Odomes v. Nucare, Inc.

• Decision Date: 25 August 1981
• Docket Number: 79-1443,Nos. 79-1423,s. 79-1423
• Citation: 653 F.2d 246
• Court: U.S. Court of Appeals — Sixth Circuit
• Parties: 26 Fair Empl.Prac.Cas. 317, 24 Wage & Hour Cas. (BN 1464, 26 Empl. Prac. Dec. P 31,910, 92 Lab.Cas. P 34,056 Frankie ODOMES, Plaintiff-Appellee, Cross-Appellant, v. NUCARE, INC., Defendant-Appellant, Cross-Appellee.

Page 246

653 F.2d 246

26 Fair Empl.Prac.Cas. 317,

24 Wage & Hour Cas. (BN 1464,

26 Empl. Prac. Dec. P 31,910, 92 Lab.Cas. P 34,056

Frankie ODOMES, Plaintiff-Appellee, Cross-Appellant, v. NUCARE, INC., Defendant-Appellant, Cross-Appellee.

Nos. 79-1423, 79-1443.

United States Court of Appeals Sixth Circuit.

Submitted March 31, 1981.

Decided June 24, 1981.

Rehearing and Rehearing En Banc Denied August 25, 1981.

Thomas A. Stroud, Goff, Sims, Cloud, Stroud & Shepherd, Memphis, Tenn., for defendant-appellant, cross-appellee.

William D. Wilson, Jr., Memphis, Tenn., for plaintiff-appellee, cross-appellant.

Before LIVELY and KEITH, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

PHILLIPS, Senior Circuit Judge.

This employment discrimination action was filed by Mrs. Frankie Odomes, a black nurse's aide, against her employer, Nucare, Inc., operator of a Memphis, Tennessee, nursing home known as Whitehaven Care Center, Inc. Mrs. Odomes was discharged by the Whitehaven Care Center in 1976. She filed a charge of race and sex discrimination with the E.E.O.C. which found that there was reasonable cause to believe that she had been discriminated against and notified her of her right to sue. She subsequently commenced this action in the district court.

The district court found that Mrs. Odomes was not discharged because of her race or sex but, rather, was discharged due to a reduction in the number of nurse's aides required on the shift to which she was assigned. The district court also found that during her employment Nucare discriminated against Mrs. Odomes by paying her less for performing substantially the same work as more highly paid male orderlies, a violation of Title VII of the Civil Rights Act of 1964 ¹ and the Equal Pay Act of 1963. ² Judgment was rendered against Nucare for $1,963.55 in damages, $12.90 for expenses and $1,963.55 in attorney's fees. To compute damages the district court used the longer time period provided by 42 U.S.C. § 2000e-5(g). Both sides appeal.

As cross-appellant Mrs. Odomes contends that she was discriminated against in violation of 42 U.S.C. § 2000e-3. ³ She argues that, after her discharge, she was not called back to work in retaliation for having filed a charge with the E.E.O.C. The district court rejected this contention. For the reasons stated in Part IV of this opinion, we reverse the judgment of the district court as to this aspect of the case and remand for further proceedings. In all other respects we affirm the judgment.

I

The Whitehaven Care Center employed a staff of female nurse's aides and male orderlies. The district court found that the work of the nurse's aides and orderlies consisted primarily of patient care, and included bathing patients, distributing food trays, feeding, taking temperatures and changing clothes and bed linens. The orderlies bathed only the less numerous male patients and the nurse's aides bathed the more numerous female patients. Orderlies, when present and not caring for their assigned patients, were expected to perform other tasks such as unloading supplies and oxygen tanks, filling a milk dispenser, moving furniture and handling luggage. Nurse's aides performed these tasks when no orderly was available.

Mrs. Odomes was employed on the 3 p.m. to 11 p.m. shift. Three of the orderlies who also were employed on this shift testified on behalf of Mrs. Odomes. The only orderlies who testified as witnesses on behalf of Nucare were characterized by the district court as "management related." They were the sons of the President, Medical Director and Secretary-Treasurer of Nucare.

The management related orderlies were students while they worked for the nursing home. During the summer they worked a special 9 a.m. to 5 p.m. shift and during the school year they worked week-ends and the Christmas holidays on the 7 a.m. to 3 p.m. shift. The management related orderlies were paid more than the other orderlies. They testified that they spent two or three hours each day doing maintenance work such as cleaning air conditioning filters, yard work and carrying away trash. Otherwise, the duties of the management related orderlies resembled those of the other orderlies.

II

Nucare contends that the work of its nurse's aides and orderlies was not substantially equal within the meaning of the Equal Pay Act or Title VII. In the alternative, Nucare contends that one of the exemptions enunciated in the Equal Pay Act is applicable. We conclude that the findings of fact of the district court in support of its resolution of these issues were not clearly erroneous. Fed.R.Civ.P. 52(a).

In Corning Glass Works v. Brennan, 417 U.S. 188, 195, 94 S.Ct. 2223, 2228, 41 L.Ed.2d 1 (1974), the Supreme Court wrote:

Congress' purpose in enacting the Equal Pay Act was to remedy what was perceived to be a serious and endemic problem of employment discrimination in private industry the fact that the wage structure of "many segments of American industry has been based on an ancient but outmoded belief that a man, because of his role in society, should be paid more than a woman even though his duties are the same." S.Rep.No. 176, 88th Cong., 1st Sess., 1 (1963). The solution adopted was quite simple in principle: to require that "equal work will be rewarded by equal wages." Ibid.

In addition to depressing the wages of women, certain other social and economic consequences result from this kind of discrimination. See Shultz v. Wheaton Glass Company, 421 F.2d 259, 265, and n. 11 (3rd Cir.), cert. denied, 398 U.S. 905, 90 S.Ct. 1696, 26 L.Ed.2d 64 (1970).

The analysis of a claim of unequal pay for equal work is essentially the same under both the Equal Pay Act and Title VII. Strecker v. Grand Forks Cty. Soc. Serv. Bd., 640 F.2d 96, 99 (8th Cir. 1980). But see Gunther v. County of Washington, 623 F.2d 1303, 1309 (9th Cir. 1979), aff'd --- U.S. ----, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981). The standard of review applicable to such a claim of unequal pay for equal work is the clearly erroneous rule of Fed.R.Civ.P., 52(a). Brennan v. Owensboro-Daviess Cty. Hosp., etc., 523 F.2d 1013, 1015 (6th Cir. 1975), cert. denied, 425 U.S. 973, 96 S.Ct. 2170, 48 L.Ed.2d 796 (1976).

To establish a claim of unequal pay for equal work a plaintiff has the burden to prove that the employer "pays different wages to employees of opposite sexes 'for equal work on jobs the performance of which require equal skill, effort and responsibility, and which are performed under similar working conditions.' " Corning Glass Works v. Brennan, supra, 417 U.S. at 195, 94 S.Ct. at 2228. Congress did not intend through use of the phrase "equal work" to require that the jobs be identical. Shultz v. Wheaton Glass Company, supra, 421 F.2d at 265. Instead, to effectuate the remedial purposes of the Equal Pay Act, only substantial equality of skill, effort, responsibility and working conditions is required. Id. at 265. Whether the work of nurse's aides and orderlies is substantially equal must be determined on a case-by-case basis, Brennan v. South Davis Community Hospital, 538 F.2d 859, 861 (10th Cir. 1976). This issue must be resolved by an overall comparison of the work, not its individual segments. Gunther v. County of Washington, supra, 623 F.2d at 1309.

Nucare contends that the primary and only duty of the nurse's aides was patient care, although it is conceded that patient care also was the primary duty of the orderlies. Nucare argues that patient care was not the only duty of orderlies. Nucare asserts that orderlies performed "heavy lifting chores" and that at least one orderly provided security to an otherwise all female night shift.

In Usery v. Columbia University, 568 F.2d 953, 960 (2nd Cir. 1977), the Second Circuit observed that in cases in which the central fact is the sharing of common responsibilities by male and female workers:

The most frequently litigated question is whether additional lifting, fetching, hauling or other tasks performed by men require an amount of additional effort sufficient to foreclose a holding of substantial equality under the Act. For the most part the cases have concluded that the additional duties are either too insubstantial in amount or too inconsistently assigned to measure up to the Act's standard of substantial equality.

The uncontradicted testimony of the orderlies who testified for Mrs. Odomes was that they did little or nothing that the nurse's aides did not do. ⁴

Nucare states in its brief that the duty of providing security to the otherwise all female night shift, "involved simply ... (the orderly's) presence together with periodically checking the premises."

Referring to the heavy lifting chores, Nucare states in its brief "this is not to say that in combinations of two, three or more nurse's aides are not able to do lifting; it is just to say that orderlies, when present, are expected to do the lifting or help a nurse's aide when she requests aid in lifting." Orderly Pavett testified that when he made periodic checks of the premises, he did so with one or more nurse's aides.

The facts of the present case are strikingly similar to those of Brennan v. Owensboro-Daviess Cty. Hosp., etc., supra, 523 F.2d 1013, in which Circuit Judge Wade H. McCree, Jr. writing for this court, observed:

The evidence, however, indicates that, as a rule, aides and orderlies helped each other to lift heavy patients. Dorothy Crump, an aide, testified that although an orderly usually assisted a patient in getting on his crutches and helped to weigh heavy patients, she would sometimes summon an aide and sometimes an orderly to assist her in lifting a heavy patient. Elizabeth Wilhite, an aide, testified that she needed help almost daily in lifting heavy patients and that she would call either an orderly or an aide to assist her. Josephine Hatfield, an aide, testified that orderlies usually helped her to lift heavy patients but that if an orderly were not available, she would obtain...