The Third Circuit recently had the opportunity to rule on a case brought against the Delaware Department of Labor’s Office of Anti-Discrimination (“OAD”), by its former Acting Administrator. The OAD was awarded summary judgment, and the Third Circuit confirmed the award, holding that even accepting all of the employee’s allegations as true, there was no legal basis to conclude that OAD had violated the federal Equal Pay Act.
Trina Gumbs began working at the DDOL in 1996 as an administrative assistant to the Director of Industrial Affairs, and eventually worked her way up to become a Labor Law Enforcement Supervisor. In 2011 she was temporarily promoted to head the OAD, when the position of Administrator of the OAD became vacant. The DDOL posted for the job after three months, seeking a permanent replacement to fill the position. The DDOL interviewed Gumbs and four other candidates. Gumbs was not chosen for the position, and was moved back to her position as a Labor Law Enforcement Supervisor, second in command to the new Administrator of OAD, Daniel McGannon. Ms. Gumbs worked closely with Mr. McGannon as he transitioned into his new position, while also undertaking the responsibilities of her old job.
Ultimately, Ms. Gumbs sued the DDOL under the Equal Pay Act, alleging that she was paid less than a similarly situated male employee—Mr. McGannon. Ms. Gumbs’s suit was dismissed by the U.S. District Court for the District of Delaware, which found that Ms. Gumbs was not similarly situated to Mr. McGannon, because the two did not hold the same job, or have the same job responsibilities. In other words, Mr. McGannon was Ms. Gumbs’ supervisor, and was properly paid more because of that fact.
The Third Circuit affirmed the District Court’s decision relying on, among other considerations, the fact that Mr. McGannon alone had the responsibilities of disciplining staff, hiring new employees, and overall operations of the unit. These responsibilities separated Ms. Gumbs’ and Mr. McGannon’s roles enough to justify their pay disparity.
At the outset, we should note that we regularly work with the OAD, and know both Ms. Gumbs and Mr. McGannon, both of whom were dedicated employees of the OAD. We were not involved in this matter in any way, and have no reason to question the conduct of any person or agency involved. Still, there are some lessons to be gleaned from this case.
First and foremost, who is a similarly situated comparator? In making this analysis, the Third Circuit reminds us that job titles and job duties are generally dispositive of this inquiry. In a small office, there is frequently a lot of overlap in responsibilities. If the head of the department is out, his second-in-command is generally expected to step up and keep the ship running. However, ultimate responsibility rests with the person who holds the job, not the second-in-command, and that fact can be sufficient to justify a pay disparity between two individuals. But keep in mind, that can change if there is an absentee leader, and the second-in-command is forced to fully assume the leader’s job duties on a regular and on-going basis. These are highly fact-specific inquiries.
Second, shifting employees around is a difficult task, and employers need to acknowledge and address the hurt and frustration that can be caused when a qualified internal candidate is passed over for promotion. One way to handle these situations is to meet privately with the internal candidate, explain why he or she is not being selected, and offer support to address any perceived issues. Does the individual need more tenure in a supervisory position, additional training or experience that the company can facilitate, or to address interpersonal conflicts within the organization that led to a lack of support from subordinates? These are all issues that are difficult to discuss, require some ownership by the employer, but will ultimately result in growth and development for all parties involved.
But above all else, remember that treating people with dignity and respect cannot avoid all problems. If you’re concerned about a difficult situation, contact legal counsel to talk through your plans and consider all of your options, including any “out of the box” solutions you may not have thought of.