Diane PELTIER et al., Appellants-Cross-Appellees, v. CITY OF FARGO, a Municipal Corporation, et al., Appellees-Cross-Appellants.
Nos. 75-1597 and 75-1598.
United States Court of Appeals, Eighth Circuit.
Submitted Jan. 16, 1976. Decided March 30, 1976.
As to whether the Iowa Blue Sky statute requires scienter, the District Court ruled that scienter would not be required in a Blue Sky action based upon the facts of the present case. The District Court construed
Upon our review of the records, briefs and arguments of the parties, we affirm on the basis of the well-reasoned District Court opinion. The decision rested largely upon an interpretation of state law and we give great weight to the District Court‘s interpretation. Luke v. American Family Mutual Insurance Co., 476 F.2d 1015, 1019 (8th Cir.), cert. denied, 414 U.S. 856, 94 S.Ct. 158, 38 L.Ed.2d 105 (1973).
Judgment affirmed.
Wayne O. Solberg, City Atty., Fargo, N. D., for City of Fargo and others; John V. Boulger, Fargo, N. D., on brief.
Before HEANEY, ROSS and WEBSTER, Circuit Judges.
HEANEY, Circuit Judge.
Diane Peltier, Connie Wolter and Sally Suby appeal from an adverse decision in their sex discrimination suit against the Police Department and City of Fargo, North Dakota, for alleged violations of the Equal
Male patrol officers serve in numerous law enforcement capacities within the Fargo Police Department. Prior to 1973, several patrol officers were normally assigned to downtown parking control duties which required them primarily to check and ticket for parking and other non-moving violations. In the spring of 1973, the Police Department created a new classification on the City employment list entitled “car marker.” This position was designed to provide necessary downtown parking control and to allow the transfer to other positions those officers normally assigned that duty. The three female appellants were hired to fill the car marker positions. Their basic wage rate was approximately one-half the rate of a beginning male patrol officer.
The appellants contend that they perform essentially the same duties as did the male patrol officers who performed downtown parking control duties prior to the creation of the “car marker” position. They contend that the present fifty percent discrepancy in salary is a violation of the Equal Pay Act. They also assert that the male patrol officers who performed car-marking duties were eligible for promotion and transfer as were any other male patrol officer, but that they are not. The appellants assert this restriction of promotion and transfer, coupled with the patrol officer selection process, including unvalidated tests and personal interviews, has resulted in sexual discrimination in violation of Title VII.
The District Court found that the appellants had failed to prove that the job performed by the female car markers was equal in skill, effort and responsibility to that of male patrol officers performing car-marking duties prior to the spring of 1973 and denied their back pay petition under the Equal Pay Act.1 It further found that a prima facie case of sex discrimination, in violation of Title VII, had been established because no woman had ever been hired as a patrol officer and only three women were employed as police officers in the Fargo Police Department. The court recognized that the appellants were entitled to an equal opportunity to qualify and become patrol officers. However, the appellants admitted that they had never applied for a position as a patrol or police officer and the District Court determined that they had “failed to satisfactorily explain” this failure and denied their claim for back pay under Title VII.
The District Court additionally found that the City and the Police Department: (1) had failed to actively recruit women and minorities for police or patrol officer positions; (2) had advertised for these positions on a sex basis; and (3) had utilized an unvalidated employment test and a height and weight requirement to screen police and patrol officer candidates. The court found the appellees had not offered a satisfactory explanation for these practices which had resulted in discrimination. Therefore, the court, within its equitable power under
I. EQUAL PAY ACT.
The appellants contend that they have and are performing the same duties that the male car markers, classified as patrolmen for pay and promotional purposes, performed prior to June, 1973. They contend
between employees on the basis of sex by paying wages to employees * * * at a rate less than the rate at which he pays wages to employees of the opposite sex * * * for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to * * * (iv) a differential based on any other factor other than sex * * *.
The policy behind the Equal Pay Act was well expressed by the Third Circuit in Shultz v. Wheaton Glass Company, 421 F.2d 259, 265 (3rd Cir.), cert. denied, 398 U.S. 905, 90 S.Ct. 1696, 26 L.Ed.2d 64 (1970), and has been endorsed by this Circuit in Shultz v. American Can Company-Dixie Products, 424 F.2d 356, 360 (8th Cir. 1970). The Third Circuit said:
Congress in prescribing “equal” work did not require that the jobs be identical, but only that they must be substantially equal. Any other interpretation would destroy the remedial purposes of the Act.
The Act was intended as a broad charter of women‘s rights in the economic field. It sought to overcome the age-old belief in women‘s inferiority and to eliminate the depressing effects on living standards of reduced wages for female workers and the economic and social consequences which flow from it. [Footnotes omitted.]
Shultz v. Wheaton Glass Company, supra, 421 F.2d at 265.
The consideration of equal pay standards is based on actual job requirements and performance, not on-job classifications or titles. Hodgson v. Miller Brewing Company, 457 F.2d 221, 227 (7th Cir. 1972);
The trial court found initially that the male car markers possessed the skills and training of patrol officers while the appellants received training only as car markers. The court found that this additional training gave greater flexibility to the Police Department. The males were capable of performing duties the women were not, and the males could be shifted from the car-marking position to narcotics or other investigative positions. The court concluded that the jobs performed by the men and women car markers did not require equality of skill and were not equal.
The crucial question under the Equal Pay Act is not whether one sex possesses additional training or skills, but whether the nature of the duties actually performed require or utilize those additional skills. See
Possession of a skill not needed to meet requirements of the job cannot be considered in making a determination regarding equality of skill.
Further, to justify unequal wages on the basis of alleged flexibility requires inquiry into the frequency and manner in which that additional flexibility is utilized. See Shultz v. Wheaton Glass Company, supra, 421 F.2d at 263-264. We turn, therefore, to the actual duties performed by both the male and female car markers to ascertain whether the additional skills and the alleged flexibility justify the fifty percent discrepancy in wages.
The evidence indicates that the female car markers’ principal duties were the daytime patrolling of the downtown Fargo business district marking cars for overtime parking and issuing tickets for parking and non-moving violations.2 They performed
The evidence discloses that the male car markers’ principal duties were the same. They patrolled the downtown Fargo business district during daylight hours marking cars for overtime parking and issuing tickets for parking and other non-moving violations. The male car markers wore police uniforms, were armed and drove Harley-Davidson three-wheel motorcycles. They also performed the other related police duties subsequently performed by the appellants set forth above.
The District Court found that the following extra duties performed by the male car markers were not subsequently performed by the appellants: (1) providing downtown security; (2) answering calls and complaints relating to fights, fires, automobile accidents and crimes; (3) assisting patrol car units in investigations; (4) interviewing citizens’ lodging complaints; (5) issuing tickets for moving violations; and (6) being “on call” for extra duty shifts.
Police officers Ed Harles, Royal Herbold, Kenneth Mikula and Robert Olson served a total of approximately twenty-six and one-half years as male car markers. All of these officers testified that their primary duties, while serving on downtown traffic control, were marking cars and issuing parking tickets. These officers stated that they rarely, if ever, answered calls or investigated crimes. They occasionally filed a complaint blotter when a reportable incident occurred in their immediate patrol vicinity, but they had received orders from their superior officers to concentrate their attention on marking cars. They further testified they were rarely called for extra duty and rarely shifted to other police divisions while they were serving as male car markers.
Officer Herbold served as a car marker from August, 1966, until April, 1973, when he was replaced by appellant Diane Peltier. He testified that during his assignment to the car marker position, he never made an arrest, never participated in any stakeouts, never drew his gun and never used his three-wheel motorcycle in pursuit of another vehicle. Officer Herbold filed only three complaint blotters during this seven-year period. He testified that his primary duty was to mark cars, and that he rarely did any other kind of police work while assigned to downtown parking control.
Lieutenant John Larsen has served twenty-five years in the Fargo Police Department. He served from approximately 1960 to 1967 as a dispatcher and has served most recently as a shift commander in charge of the day-to-day activities of both male and female police officers. During the period he served as a dispatcher, he could not recall ever sending a male car marker to investigate a domestic problem or a burglary. He stated that it was very rare for the male car markers to be assigned or requested to perform any duty other than marking cars. Lieutenant Larsen also stated that he served as a shift commander when the female car markers replaced the male car markers. He stated that he was unaware of any change in policy or function in the job and that both males and females performed substantially similar duties.
We conclude that the extra duties actually performed by the male car markers which were not subsequently performed by the female replacements were very insubstantial. The extra duties performed consumed a minimal amount of time and were essentially incidental to the actually as-
II. TITLE VII.
Together with their back pay claims, the appellants seek additional affirmative injunctive relief to eliminate sexual discrimination within the Fargo Police Department. They ask that the City be required to hire one female for every male hired as a patrol officer until the ratio of females to males in the Police Department equals the ratio of women to men in the City of Fargo as a whole, and that the Police Department be required to remove all classifications and other barriers that hamper women from being considered equally for promotions and transfers.
We note initially that the appellants failed to appeal from the denial of their class action petition. We also note, as set forth above, that the District Court has required the appellees to adopt validated employment tests, institute an affirmative action program that satisfies federal statutes and regulations and make reports to the court as to its progress.
The record reveals that many of the discriminatory hiring practices have already been altered. The City has abolished potential discriminatory height and weight requirements, it has begun advertising for police officers on a non-sex basis, and it appears to be making efforts to have its employment test validated. In addition, the results of the March 12, 1975, police officer tests show that twenty-eight of the sixty-eight applicants were women, twenty of the sixty who passed were women, and that five of the top ten qualifiers were women.
The record also reveals that the City of Fargo has adopted a general affirmative action plan and that the City Council and Civil Service Commission, with help from the Fargo Branch of the North Dakota
We conclude, therefore, that no general injunctive relief is required from this Court. We are confident that the District Court will carefully monitor the implementation of the affirmative action plans and will require additional specific action if necessary to eradicate any remaining discriminatory policies.
The appellants also request that they be granted the next three available patrol officer positions. This specific request is apparently raised for the first time on appeal. In their post-trial brief to the District Court, the appellants stated that they had never demanded to be made patrol officers but that since they performed the same job as the male car markers, who were classified as patrol officers for the sake of salary and promotion, they should be afforded the same salary, promotion and transfer privileges.
Each of the appellants testified that she had not originally applied for a patrol officer position but instead for general police work. Furthermore, they all declined to make application or take the patrol officer examination in March, 1975, at which time a number of women did apply, took the test and qualified for patrol officer positions. Because the appellants have not taken and passed the patrol officer examination, they have not received the training necessary to perform all the duties of a patrol officer other than those encompassed within the car marker position.
We conclude, therefore, that the appellants are not entitled to be classified as patrolmen or to be automatically granted the next three available patrol officer positions. Compare Rodriguez v. East Texas Motor Freight, 505 F.2d 40 (5th Cir. 1974). They are car markers and entitled to the same pay as the car markers who preceded them. The fact that their predecessors were patrolmen does not entitle the appellants to that status. This denial of specific relief does not, of course, bar the appellants from applying for the patrol officer position through the normal application and testing procedures if they so desire. Nor does it restrict the appellants from seeking relief in the District Court if they are discriminated against in the future.
III. ATTORNEY‘S FEES.
The appellants also appeal from the District Court‘s award of $2,500 in attorney‘s fees, claiming that the award is insufficient. The appellees cross appeal, asserting that the award is excessive.
The appellants’ counsel submits that he spent 282.2 hours in preparation and at trial, that the award of $2,500, or $8.86 an hour, is insufficient and that the amount of the award will deter future attorneys from undertaking similar sex discrimination suits. The appellees suggest that the award of attorney‘s fees should reflect the extent to which the appellants have prevailed. Because there was no direct relief granted to these appellants below, they argue that the award should be reduced.
Attorney fees may be recovered by the prevailing party in a Title VII action,
We reverse and order back pay, with interest, and attorney‘s fees of $5,000.
ROSS, Circuit Judge (concurring).
I concur in the opinion of Judge Heaney and agree that the plaintiffs performed substantially the same services as their male predecessors. I would prefer to be
No. 75-1618.
United States Court of Appeals, Eighth Circuit.
Submitted March 9, 1976. Decided April 1, 1976.
William L. Meardon, Meardon, Sueppel, Downer & Hayes, William V. Phelan, Shulman, Phelan, Tucker, Boyle & Mullen, Iowa City, Iowa, for appellants.
John W. Hayek, Hayek, Hayek & Hayek, Iowa City, Iowa, for appellees.
Before LAY, ROSS and STEPHENSON, Circuit Judges.
PER CURIAM.
In this case Nall Motors, an auto distributor in Iowa City, Iowa, and Russell F. Mann, also of Iowa City, claim that the land acquisition policies of that city in its urban renewal development, violate the provisions of Public Law 91-646 (
The plaintiffs, on this appeal, make the following arguments:
1.
2. The trial court erred in holding that it had no jurisdiction over plaintiffs’ claims under
3. The City could not require the acceptance of an offer to purchase by both landlord and tenant as a condition to a purchase from either of them.
4. The City failed to reimburse Nall Motors for an “uneconomic remnant” under
5. The district court erred in holding that the City did not violate Mann‘s civil rights in respect to the appraisal and negotiation for his property.
We have carefully considered the record and the oral and written arguments of the parties. We believe that Judge Stuart has correctly determined each of the contested factual and legal issues and we affirm on the basis of the memorandum opinion of the district court. Nall Motors et al. v. City of Iowa City, Iowa, et al., 410 F.Supp. 111 (S.D.Iowa 1975).