Orahood v. Board of Trustees of University of Ark.

• Decision Date: 10 April 1981
• Docket Number: No. 80-1387,80-1387
• Citation: 645 F.2d 651
• Parties: 25 Fair Empl.Prac.Cas. 1739, 24 Wage & Hour Cas. (BN 1425, 25 Empl. Prac. Dec. P 31,715, 91 Lab.Cas. P 34,016 Mary Alyce ORAHOOD, Appellant, v. The BOARD OF TRUSTEES OF the UNIVERSITY OF ARKANSAS and Robert Ross, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 651

645 F.2d 651

25 Fair Empl.Prac.Cas. 1739,

24 Wage & Hour Cas. (BN 1425,

25 Empl. Prac. Dec. P 31,715, 91 Lab.Cas. P 34,016

Mary Alyce ORAHOOD, Appellant, v. The BOARD OF TRUSTEES OF the UNIVERSITY OF ARKANSAS and Robert Ross, Appellees.

No. 80-1387.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 16, 1981.

Decided April 10, 1981.

William H. Trice, III, Howell & Price, P.A., Little Rock, Ark., for appellant.

Ray Trammell, Gen. Counsel, University of Arkansas, Fayetteville, Ark., Nelwyn Davis, Asst. Atty. Gen., Little Rock, Ark., for appellees.

Before BRIGHT, STEPHENSON and McMILLIAN, Circuit Judges.

STEPHENSON, Circuit Judge.

Plaintiff-appellant Mary Alyce Orahood brought suit in district court ¹ alleging defendants-appellees discriminated against her on the basis of sex in violation of the Equal Pay Act of 1963, 29 U.S.C. § 206(d)(1) and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Orahood raised essentially three claims at trial that defendants violated the Equal Pay Act and that they committed two acts of discriminatory treatment in violation of Title VII. The district court found, with regard to the Equal Pay Act claim and one claim under Title VII, that Orahood had failed to make a prima facie case, and, that even if she had, defendants had rebutted it by showing that their actions were based on reasons other than her sex. With regard to her third allegation, the district court held that although she established a prima facie case which had not been rebutted, the EEOC charge was not filed within 180 days of the violation and therefore the court was without jurisdiction. We affirm.

I. FACTS

Orahood was initially employed as a secretary by Little Rock University in 1963. In 1970, the institution joined the state university system and became the University of Arkansas at Little Rock (UALR). Orahood's position became that of Assistant to the Registrar. In 1973, she began work in the Office of Institutional Studies at UALR, with a job title of Research Associate. In 1977, her job title became the present one, that of Research Project Analyst.

Twice during her employment with the Office of Institutional Studies the top position in the Office, that of Director, became vacant. This occurred from November 1973 through August 1974, and from November 1977 through April 1978. At both times Orahood was the highest ranking employee in the Office. During these periods the university official with direct supervisory duties over the Office of Institutional Studies was Mr. Neyland Hester, Director of Administrative Services. Mr. Hester indicated that during these periods Orahood was the acting director of the Office of Institutional Studies, although never formally classified as such. It was common to have "working titles" at UALR which differed from the official titles, and Mr. Hester testified that in 1977 he had approved the use of the working title of "Assistant Director of Institutional Studies" for Orahood, at a time when she was the "number two" person in the Office.

In March 1978, Orahood requested a change in the status of her job position and an increase in salary. A job status "reclassification" was necessary for a salary increase because Orahood was earning the maximum salary for someone with her job title. The titles suggested for Orahood were those of "Assistant Director," "Associate Director," or "Research Coordinator." ² In May 1978, Dr. G. L. Mears, who had just begun as the new Director of Institutional Studies, recommended a change in job status and increase in salary to $17,500. Mr. Hester, as Dr. Mears' superior, concurred in this view in a letter to Chancellor Robert Ross, a defendant herein. Chancellor Ross did not approve in a change of status at that time.

In June 1978, Mr. Leslie Carruth, an investigator from the Wage and Hour Division of the United States Department of Labor, began an on-campus investigation of UALR. Carruth met personally with several employees of UALR, including Orahood, as well as with several UALR officials. In November 1978, he notified UALR that the cases of plaintiff and a female physical education instructor were situations where a female employee was paid less than a male employee for equal work. The physical education instructor received a pay increase but Orahood's salary remained unchanged.

In July 1978, Orahood filed a grievance with the Faculty-Staff Appeals Committee. In November 1978, the Committee recommended that Orahood's salary be increased $4,500 a year and that she be given a new job title to properly reflect her status as the number two person in the department. The Committee also recommended that she be given back pay for the period from November 1977 to April 1978, when she served as acting director of the Office of Institutional Studies.

After reviewing the recommendations of the Faculty-Staff Appeals Committee, Chancellor Ross requested that the Arkansas Department of Higher Education conduct a "job audit" of Orahood's employment position. This state agency's response was that the position was properly classified. There was no reclassification of Orahood's position. This lawsuit followed.

II. EQUAL PAY CLAIM

Orahood brings a claim of unequal pay for equal work under both Title VII and the Equal Pay Act. In examining a sex discrimination case involving unequal compensation, Title VII and the Equal Pay Act must be construed in harmony. Strecker v. Grand Forks County Social Service Board, 640 F.2d 96 at 99-100 (8th Cir. 1980), adopted en banc, (8th Cir. March 10, 1981); Di Salvo v. Chamber of Commerce of Greater Kansas City, 568 F.2d 593, 596 (8th Cir. 1978). See Gunther v. County of Washington, 623 F.2d 1303, 1311, 1313, 1321 (9th Cir. 1979), cert. granted, --- U.S. ----, 101 S.Ct. 1343, 67 L.Ed.2d 330 (1980). ³

"For purposes of (this claim), 'equal' means 'substantially equal'; male and female jobs may be compared even if they are not identical." Horner v. Mary Institute, 613 F.2d 706, 713 (8th Cir. 1980). The inquiry is therefore whether the performance of the jobs requires substantially equal skill, effort and responsibility under similar working conditions. 29 U.S.C. § 206(d)(1). We look to the actual job requirements and performance, not on-job classifications or titles. Horner v. Mary Institute, supra, 613 F.2d at 714.

In support of her equal pay claim, Orahood compares her wages and job to that of a male employee, Ed Kremers, whose job title is Assistant Controller in the Controller's Office at UALR. There is no dispute that Kremers and Orahood have received substantially different salaries over the relevant period. During 1979-80, Kremers was classified at a Grade 20 with a salary of $20,462, while Orahood was classified at a Grade 18 with a salary of $14,404.

The district court examined the jobs in detail and found that they did not require substantially equal skill, effort, and responsibility. We must uphold this finding unless it is clearly erroneous. Fed.R.Civ.P. 52. See Horner v. Mary Institute, supra, 613 F.2d at 713.

The district court first observed the similarities between the positions of Orahood and Kremers:

(1) both the Office of Institutional Studies and the Controller's Office are administrative, rather than academic, offices of UALR: (2) both the plaintiff and Kremers hold the number two positions in their departments; (3) both employees coordinate, supervise and review the work of lower level employees; (4) both assist in the development of policies and procedures in the departments; (5) both coordinate department needs with computer systems; (6) both are responsible for preparing reports; and (7) both deal with other university and governmental agencies in behalf of their departments.

Orahood v. Board of Trustees, No. LR C 78 457, slip op. at 5 (E.D.Ark. April 16, 1980).

The district court then examined the content of the jobs and found that they could not be equated. It found the Controller's Office to be much larger than the Office of Institutional Studies, and that Kremers had many more employees to supervise than did Orahood. The district court determined Kremers' position required knowledge and work in financial and accounting matters, while Orahood's position dealt with statistics and supplying these materials to university and government agencies as requested. It noted that Kremers' position required a bachelor's degree in accounting or a related field and four years experience, while Orahood's position required a baccalaureate degree in statistics or a related field and two years experience. Kremers had been given the authority to hire and fire, while Orahood had only input into these decisions.

The district court had before it substantial evidence indicating that the jobs were not substantially equivalent. It also had before it substantial conflicting evidence that the jobs were substantially equal, given by Mr. Carruth from the Wage and Hour Division, and given by another expert, Dr. Charles Kenney, who was a psychologist with a consultant firm. Support for this position also came from the testimony of Orahood and Kremers. The district court weighed the evidence and discredited much of the underlying bases for the testimony of plaintiff's experts. It found the differences in the jobs to be more than inconsequential. Weighing of the evidence and making credibility judgments is for the district court. We cannot say that its findings in this regard are clearly erroneous. ⁴

III. DISPARATE TREATMENT CLAIMS

Orahood has alleged under Title VII other acts of sex discrimination in her compensation. Title VII may properly be invoked in situations of discrimination involving inadequate compensation where the plaintiff's work is comparable (but not substantially equal) work or where the position held by the plaintiff is unique. See Gunther v. County of Washington, supra, 623 F.2d at 1311, 1313, 1321. ⁵

Orahood raises essentially two claims of disparate...