Marcoux v. State of Me.

• Decision Date: 30 July 1986
• Docket Number: No. 85-1786,85-1786
• Citation: 797 F.2d 1100
• Parties: 41 Fair Empl.Prac.Cas. 636, 41 Empl. Prac. Dec. P 36,438, 7 Employee Benefits Ca 2338 Nancy MARCOUX, et al., Plaintiffs, Appellees, v. STATE OF MAINE, et al., Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

Page 1100

797 F.2d 1100

41 Fair Empl.Prac.Cas. 636,

41 Empl. Prac. Dec. P 36,438,

7 Employee Benefits Ca 2338

Nancy MARCOUX, et al., Plaintiffs, Appellees, v. STATE OF MAINE, et al., Defendants, Appellants.

No. 85-1786.

United States Court of Appeals First Circuit.

Argued April 9, 1986.

Decided July 30, 1986.

Gail Ogilvie, Asst. Atty. Gen., Augusta, Me., for defendants, appellants.

Thomas B. Benjamin with whom Stephen P. Sunenblick and Sunenblick, Fontaine & Reben, Portland, Me., were on brief, for plaintiffs, appellees.

Before CAMPBELL, Chief Judge, and COFFIN and BOWNES, Circuit Judges.

LEVIN H. CAMPBELL, Chief Judge.

In this sex-based wage discrimination action brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e et seq. (1982), defendants-appellants the State of Maine, the Maine State Department of Personnel, and the Commissioner of the Maine State Department of Personnel appeal from a judgment entered in the United States District Court for the District of Maine in favor of plaintiffs-appellees Nancy Marcoux, Marcia Landers, Sandra Scarpelli, and a class of similarly situated female corrections officers employed by defendants at the Maine Correctional Center in South Windham, Maine. The district court's opinion is reported as Marcoux v. State of Maine, 35 Fair Empl.Prac.Cas. (BNA) 553 (D.Me.1984). We affirm.

I.

The plaintiff class consists of female "Corrections Officers I" who work in Dormitory 4 at the Maine Correctional Center, South Windham, Maine ("MCC"). Plaintiffs claim that they perform work substantially equal to that performed by the guards at the Maine State Prison in Thomaston ("MSP"), who are predominantly male, ¹ yet receive less favorable retirement benefits under the Maine State Retirement System, Me.Rev.Stat.Ann. tit. 5, Sec. 1121 (1979 & Supp.1985). Plaintiffs are assigned to guard, among others, female prisoners who, because of the seriousness of their crimes, have been officially sentenced to serve their time at MSP. Because the latter facility is operated solely for male inmates, however, females committed to MSP actually serve their sentences at MCC. ²

Plaintiffs brought the present action on April 8, 1981, claiming that the disparity between their retirement benefits and the retirement benefits received by the mostly male guards at MSP constituted unlawful sex discrimination in violation of Title VII, 42 U.S.C. Secs. 2000e et seq. (1982). ³ At a bench trial, defendants sought to justify the disparity on the ground that plaintiffs' retirement benefits are the same as those accorded all corrections officers, male as well as female, at MCC. Defendants also pointed out that the few female guards employed at MSP receive the same, superior retirement benefits provided for service at that facility. Accordingly, defendants argued, location, and not sex, explain the differential.

The district court rejected this justification. It found that the plaintiffs' duties in Dorm 4 at MCC required greater skill, and were more stressful, than the duties performed by other corrections officers at MCC. At the same time, it found that plaintiffs performed work substantially equal to that performed by the predominantly male guards at MSP. The district court concluded that the state had failed to prove, as an affirmative defense, that location rather than sex explained the disparity in retirement benefits, and entered judgment for plaintiffs on their Title VII claim. This appeal followed.

II.

Defendants argue that the district court did not have jurisdiction over the plaintiff class claims because, at the time the class was certified, none of the named plaintiffs was a member of the certified class, and no member of the class other than the named plaintiffs had secured a right to sue letter from the EEOC. See 42 U.S.C. Secs. 2000e-5(b), (e) & (f) (1982). We find no merit in this argument.

The parties' proposed class certification order, approved by the court on July 5, 1983, defined the plaintiff class as,

all female Corrections Officers I employed by defendants at the Maine Correctional Center, Windham, Maine, and assigned to guard female inmates sentenced to the Maine State Prison, from June 12, 1978, to the present, and all female Corrections Officers I who will in the future be assigned to guard female inmates sentenced to the Maine State Prison.

By the time the order was approved, Nancy Marcoux and Sandra Scarpelli had both been promoted to the position of Corrections Officer II, Marcoux on March 14, 1977 and Scarpelli on August 23, 1981, while Marsha Landers had resigned on March 29, 1980. But we read the class definition as including anyone who, on or after June 12, 1978, was employed as a female Corrections Officer I assigned to guard female inmates sentenced to MSP even if they were promoted, or resigned, prior to the date of the certification order. Both Scarpelli and Landers were, therefore, class members.

We add that even after they were no longer Corrections Officers I, Scarpelli and Landers maintained a concrete interest in the outcome of the dispute. Under the Maine State Retirement System, once an eligible employee engages in work covered under the preferential retirement system, the employee is credited with years of preferential service. See Me.Rev.Stat.Ann. tit. 5, Secs. 1001(7) & 1094 (1979 & Supp.1985). These credits vest with the employee and may be used to compute preferential retirement benefits "cumulatively in any combination of such prison employment." Me.Rev.Stat.Ann. tit. 5, Sec. 1121(4)(F) (Supp.1985). Thus, even resigned employees like Marsha Landers remain able to take advantage of credited years of preferential service at some future date, and were affected, as to the amounts involved, by this case.

Being class members with an ongoing stake in the case, Sandra Scarpelli and Marsha Landers were capable of adequately representing the class. See East Texas Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 403, 97 S.Ct. 1891, 1896, 52 L.Ed.2d 453 (1977). Plaintiffs concede that because Nancy Marcoux was promoted before June 12, 1978, she does not fall within the class definition. They argue, however, that she should be permitted to participate in the judgment because she was inadvertently omitted from the class, actively pursued her claim on behalf of the class, and participated at trial. Under Fed.R..Civ.P. 23(c)(1), a class certification order "may be conditional, and may be altered or amended before the decision on the merits." Plaintiffs did not move below to amend the class certification order to include Nancy Marcoux prior to judgment, and we do not believe it is within the province of this court to amend the class certification order on appeal. Our refusal to act is without prejudice to any right plaintiffs may still have to petition the district court for Marcoux's inclusion.

III.

Title VII makes it unlawful for an employer "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's ... sex...." 42 U.S.C. Sec. 2000e-2(a) (1982). However, in 42 U.S.C. Sec. 2000e-2(h) (1982), the so-called "Bennett Amendment" to Title VII, Congress provided that,

It shall not be an unlawful employment practice ... for any employer to differentiate upon the basis of sex in determining the amount of wages or compensation paid or to be paid to employees of such employer if such differentiation is authorized by the [Equal Pay Act] provisions of section 206(d) of Title 29. ⁴

In an action brought under the Equal Pay Act provisions of 29 U.S.C. Sec. 206(d) (1982), the plaintiff must show that she was employed in the same establishment as her male counterpart in order to state a claim. See, e.g., Foster v. Arcata Associates, Inc., 772 F.2d 1453, 1464-65 (9th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 1267, 89 L.Ed.2d 576 (1986). Defendants contend that as a result of the Bennett Amendment, the single establishment requirement of the Equal Pay Act has become a necessary element in equal pay claims brought under Title VII. They insist the single establishment requirement bars the present Title VII claims by female corrections officers since the latter serve at an institution different from the one whose higher benefits they seek to share.

We do not accept this argument. In County of Washington v. Gunther, 452 U.S. 161, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981), respondents, four women prison guards who were employed by the petitioner County to guard female prisoners, brought a Title VII action against the County alleging, inter alia, that they were paid lower wages than that received by male guards, and that part of the pay differential was attributable to intentional sex discrimination. Respondents argued that a Title VII plaintiff did not have to satisfy the "equal work" standard of the Equal Pay Act, in order to maintain an action for equal pay under Title VII.

The Supreme Court agreed. The Court held that "only differentials attributable to the four affirmative defenses of the Equal Pay Act are 'authorized' by that Act within the meaning of [the Bennett Amendment]," Gunther, 452 U.S. at 171, 101 S.Ct. at 2249, reasoning in part,

Under petitioners' reading of the Bennett Amendment, only those sex-based wage discrimination claims that satisfy the "equal work" standard of the Equal Pay Act could be brought under Title VII. In practical terms, this means that a woman who is discriminatorily underpaid could obtain no relief--no matter how egregious the discrimination might be--unless her employer also employed a man in an equal job in the same establishment, at a higher rate of pay. Thus, if an employer hired a woman for a unique position in the company and then admitted that her salary would have been higher had she been male, the woman would be unable to obtain legal redress under petitioners' interpretation. Similarly, if an employer used...