Jill Blackman v. Florida Department of Business and Professional Regulation

Case: 13-14742 Date Filed: 02/19/2015 Page: 1 of 49

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 13-14742
Argument Calendar
________________________

D.C. Docket No. 4:12-cv-00612-RH-CAS

JILL BLACKMAN,

Plaintiff - Appellant,

versus

FLORIDA DEPARTMENT OF BUSINESS
AND PROFESSIONAL REGULATION,

Defendant - Appellee.

________________________

Appeal from the United States District Court
for the Northern District of Florida
________________________

(February 19, 2015)

Before ED CARNES, Chief Judge, and JORDAN and ROSENBAUM, Circuit
Judges.

PER CURIAM:
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Jill Blackman appeals the district court’s grant of summary judgment in

favor of the Florida Department of Business and Professional Regulation on her

claims of gender-based salary discrimination under Title VII of the Civil Rights

Act, 42 U.S.C. § 2000(e)-2(a); the Florida Civil Rights Act, Fla. Stat. § 760.10;

and the Equal Pay Act of 1963, 29 U.S.C. § 206. The district court ruled that Ms.

Blackman failed to make out a prima facie case under Title VII or the EPA for all

but one of her alleged comparators, and that the DBPR proved legitimate,

nondiscriminatory reasons for the challenged pay disparities. Following a review

of the record, and with the benefit of oral argument, we affirm. 1

I

After starting as a typist for the DBPR in 1986, Ms. Blackman worked her

way up the organization in the Division of Pari-Mutuel Wagering. In 1998, she

earned a bachelor’s degree in political science and a certificate in public

administration. Approximately four years later, she was promoted to her first

management position in the DPMW as a Senior Management Analyst II. 2

1
“The Florida Civil Rights Act was patterned after Title VII, and Florida courts have construed
the [A]ct in accordance with decisions of federal courts interpreting Title VII. . . . As such, the
district court did not independently analyze [Ms. Blackman’s] Florida Civil Rights Act claims,
and they will not be independently analyzed in this opinion.” Wilbur v. Corr. Servs. Corp., 393
F.3d 1192, 1195 n.1 (11th Cir. 2004).
2
Although Ms. Blackman testified that she first started supervising others as a Senior
Management Analyst II, the record indicates that she may have assumed her first management
position as early as 2000 as a Licensing Administrator. See D.E. 18-1 at 5.
2
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When her predecessor, Mr. Royal Logan, retired in 2006, Ms. Blackman was

promoted to Bureau Chief of Operations. Upon being promoted, she received a

14% raise to a salary of approximately $57,700. See D.E. 18-1 at 18. Soon

thereafter, she received a legislatively-mandated 3% raise, bringing her salary to

approximately $59,500. Id. In 2007, however, the state stopped providing

legislatively-mandated annual raises, and Ms. Blackman’s salary remained static

until January of 2012, when she received a 3.4% discretionary salary increase to

$61,500. Id.

In July of 2010, Ms. Blackman viewed a public website with state salary

information and learned that the DBPR was paying her less than two male DPMW

bureau chiefs and one of her male subordinates. Believing that the differences

stemmed from gender discrimination, Ms. Blackman submitted a charge of

discrimination to the Florida Commission on Human Relations and the Equal

Employment Opportunity Commission. After receiving a right to sue letter from

the EEOC, she filed a complaint in Florida state court. The DBPR removed the

case to federal district court.

Ms. Blackman alleged that she was being paid less than five male employees

on the basis of her gender in violation of Title VII, the FCRA, and the EPA: (1)

Mr. Logan, the former Chief of Operations and her predecessor; (2) Mr. Steven

Kogan, the Chief of Investigations; (3) Mr. Dewayne Baxley, the Chief Auditing

3
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Officer; (4) Mr. John Karr, the Regional Program Administrator and her

subordinate; and (5) Mr. Joel White, a Special Projects Advisor to the DBPR

Secretary. The district court granted summary judgment to the DBPR. It

concluded that Ms. Blackman failed to establish a prima facie case of

discrimination because her male colleagues, other than Mr. Logan, were not proper

comparators under Title VII or the EPA due to differences in their job

responsibilities and skill sets. In addition, the district court ruled that the DBPR

had established legitimate, nondiscriminatory reasons for the pay disparities

between Ms. Blackman and her male colleagues, including Mr. Logan.

II

We review de novo a district court’s order granting summary judgment,

“viewing all the evidence, and drawing all reasonable inferences, in favor of the

non-moving party.” Vessels v. Atl. Indep. Sch. Sys., 408 F.3d 763, 767 (11th Cir.

2005). Summary judgment is appropriate where “there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a). “Speculation or conjecture cannot create a genuine issue of

material fact, and a mere scintilla of evidence in support of the nonmoving party

cannot overcome a motion for summary judgment.” S.E.C. v. Monterosso, 756

F.3d 1326, 1333 (11th Cir. 2014) (internal quotation marks omitted).

4
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III

We analyze claims under the EPA using a burden-shifting framework

similar to that employed in the Title VII context. To establish a prima facie case

under the EPA, a plaintiff “must show 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.” Arrington v. Cobb Cnty., 139 F.3d 865, 876 (11th

Cir. 1998) (internal quotation marks omitted). Although “the plaintiff need not

prove that her job and those of her comparators are identical[,] . . . the standard for

determining whether jobs are equal in terms of skill, effort, and responsibility is

high.” Mulhall v. Advance Sec., Inc., 19 F.3d 586, 592 (11th Cir. 1994) (internal

quotation marks and alterations omitted). If the plaintiff establishes a prima facie

case, the burden shifts to the employer to prove “by a preponderance of the

evidence . . . that the [pay] differential is justified by one of four exceptions set

forth in the EPA . . . ‘(i) a seniority system; (ii) a merit system; (iii) a system which

measures earnings by quantity or quality of production; or (iv) a differential based

on any other factor other than sex.’” Irby v. Bittick, 44 F.3d 949, 954 (11th Cir.

1995) (quoting 29 U.S.C. § 206(d)(1)). If the employer demonstrates that “the

factor of sex provided no basis for the wage differential,” the plaintiff must show

that the proffered explanation is either “pretextual or offered as a post-event

5
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justification for a gender-based differential.” Id. (internal quotation marks

omitted) (emphasis in original).

On appeal, Ms. Blackman argues that the district court erred in granting

summary judgment on her EPA claims with respect to Messrs. Baxley, Kogan, and

Karr. Our review of the record, however, indicates that the district court did not

err in ruling that Ms. Blackman failed to establish a prima facie case with respect

to Messrs. Baxley, Kogan, and Karr. As to Mr. Baxley, even assuming that he was

a proper comparator under the EPA—and on this record, we conclude that he was

not—the district court did not err in ruling that the DBPR had a legitimate,

nondiscriminatory explanation for the salary differential between him and Ms.

Blackman, and that Ms. Blackman failed to introduce sufficient evidence to create

an issue of material fact as to whether this explanation was pretextual.

Although Ms. Blackman bore the burden of demonstrating that the “jobs at

issue are substantially similar,” Arrington, 139 F.3d at 876, aside from an

organizational chart showing that Mr. Karr—a DPMW Regional Program

Administrator—was her subordinate, she introduced almost no evidence regarding

the “skills and qualifications actually needed to perform [Mr. Karr’s] job[ ].”

Mulhall, 19 F.3d at 592 (internal quotation marks omitted). Nor did she provide

any evidence demonstrating that the actual content of her job and Mr. Karr’s job

were substantially similar. See Arrington, 139 F.3d at 876 (“[T]he controlling

6
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factor in the court’s assessment of whether two jobs are substantially equal must be

actual job content.”). Ms. Blackman merely testified, without providing any

specifics, that Mr. Karr “is not required to do the same level of work [nor does he]

have the same level of responsibility.” D.E. 20-1 at 76. But such conclusory

testimony alone is insufficient to create a genuine issue of material fact. See

Monterosso, 756 F.3d at 1333 (“Speculation or conjecture cannot create a genuine

issue of material fact[.]”). By leaving the district court in the dark regarding the

content of Mr. Karr’s position vis-à-vis her position, Ms. Blackman failed to

establish a prima facie case under the EPA. This is particularly so given the

DBPR’s unrebutted evidence that, “[e]ven though Mr. Karr is [subordinate to] Mrs.

Blackman in the organizational structure, their duties are not similar.” D.E. 18-1 at

7 (noting as an example that Mr. Karr, unlike Ms. Blackman, “routinely travels to

the pari-mutuel facilities in the Southern Region to address personnel issues,

scheduling issues, compliance issues, and to meet with track representatives”).

And unlike Ms. Blackman, Mr. Karr is responsible for inspecting DBPR facilities

to ensure they are adequately maintained and that the animals are treated humanely

and according to law. See id. These facts militate against Ms. Blackman’s

argument that her job was similar to Mr. Karr’s. 3

3
Ms. Blackman’s concern with respect to Mr. Karr appears to be that, although he is her
subordinate, his salary is higher than hers. When asked at her deposition whether she should be
paid the same as Messrs. Baxley and Kogan, Ms. Blackman responded: “Philosophically, yes.
7
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Our dissenting colleague believes that Mr. Karr and Ms. Blackman are

appropriate comparators under the EPA in part because Ms. Blackman indirectly

supervised the same employees that Mr. Karr did. We respectfully disagree.

Police sergeants and police lieutenants do not have substantially similar jobs just

because they both supervise patrolmen and patrolwomen—sergeants directly, and

lieutenants indirectly.

The dissent also asserts that Mr. Karr and Ms. Blackman had substantially

similar jobs because Mr. Karr had the same responsibilities as Ms. Blackman, just

on a smaller scale. But, as we explained above, the record establishes that their

jobs were different in kind, and not merely degree; and it is the actual job content

that controls. See Arrington, 139 F.3d at 876.

Accordingly, we conclude that Ms. Blackman failed to meet her burden of

demonstrating that, as to Mr. Karr, the “jobs at issue [were] substantially similar.”

Id.

Ms. Blackman similarly failed to introduce sufficient evidence to support a

prima facie case with respect to Mr. Kogan. 4 Ms. Blackman argues that she

But, again, I feel that more importantly an individual who reports directly to me who is not
required to do the same level of work or have the same level of responsibility as me should not
be making more than me.” D.E. 21-1 at 76. We note that Ms. Blackman was not the only
bureau chief being paid less than Mr. Karr. Messrs. Baxley and Kogan—both of whom are
males—were also paid less. See D.E. 23-5 at 2, 5-6.
4
Our dissenting colleague agrees that Mr. Kogan and Ms. Blackman are not proper comparators
under the EPA.
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satisfied her burden by introducing (1) an organizational chart showing the

“hierarchical ‘parity’ between the respective Bureau Chiefs,” (2) testimony from

Mr. Kogan demonstrating that he considered Ms. Blackman his “peer,” and (3) an

email from Joe Dillmore, DPMW Deputy Director, to the heads of all six DPMW

divisions referring to the bureau chiefs as “key staff” capable of fulfilling director

duties. See Appellant’s Br. at 18-20. This evidence, however, does not create a

genuine issue of material fact as to the similarity of the actual content of the jobs.

Although Mr. Kogan and Ms. Blackman are both bureau chiefs, it is the “actual job

content,” not job titles or job descriptions that is controlling. See Arrington, 139

F.3d at 876. See also Mulhall, 19 F.3d at 592 (“Job titles are a factor for

consideration, but are not dispositive.”).

Ms. Blackman does not dispute that Mr. Kogan has investigative skills and

that his bureau conducts investigations. She also admits that she does not have Mr.

Kogan’s investigative skills. See D.E. 20-1 at 38. Because “investigative

knowledge [is] more than an incidental part of [Mr. Kogan’s] position” as Chief of

Investigations, the district court properly determined that he is not a comparator to

Ms. Blackman under the EPA. See Mulhall, 19 F.3d at 593. 5

5
Implicitly acknowledging the insufficiency of this evidence, Ms. Blackman asserts that
Carolynn Trabue, the highest earning DPMW bureau chief, is not a proper comparator under the
EPA—despite her “hierarchical parity” with the other bureau chiefs, and despite her inclusion on
the “key staff” email from Mr. Dillmore—because of the specific skill set required for her
position as Chief of Slots.
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As for Mr. Baxley, Ms. Blackman introduced scant evidence to show that his

job was substantially similar to her own. In her opposition to the DBPR’s motion

for summary judgment, Ms. Blackman attempted to demonstrate that her job as

Chief of Operations was substantially similar to the jobs of the other DBPR bureau

chiefs, including Mr. Baxley, but pointed only to (1) an organizational chart

showing the “hierarchical ‘parity’ between the respective Bureau Chiefs,” (2)

testimony from Mr. Kogan demonstrating that he considered Ms. Blackman his

“peer,” (3) an email from Mr. Dillmore referring to the bureau chiefs as “key

staff,” see D.E. 23 at 8-10, and (4) job descriptions for the Chief of Operations and

the Chief of Auditing, see D.E. 23-15, 23-16. And when the district court asked

Ms. Blackman’s counsel at the hearing on summary judgment to explain how the

jobs were similar, he had trouble doing so. See D.E. 39 at 9-13.

Our dissenting colleague concludes that this evidence is sufficient to

establish that Mr. Baxley is an appropriate comparator under the EPA. We again

respectfully disagree. As we have noted, our cases require us to examine the

“actual job content,” not just job titles and descriptions. Arrington, 139 F.3d at

876. Moreover, Ms. Blackman’s testimony belies her claim that her job was

substantially similar to Mr. Baxley’s. When asked why she compared herself to

Messrs. Baxley and Kogan and Ms. Trabue, Ms. Blackman responded that “we are

all chiefs.” D.E. 20-1 at 36. Ms. Blackman further testified that Mr. Baxley, as

10
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Chief of Auditing, oversaw auditors and conducted audits, and admitted that

experience in conducting audits was a skill set she did not possess. Id. at 38-39. It

is difficult to see how Ms. Blackman can argue that each bureau chief has

substantially the same job, on the one hand, while on the other hand admitting that

each bureau chief possessed a distinct skill set. On this record, we conclude that

Ms. Blackman failed to create a genuine issue of material fact with respect to the

similarity of the jobs. See Miranda v. B&B Cash Grocery Store, Inc., 975 F.2d

1518, 1534 (11th Cir. 1992).

Even assuming that Ms. Blackman raised a genuine issue as to whether Mr.

Baxley was a proper comparator under the EPA, the DBPR offered sufficient

evidence to show that the differential in pay was based on Mr. Baxley’s “auditing

experience, management experience, and his education in accounting and business

administration.” D.E. 18-1 at 9.6 It is undisputed that Mr. Baxley worked in a

managerial capacity for the DPWM for 13 years before becoming a bureau chief,

far longer than Ms. Blackman. During this time, Mr. Baxley received

legislatively-mandated annual raises (which were not gender-based) on a higher

base salary than Ms. Blackman. Mr. Baxley, moreover, has two bachelor’s

degrees, one in accounting and another in business administration, both of which

6
As of July of 2010, Mr. Baxley was earning $62.09 more than Ms. Blackman per pay period.
See D.E. 23-5 at 2, 5 (Mr. Baxley was earning $2,349.41 per pay period, and Ms. Blackman was
earning $2,287.32 per pay period).

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were relevant to his work as Chief Auditing Officer. Although Ms. Blackman has

a single bachelor’s degree in political science, it is unrelated to her position as

Chief of Operations. These differences in experience and education between Mr.

Baxley and Ms. Blackman sufficiently demonstrate that their salary differential

was based on factors other than gender. 7

Ms. Blackman offered no evidence to create a triable issue that these reasons

were pretext for discrimination. See Irby, 44 F.3d at 956 (explaining that

“[e]xperience is an acceptable factor other than sex” that may be rebutted by a

plaintiff showing that she had “equal or more experience of the same type”). On

appeal, Ms. Blackman instead argues that the DBPR waived its gender-neutral

reasons by failing to plead them below.

We reject this argument. Because Ms. Blackman was on notice that the

DBPR planned to assert legitimate, nondiscriminatory reasons for its actions, see

D.E. 1-1 at 15, the district court did not abuse its discretion in considering the

DBPR’s gender-neutral reasons. See Mitchell v. Jefferson Cnty. Bd. of Educ., 936

F.2d 539, 544 (11th Cir. 1991). As Ms. Blackman offers no substantive arguments

for her contention of pretext on appeal, we affirm the district court’s grant of

summary judgment to the DBPR on Ms. Blackman’s EPA claims.

7
At the time of his promotion to Chief Auditing Officer, Mr. Baxley received only a 5% raise
over his then-current salary. Ms. Blackman, by comparison, received a 14% raise at the time of
her promotion to Chief of Operations. See D.E. 18-1 at 18, 25.
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IV

In disparate treatment cases under Title VII based on circumstantial

evidence, we usually apply the familiar burden-shifting framework of McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). Although Title VII has a “relaxed

standard of similarity between male and female-occupied jobs[,]”Miranda, 975

F.2d at 1526, to make out a prima facie case of pay discrimination under Title VII,

the plaintiff must show by a preponderance of the evidence that “the employee she

identifies as a comparator [is] similarly situated [to the plaintiff] in all relevant

respects.” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1091 (11th Cir. 2004)

(internal quotation marks omitted). “[I]f the plaintiff makes out a prima facie case,

the defendant must produce a legitimate, nondiscriminatory reason to explain the

challenged action.” Arrington, 139 F.3d at 873. The employer’s burden is

“exceedingly light.” Batey v. Stone, 24 F.3d 1330, 1334 (11th Cir. 1994) (internal

quotation marks omitted). “If [the] defendant meets [its] burden of production, the

presumption raised by the prima facie case is rebutted and drops from the case,”

unless the plaintiff can “demonstrate that the employer’s legitimate reason was in

fact, pretextual.” Mulhall, 19 F.3d at 598 (internal quotation marks omitted).

We affirm the district court’s grant of summary judgment in favor of the

DBPR on Ms. Blackman’s Title VII claims with respect to Messrs. Baxley, Kogan,

and Karr. As discussed above with respect to her EPA claims, Ms. Blackman

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failed to create a genuine issue of material fact as to the similarity of her job and

the jobs held by Messrs. Baxley, Kogan, and Karr, even under Title VII’s relaxed

standard of similarity, because she introduced insufficient evidence concerning the

actual content of the jobs held by these individuals. Nor did she introduce any

evidence to show that the DBPR’s legitimate, nondiscriminatory reasons for the

difference in her salary and Mr. Baxley’s salary were pretexts for discrimination.8

We agree with the district court that Mr. Logan, Ms. Blackman’s

predecessor as Chief of Operations, was a proper comparator under Title VII. We

also agree with the district court, however, that the DBPR provided legitimate,

nondiscriminatory explanations for the salary differential between Mr. Logan and

Ms. Blackman. First, the record indicates that Mr. Logan, who held a bachelor’s

degree in business management and a master’s degree in management and

supervision, had better qualifications for the position than Ms. Blackman, who

only had a bachelor’s degree in political science. Second, and more importantly,

Mr. Logan, unlike Ms. Blackman, benefitted from legislatively-mandated annual

raises (which were gender-neutral) during his entire 13-year tenure as Chief of

Operations. As a result, Mr. Logan, who was making a salary of $52,780 in 2000,

was earning $72,000 at the time of his retirement in July of 2006.

8
Because she does not advance on appeal any arguments with respect to Mr. White,
Ms. Blackman has waived any argument that he was a proper comparator under Title VII.
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Ms. Blackman concedes that it was not discriminatory for her to make less

than Mr. Logan when she first started as Chief of Operations. See D.E. 20-1 at 48.

Rather, she argues that her salary in 2012 should have come close to Mr. Logan’s

2006 salary, because his salary increased from $52,780 to $72,000 over the course

of six years—approximately the same amount of time that Ms. Blackman held the

same position. See Appellant’s Br. at 24. But, as the DBPR correctly argues,

Ms. Blackman’s salary would have been closer to Mr. Logan’s salary at retirement

if Ms. Blackman had benefitted from annual legislatively-mandated raises from

2007 to 2012. Indeed, had Ms. Blackman received these annual pay raises, as Mr.

Logan did, she would have been making approximately $71,000 at the time she

filed her complaint in 2012 (assuming a 3% annual increase). 9 In short, the salary

difference is a function of the annual raises (and compound interest) from which

Mr. Logan benefited, and Ms. Blackman did not.

Because Ms. Blackman introduced no evidence to demonstrate that the

DBPR’s legitimate, nondiscriminatory reasons for the pay differential between her

and Mr. Logan were pretextual, we affirm the district court’s grant of summary

judgment in favor of the DBPR on this claim.

9
We arrive at this estimate using an annual compound interest formula, where the amount of
money earned after 6 years of annual 3% raises equals the starting salary of $59,500 multiplied
by (1.03)6.
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V
For the foregoing reasons, we affirm the district court’s grant of summary

judgment in favor of the DBPR on all of Ms. Blackman’s claims.

AFFIRMED.

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ROSENBAUM, Circuit Judge, dissenting.

Jill Blackman has presented more than enough evidence for a jury

reasonably to find that, for years, the Florida Department of Business and

Professional Regulation (“DBPR”) has paid her less than comparably situated male

employees for no legitimate reason that stands up to any scrutiny. She has

established a prima facie case that men with substantially similar jobs were paid

more for their work than she was for hers, and, based on the evidence submitted in

connection with DBPR’s motion for summary judgment, a jury could reasonably

and easily find that DBPR’s proffered legitimate reasons for the pay differentials

are internally inconsistent and are contradicted by the evidence. For these reasons,

I respectfully dissent from the Court’s affirmance of summary judgment for DBPR

in this case.

I. Background Facts

As the Court notes, the Equal Pay Act and Title VII analyses involve, to

different degrees, a comparison of Blackman’s duties with those of her chosen

comparators and an evaluation of any evidence that might suggest that DBPR’s

proffered reasons for paying Blackman less than any similarly situated colleagues

are pretextual. Both of these tasks require knowledge of the details of the duties

and employment histories of Blackman and her chosen comparators. Towards that
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end, this section sets forth the relevant facts about Blackman and each of her

proposed comparators.

A. Jill Blackman

Jill Blackman holds a Bachelor of Science degree in political science with a

minor in criminology and a certificate in public administration. 1 She began

working for the State of Florida as a full-time, career-service employee in February

1986 and started working at DBPR as a data-entry operator in 1988. Blackman has

worked for her entire career in DBPR’s Division of Pari-Mutuel Wagering

(“PMW”) and has held a management position since 2000.

She was promoted to the position of Chief of Operations of PMW in

September 2006. Throughout the two years before her promotion, Joe Dillmore,

the Deputy Director of PMW, advised Blackman that she was the “heir apparent”

to and most suitable person for the position and that she would replace her then-

supervisor, then-Chief of Operations, Royal Logan, when he retired. Blackman

was well-versed in everything that had to do with the Chief-of-Operations position;

others described her as the “knowledge champion,” the “data steward,” and the

“subject matter expert” for the Operations division.

1
Florida State University, from which Blackman obtained her degree, offers a certificate in
public administration and describes the purpose of its certificate as “provid[ing] a greater degree
of specialization in a chosen area.” http://coss.fsu.edu/prospective-students/undergraduate-
minors (last visited Feb. 4, 2015). According to FSU’s website, the public-administration
certificate covers topics including “[a]dministrative law, budgets and finances in managing
public affairs, civic and non-profit management, local government administration, emergency
management, and public administration in American society.” Id.
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From June 2004 until her promotion, Blackman received a base pay of

$1,948.67 every two weeks. Upon her promotion in September 2006, Blackman’s

pay increased to a base pay of $2,220.70. Shortly thereafter, in October 2006, a

legislative raise for Florida employees bumped Blackman to a base pay of

$2,287.32, an annual salary of approximately $59,700. This is where her salary

stayed until she received a “merit-based” pay increase in December 2011 after

filing the Equal Employment Opportunity Commission (“EEOC”) charge related to

this case, which brought her base pay to $2,365.38.

As Chief of Operations, Blackman is responsible for ensuring that the day-

to-day operations of races are conducted legally. She oversees all of the licensing

for PMW, including the occupational licensing, the permit-holder licensing, the

annual-operating-date licensing, the card-room licensing, and the slot-machine

licensing. The implementation of slot-machine operations and regulations was

new to PMW at the time that Blackman was promoted, so Blackman took on

considerably more job responsibility—approximately 25% more—than her

predecessor, Royal Logan.

Blackman also oversees all blood-sample collection and drug testing for

racing animals. She is responsible for supervising all individuals and field staff

involved in the actual collection of the samples, the chain of custody, and the

shipments to the University of Florida College of Medicine’s Racing Laboratory,

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where the samples are analyzed for prohibited substances. All testing results are

sent to Blackman, and the Office of Operations handles the results under her

supervision.

The Office of Operations is the largest bureau in PMW, and Blackman

supervises more employees, both directly and indirectly, than any other Chief in

PMW. Six employees report directly to Blackman, including John Karr, a

Regional Program Administrator. Blackman also indirectly supervises at least

seventy other employees.

B. John Karr

John Karr has a high-school diploma and began working for the State of

Florida in 1979 part time as a ticket taker at a facility in Dania. He became a full-

time, career-service employee as an auditor in 1986. In or around 1991, Karr

became a regional manager for auditing.

While Joe Dillmore attested that Karr’s management position “has been the

same . . . (putting aside organizational restructuring and renaming of positions)

since [1991],” other evidence in the record clearly contradicts this statement. For

example, Karr testified that in 2000, he was promoted to be the Southern Regional

Manager, a position in which he was in charge of both auditing and investigations

for PMW. At later points, which are discussed below, auditing and investigations

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were broken off into their own sections within PMW, headed by their own chiefs.

As a result, Karr ceased supervising auditing and investigations.

In 2004, under the title of Southern Regional Manager, Karr made a base

salary of $2,268.63 per two-week pay period. He also participated in interviewing

and hiring Steven Kogan to work beneath him as an investigations supervisor. At

that time, six investigators reported to Karr.

As pari-mutuel wagering expanded in Florida—new tracks opened up and

card rooms became larger—Karr realized that DBPR needed more investigators,

and he decided that DBPR required a completely separate investigations bureau.

So, in 2006, Karr and Dillmore agreed to promote Kogan to Chief of

Investigations. Shortly thereafter, Blackman was promoted to Chief of Operations

and became Karr’s supervisor. At that time, Karr still made a base pay of

$2,268.63, but in October 2006, a raise bumped him to a base pay of $2,420.81, an

annual salary of approximately $63,100.

Currently, Karr is the Regional Program Administrator for PMW. In this

position, Karr has less responsibility than he did when he served as the Southern

Regional Manager, in that he no longer supervises auditing or investigations, and

he supervises fewer people.

Karr now directly supervises only two people—one regional manager

responsible for equine racing and one regional manager responsible for dog racing

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and jai alai. He also supervises approximately 68 chief inspectors and licensing

employees indirectly. As the Regional Program Administrator, Karr is responsible

for facilities inspections to ensure that the facilities are adequately maintained and

that the animals are treated humanely and lawfully. In addition, he “routinely

travels to the pari-mutuel facilities in the Southern Region to address personnel

issues, scheduling issues, compliance issues, and to meet with track

representatives.”

C. DeWayne Baxley

DeWayne Baxley has a Bachelor of Science degree in Accounting and a

Bachelor of Science degree in Business Administration, and he began working for

the State of Florida in 1990. In April 1992, Baxley started working at DBPR in

PMW as a senior auditor, a position in which he managed other auditors, but he

left a little over a year later, in July 1993, to take another state position with a

different entity in a different location. Baxley returned to PMW in November

1994 as an auditor supervisor. In about July 2004, Baxley made a base salary of

$2,096.87 per pay period, and a raise in October 2006 increased his base pay to

$2,237.53.

Almost a year later, in about September 2007, Baxley was promoted to

Chief Auditing Officer. Upon his promotion, his base pay increased to $2,349.41

per pay period, an annual salary of approximately $61,300. As the Chief Auditing

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Officer, Baxley is essentially the chief of auditing for PMW. He is responsible for

ensuring that pari-mutuel, card-room, and slot-machine wagering are conducted in

compliance with Florida statutes and the Florida Administrative Code. He

supervises annual compliance audits and auditing employees who reconcile pari-

mutuel wagering pools to ensure patrons receive proper payouts. Baxley serves as

the main point of communication for the Office of Auditing, has full authority for

all auditing issues, and performs “high level approval and decision making.”

D. Steven Kogan

Steven Kogan has a high-school diploma and worked for a number of years

in law enforcement before he began working for the State of Florida in 1994. In

2004, he was interviewed and hired by Karr and another individual to work as an

investigations supervisor for PMW. As an investigations supervisor, Kogan

received a base pay of $1,589.46 per pay period until a raise in September 2005

increased his base pay to $1,729.01. He reported directly to Karr and was

responsible for working with and overseeing the investigations conducted by the

investigators in the unit. Kogan directly supervised seven investigators and two

secretaries, about nine employees total.

In April 2006, PMW created the Chief-of-Investigations position and

appointed Kogan to fill it. With this promotion, Kogan’s base pay increased to

$2,298.85, and a raise shortly thereafter, in October 2006, increased it to

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$2,367.82, an annual salary of approximately $61,800. He supervised the same

employees and did basically the same work that he had done as an investigations

supervisor.

As Chief of Investigations, Kogan oversees investigations and works with

the investigators to make sure the investigations are done properly and to help

them complete their assignments. The Investigations section seeks regulatory

compliance for horse-racing, dog-racing, jai-alai, card-room, and slot-machine

operations, and it ensures that permit holders and players follow the statutes and

rules. Since 2006, the Office of Investigations has expanded, and Kogan now

supervises three employees directly and approximately eighteen employees

indirectly.

II. Equal Pay Act Claims

A. Prima Facie Case

Blackman has introduced sufficient evidence to support a prima facie case

under the EPA, comparing her job to those of Baxley and Karr. Under the EPA, as

the Court acknowledges, Blackman “need not prove that her job and those of the

comparators are identical,” but rather that the jobs require substantially similar

skills, effort, and responsibility. Mulhall v. Advance Security, Inc., 19 F.3d 586,

592 (11th Cir. 1994). Significantly, “[c]omparators’ prior experience is not

relevant to the ‘substantially similar’ inquiry.” Id. In addition, the EEOC has

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opined that in interpreting the terms “equal skill, equal effort, [and] equal

responsibility” from the EPA, “the broad remedial purpose of the law must be

taken into consideration.” 29 C.F.R. § 1620.14(a).

1. Blackman Compared to Karr

Karr qualifies as a proper comparator for Blackman under the EPA.

Blackman supervises Karr in the Office of Operations, and Karr reports directly to

Blackman. The record reflects that Karr and Blackman supervise the same

employees in the same area who are performing the same functions. Karr

supervises two regional managers directly—one responsible for equine racing and

one responsible for dog racing and jai alai—and approximately 68 chief inspectors

and licensing employees indirectly. Blackman supervises, either directly or

indirectly, all of the employees in the Office of Operations, including those who

Karr supervises. She is responsible for ensuring that all races are conducted in

accordance with the law, and she is in charge of all licensing, blood-sample

collection from racing animals (such as the ones collected by the regional

supervisors for equine racing and dog racing, who report to Karr), and drug testing.

Put simply, Blackman supervises at a higher level, is required to do more work,

and has more responsibility than Karr.

Nor does DBPR’s perfunctory allegation that “Mrs. Blackman’s job duties

are different from Mr. Karr’s job duties” rebut these specific facts showing the

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substantial similarity of the two positions. To demonstrate the differences between

Blackman and Karr’s duties, DBPR offers only the following:

Mr. Karr is responsible for facilities inspections to ensure
adequate maintenance and that the animals are treated
humanely in accordance with Florida Statutes. Mr. Karr
also routinely travels to the pari-mutuel facilities in the
Southern Region to address personnel issues, scheduling
issues, compliance issues, and to meet with track
representatives. Mrs. Blackman does not typically travel
to pari-mutuel facilities for these reasons.

Conspicuously absent from this description is any indication that Blackman is not

also responsible as a supervisor for facilities inspections to ensure compliance with

Florida law. And, in fact, Blackman’s position description shows that she is. It

affirmatively states that she is responsible for “[c]oordinat[ing] all pari-mutuel

operations activities . . .” and that she [d]evelops and implements on-the-job

training procedures for all personnel involved [in] on-site pari-mutuel operations

. . . .” (Emphasis added).

As for DBPR’s point about Karr’s travels, once again, all of the reasons that

Karr travels to the Southern Region involve duties that Blackman is also and

ultimately responsible for. Indeed, Blackman directly or indirectly supervises all

personnel in Operations; as far as scheduling goes, she “[c]oordinates all pari-

mutuel operations activities and plans work loads, work flows, deadlines, work

objectives, and time utilization of subordinate employees,” one of whom is Karr;

and she is responsible for “the implementation of rules, policies, and procedures
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applicable to conduct of pari-mutuel field operations, sample collections, and

licensing . . . .” So, when DBPR’s statement is closely reviewed, the only arguable

real difference between Karr’s position and Blackman’s position, other than that

Blackman has more responsibility than Karr and supervises him, is that Karr

travels for the stated purposes, while Blackman apparently travels for other

purposes.

But this trivial difference does not allow DBPR to escape the grasp of the

EPA. Significantly, the EEOC has explained that, under the EPA, “differences in

skill, effort or responsibility which might be sufficient to justify a finding that two

jobs are not equal within the meaning of the EPA if the greater skill, effort, or

responsibility has been required of the higher paid sex, do not justify such a finding

where the greater skill, effort, or responsibility is required of the lower paid sex.”

29 C.F.R. § 1620.14. If an employer could circumvent the protections of the EPA

by merely piling more work onto its female employees than its male employees,

the EPA would be meaningless. As the EEOC has stated, “[A] serious question

would be raised where . . . an inequality [in pay], allegedly based on a difference in

job content, is in fact one in which the employee occupying the job purportedly

requiring the higher degree of skill, effort, or responsibility receives the lower

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wage rate. . . .” 2 29 C.F.R. § 1620.13(d); see also Mulhall, 19 F.3d at 591-92

(offsite project managers who reported to plaintiff and sought her approval were

similarly situated to plaintiff for purposes of the EPA); Riordan v. Kempiners, 831

F.2d 690, 699 (7th Cir. 1987) (noting that while “the work of a supervisor and of

the workers she supervises is necessarily different[,]” “an employer cannot avoid

the [EPA] by the simple expedient of loading extra duties onto its female

employees—unless it pays them more”); Hein v. Or. Coll. of Educ., 718 F.2d 910,

917 (9th Cir. 1983). Because Karr is responsible for the same DBPR operations as

Blackman, just on a smaller scale, he is a proper comparator to Blackman under

the EPA. At the very least, Blackman has certainly raised a material issue of fact

concerning whether Karr is a proper comparator—all that she needed to do to

survive summary judgment on this issue.

2. Blackman Compared to Baxley

2
My colleagues in the Majority appear to take issue with Blackman’s concern that Karr is paid
more than she, even though he is subordinate to her. See Maj. Op. at 7 n.3. The Majority notes,
“When asked at her deposition whether she should be paid the same as Messrs. Baxley and
Kogan, Ms. Blackman responded: ‘Philosophically, yes. But, again, I feel that more importantly
an individual who reports directly to me who is not required to do the same level of work or have
the same level of responsibility as me should not be making more than me.’” Id. As the EEOC
regulations show, however, Blackman’s concern is a legitimate one under the EPA. Moreover,
the fact that Baxley and Kogan, who were both paid more than Blackman, were paid less than
Karr is not relevant to the inquiry into whether Blackman’s and Karr’s positions were
substantially similar—that is, whether the positions required substantially similar skills, effort,
and responsibility. While Karr’s salary in comparison to those of Baxley and Kogan may be
relevant to the pretext issue, that is a separate inquiry. But, as explained below, the record
contains sufficient evidence to raise a material issue of fact regarding pretext as it pertains to
Blackman’s salary relative to those of Karr and Baxley, even though Karr was paid more than
Baxley.
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Baxley is also a proper comparator for purposes of the EPA. Blackman and

Baxley are both Bureau Chiefs who report directly to Dillmore. They are both

required to do essentially the same work within their particular subject areas,

including certain projects, such as rulemaking or rule review. And they are also

both considered “key staff” capable of fulfilling some Director duties. Likewise,

both Blackman and Baxley must comply with financial-disclosure laws.

And significantly, a comparison of the official DBPR job position

descriptions for Blackman’s position and Baxley’s position—that is, the way that

DBPR itself objectively described the positions of Chief of Operations and Chief

of Auditing at a time when Blackman’s EPA and Title VII challenges were not

pending—reveals only negligible differences between the two positions. For

example, both position descriptions list precisely the same “[k]nowledge, skills,

and abilities, including utilization of equipment, required for the position”:

1. Thorough knowledge of Chapters 550, 551, and
849.086, Florida Statutes.
2. Thorough knowledge of Chapter 61D, Florida
Administrative Code.
3. Excellent written and verbal communication skills
4. Ability to establish and maintain effective working
relationships with employees, all levels of
management, and customers.
5. Identify problems/issue and present feasible
solutions
6. Lead, direct, coordinate, supervise and manage the
work of staff
7. Provide leadership and motivation

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This list can be boiled down to two overriding themes with respect to the

necessary knowledge, skills, and abilities required for both the positions of Chief

of Operations and Chief of Auditing: (1) strong management skills, and (2) a

thorough knowledge of PMW’s responsibilities, powers, and duties. The position

descriptions for Chief of Operations and Chief of Auditing are absolutely identical

in these regards, right down to the exact word choice and punctuation. Neither

position description identifies any type of knowledge, skill, or abilities required to

do the job that the other does not.

We have previously explained that when we conduct a job comparison under

the EPA, “[o]nly the skills and qualifications actually needed to perform the jobs

are considered. . . . The examination also rests on primary, as opposed to

incidental or insubstantial job duties. . . . The plaintiff need not prove that her job

and those of the comparators are identical; the test is one of substantiality, not

entirety.” Mulhall, 19 F.3d at 592 (internal citations and quotation marks omitted).

Here, the position descriptions demonstrate that the skills and qualifications

necessary for both Chief positions are precisely—not even just substantially—the

same.

And the duties and responsibilities that each position description sets forth

are substantially similar, as reflected below by the emphasized portions of the

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duties and responsibilities of the Chief of Auditing, in comparison to the duties and

responsibilities of the Chief of Operations:

Duties and Responsibilities of Chief of Operations
• Responsible for the development and
implementation of rules, policies, and procedures
applicable to conduct of pari-mutuel field
operations, sample collections, and licensing for
[PMW].
• Develops and implements on-the-job training
procedures for all personnel involved [in] on-site
pari-mutuel operations and conducts special
training sessions on new laws, rules, licensing
methods, and department requirements.
• Coordinates all pari-mutuel operations activities
and plans work loads, work flows, deadlines, work
objectives, and time utilization of subordinate
employees.
• Researches, evaluates, and recommends
management policy, practices, and control systems
which improve the effectiveness of pari-mutuel
operations, licensing, and/or Division operations.
• Maintains and provides statistics necessary to
support PB2 measures.
• Creates and maintains flow charts for major
business processes of the work unit.
• Establishes annual goals and objectives for the
work unit.
• Effectively communicates with the Office of the
Director regarding developing and on-going pari-
mutuel and licensing issues.
• Performs other duties or special projects as
required.

Duties and Responsibilities of Chief of Auditing
• Responsible for the development and
implementation of rules, policies, and procedures
applicable to conduct of pari-mutuel compliance

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audits, hub auditing, and quality assurance for
[PMW].
• Develops and implements on-the-job training
procedures for all personnel involved [in] audit
and conducts special training sessions on new
laws, rules, licensing methods, and department
requirements.
• Coordinates all pari-mutuel audit activities and
plans work loads, work flows, deadlines, work
objectives, and time utilization of subordinate
employees.
• Researches, evaluates, and recommends
management policy, practices, and control
systems which improve the effectiveness of pari-
mutuel auditing and quality assurance.
• Maintains and provides statistics necessary to
support PB2 measures.
• Ensures the reliability of all PB2 measures, data,
and collection processes.
• Creates and maintains flow charts for major
business processes of the work unit.
• Establishes annual goals and objectives for the
work unit.
• Effectively communicates with the Office of the
Director regarding developing and on-going pari-
mutuel and cardroom issues.
• Assists the legal staff in the prosecution of cases
and administrative actions against licensees
• Performs other duties or special projects as
required.

As these position descriptions reveal, both Chiefs conduct almost the same

managerial duties, only each does so with regard to her or his particular subject-

matter area. So, for example, while both Chiefs are “[r]esponsible for the

development and implementation of rules, policies, and procedures applicable to

conduct of pari-mutuel” activities, the Chief of Operations must conduct these
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tasks as they relate to operations, while the Chief of Auditing must perform them

as they regard audits. But the mere fact that each Chief executes her or his

managerial duties with regard to different subject-matter areas does not somehow

render the two otherwise nearly identical managerial duties and responsibilities not

substantially similar for purposes of the EPA analysis, since “[t]he plaintiff need

not prove that her job and those of the comparators are identical; the test is one of

substantiality, not entirety.” Mulhall, 19 F.3d at 592.

The position descriptions are the same in other regards as well: beyond the

knowledge, skills, and abilities and duties and responsibilities previously

discussed, neither position description has any “[l]icensure/registration/certifi-

cation requirements” or “[o]ther job-related requirements.” And both identify the

Equal Employment Opportunity (“EEO”) designation for position attributes as

“02” (professionals) and the EEO collective bargaining unit as “87” (SES

Supervisory Unit (excluded from the right to collectively bargain)). Similarly,

neither position is entitled to overtime. 3

The Majority responds to this overwhelming evidence of the substantial

similarity of “skills and qualifications actually needed to perform” Blackman’s and

Baxley’s jobs, Mulhall, 19 F.3d at 592 (internal quotation marks omitted), by
3
Florida has also classified both positions within the same pay grade (530), pay-grade
minimum ($45,173.44), and pay-grade maximum ($101,525.53). See
http://www.dms.myflorida.com/workforce_operations/human_resource_management/for_state_h
r_practitioners/broadband_classification_and_compensation_program at link for Broadband
Crosswalk December 2014 at lines 1073, 1247 (last visited Dec. 30, 2014).
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attempting to marginalize it, stating, “As we have noted, our cases require us to

examine the ‘actual job content,’ not just job titles and descriptions.” Maj. Op. at

10 (citing Arrington v. Cobb Cnty., 139 F.3d 865, 876 (11th Cir. 1998)). But

Arrington, the case that the Majority relies upon for that proposition, provides no

basis for the job descriptions in this case to be effectively ignored.

In Arrington, the Fire Department had an Assistant Fire Chief for

Administration and an Assistant Fire Chief for Operations. 139 F.3d at 868-69.

The plaintiff served as the Assistant Fire Chief for Administration. Id. at 868.

While the plaintiff was the Assistant Fire Chief for Administration, despite the fact

that the plaintiff was not the Assistant Fire Chief for Operations in name, a

management study of the Department found that the plaintiff was actually

functioning as the Fire Chief’s second in command for both Administration and

Operations. Id. at 869. The Fire Chief himself agreed. Id. When the Department

was restructured, the two Assistant Fire Chief positions were eliminated and

replaced with a single Deputy Chief position. Id. at 869-70. Instead of being

selected for that position, the plaintiff was instead demoted to the position of

Lieutenant. Id. at 870. The plaintiff brought suit, alleging, among other causes of

action, a violation of the EPA in that her alleged “successor” in the Deputy Chief

position was paid more than she had received for her substantially equal work as

the Assistant Chief. Id.

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In concluding that a jury might reasonably find that the Deputy and

Assistant Chief positions were “substantially equal,” we explained, “While

appellees emphasize [the plaintiff’s] formal job title, [the plaintiff] points to

significant evidence indicating that she exercised a wide range of duties as ‘second

in command’ to [the] former Chief . . . , duties which very closely track those

actually performed by [the] Deputy Chief . . . .” Id. at 876. In other words, the

plaintiff presented evidence that she actually did far more than her job title or

description as Assistant Fire Chief for Administration represented. When faced

with a conflict between the paper job title and description, on the one hand, and the

actual content of the job that the plaintiff did, on the other, we made a common-

sense determination that reality must govern.

That common-sense determination to allow reality to govern should apply

with equal force in this case, where Blackman has submitted the position

descriptions as uncontested evidence of what her job and Baxley’s job entail.

Unlike in Arrington, Defendant here has presented no evidence to suggest that the

description for either Blackman’s or Baxley’s position is incomplete or somehow

wrong in actuality. DBPR does not contend that Baxley and Blackman engage in

functions not set forth in their position descriptions, nor does it assert that they do

not actually undertake the duties and responsibilities articulated in their position

descriptions. DBPR similarly does not claim that the “[k]nowledge, skills, and

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 Case: 13-14742 Date Filed: 02/19/2015 Page: 36 of 49

abilities, including utilization of equipment, required for [each] position” are not

precisely what is stated in the position descriptions—no more and no less. Instead,

to show that the two Chief positions are not “substantially similar,” DBPR relies

exclusively on the fact that Blackman and Baxley conduct the same Chief

managerial functions with respect to different subject matter.

But the managerial skills, knowledge, duties, and responsibilities, which are

nearly identical for both positions—not the subject areas over which Baxley and

Blackman use their managerial skills and knowledge and perform their managerial

responsibilities—are at the core of the positions. DBPR’s litigation position is

much like saying that an associate attorney working on Title VII litigation does not

engage in substantially similar work to an associate attorney at the same large firm

working on Fair Labor Standards Act litigation, even though both attorneys must

draft and respond to interrogatories, production requests, and requests for

admission; take and defend depositions; research legal issues; and prepare legal

briefs. The problem with such a construction of the “substantially similar”

requirement is that it ignores the actual meaning of the phrase “substantially

similar.” “Similar” means “[r]elated in appearance or nature; alike though not

identical. . . .” The American Heritage Dictionary of the English Language 1622

(4th ed. 2000) (emphasis added). “Substantial” means “1. Of, relating to, or

having substance; material. 2. True or real; not imaginary. . . . 5. Considerable in

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 Case: 13-14742 Date Filed: 02/19/2015 Page: 37 of 49

importance, value, degree, amount, or extent . . . .” Id. at 1727. Under the

Majority’s interpretation of the phrase, however, I respectfully submit that it is

difficult to imagine a case where a plaintiff will be able to show “substantial

similar[ity]” between two high-level managerial jobs that are not identical—a

troubling proposition, considering that when high-level management positions are

involved, there is generally no functional need for two identical management

positions near the top of a structural hierarchy. In short, in my opinion, Baxley is

an appropriate comparator under the EPA.

3. Blackman Compared to Kogan

Similar to Baxley, Kogan is a Bureau Chief who reports directly to Dillmore

and is required to do essentially the same work as the other Chiefs, including

certain projects, such as rulemaking or rule review. He is also considered “key

staff” capable of fulfilling some Director duties. But Blackman has not satisfied

her burden to establish Kogan as a proper comparator to herself under the EPA.

Unlike with Baxley, the record contains no job position description for Kogan’s

Chief-of-Investigations position. For this reason, the record simply does not

include enough information to determine whether Kogan is a proper comparator

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 Case: 13-14742 Date Filed: 02/19/2015 Page: 38 of 49

for Blackman. So I agree with the Court that, at least for purposes of the EPA, 4

Kogan is not an appropriate comparator.

B. Evidence of Pretext

Not only has Blackman introduced sufficient evidence to make out a prima

facie case with respect to Karr and Baxley, she has also introduced enough

evidence to raise a genuine issue of material fact about whether DBPR’s proffered

legitimate, nondiscriminatory reasons for the disparities between her salary and the

salaries of Karr and Baxley are pretextual. “At summary judgment, plaintiff’s

burden is simply to raise a genuine factual question as to the existence of pretext.”

Mulhall, 19 F.3d at 598. The plaintiff need not present evidence beyond that used

to make the prima facie showing. Id. If a plaintiff demonstrates that a material

issue of fact exists regarding whether the employer’s proffered reason for the pay

disparity is pretextual, summary judgment must be denied. See Arrington, 139

F.3d at 876.

DBPR contends that it considers several factors in determining an

employee’s salary, including (1) experience, (2) education, and (3) longevity, and

that these factors account for the discrepancies between Blackman’s salary and the

salaries of Karr and Baxley. There is no question that experience, education, and

4
Kogan may well be a proper comparator for purposes of Title VII. Because I conclude that
Baxley and Karr are appropriate comparators under Title VII, however, and because this case is
not being remanded for further proceedings, I do not also explore whether Kogan may so qualify.
38
 Case: 13-14742 Date Filed: 02/19/2015 Page: 39 of 49

longevity (or, seniority) can be legitimate, nondiscriminatory reasons for pay

disparities when they are, in fact, the reasons for pay disparities. In this case,

however, Blackman has submitted sufficient evidence to raise a material question

about whether, in fact, experience, education, and longevity were the actual

reasons for the pay disparities between Blackman and Baxley and between

Blackman and Karr. As a result, summary judgment on the EPA claim should be

reversed.

1. Salary Disparity Between Blackman and Baxley

When Blackman was promoted to serve as Chief of Operations in September

2006, she received a pay increase to $2,220.70 per pay period, which became

$2,287.32 per pay period in October 2006. A year after Blackman was appointed,

in September 2007, Baxley became the Chief of Auditing at a higher salary of

$2,349.41 per pay period. Blackman has presented evidence that raises a material

issue of fact regarding whether the true reasons that Baxley was paid more than

Blackman are experience, education, and longevity, as DBPR contends.

With regard to education, DBPR has claimed that “[a]n employee’s

education, especially considering where the education is directly related to the

employee’s job, is . . . a consideration in determining salary.” A review of the

record, however, suggests that DBPR did not actually give much weight to

education—if it even considered it at all—when it set salaries for Baxley and Karr,

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and the record contains no evidence showing that DBPR considered Blackman’s

education at the time that it set her salary as Chief of Operations. And, to the

extent that education may have been considered, it does not explain the salary

differentials.

First, on behalf of DBPR, Dillmore asserts that Baxley’s Bachelor of

Science degrees in accounting and business administration justify, at least in part,

the fact that his salary was higher than Blackman’s. But Dillmore did not even

mention Baxley’s degrees or education at the time that he recommended hiring

Baxley as the Chief of Auditing and set forth the justification for establishing his

salary. Instead, Dillmore stated simply, “Mr. Baxley’s significant experience,

knowledge, and insight will be vital to the regulatory oversight of the Office of

Auditing. Based on these qualities, I recommend that he start at . . . $61,319.60

annually.” 5 Substituting Blackman’s name and her relevant position, the same

could have been accurately said about Blackman when she was hired as the Chief

of Operations: “Ms. Blackman’s significant experience, knowledge, and insight

will be vital to the regulatory oversight of the Office of Operations.” In fact,

5
If my colleagues in the Majority mean to suggest that the pay differential between
Baxley and Blackman was relatively small, see Maj. Op. at 11 n.6, (“As of July of 2010, Mr.
Baxley was earning $62.09 more than Ms. Blackman per pay period.”), I am sure that the Court
agrees that it was nonetheless a meaningful differential to the person who did not receive it. And
a differential in pay of $62.09 per pay period—or $1,614.34 per year—is no more lawful under
the Equal Pay Act and Title VII than a larger one, if it is attributable to the fact that the lesser-
paid employee is a woman.

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Dillmore nearly said as much about Blackman’s qualifications to serve as Chief of

Operations before she was appointed to the position: “I [Dillmore] told [the

Division Director] I thought with [Blackman’s] knowledge, skills, and abilities she

could fulfill the role [as Chief of Operations].” Dillmore’s attempts now for the

first time—six years after Dillmore wrote the letter recommending Baxley’s salary

without referring to Baxley’s education as a justification—to recharacterize the

justifications for setting Baxley’s starting salary higher than Blackman’s as being

based in part on Baxley’s educational degrees raises a question of pretext.

Second, even if Baxley’s education had factored into the setting of his

salary—a contention that is not supported by the contemporaneous evidence--

Blackman’s education should have been considered to the same degree in

establishing her salary as a Chief. Both Blackman and Baxley have the same

extent of education—both are college graduates. And, despite DBPR’s and the

Majority’s assertions to the contrary, Blackman’s educational background is highly

relevant to her responsibilities as the Chief of Operations at PMW.

Blackman has a Bachelor of Science degree in political science with a minor

in criminology and a certificate in public administration. Her study of criminology

is extremely pertinent to her duties and responsibilities as the Chief of Operations:

Blackman supervises the taking of and chain of custody on blood-sample

collections and determines what to do with drug-test results. And Blackman’s

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specialized higher education in public administration is likewise directly relevant

to Blackman’s day-to-day duties because she oversees a division of a public

regulatory agency and supervises numerous public employees. But DBPR did not

appear to account for these relevant aspects of Blackman’s education despite

claiming that “education, especially considering where the education is directly

related to the employee’s job, is . . . a consideration in determining salary.”

Third, Karr testified that, for several years before Baxley was appointed as

the Chief of Auditing, he was in charge of auditing. Unlike Blackman and Baxley,

Karr does not have a college education, but he was nevertheless paid more than

Baxley (and Blackman) at all times. This evidence creates a serious question about

whether DBPR’s claim that Baxley’s higher salary was based in part on his

education is pretextual.

As for experience, DBPR likewise does not appear to have accounted for

Blackman’s experience in the same way that it evaluated Baxley’s. First, while it

is true that Baxley worked in a managerial capacity for DBPR for approximately

six years longer than Blackman at the time that Baxley was promoted to serve as

the Chief of Auditing, Blackman had a year of experience successfully serving as a

Chief—not simply a lower-level manager—that Baxley lacked. Blackman also

worked at DBPR for about six years longer than Baxley did in total. Yet

Blackman’s additional six years of longevity seem to have had no effect on her

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salary in relation to Baxley’s, even though Dillmore contended that longevity was

one of the key considerations in setting salary and relied on it in part to try to

explain Karr’s higher salary. 6

And Baxley’s “significant experience and knowledge in the field of

auditing” is no more considerable than Blackman’s undisputed, extensive

experience and knowledge in the fields of operations and licensing. Indeed, when

Blackman began her position as Chief of Operations, she had eighteen years of

experience in Operations and was roundly regarded as “the knowledge champion,”

the “data steward,” and the “subject matter expert” for the Operations Division.

Dillmore himself even told Blackman for two years before she was promoted that

she was the “heir apparent” to the Chief-of-Operations position. DBPR presented

no evidence that managing auditing is more challenging, more strenuous, or more

important to DBPR than managing operations so as to justify Baxley’s higher

salary. In fact, Blackman’s Chief position requires her to supervise more

6
The Majority notes that, at the time of her promotion to Chief, Blackman received a 14% pay
increase, while Baxley received only a 5% pay increase when he became Chief. Maj. Op. at 12
n.7. The reasons for the pay disparity between Blackman and Baxley before they became Chiefs
is not a subject of this lawsuit, so the record does not provide a basis for us to evaluate the
reasons for the pay differential. Obviously, though, if gender discrimination explains why
Blackman’s salary was so much lower than Baxley’s before each became a Chief, the fact that
Baxley received an incrementally smaller pay increase than did Blackman upon becoming a
Chief cannot justify Baxley’s continued higher salary at the time both became Chiefs. Nor,
without more, can the mere fact that Baxley was paid more than Blackman before each became a
Chief serve as a legitimate reason for why Baxley was paid more than Blackman when they each
took their Chief positions. Indeed, “prior salary continuation alone is not a legitimate factor
other than sex which would justify a pay disparity.” Irby v. Bittick, 44 F.3d 949, 958 (11th Cir.
1995) (Carnes, J., dissenting).
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employees than Baxley’s Chief position, as the Office of Operations is the largest

bureau in PMW.

Finally, it is worth noting that, after Blackman filed her lawsuit, DBPR gave

her what it characterized as a “merit-based” salary increase to $2,365.36 per pay

period, in comparison to Baxley’s $2,349.41 per pay period. DBPR did this, even

though Blackman’s education, experience, and longevity did not change relative to

Baxley’s: the record contains no evidence that either Blackman or Baxley obtained

any other educational degrees; Baxley still had six years’ more management

experience than Blackman; and Blackman still had more years of service at DBPR

than Baxley. Moreover, Dillmore and others at DBPR had recognized Blackman’s

knowledge and merit since before she was appointed as the Chief. Indeed, that is

why she was appointed as a Chief. That Blackman is now paid more than Baxley

for serving as a Chief further suggests that nothing about the inherent nature of the

Chief-of-Auditing position explains why Baxley was paid more for assuming that

role than Blackman was upon becoming the Chief of Operations.

For these reasons, a jury could reasonably find DBPR’s proffered reasons

for Baxley’s higher salary than Blackman’s to be pretextual. As a result, summary

judgment should not have been granted.

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2. Salary Disparity Between Blackman and Karr

At the time that Blackman was promoted to be the Chief of Operations, and,

as such, Karr’s supervisor, in October 2006, Blackman was paid $2,220.70, and

Karr was paid $2,268.63. Blackman’s and Karr’s respective salaries rose to

$2,287.32 and $2,420.81, respectively, per pay period in October 2006. Even

today, more than eight years after Blackman’s promotion to Karr’s supervisor,

Karr is paid more than Blackman. DBPR contends that “Karr’s salary[] is not due

to gender, but is the result of his high level of management experience with DBPR

and his longevity.”

First, this explanation conveniently omits reference to educational

background, which DBPR claimed was so important with respect to establishing

Baxley’s salary at a higher rate than Blackman’s. In light of DBPR’s claim that

educational background is a considerable factor in setting salary, the omission of

this factor from DBPR’s explanation of why Karr’s salary is still higher than

Blackman’s in and of itself raises a question about whether DBPR’s proffered

reasons for the salary differential between Blackman, on the one hand, and Karr

and Baxley, on the other, is pretextual. Of course, had DBPR relied on educational

background in setting Blackman’s salary in relation to Karr’s, it would have had to

have accounted for the fact that Blackman held both a relevant college degree and

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a relevant certificate, while Karr had neither. That fact would have made it more

difficult to explain the pay difference between Karr and Blackman.

Second, as to longevity, Blackman and Karr both became full-time career-

service employees for the State of Florida in 1986. In fact, salary documents

indicate that Blackman’s original appointment date preceded Karr’s original

appointment date by several months. It is true that at the time of Blackman’s

appointment as Chief, Karr had worked in a management position for

approximately nine years longer than Blackman. But, upon her appointment as

Chief of Operations, Blackman has held and continues to hold a higher position

than Karr and has supervised him (and has done so for the past eight years, despite

the fact that he continues to be paid more than she is). This evidence raises yet

another material question of fact about whether the reasons that DBPR provided

for paying Blackman less than Karr were pretextual. For this reason, summary

judgment should have been denied.

III. Title VII Claims

A. Prima Facie Case

The standard for establishing a prima facie case under Title VII is more

relaxed than the standard under the EPA, so “if [a] plaintiff makes a prima facie

case under the EPA, she simultaneously establishes facts necessary to go forward

on a Title VII claim.” Mulhall, 19 F.3d at 598. Because Blackman established a

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prima facie case with respect to Karr and Baxley under the EPA, then, she also

established a prima facie case with respect to those comparators under Title VII. 7

But even if the difference in the subject areas that Baxley and Blackman

manage were enough to conclude as a matter of law that Baxley’s job as Chief of

Auditing was not substantially similar to Blackman’s job as Chief of Operations,

the close similarities between the two positions would surely suffice to at least

create a material issue of fact concerning whether Baxley was a proper comparator

for purposes of Title VII. In Mulhall, we considered a similar case.

There, the plaintiff was the Vice President of Administration for her

company, which specialized in security. Id. at 588. She was responsible for risk

management, numerous personnel issues, loss prevention, litigation, insurance

claims, licensing, leases, and other matters. Id. She sought to compare herself to a

man who was appointed as the president of the company’s investigations division.

Id.

7
Because I conclude that there is enough to reverse the grant of summary judgment using Baxley
and Karr as comparators and because this case will not be remanded since I am not in the
Majority, I do not separately address Logan as a comparator, except to note that the evidence of
record does not appear to support the Majority’s conclusion that Logan’s salary was so much
higher than Blackman’s because of annual legislatively mandated cost-of-living-type raises. See
Maj. Op. at 14-15. The record reveals that Logan was paid $52,780 in 2000 and then somehow
jumped to a salary of about $66,000 just three years later in 2003. When he left in 2006, Logan
was paid about $72,000. It seems highly unlikely that Logan obtained legislatively mandated
cost-of-living-type raises totaling 25% of his salary in the three-year period between 2000 and
2003. This circumstance raises a question of pretext with respect to the DBPR’s explanation for
why Logan’s salary, even in 2003, was so much higher than Blackman’s was in 2006 and than
Blackman’s remains even today.
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While we recognized that “investigative and administrative work are

dissimilar,” we nonetheless considered whether the administrative work of starting

and running a new division was substantially similar to the administrative work

that the plaintiff had done in her position. Id. We observed, “Both positions are

fairly described as ‘corporate department heads,’ with both plaintiff and [the

comparator] reporting to [the company’s] president. Many of the job functions are

identical. For example, both employees had responsibilities vis-à-vis affirmative

action, EEO and coordination with other corporate entities.” Id. Although we

concluded that the plaintiff had not established that her position and that of the

proposed comparator were “substantially similar” for purposes of the EPA

analysis, we nonetheless noted that the record was “devoid of evidence regarding

the amount of time and effort [the man] actually expended on investigative

supervision, and the extent to which that supervision entailed personal

investigative experience rather than generalized supervisory skills,” and we

concluded that the plaintiff had “raised a genuine issue of material fact regarding

the similarity of the positions for the purposes of a Title VII suit.” Id. at 599.

Blackman’s case is more compelling. As discussed previously, unlike in

Mulhall, where there was no indication that the skills and qualifications necessary

for both positions were the same or even similar, here, DBPR itself has identified

precisely the same necessary skills and qualifications for both Blackman’s job and

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Baxley’s job. Similarly, in contrast to Mulhall, where the laundry list of the

plaintiff’s duties and responsibilities appears to have varied widely from the duties

and responsibilities of the comparator, here, the core duties and responsibilities—

managerial in nature—are nearly the same, just involving different subject matter.

And, as in Mulhall, the record contains no evidence concerning the amount of time

and effort that the comparator spends on the actual subject matter of his area, as

opposed to on management of his division. For all of these reasons, our precedent

requires the conclusion that Blackman at least has raised a material issue of fact

regarding whether Baxley is a proper comparator for purposes of Title VII.

B. Evidence of Pretext

The analysis regarding pretext is the same under the EPA and Title VII. See

Irby v. Bittick, 44 F.3d 949, 954 (11th Cir. 1995); Mulhall, 19 F.3d at 598. Thus,

for the reasons discussed above, a genuine issue of material fact exists as to

whether DBPR’s proffered reasons for the wage disparities between Blackman and

Karr and Baxley are pretextual.

IV. Conclusion

For the foregoing reasons, the record contains material issues of fact

concerning both Blackman’s EPA and Title VII claims. Therefore, I would reverse

the order of summary judgment and remand for further proceedings.

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