Hodgson v. Brookhaven General Hospital, 29083.

Citation436 F.2d 719
Decision Date30 December 1970
Docket NumberNo. 29083.,29083.
PartiesJames D. HODGSON, Secretary of Labor, United States Department of Labor, Plaintiff-Appellee, v. BROOKHAVEN GENERAL HOSPITAL, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

M. Clifton Maxwell, Dallas, Tex., for defendant-appellant.

C. Dean Davis, Gen. Counsel, Texas Hospital Assn., Westgate, Austin, Tex., for amicus curiae.

William E. Everheart, Betty-Jo Christian, Attys., Dept. of Labor, Dallas, Tex., L. H. Silberman, Sol. of Labor, Bessie Margolin, Carin Ann Clauss, Attys., U. S. Dept. of Labor, Washington, D. C., Major J. Parmenter, Regional Sol., for plaintiff-appellee.

Before COLEMAN, AINSWORTH and GODBOLD, Circuit Judges.

AINSWORTH, Circuit Judge:

Proceeding under the authority conferred on him by 29 U.S.C. §§ 206(d) (3) and 217, the Secretary of Labor brought this action to enjoin the defendant Brookhaven General Hospital from violating the provisions of the Equal Pay Act of 1963, 29 U.S.C. § 206. The District Court made findings of fact and conclusions of law, holding that the hospital's male orderlies and female nurse's aides performed substantially equal work, and that defendant paid its aides at lower wage rates which had not been shown to have been based on any factor other than sex. 29 U.S.C. § 206(d) (1). Defendant hospital was enjoined from future violation of the Equal Pay Act, and from the withholding of unpaid wages due female employees since February 1, 1967, "so that the wages of female employees will be equal to those of males employed by Defendant during the same pay scale period." See 29 U.S.C. §§ 206(d) (3) and 217.

The appellant hospital contends, among othere things, that (1) the judgment is undermined by defects in the complaint; (2) the Secretary of Labor failed to sustain the burden of proving that the aides and orderlies were doing "equal work" within the meaning of 29 U.S.C. § 206(d) (1); and (3) evidence introduced by the defendant and other evidence which it was prevented from introducing establishes that the pay disparities in question were attributable to factors other than sex. Because the Trial Judge's findings do not clearly indicate a factual basis for her ultimate conclusions, we vacate the judgment and remand for further proceedings. See Kelley v. Everglades Drainage Dist., 319 U.S. 415, 63 S.Ct. 1141, 87 L.Ed. 1485 (1943). This case may set an important precedent for hospitals, and, accordingly, we have analyzed the issues in some detail.

I. Background

Brookhaven General Hospital is a privately owned hospital located in Dallas County, Texas. It is situated on one floor, with a basement for heating, air conditioning and electrical equipment. It has two operating rooms, a laboratory (leased out), a pharmacy, an emergency room, a Central Supply room, a nursery, an E.K.G. room, a recovery room, two surgery suites, physiotherapy facilities, a coronary care unit, and two nurses' stations — North and South — joined by a corridor.

It has been the consistent practice of the hospital to hire men as "orderlies" and women as "nurse's aides." As the Trial Judge noted in her findings of fact:

The primary though not the sole work performed by both aides and orderlies consists of (1) caring for the personal needs of patients, such as serving food and beverages, assisting with baths, oral hygiene, skin care, perineal care, (2) assisting patients with mechanics such as ambulations, turning, wheel chairs, bed pans, coughing, and deep breathing. Aides and orderlies are both responsible for observing and reporting intake and output of patients, dietary intake and preference, proper body elimination, attitude towards nursing care, change in patient\'s condition. Both are responsible for giving enemas, performing surgical preps and perilights, and seeing that all equipment used is cleaned and properly maintained.

Finding 5 (bracketed insert ours). Aides and orderlies work three shifts: 7 a. m. to 3 p. m. (day shift), 3 p. m. to 11 p. m. (evening shift), and 11 p. m. to 7 a. m. (night shift). A shift differential is paid for work on the evening and night shifts. There are at least two aides and one orderly on each station on each shift, except that often neither station is manned by an orderly at night.

The hospital's Director of Nursing Services, a registered nurse with some years of experience in health education and the management of health institutions, is principally responsible for the hiring of aides and orderlies. She also has the bulk of administrative responsibility for reviewing the work of individual aides and orderlies and fixing their compensation. During the period under review, beginning in February of 1967, both starting salaries and the salaries paid to experienced personnel were raised at least once each year.

The complaint in this action was filed on the Secretary's behalf on March 24, 1969. Defendant answered denying the central allegations of the complaint and pleading in addition certain affirmative defenses provided for in 29 U.S.C. § 206(d). The case went to trial under a pretrial order which provided, among other things, that each party would be limited to a maximum of six aide and/or orderly witnesses, and that only wages allegedly accruing to aides from March 24, 1967, were at issue in the suit.

Section 206(d) (1) of 29 U.S.C. provides as follows:

No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment 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: Provided, That an employer who is paying a wage rate differential in violation of this subsection shall not, in order to comply with the provisions of this subsection, reduce the wage rate of any employee.

Plaintiff bears the burden of proving equality of work and inequality of pay; if he sustains that burden, defendant has the burden of proving that the criterion for discrimination was some factor other than sex. See Shultz v. Wheaton Glass Company, 3 Cir., 1970, 421 F.2d 259, cert. denied, 398 U.S. 905, 90 S.Ct. 1696, 26 L.Ed.2d 64 (1970); Shultz v. First Victoria National Bank, 5 Cir., 1969, 420 F.2d 648. In the present case the Trial Judge found, in essence, that the Secretary had sustained his burden with respect to all or most of the aides on the hospital's rolls since March 24, 1967, and that the hospital had not established that its compensation system qualified under any statutory exception.

II. The Complaint

Appellant contends that the complaint filed by the Secretary of Labor in this case is seriously defective, in that it fails to name the employees involved or to designate aides and orderlies as the classes of employees affected. We find no merit in this contention.

Section 206(d) (3) of 29 U.S.C. provides that in any action brought under the Equal Pay Act, "for purposes of administration and enforcement, any amounts owing to any employee * * * shall be deemed to be unpaid minimum wages or unpaid overtime compensation * * *." under other pertinent provisions of the Fair Labor Standards Act. It is settled, at least in this Circuit, that an action instituted by the Secretary to recover unpaid minimum wages or overtime compensation need not specifically name the employees concerned or designate them by job classification. See Mitchell v. E-Z Way Towers, Inc., 5 Cir., 1959, 269 F.2d 126. The discovery procedures which are available to narrow the focus of such an action, see id., were utilized for that purpose in this case. The pretrial order entered by the Trial Court confined the oral testimony to that of aides and orderlies, and we construe the judgment to be so limited.

III. Equal Pay, Equal Work, and the Statutory Exceptions

The Trial Judge found in effect that during most of the months in question, orderlies were hired at salaries higher than the salaries at which aides were hired, and that where an experienced aide and an experienced orderly had virtually equal seniority, the orderly was paid more than the aide. There is evidence in the record to support this finding.1

Brookhaven concedes that the duties which occupied the better part of the time of both groups of employees demanded equal skill, effort and responsibility. Each orderly and aide was primarily responsible for routine care of the patients assigned to him,2 and for the most part the employees on duty at any time were assigned approximately the same number of patients. Though some differences may have existed in working conditions, we think the Judge was correct in minimizing them.3

Brookhaven contends, however, that the two roles were and are substantially distinguishable in terms of the "secondary and tertiary" duties the respective groups were called on to perform. First, it contends, orderlies were frequently called on to perform general hospital duties which aides were rarely called on to perform — duties requiring more than routine skill (catheterizations), effort (lifting heavy patients, bringing in stretcher patients, setting up traction, helping in the application of heavy casts, subduing violent patients, holding patients down in uncomfortable positions during spinal taps, moving TV sets and other heavy equipment, assisting in the emergency room, bringing up supplies), and responsibility (maintaining hospital security and preparing to assume leadership in the event of a fire). Second, it contends, orderlies were...

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