Winther v. City of Portland, 92-35590

• Decision Date: 06 April 1994
• Docket Number: No. 92-35590,92-35590
• Citation: 21 F.3d 1119
• Parties: 2 Wage & Hour Cas.2d (BNA) 992 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Kathleen S. WINTHER, for herself and all others similarly situated, Plaintiff-Appellant, v. CITY OF PORTLAND, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1119

21 F.3d 1119

2 Wage & Hour Cas.2d (BNA) 992

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Kathleen S. WINTHER, for herself and all others similarly situated, Plaintiff-Appellant, v. CITY OF PORTLAND, Defendant-Appellee.

No. 92-35590.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 5, 1994.

Decided April 6, 1994.

Before: POOLE and TROTT, Circuit Judges, and KING, District Judge. ^*

MEMORANDUM ^**

Kathleen Winther appeals the dismissal of her Equal Pay Act suit against the City of Portland. Winther, an emergency communications specialist in the Portland Bureau of Emergency Communications (BOEC), attempted to compare her wages to those of fire fighter specialists/communications in the Portland Fire Alarm Dispatch (FAD). The district court granted summary judgment against her for failing to show that the BOEC and FAD are one "establishment" under the EPA. We have jurisdiction over the district court's final judgment pursuant to 28 U.S.C. Sec. 1291. We review de novo the district court's grant of summary judgment, Jones v. Union Pac. R.R., 968 F.2d 937, 940 (9th Cir.1992), and we affirm.

I

The City of Portland contends that the district court erroneously applied an "establishment" test that looked to more than just the physical location of the entities sought to be compared. We find no error in the district court's selection of the proper test.

The EPA prohibits discrimination on the basis of sex in the payment of wages. 29 U.S.C. Sec. 206(d)(1). However, its scope is limited to comparisons "within any establishment in which such employees are employed." Id. (emphasis added). The EPA does not itself define the term "establishment." Nor does the Fair Labor Standards Act (FLSA), 29 U.S.C. Sec. 201 et seq., of which the EPA is a part.

At the time of the EPA's passage, the Supreme Court had defined "establishment" for FLSA purposes thusly: "Congress used the word 'establishment' as it is normally used in business and government--as meaning a distinct physical place of business...." A.H. Phillips, Inc. v. Walling, 324 U.S. 490, 496 (1945) (footnote omitted); accord Mitchell v. Bekins Van & Storage Co., 352 U.S. 1027 (1957). Subsequent courts have modified the Phillips definition in EPA cases, adding functional considerations, such as the centralization of administration, transfer patterns, and the extent of interaction. See, e.g., Marshall v. Dallas Ind. School Dist., 605 F.2d 191, 194 (5th Cir.1979); Forsberg v. Pacific Northwest Bell Telephone Co., 622 F.Supp. 1150, 1152 (D.Or.1985), aff'd on other grounds, 840 F.2d 1409 (9th Cir.1988); AFSCME v. County of Nassau, 609 F.Supp. 695, 705-06 (E.D.N.Y.1985); Alexander v. University of Michigan-Flint, 509 F.Supp. 627, 629 (E.D.Mich.1980); Gerlach v. Michigan Bell Tel. Co., 448 F.Supp. 1168, 1172 (E.D.Mich.1978).

This case is governed by Foster v. Arcata Assocs., Inc., 772 F.2d 1453 (9th Cir.1985), cert. denied, 475 U.S. 1048 (1986), the only Ninth Circuit case to consider the meaning of "establishment" as used in the EPA. Portland argues that Foster adopts the "distinct physical place of business" test of Phillips, while the district court concluded that Foster involved a hybrid functional approach. We agree with the district court.

Foster cites to both Phillips and later functional cases. See id. at 1464. It notes, "[w]hen considering the single establishment issue, federal courts have consistently rejected the extension of the statutory establishment requirement to separate offices of an employer that are geographically and operationally distinct." Id. (emphasis added). The analysis Foster does to conclude that the offices at issue are separate establishments considers both physical and functional components. It acknowledges that the offices "were hundreds of miles apart and operationally distinct." Had the Foster court been using a strict "distinct physical place of business" test, it could have stopped with the observation that the offices were separate. Instead, Foster goes on to consider factors such as the independence of the management, the different operational needs, the different functions served, and the existence of separate budgets. Id. at 1465. Based on Foster, then, our analysis must look to the nature of the services provided and the degree of central administration, such as budgeting, hiring, and day-to-day management, as well as the extent of physical separation. See id. We turn to an application of Foster to the facts of this case.

II

Winther contends that the district court erroneously granted summary judgment because she had raised an issue of material fact as to whether BOEC and FAD should be considered one establishment. The district court did not err.

A. Interaction in Performing Services

Winther concedes that employees never transfer between the BOEC and FAD. However, she presented an affidavit to the district court that shows the two agencies do work together in a complementary fashion. Together, the BOEC and FAD dispatch all services needed in response to medical emergency 911 calls. In response, the city has introduced evidence that as to emergencies other than medical ones, the two entities work independently. The city's affidavit indicates that police emergencies are handled exclusively by the BOEC, while fire emergencies are routed to the FAD for exclusive handling. Winther has submitted no evidence regarding interaction during non-medical emergencies. Taken in the light most favorable to plaintiff, this evidence shows that BOEC and FAD serve different functions but sometimes work together to provide their respective services. This evidence does not materially distinguish Winther's case from Foster, in which two offices of a military contractor provided different services to the military. Foster, 772 F.2d at 1465. This provision of complementary services is insufficient to make the BOEC and FAD a single establishment.

B. Physical Connection

Winther next contends that there is a dispute of material fact over whether the BOEC and FAD are physically separate. Winther does not dispute that the BOEC and FAD are located in different buildings an unspecified number of blocks apart, but claims that such physical separation is immaterial in light of phone and computer links between the offices.

This argument is misconceived. "Physical separation" as used in Phillips and Foster is a common-sense notion that refers to whether offices are physically contiguous or not. See Phillips, 324 U.S. at 496 ("Congress used the word "establishment" as it is normally used in business and government--as meaning a distinct physical place" (footnote omitted) (emphasis added)); cf. Shultz v. Corning Glass Works, 319 F.Supp. 1161, 1164 (W.D.N.Y.1970) (concluding that three factories constituted one establishment...