Bohm v. L.B. Hartz Wholesale Corp.

OPINION

WOZNIAK, Judge.

Treva Bohm sued L.B. Hartz Wholesale, Inc. for sex discrimination in employment in violation of Minn.Stat. § 363.03, subd. 1(2) (1984). Bohm alleged that she did not receive equal pay for work which was substantially similar to work done by a male employee within her department, that the employment practices of Hartz were discriminatory towards women, and that she was discharged from her employment in retaliation for her complaints of sex discrimination.

While the court concluded that Bohm did not establish unequal pay for equal work, this matter was not appealed. Bohm’s argument on appeal is that the trial court erred by refusing to consider the theory of comparable worth in its determination of this discrimination action. She also claims the court erred in finding Hartz’ employment practices non-diseriminatory and Bohm’s discharge from employment non-retaliatory. We affirm.

FACTS

L.B. Hartz Wholesale is a wholesale grocery business in Thief River Falls, Minnesota. At the end of 1980, Hartz employed 125 men and seventeen women. Of the seventeen women, thirteen were classified as “unskilled clerical.” One woman was a clerical worker, two were computer operators, and one worked as a buyer.

Treva Bohm was one of the thirteen female employees classified within the company as “unskilled clerical.” Bohm is a high school graduate and has completed a one-year general secretarial course. She worked at Hartz from August 1975 until March 1981. She began as a key punch operator, entering orders into a computer. In 1976, she moved to the computer and billing department where she remained, doing unskilled clerical work, until her discharge in 1981.

Hartz had no formal seniority or hiring or firing policy in 1981. Each of the company’s seven departments determined the *903seniority of its employees, basing seniority on the time spent in the individual department, and not on the total amount of time with the company. Each department head made his own determination on hiring and firing. A majority of the employees approved this policy.

SALARY SURVEY

Hartz conducted a salary survey in 1980. Several area companies and the Minnesota Department of Economic Security were questioned about wage policies in northwestern Minnesota. The survey revealed that Hartz was paying its clerical workers more than the area average, and that it was paying its warehouse workers less than the competitive wage.

The clerical workers at Hartz received an hourly wage of $6.92, while clerical workers at Super Valu and Artie Enterprises received hourly wages of $6.09 and $6.04 respectively. The State’s published survey revealed the prevailing average to be between $4.34 and $4.78.

Warehouse employees included order pickers and truck drivers. Order pickers at Hartz received hourly wages of $8.46, while order pickers at Super Valu and Twin Ports Grocery received hourly wages of $9.51 and $8.52 respectively. Truck drivers for Hartz received an hourly wage of $9.06, while truck drivers at Super Valu and Twin Ports Grocery received hourly wages of $9.86 and $8.82 respectively.

1981 WAGE INCREASES AT HARTZ

Salaries for 1981 were determined at a meeting between Hartz management and department supervisors in December 1980. In light of the study, it was decided that clerical workers would not be receiving the same salary increases as other Hartz employees. Consequently, clerical workers received a wage increase of 5.97% for 1981 and non-clerical workers received up to a 20% increase. Three women, Edith Brand-li, Ellen Bottem, and Judy Machal, received wage increases of 11.8 to 20%. They were the only non-clerical women employees at Hartz at the time. Wage increases at Hartz have been uniform ever since 1981.

BOHM’S DISMISSAL

Norman Olson, head of the computer and billing department, told the department members about the wage increases at a department meeting in December 1980. Treva Bohm testified that he said: “(The company) would be giving the men a seven or eight percent raise twice a year, and the women a two to three percent raise once a year because the salaries were too similar.” Olson testified that he announced the wage increases in terms of clerical and nonclerical employees. Doreen Bjerknes and Ellen Bottem, two women in the computer and billing department, corroborated Olson’s testimony.

Bohm complained vehemently about the pay increases. Bohm testified that she complained to Olson several more times and that she demanded to speak to the Board of Directors. According to her testimony, the company executives were not told of this request and she was not invited to the board meeting.

Two months after she confronted Olson, Bohm was placed on short hours. A month later she was permanently laid off. Bohm claims that her lay off was in retaliation for her discrimination claim; Hartz asserts that it was an economic decision.

In 1981, Hartz lost three major accounts, representing about 3.7 million dollars in gross business per year. In an effort to cut back, Hartz’ corporate secretary instructed the head of the computer and billing department to discharge one of their employees.

The department head, Norman Olson, decided on Treva Bohm because she was the least senior employee and the most dispensable. Olson testified: “We’ve got a small group of people. It was the least effect on the overall job and performance of our whole department.” He testified that he didn’t let her go on the basis of the company’s seniority policy, although he acknowledged that, if he had, he still would have selected Bohm. Bohm contends that she *904was not the least senior employee, but there was no evidence substantiating this claim.

Hartz first received notice of Bohm’s sex discrimination claim when the Equal Employment Opportunity Commission contacted the company in April 1981. Bohm’s charge with the Equal Opportunity Commission was filed April 4, 1981. Bohm was discharged in March 1981.

Hartz did not hire a replacement for Bohm. Her duties were divided between three other department members.

Hartz took other cost reduction measures as well. Kenneth Hagan, an order picker, was laid off on April 18, 1981, and never rehired. Brian Gerardy, an order picker, was laid off from March 21, 1981 to May 16, 1981. Glen Knott, a maintenance worker in the trucking department, was laid off from March 28, 1981, to July 4, 1981. Curtis Westlund, an order picker, had his weekly hours reduced from 40 hours to 25 hours. In addition to these employee cuts, Hartz rebid its insurance and sold its computer under a leaseback agreement which resulted in a total savings of $200,000.

THE WAREHOUSE DEPARTMENT

Warehouse is the largest department at Hartz. It had 45 employees in 1981, all of them male. The warehouse workers included order pickers, forklift operators, and loaders. The order pickers assembled 600 to 800 cases of groceries to be delivered to retail stores each day. These cases weighed anywhere from five to one hundred pounds. The forklift operators moved the groceries. The loaders loaded the trucks for delivery.

Ferrl Ranum, the head of the warehouse department, testified that he took job applications from both men and women. Only two women have applied since 1979. No women employees at Hartz have ever asked to transfer to this department. No new warehouse workers have been hired since 1979.

Jeffrey Gustafson, a job service program specialist for the State of Minnesota, testified that very few women ever apply for warehouse positions in northern Minnesota. He further testified that women in northwest Minnesota fill 95% of all available clerical positions.

ISSUES

1. Did the trial court err in determining that Hartz does not systematically discriminate against female employees?

2. Did the trial court err in not employing the theory of comparable worth in determining this discrimination action?

3. Did the trial court err in determining that Hartz did not discharge Bohm in retaliation for her complaint?

ANALYSIS

I.

Bohm argues that patterned and systematic discrimination existed throughout Hartz because female employees were predominantly in unskilled clerical positions earning less pay than unskilled male employees and because the departmental seniority system discouraged women from transferring to other jobs. The trial court determined that the concentration and compensation of women in clerical positions at Hartz was merely a reflection of prevailing patterns of employment in northwestern Minnesota. As to the seniority system, the court ruled that there was no evidence that it was devised to keep women in lower-paying clerical positions.

Bohm is claiming a violation of the Minnesota Human Rights Act, Minn.Stat. § 363.03, subd. 1(2) (1984).

The Minnesota Supreme Court has applied principles developed in the adjudication of claims arising under Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000(e) (1976), in construing the Minnesota Human Rights Act. The beginning point for discussion is a three-part analysis consisting of a prima facie case, an answer and a rebuttal. McDonnell-Douglas Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817, *90536 L.Ed.2d 668 (1973); Hubbard v. United Press International, Inc., 330 N.W.2d 428, 441 (Minn.1983).

A prima facie discrimination case is made as follows: by a preponderance of the evidence, plaintiff must show facts supporting an inference of the defendant’s intent to discriminate. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 358, 97 S.Ct. 1843, 1866, 52 L.Ed.2d 396 (1977). Once the prima facie case is established, the burden of production shifts to the defendant who can dispel the inference of discrimination by “articulating some legitimate non-discriminatory reason” for its action. McDonnell-Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. If the defendant meets this burden of production, the plaintiff may still prevail by overcoming the defendant’s proffered explanation. See id. at 804, 93 S.Ct. at 1825.

The trial court concluded that Bohm failed to prove that she had been unlawfully discriminated against with respect to employment. The court did not make specific findings as to how it analyzed this case in terms of the shifting burdens. We are confident, however, after reviewing the court’s memorandum, that it properly analyzed and weighed the evidence.

WAGES

The court determined that the wage discrepancies between male and female employees, coupled with the seemingly gender-based 1981 disparate increases, were facts sufficient to raise an inference of discrimination, but that Hartz dispelled this inference by presenting legitimate reasons for the pay discrepancies. Those reasons included the prevailing community wage rate and the lack of female applicants for the male-dominated positions.

We must now review the record to determine whether or not the evidence as a whole supports the trial court’s determination. The court’s factual findings will not be reversed unless they are clearly erroneous. See Carlson-Lang Realty Co. v. City of Windom, 307 Minn. 368, 240 N.W.2d 517 (1976).

The evidence presented shows that in 1980, thirteen of the seventeen women employed by Hartz were classified as “unskilled clerical” workers. The “unskilled clerical” workers were compensated at the lowest rate of all Hartz employees. Only six male employees of the approximately 125 then employed were paid less, and that is because they were part-time employees. Then in 1981, wages were increased. The “unskilled clerical” workers received a 5.97% wage increase; other employees received wage increases of up to 20%. These facts raise an inference of discrimination.

How then did Hartz dispel this inference? The record reflects that the proportion of women in clerical jobs at Hartz reflects the general pattern of employment in northwestern Minnesota. The pay and pay raises that Hartz gave its employees were based upon the existing market for job skills of that type in Minnesota and among its competitors. Competitor employers in the market place were consistently paying less for unskilled clerical work than Hartz was paying, and more for order pickers.

Jeff Gustafson, a job service program specialist for the State of Minnesota serving northwestern Minnesota, testified that 90 to 95% of applicants for clerical positions are women. He further testified that the number of women applying for warehouse positions is negligible. He estimated that the average wage for clerical positions in northwestern Minnesota in 1981 was between $3.35 per hour and $4 per hour.

All of the jobs at Hartz are open to both men and women. However, women predominantly apply for clerical positions. They do not apply for warehouse positions. The supervisor of the warehouse department was aware of only two applications from women for warehouse employment since 1979. Additionally, Bohm never sought transfer to the warehouse, nor is there any testimony that any of Hartz’ female employees ever sought transfer to the warehouse.

*906Bohm failed to demonstrate that either the concentration of women in clerical positions or the difference in wages paid to clerical and warehouse workers rested upon sex discrimination.

SENIORITY SYSTEM

Bohm alleges that Hartz’ departmental seniority system is further evidence of discrimination. The argument essentially is that women are locked in lower-paying clerical positions because if they transfer to another department, they lose their seniority-

Employers and unions are afforded significant freedom to create differing seniority systems. California Brewers Association v. Bryant, 444 U.S. 598, 608, 100 S.Ct. 814, 820, 63 L.Ed.2d 55 (1980). Seniority systems, reflecting as they do not only the give and take of free collective bargaining, but also the specific characteristics of a particular business or industry, inevitably come in all sizes and shapes. Id. at 608, 100 S.Ct. at 820. Seniority systems that result from an intent to discriminate because of sex or race, however, are unlawful. See id. at 608, 609, 100 S.Ct. at 820, 821.

In this case, there is no evidence that the seniority system was devised to keep women in lower-paying clerical positions. It is a system agreed upon by the majority of employees, presumably to perpetuate the autonomy of individual departments, which is a characteristic of Hartz. More significantly, the record is totally devoid of any evidence that the seniority system has resulted in sex discrimination. Bohm did not seek or indicate any desire to transfer to another department, with opportunity for higher wage. Thus, even if Hartz’ seniority system were discriminatory, which it is not, there is no indication that Bohm has been damaged as a result of such discrimination. There must be such a showing before recovery may be allowed. Dodge v. Minnesota Mining & Manufacturing Co., 278 N.W.2d 97, 100 (Minn.1979).

II.

Bohm argues that the trial court erred by not employing the theory of comparable worth to determine whether Hartz systematically discriminates against female employees.

Proponents of comparable worth ask the courts to find a per se violation of Title VII (or the Minnesota Human Rights Act) from evidence that job categories dominated by women are paid less than job categories of comparable worth to the employer, dominated by men. They would have the courts reject the employers’ use of market wage information as a basis for salaries, on the ground that it perpetuates historical market biases.

Here, Bohm seeks a construction of the Minnesota Human Rights Act which would authorize a prima facie violation whenever employees of different sexes receive disparate compensation for work of differing skills that may, subjectively, be of equal value to the employer, but does not command an equal price in the labor market. She seems to be suggesting that clerical workers and warehouse workers are of equal value to Hartz and that, therefore, regardless of the fact that the two jobs command unequal prices in the labor market, Hartz must compensate them equally.

There is no question but that the law does not provide a remedy for this type of disparity. Bohm’s argument has been repeatedly made in federal courts, and comparable worth has been unqualifiedly rejected.

In Lemons v. City and County of Denver, 620 F.2d 228 (10th Cir.1980), cert. denied, 449 U.S. 888, 101 S.Ct. 244, 66 L.Ed.2d 114 (1980), the tenth circuit held that Title VII did not provide a remedy to nurses who sought increased compensation based on a comparison of their jobs to dissimilar jobs of “comparable” value in the community.

In Christensen v. State of Iowa, 563 F.2d 353 (8th Cir.1977), the eighth .circuit, refusing to compare the wages of women *907clerical workers with those of the male employees in the physical plant, stated: “We do not interpret Title VII as requiring an employer to ignore the market in setting wage rates for genuinely different work classifications.” Id. at 356.

The law in Minnesota is clear: courts under existing authority cannot require a private corporation to reassess the worth of services in each position in relation to all others, and to strike a new balance and relationship.

The dissent, however worded, would judicially impose comparable worth on the private sector. This we cannot do.

The dissent relies on County of Washington v. Gunther, 452 U.S. 161, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981), believing it to have invalidated the law enunciated by the Christensen and Lemons courts.

We fail to see the importance the dissent attaches to the Gunther case for purposes of the case now before the court.

Gunther is a very limited opinion standing for the proposition that there is a cause of action under Title VII absent a showing of equal work where there is direct evidence that an employer has intentionally depressed a woman’s salary because she is a woman. Gunther, 452 U.S. at 204, 101 S.Ct. at 2265 (Rehnquist, J., dissenting).

The Gunther court looked at data compiled by the employer which indicated that female matrons should be paid 95% of what male guards were paid, based on a comparison of the job of jail matron with the job of male guard. It looked at evidence that the county knowingly paid matrons 70% of what it paid guards, indicating possible intent to discriminate based on gender. The court was not being asked to subjectively compare the worth of dissimilar jobs. The employer itself had compared the jobs in question and had apparently disregarded its own findings. Thus, the court ruled that such failure to follow its own job evaluation was evidence of an intent to discriminate. Gunther, 452 U.S. at 180, 181, 101 S.Ct. at 2253, 2254.

Thus, the Gunther court accepted a “comparable worth-like” claim because the employer had evaluated the jobs, had found sex-based wage disparities, and yet did not remedy them. It is this sort of ignoring of an employer’s own compiled data that is prima facie evidence of intent to discriminate. No such study was conducted and ignored at Hartz during Bohm’s tenure.

The dissent makes another interesting yet erroneous assertion as to the present state of discrimination law which must be answered. It seems to be the dissent’s position that discriminatory wage increases based on market factors are unlawful unless the employer establishes that the use of the market factor was “necessary.” Since Hartz did not prove the “necessity” of taking into account market factors when setting the 1981 wage increases, those increases were unlawfully discriminatory and consequently Bohm should recover. The dissent relies on Craik v. Minnesota State University Board, 731 F.2d 465 (8th Cir.1984), as support for its interesting and unique position.

In Craik, the court permitted market-factor increases for all male job categories identified as “scarce market factors.” Id. at 480. The language the dissent is relying on is as follows:

The magistrate agreed, however, with the defendants’ argument that the awards were necessary to maintain a strong faculty in these disciplines. We cannot say that this conclusion is clearly erroneous in view of the greater market demand for professionals in these disciplines than for professionals in disciplines such as English and Education, where more women have traditionally specialized.

Id.

We submit that the dissent has misread Craik. The court does not introduce a new demand to make a necessity showing; rather it simply repeats the position of the Christensen and Lemons courts, indeed, the position of this court. An employer is not required to ignore the market in setting *908wages for genuinely different job classifications.

III.

Bohm alleges that she was let go in retaliation for filing a discrimination complaint with the Human Rights Commission.

Where there are legitimate, nondiscriminatory reasons for discharge, the plaintiff has the overall burden of showing a retaliatory discharge. Hubbard v. United Press, 330 N.W.2d 428, 445 (Minn.1983). Bohm has not made such a showing in this case, and Hartz has established legitimate, nondiscriminatory reasons for discharging her.

Bohm’s position was eliminated as a result of Hartz losing three major grocery accounts. This loss represents a seven percent loss in the company’s annual sales, or about 3.7 million dollars in gross business per year. In addition to eliminating Bohm’s position, three other employees were laid off and one employee had his weekly hours reduced. Other cost cutting measures for Hartz included rebidding its insurance and leasing its computer.

Hartz’ management was not aware of Bohm’s sex discrimination claim when she was terminated. Her department head was instructed by management to eliminate one of his employees after the company lost the three major accounts. Bohm was working on a part-time basis at the time because she could no longer be kept busy. Her position was eliminated because she was the most dispensable employee in the department. Further, she had the least seniority. Bohm’s duties were divided between three others in the department; no one new was hired. This evidence is more than enough to establish nondiscriminatory reasons for termination.

DECISION

Bohm established that female employees at Hartz were predominantly employed in unskilled clerical positions earning less pay than unskilled male employees. These statistics, however, do not amount to company-wide discrimination in violation of Minn. Stat. § 363.03, subd. 1(2) (1984). They merely reflect prevailing patterns of employment in northwestern Minnesota.

The trial court was correct in rejecting the doctrine of comparable worth. Courts under existing authority cannot require a private corporation to ignore the market in setting wages for genuinely different job classifications.

Bohm’s position was eliminated as a result of economic troubles at Hartz. The evidence does not establish that she was let go in retaliation for filing a discrimination complaint with the Human Rights Commission.

Affirmed.

CRIPPEN, J., dissents.