Pittman v. Hattiesburg Mun. Separate School Dist.

• Citation: 644 F.2d 1071
• Decision Date: 13 May 1981
• Docket Number: No. 79-2662,79-2662
• Parties: 25 Fair Empl.Prac.Cas. 1349, 26 Empl. Prac. Dec. P 31,836 Andrew L. PITTMAN, Jr., Plaintiff-Appellant, v. HATTIESBURG MUNICIPAL SEPARATE SCHOOL DISTRICT, Defendant-Appellee. . Unit A
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1071

644 F.2d 1071

25 Fair Empl.Prac.Cas. 1349,

26 Empl. Prac. Dec. P 31,836

Andrew L. PITTMAN, Jr., Plaintiff-Appellant, v. HATTIESBURG MUNICIPAL SEPARATE SCHOOL DISTRICT, Defendant-Appellee.

No. 79-2662.

United States Court of Appeals, Fifth Circuit.

Unit A

May 13, 1981.

Elliott Andalman, Hattiesburg, Miss., for plaintiff-appellant.

Moran M. Pope, Jr., Hattiesburg, Miss., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before WISDOM, RUBIN and SAM D. JOHNSON, Circuit Judges.

SAM D. JOHNSON, Circuit Judge:

Plaintiff Pittman appeals from the judgment below for the defendant, the Hattiesburg Municipal Separate School District, in this Title VII employment discrimination suit involving unequal pay and constructive discharge claims. This Court reverses the judgment of the district court and remands for a determination of damages and attorneys' fees.

Pittman, a black, began working for the School District in June 1971 as a fulltime assistant to Seaton, a white and the head of the Printing Department. Seaton resigned in August 1972 when his salary was $6900. Pittman was then hired as Printer on a trial basis at $5000. Pittman had no assistant at the outset nor at any time during his employment as Printer. Pittman testified that the District Superintendent, Dr. Spinks, told Pittman that he would be raised to Seaton's salary "if he did OK," but Pittman never did receive what Seaton had been paid. He received raises in his annual salary on July 1, 1973, to $5500 and on August 7, 1973, to $6000. In August 1973 Pittman was formally promoted to Seaton's former position, which signified the end of his trial period. On July 1, 1974, his salary was raised to $6600. During this two year period, Pittman periodically requested that his salary be increased to $6900, the amount that Seaton had been paid in 1972. On August 14, 1974, after once more requesting equal treatment with Seaton, Pittman resigned. He was then still being paid $300 less than Seaton had received in 1972 and was working without an assistant. To replace Pittman, Seaton was then rehired as Printer in September 1974 at $7800, ¹ $1200 more than Pittman had been paid one month before.

Pittman sued the School District pursuant to 42 U.S.C.A. § 2000e-2(a)(1) for alleged racial discrimination in employment. He sought compensatory backpay damages with reasonable attorneys' fees and costs. The case was tried to a U.S. magistrate whose findings of fact and conclusions of law were adopted by the district court. On this basis judgment was entered in favor of the School District.

To establish a prima facie case of racial discrimination with respect to compensation, the plaintiff must show that he was paid less than a member of a different race was paid for work requiring substantially the same responsibility. See Calcote v. Texas Educational Foundation, 578 F.2d 95 (5th Cir. 1978); Quarles v. Phillip Morris, Inc., 279 F.Supp. 505 (E.D.Va.1968). See also Corning Glass Works v. Brennan, 417 U.S. 188, 195, 94 S.Ct. 2223, 2228, 44 L.Ed.2d 1 (1974) (Equal Pay Act) and Ammons v. Zia Co., 448 F.2d 117, 119-20 (10th Cir. 1971) (elements of unequal pay claim same under Title VII and Equal Pay Act). The usual unequal pay case involves two employees, one black and one white, employed at the same time and doing substantially the same work. In this case, the two employees were employed at different times in the same position. The analysis is nonetheless the same for this type of case.

Dr. Spinks testified that he hired Printers at a salary determined by the job market place and by an informal assessment of his staff, without written guidelines. There was no written seniority system, merit system, job classification, or job description for the position. Without needing to condemn unwritten, informal, vague, and subjective salary determination procedures as highly susceptible to the abuses of racial discrimination, see Grove v. General Motors Corp., 457 F.2d 348, 359 (5th Cir. 1972), it is enough to note that, if the difference in labor value of a white printer and a black printer stems from the market place putting a different value on race, Title VII is violated. 42 U.S.C.A. § 2000e-2(a)(1). It does not matter that the school officials got along with Pittman, nor does it matter how much they held their beliefs in good faith that they were not engaging in racial discrimination simply by paying the going rate for a black. The differential in pay is violative of Title VII absent some reason other than an impermissible one such as race.

The School District argues that the difference in pay was not based on race, but instead on different job responsibilities and quality of performance between Pittman and Seaton. By properly showing a significant difference in job responsibilities, a defendant can negate one of the crucial elements in plaintiff's prima facie case different pay for the same or substantially the same responsibility. A sufficient showing of a significant difference in the quality of job performance would constitute a legitimate nondiscriminatory reason for the employer's action in rebuttal of the prima facie case. It would then be incumbent upon plaintiff to show the articulated reason of different performance quality is pretextual. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

With respect to the School District's assertion that Seaton had greater responsibilities than Pittman before Seaton left in 1972, the School District claims that the trial court found, on the basis of conflicting evidence, six duties assigned to Seaton but not to Pittman. Defendant further argues that there were in fact written job requirements so that there was a basis for finding the duties and responsibilities were substantially different.

The magistrate's opinion adopted by the district court, however, found that there were no written job descriptions. Nor did the magistrate make a finding as to those six additional duties. The magistrate merely stated that the School District's witnesses alleged these differences but that it was unnecessary to attempt fully to resolve the factual dispute of whether Pittman took over some or all of these duties. Rather than deal with this difficult fact issue, the magistrate avoided it by finding that defendant articulated a legitimate, nondiscriminatory reason in rebuttal of any prima facie case. Although the magistrate merely assumed without deciding that plaintiff made out a prima facie case, this Court must deal with the prima facie case issue of different responsibility before reaching the rebuttal issue of different performance quality. This is for the reason that a failure to make out a prima facie case obviates the need to reach any other issue.

The defendant's evidence concerning different job responsibilities consists of the testimony of Spinks, Dr. Caston (Spinks' Administrative Assistant and Pittman's immediate supervisor), and Barksdale (defendant's Purchasing Agent), and Caston's notes prepared for the EEOC investigation and for trial. Pittman's assertion that there was no change in duties is supported by the corroborating testimony of another Printing Department employee, Peggy King, and by the EEOC investigator in this case. To find Title VII liability here, however, it is not necessary for this Court to resolve the conflicting evidence. Assuming without deciding that Seaton had greater responsibilities in 1972 than Pittman had when he began work as Printer, the record reflects that by August 1973, Seaton had completed his probationary period. Without the assistant that the district had provided Seaton, Pittman handled the work satisfactorily. More conclusively, there is no evidence that, upon Seaton's return in 1974, he was assigned more work or greater responsibilities. He began to do the same work Pittman had been doing at an annual salary that was $1200 more. ² Since there was no difference in responsibilities between Pittman and Seaton on Seaton's return to defendant's employ, Pittman established the crucial element for the prima facie case inference. ³ This Court concludes that, since it is shown that Pittman received unequal pay for substantially identical work, the prima facie case of racial discrimination in compensation was made out. See East v. Romine, Inc., 518 F.2d 332, 338-40 (5th Cir. 1975); Jefferies v. Harris County Community Action Ass'n, 615 F.2d 1025, 1031 (5th Cir. 1980). The next question, then, is whether defendant rebutted the prima facie case by articulating a legitimate nondiscriminatory reason for the employment action.

The magistrate stated that, while Pittman was as proficient as Seaton in the operation of the printing machinery, Pittman's performance of other duties as head of the Printing Department, mostly administrative, "perhaps did not reach the same level as that of Seaton." The basis for the magistrate's finding of rebuttal was the testimony of Spinks and Caston.

To rebut the plaintiff's prima facie case, a defendant must articulate some legitimate, nondiscriminatory reason for the employment action. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The Supreme Court has recently clarified the nature of the burden that shifts to the defendant. Texas Department of Community Affairs v. Burdine, --- U.S. ----, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). To rebut the presumption of...