dissenting:
The issue in this case is one of fact, not of law. The District Judge, who took live testimony and who observed the demeanor of the witnesses, made findings of fact on the credibility of the witnesses and resolved the disputed facts. He found that there had been no discriminatory treatment of the plaintiff either during her employment or in her discharge. The majority reviews de novo as it were that same record and, on its evaluation of the evidence, reverses the District Judge. I cannot agree and I dissent.
What is the discrimination suffered by the plaintiff which the majority finds occurred in this case on the basis of which it reverses the District Court? It cannot be that a male was preferred in employment over the plaintiff. The defendant confined the right of employment in this case to a woman. Accordingly, if there were any preference in employment it was suffered by males who were denied any opportunity to compete for that place, which represented the only addition made by the defendant to its advertising staff in the referral period; the preference in favor of a woman in making the employment selection assuredly did not constitute discrimination against the plaintiff. Thus, we do not have a McDonnell Douglas1 situation, in which a female was denied a job which was later filled by a male. Our situation is one in which the employer strictly limited employment to a female.
Neither was there any sex discrimination in rate of pay at which the plaintiff was employed.2 The majority finds: “[t]he starting base pay for both positions (i. e., the positions of the male salesmen and the female salesperson was the same.” In short, if the plaintiff had been a male, without previous experience, his base starting pay would have been precisely the same as the plaintiff was given when she was employed.3 So far as I can perceive, there is no violation of the Act in this regard.
*450The theory on which the plaintiff premises her claim of discrimination is not that she was denied equality of pay with a male of like experience when she was employed but is that she did the same job as the male salesmen and was entitled to exactly the same salary as the male salesmen even though the latter had far longer seniority than the plaintiff. This is the slender reed by which the plaintiff seeks to support her claim of sex discrimination. The majority, however, is unable to accept this novel claim of the plaintiff to equal pay with that of salesmen with greater tenure and seniority. It concedes that “[t]he male salesmen had longer tenure than [the plaintiff] and, consequently, greater on-the-job experience”4 and “tenure is a proper consideration in fashioning relief.” And well it should, for the record shows that the defendant pursued an established policy of rewarding employees with periodic raises on a regular basis based on increasing seniority. Since the male employees had been employed so much longer than the plaintiff, their base pay had been necessarily more often raised periodically and was larger than that of the plaintiff. But — it must be observed — the plaintiff had not been discriminated against by a denial of periodic increases in pay as she had acquired seniority.5 In the relatively short period that she was employed she had received four increases in base pay. There is no contention that the male salesmen had been favored with more during the same period.
Moreover, there had been no attempt to rig accounts in order to prejudice the plaintiff in earning bonuses. She received more in bonuses than the male salesmen. It may be, as the plaintiff contends, that she was particularly adept in increasing the volume of her accounts. But it would seem likely that her increase in volume was due to some extent to the type of accounts assigned her and this assignment could only have been made either out of fairness or favoritism to the plaintiff, but certainly not for purposes of discriminating against the plaintiff. Further, it is not contended that any accounts had been taken away from her in order to favor male salesmen. If anything, the plaintiff enjoyed a preferred position in the assignment of accounts, as shown by the bonuses she received.
From all this, it is plainly evident why the majority opinion made its ruling on the right of the plaintiff to back pay. It states first that the plaintiff was entitled by way of a beginning base salary simply to the “entry level, [base pay salary an] inexperienced male salesman would have received in base pay — without regard to commissions— during the period that [the plaintiff] worked.” It added properly that “we find no justification for awarding back pay by comparing her salary with the regular salesmen who had received periodic pay increases because of their longer tenure and greater on-the-job experience.” Since, as we have seen, the plaintiff was not discriminated against in salary, this formula for calculating back pay would really net the plaintiff nothing and the majority recognized this, for it said back pay, under this calculation, would likely be but “nominal.” And this was so because the plaintiff had suffered no loss of pay by reason of any improper sex discrimination.
Since the plaintiff has not suffered by a denial of employment or in wages less than those given males in like situation, wherein has there been discrimination? The majority opinion identifies these grounds for finding discrimination: i. e., she “was employed in a job expressly limited to the protected *451class” and “excluded from a higher paid classification whose duties she satisfactorily performed” and “deprived her of the opportunity to reach the maximum salary payable to salesmen.” It would color this statement by characterizing the defendant’s policy as a “segregation of jobs by sex,” and declared that, by virtue of “segregating its sales personnel according to sex in a way that limited [plaintiff’s] employment opportunities,” it had violated plaintiff’s rights. I am unable to follow this reasoning.
The majority refers to the male salesmen as regular salesmen and the plaintiff as a special salesperson. This is what I assume the majority characterizes as “segregation of jobs by sex.” All, both the plaintiff and the male salesmen, however, had regular jobs. Their duties were exactly the same. Each had a regular assignment of accounts. Based on their experience when hired, each had had the same beginning salary; each had had the same opportunity for like periodic increases in base pay; each had had the same right to earn bonuses on exactly the same terms. There was no “cap” on the right of the plaintiff to future periodic increases any more than there was a “cap” on the right of male salesmen to future periodic increases. Surely it cannot be a violation of the Act, or an improper “segregation of jobs by sex,” when the female receives the same pay as a male with similar experience would receive. Yet that is this case, a case unlike any other sex discrimination case in the books. In the typical sex discrimination case, the plaintiff has suffered discrimination in employment, or in job tenure, or in wages, or in bonuses, or in periodic pay increases. There is nothing like that in this case. The only prejudice of discrimination arises simply out of being designated as a special salesperson rather than a regular salesman, as are the males. That is the sum of the alleged discrimination. I cannot believe that alone is enough.
Actually, a large part of the plaintiff’s case consists of claims of unfair treatment of Mrs. Crowder who had been employed by the defendant before the plaintiff was employed. But the plaintiff cannot, ground a case in her favor on some mistreatment, if any there was, of Mrs. Crowder.6 This is an action solely for the redress of injury suffered by the plaintiff — not one to redress a wrong, if wrong there was, suffered by Mrs. Crowder.7
To sum up this phase of the matter, the District Judge, in my opinion, did not commit clear error in finding an absence of sex discrimination nor do I think that he erred in his findings in this respect “by concentrating on the pay differential.” In so “concentrating” he followed the invariable practice in sex discrimination cases of comparing rates of pay between male and female employees. As I have said, I suggest this is the first and only case in which a female employee, employed on the same wage basis as comparable male employees and having the same duties and rights as the male employee in a division, has been found to have a cause of action for sex discrimination.
In addition, I do not think the District Judge committed clear error in his findings on the plaintiff’s discharge. By her own testimony, the plaintiff was a constant gadfly, who was continuously taxing the patience and tolerance of her superiors. She complained about everything. When, finally, she was given a direct order, she defiantly disregarded it. An employer is not required to tolerate such insubordination from an employee. I agree with the District Judge, who wrote in this connection:
“Plaintiff’s termination was based on plaintiff’s refusal to carry out her assigned duties. This was not discriminatory, and was not pretext. Even if defend*452ant’s belief regarding plaintiff’s refusal was incorrect (which the court does not find), there was no discrimination based on sex because the termination was npt in fact based on sex. Defendant honestly believed plaintiff had refused. As was said in Turner v. Texas Instruments, Inc., 555 F.2d 1251, 1257 (5th Cir., 1977) ‘Title VIII & 1981 do not protect against unfair business decisions — only against decisions motivated by unlawful animus.’ ”
This finding of the District Judge, I respectfully submit, is not clearly erroneous; and unless we are able to say that the findings of the District Judge are clearly erroneous, we are without authority to reverse.
For the reasons assigned, I would affirm the learned District Judge.
. McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
. The majority recognizes this throughout its opinion. In fact, it faults the District Judge for “concentrating on the pay differential.”
. The finding of the District Judge was:
“Prior to her employment on August 12, 1974, plaintiff had no previous experience in the advertising business and had most recently been employed as a production worker at Monsanto Company, near Greenwood, S. C., working as a member of the doff crew.”
*450And later:
“When plaintiff was employed, she was employed at the beginning base pay applicable to all beginning salesmen who did not have prior experience.”
. The District Judge found:
the Regular Salesmen, both had college degrees and over four (4) years previous experience in the Advertising Department at the time plaintiff was hired in 1974. Plaintiffs educational background consisted of a high school diploma/’
. The finding of the District Judge on this point was:
“The increases in plaintiffs base pay were at least as great as base pay increases granted male employees in the Local Division.”
. The District Judge found specifically:
“There is not the slightest showing that any alleged discrimination was practiced against Mary Crowder or carried over as part of a pattern of discrimination against plaintiff.”
. Mrs. Crowder’s explanation of her reason for quitting was:
“Well, after I was told I wasn’t a salesman, it kind of took all my ego away. I felt like I would never get anywhere — any higher salary — so I just decided that I would quit.”