Usery v. Columbia University, 398

Decision Date04 October 1977
Docket NumberNo. 398,D,398
Citation568 F.2d 953
Parties15 Fair Empl.Prac.Cas. 1333, 23 Wage & Hour Cas. (BN 513, 15 Empl. Prac. Dec. P 7877, 82 Lab.Cas. P 33,593 W. J. USERY, Jr., Secretary of Labor, Plaintiff-Appellant, v. COLUMBIA UNIVERSITY, and William J. McGill, Individually and as President of Columbia University, Defendants-Appellees. ocket 76-6071.
CourtU.S. Court of Appeals — Second Circuit

Carin Ann Clauss, Associate Solicitor, Dept. of Labor, Washington, D. C. (William J. Kilberg, Solicitor of Labor, Melanie Franco Nussdorf, Atty., Dept. of Labor, Washington, D. C., and Francis V. LaRuffa, Regional Solicitor, Dept. of Labor, New York City, on the brief), for plaintiff-appellant.

Robert S. Stitt, New York City (Anthony Limitone, Jr., Raymond L. Vandenberg, and Thacher, Proffitt & Wood, New York City, on the brief), for defendants-appellees.

Before MOORE, OAKES and TIMBERS, Circuit Judges.

TIMBERS, Circuit Judge:

On this appeal from a judgment entered after a bench trial in the Southern District of New York, Richard Owen, District Judge, 407 F.Supp. 1370, the essential question presented is whether the work performed respectively by the heavy and light cleaners employed by Columbia University is "equal" within the meaning of the Equal Pay Act of 1963, 29 U.S.C. § 206(d)(1) (1970) 1 (the Act). We agree with the district court that the work is not equal. We affirm. 2

I.

The Equal Pay Act prohibits an employer from discriminating "between employees on the basis of sex by paying wages to employees . . . at a rate less than the rate at which he pays wages to employees of the opposite sex . . . for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions . . . ." See note 1 supra.

Invoking the enforcement provisions of the Fair Labor Standards Act, 3 the Secretary of Labor commenced the instant action against Columbia University and its president (Columbia) on March 11, 1974. The action sought to enjoin Columbia from discriminating against its female light cleaners, allegedly on the basis of sex in violation of the Equal Pay Act, by paying them at a lower hourly rate than that paid to its male heavy cleaners. The action also sought an injunction against further violations and an award of back pay.

At a 15 day bench trial during September and November 1974, the parties, focusing upon the statute's "equal . . . effort" criterion, produced extensive evidence on the physical requirements of the heavy and light cleaning positions. The crux of Judge Owen's finding of fact on this critical issue is set forth in his opinion dated February 11, 1976 as follows:

"(T)he jobs of heavy cleaner and light cleaner are different. Going beyond the job descriptions, from the extensive testimony adduced before me at the trial, it is clear that the job of heavy cleaner involves greater effort than that of light cleaner." 407 F.Supp. at 1374-75.

Accordingly, the judge held that the Secretary had failed to sustain the burden of proving that the heavy and light cleaners perform equal work within the meaning of the Act. From the judgment dismissing the action, the Secretary has taken the instant appeal. 4

II.

The facts are not in dispute. They appear clearly on the face of the record. To the extent necessary to an understanding of our rulings on the issues of law presented, we summarize the controlling facts, including the essential findings of the district court which we accept pursuant to Fed.R.Civ.P. 52(a).

For more than 30 years Columbia has divided the duties of its custodial force into "heavy" and "light" categories. At the time of trial it employed 160 heavy cleaners (designated "janitors" prior to 1972), 4 of whom were female, and 111 light cleaners (designated "maids" prior to 1972), all of whom were female. Since 1972 all heavy cleaning positions have been open to applicants of both sexes. 5 No male ever has applied for the position of light cleaner. The light cleaners always have been paid less than the heavy cleaners. The differential was 45 cents an hour at the time of trial.

Columbia assigns approximately 80% Of the light cleaners to its academic buildings and the remainder to its residence halls. Each cleaner in the group assigned to the academic buildings has daily responsibility for between 1 and 5 floors, depending on the size of the building and the functions of the particular rooms included in the assignment. The functions are those one would expect at any university, including classrooms, offices, library stacks, and the like. The light cleaners dust mop or vacuum the floors of the rooms and some of the corridors; dust, polish, or dampcloth the furniture, fixtures, baseboards and windowsills; and remove small spots from the walls, floors and doors. They also empty wastebaskets and ashtrays into trashbags. These are deposited at the elevator on each floor where they are picked up by heavy cleaners. In performing their work the light cleaners use dust mops, carpet sweepers, household vacuum cleaners, toy brooms, rags, sponges and 14 quart buckets. Some of the light cleaners transport this equipment in wheeled carts which weigh 60 pounds unloaded. The equipment itself, including a vacuum cleaner, creates a 21 pound load, to which a full trash bag adds an indeterminate amount of weight up to 30 pounds.

The light cleaners assigned to the residence halls perform the same functions as those performed in the academic buildings. Each day they clean the common rooms and offices on the ground floors, and the corridors and lounges on the residential floors. Students' rooms are cleaned on a special assignment basis when unoccupied during the summer.

The heavy cleaners may be grouped roughly into four categories: (1) those assigned to public corridors, lobbies, stairways and elevators; (2) those assigned to public lavatories; (3) those permanently assigned to special projects; and (4) those assigned to certain off-campus buildings.

The primary daily responsibility of group (1) is to wet mop the corridors, lobbies, stairways, elevators, classrooms and laboratories of the academic buildings. They also collect the bags of trash left on each floor by the light cleaners and transport them to dumping areas.

The heavy cleaners in group (2) clean daily the university's public lavatories. They dust and wet mop the floors, clean the toilets and sinks, empty the trash, and wash marks from the walls. Many of the heavy cleaners in this group assist the heavy cleaners in the first group with the job of removing trash. Depending on the load this takes from less than one-half hour to 2 hours daily.

In their wet mopping both of these groups use a dolly which carries two 44 quart buckets with wringers and cleaning solution. The dolly weighs 60 pounds empty and up to 140 pounds full. For larger areas they use mop trucks which hold 30 or 60 gallons. These weigh from 160 to 200 pounds empty and from 300 to 500 pounds full. Trash removal is accomplished by the use of trucks. These are 6 feet long, 3 feet wide and 6 feet high, and weigh 200 pounds empty and up to 800 pounds full.

The heavy cleaners in groups (1) and (2) perform additional tasks on an occasional basis. These include loading, unloading and transporting drums of cleaning solvent which hold 55 gallons of liquid and weigh from 400 to 600 pounds; climbing 14 foot ladders to clean in high places and change light bulbs; vacuuming carpets with industrial machines which weigh from 74 to 96 pounds empty and from 122 to 192 pounds full; cleaning carpets with motorized pile lifters; shovelling snow from entrance ways; and turning on and off heavy ventilation equipment.

The special projects handled by group (3) of the heavy cleaners are jobs done regularly but infrequently. These include scrubbing and stripping floors, shampooing rugs and washing venetian blinds.

The work assignments of those classified in groups (1), (2) and (3) are not necessarily hard and fast. For example, in Avery Hall, one of the smaller buildings, one heavy cleaner wet mops all the corridors and staircases, cleans the lavatories and does any project work. (Two light cleaners handle the offices and libraries in that building). In contrast, in a large building such as Butler Library, assignments of the 5 heavy cleaners in the building are divided among the 3 classifications. (Eleven light cleaners are assigned to Butler). 6

The heavy cleaners in group (4) are assigned to small converted office buildings located on streets adjacent to Columbia's main campus. They primarily perform light cleaning duties. Light cleaners handled these assignments until 1974 when considerations of security prompted Columbia to substitute male employees. The buildings involved are outside of the security perimeter of the main campus and are cleaned during the midnight to 8 A.M. shift. Before the change heavy cleaners escorted the light cleaners from the main campus to these buildings and locked them in. Each light cleaner then spent the night alone in her respective building and later was escorted back to the main campus.

These off-campus buildings are the only exception to the otherwise uniform line of demarcation which Columbia maintains between "heavy" and "light" cleaning tasks. Written job descriptions listing the heavy and light cleaning tasks are incorporated in the collective bargaining agreements between Columbia and the Transport Workers' Union. 7

The cleaners themselves are well aware of the distinction between heavy and light assignments and have not hesitated to enforce it. In 1971, for example, 8 light cleaners successfully protested an assignment to remove heavy trash. Columbia moreover has changed from "light" to "heavy" certain assignments which technically were in the "light" category but which in practice called for physical exertion comparable to that of the heavy cleaning...

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