Equal Employment Opportunity Commission v. Whitin MacHine Works, Inc.

Fourth Circuit

Equal Employment Opportunity Commission v. Whitin MacHine Works, Inc.

635 F.2d 1095, 23 Fair Empl. Prac. Cas. (BNA) 1778, 24 Wage & Hour Cas. (BNA) 1040, 1980 U.S. App. LEXIS 13325, 24 Empl. Prac. Dec. (CCH) 31,286

CourtCourt of Appeals for the Fourth Circuit

DecidedOctober 7, 1980

Docket79-1429

StatusPublished

Cited by16 cases

This text of 635 F.2d 1095 (Equal Employment Opportunity Commission v. Whitin MacHine Works, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Equal Employment Opportunity Commission v. Whitin MacHine Works, Inc., 635 F.2d 1095, 23 Fair Empl. Prac. Cas. (BNA) 1778, 24 Wage & Hour Cas. (BNA) 1040, 1980 U.S. App. LEXIS 13325, 24 Empl. Prac. Dec. (CCH) 31,286 (4th Cir. 1980).

Pincite

Opinions

PER CURIAM:

Judge Winter and Judge Hall concur in the finding of liability as stated in Part I of the majority opinion, while Judge Widener dissents from that part of the majority opinion for the reasons stated in his separate opinion. Judge Widener and Judge Hall concur in Part II of the majority opinion to remand the case to the district court for redetermination of the award for back pay. Judge Winter would affirm the award for the reasons expressed in his sepa[1096]*1096rate opinion. Therefore, Judge Hall’s opinion is the opinion of the court.

The judgment of the district court is accordingly

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS.

K. K. HALL, Circuit Judge:

This is an appeal by Whitin Machine Works, Inc., from the district court’s decision that the wage differential between certain categories of male and female employees ¹ violated the Equal Pay Act (the Act), 29 U.S.C. § 201 et seq. Whitin contends that the wage differential results from a permissible exception² as an informal seniority system consisting of an annual review and wage increase to partially offset the rising cost of living. The trial court found that the company had no established seniority or longevity system for pay increases and that the wage differential between male and female customer correspondents did not result from any of the recognized exceptions under the Act. The trial judge concluded that the employer had failed to prove that the disparity in wages was the result of any sex neutral pay system. Instead, the evidence was found to show that the wage rates served to perpetuate an earlier sex-determined pay differential among the customer correspondents. We agree with the decision of the district court, but remand for redetermination of underpaid back wages.

I. The Violation

This court is limited to determining whether the findings of the district court are either clearly erroneous or supported by substantial facts. F.R.C.P. 52(a); EEOC v. Aetna Insurance Co., 616 F.2d 719 (4th Cir. 1980); Keyes v. Lenoir Rhyne College, 552 F.2d 579 (4th Cir.), cert. denied, 434 U.S. 904, 98 S.Ct. 300, 54 L.Ed.2d 190 (1977). Thus, the evidence presented by the employer at trial is critical in determining whether the decision of the lower court should be upheld.

The testimony shows that Whitin, a manufacturer of textile and graphic art machinery, employed between four and six customer correspondents since May 20, 1973. The duties of these employees are identical and consist of: (1) telephone contact with customer textile mills, (2) handling incoming and outgoing customer mail, (3) expediting customer deliveries, (4) quoting prices and taking orders, and (5) investigating customer complaints about prices or equipment shortages. Prior to 1973, the company also employed expediters, who were always females, to assist the customer correspondents and fill in for them during their absences. The only difference between these positions was the higher level of responsibility of the correspondents.

The chart at Appendix A shows the starting dates and pay raises for the customer correspondents from 1967 to 1977.³ Since the district court and the parties mainly focused their attention on employees Price, Graham, Plyler, and DeLorenzo, we will limit our discussion of the wage differential primarily to these customer correspondents.⁴

[1097]*1097The burden of establishing that a prima facie violation of the Act has occurred rests upon the plaintiff. Once there is a showing of unequal pay for equal work, the burden of proof shifts to the employer since the facts underlying the wage differential are usually within his unique knowledge. Corning Glass Works v. Brennan, 417 U.S. 188, 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974). It is clear from the evidence presented at trial, as summarized in Appendix A, that the burden was properly that of the company to raise any justification for the disparity in pay.

Whitin argues that employees who were promoted to customer correspondent were subject to a yearly evaluation which involved a standard percentage increase in wages. Although there were no written guidelines for this annual review, the company maintains that this program qualified as an informal seniority system under the Act and was the actual reason for the wage differential.

The senior correspondent, who had primary responsibility for administering this review program, testified that the starting salary of Mr. Price was attributable to his longevity and experience with the company prior to his advancement to customer correspondent. He further stated that in 1973, the first year covered by the present action, the beginning pay for customer correspondents, with little or no experience, was $500. The company contends that the difference in starting pay from 1968 to 1973 was due to cost of living adjustments.

The government challenges Whitin’s informal seniority system on two points. Firstly, although the system need not be written, the salary histories for the customer correspondents indicates that no established seniority program was ascertainable or in effect. The fact that regular evaluations began in 1973 did not alleviate the prior existing wage disparity which was allegedly based on some consideration of sex. Thus, it is argued that the present alleged system only served to perpetuate an existing sexual discrimination affecting pay.

Secondly, the government argues that in order to demonstrate a valid exception under the interpretive regulations of the Act, 29 C.F.R. § 800.144, the employer is required to communicate the existence of such a system to the affected employees. Cf. Brennan v. Goose Creek Consolidated Independent School District, (D.C.Tex.1973), 5 EPD ¶ 8621, aff'd 10 EPD ¶ 10,395, 519 F.2d 53 (5th Cir. 1975). Based on the testimony of the customer correspondents, denying any such knowledge of an informal seniority system,⁵ it is asserted that the employer failed to properly establish any justifiable exception under the Act.

Whitin cites Brennan v. Victoria Bank and Trust Co., 493 F.2d 896 (5th Cir. 1974), as the appropriate legal standard in this case. In Brennan, the bank, on an annual basis, received forms from supervisors recommending appropriate pay increases based on longevity and merit, although the raises were usually standard.

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