Jacobson v. Pitman-Moore, Inc.

• Decision Date: 24 October 1983
• Docket Number: No. Civ. 4-82-1186.,Civ. 4-82-1186.
• Citation: 573 F. Supp. 565
• Parties: Doris JACOBSON, Plaintiff, v. PITMAN-MOORE, INC., a corporation, and Johnson & Johnson, Inc., a corporation, Defendants.
• Court: U.S. District Court — District of Minnesota

573 F. Supp. 565

Doris JACOBSON, Plaintiff, v. PITMAN-MOORE, INC., a corporation, and Johnson & Johnson, Inc., a corporation, Defendants.

No. Civ. 4-82-1186.

United States District Court, D. Minnesota.

October 24, 1983.

Karla R. Wahl, and Bruce Johnson, Minneapolis, Minn., for plaintiff.

William Z. Pentelovitch, Howard B. Tarkow, Maslon, Edelman, Borman & Brand, Minneapolis, Minn., and Michael G. Cleveland and Marion C. Haney, Vedder, Price, Kaufman & Kammholz, Chicago, Ill., for defendants.

MEMORANDUM AND ORDER

MacLAUGHLIN, District Judge.

This employment discrimination case is before the Court on the defendants' motion for summary judgment. The Court previously granted summary judgment in favor of the defendants on six of the eight counts in the plaintiff's amended complaint. The defendants now seek summary judgment on the plaintiff's two remaining claims brought under the Equal Pay Act, 29 U.S.C. § 206, and the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., respectively.

FACTS

The plaintiff Doris Jacobson, age 51, was employed in the Minneapolis, Minnesota branch of the defendant Pitman-Moore, Inc. (PMI), a subsidiary of the defendant Johnson & Johnson, Inc., from March 13, 1972, until April of 1981 when her employment was terminated. Jacobson, an assistant branch manager at PMI, was one of two permanent employees in the Minneapolis branch. The other employee was the branch manager, Robert Hanlin.

Jacobson's dismissal followed a reorganization of PMI in which the Minneapolis branch was closed and consolidated into the Des Moines, Iowa branch. Jacobson was told that she would not be transferred to Des Moines because her job was being phased out. Hanlin, Jacobson's supervisor, was transferred. He was 54 years old at the time and had 31 years of seniority with PMI, as opposed to Jacobson's nine years. Jacobson claims that her job was not, in fact, phased out, but that a younger and less experienced male was hired to perform the same duties under a different job title after her discharge.

In her Equal Pay Act claim, Jacobson alleges that during her tenure with PMI she was paid less than male employees of PMI even though she performed equal work. In her ADEA claim, Jacobson alleges that PMI discriminated against her on the basis of her age by failing to transfer her to the Des Moines office and by discharging her just prior to the vesting of her pension rights.

DISCUSSION

A defendant is not entitled to summary judgment unless the defendant can show that no genuine issue exists as to any material fact. Fed.R.Civ.P. 56(c). Summary judgment is an extreme remedy that should not be granted unless the moving party has established a right to judgment with such clarity as to leave no room for doubt and unless the nonmoving party is not entitled to recover under any discernible circumstances. E.g., Vette Co. v. Aetna Casualty & Surety Co., 612 F.2d 1076, 1077 (8th Cir.1980). In considering a summary judgment motion, a court must view the facts most favorably to the nonmoving party and give that party the benefit of all reasonable inferences that can be drawn from the facts. Unlaub Co. v. Sexton, 568 F.2d 72, 76 (8th Cir.1977). The nonmoving party may not merely rest upon the allegations or denials of the party's pleading, but must set forth specific facts by affidavits or otherwise showing that there is a genuine issue for trial. Burst v. Adolph Coors Co., 650 F.2d 930, 932 (8th Cir.1981).

A. Equal Pay Act

The Equal Pay Act, 29 U.S.C. § 206, states in relevant part:

(d)(1) 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.

(Emphasis added). The key word for purposes of this motion is "establishment." PMI contends that "establishment" means each physically separate place of business. Therefore, for purposes of the Equal Pay Act, PMI argues that Jacobson can compare her salary only to the salary of other employees in the Minneapolis office. The only other permanent employee in the Minneapolis office was Robert Hanlin, the manager, who earned approximately $20,000. Jacobson, the assistant manager, earned $13,000. Since Jacobson can compare her job only to Hanlin's job, and since Jacobson admitted in her deposition that Hanlin's job involved more responsibilities than hers (i.e., the jobs were not equal), PMI contends that the Equal Pay Act has no applicability in this case and that Count II must therefore be dismissed.

Jacobson denies that "establishment" should be given the meaning advocated by PMI. Jacobson contends that she is entitled under the Equal Pay Act to compare her salary with the salaries of PMI employees doing equal work in geographically scattered PMI offices. Jacobson submits that her average weekly salary as an assistant manager was less than the average weekly salaries of employees in other branches performing similar work. She also compares her $13,000 per year salary to the $20,000 salary of her supervisor Hanlin. Based on these comparisons, Jacobson argues that a prima facie violation of the Equal Pay Act has been shown.

Jacobson's expansive interpretation of the term "establishment" is flatly contradicted by the administrative regulations implementing the Equal Pay Act. These regulations clearly define "establishment" as "each physically separate place of business":

Although not expressly defined in the Equal Pay Act, the term "establishment" has a well settled meaning in the application of the Act's provisions. It refers to a "distinct physical place of business" rather than to "an entire business or enterprise" which may include several separate places of business. This is consistent with the meaning of the term as it is normally used in business and in government, is judicially settled and has been recognized in the Congress in the course of enactment of amendatory legislation .... Each physically separate place of business is ordinarily considered a separate establishment. For example, where a manufacturer operates at separate locations a plant for production of its goods, a warehouse for storage and distribution, several stores from which its products are sold, and a central office for the enterprise, each physically separate place of business is a separate establishment.

29 C.F.R. § 800.108 (1982) (emphasis added).

Applying this regulation, the Court finds that the Minneapolis branch of PMI was a separate establishment for purposes of the Equal Pay Act. Jacobson's assertion that the Minneapolis branch was part of an integrated production chain and was incapable of operating independently of the other branches is neither relevant nor supported by any facts in the record.

Since the Minneapolis branch was a separate establishment, Jacobson can compare her salary only to that of her supervisor Hanlin, who was the only other permanent employee in the Minneapolis office.¹ Such a comparison fails to reveal any violation of the Equal Pay Act because Jacobson and Hanlin did not perform equal work. Jacobson admitted in her deposition that Hanlin was her supervisor. Deposition of Doris Jacobson, July 5, 1983, at 12. She also admitted that Hanlin's job duties exceeded hers in certain ways. For example, Hanlin had the responsibility for hiring temporary employees and was the ultimate supervisor of those employees. Id. at 17-18. Although Jacobson may have filled in for Hanlin on occasion during his absence, that does not mean that she and Hanlin performed equal work. The Court concludes that Jacobson has failed to establish a basis for her Equal Pay Act Claim.

B. ADEA

1. EEOC filing.

PMI first contends that Jacobson's ADEA claim must be dismissed because Jacobson failed to file a claim of discrimination with the Equal Employment Opportunity Commission (EEOC) within 300 days of the date of her discharge as required by law. 29 U.S.C. § 626(d). Jacobson filed a statement of discrimination with the EEOC on August 25, 1982, and filed a formal charge one month later. Both of these filings were well beyond the 300-day limit. Jacobson responds that the circumstances of this case require that the limitations period be equitably tolled.

Filing a timely charge with the EEOC "is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling." Zipes v. Trans World Airlines, 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982). An employer's failure to post notices of employees' rights under the ADEA as required by statute, 29 U.S.C. § 627, tolls the limitations period until the employee acquires actual notice of his or her rights. Kephart v. Institute of Gas Technology, 581 F.2d 1287 (7th Cir.1978), cert. denied, 450 U.S. 959, 101 S.Ct. 1418, 67 L.Ed.2d 383 (1981).

In this case, based upon PMI's admission that it is unable to prove that the required notices were posted at the Minneapolis branch, the Court must assume that no such notices were posted. Since Jacobson states in her affidavit that she did not acquire actual knowledge of the need to file with the EEOC until August 20, 1982, Affidavit of Doris Jacobson, Aug. 9, 1983, at 1, ordinarily equitable tolling would apply.

This case is complicated, however, by the fact that Jacobson consulted Attorney Bruce Johnson in June of ...