                                                                  NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 11-2974
                                    ____________

                             DEBORAH PUCHAKJIAN,

                                                      Appellant

                                      v.
                             TOWNSHIP OF WINSLOW

                                    _____________

                      Appeal from the United States District Court
                              for the District of New Jersey
                             (D.C. Civil No. 1:09-cv-01326)
                       District Judge: Honorable Noel L. Hillman
                                      ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   April 13, 2012

              Before: McKEE, Chief Judge, HARDIMAN, Circuit Judge
                         and JONES, II,* District Judge.

                            (Opinion Filed: April 11, 2013)
                                    ____________

                             OPINION OF THE COURT
                                  ____________


      *
       The Honorable C. Darnell Jones, II, District Judge for the United States District
Court for the Eastern District of Pennsylvania, sitting by designation.
Jones, II, District Judge.

       In early 2002, Appellant Deborah Puchakjian was appointed by Appellee

Township of Winslow (“Township”) to fill a vacancy as the Township‟s Municipal Clerk

due to the retirement of the incumbent officeholder. At that time, Puchakjian was

assigned a significantly lower salary than had been paid to her male predecessor at the

time of his retirement. Puchakjian appeals the District Court‟s grant of summary

judgment in favor of the Township on her wage disparity claims under the federal Equal

Pay Act, 29 U.S.C. § 206, et seq. (“EPA”), the New Jersey Equal Pay Act, N.J. Stat. Ann.

34:11-56:2 (“NJEPA”), and the New Jersey Law Against Discrimination, N.J. Stat. Ann.

10:5-12(a) (“NJLAD”).1 For the reasons that follow, we affirm the District Court‟s

ruling.2

I.     BACKGROUND




       1
         Appellant also asserted a state law claim for violation of a Township ordinance,
and a retaliation claim under the NJLAD. She has waived those claims on appeal. (See
Br. of Appellant at 3 n.2.)
       2
          The District Court had jurisdiction of the EPA claim pursuant to 28 U.S.C. §
1331, and exercised supplemental jurisdiction over the state law NJEPA and NJLAD
claims pursuant to 28 U.S.C. § 1367. This Court has jurisdiction under 28 U.S.C. § 1291.
Our review in the summary judgment context is plenary. Thus, “we are required to apply
the same test that the district court should have utilized initially.” Jackson v. Danberg,
594 F.3d 210, 215 (3d Cir. 2010) (quotation marks and citation omitted). Summary
judgment is appropriate only when there are no genuine issues of material fact, drawing
all justifiable inferences in favor of the non-movant, and the moving party is entitled to a
judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 255
(1986).



                                             2
       We write principally for the benefit of the parties and recite only the essential facts

and procedural history. At the time of his retirement after twenty-nine years of service,

Puchakjian‟s predecessor, Ronald C. Nunnenkamp earned a salary of $85,515 for his

work as Municipal Clerk.3 At the time she replaced Nunnenkamp in 2002, Puchakjian

received a starting salary of $55,000.4 The size of Nunnenkamp‟s final salary was a

function of his longevity of service, since he was entitled to yearly salary increases that,

under a New Jersey statute, mandated that municipal clerks receive the same increases in

salary “given to all other municipal officers and employees.”5

       The Township sought summary judgment on its affirmative defense that the

difference in salary paid to Nunnenkamp and Puchakjian was based on a factor other than

gender, which is one of the four affirmative defenses available to an employer under the



       3
        Nunnenkamp had also been separately appointed the Township‟s part-time
Business Manager in 1986, and received an additional salary of $13,435 for this service.
(JA 141.) Upon his retirement, the Township severed the Municipal Clerk/part-time
Business Administrator‟s position into separate Municipal Clerk and full-time Township
Administrator positions. (JA 97, 156.)
       4
        It is undisputed that in 2004 the Township retroactively increased Puchakjian‟s
salary by more than 14.5% to $63,000 because it recognized that a significant gap in
compensation existed between “traditional male positions of employment and female
positions of employment.” (JA 199.) In addition to this increase, Puchakjian has, along
with the other Township department heads, received annual increases and she makes no
claim that those annual increases have been applied in a discriminatory fashion. (JA 169-
70.)
       5
        See N.J. Stat. Ann. 40A:9-165 (stating that, for salaries fixed or determined by
municipal ordinance, “[n]o such ordinance shall reduce the salary of, or deny without
good cause an increase in salary given to all other municipal officers and employees to,
any tax assessor, chief financial officer, tax collector or municipal clerk during the term
for which he shall have been appointed”).
                                              3
EPA.6 See 29 U.S.C. § 206(d)(1) (providing affirmative defenses for disparities based

upon: (1) a bona fide seniority system, (2) a merit system, (3) a system which measures

earnings by quantity or quality of production, or (4) any factor other than gender). The

District Court found that there were no genuine issues of material fact that the difference

in compensation was “reflective of [Nunnenkamp‟s] long tenure as Municipal Clerk” and

that the yearly salary increases he received over his twenty-nine year tenure in the

position “both explained and motivated the wage disparity.” (JA 17-18.) Accordingly, it

determined that the wage disparity was based on a factor other than gender. As

Puchakjian failed to show that this affirmative defense was a pretext for gender

discrimination, the District Court granted summary judgment for the Township on this

EPA claim.7 Summary judgment was also granted for the Township on Puchakjian‟s



       6
         The Township also argued that Puchakjian had failed to state a prima facie case
under the EPA because it was undisputed that Nunnenkamp‟s duties were different from
her own since he also served as the Township‟s part-time Business Administrator. The
District Court rejected this argument, holding that since the two positions were separately
compensated, it could not conclude that the extra tasks Nunnenkamp performed as
Business Administrator constituted additional tasks that made his work as Municipal
Clerk substantially different from Puchakjian‟s work as Municipal Clerk. (JA 14.) The
District Court went on to conclude that because Nunnenkamp‟s salary increases were
statutorily mandated, his Municipal Clerk salary could not have been a function of his
additional responsibilities as Business Adminstrator. Thus, it concluded that Puchakjian
had established a prima facie case of unequal pay since the two performed substantially
the same work as Municipal Clerk but were differently compensated. (JA 16.) This
finding has not been appealed by the Township.
       7
         As the Township successfully established it was entitled to summary judgment
on its affirmative defense to the EPA claim based on the Nunnenkamp wage disparity,
the District Court concluded that the Township was also entitled to summary judgment
on Puchakjian‟s NJLAD claim based upon the wage disparity with Nunnenkamp since a
defendant‟s burden of enunciating a legitimate non-discriminatory reason for a wage
                                             4
EPA claim based upon her wage disparity compared with male department heads. The

District Court determined that Puchakjian had failed to make out a prima facie case of

unequal pay because she conceded that her job was not substantially equal to her

comparators.8 (JA 19-21.) This appeal followed.

II.    DISCUSSION

       The District Court did not err in granting summary judgment on the Township‟s

affirmative defense that the difference in pay between Nunnenkamp‟s final salary and

Puchakjian‟s adjusted starting salary was based on a factor other than gender. “The

Equal Pay Act prohibits differential pay for men and women when performing equal

work „except where such payment is made pursuant to‟ one of the four affirmative

defenses [listed in § 206(d)(1)].” Stanziale v. Jargowsky, 200 F.3d 101, 108 (3d Cir.

2000) (citation omitted). The EPA contemplates that an employee of one gender with

significant years of service may receive a higher wage than an employee of the other

gender with fewer years of service. See Corning Glass Works v. Brennan, 417 U.S. 188,

204 (1974) (stating the “Act contemplates that a male night worker may receive a higher

wage than a female day worker, just as it contemplates that a male employee with 20


disparity under NJLAD is lower than its burden of proving the affirmative defense to the
EPA claim. (JA 23.)
       8
        On this NJLAD claim, the District Court determined alternatively that, even if
she could make out a prima facie case based on the claim that the position of Municipal
Tax Assessor was similar to Puchakjian‟s position as Municipal Clerk, she failed to
demonstrate a genuine issue of material fact that the wage disparity was based on gender,
concluding that the disparity was reflective of the yearly, statutorily mandated raises the
Assessor received during his thirty-eight year length of service. (JA 28-30.)

                                             5
years‟ seniority can receive a higher wage than a woman with two years‟ seniority[.]

Factors such as these play a role under [two of] the Act‟s four exceptions — the seniority

differential under the specific seniority exception, the shift differential under the catch-all

exception for differentials „based on any other factor other than sex.‟”). The record

amply supports the District Court‟s conclusion that there was no genuine issue of

material fact that Nunnenkamp‟s final salary was a result of the yearly, statutorily

mandated raises he received during his long tenure in office, and that Puchakjian lacked

the same tenure. 9 There was also no error in its conclusion that she failed to meet her

burden to come forward with evidence showing that this explanation for the disparity in

their salaries was a pretext for discrimination.10 Accordingly, the District Court did not

err in granting summary judgment to the Township on its affirmative defense to the EPA

claim based upon the wage disparity between Puchakjian and Nunnenkamp. Having


       9
         Puchakjian argues that the District Court erred in concluding that the statutorily
mandated yearly salary increases satisfied § 206(d)(1)‟s definition of a bona fide seniority
system. We need not reach this issue since the District Court‟s alternative finding, that
the yearly salary increases Nunnenkamp received over his twenty-nine year tenure in the
position “both explained and motivated the wage disparity,” clearly qualifies as a factor
other than gender.
       10
          Puchakjian‟s argument that District Court misstated the burden of proof and
production scheme governing EPA claims lacks merit. The District Court correctly
recognized that, once she established her prima facie case of wage disparity, the
Township bore the burden of persuasion to demonstrate its affirmative defense that the
wage disparity was based on a factor other than gender. See JA 11 (stating that once a
plaintiff “establishes her prima facie case, „[t]he burden of persuasion then shifts to the
employer to demonstrate the applicability of one of the four affirmative defenses
specified in the Act.‟” (quoting Stanziale, 200 F.3d at 107). The District Court also
correctly recognized our admonition that, when compared to the employer‟s burden of
production under Title VII, its burden to prove its affirmative defense under EPA is
“heightened.” Id. (citing Stanziale, 200 F.3d at 107-08).
                                               6
correctly determined that the Township was entitled to summary judgment under the

heightened standard applicable to the Township‟s affirmative defense on the EPA claim,

there was also no error in the District Court granting summary judgment to the Township

on the NJLAD claim based on the same conduct.

III.   CONCLUSION

       For these reasons, we affirm.




                                           7
