E.E.O.C. v. State of Del. Dept. of Health and Social Services

• Decision Date: 13 January 1989
• Docket Number: 87-3748,No. 87-3748,Nos. 87-3727,No. 87-3727,87-3727,s. 87-3727
• Citation: 865 F.2d 1408
• Parties: 48 Fair Empl.Prac.Cas. 1268, 29 Wage & Hour Cas. (BN 161, 48 Empl. Prac. Dec. P 38,576, 110 Lab.Cas. P 35,157 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Appellant at, v. STATE OF DELAWARE DEPARTMENT OF HEALTH AND SOCIAL SERVICES, John A. Dillman, III, Director of State Personnel; Dwayne Olsen, Controller General, and Steven Golding, Budget Director. Appeal of STATE OF DELAWARE DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Marcilee A. Bierlein, Director of State Personnel; Donald C. Dryden, Controller General, and Scott R. Douglass, Budget Director, Appellants at
• Court: U.S. Court of Appeals — Third Circuit

Page 1408

865 F.2d 1408

48 Fair Empl.Prac.Cas. 1268,

29 Wage & Hour Cas. (BN 161,

48 Empl. Prac. Dec. P 38,576,

110 Lab.Cas. P 35,157

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Appellant at No. 87-3727, v. STATE OF DELAWARE DEPARTMENT OF HEALTH AND SOCIAL SERVICES, John A. Dillman, III, Director of State Personnel;

Dwayne Olsen, Controller General, and

Steven Golding, Budget Director.

Appeal of STATE OF DELAWARE DEPARTMENT OF HEALTH AND SOCIAL

SERVICES, Marcilee A. Bierlein, Director of State Personnel;

Donald C. Dryden, Controller General, and Scott R.

Douglass, Budget Director, Appellants at No. 87-3748.

Nos. 87-3727, 87-3748.

United States Court of Appeals, Third Circuit.

Argued June 3, 1988.

Decided Jan. 13, 1989.

Charles A. Shanor, General Counsel, Gwendolyn Young Reams, Associate General Counsel, Lorraine C. Davis, Asst. General Counsel, Dianna B. Johnston, Maria Beatrice Valdez (argued), Anne B. Thomas, Attys., E.E.O.C., Washington, D.C., for E.E.O.C.

Regina M. Mullen, Susan H. Kirk-Ryan (argued), Deputy Attys. Gen., Delaware Dept. of Justice, Wilmington, Del., for State of Del. Dept. of Health and Social Services, Marcilee A. Bierlein, Director of State Personnel; Donald C. Dryden, Controller

General, and Scott R. Douglass, Budget Director.

Before SEITZ, SLOVITER and HUTCHINSON, Circuit Judges.

OPINION OF THE COURT

HUTCHINSON, Circuit Judge.

In this action under the Equal Pay Act, 29 U.S.C.A. Sec. 206(d) (West 1978) (the Act), judgment was entered on a jury's verdict that appellees, the Delaware Department of Health and Social Services (DHSS) and Delaware's Director of State Personnel, had violated the Act and that their violation was willful. The district court subsequently granted appellees' motion for judgment notwithstanding the verdict and conditionally granted their motion for a new trial. For the reasons which follow, we will reverse the order of the district court and direct it to reinstate the judgment entered on the six-member jury's verdict of a willful violation.

I.

During the relevant time period, DHSS recognized three levels of Public Health Nurses (PHNs) and Physician's Assistants (PAs). Pursuant to the statewide classification system then employed, PHNs I, II and III were compensated at pay grades 21, 22 and 23, while PAs I, II and III were compensated at pay grades 20, 22 and 24. In April, 1980, Donald Bloom, an employee at the Kent County Health Clinic (Clinic), was reclassified from PA II to PA III. ¹ As a result of his reclassification, Bloom was more highly paid than every PHN working at the Clinic, who were all female.

Evidence at trial indicated that Bloom and the PHNs performed many of the same functions, but that PHNs had additional duties related to patient care and lab work which Bloom did not share. Some of the claimants also had various substantive or administrative functions beyond those required of Bloom or the PHN Is.

Soon after Bloom's promotion, the PHNs complained to their superiors that they were being paid less than he was for performing the same work. In March or April, 1981, they filed discrimination charges with the Equal Employment Opportunity Commission (EEOC). The EEOC notified DHSS of the charges in January, 1982 and of the possibility of Equal Pay Act violations on June 7, 1982. ²

Pursuant to a DHSS audit completed in September, 1982, but made retroactive to July 1, 1982, PHNs and PAs were regraded. PHNs I, II and III were assigned pay grades 22, 23 and 24. PAs I and II were merged into PA I at a pay grade of 22 and PA IIIs remained at pay grade 24. Bloom was reclassified as a PA I and his pay grade reduced from 24 to 22. The EEOC treated this as bringing appellees in compliance with the Act's requirements as of July 1, 1982.

On June 28, 1983, the EEOC instituted suit in the United States District Court for the District of Delaware. ³ The EEOC asserted that appellees had willfully violated the Act by paying female PHNs less than Bloom for performing equal work and sought compensatory damages. Since a willful violation is subject to a three year statute of limitations, the EEOC sought recovery from June 29, 1980 to July 1, 1982, the date the wage disparity was eliminated. ⁴

Trial commenced on December 1, 1986 before a six-person jury and two alternates. One juror was dismissed during the trial and replaced with an alternate. Immediately prior to charging the jury, the court initiated the following dialogue:

THE COURT: Before we bring the jury in, we have one alternate left. Alice mentioned that two of the jurors are not feeling too well today. I, in the past, if the attorneys are agreeable, have permitted the alternate to stay and deliberate with the jury. I would not do it if there was any objection, and when I've done it, I mentioned ahead of time, and I didn't today, but in view of the fact that we have two jurors who don't feel well, do the attorneys have any feeling about permitting the alternate to remain and deliberate with the jury?

MS. FLOWERS: Plaintiff does not.

THE COURT: You have no objection?

MS. FLOWERS: No objection.

MS. MULLEN: Defendants have no objection, Your Honor.

THE COURT: Okay, fine. I think, then, I will permit the alternate to remain and deliberate with the jury, and if by chance, one of the jurors becomes ill and cannot stay through the entire deliberations, we will still have a six-member jury left.

Joint Appendix (Jt.App.) at 605-06.

When these seven returned after their deliberations, the foreperson announced that the jury had reached a verdict finding that the appellees had violated the Act and had done so willfully. Id. at 619-20. A poll of the jury, however, revealed that the alternate had not been considered a voting member. Id. at 621. Upon questioning by the court, this individual agreed with the finding of an Equal Pay Act violation but not with the finding of willfulness. Id. at 622.

The court entered judgment in accordance with the verdict announced by the foreperson and appellees moved for judgment notwithstanding the verdict or, in the alternative, a new trial. Since, in seeking a directed verdict, they argued only that they had proven the pay disparity was based on a "factor other than sex," an affirmative defense specifically set forth in the Act, the district court refused to consider their post-trial attacks on the EEOC's prima facie case in deciding the judgment n.o.v. motion. It agreed with appellees, however, that the evidence of DHSS's job classification system compelled the conclusion that the pay disparity was based on a "factor other than sex," thereby overcoming the EEOC's prima facie case and relieving appellees of any liability.

The district court, as required by Federal Rule of Civil Procedure 50(c), also conditionally ruled on the new trial motion. Because it felt that appellees' evidence on the affirmative defense overcame the prima facie case, the court concluded that the jury's verdict was against the weight of the evidence. Relying on a Department of Labor regulation, the court also held that a finding for the EEOC's on its prima facie case with respect to ten PHNs could not be sustained. Accordingly, it also granted a new trial for all claimants on this ground, reasoning that since the jury's error "is likely to have affected the verdict of all thirteen of the PHNs, the interests of justice require that the new trial include all thirteen PHNs." Delaware Dep't of Health and Social Servs., 667 F.Supp. at 1068.

On the issue of willfulness, the court determined that a new trial was warranted for two additional reasons. First, it held that the evidence at most demonstrated that appellees were negligent in not foreseeing the violations. Second, the court ruled that the jury consisted of seven voting members. Since the seven were not unanimous on whether appellees' violation was willful, the court found that there was no valid verdict on this point.

II.

We first address, sua sponte, the question of our appellate jurisdiction. ⁵ The jury was not asked to determine damages and no damages were specified when judgment was entered. Had appellees immediately appealed from that judgment instead of moving for judgment n.o.v. or a new trial, we would ordinarily be required to dismiss the appeal. An order which establishes liability without fixing the amount of recovery is generally not final. Liberty Mutual Ins. Co. v. Wetzel, 424 U.S. 737, 743-44, 96 S.Ct. 1202, 1206, 47 L.Ed.2d435 (1976).

Here, however, the district court's ruling on appellees' post-trial motions resulted in entry of judgment in their favor. Moreover, the question of damages was not submitted to the jury for resolution, but was deferred for further proceedings. Where the jury was not to determine damages, we see no reason for holding that the district court's failure to take steps to specify the extent of appellees' liability, after concluding such liability did not exist as a matter of law, deprives its order of finality. This situation is not materially different from that which results when a district court grants a defendant's motion for judgment n.o.v. after a plaintiff's verdict in the liability phase of a bifurcated trial before the damages phase is begun. Such orders are routinely treated as appealable. See, e.g., Collins v. Illinois, 830 F.2d 692, 706 (7th Cir.1987) (reversing in part and remanding for determination of damages on Title VII retaliation claim); Thomas v. Bakery, Confectionery and Tobacco Workers Union Local # 433, 826 F.2d 755, 764 (8th Cir.1987) (reversing in part and remanding for determination of damages resulting from breach of collective bargaining agreement and duty of fair representation), cert. denied, --- U.S. ----, 108 S.Ct. 1019, 98 L.Ed.2d 984 (1988). This appeal is proper, and we turn to the merits.

In doing so, we first set forth the standards governing our review. A ruling on a judgment n.o.v. motion is subject to plenary review. Aloe Coal Co. v. Clark Equipment Co., 816 F.2d...