Gosa v. Bryce Hosp., 85-7052

• Decision Date: 21 January 1986
• Docket Number: No. 85-7052,85-7052
• Citation: 780 F.2d 917
• Parties: 43 Fair Empl.Prac.Cas. 1812, 27 Wage & Hour Cas. (BN 807, 39 Empl. Prac. Dec. P 35,910, 103 Lab.Cas. P 34,736 Linda GOSA, Plaintiff-Appellee, Cross-Appellant, v. BRYCE HOSPITAL, Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 917

780 F.2d 917

43 Fair Empl.Prac.Cas. 1812,

27 Wage & Hour Cas. (BN 807,

39 Empl. Prac. Dec. P 35,910,

103 Lab.Cas. P 34,736

Linda GOSA, Plaintiff-Appellee, Cross-Appellant, v. BRYCE HOSPITAL, Defendant-Appellant, Cross-Appellee.

No. 85-7052.

United States Court of Appeals, Eleventh Circuit.

Jan. 21, 1986.

J. Fairley McDonald, III, Copeland, Franco, Screws & Gill, P.A., Montgomery, Ala., for defendant-appellant, cross-appellee.

Joe R. Whatley, Jr., Stewart, Falkenberry & Whatley, Birmingham, Ala., for plaintiff-appellee, cross-appellant.

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

Before RONEY and ANDERSON, Circuit Judges, and MORGAN, Senior Circuit Judge.

PER CURIAM:

There is no dispute in this Equal Pay Act case that the plaintiff, Linda Gosa, performed work equal to that of her male counterpart, David Crawford, but received less pay. Gosa received an award, however, for only part of the difference between her pay and Crawford's. The district court attributed the rest of the difference to the "red circling" of the male employee's salary. A wage discrepancy explained entirely by red circling falls under the "factor other than sex" exception to the Equal Pay Act, eliminating a remedy against the employer based on that difference.

Defendant Bryce Hospital appeals on the ground that the "red circling" of Crawford's wage should discharge it of all liability and that none of Crawford's salary could be compared with Gosa's for equal pay purposes. Plaintiff cross-appeals claiming she should have received all of the difference between her pay and that received by Crawford.

The question is whether the district court erred (1) in using as a "comparator" a male employee whose salary had been "red circled," and awarding Gosa only part of the difference between her and Crawford's pay; and (2) in finding that part of the discrepancy between their salaries could be attributed to a "factor other than sex" exception in the Equal Pay Act. Concluding that the district court properly applied the law and was not clearly erroneous on the facts, we affirm. We also affirm without comment the district court's decision awarding attorney's fees to plaintiff.

A male to whom a female plaintiff is compared for purposes of determining whether a wage discrepancy exists for Equal Pay Act purposes is referred to as a "comparator." See Hein v. Oregon College of Education, 718 F.2d 910, 912-13 (9th Cir.1983). Using Crawford as a comparator, the hospital concedes here that the plaintiff established a prima facie case under the Equal Pay Act by showing that she performed for a lower salary substantially the same work as a male counterpart. 29 U.S.C.A. Sec. 206(d); Corning Glass Works v. Brennan, 417 U.S. 188, 196-97, 94 S.Ct. 2223, 2229, 41 L.Ed.2d 1 (1974); Morgado v. Birmingham-Jefferson County Civil Defense Corps, 706 F.2d 1184, 1187-88 (11th Cir.1983), cert. denied, 464 U.S. 1045, 104 S.Ct. 715, 79 L.Ed.2d 178 (1984). The burden of both production and persuasion then shifted to the defendant to show that the pay differential was justified under one of the Equal Pay Act's four statutory exceptions. 29 U.S.C.A. Sec. 206(d)(1); Corning Glass Works, 417 U.S. at 196-97, 94 S.Ct. at 2229; Plemer v. Parsons-Gilbane, 713 F.2d 1127, 1136 (5th Cir.1983).

The hospital relies on the "factor other than sex" exception to explain the wage differential here. Section 206(d)(1)(iv). The requirements for proving that exception are not met "unless the factor of sex provides no part of the basis for the wage differential." Morgado, 706 F.2d at 1189; 29 C.F.R. Sec. 800.142. The hospital contends that Crawford's wage was "red circled." Generally defined, the term "red circle" describes "certain unusual, higher than normal, wage rates which are maintained for many reasons." 29 C.F.R. Sec. 800.146. One such reason recognized in the regulations is temporary reassignment. 29 C.F.R. Sec. 800.147. Plaintiff does not dispute that Congress intended to include the practice of "red circling" as a section 206(d)(1)(iv) "factor other than sex" to explain a wage differential. H.R.Rep. No. 309, 88th Cong., 1st Sess. 3 (1963), reprinted in 1963 U.S.Code Cong. & Ad.News 687, 689.

David Crawford's salary was clearly "red circled," due to temporary reassignment; that is, his pay was higher than a person would normally receive for the work he was performing because he had transferred from a higher to a lower position with no reduction in pay. In September 1981, Crawford, who worked as a "Property Inventory Officer," was transferred "on a temporary basis" to the hospital's maintenance warehouse where he began performing the same work that Linda Gosa was then performing. Gosa had begun working as a "General Laborer" in the laundry room at Bryce Hospital in 1974. In 1978, she was transferred to the hospital's maintenance warehouse where she performed the work of a Stock Clerk I, but continued to receive a Laborer's wages. The hospital's "merit system" justification for maintaining Gosa at Laborer's wages, rejected by the district court, was that she was unable to pass the necessary examinations under the merit system to qualify for the Stock Clerk I position. Gosa initially familiarized Crawford with the Stock Clerk I job when he was first transferred to the warehouse, and for over two years both employees performed substantially identical work in the same warehouse. The district court found that the duties they performed were those of a "Stock Clerk I." During the time Gosa and Crawford worked together, both performing Stock Clerk I duties, her pay scale ranged from $268.50 to $430.60 per pay period (Laborer wages), whereas his ranged from $472.00 to $671.40 (Property Inventory Officer wages). On October 1, 1983, Crawford returned to his Property Inventory Officer duties.

On the basis of the evidence before it, the district court concluded that Gosa was not paid the same "salary as her male counterparts performing the same job," that a Stock Clerk I salary was commensurate with Crawford's duties in the warehouse, and that any wage of the comparator above the Stock Clerk I wage was due to red circling, a factor other than sex. The district court was not clearly erroneous in...