Berry v. Board of Sup'rs of L.S.U.

• Citation: 715 F.2d 971
• Decision Date: 26 September 1983
• Docket Number: No. 82-3198,82-3198
• Parties: 32 Fair Empl.Prac.Cas. (BNA) 1567, 26 Wage & Hour Cas. (BNA) 706, 32 Empl. Prac. Dec. P 33,828, 98 Lab.Cas. P 34,446, 13 Ed. Law Rep. 244 Dr. Julia Elizabeth BERRY, Plaintiff-Appellant, v. The BOARD OF SUPERVISORS OF L.S.U., etc., et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 971

715 F.2d 971

32 Fair Empl.Prac.Cas. (BNA) 1567,

26 Wage & Hour Cas. (BNA) 706,

32 Empl. Prac. Dec. P 33,828, 98 Lab.Cas. P 34,446,

13 Ed. Law Rep. 244

Dr. Julia Elizabeth BERRY, Plaintiff-Appellant, v. The BOARD OF SUPERVISORS OF L.S.U., etc., et al.,

Defendants-Appellees.

No. 82-3198.

United States Court of Appeals, Fifth Circuit.

Sept. 26, 1983.

Jones & Jones, Johnnie A. Jones, Baton Rouge, La., for plaintiff-appellant.

W.S. McKenzie, Mary Thornton Duhe, Baton Rouge, La., for defendants-appellees.

Appeal from the United States District Court for the Western District of Louisiana.

Before TUTTLE^*, POLITZ, and GARWOOD, Circuit Judges.

GARWOOD, Circuit Judge:

This case presents the novel question of whether sex discrimination in violation of the Equal Pay Act, 29 U.S.C. § 206(d), occurs when a female, though paid the same salary as her male counterparts, is given a substantially larger volume of work. Also before us are questions as to the timeliness of the plaintiff-appellant's other claims of sex discrimination under 42 U.S.C. § 2000e ("Title VII"), and 42 U.S.C. § 1983. The district court held on a motion to dismiss that the appellant's Equal Pay Act claim was not actionable, and on motion to dismiss and motion for summary judgment, that her other claims were time barred. ¹ For the reasons stated below, we affirm its holding on the section 1983 claim and remand the Equal Pay Act and Title VII claims.

THE FACTS

Plaintiff-appellant, Doctor Berry, a white woman, had a two-year appointment at Louisiana State University-Baton Rouge Campus ("LSU") as an associate professor of guidance counseling, which began August 20, 1975. Her salary was $17,000 per year. Berry's complaint, the defendants in which, appellees here, were the LSU Board of Supervisors and various LSU administrative and academic personnel, alleged: that before her job began she was informed that her duties would be to teach nine hours per semester and to develop a doctoral program in the guidance counselor education field; that she would also be able to pursue independent research and teach off campus during the year for LSU at a rate of one-tenth of her nine months' salary for each course taught, and during the summer, at a rate of two-ninths of this amount per course; that LSU promised to provide her with an assistant soon after she started; and that when she began work on August 20, 1975 she, unlike her male colleagues, was given the course load (on campus) of two full-time professors, amounting to eighteen to twenty-one hours per semester in nine different subjects, in addition to her other responsibilities. ²

LSU notified Berry on October 14, 1976 that her contract would not be renewed when it expired on May 21, 1977. LSU's stated reasons for this action were Berry's failure to meet the school's publication policy and failure to develop a curriculum in counselor education. She initiated proceedings for the internal review of her termination, which were unavailing. On October 12, 1977, Berry filed a charge of sex discrimination against LSU with the EEOC and on August 4, 1978, commenced this suit in federal district court claiming violations of the Equal Pay Act, Title VII and section 1983.

Berry alleged that because of the excessive work load assigned to her she was not able to teach off campus for extra pay as her male colleagues were, nor did she have time to pursue independent research or to develop a doctoral program. She alleged that she was given no assistant, was forced to work with inadequate funding and supplies, and was ignored when she complained. She asserted that LSU intended by this treatment to force her out of her job because of her sex. Berry alleged that her replacement, who was male, was not assigned an excessive work load and was given an assistant and the equipment, supplies, and support which she had been denied.

The district court dismissed her claim under the Equal Pay Act for failure to state a cause of action, concluding that this provision applied "only when males and females are paid different wages for equal work." It dismissed her Title VII claim because she had not filed the EEOC charge within 180 days of the "alleged unlawful employment practice," which it considered to have occurred on October 14, 1976 when she received notice that she would not be rehired. Finally, the district court dismissed her section 1983 action because it was not filed within the one-year prescriptive period which it found applicable to comparable suits in Louisiana. On appeal, Berry asserts that her allegations state a cause of action under the Equal Pay Act and that her other claims were not time barred.

THE LAW

A. THE EQUAL PAY ACT CLAIM

Berry's complaint alleged that she replaced and assumed the work load of two full-time professors, giving her course work of eighteen to twenty-one hours per semester, while her male counterparts were assigned only the normal load of nine hours per semester. She also alleged that "[b]ecause of her exceptional and heavy work load, Plaintiff was unable to teach extramural courses for pay as her male colleagues could do and, in fact, did." The district court, focusing on the first of the allegations, concluded that "plaintiff's claim ... [was] not actionable under the Equal Pay Act" because she had not alleged that she had received unequal wages.

However, we consider that plaintiff's complaint may be construed to have raised an Equal Pay Act claim arising out of the second allegation quoted above. Berry's allegation that she carried an extra heavy regular course load while male professors, who did not, were able to teach additional courses for extra pay is susceptible of the construction that the plaintiff was paid less money for "equal" work in terms of the number of hours taught and other relevant factors. Berry made this allegation in the Title VII portion of her complaint, but she incorporated it by reference into the count alleging a violation of the Equal Pay Act. This issue also appears to have been argued to the district court, albeit somewhat obliquely and generally, in Berry's "Brief in Opposition to Defendant's Motions to Dismiss and for Summary Judgment ...," which stated:

"The question this case raises, in view of the purposes sought by Congress and the development of the case law, is:

"Whether L.S.U. by requiring and exacting Plaintiff to do twice and three In earlier portions of this trial brief, reference had been made to the fact that male associate professors were able to make extra money by teaching off campus while, because of her excessive work load, Berry had not been able to do so. ³ We take the statement in the passage quoted above--that male professors were paid more--to refer to the money earned by teaching off campus and to claim that such work was equal. ⁴

times as much work as her male counterparts who with apparently less professional distinction and qualifications were paid salaries equal to or considerally [sic ] more sizable than the salary paid Plaintiff but did only an [sic ] half, a third or even more less work on comparable jobs or in comparable positions as Plaintiff has by subterfuge successfully unearthed a mean[s] by which it can continue to discriminate against Plaintiff and others of the class based on sex in spite of 'The Equal Pay Act' by contending that such differentials in workload and hours of work per an academic year are not compensation differentials within the ambit of the Act and, therefore, not proscribed by the Act?"

We generally read the allegations in the plaintiff's complaint liberally, Dussouy v. Gulf Coast Investment Corp., 660 F.2d 594, 604 (5th Cir.1981) ("The form of the complaint is not significant if it alleges facts upon which relief can be granted, even if it fails to categorize correctly the legal theory giving rise to the claim."); Hargrave v. McKinney, 413 F.2d 320, 324 (5th Cir.1969), on remand, 313 F.Supp. 944 (three-judge court), vacated on other grounds, 401 U.S. 476, 91 S.Ct. 856, 28 L.Ed.2d 196 (1971), and we normally sustain a dismissal for failure to state a claim only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957); Keating v. Shell Chemical Co., 610 F.2d 328, 333 (5th Cir.1980). Thus, reading Berry's pleadings to allege that she was paid a lower salary than her male colleagues while performing equal work, a claim under the Equal Pay Act would be stated. The district court, however, did not address this claim in its ruling, and thus we must remand it for further consideration. Of course, Berry will be required to demonstrate, inter alia, that the work was in the same "establishment" and was "equal work on jobs" requiring "equal skill, effort, and responsibility, and which are performed under similar working conditions" ⁵; and, the claim may also be subject to the defense, among others, that the compensation differential was bona fide based on some "factor other than sex." 29 U.S.C. § 206(d)(1). We express no view of the merits of this claim or whether it will require We now turn to the novel issue raised by Berry that the work load, per se, assigned her by LSU constituted a violation of the Equal Pay Act. We agree with the district court that it did not.

an evidentiary hearing or can be disposed of on motion for summary judgment.

We begin our examination of this question with the text of the statute, which states:

"No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill,...