Brennan v. Victoria Bank and Trust Company, 73-2075.

• Decision Date: 08 May 1974
• Docket Number: No. 73-2075.,73-2075.
• Citation: 493 F.2d 896
• Parties: Peter J. BRENNAN, Secretary of Labor, United States Department of Labor, Plaintiff-Appellant, v. VICTORIA BANK AND TRUST COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

493 F.2d 896 (1974)

Peter J. BRENNAN, Secretary of Labor, United States Department of Labor, Plaintiff-Appellant, v. VICTORIA BANK AND TRUST COMPANY, Defendant-Appellee.

No. 73-2075.

United States Court of Appeals, Fifth Circuit.

May 8, 1974.

Richard F. Schubert, Sol. of Labor, Donald S. Shire, Deputy Associate Sol., Carin Ann Clauss, Sandra P. Bloom, U. S. Dept. of Labor, Washington, D. C., Alfred G. Albert, Acting Sol. of Labor, U. S. Dept. of Labor, George T. Avery, Regional Sol., Dallas, Tex., for plaintiff-appellant.

Conde N. Anderson, Munson Smith, Victoria, Tex., for defendant-appellee.

Before JONES, THORNBERRY and COLEMAN, Circuit Judges.

COLEMAN, Circuit Judge:

This suit was initiated by the Secretary of Labor under § 17 of the Fair Labor Standards Act¹ (the Act), to enjoin the Victoria Bank & Trust Company of Victoria, Texas (the Bank), from violating the equal pay provisions of the Act and for back wages due certain female employees in the Note Department of the Bank.² The District Court found no violation on the theory that any differential in pay between male and female bank tellers was justified as a statutory exception. From this adverse determination, the Secretary appeals. We affirm as to the exchange tellers and reverse and remand as to the note tellers.

I The Exchange Tellers

A. The basic difference between Exchange Tellers and Note Tellers

Within the Note Department of the Bank there existed a position entitled "exchange teller". It was manned by only one individual at a time and was located at a separate window, identified as the exchange window. The remainder of the tellers in the Note Department were designated note tellers. As to the exchange tellers, the Secretary would establish, on account of sex, unequal pay for equal work by three comparisons: (1) a comparison of the exchange teller and note teller positions; (2) a comparison of different salaries within the exchange teller position; and (3) a comparison of the different salaries within the note teller positions.

The Secretary first had to show unequal pay for jobs of equal work and responsibility. When this is done, the employer then has the burden of proving that any unequal pay results from some factor other than sex, Hodgson v. Brook-haven General Hospital, 5 Cir., 1970, 436 F.2d 719.

The District Court found that any existing pay differential was explained by some permissible basis other than sex.³ If the Court applied the proper legal standards, our review is to determine if his findings are supported by substantial evidence and thus not "clearly erroneous". If, however, an unexplainable difference in pay did exist, the amount is of no importance on the general issue of liability, Hodgson v. American Bank of Commerce, 5 Cir., 1971, 447 F.2d 416.

The District Judge found that the positions of exchange teller and note teller did not provide a proper comparison because that of exchange teller carried more responsibility and therefore justified higher pay. The criterion here was clearly delineated by this Court in Hodgson v. Brookhaven General Hospital, supra:

"The equal effort criterion has received substantial play in the reported cases to date. As the doctrine is emerging, jobs do not entail equal effort, even though they entail most of the same routine duties, if the more highly paid job involves additional tasks which (1) require extra effort, (2) consume a significant amount of the time of all those whose pay differentials are to be justified in terms of them, and (3) are of an economic value commensurate with the pay differential.

We are persuaded that this approach to the application of the statutory `equal effort\' criterion is in keeping with the fundamental purposes of the Equal Pay Act, and adopt it here." 436 F.2d at 725.

The record reflects that after a thorough internal assessment of its complete operation the Bank classified the exchange teller position in a higher grade than the note teller position. Of course, in Hodgson v. Brookhaven General Hospital, supra, we pointed out that the controlling factor in equal pay allocations has to be job content, not the job description prepared by the employer. Neither should the employer's rating of jobs be ignored simply because the employer made it, especially where, as here, the rating came after an extensive study of comparative qualifications, degrees of responsibility, and chances of loss to the Bank.

The duties of the exchange teller included income collections, payments on bonds, the sale of traveler's checks and cashier's checks, accounting for all traveler's checks and cashier's checks, including those sold by the note tellers, exchange of foreign currency, receipt of note payments on commercial and installment loans, and helping in the Note Department as needed.

On the other hand, the duties of the note tellers included receipt of payments on installment loans and the posting of such payments, setting up new commercial and installment loans, computing interest on loans, handling automatic charges against customers' accounts for payments on loans, and preparing various reports reflecting transactions and the status of the accounts in the Note Department.

The record is convincing that the duties of the exchange teller were more complicated and were such that errors could not easily be corrected in the internal operation of the Bank. The Note Department duties, however, were of such a nature that errors could be corrected within the internal operation of the Bank. Furthermore, there was a specific duty upon the exchange teller to keep informed as to the current rates of exchange. An error there would be very difficult to correct. The chance of loss to the Bank was greater than with any duty of the note tellers. This, the lower court felt, led to greater responsibility in the exchange teller position and, therefore, validated any pay differential between the two positions. We agree.

While the record does reflect that on some occasions the note tellers would carry on the exchange tellers' function and vice versa, mainly when a rush period was experienced by one of the positions, the vast majority of the time the individual positions were actually manned by the person designated to do so. Furthermore, if a note teller was for some reason carrying on the duties of the exchange teller, the designated exchange teller was not relieved of the accountability and responsibility for the actions of the person carrying on the exchange teller duties.

The Bank has since discontinued the position of exchange teller. While this position was absorbed into the regular Note Department work, it was done so only after the Bank had transferred several experienced workers into the Note Department. This concerted effort to strengthen the Note Department resulted from a large turnover in personnel in that Department. After strengthening the Note Department with some longterm employees, the responsibilities of the exchange teller position were taken on primarily by an experienced employee. Although he didn't wait on customers, he did have full accountability for the transactions.

The Secretary infers that since the Note Department absorbed the exchange teller position and that since several experienced employees had been moved from exchange teller to note teller, the positions were of equal work and responsibility. However, in light of the differing duties and responsibilities, as well as the Bank's need to strengthen the Note Department, there is no reason for us to stamp the findings as to differences in the nature of the work with the "clearly erroneous" label, Hodgson v. American Bank of Commerce, supra.

The Secretary further urges, however, a comparison of the salaries paid to the various individuals who, at one time or another during the period in question, occupied the position of exchange teller. In the first place, there is no question that the positions were equal, for they were the same. A meaningful comparison of the salaries paid the males and females, to say the least, is difficult because there was never more than one person at a time holding the exchange teller job. Consequently, the salaries sought to be compared existed at differing intervals of time, under varying price levels applicable at any particular point.

Hence, we conclude that none of the factors hereinabove discussed suffice to overturn the basic findings as to the exchange tellers.

B. A Comparison of the Individuals and the salaries paid them as Exchange Tellers

Marjorie Chanek began with the Bank in the Note Department in February, 1960, at a salary of $175 per month. She became exchange teller in 1963 at a salary of $265. She left the position in 1965, when she was receiving $325.

Her successor was Carlton Speck. He had begun with the Bank in November 1954 as a bookkeeper. He was paid $410 a month as exchange teller, but it will be noted that he began work for the Bank six years before Mrs. Chanek did.

He, in turn, was succeeded in January 1969, by Mrs. Sharon Grammer. She had been employed at the Bank for one year, receiving $280 monthly as a note teller. Upon the new assignment, her salary was raised to $320. She, however, left the Bank after only six months as exchange teller. It had been understood from the beginning that she only wanted to work until her husband completed his education and she had been hired as a favor to her father, who was a good customer of the Bank, although it had a policy against short term employments.

Christopher Langenberg succeeded Mrs. Grammer. She trained him for two months before leaving the Bank. He started at a salary of $325. By February, 1971, he was receiving $395, at which time he was transferred to the Credit Department, where he is still employed.

The Bank explains Speck's higher salary, as compared to that of Mrs. Chanek, on the basis of five years added seniority and merit raises received accordingly.

The pay differential between...