Peltier v. City of Fargo, s. 75-1597 and 75-1598

Decision Date30 March 1976
Docket NumberNos. 75-1597 and 75-1598,s. 75-1597 and 75-1598
Parties12 Fair Empl.Prac.Cas. 945, 22 Wage & Hour Cas. (BN 876, 11 Empl. Prac. Dec. P 10,800, 78 Lab.Cas. P 33,372 Diane PELTIER et al., Appellants-Cross-Appellees, v. CITY OF FARGO, a Municipal Corporation, et al., Appellees-Cross-Appellants.
CourtU.S. Court of Appeals — Eighth Circuit

Robert A. Feder, Fargo, N. D., on brief, for Diane Peltier and others.

Wayne O. Solberg, City Atty., Fargo, N. D., for City of Fargo and others; John V. Boulger, Fargo, N. D., on brief.

Before HEANEY, ROSS and WEBSTER, Circuit Judges.

HEANEY, Circuit Judge.

Diane Peltier, Connie Wolter and Sally Suby appeal from an adverse decision in their sex discrimination suit against the Police Department and City of Fargo, North Dakota, for alleged violations 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. The appellants assert error in the trial court's denial of their back pay claims under the Equal Pay Act or under Title VII, its denial of sufficient injunctive relief to eliminate the present effects of past and present sex discrimination in the Fargo Police Department under Title VII and its allegedly insufficient award of attorney's fees. The City of Fargo cross appeals and contends that the $2,500 attorney's fees awarded is excessive. We reverse and order back pay, with interest, under the Equal Pay Act and attorney's fees of $5,000.

Male patrol officers serve in numerous law enforcement capacities within the Fargo Police Department. Prior to 1973, several patrol officers were normally assigned to downtown parking control duties which required them primarily to check and ticket for parking and other non-moving violations. In the spring of 1973, the Police Department created a new classification on the City employment list entitled "car marker." This position was designed to provide necessary downtown parking control and to allow the transfer to other positions those officers normally assigned that duty. The three female appellants were hired to fill the car marker positions. Their basic wage rate was approximately one-half the rate of a beginning male patrol officer.

The appellants contend that they perform essentially the same duties as did the male patrol officers who performed downtown parking control duties prior to the creation of the "car marker" position. They contend that the present fifty percent discrepancy in salary is a violation of the Equal Pay Act. They also assert that the male patrol officers who performed car-marking duties were eligible for promotion and transfer as were any other male patrol officer, but that they are not. The appellants assert this restriction of promotion and transfer, coupled with the patrol officer selection process, including unvalidated tests and personal interviews, has resulted in sexual discrimination in violation of Title VII.

The District Court found that the appellants had failed to prove that the job performed by the female car markers was equal in skill, effort and responsibility to that of male patrol officers performing car-marking duties prior to the spring of 1973 and denied their back pay petition under the Equal Pay Act. 1 It further found that a prima facie case of sex discrimination, in violation of Title VII, had been established because no woman had ever been hired as a patrol officer and only three women were employed as police officers in the Fargo Police Department. The court recognized that the appellants were entitled to an equal opportunity to qualify and become patrol officers. However, the appellants admitted that they had never applied for a position as a patrol or police officer and the District Court determined that they had "failed to satisfactorily explain" this failure and denied their claim for back pay under Title VII.

The District Court additionally found that the City and the Police Department: (1) had failed to actively recruit women and minorities for police or patrol officer positions; (2) had advertised for these positions on a sex basis; and (3) had utilized an unvalidated employment test and a height and weight requirement to screen police and patrol officer candidates. The court found the appellees had not offered a satisfactory explanation for these practices which had resulted in discrimination. Therefore, the court, within its equitable power under § 706(g) of Title VII, 42 U.S.C. § 2000e-5(g), ordered the appellees to adopt an affirmative action plan and a validated test and to submit a report to the court for its review.

I. EQUAL PAY ACT.

The appellants contend that they have and are performing the same duties that the male car markers, classified as patrolmen for pay and promotional purposes, performed prior to June, 1973. They contend that their salary of approximately one-half that given to males is a violation of the Equal Pay Act of 1963, 29 U.S.C. § 206(d).

Section 206(d)(1) prohibits an employer from discriminating

between employees on the basis of sex by paying wages to employees * * * at a rate less than the rate at which he pays wages to employees of the opposite sex * * * 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 * * * (iv) a differential based on any other factor other than sex * * * .

The policy behind the Equal Pay Act was well expressed by the Third Circuit in Shultz v. Wheaton Glass Company, 421 F.2d 259, 265 (3rd Cir.), cert. denied, 398 U.S. 905, 90 S.Ct. 1696, 26 L.Ed.2d 64 (1970), and has been endorsed by this Circuit in Shultz v. American Can Company Dixie Products, 424 F.2d 356, 360 (8th Cir. 1970). The Third Circuit said:

Congress in prescribing "equal" work did not require that the jobs be identical, but only that they must be substantially equal. Any other interpretation would destroy the remedial purposes of the Act.

The Act was intended as a broad charter of women's rights in the economic field. It sought to overcome the age-old belief in women's inferiority and to eliminate the depressing effects on living standards of reduced wages for female workers and the economic and social consequences which flow from it. (Footnotes omitted.)

Shultz v. Wheaton Glass Company, supra, 421 F.2d at 265.

The consideration of equal pay standards is based on actual job requirements and performance, not on-job classifications or titles. Hodgson v. Miller Brewing Company, 457 F.2d 221, 227 (7th Cir. 1972); 29 C.F.R. § 800.121. The Equal Pay Act does not require that the jobs being compared be performed simultaneously but encompasses situations where an employee of one sex is hired for a particular job to replace an employee of the opposite sex. 29 C.F.R. § 800.114.

The trial court found initially that the male car markers possessed the skills and training of patrol officers while the appellants received training only as car markers. The court found that this additional training gave greater flexibility to the Police Department. The males were capable of performing duties the women were not, and the males could be shifted from the car-marking position to narcotics or other investigative positions. The court concluded that the jobs performed by the men and women car markers did not require equality of skill and were not equal.

The crucial question under the Equal Pay Act is not whether one sex possesses additional training or skills, but whether the nature of the duties actually performed require or utilize those additional skills. See 29 C.F.R. § 800.126. As stated in 29 C.F.R. § 800.125:

Possession of a skill not needed to meet requirements of the job cannot be considered in making a determination regarding equality of skill.

Further, to justify unequal wages on the basis of alleged flexibility requires inquiry into the frequency and manner in which that additional flexibility is utilized. See Shultz v. Wheaton Glass Company, supra, 421 F.2d at 263-264. We turn, therefore, to the actual duties performed by both the male and female car markers to ascertain whether the additional skills and the alleged flexibility justify the fifty percent discrepancy in wages.

The evidence indicates that the female car makers' principal duties were the daytime patrolling of the downtown Fargo business district marking cars for overtime parking and issuing tickets for parking and non-moving violations. 2 They performed these duties in police uniform, unarmed, while driving Cushman three-wheel scooters. They also performed other related duties, including impounding cars, directing traffic, working in parades, searching along the river bank for lost children and alleged suicide victims, stopping motorists who were violating traffic laws and issuing warnings, returning evidence to the rightful owners, escorting female prisoners and reporting to the dispatcher unusual behavior or possible law violations. Appellant Connie Wolter worked the 10:00 P.M. to 6:00 A.M. shift, patrolling and providing security in the downtown business district for six months in 1974.

The evidence discloses that the male car markers' principal duties were the same. They patrolled the downtown Fargo business district during daylight hours marking cars for overtime parking and issuing tickets for parking and other non-moving violations. The male car markers wore police uniforms, were armed and drove Harley-Davidson three-wheel motorcycles. They also performed the other related police duties subsequently performed by the appellants set forth above.

The District Court found that the following extra duties performed by the male car markers were not subsequently performed by the appellants: (1) providing downtown security; (2) answering calls and complaints relating to fights, fires, automobile accidents and crimes; (3) assisting...

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