Usery v. BOARD OF ED. OF BALTIMORE CTY., Civ. No. K-76-672.
| Decision Date | 28 September 1978 |
| Docket Number | Civ. No. K-76-672. |
| Citation | 462 F. Supp. 535 |
| Parties | W. J. USERY, Jr., Secretary of Labor, United States Department of Labor v. BOARD OF EDUCATION OF BALTIMORE COUNTY. |
| Court | U.S. District Court — District of Maryland |
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Carin Ann Clauss, Sol. of Labor, Washington, D. C., Marshall H. Harris, Regional Sol., Jay S. Berke, Karen Kress Weisbord, U. S. Dept. of Labor, Philadelphia, Pa., Russell T. Baker, Jr., U. S. Atty., Catherine C. Blake, Asst. U. S. Atty., Baltimore, Md., for plaintiff.
J. Carroll Holzer, County Sol. and Joseph Kiel, Asst. County Sol., Baltimore, Md., for defendant.
The Secretary of Labor (plaintiff) alleges that the Board of Education of Baltimore County (defendant) violated the Equal Pay Act1 ("Act") by paying female custodial workers in its schools a lower wage than male custodial workers performing substantially equal work.
The Board is responsible for the operation of approximately 160 elementary and secondary schools in Baltimore County. In connection therewith the Board establishes educational policies, prescribes rules and regulations for the conduct and management of the county school system, issues policy guidelines, purchases supplies, handles payroll and bookkeeping functions, fixes compensation of all employees subject to funding by the Baltimore County Executive and County Council, and assigns all personnel.
The Board concedes that its activities were performed through unified operation and control and are deemed to be for a common business purpose within section 3(r) of the Fair Labor Standards Act. The Board also concedes that the school system is a "single establishment" within the meaning of the Equal Pay Act.2
From 1964 to 1976, the Board utilized a job classification system under which all janitorial employees were categorized as Custodians I or Custodians II.3 Custodians I, nearly all of whom were male,4 received $.25 more per hour than Custodians II, most of whom were female.5 The separate classifications and the wage differentials were eliminated by the Board in July, 1976, shortly after this suit was filed. The Board contends that the tasks performed by the two categories of custodians were significantly different and unequal. The Board also asserts that the Secretary is estopped from pursuing relief in this case because of the manner in which the federal agency conducted its investigation of the Baltimore County schools.
The Secretary seeks a permanent injunction enjoining the Board from violating the Act and the payment of back wages to the Board's female employees for school months during the period from May 7, 1974 through July 1, 1976, with interest, at the rate of six percent per annum.
Prior to trial, the parties took depositions de bene esse of 39 custodial employees. Those depositions have been admitted into evidence and are part of the record. In a non-jury trial held during the week of February 27, 1978, 11 additional custodians, certain Board of Education officials, a Department of Labor investigator assigned to the case, and several expert witnesses, testified.
Jurisdiction exists pursuant to section 17 of the Fair Labor Standards Act, 29 U.S.C. ? 217.
Defendant argues that plaintiff is estopped from prosecuting this case because of alleged failure by the Department to follow its own regulations and procedures. Defendant relies heavily on the Department of Labor's Field Operations Handbook (FOH). The estoppel defense has two prongs:
(1) Contrary to Section 53b01 of the FOH, the Labor Department's compliance officer failed to conduct a "final conference" to inform the Board of the results of his investigation and to attempt to obtain future compliance; and
(2) Institution of this suit for back wages and injunctive relief after the Board had commenced compliance with the Act violated the Department's policy as stated in section 81b03 of the FOH.
In response, the Secretary contends that the evidence does not support those estoppel contentions and that, in any event, neither estoppel defense is legally viable.
In May 1973, Gary Legum, Compliance Officer of the Wage and Hour Division of the Department of Labor, began an investigation into the employment practices of the Board. Legum first contacted Thomas Regan, a specialist in the Board's personnel department, and asked Regan for information regarding the Board's personnel and pay policies. After visiting three of the Board's 160 schools and talking with various employees, Legum again met with Regan and at that time informed him that the Board was violating the Equal Pay Act with respect to some of its custodial employees. Regan requested that Legum put his findings in writing. In a letter dated May 30, 1973, Legum wrote Regan that the lower-paid female custodians were doing work substantially equal to that of the higher-paid male custodians.6
Subsequently, Legum met on June 18, 1978, with Dr. Joshua R. Wheeler, Superintendent,7 Dr. Robert Y. Dubel, the Deputy Superintendent, and other Board representatives to attempt to settle their differences. At the meeting Wheeler said that he felt the wages of the female custodians should be increased but that he did not believe their work to be equal to that of the male custodians. Wheeler also asserted that Legum had not visited a sufficient number of schools to obtain an accurate picture of the Board's personnel policies.8 He asked that Legum expand his investigation to include other schools.
After consulting with his supervisor, Legum visited three more schools during June and July, 1973. At trial, Legum testified that the additional investigation supported his original finding of an Equal Pay Act violation. He met with Board officials a second time on July 13, 1973 and informed them again of his conclusions. He modified his original findings by noting that in some schools male custodians appeared to spend substantial time during the summer on work not comparable to work done by female custodians.9 However, he reiterated his belief that there existed a violation of the Act in those schools during the school year.10 Wheeler responded by again requesting a more thorough investigation. He reasoned that, since Legum had found possible differences in work performed by male and female custodians during the summer months as a result of visits to schools during June and July, additional visits during the school term might yield similar conclusions for the rest of the year.11
Legum testified that on August 9, 1973 he telephoned Wheeler concerning the latter's request for additional investigation,12 and informed the superintendent that the investigation was "inconclusive" as to work performed during the summer months. However, Legum stated that Equal Pay Act violations existed during the school term and that additional investigation would not be fruitful. According to Legum, he warned Wheeler that if the Board continued to refuse to comply, Legum would submit the file to his superiors for potential litigation.
Legum in fact did refer the file to the Solicitor of Labor for potential litigation. The Solicitor's office returned the file to Legum with instructions to investigate additional schools. Legum then visited six more schools during February-May, 1974, and five schools during October-November, 1974.
During his 1974 investigation Legum apparently did not contact Wheeler. Rather, he dealt with Donald E. Custer, Supervisor of the Board's office of Building Maintenance and Operations, who prepared a letter of introduction and assisted Legum in gathering information. After the additional fact finding, Legum informed Custer that the Board was still in violation of the Equal Pay Act. According to Legum, Custer indicated that the Board would not alter its position and would not comply in accordance with Legum's views. Custer testified at trial that he merely stated to Legum that he (Custer) personally did not agree with Legum's findings. Custer seemingly did not have any express authority from the Superintendent's office to state the Board's position.13 In fact, Custer did not apprise the Superintendent's office of Legum's visit or of the compliance officer's conclusions.
Apparently, after the August 9, 1973 telephone conversation between Legum and Wheeler, the superintendent's office received no direct word of the Labor Department's investigation until the spring of 1975. In a letter dated March 21, 1975, the Regional Solicitor of Labor wrote the superintendent that the investigation had been completed and that the matter had been referred to the Solicitor's Office "for consideration of appropriate action in accordance with the provisions of law."
Dr. Dubel testified that, prior to receipt of the Solicitor's letter, he and Wheeler had inferred from the Labor Department's apparent silence that the government had either dropped the investigation or had not yet completed its fact-finding.14
Dubel and other Board officials then met with a representative of the Regional Solicitor on April 30, 1975 and restated the Board's position that the work was unequal. The result of that meeting was apparently inconclusive. About a year later on March 5, 1976, another meeting was held in Baltimore between Labor Department attorneys and Board officials. At that meeting Wheeler and Dubel agreed to merge the custodial classification and to eliminate the existing pay differentials at a cost of $270,000. Dubel testified that it was at this 1976 meeting that the Board members themselves first learned of the compliance officer's additional 1974 investigations and visits arranged by supervisor Custer. The Board members requested that the Labor Department forego any demand for back wages for the female custodians. In a letter dated March 10, 1976, the Regional Solicitor rejected that request and, two months later, filed the within suit.
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