Hodgson v. First Fed. Sav. & L. Ass'n of Broward Co., Fla.

Decision Date25 January 1972
Docket NumberNo. 71-1718.,71-1718.
Citation455 F.2d 818
PartiesJames D. HODGSON, Secretary of Labor, United States Department of Labor, Plaintiff-Appellant, v. FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF BROWARD COUNTY, FLORIDA, Defendant-Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Peter G. Nash, Sol. of Labor, U. S. Dept. of Labor, Washington, D. C., Beverley R. Worrell, Regional Sol., James H. Woodson, Atty., U. S. Dept. of Labor, Atlanta, Ga., Bessie Margolin, Carin Ann Clauss, Helen W. Judd, Attys., U. S. Dept. of Labor, Washington, D. C., for plaintiff-appellant.

Marshall G. Curran, Jr., James Blosser, English, McCaughan & O'Bryan, Fort Lauderdale, Fla., for defendant-appellee.

Before TUTTLE, GEWIN and DYER, Circuit Judges.

TUTTLE, Circuit Judge.

On this appeal we are called upon to apply the recently enacted Age Discrimination In Employment Act.1 This action was brought by the Secretary of Labor to enjoin defendant from denying employment to individuals within the age group protected by the Act and from withholding payment for unpaid wages allegedly due one individual because of discrimination against her. The trial court held that some of defendant's past conduct was violative of the law and warranted the issuance of a limited injunction restraining defendant from future violations of the Act, but it denied recovery of back wages. The Secretary appeals. We reverse as to the denial of unpaid wages and conclude that the injunction must be broadened.


The Age Discrimination in Employment Act was enacted in 1967 for the express purposes of promoting "employment of older persons based on their ability rather than age" and prohibiting "arbitrary age discrimination."2 The Act makes it unlawful for employers, employment agencies, and labor organizations to discriminate on the basis of age, the protected group being those persons between the ages of forty and sixty-five.3 With a few minor exceptions the prohibitions of this enactment are in terms identical to those of Title VII of the Civil Rights Act of 19644 except that "age" has been substituted for "race, color, religion, sex, or national origin."

The statutory defenses to an action for violation of the Act are contained in Section 4(f).5 That section provides, inter alia, that it shall not be unlawful for an "employer, employment agency, or labor organization to take any action otherwise prohibited . . . where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business, or where the differentiation is based on reasonable factors other than age."

Additionally it is to be noted that the Age Discrimination Act incorporates by reference the enforcement provisions of the Fair Labor Standards Act.6 Thus, should the Secretary of Labor fail to "effect voluntary compliance with the requirements (of the Act) through informal methods of conciliation, conference, and persuasion",7 the courts have at their disposal a broad range of remedies (except criminal sanctions). These, of course, include the issuance of injunctions to effectuate future compliance with the Act and to restrain the continued withholding of unpaid wages owing because of unlawful past discrimination. Amounts owing to a person as a result of a violation of the Age Discrimination Act are deemed to be unpaid minimum wages or unpaid overtime compensation for purposes of Sections 16 and 17, of the Fair Labor Standards Act.8

The Secretary brought this action under Section 7(b) of the Age Discrimination Act and Section 17 of the Fair Labor Standards Act to enjoin defendant, First Federal Savings and Loan Association of Broward County, Florida, from violating the provisions of Section 4(a) (1)9 by denying employment to job applicants within the protected age group. He further sought to restrain the defendant from withholding unpaid wages owing to a Mrs. Betty Hall as a result of defendant's unlawful refusal to hire her because of her age.

At the conclusion of the trial the district court found that defendant had for a limited period of time followed the practice of not hiring tellers within the protected age group and based on that finding it issued an injunction restraining defendant from future violations of Section 4 of the Age Discrimination Act "with regard to the hiring of tellers". The court added that the injunction was not to be construed as prohibiting defendant from refusing to hire tellers within the protected age group who "for whatever reason may not have the necessary qualifications to perform the job of a teller." With respect to the alleged discrimination against Mrs. Hall the court held that the Secretary had not carried the burden of proof to sustain such a charge; accordingly relief was denied.

The Secretary now appeals. He contends that it was an abuse of discretion for the trial court to limit the applicability of its injunction to the hiring of tellers only; that the clarifying statement to the injunction should be omitted inasmuch as it would permit easy evasion of the Act; and that it was error to deny relief to Mrs. Hall. We consider each of the Secretary's contentions below.


Defendant-appellee (hereafter Defendant) is a savings and loan institution with a main office and five branches in Broward County, Florida. It has been stipulated that defendant is an "employer" within the meaning of the Act.

At any given time defendant normally employs about thirty-five tellers, a job which according to testimony, has a relatively high turnover rate. The record shows that between June 12, 1968 (the effective date of the Act) and July 14, 1969, 35 tellers and teller trainees were hired. None was over forty and all but three were in their teens and twenties.

On April 25, 1969, Mrs. Betty Hall, then 47 years of age, applied for a position at defendant institution and was interviewed there by Mr. Joseph Bunsfield, the personnel officer. Since defendant at that time had openings for tellers, Mr. Bunsfield brought up the subject of the teller jobs during the interview. However, he informed Mrs. Hall that the job requires long hours of standing and that, in his opinion, she would be physically incapable of doing the work. At the termination of the interview Mr. Bunsfield wrote "too old for teller" on his notes pertaining to Mrs. Hall. Mrs. Hall was nonetheless given an application form which she filled out (without specifying what position she was seeking) and returned to the defendant. Defendant did not hire her.

Shortly thereafter, in June, 1969, Mr. Bunsfield interviewed another applicant, a Mrs. Belle Noland, who, like Mrs. Hall, was over forty years of age. With respect to this woman Mr. Bunsfield wrote "wants teller, too old."

Subsequently, in the course of a wage-hour investigation conducted on July 24, 1969, Mr. Bunsfield, when queried by the Labor Department compliance officer about the notations on his interview notes, responded that he had not meant to write "too old", but had meant instead that Mrs. Hall and Mrs. Noland were too heavy and had thick legs.10 However, at trial Mr. Bunsfield testified that he does not normally look for physical characteristics in determining whether to hire a particular applicant for the job of teller. Moreover, on the interview notes of another female applicant, age 25, Mr. Bunsfield had written "heavy girl, may make teller." This young woman was five feet five inches tall and weighed 160 pounds.

Two other circumstances ought to be noted at this point. First, from December 3, 1968 an employment agency in Fort Lauderdale, Florida, Sigma Personnel Consultants, maintained in its current files a job order for teller trainees, ostensibly placed by the defendant. The order called for females of moderate intelligence, with or without cashiering experience, and specifying ages 21 to 24.11 Second, Mr. Bunsfield admitted that he was familiar with the requirements of the Age Discrimination Act prior to Mrs. Hall's application for a job. Shortly before Mrs. Hall applied, defendant received a notification from the Labor Department, advising that defendant's blind ad in a local newspaper seeking a "young man" for the position of financial advertising assistant might constitute a violation of the Act. Mr. Bunsfield was aware of this correspondence, but he testified that the ad had been run, without his knowledge, by defendant's public relations department.


We consider first the Secretary's contention that Mrs. Hall is entitled to recover from the defendant lost wages resulting from the alleged discrimination against her. The trial court denied such relief on the ground that the Secretary failed to meet his burden of proof. We reverse.

In its pleadings the defendant asserted, by way of affirmative defense, that it had failed to hire Mrs. Hall because (1) defendant's representative felt that the job of teller would be too strenuous for her because of her physical makeup and because (2) Mrs. Hall agreed that she would be physically unable to perform the duties of teller. The court found that Mrs. Hall's testimony was "vague, her memory hazy, and she candidly acknowledged her inability to remember many of the specific facts, which, carried against the positive testimony of Defendant's representative to the effect that he had not hired her because of their mutual understanding that the job would be too physically demanding for her, leaves the court with no choice but to hold that Plaintiff has not sustained the burden of proof of showing discrimination as to this individual." (Emphasis supplied). Accordingly relief was denied. On this appeal the Secretary urges that in reaching its conclusion the trial court relied on erroneous standards of proof. We think this claim is well-founded.

In discrimination cases the law with respect to burden of proof is well-settled. The plaintiff is required only to make out a prima facie case of unlawful discrimination...

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