                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT
                        _______________________

                         Nos. 00-21001, 01-20023

                         _______________________


                             BEVERLY WYMOLA,

                                                       Plaintiff-Appellee,

                                   versus

                         TEXAS A & M UNIVERSITY,

                                                     Defendant-Appellant.


_________________________________________________________________

          Appeals from the United States District Court
                for the Southern District of Texas
                           (H-99-CV-255)
_________________________________________________________________
                          April 10, 2002


Before JONES, EMILIO M. GARZA and STEWART, Circuit Judges.

PER CURIAM:*

           Texas A & M University appeals from the district court’s

decision granting appellee Beverly Wymola’s motion for judgment as

a matter of law (JMOL), pursuant to Fed. R. Civ. P. 50, on Wymola’s

claim against A & M under the Equal Pay Act, 29 U.S.C. § 206(d)(1).

The district court granted Wymola’s motion after a jury trial that



     *
            Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
resulted in a verdict in A & M’s favor.1                Because there was

evidence to sustain the jury’s verdict, we REVERSE and RENDER.2

             A JMOL may be granted under Rule 50 only if there were

no probative facts to sustain the verdict.              Lowe v. Southmark

Corp., 998 F.2d 335, 336 (5th Cir. 1993).        The standard is the same

as for summary judgment.          The court is required to draw all

reasonable inferences in favor of A & M, the nonmoving party, and

may not make credibility determinations or weigh the evidence.

Reeves v. Sanderson Plumbing Products, 530 U.S. 133, 150, 120 S.Ct.

2097, 2110 (2000). If the jury’s conclusions are not unreasonable,

the court may not reject them.         Coffel v. Stryker Corp., 2002 WL

287637, *3 (5th Cir. Mar. 14, 2002); Gutierrez v. Excel Corp., 106

F.3d 683, 686-87 (5th Cir. 1997).

           Under the Act, if Wymola made out a prima facie case of

unequal pay for equal work, Chance v. Rice University, 984 F.2d

151, 153 (5th Cir. 1993), then the burden shifted to A & M to prove



     1
            Wymola does not appeal the jury’s adverse verdict on her Title VII
claim or the court’s summary judgment against her § 1983 and punitive damage
claims.
     2
            We note in passing that A & M has made no claim in this appeal
that it is immune from suit under the Eleventh Amendment. In any event, this
court recently reaffirmed that the Eleventh Amendment poses no bar to suits
against states under the Equal Pay Act. Siler-Khodr v. Univ. of Texas Health
Sci. Ctr. San Antonio, 261 F.3d 542, 549-51 (5th Cir. 2001).




                                      2
by a preponderance of the evidence that the pay differential was

justified under one of the four affirmative defenses set forth in

the Act.          Siler-Khodr v. Univ. of Texas Health Sci. Ctr. San

Antonio, 261 F.3d 542, 546 (5th Cir. 2001); Plemer v. Parsons-

Gilbane, 713 F.2d 1127, 1136 (5th Cir. 1983).                     “[T]he Act's four

affirmative defenses exempt any wage differentials attributable to

seniority, merit, quantity or quality of production, or ‘any other

factor other than sex.’” Washington County v. Gunther, 452 U.S.

161,       168,   101    S.Ct.     2242,   2247     (1981)   (quoting   29     U.S.C.   §

206(d)(1)).             As   the    district       court   told   the   jury    in   its

instructions, “factors other than sex” include education, training,

and performance.3            To uphold the entry of JMOL for Wymola, there

would have to be no competent evidence from which the jury could

have concluded that pay differences were “based on” “factors other

than sex.”



       3
            See Parsons-Gilbane, 713 F.2d at 1138 (“Different job levels,
different skill levels, previous training and experience: all may account for
unequal salaries in an environment free from discrimination.”) (citation and
internal quotation marks omitted); Lenihan v. Boeing Co., 994 F.Supp. 776, 798
(S.D. Tex. 1998) (factors other than sex under Equal Pay Act include unique
characteristics of the same job; an individual's experience, training or
ability; special exigent circumstances connected to the business; and prior
salary, provided it is not the sole cause of a pay disparity). Cf. Hodgson v.
Golden Isles Convalescent Homes, Inc., 468 F.2d 1256, 1258 (5th Cir. 1972) (in
enacting the Act, “Congress intended to permit employers wide discretion in
evaluating work for pay purposes”).




                                               3
           After review of the record, we conclude instead that a

reasonable jury could have decided that A & M had proven one or

more of the affirmative defenses available to it under the Act.4

For example, there was testimony that factors such as educational

credentials, the length of one’s service with A & M’s Computer

Information Services (CIS) department, experience, and skill were

used as criteria for promotions and salary increase decisions.

Wymola’s    work   evaluations     show    that   she   worked    hard    and

satisfactorily -- both during the working day and on many nights

and weekends -- and that she made efforts to overcome her relative

lack of technical knowledge by learning off and on the job.               But

many or all of the male employees who earned more than Wymola also

worked on nights and weekends, and all of them had significantly

more education or experience in computer science (or so the jury

could have found), even though some of them had less seniority

within CIS than Wymola did.       There was direct testimony that these



     4
             That is, the jury was entitled to conclude from the evidence both
that A & M had met its burden on one or more affirmative defenses and that the
defense or defenses were not pretextual in the sense of that word that is used
in Title VII cases. See Siler-Khodr, 261 F.3d at 546, 548; Parsons-Gilbane,
713 F.2d at 1137 & n.8. “[A] showing that the unsuccessful employee was
clearly better qualified is enough to prove that the employer's proffered
reasons are pretextual.” Price v. Federal Express Corp., 2002 WL 264247, *5
(5th Cir. 2002). “Showing that two candidates are similarly qualified does
not establish pretext under this standard.” Id.




                                      4
male employees were simply better at their jobs than Wymola was.5

The jury was entitled to rely on this and other evidence to

conclude that Wymola was paid less than some of her peers for

reasons that did not have to do with her sex.                  In particular, the

jury       could   have   believed   that       Wymola   conscientiously     did   an

excellent job at work, and that her employer paid many of her peers

more       because   they   outmatched      her    in    education   and   technical

knowledge, experience, or performance.6

               In its memorandum and order granting JMOL for Wymola on

the Equal Pay Act claim, the district court relied on a number of




       5
            There was also testimony that Wymola was equal or about equal in
ability, performance, or both to another employee, David Cherbonnier, who was
paid roughly the same as Wymola during the time they were both employed by
CIS. During most of this time, Wymola was paid somewhat more than
Cherbonnier; for two relatively short periods, though, she was paid somewhat
less. Also, there was evidence, much of it undisputed, from which the jury
could have concluded that Wymola was better paid than some of her male peers
for work that, according to the very theory on which she seeks to recover
under the Act, required a similar amount of skill, effort, and responsibility.
(While Wymola argues that her job was equal in all relevant respects to the
jobs of men who were paid more than she was, she appears not to contend that
her job was not equal in any relevant respect to the jobs of men who were
paid less than she. Of course, even if she had made such an argument, the
jury would not have been required to believe it.)
       6
            Because there was evidence to support a finding that A & M had
proved an affirmative defense, we do not decide whether a reasonable jury
could have found that Wymola had not proven a prima facie case under the Act.
Compare Chance, 984 F.2d at 153; McKee v. McDonnell Douglas Technical Servs.
Co., Inc., 700 F.2d 260, 262-63 (5th Cir. 1983) (affirming district court’s
refusal to enter JMOL for plaintiff in Equal Pay Act case; jury could
reasonably have found that plaintiff had not made out prima facie case).




                                            5
factual assertions that were not required by the evidence.            We note

a few of these assertions to give a flavor of their nature.

            1. The court stated that Elroy D’Souza lacked networking

experience but was hired with a better title (Programmer/Analyst I)

than Wymola and at a higher rate of pay ($3,000 more per annum).

There was evidence that D’Souza, who had a graduate degree in

computer science, was more experienced and much more skilled than

Wymola, who did not have such a degree.         The court disregarded this

evidence.

            2.   The court stated that when Wymola learned that her

position had been omitted from a reclassification that affected her

male peers, she questioned her then supervisor, Fred Fisher, about

the omission, and that his response was unsatisfactory.             The court

disregarded Fisher’s testimony that he was not responsible for the

reclassification     and   that   there   was   no   reason   to   reclassify

Wymola’s position because it was roughly equivalent to one of the

new positions created by the reclassification.            The jury was not

required to credit Wymola’s testimony on these and other matters.

Coffel, 2002 WL 287637 at *12.7


      7
            At the trial, Wymola called only three witnesses other than
herself: her husband, who testified briefly on how her experience with her
employer had affected her emotionally and put strains on their relationship;




                                      6
           3. The court stated that two males, Couch and Herbert,

were hired in 1992 from outside Wymola’s work group at a higher

salary than Wymola.      The court omitted to mention that Couch’s

and Herbert’s salaries were higher than those of other male members

of the group, not just of Wymola.8

           4. The court stated that Wymola received her first salary

increase in October 1992.         The court overlooked evidence that

Wymola received merit increases before that date.            The court also

characterized various increases in Wymola’s pay as “cost-of-living




Wymola’s second supervisor at CIS, Bob Mann, who testified as an adverse
witness and who supplied much testimony on which the jury could have relied in
finding for A & M; and an A & M official who testified chiefly about what she
had learned while commencing A & M’s internal investigation of Wymola’s
complaint of sex discrimination. Thus much, if not most, of the evidence in
Wymola’s favor amounted to Wymola’s own testimony, much of which was
contradicted or called into question by the testimony of other witnesses. As
the district court said in its instructions, the jury was at liberty to make
its own decisions as to the credibility of this testimony. Cf. Reeves, 530
U.S. at 151, 120 S.Ct. at 2110 (jury is required to believe evidence
supporting movant that is uncontradicted and unimpeached, at least to extent
that it comes from disinterested witnesses).
     8
            Along the same lines, the district court ignored or discounted
testimony that, because the funds available for salary increases were highly
constrained by factors beyond the control of CIS officials (including the
willingness or lack thereof of Texas legislators to provide increases in
funding for A & M), few CIS employees got raises or promotions at all during
at least some of the fiscal years at issue in this litigation; that Wymola
nonetheless received several raises in the course of her tenure at CIS, along
with one major promotion whereby she “leapfrogged” one or two less prestigious
intermediate positions to which she could have been promoted; and that the
differences between the pay of certain relatively well paid male employees and
of certain other male employees were about as great as the differences between
the pay of the well paid male employees and that of Wymola.




                                      7
increases” or “equity raises” when there was evidence that these

increases were merit increases.

            5. The court stated that Wymola’s second supervisor in

CIS, Bob Mann (who succeeded Fisher), asked Wymola whether she was

“finally satisfied” when she received her October 1992 salary

increase.   Mann testified that he did not mean this comment in the

negative way in which Wymola apparently took it.         The jury should

have decided how to interpret this comment.

            6. The court described as “factually untrue” an A & M

official’s statement to Wymola that promotions and merit increases

could not be given in the same fiscal year.          The court cited

evidence that various other employees received merit increases

within a year after receiving a promotion. This evidence, however,

is consistent with the A & M official’s statement.          Each of the

raises mentioned by the court occurred in the September after the

corresponding promotion; and there was ample evidence that A & M’s

fiscal year began in September.

            7. The court stated that an A & M investigator who looked

into Wymola’s claim of pay disparity was met with resistance and

intimidation    from   CIS   male   supervisors.   The    court   ignored

testimony to the contrary.




                                     8
          In summary, the district court applied the wrong standard

under Rule 50.    Instead of viewing the evidence in the light most

favorable to nonmovant A & M, the court overlooked much evidence

that favored A & M and viewed other evidence in a light favorable

to Wymola -- the movant.   The court usurped the jury’s authority as

finder of fact.

          We REVERSE and RENDER judgment in favor of A & M on the

Equal Pay Act claim.




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