Brobst v. Columbus Services Intern.

Decision Date17 August 1987
Docket NumberNo. 86-3532,86-3532
Citation824 F.2d 271
CourtU.S. Court of Appeals — Third Circuit
Parties44 Fair Empl.Prac.Cas. 634, 28 Wage & Hour Cas. (BN 273, 43 Empl. Prac. Dec. P 37,242, 107 Lab.Cas. P 34,938, 40 Ed. Law Rep. 1145, 23 Fed. R. Evid. Serv. 436 Eleanor A. BROBST, Patricia M. Heiney, Marie M. Fritz, Sharon M. Middlecamp, Luella M. Hamm, Verna Millward, Robert Lee Little, Robert N. Buckwalter, Marian E. Stettler, Claudia Wotta, Verna S. Undercuffler, Alice S. Miessner, Dennis G. Cook, Jean R. Berger, and Elizabeth S. LeVan, Jean R. Berger, Executrix of the Estate of Marie M. Fritz, Madeline Dorney, Carmella Hawk, Donald Lakovitz, Elaine Seislove, Carol Snyder, Bernard Polit, Scott Rehrig, and Victor Bortz v. COLUMBUS SERVICES INTERNATIONAL, a corp. and Walter R. Morgan, Indiv. and as Officer of Deft. Corp. Appeal of Eleanor L. BROBST, Jean Berger, Sharon M. Middlecamp, Robert Buckwalter, Marian E. Stettler, Madeline Dorney, Jean R. Berger, Executrix of Estate of Marie M. Fritz, Verna S. Undercuffler, Claudia Wotta, Alice S. Meissner, Dennis G. Cook, Carol Snyder, Donald Lakovitz, Carmella Hawk, Elaine Seislove, Bernard Polit and Scott Rehrig.

Richard J. Orloski, Orloski & Hinga, Allentown, Pa., for appellants.

Paul M. Puskar, Baskin Flaherty Elliott & Mannino, P.C., Pittsburgh, Pa., for appellee.

Before GIBBONS, Chief Judge, MANSMANN, Circuit Judge, and KATZ, District Judge. *

OPINION OF THE COURT

MANSMANN, Circuit Judge.

This matter comes before us on appeal from a judgment upon a verdict in favor of the defendant, Columbus Services International ("CSI"), in the plaintiffs' action under the Equal Pay Act of 1963. See 29 U.S.C. Sec. 201 note (1982); 29 U.S.C. Sec. 206(d) (1982). 1 We possess jurisdiction pursuant to 28 U.S.C. Sec. 1291 (1982). We find that the district court adequately charged the jury that the plaintiffs bore the burden of proving that CSI had discriminated against them on the basis of sex. Moreover, evidence regarding the gender of, and wages paid to, the plaintiffs and the allegedly preferred CSI employees reached the jury in the form of payroll records. Thus, the trial judge's error in twice excluding testimony concerning the sex of CSI's employees was harmless. We will, therefore, affirm the district court's judgment.

I.

The plaintiffs are present or former maintenance employees of Cedar Crest College ("Cedar Crest" or "the college") in Allentown, Pennsylvania. Before July 3, 1977, the college classified the workers as either "laborers" or "custodians." The laborers were all male and earned forty cents per hour more than the custodians who were, all but one, female. Cedar Crest paid this premium to the laborers averredly since they maintained the college grounds and so had chores relatively heavier than the custodians' tasks. The laborers also occasionally had to operate floor buffers, rug shampooers, and similar power equipment indoors. The custodians, on the other hand, cleaned rest rooms, vacuumed and dusted, and emptied trash. However, a custodian would receive the $.40 per hour premium whenever he had to perform "laborers' work."

On July 3, 1977, CSI took over the maintenance work at Cedar Crest. CSI then reclassified all of the employees as "custodians" and compensated them at the lower custodian scale without altering their duties. Four employees filed grievances. An arbitrator thereupon ordered CSI to pay the premium to custodians while they did laborers' work. CSI refused on the ground that a consent decree in an unrelated Equal Pay Act case barred CSI from paying different wages for substantially equal work. CSI then petitioned the Department of Labor ("DOL") to approve CSI's position, but DOL opined that CSI should have to compensate all of its custodians at the higher, laborer rate.

The plaintiffs, in turn, sued CSI, alleging violations of the Equal Pay Act and of the consent decree. 2 The district court, on CSI's motions in limine and for summary judgment, found no breach of the consent decree by CSI, concluded that the custodian and laborer jobs in no way constituted "equal work" for Equal Pay Act purposes, and granted summary judgment for CSI since the plaintiffs supposedly failed to establish a prima facie case that "CSI equalized male and female wage rates at a lower 'female' rate." Brobst v. Columbus Services Int'l, 582 F.Supp. 830, 834 (W.D.Pa.1984).

On appeal, we vacated and remanded. Brobst v. Columbus Services Int'l, 761 F.2d 148 (3d Cir.1985). We determined that the district court erroneously decided the motion in limine on different grounds than CSI asserted, effectively transformed the motion into one for summary judgment and, thereby, precluded the plaintiffs from marshalling evidence to show a genuine issue of material fact on the "equal work" question. Id. at 154. We further held that the district court improperly made factual findings instead of accepting CSI's proffered theory on CSI's motion for summary judgment. Id. at 157-58.

At trial, the plaintiffs introduced evidence that, inter alia, the custodian and laborer work required equal skill, effort, and responsibility and offered similar working conditions. When the plaintiffs sought to prove that the laborers were all males, however, the trial judge sustained the defendant's relevancy objection.

MR. ORLOSKI [for the plaintiffs]: The people the Judge has just been talking about [the laborers], are those people paid the same rate as the custodians?

MR. SNYDER [plaintiff]: No, sir.

MR. ORLOSKI: The people that the Judge was just talking about, what is their sex?

MR. SNYDER: They are all males.

MR. PUSKAR [for the defendant]: Your Honor, I am going to ask that be stricken. This is not a civil rights case. It doesn't matter what sex they are. It has no relevancy to this cause of action, this lawsuit at all.

THE COURT: We will sustain the objection and strike the last question and answer and ask the jury to disregard it.

Subsequently, a similar exchange occurred.

MR. ORLOSKI: The laborers are practically all now male and have always been all male?

MS. MIDDLECAMP-WAITKUS [plaintiff]: Yes. That's correct.

MR. PUSKAR: Same objection, Your Honor.

THE COURT: All right. We, of course, sustain the objection. Any other questions of the witness, Mr. Orloski?

The jury returned a verdict for the defendant. This timely appeal followed.

II.

The plaintiffs present three points of error. First, they argue that the district court improperly excluded proof of the gender of the plaintiffs and of the laborers on the fallacious theory that a plaintiff's sex lacks relevance in an Equal Pay Act case. Second, the plaintiffs contend that the trial judge wrongly refused to admit evidence that the defendant's counsel unilaterally terminated the deposition of James Sutherland a former CSI officer, and to grant the plaintiffs' request for an adverse inference charge. Finally, the plaintiffs insist that the district court erred in holding as a matter of law that the applicable statute of limitations 3 precluded the plaintiffs from recovering damages incurred after they filed their complaint and, further, in ruling that the statute continued to run while the case remained pending in the Eastern District of Pennsylvania. See supra note 2.

On appeal, our review of the trial judge's relevancy rulings is plenary. In re Japanese Electronic Products Antitrust Litigation, 723 F.2d 238, 269 (3d Cir.1983). We evaluate the district court's decision on points for charge by an abuse of discretion standard. United States v. Fischbach and Moore, Inc., 750 F.2d 1183, 1195 (3d Cir.1984). We must "determine whether the charge, taken as a whole and viewed in the light of the evidence, fairly and adequately submits the issues in the case to the jury." Id., quoting Ayoub v. Spencer, 550 F.2d 164, 167 (3d Cir.), cert. denied, 432 U.S. 907, 97 S.Ct. 2952, 53 L.Ed.2d 1079 (1977). At all events, "[t]o the extent the parties challenge the choice, interpretation, or application of legal precepts, we always employ the fullest scope of review[.]" Universal Minerals, Inc. v. C.A. Hughes & Co., 669 F.2d 98, 102 (3d Cir.1981).

III.
A.
1.

We turn first to the allegation which we consider most serious--that the district court twice excluded from the jury testimonial evidence which would show that each job category was filled almost exclusively by the members of one sex. On the two occasions cited above, the district court cited relevancy grounds in excluding the evidence. We conclude that the district court erred in excluding the evidence.

By the Equal Pay Act, Congress sought "to remedy what was perceived to be a serious and endemic problem of employment discrimination in private industry--the fact that the wage structure of 'many segments of American industry has been based on an ancient but outmoded belief that a man, because of his role in society, should be paid more than a woman even though his duties are the same.' " Corning Glass Works v. Brennan, 417 U.S. 188, 195, 94 S.Ct. 2223, 2228, 41 L.Ed.2d 1 (1974), quoting S.Rep. No. 176, 88th Cong., 1st Sess. 1 (1963). The Supreme Court, accordingly, has emphasized that "[i]n order to make out a case under the Act, the [complainant] must show that an employer pays different wages to employees of opposite sexes 'for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.' " Corning Glass Works, 417 U.S. at 195, 94 S.Ct. at 2228 (emphasis added), quoting 29 U.S.C. Sec. 206(d)(1) (1982). Indeed, our initial opinion in this matter, which vacated the district court's judgment for the defendant and remanded the case for further proceedings, repeatedly stressed that lucid mandate. See Brobst, 761 F.2d at 150.

Despite the manifest statutory aim of eradicating sex-based wage discrimination, the trial judge inexplicably...

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