mail room to do accounting and sales-related work.
12. Kosar assumed many, but not all of the duties held by his
predecessor, Grayson. He was, however, involved in special
projects under the direction of Bouvier designed to draw upon
Kosar's background in computers.
13. Kosar is a 1973 graduate of Westminster College from
which he holds a Bachelor of Arts degree in accounting.
14. From 1974 through 1980, Kosar was employed by the Aetna
Standard Engineering Company where he served as a general
accountant and a cost accountant and billing supervisor. His
duties in this capacity included the preparation of hourly
payroll, domestic invoicing, posting sales registers and
subsidiary ledgers, and the preparation of manufacturing,
engineering, sales and administration statements. Kosar was
required by Aetna Standard to perform various computer-related
duties including placing into computer records such items as
payroll, inventory usage reports, accounts payable and
15. From 1980 to 1986, Kosar served as controller for the
Pittsburgh Computer Service Corporation where his duties
encompassed a variety of accounting responsibilities as well as
certain computer-related tasks including but not limited to the
development of custom software for customers to process on
mainframe, the demonstration of company accounting software
packages to potential customers, and the development of
software to run payroll, accounts receivable, accounts payable,
general ledgers and inventory packages on personal computers.
16. Immediately prior to being hired by defendant, Kosar was
a senior accountant for Tetra Engineered Systems and Tetra
Recovery Systems. While at Tetra, Kosar was responsible for
budget forecasting, accounts payable, accounts receivable,
invoicing and month-end closings which he performed on
computers that were connected to the corporate mainframe in
17. Toward the end of Kosar's tenure with defendant, certain
of his responsibilities as Chief Accountant were removed. In
early August, 1988, defendant hired James Phillips as a staff
accountant to perform computer programming and cost accounting
functions which were duties previously performed by Messrs.
Grayson and Kosar. These changes were precipitated by
defendant's desire to have an individual handle more
computer-related work than Kosar had been capable of providing.
18. For a brief period of time prior to Kosar's departure,
plaintiff assumed 20 to 25 per cent of Kosar's Accounting
duties while maintaining her own responsibilities. However,
plaintiff did not assume any of Kosar's special project duties.
19. Due primarily to his inflexibility toward getting
acquainted with the existing computer system and his inability
to control accounting department personnel, Kosar was given a
ninety-day termination notice by defendant. The long term
notice was given in order to facilitate Kosar's completion of
defendant's price list. Ultimately, Kosar left the employ of
defendant on August 31, 1988.
20. Prior to Kosar's departure, plaintiff had informed
defendant she was unsatisfied with her salary in that it was
not commensurate with the duties she was performing. As a
result, on March 23, 1988, plaintiff received a raise from
$16,000.00 to $17,600.00. She had asked for a salary in the
vicinity of $19,000.00 to $20,000.00. Plaintiff's raise
reflected defendant's generally favorable attitude toward her
21. For a period of several months prior to August 1, 1988,
plaintiff performed many, but not all of Kosar's duties as
Chief Accountant, as they had and were continuing to evolve,
without the benefit of having the title of Chief Accountant or
an increase in salary.
22. Plaintiff succeeded Kosar as Chief Accountant on July 1,
1988, which was effective August 1, 1988, at a salary of
$19,200.00. Plaintiff and defendant mutually agreed that she
would assume the position on a trial basis subject to a later
review. Such an arrangement was reached in light of plaintiff's
23. As Chief Accountant, plaintiff supervised two staff
personnel. When Kosar left defendant's employ, he had
supervisory responsibility for two staff personnel.
24. As Chief Accountant, plaintiff did not perform all of the
functions previously handled by Kosar. Specifically, plaintiff
did not perform cost accounting, reconciliations with banks,
and presentations of balance sheets. Nor did she assume any of
the special projects for which Kosar was responsible. As such,
the duties and responsibilities conferred upon plaintiff as
Chief Accountant varied in substance and form from those duties
held by Kosar which, in turn, varied substantially from the
duties maintained by Kosar's predecessor, Grayson.
25. In January of 1989, plaintiff complained to defendant
that her salary was inadequate based upon the work she was
being asked to perform. On January 27, 1989, plaintiff's salary
was increased to $23,000.00, an amount which was approximately
$1,000.00 short of the salary plaintiff requested. Plaintiff's
salary increase was premised upon defendant's belief that she
had performed well in her position.
26. On February 14, 1989, plaintiff asked defendant to
increase her salary to $28,000.00. Shortly after defendant's
refusal to increase plaintiff's salary, plaintiff filed a
complaint with the Equal Opportunity Employment Commission.
27. Plaintiff left the employ of defendant November 30, 1989,
to take a position with Trinity Industries as its Plant
Accountant at a starting salary of $28,000.00 per year.
DISCUSSION OF ISSUES
Plaintiff asserts in March of 1988, she began performing the
duties of the Chief Accountant at a pay scale of $12,000.00 per
year less than the salary of the Chief Accountant she replaced
and she continued as the Chief Accountant de facto at a salary
of $8,800.00 per year less than her predecessor. Plaintiff
contends on February 1, 1989, her salary was raised to a level
that was $5,000.00 per year less than the salary received by
the previous Chief Accountant.
Plaintiff maintains she was at all times better qualified
than her male predecessor, that her duties were more numerous,
and that the primary, if not sole basis for the salary
disparity, between herself and David Kosar was gender based.
Defendant maintains that Kosar was hired on the basis of his
14 1/2 years experience as an accountant, his six years as a
controller for another company, and his considerable computer
Defendant also asserts that plaintiff initially decided not
to pursue the position of Chief Accountant because she did not
believe she had been with defendant long enough to apply for
the vacant position.
Kosar's duties, according to defendant, were significantly
different from the duties assumed by plaintiff when she became
Chief Accountant. Both were responsible for the final
preparation of regular accounting statements, but Kosar was
involved with several projects and other accounting functions
which, because of limited experience, plaintiff was unable to
Defendant claims that 25 to 30% of Kosar's work was
eventually handled by plaintiff and that, in fact, another
person was hired to perform some of Kosar's duties in
anticipation of Kosar's departure.
Defendant also maintains inasmuch as it was impressed with
plaintiff's potential and given her limited experience, the
decision to hire her as Chief Accountant was made with the aim
of permitting her to grow into the position.
In sum, defendant argues that the salary disparity between
plaintiff and her male predecessor was not gender based, but
instead was based upon their relative experience, educational
background, and the prevailing market conditions.
DISCUSSION OF THE LAW
Section 206(d)(1) of the Equal Pay Act reads in relevant
No employer having employees subject to any
provisions of this section shall discriminate,
within any establishment in
which such employees are employed, between
employees on the basis of sex by paying wages to
employees in such establishment at a rate less
than the rate at which he pays wages to employees
of the opposite sex in such establishment for
equal work on jobs the performance of which
requires equal skill, effort, and responsibility,
and which are performed under similar working
conditions, except where such payment is made
pursuant to (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 . . .
29 U.S.C. § 206(d)(1).
A party asserting a claim under the Equal Pay Act bears the
initial burden of proving that his/her 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. Angelo v. Bacharach Instrument Company,
555 F.2d 1164 (3d Cir. 1977) quoting Corning Glass Works v. Brennan,
417 U.S. 188, 195, 94 S.Ct. 2223, 2228, 41 L.Ed.2d 1 (1974). Once
this threshold is crossed, the burden shifts to the employer to
show there is a legitimate reason for the discrepancy in pay.
Afterwards, the burden shifts back to plaintiff to establish by
a preponderance of the evidence the reason proffered by
defendant is only a pretext. See Chipollini v. Spencer Gifts,
814 F.2d 893 (3d Cir. 1987).
Under the Equal Pay Act, job content is controlling; the test
is not the identity of the positions under review but whether
they can be said to be of a substantial equality. However,
mechanical and surface similarities are inadequate to establish
the equality of two positions. Angelo v. Bacharach Instrument
The task of determining whether plaintiff has met her burden
of proving the "equal work" component of her claim is guided by
a determination of whether the jobs compared have a "common
core" of tasks, i.e., whether a significant portion of the two
jobs is identical. Brobst v. Columbus Services International,
761 F.2d 148 (3d Cir. 1985). If plaintiff establishes the
existence of this common "core", the inquiry then turns to
whether the different or additional tasks make the work
substantially different. Brobst v. Columbus Services, 761 F.2d
at 156. In any event, the Court is mindful that a pragmatic
approach to the issue of "job equality" is suggested by the
Brobst Court. (See 761 F.2d at 156, and the Circuit Court's
observation of the United States Supreme Court's approach to
this issue in Corning Glass Works v. Brennan, 417 U.S. at
202-03, 94 S.Ct. at 2231-32).
In view of the foregoing, the Court concludes that plaintiff
has failed to meet her threshold burden of proving the work she
performed was substantially equal to the duties performed by
her predecessor, Kosar. Neither immediately before Kosar's
departure, nor after, did plaintiff assume a significant
portion, or "core" of Kosar's duties. Plaintiff was not asked
to perform such duties held by Kosar as cost accounting, bank
reconciliations, or several of the special projects performed
by Kosar under the direction of Bouvier. Moreover, while both
plaintiff and Kosar's duties as Chief Accountant carried the
responsibility for the final preparation of regular accounting
statements, plaintiff assumed only 25 to 30% of Kosar's work.
It is evident from the facts that the position of Chief
Accountant was evolving in terms of the expectations placed
upon its holder. In large part, the expectations were governed
by defendant's needs as much as they were by the holder's
particular expertise. To the extent that there was any overlay
between the duties of Kosar and plaintiff in the capacity of
Chief Accountant, a showing that the positions held by Kosar
and plaintiff were merely comparable, without more, is not
sufficient to give rise to an inference that those positions
were "equal" as that term is used in the Equal Pay Act.
Angelo v. Bacharach Instrument Company, supra.
Finally, we note that were plaintiff to have met her initial
burden of showing "equal work", the facts of this case clearly
show that defendant substantiated its higher level of
compensation for Kosar by virtue of his educational background,
computer capabilities, fourteen 1/2 years of accounting
experience and the defendant's particular needs at the time it
was searching for Grayson's successor. By way of comparison,
Kosar had nearly five times the relevant experience as that
held by plaintiff not to mention his superior computer skills.
CONCLUSIONS OF LAW
The Court makes the following conclusions of law:
1. Plaintiff has failed to establish that her salary as
defendant's Chief Accountant was less than her male
predecessor's as a result of gender.
2. Plaintiff has failed to show that she and her predecessor
performed equal work as contemplated by the Act and the
relevant case law.
3. Pursuant to Section 206(d)(1)(iv) of the Equal Pay Act,
defendant has justified the salary differential paid to
plaintiff and Kosar based on such factors other than sex as,
educational background, 14 1/2 years of accounting experience,
superior computer skills, and defendant's particular needs at
the time it hired Kosar and plaintiff.
An appropriate Order will be entered.
AND NOW to wit, this 24th day of May, 1991, upon
consideration of the evidence presented to the Court in a
non-jury trial of Civil Action number 90-318,
Judgment is hereby entered in favor of defendant, Herion,
Inc., as against plaintiff, Kathleen Byrnes.
AND NOW to wit, this 24th day of May, 1991, upon
consideration of defendant's Motion for Counsel Fees and Costs
pursuant to 42 U.S.C. § 2000e-5(k),
it is HEREBY ORDERED the discretionary fees and costs shall
not be awarded inasmuch as the Court is satisfied that
plaintiff's Title VII claim was not brought in bad faith, or
for harassment purposes, or was frivolous, unreasonable, or
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