Turner v. City of Baytown, 1023

• Decision Date: 20 November 1974
• Docket Number: No. 1023,1023
• Citation: 516 S.W.2d 270
• Parties: 13 Fair Empl.Prac.Cas. (BNA) 669, 8 Empl. Prac. Dec. P 9838 Shirley Ann Wright TURNER et vir, Appellants, v. CITY OF BAYTOWN et al., Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 270

516 S.W.2d 270

13 Fair Empl.Prac.Cas. (BNA) 669, 8 Empl.

Prac. Dec. P 9838

Shirley Ann Wright TURNER et vir, Appellants, v. CITY OF BAYTOWN et al., Appellees.

No. 1023.

Court of Civil Appeals of Texas Houston (14th Dist.).

Nov. 20, 1974.

Thomas D. McManus, Flowers & McManus, Channelview, for appellants.

Neel Richardson, Baytown, for appellees.

TUNKS, Chief Justice.

This suit was brought by a city policewoman for back pay based on alleged sex discrimination. She appeals from a takenothing judgment entered by a trial court sitting without a jury.

Appellant, Shirley Ann Wright Turner, was employed by the City of Baytown, appellee, as a female member of its police department on April 28, 1964, pursuant to the provisions of the state civil service statute and of the City's civil service rules. Vernon's Tex .Rev.Civ.Stat.Ann. art. 1269m (1963). She successfully completed a six month's probation period and became a police department employee with civil service protection. She has continued to hold the same position with the department up to the present date.

On February 27, 1970, appellant, joined pro forma by her husband, filed suit against the City of Baytown, its mayor, city manager, chief of police, civil service commission chairman, and city council members. The petition alleges that Shirley Turner's duties as a policewoman have been substantially the same as those performed by persons classified as 'patrolman,' and that the difference in salary between the two positions is based solely on sex, in violation of the laws and Constitutions of the United States and the State of Texas. Appellants seek $21,227 in damages, which is the difference between the salary Turner received from the City from April 28, 1964, through April 30, 1973, and the salary a patrolman received from the City during this same period of time.

After a non-jury trial, judgment was entered that appellants take nothing by their suit, and notice of appeal was made in open court. The trial court made findings of fact that the civil service classifications 'policewoman' and 'patrolman' are different positions with substantially different duties, that Turner's duties included those which would have been performed by a meter maid, and that she has never applied for the position of patrolman nor for advancement. The court held as conclusions of law that the two City ordinances setting up the classifications 'patrolman' and 'policewoman' are valid and not discriminatory, that Turner is a classified policewoman and is paid a salary assigned by the City for this classification in its yearly appropriations, and that paying a classified policewoman a salary different from that of a patrolman is not violative of the laws and Constitutions of the United States and the State of Texas.

By their points of error two and four, appellants contend that the trial court erred as a matter of law in holding that the two City ordinances creating the classifications of 'policewoman' and 'patrolman' were not discriminatory, and in holding that the City's action in paying a lower salary to a policewoman was not violative of the laws and Constitutions of the United States and of Texas. In effect appellants argue that there was no evidence to support a finding that Turner's job was different from that of a patrolman; and that, therefore, there was no basis upon which the trial judge could have upheld the difference in salary paid by the City to those employees who were classified as 'patrolmen' and to appellant, who was classified as a 'policewoman.' We must uphold the trial court's findings of fact and conclusions of law if there is any evidence to support them.

The ordinances setting up the classifications 'patrolman' and 'policewoman' were offered into evidence. Although the distinguishing characteristics of work are identical in both ordinances, there are sixteen examples of work listed for a patrolman and only eight for a policewoman. Although these examples are only descriptive and do not exclude others not mentioned, they are at least some evidence that the two job classifications...