Diane Peltier, Appellants-Cross-Appellees v. City of Fargo, a Municipal Corporation, Appellees-Cross-Appellants

533 F.2d 374
CourtCourt of Appeals for the Eighth Circuit
DecidedMarch 30, 1976
Docket75-1597 and 75-1598
StatusPublished
Cited by69 cases

This text of 533 F.2d 374 (Diane Peltier, Appellants-Cross-Appellees v. City of Fargo, a Municipal Corporation, Appellees-Cross-Appellants) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Diane Peltier, Appellants-Cross-Appellees v. City of Fargo, a Municipal Corporation, Appellees-Cross-Appellants, 533 F.2d 374 (8th Cir. 1976).

Opinions

HEANEY, Circuit Judge.

Diane Peltier, Connie Wolter and Sally Suby appeal from an adverse decision in their sex discrimination suit against the Police Department and City of Fargo, North Dakota, for alleged violations of the Equal [376]*376Pay Act of 1963, 29 U.S.C. § 206(d)(1), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. The appellants assert error in the trial court’s denial of their back pay claims under the Equal Pay Act or under Title VII, its denial of sufficient injunctive relief to eliminate the present effects of past and present sex discrimination in the Fargo Police Department under Title VII and its allegedly insufficient award of attorney’s fees. The City of Fargo cross appeals and contends that the $2,500 attorney’s fees awarded is excessive. We reverse and order back pay, with interest, under the Equal Pay Act and attorney’s fees of $5,000.

Male patrol officers serve in numerous law enforcement capacities within the Fargo Police Department. Prior to 1973, several patrol officers were normally assigned to downtown parking control duties which required them primarily to check and ticket for parking and other non-moving violations. In the spring of 1973, the Police Department created a new classification on the City employment list entitled /‘car marker.” This position was designed to provide necessary downtown parking control and to allow the transfer to other positions those officers normally assigned that duty. The three female appellants were hired to fill the car marker positions. Their basic wage rate was approximately one-half the rate of a beginning male patrol officer.

The appellants contend that they perform essentially the same duties as did the male patrol officers who performed downtown parking control duties prior to the creation of the “car marker” position. They contend that the present fifty percent discrepancy in salary is a violation of the Equal Pay Act. They also assert that the male patrol officers who performed car-marking duties were eligible for promotion and transfer as were any other male patrol officer, but that they are not. The appellants assert this restriction of promotion and transfer, coupled with the patrol officer selection process, including unvalidated tests and personal interviews, has resulted in sexual discrimination in violation of Title VII.

The District Court found that the appellants had failed to prove that the job performed by the female car markers was equal in skill, effort and responsibility to that of male patrol officers performing earmarking duties prior to the spring of 1973 and denied their back pay petition under the Equal Pay Act.1 It further found that a prima facie case of sex discrimination, in violation of Title VII, had been established because no woman had ever been hired as a patrol officer and only three women were employed as police officers in the Fargo Police Department. The court recognized that the appellants were entitled to an equal opportunity to qualify and become patrol officers. However, the appellants admitted that they had never applied for a position as a patrol or police officer and the District Court determined that they had “failed to satisfactorily explain” this failure and denied their claim for back pay under Title VII.

The District Court additionally found that the City and the Police Department: (1) had failed to actively recruit women and minorities for police or patrol officer positions; (2) had advertised for these positions on a sex basis; and (3) had utilized an unvalidated employment test and a height and weight requirement to screen police and patrol officer candidates. The court found the appellees had not offered a satisfactory explanation for these practices which had resulted in discrimination. Therefore, the court, within its equitable power under § 706(g) of Title VII, 42 U.S.C. § 2000e-5(g), ordered the appellees to adopt an affirmative action plan and a validated test and to submit a report to the court for its review.

I. EQUAL PAY ACT.

The appellants contend that they have and are performing the same duties that the male car markers, classified as patrolmen for pay and promotional purposes, performed prior to June, 1973. They contend [377]*377that their salary of approximately one-half that given to males is a violation of the Equal Pay Act of 1963, 29 U.S.C. § 206(d).

Section 206(d)(1) prohibits an employer from discriminating

between employees on the basis of sex by paying wages to employees * * * at a rate less than the rate at which he pays wages to employees of the opposite sex * * * for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to * * * (iv) a differential based on any other factor other than sex * * *

The policy behind the Equal Pay Act was well expressed by the Third Circuit in Shultz v. Wheaton Glass Company, 421 F.2d 259, 265 (3rd Cir.), cert. denied, 398 U.S. 905, 90 S.Ct. 1696, 26 L.Ed.2d 64 (1970), and has been endorsed by this Circuit in Shultz v. American Can Company — Dixie Products, 424 F.2d 356, 360 (8th Cir. 1970). The Third Circuit said:

Congress in prescribing “equal” work did not require that the jobs be identical, but only that they must be substantially equal. Any other interpretation would destroy the remedial purposes of the Act.
The Act was intended as a broad charter of women’s rights in the economic field. It sought to overcome the age-old belief in women’s inferiority and to eliminate the depressing effects on living standards of reduced wages for female workers and the economic and social consequences which flow from it. [Footnotes omitted.]

Shultz v. Wheaton Glass Company, supra, 421 F.2d at 265.

The consideration of equal pay standards is based on actual job requirements and performance, not on-job classifications or titles. Hodgson v. Miller Brewing Company, 457 F.2d 221, 227 (7th Cir. 1972); 29 C.F.R. § 800.121. The Equal Pay Act does not require that the jobs being compared be performed simultaneously but encompasses situations where an employee of one sex is hired for a particular job to replace an employee of the opposite sex. 29 C.F.R. § 800.114.

The trial court found initially that the male car markers possessed the skills and training of patrol officers while the appellants received training only as car markers. The court found that this additional training gave greater flexibility to the Police Department.

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Bluebook (online)
533 F.2d 374, Counsel Stack Legal Research, https://law.counselstack.com/opinion/diane-peltier-appellants-cross-appellees-v-city-of-fargo-a-municipal-ca8-1976.