Wilson v. Arkansas Department of Human Services

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

CENTRAL DIVISION

LAKEYSIA WILSON PLAINTIFF

v. Case No. 4:22-cv-00775-LPR

ARKANSAS DEPARTMENT OF

HUMAN SERVICES DEFENDANT

ORDER

This case concerns alleged employment discrimination. Plaintiff LaKeysia Wilson used to

work for the Arkansas Department of Human Services in its Division of Youth Services. She

believes the Department underpaid her in comparison to her male colleagues that performed

substantially equal work. Ms. Wilson brings two federal-law claims against the Department: (1) an

Equal Pay Act claim and (2) a Title VII sex discrimination claim.1 Pending before the Court is the

Department’s Motion for Summary Judgment.2 The Department seeks summary judgment on both

claims.3 For the reasons discussed below, that Motion is GRANTED.

LEGAL STANDARD

Summary judgment is inappropriate unless, “viewing the record in the light most favorable

to the nonmoving party, there are no genuine issues of material fact and the moving party is entitled

to judgment as a matter of law.”4 “An issue of fact is genuine when ‘a reasonable jury could return

1 See Am. Compl. (Doc. 18) at 1. Ms. Wilson’s Amended Complaint also raised Title VII race-discrimination claims,

42 U.S.C. § 1983 claims, and declaratory judgment claims against the Department. Id. These additional claims were

dismissed in a previous Order. See Order (Doc. 22) at 1–2. And although the Amended Complaint makes an oblique

reference to the Fourteenth Amendment, see Doc. 18 at 1, the Court does not read the Amended Complaint to raise a

stand-alone Fourteenth Amendment claim.

2 Doc. 29.

3 See id.

4 Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir. 2005).

a verdict for the nonmoving party’ on the question.”5 “To be material, the disputed facts must be

facts which, under the substantive law governing the issue, might affect the outcome of the suit.”6

When evaluating a defendant’s motion for summary judgment, the Court must read the

record in a very particular way. If a fact is undisputed—or not genuinely disputed—the Court

adopts it.7 If a fact is genuinely disputed (and material), the Court adopts the most pro-plaintiff

version of that fact that a reasonable jury could find to have occurred.8 The Court must then draw

all reasonable inferences from the adopted “facts” in favor of the plaintiff.9 Essentially, the Court

constructs the most pro-plaintiff version of the record that a reasonable jury could possibly

countenance.10 Then, considering that version of the record, the Court analyzes whether the

defendant is entitled to judgment as a matter of law.11

The foregoing standard could be fairly characterized as very pro-plaintiff. So far, so good

for Ms. Wilson. But there’s a catch. Pursuant to the Final Scheduling Order, all motions for

summary judgment must comply with Local Rule 56.1.12 That rule requires the moving party to

“annex to the notice of motion a separate, short and concise statement of the material facts as to

which it contends there is no genuine dispute to be tried.”13 Any fact set forth in such a statement

that is not controverted in a similar statement filed by the nonmoving party is deemed admitted by

5 Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

6 Holloway v. Pigman, 884 F.2d 365, 366 (8th Cir. 1989).

7 See Smith v. Crittenden Cnty., No. 22-cv-00042, 2024 WL 2194847, at *3 (E.D. Ark. May 15, 2024).

8 See Pedersen v. Bio-Med. Applications of Minn., 775 F.3d 1049, 1053 (8th Cir. 2015).

9 See id.

10 See id.

11 See Samuels v. Kansas City Mo. Sch. Dist., 437 F.3d 797, 801 (8th Cir. 2006).

12 Final Scheduling Order (Doc. 26) at 2.

13 Local R. 56.1(a).

the nonmoving party.14 The glaring problem for Ms. Wilson is that she did not file a responsive

statement.15 So the Court must accept as true all properly stated and supported facts in the

Department’s Statement of Undisputed Facts.16 With the foregoing principles in mind, the Court

will now set out the background facts that will be used to decide the instant Motion.

BACKGROUND

Before Ms. Wilson was hired by the Division of Youth Services, she previously worked for

the Department’s Division of Aging and Adult Services.17 She was initially hired by the Division

of Aging and Adult Services (on or about June 11, 2011) as a Field Investigator.18 She was later

promoted to Program Supervisor, where she was classified at the C119 paygrade and received a

salary of $36,183.68.19

This first stint with the Department did not end favorably for Ms. Wilson. On September

30, 2014, the Department executed a Performance Improvement Plan for Ms. Wilson, but

Ms. Wilson refused to sign it.20 Roughly a week later, Ms. Wilson was issued a written warning

for failure to complete certain work assignments.21 And although Ms. Wilson was given new

14 Local R. 56.1(c).

15 In fact, Ms. Wilson did not file any responsive documents to the Department’s Motion. Unfortunately, that means

that the Court will decide the instant Motion with nearly no input from Ms. Wilson. To be clear, the Court can’t

consider the allegations contained in the Amended Complaint for purposes of deciding the instant Motion unless such

allegations were admitted in the Department’s Answer. See Thomas v. Hungerford, 23 F.3d 1450, 1454 (8th Cir. 1994)

(“A plaintiff opposing a properly supported summary judgment motion may not rest upon the allegations in his

complaint.”). Had the Amended Complaint been verified, it would have been treated as an affidavit (or declaration)

and considered part of the factual record for summary judgment purposes. See Roberson v. Hayti Police Dep’t, 241

F.3d 992, 994–95 (8th Cir. 2001). But Ms. Wilson’s Amended Complaint was not verified, so its contents remain mere

allegations. And at this stage of the proceedings, the Court can’t rely on mere allegations, no matter how well-pled.

16 Of course, the Court need not (and will not) accept legal conclusions as true merely because they were included in

the Department’s unopposed Statement of Undisputed Facts.

17 Def.’s Statement of Undisputed Facts (Doc. 30) ¶ 1.

18 Am. Compl. (Doc. 18) ¶ 5; Answer (Doc. 23) ¶ 6.

19 Am. Compl. (Doc. 18) ¶ 5; Answer (Doc. 23) ¶ 6.

20 Ex. 6 (Aff. of P. Danielle Burns) to Def.’s Mot. for Summ. J. (Doc. 29-6) at 3.

21 Id.

assignments after this written warning, she continued to struggle with meeting her employer’s

performance expectations.22 Ultimately, Ms. Wilson was terminated from the Division of Aging

and Adult Services in October of 2014.23

Ms. Wilson wouldn’t be away from the Arkansas Department of Human Services for long.

She was again hired by the Department in June of 2015, this time as a JDC Monitor in its Division

of Youth Services.24 JDC Monitors in the Division of Youth Services are responsible for fulfilling

a broad range of job duties. JDC Monitors are tasked with monitoring jails, juvenile detention

centers, and juvenile programs and facilities.25 They prepare reports and manage corrective

action.26 They provide technical assistance.27 They perform juvenile advocacy services.28 And

22 See id. at 3–4.

23 See id. at 4; Def.’s Statement of Undisputed Facts (Doc. 30) ¶¶ 1–2. Ms. Wilson’s termination from the Division of

Aging and Adult Services is not directly at issue in the instant case. It was, however, the subject of prior litigation.

See Wilson v. Ark. Dep’t of Human Servs., No. 4:15-cv-00466-SWW (E.D. Ark. filed July 28, 2015).

24 Def.’s Statement of Undisputed Facts (Doc. 30) ¶¶ 3–4. The record shows that, although this position had the

“Functional Title” of JDC Monitor, it had the “OPM Job Title” of Youth Services Advisor. Ex. 7 (Reqs. for Admis.)

to Def.’s Mot. for Summ. J. (Doc. 29-7) at 9. Nothing in the record illuminates the import of this distinction. But the

most pro-plaintiff read of the record suggests that “JDC Monitor” and “Youth Services Advisor” are, at the very least,

positions that perform substantially equal work. This is the most pro-plaintiff read of the record because it enables

Ms. Wilson to use a male Youth Services Advisor named Ricky Gaston as a comparator for the purpose of establishing

a prima facie Equal Pay Act case. See infra page 14.

25 Ex. 7 (Reqs. for Admis.) to Def.’s Mot. for Summ. J. (Doc. 29-7) at 9. This part of the job includes interviewing

staff and juveniles, collecting data and documentation, recording the results of evaluations and interviews, analyzing

data, developing findings, and providing immediate notification to agency officials and/or the Child Abuse Hotline

when appropriate. Id.

26 Id. at 10. This part of the job includes preparing correspondence and reports, analyzing data, assisting in the

preparation of the annual monitoring report to the Office of Juvenile Justice and Delinquency Prevention, evaluating

and responding to proposed corrective action, monitoring completion of corrective action, and evaluating the

effectiveness of corrective action in correcting and preventing problems. Id.

27 Id. This part of the job includes assisting agencies housing juvenile offenders by answering questions and making

recommendations, assisting juveniles by answering and referring questions and concerns, reviewing and commenting

on proposed policies and procedures, assisting with problem solving, and serving as the liaison between the

Department of Youth Services and agencies operating jails and juvenile detention centers. Id. This part of the job

may also require the JDC Monitor to serve on task forces and work groups and to assist in providing training. Id.

28 Id. This part of the job includes communicating with juveniles at facilities to assist in addressing grievances and

concerns, advocating for the interest of juveniles in the areas of health, welfare, and safety, and following up to ensure

that the concerns of said juveniles are appropriately addressed. Id.

they assist in additional duties and special projects under the direction of the Juvenile Justice and

Delinquency Prevention Manager.29

At the time Ms. Wilson was rehired, state law classified the JDC Monitor position at the

C115 paygrade.30 Ms. Wilson was rehired at this paygrade rather than the higher C119 paygrade

she had received during her employment with the Division of Aging and Adult Services.31 About

two years later, in July of 2017, state law reclassified the JDC Monitor position at the GS-6

paygrade.32 Prior to the reclassification, Ms. Wilson’s salary was $29,251.04.33 The record does

not show whether the July 2017 reclassification affected Ms. Wilson’s salary.34

Overall, we don’t know much about Ms. Wilson’s time as a JDC Monitor.35 But we do

know that Ms. Wilson was reassigned to the Internal Affairs Unit of the Department of Youth

Services—to work as an Internal Affairs Investigator—on or about August 21, 2019.36 Like the

JDC Monitor position, the Internal Affairs Investigator position was classified at the GS-6

29 Id.

30 Def.’s Statement of Undisputed Facts (Doc. 30) ¶ 6.

31 See Am. Compl. (Doc. 18) ¶ 24; Answer (Doc. 23) ¶ 25 (admitting that “the Division of Youth Services did not hire

the [P]laintiff at the salary she had when the Division of Aging and Adult Services terminated her in 2014”).

32 See Def.’s Statement of Undisputed Facts (Doc. 30) ¶ 19 (stating that the “Youth Services Advisor position[] became

classified at a GS-6 paygrade”). The most pro-plaintiff read of the record suggests that “Youth Services Advisor” is

another name for the JDC Monitor position. See supra note 24.

33 Am. Compl. (Doc. 18) ¶ 11; Answer (Doc. 23) ¶ 12.

34 Ms. Wilson’s Amended Complaint alleges that the reclassification resulted in a substantial pay increase. See Am.

Compl. (Doc. 18) ¶ 12. But the Department denies this allegation. Answer (Doc. 23) ¶ 13. And there is no record

evidence on this specific point. Moreover, the record does not contain any evidence regarding the way the old pay

scale (with grades like C115) lines up with the post-reclassification pay scale (with grades like GS-6).

35 The record does show that Ms. Wilson received a less-than-stellar performance evaluation in August of 2016. See

Ex. 6 (Aff. of P. Danielle Burns) to Def.’s Mot. for Summ. J. (Doc. 29-6) at 5–7. Indeed, she just barely avoided an

“unsatisfactory” rating in all her duty areas. See id. at 5–6 (consistently giving Ms. Wilson’s performance in each duty

area a rating of “3,” just barely above the 2.99 “unsatisfactory” cutoff). Ms. Wilson filed an appeal challenging her

performance evaluation. See id. at 9–16. The record does not indicate the outcome of Ms. Wilson’s appeal.

36 Ex. 4 (Aff. of Michael Crump) to Def.’s Mot. for Summ. J. (Doc. 29-4) ¶ 3.

paygrade.37 Ms. Wilson remained an Internal Affairs Investigator until she resigned from the

Department in April of 2022.38

Five months before her resignation, Ms. Wilson filed a charge of employment

discrimination with the Equal Employment Opportunity Commission. In this December 2021

charge, Ms. Wilson alleged race and sex discrimination in violation of the Equal Pay Act and Title

VII of the Civil Rights Act.39 She specifically named two male employees—Thomas Messer and

Ricky Gaston—as relevant comparators.40 She received a right-to-sue letter from the EEOC in

June of 2022.41

That’s all the record tells us about Ms. Wilson’s employment with the Department. But the

record does provide information about the two Division of Youth Services employees named in

Ms. Wilson’s EEOC charge. Let’s start with Thomas Messer. Mr. Messer was hired by the

Division of Youth Services in July of 2016 as a JDC Compliance Monitoring Coordinator.42 At

the time of his hiring, this position was classified at the C117 paygrade.43 Upon taking his position,

Mr. Messer was trained in certain aspects of his job by Ms. Wilson.44 After this training,

Mr. Messer performed several job duties that did not overlap with those performed by

37 Id.; Def.’s Statement of Undisputed Facts (Doc. 30) ¶ 19.

38 Ex. 7 (Reqs. for Admis.) to Def.’s Mot. for Summ. J. (Doc. 29-7) at 3. The Department asserts in its briefing that

Ms. Wilson never responded to its Requests for Admission. Br. in Supp. of Mot. for Summ. J. (Doc. 31) at 1.

Ms. Wilson has not disputed this assertion. All statements contained in the Department’s Requests for Admission are

therefore deemed admitted, and thus conclusively established. See Fed. R. Civ. P. 36(a)(3); Fed. R. Civ. P. 36(b). It

is true that Ms. Wilson’s Amended Complaint contradicts the record evidence, stating that her resignation occurred in

April of 2021. Am. Compl. (Doc. 18) ¶ 25. But, for the reasons stated supra note 15, that’s not enough to create a

genuine fact dispute.

39 Ex. 7 (Reqs. For Admis.) to Def.’s Mot. for Summ. J. (Doc. 29-7) at 5; Am. Compl. (Doc. 18) at 7.

40 Am. Compl. (Doc. 18) at 7.

41 Id. ¶ 34; Answer (Doc. 23) ¶ 35.

42 Def.’s Statement of Undisputed Facts (Doc. 30) ¶ 10.

43 See id. ¶ 11. As a reminder, Ms. Wilson’s JDC Monitor position was classified at the C115 paygrade.

44 Id. ¶ 13.

Ms. Wilson.45 At some point in 2018 (no later than April), Mr. Messer was reassigned to the Staff

Development Coordinator position, which involved training Division of Youth Services facility

employees.46 His duties in this new position did not substantially overlap with those required of

Ms. Wilson,47 and he did not work with Ms. Wilson in this new position.48

45 For example, Mr. Messer was responsible for working on an annual report to the Office of Juvenile Justice and

Delinquency Prevention. Id. ¶ 14. Ms. Wilson did not work on those annual reports. Id. It is true that there is some

evidence in the record that suggests that working on these annual reports may have been among Ms. Wilson’s assigned

job duties. See Ex. 6 (Aff. of P. Danielle Burns) to Def.’s Mot. for Summ. J. (Doc. 29-6) at 5 (showing that

Ms. Wilson’s Performance Evaluation Form stated that “she has not completed the task of creating an Annual Report

to OJJDP. The JJDP Unit is developing and providing her with some additional training in this area to get her prepared

for this task”); Ex. 7 (Reqs. for Admis.) to Def.’s Mot. for Summ. J. (Doc. 29-7) at 9 (showing that JDC Monitors are

required to assist in the preparation of the annual monitoring report to the Office of Juvenile Justice and Delinquency

Prevention). But even if Ms. Wilson was assigned to work on these reports in some capacity, the record demonstrates

that she did not perform such work. See Def.’s Statement of Undisputed Facts (Doc. 30) ¶ 14; Ex. 3 (Aff. of Thomas

Messer) to Def.’s Mot. for Summ. J. (Doc. 29-3) ¶ 5; Ex. 6 (Aff. of P. Danielle Burns) to Def.’s Mot. for Summ. J.

(Doc. 29-6) at 5. And the record also shows that Mr. Messer was assigned additional responsibilities that did not

overlap with those assigned to Ms. Wilson. Mr. Messer was required to (1) “conduct[] outreach to build rapport with

law enforcement agencies and local official[s] to facilitate data collection and report[ing],” (2) “plan[] and provid[e]

technical assistance to stakeholder agencies in reporting data required by the OJJDP,” (3) “collect[], compil[e], and

analyz[e] data reports to identify short- and long-term trends in juvenile detention and incarceration,” and (4) “assist[]

the Assistant Director for Community Services and the DYS Director with projects requiring data analysis and

reporting.” Def.’s Statement of Undisputed Facts (Doc. 30) ¶ 12. The record does not suggest that Ms. Wilson was

responsible for any of those job duties. Compare id., with Ex. 7 (Reqs. for Admis.) to Def.’s Mot. for Summ. J. (Doc.

29-7) at 9–10.

46 Ex. 3 (Aff. of Thomas Messer) to Def.’s Mot. for Summ. J. (Doc. 29-3) ¶ 6; Def.’s Statement of Undisputed Facts

(Doc. 30) ¶ 30; Ex. 4 (Aff. of Michael Crump) to Def.’s Mot. for Summ. J. (Doc. 29-4) ¶ 7. The record evidence

regarding this Staff Development Coordinator position is a bit murky. For one thing, the record includes a “Functional

Job Description” for Mr. Messer’s previous DHS Compliance Monitoring Coordinator position. Ex. 3 (Aff. of Thomas

Messer) to Def.’s Mot. for Summ. J. (Doc. 29-3) at 6. That document lists “DHS Compliance Monitoring Coordinator”

as the position’s “Functional Job Title,” but lists “Staff Development Coordinator” as the position’s “OPM Job Title.”

Id. Another “Functional Job Description” document lists a position that has the “Functional Title” of “Internal Affairs

Investigator”—a position Mr. Messer would soon be transferred into—but also has the “OPM Position Title” of “Staff

Development Coordinator.” Id. at 4 (emphasis removed). The relationship between the OPM titles and the functional

titles is not evident in the record. But the undisputed record does tell us that Mr. Messer’s job responsibilities changed

significantly when he was moved from his DHS Compliance Monitoring Coordinator position to his new Staff

Development Coordinator position. See Def.’s Statement of Undisputed Facts (Doc. 30) ¶¶ 15–17.

47 Compare Ex. 3 (Aff. of Thomas Messer) to Def.’s Mot. for Summ. J. (Doc. 29-3) ¶ 7, and Def.’s Statement of

Undisputed Facts (Doc. 30) ¶ 17, with Ex. 7 (Reqs. for Admis.) to Def.’s Mot. for Summ. J. (Doc. 29-7) at 9–10. There

is some evidence in the record to suggest that training employees was part of Ms. Wilson’s job responsibilities—for

example, she trained Mr. Messer on how to do certain parts of his job. Def.’s Statement of Undisputed Facts (Doc.

30) ¶ 13; see also Ex. 7 (Reqs. for Admis.) to Def.’s Mot. for Summ. J. (Doc. 29-7) at 10 (showing that the JDC

Monitor “may assist in providing training”). But outside of this isolated example, there is no record evidence of

Ms. Wilson providing training to employees as part of her job duties. Even the most pro-plaintiff read of the record

suggests that, at most, providing training in limited contexts was a part of Ms. Wilson’s overall job duties, whereas

providing training in a wide variety of areas was the defining responsibility of Mr. Messer’s new role.

48 Def.’s Statement of Undisputed Facts (Doc. 30) ¶ 18.

In 2019, the Division of Youth Services was reorganized at the direction of the Governor

of Arkansas.49 The Director of the Division announced that: (1) some Division of Youth Services

employees would be moved to positions classified at a lower paygrade pursuant to this

reorganization, but (2) no such move would result in an employee receiving lower pay.50 In July

of that same year, the State of Arkansas began transitioning the operations of its juvenile detention

centers to third-party contractors.51 This transition resulted in Mr. Messer being moved from his

Staff Development Coordinator position, which was then classified at the GS-7 paygrade, to an

Internal Affairs Investigator position classified at the GS-6 paygrade.52 Pursuant to the Director’s

announcement, Mr. Messer retained his GS-7 paygrade.53 In this position, Mr. Messer performed

substantially similar duties to those performed by Ms. Wilson in her capacity as an Internal

Affairs Investigator.54

That’s what we know about Mr. Messer. So, we move on to Ricky Gaston.55 Mr. Gaston

was hired by the Department’s Division of Medical Services as a DHS Program Manager in

December of 2016.56 After the Department’s paygrades were reclassified by state law in July of

2017, Mr. Gaston’s position was classified at the GS-8 paygrade.57 But Mr. Gaston’s time as DHS

Program Manager was rather short. Although Mr. Gaston was not terminated by the Department

49 Id. ¶ 27.

50 Id. ¶ 28.

51 Id. ¶ 29.

52 Id. ¶ 30; id. ¶ 19.

53 See id. ¶ 31

54 Ex. 4 (Aff. of Michael Crump) to Def.’s Mot. for Summ. J. (Doc. 29-4) ¶ 17.

55 The Amended Complaint alternatively refers to him as “Ricky Gaston” and “Ricki Gaston.” Compare Am. Compl.

(Doc. 18) ¶ 20, with id. ¶ 22–25. The Department’s Statement of Undisputed Facts refers to him as “Ricky Gaston.”

See Def.’s Statement of Undisputed Facts (Doc. 30) ¶ 20. The Court will use the “Ricky Gaston” spelling.

56 Def.’s Statement of Undisputed Facts (Doc. 30) ¶ 20.

57 See id. ¶ 21.

for any sort of disciplinary reason, his employment as a DHS Program Manager did not last beyond

the Department’s mandatory probationary period for new employees; he left the Department

around the end of 2017.58

Like Ms. Wilson, Mr. Gaston was rehired by the Department less than a year later. In

September of 2018, Mr. Gaston was hired as a Youth Services Advisor in the Division of Youth

Services.59 The most pro-plaintiff read of the record suggests that this position was substantially

similar (if not identical) to the JDC Monitor position Ms. Wilson held from June of 2015 to August

of 2019.60 In 2018, the paygrade for this position was classified at GS-6.61 But Mr. Gaston was

instead paid at the level (GS-8) he was paid when he was a DHS Program Manager.62 Mr. Gaston

was able to be rehired at this higher level of pay because, under relevant state policy, certain former

state employees are eligible—but not entitled—to receive their last rate of pay.63

With the foregoing facts in mind, the Court will address Ms. Wilson’s claims.

DISCUSSION

All of Ms. Wilson’s claims against the Department, whether based on the Equal Pay Act or

Title VII of the Civil Rights Act, arise from the same (alleged) misconduct—that the Department

paid male employees more than it paid Ms. Wilson for doing equal work.64 And in the Eighth

58 Id. ¶¶ 21–22; Ex. 5 (Aff. of Ricky Gaston) to Def.’s Mot. for Summ. J. (Doc. 29-5) ¶ 3. There is some inconsistency

in the record as to the nature of Mr. Gaston’s exit from the DHS Program Manager position. The Department’s

Statement of Undisputed Facts states that “[Mr. Gaston’s] probationary period did not result in him be[ing] retained,”

suggesting that Mr. Gaston did not leave the DHS Program Manager position on his own accord. Def.’s Statement of

Undisputed Facts (Doc. 30) ¶ 21. But Mr. Gaston’s affidavit characterizes his exit as a resignation. Ex. 5 (Aff. of

Ricky Gaston) to Def.’s Mot. for Summ. J. (Doc. 29-5) ¶¶ 3–4. This inconsistency is not material.

59 Def.’s Statement of Undisputed Facts (Doc. 30) ¶ 23.

60 See supra note 24.

61 Def.’s Statement of Undisputed Facts (Doc. 30) ¶ 23.

62 Id. ¶ 25; see also id. ¶ 19.

63 Id. ¶¶ 24–25.

64 See Am. Compl. (Doc. 18) ¶ 36; id. at 7 (showing that Ms. Wilson’s EEOC charge alleged that she was “denied

equal wages and equal pay”).

Circuit, sex discrimination claims that solely relate to unequal pay for equal work are governed by

the standards of the Equal Pay Act, regardless of whether such claims are brought under the Equal

Pay Act itself or brought under Title VII.65 That means that the Court can and will deal with all of

Ms. Wilson’s claims simultaneously rather than separately.

“Under the EPA, a plaintiff must establish a prima facie case by ‘show[ing] that the

defendant paid male workers more than she was paid for equal work in jobs that required equal

skill, effort, and responsibility and work performed under similar conditions.’”66 Jobs don’t need

to be identical or have the same classification or title to be considered equal work, but they must

be at least “substantially equal.”67 Whether a male employee actually performed “equal work”

compared to Ms. Wilson requires consideration of (1) the respective “experience, training,

education, and ability” of Ms. Wilson and the male comparator; (2) the “physical or mental

exertion needed to perform the [respective] job[s],” and (3) the “degree of accountability required

in performing [each] job.”68

If Ms. Wilson is able to mount a prima facie case, “the burden shifts to the defendant to

prove one of the affirmative defenses set forth under the EPA.”69 Those statutory defenses shield

employers from liability in situations where the pay disparity is attributable to “(i) a seniority

system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of

65 Taylor v. White, 321 F.3d 710, 715 (8th Cir. 2003). It is true that not all Title VII sex discrimination claims involving

compensation overlap with the Equal Pay Act. In a circumstance where an employer “intentionally depresses wages

on account of sex,” but “there were no employees of the opposite sex doing equal work for more pay,” an employer

may violate Title VII without violating the Equal Pay Act. Tenkku v. Normandy Bank, 348 F.3d 737, 741 (8th Cir.

2003). But Ms. Wilson doesn’t allege such circumstances in her Amended Complaint. So the Court can analyze both

the Title VII claim and the Equal Pay Act claim under the same standard.

66 Taylor, 321 F.3d at 715 (quoting Buettner v. Arch Coal Sales Co., Inc., 216 F.3d 707, 718–19 (8th Cir. 2000)).

67 See Hunt v. Neb. Pub. Power Dist., 282 F.3d 1021, 1029 (8th Cir. 2002).

68 Buettner, 216 F.3d at 719.

69 Taylor, 321 F.3d at 715.

production; or (iv) a differential based on any other factor other than sex . . . .”70 To prevail at the

summary judgment stage, a defendant relying on one of these statutory defenses must establish the

defense as a matter of law such that no reasonable jury could conclude otherwise.71

In this case, Ms. Wilson has pointed to male Department employees that she alleges were

paid more than she was for performing equal work. For Ms. Wilson’s claims to survive summary

judgment, the Court must first determine that at least one of these employees was paid more than

Ms. Wilson for equal work, and must then determine that the Department hasn’t met its burden in

conclusively establishing an affirmative defense that would explain such a pay disparity. There

are only two potential comparators here: Mr. Messer and Mr. Gaston.72 The Court will examine

each in turn.

A. Thomas Messer

During the time period relevant to the instant case, Mr. Messer held three different jobs

with the Division of Youth Services; he was first a JDC Compliance Monitoring Coordinator, then

70 29 U.S.C. § 206(d)(1).

71 Tenkku, 348 F.3d at 741 n.2. This is different from the burden placed on an employer in the McDonnell Douglas

framework used in many Title VII cases involving indirect evidence of discrimination. In those cases, an employer

must merely articulate a “legitimate non-discriminatory reason” for an adverse employment action. See Taylor, 321

F.3d at 716. In Equal Pay Act cases, however, the employer must actually “prove that the pay differential was based

on a factor other than sex.” Id.

72 The Amended Complaint also mentions a man named Brandon Alan Clingman who (1) was hired as an Internal

Affairs Investigator over a year after Ms. Wilson’s resignation and (2) received a higher-than-normal starting salary

for that position. See Ex. 7 (Reqs. for Admis.) to Def.’s Mot. for Summ. J. (Doc. 29-7) at 1–2; Am. Compl. (Doc. 18)

¶ 33; Answer (Doc. 23) ¶ 34 (admitting that “Mr. Clingman began at a starting salary that was higher than the base

salary for his position”). In the typical Equal Pay Act case, appropriate comparators are drawn from the plaintiff’s

contemporaneously-employed colleagues or immediate predecessors or successors. Cf. Lawrence v. CNF Transp.,

Inc., 340 F.3d 486, 492 (8th Cir. 2003). And Mr. Clingman was not Ms. Wilson’s immediate successor. Over a year

had passed between Ms. Wilson’s resignation and Mr. Clingman’s hiring. It is true that non-immediate successors can

sometimes serve as comparators for Equal Pay Act purposes—but only when appropriate. See Broadus v. O.K. Indus.,

Inc., 226 F.3d 937, 941–42 (8th Cir. 2000). Use of non-immediate successors is most often appropriate when a plaintiff

does not have an immediate predecessor, immediate successor, or contemporaneous colleague who engaged in

substantially equal work. See id. at 942. Here, however, Ms. Wilson had at least one contemporaneous male colleague

that performed substantially equal work in both her capacity as a JDC Monitor (e.g., a man named Eugene Lamb III,

see Def.’s Statement of Undisputed Facts (Doc. 30) ¶ 9) and her capacity as an Internal Affairs Investigator (e.g.,

Mr. Messer). Use of a non-immediate successor like Mr. Clingman is therefore inappropriate in the instant case.

a Staff Development Coordinator, and then an Internal Affairs Investigator. In his capacities as

JDC Compliance Monitoring Coordinator and Staff Development Coordinator, Mr. Messer did not

perform work substantially equal to the work performed by Ms. Wilson in her capacity as JDC

Monitor.73 But the record shows that Mr. Messer and Ms. Wilson performed substantially equal

work in their capacities as Internal Affairs Investigators.74 And the record also shows that, despite

performing equal work, Mr. Messer was classified at a higher paygrade than Ms. Wilson.75 So,

with respect to the overlapping Internal Affairs Investigator tenures of Mr. Messer and Ms. Wilson,

Ms. Wilson has established a prima facie Equal Pay Act case.

The Department asserts an affirmative defense under the “any other factor other than sex”

catch-all in 29 U.S.C. § 206(d)(1). The Department argues that Mr. Messer was paid a permissible

“red circle rate” pursuant to the Director’s announcement that no employee moved to a position

with a lower pay grade due to the Division of Youth Services’ reorganization would receive less

pay.76 Federal regulations define a red circle rate as an “unusual, higher than normal, wage

rate[] . . . maintained for reasons unrelated to sex.”77 And the Eighth Circuit has made clear that a

73 In his capacity as JDC Compliance Monitoring Coordinator, Mr. Messer worked on annual reports to the Office of

Juvenile Justice and Delinquency Prevention, whereas Ms. Wilson did not work on those reports. See supra note 45.

This annual reporting was a significant job responsibility that required “at least a month of work each year.” Ex. 3

(Aff. of Thomas Messer) to Def.’s Mot. for Summ. J. (Doc. 29-3) ¶ 4. That certainly qualifies as more than an

“insubstantial or minor difference” in job duties. See Hunt, 282 F.3d at 1030. Beyond this, the record also provides

a laundry list of job duties assigned to Mr. Messer in his capacity as JDC Compliance Monitoring Coordinator that

differ from those assigned to JDC Monitors. Compare Def.’s Statement of Undisputed Facts (Doc. 30) ¶ 12 (listing

Mr. Messer’s job duties), with Ex. 7 (Reqs. for Admis.) to Def.’s Mot. for Summ. J. (Doc. 29-7) at 9–10 (listing the

job duties and responsibilities assigned to JDC Monitors). In his capacity as Staff Development Coordinator,

Mr. Messer’s primary duty was to train facility employees on a wide variety of subjects, which is significantly different

from what Ms. Wilson was asked to do as a JDC Monitor. See supra note 45. That clearly constitutes significantly

unequal work. No reasonable jury could find that Mr. Messer and Ms. Wilson performed equal work during

Mr. Messer’s time as JDC Compliance Monitoring Coordinator or Staff Development Coordinator.

74 Ex. 4 (Aff. of Michael Crump) to Def.’s Mot. for Summ. J. (Doc. 29-4) ¶ 17.

75 See supra pages 5, 8.

76 See Br. in Supp. of Def.’s Mot. for Summ. J. (Doc. 31) at 15–18.

77 29 C.F.R. § 1620.26(a).

red circle rate can constitute a “factor other than sex” sufficient to establish an affirmative defense

under the Equal Pay Act.78

The higher pay received by Mr. Messer fits neatly within the definition of a red circle rate

provided by federal regulations. Mr. Messer’s GS-7 paygrade was unusual and higher than the

standard GS-6 paygrade for the Internal Affairs Investigator position. But he got this unusual rate

because he had it in his previous position prior to the reorganization. And the record conclusively

shows that he maintained this unusually high paygrade pursuant to a general policy that protected

employees from suffering pay decreases due to reorganization-driven reassignments.79 That’s

clearly a reason unrelated to sex.80 No reasonable jury could find otherwise. Accordingly, the

78 See Price v. N. States Power Co., 664 F.3d 1186, 1193 (8th Cir. 2011). It’s worth noting a potential counterpoint

here. The federal regulations provide several non-exhaustive examples of bona fide red circle rates. Those examples

include (but are not limited to) maintaining a highly skilled employee’s higher wage during a temporary reassignment

to a less-demanding position or maintaining the higher wage of a long-tenured employee in ill health that is moved to

a less-demanding position. 29 C.F.R. § 1620.26(a)–(b). Obviously, neither of the just-mentioned examples is a perfect

analogue to the Department policy at issue. But, although the Eighth Circuit has not explicitly laid out the limitations

of the red circle rate concept, the Eighth Circuit has endorsed a broad, inclusive reading of the “any other factor other

than sex” affirmative defense. See Taylor, 321 F.3d at 717–18. And, in a decision that was cited approvingly by the

Eighth Circuit, the Sixth Circuit emphasized that red circling “has yet to be defined in all of its manifestations,” and

stressed that the concept is intentionally flexible. Timmer v. Mich. Dep’t of Com., 104 F.3d 833, 844 (6th Cir. 1997)

(quoting Gosa v. Bryce Hosp., 780 F.2d 917, 919 (11th Cir. 1986)); see also Price, 661 F.3d at 1193 (citing Timmer,

104 F.3d at 844). In short, the red-circle defense is not limited to the express examples in the regulation or even to

perfect analogues of those examples.

79 See Ex. 4 (Aff. of Michael Crump) to Def.’s Mot. for Summ. J. (Doc. 29-4) ¶¶ 4–9. The record also shows that,

pursuant to the same policy that allowed Mr. Messer to retain his higher paygrade, a female employee forced to change

positions due to the reorganization was also allowed to keep her previous, higher paygrade classification. Id. ¶ 11.

This supports the conclusion that the red circle rate was genuine and nondiscriminatory. And nothing in the record

contradicts this conclusion.

80 The Eighth Circuit has affirmed summary judgment against equal-pay-equal-work plaintiffs in a similar situation to

the case at bar. In Price, the employer had a red circle rate policy whereby existing employees who transitioned to a

field representative role would keep the base pay from their previous positions. Price, 664 F.3d at 1189. The Eighth

Circuit characterized the “differences in starting salaries of field representatives” caused by this red circle rate as

“legitimate . . . .” Id. at 1193. Given that the evidence showed that the pay differentials at issue were the result of

legitimate compensation policies, including this red circling policy, the panel held that (1) the plaintiffs needed to do

more than “merely point to a raw difference in pay between men and women to prevail,” and (2) the “evidence [was]

sufficient to establish [the employer’s] affirmative defenses.” Id. at 1193–94. Here, as in Price, the red circling policy

allows employees that change positions to retain their previous, higher base pay rate. And as in Price, the

Department’s red circle rate is a legitimate, nondiscriminatory explanation for the pay discrepancy at issue.

Department has established an affirmative defense as a matter of law with respect to the pay

disparity between Mr. Messer and Ms. Wilson.

B. Ricky Gaston

Recall that, like Ms. Wilson, Mr. Gaston held a position at the Department, left the

Department, and then returned to the Department as a Youth Services Advisor.81 But unlike

Ms. Wilson, Mr. Gaston was allowed to retain his previous, higher paygrade in his new Youth

Services Advisor position.82 On the read of the record most favorable to Ms. Wilson, Mr. Gaston—

in his capacity as a Youth Services Advisor—performed work substantially equal to that performed

by Ms. Wilson in her capacity as JDC Monitor.83 And the record shows that, despite performing

equal work, Mr. Gaston was classified at a higher paygrade than Ms. Wilson.84 So, with respect

to Mr. Gaston’s time as Youth Services Advisor, Ms. Wilson has established a prima facie Equal

Pay Act case.

Still, there’s a big problem with Ms. Wilson’s reliance on Mr. Gaston. Insofar as her Equal

Pay Act and Title VII claims rely on the disparate pay between Ms. Wilson and Mr. Gaston, they

are barred by the relevant statutes of limitations. Any cause of action under the Equal Pay Act

“shall be forever barred unless commenced within two years . . . .”85 Mr. Gaston was hired as a

81 See supra pages 8–9.

82 See id.

83 See supra note 24; Ex. 7 (Reqs. for Admis.) to Def.’s Mot. for Summ. J. (Doc. 29-7) at 9 (showing that the JDC

Monitor position was also referred to as “Youth Services Advisor”).

84 See supra page 9.

85 See 29 U.S.C. § 255(a); Simpson v. Merchants & Planters Bank, 441 F.3d 572, 579–80 (8th Cir. 2006) (citing 29

U.S.C. § 255(a)). It is true that, “if an employee can show that the employer willfully violated the Equal Pay Act, the

statute of limitations is three years . . . .” Simpson, 441 F.3d at 579–80. But even if the Department violated the Equal

Pay Act, nothing in the record suggests—and no reasonable jury could find—that any such violations were willful.

Cf. id. at 580 (“A finding of willfulness requires behavior on the part of the employer that exceeds negligence; the

employer must act knowingly or with reckless disregard of whether the contested conduct was prohibited.”). So the

standard two-year statute of limitations applies in the instant case.

Youth Services Advisor in September of 2018.86 On August 21, 2019, Ms. Wilson left her JDC

Monitor Position for the Internal Affairs Investigator position—and thus no longer engaged in

work equal to that performed by Mr. Gaston.87 So, on August 21, 2019 (at the latest), the statute-

of-limitations clock started on any Equal Pay Act claim Ms. Wilson could bring regarding the pay

disparity between her and Mr. Gaston. But Ms. Wilson did not file her original Complaint until

August 30, 2022.88 Such a claim is therefore time-barred.

Ms. Wilson’s Title VII claim is also time-barred insofar as it relies on the pay disparity

between her and Mr. Gaston. A Title VII charge must be filed with the EEOC “within one hundred

and eighty days after the alleged unlawful employment practice occurred . . . .”89 As stated above,

Mr. Gaston and Ms. Wilson stopped performing equal work for unequal pay in August of 2019.

But Ms. Wilson did not file her charge with the EEOC until December of 2021.90 And “[t]he

timely filing of a charge of discrimination with the EEOC is a prerequisite to court action under

Title VII.”91 Accordingly, any Title VII claim reliant on the pay disparity between Ms. Wilson and

Mr. Gaston is time-barred.

CONCLUSION

For the foregoing reasons, the Arkansas Department of Human Services’ Motion for

Summary Judgment92 is GRANTED. Judgment will be entered for the Department on all the

claims substantively discussed in this Motion, and this case will be CLOSED.

86 Def.’s Statement of Undisputed Facts (Doc. 30) ¶ 23.

87 See Ex. 4 (Aff. of Michael Crump) to Def.’s Mot. for Summ. J. (Doc. 29-4) ¶ 3.

88 Compl. (Doc. 1).

89 42 U.S.C. § 2000e-5(e)(1).

90 Ex. 7 (Reqs. For Admis.) to Def.’s Mot. for Summ. J. (Doc. 29-7) at 5.

91 Greene v. Carter Carburetor Co., 532 F.2d 125, 126 (8th Cir. 1976).

92 Doc. 29.

IT IS SO ORDERED this 16th day of July 2025.

LEE P. fe

UNITED STATES DISTRICT JUDGE

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