E.E.O.C. v. Mercy Hosp. and Medical Center, 81-2410

• Citation: 709 F.2d 1195
• Decision Date: 15 June 1983
• Docket Number: No. 81-2410,81-2410
• Parties: 32 Fair Empl.Prac.Cas. 991, 26 Wage & Hour Cas. (BN 539, 32 Empl. Prac. Dec. P 33,665, 97 Lab.Cas. P 34,398 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. MERCY HOSPITAL AND MEDICAL CENTER, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1195

709 F.2d 1195

32 Fair Empl.Prac.Cas. 991,

26 Wage & Hour Cas. (BN 539,

32 Empl. Prac. Dec. P 33,665, 97 Lab.Cas. P 34,398

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. MERCY HOSPITAL AND MEDICAL CENTER, Defendant-Appellee.

No. 81-2410.

United States Court of Appeals,

Seventh Circuit.

Argued April 11, 1983.

Decided June 15, 1983.

Lorraine C. Davis, E.E.O.C., Office of Gen. Counsel, Washington, D.C., for plaintiff-appellant.

Robert E. Arroyo, Keck, Mahin & Cate, Chicago, Ill., for defendant-appellee.

Before WOOD and POSNER, Circuit Judges, and BROWN, ^* Senior Circuit Judge.

BAILEY BROWN, Senior Circuit Judge.

This action was commenced by the Equal Employment Opportunity Commission (EEOC or Commission) in behalf of certain female custodial workers employed by Mercy Hospital and Medical Center. The Commission sought to equalize the pay of nonsupervisory male and female custodial personnel, known as Environmental Technicians (Techs) I, II, and III, in conformity with the Equal Pay Act of 1963, 29 U.S.C. Sec. 206(d)(1).

Each Tech position at the Hospital is classified into a separate salary grade based upon job evaluations and collective bargaining negotiations. Essentially, this dispute centers upon whether the custodial work performed by Techs I, II, and III is substantially equal, thereby entitling the persons The case was tried in June 1981 before the district court sitting without a jury. During the course of trial the district judge, accompanied by counsel for both parties, but without the presence of a court reporter, traveled to Mercy Hospital to observe and operate various pieces of equipment typically used by Tech I, II, and III personnel. Following the close of proof, the court rendered its decision in favor of the Hospital, finding that the work performed by the predominantly male Tech IIs was not substantially equal to the work performed by either the Tech Is or Tech IIIs. The Commission now appeals from that decision, attacking the district court's off-the-record observations and operation of equipment at the Hospital, as well as its ultimate findings. For the reasons stated herein, we affirm the judgment below.

employed in those positions to equal wages. At the time of trial, base pay for the exclusively female Tech I position was $5.32 per hour; base pay for the predominantly male Tech II position was $5.67 per hour; and base pay for the exclusively female Tech III position was $5.53 per hour.

THE EQUAL PAY ACT

The Equal Pay Act prohibits an employer from discriminating between employees on the basis of sex by paying unequal wages for "equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions...." 29 U.S.C. Sec. 206(d)(1). ¹ The EEOC has the burden of proving that female Tech I and Tech III personnel did not receive equal pay for work substantially equal to that performed by male Tech II personnel. 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 (1974); EEOC v. Kenosha Unified School District No. 1, 620 F.2d 1220 (7th Cir.1980). To meet this burden, the EEOC must establish, based upon "actual job performance and content--not job titles, classifications or descriptions" that the work performed by Techs I, II, and III is substantially equal. Gunther v. County of Washington, 623 F.2d 1303, 1309 (9th Cir.1979), aff'd, 452 U.S. 161, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981).

We recognize that because job duties vary so widely, the provisions of the Equal Pay Act must be applied on a case-by-case basis. Brennan v. Prince William Hospital Corp., 503 F.2d 282 (4th Cir.1974), cert. denied, 420 U.S. 972, 95 S.Ct. 1392, 43 L.Ed.2d 652 (1975). This, we are convinced, was done here.

The district court found that the positions of Tech I, II, and III require sufficiently different responsibilities to warrant the payment of different wages. The evidence of record establishes that the position of Tech I entails the performance of general housekeeping duties such as light dusting, wet and dry mopping, the vacuuming of patient rooms and staff offices, as well as the collection of trash in plastic bags. Tech III personnel perform essentially the same tasks as the Tech Is, with the notable exception of assisting Tech IIs with the more thorough "check-out" cleaning function, performed when a patient checks out of the hospital. ² The district court found Thus, the court rejected the EEOC's claim that all custodial work performed at the Hospital was essentially the same. In doing so, the district judge relied most heavily on two factors: the significant physical exertion required of Tech IIs in the performance of their jobs, and the degree of mental alertness required of Tech IIs in the operation of floor maintenance equipment. The court specifically referred to the Tech IIs' use of larger and heavier mops, floor maintenance equipment such as polishers and scrubbers, and the moving of heavy pieces of furniture throughout the Hospital. ³ The district court then ultimately found that the evidence affirmatively established that the positions of Tech I, II, and III are substantially different to warrant the payment of unequal wages.

however, that the work performed by Tech IIs was significantly more strenuous than that performed by the other Tech positions. In particular, the court recognized that Tech IIs are responsible for the operation of electric floor maintainers, e.g., buffers, strippers, scrubbers, and carpet shampooers, in addition to maintaining the Hospital's hallways and other public areas.

As a reviewing court, we apply the "clearly erroneous" standard of review to the case sub judice. Fed.R.Civ.P. 52. In applying that standard, we conclude that the record fully supports the district court's finding that the jobs are not substantially equal. The cogent reasoning of Chief Judge Cummings in EEOC v. Kenosha Unified School District No. 1 is equally appropriate to the facts of this case. There, the court noted the fact that one job has primarily attracted men and the other women "may suggest that the jobs are indeed unequal rather than that there has been some attempt to segregate the employees and pay them unequal wages." 620 F.2d at 1225.

The EEOC further contends that the district judge erred by considering the size of the wage differential between the different Tech categories. We note that the degree of wage differential cannot itself serve as a basis for finding a violation of the Act; on the other hand, any difference in wages paid to the respective sexes for equal work is prohibited by the Act, unless justified by one of the statutory exceptions listed in the Act. ⁴ Hodgson v. American Bank of Commerce, 447 F.2d 416 (5th Cir.1971); Melanson v. Rantoul, 536 F.Supp. 271 (D.R.I.1982).

It is true the district judge stated that because the present case involved a small wage differential, "the justification for that differential does not have to be a total differential in the difficulty of the work that is done by the two categories (Techs I and II)." Transcript at 689. The Commission presumes that the judge's comments reflect an erroneous belief that a small wage differential is sufficient to defeat an otherwise meritorious claim. Brief for Appellant at 41. Clearly, however, the district judge's comments must be taken in the broader context from which they were derived. The court noted the evidence established that while Tech Is were dusting table tops, Tech IIs were carrying the tables from one floor to another. The court then commented "you do not have to have much of the heavier work, it seems to me, to justify that kind of pay differential." Transcript at 689. The focus of its comments, therefore We believe that a fair interpretation of the district court's findings, taken in their entirety, supports the Hospital's contention that the decision of that court was based on its finding that the work of the Tech Is and Tech IIIs was substantially different from the work of Tech IIs.

was on the fact that Tech IIs performed heavier work.

THE VIEW

During the course of trial, there was proffered considerable testimony concerning the degree of difficulty involved in the operation and use of various pieces of equipment. After the close of plaintiff's proof, the district judge requested a view of the Hospital, during the course of which he could "go and do a hands-on examination of these machines." Transcript at 746. The court later did this. Before it did so, however, neither party voiced any objection to the court's request, though the EEOC did object "for the record" to the court's viewing the premises without a court reporter present. ⁵ There followed a considerable amount of dialogue on the record between the judge and counsel for both parties, in which the district judge expressed his reasons for requesting the view. The judge carefully explained that the sole purpose of his view was to better understand the testimony of...