Hodgson v. Good Shepherd Hospital, Civ. A. No. 4945.

• Decision Date: 26 April 1971
• Docket Number: Civ. A. No. 4945.
• Citation: 327 F. Supp. 143
• Parties: James D. HODGSON, Secretary of Labor, United States Department of Labor, Plaintiff, v. The GOOD SHEPHERD HOSPITAL, a corporation, Defendant.
• Court: U.S. District Court — Eastern District of Texas

327 F. Supp. 143

James D. HODGSON, Secretary of Labor, United States Department of Labor, Plaintiff, v. The GOOD SHEPHERD HOSPITAL, a corporation, Defendant.

Civ. A. No. 4945.

United States District Court, E. D. Texas, Tyler Division.

April 26, 1971.

William E. Everheart, U. S. Department of Labor, Dallas, Tex., for plaintiff.

Earl Sharp, Longview, Tex., for defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

STEGER, District Judge.

Findings of Fact

1. On December 26, 1968 the Plaintiff filed a complaint against the Defendant to enjoin it from violating the provisions of 6(d) and 15(a) (2) of the Fair Labor Standards Act as amended and such other and further relief as may be necessary and appropriate including the restraint of any withholding of payment of wages found to be due to employees under the Act.

2. That jurisdiction of this Court was conferred by Section 17 of the Fair Labor Standards Act as amended.

3. The Defendant is a Texas Corporation located at Fifth and Marshall Streets, Longview, Gregg County, Texas, within the jurisdiction of this Court and is and at all times hereinafter mentioned engaged in operating a hospital. It is a non-profit corporation operating under a Board appointed by the Bishop of the Episcopal Diocese of Texas.

4. The Defendant, The Good Shepherd Hospital, did not become subject to the provisons of Section 6(d) and Section 15(a) (2) of the Act until February 1, 1967.

5. The discrimination on the basis of sex charged in the complaint is not limited to any department of the hospital, but refers to all aides and orderlies employed by the Defendant in its facility.

6. All aides have been employed on a full time basis. Orderlies have been employed on a full time basis but additional orderlies have been employed as summer time replacements on a temporary basis.

7. Permanent employees are placed on probation (training period for three months. There are training courses for the aides conducted by Mrs. Elliott. There is a course of training for orderlies also by Mrs. Elliott, Medical Doctors and Senior Orderlies. This has not applied to orderlies having adequate prior training or experience. The training of the aides and orderlies differs in the following respects that the orderly is:

(1) Taught the art of moving and lifting heavy, obese and aged persons;

(2) Taught male catheterizations and related services by Urologists;

(3) Taught orthopedic services and use of, setting up traction equipment by senior orderly and by orthopedic surgeons;

(4) Taught the responsibility of Hospital wide service and knowledge of location of equipment of entire facility;

(5) Taught and trained for emergency room work by Doctors and senior orderlies;

(6) Taught Sterile procedures as opposed to aseptic procedures only taught to the aide by nursing personnel;

while Nurses Aides are not taught the above procedures.

8. Good Shepherd Hospital has had no policy prohibition against an orderly being a female or a male being a nurses aide though as a practical matter all aides have been females and all orderlies have been males.

9. The head orderly has been Mr. Alvin Murphy whose salary has increased from period to period because of exceptional ability and tenure while performing added duties of training and teaching new orderlies. This has been true of the orderlies Prints Amerson, Gene Draper and James Bell but in a somewhat lesser degree.

10. (a) Between February 1, 1967 and February 1, 1969 there were 126 aides and 34 orderlies employed but the average ratio of aides to orderlies over that period was 45 aides for 8 orderlies. Total hours paid 126 aides was $176,853.50 hours and for 34 orderlies $27,914.25 hours in the same period.

(b) Between February 2, 1969 and March 14, 1970 there were 110 aides employed and 22 orderlies, total hours paid 110 aides $108,678.25; total hours paid 22 orderlies, $11,468.25.

11. The ratio of orderlies to aides varies and has varied during the entire period. The great majority of the time there has been one or more orderlies on each shift.

12. Wage Scale

(a) During the period from February 1, 1967 to the present date the following pay scales have been applied to orderlies:

1967—1.25 per hour

1968—1.25 per hour

(1.52 per hour to experienced)

(1.75 to Chief Orderly Murphy)

1969—1.52 per hour

(2.08 to Chief Orderly Murphy)

1970—1.65 per hour

(2.08 to Chief Orderly Murphy)

(Plaintiff stated in argument to Court Chief Orderly Murphy was not a proper subject for comparison purposes).

(b) During the period from February 1, 1967 to the present date the following pay scales have been applied to nurses aides:

                1967—1.00 per hour
                1968—1.16 per hour
                           1.30 per hour
                1969—1.36 per hour
                           1.50 per hour
                1970—1.60 per hour
                

13. In the hospital as a whole there are 192 beds. There are 3 floors. The hospital has two emergency rooms on the lower floor. The hospital has a Central Supply Station but Nurses Stations are on each floor. Orthopedic, cystoscopic, x-ray and cast equipment are kept in separate rooms. There is a call system over the hospital area to all floors.

14. At Good Shepherd Hospital Job Requirements or Descriptions for an Orderly and for an Aide reflected major differences in duties of Aides and Orderlies. These differences existed in actual duties performed by Aides and Orderlies.

15. The Court finds that the job of orderly is separate and distinct from the job of the aide and requires greater skill, effort and responsibility. It is performed under less attractive working conditions than those enjoyed by the Nurses Aides, with the Orderly job being fraught with more personal risk and danger of bodily injury or harm.

While the orderly and the aide do perform certain functions which are similar in some respects, still (even in addition to noninterchangeable duties depending on sex of the patient being administered to) there are important and basic duties and responsibilities of the orderly which are not performed by the aide:

(1) The orderly has responsibility for calls to all parts of the hospital and not limited in any way to one unit or floor as the aide is limited. This includes emergency calls also known as stat calls arising from security problems or other emergencies. The orderly is not assigned a certain floor or a certain number of rooms or patients, for the routine duties also performed by the nurses aides. The orderly has the whole hospital and its operation as his responsibility with much duty performed without direct supervision —working on his own and using his special skills and training. This is and has been true at all times since February 1, 1967.

(2) The orderly has responsibility for security and protection for aides, personnel, visitors and patients throughout the hospital. There are two lockup rooms where alcoholic and psychiatric patients are placed, and here restraint is implemented by the orderly for the good of the patient to prevent his injuring himself or others. The very presence of the orderly has been a deterrent to trouble. It gave a feeling of security to aides and nurses and had a helpful psychological effect upon the hospital personnel. The superior strength and training of the orderly enables him to cope with the situation where the aide could not successfully do so. A significant portion of the time of the orderly is devoted to actual duty in this area.

In fire and disaster drills and during the implementation of such plans the importance of the function of the orderly is paramount because of strength, maturity, training, and experience, and because his presence lends confidence and reliance.

(3) The orderly has special training to do and does male catheterizations which is an extremely important hospital duty, calling for skill and training in sterile techniques not possessed by aides. Aides do not even perform catheterizations of female patients. Male catheterization is an important hospital function and is a special skill developed by training from Urologists, and the senior orderly. This duty was performed by orderlies ranging from several a day to several a week consuming up to 45 minutes of time. The hospital rules have prohibited nurses aides from performing this procedure (even on females) since February 1, 1967. The importance of the orderly job is not confined to actual catheterizations done—but his availability to do them. There is no schedule when this critical work may have to be done.

(4) The orderly has special training and duties in assisting the orthopedic surgeon. Doctors, nurses, aides and orderlies so testified. The orderly sets up all different types of traction devices ordered by the doctor. Orderlies performed these duties from several times a week to several times a month and time consumed depending on type of traction would run from 15 to 45 minutes. Some are rather complex and varied in the way in which they are set up. Knowledge, skill and strength play an important part in this duty which is not performed by aides. The orderly assists the orthopedic surgeon in the application of casts—this may require long periods of rigid holding of a limb, or body in one position by the orderly. This requires strength and effort which the aide does not possess. This has been true of the orderly since February 1, 1967. The orderlies are fully responsible for the care and maintenance of traction equipment, in storage and in use, including such items as a circular electric bed and the traction equipment cart.

Again availability of the trained orderly to do the work when called is of importance to the hospital operation.

(5) The orderlies had great responsibility in their work in the emergency room and all work there. This work is demanding in that the lifting and moving from ambulance to stretcher to treatment and examination beds calls for strength, effort and exertion. It calls for skill and training in moving, lifting and transporting the patient which the orderly has. Aides do not...