Clymore v. Far-Mar-Co., Inc.

• Decision Date: 29 July 1983
• Docket Number: No. 82-2004,FAR-MAR-CO,82-2004
• Citation: 709 F.2d 499
• Parties: 42 Fair Empl.Prac.Cas. 439, 32 Empl. Prac. Dec. P 33,671, 97 Lab.Cas. P 34,391 Linda K. CLYMORE, Appellee, v., INC., Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 499

709 F.2d 499

42 Fair Empl.Prac.Cas. 439,

32 Empl. Prac. Dec. P 33,671, 97 Lab.Cas. P 34,391

Linda K. CLYMORE, Appellee, v. FAR-MAR-CO., INC., Appellant.

No. 82-2004.

United States Court of Appeals,

Eighth Circuit.

Submitted April 15, 1983.

Decided June 8, 1983.

As Amended July 29, 1983.

Opinion on Denial of Rehearing July 29, 1983.

Richard E. Armitage, Thomas O'Donnell, Kansas City, Mo., for appellee.

Stinson, Mag & Fizzell, Sheryl B. Etling, Richard Monaghan, Kansas City, Mo., for appellant.

Before BRIGHT and FAGG, Circuit Judges, and REGAN, ^* Senior District Judge.

FAGG, Circuit Judge.

Far-Mar-Co. appeals from the district court's ruling that it violated the Equal Pay Act by paying discriminatory wages to Linda Clymore. Clymore v. Far-Mar-Co., 549 F.Supp. 438 (W.D.Mo.1982). Far-Mar-Co. challenges the comparison of Clymore to her three male predecessors and also argues that it was inappropriate to compare Clymore to one male successor. Additionally, Far-Mar-Co. urges this court to overturn the lower court's award of liquidated damages and attorneys' fees. We affirm the district court's predecessor-employee analysis but agree that the successor comparison was inappropriate. We reverse the award of liquidated damages and remand to the district court for a redetermination of attorneys' fees.

I. BACKGROUND

Clymore was first employed as a grain clerk with Far-Mar-Co. from August 1972 to June 1974. In March 1975, she was rehired and worked as an accounting clerk until April 1976, when she was promoted to grain desk supervisor. As grain desk supervisor, Clymore was classified as a general accountant on Far-Mar-Co.'s salary range system. However, her wage was always below the general accountant's salary guidelines. Upon her April promotion, she was paid $4.00 per hour. In March 1977, she received a raise to $4.40 per hour and in March 1978 her salary changed to $4.80 per hour. After Clymore complained that she was not being paid within the company's salary range for general accountant, she was reclassified in the lower classification of senior clerk in March 1979 and her wage was raised to $5.35 per hour. Clymore resigned her position of grain desk supervisor in June 1979.

The grain desk supervisor's primary responsibility was to oversee the rail shipment of grain. From January 1975 until Clymore was promoted in April 1976, three males worked as grain desk supervisor. During that time period the job was always held sequentially so that no more than one person worked in the position at one time. The job was classified as general accountant on the salary scale until the lower classification was assigned in March 1979. Arthur Pease, who had one year experience with Far-Mar-Co., was paid $4.60 per hour for his work as grain desk supervisor from January to April 1975. From May to June 1975, Gregory Edelblute, with eight months experience at Far-Mar-Co., received $4.60 per hour while working as the grain desk supervisor. Immediately prior to Clymore, August 1975 to March 1976, the position was filled by Gary Haer, who had no prior experience at Far-Mar-Co. His starting salary was $3.75 per hour which was increased to $4.00 per hour in November 1975 when his probationary period ended. As already discussed, Clymore started at $4.00 per hour when she became the grain desk supervisor in April 1976, and she was earning $5.35 per hour when she resigned in June 1979. After Clymore resigned, the position of grain desk supervisor was eliminated and the new position of manager grain entry was created. Donald Preisser was hired in July 1979 at a monthly salary of $1,150 to fill the newly-created position. His duties included all of the responsibilities of the abolished grain desk supervisor position but, in addition, he was hired to implement a new computerized front-end system for tracking grain shipments.

Clymore sued Far-Mar-Co. in August 1980 alleging violations of the Equal Pay Act and of Title VII. The district court found in favor of Far-Mar-Co. on the Title VII claim and Clymore has not appealed that decision. After comparing Clymore's wage to her three male predecessors and one male successor, the district court sustained her Equal Pay Act claim. The court awarded her back-pay, liquidated damages, attorneys' fees and expenses. Far-Mar-Co. appealed to this court and has challenged four aspects of the lower court's decision awarding Clymore relief: (1) the court's analysis of Clymore's wage in comparison to the three male predecessor employees; (2) the court's comparison of Clymore to Preisser, a successor employee; (3) the liquidated damages award; and (4) the award of attorneys' fees.

II. PREDECESSOR EMPLOYEES

A. Prima Facie Case

After comparing Clymore to her three male predecessors, the district court concluded that she had established a prima facie case in that she was paid less than her male counterparts for equal work. The court stated: "More than a year before [Clymore] became Grain Desk Supervisor [Far-Mar-Co.] paid males sixty cents per hour more than [Clymore] initially received. Only after two years as Grain Desk Supervisor did [Clymore's] wage finally reach the level of her male predecessors, Arthur Pease and Gregory Edelblute." 549 F.Supp. at 442. The court recognized that Clymore's immediate predecessor, Gary Haer, was paid the same rate at which Clymore started, $4.00 per hour. One reason Haer was paid less was because he requested less money on his application for employment with Far-Mar-Co. After considering the respective experience of Clymore and Haer, the court determined that Haer's wage had to be discounted. Haer had no experience while Clymore had three years of experience with Far-Mar-Co. and the evidence indicated that experience was an important qualification for grain desk supervisor. The court concluded the more appropriate comparison was between Clymore and the two males preceding Haer, Pease and Edelblute, who both had approximately one year of experience with Far-Mar-Co. Id.

Far-Mar-Co. first argues that the lower court erred in finding a prima facie case where Clymore was paid the same as her immediate male predecessor, Haer, because that fact should be the end of any analysis of Clymore's Equal Pay Act claim as a matter of law. According to Far-Mar-Co., courts have allowed claims based on comparisons with an immediate predecessor or successor but have not allowed comparisons with a non-immediate predecessor or successor. See Strecker v. Grand Forks County Social Service Board, 640 F.2d 96 (8th Cir.1981); Pearce v. Wichita County, Wichita Falls, Texas, Hospital Board, 590 F.2d 128 (5th Cir.1979); Hodgson v. Behrens Drug Co., 475 F.2d 1041 (5th Cir.), cert. denied, 414 U.S. 822, 94 S.Ct. 121, 38 L.Ed.2d 55 (1973). In our view, the cases in this area do not support the narrow rule advanced by Far-Mar-Co. Courts have not held that Equal Pay Act comparisons must stop with an immediate predecessor or successor as a matter of law. Rather, in the factual context of most cases, non-immediate comparison was unnecessary or factually impossible.

Although Far-Mar-Co. relies heavily on Behrens Drug Co., that court utilized both non-immediate and immediate comparisons where factually appropriate. In Behrens, female workers were paid a discriminatorily low wage in four separate job categories. Concerning data processing department supervisors, the facts supported a comparison between one male supervisor and the female who replaced him. The court stated that "the Equal Pay Act applies to jobs held in immediate succession, as well as simultaneously." Hodgson v. Behrens Drug Co., supra, 475 F.2d at 1049. However, the sequential holding of the jobs was not the disputed issue and there was no suggestion that any type of non-immediate comparison was factually possible. Rather, whether the male's wage was justified by the performance of extra work and whether the statute of limitations barred the claim were the crucial issues concerning that employee category. Id. at 1048-51. In context, the court's statement of "immediate" succession does not stand as a limitation requiring only immediate-succession comparisons while rejecting, as a matter of law, non-immediate comparisons.

In its discussion of the separate job category of city order desk employees, the court rejected Behrens' contention that the lower pay given females in that job was justified by its sales training program. The facts supported non-immediate comparisons for one of the female employees, Patricia Kolb. She worked from November 30, 1970, to December 31, 1970. Two male employees, Carney and Connor, ended their jobs at the city order desk in March 1968 and one male employee, Ball, started in February 1970 and ended in July 1970. The fourth male employee, Bailey, started on December 7, 1970, and ended on June 1, 1971. Id. at 1048 n. 10. The court did not indicate that Kolb could only be compared to Ball, the most immediate male predecessor, or Bailey, who worked concurrently with Kolb for approximately one month. Instead, Kolb was one of three females ruled to have engaged in work equal to the work of the four males but at a substantially lower rate than Behrens paid the male employees. Id. at 1044. Behrens does not support Far-Mar-Co.'s contention that the Equal Pay Act limits a comparison of Clymore's wages to only her immediate male predecessor as a matter of law. Behrens suggests that an Equal Pay Act violation must be determined in light of all appropriate facts, including, when factually supportable, non-immediate predecessor comparisons.

Additionally, the Seventh Circuit, in an analogous case, utilized non-immediate comparisons in the context of successor employees. See Taylor v. Philips Industries, Inc., 593 F.2d 783 (7th Cir.1979). Although the Taylor plaintiff's claim was based on Title VII, Taylor is analogous to this case because Title VII provisions on discriminatorily low wages based on sex are construed...