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Marshall v. School Board

decided: June 1, 1979.



Before Rosenn, Van Dusen and Garth, Circuit Judges.

Author: Van Dusen


In this appeal, the plaintiff Secretary of Labor challenges the district court's conclusion that certain female employees of the defendant Hermitage School District did not perform work "equal" to similar work performed by more highly paid male employees, within the meaning of the Equal Pay Act, 29 U.S.C. § 206(d)(1).*fn1 The Secretary of Labor, on behalf of the District's female "cleaning" personnel, sought to enjoin the District from violating the Equal Pay Act and to recover two years' unpaid wages for such employees. After a non-jury trial, the district court entered a final judgment of dismissal. We affirm in part, but modify the district court's order with respect to two female employees who had actually replaced a more highly paid male employee without receiving the higher wage.

The question presented in the district court was whether the School District's "cleaning women" and its more highly paid "maintenance men," both doing similar but not identical tasks on the afternoon shift, performed "equal work."*fn2 The district court found that the "maintenance" work required more skill and more responsibility than the "cleaning" work, that it thus was not equal under the terms of the Act, and that the difference justified the men's higher wages. After careful review of the record, we conclude that this finding was not clearly erroneous under the standard of F.R.Civ.P. 52(a).

However, the district court also found that for limited periods two individual female employees had actually filled vacancies in the maintenance position usually held by men, yet that these two women did not receive the higher wage. Therefore, we conclude that it was error to deny these two female employees wages equal to those which male employees would have received.*fn3

The events giving rise to the present controversy are not disputed. The School District employed Robert A. Nye as the afternoon shift maintenance man in the District's junior high school from 1965 to December 1973. Nye then transferred to the afternoon shift at the senior high school for one year, where he performed the same job. In December 1974, he was reassigned to the junior high school to reassume his former position there. A woman replaced Nye on each occasion, first at the junior high school when he transferred from that school to the senior high school, then at the senior high school when he transferred back to the junior high school.

First, the district court found that "Mrs. (Camille) Martin worked as Nye's replacement for a year," 774a, at the junior high school from December 1973 to December 1974.*fn4 When Nye was reassigned to the junior high school, Mrs. Martin returned to her former cleaning position at the school. She was never paid the higher "maintenance" position wage during the year she filled Nye's position.

Likewise, the district court found that after Nye was reassigned to the junior high school, "the regular late afternoon maintenance job (at the senior high school) was temporarily being performed by Mrs. (Lovella L.) Adams, pending the location of a qualified maintenance person," 776a. Mrs. Adams filled Nye's position at the high school for 14 months, from January 1975 to March 1976, yet continued to earn only the lower "cleaning" wage.

The district court's findings show that the School District's action regarding Mrs. Martin and Mrs. Adams directly contravened 29 C.F.R. § 800.114(c) (1978), which provides:

"The statute is intended to eliminate sex as a basis for wage differentials between employees performing equal work on jobs within the establishment, and if the rates paid for the same jobs are lower when occupants of the jobs are of one sex than they are when the jobs are filled by employees of the opposite sex, such discrimination within the establishment is equally in violation of the statutory prohibition whether or not employees of both sexes are employed in such jobs at the same time. Accordingly, where an employee of one sex is hired or assigned to a particular job to replace an employee of the opposite sex, comparison of the newly assigned employee's wage rate with that of the replaced former employee is required for purposes of section 6(d)(1), whether or not the job is performed concurrently by employees of both sexes. For example, if a particular job which in the past has been performed by a male employee becomes vacant and is then filled by a female employee, it would be contrary to the equal pay requirement to pay the female employee a lower wage rate than was paid for the same job when performed by the male employee, even though employees of both sexes may not be performing the job at the same time. Payment of the lower wage rate in such circumstances is a prohibited wage differential. . . . "

(Emphasis added.)

"These regulations are entitled to "great deference' by the courts in applying the Equal Pay Act to given factual situations," Laffey v. Northwest Airlines, Inc., 185 U.S. App. D.C. 322, 342, 567 F.2d 429, 449 (1976) (footnote omitted), Cert. denied, 434 U.S. 1086, 98 S. Ct. 1281, 55 L. Ed. 2d 792 (1978).

More generally, the Supreme Court, in Corning Glass Works v. Brennan, 417 U.S. 188, 208, 94 S. Ct. 2223, 2234, 41 L. Ed. 2d 1 (1974), has stated: "The Equal Pay Act is broadly remedial, and it should be construed and applied so as to fulfill the underlying purpose which Congress sought to achieve." This court has already recognized that "(t)he Act was intended as a broad charter of women's rights in the economic field. It sought to overcome the age-old belief in women's inferiority and to eliminate the depressing effect on living standards of reduced wages for female workers and the economic and social ...

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