               Case: 11-14751       Date Filed: 02/15/2013      Page: 1 of 15

                                                                     [DO NOT PUBLISH]


                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT

                             __________________________

                                    No. 11-14751
                             __________________________

                          D.C. Docket No. 1:07-cv-03052-JOF

RONALD B. EDWARDS,

                                                                        Plaintiff-Appellant,

                                           versus

FULTON COUNTY, GEORGIA,
THOMAS C. ANDREWS,
County Manager, In his Individual Capacity,
                                                                     Defendants-Appellees.

                             __________________________

                      Appeal from the United States District Court
                         for the Northern District of Georgia
                           __________________________
                                 (February 15, 2013)

Before TJOFLAT and COX, Circuit Judges, and MOLLOY, ∗ District Judge.

PER CURIAM:



       ∗
          Honorable Donald W. Molloy, United States District Judge for the District of Montana,
sitting by designation.
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      Ronald Edwards appeals the district court’s grant of summary judgment in

favor of Fulton County, his employer, and Thomas Andrews, County Manager for

the time period relevant to this appeal. Edwards sued the County and Andrews

(together, the Defendants) alleging several claims, including a gender

discrimination claim under the Equal Pay Act, a claim under 42 U.S.C. § 1983 for

violations of the Equal Protection Clause and the Due Process Clause of the

Fourteenth Amendment, and a claim of race discrimination in violation of 42

U.S.C. § 1981. The complaint also alleged several state law claims. The district

court granted summary judgment to the defendants on Edwards’s Equal Pay Act

claim and several other claims, and the court granted the Defendants’ motion for

judgment on the pleadings on Edwards’s remaining claims. Edwards appeals. We

find no merit in any issue on appeal except for the propriety of summary judgment

on Edwards’s Equal Pay Act claim. We therefore address only that issue. We

reverse the district court’s grant of summary judgment to the Defendants on the

Equal Pay Act claim and affirm the district court’s rulings on all other issues.

                                          I.

      Fulton County pays its salaried employees according to a “decision-band”

method. (R.3-92-8 ¶¶ 9, 14.) When the County began using this method in 1991,

the County commissioned a study to classify all of its existing positions according

to the particular position’s decision-making authority, job complexity, and

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supervisory responsibilities. (Id. ¶¶ 13–14; see also R.3-92-9 ¶ 15.) The County

then designated a salary range for each position on the basis of its decision-band

classification. (R.3-97-12 at 18.) These ranges, adjusted at times for cost of living,

are still used. (Id.)

       Ronald Edwards began working for Fulton County in 1994 as a Community

Development Specialist.      (R.3-92-3 at 11–12.)        As a Specialist, Edwards’s

decision-band classification was C43 and his salary corresponded to the C43 salary

range. (Id. at 13–14.)

       After a few years, Edwards took on responsibilities beyond his pay grade.

Between 1999 and 2007, Edwards supervised two senior housing inspectors and

managed two housing programs, (id. at 24–25,) responsibilities beyond his job

description and C43 salary classification, (id. at 12–14; R.3-97-4, Ex. B1.) Despite

these added responsibilities, his salary remained within the C43 salary range. (R.3-

92-3 at 10–11, 14.) At times, he complained to his supervisors, and his supervisors

reported the complaint to Andrews or other officials and recommended that

Edwards receive greater compensation. (R.3-97-4, Exs. B1, B2.) The County

never reached a decision regarding these complaints. (R.3-92-3, Ex. 1 at 2.)

       Enter Carolyn Stewart, a woman who began as a Community Development

Specialist with the County in January 2007. Like Edwards, Stewart was paid a

salary in the C43 salary range.      That month, however, the County promoted

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Stewart to the position of Community Development Manager, a position classified

as C52. (R.3-92-8 ¶ 12.) She managed three programs for the County, (R.92-5 at

9–10,) and supervised one employee, (R.3-92-3 at 25.) As a C52 employee,

Stewart was paid a higher salary than Edwards. 1

       Edwards filed a grievance with the County in May 2007 asserting that he

believed the County would reclassify his position when he had taken on extra

duties in 1999 and that, because the County had failed to do so, he had been

underpaid since. (R.3-92-3 at 11–14, Ex. 1.) The County’s Grievance Review

Committee denied his grievance as untimely on June 15, 2007, (R.3-97-18,) though

Edwards did not receive notification of the denial until July 11, after the time

Edwards believed he could appeal the denial, (R.3-92-3 at 37.) Edwards filed an

appeal with Andrews anyway on July 31. (R.3-97-20.) Andrews took no action in

response.

       Edwards then filed his four-count complaint against the Defendants in

December 2007, alleging (among other claims) that the Defendants violated the




       1
          When Stewart began working as a Specialist on January 10, 2007, she was paid
$62,546. (R.3-92-8 ¶¶ 9–10.) On January 24, all Fulton County employees received cost-of-
living adjustments to their salaries, giving Stewart a C43 salary of $63,796.92. (Id. ¶ 11.) That
same day, the County promoted Stewart to Manager, and her C52 salary as of July 31, 2007, was
$71,581. (R. 3-97-7.)
       Though Edwards’s salary in January 2007 remains unclear, his C43 salary was $63,729
as of May 2008. (R.3-92-2 ¶ 28.)
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Equal Pay Act. (R.1-1.) He sought damages for lost wages and attorney’s fees.

(Id. at 11.)

       The Defendants moved for summary judgment on all claims. 2 The district

court granted the motion as to Edwards’s Equal Pay Act claim. Edwards appeals.

                                              II.

       We review a district court’s grant of summary judgment de novo. Kernel

Records Oy v. Mosley, 694 F.3d 1294, 1300 (11th Cir. 2012). In doing so, we

“view the evidence and all factual inferences therefrom in the light most favorable

to the party opposing the motion.” Clemons v. Dougherty Cnty., 684 F.2d 1365,

1368 (11th Cir. 1982) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.

Ct. 1598, 1608 (1974)). We will affirm a grant of summary judgment only if no

genuine issue of material fact exists and the moving party is entitled to judgment as

a matter of law. Am. Foreign Ins. Co. v. Colonial Mortg. Co., 936 F.2d 1162, 1164

(11th Cir. 1991).

       Edwards appeals the district court’s grant of the Defendants’ motion for

summary judgment on his Equal Pay Act claim. After careful review, we reverse.




       2
         Andrews had moved to dismiss all claims against him in October 2008 on the ground
that he was entitled to qualified immunity. (R.2-53.) The district court granted the motion.
(R.2-56.) On Edwards’s motion, however, the court reconsidered its judgment and denied
Andrews’s motion as to Edwards’s § 1983 claim. (R.2-63.) Andrews filed an interlocutory
appeal with this court challenging the denial of qualified immunity, and we affirmed. (R.2-80.)
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                                        III.

      To establish a prima facie case of discrimination under the Equal Pay Act, a

plaintiff must show that his or her employer paid employees of the opposite sex

“for equal work on jobs the performance of which requires equal skill, effort, and

responsibility, and which are performed under similar working conditions.” 29

U.S.C. § 206(d)(1); accord Corning Glass Works v. Brennan, 417 U.S. 188, 195,

94 S. Ct. 2223, 2228 (1974). Notably, because the prima facie case does not

require a showing of an employer’s discriminatory intent, the Act provides “a form

of strict liability.” Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518,

1533 (11th Cir. 1992) (citing Mitchell v. Jefferson Cnty. Bd. of Educ., 936 F.2d 539

(11th Cir. 1991)).

      Once a plaintiff establishes a prima facie case, the Act allows a defendant to

show, by a preponderance of the evidence, that the disparate salaries are caused by

a “seniority system,” a “merit system,” a production-quota system, or “any factor

other than sex.” 29 U.S.C. § 206(d)(1); accord Irby v. Bittick, 44 F.3d 949, 954

(11th Cir. 1995). The employer’s burden of proof on these affirmative defenses is

“heavy,” because it “must show that the factor of sex provided no basis for the

wage differential.” Mulhall v. Advance Sec., Inc., 19 F.3d 586, 590 (11th Cir.

1994) (citations omitted).




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      If a defendant proves one of these affirmative defenses, the plaintiff’s claim

can survive a motion for summary judgment only if the plaintiff shows with

affirmative evidence that the reason offered for the pay disparity was pretextual or

was offered as a post-event justification. Schwartz v. Fla. Bd. of Regents, 954 F.2d

620, 623 (11th Cir. 1991).

      The district court found that Edwards did not raise a genuine issue of

material fact regarding whether his and Stewart’s positions were equal within the

meaning of the Act. It therefore determined that Edwards had not established the

prima facie case and granted summary judgment to the Defendants. The district

court did determine, however, that Edwards established a prima facie case for an

unspecified period of time in either 2005 or 2006 when Edwards managed the so-

called Home Program, the program Stewart later managed after her promotion to

Manager. For this period, however, the district court found that the Defendants

had successfully attributed the pay disparity to a factor other than sex: the gender-

neutral decision-band system for determining salaries and Edwards’s unsuccessful

attempt to reclassify his job. The court also found that Edwards could not show

pretext. Thus, the district court granted summary judgment to the Defendants on

Edwards’s entire Equal Pay Act claim.




                                         7
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      We disagree with the district court’s first determination and find that

Edwards has indeed raised a genuine issue of material fact as to whether his and

Stewart’s positions were equal within the meaning of the Act.

      To establish a prima facie case under the Act, a plaintiff must prove that the

employer paid an employee of the opposite sex more for equal work in an equal

position. 29 U.S.C. § 206(d)(1). Whether that employee of the opposite sex—

typically called a comparator—performs equal work in an equal position depends

on the “primary duties of each job,” and the inquiry emphasizes “actual job

content” over formal job titles or descriptions. Arrington v. Cobb Cnty., 139 F.3d

865, 876 (11th Cir. 1998). Moreover, the plaintiff need not show that his position

and the comparator’s are identical but rather that the two positions are

“substantially equal.” Id.

      The summary judgment record indicates that a reasonable jury considering

the duties actually performed by Edwards and Stewart could find the positions

substantially equal. Stewart stated in her affidavit that Edwards’s job and her job

as Manager “were of equal complexity and difficulty” and that Edwards performed

“the same job duties and functions that [she] performed in that [their] jobs involved

the same responsibilities and required the same effort.” (R.3-97-3 ¶ 4.) Edwards

testifies in an affidavit that his duties and responsibilities matched those described

in Stewart’s job description.    (R.3-97-15 ¶ 3.)     Other evidence in the record

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reasonably corroborates these statements. One of Edwards’s supervisors, John

Robinson, said in his deposition that Edwards performed the work of a C52-level

Manager rather than a C43 Specialist.          (R.3-97-11 at 23–25.)        A June 2006

departmental organization chart appears to give Edwards the same level of

managerial responsibility that Stewart later assumed. (R.3-97-3, Ex. A2.) Two

other County officials, Joseph Johnson and Camilla Moore, requested salary

increases for Edwards because Edwards’s position included a large number of

managerial responsibilities. (R.3-97-4, Exs. B1, B2.) According to a 2008 e-mail

written by Robert Brandes, another County official, Edwards’s department had

“admitted to working Ronald Edwards out of classification without compensation.”

(R.3-97-16.)

      While Edwards and Stewart managed a slightly different number of

programs, supervised a slightly different number of employees with different

decision-band classifications, and had slightly different job titles, these facts fail to

convince us that, viewing the evidence in the light most favorable to Edwards, no

genuine issue of material fact existed as to the substantial equality of the two jobs.

See Arrington, 139 F.3d at 876 (reversing a grant of summary judgment where

appellant presented “significant evidence” that her actual job duties and the

comparator’s actual job duties were very similar, despite a disparity in formal job

titles and descriptions); Mulhall, 19 F.3d at 592 (“If plaintiff’s evidence, with all

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inferences drawn in her favor, establishes an [Equal Pay Act] violation and there is

sufficient evidence such that a jury could find in her favor, then summary

judgment for defendants is improper.”). We therefore reverse the district court’s

grant of summary judgment for Defendants on Edwards’s Equal Pay Act claim.

       We also disagree with the district court’s grant of summary judgment on the

Defendants’ affirmative defense, which applied to the limited period of time when

Edwards managed the Home Program. We conclude that the Defendants did not

meet their burden to show the absence of a genuine dispute of material fact as to

the “factor other than sex” defense.

       Edwards first asserts error in the district court’s consideration of the defense,

arguing that the Defendants did not raise the defense in their Answer to the

Complaint and, under Fed. R. Civ. P. 8(c), waived it. 3 It is true that a defendant

intending to assert an affirmative defense must raise it in a responsive pleading,

and failure to do so typically results in a waiver of the defense. See Am. Nat’l

Bank of Jacksonville v. FDIC, 710 F.2d 1528, 1537 (11th Cir. 1983).

       We have recognized, however, that a defendant does not waive an

affirmative defense if the earlier omission from responsive pleadings does not

prejudice the plaintiff. See Proctor v. Fluor Enters., Inc., 494 F.3d 1337, 1350

       3
          Rule 8(c) requires a party to “affirmatively state any avoidance or affirmative defense”
in its responsive pleading. The parties do not dispute, and case law confirms, that the four
statutory exceptions to Equal Pay Act liability constitute affirmative defenses within the meaning
of Rule 8(c). See Corning Glass, 417 U.S. at 196, 94 S. Ct. at 2229.
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(11th Cir. 2007) (acknowledging that, in cases where federal case law has

identified specific affirmative defenses, we have “examined whether a plaintiff had

notice of the unpled defense or was prejudiced by the lack of notice” in

determining whether the defendant waived the defense); Sweet v. Sec’y, Dep’t of

Corrections, 467 F.3d 1311, 1321 n.4 (11th Cir. 2006) (“[O]ur cases interpreting

[Rule 8(c)] . . . support a liberal approach to waiver where the failure to raise an

affirmative defense has not prejudiced the plaintiff.”); Hassan v. U.S. Postal Serv.,

842 F.2d 260, 263 (11th Cir. 1988) (“[W]hen the failure to raise an affirmative

defense does not prejudice the plaintiff, it is not error for the trial court to hear

evidence on the issue.”); Jones v. Miles, 656 F.2d 103, 107 n.7 (5th Cir. Unit B

Aug. 1981) (“Neglect to affirmatively plead [an affirmative defense] is simply

noncompliance with a technicality and does not constitute a waiver where there is

no claim of surprise.”). We have also concluded that an omission of an affirmative

defense in responsive pleadings does not prejudice a plaintiff when the defendant

first raises the defense in a pretrial motion or discussion and the subject matter of

discovery suggests that the defendant will rely on the defense. See Sweet, 467 F.3d

at 1321 n.4 (noting that “it is settled that a plaintiff is not prejudiced by a

defendant’s failure to comply with Rule 8(c) if the plaintiff is provided notice of

the affirmative defense by some other means,” such as the defendant’s motion for

summary judgment); Steger v. Gen. Elec. Co., 318 F.3d 1066, 1077 (11th Cir.

                                         11
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2003) (holding that the district court did not err in permitting evidence of the Equal

Pay Act affirmative defenses when, though not raised in responsive pleadings, the

affirmative defenses had been raised in pretrial conference); Grant v. Preferred

Res., Inc., 885 F.2d 795, 797–98 (11th Cir. 1989) (determining that, though the

defendant did not raise a statute-of-limitations defense in its responsive pleadings,

it raised the defense in a motion for summary judgment filed one month before

trial and thereby put plaintiff on notice that the defendant would rely on the

defense); Hassan, 842 F.2d at 262–64 (holding that the district court did not err by

considering a defendant’s affirmative defense at trial when, though the defendant

did not plead the affirmative defense, the defendant questioned the plaintiff

extensively regarding the subject matter of the defense in a deposition and an

interrogatory, thus giving notice that the defendant “planned to raise the issue”).

       Because the Defendants first raised the defense in their motion for summary

judgment, which gave Edwards sufficient opportunity to respond to the defense,

and because discovery largely focused on the gender-neutral decision-band

classification system, which constitutes the subject matter of the defense, we

cannot conclude that the district court abused its discretion 4 in denying that the




       4
         “We review a district court’s procedural ruling on waiver of an affirmative defense for
abuse of discretion.” Proctor, 494 F.3d at 1350 n.9; accord Sweet, 467 F.3d at 1320 (citing Day
v. McDonough, 547 U.S. 198, 202, 126 S. Ct. 1675, 1679 (2006)).
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Defendants prejudiced Edwards by raising the defense on summary judgment and

rejecting the argument that the Defendants waived the defense.

       Edwards next contends that the district court erred by concluding that no

genuine issue of fact existed as to whether a factor other than sex solely accounted

for the pay disparity, a conclusion upon which it based its grant of summary

judgment to the Defendants for the time Edwards managed the Home Program.

       According to the district court, the summary judgment record left no

question that the sole reason for the disparity was the County’s policy of refusing

to approve position reclassifications by any method except formal grievance

procedures. To obtain a salary commensurate with C52 employees like Stewart,

the court found, Edwards needed to file a grievance with the County’s Grievance

Committee seeking to have his position reclassified.5             Edwards did so.       The

Committee, however, rejected his grievance as untimely, and Edwards did not

appeal the Committee’s determination through the available methods. Thus, “the

original and unsuccessfully challenged classification of [Edwards’s] position

pursuant to a facially gender . . . neutral classification” was the factor other than

sex that solely accounted for the disparity in Edwards’s and Stewart’s salaries.

(R.4-108 at 26–27.)



       5
          Edwards could have also sought the approval of the County Board of Commissioners to
reclassify his position and receive a higher salary. (R.3-92-9 ¶ 10.)
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      Again, the summary judgment record establishes a genuine issue of material

fact as to whether the pay disparity was solely attributable to this gender-neutral

system of determining salaries. On appeal, Edwards argues that Andrews could

simply have approved a raise and failed to do so, and the evidence reasonably

supports his argument. Both Camilla Moore and Joseph Johnson requested a

raise—not reclassification—from Andrews, on Edwards’s behalf. (R.3-97-4, Exs.

B1, B2.)     Robinson decided to seek a salary increase for Edwards after

unsuccessfully trying to reclassify Edwards’s position and hearing that the County

was not entertaining reclassification requests at the time. (R.3-92-5 at 13–14.)

Even Andrews confirms that he could have approved an employee’s raise in salary.

(R.3-97-12 at 17.) If Andrews could have approved a raise despite the decision-

band system and did not, the Defendants have not fully attributed the pay disparity

between Edwards’s and Stewart’s salaries to the system. Drawing all reasonable

inferences in favor of Edwards, a genuine issue of material fact therefore remains

as to whether the original classification of the Specialist position and Edwards’s

unsuccessful attempt to reclassify his job constituted the sole reasons for the pay

disparity. The Defendants thus failed to show the absence of a genuine dispute of

material fact as to their affirmative defense, and summary judgment was

inappropriate.




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                                       V.

      We reverse the district court’s grant of summary judgment as to Edwards’s

Equal Pay Act claim. We affirm the remainder of the court’s rulings.

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.




                                       15
