Petition for Writ of Certiorari — Houston Endowment, Inc. v. Dunlop

FRRAMmA

AUG 1

In THE

Supreme Court of the United States

October Term, 1975

Houston EnpowMENT ILNC.,

Petitioner

Vv.

Joun T. DuNLOP,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Guten E. Ciover

519 Gulf Building

Houston, Texas 77002

Counsel for Petitioner

Of Counsel:

LIwpELL, Sapp, Zivtey & Brown

510 Gulf Building

Houston, Texas 77002

INDEX

Pace

Opinions below 1

Jurisdiction 2

Questions presented 2

Constitutional provisions involved 3

Statutory provisions involved 3

Rules involved 3

Statement of the case 4

Reasons for granting writ 7

Conclusion 19

Certificate of Service 20

CITATIONS

Cases:

B & C Truck an? Inc. v. 1.C.C., 283 F.2d 163 — Cir.,

1969) . 17

Brennan v. J. M. Fields, Inc., 488 Fad 433 (5th ¢ Cir., 1974) 15

Corning Glass Works v. Brennan, oe OS ie ae

41 L. Ed.2d 1, 94 S. Ct. (1974) ~ ee ee

Gulf King Shrimp Co. v. Wirtz, 407 F.2d 508 (5th Cir., 1969) 15

Hodgson v. American Can Co., 440 F.2d 916 (8th Cir.,

1971) bate ee

Hodgson v. Corning Glass Works, 474 F.2d 443 (sth Cir.,

1974) Saya jPnkew bewte ak 15, 17

Hodgson vy. First Fed. Sav. & L. Assn. « eaneen Co., Fla.,

455 F.2d 818 (5th Cir., 1972) 15

Hodgson vy. Miller Brewing Co., 457 F.2d 221 (7th Cir.,

1972) 9

McComb v. Jacksonville Paper Co., 336 U.S. 187, 96 L. Ed.

599, 69 S. Ct. 497 (1949) 14, 17

National Labor Relations Bd. v. Express Pub. Co., 312 U.S.

426, 85 L. Ed. 930, 61 S. Ct. 693 (1941) 14, 17

ii

Sheila’s Shine Products, Inc. v. Sheila Shine, Inc., 486 F.2d

114 (10th Cir., 1973)

Shultz v. Wheaton Glass Co., 421 F.2d 259 or Cir.), cert.

denied, 398 U.S. 905 (1970)

Williams v. United States 402 F.2d 47 (10th Cir.. 1967)

Constitution of the United States:

Amendment Five

Statutes:

28 U.S.C. § 1254(1) . ;

29 U.S.C. § § 201 et seq. 2,

29 U.S.C. § 206(d)(1) 3, 6,

29 US.C. § 215(a)(2) me ee

29 U.S.C. § 217 .

Federal Rules of Civii Procedure:

Rule 65(d) 3, 6, 7,

Regulations:

29 C.F.R. § 800.121 anei 11,

Secondary Material:

109 Cong. Rec. 9203 (1963)

109 Cong. Rec. 9208 (1963)

Pace

17

10

17

14

12

No. 75-

In THE

Supreme Court of the United States

Ocroper TERM, 1975

Houston EnpowMENT INc.,

Petitioner

v.

Joun T. DuN OP,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

The Petitioner, Houston Endowment Ine., respectfully

prays that a writ of certiorari issue to review the judg-

ment and opinion of the United States Court of Appeals

for the Fifth Circuit entered in this proceeding on March

26, 1975.

OPINIONS BELOW

The Opinion of the United States Court of Appeals for

the Fifth Cireuit entered on March 26, 1975, (Appendix

A) is not to be reported. The Order of the Court of

Appeals denying Petitioner’s Petition for Rehearing and

2

Petition for Rehearing En Bane (Appendix B) was

entered on May 5, 1975. The Opinion (Appendix C) and

Judgment (Appendix D) of the United States District

Court for the Southern District of Texas, Houston Divi-

sion, were entered January 29, 1974 and March 25, 1974,

respectively.

JURISDICTION

The judgment of the United States Court of Appeals

for the Fifth Circuit was entered on March 26, 1975. A

timely Petition for Rehearing and for Rehearing En Bane

was denied on May 5, 1975, and this Application for

Certiorari has been filed within 90 days of that date. This

Court’s jurisdiction is invoked under 28 U.S.C.A. § 1254(1).

QUESTIONS PRESENTED

1. Whether the equal pay provisions of the Fair Labor

Standards Act, 29 U.S.C.A. § § 201 et seqg., are applicable

where:

a. The Court finds that the jobs of male and female

employees are substantially different for a substantial

portion of time; and

b. The Secretary of Labor looks behind Petitioner’s

bona fide job evaluation which he admits to be rea-

sonable, rejects Petitioner’s evaluation and substitutes

his own.

2. Whether due process of iaw is denied by the issuance

of an injunction which:

a. Fails to describe in reasonable detail the act or

acts to be enjoined, thus failing to set out fairly what

conduct is forbidden, thereby leaving Petitioner open

AE ALN ERIN TERE SII SET SEES TITLE ENNIS LF OEE SLR ESE ES BINT

3

to the hazard of conducting business in the mistaken

belief that its actions are not prohibited by the injune-

tion and later finding itself subject to punishment for

contempt; and

b. Is far broader in scope than the issues litigated,

thus placing Petitioner in jeopardy of being punished

for contempt of court for having made, in good faith,

reasonable job classifications concerning which there

has been no prior court determination that its conduct

is or may be in violation of the law.

3. Whether due process of law is denied by the Trial

Court’s having prepared a written Opinion prior to Peti-

tioner’s opening its case, which Opinion granted judgment

for the Secretary and recited that Petitioner had failed to

meet its burden of proof, or, alternatively, whether such

action by the Trial Court was so injudicious as to require

the exercise of the supervisory power of this Court.

CONSTITUTIONAL PROVISIONS INVOLVED

The Constitution of the United States, Amendment Five

(Appendix E).

STATUTORY PROVISIONS INVOLVED

29 U.S.C.A. § 206 (d) (1) (Appendix F).

29 U.S.C.A. § 215 (a) (2) (Appendix G).

29 U.S.C.A. § 217 (Appendix H).

RULES INVOLVED

Rule 65(d), Federal Rules of Civil Procedure (Appendix

I).

4

STATEMENT OF THE CASE

This is an Application for a Writ of Certiorari to the

United States Court of Appeals for the Fifth Cireuit to

review that Court’s affirmance of a Judgment of the United

States District Court for the Southern District of Texas,

Houston Division, entered March 26, 1974, in favor of the

Secretary of Labor in the principal amount of $20,558.20,

together with interest, which Judgment also provides cer-

tain injunctive relief.

This suit was filed in the United States District Court

for the Southern District of Texas, Houston Division, on

May 19, 1972, by James H. Hodgson, then Secretary of

Labor. Jurisdie*ien of the Court was based upon Section

17 of the Fair L. vr Standards Act of 1938, as amended,

29 U.S.C. § 201 et seg. (hereinafter called the “Act”).

The case was called to trial on January 18, 1974, before

the Honorable Carl O. Bue. Trial was recessed on the

afternoon of January 18, and reconvened on January 22,

1974. The afternoon session on January 22 began at 2:00

P.M. Tr. 306. Evidence was taken until 3:30 P.M., at which

time the Court recessed for fifteen (15) minutes. Shortly

thereafter, the Secretary rested his case, having presented

the testimony of 16 witnesses. Petitioner opened its case

at approximately 4:00 P.M., presented testimony of two

witnesses, Mr. Randolph C. Lorio (Building Manager of

the buildings in question) and Morino Pina, a former

employee, and then rested its case. Tr. 391. The Court

allowed brief oral argument, and, immediately at the con-

clusion of such arguments, announced its decision and read

a written opinion (Tr. 400-406) which is almost identical

to the Memorandum and Opinion finally entered in this

case. Appendix C. Since Petitioner opened its case after

EARP EEN ge RET

5

the final recess of the day, the written opinion read by the

Court from the bench, in which the Court recited that Peti-

tioner had failed to meet its burden of proof, must, of

necessity, have been written prior to the time that the

Petitioner opened its case.

There is no material dispute in this lawsuit that at all

pertinent times the Petitioner classified its custodial

employees as performing either “heavy custodial work”

or “light housekeeping work.” Those employees perform-

ing “heavy custodial work” were paid 10¢ an hour more

than those performing “light housekeeping work.” It is

also undisputed that the majority of custodial employees

performing “heavy custodial work” were male employees,

while the majority of employees performing “light house-

keeping work” were female employees. The “heavy cus-

todial” category included workers employed as freight

elevator operators, security guards, day custodial person-

nel, and evening custodial personnel. The “light house-

keeping” category included elevator operators and day and

evening custodial personnel. Although Defendant origin-

ally contended that female elevator operators and female

day custodial personnel were entitled to the higher pay

rate, Defendant abandoned its claim as to these employees

at trial and claimed only that female evening custodial

personnel in the light housekeeping category were entitled

to the same pay as those in the heavy custodial work

category. For purposes of brevity, the male and female

evening custodial workers are hereinafter sometimes

called “janitors” and “janitresses,” respectively.

The Secretary contended that the Endowment was and

is required to pay all its janitors and janitresses at the

higher rate because the “heavy custodial work” and the

“light housekeeping work” require substantially equal

6

skill, effort, and responsibility, and are performed under

similar working conditions. However, it was undisputed

and the Trial Court found that the “heavy custodial work”

performed by janitors and the “light housekeeping work”

performed by janitresses involved work which was sub-

stantially dissimilar for substantial portions of time.

Specifically, the Trial Court found that the “...men

assigned to janitorial duties in each of the buildings at

issue generally performed work assignments which were

different in nature from those performed by women....,”

Appendix C, p. C-3, and that “. .. the men regularly spent

a substantial portion of their time performing a type of

janitorial work which was not identical to the type of jani-

torial work which occupied a substantial portion of the

women’s time.” Appendix C, p. C-6 (emphasis added).

In spite of these threshhold findings, the Trial Court

found and the Appellate Court affirmed that the Act was

applicable. Having so found, the Trial Court entered and

the Appellate Court affirmed the following injunction:

“Defendant shall not, contrary to the provisions of

sections 6(d) (1) and 15(a) (2) of the Act, discriminate

within establishments in which employees are employed

between employees on the basis of sex by paying wages

to employees employed in the same establishments at

rates less than the rates at which it pays employees of

the opposite sex in such establishments for equal work

on jobs, the performance of which requires equal skill,

effort, and responsibility, and which are performed

under similar working conditions. Appendix D, p. D-2.

In view of the issues and evidence presented at trial,

relating solely to evening custodial employees, the injune-

tive relief granted by the Court does not comply with the

provisions of Rule 65(d), Federal Rules of Civil Pro-

cedure (“F.R.C.P.”), which states that

7

[e]very order granting an injunction . .. shall be spe-

cific in terms [and] shall describe in reasonable detail,

and not by reference to the complaint or other docu-

ment, the act or acts sought to be restrained....

The form of the injunctive relief granted by the Trial Court

herein does nothing more than follow the language of the

Act, and it wholly fails to provide the necessary notice and

guidance to Petitioner which is required by Rule 65(d),

F.R.C.P. Further, due to its breadth and vagueness, it

denies Petitioner due process by, among other things,

unfairly subjecting the Petitioner to possible contempt

proceedings in the future in connection with any job classi-

fication in any establishment in which it has employees,

without affording the Petitioner a fair opportunity to

receive a judicial determination that its conduct is or may

be in violation of the Act.

REASONS FOR GRANTING THE WRIT

THE JUDGMENT AFFIRMED BELOW PERMITS

THE SECRETARY, CONTRARY TO THE INTENT

OF THE ACT, TO GO BEHIND BONA FIDE JOB

EVALUATIONS AND REQUIRE EQUAL PAY

FOR HISTORICALLY UNEQUAL WORK.

In Corning Glass Works v. Brennan, US. >

41 L.Ed. 2d 1, 94S. Ct. (1974), this Court considered

the applicability of the Act in light of its history, recog-

nizing that Congressional intent, as revealed by that

history, was to insure “that wage differentials based upon

bona fide job evaluation plans would be outside the purview

of the Act.” 41 L.Ed. 2d at 13.

In this case, even the Secretary’s Compliance Specialist

admitted that Petitioner’s job evaluation was reasonable.

At trial, when asked if, based on his interviews, he felt

8

there was a “reasonable basis” to argue that the jobs were

or were not equal, he responded emphatically, “Certainly.”

Tr. 336, |. 22-Tr. 337, 1. 3. When asked if he felt “that there

was a reasonable basis for people differing in opinion as to

which one was the more difficult job,” he gave the same

| emphatic answer. Tr. 340, 1. 6-9.

This Court has correctly discerned the intent of Congress,

as expressed by Representative Goodell, a key sponsor of

the Act, that:

“If he [the employer] has a reasonable standard of

differentiation, the Labor Department is not to come

in, even, and judge the reasonableness or unreason-

ableness of this differentiation among employees,

except as it shows a clear pattern of discrimination

against sex.” (Emphasis added). 109 Cong. Ree. 9208

(1963).

Representative Griffin added :

“T should like to focus the attention of the gentlemen

upon small roman numeral iv, at the tep of page 3

which makes clear and explicitly states that a differen-

tial based on any factor or factors other than sex would

not violate this legislation. In other words, even

though jobs involve the same skill, equal effort, equal

responsibility, and are performed under the same

working conditions, if there is any other factor not

based on sex upon which a differential is based, then

no violation of this law can be found.” (Emphasis

added) 109 Cong. Ree. 9203 (1963) (Rep. Griffin, R.,

Mich.)

Therefore, when, as here, an employer has a reasonable

basis for its classification, it is clearly erroneous for either

the Secretary or the Trial Court to arbitrarily substitute

its judgment for that of tlie employer.

9

In Corning, supra, this Court said:

Significantly, it is not the Secretary in this case who is

trying to look behind Corning’s bona fide job evaluation

system to require equal pay for jobs which Corning has

historically viewed as unequal work. US. , 41

L.Ed. 2d at 15.

It is precisely that question which is now squarely before

this Court and which needs this Court’s resolution, not

merely for the guidance of the parties here involved, but

also for the guidance of all who will be concerned with the

applicability of the Act in the future.

Il.

THE JUDGMENT AFFIRMED BELOW CON.

FLICTS WITH THE OPINIONS OF OTHER

COURTS OF APPEALS WITH RESPECT TO THE

APPLICABILITY OF THE ACT.

As noted above, the judgment affirmed below held that

the Act was applicable even though the Trial Court found

that the men spent substantial portions of time performing

tasks substantially different from those performed by

women, and it was undisputed that the employers classi-

fication was reasonable.

The Court of Appeals for the Seventh Cireuit has

rejected the application of the Act under such cireum-

stances. In Hodgson v. Miller Brewing Co., 457 F.2d 221

(7th Cir., 1972) the Seventh Cireuit stated:

We agree that the Equal Pay Act does not authorize

courts to equalize wages merely because they find that

two substantially different jobs are worth the same

monetarily to the employer and therefore should be

paid the same wages. 457 F.2d at 227.

10

The Third Cireuit Court of Appeals said in Schultz v.

Wheaton Glass Co., 421 F.2d 259 (3rd Cir.), cert. denied,

398 U.S. 905 (1970).

[4] Differences in job classifications were in general

expected to be beyond the coverage of the Equal Pay

Act. This was because in the case of genuine job classi-

fications the differences in work necessarily would be

substantial and the differences in compensation there-

fore would be based on the differences in work which

justified them. 421 F.2d at 265 (emphasis added).

The erroneous application of the Act in this case resulted

from both courts overlooking the effect of important facts

either found by the Trial Court or undisputed in the

evidence, i.e.,

(1) The type of work done by the men is different in

nature from the type of work done by the women;

(2) These “different in nature” work assignments oceupy

a substantial portion of the men’s time; and

(3) The undisputed testimony of Plaintiff’s own “com-

pliance specialist” that Petitioner had a reasonable basis

for its classification of duties and for the wage differential

based thereon.

Under the law, the standard of “equal work” does not

become relevant until it is first proved that the work is

“substantially identical.” In this case, not only did the

trial court not find that the work was “substantially identi-

eal,” it found that the “. .. men assigned to janitorial duties

in each of the buildings at issue generally performed work

assignments which were different in nature from those per-

formed by women... ,” Appendix C. p. C-3, and that “... the

men regularly spent a substantial portion of their time per-

11

forming a type of janitorial work which was not identical

to the type of janitorial work which occupied a substantial

portion of the women’s time.” Appendix C, p. C-6 (em-

phasis added).

The Courts below then further confused the matter by

accepting the premise that the Act is applicable when

unskilled workers in the same department (cleaning per-

sonnel) mesh routine tasks requiring substantially equal

skill, effort and responsibility to accomplish a common

objective. The fallacy of this premise is that it assumes as

true the very matter to be proved, i.e, the applicability of

the Act’s standards to all different types of janitorial tasks.

Is the Act applicable to all unskilled janitorial personnel

who mesh routine tasks to accomplish a common objective?

The answer must be “no” for the following reasons:

(1) this premise assumes that all “routine unskilled”

tasks in the same department must be substantially

identical ;

(2) this premise assumes that job objective, not job

content, is controlling; and

(3) this premise assumes that wage differentiation

between unskilled workers performing routine work

assignments in the same department must be based

only on sex and can have no rational basis.

Each of these assumptions is invalid!

First, Plaintiff’s position assumes that all work assign-

ments performed in the same department must be “sub-

stantially identical” because they are “closely related.”

This novel position is directly contrary to the Regulations

promulgated by the Secretary pursuant to the Act. In 29

C.F.R. § 800.121, “Job Content Controlling,” Appendix J.,

12

p. J-1, the inapplicability of the Act to circumstances strik-

ingly similar to this case is clearly illustrated. The

employees hypothecated in the Regulation are both stock

clerks assigned to the same department who, in the words

of the Trial Court, “meshed their duties in accomplishing

a common objective,” Appendix C, p. C-d, i. e., assuring the

ready availability of merchandise for sale to the public.

However, there was a difference in job assignments. One

stock clerk was primarily concerned with checking inven-

tory while another of the opposite sex was primarily con-

cerned with carrying inventory. In spite of being unskilled

personnel assigned to the same department who meshed

routine tasks to accomplish a common objective, the Regu-

lation states:

Clearly, the equal pay standard would not apply where

jobs require such substantially different duties, even

though the job titles are identical. 29 C.F.R. §800.121.

Appendix J, p. J-1.

Second, this theory makes job objective, not job content,

controlling. The facts that the work of the janitors and

janitresses was of a different nature for a substantial por-

tion of time and that the Endowment had a reasonable

basis for its job classification must be totally ignored to

apply the Act merely because all workers had a common

objective — getting the building ready for the next busi-

ness day. To thus ignore job content and to urge applic-

ability of the Act because the workers have a common

objective, the Secretary must reject his own Regulations.

The result is to impose upon the Petitioner burdens which

the Act does not impose upon any and the Secretary does

not impose upon all!

Third, it is undisputed that the Endowment had a rea-

sonable basis for its classification and the wage differen-

ORI LTED BITLINE YM MR OI

13

tial based thereon. Plaintiff’s “compliance specialist” so

testified! Tr. 336, 1. 22-Tr. 337, 1. 3; Tr. 340 1. 6-9. Since

it is obvious that the Secretary’s “Compliance Specialist”

would not consider a distinction based only on sex “reason-

able,” the only conclusion which can be drawn from such

testimony is that the Petitioner’s classification was reason-

able based upon factors other than sex.

IIT.

THE INJUNCTION GRANTED AND AFFIRMED

BELOW RAISES SIGNIFICANT AND RECUR-

RING QUESTIONS CONCERNING THE PERMIS.

SIBLE SCOPE AND REQUIRED SPECIFICITY

OF INJUNCTIVE RELIEF.

The injunction granted and affirmed below reads:

“Defendant shall not, contrary to the provisions of see-

tions 6(d) (1) and 15(a) (2) of the Act, discriminate

within establishments in which employees are employed

between employees on the basis of sex by raying wages

to employees employed in the same estabishments at

rates less than the rates at which it pays employees of

the opposite sex in such establishments for equal work

on jobs, the performance of which requires equal skill,

effort, and responsibility, and which are performed

under similar working conditions.” Appendix D, p. D-2.

The scope of this injunction not only denies Petitioner

due process of law by being vague and indefinite, but also

denies Petitioner due process by applying to issues beyond

the scope of the litigation. The injunction should have

been limited to the establishments and to the class of

employees involved in the litigation. Failure to do so

exposes Petitioner to punishment for contempt in a situa-

tion where, as here, it has made an admittedly reasonable

classification of its work assignments and based a wage

14

differential thereon, which reasonable classification is later

rejected by the Secretary and by the Court. Such a con-

cept is surely shocking to the conscience.

In view of the issues and evidence presented at trial,

relating solely to evening custodial employees, the injune-

tive relief granted by the Court does not comply with the

provisions of Rule 65(d), F.R.C.P., which states that:

Every order granting an injunction . .. shall be specific

in terms [and] shall describe in reasonable detail, and

not by reference to the complaint or other document,

the act or acts sought to be restrained ...,

nor does it comply with the construction of that Rule by

this Court, which has held on numerous occasions that a

statute cannot be made the basis of contempt proceedings

merely by incorporating either a reference to the statute

or the language of the statute into an Order of the Court.

See, e.g., National Labor Relations Bd. v. Express Pub. Co.,

312 U.S. 426, 435-36; 85 L.Ed. 930, 936-37, 61 S. Ct. 693

(1941). Yet that is precisely what has been done in this

instance. The injunction merely engrafts a portion of the

statute in gross and uses the statutory language as a sub-

stantive command. It does not use the statute to show the

authority “pursuant” to which the injunction is issued or to

“define” the Acts prohibited.

While it is true that this Court has held that under some

circumstances, e.g., a demonstrated propensity to violate

the law, McComb v. Jacksonville Paper Co., 336 U.S. 187,

93 L.Ed. 599 (1949), a broad injunction may be justified,

neither this nor any other circumstance justifying such

vague and sweeping injunctive relief is present here.

First, all parties agreed and the Trial Court found that

there was no willful violation of the Act. Therefore, no

propensity to violate the Act has been demonstrated.

ERR RRO NG BRIAN IS ARO RT

15

Second, some broad injunctions do not place significant

risks of violations on an employer because they require

acts that are merely ministerial, such as the keeping of

records, or require little or no exercise of discretion on the

part of the party enjoined. See, e.g., Gulf King Shrimp

Company v. Wirtz, 407 F.2d 508 (5th Cir., 1969) (enjoined

“oppressive child labor” as defined in the Act, which

requires only a determination of the age of the employee,

the presence or absence of a determination by the Secretary

of Labor that an occupation is particularly hazardous or

detrimental to their health and well-being, the presence or

absence in the employer's file of an unexpired certificate

from the Secretary of Labor that the employee is above the

oppressive child-labor age, or the contents of a Regulation

or Order by the Secretary of Labor for industries other

than mining or manufacturing governing the extent to

which children may be employed in such industries).

Third, chain-wide injunctions have been issued in cases

where a policy of discrimination has been found which

extends beyond the plants or establishments in issue, and

denied where no such showing was made. Brennan v. J. M.

Fields, Inc., 488 F.2d 443 (5th Cir., 1974); Hodgson v.

Corning Glass Works, 474 F.2d 226 (2nd Cir., 1973);

Hodgson v. American Can Co., 440 F.2d 916 (8th Cir.,

1971).

Fourth, injunctions limited to a particular class of

employees have been broadened to include all employees

where the record contained evidence that the discrimination

was not limited to the area of employment to which the

injunction was limited. Hodgson v. First Fed. Sav. & L.

Assn. of Broward Co., Fla., 455 F.2d 818 (5th Cir., 1972).

This case falls into none of these categories. The Secre-

tary admitted that Petitioner did not willfully violate the

Act. The Court found no evidence of willful violation.

Appendix C, p. C-7. The injunction issued by the Court

16

below requires more than mere record keeping and the

exercise of minimal discretion. In fact, it places upon

Petitioner the risk of evaluating job categories not litigated,

making a good faith reasonable classification and basing a

wage differential thereon, and then being held in contempt

for violation of the injunction if the Secretary of Labor

rejects Petitioner’s reasonable classification, substitutes his

evaluation for that of the Petitioner, and the Court agrees

with the Secretary.

It is not sufficient to say that Petitioner can seek a clari-

fication of the injunction. A proposed judgment clarifying

the injunction by limiting it to the class of employees whose

work assignments were litigated was submitted to the Trial

Court, which refused it. The need for guidance from this

Court as to the permissible scope and required specificity

of injunctive relief is highlighted because of the increasing

use of such relief to enforce both court and administrative

edicts. To be strict in exacting obedience while being indef-

inite in the command to be obeyed is surely something

which the mind attuned to Constitutional due process

cannot tolerate!

IV.

THE INJUNCTION GRANTED AND AFFIRMED

BELOW IS CONTRARY TO THE RULINGS OF

OTHER CIRCUIT COURTS OF APPEAL.

The willingness of the United States Court of Appeals

for the Fifth Cireuit to affirm such a broad and vague

injunction places it at variance with other Courts of

Appeals. The Tenth Circuit has described as overly broad

an injunction which exposes a party to the hazards to which

Petitioner is exposed by the injunction granted below.

An injunction is overly broad which leaves parties

“open to the hazard of conducting business in the mis-

taken belief that it is not prohibited by the injunction

ah Sa RAINIER Eg EAT OE EMR ER TES

17

and later finding themselves subject to punishment for

contempt.” B & C Truck Leasing Inc. v. I.C.C. 10th

Cir. 1960, 283 F.2d. 163, 167. It is, of course, well

accepted that an injunction must be worded in such

specific terms and with such detail as to put the party

enjoined on notice of precisely what he is called upon

to do or refrain from doing. Williams v. United States,

10th Cir. 1967, 402 F.2d 47, 48. Sheila’s Shine Prod-

ucts, Inc. v. Sheila Shine, Inc., 486 F.2d. 114, 129 —

Cir., 1973).

The Second Circuit in Hodgson v. Corning Glass Works,

474 F.2d 226 (2nd Cir., 1973) aff’d, US. Gi se

21 L.Ed.2d 1 (1974), aligned itself with the Tenth and

Eighth Circuits and, more importantly, with this Court:

We agree with the point made by the Eighth Circuit,

in another Equal Pay Act case, Hodgson v. American

Can Co., 440 F.2d 916, 921 (1971), that absent a show-

ing of a policy of discrimination which extends beyond

the plants at issue here, there is no basis for a nation-

wide injunction. Moreover, the Supreme Court has

held that “the mere fact that a court has found that a

defendant has committed an act in violation of a statute

does not justify an injunction broadly to obey the stat-

ute and thus subject the defendant to contempt pro-

ceedings if he should at any time in the future commit

some new violation unlike and unrelated to that with

which he was originally charged.” NLRB v. Express

Publishing Co., 312 U.S. 426, 435-436, 61 S.Ct. 693, 699,

85 L.Ed. 930 (1941). Since there is no showing here of

the “proclivity for unlawful conduct” or “record of con-

tinuing and persistent violations of the Act” found to

justify such an injunction in McComb v. Jacksonville

Paper Co., 336 U.S. 187, 192, 69 S.Ct. 497, 500, 93 L.Ed.

599 (1949), the injunction must be narrowed accord-

ingly. 474 F.2d. at 236, 237.

Measured by these principles, the injunction entered

against Petitioner would be found constitutionally defec-

18

tive in the Second, Eighth and Tenth Circuits. It is of

great importance that the Constitution of the United States

be applied evenly among the States. To insure such, this

Court should grant this Petition and require that the

injunction be narrowed.

V.

THE ACTION OF THE TRIAL COURT WAS SO

INJUDICIOUS AS TO DENY PETITIONER DUE

PROCESS OF LAW AND TO REQUIRE THE

oo” OF THIS COURT’S SUPERVISORY

As pointed out in the Statement of the Case, at the con-

clusion of the trial the Court read a prepared written

Opinion. Since there was no recess from the time Peti-

tioner commenced presentation of its case until the read-

ing of this Opinion by the Trial Court, the written Opinion

must necessarily have been written prior to the time that

Petitioner opened its case. This Opinion, written prior to

the opening of Petitioner’s case, contains the following

statements:

This Court is also satisfied that the defendant has not

met his burden of showing legal justification for the

disparity. Tr. 401, 1. 13-15.

In this Court’s opinion defendant has not met its bur-

den by showing any objective evidence that the duties

performed by men as a class required greater effort

during a significant amount of time than that per-

formed by women as a class, thus justifying any wage

differential. Tr. 403, 1. 9-15.

This Court concludes that the defendant has shown no

justification in law or in fact for the disparity of the

hourly rates paid men and women employees doing cus-

19

todial work, and the Court therefore finds for the

Plaintiff. Tr. 404, 1. 11-15 (emphasis added).

It is with some reluctance that counsel for Petitioner

complains of this conduct by the Trial Court. However,

counsel cannot overlook or neglect his overriding duty and

obligation to his client, and to our system of justice, both

of which have been abused in these proceedings by the

conduct of the Trial Court. At the very least, the conduct

of the Trial Court has cast a shadow upon the fairness of

these proceedings which can be dispelled only by a new

trial.

When due process is denied in this fashion, there is no

recourse but to this Honorable Court. For the benefit of

all who come before the bench to be judged, and for the

benefit of all those who have been elevated to the bench

to judge, this Court should make clear that it will tolerate

nothing less than an open mind until both sides have rested

and closed.

CONCLUSION

For these reasons a writ of certiorari should issue to

review the judgment and opinion of the United States

Court of Appeals for the Fifth Cireuit.

Respectively submitted,

By Peng a ye te

Glen E. Clover

510 Gulf Building

Houston, Texas 77002

(713) 223-4151

Attorney for Petitioner

Houston Endowment Ine.

July, 1975

20

CERTIFICATE OF SERVICE

I hereby certify that three (3) copies of the foregoing

Petition for Writ of Certiorari have been served upon the

Solicitor General and upon Respondent’s attorney of record

as provided by Rule 33(1) and (2)(a), Supreme Court

Rules, by mailing same on July —_, 1975, to each at the

following addresses:

1. Solicitor General

Department of Justice

Washington, D.C. 20530

2. Mr. Donald S. Shire

Office of the Solicitor

United States Department of Labor

Room 4141 Main Labor

14th and Constitution Ave., N.W.

Washington, D.C, 20210

Attorney for Appellee John T.

Dunlop, Secretary of Labor

United States Department of Labor

21

APPENDICES

TABLE OF CONTENTS

APPENDIX A: Opinion of the United States Court of

Appeals for the Fifth Circuit, No. 74-2011, John T.

Dunlop, Secretary of Labor, United States Department

of Labor, Plaintiff-Appellee, v. Houston Endowment Inc.,

et al., Defendants-Appellants, dated March 26, 1975,

issued as Mandate

APPENDIX B: Notice of entry of Order of the United

States Supreme Court of Appeals for the Fifth Circuit

denying Petition for Rehearing and Petition for Rehear-

ing En Banc of Defendant-Appellant, No. 74-2011, John

T. Dunlop, Secretary of Labor, United States Department

of Labor, Plaintiff-Appellee vs. Houston Endowment Inc.,

efendant-Appellant, dated May 5, 1975

APPENDIX C; Opinion and Memorandum of the United

States District Court for the Southern District of Texas,

Houston Division, by the Honorable Carl O. Bue, No.

72-H-672, Peter J. Brennan, Secretary of Labor, United

States Department of Labor, Plaintiff, vs. Houston Endow-

ment Inc. and Realty Management Company, Defend-

ants, dated January 29, 1974

APPENDIX D: Judgment of the United States District

Court for the Southern District of Texas, Houston Divi-

sion, by the Honorable Carl O. Bue, No, 72-H-672, Peter

J. Brennan, Secretary of Labor, United States Department

of Labor, Plaintiff v. Houston Endowment Inc. and Realty

ae Company, Defendants, entered March 25,

APPENDIX E: Fifth Amendment to the Constitution of

the United States of America

APPENDIX F: Fair Labor Standards Act, Title 29, United

States Code, § 206(d)(1)

APPENDIX G: Fair Labor Standards Act, Title 29, United

States Code, § 215(a)(2)

APPENDIX H: Fair Labor Standards Act, Title 29, United

States Code, § 217

APPENDIX I: Rule 65(d), Federal Rules of Civil Procedure

APPENDIX J: Title 29, Code of Federal Regulations,

§ 800.121 Saat PEWS nh meen

PacE

A-l

B-1

C-l

A-l

APPENDIX A

In The

United States Court of Appeals

For Tae Firrx Cirecuir

—,, DONOT

Joun T. DuNLop p U B LI S H

Secretary oF Lasor, Unrrep States DepartTMENT OF LABOR

Plaintiff-Appellee,

Vv.

Houston EnpowMENT, INC., ET AL.,

Defendants-A ppellants.

APPEAL FROM THE Unirtep States District Court

FOR THE SoutTHERN District or TEXAs

(March 26, 1975)

Before GOLDBERG, RONEY, Circuit Judges, and

GROOMS, District Judge.

PER CURIAM: AFFIRMED. See Local Rule 21.'

Costs are taxed against the defendants-appellants.

' See N.L.R.B. v. Amalgamated Clothing Workers of America, 1970,

430 F.2d 966.

Issued as Mandate: May 13, 1975.

B-1

APPENDIX B

United States Court of Appeals

Firrxs Circuit

OFFICE OF THE CLERK

600 Camp Street

New Orleans, La. 70130

May 5, 1975

Epwarp W. WapswortH, CLERK

TO ALL COUNSEL OF RECORD:

No. 74-2011

Joun T. Duntop, Ere.

VS.

Houston EnpowMeEnt, INc., ET. AL.

Dear Counsel:

This is to advise that an order has this day been entered

denying the petition( ) for rehearing, and no member of

the panel nor Judge in regular active service on the Court

having requested that the Court be polled on rehearing en

bane (Rule 35, Federal Rules of Appellate Procedure:

Local Fifth Cireuit Rule 12) the petition( ) for rehearing

en banc has also been denied.

B-2

See Rule 41, Federal Rules of Appellate Procedure for

issuance and stay of the mandate.

Very truly yours,

EDWARD W. WADSWORTH

Clerk

By .

Deputy Clerk

ec: Messrs. Glen EF. Clover

Jess Hall

Ms. Carin Ann Clauss

Mr. Donald Shire

Ms. Melanie Franco Nussdorf

Messrs. Richard L. Collier

M. J. Parmenter

Ms. Joan T. Winn

C-1

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

CIVIL ACTION NO. 72-H-672

Perer J. BRENNAN, SECRETARY OF LABOR,

Unrrep States DEPARTMENT OF LaBor,

Plaintiff

v.

Houston ExpowMeEnt, INc., AND

Reatry MANAGEMENT Company,

Defendants

Ricuarp L. Couuier, OFFICE OF THE SOLICITOR,

U.S. DeparTMENT oF Lapor, Dau.as, Texas,

FOR PLAINTIFF.

GLEN E. Cuiover, Lippe, Sapp, Zivtey & Brown,

Houston, TExas, ron DEFENDANTS.

? ,

MEMORANDUM AND OPINION

This cause of action was brought by Peter J. Brennan,

Successor in Office to James D. Hodgson, as Secretary of

Labor, United States Department of Labor. The defend-

ant Houston Endowment, Inc., is a corporation organized

and existing under the laws of the State of Texas with its

principal office and place of business in the City of Houston,

Harris County, Texas. At all times material hereto defend-

ant has owned, managed and operated the following office

buildings known as:

Bankers Mortgage Building

708 Main Street

Houston, Texas

C-2

1114 Texas Avenue Building

1114 Texas Avenue

Houston, Texas

C & 1 Life Building

1006 Main Street

Houston, Texas

The defendant also owne|, managed and operated the office

building known as the fiouston Bar Center Building,

located at 723 Main Street, Llouston, Texas, from January

2, 1948, to January 31, 1972. The defendant at all times

material hereto has been engaged in related activities per-

formed through unified operations or common control for a

common business purpose. The defendant realized an

annual gross volume of sales made or business done in

excess of $250,000 for each of the years 1970, 1971, 1972

and 1973. At all times since May 19, 1970, the defendant

has employed numerous employees in Houston, Texas. At

trial it was admitted by defendant that at all times since

May 19, 1970, it has employed numerous employees in

Houston, Texas, at least two of whom were engaged in

such activities as operating and directing elevators, car-

rying mailmen in elevators who are carrying the United

States mail, preparing and receiving correspondence to

and from places located outside of the State, and handling

and working with goods such as cleaning compounds, glass

and toilet paper originally produced outside of the State

of Texas.

In light of the foregoing, the Court concludes that the

defendant Houston Endowment, Inc., for purposes of this

suit, at all times since May, 1970, has constituted an enter-

prise engaged in commerce and the production of goods

for commerce as defined in Sections 3(r) and 3(s)(1) of

C-3

the Fair Labor Standards Act of 1938 (hereinafter

referred to as the Act), 29 U.S.C. §§ 203(r), 203(s) (1).

Brennan v. Dillion, 483 F.2d 1334 (10th Cir. 1973); Shultz

v. Wilson Building, Inc., 478 F.2d 1090 (5th Cir. 1973);

Shultz v. Travis Edwards, Inc., 465 F.2d 1050 (5th Cir.

1972), cert. denied, 409 U.S. 1076. This Court has juris-

diction over this cause of action. Since, however, no

evidence has been adduced as to the defendant, Realty

Management Company, the said defendant is hereby dis-

missed from this action.

With respect to the merits of this lawsuit, this Court

has listened attentively to each of the witnesses, given

particular attention to their credibility, studied the legal

authorities submitted and carefully considered the argu-

ments presented by counsel. The evidence has shown a

definite pattern whereby men assigned to janitorial duties

in each of the buildings at issue generally performed work

assignments which were different in nature from those

performed by women, but were substantially equal in terms

of skill, effort and responsibility. The men frequently

operated one or more motor-driven machines, such as floor

buffers, wet vacuums, or carpet pile lifters. Women con-

sistently did not do so except for vacuum cleaners, although

there was some testimony that one woman used a pile lifter

with some unspecified frequency. Another woman testified

that she regularly used a floor buffer similar to those

described in this trial, although it was at another location

not owned or operated by the defendant. Men were regu-

larly assigned to those duties requiring use of the machines,

such as floor serubbing, waxing and polishing and also

carpet shampooing. Men usually did those chores requiring

use of a step-ladder, such as the changing of light bulbs.

One man cleaned the men’s restrooms and wet-mopped all

C4

bathrooms. Women were usually assigned to office cleaning

tasks such as dusting, cleaning, removing trash, vacuum-

ing, tile scrubbing, spot cleaning of walls and carpets,

cleaning venetian blinds and related duties. In some areas

of work assignments there was substantial overlap, as

both men and women were assigned to vacuuming duties

on a regular basis. Both cleaned bathrooms, although the

men did the mopping, and men occasionally cleaned vene-

tian blinds. Women were reported to have been given the

opportunity at one of the buildings to work on the serub-

crew without any takers; to the contrary, there was testi-

mony from at least one of the women that she would go to

work on the scrubcrew if given the opportunity, in order

to benefit from the pay differential.

There was no probative evidence presented that defend-

ant had considered any of the duties regularly assigned

to men in an effort to determine comparative differences,

if any, with respect to the amount of skill, effort, or

responsibility required. There was no probative evidence

forthcoming that any effort had been made to determine

whether or not any given female janitorial applicant or

employee was capable of doing any particular job.

Similarly, there was no probative evidence that male

applicants or employees were screened for any particular

duties. The evidence was clear that at all material times

men consistently received $0.10 per hour more than women,

regardless of the work assignment involved.

The Court is fully aware that the law requires sub-

stantially identical or substantially equal work and that

mere comparability is not enough. Brennan v. City Stores,

Inc., 479 F.2d 235, 238-39 (5th Cir. 1973). This Court is

satisfied that the Secretary has met his burden of proof in

showing the degree of equality of work and inequality of

pay necessary to shift the burden of proof to the defendant.

C-5

This Court is also satisfied that the defendant has not met

its burden of showing legal justification for the disparity.

It should first be noted that any work assignment bear-

ing a higher wager which includes no women carries the

stigma of suspect validity. See Hodgson v. Behrens Drug

Co., 475 F.2d 1041, 1048 (5th Cir. 1973); Shultz v. First

Victoria National Bank, 420 F.2d 648, 659 (5th Cir. 1969).

Similarly, any wage differential which might be justified

may be applied only to those persons, male or female, who

are individually unable or unwilling to do that work to

which the higher wage is attributable. See Schultz v.

Wheaton Glass Co., 421 F.2d 259, 264 (3d Cir. 1970), cert.

denied, 398 U.S. 905. Each employee must be afforded a

reasonable opportunity to demonstrate his or her ability

to perform the allegedly more strenuous job on a regular

basis. See Krumbeck v. John Oster Manufacturing Co.,

313 F. Supp. 257, 262 (E.D. Wis. 1970).

The Court has considered the testimony of the wit-

nesses as to the work performed by each and their esti-

mates of the skill and effort involved. The evidence

indicates that both men and women performed duties of

essentially equal responsibility. This Court must look to

the reasonable pattern of the work involved, the daily

cleaning of offices in which men and women meshed their

duties in accomplishing a common objective. The skill re-

quired of the men and boys who operated the various

power-operated machinery appears to this Court to be no

greater than the skill required of women in vacuuming and

cleaning venetian blinds with the proper tools. The sole

difference appears to be one of exposure, experience and

familiarity with the equipment. As the evidence showed,

most of the women were not exposed to most of the types

of machines. This lack of exposure, controlled by defend-

ant, does not warrant any wage differential.

C-6

Judging by the interrogation of the witnesses and

arguments of counsel, most of this dispute centers around

the efforts required of men and women in performing their

jobs and whether or not such efforts were substantially

equal. Considering the evidence as a whole, the Court is

satisfied that the use by men of power-driven equipment

requires no more effort, as a whole, than the amount of

effort expended by women on their duties. The Court

heard much testimony regarding the comparative efforts

expended in using wet mops versus dry mops, in pushing

mop buckets on coasters versus pushing trash containers

on wheels, and on a variety of like duties. In this Court’s

considered opinion the defendant has not met his burden

by showing any objective evidence that the duties per-

formed by men as a class required greater effort over a

significant period of time than that performed by women

as a class so as to justify any wage differential.

The sole issue thus becomes, in this Court’s opinion,

whether the Act applies to the circumstances here shown

in which the men regularly spent a substantial portion of

their time performing a type of janitorial work which was

not identical to the type of janitorial work which occupied

a substantial portion of the women’s time. This Court

concludes that it does. Differences in jobs or duties, if sub-

stantially similar, may still be considered to be equal work

in appropriate circumstances. Cf. Hodgson v. American

Bank of Commerce, 447 F.2d 416, 419 n.3 (5th Cir. 1971).

Similarly, differences or dissimilarities may be ignored,

unless they somehow explain the pay differential. Cf.

Hodgson v. Brookhaven General Hospital, 436 F.2d 719,

723 & n.3 (5th Cir. 1970). As the Seeretary’s Regulations

point out, the Act may be applicable to jobs requiring equal

skill, effort and responsibility, even though the actual

C-7

duties may involve different products, machines, equip-

ment, or locations within the establishment. See 29 CFR

§§ 800.121 to 800.123. Such regulations, although not bind-

ing, are entitled to great deference. The presumption is

that they are valid unless shown to be erroneously in con-

flict with the Act itself. See Griggs v. Duke Power Com-

pany, 401 U.S. 424, 433-34, 91 S.Ct. 849, 28 L.Ed.2d 158,

165 (1971); Brennan v. City Stores, Inc., 479 F.2d 235, 240

(5th Cir. 1973).

This Court concludes that the defendant has shown

no valid justification in law or in fact for the disparity of

hourly rates paid to men and women employees doing

custodial work. The Court therefore finds for the plaintiff.

The record reveals no evidence that employer’s discrimina-

tion against women was willful; therefore, the Court

concludes that the two-year Statute of Limitations is

applicable.

The Court has considered carefully the nature of the

ease and has concluded that violations of the Equal Pay

Act have been shown and that the remedy for the differ-

ential payment was not limited to an action brought under

Title VII. See Hodgson v. Golden Isles Convalescent

Homes, Inc., 468 F.2d 1256 (5th Cir. 1972). Title VII does

overlap the coverage of the Equal Pay Act, as both apply

to disparate wages. Schultz vy. First Victoria National

Bank, 420 F.2d 648, 659 n.26 (1969). Furthermore, Title

VII and the Act should be harmonized. Hodgson v. Brook-

haven General Hospital, 436 F.2d 719, 727 (5th Cir. 1970).

The facts shown in this case do not indicate that the

janitors performed any additional functions, labor, effort,

skill or responsibilities when their duties are compared

with those of the janitresses. Under these circumstances,

the question does not arise as to whether a classification

C-8

reserved to men which receives extra compensation for

extra work should be open to women, a Title VII issue;

the question is whether women should receive equal pay

for equal work. This latter issue has been properly brought

under the Equal Pay Act.

The remaining issue pertains to the applicability of

an injunction. In determining whether an injunction

should issue in a Fair Labor Standards Act case, the

district court should consider such factors as employer’s

previous actions of non-compliance, the moral and business

responsibility of the employer, the promises of future

compliance and whether the defendant’s litigious conten-

tion is the legitimate good faith quest for legal determina-

tion or is the mere pretense to thwart effective compliance

with the Act. Godberg v. Cockrell, 303 F.2d 811, 813 (5th

Cir. 1962); Mitchell v. Hausman, 261 F.2d 778, 780 (5th

Cir. 1958). The probability of future compliance is a

decisive factor in the decision to grant an injunction

against future violations. Wirtz v. Atlas Roofing Manu-

facturing Co., 377 F.2d 112 (5th Cir. 1967). However, since

an injunction does no more than require that the law be

followed, the minimal inconvenience to the employer, bal-

anced against the difficulties of enforcing the Act to the

public benefit, argues strongly for issuance of an injunction

in this type of case. Shultz v. Parke, 413 F.2d 1364, 1368

(5th Cir. 1969). Under the circumstances, the Court be-

lieves it appropriate that an injunction should issue.

This Court now directs the parties to confer with

respect to damages under the Act in an effort to reach a

mutual agreement as to amount. An appropriate judgment

and order of injunction should be submitted to the Court

within thirty (30) days.

C-9

DONE at Houston, Texas, this 29th day of January,

1974.

Carl O. Bue, Jr.

United States District Judge

D-1

APPENDIX D

United States District Court

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

Civil Action

No. 72-H-672

Peter J. BRENNAN,

SeEcRETARY OF LABOR, Unirep States DepartrMeENt or LasBor,

Plaintiff,

v.

Hovston ExpowMeEnt, Inc. and

Reauttry MANAGEMENT Company,

Defendants.

JUDGMENT

This case came duly on for hearing before the Court

sitting without a Jury, and the Court, after hearing the

evidence, the arguments of counsel, and being fully advised

in the premises makes and enters the following Judgment

in accordance with the Memorandum and Opinion entered

on January 29, 1974:

It is hereby ORDERED, ADJUDGED, and DECREED

that defendant Houston Endowment, Inc., a corporation,

its officers, agents, servants, employees, and those persons

in active concert or participation with it be and they hereby

are permanently enjoined and restrained from violating the

provisions of section 15(a)(2) of the Fair Labor Standards

D-2

Act of 1938, as amended (29 U.S.C. 201 et seg.), hereinafter

referred to as the Act, in any of the following manners:

I

Defendant shall not, contrary to the provisions of sections

6(d)(1) and 15(a)(2) of the Act, discriminate within

establishments in which employees are employed between

employees on the basis of sex by paying wages to employees

employed in the same establishment at rates less than the

rates at which it pays employees of the opposite sex in such

establishments for equal work on jobs, the performance of

which requires equal skill, effort, and responsibility, and

which are performed under similar working conditions.

II

It is further ORDERED, ADJUDGED, and DECREED

that defendant be enjoined and restrained from withholding

payment of unpaid wages in the total amount of $20,558.20,

which the Court finds to be due unde * the Act to defendant’s

employees and former employees named below in the

amounts specified :

Name Dates of Employment Amount

Regina Antkowiak 10-15-71 to 12-30-73 $ 562.80

Hilma Akins 5-31-70 to 12-30-73 609.50

Susie D. Arriola 5-31-70 to 7-15-72 353.40

Mary Barclay 11-30-70 to 1-15-72 200.20

Doris Barnett Shires 3-15-71 to 12-30-71 119.30

Viola Bennett 9-15-71 to 1-30-72 270.05

Frances Bond 5-31-70 ta 2-28-73 546.20

Mario Briano 9-30-73 to 12-30-73 46.40

Sue Burnell 5-31-70 to 8-15-70 36.15

Delfina Carter 5-31-70 to 12-30-70 111.40

Faustina Carrizales

12-15-72 to 12-30-73

Name

Verna Carver

Nancy Castanada

Valeria Cegielski

Gladys Cook

Nellie Corbett

Verna Davis

Alyne Devlin

Luz de Granda

Melissa Elliott

Sybil Edwards _. | ti |

Merle Elliott

Edith Estes

Maggie Faterkowski

Jennie Ferro

Hortencia Flores

Nona French

Modenia Fults

Ermelinda Garza

Nellie Glass

Carolina Gonzales

(Ramirez)

Pearl Hampton

Mabel Haragan

Mattie Harris

Alaph Heaton

Elidia Hernandez

Ruth Hidalgo

Bertha Holiday

Annie Hundle

Martha Jankowiak

Era Exa Lanier

D-3

Dates of Employment

Amount

11-15-71 to 1-30-72

5-31-70 to 1-30-72

6-15-72 to 12-30-73

11-15-73 to 12-30-73

5-31-70 to 12-30-71

5-31-70 to 12-30-73

5-15-71 to 9-15-71

5-31-70 to 2-28-73

2-28-73 to 12-30-73

5-31-71 to 4-15-72

1-31-72 to 2-29-72

5-31-70 to 2-28-71

6-15-70 to 7-15-71

12-31-70 to 12-31-73

5-31-70 to 12-30-72

9-15-71 to 9-30-71

10-15-71 to 12-30-73

5-31-70 to 6-30-71

9-15-70

5-31-70 to 11-30-70

5-31-70 to 2-28-73

8-31-70 to 9-15-70

5-31-70 to 2-28-71

5-31-70 to 12-30-73

9-31-70 to 7-30-73

2-29-70 to 10-30-73

6-30-71 to 12-30-73

7-31-73 to 8-30-73

5-31-70 to 12-30-71

10-15-70 to 12-31-73

5-19-70 to 2-28-73

7-31-70 to 11-30-70

$ 42.00

597.30

36.20

291.60

657.30

60.90

565.30

156.30

489.50

12.90

139.85

197.20

511.00

477.00

7.00

368.30

197.80

5.80

58.30

505.40

14.00

140.70

640.60

569.60

298.00

457.00

8.20

286.40

106.40

453.35

62.40

Name

Verna Lehde

Elsie Lehmann

Bertha Lovell

Carmen Magdeleno

Mary V. Martin _.

Agnes Mauk _..

Gertrude McKay

Jennie McKay

Eva C. Melchor

Katie Meleski

Cartarina Mendez

Jewel Miller...

Elizabeth Milsaps

Helen Mixon...

Hilda Moers ._.....

Peggy Murphree

Stella Muzyka |

Susie Nicasio

Helen Nowak

Angelita Ontiverez

Virginia Ortega

Sarah Osgood

Byrtie Owens

Mary Pargac

Mary Pawalowski

Teresa Maria Robles

Shirley Rojas

Pearl Rosales

Graciela Sanchez

Hope Sanchez

Josephine Silvo

Evelyn Spann

D-4

Dates of Employment

Amount

7-15-70 to 7-15-71

5-81-70 to 1-30-72

1-31-73 to 12-30-73

5-31-70 to 12-15-73

5-31-70 to 3-15-71

8-31-73 to 12-30-73

5-31-70 to 2-15-71

5-31-70 to 7-15-73

8-15-71 to 12-30-73

5-31-70 to 1-30-72

6-15-72 to 12-30-73

6-15-71 to 10-30-71

1-31-71 to 8-15-72

5-31-70 to 7-30-70

3-31-73 to 5-30-73

5-31-70 to 2-28-73

5-31-70 to 12-30-72

5-31-70 to 12-30-73

5-31-70 to 1-30-72

11-15-70 to 11-30-70

2-29-72 to 1-30-73

10-15-71 to 2-15-72

9-30-70 to 3-30-71

5-31-70 to 4-30-73

5-31-70 to 9-30-71

5-31-70 to 6-30-72

6-15-72 to 9-15-73

9-30-72 to 10-15-72

7-15-71 to 11-15-71

4-30-73 to 8-15-73

5-31-70 to 12-30-73

5-31-70 to 2-28-71

5-31-70 to 10-15-71

$185.80

303.55

175.00

579.70

146.70

61.80

121.90

575.20

427.60

586.00

60.10

177.60

49.00

135.10

507.10

283.60

680.30

292.40

5.80

161.75

64.30

92.20

506.30

234.10

355.90

41.65

8.15

54.70

56.60

650.70

141.10

283.00

D-5

Name Dates of Employment Amount

Syble Lee Stokes __. 5-31-70 to 7-30-70 $ 28.70

Martha Stzelecke _ §-81-70 to 7-30-70 29.80

JeanSumrall...._—_—...._ -31-70 to 8-15-71 221.70

Guadalupe Uresti. © — 5-31-70 to 6-30-71 106.10

Imelda Valdes

(Montes) a 3-15-73 to 12-30-73 144.10

Martha Valdes __ 7-15-73 to 9-15-73 31.50

Eufracia Vallanveva .. 4-30-73 to 8-30-73 64.35

Alice (Serrata) oe

. NE ee 2-29-72 to 6-15-72 44.75

Gladys Warden ...._—_—_—&#9.-31-70 to 12-30-72 289.00

Rachel Yeppez ....... 4-30-71 to 12-30-71 112.20

Maes 2... $20,558.20

The provisions of this paragraph shall be deemed satis-

fied when the defendant delivers to the plaintiff Certified

or Cashier’s Checks payable to the named employee or

former employee in the amounts specified, together with

interest computed at the rate of 6% per annum from the

dates on which said amounts became due and owing, until

paid, less income tax and Social Security withholding on

such amounts. Plaintiff shall compute the interest herein

ordered to be paid through January 29, 1974, and shall

furnish such computations to Defendant, together with a

computation of the per diem accrual of interest for the

amount due each employee or former employee after

January 29, 1974, until paid. Defendant shall compute and

withhold from amounts due deductions for income tax and

Social Security withholding. The payments provided for

herein shall be made within 30 days of the entry of this

Judgment or receipt of the interest computations to be

made by Plaintiff, whichever is later.

D-6

It is further ORDERED that plaintiff, upon the receipt

of such Certified or Cashier’s Checks from the defendant,

shall promptly proceed to make distribution to defendant’s

employees and former employees named in the above

paragraph or to the legal representatives of any deceased

person so named, in the amounts indicated, less income tax

and Social Security withholding. If, after making a reason-

able and diligent effort to distribute such amounts to the

persons entitled thereto, plaintiff is unable to do so because

of inability to locate a proper person, or because of a

refusal to accept payment by any such person, plaintiff,

pursuant to 28 U.S.C. Section 2041, shall deposit such Certi-

fied or Cashier’s Checks with the Clerk of this Court

accompanied by a list of each such person’s name, last

known address, and amount due. Any such Certified or

Cashier’s Checks may be withdrawn for distribution to the

person entitled thereto upon order of this Court.

It is further ORDERED that defendant will pay the costs

of this action.

Dated this 26th day of March, 1974.

Carl O. Bue, Jr.

United States District Judge

E-1

APPENDIX E

CONSTITUTION

AMENDMENT V — CAPITAL CRIMES; DOUBLE

JEOPARDY; SELF-INCRIMINATION; DUE

PROCESS; JUST COMPENSATION

FOR PROPERTY

No person shall be held to answer for a capital, or other-

wise infamous crime, unless on a presentment or indict-

ment of a Grand Jury, except in cases arising in the land

or naval forces, or in the Militia, when in actual service in

time of War or public danger; nor shall any person be

subject for the same offence to be twice put in jeopardy of

life or limb; nor shall be compelled in any criminal case to

be a witness against himself, nor be deprived of life, liberty,

or property, without due process of law; nor shall private

property be taken for public use, without just compensa-

tion.

F-1

APPENDIX F

29 USCA § 206 (d) (1)

(d)(1) No employer having employees subject to any pro-

visions of this section shall discriminate, within any estab-

lishment in which such employees are employed, between

employees on the basis of sex by paying wages to employ-

ees 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 wage rate of any employee.

G-1

APPENDIX G

29 USCA § 215 (a) (2)

§ 215. Prohibited acts; prima facie evidence

(a) After the expiration of one hundred and twenty days

from June 25, 1938, it shall be unlawful for any person —

(2) to violate any of the provisions of section 206

or section 207 of this title, or any of the provisions of

any regulation or order of the Administrator issued

under section 214 of this title;

H-1

APPENDIX H

29 USCA § 217

§ 217. Injunction proceedings

The district courts, together with the United States

District Court for the District of the Canal Zone, the

District Court of the Virgin Islands, and the District Court

of Guam shall have jurisdiction, for cause shown, to

restrain violations of section 215 of this title, ineluding in

the case of violations of section 215(a)(2) of this title the

restraint of any withholding of payment of minimum wages

or overtime compensation found by the court to be due

to employees under this chapter (except sums which

employees are barred from recovering, at the time of the

commencement of the action to restrain the violations, by

virtue of the provisions of section 255 of this title. June

25, 1938, e. 676, § 17, 52 Stat. 1069; Oct. 26, 1949, ec. 736,

§ 15, 63 Stat. 919; 1950 Reorg. Plan No. 6, $§ 1, 2, 15 F.R.

3174, 64 Stat. 1263: Aug. 30, 1957, Pub. L. 85-231, § 1((3),

71 Stat. 514; July 12, 1960, Pub.L. 86-624, § 21(c), 74 Stat.

417; May 5, 1961, Pub.L. 87-30, § 12(b), 75 Stat. 74.

I-1 :

APPENDIX I

PROVISIONAL AND FINAL REMEDIES — RULE 65

(d) Form and Scope of Injunction or Restraining Order.

Every order granting an injunction and every restraining

order shall set forth the reasons for its issuance; shall be

specific in terms; shall describe in reasonable detail, and

not by reference to the complaint or other document, the

act or acts sought to be restrained; and is binding only

upon the parties to the action, their officers, agents, ser-

vants, employees, and attorneys, and upon those persons

in active concert or participation with them who receive

actual notice of the order by personal service or otherwise.

J-1

APPENDIX J

§ 800.121 Job content controlling.

Application of the equal pay standard is not dependent

on job classifications or titles but depends rather on actual

job requirements and performance. For example, the fact

that jobs performed by male and female employees may

have the same total point value under an evaluation system

in use by the employer does not in itself mean that the jobs

concerned are equal according to the terms of the statute.

Conversely, although the point values allocated to jobs may

add up to unequal totals, it does not necessarily follow that

the work being performed in such jobs is unequal when the

statutory tests of the equal pay standard are applied. Job

titles are frequently of such a general nature as to provide

very little guidance in determining the application of the

equal pay standard. For example, the job title “clerk” may

be applied to employees who perform a variety of duties

so dissimilar as to place many of them beyond the scope of

comparison under the statute. Similarly, jobs included

under the title “stock clerk” may include an employee of

one sex who spends all or most of his working hours in

shifting and moving goods in the establishment whereas

another employee, of the opposite sex, may also be de-

scribed as a “stock clerk” but be engaged entirely in check-

ing inventory. Clearly, the equal pay standard would not

apply where jobs require such substantially different

duties, even though the job titles are identical. In other sit-

uations, including those which exist in the case of jobs

identified by the general title “retail clerks”, the facts may

show that equal skill, effort, and responsibility are required

in the jobs of male and female employees notwithstanding

they are engaged in selling different kinds of merchandise.

In all such situations, the application of the equal pay

standard will have to be determined by applying the terms

of the statute to the full factual situation.