E.E.O.C. v. White and Son Enterprises, 88-7658

• Decision Date: 24 August 1989
• Docket Number: No. 88-7658,88-7658
• Citation: 881 F.2d 1006
• Parties: 50 Fair Empl.Prac.Cas. 1076, 29 Wage & Hour Cas. (BN 719, 101 A.L.R.Fed. 203, 51 Empl. Prac. Dec. P 39,270, 112 Lab.Cas. P 35,253 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. WHITE AND SON ENTERPRISES, a corporation, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1006

881 F.2d 1006

50 Fair Empl.Prac.Cas. 1076,

29 Wage & Hour Cas. (BN 719, 101 A.L.R.Fed. 203,

51 Empl. Prac. Dec. P 39,270,

112 Lab.Cas. P 35,253

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. WHITE AND SON ENTERPRISES, a corporation, Defendant-Appellant.

No. 88-7658.

United States Court of Appeals Eleventh Circuit.

Aug. 24, 1989.

Juliet G. St. John, Cullman, Ala., for defendant-appellant.

G. William Davenport, Sr. Trial Atty., E.E.O.C., Birmingham, Ala., Samuel A. Marcosson, U.S. E.E.O.C., Washington, D.C., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before CLARK and EDMONDSON, Circuit Judges, and TUTTLE, Senior Circuit Judge.

TUTTLE, Senior Circuit Judge:

This is an appeal from a judgment in favor of the Equal Employment Opportunity Commission (EEOC) in an action brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq., and the Fair Labor Standards Act (FLSA), 29 U.S.C. Sec. 201 et seq., as modified by the Equal Pay Act of 1963 (EPA), 29 U.S.C. Sec. 206(d).

The EEOC sued on behalf of six women (the charging parties), former employees of defendant White & Son Enterprises, Inc. (White and Son). The EEOC alleged that White and Son had violated Title VII by discriminating against the charging parties on the basis of sex, violated the EPA by paying them less than male employees for jobs requiring equal work, skill and responsibility, and discharged them in retaliation for protesting their pay, in violation of both the FLSA and Title VII.

After a bench trial, the district court found that the defendant had acted willfully in paying unequal wages to its female employees and in discharging the women in retaliation for complaining about the unequal pay. The court permanently enjoined the defendant from further violations of the EPA and Title VII, ordered reinstatement of three of the charging parties and awarded damages.

I. BACKGROUND

White and Son is an Alabama corporation which constructs trusses for use by the company in assembling chicken houses. The company is owned and run by Orvis White and his son, Ricky. The Whites also owned and operated Craftwood Colonial Designs, Inc. (Craftwood), which was a separate corporation but which had the same foreman as White and Son. That company engaged in making construction beams and mirror frames. Some employees shifted back and forth between the truss and Craftwood facilities as needed.

The construction of a truss involved three different tasks: operation of the truss saw to process lumber, assembly of the wood at the truss table into pre-set forms, and running of the hydraulic truss press, by operating controls, to assemble the truss.

Two of the charging parties were assigned to operate the truss saw while they were employed by defendant. They were paid $4.00 an hour. The men who replaced them once they no longer worked for appellant were paid $5.00 an hour. Only one woman was ever employed at the truss table, for less than one day. She was paid $4.00 an hour, whereas the men at the table started at $4.50 or $5.00 an hour. No woman was ever hired to run the truss press.

In the Craftwood operation, all of the jobs at issue here--sanding, staining, building beams and sawing lumber--required the same skill and level of responsibility. The charging parties performing those jobs earned $4.00 an hour, with the exception of Shirley Bryan, who had received a $.50 raise to $4.50 an hour after working for the company for seven months. Appellee contends that the men employed full-time in the Craftwood operation earned $4.50 or $5.00 an hour for performing the same work as the women.

On June 3, 1985, the truss table workers were given a $.50 per hour raise. When the charging parties learned of the pay increase, several of them met with Ricky White and the foreman to ask why they did not receive a raise as did the men and to request equal pay. Ricky White promised that he would discuss the matter with his father that evening. The next morning when Orvis White arrived, the women were waiting to speak to him. Orvis White asked the women if there was a problem, and they replied that there was. White then stated that if it was about a raise, there would be none, and that they could "take it or leave it." White instructed the company secretary to make out the women's final paychecks. The charging parties picked up the checks, leaving the premises immediately thereafter.

On June 27, 1985, the six women filed charges with the EEOC, which conducted an investigation and commenced the instant action in the Northern District of Alabama on June 2, 1987. On June 24, 1987, White and Son filed a motion to dismiss, which the court denied. Defendant then filed its answer on July 9, 1987, denying the allegations in the complaint and asserting the statute of limitations as an affirmative defense. On September 1, 1987, White and Son filed an amended answer to add the affirmative defense that four of the charging parties were not employees of White and Son. The EEOC moved to strike the amended answer pursuant to Rule 12(f), Fed.R.Civ.P., for failure to request leave of the court or to obtain plaintiff's written consent in accordance with Rule 15(a), Fed.R.Civ.P. ¹ The district court granted plaintiff's motion to strike.

On Friday, November 6, 1987, three days before the trial began, when discovery was already completed and the pretrial order had been entered, defendant again moved to amend its answer, to raise the affirmative defenses provided by the Equal Pay Act and Title VII. ² The district court denied the motion, and the case proceeded to trial by the court. On June 28, 1988, the district court entered judgment for plaintiff, which the court modified as to damages on August 22, 1988.

II. DISCUSSION

A. Discrimination Because of Sex

The EPA prohibits wage discrimination on the basis of sex in section 206(d)(1), which provides in pertinent part:

No employer ... shall discriminate ... between employees on the basis of sex by paying wages to employees ... at a rate less than the rate at which he pays wages to employees of the opposite sex ... for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex....

29 U.S.C. Sec. 206(d)(1).

Under Title VII, it is an unlawful employment practice for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. Sec. 2000e-2(a)(1) (emphasis added). ³ If the jurisdictional prerequisites of both the EPA and Title VII are satisfied, a violation of the EPA is also a violation of Title VII. 29 C.F.R. Sec. 1620.27(a).

In order to establish a prima facie case under the EPA, the plaintiff must show "that an employer pays different wages to employees of opposite sexes 'for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.' " Corning Glass Works v. Brennan, 417 U.S. 188, 195, 94 S.Ct. 2223, 2228, 41 L.Ed.2d 1 (1974) (quoting 29 U.S.C. Sec. 206(a)(1)). Plaintiff need only show discrimination in pay against an employee vis-a-vis one employee of the opposite sex. Brock v. Georgia Southwestern College, 765 F.2d 1026, 1033 n. 10 (11th Cir.1985). If, however, other appropriate "comparators," i.e., employees doing substantially equal work, were wrongly excluded from the comparison by plaintiff, defendant must call them to the attention of the court. Id.

The EEOC alleged that the two women who operated the truss saw were paid less than men performing the identical job. In addition, plaintiff claimed that the charging parties working in the Craftwood operation were paid at a lower rate than men working full-time in Craftwood, performing similar jobs. Appellant contends, however, that appellee failed to establish a case of discrimination on the basis of sex. Appellant argues that wages were set according to an employee's experience in construction work, i.e., a "factor other than sex," and productivity. 29 U.S.C. Sec. 206(d)(1). Thus, appellant essentially raises on appeal the affirmative defenses the district court rejected in appellant's belated motion to amend its answer just before the trial commenced. The district court gave sufficient reasons for the denial from the bench, after hearing argument on the motion. The court stated, addressing appellant's counsel:

[T]he hornbook law is that affirmative defenses must be specifically pled. If this is an affirmative defense, you had a duty to plead it at least by the time of pre-trial.

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[S]urely you don't contend that you're entitled to amend your answer up to and including the day of trial without any consideration of any possible prejudice that the other party may suffer.

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[D]oesn't a party in an action have the right to rely on the pre-trial order and the other pleadings to determine ... what the claims and defenses are?

The court did not abuse its discretion in ruling that appellant had waived its affirmative defenses under Fed.R.Civ.P. 8(c). ⁴

The district court's determinations on plaintiff's claims are subject to review under the "clear error" standard. Glenn v. General Motors Corp., 841 F.2d 1567, 1569 (11th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 378, 102 L.Ed.2d 367 (1988). The evidence supports the district court's finding that defendant paid the female employees less than full-time male employees for...