Glenn v. General Motors Corp.

• Decision Date: 15 April 1988
• Docket Number: No. 87-7171,87-7171
• Citation: 841 F.2d 1567
• Parties: 46 Fair Empl.Prac.Cas. 1331, 28 Wage & Hour Cas. (BN 1033, 46 Empl. Prac. Dec. P 37,921, 56 USLW 2679, 108 Lab.Cas. P 35,054 Sheila Ann GLENN, Patricia F. Johns, and Robbie Nugent, Plaintiffs-Appellees, v. GENERAL MOTORS CORPORATION, Defendant-Appellant, Saginaw Steering Gear Division, Defendant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1567

841 F.2d 1567

46 Fair Empl.Prac.Cas. 1331,

28 Wage & Hour Cas. (BN 1033,

46 Empl. Prac. Dec. P 37,921, 56 USLW 2679,

108 Lab.Cas. P 35,054

Sheila Ann GLENN, Patricia F. Johns, and Robbie Nugent Plaintiffs-Appellees, v. GENERAL MOTORS CORPORATION, Defendant-Appellant Saginaw Steering Gear Division, Defendant.

No. 87-7171.

United States Court of Appeals Eleventh Circuit.

April 15, 1988.

Charles A. Powell, Barry V. Frederick, Birmingham, Ala., for defendant-appellant.

Douglas S. McDowell, McGuiness & Williams, Washington, D.C., for amicus curiae Equal Employment Advisory Council.

James H. Richardson, Gabrielle U. Wehl, John A. Wilmer, Bell, Richardson, Herrington, Sparkman & Shepard, Huntsville, Ala., for plaintiffs-appellees.

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

Before JOHNSON and CLARK, Circuit Judges, and DUMBAULD ^*, Senior District Judge.

JOHNSON, Circuit Judge:

Sheila Ann Glenn, Patricia Johns, and Robbie Nugent filed suit against General Motors Corporation (GM) and its Saginaw Steering Gear Division, alleging violation of the Equal Pay Act. ¹ The United States District Court for the Northern District of Alabama found for the appellees and awarded damages. See Glenn v. General Motors Corp., 658 F.Supp. 918 (N.D.Ala.1987). GM ² timely appeals the district court's (1) determination that the appellees proved a prima facie case of gender discrimination, (2) rejection of GM's affirmative defense of a "factor other than sex" as the reason for the pay disparity, (3) determination that the willful character of GM's actions required application of the three-year, rather than two-year, statute of limitations, (4) determination that an award of liquidated damages was appropriate, and (5) award of expenses. We affirm in part, and reverse and remand in part.

I. Prima Facie Case

"In order to make out a case under the Act, the [appellees] 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.A. Sec. 206(d)(1)); accord Brock v. Georgia Southwestern College, 765 F.2d 1026, 1032 (11th Cir.1985).

The three appellees are employed in the Materials Management Department (previously Tool Stores Department) of the Saginaw Division of GM in three different plants near Athens, Alabama. The appellees currently work in the positions of Materials Management Expediter and Materials Follow-up Clerk, previously designated Follow-up and Associate Follow-up Tool and Die respectively. A follow-up basically ensures that adequate supplies of tools and operating materials are on hand in the GM plants to meet the minimum levels necessary to keep the plants running. Normally, each plant has three follow-ups, although GM has used less than three at times. Up to the time of suit, four women, including the appellees, (as well as men) had worked in the follow-up position. Appellee Nugent was hired in 1975, the first person to hold a follow-up position. ³

No doubt exists that through 1985 all three appellees earned less than all their male comparators in the follow-up position in the Tool Stores Department. In fact, the most highly paid appellee made less through 1985 than the lowest paid man. ⁴ In addition, all the appellees received lower starting salaries as compared to those received by men hired near the same time. ⁵

GM argued at trial, and argues in its brief on appeal, that the follow-up positions held by the female appellees were not the same follow-up positions as held by their male comparators. ⁶ Specifically, GM argues that the male follow-ups who handle items ordered from blueprints need different skills than those follow-ups, including the appellees, who do not. The district court rejected this distinction:

The court finds that for all purposes material to this case the positions of Blueprint Follow-Up and Follow-Up are identical. The court notes that GM has never treated Follow-Ups differently for compensation purposes on the basis of items handled. When plaintiff Nugent handled blueprint items, for example, she still made less than a male Follow-Up who did not. Some of the men handling blueprint items currently make less money than other men who do not work with blueprint items.

658 F.Supp. at 923. Consequently, the district court concluded that the appellees had proved a prima facie case.

Appellate review examines whether this determination was "clearly erroneous." Georgia Southwestern, 765 F.2d at 1033. Under the "clear error" standard of review, evidence in the record as a whole does not indicate that the blueprint reading, even if it is an actual distinction, makes the jobs not "substantially equal." See id. at 1032 ("The jobs held by employees of opposite sexes need not be identical, rather they must only be 'substantially equal.' It is important to bear in mind that the prima facie case is made out by comparing the jobs held by the female and male employees and showing that these jobs are substantially equal, not by comparing the skills and qualifications of the individual employees holding those jobs." (citations and footnote omitted) (emphasis in original)).

II. GM's Affirmative Defense

Once the appellees established a prima facie case, the burden shifted to GM to prove that the difference in pay was justified by one of the four exceptions in the Equal Pay Act: (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 factor other than sex. 29 U.S.C.A. Sec. 206(d)(1); see Corning Glass Works, 417 U.S. at 196, 94 S.Ct. at 2229; Georgia Southwestern, 765 F.2d at 1036.

GM seeks to justify the pay disparity on the fourth ground--a "factor other than sex." From 1977 to its first collective bargaining agreement with the United Auto Workers (UAW) in 1982, GM, in an attempt to maintain a nonunion Alabama production force, set hourly wages at levels of parity with the national UAW contract in other locations. ⁷ Prior to 1977, another hourly wage schedule applied to all hourly employees, regardless of gender.

In the present case, Nugent was hired "off the street" as a salaried follow-up. Glenn and Johns transferred from their salaried secretarial positions. In contrast, the male comparators transferred from hourly wage jobs. GM contends that to encourage people to move out of hourly wage jobs into salaried tracks, it maintains a longstanding, unwritten, corporate-wide policy against requiring an employee to take a cut in pay when transferring to salaried positions such as those at issue in the present case. GM thus argues that this "policy" constitutes a "factor other than sex" and legitimizes the pay disparity.

The district court found that the "policy" suffered from a fatal flaw:

[T]his so-called salary "policy" is in fact not a policy at all, but merely one aspect of a practice. In practice GM simply pays Follow-Ups what it takes to induce them to accept the employment. The court notes that historically companies may and do hire women at lower starting salaries. The court is thus unconvinced of GM's attempted justification for the pay disparity. The three female plaintiffs are being paid less money than their male counterparts for equal work without justification.

658 F.Supp. at 924. Consequently, the district court held that GM had failed to prove an affirmative defense justifying the pay disparity. ⁸

We affirm the district court. GM seeks to defend the pay disparity as a result of the market force theory. This Court and the Supreme Court have long rejected the market force theory as a "factor other than sex": "[T]he argument that supply and demand dictates that women qua women may be paid less is exactly the kind of evil that the [Equal Pay] Act was designed to eliminate, and has been rejected." Georgia Southwestern, 765 F.2d at 1037 (citing Corning Glass Works, 417 U.S. at 205, 94 S.Ct. at 2233 ("The differential arose simply because men would not work at the low rates paid women inspectors, and it reflected a job market in which Corning could pay women less than men for the same work. That the company took advantage of such a situation may be understandable as a matter of economics, but its differential nevertheless became illegal once Congress enacted into law the principle of equal pay for equal work."); Brennan v. Victoria Bank & Trust Co., 493 F.2d 896, 902 (5th Cir.1974) (market force theory that a woman will work for less than a man is not a valid consideration under the Equal Pay Act); Brennan v. City Stores, Inc., 479 F.2d 235, 241 n. 12 (5th Cir.1973) (same); Hodgson v. Brookhaven General Hosp., 436 F.2d 719, 726 (5th Cir.1970) (same)).

GM argues that the legislative history supports its contention that prior salary can be a "factor other than sex." Under the facts of the present case, GM's argument is without merit. The relevant legislative history provides:

Three specific exceptions and one broad general exception are also listed. It is the intent of this committee that any discrimination based upon any of these exceptions shall be exempted from the operation of this statute. As it is impossible to list each and every exception, the broad general exclusion has also been included. Thus, among other things, shift differentials, restrictions on or differences based on time of day worked, hours of work, lifting or moving heavy objects, differences based on experience, training, or ability would also be excluded. It also recognizes certain special circumstances, such as "red circle rates." This term is borrowed from War Labor Board parlance and describes certain unusual, higher than normal wage rates which are maintained for many valid reasons. For...