Brennan v. City Stores, Inc.

• Decision Date: 16 August 1973
• Docket Number: No. 72-2382.,72-2382.
• Citation: 479 F.2d 235
• Parties: Peter J. BRENNAN, Secretary of Labor, United States Department of Labor, Plaintiff-Appellee, v. CITY STORES, INC., doing business as Loveman's, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

479 F.2d 235 (1973)

Peter J. BRENNAN, Secretary of Labor, United States Department of Labor, Plaintiff-Appellee, v. CITY STORES, INC., doing business as Loveman's, Defendant-Appellant.

No. 72-2382.

United States Court of Appeals, Fifth Circuit.

May 29, 1973.

Rehearing and Rehearing Denied August 16, 1973.

Kenneth Perrine, Sirote, Permutt, Friend & Friedman, Birmingham, Ala., Harry Kelleher, Donald R. Mintz, New Orleans, La., for defendant-appellant.

Beverley R. Worrell, Regional Sol., U. S. Dept. of Labor, Atlanta, Ga., Edwin G. Salyers, Atty., Carin Ann Clauss, Donald S. Shire, U. S. Dept. of Labor, Washington, D. C., for plaintiff-appellee.

Before TUTTLE, THORNBERRY and DYER, Circuit Judges.

Rehearing and Rehearing En Banc Denied August 16, 1973.

TUTTLE, Circuit Judge:

The Secretary of Labor filed suit against Loveman's department store¹ for violation of the Equal Pay Act provisions of the Fair Labor Standards Act.² The Secretary demonstrated that Loveman's compensated women selling clothing and related items at a lower rate than it paid salesmen in the men's clothing department, and that the seamstress was paid less than the tailor. Finding the positions of the saleswomen and salesmen to be equal within the meaning of § 6(d) (1) and that the positions of seamstress and tailor were similarly equal, the court also held that Loveman's pay differentials were not based on any factor other than sex. As a remedy against this discrimination, the court enjoined Loveman's from continuing to make pay distinctions between the employees on the basis of sex. It also awarded back pay with interest to the discriminatees in the amount of the differences in pay rates between certain saleswomen and salesmen and between the seamstress and tailor.

Loveman's appeals, contending that (1) the district court failed to make sufficient findings of fact as required by Rule 52, (2) the court applied an erroneous and inconsistent standard of equality in holding that the jobs compared require "equal skill, effort, and responsibility," (3) the court's factual observations were clearly erroneous, and (4) the remedies granted were overly broad, not justified by the Act, and based upon an arbitrary and confiscatory formula. We reject these contentions and affirm the judgment.

The trial court's memorandum opinion set forth extensive findings of fact and conclusions of law which comply fully with the requirements of Rule 52.³ Though isolated statements in this memorandum might be considered "argumentative and conclusory" rather than objective and primary,⁴ these statements when placed in context do not constitute reversible error. For example, the court found that all sales personnel in the departments covered by its order were responsible for marking and fitting clothes as well as selling items to customers. The court also carefully excluded from the scope of its order those sales persons selling only customer-selected items (e. g. ladies' handbags) or dealing in merchandise of a different kind (e. g. household appliances). Thus, it clearly did not conclude that because the "primary duty" of all sales persons is "to sell merchandise," all sales positions are equal for § 6(d) (1) purposes. In addition, the court carefully considered the effect of differences between marking cuffs, crotches, and waistbands of men's suits and adjusting hemlines, shoulders, or waists of women's dresses and concluded these differences to be wholly insubstantial. Finally, though the court did not compare in detail the marking and fitting duties of all personnel in each of the departments, it provided representative examples of how saleswomen in the foundations and millinery departments mark and fit items which convince us that the court thoroughly considered the marking and fitting duties as well as the sales responsibilities of sales persons within each department.

Loveman's claim that the trial court's factual observations were clearly erroneous is equally lacking in merit. As an appellate tribunal, we do not, of course, sit to retry cases from the district courts. Smith v. United States, 287 F. 2d 299, 301 (5th Cir., 1961); Chaney v. City of Galveston, 368 F.2d 774, 776 (5th Cir., 1966). Nor is this a case in which we are convinced that, after reviewing the evidence as a whole, the trial court has committed a mistake. E. g. Hodgson v. American Bank of Commerce, 447 F.2d 416 (5th Cir., 1971). While appellant does point to portions of the testimony which might have supported findings contrary to those actually made by the court, it nowhere impugns the existence of the evidence which the trial court accepted in support of its judgment. As this court said in Chaney:

"Where the evidence would support a conclusion either way, a choice by the trial judge between two permissible views of the weight of evidence is not clearly erroneous, and the fact that the judge totally rejected an opposed view impeaches neither his impartiality nor the propriety of his conclusions." 368 F.2d at 776.

The appellant also contends that the trial court applied an incorrect standard in determining that the jobs compared require "equal skill, effort, and responsibility." Though the legislative history of this phrase in the Equal Pay Act was ably explored in Hodgson v. William & Mary Nursing Motel, 20 W.H. Cases 10 (Md.Fla., 1971), we feel constrained to articulate our position in some detail.

When Congress enacted the Equal Pay Act, it substituted the word "equal" for "comparable" to show that "the jobs involved should be virtually identical, that is, they would be very much alike or closely related to each other."⁵ The restrictions in the Act were meant "to apply only to jobs that are substantially identical or equal."⁶ While the standard of equality is clearly higher than mere comparability⁷ yet lower than absolute identity,⁸ there remains an area of equality under the Act the metes and bounds of which are still indefinite. The trial court observed that, "apparently similar factual patterns brought under the Equal Pay Act occasionally generate contradictory results."⁹ Compare Shultz v. Brookhaven General Hospital, 305 F.Supp. 424 (N.D.Texas, 1969) (male orderly's position equal to that of female aide) and Hodgson v. Good Shepherd Hospital, 327 F.Supp. 143 (E.D.Texas, 1971) (male orderly position not equal to female aide). Though such contradictory results are unseemly, no talismanic words will resolve the ambiguities presented by the phrase "equal skill, effort, and responsibility." Like many other legal concepts, that of equality under the Equal Pay Act is susceptible of definition only by contextual study. Semantic distinctions such as "substantially similar," "substantially equal," "essentially the same," "sufficiently similar," or "equivalent,"¹⁰ do not indicate that the court applied an incorrect standard of equality in comparing jobs at Loveman's store. Only if the evidence and findings indicated the court (1) applied the Act's prohibitions where there was an insufficient congruence of jobs, or, (2) failed to apply these prohibitions where job differences were insubstantial, would we question the court's use of a particular phrase. Moreover, our contextual view of the standard to be applied under the Equal Pay Act draws sustenance from the regulations issued by the Secretary of Labor.¹¹ Though not binding upon this court, these regulations, promulgated by the agency primarily responsible for enforcement of Congress' enactments, are entitled to great deference. The presumption is that they are valid unless shown to be erroneously in conflict with the Act itself. See Griggs v. Duke Power Company, 401 U.S. 424, at 433-434, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971).

These regulations obviously contemplate careful weighing of the factors involved in performance of a given job. The general guideline calls for weighing "all relevant evidence," a task precisely performed by the district court in this case. The court compared various aspects of both selling and non-selling duties of sales personnel before deciding that the jobs were equal in skill, effort, and responsibility despite immaterial differences between the tasks performed. Likewise, while noting the variety of clothes required to be altered by the seamstress and tailor, the court found an essential equality of skill, effort, and responsibility required for the performance of these tasks and considered carefully the appellant's argument that the tailor's job was more skilled than that of the seamstress. Therefore, despite the court's use of the term "similar" in comparing jobs, we find no instance in which this term was used to mean "comparable" rather than "substantially equal" and there was no error in the court's holding.¹²

Loveman's final challenge is that the remedy was too sweeping because the trial court issued an injunction against it, because interest was awarded as an element of back pay, and because the formula used to compute back pay was "arbitrary and confiscatory." We find no merit to any of these contentions.

In determining whether an injunction should issue under the F.L.S.A., we have said that where "past violations have been established . . . it is only in the most compelling circumstances that the exercise of the trial court's discretion in granting an injunction will be annulled." Gulf King Shrimp Company v. Wirtz, 407 F.2d 508, 517 (5th Cir., 1968); see also Hodgson v. First Federal Savings & Loan Ass'n of Broward County, Fla., 455 F.2d 818, 825 (5th Cir., 1972). Though the defendant argues that it had no firm guideline by which to determine that it was in violation of the Act, it was aware of "the statements of the Administrator dated January 10, 1966" and the Labor Department's Interpretative Bulletin issued September 9, 1965, both of which took the position that the job of selling men's clothes was "equal" to that of selling ladies' ready-to-wear.¹³ Where, as here, the employer was well...