Orr v. Frank R. MacNeill & Son, Inc.
| Decision Date | 10 April 1975 |
| Docket Number | No. 73--3063,73--3063 |
| Citation | 511 F.2d 166 |
| Parties | 10 Fair Empl.Prac.Cas. 697, 9 Empl. Prac. Dec. P 10,057 Elaine M. ORR, Plaintiff-Appellee, v. FRANK R. MacNEILL & SON INC., Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Christian D. Searcy, Alan G. Greer, Ray H. Pearson, Miami, Fla., for defendant-appellant.
Robert W. Hervey, Coral Gables, Fla., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before JONES, THORNBERRY and COLEMAN, Circuit Judges.
In a trial before the court without a jury, Elaine M. Orr recovered judgment against Frank R. MacNeill & Son, Inc., in an action for damages from sex discrimination in compensation as an employee. It has appealed.
The appellant is a rather large insurance agency in Miami, Florida. In the findings and conclusions of the District Court it is stated that:
Notwithstanding Mrs. Orr's claim that the senior MacNeill said that he was 'running the show,' the events demonstrate that Malcolm MacNeill was the operating head of the agency with respect to the fixing of Mrs. Orr's compensation.
The appellee, Elaine M. Orr, went to work for the agency in 1952, it then had four employees. At the end of 1970, the critical time in this controversy, there were over forty employees. In and after 1967 the organization consisted of four departments, Fire Insurance, Casualty Insurance, Claims and Accounting.
John F. Bruns, the head of the Fire Insurance Department, was originally employed by MacNeill as a Special Agent or Field Representative. He continued in that capacity after becoming a Vice President and Manager of the Fire Insurance Department. In addition to his General Supervisory activities in the Fire Insurance Department, his duties included handling the underwriting of the Fire Insurance Department and approving or disapproving fire risks. His primary responsibility and activity was the production of business. Bruns contacted agents, collected overdue accounts, and sought to develop new business for the agency. Upon one or more occasions Bruns established commission arrangements with a company represented by the agency. Malcolm MacNeill testified that this 'takes a lot of savvy.'
The Casualty Insurance Department was in charge of James Moore. He was responsible for underwriting the Casualty Insurance business which was acceptable to the company. This responsibility specifically involved reviewing policies written by agents or instructing someone in the department to underwrite acceptable business. When an agent had a risk which he thought might not be acceptable to the company, the agent and Moore would discuss it, and Moore would decide whether or not to accept the risk. His job, as in the case of Bruns, required decision making and the exercise of discretion.
The Claims Department was handled through a separate corporation which was a wholly owned subsidiary of Frank R. MacNeill & Son, Inc. It was in charge of Thomas B. Rogan. He was responsible for assigning all claims work which came into the office, for adjusting and settling claims, and for supervising, hiring, firing, and training approximately ten professional adjusters and ten clerical workers. Rogan had unlimited draft authority with several insurance and casualty companies represented by the agency. He issued loss drafts upon determining that claims should be paid. He assisted in the development of new business. His job, like those of Bruns and Moore, required the making of decisions and the exercise of discretion.
Elaine M. Orr was head of the Accounting Department. She kept the financial and other records, she and others signed checks, she purchased supplies and supervised the maintenance of the building which housed the agency. She was sometimes consulted by those in other departments but usually with respect to accounting matters.
The salaries paid to the four department heads for the years 1966 through 1970, as found by the District Court, were as follows:
As of FIRE CASUALTY CLAIMS ACCOUNTING
April BRUNS MOORE ROGAN ORR
1966 $10,400.00 $ 8,996.00 $ 9,100.00 $10,400.00
1967 11,310.00 10,010.00 10,010.00 11,700.00
1968 15,002.00 10,816.00 14,001.00 12,012.00
1969 15,522.00 12,012.00 15,600.00 13,000.00
1970 18,018.00 14,040.00 18,018.00 14,040.00
For the years 1969 through 1971 bonuses were paid as follows:
For the
year BRUNS MOORE ROGAN ORR
1969 $ 1,000.00 500.00 500.00 500.00
1970 3,500.00 3,500.00 3,500.00 3,500.00
1971 3,500.00 2,500.00 3,500.00 1,500.00
Mrs. Orr has informed this court that the correct salary figures for 1967 are Bruns $15,002, Rogan $14,001 and Orr $12,012. It does not appear that any effort was made to have the court's findings corrected.
It was the testimony of Mrs. Orr, credited by the District Court although in conflict with the testimony of the elder MacNeill, that she had several discussions with him about her compensation. In 1967 she complained to him that Bruns had gone ahead of her in salary. He told her, so she said, that his son would not approve of her making as much as a man but he would try to work it out. In January 1969 she complained again to the elder MacNeill. He again advised her, so she said, that Malcolm would not approve of her making as much as a man, and he again assured her that he would try to work it out. She quoted him as telling her that she was worth as much as the men. She was aware that Malcolm MacNeill had fixed Bruns' salary.
It might seem that Mrs. Orr could have decided at some time before 1970 that perhaps the elder MacNeill was not 'running the show,' or that part of it which involved the fixing of salaries of department heads and that possibly, in this area, Malcolm MacNeill was 'in charge of the operations of the company.' Malcolm MacNeill testified that she did not discuss her salary with him. She testified that she did not discuss salary with Malcolm MacNeill. On further questioning she said she thought she might have talked with him for a few minutes in 1970. Further examination elicited the response 'I asked him why I couldn't--you know, why they wouldn't approve it, and he said that I didn't have any business except in the Accounting Department and that these other duties and so forth that I handled had nothing to do with it, and he just wasn't going to sign it.' It might seem strange that Mrs. Orr could remember so well all that the senior MacNeill said to her on the occasions beginning in 1967 but find it so difficult to recall the conversation with the junior MacNeill. But, of course, this Court accepts the District Court's determination on credibility.
The District Court concluded that recovery by reason of differences in bonus payments should be denied because the differentiation was based on reasons other than sex.
The District Court noted that, following Mrs. Orr's resignation, the agency paid her successor almost the same salary as she had been receiving although he was less experienced. The District Court stated that this 'underlines the discrimination exercised against' Mrs. Orr. This deduction does not follow. If her successor's work was done as well, and the contrary is neither found nor suggested by the District Court, it might be said that he should have been paid as well, and this we think follows whether he was more or less experienced than his predecessor or of the same or different sex.
The District Court, it seems, relied upon the testimony of Messrs. Bruns and Rogan, witnesses for Mrs. Orr, as the basis for the finding that 'an insurance agency operation of this size depends with success upon the efficient functioning of all of its departments.' Bruns testified as to the differences between the production of business and the keeping of records and stressed the job differences. He expressed the opinion that they were of equal importance. Rogan also pointed out that the functions of the Accounting and Claims Departments were not similar, that the duties were different, and not comparable and that there was no parallel. In response to a leading question Rogan gave an affirmative answer to a query as to whether one function was just as...
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