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Brobst v. Columbus Services International

May 2, 1985

ELEANOR A. BROBST, PATRICIA M. HEINEY, MARIE M. FRITZ, SHARON M. MIDDLECAMP, LUELLA M. HAMM, VERNA MILLWARD, ROBERT LEE LITTLE, ROBERT N. BUCKWALTER, MARION E. STETTLER, CLAUDIA WOTTA, VERNA S. UNDERCUFFELER, ALICE S. MIESSNER, DENNIS G. COOK, JEAN R. BERGER AND ELIZABETH S. LEVAN, JEAN R. BERGER, EXECUTRIX OF THE ESTATE OF MARIE M. FRITZ, MADELINE DORNEY, CARMELLA HAWK, DONALD LAKOVITS, ELAINE SEISLOVE, CAROL SNYDER, BERNARD POLIT, SCOTT REHRIG, AND VICTOR BORTZ
v.
COLUMBUS SERVICES INTERNATIONAL, A CORPORATION, AND WALTER R. MORGAN, INDIVIDUALLY AND AS OFFICER OF DEFENDANT, ELEANOR A BROBST, SHARON M. MIDDLECAMP, ROBERT N. BUCKWALTER, MARIAN E. STETTLER, CLAUDIA WOTTA, VERNA S. UNDERCUFFELER, ALICE S. MEISSNER, DENNIS G. COOK, JEAN R. BERGER, JEAN R. BERGER, EXECUTRIX OF THE ESTATE OF MARIE M. FRITZ, MADELINE DORNEY, CARMELLA HAWK, DONALD LAKOVITS, ELAINE SEISLOVE, CAROL SNYDER, BERNARD POLIT AND SCOTT REHRIG, APPELLANTS



On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil No. 82-2283).

Garth and Sloviter, Circuit Judges, and Barry, District Judge*fn*

Author: Sloviter

Opinion OF THE COURT

SLOVITER, Circuit Judge

I.

Congress enacted The Equal Pay Act in 1963 "to remedy what was perceived to be a serious and endemic problem of employment discrimination in private industry - the fact that the wage structure of 'many segments of American industry has been based on an ancient but outmoded belief that a man, because of his role in society, should be paid more than a woman even though his duties are the same.'" Corning Glass Works v. Brennan, 417 U.S. 188, 195, 94 S. Ct. 2223, 41 L. Ed. 2d 1 (1974) (quoting S.Rep. No. 176, 88th Cong., 1st Sess. 1 (1963)). The Act prohibits employers from discriminating on the basis of sex by paying unequal wages "for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions," unless justified by one of the four statutory exceptions.*fn1 The Act also prohibits an employer from reducing the wage rate of any employee in order to comply with the Act.

Much litigation under the Act has involved custodial services, apparently because men in such jobs have frequently been classified differently than women and have been paid higher wages. See, e.g., EEOC v. Central Kansas Medical Center, 705 F.2d 1270 (10th Cir. 1983); Brennan v. South Davis Community Hospital, 538 F.2d 859 (10th Cir. 1976); Usery v. Board of Education, 462 F. Supp. 535 (D. Md. 1978); Brennan v. Board of Education, 374 F. Supp. 817 (D.N.J. 1974). The courts have been required to look beyond the job title to determine whether the jobs are substantially equal. See Central Kansas Medical Center, 705 F.2d at 1273; Shultz v. Wheaton Glass Co., 421 F.2d 259, 265-66 (3d Cir.), cert denied, 398 U.S. 905, 26 L. Ed. 2d 64, 90 S. Ct. 1696 (1970).

Plaintiffs, who are present or former custodial workers at Cedar Crest College in Allentown, Pennsylvania, allege, apparently without contradiction, that prior to July 3, 1977, the maintenance workers at the college were classified as either "laborers" or "custodians". The laborers, who were all male, earned forty cents per hour more than the custodians, who were, all but one, female. A custodian performing the work of a laborer received a premium, and thus was paid at the laborers' rate for that work. On July 3, 1977, the defendant, Columbus Services International (CSI), took over the maintenance work at Cedar Crest. According to the facts as set forth by the district court, CSI immediately reclassified all the maintenance workers as "custodians" and paid them the lower rate even when they performed the work that was, up until that time, performed by laborers. Brobst v. Columbus Services International, 582 F. Supp. 830, 832 (W.D. Pa. 1984).

Four employees filed a grievance, which resulted in an arbitrator's determination that CSI was obliged to pay the forty cents per hour premium for the time custodians spent doing laborers' work. CSI refused to comply, contending it was barred from paying such a premium under a consent decree issued in January 1977 settling other litigation, which permanently enjoined it from violating the Equal Pay Act by paying different wages to employees performing substantially equal work. CSI sought approval of its position that the arbitration award conflicted with the consent decree from the Department of Labor, which, at that time, had the responsibility for enforcing the Act. Instead, the Department of Labor responded that in order to comply with the Equal Pay Act CSI would have to raise the wage rates of all the custodians to the laborer rate.*fn2

Plaintiffs then filed suit alleging that CSI was in violation of the Equal Pay Act and of the consent decree.*fn3 As described by the district court, plaintiffs' claim under the Equal Pay Act had two components:

(1) CSI's elimination of the higher-paying, all-male laborer classification amounted to a reduction in the male wage rate to the lower predominantly female, custodial wage rate; (2) CSI's failure to pay the premium wage rate to custodians performing laborer's work, coupled with the fact that during the CSI period both male and female custodians have performed laborer's work, amounts to a reduction of the wage rate paid to the one male custodian who performed laborer's work, at the laborer's premium, during the Cedar Crest period.

Brobst v. Columbus Services International, 582 F. Supp. at 832.

In ruling on motions filed by CSI, the court (1) ruled that there was no merit in plaintiffs' claim that CSI violated its earlier consent decree with the Secretary of Labor, id. at 831 n.1; (2) granted CSI's motion in limine (on different grounds than asserted by CSI) finding "as a matter of law, that the custodian job and the laborer job did not constitute 'equal work' for purposes of the Equal Pay Act," id. at 833; and (3) granted CSI's motion for summary judgment on plaintiffs' claim regarding the premium, holding (on grounds other than those on which CSI's motion was premised) that "plaintiffs have not, and cannot, make a prima facie showing that CSI equalized male and female wage rates at a lower 'female' rate", id. at 834. We conclude that the district court's ruling on all three issues must be reversed, and the case remanded.

II.

In 1977, an Equal Pay Act action brought by the Secretary of Labor against CSI involving its employees at the Greater Pittsburgh International Airport was settled by consent decree. Usery v. Columbus Services International, No. 76-849 (W.D. Pa. Jan. 11, 1977). That decree enjoins CSI from violating the Act by discriminating:

within any establishment between employees on the basis of sex by paying wages to employees in such establishment at rates less than the rates paid to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.

(emphasis added). The decree further provides that, "The defendants shall not, contrary to Section 6(d)(1) of the Act, reduce the wage rate of any employee in order to comply with the provisions of Section 6(d)(1) of the Act."

In ruling out plaintiffs' claim that CSI violated that decree, the district court in this case stated that "[d]espite the terms of the order in Usery, that case involved CSI employees at Greater Pittsburgh International Airport, and did not concern CSI's operation at Cedar Crest College. "582 F. Supp. at 831 n.1. The court should not have so summarily dismissed plaintiffs' claim, since the decree, by its terms, applies to "any establishment". If it was intended to have limited effect, it could easily have said so. Moreover, CSI has continually taken the position that the decree applies to its operation at Cedar Crest, using precisely that argument as the basis for its ongoing refusal to comply with the arbitral award and for its application to the Secretary of labor. Although the effect of the decree may be no more than to require CSI not to violate the Equal Pay Act, plaintiffs are entitled to this extra string to their bow.

III.

It appears from the complaint that the gravamen of plaintiffs' claim lies in CSI's actions when it took over maintenance responsibilities at Cedar Crest. Paragraph 26 of the complaint states:

In violation of the Order of January 11, 1977 and in violation of 29 U.S.C. ยง 206(d)(1), Defendants illegally reduced the wages of the male employees from the higher "laborer" rate to the lower "custodial" rates, and illegally refused to equalize the wage rates of the female employees by maintaining them at the lower "custodial" rate.

Counsel advised us at oral argument that there are sill some workers, now called maintenance workers, who perform outdoor maintenance functions and who continue to receive $.40 an hour more than the custodians. The district court did not treat this case as raising any claim arising out of any present differential in wage rate between the outside maintenance workers and the indoor custodians, nor will we.

Thus, the issue is focused solely on whether CSI "reduce[d] the wage rate of any employee" in violation of the Act after it took over the duties at Cedar Crest. In order to make a viable claim under the Act arising out of the reduction of wages, plaintiffs must show that either of the two wage differentials previously maintained violated the statute. One differential was the forty cents an hour paid to the all male laborer group over that paid to the all but one female custodians. If, as plaintiffs claim, CSI consolidated much of the work previously done by laborers with the work done by custodians at the lower custodian rate, that reduction would violate the Act provided the work previously performed by the laborers and the custodians required "equal skill, effort, and responsibility," and was "performed under similar working conditions." The ...


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