Brennan v. South Davis Community Hosp., 75-1181

• Decision Date: 27 July 1976
• Docket Number: No. 75-1181,75-1181
• Citation: 538 F.2d 859
• Parties: 13 Fair Empl.Prac.Cas. 258, 22 Wage & Hour Cas. (BN 1153, 12 Empl. Prac. Dec. P 11,094, 79 Lab.Cas. P 33,402 Peter J. BRENNAN, Secretary of Labor, United States Department of Labor, Plaintiff-Appellee, v. SOUTH DAVIS COMMUNITY HOSPITAL, a corporation, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 859

538 F.2d 859

13 Fair Empl.Prac.Cas. 258,

22 Wage & Hour Cas. (BN 1153,

12 Empl. Prac. Dec. P 11,094, 79 Lab.Cas. P 33,402

Peter J. BRENNAN, Secretary of Labor, United States

Department of Labor, Plaintiff-Appellee, v. SOUTH DAVIS COMMUNITY HOSPITAL, a corporation, Defendant-Appellant.

No. 75-1181.

United States Court of Appeals,

Tenth Circuit.

Argued and Submitted April 14, 1976.

Decided July 27, 1976.

George K. Fadel, Bountiful, Utah, for defendant-appellant.

Carin Ann Clauss, Associate Sol., Washington, D. C. (William J. Kilberg, Sol. of Labor; Donald S. Shire and Ann Galvani, U. S. Dept. of Labor, Washington, D. C., on the brief), for plaintiff-appellee.

Before HILL, SETH and DOYLE, Circuit Judges.

HILL, Circuit Judge.

The Secretary of Labor instituted this action against appellant, South Davis Community Hospital, for various alleged violations of the Fair Labor Standards Act (29 U.S.C. § 201 et seq.). The Secretary claimed, inter alia, that appellant compensated female aides less than male orderlies and female maids less than male janitors for work which was equivalent within the meaning of 29 U.S.C. § 206(d)(1). ¹ Another Following a trial to the court, the district judge determined appellant had violated the Equal Pay Act (§ 206(d)(1)) with respect to wages paid orderlies and aides and maids and janitors. The court also held the medical technologist was within the "professional capacity" exception of § 213 ³ and appellant was not required to pay § 207 wages to him for his overtime. The court determined the X-ray technician was not within the "professional capacity" exception and appellant had violated § 207 in not paying the overtime rate to him. A judgment for back wages in the amount of $60,214.74 was awarded the Secretary for ultimate distribution to the affected employees.

claim was appellant had violated 29 U.S.C. § 207 ² when appellant had not paid an X-ray technologist and a medical technologist the statutorily prescribed rate for time worked in excess of forty hours a week.

ORDERLIES AND AIDES

Appellant argues the work of orderlies and aides is not equal within the meaning of § 206(d)(1) and the Secretary did not sustain his burden of proving that equality. Hodgson v. Golden Isles Convalescent Homes, Inc.,468 F.2d 1256 (5th Cir. 1972). To be within § 206(d)(1), the wages must be paid ". . . for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions . . . ." To sustain a § 207(d)(1) charge, courts only ". . . require the Secretary to prove substantial equality of skill, effort, and responsibility as the jobs actually performed," (emphasis added) and do not allow employers to escape the Act's reach by drawing overly fine distinctions in the tasks at issue. Brennan v. Prince William Hospital Corp., 503 F.2d 282 (4th Cir. 1974), cert. den'd, 420 U.S. 972, 95 S.Ct. 1392, 43 L.Ed.2d 65 (1975).

This is not the first Equal Pay Act case involving orderlies and aides. See, e. g., Brennan v. Owensboro-Daviess County Hospital, 523 F.2d 1013 (6th Cir. 1975); Brennan v. Prince William Hospital Corp., supra ; Hodgson v. Brookhaven General Hospital, 470 F.2d 729 (5th Cir. 1972); Hodgson v. Golden Isles Convalescent Homes, Inc., supra ; Hodgson v. Brookhaven General Hospital, 436 F.2d 719 (5th Cir. 1970); Hodgson v. Maison Miramon, Inc.,344 F.Supp. 843 (E.D.La.1972); Hodgson v. Good Shepherd Hospital, 327 F.Supp. 143 (E.D.Tex.1971). However, a reading of these cases indicates that industry-wide standards have not evolved in this particular area because of the manifold differences in employment practices. Brennan v. Prince William Hospital Corp., supra. Case-by-case determinations are required.

In making its inequality argument, appellant uses the "extra tasks" approach, arguing the orderlies were required to perform additional tasks requiring skill, effort and responsibility which the aides did not perform. The tasks relied upon are (1) weighing bedridden patients by use of bed scales, (2) catheterizing male patients, (3) assisting in the emergency room and intensive care unit, (4) setting up traction devices, (5) cardio-pulmonary resuscitation, and (6) using the autoclave and transporting heavy items including oxygen tanks.

In evaluating the effect of these extra tasks on the job equality determination, we apply several established principles.

Higher pay is not related to extra duties when . . .

Female employees also perform extra duties of equal skill, effort, and responsibility. (Citation omitted.)

The supposed extra duties do not in fact exist. (Citation omitted.)

The extra task consumes a minimal amount of time and is of peripheral importance. (Citations omitted.)

Brennan v. Prince William Hospital Corp., supra.

(J)obs do not entail equal effort, even though they entail most of the same routine duties, if the more highly paid job involves additional tasks which (1) require extra effort, (2) consume a significant amount of the time of all those whose pay differentials are to be justified in terms of them, and (3) are of an economic value commensurate with the pay differential.

Hodgson v. Brookhaven General Hospital, 436 F.2d 719 (5th Cir. 1970). Our task is to decide if the district court's determination that the aides and orderlies performed equal work within the meaning of § 206(d)(1) is supported by substantial evidence.

Much space in the briefs and much time in argument were spent on the catheterization function. Catheterization was determined by the trial court to be a task requiring some skill. The evidence indicated that orderlies performed catheterizations of male patients and physicians or registered nurses did the catheterization of female patients. Catheterizations by orderlies of male patients has been one function which courts have relied upon in allowing a pay differential between orderlies and aides. Hodgson v. Golden Isles Convalescent Homes, Inc., supra, Hodgson v. Good Shepherd Hospital, supra. The hospital administrator, in the instant case, testified an average of three to five catheterizations were performed each day; as the patient load was about 50% male and 50% female, two or three catheterizations were performed by orderlies daily. This procedure takes approximately 5 to 15 minutes per patient. Some time was spent in caring for the catheters already in place. In Brennan v. Prince William Hospital Corp., supra, the following guide was provided concerning catheterization as an "extra task":

Like any other extra duty, catheterization must be evaluated as part of the entire job. . . . (W)hen jobs (are) substantially equal, a minimal amount of extra skill, effort, or responsibility cannot justify wage differentials. Infrequent performance of catheterizations, unaccompanied by other extra skills and responsibilities, has never been held to support a pay differential between aides and orderlies.

Because of the small number of catheterizations performed and the little time expended, we agree with the trial court that ". . . the catheterizations are not a sufficiently significant part of the orderlies' work to be a determinative difference. . . ."

We have thoroughly reviewed the record and considered appellant's numerous contentions concerning the other "extra tasks." Several of these "extra tasks" had been done by aides although not on as regular a basis as the orderlies performed the tasks. Aides had assisted orderlies with many of the tasks on various occasions. Concerning the bedscales weighing, the trial court determined that "in both amount of work and amount of time, the additional lifting done by orderlies was minimal." The evidence supported that determination. Generally, the tasks called "extra duties" by appellant did not require greater skill, effort or responsibility in any significant amount or degree than the duties which aides were handling at the same time. Differences in the kind of effort expended but not significant in amount or degree will not support a wage differential. 29 C.F.R. § 127.

Although consideration of the alleged "extra duties" in the aggregate presents a closer question, we cannot say the trial court erred in determining the jobs were substantially equal. In the instant case, there was no real indication of more free time for aides than for orderlies. The trial court also determined

The orderlies employed by defendant did not have any notable additional responsibilities. One case specially contrasted the responsibility of orderlies to cover three floors with the one-floor duties of maids. See Hodgson v. Good Shepherd Hospital, supra. Another case, which held for the hospital, gave prominence to the fact that the orderlies were assigned the same number of patients as the aides, plus given additional emergency room and other duties. See Hodgson v. Brookhaven General Hospital, supra. But there are no such similar extra responsibilities here to vindicate the defendant.

Our conclusion is that both aides and orderlies were primarily involved in basic patient care and that any differences in duties did not involve significantly greater amounts of skill, effort or responsibility. Thus, the trial court properly determined the Equal Pay Act had been violated.

MAIDS AND JANITORS

Appellant employed nine maids (eight full-time and one relief) and three janitors (one full-time day, one relief day, and one night). The janitors received more pay per hour than did the maids. Appellant contends the janitors and maids were not doing equal work because the janitors were required to perform tasks requiring more effort. The janitorial duties which appellant relies on for its extra effort argument are (1) operating a 24 Convertomatic floor stripping machine, (2) filling a pop machine with two to six cases daily, (3) carrying garbage cans to an outside receptacle, (4) using a ladder, and (5) removing snow.

Again we need not find precise identity of...