Plemer v. Parsons-Gilbane

• Decision Date: 06 September 1983
• Docket Number: No. 81-3464,PARSONS-GILBANE,81-3464
• Citation: 713 F.2d 1127
• Court: U.S. Court of Appeals — Fifth Circuit
• Parties: 32 Fair Empl.Prac.Cas. (BNA) 1351, 26 Wage & Hour Cas. (BNA) 687, 32 Empl. Prac. Dec. P 33,817, 99 Lab.Cas. P 34,449 Christine PLEMER, Plaintiff-Appellant, v., etc., et al., Defendants-Appellees.

Page 1127

713 F.2d 1127

32 Fair Empl.Prac.Cas. (BNA) 1351,

26 Wage & Hour Cas. (BNA) 687,

32 Empl. Prac. Dec. P 33,817, 99 Lab.Cas. P 34,449

Christine PLEMER, Plaintiff-Appellant, v. PARSONS-GILBANE, etc., et al., Defendants-Appellees.

No. 81-3464.

United States Court of Appeals, Fifth Circuit.

Sept. 6, 1983.

George M. Strickler, Jr., New Orleans, La., for plaintiff-appellant.

McCalla, Thompson, Pyburn & Ridley, Susan L. Brooks, Stephen D. Ridley, New Orleans, La., for defendants-appellees.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before GARZA, REAVLEY, and GARWOOD, Circuit Judges.

GARWOOD, Circuit Judge:

In this Title VII and Equal Pay Act suit, the district court rendered judgment for the defendants-appellees Parsons-Gilbane and also ordered that plaintiff-appellant Plemer pay the appellees' attorneys' fees. We reverse the award of attorneys' fees, and affirm in part, and reverse and remand in part, the remainder of the district court's judgment.

Parsons-Gilbane is a joint venture between the Ralph M. Parsons Company and the Gilbane Building Company. A prime contractor to the United States Department of Energy, Parsons-Gilbane constructs underground storage facilities in Louisiana and Texas for the Strategic Petroleum Reserve Program. As a federal contractor, Parsons-Gilbane must comply with Executive Order 11246, ¹ as well as with other federal employment laws.

Christine Plemer began working for Parsons-Gilbane in May 1978 as a Personnel Assistant. Her starting salary was $1,167 per month. In October 1978, Parsons-Gilbane promoted Plemer to the position of Equal Employment Opportunity ("EEO") Representative and increased her salary to $1,375 per month. As EEO Representative, Plemer was charged with helping to secure compliance with federal employment regulations, participating in a salary review committee, receiving and processing individual employees' EEO grievances, and preparing material for fact-finding conferences.

As EEO Representative, Plemer reported to the EEO Officer. From October 1978 until June 1979, no one held the position of full-time EEO Officer. From October 1978 until December 1978, Charles Orne held the position part time, and Walter Marquadt held it part time from the end of January 1979 until June 1979. No one held the position of EEO Officer in January 1979, and during the period from October 1978 until June 1979, Plemer was the only full-time employee whose primary duty was to secure compliance with Equal Employment Opportunity laws.

In April 1979, Parsons-Gilbane decided to create a position for a full-time EEO Officer. Plemer applied for the position and had the endorsement of both a caucus of employees and an Office of Federal Contract Compliance Programs officer who had investigated Parsons-Gilbane. In June 1979, Parsons-Gilbane hired a male, William Willis, for the position. Willis' salary was set at $2,167 per month.

On August 7, 1979, Plemer submitted her resignation to Parsons-Gilbane, effective August 21, 1979. Plemer felt Parsons-Gilbane had discriminated against her because of her sex by passing over her in favor of Parsons-Gilbane hired a male, William Biggs, to replace Plemer as EEO Representative. Biggs' starting salary was $1,542 per month, 6.8 percent greater than Plemer's final monthly salary of $1,444. When Biggs resigned, Parsons-Gilbane promoted Eleanor Washington from within the Company to replace him. Her starting salary as EEO Representative was $1,406 per month, 8.8 percent lower than Biggs' starting salary.

                Willis for the position of EEO Officer.   Her letter of resignation stated that her "situation is a direct result of discriminatory employment and pay practices of the Joint-Venture.   For these reasons, I can no longer offer my services to an organization which continually exhibits unfair personnel practices."   When she resigned, Plemer was given a five percent raise to $1,444 per month, which was made retroactive to May 24, 1979
                

On October 16, 1979, Plemer filed a charge with the EEOC alleging that Parsons-Gilbane had discriminated against her because of her sex by failing to promote her to EEO Officer, by paying her less than it paid Willis or Biggs, and by forcing her constructive discharge. Plemer sued Parsons-Gilbane within 180 days of receiving her right-to-sue letter from the EEOC. The district court gave judgment for the defendants on each claim and, finding the claims to be frivolous, awarded attorneys' fees to Parsons-Gilbane.

Plemer does not appeal the district court's determination that Parsons-Gilbane's failure to promote her was not discriminatory, nor does she appeal the district court's holding against her on her constructive discharge claim. She does assert that the district court erred in awarding Parsons-Gilbane its attorneys' fees, and she contends that the court erred in finding no merit to her claim of discriminatory compensation. We first address the points concerning her compensation claim and then consider the attorneys' fees question.

PLEMER'S COMPENSATION CLAIM UNDER TITLE VII AND GUNTHER

Before the Supreme Court decided County of Washington v. Gunther, 452 U.S. 161, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981), this Court required that a plaintiff alleging discrimination in pay under Title VII ² meet the standards of proof of the Equal Pay Act, ³ and show that he or she was being paid less than an employee of the opposite sex for performing equal, or substantially equal, work. See, e.g., Orr v. Frank R. MacNeill & Son, 511 F.2d 166, 171 (5th Cir.), cert. denied, 423 U.S. 865, 96 S.Ct. 125, 46 L.Ed.2d 94 (1975).

The Supreme Court in Gunther, however, determined that failure to allege or prove the equal work standard of the Equal Pay Act did not bar a plaintiff's cause of action under Title VII for discrimination in compensation.

At trial, Plemer attempted to prove two compensation causes of action. The first was a claim that she had received unequal pay for equal work. To establish this "classic" type cause of action for discrimination in compensation, ⁴ Plemer compared her position In Gunther, a group of female prison guards charged that the County had violated Title VII by intentionally depressing their wages because of their sex; that the County had set "the wage scale for female guards, but not for male guards, at a level lower than its own survey of outside markets and the worth of the jobs warranted." Id. at 166, 101 S.Ct. at 2246, 68 L.Ed.2d at 758. The plaintiffs had failed to prove that they performed jobs which required equal skill, effort, and responsibility as the jobs the male guards performed. The female guards, therefore, did not assert an equal pay for equal work claim before the Supreme Court. Instead, the appeal concerned the plaintiffs' allegation that a cause of action under Title VII had arisen because their employer had intentionally discriminated against them with respect to their compensation. The Supreme Court explained: "The sole issue we decide is whether [the female guards'] failure to satisfy the equal work standard of the Equal Pay Act in itself precludes their proceeding under Title VII." Id. at 166 n. 8, 101 S.Ct. at 2246 n. 8, 68 L.Ed.2d at 758 n. 8.

                and salary to those of her successor, Biggs.   This first cause of action arose under both the Equal Pay Act and Title VII.   Her second cause of action arose under the Gunther theory, that Parsons-Gilbane had intentionally discriminated against her in compensation by paying her less than her job was worth because she was female.   This second cause of action arose exclusively under Title VII.   Although on appeal Plemer makes several points as to each of these two compensation causes of action, we initially discuss her assertion that the district court's failure to make findings under the Gunther theory was reversible error. 5  To determine the merit of this assertion, we must, of course, look closely at the Supreme Court's Gunther opinion
                

The County premised its defense on the application of the Bennett Amendment which states that Title VII does not make illegal those disparities in pay which the Equal Pay Act authorizes. The Equal Pay Act, 29 U.S.C. § 206(d), in turn, requires that equal wages be paid to men and women performing work "which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex." (Emphasis added.) The County had argued that the Bennett Amendment had incorporated the entire Equal Pay Act, rather than only its four exceptions, into Title VII and that, therefore, a plaintiff with a Title VII sex discrimination in compensation claim could only succeed on the claim by offering proof under the unequal pay for equal work standard. The Court found otherwise. Id. at 181, 101 S.Ct. at 2253, 68 L.Ed.2d at 767.

After examining the legislative histories of both the Bennett Amendment and the Equal Pay Act, the Court determined that the Amendment had only incorporated into Title VII the Equal Pay Act's four exceptions or defenses, and not its requirement that a plaintiff allege or prove she was performing equal work for unequal compensation. Therefore, a cause of action for discriminatory compensation based on sex could arise under Title VII even if a plaintiff did not allege unequal pay for equal work. The Court specifically declined to decide "the precise contours of lawsuits challenging sex discrimination in compensation under Title VII." Id. at 181, 101 S.Ct. at 2254, 68 L.Ed.2d at 767. To a limited extent, we must define those contours today. We do not decide precisely what the A detailed study of Gunther convinces us that Plemer's charge does not fall within its confines. In the case before ...