Dr. Ulka Ramelow v. State of La., Board of Trustees, McNeese State Univ.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-1131 consolidated with 03-1484

DR. ULKU RAMELOW

VERSUS

THE BOARD OF TRUSTEES OF THE UNIVERSITY OF LOUISIANA
SYSTEM, D/B/A MCNEESE STATE UNIVERSITY

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 98-6522
HONORABLE G. MICHAEL CANADAY, DISTRICT COURT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE
**********

Court composed of Ulysses Gene Thibodeaux, C.J., John D. Saunders, and Arthur J.
Planchard*, Judges.

REVERSED AND RENDERED.
John Michael Veron
Robert E. Landry
Scofield, Gerard, Veron, Singletary & Pohorelsky
P. O. Box 3028
Lake Charles, LA 70602-3028
Telephone: (337) 433-9436
COUNSEL FOR:
Defendant/Appellant - State of Louisiana, Board of Trustees,
McNeese State University

Charles Schrumpf
Schrumpf & Schrumpf
3801 Maplewood Drive
Sulphur, LA 70663
Telephone: (337) 625-9077
COUNSEL FOR:
Plaintiff/Appellee - Dr. Ulku Ramelow

*
Honorable Arthur J. Planchard, retired, participated in this decision by appointment of the
Louisiana Supreme Court as Judge Pro Tempore.

Elizabeth Brooks Hollins
Louisiana Department of Justice
901 Lakeshore Drive - Suite 820
Lake Charles, LA 70601
Telephone: (337) 491-2844
COUNSEL FOR:
Defendant/Appellant - State of Louisiana, Board of Trustees,
McNeese State University

THIBODEAUX, Chief Judge.

The Board of Trustees of the University of Louisiana System, d/b/a

McNeese State University (hereinafter “McNeese”) appeals a judgment of $49,156.00

rendered pursuant to a jury verdict against it in a proceeding brought under the Equal

Pay Act of 1963, 29 U.S.C. § 206 (hereinafter “EPA”) by Dr. Ulku Ramelow, a

tenured professor in McNeese’s chemistry department. For the following reasons, we

reverse the judgment of the trial court. Because Dr. Ramelow failed to demonstrate

the factors necessary to prove a prima facie case under the EPA, the jury was

manifestly erroneous.

I.

ISSUES

McNeese entreats us to consider:

(1) whether the jury committed manifest error in finding
that Dr. Ramelow met her burden of proving that
McNeese violated the EPA;

(2) whether the jury erred because Dr. Ramelow failed
to demonstrate a valid male comparator as required
by the EPA and, therefore, failed in proving that her
unequal pay was gender-based;

(3) whether the amount awarded by the jury is supported
by the record if the jury’s verdict is not manifestly
erroneous; and,

(4) whether proof of Dr. Ramelow’s claims should be
limited to consideration of solely annual
performance ratings because of a purported judicial
confession made during the opening statement of Dr.
Ramelow’s attorney.

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II.

FACTS

Dr. Ramelow first arrived at McNeese in 1982 when her husband, Dr.

Gerald Ramelow (Dr. G. Ramelow), was hired as an assistant professor of chemistry.

She began working for the university as an adjunct professor. Her pay was based on

the number of classes she taught. Her usual load was one or two classes in addition

to a lab course. According to Dr. Ramelow, she earned $200.00 per month. In 1987,

Dr. Ramelow was hired as an instructor, a non-tenured track position, with a one year

renewable contract. As an instructor, her salary was not based on the number of

courses she taught. Finally, in 1991 she was hired as an assistant professor on a

tenure track. It was at that point that Dr. Ramelow became eligible for merit pay

increases. By 1994, she was promoted to associate professor and became tenured.

Two years later, Dr. Ramelow’s request for a full professorship was denied.

According to Dr. Ramelow, she was told that her request for promotion to full

professorship was too early. Her request was again denied in 1999. Dr. Ramelow

testified that she was denied because she did not participate in summer classes and

meetings and she lacked congeniality with other faculty members. She explained that

she was unable to participate in summer classes because of surgery she underwent at

the end of the spring semester.

In 2002, after the retirement of Dr. Russell Ham, the department head,

Dr. Ramelow was promoted to full professor. At the time of trial, her salary was

$44,683.00. Dr. Ramelow testified that among the full professors in the college of

science, both male and female, her salary was the lowest. With the exception of one

associate professor, her salary was also the lowest in that group. With respect to

experience teaching college level course, Dr. Ramelow presented evidence that she

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has 37.25 years of experience, more than anyone else in the department of chemistry.

These years include the time she taught in her home country, Turkey. She also

testified that the average salary for associate professors at McNeese for the school

year 2002-2003 was $48,039.00 and that full professors at McNeese for that year

averaged $60,000.00. Dr. Ramelow testified that, with respect to other professors in

the chemistry department, their jobs are identical.

Witnesses for McNeese explained that the differences in salary were due

to the tenure track starting date differences, market value for a particular professor’s

specialty and merit pay raises which are percentages of salary given to professors

based on an annual performance report (APR). McNeese insisted that Dr. Ramelow’s

low salary was not based on her gender, but based instead on her APR ranking. The

jury found that McNeese failed to pay Dr. Ramelow “in accordance with the Equal

Pay Act.”

III.

LAW AND DISCUSSION

Judicial Confession

In his opening statement at the trial of this matter, counsel for Dr.

Ramelow stated that her rights under the EPA were violated due to the manipulation

of her APRs during her years of employment with McNeese. In brief to this court in

connection with the present appeal, Dr. Ramelow argued that not only were her APRs

manipulated but also certain “salary adjustments,” not tied to merit, were used to keep

her salary below that of her male counterparts. It is Dr. Ramelow’s reference to

“salary adjustments” to which McNeese objects.

Louisiana Civil Code Article 1853 states: “A judicial confession is a

declaration made by a party in a judicial proceeding. That confession constitutes full

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proof against the party who made it.” It may only be revoked on the ground of error

of fact. Id. Furthermore, the statement made must be an express acknowledgment of

an adverse fact. Jones v. Gillen, 564 So.2d 1274 (La.App. 5 Cir.), writ denied, 568

So.2d 1081 (La.1990). McNeese asserts that C.T. Traina, Inc. v. Sunshine Plaza,

Inc., 03-1003 (La. 12/3/03), 861 So.2d 156, supports its position that the remark made

by Dr. Ramelow’s counsel during his opening statement regarding manipulation of

her APRs is a judicial confession that the APR is the only basis of her claim that

McNeese violated the EPA. The effect of a judicial confession by a party or his

attorney is to waive the presentation of any evidence as to the subject of the

admission. La.Civ.Code art. 1853, cmt. (b); Crawford v. Deshotels, 359 So.2d 118

(La.1978). In C. T. Traina, Inc., counsel for Sunshine confessed, in an exception of

no cause of action, to the existence of an oral contract. The supreme court concluded

that an amended answer, denying the oral contract, did not serve to revoke the prior

judicial confession. However, in reaching the conclusion that the answer did not

revoke the judicial confession, the court noted that the amended answer failed to

assert that the original admission was done in error and it also pleaded, in the

alternative, that an oral contract existed. Thus, in C. T. Traina, Inc., the issue of

whether an oral contract existed was withdrawn, and the introduction of evidence

with respect to the oral contract’s existence was not allowed. Moreover, the main

issue in C. T. Traina, Inc. was wether a contract existed between the parties; thus,

when Sunshine Plaza admitted the existence of the oral contract it stated a fact

adverse to its position.

It is noteworthy in the present case that Dr. Ramelow’s counsel made the

alleged judicial confession in his opening statement.

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Although the majority of the jurisprudence regarding the purpose of

opening statements are discussed in the context of a criminal procedure, that

jurisprudence is helpful in understanding the general purpose of opening statements

within a civil trial. The purpose of an opening statement is to acquaint the jury with

the case in order to prevent confusion, and to protect a litigant from being taken by

surprise or prejudiced in the preparation of his defense. State v. Allen, 95-1754 (La.

9/5/96), 682 So.2d 713. In Krepps v. Hindelang, 97-980, p. 9 (La.App. 5 Cir.

4/15/98), 713 So.2d 519, 524, the court noted that for a statement to be considered a

judicial confession there is an added jurisprudential requirement that “a party must

have relied on the declaration to his detriment.” We do not find that the remarks

made by Dr. Ramelow’s counsel during his opening statement constitute a judicial

admission that Dr. Ramelow is contesting only the APRs with respect to her EPA

claim. In her pleadings and through the witnesses at trial, there were other wage

matters discussed as the bases for her EPA violation lawsuit, including salary

adjustments that were made by McNeese. Further, there is no evidence that McNeese

detrimentally relied on the assertions made by Dr. Ramelow’s counsel in his opening

statement. Thus, we do not find McNeese’s argument, that a declaration by Dr.

Ramelow’s counsel during his opening statement regarding the basis of her claim is

a judicial confession thus limiting evidence and argument to that declared basis,

convincing.

Equal Pay Act

The Equal Pay Act of 1963, 29 U.S.C. § 206 reads in pertinent part:

(d) Prohibition of sex discrimination.

(1) No employer having employees subject to any
provisions of this section shall discriminate, within any
establishment in which such employees are employed,

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between employees on the basis of sex by paying wages to
employees in such establishment at a rate less than the rate
at which he pays wages to employees of the opposite sex in
such establishment for equal work on jobs the performance
of which requires equal skill, effort, and responsibility, and
which are performed under similar working conditions,
except where such payment is 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:
Provided, That an employer who is paying a wage rate
differential in violation of this subsection shall not, in
order to comply with the provisions of this subsection,
reduce the wage rate of any employee.

The Supreme Court has stated that the EPA is remedial and should be broadly

interpreted to fulfill the underlying purposes for which it was enacted, that employees

doing equal work should be paid equally regardless of the sex of the employee.

Corning Glass Works v. Brennan, 417 U.S. 188, 94 S.Ct. 2223 (1974).

To recover under the EPA, a plaintiff must prove that an employer is

paying different wages to employees based on an employee’s sex and that the work

they do is equal. Id. By equal, the Act does not mean that the work must be

identical, but only that the work be “substantially equal.” Gunther v. County of

Washington, 623 F.2d 1303, 1309 (9th Cir. 1979), affirmed on other grounds, 452

U.S. 161, 101 S.Ct. 2242 (1981). The question of whether the work done by the male

and female employees is substantially equal is one of fact and reviewed by this court

under the manifest error-clearly wrong standard. Id. The burden is first on the

employee, Dr. Ramelow, to establish a prima facie case under the EPA. To do so, she

must show that: (1) McNeese is subject to the EPA; (2) she performed work in a

position requiring equal skill, effort and responsibility under similar working

conditions; and, (3) she was paid less than a man. Jones v. Flagship Int’l, 793 F.2d

714 (5th Cir. 1986), cert. denied, 479 U.S. 1065, 107 S.Ct. 952 (1987). There is no

question that McNeese is subject to the EPA and that Dr. Ramelow was paid less than

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a man in her department. However, with respect to factor number two, the statute

focuses not on whether the female and male employee possess equal skills to do the

job, but whether the actual jobs done by the female and male employee for the

employer require equal skills. Cox v. Home Ins. Co., 637 F.Supp. 300 (N.D. Tex.

1985). Further, minor differences in jobs may be disregarded, but major differences

in the jobs may not be disregarded. Corning Glass Works, 417 U.S. 188, 94 S.Ct.

2223. It is only when Dr. Ramelow makes out a prima facie case that the burden of

production then shifts to the employer, McNeese, to show that the difference in salary

is justified based on one of the Act’s four exceptions. 29 U.S.C. § 206(d)(1).

Whether Dr. Ramelow establishes a prima facie case by showing that her position and

that of other males at her place of employment are “substantially equivalent” for EPA

purposes, thereby shifting the burden to McNeese, is also a question of fact, subject

to the manifest error-clearly wrong standard of review. Corning Glass Works, 417

U.S. 188, 94 S.Ct. 2223. See also, Tomka v. Seiler Corp., 66 F.3d 1295, 1311 (2d

Cir. 1995)(“It is for the trier of fact to decide if [there] is a significant enough

difference in responsibility to make the jobs unequal.”). In a case involving the

establishment of a prima facie case in a professional setting, the court in Hein v.

Oregon College of Education, 718 F.2d 910, 916 (9th Cir. 1983) instructed:

[T]he proper test . . . in a professional setting such as that
of a college is whether the plaintiff is receiving lower
wages than the average of wages paid to all employees of
the opposite sex performing substantially equal work and
similarly situated with respect to any other factors, such as
seniority, that affect the wage scale.

(Emphasis added).

Dr. Ramelow testified about female full professors in the College of

Science at McNeese who earn a higher salary than she earns. However, among the

department of chemistry professors, it appears that Dr. Ramelow chose a single male

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comparator with respect to her job and salary—Dr. Mark Delaney (Dr. Delaney). Dr.

Ramelow’s husband, Gerald, is also a department of chemistry professor. However,

Dr. Gerald Ramelow, was hired by McNeese in 1982 as an assistant professor of

chemistry. Thus he is not similarly situated with Dr. Ramelow with respect to

seniority and cannot satisfy factor number two with respect to Dr. Ramelow

establishing a prima facie case.

It is apparent the jury concluded that the job Dr. Delaney performed for

McNeese required skills equal to that of the job performed by Dr. Ramelow and that

he was likewise similarly situated in all factors affecting the wage scale. Although

Dr. Ramelow worked at McNeese as an adjunct professor and instructor for many

years beginning in 1982, she was not hired as an assistant professor of chemistry on

a tenure track until 1991. In 1994, she was promoted to associate professor and

became tenured. In 2002, she became a full professor. On the other hand, Dr.

Delaney was hired into a tenure track position, making him eligible for merit raises,

four years prior to Dr. Ramelow. Also, Dr. Delaney became the assistant head of the

department of chemistry. He maintained his assistant department head position for

three to four years, thus increasing his base salary due to the additional administrative

work requirements. At one point during his career, Dr. Delaney became the interim

department head. In the assistant and interim department head positions, Dr. Delaney

was responsible for the supervision of all of the adjunct professors, instructors and

professors in the department of chemistry within the College of Science, in addition

to his teaching and scholarly research work. As supervisor over the department’s

personnel, Dr. Delaney was required to get along well with his colleagues. Dr. Ham

testified that Dr. Ramelow lacked congeniality with her fellow professors and had an

explosive temper. A reading of Dr. Ramelow’s testimony in the trial transcript of this

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case supports Dr. Ham’s description of Dr. Ramelow’s personality. The court, and

her own attorney, had to repeatedly remind Dr. Ramelow of the trial judge’s authority

in conducting the trial and to follow the rules of the court set out by the trial judge.

We find that Dr. Ramelow failed to prove that the job she performed for

the university was substantially equal to the job performed by Dr. Delaney, her male

comparator in her EPA claim. Her job did not require the same skills as the job Dr.

Delaney performed for the university and he was not similarly situated with respect

to seniority, factors she had to show to make out a prima facie case under the EPA.

Consequently, we find that the jury was manifestly erroneous in determining that Dr.

Ramelow sufficiently made out a prima facie case. As a result of our finding that Dr.

Ramelow failed to make out a prima facie case of a violation of the EPA, the burden

of production to show that one of the exceptions to a wage differential existed never

shifted to McNeese. Therefore, our decision pretermits discussion of the remaining

issues.

IV.

CONCLUSION

For the above reasons, the judgment of the trial court in favor of

plaintiff, Dr. Ulku Ramelow, is reversed. Costs of this appeal are assessed to the

plaintiff, Dr. Ulku Ramelow.

REVERSED AND RENDERED.

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