Howard v. Ward Cty.

• Decision Date: 30 July 1976
• Docket Number: No. A4-75-45.,A4-75-45.
• Citation: 418 F. Supp. 494
• Parties: Pauline M. HOWARD, Plaintiff, v. WARD COUNTY et al., Defendants, and Third-Party Plaintiffs, v. Olaf HAALAND, Third-Party Defendant.
• Court: U.S. District Court — District of South Dakota

418 F. Supp. 494

Pauline M. HOWARD, Plaintiff, v. WARD COUNTY et al., Defendants, and Third-Party Plaintiffs, v. Olaf HAALAND, Third-Party Defendant.

No. A4-75-45.

United States District Court, D. North Dakota, Northwestern Division.

July 30, 1976.

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Wallace D. Berning, Minot, N. D., Robert A. Feder, Fargo, N. D., for plaintiff.

Richard B. Thomas, State's Atty., Steven C. Lian, Minot, N. D., for defendants.

MEMORANDUM AND ORDER

VAN SICKLE, District Judge.

The Plaintiff, Pauline Howard, is a deputy sheriff of Ward County, North Dakota, who contends that the County, acting through its Board of Commissioners, has discriminated against her because of her sex, in violation of Title VII of the Civil Rights Act of 1964 (hereinafter Title VII), as amended, 42 U.S.C. § 2000e et seq., and the Equal Pay Act of 1963, 29 U.S.C. § 206(d) (1965). Plaintiff contends that the Board has failed to pay her a salary commensurate with that of male deputies in the Sheriff's Department who do substantially equal work. Plaintiff prays that the County and its Board of Commissioners be enjoined from failing to pay her the same salary as male deputies who do equal work and from otherwise discriminating against her on the basis of her sex. In addition, Plaintiff seeks to recover back pay, liquidated damages, attorneys' fees, and costs. The County and its Board of Commissioners deny that they have discriminated against Plaintiff on account of her sex and have filed a third-party action against Sheriff Olaf Haaland. In the third-party action, the Defendants contend that they are limited, under N.D.C.C. § 11-10-11, to fixing the number and salaries of Sheriff's deputies, and that personnel employment practices are solely within the discretion of the Sheriff and beyond their control. The Sheriff answers that he has done everything within his power to rectify any discrimination against Plaintiff. Further, the Sheriff counterclaims against the County and its Commissioners for an award of attorney's fees.

Trial to the Court took place July 14-16, 1976, at Minot, North Dakota. The Court now makes the following findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.

This Court has jurisdiction of the claim under the Equal Pay Act pursuant to 29 U.S.C. § 216(b) (1976 Supp.) and 28 U.S.C. § 1337 (1962), see Freudenberg v. Harvey, 364 F.Supp. 1087, 1090 (E.D.Pa.1973), and of the claim under Title VII pursuant to 42 U.S.C. § 2000e-5(f)(3) (1974).

Plaintiff has been employed as a deputy sheriff in Ward County under Sheriff Haaland since January of 1962. She started as a so-called "office deputy" with responsibilities in the civil area; also, from the beginning she was expected to assist in arrest and custody problems involving females and juveniles, whether under the criminal or mental health laws.

As her workload has increased, Plaintiff has attended numerous schools and seminars and received training in many different specialties. She has been trained in firearms, hand-to-hand combat, arrest procedures, constitutionality of search and seizure, domestic quarrels, civil process, criminal process, preservation of evidence for trial, admissibility of evidence, techniques of testifying in open court, interviewing, techniques in criminal investigation, and breathalyzer. The training in these specialties has been routinely utilized by the Plaintiff in the day-to-day performance of her job.

The Plaintiff is in charge of the civil side of the Sheriff's Office. This side is responsible for serving civil process, executing levies, and so on. Plaintiff is responsible for training other deputies in the art of civil process and has taught civil process at law enforcement seminars throughout the state. Plaintiff, with a rank of lieutenant, supervises Captain Taylor, Lieutenant Anderson, and Sergeant Swann in serving civil process. The Sheriff estimates that 90% of the total work of these three men is taken up in civil matters—with only 10% taken up in criminal matters.

As mentioned before, however, Plaintiff's job has expanded beyond civil process—office administration duties. She has administered well over 100 breathalyzer tests at all hours of the day and night. She has routinely taken female mental patients into custody and transported them to the state mental hospital at Jamestown. (Two male deputies are normally sent to pick up a male patient, and Plaintiff and one male deputy to pick up a female patient.) Plaintiff has transported female prisoners, and is expected to handle field work in juvenile delinquency and child-molestation cases. She is expected to investigate criminal matters, particularly with respect to crimes involving female suspects or victims.

In addition to her administrative and supervisory duties in the office, Plaintiff's duties over the years have expanded into virtually all the activities of so-called "field deputies"—with the exception of traffic control. Her work has exposed her to the same or similar hazards as the other deputies.

The Sheriff currently has 14 deputies—13 male and one female. The deputies are ranked as follows: 1 Colonel (Chief Deputy), 1 Major, 1 Captain, 2 Lieutenants, 5 Sergeants, and 4 Patrolmen-Recruits.

Colonel Heilman, the Chief Deputy, is second in command. His work is virtually all administrative. Major Wittmayer is third in command and is in charge of the criminal side of the office. The Plaintiff, Lieutenant Howard, is fifth in command and is in charge of the civil side of the office. Captain Taylor, who is fourth in command, performs duties on both the criminal and civil sides. When on the criminal side, he is under Major Wittmayer, and when on the civil side, he is under Lieutenant Howard. Lieutenant Anderson, sixth in command, also performs on both the civil and criminal sides, though approximately 90% of his work is on the civil side.

Thus, the Plaintiff has been given the rank of Lieutenant by the Sheriff. She is ranked fifth in command—below Captain Taylor and above Lieutenant Anderson. However, the Sheriff candidly admitted at trial that the only reason Plaintiff is not ranked Major is that the County Commissioners have in effect refused to recognize her even as a Lieutenant. Thus, the Sheriff's ranking of Plaintiff as a Lieutenant and fifth in command is conservative at best. Yet, out of the Sheriff and his 14 deputies, Plaintiff, who is third in seniority and no lower than fifth in the chain of command, is fifteenth in salary.

The Sheriff has long felt that Plaintiff has not been paid a salary on an equal basis as male deputies. And, since at least 1972, he has attempted to persuade the County Commissioners to pay Plaintiff a salary commensurate with her position, but so far to no avail. The Sheriff presents his annual budget requests to the Commissioners— broken down, as the Commissioners have required, into specific salary requests for each deputy. Although the Sheriff's requests for male deputies have routinely been reduced, the Commissioners have consistently held Plaintiff's salary at a level proper for one engaged only in office clerical and administrative work.

HAS THERE BEEN A VIOLATION OF THE EQUAL PAY ACT?

The Equal Pay Act of 1963 is a part of the Fair Labor Standards Act of 1938 (hereinafter FLSA), as amended, 29 U.S.C. § 201 et seq. In a very recent decision the United States Supreme Court has found that the 1974 amendments to the FLSA which extended the Act's definition of "employers" to include states and political subdivisions of states are beyond the power of Congress under the Commerce Clause. The National League of Cities v. Usery, ___ U.S. ___, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976). Since the Equal Pay Act is part of the FLSA and takes its definition of "employer" therefrom, it follows that the Defendants are not "employers" within the coverage of the Equal Pay Act.

It is true that, in a pretrial order dated May 3, 1976, counsel for all the parties in this lawsuit have agreed that certain "facts" may be accepted as established for purposes of this case. Among the "facts" is the proposition that "Defendants are the employer of Plaintiff within the meaning of 42 U.S.C. § 2000e(b) and with (sic) the meaning of 29 U.S.C. § 203(d)."

"Courts generally hold stipulations, agreements, or statements of counsel made at the pretrial conference binding for purposes of trial." 6 Wright & Miller, Federal Practice and Procedure: Civil § 1527, pp. 600-01 (1971). However, while a "stipulation of material facts is ordinarily proper," Minneapolis Brewing Company v. Merritt, 143 F.Supp. 146, 149 (D.N.D.1956), a district court is "not . . . obliged to accept, as absolutely controlling, a stipulation of the parties as to a question of law or a mixed question of law and fact." Spangler v. Pasadena City Board of Education, 519 F.2d 430, 434-35 n.4 (9th Cir. 1975), vacated and remanded on other grounds, ___ U.S. ___, 96 S.Ct. 2697, 48 L.Ed.2d ___ (1976). See also Estate of Sanford v. Commissioner, 308 U.S. 39, 51, 60 S.Ct. 51, 84 L.Ed. 20 (1939); Swift & Co. v. Hocking Valley Ry., 243 U.S. 281, 289, 37 S.Ct. 287, 61 L.Ed. 722 (1917), and Gunn v. U. S., 283 F.2d 358, 364 (8th Cir. 1960). In the light of this authority, I do not treat the stipulation of counsel as controlling.

"The original Fair Labor Standards Act passed in 1938 specifically excluded the States and their political subdivisions from its coverage." The National League of Cities v. Usery, supra, ___ U.S. ___, 96 S.Ct. at 2467. However, "in 1966, with the amendment of the definition of employers under the Act, the exemption heretofore extended to the States and their political subdivisions was removed with respect to employees of state hospitals, institutions, and schools." Id., at ____, 96 S.Ct. at 2467. The validity of this amendment was upheld in Maryland v. Wirtz, 392 U.S. 183, 88 S.Ct....