Worcester Seeks Dismissal In LCB Wage Discrimination Suit

BERLIN — Worcester County this week filed a motion to dismiss a lawsuit filed in late August alleging the now-defunct Liquor Control Board (LCB) violated the federal Equal Pay Act by paying female employees at retail outlets less than their male counterparts in the same positions.

In August, the Equal Employment Opportunity Commission filed the suit in U.S. District Court. The complaint outlines an alleged pattern by the old LCB or undercompensating female retail clerks at the agency’s retail outlets throughout the county compared to their male counterparts that performed the same job.

The allegations date back to as early as April 2010 when the county liquor dispensary operations were still run by the LCB. In 2011, amid significant controversy, the old LCB was dismantled by the General Assembly and the new county-run Department of Liquor Control (DLC) was created to fill the void. The charges of discrimination surfaced early in July 2011 after the DLC assumed control on July 1, 2011, but the allegations stem from alleged wage discrimination carried out by the LCB prior to the takeover and does not implicate the new DLC.

The complaint asks the court to grant a permanent injunction enjoining Worcester County from discriminating against females with respect to their compensation and from paying female employees lower compensation than their male counterparts for performing equal work. The complaint also asks the court to order Worcester County to institute and carry out policies, practices and programs that provide equal employment opportunities for women and eradicate the effects of its past and present unlawful employment practices.

In terms of monetary awards, the complaint asks the court to order Worcester County to make whole Smith, Conner and Dale by providing appropriate back pay with prejudgment interest in amounts to be proven at trial and an equal sum as liquidated damages.

However, this week the Worcester County Commissioners, through their attorneys, filed a motion to dismiss the suit, or in the alternative, a motion for summary judgment, citing a variety of reasons why the suit is not valid, not the least of which is the alleged violations occurred under the watch of the old LCB, a quasi-state organization not directly affiliated with the county.

“Maryland law gave the LCB a monopoly over liquor sales and the county did not exercise any degree of control over it,” the motion reads. “The county did not have any input on who was or was not appointed to the LCB. Applying these principles in the instant case establishes that the claims against the county should be dismissed, with prejudice, or that summary judgment should be entered in favor of the county.”

In May 2011, in advance of the takeover by the county and the dissolution of the LCB, the county Human Resources Director George Bradley began a systematic review of the LCB’s staff to determine which employees would be hired and assigned to the DLC. As part of the review process, it was determined how each employee’s current salary would fit into the county’s “grade and step” wage system.

At the time, the LCB has 38 total employees including nine full-time store clerks, six part-time store clerks, and six full-time store managers. Of the nine full-time store clerks, five were male and four were female. Each of the nine full-time store clerks were hired by the county and assigned to the DLC to perform the same functions as they previously performed for the LCB. Based on the review of the LCB’s records, Bradley made recommendations to the county for the starting pay rate for each new DLC employee.

“Because the new employees had to be placed into the county’s existing grade and step system, most employees saw their hourly rates change,” the motion reads. “Some employees received a small raise of less than 10 cents an hour, while other employees received a minor pay cut of up to 11 cents an hour. All of the former LCB employees, who are now county employees, are entitled to the same benefits including health benefits, as county employees.”

In its motion to dismiss the case, the county points out the alleged wage discrepancies came under the watch of the LCB, which was controlled by the state, and not the county.

“It is undisputed that during the time period in question, the county did not employ any of the individuals identified in the complaint,” the motion to dismiss reads. “For the purposes of the Equal Pay Act, the county did not become an employer until July 1, 2011 when it assumed control of the liquor sales in the county. Consequently, the county cannot be held liable under the Equal Pay Act for alleged violations that occurred before it became the employer of the individuals in question.”

In its motion, Worcester County asserts the allegations surfaced just days after the DLC took over, pointing out the infractions allegedly took place under the LCB.

“In this case, the county did not have notice of any claim relating to violations of the Equal Pay Act at the time it began operating the DLC,” the motion reads. “Ms. Smith [one of the plaintiffs] signed her Charge of Discrimination on July 9, 2011 and the charge was not sent to the county until July 14, 2011. Based on this timeline, the county could not have known about the charge before it assumed control over liquor sales on July 1, 2011.”

Essentially, the county is claiming it should not be held responsible for the alleged violations carried out by the LCB, the very organization the DLC was created to replace.

“Moreover, it is important to note that it was the mismanagement by the LCB that prompted the  county to ask the General Assembly to create the DLC in the first place,” the motion reads. “The county should not have to bear the financial burden associated with the alleged failure by the LCB to comply with the provisions of the Equal Pay Act.”

Finally, the motion for summary judgment argues the LCB did not violate the Equal Pay Act in the first place and that any perceived discrepancies in pay scales for the male employees identified in the fell under four basic statutory exemptions including a seniority system, a merit system, a system which measures earnings by quantity or quality of production, or a differential based on any other factor other than sex.

“This burden requires the employer to establish a gender-neutral reason as to why the plaintiff’s salary was not the same as that of a male with substantially equal responsibilities,” the motion reads. “Here, although the EEOC alleges that the LCB willfully violated the Equal Pay Act, the record clearly establishes it did not. For these reasons, the defendant’s motion to dismiss, or alternatively, for summary judgment, must be granted.”

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