728 F.2d 15 (1st Cir. 1984), 82-1777, Stathos v. Bowden

Docket Nº:82-1777.
Citation:728 F.2d 15
Party Name:Stella STATHOS, et al., Plaintiffs, Appellees, v. Russell E. BOWDEN, et al., Defendants, Appellants.
Case Date:February 22, 1984
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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728 F.2d 15 (1st Cir. 1984)

Stella STATHOS, et al., Plaintiffs, Appellees,

v.

Russell E. BOWDEN, et al., Defendants, Appellants.

No. 82-1777.

United States Court of Appeals, First Circuit

February 22, 1984

Argued Dec. 8, 1983.

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[Copyrighted Material Omitted]

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Timothy J. O'Keefe, Peabody, Mass., with whom Murphy, Ryan & O'Keefe, Peabody, Mass., and Christine A. McClave, Woburn, Mass., were on brief, for defendants, appellants.

G. Rosalyn Johnson, Lynn, Mass., with whom Kevin G. Powers and Johnson & Powers, P.C., Lynn, Mass., were on brief, for plaintiffs, appellees.

Before COFFIN and BREYER, Circuit Judges, and MALETZ, [*] Senior Judge.

BREYER, Circuit Judge.

Plaintiffs Stella Stathos and Gloria Bailey sued the Peabody Municipal Lighting Commission (a governmental body) and several of its elected Commissioners, charging discrimination on the basis of sex. Plaintiffs claimed that the defendants' actions violated both 42 U.S.C. Sec. 1983, which makes it unlawful for any person acting under color of state law to deprive "any citizen ... of any rights ... secured by the Constitution ..." and 42 U.S.C. Sec. 1985(3), which forbids "two or more persons" to "conspire ... for the purpose of depriving ... any person ... of the equal protection of the laws ...." A jury found for the plaintiffs and defendants appeal.

The record, with inferences drawn in plaintiffs' favor, Bayamon Thom McAn, Inc. v. Miranda, 409 F.2d 968, 969 (1st Cir.1969), shows essentially the following facts. For many years, Stathos worked for the Peabody Municipal Lighting Plant ("PMLP") as "principal clerk and secretary" and Bailey as "clerk typist." In 1977, PMLP's manager divided the plant into four departments: generation, electrical engineering, distribution, and business office. He drew up a chart, which reflected, more accurately than their job titles, his view of plaintiffs' actual status and duties. On the chart, Stathos appeared as head of the business office, reporting directly to the plant manager, and Bailey reported directly to Stathos. Stathos, as of 1978, was paid $15,819 per year; Bailey, $13,816. Men, paid $27,139 per year, ran each of the other three departments, while men, paid $25,201 per year, reported directly to them. The manager believed the chart's suggested equivalence of rank and duty was accurate; he recommended that the Commission raise the salaries of Stathos and Bailey, paying them what other heads and assistant heads received--an increase of about $12,000 per year for each of them.

The Commission considered the manager's recommendations in the fall of 1978. On October 12th, the Commission discussed, not the merits of the issue, but the fact that the pay proposal had "leaked" to the press. On November 28th, the Commission voted to deny the proposal; it also voted to deny Stathos and Bailey a small 5 percent pay increase; but it directed that a Commission committee study the proposal. Evidently it never undertook a formal study.

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In March 1979, the Commission again considered plaintiffs' pay. It rejected a series of compromises that PMLP's manager offered. It decided, however, to create a new "office unit" and to make Stathos the "office manager" and Bailey her "administrative assistant." It voted them pay increases that narrowed the pay gap between the first and second "office" positions and those in "generating," "engineering," and "distribution" from about $12,000 to about $9,000.

In January 1980, the Commission hired a professional management group, Olney Associates, to describe, compare, and suggest pay for 35 PMLP positions. The Olney report rated Stathos's job at "16," equal to the number two positions in the "generating" and "engineering" departments, and midway between number one (at "18") and number two (at "14") in "distribution." The report also recommended pay increases for Stathos and Bailey. The Commission adopted the report, but denied Stathos and Bailey the recommended pay increases, leaving them the only executives paid less than the report recommended.

In the summer of 1980, Bailey asked the manager to change her title because it was shortly to lose Civil Service protection. The manager agreed and persuaded the Commission to vote 4-1 in favor of such a change. When Bailey later asked the dissenting Commissioner why he had voted 'no,' he answered that he thought the "girls" were asking for too much money and should not have filed suit. He also remarked that the Commission's vote would change because he had talked to one of the other Commissioners. That evening the Commission voted 4-1 to deny the change.

In July 1981, the manager recommended raising Stathos's and Bailey's grades. The Commission kept Stathos at 16 but raised Bailey to 14. It then voted them pay increases, but because it also raised the pay of positions one and two in the other departments, it preserved the pay disparity.

The plaintiffs presented other evidence designed to show deliberate intent to discriminate on the basis of sex. Defendants, of course, presented evidence designed to show the contrary. The case was well tried in the district court. And although we consider each of defendants' arguments for error, we see no need to discuss the facts and evidence in detail.

1. Defendants argue that the district court should not have excluded six studies prepared by their statistical expert, Thomas Marx. Marx presented nine studies. The court allowed him to testify as to three. These three compared (i) percentage raises that PMLP gave plaintiffs and their male PMLP counterparts from June 1969 to June 1982 and (ii) percentage raises that PMLP gave each of these groups on account of job promotions from 1973 to 1982. The third study compared two salary relationships: (i) Stathos's salary as a percentage of other top PMLP salaries with (ii) former male PMLP office managers' salaries as a percentage of the same top PMLP salaries.

The six studies that the court rejected involved comparisons between plaintiffs' salaries and salaries in other Massachusetts municipal electric companies. They can be described most easily by designating the positions compared as follows:

Plant Manager--M

Head Office Manager--O1

Assistant Office Manager--O2

Superintendent of Electrical Distribution--E

O1 and O2 at PMLP are Stathos and Bailey.

The six studies made the following salary comparisons:

1) O1 and O2 at PMLP to male O1 and O2 at other Massachusetts municipal light plants;

2) the relationships at PMLP of O1 and O2 to E and M with the relationship elsewhere of male O1 and O 2 to E and M;

3) O1 at PMLP to female O1 elsewhere;

3) O4) the relationship at PMLP of O 1 to M with the relationship elsewhere of female O 1 to male M;

5) O1 and O2 at PMLP to O1 and O2 elsewhere;

5)

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O6) the relationship at PMLP of O 1 and O 2 to E and M with the relationships elsewhere of O 1 and O 2 to male E and M.

The district court found these six studies irrelevant. And we agree.

The two basic issues in the case were (i) did defendants discriminate and (ii) was any discrimination intentional. See Personnel Administrator v. Feeney, 442 U.S. 256, 272, 99 S.Ct. 2282, 2292, 60 L.Ed.2d 870 (1979); Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264-65, 97 S.Ct. 555, 562-63, 50 L.Ed.2d 450 (1977); Washington v. Davis, 426 U.S. 229, 238-48, 96 S.Ct. 2040, 2046-51, 48 L.Ed.2d 597 (1976). Defendants concede that the studies are not relevant to the second issue, for there is no evidence that they seriously considered salary levels or salary relationships at other plants when they set plaintiffs' salaries. The studies are also irrelevant to the first issue, for no one complains of discrimination between O1 and O2 at PMLP and salaries paid anyone at any other plant. The discrimination at issue concerns how defendants actually treated plaintiffs as holders of the O1 and O2 jobs and how they would have treated two men holding these same positions. The evidence of discrimination consisted of showing how defendants treated plaintiffs compared with how they treated men elsewhere in the company. The evidence was highly specific to the individual circumstances at PMLP and the actions that defendants took there. Evidence of what happened at other plants, if relevant at all, is so tangential to the case as tried as to be excludable as a "waste of time" under Fed.R.Evid. 403.

2. Defendants argue that the trial court erred in not answering a question that the jury sent out at some point between 4 p.m. on August 27, 1982, when it retired to deliberate, and 4:45 p.m. The question was "Is it possible to find against the Peabody Municipal Lighting Commission and not the individual Commissioners?" The judge asked the clerk to see if counsel agreed that the answer should be "yes." At 5:15, the clerk told counsel the judge would answer "yes." Court reconvened at 5:23 to send the answer to the jury. The court was then told that the jury had reached a verdict. The judge said he would receive the verdict and neither side objected.

Since defendants did not object to the court's receiving the verdict before answering the question, we review only for "plain error." See Sibbach v. Wilson & Co., 312 U.S. 1, 16, 61 S.Ct. 422, 427, 85 L.Ed. 479 (1941). And we see none. The cases cited by defendants suggest that a trial judge should seek to clear up serious confusion created by his instructions. United States v. Quintana, 508 F.2d 867 (7th Cir.1975); Powell v. United States, 347 F.2d 156 (9th Cir.1965). But here the court's instructions were initially clear. And the jury's question suggests no serious or prejudicial confusion. The jury found the individual defendants liable, not only on the Sec. 1983 count (where arguably their individual liability stemmed from that of the Commission) but also on the conspiracy count, as to which the court clearly instructed that only they,...

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