Marshall v. A & M Consolidated Independent School Dist.

• Decision Date: 26 October 1979
• Docket Number: No. 77-2495,77-2495
• Parties: 21 Fair Empl.Prac.Cas. 139, 24 Wage & Hour Cas. (BN 351, 21 Empl. Prac. Dec. P 30,335, 87 Lab.Cas. P 33,864 F. Ray MARSHALL, Secretary of Labor, United States Department of Labor (Equal Employment Opportunity Commission substituted in the place and stead of F. Ray Marshall, Secretary, etc.), Plaintiff-Appellee, v. A & M CONSOLIDATED INDEPENDENT SCHOOL DISTRICT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 186

605 F.2d 186

21 Fair Empl.Prac.Cas. 139,

24 Wage & Hour Cas. (BN 351,

21 Empl. Prac. Dec. P 30,335, 87 Lab.Cas. P 33,864

F. Ray MARSHALL, Secretary of Labor, United States Department of Labor (Equal Employment Opportunity Commission substituted in the place and stead of F. Ray Marshall Secretary, etc.), Plaintiff-Appellee, v. A & M CONSOLIDATED INDEPENDENT SCHOOL DISTRICT, Defendant-Appellant.

No. 77-2495.

United States Court of Appeals Fifth Circuit.

Oct. 26, 1979.

H. Jack Woods, College Station, Tex., for defendant-appellant.

Thomas J. Allen, Atty., Beatrice Rosenberg, E.E.O.C., Washington, D. C., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before WISDOM, CLARK and GEE, Circuit Judges.

WISDOM, Circuit Judge:

This is a sex discrimination case. The primary issue is the constitutional applicability of the equal pay provisions of the Fair Labor Standards Act, 29 U.S.C. § 206(d) to a Texas public school district. The district court concluded that the Act was applicable and enjoined the defendant, A & M Consolidated Independent School District, from committing future violations of the Act and from withholding back wages due female employees. The defendant appeals from this judgment, arguing that the suit violates the Tenth and Eleventh Amendments and is barred by the Statute of Limitations. ¹

The school district operates a high school, a middle school, two elementary schools, and a kindergarten in College Station, Texas. The parties agree that the schools were operated uniformly under common controls for a common business purpose and that the defendant is an enterprise engaged in commerce or in the production of goods for commerce within the meaning of the Fair Labor Standards Act.

For some years, extending back at least to the late 1960's, the school district paid male teachers $300 a year more than female teachers. On June 23, 1972, Congress enacted the Education Amendments of 1972, 86 Stat. 235, removing the "executive, administrative, or professional" employee exemption from the Act. The defendant did not comply with this prohibition against sex discrimination until June 1973. The Secretary of Labor filed suit against the district on November 14, 1974, asking for an injunction against future violations of the Act and for an injunction against the withholding of back pay owed to female employees after removal of the professional employee exemption. Later the Equal Employment Opportunity Commission (EEOC) was substituted as plaintiff.

At the trial supervisory personnel of the school district termed the extra $300 a "head of household" allowance and testified that it was paid for "extra duties". Evidence established, however, that the school district's Board of Supervisors made no inquiry into whether any female teachers were heads of household and that several in fact were the principal breadwinners for their families. The district court found "any distinction between the male and female teachers as to duties, skill, effort, or responsibility to be illusory". Although a former principal stated that the extra money was justified by male teachers' availability for crowd control, ticket selling, and other duties, the district court found that all teachers handled supervision, discipline, and crowd control. Male teachers stood at the gates during football games and female teachers were required to sit in the bleachers. Males patrolled the school grounds during the lunch hour while females supervised the hallways. Female teachers rode student buses to out-of-town school functions. The trial judge concluded that "(a)lthough one teacher may have performed a task that was different from that assigned to another teacher, these duties were not substantially different and involved equal skill, effort, and responsibility".

The court also found that male teachers received the extra $300 whether or not they performed extra duties and that several men had merely fulfilled their teaching responsibilities. The defendants contended that male teachers had more extra duties to perform because there were fewer men, but the trial court noted that this problem resulted solely from the defendant's decision to have men perform duties that women could do and that several women teachers spent as many hours undertaking extra work as the men.

The court concluded that the defendant had willfully violated the Act. It issued a permanent injunction against future violations, enjoined the defendant from withholding $35,674 in back wages owed to female teachers, and ordered payment of 6 percent a year interest on this amount from August 31, 1973.

I

The defendant contends that the Supreme Court's decision in Usery prevents application of the Equal Pay Act to the states. National League of Cities v. Usery, 1976, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245. In that decision the Supreme Court held that the minimum wage provisions of the Fair Labor Standards Act were inapplicable to the states because the provisions would "operate to directly displace the States' freedom to structure integral operations in areas of traditional governmental functions". Id. at 852, 96 S.Ct. at 2474. Prescribing minimum wages and maximum hours "would impair the States' 'ability to function effectively in a federal system.' " Id.

This Court has held that the Equal Pay Act is severable from the Fair Labor Standards Act and that it does not violate constitutional principles set forth in Usery. Pearce v. Wichita County, 5 Cir. 1979, 590 F.2d 128, 131-32. There we noted that the Equal Pay Act merely requires that both sexes receive equal compensation for equal work, "leav(ing) the states free to set all substantive terms of employment." Id. at 132. The right to pay women lower wages than men for equal work "is not among the 'functions essential to (the) separate and independent existence' of the states." Id. Consequently, the Equal Pay Act does not violate the Tenth Amendment.

II

The Eleventh Amendment does not apply to suits brought by the United States. Employees v. Department of Public Health & Welfare of Missouri, 1973,411 U.S. 279, 286, 93 S.Ct. 1614, 1619, 36 L.Ed.2d 251, 257; United States v. Mississippi, 1965, 380 U.S. 128, 140-41, 85 S.Ct. 808, 814-15, 13 L.Ed.2d 717, 725. A suit brought by the Secretary of Labor under the Fair Labor Standards Act is treated as a suit brought by the United States. Dunlop v. New Jersey, 3 Cir. 1975, 522 F.2d 504, 516, Vacated and remanded on other grounds, 1976, 427 U.S. 909, 96 S.Ct. 3196, 49 L.Ed.2d 1202; Brennan v. Iowa, 8 Cir. 1974, 494 F.2d 100, 103, Cert. denied, 1975, 421 U.S. 1015, 95 S.Ct. 2422, 44 L.Ed.2d 683; Mitchell v. Robert De Mario Jewelry, Inc., 5 Cir. 1958, 260 F.2d 929, 932, Rev'd on other grounds, 1960, 361 U.S. 288, 80 S.Ct. 332, 4 L.Ed.2d 323. Nevertheless, the defendant argues that the injunction against withholding back wages violates the Eleventh Amendment because the money paid ultimately will go to private citizens.

This Circuit has held that a suit by the federal government can be in the public interest even if the money sued for passes to private individuals. Wirtz v. Jones, 5 Cir. 1965, 340 F.2d 901. Wirtz involved the propriety of an injunction under the Fair Labor Standards Act compelling an employer to pay his employees wrongfully withheld minimum wages and overtime compensation. The injunction was proper because its purpose was:

not to collect a debt owed by an employer to his employee but to correct a continuing offense against the public interest. It is true that as a result, money may pass from the employer into the pocket of the employee or, if he is not available, then into the coffers of the United States Treasury, but that enforced payment, which must be made even if the employee or his representatives or heirs no longer exist to claim it, is simply a part of a reasonable and effective means which Congress, after trial and error, found it necessary to adopt to bring about general compliance with § 15(a)(2).

Id. at 904-05; Accord, Shultz v. Mack Farland & Sons Roofing Co., 5 Cir. 1969, 413 F.2d 1296, 1302. The opinion quoted Senator John F. Kennedy's statement in the legislative history that the enforcement provision "will serve as a source of protection to employers who pay a decent wage and who must compete with employers who pay a substandard wage". Id. at 905, quoting S.Rep.No.145, 87th Cong., 1st Sess. (1961), Reprinted in (1961) U.S.Code Cong. & Admin.News, pp. 1620, 1621. The Court concluded that "(t)he effectiveness of this protection is a matter of cardinal importance to the vitality of the Fair Labor Standards Act and the fulfillment of its purposes". Id.

A Ninth Circuit opinion discussed a second statutory purpose: "(R)estraint (from withholding back minimum wages and overtime compensation) was meant to increase the effectiveness of the enforcement of the Act by depriving a violator of any gains accruing to him through his violation". Wirtz v. Malthor, Inc., 9 Cir. 1968, 391 F.2d 1, 3; Accord, Shultz v. Mack Farland & Sons Roofing Co., 5 Cir. 1969, 413 F.2d 1296, 1302. Both purposes are mentioned in the Senate Report on the 1961 amendment giving the Secretary authority to sue for back compensation. See S.Rep.No.145, 87th Cong., 1st Sess. (1961), Reprinted in (1961) U.S.Code Cong. & Admin.News, 1620, 1658-59.

Subsequent cases have applied this reasoning to uphold suits against state governments for unpaid compensation. See, e. g., Dunlop v. New Jersey, 3 Cir. 1975, 522 F.2d 504, 513-17 & 519-20 (Adams, J., concurring), Vacated and remanded, 1976, 427 U.S. 909, 96 S.Ct. 3196, 49 L.Ed.2d 1202; ² Brennan v. Iowa, 8 Cir. 1973, 494 F.2d 100, 103-04, Cert. denied, 1975, 421 U.S. 1015, 95 S.Ct. 2422, 44 L.Ed.2d 683. Moreover, the Public Employees case has recognized such authority:

Section 16(c) (of the FLSA) gives the Secretary of Labor authority to bring suit for unpaid minimum wages or unpaid...