Equal Employment Opportunity Commission v. University Of Miami

United States District Court

for the

Southern District of Florida

Equal Employment Opportunity )

Commission, Plaintiff, )

)

& )

)

Louise Davidson–Schmich, ) Civil Action No. 19-23131-Civ-Scola

Intervenor-Plaintiff, )

)

v. )

)

University of Miami, Defendant. )

Order on Cross-Motions for Summary Judgment

The Equal Employment Opportunity Commission (“EEOC”) brings claims

of gender discrimination in pay against the Defendant University of Miami (the

“University”) under the Equal Pay Act, 29 U.S.C. § 206(d)(1), and Title VII of the

Civil Rights Act, 42 U.S.C. § 2000e–2. The EEOC alleges that the University

discriminated against Louise Davidson–Schmich, Intervenor Plaintiff and a

professor at the University, by paying her less than her counterpart John

Gregory Koger, a male professor who performed the same job at the University.

(ECF No. 1).

The EEOC and the University have filed cross-motions for summary

judgment. The EEOC filed a motion for partial summary judgment on the

University’s affirmative defenses of laches, failure to mitigate, and failure to

conciliate. (See generally, EEOC Mot. for Summary J., ECF No. 79.) The

University moves for summary judgment on all the EEOC’s claims. (See

generally University Mot. for Summary J., ECF No. 82.) The University avers

that the record shows that Davidson–Schmich and Koger did not perform the

same job at the University. And even if they did perform the same job, the

University contends that the record shows that the pay differential was based

on factors other than the professors’ sex. Both motions have been fully briefed,

with both sides filing their oppositions and replies. The Court has carefully

reviewed the parties’ written submissions, the record, and the relevant case

law. For the reasons discussed below, the University’s motion for summary

judgment is denied (ECF No. 82) and the EEOC’s motion for partial summary

judgement is granted in part and denied in part. (ECF No. 79.)

1. Facts

The following background facts are based on the parties’ factual

submission including the University’s and the EEOC’s respective statements of

undisputed facts and responses thereto1, and their respective exhibits,

including deposition transcripts and communications.

A. The University’s Political Science Department

The University’s political science department is currently part of the

College of Arts and Sciences. The department is not officially divided into

different subclasses, but generally, there are five different subclasses within

the field of political science: (1) American politics, (2) comparative politics, (3)

international relations (4) theory, and (5) public administration. The University

does not impose different guidelines or requirements based on the subfields of

political science. Rather, the requirements are based on the different ranks

within the department: assistant professor, associate professor, and full

professor. The associate professor and full professor ranks require success in

three areas: teaching, research, and service. (West Dep., ECF No. 104–2 at

120:9–17); (Bachas Dep., ECF No. 104–3 at 41:22–42:15). These three

requirements and all department guidelines are applied equally to all

subspecialities although the types of venues for publication or benchmarks

may be different for subspecialities. (Bachas Dep., ECF No. 104–3 at 138:19–9,

139:4–18); (Sugrue Dep., ECF No. 104–5 at 139:92–18.). The department’s

guidelines state that “the most important indicator of [success in scholarship]

is publication in high-quality, peer reviewed research on a continuous basis.”

(ECF No. 104–17.)

When the University identifies a need for a new hire within the political

science department, it publishes a job posting and a salary range is

determined. (West Dep., ECF No. 104–2 at 156:23–157:25.) The University,

through various department heads including Dean Leonidas Bachas, Dean

Paul Sugrue, and Department Chairs Jonathan West and Fred Frohock,

consider several factors in determining an appropriate salary for a specific

position. They consider the salaries of comparable professors within the

department and at other institutions. (Id. at 144:7–145:1, 160:24–161:20.) The

University did not refer to a written guidance or list of salaries at other

institutions and employed a less formal process involving what members of the

1 In its reply, the University argues that the EEOC failed to clearly challenge the University’s

statement of facts by pointing to specific parts of the record. While the EEOC’s citations were

not perfect, its statement of facts sufficiently disputed the University’s statement of facts with

citations to the record.

department knew about the salaries at other institutions. (West Dep., ECF No.

104–2 at 149:10–25.) In the early 2000s, it was impossible to determine what

the actual market was for professors due to lack of information, and the

market was gauged with offers that were accepted versus those that were

rejected. (Sugrue Dep., ECF No. 104–5 at 244:2–246:4.) Sometime after 2009,

after Bachas became Chair, the University began performing a CUPA analysis

to aid in calculating salaries by referring to an official public list of salaries at

various institutions that could be narrowed by each university. (Bachas Dep.,

ECF No. 104–3 at 22:2–23:12.) The University also considers candidate-specific

information like credentials, past teaching experience, research record, and

publications. (West Dep., ECF No. 104–2 at 163:3–17.)

The University provides annual salary increases from fixed merit and

market pools set by the Board of Trustees. (Pl. Statement of Facts, ECF No. 106

at ¶ 117); (Def. Reply Statement of Facts, ECF No. 118 at ¶ 117.) The raises for

individual professors are at the discretion of the Chair and the Dean. (Pl.

Statement of Facts, ECF No. 106 at ¶ 117); (Def. Reply Statement of Facts, ECF

No. 118 at ¶ 117.) There are no written guidelines about how to award merit or

market raises; however, factors that could be considered were: teaching,

service, and research, publications, and the salary structure of the department.

Indeed, merit increases were based on the professors’ performance in the prior

year as reported in annual activity reports. (Pl. Statement of Facts, ECF No.

106 at ¶ 120.) Market increases are meant to address counteroffers or risk of

being poached by other institutions. (Id. at ¶ 121.)

B. The University Hires Davidson-Schmich and Koger

Davidson–Schmich earned a doctorate degree in political science from

Duke University in 1999 and her specialization is in comparative politics. (Pl.

Statement of Facts, ECF No. 106 at ¶ 78.) In 2000, the University hired

Davidson–Schmich as an assistant professor in political science with a

specialization in comparative politics. (Id. at ¶ 78.) Her initial salary was

$50,000. (Id. at¶ 80.) This position was subject to reappointment every year.

Davidson–Schmich was reappointed to her position every year. In 2003 and

2005, Davidson–Schmich requested a course reduction due to parental

responsibilities. (Def. Statement of Facts, ECF No. 80 at ¶¶ 13–15.) In 2005,

Davidson–Schmich obtained a book contract with the University of Notre Dame

Press to publish a book. (Id. at ¶ 17.) Dean Sugrue’s subjective opinion is that

Notre Dame Press is not as prestigious as the University of Chicago Press.

(Sugrue Dep., ECF No. 104–5 at 288:21–289:4.)

In 2006, Davidson–Schmich applied for a promotion to associate

professor with tenure at the University. (Def. Statement of Facts, ECF No. 80 at

¶ 20.) In February 2007, the University informed Davidson–Schmich that her

application had been approved and she was promoted to the position of

associate professor effective June 2007. (Id. at ¶ 21.) However, the Tenure and

Promotions Committee voted against her tenure citing lack of significant

impact in her field. (Id.) In April 2007, the University informed Davidson–

Schmich that her salary as an associate professor would be $72,504. (Id. at ¶

23.)

In 2005, the University posted a position for an associate or full professor

in the political science department with a specialization in American politics.

(Id. at ¶ 25.) That same year, Koger, who at the time was teaching at the

University of Montana, applied for the position. (Id.) During this time, he had

been applying to comparable positions at other institutions. (Id.) He received

offers from the University and from Texas Tech University. (Id.) He turned down

both offers. (Id.) Texas Tech’s employment offer came with a salary of $50,000,

which Koger attempted to negotiate but cannot recall the final number. (Koger

Dep., ECF No. 104–1 at 43:1–12.) He rejected the offer because he was waiting

on an application for a scholarship he applied to through a different institution.

(Id. at 44:23–45:2.) He ultimately did not receive the scholarship. Koger cannot

recall the University’s offer but does remember that he turned it down because

he was concerned that the offer was inadequate given the higher cost of living

in Miami. (Koger Dep., ECF No. 104–1 at 49:23–50:13.)

In 2006 or 2007, Koger learned that the position at the University was

still available and reapplied. (Def. Statement of Facts, ECF No. 80 at ¶ 27.) The

University had determined that an appropriate salary range was $73,000

through $75,000. (West Dep., ECF No. 104–2 at 156:23–157:25.) The

University made Koger an offer for an assistant professor position with a

specialization in American politics. Koger negotiated that offer to $81,000.

Koger believes that this was the market rate for that position because “I was

willing to take it, so that’s what the market will be bear.” (Kroger Dep., ECF No.

104–1 at 280:8–21.) Kroger was hired at a rank below Davidson–Schmich, yet

his salary was $8,500 more than Davidson–Schmich.

Dean Sugrue stated that subspecialities did not determine the salaries

across the three ranks in the political science department and assumed that

salaries for professors of the same rank in the same department were probably

close. (Sugrue Dep., ECF No. 104–5 at 170:2–14.) However, Dean Sugrue

explained that Koger’s salary was higher because he had teaching experience

and had a book contract with the University of Chicago Press. (Sugrue Dep.,

ECF No. 104–5 at 283–288.) Dean Sugrue believed Davidson–Schmich and

Koger were “probably about the same,” the only difference being that he

perceived Koger’s publisher to be more prestigious and that Koger, unlike

Davidson-Schmich, “test[ed] the market.” (Id. at 289:9–25.) An official list of

journal rankings was not always considered during hiring decisions. (West

Dep., ECF No. 104–2 at 59:24–64:25.) Dean Sugrue also explained that the pay

differential was due to market compression and market forces. In other words,

Davidson–Schmich’s lower salary was related to the time when she was hired

and the University’s need for a professor in her specialty.

In the following years, both Davidson–Schmich and Koger conducted

research, published articles, and participated in different service activities,

including leading different organizations. They taught introductory and upper–

level classes in their respective specialties. (Koger Dep., ECF No. 104–1 at

162:7–22, 181:17–182:4.) Both professors consistently received positive

evaluations. (Koger Evaluations, ECF No. 104–15; Davidson-Schmich

Evaluations, ECF No. 104–14.)2

Koger was promoted to associate professor in 2010. (Pl. Statement of

Facts, ECF No. 106 at ¶ 92); (Def. Reply Statement of Facts, ECF No. 118 at ¶

92.) At this time, Koger and Davidson-Schmich held the same rank within the

same department. Koger’s salary as an associate professor increased to

$90,542 and Davidson–Schmich’s salary had increased to $79,981 through

fixed raises. (Id.)

In 2016, Davidson-Schmich and Koger applied for a promotion to the

rank of full professor. Both applications were unanimously supported by the

tenure committee. In his letter assessing Koger’s application, Dean Bachas

described Koger’s work as highly influential, although, he noted that there were

concerns about the placement of his articles and that his journal output was

slow and limited. (Bachas’s Promotion Evaluation for Kroger, ECF No. 104–22.)

Similarly, in his assessment of Davidson–Schmich’s application, Dean Bachas

described her work as very high quality and substantially innovative, noting

that her upcoming book is of high-significance and visibility. Bachas indicated

that he would prefer that her articles were published in higher–impact venues.

2 The University argues that the Court should not consider the professors’ annual evaluations

or those completed by Dean Bachas (ECF Nos. 104–14, ECF No. 104–15, 104–20, 104–22)

because they are unauthenticated. However, this argument ignores the long–standing principle

that evidence need not be in admissible form at the summary judgment stage, as long as that

evidence can be reduced to admissible form at trial. Wright v. Greensky, Inc., No. 20-CV-62441,

2021 WL 2414170, at *6 (S.D. Fla. June 14, 2021) (Bloom, J.) (citing Macuba v. Deboer, 193

F.3d 1316, 1323 (11th Cir. 1999) (“[A] district court may consider a hearsay statement in

passing on a motion for summary judgment if the statement could be reduced to admissible

evidence at trial or reduced to admissible form.”)). The University does not explain whether the

evaluations are capable of being admitted at trial by having the person who completed the

evaluations testify as to the contents of the evaluations. Nevertheless, upon close examination

of the documents at issue, the Court is satisfied that EEOC’s exhibits are what they purport to

be. Id.

(Bachas’s Promotion Evaluation for Davidson-Schmich, ECF No. 104–20).

Ultimately, both Davidson–Schmich’s and Koger’s applications were accepted,

and they were both promoted to the rank of full professor. After their respective

promotions, Koger’s salary increased to $137,366 and Davidson-Schmich’s

salary increased to $109,359. (Pl. Statement of Facts, ECF No. 106 at ¶ 96);

(Def. Reply Statement of Facts, ECF No. 118 at ¶ 96.)

C. 2016 and 2018 Salary Studies

In 2016, the University’s Ad Hoc Committee on Women Faculty

commissioned a study on salary differentials between male and female faculty

within the College of Arts and Sciences. (2016 Ad Hoc Committee Study, ECF

No. 104–21.) The study revealed that overall male faculty members out-earn

female faculty members by an average of $32,889.60. (Id.) In the social

sciences program, including the political science department, men generally

out earn women as associate professors. (Id.) Women generally earn more than

men as full professors. (Id.) The overall pay differential could be attributed to

the lower pay of lecturers, most of whom are women, and by differences in

gender distribution by rank. (Id.) The study also revealed a disparity between

male and female faculty members in the service requirement, noting that

female professors’ requirement is harsher. (Id.)

The study recommended that the College of Arts and Sciences make a

salary equity raise for women lecturers, conduct a survey to identify other

areas of potential improvement beyond questions of salary, and consider

additional strategies to clarify the requirements for and steps toward promotion

to full professor. (Id.)

In 2018, a second study was conducted on the pay differential within the

College of Arts and Sciences. (2018 Salary Data Study Analysis, ECF No. 104–

26.) The study revealed that the pay differential between male and female

faculty members had decreased to $28,086.60. (Id.) Notably, in the social and

behavioral sciences, the pay gap was lowered to $21,687.20. (Id.) Like in the

2016 study, male associate professors had higher average salaries than female

associate professors; and women full professors had higher average salaries

than male full professors. (2018 Salary Data Study Report, ECF No. 104–18.)

This discrepancy could also be attributed to gender distribution by rank;

however, because several faculty members had left the college, it was uncertain

if that was the case. (2018 Salary Data Study Analysis, ECF No. 104–26.)

D. Complaints About Unequal Pay

In 2010, Dean Frohock “urge[d] an increase in allocation to Davidson-

Schmich[’s]” salary, indicating that he would be willing to give up part of his

own raise. (Frohock 2010 Email, ECF No. 104–19.) One year later, Dean

Frohock reported that Davidson–Schmich was “grossly underpaid” and that it

is a “familiar issue.” (Frohock 2011 Email, ECF No. 104–18.) He noted that

Davidson–Schmich made less than professors of lower rank. (Id.) Dean West

also recommended that Davidson-Schmich’s salary was “in need of

adjustment.” (West Justification for Market Recommendations, ECF No. 104–

30.) “She has been on the UM faculty longer than several of our relatively

higher paid junior faculty, yet the annual allocations for merit and market

adjustments have fallen short of our ability to provide her with the salary she

deserves.” (Id.) By comparison, West recommended a lower salary increases for

Koger and other male faculty members. (Id.)

Before her promotion to full professor, Davidson–Schmich reviewed the

2016 salary analysis showing gender differences by rank across social sciences,

including the political science department. (Schmich–Davidson Dep., ECF No.

102–1 at 135:18–136:3.) Upon her promotion to full professor, Davidson–

Schmich’s salary increased from $102,300 to $109,359, prompting her to

speak to Dean West regarding why she was making less than lower-ranked

male professors. (Id. at 149:12–150:2.)

In 2017, Davidson–Schmich and other women faculty members within

the political science department notified Dean Bachas of their concerns

regarding pay inequity based on their gender. (Id. at 619–627.) Dean Bachas

reviewed all salaries in the department and the salary analysis from the prior

year and determined that there was no gender disparity. (Bachas Dep., ECF

No. 104–3 at 358:5–18, 360:14–362:22.) Around that time, Davidson–Schmich

complained to the University’s Title IX Officer, who advised her to wait until the

results of the 2018 salary study. (Pl. Statement of Facts, ECF No. 106 at ¶

125.) The Title IX Officer testified that someone should have investigated

Davidson–Schmich’s complaint but that she does not know if anyone ever did.

(Id. at ¶ 126.)

Davidson–Schmich explained that she does not believe that the

University was intentionally discriminatory; however, she claims that the

University knowingly employs hiring practices that result in gender

discrimination: “So, if you are paying men more at one rank than you are

paying women at that rank and then you say ‘I’m going to promote you to a

new position, a higher level position . . . and I’m going to base your pay on

what you were earning before,’ and the woman is earning less and the man is

earning more, then the process of promotion widens the gap. . . and

perpetuates those inequities.” (Davidson-Schmich Dep., ECF No. 81–1 at

234:10–235:1.)

E. The EEOC Charge and the EEOC’s Investigation and Determination

On May 14, 2018, Davidson–Schmich inadvertently received an email

circulated by West, the chair of the political science department, disclosing the

annual salaries of several faculty members, including Koger. (May 14, 2018

West Email, ECF No. 78–2.) This was the first time Davidson–Schmich learned

Koger’s salary and the salary of other members.

On June 5, 2018, Davidson–Schmich filed a charge of discrimination

with the EEOC, alleging that the University was paying her less than a male

professor (Koger) for equal work. Three days later, the EEOC notified the

University of the charges against it and launched an investigation into the

charge. Latesha Shamese Nelson, an investigator with the EEOC, was assigned

to investigate Davidson–Schmich’ charge. Generally, an EEOC investigation is

commenced after receipt of a charge and involves obtaining the employer’s

position statement, the charging party’s rebuttal, requests for information and

a predetermination interview of the employer. (Nelson Dep., ECF No. 78–6 at

58:17–22.) Nelson “vaguely recalls” that these steps were completed in the

investigation at issue and recalls completing a request of information, a fact-

finding conference, and a predetermination interview with the University. (Id. at

58:23–59:12.)

On March 5, 2019, the EEOC issued to the University a letter of

determination finding reasonable cause to believe it had violated the Equal Pay

Act and Title VII by paying Davidson-Schmich less than her male comparator

for equal work. (Letter of Determination, ECF No. 78–9). The letter stated: “the

Commission now invites the parties to join with it in reaching a just resolution

of this matter. . .[i]f you wish to engage in the conciliation process, please

complete the enclosed Invitation to Conciliate EEOC Form 153, and return it to

the EEOC within ten (10) calendar days of your receipt of this Determination.”

(Id.) The deadline to respond was approximately March 15, 2019. On March 19,

2019, the parties exchanged communications about an extension of the

conciliation period. On March 20, 2019, the University sent a letter to the

EEOC requesting reconsideration of the EEOC’s determination and challenging

the EEOC’s finding of disparate treatment. The University did not return the

Invitation to Conciliate Form. Two days later, the EEOC issued a letter closing

the conciliation period and citing the parties’ inability to reach a voluntary

settlement. The EEOC initiated this action on June 29, 2019.

2. Legal Standard

Under Federal Rule of Civil Procedure 56, “summary judgment is

appropriate where there ‘is no genuine issue as to any material fact’ and the

moving party is ‘entitled to a judgment as a matter of law.’” See Alabama v. N.

Carolina, 560 U.S. 330, 130 S. Ct. 2295, 2308, 176 L.Ed.2d 1070 (2010)

(quoting Fed. R. Civ. P. 56(a)). At the summary judgment stage, the Court must

view the evidence in the light most favorable to the nonmovant, see Adickes v.

S.H. Kress & Co., 398 U.S. 144, 158–59, 90 S. Ct. 1598, 26 L.Ed.2d 142

(1970), and it may not weigh conflicting evidence to resolve disputed factual

issues, see Skop v. City of Atlanta, Ga., 485 F.3d 1130, 1140 (11th Cir. 2007).

Yet, the existence of some factual disputes between litigants will not defeat an

otherwise properly grounded summary judgment motion; “the requirement is

that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Where the record

as a whole could not lead a rational trier of fact to find in the nonmovant's

favor, there is no genuine issue of fact for trial. Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L.Ed.2d 538 (1986).

“[O]nce the moving party has met its burden of showing a basis for the

motion, the nonmoving party is required to ‘go beyond the pleadings’ and

present competent evidence designating ‘specific facts showing that there is a

genuine issue for trial.’” United States v. $183,791.00, 391 F. App’x. 791, 794

(11th Cir. 2010) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct.

2548, 91 L.Ed.2d 265 (1986)). Thus, the nonmoving party “may not rest upon

the mere allegations or denials of his pleadings, but [instead] must set forth

specific facts showing that there is a genuine issue for trial.” See Anderson, 477

U.S. at 248, 106 S.Ct. 2505 (citation omitted). “Likewise, a [nonmovant] cannot

defeat summary judgment by relying upon conclusory assertions.” Maddox–

Jones v. Bd. of Regents of Univ. of Ga., 448 F. App’x. 17, 19 (11th Cir. 2011).

Mere “metaphysical doubt as to the material facts” will not suffice. Matsushita,

475 U.S. at 586, 106 S.Ct. 1348.

The standard of review for cross-motions for summary judgment does not

differ from the standard applied when only one party files a motion. See Am.

Bankers Ins. Grp. v. United States, 408 F.3d 1328, 1331 (11th Cir. 2005).

“Cross-motions for summary judgment will not, in themselves, warrant the

court in granting summary judgment unless one of the parties is entitled to

judgment as a matter of law on facts that are not genuinely disputed.” United

States v. Oakley, 744 F.2d 1553, 1555 (11th Cir. 1984) (internal quotation

marks and citation omitted). Thus, a court must consider each motion on its

own merits, resolving all reasonable inferences against the party whose motion

is under consideration. See Am. Bankers Ins. Grp., 408 F.3d at 1331.

3. Analysis

At the heart of this dispute is the question of whether the University

discriminated against Davidson–Schmich in 2007 when it hired her as an

associate professor at a salary of $72,000 and that same year hired Koger, a

male professor with comparable qualifications for a lower–ranked position in

the same department, at a salary of $81,000. The EEOC also claims that due to

the 2007 discriminatory pay differential, the University’s fixed pay increases

have failed to correct the original discrepancy. Indeed, despite both Davidson–

Schmich’s and Koger’s promotion to full professors, he still made

approximately $28,000 more than her.

The University’s motion for summary judgment argues that the EEOC’s

claims under the Equal Pay Act and Title VII must fail for similar reasons:

First, the EEOC cannot establish a prima facie case of pay discrimination

because Davidson–Schmich and Koger have never performed substantially

equal jobs. Even if the EEOC met its initial burden, the University argues it can

establish a legitimate and non-discriminatory basis for the pay differential. The

burden would then shift back to the EEOC to show pretext for the pay

differential, which the University contends it has failed to show. For the

reasons discussed below, the Court denies the University’s motion for

summary judgment and allows the EEOC’s claims to proceed.

In its own motion for partial summary judgment, the EEOC claims that

judgment in its favor is appropriate on three of the University’s affirmative

defenses: failure to conciliate, laches, and failure to mitigate. The EEOC’s

motion is granted in part and denied in part. The motion is granted with

respect to the University’s affirmative defenses for failure to conciliate and

laches. The motion is denied as to the affirmative defense of failure to mitigate.

A. Equal Pay Act Discrimination Claims

The EEOC claims that the University violated the Equal Pay Act by

paying Davidson–Schmich less than Koger despite their performing the same

job within the University’s political science department. The University argues

that summary judgment is warranted on the EEOC’s claims for two reasons:

First, Schmich-Davidson and Koger perform different jobs within the political

science department. Second, even if they performed the same job, the disparity

in salary was not based on the factor of sex.

An employee establishes a prima facie case under the Equal Pay Act by

showing that the employer paid differing wages to employees of opposite sexes

for “equal work on jobs . . . which require[ ] equal skill, effort, and

responsibility, and which are performed under similar working conditions.” 29

U.S.C. § 206(d)(1); see Smith v. Fla. A & M Univ. Bd. of Trustees, 831 F. App’x

434, 439 (11th Cir. 2020), cert. denied sub nom. Smith v. Fla. Agric. & Mech.

Univ. Bd. of Trustees, 209 L. Ed. 2d 752 (May 17, 2021). Once the employee

has established a prima facie case, the employer may avoid liability by proving

by a preponderance of the evidence that the payments were 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: Provided, That an employer who is

paying a wage rate differential in violation of this subsection shall not, in

order to comply with the provisions of this subsection, reduce the wage

rate of any employee.

29 U.S.C. § 206(d)(1) (emphasis in original). “The burden to prove these

affirmative defenses is heavy and must demonstrate that the factor of sex

provided no basis for the wage differential.” Smith, 831 F. App’x at 439. The

employee may then rebut the employer’s defense by putting forth evidence

demonstrating that the employer’s alternative bases for the pay disparity were

pretextual or offered as a post-event justification for a sex-based differential.

Id.; Reddy v. Dep’t of Educ., Alabama, 808 F. App’x 803, 810 (11th Cir. 2020)

(“To establish pretext, the plaintiff “must produce evidence which directly

establishes discrimination, or which permits a jury to reasonably disbelieve the

employer’s proffered reason.”).

1) Substantially Similar Jobs

The parties disagree over whether Davidson–Schmich and Koger perform

the same job as required by the statute. To establish a prima facie case under

the Equal Pay Act, a plaintiff must prove that the employer paid an employee of

the opposite sex more for equal work in an equal position. 29 U.S.C.

§ 206(d)(1). “Whether that employee of the opposite sex—typically called a

comparator—performs equal work in an equal position depends on the ‘primary

duties of each job,’ and the inquiry emphasizes ‘actual job content’ over formal

job titles or descriptions. Edwards v. Fulton Cnty., Ga., 509 F. App’x 882, 886

(11th Cir. 2013) (quoting Arrington v. Cobb Cnty., 139 F.3d 865, 876 (11th Cir.

1998)). “The plaintiff need not prove that the job held by her . . . comparator is

identical to hers; she must demonstrate only that the skill, effort and

responsibility required in the performance of the jobs are ‘substantially equal.’”

Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1533 (11th Cir.

1992).

The record indicates that a reasonable jury reviewing the duties

performed by Davidson–Schmich and Koger could find that the positions are

substantially equal. It is undisputed that both Davidson–Schmich and Koger

are tenure-track full professors within the University’s political science

department. Although the professors have different political science specialties

and therefore different knowledge regarding subtopics of political science, there

is evidence that the two hold substantially similar jobs. (Sugrue Dep., ECF No.

104–5 at 200:9–20) (stating that two professors in the political science

department perform similar jobs despite different specializations because “they

are both coming in as assistant professors in the same department, same

school, same university.”) Indeed, both Davidson–Schmich and Koger have

doctorate degrees in political science and generally teach the same number of

courses at the introductory and upper–class levels. (Koger Dep., ECF No. 104–1

at 181:17–182:4.) Moreover, Davidson–Schmich and Koger are subject to the

same requirements and expectations set forth by the Chair of the political

science department and bound to the same guidelines. They are both required

to teach, research, and provide service within the University and in the

scholarly community. (Bachas Dep., ECF No. 104–3 at 138:19–9, 139:4–18);

(Sugrue Dep., ECF No. 104–5 at 139:92–18.) The University requires that all

members of the political science department teach two classes in the Spring

and two classes in the Fall. (Bachas Dep., ECF No. 104-3 at 143:7–14.) The

research requirement does not vary between subspecialities, rather, the

requirement is that professors conduct research and produce articles or books

that are impactful to their specific areas. (Id. at 139:1–25); (Sugrue Dep., ECF

No. 104–5 at 94:16–25.)

In consideration of this evidence and making all inferences in the light

most favorable to the EEOC, as is required, the Court finds that there remains

a genuine issue of fact regarding whether the professors perform substantially

equal jobs. See Edwards, 509 F. App’ x at 886 (reversing entry of summary

judgment, noting that there was evidence that the plaintiff and the comparator

performed jobs that were of equal complexity and were similar in their

managerial responsibilities, and holding that “[w]hile Edwards and Stewart

managed a slightly different number of programs, supervised a slightly different

number of employees with different decision-band classifications, and had

slightly different job titles, these facts fail to convince us that, viewing the

evidence in the light most favorable to Edwards, no genuine issue of material

fact existed as to the substantial equality of the two jobs.”); see also

Arrington, 139 F.3d at 876 (reversing a grant of summary judgment where

appellant presented “significant evidence” that her actual job duties and the

comparator’s actual job duties were very similar, despite a disparity in formal

job titles and descriptions); Hankinson v. Thomas Cnty. Sch. Sys., 257 F. App’x

199, 201 (11th Cir. 2007) (holding that “reasonable minds could differ as to

whether the two positions [of high school softball and baseball coaches] were

substantially similar” such that a genuine issue of material fact existed).3

The University does not dispute that Koger is paid more than Davidson–

Schmich. Instead, it argues that the two are not comparable because “they do

not teach (and never have taught) the same classes at the University. They do

not publish in the same publications. They also do not specialize in the same

teaching/research areas.” (University Mot. for Summary J., ECF No. 82 at 7.)

The University also argues that Koger’s publications were published in more

prestigious journals and that he has drawn attention to the University’s

program.

The Court does not find either argument persuasive under the

circumstances. While there is evidence that it would be unusual that a

professor who specialized in comparative politics would be hired to teach

courses on American politics, it is possible because the lines between those

specialties “are a little bit fluid.” (West Dep., ECF No. 104–2 at 37:2–22.)

Additionally, the professors’ specializations within the field of political science

do not appear to be dispositive as to the question of substantial job similarity.

Indeed, Dean Bachas explained that subspeciality is not determinative in terms

of the requirements for professors within the political science department.

Rather, subspecialities are considered when evaluating whether a professor

conducted research and was subsequently published in high–ranking journals

relevant to their respective specializations. (Bachas Dep., ECF No. 104–3 at

139:4–18.) However, the Court notes that Dean Bachas also testified that

Davidson–Schmich and Koger are not comparable because they focus on

different specializations and thus, publish in different types of journals. (Id. at

312:4–21.) Dean Bachas’s inconsistent testimony and the other evidence

mentioned herein raise a genuine issue of fact as to the issue of substantially

equal jobs. Nor is the Court persuaded that the quality of Koger’s publications

and number of cite counts are determinative of this inquiry because the

Plaintiff’s prima facie case requires a comparison of jobs, not the skills and

qualifications of the individuals who hold the jobs. Miranda, 975 F.2d at 1533.

The University relies on several non-binding legal authorities in support

of its arguments. However, the Court finds these cases inapposite. For

example, in Schultz v. Bd. of Trustees of Univ. of W. Fla., No.

3 The EEOC relies on the Honorable Kathleen Williams’s order denying the University’s motion

for summary judgment on similar grounds. Joo v. Univ. of Miami, No. 18-23904-CIV, 2019 WL

7376765, at *1 (S.D. Fla. Nov. 13, 2019), vacated (Dec. 11, 2019). The University criticizes the

EEOC’s reliance on Joo, which this Court notes is similar to this case, because the order was

vacated. The Court finds the University’s argument unavailing since it fails to note that the

order was only vacated as a part of the settlement terms offered and stipulated to by the

parties. Joo v. Univ. of Miami, No. 18-23904-CIV. Joint Stipulation (ECF No. 64) (Dec. 11,

2019).

306CV442/RS/MD, 2007 WL 2066183, at *19 (N.D. Fla. July 13, 2007)

(Smoak, J.), the district court found that the plaintiff, a female professor, did

not perform a substantially equal job as the proffered male comparators. There,

the court noted that the plaintiff and the comparators were parts of different

departments within the college of business and those departments were further

divided into eight subject areas. Id. at *19. The plaintiff had a doctorate degree

in the field of education and her comparators had doctorate degrees in the field

of business. Due to her education, the plaintiff was limited in the subjects and

courses she could teach, specifically, limited to introductory courses. Id. Lastly,

the court observed that the plaintiff’s courses were considered “softer” than the

more specialized business courses in computer, scientific, and mathematical

areas, which require more sophisticated and complex knowledge. Id. Unlike

Schultz, the record here shows that although Davidson–Schmich and Koger

have different specializations, they hold doctorate degrees in political science

and both teach different political science courses at the same levels

(introductory and upper-level courses). Moreover, the record here does not

point to any significant differences in the complexity of the courses taught by

Davidson–Schmich and Koger. (Sugrue Dep., ECF No. 104–5 at 103:6–14)

(witness cannot recall if there are any differences in recognition between

Schmich–Davidson and Koger’s specialties).

The University also relies on a Fourth Circuit case Spencer v. Virginia

State University, which granted summary judgment to Virginia State University

because the male and female professors did not engage in equal work. 919 F.3d

199 (4th Cir. 2019). The Fourth Circuit reasoned that the professors did not

perform equal work because they taught in different departments and “the

differences between academic departments generally involve differences in skill

and responsibility.” Id. at 204-205. The court further reasoned that

the professors engaged in different work because the female professor taught

undergraduate courses, while the two male professors taught graduate

courses. Id. at 205. Here, Davidson–Schmich and Koger teach within the same

department and teach both introductory and upper-level courses.

2) Non–Discriminatory Basis for the Pay Differential and Pretext

Because the Court finds that the EEOC has met its prima facie burden,

the burden shifts to the University to show, by a preponderance of the

evidence, that the disparate salaries are caused by a seniority system, a merit

system, a production-quota system, or any factor other than sex. E.E.O.C. v.

White and Sons Enter., 881 F.2d 1006, 1010 (11th Cir.1989). The University

can meet this burden by showing “that the factor of sex provided no basis for

the wage differential.” Steger v. Gen. Elec. Co., 318 F.3d 1066, 1078 (11th Cir.

2003).

The University argues that the pay differential here is based on “any

other factor other than sex.” (University’s Mot. for Summary J., ECF No. 82 at

12.) The University claims that Davidson–Schmich and Koger’s starting salaries

“are market-based.” (Id.) Annual raises are determined by individual

performance (including teaching, publication, and prestige/reputational benefit

to the University) and allocated from limited pools of funds. (Id. at 12–13.)

Lastly, multiple salary analyses confirm there is no relationship between

gender and salary at the University. (Id. at 13.)

The University’s market–theory argument is problematic because the

record contains vague testimony as to what the market was in 2007 and how

the University determined that. Dean Sugrue testified that between 2000 and

2007 it was impossible to determine what the actual market was for professors

due to lack of information and that the market was gauged with offers that

were accepted versus those that were rejected. (Sugrue Dep., ECF No. 104–5 at

244:3–9; 245:5—246:4.) The University began comparing employment data

across comparable instructors in 2010, after both Davidson-Schmich and

Koger were hired as associate professors. (Bachas Dep., ECF No. 104–3 at

17:20—18:8.) Even Koger himself is unable to explain how his market value

was determined and summarizes it as “I was willing to take it, so that’s what

the market will bear.” (Koger Dep., ECF No. 104–1 at 280:8–25.)

Moreover, West testified that the predetermined salary range of $73,000–

$75,000 was based on many factors, including the salaries of other similar

positions within the department and informal employment data of other

comparable universities. (West Dep., ECF No. 104–2 at 167:11–168:11.) The

market comparison was informal and based on “the knowledge of the

departments and the people in our department who might know about those

[comparable] universities. . .” (Id. at 168:14–24.) It is unknown from the record

what market information was actually considered in calculating Koger’s final

offer of $81,000.

Even accepting the University was able to pinpoint the market value for

an assistant professor in the political science department, the pertinent

question is: Whether the University can adduce evidence of factors other than

sex to explain why Koger was offered $81,000, which was several thousand

dollars more than the predetermined range, while Davidson–Schmich was only

offered $72,000 for a higher–ranking position. The University attempts to

explain the differential by citing to Dean Sugrue’s testimony stating that Koger

was paid more because he had teaching experience and a “big book contract.”

(Sugrue Dep., ECF No. 104–5 at 283:12–23.) It was Sugrue’s subjective

impression that Koger’s publisher was better than the publisher that had

agreed to publish Davidson–Schmich’s book around the same time. (Id. at

288:21–289:4.) Sugrue was not familiar with Davidson–Schmich’s other

publishers and therefore, could not opine as to whether they were prestigious

or not. However, all in all, Sugrue believes the two had comparable credentials

and Davidson–Schmich’s lower salary is the result of market compression

compared to Koger who went out and tested the market. (Id. at 289:15–290:25.)

As discussed, there is questionable evidence as to how the market was

calculated let alone how it was compressed. Additionally, there is no evidence

that in 2007, Koger had received any competing offers for employment or had

tested the market by any means other than simply asking the University for a

higher offer. In terms of raises to keep Koger from being poached by another

institution, West testified that he considers both Koger and Davidson-Schmich

to be competitive professors. (West Dep., ECF No. 104–2 at 239:9–24.)

Accordingly, there remain issues of fact as to what market forces or differences

between two comparable professors were considered that resulted in disparate

salaries. Brennan v. Victoria Bank & Tr. Co., 493 F.2d 896, 902 (5th Cir. 1974)

(rejecting market force theory that women will work for less than men and

holding that there is “just not substantial evidence that the disparate salaries

were derived from factors other than sex.”)

Moreover, the Court is not convinced that the pay differential is due to

disproportionate performance in the areas of teaching and publication and

reputational benefit. As the University notes, there is evidence that Koger is

extremely valuable to the University because he excels in the three areas of

evaluation for raises: teaching, research, and service. His performance

evaluations merit the raises he has received over time. Dean Bachas testified

that Davidson-Schmich publishes at a slower rate and is published in less

prestigious journals, which explains why she makes less. (Bachas Dep., ECF

No. 104–3 at 288:2–18.) The Court notes, however, that Dean Bachas conceded

that he did not review her salary increases and the reasons for the amounts

awarded. (Id.) Further in his assessment of Davidson–Schmich’s application for

full professor, Dean Bachas described her work as very high quality and

substantially innovative, noting that her upcoming book is of high-significance

and visibility. (Bachas’s Promotion Evaluation for Davidson–Schmich, ECF No.

104–22). And Bachas noted concerns of publication placement for both

Davidson–Schmich and Koger. (Bachas’s Promotion Evaluation for Davidson–

Schmich, ECF No. 104–22); (Bachas’s Promotion Evaluation for Koger, ECF No.

104–22.)

The University’s argument is further belied by Davidson–Schmich’s

performance evaluations. In her 2007 evaluation, Davidson–Schmich was

reported to be an “able scholar” and an “excellent and responsible teacher.”

(ECF No. 104-14 at 1.) In her 2010 evaluation, it was reported that “she is one

of the leading authorities of Western Europe. . . and we can expect a more

robust published agenda next year at this time.” (Id. at 16.) Her 2011

evaluation was also positive, listing several publications and noting that she

had taught well over the median number of students for tenure track faculty.

(Id. at 24.) In sum, her evaluations through 2019 were overwhelmingly positive.

(Id. at 66, 120, 160.)

The record also contains evidence that, if viewed in the light most

favorable to Davidson–Schmich, indicates that gender played a role in salary

disparities. For example, West was aware that three women, including

Davidson-Schmich, complained about disparate pay between them and male

faculty members, yet it appears that no corrective action was taken. (West

Dep., ECF No. 104–2 at 324:12–325:25.) West and Bachas had discussed

general gender disparities at the national level and within the University, as

well as the results of an internal study that indicated that the University placed

a higher service requirement on female professors. The same study

recommended that the University collect and share data on annual raises by

gender. (Id. at 322:7–324:6, 328:1–20.) Moreover, there is evidence that the

University increased male professor’s salaries to close the gap between them

and comparable female professors who had higher salaries. (West Dep., ECF

No. 104–2 at 298:5–299:8.); (Bachas Dep., ECF No. 104–3 at 416:1–418:14.)

Notwithstanding this practice, the University did not meaningfully increase

Davidson–Schmich’s salary despite both her positive evaluations and an email

from West recommending that the University increase Davidson-Schmich’s

pay, as she was “grossly underpaid” and earning less than many junior faculty

members despite her rank and other qualifications. (Bachas Dep., ECF No.

104–3 at 279:8–11, 286:20–25, 296:2–5, 302:14–23.) When asked why he did

not do the same for Davidson–Schmich, Bachas explained that he was “not

here when these things happened.” (Id. at 418:15–18.) Lastly, in support of its

other-facts-other-than-sex argument, the University notes that the highest paid

person in the department is a woman who has been with the department since

the 1970’s. This argument is unavailing in light of all the aforementioned

evidence.

Drawing all inferences in Davidson–Schmich’s favor, as the Court must,

a genuine issue of material fact remains as to whether the pay differential is

based on factors other than sex. Edwards, 509 F. App’x at 888; Mulhall, 19

F.3d at 597.

B. Title VII Disparate Pay Claims

Title VII, among other things, prohibits an employer from discriminating

against any individual with respect to compensation because of that

individual’s sex. 42 U.S.C. § 2000e–2(a)(1). Under the familiar McDonnell

Douglas test, a plaintiff must establish a prima facie case of discrimination

under Title VII by showing that: (1) the plaintiff is a member of a protected

class; (2) the plaintiff was subjected to adverse employment action; (3) the

plaintiff’s employer treated similarly situated employees, who are not within the

protected class, more favorably; and (4) the plaintiff was qualified for the job at

issue. See Rice-Lamar v. City of Ft. Lauderdale, Fla., 232 F.3d 836, 842-43

(11th Cir. 2000) (referencing McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802 (1973)). If a plaintiff makes out a prima facie case, the burden shifts to the

defendant to articulate a legitimate, non-discriminatory basis for the action at

issue. See Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1325 (11th Cir.

2011). Once such a basis is articulated, the burden falls back to the plaintiff to

show that the employer’s reason was pretext for unlawful discrimination. See

id. at 1326.

Because the EEOC has established its disparate pay claim under the

more rigorous analysis of the Equal Pay Act, the Court finds that it has met its

initial burden of showing its prima facie case under Title VII. See Mulhall, 19

F.3d at 598 (“Clearly, if plaintiff makes a prima facie case under the EPA, she

simultaneously establishes facts necessary to go forward on a Title VII claim.”).

The burden shifts to the University to articulate a legitimate basis for the

pay differential. The University has articulated legitimate, non-discriminatory

reasons for initially paying Koger more than Davidson–Schmich: chiefly,

market considerations that involve salaries at the University and in other

schools, competitive resume, and the increased costs of living in Miami. The

University likewise articulated valid reasons for continuing to pay Koger more

than Davidson-Schmich: disproportionate performance in the areas of

teaching, research, and service and disproportionate rates of publication.

The University has met its burden; therefore, it shifts back to the EEOC

to proffer evidence that the explanation is pretextual. The Court must, in

viewing of all the evidence, determine whether the EEOC has cast sufficient

doubt on the University’s proffered nondiscriminatory reasons to permit a

reasonable factfinder to conclude that its justifications were not what actually

motivated its conduct. Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th

Cir.1997) (quoting Cooper–Houston v. Southern Ry. Co., 37 F.3d 603, 605 (11th

Cir.1994)). The Court finds that the EEOC has met its burden.

As discussed in length in the prior section, Davidson–Schmich has

advanced sufficient evidence to cast doubt on the University’s purportedly

legitimate basis for the pay differential. Davidson–Schmich cites to evidence

that the University’s market analysis in the early 2000s was informal and not

based on reliable data. Moreover, at the time they were hired in 2007,

Davidson–Schmich and Koger were comparable in most respects. The

University was put on notice of gender pay disparities within the department by

way of complaints and through a study that revealed a bias against female

professors with respect to their service requirements. West recommended that

Davidson–Schmich’s salary be increased on at least two occasions because she

was “grossly underpaid” and made less than professors of lower rank. Lastly,

and perhaps most damning, there is evidence that the University increased

male professor’s salaries to close the gap between their salaries and those of

comparable female professors and did not increase Davidson–Schmich’s salary

to close the gap between her and comparable Koger. For these reasons, the

Court finds that Davidson–Schmich’s claims under Title VII survive summary

judgment.4

For these reasons, the Court denies the University’s motion for summary

judgment. (ECF No. 82.)

C. Affirmative Defenses

Turning to the EEOC’s motion for summary judgment on three of the

University’s affirmative defenses: failure to conciliate, laches, and failure to

mitigate. For the reasons explained below, the motion is granted in part and

denied in part.

1) Conciliation Efforts

In its first affirmative defense, the University alleges that:

The EEOC lacks standing to pursue its claim because of its failure to

conciliate prior to filing this lawsuit. Despite overwhelming and

unrebutted documentary evidence demonstrating that no violations of

the Equal Pay Act or Title VII ever occurred, the EEOC erroneously

concluded (in its Letter of Determination dated March 5, 2019) that there

was “reasonable cause” to believe that the University had violated the

Equal Pay Act and Title VII vis-à-vis Dr. Davidson Schmich. By letter

dated March 20, 2019, the University responded to the EEOC’s Letter of

4 In the alternative, Davidson-Schmich argues that her claims would survive under the

“convincing mosaic of circumstantial evidence” test that permits a jury to infer intentional

discrimination. A “convincing mosaic” is shown by demonstrating: (1) suspicious timing or

other “bits and pieces from which an inference of discriminatory intent might be drawn,”

(2) “systematically better treatment of similarly situated employees,” and (3) evidence that the

employer’s justification is pretextual. See Lewis v. City of Union City, Ga., 934 F.3d 1169, 1185

(11th Cir. 2019). Certainly, the aforementioned evidence constitutes “bits and pieces” from

which a reasonable jury could draw discriminatory intent and there is evidence of systemic

better treatment for male professors and of pretext.

Determination to request that the EEOC reconsider its decision in light of

the evidence summarized therein. Without even responding to the

University’s letter or addressing the matters raised therein, the EEOC—

two days later—issued a Notice of Failure of Conciliation. Under these

facts, the EEOC breached its statutory/legal obligations to conciliate in

good faith. That failure bars the EEOC from bringing this lawsuit.

(ECF No. 28 at 7).

The EEOC argues that it is entitled to summary judgment because the

“defense does not exist under the law.” (EEOC’s Mot. for Summary J., ECF No.

79 at 4.) This argument was rejected by the Court in its denial of the EEOC’s

motion to strike affirmative defenses. Indeed, in her report and

recommendation, which was adopted in its entirety, United States Magistrate

Judge Louis listed several cases that recognize this defense as a matter of law.

Next, the EEOC argues that summary judgment is warranted because

the University has admitted all the facts necessary to demonstrate that the

EEOC complied with its requirement to conciliate. The University disputes this

contention and argues that there is evidence that EEOC did not satisfy its

conciliation requirements.

Before filling suit against an employer alleging work-place discrimination,

the EEOC must first try to remedy the illegal practice through informal

conciliation. 42 U.S.C. § 2000e-5(b); Mach Mining, LLC. v. E.E.O.C., 575 U.S.

480, 482–83 (2015). To satisfy this requirement, the EEOC must: (1) outline to

the employer the reasonable cause for its belief that Title VII has been violated;

(2) offer an opportunity for voluntary compliance; and (3) respond in a

reasonable and flexible manner to the reasonable attitudes of the employer.

E.E.O.C. v. Asplundh Tree Expert Co., 340 F.3d 1256, 1259 (11th Cir. 2003)

(quoting EEOC v. Klingler Elec. Corp., 636 F.2d 104, 107 (5th Cir. 1981)). The

EEOC has the burden of proving compliance with Title VII’s conditions

precedent. See Fed. R. Civ. P. 8(c). Although the statute does not expressly

define the EEOC’s precise conciliatory duties, courts in this circuit have held

that the agency must attempt conciliation in good faith. See EEOC v. Klingler

Elec. Corp., 636 F.2d 104, 107 (5th Cir.1981); Asplundh, 340 F.3d at 1259;

Thus, the court must look to see whether EEOC made satisfactory and good

faith efforts in the conciliation process. To this extent, the absolute refusal to

bargain is unacceptable. Dinkins v. Charoen Pokphand USA, Inc., 133 F. Supp.

2d 1237, 1242 (M.D. Ala. 2001) (De Ment, J.). However, it serves no useful

purpose to force the EEOC to attempt further conciliation after the employer

has rejected its offer. Id. (citing Marshall v. Sun Oil Co., 605 F.2d 1331, 1334–

39 (5th Cir.1979). The Court’s review of conciliation communications efforts

between the EEOC and an employer is narrow and focuses on the

reasonableness of the opportunities to conciliate. E.E.O.C. v. Fla. Com. Sec.

Servs., Corp., No. 13-20465-CIV, 2014 WL 4771887, at *20 (S.D. Fla. Sept. 24,

2014) (O’ Sullivan, MJ).

The Court looks to two recent cases for guidance. In Asplundh,

the EEOC took three years to issue its [l]etter of [d]etermination and one week

later provided the defendant with a “proposed, nation-wide [c]onciliation

[a]greement, which [only] provided twelve days for” the defendant's counsel to

accept, reject or submit a counterproposal to the conciliation agreement. Id. at

1259–60. Additionally, the EEOC in Asplundh never communicated to the

defendant a theory of liability for the alleged conduct of a non-employee, did

not respond to the defendant’s request for “a reasonable extension of time” and

“the very next day . . . sent another letter . . . terminating conciliation and

announcing its intent to sue.” Id. at 1260. Thirteen days later, the EEOC filed a

lawsuit. Id. The Eleventh Circuit affirmed dismissal of the EEOC’s complaint

because it found the EEOC’s consolation actions “grossly arbitrary.” Id.

In Florida Commercial, the district court granted summary judgment in

favor of the EEOC on the employer’s affirmative defense. 2014 WL 4771887, at

*21. There, the EEOC invited the employer to conciliate and imposed a deadline

to respond to a proposed conciliation agreement that was not attached to the

correspondence. Id. at *6. Before the deadline expired, the employer wrote to

the EEOC to raising concerns. Id. The EEOC did not respond to that letter and

closed the conciliation period. Id. After realizing its error, the EEOC reopened

the conciliation period and sent the proposed conciliation agreement with a

deadline to respond. Id. at *7, *21. There was no evidence that the employer

attempted to conciliate or otherwise engage in settlement discussions. Id. at

*21. The EEOC waited one month after the deadline to notify the employer that

conciliation efforts had failed. Id. At summary judgment, the employer argued

that the EEOC’s conciliation efforts were unreasonable and not in good faith

because the proposed agreement did not address its concerns raised in the first

conciliation period and the EEOC made no additional attempt to contact the

employer. Id. The court rejected both arguments. Id. at *22. The court

explained that the employer had the burden of showing the reasonableness of

its concerns to the Court and it had failed to specifically identify the concerns

raised in the communications or provide evidence of same at summary

judgment. Id. at *21 n.12. The court also noted that the EEOC’s conciliation

efforts were not perfect, but it corrected its error by sending the promised

proposed agreement and affording the employer additional time to conciliate or

engage in settlement negotiations. Id. at *21. The employer did not adduce any

evidence that it took advantage of this opportunity. Thus, the Court granted

summary judgment on that affirmative defense in favor of the EEOC.

This case is more analogous to Florida Commercial. On March 5, 2019,

the EEOC sent the University a letter of determination finding reasonable

cause to believe that there had been violations of the Equal Pay Act and Title

VII by the University paying Davidson-Schmich less than Koger. (Letter of

Determination, ECF No. 78–9). The letter stated: “the Commission now invites

the parties to join with it in reaching a just resolution of this matter. . . [i]f you

wish to engage in the conciliation process, please complete the enclosed

Invitation to Conciliate EEOC Form 153, and return it to the EEOC within ten

(10) calendar days of your receipt of this Determination.” (Id.) The deadline to

respond was approximately March 15, 2019. On March 19, 2019, the parties

exchanged communications about an extension of the conciliation period. On

March 20, 2019, the University sent a letter to the EEOC requesting

reconsideration of the EEOC’s determination and challenging the EEOC’s

finding of disparate treatment. It is undisputed that the University did not

return the Invitation to Conciliate Form.

The University argues that the EEOC failed in its conciliation efforts

because it did not respond to the concerns raised in its March 20 letter and

instead found that conciliation efforts had failed. Like the employer in Florida

Commercial, the University summarily argues that it raised concerns regarding

the EEOC’s determination without explaining what specific concerns were

raised or what contrary evidence it referred to in its letter. Fla. Com. Sec.

Servs., Corp., 2014 WL 4771887, at *21. Moreover, the University’s arguments

fail to appreciate that, by its own characterization, the March 20 letter was not

an attempt to accept the EEOC’s offer to conciliate or engage in settlement

negotiations, rather it was a total challenge to the EEOC’s determination. The

Court need not force the EEOC to make subsequent attempts to conciliate after

the employer rejects its invitation to have such discussions. Dinkins, 133 F.

Supp. 2d at 1243. Nor does the University argue that the EEOC failed to honor

the extension of time by prematurely closing the conciliation period upon

receipt of the March 20 letter. Lastly, the Court notes that unlike Florida

Commercial, the EEOC here did not send a proposed conciliation agreement.

However, this fact is not determinative. “Congress left to the EEOC such

strategic decisions as whether to make a bare-minimum offer, to lay all its

cards on the table, or to respond to each of an employer’s counter-offers,

however far afield. So too Congress granted the EEOC discretion over the pace

and duration of conciliation efforts, the plasticity or firmness of its negotiating

positions, and the content of its demands for relief.” Mach Mining, 575 U.S. at

492. Here, the EEOC invited the University to engage in conciliation

conversation by completing a form attached to the determination letter. For

these reasons, the Court grants summary judgment in favor of the EEOC on

the University’s first affirmative defense.5

2) Laches

In its motion for partial summary judgment, the EEOC argues that

judgment should be entered in its favor on the University’s affirmative defense

of laches.

“It is well settled that the United States is not . . . subject to the defense

of laches in enforcing its rights.” United States v. Summerlin, 310 U.S. 414,

416, 60 S. Ct. 1019, 1020, 84 L. Ed. 1283 (1940). Accordingly, where, as in

this case, a government agency brings an enforcement action to protect the

public interest, laches is not a defense. S.E.C. v. Silverman, 328 F. App’x 601,

605 (11th Cir. 2009).

The Eleventh Circuit, however, has recognized that there have been “rare

exceptions to this rule in certain civil cases.” United States v. Delgado, 321 F.3d

1338, 1349 (11th Cir. 2003) (citing Herman v. S. Carolina Nat. Bank, 140 F.3d

1413, 1427 (11th Cir. 1998) (laches bars Equal Employment Opportunities

Commission suits because Title VII contains no statute of limitations)); see also

Stone v. U.S. Postal Serv., 383 F. App’x 873, 874 (11th Cir. 2010) (“Title VII

employers may raise various defenses in the face of unreasonable and

prejudicial delay” such as the affirmative defense of laches.”)). “To

apply laches in a particular case, the court must find both that the plaintiff

delayed inexcusably in bringing the suit and that this delay unduly prejudiced

defendants.” Id. (quoting E.E.O.C. v. Dresser Indus., Inc., 668 F.2d 1199, 1202

(11th Cir.1982)).

The EEOC argues that it did not delay bringing this suit because it is

undisputed that it promptly notified the University of the charges against it

and that it conducted an investigation, rendered its determination, and filed

this action approximately a year after receipt of Davidson–Schmich’s charge. It

also argues that the University was not prejudiced by any delays in the

process. The Court agrees.

The University argues that the EEOC is required by statute to complete

its investigation within 180 days of the filing of the employee’s charge, and in

this case, the EEOC took 274 days to issue its determination letter.

(University’s Resp., ECF 93 at 13.) Then, after the EEOC determined

5 In its response in opposition, the University also argues that the EEOC’s investigation was

deficient and failed to abide by the statutory disclosure requirements. The Court will not delve

into these arguments because they are outside the scope of the specific affirmative defense at

issue in the EEOC’s motion for summary judgment and the arguments were not raised in the

University’s own motion for summary judgment. Additionally, the Court notes that the EEOC

did not cite any case law in support of its argument.

conciliation efforts had failed, it waited four months to file this action. The

Court does not find that this amounts to an inexcusable delay, and the Court

notes that the University has not cited a case that supports its position. Cf

E.E.O.C. v. Phillips Colls., Inc., 984 F. Supp. 1464, 1467–69(M.D. Fla. 1997)

(M.D.Fla.1997) (applying laches where it took the EEOC, from the time the

employee filed his charges, four years to file this lawsuit and “it took the EEOC,

from the date on which it issued a Notice of Failure to Conciliate, a year and six

months to file suit”); see also E.E.O.C. v. Moore Grp., Inc., No. C75–1029A, 1976

WL 554, at *2 (N.D. Ga. Mar. 25, 1976) (applying laches to a five–year-old claim

when the EEOC ended conciliation over a year and a half before filing suit).

Nor was the University prejudiced by the EEOC’s delay. The University

claims that it has been prejudiced by the EEOC’s delays because it “has been

charged with defending hiring/compensation decisions that were made as far

back as 1999. . . given that timeframe, certain information/witnesses no longer

are available.” (University’s Resp., ECF 93 at 13.) This argument is unavailing

because it challenges the temporal scope of the EEOC’s claims, not whether

there was any delay in the EEOC’s procedures.

Next, the University summarily argues that its statement of facts has

raised sufficient questions regarding the EEOC’s “affirmative misconduct.” (Id.

at 12.) The Court assumes that the misconduct that the University is referring

to are its claims that the EEOC failed to conciliate and was deficient in

complying with other statutory requirements. These purported instances of

misconduct do not relate to the Court’s laches inquiry of whether the EEOC’s

process was unreasonably delayed such that it prejudiced the University.

Moreover, the Court already determined that the EEOC was not unreasonable

or arbitrary in its conciliation efforts. Lastly, even if the EEOC’s failure to

strictly abide by the statutory requirements by which its representatives could

execute the letter of determination, this misconduct does not have a nexus to

the University’s claim of prejudice due to of lack of witnesses. For these

reasons, the Court grants summary judgment in favor of the EEOC on the

University’s laches defense.

3) Failure to Mitigate

The EEOC argues that summary judgment should be entered against the

University on its affirmative defense for failure to mitigate. The EEOC avers

that summary judgment is proper because the defense is not applicable to

claims under the Equal Pay Act and because Davidson-Schmich is still

employed at the University and she is therefore not obligated to seek another

job to mitigate the unequal pay. (EEOC’s Mot. for Summary J., ECF No. 79 at

9–10.) Lastly, the EEOC contends, even if she does have a duty to mitigate,

there is no evidence that she has failed to do so. (/d. at 10.)

The Court is not convinced that Davidson-Schmich’s duty to mitigate

was relieved simply because she filed a claim under the Equal Pay Act. Carter

v. DecisionOne Corp. Through C.T. Corp. Sys., 122 F.3d 997, 1006 (11th Cir.

1997) (recognizing that affirmative defense of failure to mitigate in an action

raising claims under Title VII and the Equal Pay Act and suggesting the issue

was for the jury); Joyner v. Town of Elberta, No. CV 13-00067-CG-N, 2014 WL

12902418, at *2 (S.D. Ala. Jan. 8, 2014) (recognizing in discovery dispute that

that both Title VII and the Equal Pay Act allow back pay and the defendant

properly raised the affirmative of failure to mitigate). On the contrary, it is

possible that Davidson-Schmich mitigated her damages by staying in her

current position. Bourque v. Powell Elec. Mfg. Co., 617 F.2d 61, 66 (Sth Cir.

1980) (“We think that unequal pay alone does not constitute such an

aggravated situation that a reasonable employee would be forced to

resign. Unequal pay is not a sufficient justification to relieve Ms. Bourque of

her duty to mitigate damages by remaining on the job.”). It is undisputed that

Davidson-Schmich has applied to six jobs since 2018. Neither side makes a

meaningful effort to show the outcome of her applications. Thus, a question

remains as to whether Davidson-Schmich took reasonable steps to mitigate her

damages. See Scoggins v. Floyd Healthcare Mgmt. Inc., No.

414CV00274HLMWEJ, 2016 WL 11544774, at *40 (N.D. Ga. June 10,

2016), report and recommendation adopted, No. 414CV00274HLMWEJ, 2016

WL 11544908 (N.D. Ga. Aug. 30, 2016) (“Whether a plaintiff acted reasonably

to mitigate his damages is typically a question of fact for the jury, and this

Court cannot say that Plaintiff acted unreasonably as a matter of law.”).

4. Conclusion

For the reasons discussed above, the University’s motion for summary

judgement is denied (ECF No. 82) and the EEOC’ motion for partial summary

judgment is granted in part and denied in part. (ECF No. 79.)

Done and ordered at Miami, Florida TINE 02

Robert N. Scola, Jr.

United States District Judge