Marshall v. Georgia Southwestern College

• Decision Date: 14 May 1980
• Docket Number: Civ. A. No. 78-4-AMER.
• Citation: 489 F. Supp. 1322
• Parties: Ray MARSHALL, Secretary of Labor, United States Department of Labor, Plaintiff, v. GEORGIA SOUTHWESTERN COLLEGE, Scott Candler, Jr., Rufus R. Coody, Erwin A. Friedman, Charles A. Harris, Jesse Hill, Jr., Torbitt O. Ivey, Jr., Milton Jones, James D. Maddox, Eldridge W. McMillan, Charles T. Oxford, Lamar R. Plunkett, John H. Robinson, III, P. Bobby Smith, David Tisinger, Carey Williams, as Members, Board of Regents of the University System of Georgia, and the State of Georgia, Defendants.
• Court: U.S. District Court — Middle District of Georgia

489 F. Supp. 1322

Ray MARSHALL, Secretary of Labor, United States Department of Labor, Plaintiff, v. GEORGIA SOUTHWESTERN COLLEGE, Scott Candler, Jr., Rufus R. Coody, Erwin A. Friedman, Charles A. Harris, Jesse Hill, Jr., Torbitt O. Ivey, Jr., Milton Jones, James D. Maddox, Eldridge W. McMillan, Charles T. Oxford, Lamar R. Plunkett, John H. Robinson, III, P. Bobby Smith, David Tisinger, Carey Williams, as Members, Board of Regents of the University System of Georgia, and the State of Georgia, Defendants.

Civ. A. No. 78-4-AMER.

United States District Court, M. D. Georgia, Americus Division.

May 14, 1980.

Carin Ann Clauss, Sol. of Labor, Washington, D. C., Bobbye D. Spears, Regional Sol., George D. Palmer, Associate Regional Sol., Murray A. Battles, Debra H. Green, U. S. Dept. of Labor, Birmingham, Ala., for plaintiff.

Arthur K. Bolton, Atty. Gen., George P. Shingler, Asst. Atty. Gen., Atlanta, Ga., for defendants.

OWENS, Chief Judge:

The Secretary of Labor under the provision of the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. (hereinafter Act or Equal Pay Act), alleges that defendant Georgia Southwestern College (hereinafter College), and defendant Board of Regents of the University System of Georgia (hereinafter Regents) have failed to comply with Section 6(d) of the Act, to wit:

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: Provided, That an employer who is paying a wage rate differential in violation of this subsection shall not, in order to comply with the provisions of this subsection, reduce the wage rate of any employee. (Title 29 § 206(d)(1)); (emphasis added);

by paying female faculty members less than male faculty members for "equal work on jobs the performance of which requires equal skill, effort and responsibility . .," and asks for permanent injunctive relief, back wages for three years prior to the institution of this action on February 16, 1978, and costs of the action. Defendants have denied any violation of the Equal Pay Act and have contended that the positions occupied by certain male faculty members compared by plaintiff with the female faculty members on whose behalf plaintiff is asserting claims for back wages are not equal and require greater skill, effort and responsibility than the positions occupied by those female faculty members; defendants further contend that any disparities that may be found are based on factors other than sex, including a merit system for evaluating the performance of faculty members. After a five day trial, the court now makes the following findings of fact and conclusions of law, in accordance with Rule 52, Federal Rules of Civil Procedure.

Defendant Georgia Southwestern College is a four-year state college located at Americus, Georgia. It is one of thirty-two state institutions¹ of higher learning located throughout the state. Defendant Board of Regents of the University System of Georgia is constitutionally² empowered to govern, control and manage each of Georgia's institutions of higher learning. The named individual defendants are the current members of the Board of Regents.

The defendant Board of Regents and its defendant institution on June 23, 1972, became subject to the Equal Pay Act, 29 U.S.C. § 206(d)(1).³

After the defendants became subject to the Equal Pay Act, the Department of Labor in 1972 found equal pay violations among custodial workers employed at Georgia Southwestern College, and the Regents and the defendant College agreed to pay the back wages alleged to be due.

In 1974-75 an investigation of professional, executive and administrative employees was begun and in 1975-76 that investigation focused on the Business Administration Division. From that investigation this lawsuit resulted.

The Board of Regents has divided its thirty-two institutions into three groups or classes—Class I includes the Georgia Institute of Technology, Georgia State University, the University of Georgia, and Medical College of Georgia; Class II includes Georgia SOuthwestern College and the eleven other four-year colleges; and Class III includes the sixteen junior colleges.

All academic and administrative personnel of the various institutions are employed, compensated and subject to discipline and dismissal by the Board of Regents, Ga.Code Ann. §§ 32-115-116, 121. While each employed person teaches or works at a particular institution, the Board of Regents, rather than the particular institution, is the "employer", and its institutions collectively are an "enterprise" as those terms are defined by the Act, 29 U.S.C. § 203(d).

The legislature of Georgia annually appropriates money to the Board of Regents to operate all institutions, and the Regents then allocate those funds among its institutions. In making allocations the Regents establish an average faculty salary each year,⁴ multiply that amount by the number of faculty member slots at the institution and allocate the resulting total to the institution. The institution then divides its total among its faculty members subject only to any Regents required across the board percentage increases. The evidence shows that department heads and senior professors receive more than the average faculty salary and that as a necessary result junior faculty members receive less than the average faculty salary.

Neither the Board of Regents nor this institution has any type of merit system for classifying teaching positions and determining entering salaries or periodic increases in salaries for its faculty members. By merit system the court means something similar to the State of Georgia's merit system and to the United States Civil Service System of establishing salary grades plus step increases within grades; determining duties and qualifications for every teaching position; assigning every position a beginning salary grade; and providing for step and grade increases to be awarded as the result of time in grade, superior performance or increased qualifications.

Georgia Southwestern College as of August 29, 1978, was divided into the following academic divisions:⁵ Business Administration, Education, English and Humanities, Nursing, Physical Education, Biological Sciences, Mathematics, Physical Sciences, Social Science, Psychology, Special Studies, Continuing Education, and Library.

With the exception of three academic division chairmen, the registrars, librarian, Dean of Women, and three counselors, all administrative personnel positions at this college are held by men. Not only are female division chairman on an average paid less than men as shown in footnote 5—but two female chairmen—Nursing and Special Studies—are specifically paid less than their male counterparts.

Approximately 125 members of the faculty are engaged in teaching. The teaching staff is ranked as follows: (1) instructors; (2) assistant professors; (3) associate professors; and (4) professors; both males and females are hired and/or promoted into each of these teaching ranks. While the court heard testimony suggesting that academic rank is unrelated to salary, the defendant college's own Divisional Personnel Services Analysis (Defendant's Exh. 34) and information prepared by the college for the American Association of University Professors show clearly that the higher ranking positions are the higher paid slots. These reports also show that even in lower ranking positions, men generally receive higher salaries than women and that males are concentrated in the higher ranking positions.

As seems to be the situation with the Regents and all of its institutions, the hiring of new faculty members begins with the chairman of the division in which there is a vacancy, recruiting in whatever manner he deems best. The Regents do not have a central personnel office to which persons desiring employment at its institutions may apply and from which its institutions may then secure the names of interested persons. Further the Regents have no procedure for faculty members already employed at one of its institutions to indicate an interest in transferring into a vacancy at another of its institutions. Vacancies are not posted or advertised in a uniform manner. New faculty members are located through personal contacts, professional societies, ads in professional journals, applications received at the institution and myriad other ways. While the Board of Regents is the employer and is responsible for hiring, compensating, and firing and while the Regents have adopted policies suggesting that the Presidents of each institution should not make a commitment to a new teacher without having communicated with the Chancellor as the chief operating officer of the system, the evidence shows that personnel decisions of Georgia Southwestern College are routinely approved by the Chancellor and the Chancellor's concurrence is therefore just a "rubber stamp" of the institution's decision. There being no set salary scales for faculty members, the salary for each new member is as agreed upon between the institution and the new member. The maximum amount the institution can pay is of course determined by what the institution after receiving its average faculty salary has budgeted for the particular faculty slot that is vacant. The amount the new faculty member actually receives is a matter...