U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff - Appellant,
MARYLAND INSURANCE ADMINISTRATION, Defendant-Appellee.
Argued: October 25, 2017
from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, Senior District
Matthew Kovnat, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Washington, D.C., for Appellant.
Van Lear Dorsey, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND,
Baltimore, Maryland, for Appellee.
L. Lee, Deputy General Counsel, Jennifer S. Goldstein,
Associate General Counsel, Lorraine C. Davis, Assistant
General Counsel, Office of General Counsel, U.S. EQUAL
EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for
E. Frosh, Attorney General, Lisa Boylan Hall, Assistant
Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND,
Baltimore, Maryland, for Appellee.
WILKINSON, KEENAN, and FLOYD, Circuit Judges.
BARBARA MILANO KEENAN, CIRCUIT JUDGE.
Equal Employment Opportunity Commission (the EEOC) brought
this action on behalf of three female employees against their
employer alleging salary discrimination under the Equal Pay
Act (the EPA), 29 U.S.C. § 206(d). The district court
granted summary judgment in favor of the employer, the
Maryland Insurance Administration (MIA), and the EEOC
appealed. Upon our review, we conclude that the EEOC
established a prima facie violation of the EPA, and that
genuine issues of material fact exist regarding whether the
pay disparity was due to factors other than gender. We
therefore vacate the district court's grant of summary
judgment in favor of MIA and remand for further proceedings
consistent with this opinion.
an independent state agency that performs various functions
related to the regulation of Maryland's insurance
industry and the enforcement of Maryland's insurance
laws. Md. Code, Ins. §§ 2-101, 2-102. MIA is
subject to the State Personnel Management System, a
merit-based system, which establishes job categories based on
the general nature of required duties and sets corresponding
levels of compensation. Md. Code, State Pers. & Pens.
§§ 6-102(1)(i), (2), (3). Although MIA, as an
independent state agency, is given discretion to set its
employees' salaries, MIA follows the hiring and salary
practices of Maryland's Department of Budget and
Management, which promulgates a Standard Pay Plan Salary
Schedule (the Standard Salary Schedule). Md. Code, Ins.
accordance with the Standard Salary Schedule, when a new
employee is hired, MIA assigns that employee to a grade level
matching the position being filled. Each grade level carries
an assigned base salary and a specific salary range
consisting of 20 separate steps. After designating a new
employee's particular grade level, MIA assigns the new
hire to an initial step placement based on prior work
experience, relevant professional designations, and licenses
or certifications. In selecting a particular step level, MIA
also considers the difficulty of recruiting for the position,
and, under Maryland law, also awards a new employee credit
for any prior years of service in state employment for the
purposes of determining that employee's step in the
applicable pay grade. Md. Code, State Pers. & Pens.
§ 2-601. Additionally, a Maryland government employee
who transfers to a "lateral" position takes her
assigned grade and step with her to the new position.
employees work within one of six units, each comprising a
different area of insurance regulation. Md. Code, Ins. §
2-102. At issue in this case is the Fraud Investigation
Division. Employees working in the Fraud Investigation
Division, or Fraud Investigators, are charged with
investigating allegations of criminal insurance fraud
perpetrated by individuals. Until July 2013, the Fraud
Investigator position was classified at a grade 15 on the
Standard Salary Schedule. At that time, based on an internal
job study conducted by MIA, the position was reclassified at
grade 16. Under the Standard Salary Plan, individuals hired
as Fraud Investigators now are assigned to a step within the
grade 16 classification according to their qualifications and
advertises minimum and preferred qualifications for the
position of Fraud Investigator. To be minimally qualified for
hire as a Fraud Investigator, an applicant must have five
years of fraud investigatory experience in such areas as
white collar crime, financial fraud, insurance fraud, and
investigations conducted under the supervision of prosecutors
or other attorneys. Preferred or desired qualifications for
the position include designation as a Certified Fraud
Examiner, as well as experience working with attorneys and
participation in court or administrative hearings.
EEOC brought the present action on behalf of three former MIA
employees: Alexandra Cordaro, Marlene Green, and Mary Jo
Rogers (collectively, the claimants). MIA hired Cordaro as a
Fraud Investigator in December 2009. Cordaro had worked as a
fraud investigator for a federal credit union for over two
years, and as a criminal investigation and litigation
paralegal for 12 years in the Baltimore County State's
Attorney's Office. MIA assigned Cordaro to grade level
15, step four, with a starting salary of $43, 495. By the
time she resigned from her position at MIA about five years
later, Cordaro was earning $49, 916.
Green was hired as a Fraud Investigator in November 2010.
Green held a bachelor's degree from Johns Hopkins
University, and had more than 20 years of experience working
for the Baltimore City Police Department. During the course
of that employment, Green worked for approximately 13 years
in an investigative capacity. In the year immediately prior
to joining MIA, Green worked as an investigator for the
United States Office of Personnel Management and the Office
of the State's Attorney for Baltimore County. MIA
assigned Green to grade level 15, step four, with a starting
salary of $43, 759. By February 2013, when Green resigned
from MIA, her salary was $45, 503.
Rogers transferred to the Fraud Investigation Division from
another position within MIA in July 2011. Rogers earlier had
worked for eight years as a police officer and a detective
with the Baltimore County Police Department. Immediately
before being hired at MIA, Rogers worked for an insurance
company as a special investigator and an adjuster. MIA
assigned Rogers to grade level 15, step five, with a starting
salary of $46, 268. By November 2013, Rogers' salary was
their tenure at MIA, Cordaro, Rogers, and Green learned that
their salaries were lower than the salaries of certain male
Fraud Investigators. In early 2014, after unsuccessfully
seeking to correct these disparities, Cordaro and Rogers
filed complaints against MIA with the EEOC. It is unclear
from the present record what transpired during the EEOC
EEOC later filed the present lawsuit against MIA on behalf of
the three claimants, alleging gender-based salary
discrimination in violation of the EPA. During the
proceedings in the district court, the EEOC identified as
comparators four male Fraud Investigators: Bruno Conticello,
James Hurley, Donald Jacobs, and Homer
hired Conticello as a Fraud Investigator in November 2010.
Conticello held both a bachelor's and a master's
degree in criminal justice, and had nearly 20 years of
investigative experience working for various insurance
companies and Maryland's Office of the Inspector General.
He also had obtained a Certified Fraud Examiner
designation.MIA assigned Conticello to grade level 15,
step 10, with a starting salary of $49, 842. By late 2012,
his salary was $51, 561.
Hurley was hired as a Fraud Investigator in November 2006.
Hurley most recently had worked as an investigator with an
underwriting insurance organization. He also had worked
previously with MIA for a total of three years as a Fraud
Investigator and as an investigator in MIA's property and
casualty department. Altogether, Hurley had about 10 years of
insurance-related investigative experience when he was
re-hired at MIA in 2006. Hurley also had worked previously as
a claim adjuster for several insurance companies, and had
earned the designation of Certified Fraud Examiner. At the
time of his most recent hiring at MIA, Hurley was assigned to
grade 15, step six, with a starting salary of $45, 298. By
the time he left MIA in October 2012, Hurley's salary was
hired Donald Jacobs as a Fraud Investigator in May 2007.
Jacobs had 11 years of experience as a Natural Resources
Officer with the state of Maryland, primarily engaged in
conducting marine patrols, and had worked for three years as
an investigator in the Office of the Public Defender in
Baltimore. This investigatory experience did not relate to
fraud or white collar crime. Jacobs' starting salary at
MIA was $45, 298, based on his assignment to grade level 15,
step six. When Jacobs left MIA in June 2010, his salary was
Pennington was hired as a Fraud Investigator in August 2007.
Pennington had worked in the criminal investigation unit of
the Baltimore Police Department for approximately 22 years
before joining MIA. He earned the designation of Certified
Arson Investigator, but neither his resume nor the record
specify the requirements for acquiring this certification.
Pennington was hired at grade level 15, step five, with a
starting salary of $45, 360. By May 2013, when Pennington
left MIA, his salary was $47, 194.
parties filed cross-motions for summary judgment in the
district court. The court denied the EEOC's motion and
granted MIA's motion. In dismissing the EEOC's claim
under the EPA, the district court effectively held that the
claimants had failed to meet their prima facie evidentiary
burden. The court concluded that the male Fraud Investigators
identified by the EEOC were not valid comparators because
they were hired at higher steps than were the claimants.
Alternatively, the court held that MIA had shown that the
disparity in pay between the claimants and the male
comparators was attributable to their relative experience and
qualifications. The EEOC appeals the district court's
grant of summary judgment to MIA.
appeal, the EEOC asserts that the district court erred in
awarding summary judgment in favor of MIA. The EEOC argues
that it made a prima facie showing of an EPA violation by
identifying four male Fraud Investigators who earned higher
starting salaries than the three claimants, who were assigned
lower salaries than the male comparators despite performing
identical work. In addition, the EEOC contends that MIA did
not establish as a matter of law that the disparity in pay
between the claimants and the male comparators was due to the
comparators' credentials and prior work experience.
response, MIA argues that the EEOC failed to identify valid
comparators and, thus, did not make a prima facie showing of
an EPA violation. According to MIA, the identified males
were not valid comparators, because MIA hired them at higher
steps on its pay scale than the steps to which the claimants
were assigned. Alternatively, MIA argues that even if the
EEOC made a prima facie showing of an EPA violation, MIA
established as a matter of law that any pay disparity between
the claimants and the comparators was based on gender-neutral
reasons involving the comparators' prior experience and
credentials that each claimant lacked. We disagree with
review the district court's award of summary judgment de
novo. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587-88 (1986); Carnell Constr.
Corp. v. Danville Redevelopment & Hous. Auth., 745
F.3d 703, 716 (4th Cir. 2014). We consider the evidence and
all inferences fairly drawn from ...