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October 24, 1988


The opinion of the court was delivered by: ROSENBERG


 This matter is now before this court as a sequel to an Order of Court dated October 20, 1987, on the plaintiff's motion for liquidated damages. This court has jurisdiction pursuant to 28 U.S.C. Sections 451, 1337, 1343 and 1345. This action is authorized pursuant to Sections 16(c) and 17, 29 U.S.C. Sections 216(c) and 217 of the Fair Labor Standards Act of 1938, as amended, 29 U.S. Section 201 et seq., (FLSA), to enforce the equal pay requirements in Section 6(d) of the FLSA, 29 U.S.C. Section 206(d). This action is also authorized pursuant to Section 706(f) (1) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Section 2000 e et seq. (1978 ed.), (Title VII).

 This action was brought by the Equal Employment Opportunity Commission (EEOC) against the Altmeyer's Home Stores, Inc. (Altmeyers), a chain store operator, charging it with the continuous engagement in a discriminatory employment policy and practice based upon sex. It was alleged by the EEOC that the said unlawful employment policy and practice consisted in paying female managers and assistant managers a lower salary than male managers and assistant managers because of their sex. The defendant denied all the charges and asserted that all employees, male and female alike, were and continue to be equally paid in accordance with a system by which employees were hired and promoted in all its stores irrespective of their sex.

 This court tried the instant case in June, 1987. In an opinion dated October 20, 1987, this court found that Altmeyers intentionally violated the Equal Pay Act and Title VII of the Civil Rights Act of 1964 by paying lesser wages to a woman than to a man for a job that required equal skill, effort, responsibility and similar working conditions. Accordingly, this court entered an order awarding Patti Shirey, the manager in one of Altmeyer's larger stores, an amount of $ 12,402.16, with interest from the date of the judgment. 672 F. Supp. 201.

 The plaintiff, EEOC, subsequently filed a motion to amend findings and order pursuant to Rule 52(b) of the Federal Rules of Civil Procedure. The plaintiff moved this court to amend its award of $ 12,402.16 to Patty Shirey to include an equal amount in liquidated damages and post judgment interest in accordance with provisions in the FLSA, 29 U.S.C. ยง 216(b), and based on this court's finding that the unequal pay was intentional. The plaintiff also moved this court to specify in its order that the defendant equalize Shirey's pay. The defendant opposed this motion and a hearing was held on this matter on December 17, 1987.

 In opposing an award of liquidated damages, counsel for the defense urges us to find that the defendant Altmeyers had presented substantial business reasons for hiring Shirey at a lower rate of pay than was earned by Shifflet because of the decrease in size of the Monroeville store: "Specifically, at the time that Patti Shirey assumed management of the Monroeville establishment, the size of the store had dropped considerably and her salary was set commensurate with the lesser responsibility of managing a smaller establishment" (Defense brief 11/9/87, p. 4) (Emphasis added). In light of evidence presented to this court, this assertion is clearly erroneous and misleading.

 Patti Shirey was employed as manager of the Monroeville store from 7/1/84 to 2/24/86 (N.T. 348, P.E. 28). The Monroeville store did not decrease in size until August, 1985 (Joint Stipulation of Facts, p. 2). Thus, Shirey managed the larger Monroeville store for over a year prior to its reduction in size. Shirey spent a total of 20 months at the Monroeville store, which means that she spent about 65% of her total tenure at Monroeville managing the store at the same size as it was when managed by Shifflet.

 Defense counsel also urges this court to believe that at the time Shirey's salary as manager of the Monroeville store was set, defendant Altmeyer had relied on the advice of Hyman Richman regarding compliance with labor laws: "Mr. Richman testified that he found no violations of the Federal Labor Standards Act at Altmeyers and so advised the defendants. As a former Area Director of the Wages and Hours Division of the Department of Labor (N.T. 758), Mr. Richman was the type of consultant upon whom an employer should be able to rely for advice without fear of imposition of punitive damages" (Defense brief 11/9/87, p. 3-4). This court has carefully reviewed all of Mr. Richman's testimony regarding any pretrial opinions he may have formed or advice he may have given to defendant Altmeyer regarding employee salaries (N.T. 762-764, 780-782).

 Several factors must be considered in examining Mr. Richman's testimony to determine the amount of first-hand knowledge he had of the employment and pay practices at Altmeyer and how active a role he played while advising Altmeyer on matters relating to sex discrimination. He testified regarding opinions he had formed as to whether or not the Equal Pay Act was violated in several employee situations. It is evident from his testimony that his opinions were based, not on pretrial knowledge, but rather on the testimony he heard while in the courtroom (N.T. 789, 790, 793, 795, 796, 797).

 When asked if he had formed an opinion as to the commitment of violations of the Equal Pay Act between Patti Shirey and Sherman Shifflet, Richman replied " for the same reason, I feel the jobs are not comparable" (N.T. 792) (emphasis added). Apparently, the reason referred to by Richman is the one he gave immediately preceeding when testifying about a comparison between two other managers, Terry Plotner and Ronald Hall. The reason he gave for no violation in the Plotner-Hall comparison was "I feel there is no violation in that the basis of comparison was invalid" (N.T. 791). Later in cross-examination, Richman again testified that the jobs performed by Shifflet and Shirey were not comparable. When asked what the difference in the jobs were, he testified "well, part of the jobs are the people and their experience, and also the matter of the size of the store. There was a considerable diminution in the size of the store than the experience that was brought to the job itself" (N.T. 799). (Emphasis added.) From this statement, it is clear that at least part of Richman's opinion was based on incorrect information. Shirey managed the Monroeville store for more than a year before it was reduced in size.

 Additionally, Richman completed his first analysis of the Altmeyer's stores in 1983 (N.T. 781). He then served as a labor consultant in the Altmeyer's stores on an "as needed basis, Mrs. Altmeyer will call me if there are any doubts or any questions" (N.T. 785). Richman testified that since 1983 he continued to monitor the employment and pay practices at Altmeyer's and saw no violation of the Equal Pay Act (N.T. 785-786). Later in cross-examination, Richman testified that he never advised Mrs. Altmeyer that there was no violation of the Equal Pay Act with respect to Kimicata and Wineman. He stated "I did not advise Mrs. Altmeyer that there was no such violation. These people were hired subsequent to my early advice as to methods. I encountered the end result here, and am reacting to what I heard here in the courtroom" (N.T. 797). It is evident from this testimony and from that preceding that Richman did not provide ongoing, detailed advice to Mrs. Altmeyer regarding continued compliance with the Equal Pay Act. Testimony following this bolsters, in the mind of this court, the idea that Richman was only peripherally involved. Richman was asked if, while advising Altmeyers, he looked at the records of managers. He testified "I was discussing practices in general" (N.T. 797). Richman could recall discussing the salary of only one person, someone Altmeyer was thinking about hiring in the $ 20,000 range. Richman testified "She (Altmeyer) talked about someone whom she was hiring in the 20's -- and I guess it had to be this person. That's the only person I can recall. . . ." (N.T. 797). (Person not identified; emphasis added.)

 Based on all of this information, this court is convinced that the consultative duties of Richman were at an extremely superficial level. In the case of Shirey and Shifflet, he based part of his opinion on incorrect information (N.T. 799). He apparently did not look at the records of managers, discussed employment practices only in general, and could recall only one instance in discussing the salary of a potential employee. He based his testimony on his observations in the courtroom, but not from observations of Shirey or Shifflet in the workplace and not from his extensive knowledge of Altmeyers which he would have gained had he closely monitored the hiring and pay practices of Altmeyers. There was no evidence as to how often Richman was consulted, what records, if any, he used, what specific factors he used in his various determinations, or what method he used to compare these unknown factors.

 Altmeyer testified that she did not willfully violate the Equal Pay Act (H.Tr. 23) and that she used Richman as a consultant (N.T. 261). Altmeyer testified that she would consult Richman if she had a question relating to personnel, but that he did not develop policies or procedures in Altmeyer's Personnel Manual (N.T. 262). Mrs. Altmeyer provided no testimony that she either consulted Richman or relied on his opinion regarding the setting of the wages of Patti Shirey. This court finds the evidence insufficient to conclude that Altmeyer relied on the advice of Hyman Richman regarding compliance with labor laws in setting Shirey's salary. This ...

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