Di Salvo v. Chamber of Commerce of Greater Kansas City, 77-1321

Decision Date12 January 1978
Docket NumberNo. 77-1321,77-1321
Parties20 Fair Empl.Prac.Cas. 825, 15 Empl. Prac. Dec. P 8034 Cynthia DI SALVO, Appellee, v. The CHAMBER OF COMMERCE OF GREATER KANSAS CITY, Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

Arlyn D. Haxton, Kansas City, Mo., for appellant; Truman K. Eldridge, Jr. and John A. Vering, III, Kansas City, Mo., on brief.

Arthur A. Benson, Kansas City, Mo., for appellee.

Before MATTHES, Senior Circuit Judge, STEPHENSON, Circuit Judge, and WANGELIN, * District Judge.

STEPHENSON, Circuit Judge.

The Chamber of Commerce of Greater Kansas City (Chamber) appeals from a judgment by the district court 1 holding it liable to Cynthia Di Salvo in damages for sex discrimination in the matter of pay in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. The appellant contends that the district court erred in determining that the Chamber discriminated against Di Salvo in her compensation because of her sex. In addition, appellant argues that the district court's award of back pay and attorney's fees to Di Salvo is excessive. We affirm the district court's order except that the total back pay shall be reduced from $14,074.78 2 to the sum of $13,808.78.

The record reveals that the Chamber, comprised of business firms and individual members, is organized for the purpose of community development and promotion in order to enhance the local economy. One of the operational activities of the Chamber during the relevant period was the publication of a monthly magazine known as the Kansas City Magazine. The magazine's staff included the office of associate editor.

On May 22, 1972, appellee Di Salvo was hired by the Chamber as associate editor of the magazine at an annual salary of $7,800. In November of the same year the Chamber hired Paul Levy and Wayne Wolfe for two newly created positions, prime time news specialist and publications development specialist. Levy's salary was $12,000 per year and Wolfe's was $11,000. On December 1, 1972, Di Salvo received a salary increase of $400, making her annual salary $8,200. At approximately the same time, Di Salvo filed a charge of sex discrimination against the Chamber with the Missouri Commission on Human Rights.

On February 7, 1973, Di Salvo resigned from her position as associate editor and accepted an offer of employment from a Kansas City advertising agency as a copywriter at an annual salary of $9,600. In March 1973 the Chamber hired William Rand as a "communications specialist" at an annual salary of $12,000.

The Equal Employment Opportunity Commission assumed jurisdiction of Di Salvo's complaint at her request and on December 11, 1973, notified Di Salvo of her right to institute a civil suit. The instant action, brought under 42 U.S.C. §§ 2000e et seq., was filed within 90 days after the above notification. After hearing the evidence the district court found that Di Salvo and her male successor Rand performed substantially equal work but Rand was paid a salary $3,800 per year greater than Di Salvo's. Furthermore, the court found that the Chamber paid two male employees, Levy and Wolfe, salaries which were respectively $4,000 and $3,000 higher than Di Salvo's for work which was substantially the equivalent of Di Salvo's in terms of skill, effort and responsibility.

42 U.S.C. § 2000e-2(a)(1) provides in part:

(a) It shall be an unlawful employment practice for an employer

(1) to * * * discriminate against any individual with respect to his compensation * * * because of such individual's * * * sex * * * .

42 U.S.C. § 2000e-2(h) provides in part:

(h) * * * It shall not be an unlawful employment practice under this subchapter for any employer to differentiate upon the basis of sex in determining the amount of the wages or compensation paid or to be paid to employees of such employer if such differentiation is authorized by the provisions of section 206(d) of Title 29.

29 U.S.C. § 206(d)(1), the Equal Pay Act of 1963 (the Act), provides:

No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions * * * .

We note at the outset that the provisions of Title VII regarding sex discrimination in the area of compensation must be construed in harmony with the Equal Pay Act. Orr v. Frank R. MacNeill & Son, Inc., 511 F.2d 166, 170 (5th Cir.), cert. denied, 423 U.S. 865, 96 S.Ct. 125, 46 L.Ed.2d 94 (1975); Ammons v. Zia Co., 448 F.2d 117, 119 (10th Cir. 1971); Shultz v. Wheaton Glass Co., 421 F.2d 259, 266 (3d Cir.), cert. denied, 398 U.S. 905, 90 S.Ct. 1696, 26 L.Ed.2d 64 (1970); Usery v. Bettendorf Community School District, 423 F.Supp. 637, 639 (S.D. Iowa 1976); Howard v. Ward County, 418 F.Supp. 494, 503 (D.N.D.1976).

This court in Katz v. School District of Clayton, Missouri, 557 F.2d 153, 156 (8th Cir. 1977), recently stated the following concerning the Act:

A prima facie case of violation of the Act is established where it is shown that "the employer (has paid) workers of one sex more than workers of the opposite sex for equal work." Corning Glass Works v. Brennan, 417 U.S. 188, 196, 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974). Equal work under the Act means "jobs the performance of which requires equal skill, effort and responsibility, and which are performed under similar working conditions." 29 U.S.C. § 206(d). * * * (W)e interpret the statute to mean that two employees are performing equal work when it is necessary to expend the same degree of skill, effort and responsibility in order to perform the substantially equal duties which they do, in fact, routinely perform with the knowledge and acquiescence of the employer. The Act cannot be avoided because the job titles of employees are not the same nor is the Act avoided if the official job descriptions of employees specify different duties. "Actual job requirements and performance are controlling." Brennan v. Prince William Hospital Corp., 503 F.2d 282, 288 (4th Cir. 1974), cert. denied, 420 U.S. 972, 95 S.Ct. 1392, 43 L.Ed.2d 652 (1975); Hodgson v. Daisy Manufacturing Co., 317 F.Supp. 538 (W.D.Ark.1970), modified, 445 F.2d 823 (8th Cir. 1971) (footnote omitted).

Turning to the instant case, the district court found that Di Salvo's "duties were at least substantially equal to those performed by Rand." Di Salvo v. Chamber of Commerce of Greater Kansas City, 416 F.Supp. 844, 850 (W.D.Mo.1976). The district court further noted that there was some credible testimony that Rand did not perform some of the duties performed by Di Salvo. Id. Similarly, the district court found that Wolfe's job involved no more skill, effort, or responsibility than Di Salvo's. Again, the district court stated that it appeared that there were more duties to be performed and responsibilities to be borne in Di Salvo's position than in that of Wolfe's. Id. Finally, in regard to Levy, the district court found that his writing responsibilities did not require any skills not required of Di Salvo in her job. Although Levy had additional duties, these duties required no more skill, effort or responsibility than Di Salvo's job. The district court concluded that the value of the duties of Levy's position were substantially equivalent to the value of the duties of Di Salvo. Id. at 851.

The findings of fact by the district court are entitled to great weight and we must accept them unless they are clearly erroneous under Fed.R.Civ.P. 52(a); Kendrick v. Commission of Zoological Subdistrict, 565 F.2d 524 at 526 (8th Cir. 1977); Ridgway v. United Hospitals-Miller Div. 563 F.2d 923 at 927 (8th Cir. 1977). When the record is considered as a whole, it is clear that the district court's findings concerning the substantial equality of the work are not clearly erroneous. We conclude that the trial court's determination that Di Salvo had established by a preponderance of the evidence that the Chamber discriminated against her in salary because of her sex is supported by substantial evidence.

The district court properly noted that because Di Salvo met her burden of proving discrimination, the burden shifted to the Chamber to justify the difference in compensation by reference to one or more of the exceptions appearing in the Act. Di Salvo v. Chamber of Commerce of Greater Kansas City, supra, 416 F.Supp. at 853. Once again when the record is considered as a whole, we are satisfied that the district court's conclusion that the Chamber failed to carry its burden is supported by substantial evidence. The only remaining question concerns the propriety of the relief granted to Di Salvo.

The district court, in computing the amount of Di Salvo's back pay, indicated that in the absence of the Chamber's discriminatory practices, Di Salvo would have received a salary of $12,000 per year plus scheduled increases. 3 The district court stated that Di Salvo was entitled to receive the difference between the above figure and what she actually received. The Chamber contends that the back pay calculation of the district court does not take into consideration the increase in salary granted to Di Salvo by the Chamber of $400 per year effective December 1, 1972. In addition, the Chamber contends that the district court's calculation does not take into account the bonus of $400 which Di Salvo earned as interim income with the advertising agency in Kansas City. We agree with the Chamber and accordingly reduce the total back pay from $14,074.78 to $13,808.78. 4

The Chamber further argues that the district court erred in its determination of the back...

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