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DUNLOP v. ALLEGHENY CTY. INST. DIST.

October 17, 1975

John T. DUNLOP, Secretary of Labor, United States Department of Labor, Plaintiff,
v.
ALLEGHENY COUNTY INSTITUTION DISTRICT, doing business as John J. Kane Hospital, Defendant



The opinion of the court was delivered by: MARSH

 MARSH, District Judge.

 It is established that the Secretary bears the burden of proving equality of work and unequal pay; if he sustains that burden the defendant employer has the burden of proving that the criterion for discrimination was some factor other than sex. Corning Glass Works v. Brennan, 417 U.S. 188, 195-196, 94 S. Ct. 2223, 41 L. Ed. 2d 1 (1974); Shultz v. Wheaton Glass Co., 421 F.2d 259, 266 (3rd Cir. 1970).

 In our opinion the Secretary failed to sustain his burden; but even if it is found that he did, the defendant employer proved that the principal criteria for pay discrimination between licensed barbers and licensed beauticians was attributable to the obvious difference in special training and, at the hospital, in dissimilar skills, efforts and responsibilities of these separate and distinct professions. These variants are factors other than sex. *fn3" Accordingly, fixing wages for these different professions is a separate function performed by the County Salary Board. (Tr. 97-98). *fn4"

 The following facts have been stipulated by the parties or found from the evidence.

 This action was instituted by the Secretary of Labor, United States Department of Labor, under the provisions of the Fair Labor Standards Act of 1938, as amended (29 U.S.C. 201 et seq.), hereinafter referred to as the Act. The plaintiff has alleged that the defendant has violated section 6(d) of the Act by paying its female beauticians at lower rates than it paid its male barbers for the performance of work which required equal skill, effort and responsibility and which was performed under similar working conditions. (Tr. 3-4).

 Plaintiff seeks the restraint of continued violations of the Act and further seeks to have the defendant restrained from withholding any back wages owed to its employees as a result of the aforesaid alleged violations. (Tr. 4).

 The defendant, Allegheny County Institution District, maintains an office at Room 101 Allegheny County Courthouse, Pittsburgh, Pennsylvania. (Tr. 4).

 John J. Kane Hospital is a geriatric hospital operated by the Allegheny County Institution District, a political subdivision of the Commonwealth of Pennsylvania. (Tr. 7). The hospital is located on Vanadium Road, Scott Township, Pennsylvania.

 Defendant is an enterprise engaged in commerce within the meaning of section 3(s)(4) of the Amendments to the Fair Labor Standards Act of 1966, (29 U.S.C. 203(s)(4)). (Tr. 5).

 Plaintiff claims the difference between wages received by certain barbers employed by defendant and those wages received by Ann K. DeBone, Margaret Magliocca and Beatrice Adams from December 6, 1971 to the present time.

 There are approximately 1,300 female patients at the hospital. *fn5" ...


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