Physicians Mut. Ins. Co. v. Duffy

Decision Date31 January 1974
Docket NumberNo. 39122,39122
Citation191 Neb. 233,214 N.W.2d 471
Parties, 7 Fair Empl.Prac.Cas. (BNA) 524, 7 Empl. Prac. Dec. P 9112 PHYSICIANS MUTUAL INSURANCE COMPANY, Appellee, Cross-Appellant, v. Jean L. DUFFY, Appellant, Cross-Appellee.
CourtNebraska Supreme Court

Syllabus by the Court

1. The exercise by a trial court of its discretion in ruling on admission or rejection of evidence will not be disturbed on appeal unless the trial court clearly or plainly abused its discretion.

2. To sustain a charge of discrimination where there is no charge of a universal discriminatory practice or system, complainant, in the record, must establish that the employer intentionally engaged in acts that discriminated against complainant in violation of the statutory prohibitions.

3. The burden of proof is on complainant to prove a discriminatory pay differential by reason of her sex.

4. Where evidence supporting the District Court findings of fact is substantial, the findings will not be disturbed on appeal.

Dana B. Badgerow, Kansas City, Mo., Steven G. Seglin, Lincoln, for appellant.

McGrath, North, Dwyer, O'Leary & Martin, P.C., Omaha, for appellee.

Heard before WHITE, C.J., BOSLAUGH and McCOWN, JJ., and TESAR and HAMILTON, District Judges.

HAMILTON, District Judge.

This is an appeal from a District Court determination denying relief on appellant's complaint of discrimination based upon sex, lodged against the Physicians Mutual Insurance Company. The complaint was originally filed with the Nebraska Equal Opportunity Commission pursuant to the provisions of the Nebraska Fair Employment Practice Act. Ss. 48--1101 to 48--1125, R.R.S.1943. The appellee has cross-appealed alleging jurisdictional defects in the factual sufficiency of the complaint and failure to timely file the complaint, both alleged defects having failed to comply with section 48--1118(1) and (2), R.R.S.1943.

On June 10, 1970, Jean Duffy filed a charge with the Nebraska Equal Opportunity Commission alleging sex discrimination practiced by Physicians Mutual Insurance Company.

A 4-day hearing was held before an Equal Opportunity Commission hearing examiner. The hearing examiner, among other things, found that 'discrimination has taken place not upon the deliberate intent of the respondent company.' The examiner thereupon recommended the Commission consider an award to Jean Duffy.

Both parties filed petitions for review with the Nebraska Equal Opportunity Commission, and after argument, the Commission accepted the hearing examiner's findings of discrimination, but modified the examiner's recommended award.

An appeal was taken by Physicians Mutual Insurance Company to the District Court for Douglas County, where the matter was tried on the record, pursuant to section 48--1120, R.R.S.1943; a decree was entered vacating the Equal Opportunity Commission's order, and entering judgment in favor of Physicians Mutual Insurance Company.

The evidence presented by Jean Duffy to the hearing examiner to support her claim of sex discrimination was principally that she had performed equal work for less pay than male employees. The evidence showed that Jean Duffy was classified as an Auditor I, under a claims audit department classification that distinguished its auditors as Auditor I and Auditor II. The stated reason for classifications by the Physicians Mutual Insurance Company was that those persons in Auditor II classification processed the more complex claims, and supervised and trained Auditor I personnel, who worked on the less complex claims, under an arrangement that teamed an Auditor I with an Auditor II. There existed a pay differential between classifications that varied, but approximated nearly $200 per month. During the course of employment Jean Duffy was assigned as an Auditor I to work with a male, classified as an Auditor II, under the team concept. It was under this arrangement that Jean Duffy allegedly performed identical work as her male counterpart for less salary.

The transcript before the District Court consisted of evidence from 24 witnesses and 61 exhibits. Without detailing all the evidence, the record generally shows that appellant prior to her assignment on a team aided other auditors, classified as Auditor II, when their work fell behind and when vacations or illness required her assistance. The record further shows that appellant performed 65 to 70 percent of the claim work assigned to her team, and that she ultimately took it upon herself, without company approval, to split the work of her team on a fifty-fifty basis. The record further indicates that a former Auditor II employer of Physicians Mutual, named Leota Kelley, testified by way of deposition, over objection, that the work performed by Miss Duffy and herself was identical.

The great share of the evidence of appellee was directed in response to the conclusions of equality drawn from the foregoing evidence. Appellee, by evidence, demonstrated that an Auditor II would have a lesser volume of work because complex claims required a greater amount of time to process, that an Auditor I, processing simple, routine, perfunctory claims would have a greater volume of work, since this type claim constituted the majority of claims received. The Auditor I would process some complex claims but only under the supervision and assistance of the Auditor II assigned to the team.

In contradiction to Miss Duffy's conclusion that she was doing equal work for less pay under the fifty-fifty division of work assigned to her team, the Senior Auditor for appellee's department, testified that 65 to 75 percent of all claims assigned to a team were simple or routine claims which were clerical in nature; and that the balance were considered as complex claims. He further testified that under the split arrangement, Miss Duffy handled a complex situation in a routine manner, which was improper, or took the problem to a Senior Auditor, rather than the Auditor II on the team, who was being paid to supervise and train Auditor I.

Appellant relies heavily on the testimony of Leota Kelley to substantiate her complaint. The District Court found that the testimony of Mrs. Kelley was so lacking in foundation and irrelevant as to entitle it to no weight whatsoever. The evidence disclosed that Mrs. Kelley had terminated her employment some 8 months prior to Miss Duffy's termination; that she was in a different section; didn't observe her work; did at no time work in close conjection with Miss Duffy; and that her familiarity with Miss Duffy's work was stated as 'Oh, I am sure through the years that I have seen her work.'

In referring to evidence before the Equal Opportunity Commission, section 48--1119, R.R.S.1943, provides: 'Such proceedings shall, so far as practicable, be conducted in accordance with the rules of evidence applicable in the...

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    ...or rejecting evidence will not be disturbed unless there is shown to be a clear abuse of discretion. Physicians Mut. Ins. Co. v. Duffy, 191 Neb. 233, 214 N.W.2d 471 (1974). Expert testimony should be stricken if it appears that the witness is not in possession of such facts as will enable h......
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