Fallon v. State of Ill.

• Decision Date: 15 August 1989
• Docket Number: No. 87-2533,87-2533
• Citation: 882 F.2d 1206
• Parties: 50 Fair Empl.Prac.Cas. 954, 29 Wage & Hour Cas. (BN 733, 51 Empl. Prac. Dec. P 39,255, 58 USLW 2137, 112 Lab.Cas. P 35,251 Lynda FALLON, et al., Plaintiffs-Appellees, v. STATE OF ILLINOIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1206

882 F.2d 1206

50 Fair Empl.Prac.Cas. 954,

29 Wage & Hour Cas. (BN 733,

51 Empl. Prac. Dec. P 39,255, 58 USLW 2137,

112 Lab.Cas. P 35,251

Lynda FALLON, et al., Plaintiffs-Appellees, v. STATE OF ILLINOIS, Defendant-Appellant.

No. 87-2533.

United States Court of Appeals Seventh Circuit.

Argued May 18, 1988.

Decided Aug. 15, 1989.

William D. Frazier, Office of Ill. Atty. Gen., Chicago, Ill., for defendant-appellant.

Walter S. Clifton, Urbana, Ill., for plaintiff-appellees.

Before WOOD, Jr., and MANION, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

MANION, Circuit Judge.

Lynda Fallon sued the State of Illinois under the Equal Pay Act and Title VII of the Civil Rights Act of 1964. ¹ Following a bench trial, the district court found that the jobs of Veterans Service Officer ("VSO") and Veterans Service Officer Associate ("VSOA") (currently all VSOs are males and all VSOAs are females) were substantially equal within the meaning of the Equal Pay Act, 29 U.S.C. Sec. 206(d), that female VSOAs were paid less than the male VSOs, and that no factors other than sex justified the pay differential. Based on that finding, the district court concluded that the State of Illinois violated the Equal Pay Act and Title VII, 42 U.S.C. Sec. 2000e et seq. with respect to the plaintiff Fallon, and Title VII with respect to the class of VSOAs. The State appeals the Equal Pay Act claim, contending that the trial court's "substantially equal" finding was clearly erroneous, that there was a valid factor other than sex justifying the pay disparity (a requirement that VSOs be wartime veterans), and that in any event, liquidated damages were inappropriate. The State also argues that the district court failed to make a finding of intentional discrimination as to the Title VII claims; and that instead it improperly relied on its Equal Pay Act finding to find Title VII liability. We affirm in part but must reverse and remand as to two issues.

I.

The Illinois legislature created the Department of Veterans Affairs ("Department") to provide various services to veterans. Ill.Ann.Stat. ch. 126 1/2 p 67 (Smith-Hurd 1989). The Department is organized into four divisions: Metro; Northern; Central; and Southern. The Department maintains field offices throughout the state to assist veterans and veterans' spouses, surviving spouses, and dependents in obtaining any benefits due under any laws (federal, state, or local) by reason of the veteran's military service. Id. There are fifty-five field offices. Most field offices are staffed by both a VSO and a VSOA.

By statute, VSOs must be wartime (our term) veterans. ² The VSO job description provides that VSOs, under general supervision, are to manage the field office in preparing and presenting veterans' benefit claims, and perform other necessary services for veterans or their dependents. Most VSOs additionally have what is called itinerant field service duty (14 field offices have no such duties), which means they visit veterans hospitals and prisons, if they exist in the assigned area, and speak to veterans groups at those locations. VSOs are encouraged to actively participate in and join any veterans groups, e.g., the American Legion, and Veterans of Foreign Wars. The VSO in the Champaign field office was Ronald Menaugh.

Fallon was the VSOA in the Champaign field office. Initially, Fallon was hired as a Clerk Typist II in 1969. In 1975, she became a VSOA when the State created the VSOA position. The VSOA job description provides that VSOAs, under the "general supervision of the [VSO]" will assist in preparing and presenting veterans' benefits claims, are "responsible for serving veterans independently," and are to "work[ ] independently in offices located throughout the State."

Both the VSO and the VSOA are under the supervision of a Veterans Service Officer Supervisor ("Supervisor"). There are five such Supervisors throughout the state. They generally visit each field office in their respective regions every four to six weeks to answer questions and solve problems. Supervisors evaluate the work of both VSOs and VSOAs.

The district court found that VSOs and VSOAs "do virtually the same work." Both interview veterans and veterans' dependents regarding benefit claims. Both assist putative claimants in completing forms for assorted benefits (e.g., medical, disability). And both type and answer the telephone. In short, the court stated, they "both do interviews; they both fill out forms; [and] they both do clerical work." And although some VSOs were required to perform itinerant work, the trial court found that the work done outside the office was virtually identical to the work done in the office. The court also dismissed the State's arguments that VSOs had added responsibility and ultimately were accountable for their respective field office's operation. Relatedly, the court found that VSOs had no authority to hire, fire, discipline, or evaluate VSOAs. Based on these findings, the district court held the VSO and VSOA jobs were substantially equal, and that no factors other than sex (the State proffered wartime veteran status and education, but presses only the former), existed to warrant the salary disparity between the positions. Accordingly, the district court held the State violated both the Equal Pay Act (as to Fallon) and Title VII (as to both Fallon and the class).

II.

A. Equal Pay Act Prima Facie Case

The Equal Pay Act provides in 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....

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

To establish a prima facie case under the Equal Pay Act, a plaintiff must show: (1) that different wages are paid to employees of the opposite sex; (2) that the employees do equal work which requires equal skill, effort, and responsibility; and (3) that the employees have similar working conditions. Corning Glass Works v. Brennan, 417 U.S. 188, 195, 94 S.Ct. 2223, 2228, 41 L.Ed.2d 1 (1974); Epstein v. Secretary, United States Department of the Treasury, 739 F.2d 274, 277 (7th Cir.1984). To succeed, a plaintiff "must establish, based upon 'actual job performance and content--not job titles, classifications or descriptions that the work performed ... is substantially equal.' " EEOC v. Mercy Hospital and Medical Center, 709 F.2d 1195, 1197 (7th Cir.1983) (quoting Gunther v. County of Washington, 623 F.2d 1303, 1309 (9th Cir.1979), affd, 452 U.S. 161, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981)). The work need not be identical; it is sufficient if the duties are "substantially equal." Epstein, 739 F.2d at 277.

Whether two jobs require equal skill, effort, and responsibility, and are performed under similar working conditions is a factual determination. EEOC v. Madison Community Unit School District No. 12, 818 F.2d 577, 581 (7th Cir.1987). We can overturn that finding, then, only if it is clearly erroneous. Id.; Mercy Hospital, 709 F.2d at 1198. Which is to say we will not reverse the district court unless, after reviewing all of the evidence, we are "left with the definite and firm conviction that a mistake has been made." Epstein, 739 F.2d at 278, (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948)). When there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous. Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985). Due regard shall be given the trial court's opportunity to judge the credibility of witnesses. Fed.R.Civ.P. 52(a). When findings are based on credibility determinations, "Rule 52(a) demands even greater deference to the trial court's findings...." Anderson, 470 U.S. at 575, 105 S.Ct. at 1512.

" 'The crucial finding on the equal work issue is whether the jobs to be compared have a "common core" of tasks, i.e., whether a significant portion of the two jobs is identical.' " Brewster v. Barnes, 788 F.2d 985, 991 (4th Cir.1986) (quoting Brobst v. Columbus Services International, 761 F.2d 148, 156 (3d Cir.1985)). If a plaintiff establishes this "common core," the question then becomes whether any additional tasks make the jobs " 'substantially different.' " Brewster v. Barnes, 788 F.2d at 991. Significantly, the State in effect admits that the core functions performed by VSOs and VSOAs (e.g., interviews, completing forms, and clerical work) are the same. This is hardly surprising, though, given the fact that three VSOs, including Menaugh, testified that VSOs did exactly the same work as VSOAs--a probative fact in establishing a prima facie case. See EEOC v. Maricopa County Community College District, 736 F.2d 510, 514 (9th Cir.1984).

Nevertheless, the State claims the positions are not substantially equal because the VSOs perform itinerant work, and have greater responsibility and accountability. The State points to Menaugh's infrequent itinerant work, ³ his membership in various veterans' organizations, his additional "responsibilities," and differences in the way the two positions are evaluated. These additional tasks or differences, however, do not make the VSO and VSOA jobs so substantially different as to establish clear error by the district court.

The district court rejected VSO itinerant work as a distinguishing factor, and we cannot say that was clearly erroneous. The district court acknowledged that VSOs, and occasionally Menaugh, did this work. Nonetheless it found this slight difference unpersuasive as a distinction between the jobs. Several factors support this conclusion. First of all, not all VSOs were required to do itinerant work; Menaugh was among those not so required. Even more...