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SECRETARY OF LABOR v. WASHINGTON HOSP.

June 21, 1979

SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR, Plaintiff,
v.
WASHINGTON HOSPITAL, Defendant.



The opinion of the court was delivered by: ROSENBERG

This action was brought by the plaintiff, Secretary of Labor, United States Department of Labor, to enjoin the defendant, Washington Hospital, under § 17 of the Fair Labor Standards Act of 1938, as amended 29 U.S.C. § 201 et seq. (Act) from violating the equal and recordkeeping pursuant to the provisions of § 206(d)(1), *fn1" § 211(c) and § 215(a)(2), (5) *fn2" of the Act, and further to restrain the defendant from withholding back wages resulting from any illegal pay differentials found to have existed in the past or existing at the present time, and to further compensate those who may have been damaged for the past years.

The action centers upon the issue of differentiation which, the plaintiff alleges, is being made by the defendant between nurses aides denominated Group 2 and orderlies identified as Group 3 as reflected in their respective rates of pay.

 While the complaint as filed charged violations of the minimum wages provisions under § 6 of the Act (s 206, the plaintiff abandoned a claim relating to full-time student employment. The defendant also abandoned and withdrew the asserted defense of laches. On the pleadings as filed by the parties, and after considerable discovery procedures and arguments in connection therewith, the matter came for trial and was heard before me without a jury over a period of approximately twelve days.

 The questions which must be decided here under the law and the facts of the case are (1) Did or are the Group 2 nurses aides and Group 3 orderlies, as employed by the defendant, entrusted with duties which are substantially equal? (2) Were or are the instructions and training given to each of the two groups, that is Group 2 nurses aides and Group 3 orderlies, equal? (3) Did the completely instructed and trained employees in Group 2 and Group 3, in the performance of their duties for the defendant, possess equal skill, effort and responsibility? (4) Did the defendant pay or is the defendant paying different wages to the Group 2 employees from the Group 3 employees because of sex?

 In arriving at legal conclusions to these questions, it will not matter that the duties of both groups are not identical or even similar, since it may be that each group may or does have dissimilar duties. Usery v. Allegheny County Institution District, 544 F.2d 148, C.A. 3, 1976, cert. den. 430 U.S. 946, 97 S. Ct. 1582, 51 L. Ed. 2d 793 (1977). What will matter is that in order for the plaintiff to prevail, I must find that the job content as well as the skill, effort and responsibility and working conditions are equal. Angelo v. Bacharach Instrument Co., 555 F.2d 1164, C.A. 3, 1977. In Angelo, Judge Rosenn said (at page 1174):

 
"The courts have given effect to these manifestations of congressional intent, and have indicated that the concept of equality under the Act embraces job content as well as skill, effort, responsibility, and working conditions. In Brennan v. City Stores, 479 F.2d 235 (5th Cir. 1973), for example, the Fifth Circuit noted that "(w)hen Congress enacted the Equal Pay Act, it substituted the word "equal" for "comparable" to show that "the Jobs involved should be virtually identical, that is, they would be very much alike or closely related to each other." The restrictions in the Act were meant "to apply only to Jobs that are substantially identical or equal".' " Id. at 238 (Emphasis added) (remarks of Rep. Goodell).

 This case contains 1686 pages of transcribed testimony and 57 exhibits as presented by both parties. The evidence as presented was neither orderly nor chronological, and was at times so disarranged as to tend to confuse times, places and circumstances and by argument to precipitate erroneous conclusions. Also the problem of credibility was made more difficult by the considerable inconsistencies and contradictions (some within witnesses' own testimony much I am sure unintentional) which I was required to reconcile if I possibly could do so. Accordingly, I was required to do, and did much rereading, comparing and contrasting of the evidence in order to clarify the facts as they became credible by the preponderance of the evidence as a whole.

 The defendant is a non-profit Pennsylvania corporation engaged in operating a general hospital in Washington, Pennsylvania. It accepts and treats patients in all categories of illness. It operates in three buildings: the main hospital building, a seven-story structure with several wings containing 544 beds and 44 bassinets. It is administered and operated by 1340 employees.

 Prior to February 1, 1970, the defendant, Washington Hospital, had no Extended Care Facility. On that date, the Hospital purchased Washington Manor which was an investor-owned rest home or facility. As of that date the defendant hospital assimilated Washington Manor as a part of its own institution as a public general hospital, and that included the building, appurtenances and the employees at the then existing wage scale of the hospital. Thereafter it converted the nursing home institution into what is now a part of the defendant Washington Hospital and referred to as the Extended Care Facility (ECF). This facility consists of a three-story building of 92 beds, and is now used primarily for patients who no longer require hospital care but remain there until they are ready to go home.

 The functional processes of conducting the general hospital is a more or less complex but systematically managed business organization headed by corporate officials. As relates to the medical functioning of the hospital, responsibility at the top is with medical doctors. A nursing procedural committee includes the head and staff nurses, supervisors, technicians, orderlies, nurses aides and secretaries who make changes when improvements in conditions, medicines and patient care and the like are required. Ancillary committees also work with them. However, it is the staff doctors who approve the procedural committee's actions. Thus it is that management of the medical administration of the hospital is in the hands of professionals and those who have acquired expertise under the overall supervision of the professionals. At the top of the list are the doctors. Then come the registered nurses and some practical nurses. After these the operatives are the technicians, followed by the orderlies, who are in effect special assistants to the doctors. These are followed by the nurses aides.

 For our purposes here we accept the qualifications and virtues of both the doctors, the registered and practical nurses and the technicians. Our inquiry relates to the similarities and differentials of the qualifications and virtues of the orderlies and the nurses aides. We observe first of all that the hospital retains 25-27 orderlies and 195-205 nurses aides. The enlistment, interviewing, consultations and eventual selection of orderlies and nurses aides, together with secretaries, is subject to the approval of certain committees and Mrs. Alice Jane Roche, Ancillary Supervisor. Mrs. Alice Jane Roche has been employed by Washington Hospital since 1957 as a registered nurse or supervisor. Since 1970, she has held the position of Ancillary Supervisor, whose duties are to interview and hire aides, orderlies and secretaries for the Department of Nursing. She also confers with the instructors, helps relieve other supervisors on their days off throughout the hospital and is concerned with the training manuals. In addition, she schedules and assigns aides and secretaries and helps James Hargrove in his weekly scheduling of the orderlies.

 The instruction and training of the orderlies takes place under James Hargrove, Chief Orderly for the past fourteen years, and an employee of the hospital for twenty-nine years, and of Dr. John Pirris, the Urologist and Chief of Surgery, and Dr. Glenn D. Hisrich, Orthopedic Surgeon, and Dr. D. T. Corwin, Orthopedic Surgeon, and additionally two registered nurses. These inculcate in the orderlies certain specialized skills, which otherwise would be required to be done either by the registered nurses or the doctors, themselves.

 The highest skills which are taught the orderlies *fn3" and in which the orderlies are required to achieve the topmost expert training are procedures in the cystoscopy *fn4" room, catheterization, *fn5" bladder decompression, *fn6" and surgical preparation (surgical prep). *fn7" Both cystoscopy and catheterization are learned under the supervision of the urologist and the chief orderly, Hargrove. While they learn to construct, maintain and adjust the various kinds of traction devices under the direction of Hargrove, such activities with the patient are under the inspection and approval of the orthopedist, *fn8" who himself, places the patient into the device. The orthopedist is also responsible for and supervises their teaching, instruction, training and eventual functioning of bivalving or removing casts. *fn9" Orderlies crack oxygen tanks with full knowledge of what must be done and of the dangers involved in handling the oxygen, under the supervision of the inhalation therapists. While requiring a less amount of skill, Group 3 orderlies are required also to scrub for isolation for the purpose of cleaning up the linen and garbage outside the room.

 While at Washington Hospital, cystoscopies, catheterizations and surgical preparations may be done by registered nurses on both males and females, these functions are ordinarily performed by registered nurses or technicians on females and on males by the orderlies. Group 3 orderlies are required to expend 75 to 80 percent of their time doing these various skilled procedures.

 Additionally, the orderlies may provide special care or treatment to male patients as they are assigned to nursing units. They are given the responsibility for patients in all areas of the hospital. These consist of taking rectal temperatures on male patients, cleansing patients and assisting the registered nurses. While these specialized functions require that the orderly or registered nurse, who would have to do it otherwise, are invested by instruction and training with the skills for performing these specialties, orderlies are at times required to perform some few duties as are performed by nurses aides.

 In providing special care or treatment to male patients as they are assigned to nursing units, the orderlies are given responsibility for 60 to 200 patients in the overall areas of the hospital. They are also required to perform the less glorified function of mopping floors in the emergency room and operating room as necessary.

 The hospital employs a number of male and female orderlies and classed in Group 2, whose sole function is to transport patients to and from the X-ray and physical therapy departments and who, because of their limited function, are not directly a part of this case.

 As presently set up, next in line for the necessary operation of the hospital is the less glamorous group designated as the Group 2 nurses aides. These are those who are in reality what the name signifies aides to nurses. At Washington Hospital they are taught limited skills by and under the immediate direction and supervision of registered nurses. These consist of the basic procedures of giving baths, making beds, taking temperatures, pulses and respirations, cleaning patients' rooms after discharge. They do not catheterize patients but are shown films and demonstrations to give them some idea of what is happening to a patient. They are taught for two weeks in a classroom and two weeks on the hospital floor. *fn10" After that they are assigned to a nursing unit under the guidance of the head nurse of that unit.

 While all nurses aides are given general information relating to hospital functioning in the treatment of ailing persons, they are not taught the skills which are taught the orderlies, nor given specific training by special teachers over a period of not less than six months until approved and checked out.

 On occasion during their service, they will be tendered the opportunity to attend lectures or conferences relating to medically oriented practices by operatives in the hospital. These, however, are not required nor do all aides participate.

 Nurses aides perform simple nursing procedures which do not require the necessary skill of the doctor, the registered nurse or the orderly. They may give enemas, assist patients in bathing procedures, remove soiled bed linen, take temperatures, pulses and respiration, maintain cleanliness of utility areas and perform other duties as assigned by authorized personnel. They are required to be ready to apply cardiopulmonary resuscitation if a patient could have a heart attack. *fn11" In main part, however, nurses aides are charged with the duty of more menial functions, such as keeping beds and wheelchairs clean, procuring and distributing clean linen, passing trays and water, delivering food and beverages, doing body rubs, and the like. Also unlike orderlies who are entrusted with independent week-long, overall hospital assignments, nurses aides receive daily specific assignments confined to the floor area under the direction and supervision of the head nurse on the floor.

 Next in line for operative hospital functions, since no evidence was presented in that connection, except references here and there throughout the hearing of the case, we may basically speculate that there are technicians, those performing janitorial, laundry, building maintenance, repair, landscaping and other such functions. But since we are not concerned with any of these, they are mentioned only for the purpose of showing the employee structure of the hospital and their functions, with the possibility that these may throw light on the classes and characters of employees, as all of these may present comparisons or contrasts between nurses aides and orderlies.

 Into the category of operatives, I fit the name of Alice Jane Roche, Ancillary Supervisor. She is involved in a series of complex duties of selecting, interrogating, hiring and indirect supervising of nurses aides, as well as supervising the operatives generally. Similar to Mrs. Roche, as an operative of the hospital, is James Hargrove. He is the head orderly, and as I said before, with Dr. Pirris, not only inculcates certain urological *fn12" knowledge in the orderlies, and orthopedic *fn13" knowledge with Dr. Glenn D. Hisrich and Dr. D. T. Corwin, but he applies the necessary training and experience skills over a period of six months or more so as to provide this class of operatives with the medical skills necessary in the performance of their specialized functions in aiding the doctors, or partially substituting in the case of males for registered nurses.

 The Congressional purpose to equalize pay between male and female employees in equal categories with equal skills and equal responsibilities is judicially obligatory. But Congress never indicated, nor intended, that employment skills and responsibilities be leveled between males and females for the sake of equalizing their pays.

 The plaintiff strives to build a case of inequality against the defendant in its hiring practices of nurses aides and orderlies on the allegations that they have equality of skill, effort, responsibility and working conditions with tinges of testimony in the case to produce an element of sex prejudice in the hiring, training and retention of these two classes.

 Prior to the acquisition by Washington Hospital in 1970, the separate independent Extended Care Facility had been known as Washington Manor and was mostly a nursing home for the elderly. It retained only registered nurses and nurses aides, but in the 1960's it suffered a shortage of registered nurses and sought help to fill the gap. It then reduced the registered nurses requirements to two years and created a new class of thirty of their nurses aides whom they entitled "Advanced Nurses Aides" and gave them a $ 10.00 raise. It then attempted to have the registered nurses on duty give them additional knowledge and training over a two-week period. It thus began to press the advanced nurses aides into more critical functions which up to then were done exclusively by the professional registered nurses. The nurses aides were created on a short order basis and shown, among the registered nurses functions, catheterization but not under the doctor's supervision. So these advanced nurses aides performed some services of registered nurses, but not as substitutes for the doctor's functions as in the case of the orderlies who functioned as aides to the doctors at Washington Hospital.

 The program was abolished sometime in 1969 or 1970 but the pay of the advanced nurses aides was not reduced. When Manor Hospital was taken over by Washington Hospital in 1970, the advanced nurses aides who continued to do some of these functions which they had done at Washington Manor were instructed that they would no longer be permitted to perform any special duties to aid the nurses, which were the functions of the registered nurses and orderlies. However, several continued on occasion to perform without authority at Washington Hospital, but this was done only on a few occasions and by only a few of the former advanced nurses aides.

 What the plaintiff is attempting to do now is (1) to compare Manor Hospital permissibilities, prior to 1969-1970, with Washington Hospital's functioning after it took over Manor Hospital in 1970; (2) to compare "advanced nurses aides" at Manor Hospital prior to its takeover by Washington Hospital in 1970 with the Washington Hospital orderlies; (3) to project the 1960's Manor Hospital inadequately trained advanced nurses aides' functions into an equality with the critical performance and results produced by the expertly trained orderlies at Washington Hospital, after its takeover of Manor Hospital in 1970; and (4) to impute functions, skills, efforts and responsibilities of 195-205 nurses aides in Washington Hospital with the uncorroborated self-professed claims of skills and accomplishments of a few advanced nurses aides at Manor Hospital in the 1960's.

 Because of the registered nurse shortage, Manor Hospital attempted in the 1960's to create a supply of amateur registered nurses speedily by sidestepping the Pennsylvania Statute known as "The Pennsylvania Nursing Law", 63 Purdon's § 211 et seq. *fn15" The statute in § 216 provides, amongst other things, that before one may be licensed as a professional or registered nurse, as titled by law he or she "has graduated from a school of nursing which gives at least a two years' course of instruction, or has received instruction in different schools of nursing and in other approved agencies with which such . . . two years' course of instruction and has then graduated . . . The course of instruction shall include, (1) principle of nursing based on biological, physical and social sciences; (2) responsible supervision of patient involving skill in observation of symptoms and reactions and the accurate recording of the facts and carrying out of treatments and medication prescribed by a licensed physician; and (3) the application of such nursing procedures as involve understanding of cause and effect in order to safeguard life and health of a patient and others."

 Additionally, such registered nurses after passing the necessary examinations must biennially reapply for automatic renewal after paying a fee to the Commonwealth of Pennsylvania. The statute does not prohibit "auxiliary services rendered by persons carrying out duties necessary for the support of nursing service, including those duties which involve minor nursing services for patients, performed in hospitals or elsewhere under the direction of licensed ...


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