Brennan v. JM Fields, Inc., 72-1066.

• Decision Date: 17 January 1974
• Docket Number: No. 72-1066.,72-1066.
• Citation: 488 F.2d 443
• Parties: Peter J. BRENNAN, Secretary of Labor, United States Department of Labor, Plaintiff-Appellee-Cross Appellant, v. J. M. FIELDS, INC., Defendant-Appellant-Cross Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

488 F.2d 443 (1974)

Peter J. BRENNAN, Secretary of Labor, United States Department of Labor, Plaintiff-Appellee-Cross Appellant, v. J. M. FIELDS, INC., Defendant-Appellant-Cross Appellee.

No. 72-1066.

United States Court of Appeals, Fifth Circuit.

November 16, 1973.

Rehearing and Rehearing Denied January 17, 1974.

Eli H. Subin, Orlando, Fla., for defendant-appellant.

Kalvin M. Grove, S. Richard Pincus, Chicago, Ill., for American Retail Federation, amicus curiae.

Beverley R. Worrell, Regional Sol., Dept. of Labor, Atlanta, Ga., Richard F. Schubert, Sol. of Labor, Bessie Margolin, Carin Ann Clauss, U.S. Dept. of Labor, Washington, D. C., for plaintiff-appellee.

Before TUTTLE, WISDOM and SIMPSON, Circuit Judges.

Rehearing and Rehearing En Banc Denied January 17, 1974.

SIMPSON, Circuit Judge:

We review on this appeal the decision below in a case arising under the Equal Pay provisions¹ of the Fair Labor Standards Act (FLSA), Title 29, U.S.C., § 201 et seq. The district court found that the appellant, J. M. Fields, Inc. (Fields) had discriminated on the basis of sex in the payment of wages to supervisory personnel in three of the sixty-odd Fields' retail outlets. The court ordered payment to named employees of the minimum wages and overtime due them under the provisions of the Equal Pay Act (EPA or the Act).² The court also enjoined further violations of the Equal Pay Act ". . . in any of Fields' stores now in operation or hereafter operated by it." Fields as appellant and the Secretary of Labor (the Secretary) as crossappellant each appeal from portions of the lower court's order.

I. BACKGROUND: THE FIELDS ORGANIZATION

A. The National Organization

Fields, a subsidiary of Food Fair Stores, Inc., is a chain-store enterprise operating more than sixty retail outlets in eleven states on the Eastern Seaboard of the United States. Fields' home offices are in New York City and Philadelphia, Pa. Its territory is divided into three regions for purposes of personnel administration. Each region is headed by a director who oversees the personnel files of employees in his area. The Fields' Industrial Relations Department in New York maintains all personnel files. Initial hiring of personnel and setting of salary rates for each of the individual Fields' stores is conducted either by the regional personnel director or by a representative of the New York office. In addition, the New York office issues periodic directives detailing salary ranges appropriate for different geographical areas and classes of employees. Finally, all wage increases are subject to approval either by the regional personnel director or by the New York office.

B. The Local Retail Outlets

The individual Fields stores are each headed by a Store Manager and two Assistant Store Managers. Each of the departments within the store is headed by an Area Supervisor (also referred to as a Department Manager). Fields follows what is apparently an industry-wide practice of dividing its departments into two categories — softline goods and hardline goods. In softlines are included clothing and infant accessories (cribs, furniture, mattresses). The hardline departments contain all the other goods sold by Fields (housewares, cosmetics, automobile accessories and numerous other lines).

The function of the Area Supervisors in the hardline and softline departments is roughly similar, save in the matter of ordering replenishment stocks. The basic re-ordering of most softline goods is handled by a computer which is fed prepunched portions of sales tickets removed by cashiers when the items are purchased. Re-ordering of hardline goods is based, for the most part, upon physical counts of merchandise on hand. The Area Supervisors in the hardline departments are responsible for these counts. Managers in both hardline and softline departments must be cognizant of fastmoving items and reorder accordingly.

II. THE COMPLAINT

On June 14, 1968, the Secretary filed a complaint alleging that Fields had violated and was continuing in violation of Sections 6(d) and 15(a)(2) of the Fair Labor Standards Act³ in at least three of its retail outlets in Florida — those in Eau Gallie, Merritts Island, and Tallahassee. The Secretary's allegations were substantially as follows: (1) that male softline Area Supervisors were generally paid more than their female counterparts; (2) that male hardline Area Supervisors generally were paid more than their female counterparts; (3) that softline Area Supervisors were generally female; (4) that the softline Area Supervisors were generally paid less than the hardline Area Supervisors; (5) that there was no basis for a distinction between hardline and softline Area Supervisors for the purposes of the Equal Pay Act. The Secretary further alleged that Fields had had knowledge of the provisions of the Equal Pay Act during the entire period of the violations, and therefore, that the violations were wilful violations for the purposes of the Portal-to-Portal Act, Title 29, U.S.C., § 255(a); and that this had the effect of exposing Fields to possible liability for the payment of minimum wages and overtime for a three year (rather than a two year period in the case of non-wilful violations) period prior to commencement of the Secretary's suit.

Fields' answer asserted that it had not wilfully violated the Act in that it had not intended to discriminate among its Area Supervisors according to sex. Fields alleged that it had hired its Supervisors at the going market rate and that compensation had been based solely on the going market rate and not upon sex. Fields further answered that there was a basis for differentiation between the hardline and softline managers based on the skill and responsibility required of these respective positions. Particular reference was made in this respect to the different methods of ordering goods prevailing in the two types of departments, hardline and softline.

III. THE OPINION BELOW

This district court entered findings of fact and conclusions of law supporting in the main the Secretary's position. The court found the existence of discrimination based upon sex in some particulars in each of the three Fields stores involved.⁴ The court also found that the duties of Area Supervisor in the hardline and softline departments differed so substantially in terms of skill and responsibility as to require their being considered unequal for the purposes of the Equal Pay Act.⁵ The court concluded as a matter of law that the discriminations in wages between sexes constituted violations of the Equal Pay Act.⁶ The court concluded further that the discriminations were unintentional and therefore not wilful for the purposes of the Portal-to-Portal Act, Title 29, U.S.C. § 255(a).⁷

The district court judgment required Fields to refrain from withholding minimum wages and overtime compensation from the employees found to have been the object of violations of the Act, and further enjoined Fields from committing violations of the Act ". . . in any of its stores now in operation and hereafter operated by it." Both parties appeal from the findings, conclusions and judgment. We now consider the issues raised on appeal.

IV. THE HARDLINE/SOFTLINE DISTINCTION

The district court found that there existed a distinction between the jobs of hardline Area Supervisor and softline Area Supervisor such that the two could not be compared for purposes of the Equal Pay Act.⁸ This finding was undergirded by Findings of Fact Nos. 8 and 9:

8. The method of ordering in the hardline departments imposes on those Area Supervisors an added responsibility which required a substantial portion of their working time.2 Footnote 2 read: "Witness Peggy Smith, a Tallahassee hardlines supervisor testified that she spent four hours a day working on the preprint books."

9. The skill and responsibility required of hardline managers is substantially greater than that required of softline managers. * * * Emphasis added.

Fields urges on appeal that we not only adopt the district court's findings of the existence of a distinction between hardline and softline managers, but also that we expand the scope of the softlines category to include "curtains and domestics." On cross appeal, the Secretary urges that the distinctions between hardline and softline managers' jobs are so minimal as to require their being considered equal for the purposes of the Equal Pay Act.

We begin by noting that the Findings of Fact numbered 8 and 9, and 22 are so conclusory in nature as to preclude the necessity of our applying the "clearly erroneous" standard of Rule 52(a), F.R.Civ.P., on review. Baumgartner v. United States, 1944, 322 U.S. 665, 64 S.Ct. 1240, 88 L.Ed. 1525; Shultz v. Wheaton Glass Co., 3 Cir. 1970, 421 F.2d 259, 267. In this situation we are required to consider only whether the findings are correct in the light of the provisions of the Equal Pay Act, the regulations thereunder, and prior decisions.

The Equal Pay Act mandates equal pay for jobs "the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions . . ." * * * (E.P.A., Title 29, U.S.C., § 206(d)(1). Emphasis added). The Regulations promulgated by the Department of Labor, 29 C.F.R. § 800.0 et seq., provide that: "The terms" skill, effort, and responsibility "are considered to constitute three separate tests, each of which must be met in order for the equal pay standards to apply." (29 C.F.R. § 800.122).

We noted in Hodgson v. Brookhaven General Hospital, 5 Cir. 1970, 436 F.2d 719, 722, that the Secretary of Labor has the burden of proving "equality of work and inequality of pay." In meeting this burden, the Secretary is, however, required only to show that the jobs under consideration are "substantially equal," Hodgson v. Fairmont Supply Co., 4 Cir. 1972, 454 F.2d 490, 493. We think the Secretary met his burden in the instant case. He showed that the Area...