duties, and responsibilities as an employee of Coppin. Since 1984, appellant testified (1) that she had taught six to eight undergraduate and graduate courses in the Special Education Department; (2) that she had ⁴⁹⁵ served on several college-wide committees; (3) that she had been involved in community activities with the Baltimore City Public Schools; (4) that she had never published a single academic paper or article while employed at Coppin; (5) that she was not qualified to teach in the Department of Health and Physical Education; (6) that she did not feel that she had the expertise to teach two courses in Special Education, Measurement and Evaluation; (7) that Dr. Hawkins had split his time teaching in the Departments of Special Education and Health and Physical Education, and (8) that Dr. Hawkins was involved in grant research.

The State called Dr. Hawkins, President Calvin W. Burnett, and Dr. George Taylor as witnesses. Dr. Hawkins testified (1) that he had taught courses in the Special Education Department, including Measurement and Evaluation; (2) that he had taught courses in the Department of Health and Physical Education; (3) that his work included an assignment to the Office of Institutional Research to do research for grants, and (4) that he has authored or co-authored nine published papers while employed at Coppin. When asked at trial which skills were required for Dr. Hawkins’s job that were not required for appellant’s, Dr. Taylor testified (1) that appellant had not received any instruction on the graduate level in measurement and evaluation; (2) that Dr. Hawkins had done a considerable amount of grant writing, had coordinated those grants, and was responsible for at least two or three grants in Special Education, and (3) that appellant had no training in the field of Health and Physical Education and was therefore not qualified to teach in that department. Clearly, appellant’s work was not of comparable character.

Nor did their jobs require equal skill, effort, or responsibility. Dr. Hawkins was qualified to teach in two departments, while appellant was qualified to teach in only one. Dr. Hawkins was involved in coordinating research grants and authored or coauthored numerous academic publications, whereas appellant ⁴⁹⁶ had no involvement in either activity. The trial court did not err in finding that their work was not of comparable character.

II

Appellant argues that “[t]he trial court erred in concluding that the wage disparities complained of resulted from the permissible, operation of Defendant’s merit system.” The trial court’s finding that the State established by a preponderance of the evidence that the pay disparity was based upon a merit system that did not discriminate upon the basis of sex cannot be reversed on appeal unless clearly erroneous. Md.Rule 8-131(c); Fantasy Valley, 92 Md.App. at 275 , 607 A.2d 584 ; Reisterstown Plaza, 89 Md.App. at 240 , 597 A2d 1049 . We hold that the evidence before the court clearly supports its finding that the salary disparities were based upon a merit system that did not discriminate on the basis of sex. As previously stated, the Maryland Equal Pay Act provides the following exceptions for wage disparities: (b) Effect of requirement. — Subsection (a) of this section does not prohibit a variation in a wage that is based on: (1) a seniority system that does not discriminate on the basis of sex; (2) a merit increase system that does not discriminate on the basis of sex; (3) jobs that require different abilities or skills; (4) jobs that require the regular performance of different duties or services....

Lab. & Emp. § 3-304(b). President Burnett testified (1) that the method of setting faculty salaries is based upon written guidelines promulgated by the Board of Trustees of the State Universities and Colleges of Maryland; (2) that he does not have the power to deviate from the Board of Trustees’ requirements; and (3) that the Coppin State College Appointment Rank and Tenure (A.R.T.) document contained a paragraph describing the merit ⁴⁹⁷ pay system as well as the written criteria used in the compensation and promotion of faculty at Coppin during the period in question. Dr. George Taylor testified regarding the merit pay criteria and procedures for promoting faculty employees at Coppin. The criteria included: “teaching, scholarly research, service in department division, college at large, [service] on community councils, scholarly presentations and continuing their scholarly preparation.” (Emphasis added).

He further testified that appellant applied for a promotion and a merit pay increase for the 1985-86 and 1986-87 years, but her application was disapproved because she had not met the scholarly research component. Specifically, “[s]he had not published.... ” Significantly, Dr. Hawkins’s 1986-87 application for a merit pay increase was also denied because at that time he had not published and had not been active in professional organizations. The criteria used in awarding merit pay for the 1987-89 years was based on the criteria discussed above, but also required “documented evidence of outstanding performance and demonstrated excellence, in three or more of the following areas____ [T]eaching ... scholarly research and creative productions ... service in professional scholarly organizations ... service on Community Council Boards ... scholarly presentations ... [and] continuing scholarly preparation enhancement.” (Emphasis added.) Dr. Taylor again testified that appellant’s request for a merit pay increase for the 1987-88 years was denied because “[s]he had not met the published criteria.... She did not meet the publication, service in department, division, college at large.

She did not meet scholarly presentation to community groups, nor scholarly preparation. She did not meet teaching and service on community board.” Appellant’s request for merit pay for the 1988-89 years was denied for the same reasons. Regarding appellant’s applications for merit pay increases over the years, Dr. Taylor further commented: Well in my opinion, as I had indicated, Dr. Nixon’s teaching skills are superb and if promotion and merit pay ⁴⁹⁸ was based solely upon those, that factor, she would, she would have been promoted. If one looks at Dr. Hawkins’ publications and involvement in professional societies and meetings, as well as his publication, we would have to tilt the scales in his favor when it came to academic preparations.

When asked why appellant was not granted a merit pay increase when the A.R.T. in effect during the times in question “simply stated you had to meet three” criteria, Dr. Taylor responded: . ... [I]t’s a weighted scale and you need at least fifty points and I think teaching is forty and you have to pick up ten points otherwise. And— Q. What factor in the A.R.T. policy would she not have fulfilled in her— A Publications, community involvement, professional organizations and-so forth. Q. In your consideration of the criteria under the A.R.T. policy and evaluating Dr. Nixon’s application for merit and promotion, what factor did gender, did gender play in your evaluation? A. None.

The evidence before the trial court clearly supports its finding that the merit system was based on criteria that did not discriminate on the basis of sex. Appellant consistently failed to satisfy the requirements set by the Board of Trustees for academic publication and community involvement. These requirements were expressly set out in the A.R.T. document and faculty handbooks for the years in question. Therefore, the finding of the trial court was not clearly erroneous.

III

An action arising under the Maryland Equal Pay Act “shall be filed within 3 years of the act on which the action is based.” Lab. & Emp. § 3-307(c). ⁴⁹⁹ Appellant contends that it was error for the trial court to grant summary judgment on all claims that arose more than three years prior to the filing of the instant case because of the “undisputed failure” of appellee to post notice of the Maryland Equal Pay Act. The statute provides that: “Each employer shall keep posted conspicuously in each place of employment a copy of this subtitle.” Lab. & Emp. § 3-306(b). 4 She bases this claim only on her assertion that she did not remember having seen a notice posted. Appellee, however, claimed that it was without sufficient knowledge to answer this question in its answers to interrogatories. Such an answer has the effect of a denial.

Md.Rule 2-323(c); Salisbury Beauty Sch. v. State Bd. of Cosmetologists, 268 Md. 32, 39 , 300 A.2d 367 (1973). Thus, in the first instance, appellant failed to establish her burden of proof that notice was not posted. In reviewing the grant of a summary judgment motion, we are concerned with whether a dispute of material fact exists. Arnold Developer, Inc. v. Collins, 318 Md. 259, 262 , 567 A.2d 949 (1990); Bachmann v. Glazer & Glazer, Inc., 316 Md. 405, 408 , 559 A.2d 365 (1989); King v. Bankerd, 303 Md. 98, 111 , 492 A.2d 608 (1985); Markey v. Wolf, 92 Md.App. 137, 170-71 , 607 A.2d 82 (1992). “A material fact is a fact the resolution of which will somehow affect the outcome of the case.” King, 303 Md. at 111 , 492 A.2d 608 (citing Lynx, Inc. v. Ordnance Prods., Inc., 273 Md. 1, 8 , 327 A.2d 502 (1974)). “A dispute as to a fact ‘relating to grounds upon which the decision is not rested is not a dispute with respect to a material fact and such dispute does not prevent the entry of summary judgment.’ ” Seaboard Sur.

Co. v. Richard F. Kline, Inc., 91 Md.App. 236, 242-43 , 603 A.2d 1357 (1992) (quoting Salisbury, 268 Md. at 40 , 300 A.2d 367 ). We further opined that in order for there to be disputed facts sufficient to render summary judgment inappropriate, “there must be evidence on which the jury ⁵⁰⁰ could reasonably find for the plaintiff.” Seaboard, 91 Md.App. at 244 , 603 A.2d 1357 . The Court of Appeals has recently stated that “the proper standard for reviewing the granting of a summary judgment motion should be whether the trial court was legally correct.” Heat & Power Corp. v. Air Prods. & Chems., Inc., 320 Md. 584, 592 , 578 A.2d 1202 (1990) (citations omitted). The trial court, in accordance with Maryland Rule 2-501(e), shall