Irby v. Bittick

CARNES, Circuit Before BIRCH *, District Judges, BLACKBURN Judge.

BIRCH, Judge: Circuit employ- upon whether an This focuses case disparity adequately demonstrated er employees a fe- pay between two male and employee doing the same work was male Equal Pay Act of 29 justified the under (“EPA”). § for On cross motions U.S.C. found summary judgment, the district court employers proved that were that the there genuine of material fact and no issues judgment as a employers were entitled to the AFFIRM. of law. matter AND PROCEDURAL I. FACTUAL

BACKGROUND 1987, plaintiff-appellant R. In Barbara by defendants-appellees, was hired Cary and Monroe Coun- Bittick Sheriff John County ty, Georgia, to work for the Monroe initially as- Department. She duty in signed undercover the criminal division, one of three divisions Department.1 After within the Sheriffs serving months as an undercover several jail radio agent, she was transferred Irby spent approximately operations. room before trans- eighteen months this division investigations in ferring to criminal Novem- ber, Department em- 1989. The Sheriffs investigators in the criminal investi- ploys six division; only in- Irby is the female gations vestigator.2 Bittick, Monroe In Sheriff Forsyth into a con- City the entered exchange stipulated that in tract which ^[*] 1. The other two divisions Honorable trict sitting by designation. operations Judge Sharon Lovelace (or the Northern District support services) are Blackburn, jail radio room patrol. Alabama, U.S. Dis- 2. There agreement and is on sidered in paid by assignment the between our a seventh city; analysis. the consequently, from the investigator, city and the City he is who is county. Forsyth by male con- He Sec., Inc., the Mulhall v. Advance 19 F.3d investigation services from Sher- criminal — city provide (11th Cir.), two Department, denied, the iffs 589-90 cert. U.S. Department’s investigators to work -, (1994). 115 S.Ct. 130 L.Ed.2d city appointed investigations division. The Summary judgment properly granted Ronald Evans. Jones and Robert Jones and there are no issues of material fact paid by were set Evans’s salaries moving party judgment and the is entitled to city the contract city. terminated When 56(c). law. as matter of Fed.R.Civ.P. given Evans were Jones and court examines substantive law involved employees of the opportunity to continue to determine are material. which facts Mul however, they join city; instead elected to hall, (citing 19 F.3d at 590 Anderson v. Lib county criminal the Sheriffs Inc., 242, 248, 254, erty Lobby, 477 U.S. investigators. Despite change employ- 2505, 2510, 2513, 91 L.Ed.2d S.Ct. ers, job descriptions remained the (1986)). All reasonable doubts about facts Nevertheless, Jones and Evans were same. non-moving par in favor of the resolved by county initially actually paid more 1516, 1520 ty. Peyton, Browning v. by city, although the had been (11th Cir.1990). increase is unclear. exact amount of the deposition, Bittick testified that his in the accrued Evans and Jones overtime moving party If bears bur inadvertently year included

previous was trial, proof den of at it must demonstrate by county. salary the base offered that “on all the essential elements of its case Therefore, salary their initial base with' the trial, proof on which it bears the burden of at city salary county was the sum of their base juiy no reasonable could find for the non- Consequently, investigators plus overtime. moving party.” United States v. Four Par paid substantially more and Evans are Jones 1428, Property, cels Real 941 F.2d 1438 of investigator Irby.3 pay dispar- It is this than (11th Cir.1991) (en banc). moving “Once a ity Irby challenges as a violation of the party sufficiently supported its motion has Pay Act.4 Equal summary judgment, non-moving par relief, seeking injunctive Irby filed suit ty significant, pro must come forward with damages declaratory judgment under and a demonstrating bative evidence the existence 206(d), 1983, § § 42 U.S.C. and the 29 U.S.C. Chanel, of a triable issue of fact.” Inc. v. to the United Fourteenth Amendment States Activewear, Inc., 1472, 1477 Italian discovery, Irby After moved Constitution. 56(e). (11th Cir.1991); see Fed.R.Civ.P. The summary judgment on her claim for de- solely non-moving party rely cannot on its claratory judgment under the EPA. Sheriff 56(e); pleadings, it “must do Fed.R.Civ.P. County Bittick and filed a cross mo- Monroe summary judgment. simply district is some tion for The more than show there summary judgment Irby’s facts,” mo- court denied metaphysical as to the material doubt granted that of Bittick and tion and Elec. v. Zenith Radio Matsushita Indus. Co. County. Irby appeals. Monroe 574, 586-87, Corp., 106 475 U.S. S.Ct. (1986) L.Ed.2d 538 add 89

II. DISCUSSION ed). rubric, first review the Under this we Summary Judgment A. in EPA and then proof burdens of cases summary judgment was examine whether grant the district court’s

We review properly granted. summary judgment in EPA eases de novo. of $15,757.00 disparity 4. raise the issue of the earned in 1989. R1-22B-3. failed to 3. $23,- investigators and Evans were hired in 1989 at compared her with other of $18,519.80 R1-22B-2, Irby earned court; 987.50. 4. according- division before the district 1993; $27,- Jones and Evans each earned ly, those differences here. As we do not address 1993, Irby 868.10. R1-22B-2-4. only compa- argument, conceded at oral employees hired in 1987 the same as all other purposes appeal are investi- rators for the of promoted in rank. R1-22A- who have not been gators Evans and Jones. however, not, We do address whether the 1. appropriate comparators 1987 male hires the EPA. under 954 Analysis in EPA Cases C.

B. Burdens of Proof dispute Irby per- Appellees do of an EPA prima facie case A skill, involving work identical forms the same employer “pays if an dif violation is shown conditions, effort, responsibility, working opposite employees of sexes wages to ferent Therefore, Irby has set as Evans and Jones. equal jobs [requiring] ... equal on ‘for work prima a facie case of an EPA violation. forth skill, effort, responsibility, and which are appellees now consider whether have car- working condi performed under similar proof any of on of ried their burden ” Brennan, Corning Works v. tions.’ Glass Appellees defenses. assert two affirmative 2223, 2228, 188, 195, 41 94 417 S.Ct. U.S. justifications pay disparity for the at issue: (1974) (quoting 29 U.S.C. 1 L.Ed.2d seniority system” “a and “factors other 206(d)(1)); § Mitchell Jefferson They do not contend that the differen- sex.” (11th Educ., F.2d 547 Cir. Bd. 936 of justified by system by a tial was a merit or 1991). prima facie case is demon Once a production system. measurement strated, liability employer must to avoid evidence, prove by preponderance Seniority System a of Mulhall, that the differential 19 F.3d at seniority system ex Whether exceptions forth justified by one of four set Mitchell, F.2d at ists is law. matter Works, EPA, Coming Glass U.S. (examining seniority system under 196-97, excep at Those S.Ct. 703(h) § Rights of Title VII of the Civil Act (ii) “(i) seniority system; merit tions are: 2000e-2(h)). § U.S.C. The dis (ni) system; system measures earn Depart found that trict court quality production; ings quantity or seniority system ment did not maintain a (iv) any other factor a differential based justifying difference between in 206(d)(1). § than sex.” 29 U.S.C. vestigator Irby investigators Evans and proof Bittick, 632, employer the burden of for these F.Supp. bears v. 830 Jones. 636 Works, (M.D.Ga.1993). defenses, Corning Glass The court stated that “a se affirmative 2229; system, 196-97, niority system, like a merit should 94 at Price v. 417 U.S. at S.Ct. uniformly Co., (citing enforced and written.” Id. Space Operations 856 F.2d Lockheed Georgia (11th Cir.1988); College, Brock v. Southwestern 765 1503, Meeks v. Com 1505 (11th Cir.1985) (merit 1026, sys (11th F.2d 1036 Int’l, 1013, puter 15 F.3d 1018 Assocs. tem)). agree. “system” seniority We If a Cir.1994). one,” “heavy is a The burden longevity Depart based on with the Sheriffs Mulhall, 590, at the “defen 19 F.3d because ment is to be relied an affirmative pro show that the factor sex dants must defense, appellees identify must be able to differential,” wage for id. vided no basis measuring seniority standards are burden, If the defendant fails to meet systematically applied and observed. judgment plain Cf. the court must enter Bryant, Brewers Ass’n v. 444 U.S. Store, California Grocery tiff. Miranda v. B & B Cash 598, 606-09, 814, 820-21, 100 S.Ct. 63 (11th Cir.1992). 1518, When 975 F.2d 1533 (1980) ancillary (requiring L.Ed.2d 55 rules burden, overcomes the defendant seniority system in order to constitute valid explanation by plaintiff rebut the show must 703(h) VII); Mitchell, § under of Title 936 pre- that it ing with affirmative evidence 544-45, “seniority (rejecting F.2d at 547 post-event justification textual or offered as a system” to both Title and EPA defense VII gender-based for a differential. Schwartz v. length claims for failure to relate benefits to 620, Regents, 954 F.2d 623 Florida Bd. of employment). (11th Cir.1991) curiam); Hodgson (per see (5th Co., 1041, Drug 475 F.2d 1045 Behrens Appellees argue that transfers be Cir.1973) v. First (quoting Shultz Victoria promotions do not tween divisions constitute (5th Cir.1969)). Bank, F.2d 655 Nat'l 420 generally, pay or demotions is based plaintiff If to create the inference of solely upon year by able of hire the Sheriffs pretext, “system,” Department. there is an issue which should be Under this all inves patrol support tigators, officers and services reserved for trial.

955 way only up inequality to be would swallow the rule and deputies, are and the officers rank, through elevation such promoted is genders pay among perpetuated.” would be as, captain. Depu- sergeant, to lieutenant Irby, F.Supp. at 636. We have consis- Department ties who have worked tently “prior salary held alone cannot to earn than those longer supposed more justify pay disparity” under the EPA. hired later. Glenn, 9; Price, F.2d 1571 & n. accord Appellees 856 F.2d at 1506. cannot defend compensation, Jones and Evans’s paying Jones and Evans more than however, disproves the existence of such a simply because of the schedule of Jones seniority system. Jones and Evans are Therefore, previous employer.7 and Evans’s deputies more than who were hired though reject neither Jones nor appellees’ prior salary we reliance on promoted, defeating Evans has been thus separate justification as a for the differ- seniority system A affirmative defense.5 ential. applied fairly among all the should be mem department bers of the unless there are de However, Pay Equal an Act de exceptions fined which are known under may successfully fendant raise the affirma by employees. thus stood conclude “any tive defense of other factor other than that the Monroe as matter of law proves prior sex” he that he relied on place does salary setting a “new” seniority system” justify EPA “a under the employee’s salary. employer may While an employees ing a variance in between proof not overcome the burden of on the performing opposite of the sex the same relying “any affirmative defense of on other work. by resting prior factor other than sex” on alone, correctly as the district court 2. Factors Other Than Sex found, prohibition utilizing there is no “Any factor than sex” is other mixed-motive, prior pay part such as general exception application of the prior pay experience. more This court Corp., EPA. See Glenn v. General Motors prior salary has not held that can never be (11th denied, Cir.), cert. just employer pay, an used establish 102 L.Ed.2d 367 488 U.S. S.Ct. justification solely carry that such cannot (1988) history). (interpreting legislative Glenn, past, the affirmative defense. See 841 F.2d we have found that such factors (“Kouba “unique Co., include of the same characteristics at 1571 n. 9 Ins. [v. Allstate job; experience, training ... an individual’s (9th Cir.1982) F.2d 873 is consistent with ] ability; special exigent ... circum or or present case because the Ninth Circuit with the Id. stances connected business.” permit prior salary would use of where the added). job position prior agent the sales resembled and relied on other available where Allstate argue that reference to Appellees question is “oth predictors.”). The whether setting in prior and Evans’s salaries reasonably explain ... er business reasons salary legitimate the current is a factor other Price, prior salary.” the utilization of rejected than sex.6 The district court this below, F.2d at 1506. As demonstrated salary argument, explaining prior that “[i]f justification, clearly presents other reasons exception alone were a case business fact, investigators Investigators Speir Corley and are less 7.In one of the indicated accepted a reduc- “believe[d he] he tion in have” though Speir than Jones and Evans even was necessary position pay to secure his 1979, Corley and hired in 1981. hired in was County Department. Sheriff's with the Monroe Because Sheriff Bittick and Monroe Rl-21-6-7. suggested Appellees of factors have number County salary with never discussed Evans reject- gender, than several of which were putting county payroll, them on the Jones before court, implicitly by ed the district and we do not prior salary appellees rely upon cannot alone to address them here. justify variance. salary, principally, placed experience on is inconsistent. She prior justify use of Bush, the division.8 experience investigator with was observes that who assigned investigations to the divi- also first support Appellees also 1983, approximately in the same sion earned that Jones and Evans disparity on the basis salary and Evans in 1989 and the as Jones Irby, given than greater experience had salary though same in Bush start- investigations they in the divi have worked Department in two ed with the Sheriffs County Depart Sheriffs sion of the Monroe Experience accept is an years earlier.11 She also notes that the other ment since 1983.9 if not as a than sex used able factor other division, investigators Speir two gend for differentiation because pretext Corley, Depart- were hired Sheriffs Glenn, Irby F.2d at 1571. er.10 See 1981, respectively; in 1979 and howev- ment attempts appellees’ claim as first to refute er, less than Evans and Jones. both earn reasoning by arguing that their pretextual Thus, Irby argues appellees not real- do subjective Business rea too rebutted. ly experience Department with the but value sons, legitimate experience, are “fac such as justification offering post-event long can be than sex” so tors other their actions. Schwartz, 623-24. rebutted. however, capa experience, The defense of Despite Corley Speir’s longevity with rebutted; example, plain being ble of however, Department, neither the Sheriffs equal that he or she had or tiff could show assigned was to the division type. experience of the same Time more year Irby until the same was trans- equates experience with spent position in a ferred to that division.12 Evans and Jones division; gain experience one must greater experience in the Monroe activity. necessarily spend time an Time Department investigation sufficiently quantity one can is a measurable division, working with Sheriff Bittick and case, rebut. In this Evans Jones have Wilkes, division, Captain of that John head years in spent approximately five more Speir, Corley Irby. respect do With years four more investigations division and Jones, hiring to the of Evans and the sole Department than has the Sheriffs case, any present comparators other facts which in this was does not treated equal experi or more that she has similarly indicate deputies to other investi- less in the division or Sheriffs ence gation experience than Evans and Jones. have. than Evans or Jones Accordingly, any appellees’ claim that deci- previous sion to Evans and Jones their appellees’ proffer also contends gender-based pretextual because the value is refuted.13 suggest employer may H.R.Rep. Cong., that the No. 88th 1st sess. re- 8. This is not to 687, 689)). grounds illegitimate printed in 1963 U.S.C.C.A.N. rest his decisions other, by raising merely valid then mask them However, infra, that as noted burden of reasons. $23,989.00 approximately 11. Bush earned case, Irby proof plaintiff, and in this is on the $27,868.10 1989 and in 1993. R1-22B-1. arguments Bittick's failed to refute Sheriff experience setting prior pay he relied and in on Speir investigations was transferred into the 12. pay. Evans and Jones’s 1989; January, Corley in was trans- division August, earnings Speir 1989. ferred in Appellees relying experience 9. are not on outside Corley presented and were not to the district Department as a defense. of the Sheriffs comparators argument and relative to court as inappropriately ap- salaries was raised their on legitimate "any experience 10. For to be a other peal. affirmative defense it need factor other than sex” seniority not rise to the level of an established Glenn, 13. The dissent believes that Sheriff Bittick con- system. 841 F.2d at 1571. The "fac- See Jones and were not worth more ceded that Evans affirmative defense is a tor other than sex” Act, Irby, creating genuine broad, a Equal Pay than issue of materi- exception to the catch-all ("As overly fact. The "concession” Sheriff Bittick to al limited. Id. it is and should not exception, refers does not on impossible every which the dissent remark each and to list Irby's Evans worth to general been or and Jones’s relative broad exclusion has also included experience, experience, training, but worth Sheriff Bittick because of ... differences based on (quoting ability vis-a-vis officers. Sheriff be excluded.” of male officers female would also CARNES, long-term experience Judge, concurring as an inves- Circuit in Unique, part dissenting part: and in justi- single in constitutes a tigator division EPA difference under the as fication agree majority’s I holding with the that exception “any other factor part of the broad Irby prima Barbara has established a facie Glenn, than See 841 F.2d at sex.” violation, Equal Pay case of an Act and that moving parties, Appellees, as the disparity substantial between her genuine issues of shown that there are no and comparators, that of her two male they are entitled to material fact and Evans, justified and cannot be based Irby judgment as a matter of law.14 failed to seniority system. agree I also with the ma- appellees’ justification and adequately rebut jority pay dispari- insofar as it holds that the thus, disputed failed to raise a material issue ty justified Equal Pay cannot be Act fact. purposes on the basis that Jones and Evans higher salary

had a when transferred Department. into the Sheriffs III. CONCLUSION My disagreement majority with the is over Irby challenges the district court’s conclu- its conclusion that Bittick Sheriff and the County sion that Bittick and Monroe (hereafter Sheriff’) County “the are entitled proved by preponderance of the evidence summary judgment ground to on the that the pay disparity investigator that the between pay disparity substantial is based on the Irby investigators Evans and Jones was and greater experience compara- male of the two justified arising from a “factor other than Disparity experience legitimate tors. in is a Equal Pay sex” under the Act. We conclude justify “factor other than sex” which can they weighed appellees proved However, disparity pay. in I do not believe in of Evans and Jones the investi- the Sheriff has carried his burden —which gations of the Sheriffs division majority correctly characterizes as higher setting incoming at a “heavy establishing that one” —of there is no investigator Irby’s salary and that level than about issue whether the reason he particular experience legitimate is a “factor Irby pays substantially pays less than he According- EPA. other than sex” under the greater experi- Jones and Evans is that their grant summary ly, the district court’s ence worth more to him and his makes them judgment appellees department. AFFIRMED. regarding aiy high not admission should not be as as Pete and [Jones] Bittick's statement is an experience, [Evans's] [Jones] rather it indicates that he does not Jocko because Pete and Jocko inherently believe that male officers are better [Evans] worked there from ’83 until '87." Rl- interpret officers than female officers. To 17-82. It is a fact that Evans and Jones have being disregards longer statement an department admission been in the and in the division County’s Sheriff Bittick and Monroe defense and It is fact that argument removes their from the context separately division is considered sions, from other divi- Rl-17-52-54, it was made. Sheriff Bittick and Monroe employment see countering specifically were the conten- training requires experi- division additional by Irby divisions, Bittick values tion made "Sheriff ence over and above the other 24, Rl-14- he worked male officers with whom has though there was formal raise no past” and that Sheriff Bittick “believes that system place upon to that division transfer [thus], Evans Jones are con- ‘worth it’ Irby despite when transferred in and the fact Appellant’s versely, is not.” Brief at training required prior had some of the Irby's arguments solely were made with the division, entering is a see Rl-14-23-24. It implication that Sheriff Bittick believes that fact that Sheriff Bittick relied Evans female, because she is a not “worth it” prior experience "working with him” in Jones's because she has less than the other Rl-17-80, 82. the division. Equal Pay two This is of her officers. the crux experience, that as well as Sheriff And it is a fact Act case. prior salary relied on Evans and Jones’s Bittick setting salary. guideline their new Rl- as a facts, 17-16-17, unrebutted as a mat- Contrary position, 81. These to the dissent’s there is not law, require that there is ter of this court to find issue of material fact which must be Equal Pay Irby simply by jury. unequivo- Act. no violation of the tried Sheriff Bittick stated facts; thus, cally deposition [Irby's] she loses. that “Barbara sal- failed to rebut these critical his pay they time thing, the Sheriffs own brief to er of Jones Evans the

For one that he does not believe concedes this Court transferred into the Sheriffs pay Evans are worth more that Jones and City Department. As from the Police the brief, Irby In his the Sheriff states: than is. majority recognizes, under the law of this Irby points to a statement made circuit, prior continuation alone is not deposition Bittick in his Sheriff legitimate factor other than sex which paid to Evans and compensation initial justify pay disparity. would held that they placed in the Mon- Jones when were Corp., it is not in Motors Glenn General County pay system beginning at the roe (11th Cir.), denied, cert. justified because Evans and 1989 was 102 L.Ed.2d 367 U.S. S.Ct. were “worth it.” states her Jones (1988); accord Miranda v. B B& Cash implication the clear of this brief (11th Store, Inc., Grocery 975 F.2d 1518 Cir. was that in the Sheriffs view statement 1992) (approving logic was, is, behind Glenn’s Investigator Irby “not worth rejection argument prior salary it.” Bittick’s statement makes no Sheriff of the absolutely implication. such There is no sex”). alone was a “factor other than support to the im- evidence in the record why asked and Evans had When plication that Bittick Sheriff feels starting salary than a been more when any way Irby is in less valuable Barbara Contrary Irby’s they city payroll than Evans and Jones. to went off the and onto the assertions, Bittick does not hold a Department’s payroll, Sheriff the Sheriff tes- Sheriff subjective opinion that male Ev- thought, you my officers “I tified: recommen- know — pay ans and Jones are worth more than basically dation was to them the same female Officer thing they getting paid. had been You added) (emphasis The memorandum brief the know, cut, I didn’t want to take a them Sheriff filed in the district court made the deal, basically they al- when had concession, same and contained verbatim the ready working (emphasis been for me.” add- quoted last three sentences above. view ed) “my explained The Sheriff recollec- of the concession that he does not Sheriffs salary thing tion of the was that our intent Evans believe that Jones and are “worth basically they was to them what had is, pay” the district court more than city they made with the so would not lose summary judgment might granted added) any money there.” least, against At the the court the Sheriff. granted summary judgment should not have testify point The Sheriff did at one in his in his favor.1 deposition biggest that “the reason” that The second reason this Court should not higher Jones and Evans were hired at a rate summary judgment grant affirm the entry level was that both of them had that, ignore even if the concession in the we working been for him since 1983 and both brief, genu- the record still reveals a money. were worth the He said that ine fact about his issue of material motivation department had invested a lot of time in disparity. for the The Sher- substantial them, they deputy had been sheriffs both deposition provides iffs own a basis for a him, loyal had worked hard for being jury reasonable to find that instead of department. Shortly after that testimo- upon any experience, based difference pay disparity actually upon high- ny, following transpired: based opinion, majority majority of its inter- Jones and Evans. rewrite In footnote 13 The would prets being say any way except concession as confined the concession to the Sheriffs “in Sheriff, entirely Irby’s being deputy repre- relative worth as a human who has been sheriff.” distinguished deputy. by competent throughout from her worth as a sented counsel these say proceedings, majority what the said both But that is not did not what the say. What he district court and in Court. said is have had him We should decide the issue said, absolutely that there no that he be- based what was not what we would evidence way” any or his counsel. lieves is "in less valuable than have said had we been the Sheriff is, every decision that the first reason

Q you give me each and Glenn If would law, and are that Officers Evans Jones reason a matter of not a “factor other than sex.” Irby? today more than Officer paid Accordingly, genuine is a of there issue mate- rial fact about whether the Sheriff is entitled Pete and them worked [Jones] A Because judgment.2 ’88 until ’88 or whenever. there from mind, words, my Pete and [Jones] The third reason is entitled to have me, employment date [Evans] Jocko’s by jury a her case decided is that evidence were [Evans] Pete and Jocko [Jones] when relating pay depu- the record to the of other deputy and came to work sworn sheriffs genuine ties also creates a issue of material I my supervision was 1983. for me under pay experi- upon fact about whether is based ’87,- in, what, [Irby] think Barbara came example, counting ence. For the time ’88, they year was. But whatever the spent City and Evans with the as time they when trans- paid were that because Department, in the there are two other in- over, keep them our intent was to ferred vestigations deputies (Corley division and any money. you’d But if losing from male) Speir, who have been with the both you to me me—in 1984 had come asked Evans, Department longer me if Pete and Jocko than Jones and [Jones] and asked me, for I would have said worked [Evans] paid upon but who are less.3 If is based [Irby] just say I Barbara yes, like would experience Department, with the Sheriffs works for me now. deputies paid those other two should be as, than, same amount or more Jones and Q Any other reason? undisputed they Evans. The fact that are of, mean, I A Not that I can think -with- jury not is a basis which a reasonable thinking sitting here and more about out investiga- could decide that within the it. Department tions division of the Sheriffs added) Thereafter, the last upon experience. not based explain attempt deposition in his majority’s explanation why Corley opinion in his disparity, the Sheriff said that Speir, experienced depu- more the two salary high Irby’s should not be as as Jones’s ties, paid are less than Jones and Evans is they had Evans’s salaries because experience “there” from 1983 until 1987. He that what counts is not within the worked law enforcement officers as a added Department experience particu- within a but underpaid, and that deserves whole are division, investigations lar as the divi- such money paid. worth more than she is and is deputies those other two sion. Because not been division within deposition testimony equiv- The Sheriffs long as Jones permit It a factfinder to find ocal. Evans, every- majority reasons that pays that he Jones and Evans more thing theory fits the within any reasons: because of one of three prin- particular is what counts. The division they time transferred onto at the majority’s theory cipal problem with the department’s payroll, or because the evidence the record does not experience, or because of a combi- have more dispute theory beyond genuine two factors. know from establish nation those Inc., (11th Cir.1984) ("When deposition 2. Three and one-half months after his taken, unambiguous given party answers to after the has clear and more than month date, any gen- negate questions discovery existence cutoff Sheriff Bittick filed care- fact, party cannot uine issue of material fully his reasons for the drafted affidavit about an affidavit thereafter create such an issue with disparity. Apparently, after the Sheriff's de- contradicts, explanation, merely without position attorneys deci- his had read our Glenn given testimony.”). unsuccessful, previously clear salvage Their efforts are be- sion. party post-deposition cannot undo with a cause Evans, Dep- Although paid issue of material fact created less than Jones affidavit Depu- Corley Speir party's deposition testimony. more than Van T. uties Cf. Indus., Assoc., ty Junkins & Inc. v. United States experience pay that the of and Evans is within a ties is Jones pay based deputies solely greater than the of other particular division.4 prior salary of the had because said, deposi- during his never The Sheriff true, City. received from the 'If that is then affidavit, that post-deposition in his tion or prevail is due to on her claim. Because by length within of service is determined genuine a issue fact about whether there is particular instead of within the a division true, explanation summary judgment Indeed, clearly Department as a whole. he granted. not have been should affidavit, just opposite. In his stated “deputies that: with the same Sheriff swore may It that Barbara would lose if be if paid the same amount rank are Nonetheless, go allowed to to trial. because my department with is simi- length of service genuine turns a her case issue material Conversely, deputies with the same lar. fact, is entitled to have of her she the fate paid amount if their rank are different by jury by jurists. ease decided instead of my department length of service with is dif- majority’s grant affirmance of the added) (emphasis We know from ferent.” summary judgment deprives her of that enti- Corley Speir paid less the fact that tlement. I dissent. Evans, explanation that that Moreover, experience is not true.5 within particular the criterion for division were

pay, expect deputy that a one would trans- beginning to another division and thus

ferred experience no at all in that new division so, pay.

would suffer a decrease Not in his affidavit:

the Sheriff said assignment An or transfer is not consid- BURNS, Plaintiff-Appellant, Robert H. promotion, to be a and no raise in ered given by any particular assign- virtue of example, deputy may ment. For be LAWTHER, Physicians Assistant, C. J. assigned from the Patrol Division to the Torres, Physicians Assistant, United Division, Investigative and there is no in- America, States of Federal Bureau of change pay, crease in even Prisons, Defendants-Appellees, though may the duties be different. Con- Douglas Henry, W. Edward versely, may assigned deputy from Staffire, Movants. Investigations Support Division to the change pay, Services Division with no No. 93-6719 change assignment and such is not con- Non-Argument Calendar. demotion, promotion sidered a or a Appeals, Court of United States added) Eleventh Circuit. support, Because the record does not rebuts, theory majority’s indeed about Feb. why greater pay Jones and Evans receive compared investigations to those in the divi- longer

sion with service in the Sheriffs De-

partment, there is a issue of material why

fact as to Jones and Evans are explanation

more than The one all explains dispari-

fits the facts and all the proposition It is not has as a fact about which clear to me that establish that argued genuine dispute. within the there is no division instead of within However, Jones, Evans, assuming pay. deputies Irby, Corley, whole determines 5. All five — argument, Speir he has made the the evidence does not of the same rank. —are

Case Details

Case Name: Irby v. Bittick

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Feb 13, 1995

Citation: 44 F.3d 949

Docket Number: 93-9205

Court Abbreviation: 11th Cir.