                                                     NOT PRECEDENTIAL
                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 14-2886
                                      _____________

                                CATHALENE JOHNSON,
                                               Appellant

                                             v.

                         FEDERAL EXPRESS CORPORATION
                                _______________

                    On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                                (D.C. No. 1-12-cv-00444)
                    District Judge: Honorable Christopher C. Conner
                                    _______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                   March 19, 2015

              Before: SMITH, JORDAN, and SLOVITER, Circuit Judges.

                                  (Filed: March 20, 2015)
                                     _______________

                                        OPINION
                                     _______________

JORDAN, Circuit Judge.

       Appellant Cathalene Johnson appeals from an order of the United States District

Court for the Middle District of Pennsylvania entering summary judgment against her on


       
        This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
a claim she asserts under the Equal Pay Act (“EPA”), 29 U.S.C. § 206(d). She argues

that the facts establish that her former employer, Federal Express Corporation (“FedEx”),

paid her and a male comparator at different rates for work performed on jobs involving

substantially similar work. Her argument is unpersuasive and, indeed, summary

judgment was properly entered against her. We will affirm.

I.     Background1

       A.     Employment at FedEx

       Johnson, an African-American woman, was hired by FedEx on November 7, 1988.

In 1996, she transferred to FedEx’s York, Pennsylvania station where she worked as a

courier. Later, she voluntarily “down-bid” into a full-time position as a Senior Service

Agent (“SSA”), which is where she remained until she resigned on June 17, 2013. SSAs

are paid at a lower salary rate than couriers. For purposes of her EPA claim, Johnson

used Craig Pooler, a Caucasian man, as her comparator. Johnson alleged that she and

Pooler performed substantially identical work but that Pooler was paid more.

       Pooler’s job title is Courier/DOT/CDL, meaning that he is a courier with a

commercial driver’s license who is certified by the Department of Transportation to

operate a commercial motor vehicle. During the relevant time period, Pooler possessed a

“Class B” commercial driver’s license, which permitted him to operate vehicles that have




       1
         This background includes facts presented at summary judgment as well as facts
developed at trial. For purposes of reviewing the District Court’s entry of summary
judgment, we have focused primarily on the record that existed at that stage of litigation.
But see infra note 8.
                                             2
a gross vehicle weight rating of greater than 26,000 pounds.2 He also had a hazardous

material endorsement on his commercial driver’s license, which permitted him to

transport hazardous materials.3 Pooler began working for FedEx in 1981 and is the most

senior courier at the York station. Due to his experience as a courier in the York area

who had run every route out of the station, Pooler was able to assist other couriers in

anticipating traffic patterns and properly timing parcel deliveries. In contrast, Johnson

never had a Class B commercial driver’s license and was not qualified to drive any

FedEx vehicles during the relevant time period.

       According to Johnson, Pooler applied for and received a service agent position as

a Service Assurance Leader (“SAL”) in 1997.4 She said that, at that time, FedEx’s rules

permitted a higher-paid employee, such as a courier, to accept a temporary assignment as

an SAL in order to meet station needs and retain higher pay.5 She also said that Pooler

has remained in the SAL position since 1997 but has been paid at the higher courier rate,

even though FedEx’s internal rules do not permit such an arrangement. Kathy Howell, a


       2
        Pooler stated that there are only six couriers at FedEx’s York station who have a
Class B commercial driver’s license. He also stated that, to retain his Class B license, he
was required to be tested on air brakes every four years, submit to a criminal background
check, and submit to random drug testing.
       3
         Larry Bizzell, a FedEx employee specializing in corporate safety, stated that, to
obtain a hazardous material endorsement, Pooler was required to undergo additional
training and submit to a background check.
       4
        Johnson presented evidence that Pooler performed many of an SAL’s
responsibilities and was even referred to as an SAL by certain FedEx employees.
       5
        According to Johnson, FedEx issued an order in 2001 stating that it would no
longer permit couriers to work indefinitely on assignments as SALs. As a result, SALs
were required to either down-bid to an SAA or return to the road as a courier. Pooler was
apparently never required to down-bid.
                                             3
Manager of Compensation at FedEx, stated that Pooler has never been classified as a

service agent. Instead, he has only been classified as a Courier/DOT/CDL.

       FedEx’s Human Resources Manager, Nancy Harthun-Goard, stated that the main

differences between service agent and courier job descriptions are that couriers must

adhere to federally dictated licensing requirements and also that couriers are permitted to

operate FedEx commercial vehicles outside and inside FedEx stations. Pursuant to the

Courier/DOT/CDL job description, a courier’s duty is to deliver packages, but a courier

also has the responsibility to perform all other related duties as assigned by the station

management. In contrast, a service agent’s responsibilities include, but are not limited to,

providing customer service over the phone and over the counter, performing cash and

credit transactions, maintaining inventory of customer materials, generating various

reports for management, and preparing documentation and manifests for freight. No

service agent, regardless of type, may drive commercial vehicles for FedEx. Service

agent positions such as SSAs and SALs share many of the same responsibilities with one

another and share the same pay rate.

       During the relevant time period, Pooler operated a FedEx commercial vehicle

multiple times per week. While he did not perform the duties of a full-time courier, he

performed route protection, which means that he would perform deliveries to minimize

other couriers’ late deliveries. Pooler would also pick up packages according to customer

demands, make bulk deliveries, deliver spare trucks to stranded couriers, take expedited

deliveries to couriers, fill in for terminated or ill couriers, deliver spare PowerPads

(handheld tracking devices) to couriers on the road, and handle and deliver freight that

                                              4
arrived after the responsible drivers had departed the station. Many FedEx employees

stated that they recalled Pooler operating FedEx vehicles on a regular basis. In contrast,

Johnson never drove a truck during the relevant time period.

        As mentioned above, Johnson alleged that she and Pooler performed substantially

identical work but that Pooler was paid more. Again, as noted, under FedEx’s

compensation structure, couriers are paid at a higher hourly rate than service agents.

While Management at the York station does not determine compensation for different

positions at FedEx, Johnson said that it can affect compensation by manipulating

employees’ job designations, i.e., courier or service agent. Prior to her resignation,

Johnson earned $22.16 per hour, which is the maximum hourly rate for her pay grade. In

comparison, Pooler earned $24.38 per hour. In addition, Pooler enjoyed unlimited

overtime hours as a courier, which permitted him to earn substantially more than Johnson

even though their hourly wages were comparable. Johnson claims that by virtue of his

employee designation, Pooler was able to accrue significant amounts of overtime even

when he performed non-courier functions, such as those of a service agent. The parties

agree that in 2011, Johnson was paid $43,153.07 while Pooler was paid $63,804.17.

Similar pay discrepancies existed between Johnson and Pooler in 2008, 2009, 2010, and

2012.

        B.    Procedural History

        On May 2, 2011, Johnson filed a charge of discrimination with the Equal

Employment Opportunity Commission and the Pennsylvania Human Relations

Commission. Later, she timely filed suit in federal court alleging race and sex

                                             5
discrimination in violation of (1) Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e et seq.; (2) 42 U.S.C. § 1981; (3) the EPA; and (4) the Pennsylvania Human

Relations Act, 43 Pa. Cons. Stat. Ann. § 951 et seq. Johnson filed a motion for summary

judgment on her EPA claim, which the District Court denied. FedEx moved for summary

judgment on Johnson’s EPA and other race discrimination claims, which the District

Court granted in part and denied in part. Specifically, the District Court granted FedEx’s

motion as to portions of Johnson’s race discrimination claims that were barred by the

statute of limitations and as to her EPA claim, finding that Pooler’s and Johnson’s

employment positions and responsibilities were unequal. But the District Court denied

FedEx’s motion as to all of Johnson’s remaining claims. Trial on the remaining race and

sex discrimination claims commenced on May 12, 2014, and the jury returned a verdict

for FedEx a week later. The District Court promptly entered judgment in FedEx’s favor.

Johnson then appealed the District Court’s order denying her motion for summary

judgment and granting FedEx’s motion for summary judgment as to the EPA claim, but

she does not challenge the jury’s determination as to her other claims.




                                             6
II.    Discussion6

       Johnson argues that the facts “establish conclusively” that FedEx paid her and

Pooler at different rates for work performed on “jobs involving substantially similar

work,” and that she is therefore entitled to summary judgment on her EPA claim. She

also of course argues that the grant of summary judgment for FedEx was in error.

(Opening Br. at 32.) She is mistaken on both points.7


       6
         The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367. We have
appellate jurisdiction pursuant to 28 U.S.C. § 1291. We review a District Court’s grant
of summary judgment de novo, Alcoa, Inc. v. United States, 509 F.3d 173, 175 (3d Cir.
2007), and must view the facts in the light most favorable to the nonmoving party,
drawing all reasonable inferences and resolving all doubts in favor of that party, Doe v.
Cnty. of Centre, Pa., 242 F.3d 437, 446 (3d Cir. 2001). Summary judgment is
appropriate “if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “Only
disputes over facts that might affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). “Where the record taken as a whole could not lead a rational trier
of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
       7
         FedEx argues that we lack jurisdiction to review the denial of summary judgment
on Johnson’s EPA claim. Relying on Ortiz v. Jordan, 562 U.S. 180 (2011), FedEx
argues that the District Court’s entry of summary judgment was not a “final decision”
subject to appeal and that Johnson’s failure to file motions under Federal Rule of Civil
Procedure 50(a) and (b) during and after trial waived her right to appeal. (Response Br.
at 35-38.) That argument is flawed. This case is easily distinguishable from Ortiz, in
which a motion for summary judgment based on the defense of qualified immunity was
denied and the plaintiff’s claim went to trial. Ortiz, 562 U.S. at 183. In Ortiz, the
Supreme Court held that the defendants’ failure to file a motion under Rule 50(b)
rendered the appellate court “powerless” to review their defense of qualified immunity.
Id. at 189 (internal quotation marks omitted). Here, a motion for summary judgment was
granted on the claim now before us. Because judgment was entered against Johnson on
her EPA claim and that claim was never presented to the jury, she had no reason to move
for a directed verdict or for judgment notwithstanding the verdict on her EPA claim. We
plainly do have jurisdiction to hear Johnson’s appeal.

                                            7
       Claims based on the EPA are evaluated according to a two-step burden-shifting

paradigm. “The plaintiff must first establish a prima facie case by demonstrating that

employees of the opposite sex were paid differently for performing ‘equal work’ – work

of substantially equal skill, effort and responsibility, under similar working conditions.”

Stanziale v. Jargowsky, 200 F.3d 101, 107 (3d Cir. 2000). To determine whether two

jobs involve equal work, we must determine whether “a significant portion of the two

jobs is identical.” Brobst v. Columbus Servs. Int’l, 761 F.2d 148, 155, 156 (3d Cir.

1985). “The inquiry then turns to whether … differing or additional tasks make the work

substantially different.” Id. If the 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 [EPA],” which include “(i) a bona fide 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 factor other than sex.” Stanziale, 200

F.3d at 107 & n.6 (emphasis in original). “[I]n order to prevail at the summary judgment

stage, the employer must prove at least one affirmative defense so clearly that no rational

jury could find to the contrary.” Id. at 107 (internal quotation marks omitted).

       After reviewing the evidence submitted at the summary judgment stage, the

District Court held that Johnson had failed to establish a prima facie case because she and

Pooler did not perform equal work at the York station. Specifically, while the District

Court acknowledged that a significant portion of Johnson’s and Pooler’s duties at the

York station were similar, it found that Pooler maintained greater qualifications than

Johnson and that he performed duties as a courier that required skills beyond those

                                              8
exercised by Johnson as a service agent. We agree with the District Court that the record

presented at the summary judgment stage warranted entry of judgment in favor of FedEx

on the EPA claim. Furthermore, while not essential to our holding, it is noteworthy that

the record developed at trial bolsters the District Court’s conclusion that Pooler and

Johnson did not perform equal work.8

III.   Conclusion

       For the reasons noted, we will affirm the judgment of the District Court.




       8
         Even if the record extant at the summary judgment stage were, as Johnson
argues, insufficient to support the entry of judgment for FedEx, it is abundantly clear
from the record developed at trial that her EPA claim cannot survive. And Johnson
herself saw the trial record as a basis to consider the EPA claim because she moved to
reopen her EPA claim at the close of evidence. See App. 5 at 170 (Johnson moving “to
reopen … [her] Equal Pay Act claim, because [she] believe[d] that the evidence presented
at … trial would support that being given to the jury”). Thus, even if the summary
judgment ruling were precipitous, judgment on this claim as a matter of law would be
appropriate on the fully developed record. Blunt v. Lower Merion School Dist., 767 F.3d
247, 265 (3d Cir. 2014) (“[W]e may affirm the District Court on any grounds supported
by the record, even if the court did not rely on those grounds.” (internal quotation marks
omitted)).
                                             9
