Hodgson v. Fairmont Supply Company, 71-1430.
| Citation | 454 F.2d 490 |
| Decision Date | 20 January 1972 |
| Docket Number | No. 71-1430.,71-1430. |
| Parties | James D. HODGSON, Secretary of Labor, United States Department of Labor, Appellant, v. FAIRMONT SUPPLY COMPANY, a corporation, Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
Carin Ann Clauss, Atty., Dept. of Labor (Peter G. Nash, Sol. of Labor, and Richard F. Schubert, Sol. of Labor, Bessie Margolin, Associate Sol., Marvin M. Tincher, Regional Atty., and Mack A. Player, Atty., Dept. of Labor, on brief), for appellant.
Alfred J. Lemley, Fairmont, W. Va. (Russell L. Furbee, and Furbee, Amos, Webb & Critchfield, Fairmont, W. Va., on brief), for appellee.
Before HAYNSWORTH, Chief Judge, BOREMAN, Senior Circuit Judge, and CRAVEN, Circuit Judge.
The Secretary of Labor brought suit in the United States District Court for the Northern District of West Virginia to enjoin Fairmont Supply Company from violating section 6(d) (1) of the Fair Labor Standards Act of 1938, as amended (29 U.S.C.A. § 201 et seq.), and to restrain Fairmont from withholding wages due under section 6(d) (3) of the Act to its employees Mabel Villers, JoAnne Fleming Chipps, and Lois Olson. The pertinent statutory sections are as follows:
Fairmont is engaged in wholesale sale and distribution of mining and industrial supplies. During the period under consideration,1 Mrs. Villers and Mrs. Chipps were employed by Fairmont as stock desk clerks. Their work consisted of making additions and subtractions to inventory cards based on purchases and sales, indicating to purchasing agents how much inventory should be ordered to maintain the desired level, answering the telephone in the absence of inside salesmen, and taking orders by telephone for the absent salesmen. Each maintained the inventory cards for one-third of the stock desk. During this same period, Mr. Mason worked between Mrs. Villers and Mrs. Chipps at the center section of the stock desk and did the tasks just described. The salary histories for Mr. Mason, Mrs. Villers, and Mrs. Chipps for this period are as follows:
Mr. Mason
July 18, 1966 to Nov. 30, 1966
$425 per month
Dec. 1, 1966 to Nov. 30, 1968
$450 per month
Mrs. Villers
July 18, 1966 to May 30, 1967
$300 per month
June 1, 1967 to Nov. 30, 1968
$315 per month
Mrs. Chipps
July 18, 1966 to May 31, 1967
$280 per month
June 1, 1967 to Dec. 31, 1967
$295 per month
Jan. 1, 1968 to Nov. 30, 1968
$310 per month
Mrs. Chipps had worked at Fairmont since 1959 as a stock desk clerk. In addition to her stock desk duties, she did costing, matched warehouse orders, and maintained the inventory records for the plumbing department. Mrs. Villers had worked in Fairmont's purchasing department for ten years before transferring to the stock desk in July 1965. She also did costing on her inventory cards. Mr. Mason applied for clerical work with Fairmont and was hired on July 1, 1964. (App. 150). A memorandum of his hiring stated, "Mr. Mason has been hired as a sales trainee and will be put through our training program to learn all phases of sales processing." Before beginning work at the stock desk, he worked for three or four weeks in the warehouse learning about the activities there and for about six months in the general office learning to write credit and debit memorandums. On the stock desk he did not perform the additional tasks performed by Mrs. Chipps and Mrs. Villers. In September 1968, after the installation on the stock desk of a system indicating the rate of turnover of inventory, Mr. Mason left the stock desk to become inventory control clerk. This job consists of doing the ordering work that was previously done by Mr. Mason, Mrs. Villers, and Mrs. Chipps together.
Lois Olson is the third female employee for whom back wages are sought. She replaced Mr. Mason on the stock desk and works as a stock desk clerk. Her starting salary in September 1968 was $165 per month less than Mr. Mason's.
The Secretary claimed that Mr. Mason was paid substantially more than Mrs. Villers, Mrs. Chipps, and Mrs. Olson for equal work on jobs performed under similar circumstances and requiring equal skill, effort, and responsibility. Fairmont denied that Mr. Mason and the female employees performed the same job, insisting that Mr. Mason did tasks not done by the women which required greater skill, effort, and responsibility. Fairmont also contended that Mr. Mason's sales trainee status was "a factor other than sex" justifying his higher salary under section 6(d) (1) (i) (iv) of the Act, set out above. The district court dismissed the Secretary's complaint. We reverse and remand for calculation of the wages due Mrs. Villers, Mrs. Chipps, and Mrs. Olson and for issuance of an injunction against further violation of the Act and withholding of wages due under the Act.
The Secretary carries the burden of proving equality of jobs.2 Hodgson v. Brookhaven General Hospital, 436 F.2d 719, 722 (5th Cir. 1970). He need not show that what Mr. Mason and the three female employees did for the pay and during the period in question was identical; rather, he must show that what they did required equal skill, effort, and responsibility. "Equal" means "substantially equal." "Any other interpretation would destroy the remedial purposes of the Act." Shultz v. Wheaton Glass Co., 421 F.2d 259, 265 (3d Cir.), cert. denied, 398 U.S. 905, 90 S.Ct. 1696, 26 L.Ed.2d 64 (1970). "As the doctrine is emerging, jobs do not entail equal effort and skill and responsibility, even though they entail most of the same routine duties, if the more highly paid job involves additional tasks which (1) require extra effort and skill and responsibility, (2) consume a significant amount of the time of all those whose pay differentials are to be justified in the terms of them, and (3) are of an economic value commensurate with the pay differential." Hodgson v. Brookhaven General Hospital, supra, 436 F.2d at 725. In evaluating the evidence presented by the Secretary in this case, we are mindful that under Federal Rules of Civil Procedure 52(a) we must accept the trial court's findings of fact unless they are clearly erroneous but that conclusions of law come to us clothed with a lighter presumption of validity. Shultz v. American Can Co.-Dixie Products, 424 F.2d 356, 360 n. 6 (8th Cir. 1970).
We think that the Secretary has sustained his burden of proving that the jobs performed by Mr. Mason and the three female employees for the pay and during the period in question required substantially equal skill, effort, and responsibility. The transcript shows that Mr. Mason worked at the stock desk with Mrs. Villers and Mrs. Chipps during the period in question and that his work at the center section was "pretty generally the same" (App. 107) as that at the two end sections maintained by the two women. The district court found as a fact that in addition to his stock desk duties Mr. Mason performed 16 tasks not performed by Mrs. Villers and Mrs. Chipps,3 and concluded that these additional tasks justified Mr. Mason's higher salary. We think that none of these tasks either alone or in combination with others justifies Mr. Mason's higher pay.4
For convenience of analysis these additional 16 tasks may be grouped as follows:5
I
(1) "Working in the company warehouse for approximately one month learning the receiving functions, placing stock on the shelves, physical inventory, trucking procedures and all paper work in connection with the warehouse" and (2) "Was trained in and did pricing or billing of materials sold to customers." Mr. Mason's work in the warehouse and training in pricing occurred prior to the period he worked on the stock desk. (App. 165). These activities, therefore, cannot justify Mr. Mason's higher salary for the latter period. The finding that Mr. Mason did pricing is clearly erroneous. Mr. Mason and one company official testified that he did not actually do any pricing. (App. 107, 158). Apparently any billing Mr. Mason did consisted of correcting errors in connection with customer credits, discussed in section V below. (App. 121).
II
(3) "Was required to and did attend meetings with manufacturers' representatives and internal sales meetings of the company to familiarize himself with the products sold by the particular suppliers of Fairmont Supply." Mr. Mason was paid for attending these meetings (App. 108), and there is no indication in the record that this pay was not commensurate with the skill, effort, and responsibility required. His higher salary, therefore, cannot be justified by this activity.
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