Petition — Johnson v. Nordstrom-Larpenteur Agency, Inc.
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8 () sa 6 ( 9 Supre-ne Court, U.S.
rItEee
a MER ete CT 14 1980
MICHAEL RODAK, JR., CLERK
In the Supreme Court of the United States
October Term, 1980
JOAN M. JOHNSON,
Petitioner,
VS.
NORDSTROM-LARPENTEUR AGENCY, INC.,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
WILLIAM H. PICKETT
(Counsel of Record)
S. JILL WEINLOOD
Wi11AM H. Pickett, P.C.
1413 Traders Bank Building
1125 Grand Avenue
Kansas City, Missouri 64106
(816) 221-4343
Attorneys for Petitioner
E. L. Menpenuatt, Inc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-8080
QUESTIONS PRESENTED
1. Does section 703(a)(1) of Title VII, 42 U.S.C.
.§ 2000e-2 (a) (1), which prohibits discrimination in compen-
sation on the basis of sex, incorporate the “equal pay for
equal work” and “separate establishment” standards of sec-
tion 6(d) of the Equal Pay Act of 1963, 29 U.S.C. § 206(d),
which concerns sex discrimination in compensation, so that
a plaintiff cannot recover under Title VII unless she could
recover under section 6(d) of the Equal Pay Act, or is
Title VII broader than the Equal Pay Act so that even if
a plaintiff’s job was not substantially equal to the job of
a male worker in the same or a different establishment,
she should still be allowed to prove that the discrepancy
in compensation was due to sex discrimination?
2. Are geographically separate offices of the same em-
ployer separate establishments for the purpose of section
6(d)(1) of the Equal Pay Act, 29 U.S.C. § 206(d) (1), al-
though the same functions are performed in each office,
and some personnel in one office have identical duties to
some personnel in the other office?
3. Did the United States District Court for the Dis-
trict of Minnesota, and the United States Court of Appeals
for the Eighth Circuit, err in refusing to allow plaintiff her
costs under 42 U.S.C. § 2000e-5(k) ?
PARTIES
All parties to this proceeding are listed in the caption.
III
TABLE OF CONTENTS
sds arsocesdesasdeontibadeiaeebece I
YER ERE ia ae eee 1
Tees janmnsuanitabemognrcadinesebente 2
Statutes, Regulation, and Rule Involved .......................... 2
TO ds ccc bvnciinctensdcowennensosicoenonene 3
Se tsi acahnetbdmpnantncvennnnoentenensiae 3
Nal ne 4
inns snk dct cigsonionenneveiebananennhoces 7
Reasons for Granting the Writ 0.2222... eteeeeeeeeeeee 10
I. Does Section 703(a) (1) of Title VII, 42 U.S.C.
§ 2000e-2(a) (1), Which Prohibits Discrimina-
tion in Compensation, on the Basis of Sex, In-
corporate the “Equal Pay for Equal Work” and
“Separate Eestablishment” Standards of Sec-
tion 6(d) of the Equal Pay Act of 1963, 29
U.S.C. § 206(d), Which Concerns Sex Dis-
crimination in Compensation, So That a Plain- |
tiff Cannot Recover Under Title VII Unless
She Could Recover Under Section 6(d) of the
Equal Pay Act, or Is Title VII Broader Than
the Equal Pay Act So That Even If a Plain-
tiff’s Job Was Not Substantially Equal to the
Job of a Male Worker in the Same or a Dif-
ferent Eestablishment, She Should Still Be
Allowed to Prove That the Discrepancy in
Compensation Was Due to Sex Discrimi-
isi ti engiciersynsssusenasoviosednetbosesibelipiiaans 10
II. Are Geographically Separate Offices of the
Same Employer Separate Establishments for
the Purposes of Section 6(d)(1) of the Equal
Pay Act, 29 U.S.C. § 206(d) (1), Although the
| PREVIOUS PAGE WAS BLANK
IV
Same Functions Are Performed in Each Of-
fice, and Some Personnel in One Office Have
Identical Duties to Some Personnel in the
Ie NI Be cisiicinkhhcanisstienedabceaitlilieen cael eiiticantiaboncioe 20
III. Did the United States District Court for the
District of Minnesota, and the United States
Court of Appeals for the Eighth Circuit, Err
in Refusing to Allow Petitioner Her Costs
Under 42 U.S.C. § 2000e-5(k) ? .......................... 24
RUN os scbiitiasics <isinsniniasecideonidicesecinasnssindletecediéseetiniicgicsapesibees 27
Appendix A—Opinion, United States Court of Appeals,
SN TAIN paccd hig sccochceaindiconinianneiarecetiienteibedsdawtensbobeiins Al
Appendix B—Order Denying Rehearing .......................... A8
Appendix C—Opinion, United States District Court,
SATOOE Ce SION iii sesscade tcinicicdiascrcscccatocsnbcerecoeeanees AQ
Appendix D—Statutes, Regulation, and Rule In-
I seat cteh gtk dieaeeeiae oren cal Nad inlsathdacepectassochidekeneseivat A35
Table of Authorities
CASES
A.H. Phillips, Inc. v. Walling, 324 U.S. 490 (1945) -......... 23
Ammons v. Zia Company, 448 F.2d 117 (10th Cir.
ME Biased daacesasscinplacepesc alba reiaaabdlakaiatibaiatsiatg lke eimmbbaetacckiain 13
Brennan v. Goose Creek Consolidated Independent
School District, 519 F.2d 53 (5th Cir. 1975) .............. 21, 24
Gillbreath v. Daniel Funeral Home, Inc., 421 F.2d 504
I iy ar UE eeidstieircennhaciectannsipltnicrian Legittocaddhaihcccesmizness 23
Gunther v. County of Washington, (Gunther I), 602
F.2d 882 (9th Cir. 1979), rehearing denied, No. 76-
3448, 22 F.E.P. Cases 1650 (May 1, 1980) ............ 14, 15, 16,
18, 19, 20
Vv
Gunther v. County of Washington, (Gunther II), No.
76-3448, 22 F.E.P. Cases 1650 (9th Cir. May 1, 1980),
denying rehearing, 602 F.2d 882 (1979) .............. 14, 16, 17,
18, 19, 20
Howard v. Ward County, 418 F. Supp. 494 (D. N.D.
8 ES re OE SE Le ROO SORA eS RANSON eRe Oe 13
International Union of Electrical, Radio & Machine
Workers v. Westinghouse Electric Corporation, Nos.
79-1893, 79-1894, 23 F.E.P. Cases 588 (3d Cir. Aug. 1,
RES SEP NT I STE NA 14, 16, 17, 18, 19, 20
Johnson v. Nordstrom-Larpenteur Agency, Inc., No.
4-76-Civ. 325, 23 F.E.P. Cases 274 (D. Minn. Aug. 9,
REE PT RUS RE a ADEN oa ee 2, 22, 24
Johnson v. Nordstrom-Larpenteur Agency, Inc., 623
F.2d 1279 (8th Cir. June 13, 1980) ~.....000000. 9, 25
Marshall v. Dallas Independent School District, 605
a ON Mi RO ic oeecht ietenncomnsintoncsnaocrcbinnssiaceiieopen 21-22
Mitchell v. Gammill, 245 F.2d 207 (5th Cir. 1957) ........ 23
Molthan v. Temple University, 442 F. Supp. 448 (E.D.
SN MID: Si stiedetaesaniteintateasth ecdscdsig ceili leenlastnceliceginbauonadesaus 13
Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400
I IN I ici cn cctdeCedstoninenspnlintainiangheiics 26
New York v. Gaslight Club v. Carey, No. 79-192,
22 F.E.P. Cases 1642 (U.S. June 9, 1980) —......0000002..... 26
Orr v. Frank R. MacNeill & Son, Inc., 511 F.2d 166 (5th
Cir. 1975), cert. dented, 423 U.S. 8685 ...........................: 13
Parker v. Califano, 443 F. Supp. 789 (D. D.C. 1978),
aff'd without discussion of issue, 561 F.2d 320 (D.C.
GR BPI Bocca ccetaniintchccnepistbieniesliacaitatbieninictectaatiabaguvicleamainnes 25
Schultz v. Corning Glass Works, 319 F. Supp. 1161,
(W.D. N.Y. 1970), modified on different grounds sub
nom., Hodgson v. Corning Glass Works, 474 F.2d 226
(2d Cir. 1973), aff'd sub nom., Corning Glass Works
o. Brennan, 417 U.S. 168 (1074) ........6..-ci. nn. 22
vI
Wetzel v. Liberty Mutual Insurance Co., 449 F. Supp.
ae PO Fe. RUST Re enna! an 13, 20
STATUTES
Civil Rights Act of 1964 (Title VII)
42 U.S.C. § 2000e(b), (f) ............... ee eae 2,3
Ge See. ND, och ce 2,7,8
42 U.S.C. § 2000e-2(h) (Bennett Amendment) passim
42 U.S.C. § 2000e-5(f) (3), (g), (k) -............-.. 2, 4, 24, 25
Fair Labor Standards Act
oe i wi ip 8? | een Rav eenccnneeneeeemeeNrrS nn 2,3
29 U.S.C. § 206(d)(1) (Equal Pay Act) ............ passim
ae Ae SOE I icnsnncconihcesccecndencnsmmninehaaannlbaipnll 2, 23
Judicial Sections
Be es SEO E Sacccckimnnesecen 2
Se eee TE UR ‘cccetestincsacrcnnpiainhiiassaiedstcaiiadiipaimeiiciatiactals 2
Sr i Pa ir 3, 4
See ee OD icc a aecretnciteene 3,4
Be ee SI Ciketinsinnipetiha tcl eialbinednches er iiblateatiancad 3, 25
REGULATION
29 C.F.R. § 1604.8 (Equal Employment Opportunity
Commission) ............. <sasernanahaaiegbiialinagsensniihisteunbinadiicaatiia 3,19
MISCELLANEOUS
ABA Code of Professional Responsibility, Disciplinary
Rule 5-103 (Missouri Supreme Court Rule 4, Canon 5,
SES | SRE TE SR SCR aie sn ee 3, 25
eos SR | a one 15
SD SO A Re CD everest ikercceeemonsin 16
S. Rep. No. 95-311, 95th Cong., lst Sess. 7 (1977) ............ 16
In the Supreme Court of the United States
October Term, 1980
JOAN M. JOHNSON,
Petitioner,
VS.
NORDSTROM-LARPENTEUR AGENCY, INC.,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
To the Honorable, the Chief Justice and Associate Jus-
tices of the Supreme Court of the United States:
Joan M. Johnson, the petitioner herein, prays that a
writ of certiorari issue to review the Judgment of the
United States Court of Appeals for the Eighth Circuit en-
tered in the above-entitled cause on June 13, 1980, rehear-
ing denied, July 17, 1980.
OPINIONS BELOW
The opinion and judgment of the United States Court
of Appeals for the Eighth Circuit is reported at 623 F.2d
1279 (8th Cir. 1980), and is printed in Appendix A hereto,
infra, Al. The Order for the United States Court of
Appeals for the Eighth Circuit denying appellant’s petition
for rehearing and rejecting petitioner’s suggestions for re-
hearing en banc is printed in Appendix B hereto, infra,
2
page A8. The findings of fact and conclusions of law
and order for judgment of the United States District Court
is reported at 23 F.E.P. Cases 274 (August 9, 1979) and is
printed in Appendix C hereto, infra, page AQ.
JURISDICTION
The opinion and judgment of the United States Court
of Appeals for the Eighth Circuit (Appendix A, infra,
page Al) was entered on June 13, 1979. A timely petition
for rehearing and suggestions for rehearing en banc were
denied on July 17, 1980 (Appendix C, infra, page AQ).
The jurisdiction of the Supreme Court of the United States
is invoked pursuant to 28 U.S.C. § 1254(1).
STATUTES, REGULATION, AND RULE INVOLVED
The statutes, regulation, and rule involved in this
case, set forth verbatim in Appendix D, are as follows:
STATUTES
Civil Rights Act of 1964 (Title VII)
42 U.S.C. § 2000e(b), (f)
42 U.S.C. § 2000e-2 (a)
42 U.S.C. § 2000e-2(h) (Bennett Amendment)
42 U.S.C. § 2000e-5 (f) (3), (g), (k)
Fair Labor Standards Act
29 U.S.C, § 203(d), (e) (1)
29 U.S.C. § 206(d) (1) (Equal Pay Act)
29 U.S.C. § 213(a) (2)
Judicial Sections
28 U.S.C. § 1254(1)
28 U.S.C. § 1291
28 U.S.C. § 1331 (a)
28 U.S.C. § 1343 (a) (4)
28 U.S.C. § 1920
REGULATION
29 C.F.R. § 1604.8 (Equal Employment Opportunity Com-
mission )
MISCELLANEOUS
ABA Code of Professional Responsibility, Disciplinary
Rule 5-103 (Missouri Supreme Court Rule 4, Canon 5,
D.R. 5-103)
STATEMENT OF THE CASE
Nature of the Case
Petitioner Joan M. Johnson is a female citizen of the
United States residing in the State of Kansas. Petitioner
was an employee within the meaning of § 701(b) of Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e(b),
and within the meaning of section 3(e)(1) of the Fair
Labor Standards Act, 29 U.S.C. § 203(e) (1), during the
relevant time period. Respondent Nordstrom-Larpenteur
Agency, Inc. (the Agency) is a Delaware corporation with
its principal place of business in Minneapolis, Minnesota.
One of respondent’s branch offices is located in Mission,
Kansas (the Kansas City office). Respondent is an em-
ployer within the meaning of section 701(b) of Title VII
‘of the Civil Rights Act of 1964, 42 U.S.C. § 2000e(b), and
within the meaning of tne Fair Labor Standards Act, 29
U.S.C. § 203(b). Petitioner began working for respon-
dent in the Kansas City office on June 19, 1972 for $750.00
per month wages. Petitioner continued to work for re-
spondent until her termination on April 10, 1975. On
4
August 22, 1975, petitioner filed a timely sex discrimina-
tion charge against respondent with the Equal Employ-
ment Opportunity Commission (EEOC) alleging that re-
spondent discriminated against petitioner in wages, terms,
and conditions of employment for doing the same work
as the male Marketing Manager in the Kansas City office.
On April 27, 1976, petitioner was notified by the EEOC
of her right to sue respondent. Petitioner commenced an
action against respondent in the United States District
Court for the District of Minnesota on July 26, 1976.
Jurisdiction of the District Court was conferred by 42
U.S.C. § 2000e-5(f) (3), 28 U.S.C. §§ 1331, 1343(4), and
29 U.S.C. § 206(d).
Evidence
Petitioner began working for respondent as a sales
assistant. Her initial duties, however, involved assisting
the Marketing Manager, Roy Wolfe. Respondent is an in-
surance company, which both sells insurance policies to
clients and markets policies to insurance companies willing
to take the risk. From June 19, 1972 until November 1974,
Ms. Johnson worked alongside Mr. Wolfe performing es-
sentially parallel marketing operations, although, unlike
Mr. Wolfe, she made no out-of-town trips and did no
marketing in branch offices. During this time petitioner
also assisted a Mr. Higgins as a Sales Assistant. Petitioner
was instrumental in the development of an agency rela-
tionship between respondent and two insurance companies.
Joan Johnson aided Mr. Wolfe in placing new business and
negotiating new markets. Mr. Wolfe serviced accounts
outside the office, while Ms. Johnson serviced accounts in
the office. Ms. Johnson engaged in the same marketing
procedure as Mr. Wolfe regardless whether an out-of-town
or an in-town marketing question was involved. Occas-
ionally, Ms. Johnson and Mr. Wolfe would attempt to
5
market the same business. Both Ms. Johnson and Mr.
Wolfe worked on national accounts.
Gregory Galvin, who had qualifications similar to
those of Ms. Johnson, performed substantially the same
work as Ms. Johnson in the Minneapolis office. He re-
ceived a salary at the rate of $17,004 per year during
1973 and 1974.
In November 1974, Joan Johnson replaced Roy Wolfe
as Marketing Manager. Mr. Wolfe’s salary at that time
was $20,800.00 per year plus $600.00 per year expenses.
On November 6, 1974, Jim Higgins wrote to Glenn Pearson,
an executive in the Minneapolis office, that Ms. Johnson
would become the “marketing man.” Mr. Higgins recom-
mended a salary increase from Ms. Johnson’s current rate
of pay of $840.00 per month to $900.00 per month, although
he stated that $900.00 per month was too much money to
pay a “girl.” Nevertheless, he wrote that Ms. Johnson
could not be given the job, title, and responsibility of a
Marketing Manager without the pay. On November 18,
1974, Glenn Pearson wrote to Mr. Higgins stating that Ms.
Johnson should be informed that she would take over
marketing on a probationary basis, and that if her work
was satisfactory her salary would be increased. On No-
vember 25, 1974, Mr. Higgins wrote to Mr. Pearson in-
forming him that delaying the raise in salary was a ques-
tionable procedure, and proposing that respondent pay
Ms. Johnson $50.00 per month expenses in lieu of a raise.
Mr. Pearson replied, on December 2, 1974, that he did not
want to become involved with expense accounts for the
“marketing girls.” Instead, Mr. Pearson proposed that
Joan Johnson’s salary be increased to $900.00 per month
effective December 15, 1974.
After November 1, 1974, Mr. Williams, the new re-
gional marketing manager, took Ms. Johnson to five in-
6
surance companies, introducing her as Mr. Wolfe’s replace-
ment. Mr. Williams requested that Ms. Johnson be des-
ignated as an “M/R,” marketing representative, the same
title held by Gregory Galvin in Minneapolis. That classi-
fication request was denied by Mr. Williams’ superiors.
Ms. Johnson took over all the marketing functions of
the Kansas City office. She retained some of her duties
as a Sales assistant. She was to attend a training session
in Minneapolis in order to become more productive, but
this never occurred. Ms. Johnson was instructed that she
would not be handling inter-branch matters. She handled
inter-branch matters that continued to be referred to the
Kansas City office, however. Diane Teresi, of the Na-
tional Operations Department, while visiting the Kansas
City office made no criticism of petitioner’s work, made
no recommendations to Ms. Johnson, and did not suggest
any disciplinary measures be instituted against her. Ms.
Johnson’s repeated requests for assistance were denied.
Ms. Johnson was denied the opportunity to attend the na-
tional marketing summer meeting, because only men at-
tended this meeting. Ms. Johnson was not permitted to
move into Mr. Wolfe’s former office because it was thought
to be too large for a woman. The Insurance Company
of North America relied upon Joan Johnson’s pres-
ence with respondent in placing its business with the
Agency. Many of the dealings between the Great Ameri-
can Insurance Company and respondent were conducted
by Ms. Johnson. —
Ms. Johnson was terminated from her employment
with Nordstrom-Larpenteur Agency on April 10, 1975.
Purportedly, one of the reasons Ms. Johnson was termi-
nated was her backlog of work, which twice left respon-
dent open to potential losses as a result of failure to renew
coverage of lapsing policies. Mr. Wolfe was not dis-
7
ciplined in any way for a similar mistake that had ex-
posed the Agency to actual loss. Other employees were
not criticized or disciplined for similar errors. There
is no record in Joan Johnson’s personnel file that she was
ever disciplined nor was any disciplinary action ever in-
stituted against her.
After Ms. Johnson’s termination, Mr. Ed O’Malley was
hired as an account executive and began doing all the
marketing work previously performed by petitioner. Mr.
O’Malley and Ms. Johnson had similar employment back-
ground and qualifications. Mr. O’Malley received a salary
of $1,550.00 per month, an automobile allowance of $50.00
per month, and an expense allowance of $50.00 per month
for his participation in marketing functions in May 1975.
Rulings Below
Ms. Johnson filed suit in this action seeking back pay
and equitable relief from sex discrimination in compensa-
tion and other terms and conditions of her employment.
Petitioner claimed Nordstrom-Larpenteur discriminated
against her on the basis of sex by not paying her equal pay
for equal work in violation of the Equal Pay Act of 1963, the
Agency diccriminated against her in compensation for work
basically equal to that of male employees in violation of
Title VII of the Civil Rights Act of 1964, and the Agency
discriminated against her in terms and conditions of em-
ployment contrary to the mandate of Title VII. Petitioner
alleged that respondent denied her equal employment op-
portunities in promotion, and that she was discharged
solely due to her sex. Ms. Johnson prayed for all equitable
relief available pursuant to 42 U.S.C. § 2000e-(2) in Count
I of her Complaint. She claimed a willful violation of the
Equal Pay Act under Count II, and sought relief thereunder
including liquidated damages. She sought reasonable at-
torney’s fees and costs in both Counts. Respondent coun-
8
terclaimed for $1,922.00 allegedly owed to the Agency by
Ms. Johnson at the time of her termination.
The United States District Court for the District of
Minnesota, Judge Larson presiding, found that petitioner
was discriminated against by respondent regarding wages
and promotion due to her sex from November 1, 1974 to
April 10, 1975, in violation of section 703(a) of Title VII, 42
U.S.C, § 2000e-2(a). The court found that Ms. Johnson
was entitled to $4,442.00 in damages for this violation.
Johnson v. Nordstrom-Larpenteur Agency, Inc., No. 4-76-
Civ. 325, 23 F.E.P. Cases 274, 283 (D. Minn. Aug. 9, 1979)
(Conclusion of Law { 4). The court further found that
petitioner did not perform work substantially equal to the
work performed by Mr. Wolfe, that respondent had re-
butted adequately allegations that the position held by
Mr. O’Malley was substantially equal in skill, effort, and
responsibility under similar working conditions. There-—
fore, the court found that petitioner was not discriminated
against in violation of section 206(d) of the Equal Pay
Act. Id. at 284 (Conclusion of Law { 6).
The court further concluded that Ms. Johnson was
liable to Nordstrom-Larpenteur Agency in the amount of
$1,922.28 on respondent’s counterclaim. Id. (Conclusions
of Law {| 8). Since each party had prevailed on one of
its claims, the court ordered each party to bear its own costs
and attorney’s fees. Id. (Order for Judgment {| 5).
The district court refused to consider whether Ms.
Johnson’s salary was unlawfully lower than that of Mr.
Galvin, under either the Equal Pay Act or Title VII, finding
that Mr. Galvin and Ms. Johnson worked in separate
establishments. Id. at 279, 283 (Findings of Fact {J 23,
Conclusions of Law J 1). The district court also refused
to consider whether or not Title VII is broader than the
Equal Pay Act so that petitioner could prove that her low
9
wages resulted from sex discrimination even though no
male employee performed substantially equal work in Kan-
sas City, although Ms. Johnson alleged that Mr. Galvin
in Minneapolis did perform substantially equal work.
The United States Court of Appeals for the Eighth —
Circuit upheld the district court’s judgment in all but one
particular. Johnson v. Nordstrom-Larpenteur Agency, Inc.,
623 F.2d 1279 (8th Cir. June 13, 1980). By implication,
the Court of Appeals affirmed the district court’s ruling
that Galvin and Johnson worked in separate establish-
ments, and found the scope of Title VII to be the same
as the scope of the Equal Pay Act. The Court of Appeals
did hold that the district court erred in denying Ms. John-
son recovery of her attorney’s fees as part of the costs, Id.
at 1281-82. The Court of Appeals denied petitioner a re-
hearing and rejected her suggestions for a rehearing en
banc on July 17, 1980.
10
REASONS FOR GRANTING WRIT
I. Does Section 703(a)(1) of Title VII, 42 U.S.C.
§ 2000e-2(a)(1), Which Prohibits Discrimination in
Compensation on the Basis of Sex, Incorporate the
‘Equal Pay for Equal Work’’ and ‘‘Separate Estab-
lishment’’ Standards of Section 6(d) of the Equal Pay
Act of 1963, 29 U.S.C. § 206(d), Which Concerns Sex
Discrimination in Compensation, So That a Plaintiff
Cannot Recover Under Title VII Unless She Could
Recover Under Section 6(d) of the Equal Pay Act, or
Is Title VII Broader Than the Equal Pay Act, So That
Even If a Plaintiff’s Job Was Not Substantially Equal
to the Job of a Male Worker in the Same or a Different
Establishment, She Should Still Be Allowed to Prove
That the Discrepancy in Compensation Was Due to
Sex Discrimination?
Important reasons warrant that the United States Su-
preme Court decide the question presented, as it involves
the considerations set forth in Supreme Court Rule 17.
First, the Fifth, Eighth, and Tenth Circuit Courts of
Appeals have reached a different conclusion in considering
this question than the Third and Ninth Circuit Courts
of Appeals. Second, the question presented involves an
important question of federal law that should be settled
by the Supreme Court of the United States, Simply stated,
“t]he statutory issue here is whether Congress intended
to permit [respondent] to wi’ fully discriminate against
women in a way in which it could not discriminate against
blacks or whites, Jews or Gentiles, Protestants or Catholics,
Italians or Irishmen, or any other group protected by the
[Civil Rights] Act.” International Union of Electrical,
Radio & Machine Workers v. Westinghouse Electric Cor-
poration, Nos. 79-1893, 79-1894, 23 F.E.P. Cases 588, 590
(3d Cir. Aug. 1, 1980).
11
The United States District Court for the District of
Minnesota found that Joan Johnson’s duties did not involve
the same skill, effort, or responsibility as the duties of
Roy Wolfe or Ed O’Malley, and did not consider the ques-
tion whether Gregory Galvin and Ms. Johnson did basically
equal work. These inequivalencies prevented Ms, Johnson
from prevailing on her Equal Pay Act claim. Nonetheless,
Ms. Johnson was allowed recovery for back pay for the
time she was considered to be a replacement for Roy
Wolfe. See Johnson, 23 F.E.P. Cases 279 (Findings of
Fact {| 24). It is unclear whether the court permitted
recovery for the period November 1, 1974 to April 10,
1975 because it found that the company considered the
positions held by Joan Johnson and Roy Wolfe to be sub-
stantially equal, or because the company had demonstrated
that it had discriminated in paying wages against petitioner
on the basis of her sex. If the district court took the
former approach then it apparently found Title VII to
be coextensive with the Equal Pay Act, so that the acts
constituting the Title VII violation also constituted an
Equal Pay Act violation. The court specifically held that
respondent’s acts did not run afoul of the Equal Pay Act,
however. Id. If the district court meant that Title VII
is broader than the Equal Pay Act so that Ms. Johnson
could recover even though she had not proved a violation
of the Equal Pay Act, then Ms. Johnson should also have
recovered back pay from the beginning of her employment
with Nordstrom-Larpenteur Agency, as she proved that
the Agency believed that women should be paid less than
men whether or not men and women performed basically
similar work. See id. at 279-80 (Findings of Fact J 18).
Because the court specifically found that plaintiff was
considered by defendant to be a probationary replacement
for Roy Wolfe, id. at 279 (Findings of Fact {| 24), it
must have found a Title VII violation based on respon-
12
dent’s treatment of the two jobs as similar. The court’s
position makes sense only if the court found no Equal
Pay Act violation occurred as a result of acts that consti-
tuted a violation of Title VII because the two jobs were
not in fact substantially equal despite respondent’s treat-
ment of the jobs as equal. Because the court awarded
petitioner back pay consisting of the difference between
her salary and Mr. Wolfe’s salary, the court must have
assumed that the two positions involved basically equal
skills and responsibilities for purposes of Title VII.
Although there is no “same establishment” criterion in Title
VII the district court did not compare the work and pay of
Mr. Galvin of Minneapolis and Ms. Johnson to determine
whether the discrepancy in pay between the two was a
result of sex discrimination.
The United States Court of Appeals for the Eighth
Circuit, in affirming the district court’s decision on all
issues save that of attorney’s fees, approved without discus-
sion the apparent legal conclusion of the district court
that because of the Bennett Amendment, which protects
employers from a Title VII violation if the employer’s
conduct is “authorized” by the affirmative defenses of
the Equal Pay Act, a Title VII violation does not exist
unless the facts would also support a claim of violation
of the “equal pay for equal work” formula of the Equal
Pay Act. The Eighth Circuit also implicitly upheld the
district court’s refusal to compare the wages of Mr. Galvin
and Ms. Johnson to determine whether Title VII was vio-
lated by the discrepancy in pay.
Other courts have explicitly stated that the Bennett
Amendment limits sex-based wage discrimination claims
under Title VII to that conduct that would sustain finding
a violation of the Equal Pay Act as well. These courts
incorporate the “substantially equal” requirement for relief
13
under the Equal Pay Act into Title VII. See Orr v. Frank
R. MacNeill & Son, Inc., 511 F.2d 166, 171 (5th Cir. 1975),
cert. denied, 423 U.S. 865; Ammons v. Zia Company, 448
F.2d 117, 120 (10th Cir. 1971); Wetzel v. Liberty Mutual
Insurance Co., 449 F. Supp. 397, 400-01 (W.D. Pa. 1978)
(located in the Third Circuit). Cf. Howard v. Ward
County, 418 F, Supp. 494, 503, 505 (D. N.D. 1976) (located
in Eighth Circuit) (reasoning that Equal Pay Act standards
determine whether Title VII violation exists, but acknowl-
edging that Title VII prohibitions against sex-based wage
discrimination may be broader than Equal Pay Act pro-
hibitions). In Orr v. Frank R. MacNeill & Son, Inc., 511
F.2d 166, 171 (5th Civ. 1975), cert. denied, 423 U.S. 865, the
Fifth Circuit declared that “[t]o establish a case under
Title VII it must be proved that a wage differential was
based upon sex and that there was a performance of equal
work for unequal compensation.” Accord Ammons v. Zia
Compeny, 448 F.2d 117, 120 (10th Cir. 1971); Molthan
v. Temple University, 442 F. Supp. 448, 455 (E.D. Pa.
1977).
To these tribunals, no wage discrimination violation
of Title VII can be predicated upon facts demonstrating
that a female employee’s salary has been determined by
the employer on the basis of sex unless there is a male
employee doing substantially equal work for higher wages.
See, e.g., Wetzel v. Liberty Mutual Insurance Co., 449
F. Supp. 397, 400-01 (W.D. Pa. 1978) (finding “substantially
equal” jobs); Molthan v. Temple University, 442 F. Supp.
448, 450-51 & n.1 (E.D. Pa. 1977). In essence, this analysis
of Title VII prevents female workers from making claims
for relief even if their wages are set lower than the em-
ployer would compensate male workers due to the em-
ployer’s belief that women are inferior to men. Business
persons could discriminate in the payment of wages by
14
4 the simple expedient of hiring only persons of one sex
for a particular job.
The Third and Ninth Circuits have split sharply from
the approach taken by the Fifth, Eighth, and Tenth Cir-
cuit Courts of Appeals, and the decisions of the district
courts located in the Third and Eighth Circuits. Petitioner
respectfully submits that better reasoning is exhibited by
the Ninth Circuit in Gunther v. County of Washington,
602 F.2d 882 (9th Cir. 1979) (Gunther I), rehearing denied,
No. 76-3448, 22 F.E.P. Cases 1650 (May 1, 1980) (Gunther
II), and the Third Circuit in International Union of Elec-
trical, Radio & Machine Workers v. Westinghouse Electric
Corporation, Nos, 79-1893, 79-1894, 23 F.E.P. Cases 588
(3d Cir. Aug. 1, 1980).
In Gunther I, four former jail matrons sued the County
of Washington and certain law enforcement officials under
Title VII alleging, inter alia, that even if their work was
not substantially equal to that of male guards, some of
the discrepancy in salary could only be attributed to sex
discrimination. Consequently, plaintiffs could not recover
if Title VII were coextensive with the Equal Pay Act.
Gunther I, 602 F.2d at 886 n.4. The court found that
Title VII offered relief to plaintiffs despite the fact that
no male coworker performed substantially equal work.
Therefore, the court of appeals remanded the case to the
district court to afford plaintiffs the opportunity to prove
sex discrimination in compensation apart from an equal
pay claim. The Third Circuit Court of Appeals used the
same rationale in International Union, in which plaintiffs
alleged that defendant deliberately set wage rates lower
for those job classifications that were predominantly filled
by females than the wage rates for job classifications pre-
dominantly filled by males. The reasoning of the courts
in Gunther I, Gunther II, and International Union, should
15
persuade the Supreme Court that Title VII is broader
in scope than the Equal Pay Act.
Title VII contains broad language. Gunther I, 602 F.2d
at 889. The Equal Pay Act is silent regarding sex discrim-
ination in employment other than wage discrimination.
Title VII, on the other hand, prohibits sexual discrimination
in hiring, promotion, and terms and conditions of employ-
ment, as well as in compensation. Title VII proscribes con-
duct that adversely affects a person’s status as an employee
on the basis of sex. A great many discriminatory practices,
including low wages based merely on the sex of the worker,
are subsumed by the phrase “adversely affects.” Under
Title VII a court can compare the wages of workers in
separate establishments, while under the Equal Pay Act,
the court can only compare the wages of workers in the
same establishment.
While the Bennett Amendment can be construed to
incorporate the Equal Pay Act’s equal work formula into
Title VII, it more properly should be interpreted as incor-
porating only the four affirmative defenses of the Equal
Pay Act into Title VII. The legislative history of the
Bennett Amendment supports the proposition that the
Equal Pay Act is not coextensive with Title VII. See
Gunther I, 602 F.2d at 889. True, while Title VII was
being considered on the floor of the Senate, Senator Ben-
nett and Senator Humphrey both seemed to think the
Amendment’s purpose was “to provide that in the event
of conflicts, the provisions of the Equal Pay Act shall
not be nullified.” 110 Cong. Rec. 13647 (1964). Only
seconds later, however, Senator Dirksen recognized the
broader scope of Title VII when he stated: The Fair
Labor Standards Act carries out certain exceptions.
All that the pending amendment does is _ recognize
those exceptions, that are carried in the basic act.”
16
Id. (emphasis added). Neither Senator Bennett nor Sena-
tor Humphrey objected to this declaration. See Gunther
I, 602 F.2d at 889-90 & n.8; International Union, 23 F.E.P.
Cases at 594-95. Moreover, Senator Humphrey’s comments
were found by the Ninth Circuit to reflect an erroneous
interpretation of the Equal Pay Act. This determination
was not refuted by the Supreme Court when it had an
opportunity to do so. Manhart v. City of Los Angeles,
553 F.2d 581, 590 (9th Cir. 1976), aff’d in relevant part
and vacated & remanded on other grounds, 435 U.S. 702
(1978). One year after the Civil Rights Act was passed,
Senator Bennett inserted a memorandum in the Congres-
sional Record. This memorandum stated that the Bennett
Amendment meant a Title VII sex discrimination claim
could not be predicated upon practices that did not also
violate the Equal Pay Act. 111 Cong. Rec. 13359 (1965).
This statement is entitled to no consideration in determin-
ing congressional intent at the time the provision was
enacted. Gunther II, 22 F.E.P. Cases at 1652; International
Union, 23 F.E.P. Cases at 595. If later pronouncements
are to be given weight, equal deference is due the 1977
Senate Report on amendments to Title VII, which stated:
“It is the committee’s opinion that [an] application of
the Bennett amendment which assumes that the provision
insulates from Title VII all compensation and fringe benefit
programs that do not also violate the Equal Pay Act is
not correct.” S. Rep. No. 95-311, 95th Cong., Ist Sess.
7 (1977). To the potential argument that Congress did
not want the courts to become involved in job evaluation
trials for women, it is sufficient to respond that Congress
was willing to countenance job evaluation trials for racial,
religious, and national origin discrimination. International
Union, 23 F.E.P. Cases at 593.
The fact that the first sentence of section 703(h) of
Title VII contains three of the defenses authorized by
17
the Equal Pay Act does not render the Bennett Amendment
meaningless if it is construed to incorporate only the Equal
Pay Act defenses into Title VII. International Union, 23
F.E.P. Cases at 593; Gunther II, 22 F.E.P. Cases at 1652-
53. The incorporation of the additional defense allowing
discrepancies in wages based “on any other factor other
than sex” establishes that the burden is on the employer
to prove its conduct falls within the purview of one of
the four defenses. Gunther II, 22 F.E.P. Cases 1652-53.
The differences between Title VII and the Equal Pay Act
should not be ignored. Moreover, if a statute contains a
specific provision, the omission of that provision from
another statute on the same topic indicates the legis-
lature did not intend that provision to be considered when
it enacted the latter statute. International Union, 23 F.E.P.
Cases at 593.
The remedial character of Title VII lends credence to
the suggestion that it should not be limited to the terms
of the Equal Pay Act in the absence of clear congressional
intent to that effect. Indeed, it is difficult to perceive the
purpose of enacting two statutes prohibiting wage discrim-
ination on the basis of sex if both statutes proscribe the same
conduct. Title VII was intended to supplement rather than
supplant existing legislation prohibiting sex discrimination
against women. See Laffey v. Northwest Airlines, Inc.,
567 F.2d 429, 445-46 (D.C. Cir. 1976), cert. denied, 434 U.S.
1086 (1978).
As the Courts of Appeals for the Third and Ninth
Circuits noted, to limit the prohibitions against sex discrim-
ination in wages in Title VII to those practices condemned
in the Equal Pay Act would lead to absurd results. Under
the Equal Pay Act, an employer can pay a female worker
substantially less than he would pay a male worker for
the same work, or decrease the wages of women solely
18
on account of their sex, all for the lack of a male counter-
part performing virtually identical work in the same estab-
lishment. If Nordstrom-Larpenteur paid one type of em-
ployee less than another type because the first group was
composed mostly of Catholics and the latter of Protestants,
it would clearly be in violation of Title VIT. Title VII
and the Bennett Amendment should not be construed to
permit like wage disparity because the majurity of persons
employed in one group are women, International Union,
23 F.E.P. Cases at 592; Gunther I, 602 F.2d at 890 n.9.
Acknowledging the broad scope of Title VII will not
lead to results inconsistent with those obtained pursuant
to the Equal Pay Act. “When plaintiffs raise a claim
under Title VII of discriminatory compensation in the
absence of an allegation that they perform substantially
equal work, no conflict with the Equal Pay Act arises
because the Equal Pay Act is inapplicable.” Gunther I,
602 F.2d at 891.
The very language of the Bennett Amendment, which
provides that wage differentials are permissible if ‘“au-
thorized” under the Equal Pay Act, implies that the Equal
Pay Act defenses are permitted or endorsed, It does not
suggest that something is not prohibited. International
Union, 23 F.E.P. Cases at 593; Gunther II, 22 F.E.P. Cases
at 1652. Had Congress meant that Title VII is violated
only when the relevant facts also comprise an Equal Pay
Act violation, it could have said precisely that. Gunther
II, 22 F.E.P. Cases at 1653. After all, the Equal Pay Act
had only been passed the previous year. The members
of Congress presumably remembered how to draft a stat-
ute containing an “equal pay-equal work” formula.
Finally, the governmental agency charged with en-
forcement of the Civil Rights Act, the Equal Employment
Opportunity Commission, makes it quite clear that it con-
19
strues the Bennett Amendment to mean that Title VII is
not limited to employees covered by the Equal Pay Act.
29 C.F.R. § 1604.8(a) (1979). The EEOC decided a num-
ber of cases prior to 1972 that found Title VII governed
situations in which wage rates for jobs traditionally dom-
inated by women were lower than the rates for jobs pre-
dominantly held by men. The EEOC’s position is entitled
to great deference. International Union, 23 F.E.P. Cases
at 597.
The confusion caused by the Bennett Amendment
demonstrates that a decision from the Supreme Court of
the United States is urgently needed to resolve the split
in the courts of appeals over the question of the scope of
Title VII. The considerations that led to the courts’ de-
cisions in Gunther and International Union also mandate
that the Supreme Court pass upon this important question
of federal law. Basic and fundamental rights are at
stake. The Congress of the United States has evinced its
intention through the Equal Pay Act and Title VII that
women’s wages not be set solely on the basis of their sex.
These statutes were designed to remedy the wrongs done
to women economically and socially because of the mis-
taken notion of women’s inferiority in the work force. If
the dreams of Congress for a society in which people are
compensated according to their individual worth instead
of stereotyped notions about their sex are to be fulfilled,
it is necessary that this Court declare that Title VII
should be given the scope intended by Congress. It is para-
mount that the Supreme Court decide the crucial federal
question whether Title VII is broader in scope than the
Equal Pay Act, so that a woman can receive redress if her
wages are set because of her sex, regardless of whether a
male in the establishment performs “substantially equal”
work.
20
The reasoning in the Gunther cases and International
Union, and the argument above that Title VII is broader in
scope than the Equal Pay Act, buttress the proposition
that the district court should have analyzed the wages
of Mr. Galvin and Ms. Johnson to learn whether the dis-
crepancy in their wages was due to sex discrimination.
There is no separate establishment problem in Title VII
actions to prevent a comparison of the wages of these em-
ployees. Wetzel v. Liberty Mutual Insurance Company, 449
F. Supp. 397, 407 (W.D. Pa. 1978). The failure of the
district court to make this comparison denies an important
federal right, and therefore presents a substantial federal
question that should be decided by the Supreme Court.
II. Are Geographically Separate Offices of the
Same Employer Separate Establishments for the Pur-
poses of Section 6(d) of the Equal Pay Act, 29 U.S.C.
§ 206(d)(1), Although the Same Functions Are Per-
formed in Each Office, and Some Personnel in One
Office Have Identical Duties to Some Personnel in. the
Other Office?
In Johnson, the district court refused to consider
whether or not Joan Johnson was denied equal pay for
equal work in violation of the Equal Pay Act when her
salary was compared with Mr. Galvin of the Minneapolis
office. The court deemed the Minneapolis and Kansas
City offices to be separate establishments within the mean-
ing of section 206(d) (1) of the Fair Labor Standards Act.
Therefore, the court reasoned the two salaries could not be
compared to determine whether the Agency participated
in discriminatory wage practices on the basis of sex in
violation of the Equal Pay Act.
Petitioner respectfully submits that the question of
what constitutes a “separate establishment” for the pur-
poses of the Equal Pay Act is an important question of
21
federal law that has not been, but should be, settled by
the Supreme Court. If an employer can discriminate in
wages on the basis of sex merely by separating male from
female employees, the broad remedial purposes of the
Equal Pay Act will not be served. The congressional pur-
pose to alleviate the deleterious social and economic im-
pact on the country resulting from discrimination against
women in pay will be denied. When Congress passed the
Equal Pay Act, it could not have intended that the entire
thrust of the Act could be thwarted by an employer simply
by segregating employees according to sex. It is crucial
that the Supreme Court decide this issue, and bring to
a halt the pernicious attempts to hinder congressional ef-
forts to eliminate sex discrimination in the payment of
wages.
The case law on the subject of the definition of the
term “separate establishment” for the purpose of section
6(d) of the Equal Pay Act is sparse. Only a few cases
have been found that consider the question. Petitioner
submits that these cases interpret the term “separate estab-
lishment” properly.
In Brennan v. Goose Creek Consolidated Independent
School District, 519 F.2d 53 (5th Cir. 1975), the court found
that defendant school district had discriminated against
female janitors by paying them less than male janitors.
The court found that the several schools in the district con-
stituted a single establishment even though female and
male janitors worked at different physical locations. Cru-
cial to the court’s decision was the fact that a central
administration hired the janitors, determined their wages,
assigned them to a certain building, and controlled, to a
great extent, the work schedule and daily duties. The
factor. of central control over custodial service ni all
buildings also led the court in Marshall v. Dallas Inde-
22
pendent School District, 605 F.2d 191 (5th Cir. 1979), to
find that all schools in a school district constituted a single
establishment. In Schultz v. Corning Glass Works, 319
F. Supp. 1161, 1163-64 (W.D. N.Y. 1970), modified on dif-
ferent grounds sub nom., Hodgson v, Corning Glass Works,
474 F.2d 226 (2d Cir. 1973), aff'd sub nom., Corning Glass
Works v. Brennan, 417 U.S. 188 (1974), the district court
found that two physically distinct plants made up a single
establishment. The two plants shared an office building
and used a central employment office, and employees
transferred between the two plants, but each plant was a
separate manufacturing unit, had its own management,
and had a separate payroll department.
In the Johnson case, the same central office determined
whether or not a prospective employee should be hired or
a current employee should be fired. Mr. Pearson from
the central office came to the Kansas City office to con-
sult Mr. Higgins about the termination of petitioner.
Johnson, 23 F.E.P. Cases at 281. The central office de-
termined wages and areas of employee responsibility.
Witness the exchange of letters between Mr. Higgins and
Mr. Pearson concerning the promotion of Joan Johnson to
Roy Wolfe’s position. Identical functions were per-
formed in both offices, although the Minneapolis office, as
the central office, presumably carried on other activities
as well. Mr. Galvin and Ms. Johnson performed substan-
tially equal work. Employees were transferred between
and among offices indiscriminately. (For example, Mr.
Wolfe was transferred to the Dallas office.) Certainly,
the two offices were more functionally and economically in-
tegrated and subject to more central authority than the two
plants in Corning Glass Works. The two offices should
be considered a single establishment so that Ms. Johnson
can prove that she did not receive equal pay for equal work
23
in violation of the Equal Pay Act because Mr, Galvin’s
salary was considerably larger than her salary.
Decisions interpreting other sections of the Fair Labor
Standards Act support the proposition that a single estab-
lishment may cover several different physical locations.
Under section 13(a) (2), 29 U.S.C. § 213(a) (2), concerning
the exemption of retail or service establishments from com-
pliance with the Act’s minimum wage and overtime pro-
visions, a funeral home and a mutual assessment burial
insurance company were held to be a single establishment
because of the indiscriminate interchange of employees,
identical board of directors, and use of the same premises.
Gillbreath v. Daniel Funeral Home, Inc., 421 F.2d 504 (8th
Cir. 1970). A business consisting of several food dispensing
departments operated in two separate buildings was found
to be a single establishment for purposes of section 13(a)
(2), because it had central management and supervision.
Mitchell v. Gammill, 245 F.2d 207 (5th Cir. 1957).
Again, the factor of central control over all the opera-
tions of a business determines whether physically separate
offices belong to a single establishment. The Kansas City
and Minneapolis offices of the Nordstrom-Larpenteur
Agency, are controlled in all relevant ways by a central
authority. The Branch Manager, Mr. Higgins, reported and
was subservient to an executive in the head office. Em-
ployees were transferred among different offices. The
Minneapolis and Kansas City offices were functionally and
economically related.
To hold that the branch offices constitute a single es-
tablishment under section 6(d) of the Equal Pay Act would
not run contrary to A.H. Phillips, Inc. v. Walling, 324 U.S.
490, 493 (1945). That opinion, construing section 13(a) (2),
emphasized that
24
{t]he Fair Labor Standards Act was designed “to ex-
tend the frontiers of social progress” by “insuring to
all our able-bodied working men and women a fair
day’s pay for a fair day’s work.” Message of the Presi-
dent to Congress, May 24, 1934. Any exemption from
such humanitarian and remedial legislation must there-
fore be narrowly construed, giving due regard to the
plain statutory language of Congress. To extend an
exemption to those plainly and unmistakably within
its terms and spirit is to abuse the interpretative pro-
cess and to frustrate the announced will of the people.
To confer upon respondent the ability to discriminate
against women by separating them from offices where men
do “substantially equal’ work, would “abuse the inter-
pretative process and ... frustrate the announced will of
the people.” The Equal Pay Act was enacted so that
women would receive equal pay for equal work. That pur-
pose cannot be fulfilled unless this remedial statute is con-
strued to eliminate sex discrimination loopholes for em-
ployers. “A narrow construction of the word ‘establish-
ment,’ as used in section 6(d) (1), might make proof of dis-
crimination difficult, thus frustrating congressional intent.”
Brennan v. Goose Creek Consolidated Independent School
District, 519 F.2d 53, 57 (5th Cir. 1975).
III. Did the United States District Court for the
District of Minnesota, and the United States Court
of Appeals for the Eighth Circuit, Err in Refusing to
Allow Petitioner Her Costs Under 42 U.S.C. § 2000e-5
(k)?
The district court refused to award Ms. Johnson her
costs of suit despite the fact that she prevailed on a portion
of her Title VII claim, because respondent prevailed on its
counterclaim. See Johnson, 23 F.E.P. Cases at 284 (Order
for Judgment {| 5). The court of appeals affirmed this
25
order. Johnson, 623 F.2d at 1282 (finding no abuse of dis-
cretion). Petitioner respectfully submits that the district
court’s order disallowing costs amounted to an abuse of
discretion, and was contrary to the purpose of the statute,
presenting an important federal question to the Supreme
Court.
In the first place, the district court should have
awarded those costs recoverable under 28 U.S.C. § 1920.
Furthermore, petitioner is entitled to recover expenses
incurred by her counsel during the prosecution of this ac-
tion. There is “no sound reason in law or in policy why
attorneys’ fees should be narrowly interpreted to exclude
counsel’s reasonable out-of-pocket expenses, and the major-
ity of the courts have approved the award of such out-of-
pocket expenses” as part of awardable costs under 42
U.S.C. § 2000e-5(k). Parker v. Califano, 443 F. Supp. 789,
794 (D. D.C. 1978), aff'd without discussion of issue, 561
F.2d 320 (D.C. Cir. 1977).
The statute, 42 U.S.C. § 2000e-5(k), permits an award
of attorney’s fees as part of the costs. Semantically speak-
ing, this language would seem to require that expenses be
awarded if attorney’s fees are awarded, because a pre-
vailing party is allowed costs of which attorney’s fees are
only a part.
It is absurd to deny petitioner her costs if the goal
of Title VII is to be accomplished. Claimants under Title
VII frequently receive small back pay awards. Plaintiff's
back pay award will be subsumed by the costs that the
attorney must charge to her under the disciplinary rules.
See ABA Code of Professional Responsibility D.R. 5-103
(Missouri Supreme Court Rule 4, Canon 5, D.R. 5-103).
Civil rights plaintiffs will have no incentive to bring cases
to enforce the legislative policy to eliminate racial, re-
ligious, ethnic or sex discrimination in the wages, terms,
26
and conditions of employment unless they know they will
be awarded costs if they prevail. If costs are not awarded,
there will be a disincentive to bring Title VII actions. Few
claimants are wealthy enough to bring a Title VII action
for vindication of their rights when there is a strong pos-
sibility that they will lose money on the deal.
The broad remedial purpose of Title VII will be frus-
trated unless petitioner is awarded her costs for this suit.
The public interest favors bringing Title VII actions to
wipe out the invidious discrimination in the marketplace
that women have experienced in the past. See generally
New York Gaslight Club v. Carey, No. 79-192, 22 F.E.P.
Cases 1642 (U.S. June 9, 1980). This public interest will
suffer unless women are encouraged by every reasonable
incentive to bring meritorious lawsuits against recalcitrant
employers.
When the Civil Rights Act of 1964 was passed, it
was evident that enforcement would prove difficult
and that the Nation would have to rely in part upon
private litigation as a means of securing broad com-
pliance with the law.
Congress therefore enacted the provision for counsel
fees - not simply to penalize litigants who deliberately
advance arguments they know to be untenable but,
more broadly, to encourage individuals injured by ra-
cial discrimination to seek judicial relief under Title
II.
Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400,
401-02 (1968) (per curiam). Petitioner submits that these
same considerations should prevail to compel a district
court to award costs in a sex discrimination suit under
Title VII unless special circumstances, not here involved,
exist.
27
CONCLUSION
In summation, petitioner Joan Johnson respectfully
requests that the Supreme Court of the United States
grant this Petition for Writ of Certiorari to the United
States Court of Appeals for the Eighth Circuit. The courts
of appeals differ in their opinions about whether a litigant
claiming sex discrimination in wages may obtain relief
under Title VII although she is not entitled to relief under
the Equal Pay Act. Further, the question of the scope
of Title VII presents an important question of federal
law that has not been, but should be, resolved by this
Court.
Moreover, the question of what constitutes the “same
establishment” under the Equal Pay Act so that the work
of two employees may be compared to determine whether
they are paid equal pay for substantially equal work pre-
sents an important question of federal law that has not
been, but should be, decided by this Court, Finally, the
issue of whether or not a district court should award
costs to a prevailing plaintiff in Title VII actions involves an
important issue of federal law that should be, but has not
been, ruled on by this Court.
For the foregoing reasons, this Petition for Writ of
Certiorari to the United States Court of Appeals for the
Eighth Circuit should be granted.
Respectfully submitted,
WILLIAM H. PICKETT
(Counsel of Record)
S. JILL WEINLOOD
WituiaM H. Pickett, P.C.
1413 Traders Bank Building
1125 Grand Avenue
Kansas City, Missouri 64106
(816) 221-4343
Attorneys for Petitioner
Al
APPENDIX
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 79-1770
Joan M. Johnson,
Plaintiff-Appellant,
V.
Nordstrom-Larpenteur Agency, Inc.,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Minnesota.
Submitted: March 13, 1980
Filed: June 13, 1980
Before HENLEY and McMILLIAN, Circuit Judges, and
HARPER, * Senior District Judge.
HARPER, Senior District Judge.
Appellant, Joan M. Johnson, brought suit against ap-
pellee, Nordstrom-Larpenteur Agency, Inc., in two counts,
Count I alleging discrimination under Title VII, 1964 Civil
Rights Act, as amended 42 U.S.C. §§2000e et seq., and
Count II alleging discrimination under the Equal Pay Act
"The Honorable Roy W. Harper, Senior United States Dis-
trict Judge for the Eastern District of Missouri, sitting by desig-
nation.
A2
of 1963, 29 U.S.C. § 206 (d). Appellee counterclaimed
for monies it alleged was owed to it by the appellant.
At trial appellant amended her complaint alleging retalia-
tory discharge under the Fair Labor Standards Act, 29
U.S.C. § 215(a) (2) and (3).
At the close of trial, the district court dismissed appel-
lant’s allegation of retaliatory discharge under 29 U.S.C.
§ 215 (a) (2) and (3). The court held for appellant under
Count I for discrimination against her with respect to
pay because of her sex in violation of 42 U.S.C. § 2000e-
2(a) for only the period from November 1, 1974, to April
10, 1975, and awarded her $4,422.00 as damages, against
appellant under Count I in all other respects, against appel-
lant on Count II, and for appellee on its counterclaim
for the sum of $1,922.68.
A timely appeal was made by appellant, raising four
issues: (1) The district court erred in failing to find
a violation of the Equal Pay Act, (2) the court erred
in failing to find that appellant was constructively dis-
charged from her employment, (3) the court erred in
failing to find a violation under Title VII of the Civil
Rights Act of 1964 from June 19, 1972, until November
1, 1974, and (4) the court erred in denying appellant rea-
sonable attorney’s fees and costs as a prevailing party.
Appellant, a white female, began working in the Kan-
sas City office of appellee on June 19, 1972, as a sales
assistant. Appellee is an insurance agency that has two
primary functions, selling insurance policies to clients and
marketing the policies to insurance companies willing to
underwrite the risk.
Although appellant’s job title was that of sales as-
sistant, her initial duties consisted mainly of assisting the
marketing manager, Roy Wolfe. In February of 1973 ap-
pellant was reassigned to the sales area.
A3
In November of 1974 Wolfe moved to Dallas as part
of a company-wide restructuring of the marketing function.
When Wolfe left a substantial part of his job was also
transferred out of the Kansas City office.
Appellant was promoted, on a probationary basis, to
marketing manager of the Kansas City office. Her salary
was increased from $840.00 per month to $900.00, although
George Higgins, the Kansas City branch manager, wrote
a letter to Glenn Pearson, an executive of appellee, ques-
tioning whether “a girl” should be paid that much. Wolfe
had been paid an annual salary of $20,800.00 plus $600.00
for expenses. Appellant was paid an annual salary of
$10,800.00 with no expense account.
Appellant fell behind in processing her paperwork
and because of the backlog on at least two occasions left
appellee vulnerable to potential losses by failing to renew
coverage of lapsing policies.
Regional marketing manager, Raymond Williams,
visited the Kansas City office on March 27, 1975, to review
appellant’s job problems. He concluded that appellant’s
inability to organize had caused a serious backlog of paper-
work and the resulting problems. Williams and Higgins
agreed that appellant had not demonstrated the capability
to handle the marketing manager job during her proba-
tionary period and that she would have to be terminated.
Branch manager Higgins terminated appellant on April
10, 1975. Many of appellant’s responsibilities were then
absorbed by the sales assistants at the Kansas City office.
Ed O’Malley was hired on or about May 16, 1975,
as an account executive. An account executive works
in the sales area, with primary responsibility for servicing
existing accounts.
Appellee’s Kansas City office had approximately
ninety percent of its apartment house coverage placed
A4
with the New Providence Corporation, when in late 1975
or early 1976 the New Providence Corporation announced
that it would no longer write policies for that line of
business. O’Malley was given the primary responsibility
for finding other insurance companies with which to place
these policies.
Appellant wishes this court to determine that the dis-
trict court erred by failing to find that appellant’s actual
job requirements and performance were equal to O’Mal-
ley’s job requirements and performance. The district court
specifically found that the two jobs did not require sub-
stantially equal levels of skill, effort and responsibility
under similar working conditions. This finding of fact
may only be set aside if it is “clearly erroneous,’ Rule
52(a), Fed. R. Civ. P. “[A] finding of fact is only deemed
clearly erroneous if it is not supported by substantial evi-
dence, if it proceeds from an erroneous conception of the
applicable law, or if on a consideration of the entire record
the appellate court is left with the definite and firm convic-
tion that a mistake has been made.” Southern Illinois
Stone Co. v. Universal Engineering, 592 F.2d 446, 451 (8th
Cir. 1979). Upon a review of the record we cannot say
that the district court’s finding is clearly erroneous. Since
the district court found that the two jobs did not require
equal skill, effort and responsibility, the court correctly
determined that appellant had not proved that she was
discriminated against within the meaning of § 206(d)
of the Equal Pay Act of 1963.
Appellant raises the question of constructive discharge
for the first time on appeal. The doctrine of constructive
discharge is applied when an employer deliberately ren-
ders an employee’s working conditions intolerable, thus
forcing him to quit his job. Muller v. United States Steel
Corp., 509 F.2d 923, 929 (10th Cir.), cert. denied, 423 U.S.
825 (1975). Appellee admits to terminating appellant’s
AS
employment, which would seem to make resort to the doc-
trine of constructive discharge unnecessary. However,
there is no need for the court to determine this issue be-
cause it is our policy to refuse to consider a question that
was never presented to, or passed upon by the trial court.
Ludwig v. Marion Laboratories, Inc., 465 F.2d 114, 117
(8th Cir. 1972).
The third issue raised on appeal is the district court’s
failing to find that appellant was discriminated against
from June 19, 1972, until November 1, 1974, under Title VII
of the Civil Rights Act of 1964. Appellant argues that
during this period her job duties were substantially similar
to Wolfe’s and that they actually performed the same
work. The district court found that between June of 1972
and November of 1974 the responsibilities imposed upon
and performed by appellant were substantially less than
those of Wolfe and that he was paid a greater salary be-
cause his experience, training, education and job respon-
sibilities far exceeded hers. The court’s findings concern-
ing the substantial disparity of job qualifications and re-
sponsibilities are not clearly erroneous.
The final point on appeal is that the court erred in
denying appellant her reasonable attorney’s fees and costs
since she had prevailed under Count I. Section 2000e-5(k)
provides that “in any action or proceeding under this title
[42 U.S.C. §§ 2000e et seq.] the court, in its discretion,
may allow the prevailing party * * * a reasonable attorney’s
fee as part of the costs * * *.” The district court ordered
each party to bear its own costs, attorney’s fees and dis-
bursements, since each had prevailed on one or more of
its claims. Attorney’s fees are routinely awarded to a
prevailing plaintiff in civil rights cases unless special cir-
cumstances render such an award unjust, Mosby v. Webster
College, 563 F.2d 901, 905 (8th Cir. 1977). Appellee’s suc-
A6
cess on its counterclaim for $1,922.68, representing various
amounts that appellant owed to her former employer,
does not constitute such special circumstances as to ren-
der an award of attorney’s fees unjust.
In redetermining the amount of fees to which appel-
lant’s attorney is entitled, the district court may, on re-
mand, taken into account appellant’s limited success in-
cluding the fact that she recovered on only Count I, and
on that count for only five and one-third months out of a
period of thirty-three and two-thirds months. In Re:
Southwestern Bell Telephone Co., 602 F.2d 845, 850 n.9 (8th
Cir. 1979); Equal Employment Opportunity v. Safeway
Stores, 597 F.2d 251, 253 (10th Cir. 1979); Hughes v. Repko,
578 F.2d 483, 487 (3d Cir. 1978); Muscare v. Quinn, 614
F.2d 577, 581 (7th Cir. 1980). But as this court noted in
Brown v. Bathke, 588 F.2d 634 (8th Cir. 1978), the relief
which appellant obtained is only one factor to be con-
sidered. Id. at 638. ‘‘Attorney’s fees for a claim which is
reasonably calculated to advance a client’s interests should
not * * * be denied solely because that claim did not
provide the precise basis for the relief granted.” Id. at
637. See also Stanford Daily v. Zurcher, 64 F.R.D. 680
(N.D. Cal, 1974), aff'd, 550 F.2d 464 (9th Cir. 1977), rev’d
on other grounds, 434 U.S, 816 (1978).
Where each of the parties has prevailed on one or
more of its claims, defense or counterclaims, the district
court has broad discretion in taxing costs, Cornwell Quality
Tools Co. v. C.T.S. Company, 446 F.2d 825, 833 (9th Cir.),
cert. denied, 404 U.S. 1049 (1972). We cannot say that
the district court abused its discretion in ordering each
party to bear its own costs.
Accordingly, we affirm the district court’s findings,
conclusions and judgment in respect to appellant’s claims
of sex discrimination. We reverse the court’s denial of
AT
‘4
attorney’s fees and remand for a determination of attor-
ney’s fees consistent with this opinion.
We affirm in part, reverse in part, and remand for
further proceedings consistent with this opinion.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH
CIRCUIT.
A8
APPENDIX B
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 79-1770
September Term, 1979
Joan M. Johnson,
Appellant,
vs.
Nordstrom-Larpenteur Agency, Inc.,
Appellee.
Appeal from the United States District Court
for the District of Minnesota
The Court having considered appellant’s petition for
rehearing and suggestions for rehearing en banc, and being
now fully advised in the premises, hereby orders the peti-
tion for rehearing and suggestions for rehearing en banc
denied.
July 17, 1980
AQ
APPENDIX C
(August 13, 1979)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
FOURTH DIVISION
No. 4-76-Civil 325
Joan M. Johnson,
Plaintiff,
vs.
Nordstrom-Larpenteur Agency, Inc.,
Defendant.
FINDINGS OF FACT, CONCLUSIONS OF LAW,
AND ORDER FOR JUDGMENT
This case was tried to the Court for a total of eight
_days, February 5-9 and March 27-29, 1979. The plaintiff
was represented by attorneys William H. Pickett and
Sandra Midkiff of Kansas City, Missouri. The defendant
was represented by attorneys David A. Ranheim and Jay
L. Bennett of Minneapolis, Minnesota. Based upon the evi-
dence adduced at trial and upon the files, records and pro-
ceedings herein, the Court makes the following Findings
of Fact, Conclusions of Law and Order for Judgment.
FINDINGS OF FACT
JURISDICTION
1. Plaintiff Joan M. Johnson is a white female United
States citizen and a resident of the State of Kansas.
Al0
2. Defendant Nordstrom-Larpenteur Agency, Inc., is
a Delaw ~e corporation with its principal place of business
in Minneapolis, Minnesota. Defendant operates on a na-
tionwide basis through branch offices, one of which is
located in Mission, Kansas. The defendant is an employer
within the meaning of § 701(b) of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e(b), as amended, and
within the meaning of the Equal Pay Act of 1963, 29 U.S.C.
§ 206(d).
3. Plaintiff was employed by defendant on June 19,
1972, to work in the Mission, Kansas, office, which office
is also known as the Kansas City office. Plaintiff worked
continuously for defendant in the Kansas City office until
April 10, 1975, when she was terminated by defendant.
4. On August 22, 1975, a timely sex discrimination
charge against defendant was filed by plaintiff with the
Equal Employment Opportunity Commission (EEOC).
(Pl. Ex. 76). In her charge plaintiff alleged that defen-
dant had discriminated against her by paying her lower
wages for doing the same work as the male Marketing
Manager in defendant’s Mission, Kansas, office. The dis-
crimination charge filed with the EEOC alleged sex dis-
crimination in the areas of wages, terms and conditions of
employment and discharge. Claims that plaintiff was
terminated in retaliation for her threats to institute legal
action against defendant for ciscriminatory practices were
not incorporated into plaintiff's EEOC charge and were
not investigated by the EEOC. (Def. Ex. D). On April
27, 1976, plaintiff received a “right-to-sue” letter from the
EEOC, and she commenced this action in a timely manner
on July 26, 1976. At trial plaintiff was granted leave to
amend her complaint to incorporate allegations that her
discharge was the result of retaliation cognizable under
the Equal Pay Act of 1963, 29 U.S.C. § 215(a) (2) and (3).
All
SALARY AND PROMOTIONAL DISCRIMINATION
5. Defendant is a commercial and personal lines in-
surance agency. In general, defendant’s operations can be
viewed in terms of “sales” and “marketing” concepts.
“Sales” refers to efforts made in contacting and selling
insurance to clients or customers who need particular
coverage. “Marketing” refers to efforts made in placing
an existing or prospective sale with an insurance company
willing to underwrite the risk. In June 1972, when de-
fendant hired plaintiff, “sales” efforts in the Kansas City
office were directed by Robert Stibor, who was also Branch
Manager, and Lowell Davis. “Marketing” efforts were di-
rected by Marketing Manager Roy Wolfe, who reported
directly to Roger Walsh, the Vice President of Underwrit-
ing in Minneapolis.
6. Though hired as a “Sales Assistant” in June 1972,
plaintiff’s actual job duties initially were directed more to
the “marketing” area, assisting Marketing Manager Roy
Wolfe. In the early months of her employment, plaintiff
put Messrs. Wolfe and Stibor in contact with local Kansas
City representatives of two insurance companies—Great
American and INA—with whom she had familiarity by
reason of her prior work experience. While plaintiff ap-
pears to claim that she was responsible for the agency re-
lationship which was entered into between the Kansas
City office of these carriers and defendant’s Kansas City
office, that claim is not borne out by the testimony of
plaintiff's own witnesses—James Harlow and Sara Martin,
formerly with the Kansas City offices of INA and Great
American, respectively. It also is apparent from the testi-
mony of Roy Wolfe that beyond making the initial contact
plaintiff's role was minimal, and that the terms of these
agency relationships were negotiated and finalized by
Messrs. Wolfe, Stibor and Walsh for Nordstrom and high
Al2
officials of INA and Great American. Plaintiff makes no
claim that she was responsible for establishing an agency
relationship with any other carriers beyond these,
7. During the first several months of her employment,
plaintiff placed routine business with existing markets
(carriers) and otherwise assisted in the marketing function.
Examples of such other assistance within plaintiff’s area
of responsibility would include (1) coordination of the
flow of significant amounts of paper work passing between
the “sales” and the “marketing” areas; (2) control over
matters affecting expiration of coverage and renewals of
existing coverage; (3) handling routine correspondence;
and (4) generally completing necessary follow-up on mar-
keting files. Plaintiff’s responsibilities continued in this
area until approximately February 1973, at which time
she was reassigned to a more “sales” oriented job assisting
Messrs. Stibor and Davis with “sales” functions. This
reassignment resulted from the fact that Mr. Wolfe had
become progressively more dissatisfied with plaintiff’s abil-
ities effectively to assist him in the routine “marketing”
functions. Mr. Wolfe testified that plaintiff’s work efforts
were up and down in terms of being consistently helpful,
and that the result was a “bottleneck” at plaintiff’s desk
consisting of paper work which was not flowing to carriers
at an acceptable rate. To obtain needed assistance, Mr.
Wolfe had turned at that time, to “Sales Assistants’ Kate
Carter and Linda Spencer to help him on matters which
were the responsibility of plaintiff prior to her reassign-
ment.
8. Between February 1973 and November 1974 plain-
tiff remained basically in the “Sales Assistant” position.
In this interval, more particularly in April 1973, George
J. Higgins joined Nordstrom’s Kansas City office as a Pro-
ducer or Sales Representative, and plaintiff became his
designated “Sales Assistant.” Thereafter, Mr. Stibor trans-
Al3
ferred to Denver and Mr. Davis became Branch Manager.
By July 1974 Mr. Davis had left and Mr. Higgins had
become Branch Manager with direct supervisory responsi-
bility for everyone in the Kansas City office except Mr.
Wolfe, Marketing Manager, who reported directly to Nord-
strom’s Vice President of Marketing, Roger Walsh, in Min-
neapolis.
9. At the time he was hired and assumed responsibil-
ity for the position of “Marketing Manager” in defendant’s
Kansas City office in February 1972, Mr. Wolfe had com-
pleted a college education, as well as nearly twelve
years of underwriting experience directly relevant to the
job functions which he assumed with defendant. Mr.
Wolfe had accumulated underwriting experience com-
mencing with his employment by American Casualty In-
surance Company in August 1960. In January 1963 he
became the Branch Casualty Underwriter for the Wash-
ington, D.C., office of American Casualty Insurance Com-
pany and remained in this position, conducting direct nego-
tiations with insurance agents and determining the accept-
ability and pricing of agency submissions, until August
1963. At that time Mr. Wolfe went to work for General
Accident Insurance Company, an “all lines” company, and
became Casualty Underwriting Manager for that company
in 1964. In 1966 he accepted an offer of a position as
Commercial Underwriting Manager with Safeco Insurance
Company in Silver Spring, Maryland. He maintained this
position until 1968, when he assumed a Commercial Mar-
keting position with Safeco dealing with agents in the
Washington, D.C., area on large commercial accounts. His
area of responsibility included the State of Virginia, the
State of Maryland and the Washington, D.C., area, and
he continued in this position until accepting employment
with Nordstrom in 1972.
Al4
10. For a period of approximately five years prior
to 1967, Roy Wolfe participated in studies and testing
leading to his designation in 1967 as a CPCU—Certified
Property and Casualty Underwriter. At the time he
was employed by the defendant, Mr. Wolfe was one of
only three persons within defendant’s organization holding
this designation. Plaintiff asserted, as a reason for not
pursuing a similar course of study in spite of a $1,000
financial incentive offered by defendant during her em-
ployment, her view that a CPCU designation basically
is insignificant, meaningless and unnecessary to the per-
formance of marketing duties. However, the Court credits
the testimony of defendant’s representatives Lou Golin-
vaux and Roy Wolfe, establishing that the CPCU designa-
tion is a highly respected indication of relevant experience,
training and education and is akin to a CPA designation
in the accounting field.
11. Plaintiff’s first employment in the insurance in-
dustry was at Old American Insurance Company in 1950,
which she joined at the age of 17 upon completing high
school. She worked there, with interruptions to have three
children, until approxiriately 1957. Plaintiff initially par-
ticipated in clerical-type functions and eventually worked
into an underwriting job in which acceptability of risks
was determined by direct reference to established company
guidelines. Plaintiff then worked at the Phoenix Assur-
ance Company for approximately one year, and was not
employed again until June 1962. From then until May
1963 she worked at Pyramid Life Insurance Company han-
dling applications, matching premium rates, handling en-
dorsements and related functions. Plaintiff was next em-
ployed at Commercial Union Insurance Company where
she worked from April 1964 until March 1967 in the casu-
alty underwriting department. Plaintiff then worked at
the Mann-Kline Insurance Agency in Kansas City for a
Ald
few months and then at CNA for about one year until
January 1969. Plaintiff then went to work for Marino-
Raines, another Kansas City insurance agency, performing
work as an assistant and secretary to one of the principals
of that agency for a few months, and next became em-
ployed at the R. B. Jones Agency apparently in about
October 1969. Plaintiff commenced employment at R. B.
Jones at $425 per month, the highest monthly salary she
had earned during the course of her entire prior employ-
ment. Plaintiff worked at R. B. Jones until joining Nord-
strom in June 1972, having by that time achieved a salary
at R. B. Jones of $625 per month. Plaintiff stated in
her Application for Employment (Pl. Ex. 215) that her
salary at R. B. Jones was $725 per month.
12. While plaintiff had considerable experience in
the insurance industry at the time employed by Nordstrom,
it is apparent, and the Court finds, that on a comparative
basis, the experience, training, education and overall cre-
dentials which Roy Wolfe brought to his job with defendant
in Kansas City were greater and more sophisticated than
and superior to those of plaintiff, and for a longer period
of time had been more directly pertinent to the functions
which Mr. Wolfe became responsible for upon accepting
employment with Nordstrom in Kansas City.
13. From early 1972 until November 1974, Nord-
strom’s Kansas City office served as a so-called regional
marketing “hub”’—that is, it was called upon to market
new business generated not only in Kansas City but also
by other Nordstrom branch offices which had no marketing
personnel. Thus, as Marketing Manager headquartered
in the Kansas City office, Roy Wolfe was responsible for
“marketing” not only in Kansas City, but also in Nord-
strom’s branch offices in Omaha, Nebraska; Tulsa, Okla-
homa; Oklahoma City, Oklahoma; Little Rock, Arkansas;
and for a period of time, Denver, Colorado. Mr. Wolfe’s
Al6
responsibilities included travel to these branch offices to
conduct business, such travel consuming five to ten percent
of his working time. He called on insurance carriers in
several of those cities, and in fact negotiated agency con-
tracts with Safeco and Royal Globe in some of those cities.
He also from time to time accompanied sales personnel
in some of those offices in calls upon customers, and person-
ally made calls upon customers and carriers even beyond
his assigned region as the need arose. Other responsibil-
ities expected of and performed by Mr. Wolfe included
primary responsibility for furthering relationships and ne-
gotiating better contingency contracts or commission scales
with several existing carriers, and persuading such carriers
to underwrite national programs, thereby extending those
services to Nordstrom’s existing or potential customers
nationwide. Mr. Wolfe was also responsible for finding
carriers for especially significant or complex transactions,
and then negotiating the price which those carriers would
charge defendant for the insurance written. These situa-
tions included not only Kansas City and regional business,
but referrals from elsewhere in the Nordstrom system.
Mr. Wolfe in fact executed these responsibilities.
14. Although plaintiff attempted at trial to describe
her own job duties as parallel to those of Mr. Wolfe,
the Court is persuaded that between the date of her hire
in June 1972 and November 1974 the responsibilities im-
posed upon and performed by plaintiff were substantially
less than those of Mr. Wolfe. Plaintiff was not responsible
for soliciting and did not solicit new markets or carriers,
or negotiate commission scales or contracts with carriers
at a level which could be meaningfully compared with
that of Roy Wolfe. She was not responsible for and not
involved in the marketing function at other branch offices
or traveling to those offices, placing risks referred from
those offices except in isolated instances, or establishing
Al7
national programs or marketing new business referred
from other areas of the country, as Mr. Wolfe was. While
working as a “Sales Assistant” for Messrs. Stibor, Davis
and/or Higgins, plaintiff was not asked to assume and
did not assume independent responsibility for customer
accounts, unlike Mr. Wolfe. While working as a “Sales
Assistant” to Mr. Higgins, plaintiff’s primary responsibil-
ities essentially were limited to routine carrier and cus-
tomer contacts and were predominantly in-office. Plain-
tiff’s function was, in part, to place risks which were
generally less complicated than risks negotiated by and
ultimately marketed by Mr. Wolfe. Plaintiff, unlike Roy
Wolfe, had no reporting responsibility to corporate market-
ing head Roger Walsh, and signed no employment agree-
ment containing a non-compete clause. In short, the Court
finds that the evidence taken as a whole fails to establish
plaintiff’s claim that she and Mr, Wolfe performed substan-
tially the same job side by side until November 1974,
and does establish the contrary. 4
15. Between June 1972 and November 1974 Roy Wolfe
was paid more than plaintiff Joan Johnson because his
experience, training and education placed him in a position
where he had the capability of providing service at a
level more sophisticated and productive than that of plain-
tiff. Moreover, Mr. Wolfe was paid more than plaintiff
because his job responsibilities far exceeded her own, his
responsibilities but not hers touching such areas as travel
to other offices in the region, involvement in establishing
national programs, direct negotiation of complicated risks
and appropriate premium coverage with carriers and, gen-
erally, contact with carriers at a level in management
above that normally contacted by plaintiff.
16. Uncontradicted testimony of defendant’s wit-
nesses Golinvaux, Higgins, Wolfe and Williams confirms
Al8
that, effective November 1, 1974, Nordstrom implemented
a restructuring and reorganization of the corporate “mar-
keting” function. The Kansas City office, previously a
“hub” responsible for marketing not only in Kansas City
but in the region including the branch offices in Omaha,
Tulsa, Oklahoma City, Little Rock and Denver, assumed
a substantially reduced local marketing function. Min-
neapolis became the North Central “regional marketing
hub” responsible for marketing efforts, to the extent still
existent, in Kansas City and Omaha. Raymond Williams
became ‘Regional Marketing Manager” in Minneapolis
with responsibility for the marketing function in the Twin
Cities area, Omaha and Kansas City. Marketing Manager
Roy Wolfe was transferred from Kansas City to Dallas,
Texas, where he became a “Regional Marketing Manager”
responsible for coordinating the “marketing” function in
the Southwest Region.
17. After considering the evidence, the Court is con-
vinced that when Marketing Manager Roy Wolfe trans-
ferred to Dallas, he took with him the majority of
the responsibilities which he had assumed while working
in Kansas City. The “marketing” function in Kansas City
after Mr. Wolfe’s departure became predominantly ori-
ented to coordinating the flow of heavy amounts of paper
work, placing repeat or routine business and the like.
The Kansas City office was no longer responsible for solicit-
ing new markets or carriers and plaintiff in fact did not
do so. Responsibilities for negotiating commission scales
were, so far as they related to Kansas City operations,
forwarded to the Minneapolis regional marketing hub and
plaintiff was not involved in that. There was no nego-
tiation of new contingency contracts after November 1,
1974, by Kansas City personnel, including plaintiff, and
no national programs were es‘*blished there after that
date. Despite the reorganization of the Kansas City office
Alg
in November 1974, occasional interbranch and _ national
account inquiries continued for a limited period of time
and plaintiff participated in a minor way in the disposition
of these inquiries.
18. On November 6, 1974, Jim Higgins wrote to Glenn
Pearson, an executive in Minneapolis of the defendant,
regarding the office staff changes in the Mission, Kansas,
office. Mr. Higgins stated to Mr. Pearson that since Roy
Wolfe was leaving on November 29, 1974, that Joan John-
son will be marketing man (?), He further stated that
they were adding another girl to replace Joan as sales
assistant on November 11. Mr. Higgins acknowledged that
Joan Johnson is receiving a promotion in replacing Roy
Wolfe as marketing manager. Because of the promotion
a salary increase should follow. Mr. Higgins recommended
that her salary be increased from $840 to $900 per month.
With that increase it would still reduce the office overhead
of the Mission, Kansas, office by $14,620 annually. Mr.
Higgins stated that he fully realized that the $900 per
month is too much money for a girl but he acknowledged
that you couldn’t give her the job, title and responsibility
and not the pay. The salary savings of $14,620 was com-
puted in the following fashion: Roy’s salary is $20,800
plus $600 of expenses for a total of $21,400 annually. A
new girl is being paid $6,000 and therefore deducting her
salary from Roy’s salary plus expenses leaves $15,400.
Then deducting Joan’s increase of $780 annually from $15-
400 there is a savings to the office of $14,620 in having
Joan Johnson take over all of the marketing functions.
19. On November 18, 1974, Glenn Pearson responded
to Jim Higgins’ memo of November 6, 1974, regarding
Joan Johnson’s marketing promotion and stated: that after
Roy’s transfer to Dallas on November 29, 1974, we should
inform Joan Johnson that she will be taking over charge
A20
of the marketing and if she does the job we will increase
her salary but we want to evaluate her capabilities of
handling that function first. Mr. Pearson had a conversa-
tion with Ray Williams, the marketing manager for the
region that the Mission, Kansas, office was in, and Mr.
Williams stated that Joan was capable of doing the job
and that Mr. Williams would be of assistance to her in
handling any hard to market matters.
20. On November 25, 1974, Mr. Higgins wrote to Mr.
Pearson that holding off the raise was questionable. Mr.
Higgins had suggested to Mr, Williams that the defendant
pay her $50 per month for expenses in lieu of a raise.
Mr. Higgins informed Mr. Pearson on November 25, 1974,
in this memorandum that Joan Johnson felt that she is
replacing a man and is entitled to the pay. Mr. Higgins
stated that the expense suggestion that he made might
be a better way to handle the problem.
21. On December 2, 1974, Mr. Pearson wrote to Mr.
Higgins stating: I do not want to get involved with ex-
pense accounts for our marketing girls because if the word
got out that that was occurring Mr. Pearson would be
faced with expense checks for the Minneapolis marketing
girls and then even sales assistants would want expense
accounts. Mr, Pearson said to keep Mr. Higgins’ office
running smoothly that he will increase Joan Johnson’s
salary pursuant to Mr. Higgins’ original memoranda and
make it effective on December 15, 1974, with the next
salary review set up for December 15, 1975.
22. After November 1974 Ray Williams, a marketing
representative and new marketing manager of the region
that the Kansas City office was in, visited Joan Johnson
in the Mission, Kansas, office. Ray Williams took Joan
Johnson to five insurance companies and introduced Joan
Johnson as Wolfe’s replacement and that there would be
A21
no change in any of the problems or handling or office
procedure because Joan Johnson would still be there in
charge of all of the marketing.
23. The evidence established that the Kansas City
office of the defendant was a separate establishment and
that the Minneapolis office was a separate establishment.
The evidence and exhibits intrcduced at trial relating to the
Minneapolis office are, therefore, irrelevant.
24. The Court has found that the responsibilities
after November 1974 of the Marketing Manager of the
Kansas City office were much diminished but that after
the reorganization plaintiff was considered by defendant
to be a probationary replacement for Roy Wolfe. The two
jobs, however, did not require the performance of equal
work, skill, effort and responsibility and plaintiff did not
in fact exercise equal skill, effort and responsibility. Plain-
tiff is not entitled to recover under the Equal Pay Act.
TERMINATION
25. The Court is persuaded that plaintiff was desig-
nated to assume responsibility for a reduced marketing
function in defendant’s Kansas City office in November
1974 on a probationary basis. (Pl. Ex. 284). Raymond
Williams, to whom plaintiff thereafter reported with re-
spect to her marketing functions, established a procedure
for the submission of weekly marketing reports by plain-
tiff, and he also set aside a specific two hour block of
time on Friday of each week for plaintiff to communicate
with him by telephone to seek guidance on problems or
questions or to report information concerning her activi-
ties. Though there is a dispute in the testimony on this
issue, the Court accepts the testimony of Mr. Williams that
plaintiff took advantage of the opportunity to communicate
by telephone on Friday fewer than three times during
A22
the entire period November 1974 until April 10, 1975, and
that plaintiff was, as a rule, tardy in the submission of
her weekly report forms and for the last two months of
her employment failed to submit any at all. Both Higgins
and Williams reminded plaintiff frequently of her reporting
obligations, without significant success. More importantly,
however, the Court is persuaded, by the testimony of
Branch Manager Higgins and Linda Spencer, plaintiff's
former coworker and friend, that plaintiff quickly fell
behind in her responsibilities to maintain internal proce-
dures conducive to a prompt, orderly and accurate flow of
information and paper work to the carriers. As a result,
plaintiff's desk became a “logjam” which created internal
problems at the Kansas City office and elsewhere in the
Nordstrom system, and led to dissatisfaction on the part
of carriers whose requests for information or action were
not being handled promptly by plaintiff.
26. The Court credits the testimony of Raymond Wil-
liams and Jim Higgins, over that of plaintiff, that plaintiff's
omissions exposed the defendant to at least two potential
significant errors and omissions losses which, had the losses
occurred, would have obligated Nordstrom to reimburse
clients out of Nordstrom corporate assets due to plaintiff's
failure to see that critical builder’s risk coverage was con-
tinued in effect. Though plaintiff testified with respect
to one exposure (Def. Ex. B) that she never saw the
letter from the carrier which indicated that it would not
renew the coverage and remarketing elsewhere would be
necessary, the Court, after reviewing the documentation
and the testimony of defendant’s witnesses, is convinced
that plaintiff simply allowed this letter to become a part
of her unorganized, accumulated paper work and failed
to notice it or take action until coverage on a nearly one
million dollar construction project had lapsed. Even with-
out looking to the aforementioned letter, the file on that
A23
project establishes (Def. Ex. B), and plaintiff herself con-
ceded, that it was her responsibility to follow through on
renewals of coverage some 60-90 days before expiration,
yet she took no steps to effectuate renewal with the exist-
ing carrier until a day after coverage already had lapsed.
The project was without coverage for at least ten days
until it was placed with another carrier, after plaintiff was
advised a second time that the existing carrier would not
renew coverage. On the second matter, plaintiff's failure
to execute her responsibilities resulted in a builder’s risk
coverage lapse on a $1.6 million project. Plaintiff herself
testified that upon realizing that coverage had lapsed on
that project, she immediately contacted Raymond Williams
in Minneapolis, knowing that he would have to remarket
this coverage. He in fact did so that same evening. The
Court finds this testimony to be additional support for
defendant’s position that marketing responsibility for seri-
ous problems or involved risks was transferred out of
Kansas City as of November 1974. These two incidents
were cause in themselves for considerable alarm on the
part of Higgins and Williams about plaintiff’s ability to
function responsibly in her position with defendant, and
the Court finds this evidence to be especially probative on
the issue of justification for defendant’s termination of
plaintiff shortly thereafter.
27. Plaintiff testified that after November 1, 1974, she
was overburdened by retained responsibility in certain
“Sales Assistant” functions as well as her new assignment
as “Marketing Assistant” and that her repeated requests
for assistance with her heavy work load were never met.
The Court, however, accepts the testimony of Mr. Higgins
to the effect that the work load was not so great as to
economically justify the hiring of an assistant to plaintiff,
particularly in view of the fact that the Kansas City office
had a greatly diminished role after the November 1974
A24
reorganization but still had the same number of employees
that it had before the reorganization. The Court also notes
the evidence to the effect that any ‘‘Sales Assistant” ori-
ented efforts retained by plaintiff were retained at her
own request. Moreover, pertinent to plaintiff's claim of
being overburdened, and to the issue of her ultimate dis-
charge, is the testimony introduced by defendant that
plaintiff was unduly tardy and spent excessive amounts of
time during working hours on personal matters, such as
telephone calls, problems which were discussed with plain-
tiff by Mr. Higgins on repeated occasions. More par-
ticularly, witnesses Linda Spencer, a coworker with plain-
tiff, and Branch Manager Higgins testified that during the
final four to six months of plaintiff's employment her tardi-
ness ranged from fifteen minutes to two or three hours as
frequently as two to three times per week. Ms. Spencer
further testified that reasons cited by plaintiff for her tardi-
ness ranged from oversleeping to stopping to visit or
check on her mother to taking her son to school when
he missed the bus. Although plaintiff was accommodated
by Branch Manager Higgins in deferring her starting time
until 9:00 A.M., her tardiness, nevertheless, continued and
eventually became as frequent as two to four times during
a week. Moreover, the Court accepts the testimony of
Linda Spencer that plaintiff spent excessive amounts of
time on personal telephone calls during working hours.
Plaintiff points to her time cards as evidence of her time
on the job; however, the evidence establishes that these
cards do not reflect actual arrival and departure times,
and do not even necessarily reflect the actual number
of hours worked since they were routinely filled out for the
same number of hours each day, sometimes long after
the fact. The evidence also fails to establish that plaintiff
worked evening or weekend hours to make up for time
lost during the day.
A25
28. Regional Marketing Manager Raymond Williams
traveled to the Kansas City office on March 27, 1975, both
to follow up on plaintiff’s serious omissions which had re-
sulted in the above mentioned builder’s risk coverage
lapses, and to pursue Mr. Higgins’ mounting concern over
plaintiff’s failure to process paper work through the Kan-
sas City office and otherwise carry out her assigned tasks.
The Court takes note of the Linda Spencer testimony that
on two occasions during the last 60 days of plaintiff’s em-
ployment, Mr. Higgins had spoken with Spencer in her
capacity as Office Manager regarding these deficiencies in
plaintiff’s job performance. Mr. Williams found that plain-
tiff’s filing procedures were self-defeating and that the
paper flow had bogged down to the extent that everything
was in a “rush” position. He further found long un-
marketed risks and unmet requests for data from carriers
and others, and in general confirmed Higgins’ reports con-
cerning plaintiff’s inability to function in her job. While
plaintiff again attributed these problems to her heavy
work load, and in one instance to the failure of others to
provide her with information needed to market the risk,
the Court, after reviewing the conflicting evidence, accepts
the more substantive and convincing testimony of Mr.
Higgins and Mr. Williams to the effect that plaintiff’s in-
ability to organize herself and her time, and her inatten-
tion to her duties, resulted in the serious backlog of paper
work and other problems which were revealed during Mr.
Williams’ March 27, 1975, trip. (Pl. Ex. 221).
29. At the conclusion of Mr. Williams’ March 27, 1975,
visit, Branch Manager Higgins drove Mr. Williams to the
airport. During the return to the airport these men dis-
cussed plaintiff’s job performance. They mutually agreed
that, during her probationary period, plaintiff had not es-
tablished an ability to maintain a proper flow of paper
work from “sales” through “marketing” to carriers. The
A26
Court notes that this is the same deficiency which led Roy
Wolfe ultimately to refrain from using plaintiff as a Mar-
keting Assistant in 1972; the “bottleneck” at the plaintiff's
desk occurred then as well. Additionally, Mr. Higgins and
Mr. Williams concurred that continuing plaintiff’s employ-
ment as a Marketing Assistant could again expose Nord-
strom to additional huge errors and omissions losses. Mr.
Higgins and Mr. Williams ultimately concluded that plain-
tiff’s termination was required. After obtaining the fur-
ther approval of his own superior, the Regional Vice Presi-
dent, Branch Manager Higgins terminated plaintiff in a
private office conference with plaintiff on April 10, 1975.
30. Plaintiff asserted that her termination was the
result of retaliation against her because of her complaints
that she was doing equal work for unequal pay and in-
tended to sue Nordstrom and Manager Higgins because of
this. Plaintiff acknowledged that statements of intended
legal action were never directly communicated by her to
Branch Manager Higgins, but asserted that she made such
statements to employees Linda Spencer, James Stilwell and
Charlotte Kuhn. Linda Spencer testified that plaintiff did
make reference to such intended action; however, Ms.
Spencer testified unequivocally that she never forwarded
such information to Mr. Higgins. Mr. Higgins categorically
denied that he had been informed of any intended legal
action prior to the time he terminated plaintiff. More-
over, though plaintiff purportedly stated to employee James
Stilwell that she intended to proceed with legal action,
intending that Mr. Stilwell pass this information on to Mr.
Higgins, Mr. Higgins again denied that Mr. Stilwell ever
mentioned the subject to him prior to plaintiff’s termina-
tion. Raymond Williams also testified that he knew
nothing of any intended legal action by plaintiff at any
time prior to plaintiff's termination. The Court, after re-
viewing all evidence on the “retaliation” issue, was per-
A27
suaded that the termination of plaintiff was not in any way
the result of retaliation against threats of intended legal
proceedings, and therefore at the close of trial dismissed
plaintiff’s “retaliation” claims, to the extent not already
barred on jurisdictional or other grounds.
POST-TERMINATION EVENTS
31. The testimony of Linda Spencer and George J.
Higgins indicates that the Sales Assistants absorbed many
of plaintiff’s responsibilities during the months following
plaintiff’s termination. Shortly after the termination Mr.
Higgins was summoned into conferences with carriers Great
American and INA in Kansas City and was informed of
serious breakdowns in communications in plaintiff’s area of
responsibility, which had taken place during the previous
months between Nordstrom’s Kansas City office and these
offices. Failure to answer routine marketing inquiries for
periods as long as six to eight months were brought to Mr.
Higgins’ attention and, at the conclusion of each meeting,
Mr. Higgins expressed his fervent intention to correct this
situation. He and others in the Kansas City office spent
four to five days a week for about a month attending to
and cleaning up the marketing backlog left by plaintiff.
These meetings with insurance carriers occurred after plain-
tiff’s termination and the Court finds testimony regarding
such meetings to be irrelevant to the question of whether
proper cause for plaintiff’s termination has been established.
However, such testimony does confirm Mr. Higgins’ testi-
mony that the marketing function had become seriously
backlogged and required immediate action after plaintiff's
departure.
32. On or about May 16, 1975, Mr. Higgins hired Ed
O’Malley to commence work on or about May 27, 1975, as
an Account Executive. Within the Nordstrom organization
A28
an “Account Executive” has no new business responsibility
but is in the sales area with production responsibility for
servicing existing accounts. Unlike a Sales Assistant or
Marketing Assistant, an Account Executive bears sole re-
sponsibility for servicing particular accounts which are
given to him for maintenance. Additionally, whereas the
Sales Assistant function is basically an internal function
carried out in Nordstrom’s office, the Account Executive
frequently visits client or customer offices to consult with
and advise them of their insurance needs in much the
same manner as producers or sales representatives. Plain-
tiff failed to produce evidence establishing the details of
Mr. O’Malley’s actual job duties and responsibilities. From
the testimony of Mr. Higgins, however, it appears that
Mr. O’Malley functioned basically in the sales oriented
Account Executive role, and also relieved Mr. Higgins of
some of the more “marketing” oriented functions for which
Higgins had been responsible since Roy Wolfe’s departure in
November 1974. In late 1975 or early 1976 one of the Nord-
strom Kansas City office’s main “markets” for apartment
house business, the New Providence Corporation (NPC),
indicated that no apartment house coverage would be
written or renewed and that NPC was getting out of that
line of business. At that time Nordstrom’s Kansas City
office had some 90% of its apartment house coverage
placed with NPC, and it had been the function primarily
of the Sales Assistants to maintain this coverage pursuant
to established policies. Accordingly, Nordstrom was con-
fronted with the need to keep its apartment house business
properly placed, and the immediate need to remarket this
coverage inundated the Kansas City office with marketing
difficulties and“paper work. Mr. Higgins testified that he
had to choose whether to assume this marketing respon-
sibility himself or delegate it, and that he chose to direct
Mr. O’Malley to assume primary responsibility for co-
A29
ordinating this marketing effort. It was this unique and
temporary circumstance which resulted in Mr. O’Malley
spending virtually full time in a “marketing” function dur-
ing the early part of 1976 (Pl. Ex. 259), a year after
plaintiff was terminated.
33. Though plaintiff would have the Court find that
Mr. O’Malley was simply a Marketing Assistant with a
fancier title and more salary, the Court is convinced that the
marketing functions to which plaintiff had been assigned
were absorbed by the Kansas City office staff as a whole.
The only evidence as to Mr. O’Malley’s duties establishes
that, though temporarily thrust into the remarketing effort
on apartment business several months after his initial em-
ployment, he has functioned throughout his employment
in the Account Executive area performing duties which
cannot be equated with those performed by plaintiff prior
to April 10, 1975. The position which plaintiff held be-
tween November 1974 and April 10, 1975, and the position
held by Mr. O’Malley, commencing with his employment
in May 1975, were not consecutively held positions and
were not substantially equal, most particularly in the
area of responsibility but also in the areas of skill and
effort.
COUNTERCLAIM
34. Defendant has counterclaimed that at the time
plaintiff was terminated she owed defendant $1,922.68.
This sum, according to the testimony of Mr. Higgins, was
due (1) for unpaid premiums on personal insurance for
plaintiff and her daughter ($1,232.68); (2) for cash ad-
vances never reimbursed ($600); and (3) for delinquent
parking charges ($90). Plaintiff admits she did not pay
for the $90 parking bill. She claims Robert Stibor ad-
vanced her $300 and later told her not to worry about it
A30
since he would write it off. The Court does not credit
plaintiff's assertions that defendant simply forgave a $300
advance to cover personal expenses while plaintiff awaited
a salary check, and concludes that this amount is owing.
The second $300 within defendant’s $600 claim for cash
advances, according to Mr. Higgins, was for Kansas City
Chiefs football tickets, and plaintiff offered no testimony
to rebut this aspect of defendant’s “cash advance” claim.
Finally, based upon the testimony and documentation avail-
able (Def. Ex. P), the Court finds that plaintiff never re-
imbursed defendant for insurance covering plaintiff and
her daughter with premiums totaling $1,232.68.
CONCLUSIONS OF LAW
1. The Court has jurisdiction over the parties and
subject matter jurisdiction over this action pursuant to
§ 706(f) (3) of Title VII, 1964 Civil Rights Act, as amended,
42 U.S.C. § 2000e-5(f) (3), pursuant to the Equal Pay Act,
29 U.S.C. § 206(d) and pursuant to 28 U.S.C. § 1345(4).
Defendant Nordstrom-Larpenteur Agency, Inc., is an em-
ployer within the meaning of § 701(b) of Title VII, 1964
Civil Rights Act, as amended, 42 U.S.C. § 2000e(b), and
subject to the Equal Pay Act, 29 U.S.C. § 206(d). Defen-
dant’s Kansas City office is a separate “establishment”
within the meaning of 29 U.S.C. § 206(d).
2. Plaintiff's complaint incorporates two counts.
Count I alleges that defendant violated Title VII of the
Civil Rights Act of 1964 by (i) subjecting plaintiff to dis-
parate treatment during the course of her employment in
the terms of her rate of pay, salary, fringe benefits and
commissions [42 U.S.C. § 2000e-2]; and (ii) discharging
her in retaliation for her opposition to this disparate treat-
ment [42 U.S.C. § 2000e-3(a)]. Section 703(a)(1) of Title
VII [42 U.S.C. § 2000e-2(a)(1)] provides, in pertinent
part, that:
A31
“(a) It shall be an unlawful employment practice for
an employer -
(1) to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against
any individual with respect to his compensation,
terms, conditions, or privileges of employment,
because of such individual’s ...sex,... .”
Section 704(a) of Title VII [42 U.S.C. § 2000e-3(a) ]
provides in pertinent part, that:
“(a) It shall be an unlawful employment practice for
an employer to discriminate against any of his em-
ployees or applicants for employment, for an employ-
ment agency, or joint labor-management committee
controlling apprenticeship or other training or re-
training, including on-the-job training programs, to
discriminate against any individual, or for a labor
organization to discriminate against any member
thereof or applicant for membership, because he has
opposed any practice made an unlawful employment
practice by this subchapter, or because he has made
a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing
under this subchapter.”
3. Count II of plaintiff’s complaint herein claims vio-
lations of the Equal Pay Act of 1963 [29 U.S.C. § 206(d)].
The language which plaintiff claims defendant violated
[29 U.S.C. § 206(d) ] is as follows:
“(d)(1) No employer having employees subject to
any provisions of this section shall discriminate, within
any establishment in which such employees are em-
ployed, between employees on the basis of sex by
paying wages to employees in such establishment at
a rate less than the rate at which he pays wages to
A32
employees of the opposite sex in such establishment
for equal work on jobs the performance of which
requires equal skill, effort, and responsibility, and
which are performed under similar working condi-
tions, except where such payment is made pursuant
to (i) a seniority system; (ii) a merit system; (iii)
a system which measures earnings by quantity or
quality of production; or (iv) a differential based on
any factor other than sex... .”
4. The Court concludes that plaintiff has proved that
from November 1, 1974, to April 10, 1975, that she was dis-
criminated against by defendant with respect to pay and
promotion because of her sex in violation of § 703(a) of
Title VII, 42 U.S.C. § 2000(e)-2(a). Plaintiff’s damages
cannot be measured precisely. At some point in November
1974 plaintiff assumed replacement of Wolfe but with
much less responsibility. In November or December plain-
tiff’s salary was increased to $10,800 per year. Wolfe’s
salary had been $20,800 per year. O’Malley was hired in
late May 1975 as an Account Executive in primarily a sales
capacity but with some marketing responsibility. O’Malley
was paid at the rate of $18,600 per year. The difference
between Wolfe’s $20,800 and plaintiff’s $10,800 is $10,000
or $833 per month. The latter amount times five and one-
third months equals $4,442 and this is the amount of dam-
ages to which plaintiff is entitled.
5. In McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), the Supreme Court articulated the requirements
plaintiff must satisfy to make out a claim of retaliatory dis-
charge under § 704(a) of Title VII, 1964 Civil Rights Act, as
amended, 42 U.S.C. § 2000e-3(a). Not only did plaintiff fail
to prove such a claim, but also such claim was not included
in plaintiffs EEOC charge and therefore the Court is
without jurisdiction to review the retaliation claim. See
A33
McDonnell Douglas Corp., supra. It was for these reasons
that the Court dismissed this claim at the close of trial,
and here confirms that dismissal.
6. With respect to plaintiff’s claims under the Equal
Pay Act of 1963, 29 U.S.C. § 206(d), this Court concludes
that plaintiff did not hold a position which was substan-
tially equal in terms of skill, effort and responsibility,
either concurrently or consecutively, to that position held
by Roy Wolfe. The Court further concludes that the de-
fendant has rebutted any allegations that the position held
by Ed O’Malley was a position held consecutively to that
held by plaintiff incorporating substantially equal levels
of skill, effort and responsibility under similar working
conditions. Accordingly, plaintiff has failed to prove that
she was discriminated against within the meaning of
§ 206(d) of the Equal Pay Act of 1963.
7. The Court, having granted plaintiff leave to amend
her complaint during trial to incorporate allegations of re-
taliatory discharge under §§ 215(a)(2) and (3) of the
Fair Labor Standards Act [29 U.S.C. § 215(a) (2) and (3) ],
concluded that applicability of these provisions to the in-
stant case is questionable, and, further, that the evidence
adduced by plaintiff failed to establish any violation of
these provisions here. Therefore, the Court dismissed these
amended allegations at the close of trial, and here con-
firms that dismissal.
8. Having reviewed all the evidence respecting defen-
dant’s counterclaim, the Court concludes that plaintiff
owes defendant the sum of $1,232.68 for unpaid premiums
on plaintiff's personal insurance, $600 for certain cash ad-
vances, and $90 for delinquent parking charges which were
paid on plaintiff's behalf by defendant. In total, the Court
concludes that plaintiff owes defendant the sum of $1,922.68.
A34
ORDER FOR JUDGMENT
1, Judgment will be entered for defendant on plain-
tiff’s claim of retaliatory discharge under Title VII of the
1964 Civil Rights Act and the Equal Pay Act of 1963.
2. Judgment will be entered for defendant on Count
II of plaintiff's complaint on the claimed violation of the
Equal Pay Act of 1963.
3. Judgment will be entered for plaintiff in the
amount of $4,442 on Count I of plaintiff’s complaint on
the claimed violation of Title VII of the Civil Rights Act
of 1964.
4. Judgment will be entered for defendant on its
counterclaim against plaintiff in the amount of $1,922.68.
5. Each of the parties has prevailed on one or more
of its claims, defenses or counterclaims. Each party will
therefore bear its own costs (including attorney’s fees)
and disbursements.
/s/ Earl R. Larson
United States Senior District Judge
August 9, 1979.
A35
APPENDIX D
STATUTES INVOLVED
28 U.S.C. § 1254(1) (Jurisdiction of the Supreme Court)
(28 U.S.C, § 1254 at 157 (1976)).
Cases in the courts of appeals may be reviewed by the
Sitetinn Court by the following methods:
(1) By writ of certiorari granted upon the peti-
tion of any party to any civil or criminal case, before
or after rendition of judgment or decree... .
28 U.S.C. § 1291 (Final Decisions of District Courts)
(28 U.S.C. § 1291 at 159 (1976)).
The courts of appeals shall have jurisdiction of appeals
from all final decisions of the district courts of the United
States, the United States District Court for the District of
the Canal Zone, the District Court of Guam, and the Dis-
trict Court of the Virgin Islands, except where a direct
review may be had in the Supreme Court.
28 U.S.C. § 1331(a) (Federal Questions) (28 U.S.C.
§ 1331 at 164 (1976)).
(a) The district courts shall have original jurisdiction
of all civil actions wherein the matter in controversy ex-
ceeds the sum or value of $10,000.00, exclusive of interests
and costs, and arises under the Constitution, laws, or
treaties of the United States, except that no such sum
or value shall be required in any such action brought
against the United States, any agency, thereof, or any
officer or employee thereof in his official capacity.
A36
28 U.S.C. § 1343(a)(4) (Civil Rights and Elective
Franchise) (28 U.S.C. § 1343 at 170 (1976) or 28 U.S.C.A.
§ 1343 at 32 (Supp. 1980)).
(a) The district courts shall have original jurisdiction
of any civil action authorized by law to be commenced
by any person:
(4) To recover damages or to secure equitable or
other relief under any Act of Congress providing for the
protection of civil rights, including the right to vote.
28 U.S.C. § 1920 (Taxation of Costs) (28 U.S.C. § 1920
at 239 (1976) ({{]1-4) and 28 U.S.C.A. § 1920 at 185
(Supp. 1980) ({15-6)).
A judge or clerk of any court of the United States
may tax as costs the following:
(1) Fees of the clerk and marshal;
(2) Fees of the court reporter for all or any
part of the stenographic transcript necessarily obtained
for use in the case;
(3) Fees and disbursements for printing and wit-
nesses;
(4) Fees for exemplification and copies of papers
necessarily obtained for use in the case;
(5) Docket fees under section 1923 of this title;
(6) Compensation of court appointed experts,
compensation of interpreters, and salaries, fees, ex-
penses, and costs of special interpretation services un-
der section 1828 of this title.
A bill of costs shall be filed in the case and, upon
allowance, included in the judgment or decree.
A37
Fair Labor Standards Act, 29 U.S.C. § 203(d), (e)(1)
(Definitions) (29 U.S.C. § 203 at 740).
As used in this chapter -
(d) “Employer” includes any person acting directly
or indirectly in the interest of an employer in relation |
to an employee and includes a public agency, but does
not include any labor organization (other than when acting
as an employer) or anyone acting in the capacity of officer
or agent of such labor organization.
(e) (1) Except as provided in paragraphs (2) and (3),
the term “employee” means any individual employed by
an employer.
Fair Labor Standards Act § 6(d), 29 U.S.C. § 206(d)(1)
(Equal Pay Act) (29 U.S.C. § 206 at 748 (1976)).
(1) No employer having employees subject to any
provisions of this section shall discriminate, within any
establishment in which such employees are employed, be-
tween employees on the basis of sex by paying wages
to employees in such establishment at a rate less than
the rate at which he pays wages to employees of the
opposite sex in such establishment for equal work on jobs
the performance of which requires equal skill, effort, and
responsibility, and which are performed under similar
working conditions, except where such payment is made
pursuant to (i) a seniority system; (ii) a merit system;
(iii) a system which measures earnings by quantity or
quality of production; or (iv) a differential based on any
other factor other than sex: Provided, That an employer
who is paying a wage rate differential in violation of
this subsection shall not, in order to comply with the
provisions of this subsection, reduce the waye rate of any
employee.
A38
Fair Labor Standards Act, 29 U.S.C. § 213(a)(2) (Ex-
emptions) (29 U.S.C. § 213 at 761 (1976) or 29 U.S.C.A.
§ 213 at 43 (Supp. 1980) ).
(a) The provisions of section 206 (except subsection
(d) in the case of paragraph (1) of this subsection) and
section 207 of this title shall not apply with respect to -
(2) any employee employed by any retail or service
establishment (except an establishment or employee en-
gaged in laundering, cleaning, or repairing clothing or
fabrics or an establishment engaged in the operation of
a hospital, institution, or school described in section 203 (s)
(5) of this title), if more than 50 per centum of such
establishment’s annual dollar volume of sales of goods
or services is made within the State in which the establish-
ment is located, and such establishment is not in an enter-
prise described in section 203(s) of this title. A “retail
or service establishment” shall mean an establishment 75
per centum of whose annual dollar volume of sale of
goods or services (or of both) is not for resale and is
recognized as retail sales or services in the particular indus-
Saar
Title VII of the Civil Rights Act of 1964, § 701(b), 42
U.S.C. § 2000e(b), (f) (Definitions) (42 U.S.C. § 2000e
at 1230-31 (1976)).
For purposes of this subchapter -
(b) The term “employer” means a person engaged
in an industry affecting commerce who has fifteen or more
employees for each working day in each of twenty or
more calendar weeks in the current or preceding calendar
year, and any agent of such a person, but such term
A39
does not include (1) the United States, a corporation wholly
owned by the Government of the United States, an Indian
tribe, or any department or agency of the District of Colum-
bia subject by statute to procedures of the competitive
service (as defined in section 2102 of title 5), or (2) a
bona fide private membership club (other than a labor
organization) which is exempt from taxation under section
501(c) of title 26, except that during the first year after
March 24, 1972, persons having fewer than twenty-five
employees (and their agents) shall not be considered em-
ployers.
(f) The term “employee” means an individual em-
ployed by an employer, except that the term “employee”
shall not include any person elected to public office in
any State or political subdivision of any State by the
qualified voters thereof, or any person chosen by such
officer to be on such officei’s personal staff or an ap-
pointee on the policy making level or an immediate adviser
with respect to the exercise of the constitutional or legal
powers of the office. The exemption set forth in the
preceding sentence shall not include employees subject
to the civil service laws of a State government, govern-
mental agency or political subdivision.
Title VII of the Civil Rights Act of 1964, § 703(a), 42
U.S.C. § 2000e-2(a) (Unlawful Employment Practices)
(42 U.S.C. § 2000e-2 at 1237 (1976)).
(a) It shall be an unlawful employment practice for
an employer -
(1) to fail or refuse to hire or to discharge any in-
dividual, or otherwise to discriminate against any
individual with respect to his compensation, terms,
conditions, or privileges of employment, because
A40
of such individual’s race, color, religion, sex, or
national origin; or
(2) to limit, segregate, or classify his employees or
applicants for employment in any way which
would deprive or tend to deprive any individual
of employment opportunities or otherwise ad-
versely affect his status as an employee, because
of such individual’s race, color, religion, sex or
national origin.
Title VII of the Civil Rights Act of 1964, § 703(h), 42
U.S.C. § 2000e-2(h) (The Bennett Amendment) (42
U.S.C. § 2000e-2 at 1238 (1976)).
(h) Notwithstanding any other provision of this sub-
chapter, it shall not be an unlawful employment practice
for an employer to apply different standards of compensa-
tion, or different terms, conditions, or privileges of employ-
ment pursuant to a bona fide seniority or merit system,
or a system which measures earnings by quantity or quality
of production or to employees who work in different loca-
tions, provided that such differeences [sic] are not the
result of an intention to discriminate because of race, color,
religion, sex, or national origin, nor shall it be an unlawful
employment practice for an employer to give and to act
upon the results of any professionally developed ability
test provided that such test, its administration or action
upon the results is not designed, intended or used to dis-
criminate because of race, color, religion, sex or national
origin. It shall not be an unlawful employment practice
under this subchapter for any employer to differentiate
upon the basis of sex in determining the amount of wages
or compensation paid or to be paid to employees of such
employer if such differentiation is authorized by the provi-
sions of section 206 (d) of title 29.
A4l1
Title VII of the Civil Rights Act of 1964, § 706(f)(3),
(g), (k), 42 U.S.C. § 2000e-5(f)(3), (g), (j), (k) (Rem-
edies; Appeals; Attorney’s Fees) (42 U.S.C. § 2000e-5
at 1242-43 (1976)). -
(f)(3) Each United States district court and each
United States court of a place subject to the jurisdiction
of the United States shall have jurisdiction of actions
brought under this subchapter. Such an action ‘may be
brought in any judicial district in the State in which
the unlawful employment practice is alleged to have been
committed, in the judicial district in which the employment
records relevant to such practice are maintained and ad-
ministered, or in the judicial district in which the aggrieved
person would have worked but for the alleged unlawful
employment practice, but if the respondent is not found
within any such district, such an action may be brought
within the judicial district in which the respondent has
his principal office. For purposes of sections 1404 and
1406 of title 28, the judicial district in which the respondent
has his principal office shall in all cases be considered
a district in which the action might have been brought.
(g) If the court finds that the respondent has inten-
tionally engaged in or is intentionally engaging in an un-
lawful employment practice charged in the complaint, the
court may enjoin the respondent from engaging in such
unlawful employment practice, and order such affirmative
action as may be appropriate, which may include, but
is not limited to, reinstatement or hiring of employees,
with or without back pay (payable by the employer, em-
ployment agency, or labor organization, as the case may
be, responsible for the unlawful employment practice),
or any other equitable relief as the court deems appro-
priate. Back pay liability shall not accrue from a date
A42
more than two years prior to the filing of a charge with
the Commission. Interim earnings or amounts earnable
with reasonable diligence by the person or persons discrim-
inated against shall operate to reduce the back pay other-
wise allowable. No order of the court shall require the
admission or reinstatement of an individual as a member
of a union, or the hiring, reinstatement, or promotion of
an individual as an employee, or the payment to him
of any back pay, if such individual was refused admission,
suspended, or expelled, or was refused employment or
advancement or was suspended or discharged for any rea-
son other than discrimination on account of race, color,
religion, sex, or national origin or in violation of section
2000e-3 (a) of this title.
(k) In any action or proceeding under this subchapter
the court, in its discretion, may allow the prevailing party,
other than the Commission or the United States, a reason-
able attorney’s fee as part of the costs, and the Commission
and the United States shall be liable for costs the same
as a private person.
REGULATION INVOLVED
Equal Employment Opportunity Commission, 29
C.F.R. § 1604.8 (29 C.F.R. § 1604 at 915-16 (1979)).
(a) The employee coverage of the prohibitions
against discrimination based on sex contained in title VII
is coextensive with that of the other prohibitions contained
in title VII and is not limited by section 703(h) to those
employees covered by the Fair Labor Standards Act.
(b) By virtue of section 703(h), a defense based on
the Equal Pay Act may be raised in a proceeding under
Title VII.
A43
(c) Where such a defense is raised the Commission
will give appropriate consideration to the interpretations
of the Administrator, Wage and Hour Division, Department
of Labor, but will not be bound thereby.
MISCELLANEOUS
American Bar Association Code of Professional Re-
sponsibility, Disciplinary Rule 5-103 (Avoiding Acqui-
sition of Interest in Litigation) (Missouri Supreme
Court Rule 4, Canon 5, D.R. 5-103).
(A) A lawyer shall not acquire a proprietary interest
in the cause of action or subject matter of litigation he
is conducting for a client, except that he may:
(1) Acquire a lien granted by law to secure his fee
or expenses.
(2) Contract with a client for a reasonable contingent
fee in a civil case.
(B) While representing a client in connection with
contemplated or pending litigation, a lawyer shall not ad-
vance or guarantee financial assistance to his client, except
that the lawyer may advance or guarantee the expenses
of litigation, including court costs, expenses of investiga-
tion, expenses of medical examination, and costs of obtain-
ing and presenting evidence, provided the client remains
ultimately liable for such expenses.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.