Di Salvo v. CHAMBER OF COMMERCE OF GR. KANSAS CITY

• Citation: 416 F. Supp. 844
• Decision Date: 22 June 1976
• Docket Number: Civ. A. No. 74CV60-W-3.
• Parties: Cynthia DI SALVO, Plaintiff, v. The CHAMBER OF COMMERCE OF GREATER KANSAS CITY, Defendant.
• Court: U.S. District Court — Western District of Missouri

416 F. Supp. 844

Cynthia DI SALVO, Plaintiff, v. The CHAMBER OF COMMERCE OF GREATER KANSAS CITY, Defendant.

Civ. A. No. 74CV60-W-3.

United States District Court, W. D. Missouri, W. D.

May 10, 1976.

As Amended June 22, 1976.

COPYRIGHT MATERIAL OMITTED

Arthur A. Benson, II, Kansas City, Mo., for plaintiff.

Arlyn D. Haxton, Dietrich, Davis, Dicus, Rowland & Schmitt, Kansas City, Mo., for defendant.

FINDINGS OF FACT, CONCLUSIONS OF LAW, JUDGMENT FOR PLAINTIFF AND ORDER DIRECTING COUNSEL TO MEET AND CONFER TO DETERMINE WHETHER A STIPULATION OF A REASONABLE ATTORNEY'S FEE CAN BE REACHED AND TO SUBMIT FORMAL FINAL JUDGMENT

WILLIAM H. BECKER, Chief Judge.

This is an action under Title VII of the Civil Rights Act of 1964, Section 2000e et seq., Title 42, United States Code. Plaintiff, a white female university graduate and journalist, claims that defendant, The Chamber of Commerce of Greater Kansas City (hereinafter "defendant"), discriminated against her because of sex in payment of compensation during her employment by the defendant. Plaintiff originally sought back pay, punitive damages, injunctive relief and attorneys' fees. The claims for punitive damages and injunctive relief have been abandoned.

On or about December 1, 1972, plaintiff filed a charge of discrimination with the Missouri Commission on Human Rights under Section 296.010 et seq., V.A.M.S., in which she alleged that defendant was discriminating against her because of sex by refusing to give her equal pay for equal work. Thereafter, within 300 days of the alleged unlawful employment practice, the Equal Employment Opportunity Commission (hereinafter "EEOC") assumed jurisdiction of the complaint at plaintiff's request. On December 11, 1973, the EEOC notified plaintiff of her right to institute a civil action. This action, filed February 14, 1974, was brought within 90 days after notification of her right to sue was received by plaintiff. Therefore, jurisdiction exists under Sections 2000e-5(e) and (f), Title 42, United States Code.

After completion of pretrial proceedings, a plenary evidentiary trial without a jury was held. Both plaintiff and defendant submitted trial memoranda and proposed findings of fact and conclusions of law.

After a careful review of the controverted factual and legal contentions of the parties, the stipulations of fact, and the evidence presented, the following determinations of the factual and legal issues have been made.

Findings of Fact

Plaintiff is a female citizen of the United States. She was a resident of the State of Missouri while employed by defendant.

Defendant is a Missouri pro forma benevolent corporation chartered in 1909. At all times material, defendant was engaged in an industry affecting commerce and had fifteen or more employees for each working day in each of twenty or more calendar weeks per year. Defendant's principal place of business is located in Kansas City, Missouri.

On or about May 22, 1972, plaintiff was employed by defendant as Associate Editor of defendant's monthly publication, The Kansas City Magazine. Her starting salary was $7,800.00 per year, or $650.00 per month, the same salary that had been paid her female predecessor, Cynthia Hardy.

Prior to her employment, in 1970, plaintiff had received a Bachelor of Arts degree, with a major in journalism, from Pennsylvania State University. Thereafter she acquired related employment experience in journalism, first as a freelance writer for several public relations firms and later, from September, 1971, to May, 1972, as a copywriter and editor of a weekly newsletter for The American Telephone and Telegraph Company (hereinafter "A.T. & T."). Her duties at A.T. & T. included photography, writing, gathering information and other similar journalistic and public relations work. The parties have stipulated that during her employment by the defendant plaintiff was fully qualified to perform the duties of Associate Editor of a magazine.

Before her employment by defendant, plaintiff was interviewed by two of defendant's executive employees, James Morgan, then Editor of The Kansas City Magazine, and Morgan's superior, Robert John, defendant's General Manager of Services. Both were then concerned that plaintiff would later become dissatisfied with her salary. At A.T. & T., plaintiff was earning $795.00 per month. So, at her starting salary of $650.00 per month offered by the defendant, she would receive $145.00 per month less with defendant. However, plaintiff stated she was willing to take the salary reduction to broaden her experience with industrial publications and to obtain name recognition through publication of articles under her personal byline. Both Morgan and John recommended that plaintiff be hired because of her basic writing ability, her willingness to learn professional magazine style writing technique, and her ability and willingness fully to follow the instructions and to perform the assignments of the Editor. The decision to hire plaintiff was made by Richard K. Degenhart, Executive Vice-President of defendant.

Plaintiff testified that at the time she was hired, Morgan assured her that there would be a review of her initial probationary status within three months and implied that a raise in salary might accompany that review. Defendant's Personnel Policies and Procedures Manual provides that new employees are on probationary status for the first three months, at which time a review of the employees job performance is conducted to determine whether the employee should be hired on a permanent basis, continued on a probationary basis, or discharged. However, the Manual does not provide for a salary review at that time.

Plaintiff complained to Morgan during the first two months of her employment, and again in the fall of 1972, about the inadequacy of her salary. After the complaint, in the fall of 1972, John advised her that budgetary considerations precluded salary increases. The evidence shows, however, that in its communications section defendant hired two males, Paul Levy and Wayne Wolfe, in the fall of 1972 at salaries substantially higher than plaintiff's (see Parts C and D, infra) and increased the salary of Morgan, plaintiff's immediate superior, effective November 1, 1972.

On November 1, 1972, defendant merged the production of The Kansas City Magazine with the Communications, Advertising and "Prime Time" (a national program to enhance the "image" of Kansas City) sections into a single Communications Department. Plaintiff's immediate supervisor, Morgan, became Manager of the Communications Department and continued to serve as Editor of The Kansas City Magazine. Thus Morgan assumed increased management responsibility.

In early November, 1972, defendant's Executive Committee was presented with overall salary recommendations for the 1972-73 fiscal year beginning December 1, 1972. The Executive Committee then was concerned that defendant's salaries might not be comparable with salaries for similar positions in private industry. To secure an answer to this question, the Executive Committee commissioned a salary survey to be completed prior to making any decisions regarding the salary recommendations. Salary administrators were appointed to make the salary survey. In mid-November, 1972 they sent questionnaires to all defendant's employees to determine the responsibilities and duties of each employee. After review of the questionnaires and answers, the salary administrators recommended that plaintiff be given a raise of $500.00 per year from $7,800.00 to $8,300.00. The Executive Committee, however, granted an increase to plaintiff of only $400.00 per year to $8,200.00 effective December 1, 1972.

Despite plaintiff's repeated complaints that her salary was not commensurate with her duties, the salary survey did not include a purpose to determine differences in salaries based solely on sex. It did not expressly include a comparison of the duties performed by defendant's male and female employees to determine whether equal salaries were being paid to employees of each sex for substantially equal duties.

Although plaintiff was disappointed with the amount of her salary increase, she remained with defendant until February 7, 1973, when she voluntarily terminated her employment by defendant and accepted an offer of employment from Valentine-Radford Advertising Agency at an increased annual salary of $9,600.00 as a copywriter.

After plaintiff resigned, James Morgan sought a replacement for the position of Associate Editor. Paul Levy, who was also employed in the Communications Department, testified that Morgan told him that he had interviewed three women for plaintiff's job but that none would accept the position for the salary plaintiff had been paid.¹ Grant Stauffer, an investigator for the Missouri Commission on Human Rights, confirmed that Levy had informed him of Morgan's admission during his investigation in 1973.

After his unsuccessful attempts to find a successor for plaintiff at plaintiff's salary, Morgan interviewed Willard Rand, a male, for the job. Rand was interested but would not accept the position at a salary less than $12,000.00 per year. Because Rand appeared to have had extensive experience in editing and writing for public relations publications, Morgan recommended to Robert John that the position of "Associate Editor" be dropped and that Rand be hired at an annual salary of $12,000.00 as a "Communications Specialist." Morgan obtained John's concurrence after arguing that the recently employed Publications Development Specialist in the Communications Department, Wayne Wolfe, was not performing as anticipated; that Sam D. Hales, editor of a weekly newsletter, The Kansas Citian, who was 66 or 67 years old, might retire at any time; and that Rand would be available to take on the duties of either if necessary. In a memorandum to Degenhart dated March 9, 1973, Morgan stated that his initial plans were for Rand ...