                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 17-2977
                                     _____________

                                   TRINA R. GUMBS,
                                              Appellant

                                             v.

                    STATE OF DELAWARE DEPARTMENT OF LABOR
                                _____________

                     On Appeal from the United States District Court
                                for the District of Delaware
                             (D.C. Civil No. 1-15-cv-00190)
                     District Judge: Honorable Richard G. Andrews
                                      ______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                   April 12, 2018
                                  ______________

  Before: CHAGARES, VANASKIE, Circuit Judges, and BOLTON, District Judge1

                                 (Filed: August 23, 2018)
                                     ______________

                                        OPINION *
                                     ______________




       1
        The Honorable Susan R. Bolton, Senior District Judge, United States District
Court for the District of Arizona, sitting by designation.
       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
VANASKIE, Circuit Judge.

       Appellant Trina Gumbs appeals the District Court’s August 11, 2017, Order

granting summary judgment in favor of Defendant Delaware Department of Labor

(“DDOL”) on her claim brought under the Equal Pay Act (“EPA”), 29 U.S.C. § 206(d).

For the reasons that follow, we will affirm the District Court’s Order.

                                             I.

       In 1996, Trina Gumbs began her career with the DDOL, Office of Anti-

Discrimination (“OAD”), as an Administrative Assistant to the Director of Industrial

Affairs. She was soon promoted to Labor Law Enforcement Officer I, and then to Labor

Law Enforcement Officer II. In 2006, she was promoted to Labor Law Enforcement

Supervisor (“LLES”), the position she held when she left the office in 2015.

       In December 2011, the OAD’s Regulatory Specialist position became vacant, and

Gumbs was temporarily promoted to the position with an increase in pay. 2 Three months

later, the OAD posted a vacancy announcement to permanently fill the Regulatory

Specialist position. The posting listed two preferred qualifications: “1. Experience in

resolving employment and/or discrimination complaints[;] [and] 2. Possession of a Juris

Doctorate.” (JA 126.)

       Gumbs and four other applicants were interviewed for the position, and the office

ultimately selected Daniel McGannon, a lawyer with previous experience in employment

discrimination. Following McGannon’s hiring in June 2012, Gumbs returned to her


       2
       The parties also refer to this position as “Administrator,” but we will adhere to
“Regulatory Specialist” for consistency.
                                             2
position as an LLES—a position subordinate to the Regulatory Specialist—and her pay

was reduced accordingly. Since Gumbs had previously served as acting Regulatory

Specialist and was knowledgeable about the office, she helped McGannon transition into

the role.

       Dissatisfied that she was not appointed Regulatory Specialist and that she was not

receiving the compensation commensurate to that position, even though she believed she

was performing the essential duties of that position, Gumbs filed administrative charges

of discrimination. After receiving her Notice of the Right to File Suit from the Equal

Employment Opportunity Commission (“EEOC”), Gumbs filed an action in the Sussex

County Superior Court of the State of Delaware, challenging both the failure to promote

her to Regulatory Specialist and the failure to pay her at the rate commensurate to that

position. She later filed an action in the United States District Court for the District of

Delaware against the DDOL for alleged violations of the EPA, seeking unpaid wages,

unpaid overtime compensation, and benefits. 3 She argued that she and McGannon were

paid unequally for equal work because, after she returned to her former position, “she

continued performing the duties of OAD Regulatory Specialist,” such as:

              continuing: to represent the OAD in the Fair Employment
              Practices Agency (“FEPA”) Program, to act as Contract
              Compliance Officer, to submit signed monthly reports to the
              EEOC for reconciliation and payment purposes, to represent
              OAD during the Substantial Weight Review process, and to
              generate monthly statistics and charts for OAD using the
              electronic case management system.


       3
       Gumbs later dismissed her EPA claim in the state court action. The failure to
promote claim is not part of these proceedings.
                                              3
(JA 27.) Gumbs further argued that, even after her return to LLES, her job “required the

same skill, effort, and responsibility under similar working conditions in the same

establishment” and that, “in practice,” she “overs[aw] and perform[ed] the work of

McGannon.” (Id. at 28.)

       The DDOL filed a motion for summary judgment, which was submitted to a

Magistrate Judge for a Report and Recommendation. The Magistrate Judge

recommended that summary judgment be granted because, “[a]lthough [Gumbs]

performed some of McGannon’s duties, her job was not substantially equal because she

did not have equal responsibility.” (Id. at 8) (emphasis in original). Gumbs objected to

the Report and Recommendation on two grounds: first, that the Magistrate Judge reached

her conclusion without conducting a fact-intensive evaluation of job duties and

responsibilities, and second, that McGannon’s “additional supervisory tasks” were not

unequal “responsibiliti[es]” for purposes of her claim. (Id. at 15.)

       In a Memorandum Opinion, the District Court agreed with the Magistrate Judge’s

recommendation that Gumbs failed to establish her prima facie case, as the actual

responsibilities of McGannon’s and Gumbs’s respective positions were not equal. The

District Court found that, once Gumbs returned to her LLES position, “all the Regulatory

Specialist position accountability was passed to McGannon,” who had different core

duties than Gumbs. (Id.) The District Court further found that, while McGannon may

have “delegated some tasks to [Gumbs],” “[Gumbs] and her subordinates answered to

McGannon . . . .” (Id. at 15-16.) The District Court thus overruled Gumbs’s objections



                                             4
and adopted the Report and Recommendation, granting summary judgment in favor of

the DDOL. Gumbs timely appealed.

                                              II.

         The District Court had subject matter jurisdiction under 28 U.S.C. § 1331, and we

have jurisdiction under 28 U.S.C. § 1291. We review the District Court’s grant of

summary judgment de novo. See Stanziale v. Jargowsky, 200 F.3d 101, 105 (3d Cir.

2000).

                                             III.

         The EPA prohibits an employer from paying unequal wages to male and female

employees for equal work. See 29 U.S.C. § 206(d)(1). Claims brought under the EPA

follow a two-part, burden-shifting test: “[t]he 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, 200 F.3d at 107. If the plaintiff does so,

the burden shifts to her employer to “demonstrate the applicability of one of the four

affirmative defenses specified in the [EPA].” 4 EEOC v. Del. Dep’t of Health & Soc.

Servs., 865 F.2d 1408, 1414 (3d Cir. 1989). The District Court found that the evidence

was insufficient to support a finding that Gumbs could establish a prima facie case.

Accordingly, the District Court did not address the statutory affirmative defenses.


         4
          The four defenses concern employer payment decisions that are made “pursuant
to (i) a 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 other factor other
than sex . . . .” Id. § 206(d)(1).
                                              5
       On appeal, Gumbs argues that she was paid less for work that both she and

McGannon performed. She argues that she “retained the management of the office with

McGannon because he lacked the experience to run the office independently.”

(Appellant’s Br. at 1.) She further argues that she considered herself “Co-Reg[ulatory]

Specialist.” (Id. at 14.)

       To determine whether two jobs are “equal” for purposes of the EPA, “[t]he crucial

finding . . . is whether the jobs to be compared have a ‘common core’ of tasks, i.e.,

whether a significant portion of the two jobs is identical.” Brobst v. Columbus Servs.

Int’l, 761 F.2d 148, 156 (3d Cir. 1985). “The inquiry then turns to whether the differing

or additional tasks make the work substantially different.” Id. “Equal means

substantially equal and ‘[a]ny other interpretation would destroy the remedial purposes of

the [EPA].’” Wildi v. Alle-Kiski Med. Ctr., 659 F. Supp. 2d 640, 658 (W.D. Pa. 2009)

(quoting Shultz v. Wheaton Glass Co., 421 F.2d 259, 265 (3d Cir. 1970)).

       The District Court concluded that Gumbs could not establish a prima facie case

because McGannon’s job responsibilities were substantially greater than hers. We agree

with this assessment.

       For purposes of the EPA, “[r]esponsibility is concerned with the degree of

accountability required in the performance of the job, with emphasis on the importance of

the job obligation.” 29 C.F.R. § 1620.17(a). Gumbs, in her capacity as an LLES, was

responsible for “planning, assigning, reviewing, and evaluati[ng] the work of [her]

subordinates; reviewing investigations; providing subject matter expertise to

investigators; review[ing] all final determination recommendations from investigations;

                                             6
provid[ing] a final determination recommendation to [the Regulatory Specialist]; [and]

ensur[ing] case inventory [was] properly maintained and records [were] accurate.” (JA

32.) In contrast, the responsibilities of the Regulatory Specialist position included hiring

new employees, disciplinary decisions, “signing off on leave requests, . . . overseeing the

mediation program,” responding to Freedom of Information Act (“FOIA”) requests,

handling constituent contacts and community outreach, disciplining employees, and “the

overall operation of the unit.” (JA 66.) McGannon answered directly to the Secretary of

Labor, and, in turn, Gumbs answered directly to McGannon. McGannon conducted

performance reviews of Gumbs’s work, and, on one occasion, had to inform Gumbs that

she was overstepping her bounds when she signed overtime requests for employees.

       As the DDOL correctly notes, the record contains no evidence showing that, after

McGannon arrived, Gumbs performed a majority of Regulatory Specialist tasks, such as

handling FOIA requests and conducting employee performance evaluations. While

Gumbs did assist McGannon at times, for instance, by discussing discipline for

subordinate employees and serving once on a hiring panel, McGannon had the final say.

Gumbs’s characterization that her arrangement with McGannon was akin to job-sharing

is thus unsupported by the record. Despite Gumbs’s role in helping McGannon transition

into the Regulatory Specialist position, she did not possess equal responsibility and

accountability once she returned to the LLES position. As a result, the OAD was not

required to pay her the same amount as McGannon.




                                             7
                                            IV.

        Accordingly, we will affirm the Order of the District Court entered on August 11,

2017.




                                             8
