Gunther v. Washington County

• Decision Date: 16 August 1979
• Docket Number: No. 76-3448,76-3448
• Citation: 623 F.2d 1303
• Parties: 20 Fair Empl.Prac.Cas. 792, 20 Empl. Prac. Dec. P 30,204, 23 Empl. Prac. Dec. P 30,900 Alberta GUNTHER, Velence M. Vallance, Marion E. Vanderzanden, Yvonne M. Hatton, Plaintiffs-Appellants, v. The COUNTY OF WASHINGTON, Sheriff Warren Barnes, in his capacity as Sheriff of Washington County, Captain Stan Friese and Sergeant Clarence Ramseth, in their capacities as Washington County Police Officers, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1303

623 F.2d 1303

20 Fair Empl.Prac.Cas. 792,

20 Empl. Prac. Dec. P 30,204,

23 Empl. Prac. Dec. P 30,900

Alberta GUNTHER, Velence M. Vallance, Marion E.

Vanderzanden, Yvonne M. Hatton, Plaintiffs-Appellants, v. The COUNTY OF WASHINGTON, Sheriff Warren Barnes, in his

capacity as Sheriff of Washington County, Captain Stan

Friese and Sergeant Clarence Ramseth, in their capacities as

Washington County Police Officers, Defendants-Appellants.

No. 76-3448.

United States Court of Appeals, Ninth Circuit.

Aug. 16, 1979.

Rehearing Denied May 1, 1980.

Carol A. Hewitt, Lindsay, Nahstoll, Hart & Krause, Portland, Or., for plaintiffs-appellants.

Lawrence R. Derr, Washington County Counsel, Hillsboro, Or., for defendants-appellants.

Appeal from the United States District Court for the District of Oregon.

Before MERRILL and TANG, Circuit Judges and TAYLOR, ^* District Judge.

TANG, Circuit Judge:

Plaintiffs Alberta Gunther, Velence Vallance, Marion Vanderzanden, and Yvonne Hatton were four women employed as jail matrons ¹ at the Washington County (Oregon) jail. The plaintiffs guarded the inmates in the female section of the county jail; males were employed at a higher rate of pay to guard the inmates in the male section. The jobs of the plaintiffs and two other matrons, Dorothy Holiday and Donna Firth, were terminated when the County decided to move the women prisoners into a facility in an adjacent county.

The plaintiffs sued the County, Sheriff Warren Barnes, Captain Stan Friese, and Sergeant Clarence Ramseth ² under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e-1 2000e-17 (1976) ("Title VII"); Holiday and Firth did not sue. Generally, the plaintiffs alleged that the defendants denied them equal pay for equal work and that the defendants terminated them, and later refused to rehire them, in retaliation for their demands for equal pay.

The district court segregated the issues of liability and damages. The liability issue was tried to the court on the basis of depositions, witness summaries, exhibits and testimony. The court entered judgment for the defendants on the merits.

On appeal, the plaintiffs contend (1) they were denied equal pay for work substantially equal to that performed by male guards, and even if the work was not substantially equal, some of the discrepancy in pay can be explained only by sex discrimination; and (2) the defendants retaliated against plaintiffs for asserting equal pay demands by abolishing their jobs, by forcing Vanderzanden to resign, by noting on personnel forms they would not rehire the plaintiffs, and by refusing to rehire Vallance. We affirm in part, reverse in part, and remand for further proceedings.

I Discriminatory Compensation

Prior to June 1973, the male section of the jail was staffed by male deputy sheriffs. The deputy sheriffs were assigned to jail duties on a temporary basis only, as part of their training, for periods ranging from several days to one-year. In February 1973, the pay range for a matron was $525-$668; for a deputy sheriff, $736-$940; for a deputy sheriff recruit, $668-$812.

Beginning in late June 1973, the deputy sheriffs were replaced by the position of corrections officers. The corrections officers were assigned to the jail on a permanent basis, and the position was open to both males and females. In February 1973, the salary range for a correction officer was $701-$896; the range for a correction officer trainee was $668-$812.

The district court found that, although the matrons' jobs may have required as much skill as those of the male guards, the matrons' jobs did not require equal effort or responsibility. ³ The court found that the men and women had substantially different workloads. The men and women worked in separate quarters and the male jailers guarded more than ten times as many prisoners as each matron. Unlike the men, the matrons, because they had fewer prisoners to guard, devoted a significant portion of their working time to clerical duties which all parties agreed was less valuable work. Having determined that the work was not substantially equal, the district court stated "that is the end of the inquiry," and disregarded the plaintiffs' claim that some of the discrepancy in their pay was due to sex discrimination.

The plaintiffs dispute these findings. They contend that they were denied equal pay because the male jailers were paid more even though they and the males both performed substantially equal work. Plaintiffs further contend that, even if the work was not substantially equal, the defendants nevertheless violated Title VII if some of the difference in salary between the plaintiffs and the male guards can be attributed to sex discrimination. In order to evaluate these contentions, we must first consider the interrelationship of Title VII and the Equal Pay Act. ⁴

A. The Equal Pay Claim

Under the broad coverage of Title VII of the Civil Rights Act of 1964, it is an unlawful employment practice to discriminate against an individual with respect to compensation on the basis of the individual's sex. Section 703(a) (1), codified as 42 U.S.C. § 2000e-2(a)(1). The Equal Pay Act, § 6(d) of the Fair Labor Standards Act, 29 U.S.C. § 206(d), while specifically designed to prohibit discrimination based on sex in the area of compensation, is somewhat narrower in language. The Equal Pay Act prohibits an employer from discriminating "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 . . ." ⁵ The Act provides four affirmative defenses by which an employer can avoid liability despite proof of unequal pay for equal work.

It is plain that the Equal Pay Act overlaps with the coverage of § 703(a)(1) of the Civil Rights Act. See, e. g., Shultz v. First Victoria National Bank, 420 F.2d 648, 659 n.26 (5th Cir. 1969). Both statutes serve the same fundamental purpose of remedying inequality in the area of compensation, and where an equal pay claim has been raised under either or both statutes, the courts have held that the statutes should be construed harmoniously. Id.; Di Salvo v. Chamber of Commerce, 568 F.2d 593, 596 (8th Cir. 1978). As a result, courts have looked to decisions interpreting the Equal Pay Act for guidance in examining equal pay claims asserted under Title VII. See, e. g., Hays v. Potlatch Forests, Inc., 465 F.2d 1081, 1083 (8th Cir. 1972).

(1-5) Generally, the Equal Pay Act requires that women receive "equal pay for equal work." See, e. g., Brennan v. Prince William Hospital Corp., 503 F.2d 282 (4th Cir. 1974), cert. denied 420 U.S. 972, 95 S.Ct. 1392, 43 L.Ed.2d 652 (1975). Under the Act, the plaintiffs have the burden of proving that they did not receive equal pay for equal work. E. g., Christopher v. State of Iowa, 559 F.2d 1135, 1138 (8th Cir. 1977). They are not required, however, to show that the jobs performed are identical. Peltier v. City of Fargo, 533 F.2d 374, 377 (8th Cir. 1976); Usery v. Allegheny County Institutions District, 544 F.2d 148, 153 (3rd Cir. 1976). Instead, the plaintiffs may prove a violation of the Equal Pay Act by showing that the skill, efforts, and responsibility required in the performance of the jobs is "substantially equal." Usery v. Columbia University, 568 F.2d 953, 958 (2d Cir. 1977); Ridgeway v. United Hospitals Miller Division, 563 F.2d 923, 926 (8th Cir. 1977). To make this showing, actual job performance and content not job titles, classifications or descriptions is determinative. See Katz v. School District of Clayton, Missouri, 557 F.2d 153, 156 (8th Cir. 1977); Angelo v. Bacharach Instrument Co., 555 F.2d 1164, 1171 (3d Cir. 1977). It is the overall job, not its individual segments, that must form the basis of comparison, see Usery v. Richman, 558 F.2d 1318, 1320 (8th Cir. 1977), and, because job duties vary so widely, each suit must be determined on a case-by-case basis. Brennan v. Prince William Hospital Corp., 503 F.2d 282 (4th Cir. 1974), cert. denied, 420 U.S. 972, 95 S.Ct. 1392, 43 L.Ed.2d 652 (1975).

We apply the "clearly erroneous" standard of review in determining whether the district court correctly found that the jobs were not substantially equal. Fed.R.Civ.P. 52(a); see Di Salvo v. Chamber of Commerce, 568 F.2d 593, 596-97 (8th Cir. 1978). Our review of the record convinces us that the district court's finding on this issue was not clearly erroneous.

The district court relied heavily on two factors in making its determination: the amount of clerical work performed by the matrons and the prisoner/guard ratio. The record supports the district court's finding that each jailer was responsible for guarding a substantially greater number of prisoners than each matron. Over a six-month period from April to September 1973, the booking records show that the female prisoner population averaged 1.85 inmates per day. The average daily staff of matrons was about 5.5 matrons. Therefore, approximately three matrons were employed for each woman prisoner. In contrast, the average daily staff of 13 male jailers guarded, on the average, between 50 and 60 male inmates per day, or roughly 4 inmates for every guard. In other words, comparing the male and female prisoner/guard ratio, a male guard was typically responsible for 12 times as many prisoners as a matron. ⁶

The record likewise supports the district court's conclusion that the matrons did substantially more clerical work than the male guards. ⁷ Because they had fewer prisoners to guard, the matrons were assigned to do clerical work when they had no other work to perform. As a result, they performed substantial clerical work on every shift, including clerical work relating to the male prisoners. Often this work consumed as much as 50% of...