E.E.O.C. v. Kenosha Unified School Dist. No. 1, s. 79-1676

• Decision Date: 03 January 1980
• Docket Number: 79-2042 and 79-2096,Nos. 79-1676,s. 79-1676
• Citation: 620 F.2d 1220
• Parties: 22 Fair Empl.Prac.Cas. 1362, 24 Wage & Hour Cas. (BN 728, 23 Empl. Prac. Dec. P 30,897, 23 Empl. Prac. Dec. P 31,024 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. KENOSHA UNIFIED SCHOOL DISTRICT NO. 1, Defendant-Appellee. . Heard
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1220

620 F.2d 1220

22 Fair Empl.Prac.Cas. 1362,

24 Wage & Hour Cas. (BN 728,

23 Empl. Prac. Dec. P 30,897,

23 Empl. Prac. Dec. P 31,024

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. KENOSHA UNIFIED SCHOOL DISTRICT NO. 1, Defendant-Appellee.

Nos. 79-1676, 79-2042 and 79-2096.

United States Court of Appeals, Seventh Circuit.

Heard Jan. 3, 1980.

Decided April 29, 1980.

As Modified on Denial of Rehearing May 9, 1980.

William H. Ng., E.E.O.C., Washington, D.C., for plaintiff-appellant.

Clifford G. Buelow, Milwaukee, Wis., for defendant-appellee.

Before CUMMINGS and TONE, Circuit Judges, and McGARR, District Judge. ^*

CUMMINGS, Circuit Judge.

Unified School District No. 1 of the City of Kenosha, Wisconsin, classifies its general custodial and maintenance employees as either custodians, who work in three shifts, and housekeepers or cleaners, who are either part-time or full-time. ¹ Between 1970 and 1978, all but one of the cleaners were women and all but four of the custodians were men. The pay differential between second- and third-shift custodians on the one hand ² and housekeepers or cleaners on the other was approximately $0.46 to $0.54 per hour. No special education or experience is required for any of these positions.

In 1973, the Secretary of Labor ³ commenced this action, alleging that the defendant School District's classifications violated the equal pay and overtime provisions of the Fair Labor Standards Act and that defendant had improperly withheld compensation owed its employees under the statute. In particular, the complaint asserted that by paying the cleaners rates less than the custodians, defendant was discriminating between employees on the basis of sex and was thereby violating Sections 6(d)(1) and 15(a)(2) of the Act (29 U.S.C. §§ 206(d) (1) and 215(a)(2)) ⁴. By subsequent amendment, plaintiff also alleged that defendant employed threats in violation of Section 15(a)(3) of the Act ⁵ to secure a petition from 29 of its 32 women cleaners to the Commission stating that they were completely satisfied with their jobs and requesting plaintiff to dismiss the lawsuit.

In a May 16, 1978 order before trial, the district court considered numerous defense motions seeking dismissal of the action for failure to prosecute, providing a "sham" witness list in violation of an earlier discovery order, and failing to develop a prima facie case. Defendant also sought to prevent Stanley Bloch, a Government rebuttal witness, from testifying because plaintiff had failed to comply with a March 31, 1978, court directive to produce documentary material held by this expert witness. Judge Warren had previously assessed plaintiff $100 for reasonable expenses and attorneys' fees incurred by defendant in obtaining the March 31 order compelling the Secretary to produce all of Bloch's reports. In the May 16 order, Judge Warren denied the motion to dismiss. He did, however, specifically rule that Bloch could not testify and again ordered plaintiff to narrow its witness list. At the same time, the district judge ordered plaintiff's counsel to pay reasonable expenses and attorneys' fees to defendant in the amount of $150 because of plaintiff's failure to name its trial witnesses.

At a bench trial, the parties stipulated to 76 uncontested facts and the Government called 14 witnesses to testify. At the close of the Government's case, the district court dismissed the action with prejudice. In an oral opinion Judge Warren reasoned that the female housekeepers or cleaners and the higher paid, largely male custodians did not have identical duties so that there was no violation of Section 6(d)(1) of the Act. Judge Warren also found that the defendant has not retaliated or threatened to retaliate against any employee who complained about its employment practices as proscribed by Section 15(a)(3) of the Act. He noted that defendant had merely told its employees in response to a question that "if the school district were required to pay housekeepers to perform the same duties it expects custodians to perform, and that if a housekeeper is unable to perform the duties which a custodian is expected to perform that the housekeeper will be terminated by the school district" (Com'n App. 28-29). Such a statement, he reasoned, was "a defensible position" because the school district would certainly be entitled to expect identical work from the employees if the Labor Department required defendant to treat all such workers alike because their jobs were identical. ⁶

In a subsequent memorandum opinion filed on July 11, 1979, the district court reiterated its oral findings holding that the Commission had failed to make out a case for a Section 6(a)(1) violation because "the skill, effort and responsibility required in the performance of the jobs of custodian and cleaner in the Kenosha Unified School District, Number One is not 'substantially equal' " (Def.App. 2). In the same memorandum opinion, the court decided that although this lawsuit "may have been brought ill advisedly," it was not brought in bad faith, so that the defendant was not entitled to the $69,882 it sought in attorneys' fees. On the other hand, the district court applied its local rule 9.02(d) ⁷ and awarded defendant costs of $5,925.87 for expenses incurred in obtaining statistical analyses introduced into evidence by plaintiff and $915 for computer expenses. Finally, Judge Warren disallowed defendant's claim of an additional $20,417 for services of a consulting firm.

Plaintiff now appeals from Judge Warren's order dismissing the complaint with prejudice and his order precluding Bloch from testifying. It also asks us to reverse the district court's orders awarding defendant (1) $5,925.87 for its expenses in developing the statistical analyses, (2) $915 for computer expenses, (3) $100 for expenses and attorneys' fees in securing the March 31, 1978, order compelling Bloch to make his reports available and (4) $150 for expenses and attorneys' fees for the Government's initial failure to name its trial witnesses. Defendant has cross-appealed seeking reversal of Judge Warren's denial of attorneys' fees for the suit as a whole. We affirm Judge Warren's rulings in all respects on the merits, the exclusion of witness Bloch and his award of $6,840.87 in costs, but reverse his award of $100 for expenses and fees in compelling the Bloch discovery and the $150 awarded because of the Government's failure to supply an appropriate witness list.

I. Wages Paid for Cleaners and Custodians Were Not for Substantially Equal Work.

A. Proper Standards Were Employed Below.

To prove a violation of Section 6(d)(1) of the Equal Pay Provisions of the Fair Labor Standards Act (note 4 supra ) in this case, the Commission must show that the employer pays female employees less than male employees for substantially equal work. See Corning Glass Works v. Brennan, 417 U.S. 188, 203 n. 24, 94 S.Ct. 2223, 2232 n. 24, 41 L.Ed.2d 1; Hodgson v. Miller Brewing Co., 457 F.2d 221, 227 (7th Cir. 1972). The Commission initially argues that the district court erroneously held that to establish a violation of the Equal Pay provisions, the Government must show that the men and women performed identical work. Although Judge Warren used this term in his oral remarks at the conclusion of the Commission's case, he correctly applied the "substantially equal" work test in his July 11, 1979, memorandum and order (Def.App. 2). It is the July 11 order that controls in deciding this question.

The Commission next contends that the district court wrongly compared the cleaners' and custodians' job performance on an annual basis instead of considering the work performed in the summer and the various school vacation periods during the year as a separate and discrete part of each job. Although Section 7(a)(1) of the Fair Labor Standards Act (29 U.S.C. § 207(a)(1)) uses the work week as its general standard for determining whether minimum wages and overtime pay are due employees, the Equal Pay Provisions involved here do not specify a work week standard. Furthermore, the regulations of the Department of Labor provide that "it will generally be necessary to scrutinize the job as a whole and to look at the characteristics of the jobs being compared over a full work cycle" (29 C.F.R. § 800.119). Such a comparison is essential because "the kinds of activities required to perform a given job and the amount of time devoted to such activities may vary from time to time." Ibid. Separating the vacation periods from the year as a whole would in this case distort the true picture of the jobs at issue by artificially segregating those times when, despite the general continuity in the jobs, the differences in the tasks performed is greater. The problems associated with determining which days during the school year should be included in the vacation cycle and which in the regular cycle underscore the difficulty in the Commission's approach. Further, it is entirely possible that the differences in pay reflect in part the differences in the vacation period tasks, defendant having opted out of convenience to pay the difference over a twelve-month period. Accordingly, as in Marshall v. Dallas Independent School District, 605 F.2d 191 (5th Cir. 1979), the jobs here must be analyzed over the full school year. Indeed, we are advised that except in this case and the Dallas case, in the 16 years of Equal Pay Act litigation, the Commission has always analyzed jobs over the full work cycle (Def.Br. 28).

B. The Two Jobs Are Not Substantially Equal.

The record amply supports the district court's finding that the two jobs are not substantially equal. At the outset, it should be noted that the external evidence supplies little evidence of any explicit discrimination in paying wages for the jobs. Defendant has never segregated the jobs of cleaner and custodian on the basis of sex. On the contrary, the collective bargaining agreement,...