976 F.2d 985 (6th Cir. 1992), 91-2181, E.E.O.C. v. Romeo Community Schools

Docket Nº:91-2181.
Citation:976 F.2d 985
Party Name:1 Wage & Hour Cas.2d (BNA) 264 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. ROMEO COMMUNITY SCHOOLS; American Federation of State, County and Municipal Employees Local 2614, Defendants-Appellees.
Case Date:July 28, 1992
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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976 F.2d 985 (6th Cir. 1992)

1 Wage & Hour Cas.2d (BNA) 264



ROMEO COMMUNITY SCHOOLS; American Federation of State,

County and Municipal Employees Local 2614,


No. 91-2181.

United States Court of Appeals, Sixth Circuit

July 28, 1992

Argued June 11, 1992.


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Jennifer S. Goldstein (argued and briefed), E.E.O.C., Office of the General Counsel, Washington, D.C., Bart M. Feinbaum, Detroit, Mich., for plaintiff-appellant.

Donald J. Bonato (argued and briefed), Kenneth Harned, Thrun, Maatsch & Nordberg, Lansing, Mich., Renate Klass, Miller, Cohen, Martens & Ice, Southfield, Mich., for defendants-appellees.

Before KEITH and SUHRHEINRICH, Circuit Judges; and CONTIE, Senior Circuit Judge.


Plaintiff-appellant, the Equal Employment Opportunity Commission ("EEOC"), appeals the district court's grant of summary judgment in favor of defendants-appellees, Romeo Community Schools ("Romeo") and the American Federation of State, County and Municipal Employees Local 2614 (the "Union"), in this action alleging a violation of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. For the reasons stated below, we REVERSE and REMAND for a trial on the merits.


Sharon Gomes commenced employment with the Romeo Community Schools on April 7, 1988, as a "substitute" custodian at $5.50 per hour; her wage rate ultimately rose to $5.75 per hour. A "substitute" custodian is employed on an on-call basis to assume the responsibilities of a permanent custodian who will be absent for less than thirty days.

On June 2, 1988, Ms. Gomes began working as a "temporary" custodian. A "temporary" custodian is designated to fill in for a permanent custodian who plans to be absent for more than 30 days. Between 1986 and June 1988, Romeo paid male temporary custodians the entry-level rate for permanent custodians which was between $7.18 and $7.48 per hour. In her first pay check for her work as a temporary custodian, Romeo paid Ms. Gomes at the same rate as it had paid her as a substitute. This rate was more than a dollar an hour less than that paid to Ms. Gomes' male counterparts.

Ms. Gomes advised Dr. Mark Gualdoni, Romeo's Assistant Superintendent for Instruction and Personnel, of the disparity in the wage rates. Dr. Gualdoni informed Ms. Gomes that the disparity was a mistake, and that the male custodians should be receiving the lower rate that she had been paid. He acknowledged that prior to September 1986, it was the school district's policy to pay temporary custodians the higher rate. He stated, however, that in September 1986, when a new collective bargaining agreement was ratified, it was determined that temporary custodians were not part of the bargaining unit and would no longer be paid at an entry level permanent custodian rate, but would be paid at the substitute rate. Dr. Gualdoni further stated that the reason the male temporary custodians kept receiving the higher rate between September 1986 and June 1988, despite the policy change to reduce their pay rate, was that he inadvertently failed to notify the payroll office about the new policy.

According to Romeo, Ms. Gomes' inquiry brought it to their attention that the male temporary custodians' wage rate had not been reduced. Yet, when Patricia Bennett, another female substitute custodian, was assigned to work in a temporary position, her pay, like Ms. Gomes', was set at the lower substitute rate, not the permanent rate. Romeo did not explain why Ms. Bennett's

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wage rate had been set at the lower rate in April 1988, two months prior to the time that Romeo was allegedly notified of the "mistake" in paying male temporary custodians at the higher rate.

Romeo agreed to pay Ms. Gomes at the higher rate paid to permanent custodians for the temporary assignment she began in June 1988. Her next paycheck compensated her at the higher rate and included an additional amount to make up for the underpayment in her first pay check. Romeo then, however, reduced all male temporary custodians' wages to the lower rate that Ms. Gomes had initially received in order to correct its alleged "mistake" in paying them the higher entry level rate for permanent custodians.

Ms. Gomes received another temporary assignment in October 1988. She again complained about her pay rate at the level of a substitute, but was told that her pay would not be raised during her temporary assignment. On October 26, 1988, she walked off the job. Romeo has not called her for substitute or temporary work since that time, although as of January 1989, she was still on the substitute custodian list. Romeo also has not considered Ms. Gomes for permanent custodial positions and instead has hired less senior substitute or temporary custodians for permanent jobs.

On January 5, 1989, Ms. Gomes filed a charge with the EEOC. On October 11, 1990, the EEOC commenced an action in the United States District Court for the Eastern District of Michigan. The complaint alleged that Romeo violated the Equal Pay Act when it paid Ms. Gomes less than it paid male employees for performing equal work, and for attempting to cure the violation of the Act by reducing the wages of male custodians to the lower rate. The complaint also alleged that Romeo unlawfully retaliated against Gomes "for her opposition to unlawful employment practices."

In granting summary judgment for Romeo, the district court held that the EEOC failed to establish the existence of a pay differential. The court acknowledged that Romeo initially paid Ms. Gomes less than male temporary custodians, but noted that Romeo eventually paid Ms. Gomes the same as the male custodians, "albeit after a protest was lodged." The court emphasized that when Romeo proceeded to reduce wages in 1988, the "reduction applied equally to both male and female substitute custodians in temporary positions." The court concluded that because the EEOC "failed to come forth with any evidence which shows a differential in pay, it has not met its burden [of establishing a prima facie case]."

The court also rejected the retaliation claims because all the alleged retaliatory acts occurred prior to Ms. Gomes' filing of a charge with the EEOC. According to the district court, "[t]o sustain an action for retaliation for the institution of a proceeding under this Act, a proceeding must be instituted prior to the alleged retaliatory act." The EEOC timely filed this appeal.


It is well settled that in order to establish a prima facie case under the Equal Pay Act, the EEOC must show that an employer pays different wages to employees of opposite sexes "for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions." Corning Glass Works v. Brennan, 417 U.S. 188, 195, 94 S.Ct. 2223, 2228, 41 L.Ed.2d 1 (1974).

This Court has held that a woman who receives less pay than a man for doing the same work "suffer[s] a denial of equal pay with each check she receive[s]." Hall v. Ledex, Inc., 669 F.2d 397, 398 (6th Cir.1982). See also Dixon v. Anderson, 928 F.2d 212, 216 (6th Cir.1991) (citing Hall for the proposition that "the employer commits an illegal act, such as giving unequal pay for equal work, each time the employer dispenses the pay") (emphasis in...

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