Higdon v. Evergreen International Airlines, Inc.

719 P.2d 1077, 149 Ariz. 461, 1985 Ariz. App. LEXIS 849, 37 Empl. Prac. Dec. (CCH) 35,412
Court of Appeals of Arizona·Decided July 11, 1985·No. No. 2 CA-CIV 5238·Published·Cited by 2 cases

Opinion

BIRDSALL, Presiding Judge.

Our first decision in this case, Higdon v. Evergreen International Airlines, Inc., 138 Ariz. 172, 673 P.2d 916 (App.1982) was vacated by the Arizona Supreme Court in Higdon v. Evergreen International Airlines, Inc., 138 Ariz. 163, 673 P.2d 907 (1983). Although the supreme court found, as did this court, that the trial court had made certain erroneous conclusions of law requiring reversal, the case was remanded for further proceedings in the trial court.

The erroneous conclusion in the trial court was that job-related experience could not be considered as a “factor other than sex” to constitute an affirmative defense of the employer in a sex discrimination action. Our supreme court held that in order to sustain its burden, the employer must (1) show that use of a factor which creates a wage disparity is business related, and (2) show that use of the factor is reasonable in light of the employer’s stated purpose as well as its other practices.

The trial court had rejected certain findings of fact proposed by the employer following the court trial. These were:

“1. The defendant has met its burden of rebutting plaintiff’s prima facie case by showing the wage differential was due to a factor other than sex, and the plaintiff has failed to show the other factors were mere pretext;
2. Defendant has shown that there were valid business reasons for the wage disparity, and that the experience of Gary Williamson was important as an economic consideration for the defendant;
[462]*4624. The job at issue when Gary Williamson was assigned to it required substantial breadth and scope of experience in order to set up the department.” 138 Ariz. at. 167, 673 P.2d at 911.

The record in the original appeal did not show whether these findings were rejected because of the erroneous legal conclusions or because they were not supported by the evidence. The supreme court therefore applied the rule “that where findings are infirm because of an erroneous view of the law, a remand is the proper course unless the record permits only one resolution of the factual issue.” The court then explained,

“We cannot determine whether the trial judge rejected the submitted findings because they were not supported by the evidence or whether he rejected them because they were not material under the legal theory adopted by the trial court. Under such circumstances a remand appears to be the proper course.” 138 Ariz. at 167, 673 P.2d at 911.

On remand the trial court received no additional evidence and, after considering memoranda and oral argument, held, in effect, that the foregoing findings were rejected because they were not supported by the evidence. Judgment was then again entered in favor of Higdon.

On appeal we must review the record and determine whether the trial court’s findings were clearly erroneous. We find that the refusal to make the foregoing findings was clearly erroneous. We reverse and remand with directions to enter judgment for Evergreen.

The record clearly shows that the wage differential between the male employee, Gary Williamson, and his female replacement, the appellee, Ann Lewis Higdon, was due to the vast difference in their job-related work experience. This is a lawfully recognized factor other than sex. The evidence further shows that there were valid business reasons for hiring someone with Williamson’s experience and that this was important as an economic consideration of Evergreen. No evidence suggests that this factor was a mere pretext.

The following facts are repeated verbatim from the supreme court opinion in Hig-don, supra, at 138 Ariz. 164-65, 673 P.2d 908-09.

“In January, 1976, appellant Evergreen was a small commercial airline in Mara-ña, Arizona with about fifty employees. Gary Williamson was hired as a salesman in marketing operations in early 1976. He later became marketing manager for Evergreen at a salary of approximately $1100 per month.
Evergreen experienced rapid growth during 1976. It became necessary to create a passenger service department to provide for the convenience and comfort of passengers. Williamson was made its director in January, 1977, at his same salary. Evergreen’s passenger business was charter flights, which required it to have ‘station managers,’ either employed or by contract, in most of the terminals which it used.
Williamson’s new position required him to travel extensively to various terminals to hire, train and supervise station managers; secure office space; contract with other companies; mark and handle luggage; and receive and adjust customer complaints.
In April, 1977, appellee was employed as Williamson’s secretary assistant at a salary of $500 per month. When Williamson resigned in February, 1978, ap-pellee replaced him and was given a $200 per month raise, making her salary as director of the passenger services department $700 per month. Williamson’s salary at the time of his resignation was $1183. From the date she was hired, until her resignation a year and one-half later, appellee was given one $56 per month raise.
Williamson’s experience prior to his employment with Evergreen included 11 years with Continental Airlines, beginning as a customer service representative and ending as a sales manager. He also worked for Gray Line Tours holding [463] two different positions as travel agency manager and as sales manager. Appel-lee’s prior work experience included 6 months as a flight attendant, 7 years as a dental assistant and several secretarial positions.”

The evidence also shows in greater detail that Williamson began working for Continental Airlines in February 1963 as a customer service representative. In this capacity, he worked the airline ramps, loaded and off-loaded aircraft, passengers, and cargo, assisted in parking aircraft, and worked ground equipment. He worked as a customer service representative for approximately eleven months and then transferred laterally and worked as a customer service agent in Kansas City. Next, he worked as an airport sales agent. He was later promoted to service supervisor, supervising agents at the ticket counter. In this position, he was called upon to handle extreme problem situations. At Continental, this was a training job in preparation for further promotion.

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Higdon v. Evergreen International Airlines, Inc., 719 P.2d 1077, 149 Ariz. 461, 1985 Ariz. App. LEXIS 849, 37 Empl. Prac. Dec. (CCH) 35,412 (Ark. Ct. App. 1985).

719 P.2d 1077 (Higdon v. Evergreen International Airlines, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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