Peltier v. City of Fargo, Civ. No. A3-74-78.

• Court: United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
• Writing for the Court: BENSON
• Citation: 396 F. Supp. 710
• Decision Date: 25 June 1975
• Docket Number: Civ. No. A3-74-78.
• Parties: Dianne PELTIER et al., Plaintiffs, v. CITY OF FARGO, a Municipal Corporation, et al., Defendants.

396 F. Supp. 710

Dianne PELTIER et al., Plaintiffs,
v.
CITY OF FARGO, a Municipal Corporation, et al., Defendants.

Civ. No. A3-74-78.

United States District Court, D. North Dakota, Southeastern Division.

June 25, 1975.

396 F. Supp. 711

COPYRIGHT MATERIAL OMITTED

396 F. Supp. 712

COPYRIGHT MATERIAL OMITTED

396 F. Supp. 713

Robert A. Feder, Fargo, N. D., for plaintiffs

Wayne O. Solberg, City Atty., Solberg & Stewart, Fargo, N. D., for defendants.

MEMORANDUM OF DECISION AND ORDER

BENSON, Chief Judge.

Plaintiffs bring this action claiming unlawful sex discrimination in the employment practices of the Fargo Police Department, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Fair Labor Standards Act of 1938 as amended, 29 U.S.C. § 206(d) et seq. (hereinafter the Equal Pay Act), the Fourteenth Amendment to the United States Constitution, and 42 U.S.C. § 1983, and seek injunctive relief, compensatory damages, costs and attorney's fees.

Plaintiffs are female employees of the City of Fargo Police Department in the position of "car markers". Defendants, except for Oliver Thomas, are the City of Fargo, North Dakota, a municipal corporation, and named individual officers, employees and agents of the City. The word "Defendants" as used in this opinion will relate to the City of Fargo. The car marker classification was new to the City's employee list when created in the spring of 1973, and was established at the lowest pay range on the City pay scale, equal to that of Clerk-Typist I. According to the defendants, such a position was created to improve the efficiency of the Police Department by releasing fully trained and qualified patrol officers from devoting time to parking control duties. The City contacted the North Dakota State Employment Service regarding potential applicants for the position. Inquiry was made of the City whether women working under the "Win" (Women In Need) program would be acceptable candidates for this position. It was also explained to the City that hiring under the guidelines of the "WIN" program might entitle the City of Fargo to federal financial assistance. Having no objections, Personnel Director Kenneth L. Gaare, proceeded to interview and hire individuals referred by the North Dakota State Employment Service. Dianne Peltier began work on April 5, 1973, shortly after the program began. Connie Wolter began on August 9, 1973, and Sally Suby on December 10, 1973. All three women were hired at pay range 7.

At the time the position of car marker was created and became effective, the patrol officers who had previously been riding three wheeled motorcycles were no longer utilized for parking control duties. From that time, only employees with the job classification of "car marker" were assigned duties connected with parking control, which included utilization of enclosed three wheeled vehicles for marking cars. No males have or are serving in the position of "car marker". It is plaintiffs' contention that they perform the same duties as had been performed by males who marked cars prior to the creation of the "car marker" category. The males, during their carmarking duty, were classified as patrol officers, and possessed the qualifications of patrol officers, for which they received appropriate wages. At present, a patrolman makes approximately twice that of the scale 7 salary received by the plaintiffs. This the plaintiffs allege to be a violation of the Fair Labor Standards Act, 29 U.S.C. § 206(d) as amended.

In their position as patrol officers, the male car markers were eligible for promotion and transfer just as any other department personnel. By department standards, the plaintiffs did not qualify as patrol officers. They nonetheless contend they are entitled to "the same opportunities with respect to promotion and transfer without surrounding stumbling blocks and barriers which violate Title VII." The reference is to the patrol officer selection process which includes a test and personal interview by the City Civil Service office. Plaintiffs

396 F. Supp. 714

have never applied for the position of patrol officer. They respond to that omission by saying

"Defendants claim that a `reasonable effort' must be shown by Plaintiffs in order to sustain a charge of discrimination. Presumably, Defendants mean the Plaintiffs must apply in writing specifically for patrol officer. That simply is not the law. MacDonald, supra; U. S. v. Local 86, Iron Workers, 315 F.Supp. 1202 (D.W.Wash.1970); Herrera v. Yellow Freight Systems, Inc., 505 F.2d 66 (5th Cir. 1974); and Rodriguez v. East Texas Motor Freight, 505 F.2d 40 (5th Cir. 1974) and cases cited therein. Even if it were not the case, what would Defendants have Plaintiffs do? Go through the chicanery of applying for a job in person and `formally', and then be rejected by the Defendants who rely on their own non-validated tests, their totally subjective oral interviews and their prejudices?"

The car marker classification has, according to the plaintiffs, limited, segregated and classified female employees so as to deprive them of equal employment opportunities because of their sex, in violation of 42 U.S.C. § 2000e-2(a)(2).

Plaintiffs further allege that weight and height requirements of the police department violate the Fourteenth Amendment and 42 U.S.C. § 1983. They also object to the defendants utilizing as a precondition for employment, tests which have not been validated in accordance with Equal Employment Opportunity Commission regulations.

In addition, the plaintiffs have alleged the following as discriminatory employment practices.

A. The failure or refusal of the defendants to hire females as law enforcement officers on the same basis as males have been hired.

B. The failure or refusal of the defendants to take affirmative action to cure past as well as present employment discrimination policies.

C. The restriction of plaintiffs' duties ordered on July 30, 1974, by Police Chief Anderson. This is alleged to be a retaliation to the plaintiffs' action in this case, and thereby a violation of Section 704(a) of Title VII of the Civil Rights Act of 1964, as amended, and 42 U.S.C. § 2000e-3(a).

D. The disbursement of funds by the North Dakota Combined Law Enforcement Council to a law enforcement agency which is in violation of the funding agency's own regulations.

The plaintiffs brought the action pursuant to Rules 23(a) and (b) of the Federal Rules of Civil Procedure as a class action. In a memorandum and order issued March 19, 1975, this Court concluded the action was not properly maintainable as a class action, and limited the trial to the alleged grievances of the named plaintiffs.

JURISDICTION

Plaintiffs initially filed charges with the Equal Employment Opportunity Commission on July 1, 1974. The instant action was filed September 3, 1974, pursuant to 42 U.S.C. § 2000e-5(f)(1) after right to sue notices were issued to the plaintiffs on August 30, 1974. Defendants admit jurisdiction under 42 U.S.C. § 2000e et seq., as well as 29 U.S.C. § 201 et seq., as amended; however, specifically deny that this Court has jurisdiction under 28 U.S.C. § 1343(3), (4) and under 42 U.S.C. § 1983, as alleged by plaintiffs. It is not clear to the Court why it would not have jurisdiction under § 1983 or § 1343. It is apparent defendants' objection goes to the substance of the claims alleged under these sections, rather than the Court's power to accept jurisdiction, and shall be treated as such. The complaint is sufficient on its face to set out a claim under 42 U.S.C. § 1983, and thereby confers jurisdiction under 28 U.S.C. § 1343.

396 F. Supp. 715

EQUAL PAY

Standard

There are presently only three individuals classified as "car markers", and they are the three female plaintiffs. They represent the only persons ever to fill that category. Pertaining to the alleged Equal Pay Act violation, the plaintiffs do not demand they be made patrol officers. Their prayer for relief is confusing. In their Reply Brief, their claim is stated in this manner.

"To set the record straight, and hopefully the Defendants, Plaintiffs herewith state that they have never demanded that they be immediately made patrol officers. Plaintiffs have always maintained, and still maintain, that they have performed the same duties as male car markers, who happened to be classified as `patrolmen' for pay and promotion purposes, and Plaintiffs insist upon their right to receive the same compensation and be given the same opportunities with respect to promotion and transfer without surmounting stumbling blocks and barriers which violate Title VII. This case is about present female car markers and past male car markers. Females should not be treated differently than male car markers just because they are females."

The complaint reads:

"These discriminatory employment practices include but are not limited to:

A. Hiring females to do substantially the work performed by males for a salary of approximately one-half (½) that given to males."

It is plaintiffs' intention to compare the work performed by the three named plaintiffs to males who performed car marking duties prior to the creation of the "carmarker" category. Further the wage comparison is to be made between present individuals classified as patrol officers and these three plaintiffs. As the plaintiffs put it, the case is about present carmarkers and past male carmarkers. Comparison is to be made between the "skill, effort, and responsibility" required of the female carmarkers and that which was required of male officers who performed carmarking duties prior to the spring of 1973.

One of the first issues encountered is whether § 206(d) requires the jobs being compared be performed simultaneously. The answer is quite clear in 29 CFR 800.114C, that not only do they not have to be performed simultaneously, such a construction would be contrary to equal pay requirements.

"EQUALITY OF PAY

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