MS. MARY VALEN, Complainant

MORTGAGE GUARANTY INSURANCE CORP., Respondent

The Examiner of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on June 25, 1979. Complainant filed a timely petition for Commission review.

Based upon a review of the record in its entirety, the Labor and Industry Review Commission issues the following:

2. Complainant, Mary Valen, is a female who was employed by Respondent from October 6, 1975 until April 15, 1977.

3. Complainant was hired into Respondent's Deficiency Department which was a brand new department. Her position was deficiency adjuster at an annual salary of $8,400. Dennis Omick was hired as assistant manager of that department at a salary of $12,000 per year. They were hired at approximately the same time.

4. Previously to working for Respondent both Complainant and Mr. Omick had worked for Pacific Finance Company;  Complainant as an assistant manager and Mr. Omick as a manager.

5. In March of 1976 Jerry R. Logan was transferred from the Claims Department to the Deficiency Department as a temporary move because of the abolishment of the Claims Department. His salary was $12,200.   In keeping with Respondent's policy for transferred employes, his salary was not adjusted downward when he assumed the position of deficiency adjuster.

6.  In early 1976 a study was done of various persons including those in the Deficiency Department.   As a result of the study, Complainant and Mr. Logan kept the title of deficiency adjuster.  Mr. Omick's title was changed from assistant manager to deficiency adjuster. All of them were placed in salary grade 8.

7, Complainant was given a pay increase on July 16, 1976 to $9,200 per year to bring her salary up to the bottom of salary grade 8.   On October 1, 1976, as a result of her annual review, she received an increase to $10,120 per year.   She received another salary adjustment to $11,320 per year on January 1, 1977.

8. Mr. Omick remained at $12,000 per year until January 1, 1977 when he was given a pay increase to $12,975 per year.

9. At all times relevant to the complaint, Mr. Omick performed substantially the same duties as Complainant in deficiencies.  Both Mr. Omick and Complainant performed duties with recoveries. Approximately 30-35% of Mr. Omick's time was spent on recoveries and approximately 15-20% of Complainant's time was so spent.   Mr. Omick performed liaison duties with the Legal Department which Complainant at one time also performed. Both had organizing duties at the outset.

10. The work performed by Complainant was substantially similar to the work performed by Mr. Omick in that their work required an equal amount of skill and effort and entailed an equal degree of responsibility.

11. Neither Mr. Omick's experience nor his educational background enabled him to perform the job better than Complainant so as to justify a pay differential.

12. Complainant's sex was a factor in her receiving less pay than Mr. Omick.

13. Mr. Logan remained at an annual salary of $12,200 per year until January 1, 1977 when he received a pay increase to $12,950 per year.

14. At all times relevant to the complaint, Mr. Logan performed substantially the same duties as Complainant.

15. Prior to January 1,1977 Mr. Logan was paid more than Complainant because he had been earning that salary prior to his transfer.

16. After January 1, 1977 Mr. Logan was paid more than Complainant because of his sex.

1. Respondent is an employer within the meaning of the Act.

 2. Respondent discriminated against Complainant on the basis of sex in violation of the Act by paying her less wages than two male workers for doing substantially the same duties.

ORDER

1. That Respondent cease and desist from further discrimination against Complainant with respect to her wages.

2. That Respondent pay to Complainant the sum of money she would have earned had she been paid the same as Mr. Omick from October 6, 1975 until April 15, 1977.

3. That Respondent submit to the Commission within thirty days from the date this Order becomes final, a compliance report detailing specifically the action taken in compliance with said Order and the calculations used to determine the back pay awarded herein. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P. O. Box 8126, Madison, Wisconsin 53708.

Dated and mailed March 24, 1981

BY THE COMMISSION:

/s/ Virginia B. Hart, Chairman

/s/ John R. Hayon, Commissioner

In an equal pay case the complainant has the initial burden of showing not only that a disparity in pay existed but also that he or she performed work equal to or substantially similar to that being performed by the higher paid employe.  Once the complainant has established a prima facie case, the burden then shifts to the employer to show that a non-discriminatory reason existed for the difference in treatment. The complainant then has the obligation to show that the employer's reason was a pretext for sex discrimination.

In the present case the entire matter turns on whether or not the Complainant has met her burden to show that she performed work equal to or substantially similar to that being performed by Mr. Omick. The case turns on the issue of equal or similar work because the employer has not presented any legitimate reason for paying a greater salary to Mr. Omick other than as compensation for additional duties. The fact that Mr. Omick had supervisory experience and several years of college cannot justify his being paid more than the Complainant because there is no showing that supervisory experience or a college background were necessary to the better performance of the job held by Mr. Omick and the Complainant.   In Allison v. Jessen's Cleaners (DILHR 6/14/74)  the department stated that evidence aimed at establishing the experience or training actually possessed by job incumbents is not directly relevant to the determination of whether the jobs in question require equal skill.   Only testimony as to the amount of experience, training, education and ability which an employe needs to perform competently the jobs in question would be relevant.

Further, there is no evidence in the present case to suggest that the higher salary paid to Mr. Omick was a result of negotiation between employer and employe, although the record does indicate that Mr. Omick was being paid more than the Complainant at their prior employer, Pacific Finance Company.  But it is not the Commission's duty to speculate on this point and there is insufficient evidence to conclude that the Respondent found it necessary to pay Mr. Omick more than Complainant in order to induce him to change jobs.   In fact, the Respondent maintains that the primary reason why Mr. Omick was paid more was that he was given more duties and responsibilities.

The question then is whether or not the Complainant and Mr. Omick were performing jobs that required equal skill, effort and responsibility to an equal or substantially similar degree. The Examiner concluded that Mr. Omick's duties with recoveries and the legal department required more skills, effort and responsibility than the work being done by Complainant.

The record does establish that Mr. Omick handled dealings with the legal department. However, other than that bald statement of fact no other evidence is present to suggest that this particular duty required more skill, effort and responsibility than the work being done by the Complainant in deficiencies.   The record is silent as to how much time Mr. Omick spent doing his legal liaison duties.   Moreover, there is no showing as to what Mr. Omick's duties were as legal liaison, so it is not possible to determine whether extra skill and effort were involved. Additionally, the Complainant testified that she too had had dealings with the legal department.

As to the recovery work, Mr. Omick spent 15-20% more of his time doing recoveries than the Complainant.   However, as the department pointed out in Allison v. Jessen's Cleaners, supra, it is not enough to show that a difference in time spent on particular tasks exists in order to justify a differentiation in pay.  One must show that the more highly paid job involves additional tasks which (1) require extra effort, (2) consume a significant amount of the time of the individual being paid more, and (3) are of an economic value commensurate with the pay differential.  In the present case, the Commission questions whether the amount of time spent by Mr. Omick on recoveries is significantly different than the time spent by the Complainant.  Moreover, there is no showing that recovery work is more difficult than deficiency work so as to require extra effort.  As to the third factor, that of economic value, the Complainant's testimony tends to establish that she brought in more money as a result of her recovery work than did either Mr. Omick or Mr. Logan, even though she spent less time at it than did Mr. Omick. Although there is some question about the accuracy of the Complainant's computations, the employer did not refute her testimony by hard evidence. The employer merely states that it is not possible that between January of 1976 and December of 1976 that the Complainant had the most collections in recovery.  The employer does not rule out the possibility that the Complainant had an equal amount of collections in recovery in spite of her devoting less time to that task.

The Commission has given great weight to the fact that Mr. Omick's title was changed from assistant manager to deficiency adjuster, the same title held by the Complainant, after a job classification study was completed.  Although the employer contended that the job classification study did not take into account Mr. Omick's duties other than in deficiencies, it is doubtful that the employer would have followed the study's recommendation to change Mr. Omick's job title if the employer was in strong disagreement with the findings upon which that recommendation was based.

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