On Appeal from the United States District Court for the District of Delaware, D.C. Civil Action No. 83-412.
Seitz, Sloviter and Hutchinson, Circuit Judges.
HUTCHINSON, Circuit Judge.
In this action under the Equal Pay Act, 29 U.S.C.A. § 206(d) (West 1978) (the Act), judgment was entered on a jury's verdict that appellees, the Delaware Department of Health and Social Services (DHSS) and Delaware's Director of State Personnel, had violated the Act and that their violation was willful. The district court subsequently granted appellees' motion for judgment notwithstanding the verdict and conditionally granted their motion for a new trial. For the reasons which follow, we will reverse the order of the district court and direct it to reinstate the judgment entered on the six-member jury's verdict of a willful violation.
During the relevant time period, DHSS recognized three levels of Public Health Nurses (PHNs) and Physician's Assistants (PAs). Pursuant to the statewide classification system then employed, PHNs I, II and III were compensated at pay grades 21, 22 and 23, while PAs I, II and III were compensated at pay grades 20, 22 and 24. In April, 1980, Donald Bloom, an employee at the Kent County Health Clinic (Clinic), was reclassified from PA II to PA III.*fn1 As a result of his reclassification, Bloom was more highly paid than every PHN working at the Clinic, who were all female.
Evidence at trial indicated that Bloom and the PHNs performed many of the same functions, but that PHNs had additional duties related to patient care and lab work which Bloom did not share. Some of the claimants also had various substantive or administrative functions beyond those required of Bloom or the PHN Is.
Soon after Bloom's promotion, the PHNs complained to their superiors that they were being paid less than he was for performing the same work. In March or April, 1981, they filed discrimination charges with the Equal Employment Opportunity Commission (EEOC). The EEOC notified DHSS of the charges in January, 1982 and of the possibility of Equal Pay Act violations on June 7, 1982.*fn2
Pursuant to a DHSS audit completed in September, 1982, but made retroactive to July 1, 1982, PHNs and PAs were regraded. PHNs I, II and III were assigned pay grades 22, 23 and 24. PAs I and II were merged into PA I at a pay grade of 22 and PA IIIs remained at pay grade 24. Bloom was reclassified as a PA I and his pay grade reduced from 24 to 22. The EEOC treated this as bringing appellees in compliance with the Act's requirements as of July 1, 1982.
On June 28, 1983, the EEOC instituted suit in the United States District Court for the District of Delaware.*fn3 The EEOC asserted that appellees had willfully violated the Act by paying female PHNs less than Bloom for performing equal work and sought compensatory damages. Since a willful violation is subject to a three year statute of limitation, the EEOC sought recovery from June 29, 1980 to July 1, 1982, the date the wage disparity was eliminated.*fn4
Trial commenced on December 1, 1986 before a six-person jury and two alternates. One juror was dismissed during the trial and replaced with an alternate. Immediately prior to charging the jury, the court initiated the following dialogue:
THE COURT: Before we bring the jury in, we have one alternate left. slice mentioned that two of the jurors are not feeling too well today. I, in the past, if the attorneys are agreeable, have permitted the alternate to stay and deliberate with the jury. I would not do it if there was any objection, and when I've done it, I mentioned ahead of time, and I didn't today, but in view of the fact that we have two jurors who don't feel well, do the attorneys have any feeling about permitting the alternate to remain and deliberate with the jury?
MS. FLOWERS: Plaintiff does not.
THE COURT: You had no objection?
MS. FLOWERS: No objection.
MS. MULLEN: Defendants have no objection, Your Honor.
THE COURT: Okay, fine. I think, then, I will permit the alternate to remain and deliberate with the jury, and if by chance, one of the jurors becomes ill and cannot stay through the entire deliberations, we will still have a six-member jury left.
Joint Appendix (Jt. App.) at 605-06.
When these seven returned after their deliberations, the foreperson announced that the jury had reached a verdict finding that the appellees had violated the Act and had done so willfully. Id. at 619-20. A poll of the jury, however, revealed that the alternate had not been considered a voting member. Id. at 621. Upon questioning by the court, this individual agreed with the finding of an Equal Pay Act violation but not with the finding of willfulness. Id. at 622.
The court entered judgment in accordance with the verdict announced by the foreperson and appellees moved for judgment notwithstanding the verdict or, in the alternative, a new trial. Since, in seeking a directed verdict, they argued only that they had proven the pay disparity was based on a "factor other than sex," an affirmative defense specifically set forth in the Act, the district court refused to consider their post-trial attacks on the EEOC's prima facie case in deciding the judgment n.o.v. motion. It agreed with appellees, however, that the evidence of DHSS's job classification system compelled the conclusion that the pay disparity was based on a "factor other than sex," thereby overcoming appellants' prima facie case and relieving appellees of any liability.
The district court, as required by Federal Rule of Civil Procedure 50(c), also conditionally ruled on the new trial motion. Because it felt that appellees' evidence on the affirmative defense overcame the prima facie case, the court concluded that the jury's verdict was against the weight of the evidence. Relying on a Department of Labor regulation, the court also held that a finding for appellants on their prima facie case with respect to ten PHNs could not be sustained. Accordingly, it also granted a new trial for all claimants on this ground, reasoning that since the jury's error "is likely to have affected the verdict of all ...