                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                 ________________

                                    No. 99-1529
                                 ________________

Carol Broadus,                            *
                                          *
      Appellee,                           *
                                          *       Appeal from the United States
      v.                                  *       District Court for the
                                          *       Western District of Arkansas.
O.K. Industries, Inc.,                    *
                                          *
      Appellant.                          *

                                 ________________

                                 Submitted: March 16, 2000
                                     Filed: September 12, 2000
                                 ________________

Before HANSEN and FAGG, Circuit Judges, and NANGLE,1 District Judge.
                         ________________

HANSEN, Circuit Judge.

      O.K. Industries, Inc., appeals the district court's2 judgment entered in favor of
Carol Broadus after a jury trial. We affirm.



      1
        The Honorable John F. Nangle, United States District Judge for the Eastern
District of Missouri, sitting by designation.
      2
        The Honorable Jimm Larry Hendren, Chief Judge, United States District Court
for the Western District of Arkansas.
                                           I.

       Carol Broadus was hired into the data processing department of O.K. Industries
in 1987. She received several promotions over the years and was eventually promoted
to the newly created position of Operations Coordinator in July 1991. With this
promotion, she received a raise from $8.00 per hour to $9.00 per hour. She held this
position until September 13, 1996, the date on which she terminated her employment.
At that time, she was making $10.60 per hour (approximately $22,172 per year).

       In her capacity as Operations Coordinator, Broadus's testimony explains that she
was the first person called when a computer user was having a problem; she was
available on-call 24 hours a day; she would attempt to fix the computer problem over
the phone or go to the site to fix the problem; if she could not fix the problem, she
would refer the call to someone else. Her supervisor, Robert Cloninger, testified that
she was unable to fix only about five to ten percent of the computer problems that
arose, "if that much." (Trial Tr. at 290.) Broadus also testified that she set-up
computers and got them running; installed equipment and software; trained users on the
computers and software; ran network back-ups; performed maintenance, including
printer maintenance (changing toner cartridges and light printer cleaning); occasionally
ran computer cables; conducted software training; built computers from scratch;
installed wall jacks for computer cabling; installed printers; ordered equipment;
swapped out broken computer parts; and trained accountants to operate the new fixed
assets system. (Id. at 53-63.) In addition, she was the VAX security administrator and
the Windows N/T server administrator. (Id. at 61.)

        Cloninger testified that he asked his supervisor, Jim Hurt, on numerous
occasions, to put Broadus on salary and that Hurt either ignored him or simply said no.
(Id. at 300.) Cloninger also testified that all the men in the department were on salary
and all the women in the department were paid hourly in 1995-1996. (Id. at 302.)
Cloninger stated that he was directed by Hurt to hire men for technical positions and

                                           2
women for clerical positions. (Id. at 285.) Cloninger testified that in July 1996 Hurt
instructed him to take away some of Broadus's duties and give them to Hoa Aunguyen
because "ambitious young men [need] to be promoted." (Id. at 302.) Shortly after that,
Cloninger was fired. Broadus left O.K. Industries in September 1996. Thereafter, her
position was eliminated.

        Gary Bunzel was hired as Cloninger's replacement in October 1996. Bunzel
proposed that O.K. Industries discontinue out-sourcing printer maintenance and
technical support to Compunet, a third-party service provider. Bunzel testified,
however, that even after October 1997 work was still being out-sourced to Compunet
under a contract that had been entered into prior to Bunzel's hiring at O.K. Industries.
(Id. at 197.) As part of his plan to develop an in-house help desk, Bunzel hired Aaron
Vorabooth in February 1997 and Ken McPhail in March 1997 as help desk technicians.
Two additional technicians were hired later in 1997.

       In April 1996, Marcus Mulson was hired at a rate of $9.00 per hour to help
Broadus. According to Mulson's testimony, Broadus interviewed him, trained him, and
supervised him. His primary duties were cleaning printers and other miscellaneous
tasks, such as answering user calls, delivering computers, and configuring and repairing
computers. Compunet trained Mulson to do printer cleaning. Broadus remained
Mulson's supervisor until Aunguyen began to take over her duties. In March 1997,
Mulson was put on salary at $22,000 per year. In May 1997, Mulson became the
supervisor of Vorabooth and McPhail. He received a raise to $27,000 and then another
raise that year to $27,810. Mulson testified that his job duties "more or less" remained
the same. (Id. at 132.)

       Vorabooth was hired in February 1997 as a help desk technician and placed on
salary at $26,000 per year. Vorabooth testified that his duties initially consisted of
cleaning printers, answering phones, and stocking and inventorying hardware. (Id. at


                                           3
262.) After Bang Nguyen was hired in September 1997 to clean printers, Vorabooth
testified that he started setting up computers and installing software. (Id. at 263.)

        McPhail was hired as a help desk technician in March 1997 and placed on
salary at $25,000 per year. He testified that his duties consisted of cleaning and
maintaining printers, answering calls from users, installing and repairing computers, and
troubleshooting. (Id. at 245.) McPhail also testified that he built computers from
scratch and ran cable. When McPhail became the help desk supervisor after Mulson
left in March 1998, McPhail was making about $37,000 per year.

       Nguyen was hired as a help desk technician in September 1997 at a salary of
$20,000 per year. Nguyen testified that his primary duty was to clean printers, but he
also answered user calls, repaired computers, and ran cable. In October 1998, Nguyen
was given a raise to $25,000 per year. (Id. at 277.)

       Broadus filed a complaint against O.K. Industries alleging discrimination on the
basis of gender in violation of the Equal Pay Act (EPA), 29 U.S.C. § 206 (1994), and
the Arkansas Civil Rights Act (ACRA), Ark. Code Ann. §§ 16-123-101 through 108
(Michie Supp. 1997). In the first trial, Broadus alleged that she was paid less than
Aunguyen and Mulson for performing substantially equal work. The jury found in
favor of Broadus and awarded her a total of $22,500 in back pay, liquidated damages,
and punitive damages. O.K. Industries filed a motion for judgment as a matter of law
or a motion for a new trial. The district court granted the motion for a new trial
because the back pay award was excessive. In addition, the district court concluded
that Aunguyen was not a valid comparator because he had more skills and
responsibilities than Broadus had in the position.

       In the second trial, Broadus alleged that she was paid less than Mulson,
Vorabooth, McPhail, and Nguyen for performing substantially equal work in violation
of the EPA and the ACRA. The jury again found in favor of Broadus and awarded

                                           4
$3,452 in back wages for the period of June 16, 1994, through June 16, 1995, under
the EPA, $3,452 in back wages for the period of June 16, 1995, through September 13,
1996, under both the EPA and the ACRA, and $15,000 in punitive damages under the
ACRA. Liquidated damages were awarded, pursuant to 29 U.S.C. § 216(b), in an
amount double the amount of the back wages, $6,904. The judge remitted to $0 the
$3,452 back wages award under the ACRA in order to avoid duplicative relief. The
final award entered against O.K. Industries totaled $28,808. O.K. Industries appeals,
raising several questions of law.

                                           II.

       To establish a violation of the Equal Pay Act, an employee must demonstrate that
the employer paid male and female employees different wage rates for substantially
equal work. See EEOC v. Universal Underwriters Ins. Co., 653 F.2d 1243, 1244 n.3
(8th Cir. 1981). O.K. Industries sought dismissal of this claim as a matter of law, but
the district court denied the motion. A case is properly dismissed only if "it appears
beyond doubt that the plaintiff can prove no set of facts in support of his claim which
would entitle him to relief. " Breedlove v. Earthgrains Baking Cos., 140 F.3d 797, 799
(8th Cir.) (quoting McCormack v. Citibank, NA, 979 F.2d 643, 646 (8th Cir. 1992)),
cert. denied, 525 U.S. 921 (1998). We review the denial of a motion to dismiss de
novo. See id.

       O.K. Industries first argues that the district court erred in denying its motion to
dismiss because, as a matter of law, Broadus could not compare her compensation to
that of her non-immediate male successors. O.K. Industries contends that this issue
should not have gone to the jury because Mulson, in particular, did not make more than
Broadus until a year after Broadus quit. Additionally, O.K. Industries asserts that the
factual circumstances of this case do not warrant non-immediate successor comparisons
because the jobs duties of Broadus and those of the male successors were not
substantially similar as a result of the restructuring of the data processing department.

                                            5
       We note initially that we "have not held that Equal Pay Act comparisons must
stop with an immediate predecessor or successor as a matter of law. " Clymore v. Far-
Mar-Co., 709 F.2d 499, 502 (8th Cir. 1983). To the contrary, we have held that "[i]f
the factual circumstances of a case indicate . . . that non-immediate comparisons are
appropriate, neither the statute nor the cases prohibit, as a matter of law, such
comparisons in analyzing equal pay violations." Id. at 503. "[A]n Equal Pay Act
violation must be determined in light of all appropriate facts, including, when factually
supportable, non-immediate predecessor comparisons." Id.

      In the circumstances of this case, the use of non-immediate successor
comparators was appropriate. Broadus was the only person employed at O.K.
Industries in the position of Operations Coordinator. She had no immediate
predecessor or contemporaneous comparator who engaged in substantially equal work.
In terms of her immediate successor comparator, Aunguyen, the district court
concluded that he was not an appropriate comparator because he had additional
responsibilities in his position, but the district court did not come to the same
conclusion regarding Mulson. Prior to the department restructuring and the hiring of
new technicians, no one performed substantially equal work to Broadus. Consequently,
there was no adequate comparator until then. In May 1997, Mulson became the
supervisor of Vorabooth and McPhail, and at that time Mulson became an adequate
comparator to Broadus. Broadus also presented evidence that Vorabooth and McPhail,
both hired in early 1997 at a higher salary than Broadus ever achieved, engaged in
substantially similar work to Broadus. As illustrated in Clymore, the law of this circuit
allows the use of non-immediate successor comparators in the appropriate
circumstances. Id. In Broadus's case, the use of non-immediate successors was not
only appropriate but necessary.

       O.K. Industries argues that the elimination of the Operations Coordinator
position and the decision to move all printer maintenance and computer repair in-house,

                                           6
rather than out-sourcing to Compunet, shows that the work was not substantially equal
because Broadus did not do the heavy printer cleaning and the computer repairs that
the help desk technicians did after the restructuring. While it is true that all computer
repairs, including the more time-consuming complicated repairs, were done in-house
after the restructuring, it is also true that four additional people were hired to do that
work. The record indicates that Broadus did many other tasks that were not done by
the help desk technicians and that she was too "swamped," according to her supervisor
Cloninger, to get to everything. (Trial Tr. at 292.) In addition, although the contract
with Compunet to provide printer maintenance and cleaning was terminated and that
task was eventually completed by the help desk technicians, the testimony showed that
the printer cleaning and maintenance were low-level tasks that were performed by the
newest help desk technicians who were trained on the job to do it. The testimony also
showed that Broadus supervised Mulson, who performed printer cleaning. For
purposes of the Equal Pay Act, the fact finder must consider the overall job, not just the
individual segments of the job, when determining whether two employees performed
substantially equal work. See EEOC, 653 F.2d at 1248. It was proper for this issue
to be submitted to the jury because Broadus presented evidence sufficient to support
her claim for relief. See Breedlove, 140 F.3d at 799.

       O.K. Industries also sought dismissal of the ACRA claim, but the district court
denied the motion. O.K. Industries asserts that the district court erred in allowing
Broadus to submit a claim of discriminatory compensation under the ACRA because
that act does not expressly authorize such an action. O.K. Industries refers to the
language of the ACRA which states that it applies to actions directed at the right to
"obtain and hold employment." O.K. Industries explains that this means the ACRA
applies only "to get[ting] a job and [being] free from discriminatory discharge."
(Appellant's Br. at 22.)

    We respectfully disagree with O.K. Industries' interpretation of the ACRA. The
ACRA states, "The right of an otherwise qualified person to be free from discrimination

                                            7
because of . . . gender . . .is recognized and declared to be a civil right. This right shall
include, but not be limited to: (1) The right to obtain and hold employment without
discrimination . . . ." Ark. Code Ann. § 16-123-107(a). Certainly the right to hold
employment without discrimination on the basis of gender encompasses the right to be
paid for that employment without discrimination on the basis of gender. In addition,
we note that the language of the ACRA is subject to a wider interpretation because the
ACRA specifically states that the rights listed are not the only rights that are protected.
See id. (stating the right to be free from discrimination "shall include, but not be
limited to" the enumerated rights).

       O.K. Industries also argues that Broadus's cause of action did not accrue until
more than one year after she terminated her employment at O.K. Industries, and
therefore, the cause of action was barred by the ACRA's one-year statute of limitations.
O.K. Industries explains that Broadus was not discriminated against until Mulson's
salary exceeded Broadus's wages, which occurred more than one year after she stopped
working there.

        O.K. Industries' contention lacks merit. Broadus's cause of action accrued while
she was employed at O.K. Industries, and she filed her complaint nine months after her
September 1996 termination. Although the record does not indicate on what date in
1997 Mulson received a raise to $27,000, we do know that it was sometime after May
1997 when he became the supervisor of Vorabooth and McPhail. At that time,
Vorabooth and McPhail were making $26,000 and $25,000 per year, respectively. In
its brief, O.K. Industries ignores the fact that Broadus's hourly wage was also compared
to the salaries of Vorabooth and McPhail.

      Next, O.K. Industries challenges as duplicative the award of liquidated damages
under the EPA and the award of punitive damages under the ACRA. O.K. Industries
accuses Broadus of making a "dessert cart" of the verdict and "choosing dainties from
each cause of action." (Appellant's Br. at 27).

                                             8
         We agree with the district court that the award in this case represents different
elements of damage and, therefore, is not duplicative. The back wages and liquidated
damages are compensatory in nature and the punitive damages are penal. See Brooklyn
Sav. Bank v. O'Neil, 324 U.S. 697, 707 (1945); Reich v. Southern New England
Telecomms., 121 F.3d 58, 71 (2d Cir. 1997). Liquidated damages under the Fair Labor
Standards Act, 29 U.S.C. §§ 201-219 (1994), "constitute[] compensation for the
retention of a workman's pay which might result in damages too obscure and difficult
of proof for estimate other than by liquidated damages." Brooklyn Sav. Bank, 324 U.S.
at 707. The term "liquidated damages" in the Fair Labor Standards Act is "something
of a misnomer" because it is not a sum certain amount determined in advance, rather
it is "a means of compensating employees for losses they might suffer by reason of not
receiving their lawful wage at the time it was due." Reich, 121 F.3d at 70 n.4 (internal
quotations and citations omitted). We conclude that Broadus was entitled both to
compensatory damages (including "liquidated" damages) under the EPA and punitive
damages under the ACRA because the awards were not duplicative. Compare Denesha
v. Farmers Ins. Exch., 161 F.3d 491 (8th Cir. 1998) (upholding a jury award of
compensatory and liquidated damages under the Age Discrimination in Employment
Act and punitive damages under the Missouri Human Rights Act), cert. denied, 119 S.
Ct. 1763 (1999).

       Finally, O.K. Industries contends that the district court erred in instructing the
jury that it could award Broadus back pay during the period prior to June 28, 1996 (the
date on which Aunguyen began taking on some of Broadus's responsibilities), because
no male comparator was working alongside her prior to that date. On this point, O.K.
Industries is simply wrong. As discussed previously, the law allows the use of
successor comparators for EPA violations. See Clymore, 709 F.2d at 503.

       O.K. Industries also argues, in the same section of its brief, the unrelated point
that the district court erred in awarding liquidated damages because O.K. Industries
acted in good faith and that its behavior was not willful. O.K. Industries cites Clymore

                                            9
for the proposition that liquidated damages are not proper where an employer has paid
an immediate predecessor the same wage as a plaintiff. Consequently, O.K. Industries
asserts that it should not have been assessed liquidated damages because it could not
have anticipated that it would pay male successors more than Broadus after
restructuring the data processing department.

       In Clymore, the court concluded that the employer had "shown that its actions
were in good faith" and that "it had reasonable grounds for believing that its actions
were not a violation," in accordance with 29 U.S.C. § 260. Clymore, 709 F.2d at 505.
The burden is on the employer to show that the violation of the EPA was in good faith.
See Braswell v. City of El Dorado, Ark., 187 F.3d 954, 957 (8th Cir. 1999). O.K.
Industries confuses the jury's finding of willfulness under 29 U.S.C. § 255(a), which
extended the applicable statute of limitations from two years to three years, and the
district judge's discretionary decision to award liquidated damages, pursuant to 29
U.S.C. § 260, in the absence of a showing of good faith. The jury's decision on
willfulness is distinct from the district judge's decision to award liquidated damages.
See Fowler v. Land Management Groupe, Inc., 978 F.2d 158, 162 (4th Cir. 1992). Our
review of the record does not show that O.K. Industries met its burden on the issue of
good faith, and O.K. Industries does not provide us with any citations to the record
where it presented evidence of good faith and reasonable belief to the district court.
Therefore, we conclude that the district court did not abuse its discretion in awarding
liquidated damages.

                                         III.

      For the foregoing reasons, we affirm the judgment of the district court.




                                          10
A true copy.

      Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                               11
