Brennan v. Owensboro-Daviess County Hosp., City of Owensboro, Ky.
| Decision Date | 30 September 1975 |
| Docket Number | No. 73-1261,OWENSBORO-DAVIESS,73-1261 |
| Parties | 11 Fair Empl.Prac.Cas. 600, 22 Wage & Hour Cas. (BN 513, 10 Empl. Prac. Dec. P 10,404, 78 Lab.Cas. P 33,339 Peter J. BRENNAN, Secretary of Labor, United States Dept. of Labor, Plaintiff-Appellant, v.COUNTY HOSPITAL, CITY OF OWENSBORO, KENTUCKY, and DaviessCounty, Kentucky, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Alfred G. Albert, Acting Sol. of Labor, Marvin Tincher, Regional Atty., Frank Steiner, Atty. U. S. Dept. of Labor, Nashville, Tenn., Donald S. Shire, Deputy Associate Sol., Carin Ann Clauss, Associate Sol., U. S. Dept. Labor, Washington, D. C., for plaintiff-appellant.
Philip B. Hayden, Ronald M. Sullivan, Sandidge, Holbrook, Craig & Hager, Owensboro, Ky., for defendants-appellees.
Before WEICK, McCREE and LIVELY, Circuit Judges.
This is an appeal from a judgment determining that appellees' practice of paying higher wages to "male nursing assistants" 1 than those paid to "nurse assistants" who are female does not violate the Equal Pay Act of 1963, 29 U.S.C. § 206(d)(1), (3) 2 because the wage differential was justified by differences in skill, effort, and responsibility and by dissimilarities in working conditions. 3 This appeal requires us to examine the district court's findings of fact to determine whether they are supported by the evidence, and whether they permit, as a matter of law, its conclusion that male nursing assistants are required to exert substantially greater effort, to employ substantially greater skills, and to assume substantially greater responsibility than nurse assistants.
The action was brought by the Secretary of Labor in the fall of 1971 against the Owensboro-Daviess County Hospital (the hospital), the City of Owensboro, and the County of Daviess to enjoin them from violating the Equal Pay Act of 1963, 29 U.S.C. § 206(d)(1), (3) by paying higher wages to "male nursing assistants" (orderlies) than are paid to female "nursing assistants" (aides), and to restrain them from withholding payment of past wages due under the Act.
The hospital is a not-for-profit Kentucky corporation located in Owensboro, Daviess County, Kentucky, and is operated by the City of Owensboro and the County of Daviess through an appointed Board of Management. The parties have stipulated that appellees constitute an enterprise engaged in commerce or in the production of goods for commerce within the meaning of the Act, and that consequently the employees of the hospital are entitled to whatever protection and benefits the Equal Pay Act affords. The period covered by this action, based upon the complaint and by agreement of the parties, is from April 5, 1968, to the date of the commencement of trial, October 31, 1972. The discrimination charged is not limited to any department of the hospital.
During the period covered by this action, the hospital regularly employed approximately 30 to 40 orderlies and approximately After the presentation of the Secretary's evidence, the district court, Sua sponte, 4 directed a verdict for appellees and thereafter made the following findings of fact: (1) that the job descriptions for aides and orderlies revealed substantial differences in duties and that these descrptions accurately portrayed differences in the actual duties performed; (2) that a typical aide, unlike a typical orderly, spent substantially all her time at the hospital in rountine patient care; (3) that orderlies, unlike aides, received special training in sterile procedures and techniques, in removing casts, and in setting up traction; (4) that aides were closely supervised, while orderlies exercised discretion in performing their duties, particularly in responding to "stat" or emergency calls; (5) that orderlies, unlike aides, were responsible for the care of violent or potentially violent patients; (6) that orderlies, because of their fewer numbers, were required to do post-mortem work more often than the aides; (7) that the orderlies' work was continuous, demanding and tiring, and that the frequent emergency calls caused tension and strain while aides' duties involved much less tension and strain; (8) that orderlies had less time for relaxation during working hours than aides did; and (9) that the orderlies' work was more arduous than that of aides and required more physical effort and strength.
160 to 180 aides. As a general rule, each of the four floors of the 462 bed hospital was divided into four nursing stations and, depending on the shift, two or three "nurse assistants" were assigned to each station and one or two "male nursing assistants" were assigned to each floor.
On the basis of these findings, the district court concluded not only that the Secretary had failed to establish that the tasks performed by aides and orderlies were substantially equal, but also that aides and orderlies performed substantially different jobs under substantially different working conditions, and that the duties of a typical orderly required greater skill, effort and responsibility than did the duties of a typical aide. Accordingly, the district court concluded that the higher wages paid to orderlies were justified, and that appellees had not, therefore, violated the Equal Pay Act.
A careful examination of the record convinces us, however, that the critical findings of fact upon which the district court based its conclusions are clearly erroneous. The job descriptions for aides and orderlies did not differ significantly for most of the period covered by this action. Moreover, the record shows, contrary to the findings made by the district court, that some aides, as well as orderlies, were trained to do sterile procedures and did them on a regular basis; that aides as well as orderlies lifted heavy patients, restrained unruly ones, and responded to emergency calls; and that aides had less free time than orderlies did. In addition, although the record discloses that as a general rule orderlies and not aides set up traction and assisted in removing casts, these duties were performed so infrequently that they did not render the jobs of aides and orderlies substantially different. Finally, although orderlies may have, on the average, done more post-mortem work than aides did, this modest difference does not justify the higher wages paid to orderlies.
The employment prerequisites for the jobs of aides and orderlies were precisely the same during the period in question: (1) a diploma from an accredited high school; (2) good moral behavior; (3) good health; and (4) a recommendation of character. In addition, as we have already observed, in the job description bulletins issued by appellees, the formal titles, "nurse assistants" and "male nursing assistants," are virtually identical except for the designation "male" in the latter. Moreover, aides and orderlies attended the same introductory four week training course and, with one exception, 5 received identical instruction.
At the same time, however, appellees maintained one wage scale for male nursing assistants and another lower scale for nurse assistants. Although both scales provided for higher wages based upon experience, a male nursing assistant begins working and continues to work at a wage higher than that paid to a nurse assistant with comparable experience. 6
even aides who received special pay were paid wages lower than
those paid to orderlies with the same length of employment.
Although job descriptions should not be accorded as much weight as that given to the duties actually performed by employees in determining whether two jobs are substantially equal, nevertheless, we believe that they may be helpful, particularly where the descriptions of the jobs to be compared are similar and were written by the very employer who claims that wage differentials are not based on an impermissible criterion. 7 Cf. Corning Glass Works v. Brennan, 417 U.S. 188, 203, 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974).
In this case, we observe that in both the January, 1969, and the January, 1972, job description bulletins issued by appellees, the primary duty of a nurse assistant appears virtually identical to that of a male nursing assistant: a nurse assistant "(a)ssists the Professional Nursing Staff by performing duties in caring for patients," while male nursing assistants "(a) ssist the Nursing Staff in performing duties in caring for patients." These bulletins also state that both aides and orderlies are responsible to the professional nursing staff, the...
To continue reading
Request your trial
-
Com. of Ky., Dept. of Human Resources v. Donovan
... ... Dwight Preston, Hardin County Atty., Elizabethtown, Ky., Donald J. Skeeters, ... program by Hardin County and placed in the City of Vine Grove's public works department. He ... 849, 854-855, 28 L.Ed.2d 158 (1971); Brennan v. Owensboro-Daviess County Hospital, 523 F.2d ... ...
-
Rossini v. Ogilvy & Mather, Inc.
... ... , Waldman, Elias & Engelhard, P.C., New York City, for plaintiffs; Judith P. Vladeck, Joseph J ... Knight v. Nassau County Civil Service Commission, 649 F.2d 157, 161 (2d ... Sears, vacated by the promotion of Richard Hosp in early 1976 and filled by Arthur Schulbaum in ... See Corning Glass Works v. Brennan, 417 U.S. 188, 94 S.Ct. 2223, 41 L.Ed.2d 1 ... Owensboro-Daviess County Hospital, 523 F.2d 1013 (6th Cir.1975) ... ...
-
Chambers v. Klein
... ... Gen., Trenton, N.J., Howard Pfeffer, Essex County Welfare Bd. Legal Dept., Richard T. Philips, ... 792, 13 L.Ed.2d 616 (1965); Brennan v. Owensboro-Daviess County Hospital, 523 F.2d ... ...
-
Thompson v. Sawyer
... ... County of Washington v. Gunther, 452 U.S. 161, 101 S.Ct ... Corning Glass Works v. Brennan, 417 U.S. 188, 94 S.Ct. 2223, 41 L.Ed.2d 1 ... School Board of the City of Richmond, 416 U.S. 696, 711, 94 S.Ct. 2006, ... South Davis Community Hosp., 538 F.2d 859 (10th Cir. 1976); Brennan v ... 1975), cert. denied sub nom. Owensboro-Daviess County Hosp., Inc. v. Usery, 425 U.S. 973, 96 ... ...