Strecker v. Grand Forks County Social Service Board

HEANEY, Circuit Judge,

dissenting.

I agree that Betty Lou Strecker established a prima facie case of sex discrimination by proving that the work she performed was substantially equal to the work performed by her male successor and that she was paid $7,532 less per year.1 Once she did so, the burden shifted to the defendants to prove that the disparity in pay was based on some factor other than sex. In my view, the defendants have not sustained that burden and the district court should be reversed.

The majority concludes, in substance, that the defendants sustained their burden by proving that the pay differential was justified by the state’s personnel classification system. It is apparent from the record, however, that the defendants did nothing more than establish the existence of that system. If the defendants’ conduct is to be shielded by the affirmative defense provided by the Equal Pay Act, it was necessary for them to prove more. First, they had to establish that the classification system’s requirements were reasonably related to the jobs to be performed. Second, they had to show that Strecker did not have the qualifications necessary to justify classifying her at a higher grade. Third, because the defendants took the position that the classification system prevented them from raising Strecker’s salary, they had to prove that she was being paid the highest salary that her classification would permit. They failed on all three counts.

I

One cannot argue with the principle that a governmental unit can, without violating the Equal Pay Act of Title VII of the Civil Rights Act of 1964, adopt and implement a classification system that classifies all jobs in that unit on the basis of job content. Nor can one argue with the principle that a governmental unit can specify the education and experience that an employee must have, so long as the requirements are reasonably related to the job to be filled and are not used as a pretext to avoid paying women equal pay for substantially equal work. I think it is clear, however, that once a prima facie case of discrimination is established, the employer bears the burden of proving that the education and experience requirements for the classification in question are reasonably related to the job duties to be performed.2 Unless the em*105ployer has this burden, the prima facie case concept is so weakened as to be useless. The defendants failed to carry that burden here. They presented no witnesses, expert or otherwise, to testify that it was reasonable to equate a year of college to a year’s administrative supervisory experience or to require six years of administrative supervisory experience to be classified and paid as Administrative Officer II, or eight years of similar experience to be classified and paid as an Administrative Officer III.3 Nor can we draw an inference that the stated experience was reasonably required in the face of undisputed evidence that Strecker very competently served as supervisor of Economic Assistance for over five years, even though she had only forty-five months of administrative supervisory experience when she first assumed the position.4

II

Even if we assume that the classification system is a valid one, the defendants did not meet their burden of proving that Strecker lacked the personal qualifications necessary to be classified as and paid the salary of an Administrative Officer I as of May 1,1972, and of an Administrative Officer II as of May 1, 1974.5 On the latter date, she had six years of administrative supervisory experience: twenty-eight months as a supervisor at the First Federal Savings and Loan Association,6 seventeen months as director of the Food Stamp Pro*106gram for the County,7 and twenty-five months as supervisor of Economic Assistance for the County.8 Moreover, she had the eight years of required experience to be paid as an Administrative Officer III on July 1,1976, as she then had two additional years of experience as supervisor of Economic Assistance.

There is some testimony that the administrative supervisory experience that she acquired at First Federal and as director of the Food Stamp Program was not of the quality necessary to be considered the equivalent of an equal number of years of college. But the testimony was vague and inconclusive and failed to establish just what experience does qualify as “administrative supervisory” or “professional” work experience.9 Without evidence of clearly articulated standards, or of a pattern of evaluating personnel in a consistent nondiscriminatory manner, I simply cannot agree that the defendants have established that the state’s classification system was a factor other than sex that justified the pay differential.10

Implicit in the majority opinion is the premise that a presumption of regularity should extend to the statewide classification system. I cannot accept this premise; to accept it would be to deny Strecker the benefit of the prima facie case that even the majority concedes she has established here. Nor can we infer that the state classification system is operated on a nondiscriminatory basis. The record indicates that the State Personnel Office reclassified positions or individuals on the basis of requests from the County; the only exception being those occasions when the State Personnel Department reclassified all positions within a governmental unit.11 The County made no written requests to reclassify Strecker from April, 1972, until she gave notice of her intent to resign in early 1977.12 Clarence Ohlsen, the director of the County Social Service Board and its appointing authority, consistently and intentionally discriminated against women on the basis of sex, and he was, for all intents and purposes, the ultimate authority in personnel matters at the County level.13

*107Ohlsen’s discriminatory conduct is well illustrated by his dealings with Strecker. When she became the supervisor of the County’s Economic Assistance Programs on April 1, 1972, Strecker indicated to Ohlsen that the $45 per month increase she was to receive with this promotion was inadequate compensation for her new responsibilities. Ohlsen responded that she should not receive more because she did not have a college degree and because her husband made a good living so she should not worry about additional income. This scenario was repeated in November of 1975 when Strecker again assumed significant additional responsibilities—establishing and supervising the Child Support Enforcement Program (IV-D). She received no raise in pay and Ohlsen told her not to file a new job description with the State accurately reflecting her increased responsibility. Ohlsen indicated that the County’s budget was in poor shape and again reminded her that her husband made a good living. He assured her that her salary would be reviewed in July, 1976. At that time, however, she received only the standard seven and one-half percent salary increase given to all the agency’s employees. In November of 1976, Strecker again approached Ohlsen regarding her salary and classification. She had been encouraged by a State personnel officer to rewrite her job description to include her IV-D duties. Ohlsen told her that she was not to fill out a new job description, again emphasizing that she should not always be worrying about more money because her husband had sufficient income. Finally, all the male applicants for Strecker’s job were told that if they stayed with the agency for four or five years, and if their services were satisfactory, they could expect to be named Ohlsen’s successor as director of the agency. Throughout her tenure as supervisor of Economic Assistance, Strecker was never given such assurances, nor were the female applicants for her position told this, despite the fact that some of them had college degrees.

Ohlsen’s discriminatory attitudes were reflected in his conduct toward other women at the agency as well. Susan Senger, an account technician with the County, testified that Ohlsen had told her that she should not worry about her salary because her husband had a good job. When Senger suggested during salary negotiations that the County should pay her health insurance benefits, Ohlsen’s response was that he had mostly female employees under him and that their husbands carried their health insurance. Senger also testified that Ohlsen’s discriminatory attitude was apparent from the beginning: his first concern in her employment interview was whether she was married and whether she was planning on having children.

The testimony of other female agency employees reinforced the impression that Ohlsen had sexist attitudes and that these attitudes influenced his personnel practices. Pam Fordyce testified that she was present when Ohlsen told one of the female supervisors that he would not want to pay her any more money than her husband made. Susan Grega, formerly a Food Stamp supervisor for the County, testified that Ohlsen had said that she was up for a raise but that he “was having problems justifying that kind of money to the Board because she is a woman.”

The strong evidence of Ohlsen’s discriminatory attitudes and the testimony that Ohlsen’s support is essential to the success of employee reclassification requests, makes it difficult, if not impossible, to maintain that the statewide classification system ensured nondiscriminatory personnel decisions at the County level.

Ill

Even if the defendants had carried their burden of proving that the classification system was a valid one and that Strecker did not have sufficient supervisory experience to justify being placed in a higher *108classification, they failed to prove that Strecker could not have been paid a higher salary under the classification system. In fact, all evidence in the record is to the contrary. Prior to July 1, 1975, Strecker was consistently paid below the mid-range of the salary for her classification. On that date, she was classified as an Administrative Officer I and was paid $850 per month when the maximum rate for that classification was $1,029 per month. From July 1, 1976, to April 1,1977, she was paid $914 per month when the maximum rate was $1,080. It was not until after she gave notice of her intent to resign that she was paid the maximum for her classification. In the face of these facts, the majority should not have accepted the defendants’ argument that they could pay Strecker no more than they did because of the classification system.

The district court found an alternate justification for the defendants’ practice of paying Strecker less than they could. The court stated:

The agency employees were predominately female. The top three employees under Director Ohlsen (Clara Lyche, Betty Hanson, and plaintiff) were all female. Except for the brief period when Strecker stayed on and trained [her successor] to take her job, there were no male employees within the establishment performing work which required equal skill, effort and responsibility to that being performed by plaintiff. It is clear she was given equal treatment with other employees.
The record shows that the Board did not discriminate against plaintiff in rate of pay within the salary ranges for her classification. Until 1977, she received the same percentage increase in salary as all other employees of the Agency. In 1977, her salary increased dramatically, to the maximum allowable for her classification.

The essence of the district court’s decision is that, because Strecker was treated on the same basis as other women employed in the agency, she was not discriminated against. This argument is without merit. If it proves anything, it proves that women other than the plaintiff, particularly Lyche and Hanson, were also discriminated against. The undisputed evidence is that Ohlsen, the only male supervisor, was paid at the maximum rate permitted for his classification. The salaries of the two female supervisors, Lyche and Hanson, were very substantially raised to approximate the salary being paid Strecker’s successor only after they complained that they were being discriminated against because of their sex.

There is one matter that requires further comment. The majority opinion suggests that Strecker cannot recover because the County did not have final authority to reclassify her and pay her the salary of the higher classification. It also suggests that Strecker should have joined the State as a party defendant in the action. I cannot agree with either suggestion. The facts are, as we have pointed out, that Ohlsen made no significant effort to have Strecker reclassified until after she announced her resignation and that he had little, if any, trouble getting the position reclassified once he made the request. In fact, Ronald Leingang testified that if Strecker was doing the same work in November of 1975, that she was when the request was submitted in 1977, “then she should have been compensated at the Administrative Officer III level.” Moreover, he testified that Thomas Longmire of the State Personnel Office questioned the motivation for reclassifying the position when Strecker was about to leave it, and asked Ohlsen, “Why didn’t you pay more for this job when the incumbent had it, when Betty had it.”

CONCLUSION

This case illustrates better than most the difficulty that women have in establishing a right to recover under the Equal Pay Act or Title VII of the Civil Rights Act of 1964. Strecker is obviously a highly competent, dedicated person who has by hard work raised herself to the upper levels of her profession, and she has done so without the benefit of a college education. At every step of the way, she has worked hard for *109equal compensation, only to be turned down again and again because the defendants clung to the traditional view that women simply do not need to be paid as much as men, particularly if their husbands are working.14

Now, when she comes to court, she is met with one legal argument after another—• none of which, in my view, has any real merit. One simply cannot escape the fact that Ohlsen and the County Board discriminated against Strecker on the basis of her sex. Her successor was paid substantially more than she was paid, and it was within the power of the defendants not only to pay her more than they did throughout the years but also to have made sure that she was given credit for all her prior supervisory and administrative experience.

We have no alternative but to remand to the district court with directions to it to determine the back pay to which Strecker is entitled. Unless the defendants prove that the classification system is a nondiscriminatory one and that Strecker was given full credit for her prior administrative and supervisory experience pursuant to that system, she is entitled to receive the difference between what she was paid and the sum paid to her successor for the period permitted by law. The latter sum is to be reduced by across-the-board pay increases granted by the County during the relevant period. If the defendants sustain their burden of proving that the system is nondiscriminatory and that Strecker was given proper credit for her prior experience, then her recovery should be limited to the difference between the salary she was paid during the statutorily allowed period and the maximum salary she could have been paid as an Administrative Officer I during that time.

Strecker is also entitled to an award of attorney’s fees for services rendered in the district court and this Court. The district court is to determine the fees in that court on the basis of Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). Firefighters Institute for Racial Equality v. City of St. Louis, 549 F.2d 506 (8th Cir. 1977). We should require an affidavit to be submitted as to the appropriate fee in this Court pursuant to the same standard.

Before LAY, Chief Judge, HEANEY, ROSS, STEPHENSON, HENLEY, McMILLIAN and ARNOLD, Circuit Judges, sitting En Banc.*

PER CURIAM.

The majority opinion of the panel is adopted by the court en banc.

McMILLIAN, Circuit Judge, joins HEA-NEY, Circuit Judge, in his dissent.

IT IS SO ORDERED.

. Immediately before Mrs. Strecker announced her resignation, her salary was $10,968 annually. Her replacement, David Braaten, was offered and received $18,500 for doing substantially equal work.

. In Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), the Supreme Court held that when a plaintiff has made a prima facie showing that an employer’s hiring and promotional criteria are discriminatory in effect, the burden shifts to the employer to prove that the requirements bear a “manifest relationship” to the employment in question. Accord, Albemarle Paper Co. v. Moody, 422 u.s. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1974). The Supreme Court has further described the legal standard to be applied:

[Discriminatory tests are impermissible unless shown, by professionally acceptable methods, to be “predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job or jobs for which candidates are being evaluated.” 29 CFR § 1607.4(c).

The employment practice successfully challenged in Griggs was the defendant’s requirement that employees have a high school degree and achieve satisfactory scores on two general intelligence tests. Accord, James v. Stockham Valves & Fittings, 669 F.2d 310 (5th Cir. 1977); Pettway v. American Cast Iron Pipe Co., 494 F.2d 211 (5th Cir. 1974). The principle that employment criteria must be “job related” has been reiterated in the context of experience and degree requirements such as those at issue here. Parson v. Kaiser Aluminum & Chemical Corp., 575 F.2d 1374 (5th Cir. 1978); Leisner v. N. Y. Telephone Co., 5 FEP Cases 733 (S.D.N.Y.1973). The Griggs test has also been applied to such employment practices as written promotional exams, Firefighters Institute, Etc. v. *105City of St. Louis, 549 F.2d 506 (8th Cir. 1977), and height and weight requirements, Dothard v. Rawlinson, 433 U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977); Craig v. County of Los Angeles, 626 F.2d 659 (9th Cir. 1980); U. S. v. Lee Way Motor Freight, Inc., 625 F.2d 918 (10th Cir. 1979).

In this case, as we have pointed out, the plaintiff has established a prima facie case of discrimination. She has shown that she and two other female employees of the Grand Forks County Social Service Board, who held positions substantially similar to hers, were paid less than her replacement. The state could have rebutted this prima facie case by introducing evidence that the wage disparities were justified by experience or education requirements that were in fact demonstrably related to the jobs in question. It is true that Strecker established her prima facie case by showing that she individually was discriminated against, rather than by showing that the state’s classification system was discriminatory in effect. However, the principles established by Griggs must still be applicable, or the burden placed on the Equal Pay Act defendants to prove that wage differentials are not sex-based will be meaningless.

. The defendants must establish that the experience and education requirements necessary for an individual to be personally classified as an Administrative Officer II or III are reasonably related to the jobs to be performed in a job classified as Administrative Officer II or III because of the close correlation between the “personal” and “position” classifications. A job may be “underfilled” for a time by someone whose personal classification is one level lower than that of the job. Generally, however, a person’s classification matches that of her or his job.

. Strecker was appointed as Supervisor of Economic Assistance on April 1, 1972. There is no evidence in the record as to the classification system in effect at that time other than the testimony that persons were classified on the basis of the work they were required to do.

. Strecker was classified as an Administrative Officer I on July 1, 1975. On that date, she had been supervisor of Economic Assistance for thirty-nine months; thus, she was given nine months credit for other supervisory services. The record is silent as to whether the credit was given for work at the First Federal Savings and Loan Association or for work as the director of the Food Stamp Program. See notes 6 and 7. No explanation is given as to why only a partial credit was allowed for either of the past experiences. Ohlsen testified that he never knew whether Strecker’s experience with the First Federal Savings and Loan Association and with the agency as director of the Food Stamp Program had been counted or not. Strecker was classified as an Administrative Officer II on July 1, 1977, one month before her resignation became effective. Her salary was $1,380 per month, or $16,560 a year—$2,000 less than her successor was paid.

. Strecker was Chief Teller at First Federal, supervising four to five full-time and additional part-time tellers. She was totally responsible for the bank’s savings bonds and traveler’s checks as well as other savings and loan teller duties. Prior to her experience as a Chief Teller, she had worked at three other financial institutions as a teller and had had some administrative experience at at least one of them.

. Strecker was responsible for establishing and supervising the Food Stamp Program when it was first initiated by the County. Her duties included setting up the files, learning the eligibility requirements established by the federal government and generally handling all problems generated by the new program. She supervised one to two Food Stamp workers.

. As supervisor of Economic Assistance, Strecker was in charge of all the County’s Economic Assistance Programs: AFDC, Aid to the Disabled, Old Age Assistance, Medicare and General Assistance. She supervised an increasing number of employees and controlled the expenditure of over $2 million in funds. In November, 1975, she assumed the additional responsibility of establishing and supervising a new project initiated by the County: the Child Support Enforcement Program. Three additional personnel were put under her supervision at that time.

. Ronald Leingang, personnel officer of the Social Services Board of North Dakota, testified: “It is awfully difficult to know what constitutes an equivalency. It is a question that we ask all the time. The only way we finally know is to have an applicant apply for a job with a certain set of circumstances and run that applicant through the system and finally determine what the decision is on the part of the Central Personnel Division.” Leingang’s testimony serves to emphasize the fact that the classification system was highly subjective in its application.

. See, Hodgson v. Brookhaven General Hospital, 436 F.2d 719 (5th Cir. 1970).

. In 1973, the State requested job descriptions from all personnel performing eligibility functions in the County agencies. As a result, Strecker was reclassified from a Secretary I to an Eligibility Technician III as of April 1, 1973. In 1975, the State adopted a new classification system and initiated a statewide reclassification of all its employees. Strecker was again requested to fill out a job description, and she and her position were upgraded to Administrative Officer I.

. Ohlsen testified that he talked with Ronald Leingang “by phone several times” about reclassifying Strecker. He did not, however, submit any written requests to reconsider her classification.

. Several women employees of the Board were subpoenaed to testify by Strecker. They testified, in substance, that Ohlsen was a dominating personality, that he ran the agency, that he determined the agenda and that what he said went as far as the Board was concerned. *107They also testified that Ohlsen was angry at Strecker for filing the lawsuit and took his anger out on some of the female employees.

. Fifteen years after the enactment of the Equal Pay Act and Title VII, women were still earning only fifty-eight percent of what men were earning. Taub, Keeping Women in Their Place: Stereotyping Per Se as a Form of Employment Discrimination, 21 Boston College Law Review 345 (1980) (citing Women’s Bureau, U. S. Department of Labor, Fully Employed Women Continue to Earn Less Than Fully Employed Men of Either White or Minority Paces (August, 1978)). In North Dakota, as recently as 1974, 30.5 percent of male employees earned in excess of $13,200 per year, while only 5.4 percent of the females earned in excess of this amount. U.S. Department of Health and Human Services, Earnings Distributions in the United States 1974 (1980).