E.E.O.C. v. City Council of City of Cleveland, 88-3726

• Decision Date: 24 May 1989
• Docket Number: No. 88-3726,88-3726
• Parties: Unpublished Disposition NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. The CITY COUNCIL OF the CITY OF CLEVELAND, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 863

875 F.2d 863

Unpublished Disposition

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. The CITY COUNCIL OF the CITY OF CLEVELAND, Defendant-Appellee.

No. 88-3726.

United States Court of Appeals, Sixth Circuit.

May 24, 1989.

N.D.Ohio

AFFIRMED.

On Appeal from the United States District Court for the Northern District of Ohio.

Before MILBURN and DAVID A. NELSON, Circuit Judges, and JOHN W. PECK, Senior Circuit Judge.

PER CURIAM.

The Equal Employment Opportunity Commission ("EEOC") appeals the summary judgment of the district court in favor of defendant-appellee The City Council of the City of Cleveland ("defendant" or "the City") in this action filed pursuant to the Fair Labor Standards Act of 1938, as amended by section 6(d)(1) of the Equal Pay Act of 1963, 29 U.S.C. Sec. 206(d)(1) (1978). For the reasons that follow, we affirm.

I.

A.

The EEOC commenced the present action on September 30, 1986, by filing a complaint under section 6(d)(1) of the Equal Pay Act of 1963 ("the Act"), 29 U.S.C. Sec. 206(d)(1), alleging that defendant maintains a wage differential between the salaries it pays to male and female clerks performing substantially equal work and that such differential is based upon sex. ¹ After discovery, defendant moved for summary judgment. On June 10, 1988, the district court granted defendant's motion, finding (1) that the EEOC had failed to make out a prima facie case of unequal pay under the Act, and (2) that even assuming a prima facie case had been established, that the defendant had established affirmative defenses by showing any disparities in salaries between male and female employees were due to seniority, the defendant's civil service system, and the male comparator's special usefulness. The EEOC timely appealed.

B.

As the district court in the present case granted summary judgment under Rule 56 of the Federal Rules of Civil Procedure, we are required in our review of the facts to draw all inferences in favor of the party opposing the summary judgment motion. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 174, 106 S.Ct. 1348, 1356 (1986); SEC v. Blavin, 760 F.2d 706, 710 (6th Cir.1985). On summary judgment, "[t]he judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2511 (1986). The Supreme Court stated in Anderson that "all justifiable inferences are to be drawn in [the nonmovant's] favor." Id. at ----, 106 S.Ct. 2513.

The City of Cleveland employs "station clerks" at its water purification plants to perform clerical and monitoring functions. These plants are administered by the City's Division of Water and Heat, a subdivision of the Department of Public Utilities. The Division of Water and Heat provides water service to the City and surrounding communities. The water purification process consists of two stations for each plant, a filtration station and a pumping station. Prior to 1981, there were approximately ten station clerks employed at pumping and filtration stations at five different purification plants.

The station clerks were generally responsible for performing various functions at each station. These functions included timekeeping, recordkeeping, assembling reports, ordering supplies, and typing. Beginning in 1981, an effort was undertaken by the City to consolidate the duties of the station clerks for pumping and filtration stations under one station clerk for each plant. Pumping and filtration station clerk functions were consolidated on a rolling basis by attrition, which occurred usually by retirement or reassignment.

The present action was filed by the EEOC on behalf of four female station clerks, Annie Borowy, Rose Dukes, Dorothy Mitchell, and Rosemary Spinelli. The male comparator was Loren Reisig. As of January 1, 1984, the salaries of the female station clerks were as follows: Rosemary Spinelli, $15,745.02; Rose Dukes, $15,617.13; Annie Borowy, $14,292.53; and Dorothy Mitchell, $12,198.24. The record discloses that the male clerk, Reisig, had a salary of $22,020.79.

Reisig was hired by the City in 1958 after successfully completing the civil service examination for senior clerk. On December 1, 1958, he was assigned to work as a station clerk at the then newly constructed Crown Filtration Plant. As the first station clerk at Crown, Reisig established a filing system, handled stock inventory, and devised forms for the plant to use.

In 1961, Reisig was transferred to the Division Avenue plant and for a time was responsible for performing station clerk duties at both Crown and Division Avenue. On May 21, 1965, Reisig received a temporary appointment to principal clerk. After successful completion of the principal clerk civil service examination, Reisig was "legally" appointed on September 16, 1966.

From 1965 through 1970, Reisig performed station clerk duties at three different plants (sometimes simultaneously) and oversaw the work of a junior clerk at a fourth plant. As a result, Reisig, unlike the female plaintiffs, has operated all of the City's pumping and filtration stations.

In 1974, Reisig received legal appointment to the position of chief clerk after passing the civil service examination for the chief clerk position. Reisig had earlier been temporarily appointed to the position but had not passed the examination at that time.

While a station clerk, Reisig developed a manual regarding timekeeping and departmental policies for pumping and purification. He also compiled a manual on the history of the Division of Water and trained new clerks as necessary. Although the station clerk's duties at pumping and filtration stations began to be consolidated in 1981, Reisig did not assume consolidated duties until March 1984. By this time, all female station clerks had been assigned consolidated duties. Prior to March 1984, Reisig's station clerk's duties covered only the Baldwin Purification Station. However, Reisig's responsibilities included timekeeping and clerical functions, supervising personnel, implementing and updating timekeeping manuals, training new employees, and developing new manuals.

Annie Borowy was hired by the City on April 4, 1972, and became a station clerk on December 9, 1974. In August 1982, Borowy assumed consolidated duties as station clerk at the Crown Filtration and Crown Pumping Stations. According to Borowy, she was the first station clerk to receive consolidated responsibilities.

In 1975, Borowy was appointed junior personnel assistant after completing the civil service examination. Borowy testified on deposition that she was not interested in taking any other civil service test for a higher classification. During her tenure with the City, Borowy had never been assigned responsibilities for supervising the work of other employees, developing training materials, nor training other station clerks.

Rose Dukes was hired by the City on June 16, 1966, after completing a typing test. In 1973, she accepted a position as the station clerk at the Nottingham Pumping Station. From 1973 to 1983, her duties involved payroll and recording work, and then in 1983, the Nottingham Pumping and Purification Stations were consolidated, and Dukes became responsible for both plants.

Dukes did not complete the civil service examination for principal clerk until 1980 or 1981. However, no principal clerk appointments were awarded from the eligibility list produced from that administration of the examination. Dukes sat for the examination again and received a principal clerk appointment in February 1985.

Dorothy Mitchell began working as a station clerk at the Nottingham Filtration Station in 1982. She began her employment with the City in June 1981 after successfully completing a civil service examination. Her duties at Nottingham included timekeeping, computing chemical usage, ordering supplies, and preparing monthly reports.

As part of the overall effort to consolidate, Mitchell's station clerk duties were phased out. From March 1983 until July 1984, she was assigned to the department's data unit. In July 1984, however, Mitchell transferred to the Baldwin station where she replaced Reisig as station clerk. When she arrived at Baldwin, the station clerk duties for Baldwin had already been consolidated.

Mitchell was promoted to the classification of senior clerk, as a temporary appointment, when she assumed the consolidated station clerk duties at Baldwin. In 1986, she received a temporary appointment as principal clerk, and upon successful completion of the examination, her appointment to principal clerk was made "legal."

Rosemary Spinelli assumed the duties as station clerk in October 1974. She began her employment with the City, however, on September 10, 1964, as a receptionist. In 1972, Spinelli transferred to the Department of Public Utilities with the classification of senior clerk. Her assignment at that time was payroll. She completed the civil service examination for principal clerk and was promoted to that classification on May 1, 1973. Spinelli was the longest employed and highest paid of the four female employees principally involved in this action.

Spinelli's duties at the Division Avenue Purification Plant consisted of recording chemical usage, timekeeping, ordering supplies, and preparing monthly reports. She was assigned consolidated duties for the Division Avenue Plant sometime in 1982 or 1983. Spinelli did not have responsibility for training or supervising other station clerks. She completed the civil service examination for chief clerk on three occasions. On the first, she ranked...