Ammons v. Zia Company, 606-70.

• Decision Date: 07 September 1971
• Docket Number: No. 606-70.,606-70.
• Parties: Kay AMMONS, Plaintiff-Appellant, v. ZIA COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

448 F.2d 117 (1971)

Kay AMMONS, Plaintiff-Appellant, v. ZIA COMPANY, Defendant-Appellee.

No. 606-70.

United States Court of Appeals, Tenth Circuit.

September 7, 1971.

Nancy Alden Bragg, Denver, Colo., for plaintiff-appellant.

Ray O. Sage, of Darden & Sage, Las-Cruces, N. M., for defendant-appellee.

Before BREITENSTEIN, ALDISERT^*, and BARRETT, Circuit Judges.

ALDISERT, Circuit Judge.

This appeal is from a denial of relief requested under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., which prohibits discrimination in employment classifications and compensation on the basis of sex. Contending that she was denied additional compensation because of her sex and was ultimately discharged for the same reason, appellant argues that the district court erred in its finding of fact and in its application of the statutory provisions.

Originally hired in October 1964, as a junior clerk-steno at the Apollo Site in Dona Ana County, New Mexico, at an $86.00 weekly salary, appellant was later transferred to a newly-established publication section of the Zia Company as an editor-writer, also qualified for full stenographer duties, at a salary of $502.66 per month. At the time of her discharge she was earning $580.00 monthly. During this time there were eighteen men employed as "procedures writer" or "technical writer"; twelve were associated with appellant in the publication section. These employees, including appellant, worked with engineers in the preparation of various system operational check lists and detailed maintenance procedures. Only appellant did not receive clearance for duties in the Apollo test area, where her male co-workers were able to enter and discuss specifics with various engineers, and it is this exclusion from the test area upon which appellant anchors her basic contentions of discrimination in compensation by reason of sex.

Although in Shultz v. Wheaton Glass Co., 421 F.2d 259, 266 (3 Cir. 1970), cert. denied, 398 U.S. 905, 90 S. Ct. 1696, 26 L.Ed.2d 64 (1970), the Third Circuit interpreted the Equal Pay Act of 1963, 29 U.S.C. § 206(d), it held that the provisions of the Civil Rights Act "regarding discrimination based on sex are in pari materia with the Equal Pay Act," that both statutes "serve the same fundamental purpose" and that the "Equal Pay Act may not be construed in a manner which by virtue of § 703(h) would undermine the Civil Rights Act." Therefore, the burdens of proof therein delineated have proper application in the instant case: while one who asserts a violation of the statute has the burden of proving that the company's wage differential is based on sex discrimination, if a prima facie case of discrimination is established, the burden of proof falls upon the company to prove that the differentiation is authorized by Section 2000e-2(h) of the Civil Rights Act which provides that a differential may be authorized if permitted by the Equal Pay Act, 29 U.S.C. § 206(d): "(iv) a differential based on any other factor other than sex."

It is the contention of appellant that she established a prima facie case of discrimination in compensation by showing that she was not permitted to qualify for the test area, even to the extent of being denied the opportunity of taking a physical examination. Critical to this approach, however, would have been a further showing that test area clearance would have entitled her to higher pay. The sole evidence supporting this inference was evidence that three male writers in the publication section, qualified for the test site, earned more than she. Yet, nine of the twelve male procedures writers in the publication section, who also qualified for the test area, earned the same or less than she.¹ Thus, higher compensation appears not to have been keyed to qualifications relating to test area clearance. There was no other evidence which directly or by implication supported the contention that admission to the test area was a passport to higher pay.

Additionally, it will be observed that the male writers who did earn more than appellant bore more impressive credentials. Although appellant attended junior college, she had earned no degree. She had last attended college in 1932 or 1933, had been unemployed for eight years and nine months before going to work for Zia Company, and her only previous employment experience in heavy industrial areas was in the Brooklyn Navy Yard during World War II. Although she had held several previous editorial positions, she had no engineering training or experience.

Of the men in the publication section earning more than she, Browning had earned both a bachelor and master's degree in journalism; Mack held a bachelor's degree in psychology, had two years of mechanical engineering study, twenty graduate semester hours toward a master's degree in industrial engineering, and extensive experience as a procedures writer and systems engineer; and Perron had two years of college, plus a year of radio electronics school and extensive experience in electronic and technical writing.

Moreover, to establish a case of discrimination under Title VII, one must prove a differential in pay based on sex for performing "equal" work. "Congress in prescribing `equal' work did not require that the jobs be identical, but only that they be substantially equal." Shultz v. Wheaton Glass Co., supra, 421 F.2d at 265. Thus, in the instant case, appellant was obliged to demonstrate...