# Georgia Ann Wright Hill, Cross-Appellant v. J. C. Penney Company, Inc., Cross-Appellee

> Court of Appeals for the Fifth Circuit · October 7, 1982 · 688 F.2d 370

URL: https://www.frixlaw.com/law-library/cases/9469709

## Case

- **Full name:** Georgia Ann Wright HILL, Plaintiff-Appellee Cross-Appellant, v. J. C. PENNEY COMPANY, INC., Defendant-Appellant Cross-Appellee
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** October 7, 1982
- **Citations:** 688 F.2d 370; 25 Wage & Hour Cas. (BNA) 974; 30 Empl. Prac. Dec. (CCH) 33,105; 29 Fair Empl. Prac. Cas. (BNA) 1757; 1982 U.S. App. LEXIS 24981
- **Precedential status:** Published
- **Opinion:** Concurrence by Gee
- **Judges:** Clark, Gee, Garza
- **Cited by:** 39 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9469709

## How later opinions describe it (automated extraction)

- affirming district court’s holding that defendant violated EPA by paying plaintiff less for equal or greater work based solely on gender, and that defendant’s claim that male employee was “supervisor” was not supported by evidence
- finding that the defendant’s reliance on the advice of counsel insulated it from an award of liquidated damages under the FLSA

## Opinion text

GEE, Circuit Judge,
with whom
CLARK, Chief Judge, joins, concurring:
I concur with conviction in all aspects of the court’s opinion except that compelled by our opinion in Coleman v. Jiffy June Farms, 458 F.2d 1139 (5th Cir.), cert. denied, 409 U.S. 948 , 93 S.Ct. 292 , 34 L.Ed.2d 219 (1972). In that I concur only because, bound by precedent, I must.
It is true, as the court observes (p. 374), that there is a long line of precedent in our court construing “willful,” as used in Section 255 of the Portal-to-Portal Act, as requiring no more scienter or volition on the part of the employer than that he “know or have reason to know” that he is subject to the Act. It is also true, however, that it is all traceable to Jiffy June Farms , the later panels having been bound as are we.
With all deference to the distinguished panel that arrived at it, I think the construction an aberrational one which reduces a volitional term to a meaning that implies at most negligence or inattention. This is not the ordinary meaning of the term or that which we accord it in other contexts, e.g., United States v. Granda, 565 F.2d 922, 925 (5th Cir. 1978), citing numerous opinions, among them those of the Supreme Court. These latter antedate the passage of Section 255, so that Congress knew of them when it selected the term for use there. For us to give it, in this lone context, a different meaning from the settled one smacks to me of amendment rather than of construction.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9469709. Public record. Not legal advice.