Dr. Julia Elizabeth Berry v. The Board of Supervisors of L.S.U., Etc.

The uncontradicted evidence in this permits

case the inference behind BERRY, Dr. Julia Elizabeth express Wommack’s implicit consent was an Plaintiff-Appellant, exchange of consideration. When Wom consented mack first to and assisted Dur The BOARD OF SUPERVISORS OF ham’s his process, use of he had nothing L.S.U., etc., al., et more than an idea he hoped patent and Defendants-Appellees. sell. patentability of the process, the manner in which it applied would be in a No. 82-3198.

processing plant and the profitability United States Court of Appeals, Yet, such was uncertain. Fifth Circuit. exchange of benefits was certain. Wom Sept. mack received the test his opportunity to process commercially and to use Durham’s in his

equipment experi home for his own

ments. Wommack benefitted from this ex

perience preparing patent application; his

he may have com hoped proven

mercial success in the plant Durham would

facilitate the sale of his process to other

plants.19 assistance, Durham offered this risk,

at its own only with the possible hope it would be permitted the continued

use of process.20

Having apparently read certain inconsist-

ent jury verdicts in the manner per- evidence,

mitted uncontradicted

having concluded that Durham’s assistance

need not have been prior rendered

reduction to practice, we find the resolution

of this case clear. Wommack admitted his

consent and his employer’s assistance in cir-

cumstances that support finding aof

shop right. We therefore affirm the dis- plaintiff’s

missal of action for infringement.

AFFIRMED. description every way 19. Wommack did distribute a of his up I could and told him if he came process anything with an offer of sale money, to several other with that would make him it processors nationwide. He anything testified that no was all his. I did not want for the use processors yet purchased process. have course, his equipment, expect of our but would of anything to benefit from he learned. This he readily agreed supported by 20. This inference to and was at Mr. Durham’s time most testimony appreciative.” that at the time This claim was never Wommack consent- refuted Wommack, use, understanding ed to Durham’s need not have been believed that, jury. stands, however, help provided “for Durham Wom- The inference [the mack, merely anything objective also said that if Wommack] a result of the nature of the good experimenting, Gill, employer-employee cooperation. came from his we would always helped have the benefit of same. I him U.S. at at 325. Jones, Baton THE Jones, Johnnie A. FACTS Jones & La., plaintiff-appellant. Rouge, Plaintiff-appellant, Berry, Doctor a white Duhé, McKenzie, woman, Thornton Mary two-year appointment had a W.S. La., defendants-appellees. Rouge, Rouge Baton University-Baton Louisiana State (“LSU”) professor as an associate

Campus counseling, began Au- guidance $17,000 per Her gust salary the defendants in Berry’s complaint, year. POLITZ, TUTTLE*, and GAR- Before which, here, were the Board appellees LSU WOOD, Judges. Circuit administra- and various LSU Supervisors alleged: personnel, tive and academic GARWOOD, Judge: Circuit job began her she was informed before the novel presents This case per be nine hours her duties would to teach sex discrimination violation whether develop program and to a doctoral semester Act, 206(d), oc- Equal Pay the U.S.C. § field; counselor education guidance female, though paid the same curs when pursue would also be able to inde- that she counterparts, given as her male campus research and teach off dur- pendent volume of work. Also substantially larger at a rate of one-tenth ing the LSU us are as to the timeliness questions before of her nine months’ for each course other claims plaintiff-appellant’s summer, rate taught, during and the at a 2000e sex under U.S.C. § course; per two-ninths of this amount 1983. The (“Title VII”), and 42 U.S.C. § promised provide to her with assist- LSU motion dismiss court held on a district started; after she and that when ant soon Act claim appellant’s Equal Pay the she, began August she work on actionable, to dis- and on motion her male the colleagues, unlike summary judgment, and motion for miss (on campus) course load of two full-time that her other claims were time barred.1 eighteen to twen- professors, amounting to below, the reasons stated we affirm its For per hours semester in nine different ty-one re- holding on the section 1983 claim and responsi- other subjects, VII in addition to her Equal Pay Act and Title mand claims. bilities.2

* Circuit, sitting by February Judge on 1982 held that Circuit of the Eleventh trict court claim, designation. complaint Equal Pay did not state an Act judgment dismissing the com- and rendered appellees filed a 1. On Décember 1980 the basis, plaint on that and on the basis of the Berry’s appellant motion to dismiss each of ruling previous limitations as to the Title VII applicable claims as barred statutes of and section 1983 claims. urged allega- limitations. This motion also violations, Berry alleged apparently willful complaint tions of the “fail to state a claim three-year seeking pe- limitations to invoke the May Equal Pay under Act.” On Equal Pay provided for this character of riod action on the motion to dis- before was taken violation, opposed to the normal two- miss, appellees for sum- also filed motion year period. 255(a). 29 U.S.C. § mary exclusively judgment, on limita- based 22, 1981, appellant reply tions. On June filed a Berry’s employment offer of from LSU formal summary judgment. Both to the motion for position her and duties as follows: described parties interrogatories, affida- filed answers to “A. Rank —Associate Professor Educa- exhibits, vits, material for the court’s and other tion. The motions to dismiss and for consideration. (1) guidance Teach courses in “B. summary July judgment heard on Duties — counseling, (2) responsible and for build- granted, except and were as to the area, (3) ing graduate programs in this claim, ruling a December students, undergraduate graduate advise holding the Title and section 1983 claims VII (4) yourself professionally ruling advance noted that were time barred. The research, through publications, Act, and ser- parties field had not addressed vice, departmental, college, on serve be filed on the issue of and directed that briefs appropriate university committees complaint stated whether the directed, briefing your Following dis- rank. claim. 14, 1976 action under the Act and that on October notified

LSU not be renewed were not time barred. her contract would her other claims 1977. LSU’s expired May when it THE LAW for this action were stated reasons poli- publication failure to meet the school’s EQUAL PAY A. THE ACT CLAIM develop a curriculum in cy and failure alleged that she Berry’s complaint proceed- initiated counselor education. She the work load of two replaced and assumed her termina- ings for the internal review of giving full-time her course professors, tion, On October unavailing. which were semes eighteen twenty-one per hours of sex dis- charge filed a ter, counterparts her male were as while against crimination LSU with EEOC normal load of nine hours signed only 4,1978, this suit August and on commenced alleged that semester. She also per claiming court violations in federal district heavy exceptional “[b]ecause Act, Title and section YII load, teach Plaintiff was unable to male pay extramural courses for as her of the exces- Berry alleged because and, fact, in The colleagues could do did.” sive to her she was not assigned work load court, focusing district on the first of the campus pay able to teach off for extra “plaintiff’s concluded that claim allegations, were, nor she have colleagues her male did actionable under the not [was] independent time to research or to pursue alleged she had not Pay Act” because program. a doctoral develop She unequal wages. she received had assistant, no was forced that she was However, plaintiff’s we consider that funding sup- and inadequate to work with construed to have raised complaint may be plies, ignored and was when she com- out of the Equal Pay arising an Act claim plained. asserted that LSU intended She Berry’s above. al- allegation quoted second job her out of her by this treatment force heavy an extra legation that she carried Berry alleged because of her sex. that her while male regular professors, course load male, replacement, who was was not as- not, were able to teach additional who did giv- an excessive work load and was signed susceptible of the courses for extra supplies, en an assistant and the equipment, plaintiff paid that the less construction and which she had been denied. support work in terms of the money “equal” for court dismissed her claim un- The district relevant taught number of hours and other der failure to state a Equal Pay for this allegation factors. made action, provi- this concluding cause of complaint, of her but she portion Title VII applied “only sion when males and females it reference into the count incorporated by paid wages equal different work.” a violation of the Act. alleging she It dismissed her Title VII claim because argued appears This to have been' issue charge within 180 had not filed EEOC court, albeit somewhat district days “alleged employment unlawful “Brief in generally, obliquely have oc- practice,” which it considered to Motions to Dis- to Defendant’s Opposition she re- curred on October 1976 when ...,” Summary Judgment miss and not be rehired. ceived notice that she would which stated: court dismissed her sec- Finally, the district raises, case in view “The this filed tion 1983 action because it was not sought by Congress purposes one-year prescriptive period within law, the case is: development comparable it found applicable requiring and by L.S.U. as- “Whether appeal, Berry suits in Louisiana. On and three Plaintiff to do twice exacting state a cause of serts that her academic appointment additional 2/s>of their for two receive an Tenure: initial “C. years. salary.” $17,000.00 Salary: for nine months. “D. during the summer term teach Persons who plaint significant work as her male coun- is not if it alleges times as much facts pro- upon granted, less can be even if apparently who with relief terparts categorize correctly legal theory fails to qualifications distinction and fessional claim.”); giving Hargrave rise to the to or consider- salaries paid McKinney, Cir.1969), more sizable than the ally [sic] remand, F.Supp. (three-judge half, only Plaintiff but did paid [sic] court), vacated on other grounds, U.S. more less work on com- a third or even (1971), 28 L.Ed.2d 196 comparable positions or in parable jobs normally sustain a dismissal for failure subterfuge as Plaintiff has success- appears beyond to state a claim if “it unearthed a which it fully mean[s] prove that the can no set of plaintiff doubt against can continue to discriminate in support facts of his claim which would Plaintiff and others of class based Gibson, Conley entitle him to relief.” ‘The Act’ spite on sex 41, 45-46, 101-102, contending that such differentials (1957); Keating L.Ed.2d Chemi- Shell per workload and hours of work (5th Cir.1980). cal compensation are not academic Thus, reading Berry’s pleadings allege within the differentials ambit that she was a lower than her and, therefore, not proscribed by colleagues performing equal male while the Act?” work, a claim under the brief, portions In earlier of this trial refer- court, would be stated. district how- ence had been made to the fact that male ever, ruling, did address claim in its professors associate were able to make ex- thus we must remand it for further while, money by teaching tra off campus course, consideration. will re- Berry Of load, of Berry because her excessive work demonstrate, alia, quired to inter the had not been able to do so.3 We take the was in the same work “establishment” and passage quoted statement in the above— “equal jobs” requiring “equal was work on male professors paid were more —to skill, effort, and responsibility, and which money teaching refer to the earned off by performed working are under similar condi- campus and to claim that such work was 5; and, may subject tions” the claim also be equal.4 defense, others, among that the com- in generally allegations We read differential pensation was bona fide based plaintiff’s complaint liberally, Dussouy v. on some “factor other than sex.” 29 U.S.C. 594, Corp., Gulf Coast Investment 206(d)(1). express We no view of the § (5th Cir.1981) (“The form of the com- merits of this claim or whether it will re- by Berry allegations 3. An earlier trial brief submitted When this issue and these argument, stated: discussed at oral counsel for LSU stated, “I did not understand to be the professors teaching education “[M]ale [Berry’s] complaint, basis of nor did I see that sufficiently light courses at LSU were a Equal Pay portion complaint.” of the As on-campus teaching permit load to them to above, these cited courses, overload, noted were incor- teach extramural as an Pay porated Equal into reference pay; assigned extra while Plaintiff Berry’s complaint. summary judg- on-campus count of No teaching overload for no extra issue, “proof” and, addressed to pay, ment this ....” entirely it was decided on motion to particular also refers to this issue in dismiss and on the basis of the claimed facial Court, arguing her brief to this that LSU re- supra. invalidity complaint. See note of the quired her determining nominally “to teach each semester a semester-workload In whether different jobs “equal” “require equal that consisted of more than twice the number work or are or skill, effort, per- responsibility, of semester hours than that of the semester- are conditions,” required by working workload LSU of her male coun- formed under similar we alia, consider, terparts permitted may inter who LSU to teach and do believe a court wheth- any campus’ teaching assignments respects ‘off for extra er asserted differences of these or, contrary, merely paid equal on the de- who LSU to are bona fide and/or greater compliance or LSU the Plain- with the than the vices to evade tiff.” Act. hearing statutory require can be dis- construction which or evidentiary quire plain meaning of a judgment. give effect to summary of on motion for posed provision, in the ab- statutory especially issue to the novel We now turn indicate a history to legislative sence se, load, per raised Product contrary interpretation. Consumer a violation constituted assigned by LSU Inc., Commission Sylvania, v. GTE Safety We with agree Act. 447 U.S. court it did not. district v. Turk- (1980); L.Ed.2d United States this examination of begin We our ette, 452 101 S.Ct. statute, which with the text of question (1981); 69 L.Ed.2d 246 Aaron Securities states: Commission, 446 U.S. Exchange having sub- employer employees “No L.Ed.2d shall ject any to this section provisions Thus, the “under- (1980). we must examine discriminate, any establishment within sought to purposes Congress which lying be- employed, are employees which such they whether com- achieve” determine on the basis of sex employees tween provi- plain meaning with the port estab- wages employees in such paying sion. less than the rate at lishment a rate legislative history of the he pays wages employees which directly does address the opposite sex such establishment discrimination,” “work load jobs performance work on Act and the statements structure of the skill, effort, and re- requires equal passage made in at the time of its Congress un- sponsibility, performed and which pure support our conclusion that claims conditions, except working similar der such are not “work load discrimination” as pursuant where such is made payment As for encompassed by statute. its (ii) system; (i) seniority system; a merit structure, Act was made earnings by (iii) system which measures of the Fair Labor Standards (iv) or quantity production; quality seq., (“FLSA”), 29 U.S.C. 201 et under § based on other factor any a differential has been administered en- 29 U.S.C. other than sex: ....” is on wages forced. The focus FLSA 206(d)(1) added). (emphasis § and overtime hourly —minimum rates pure claim of “work load discrimi- working not on conditions as- pay —and the literal encompassed by nation” is not 206 and 207.6 signments. sections See language provision this because she regulation, this area of the Even within the as male counter- earned same coverage. has limited In when FLSA not, strictly speaking, paid parts. She was passed, employers was in Equal Pay the Act a rate than the at which “at less rate [the motel, hotel, sales, laundry, outside and oth- employer] pays wages employees the reach. er areas were excluded from its ” opposite equal sex ... for work.... (1965 ed.). regulatory 213 Onto this section inquiry framework, equal provisions whether the were Our thus becomes language grafted. Equal Pay precise in section 206 should be a The Act’s lan- focus, Supreme that its like that of application. guage literal The Court has indicates wages specifi- in this regard generally, stated the FLSA “[t]he — remedial, it should be the broadly cally, prevention gender-discrimina- Act is It in tory wage construed so to fulfill the rates. was included the applied wages, on minimum section underlying sought provision FLSA purposes Congress Bren- terms it covered Corning prohibits to achieve.” Glass Works v. its wages to em- nan, “paying from employers only 417 U.S. rate than the rate at guid- We also be ... at a less (1974). ployees 41 L.Ed.2d however, of the ed, wages employees he principles pays established of which (see present purposes. So far as provisions child FLSA irrelevant 6. The labor of the concerned, plain- 212) 203(f), perhaps focus is be re- are FLSA’s 29 U.S.C. can adults §§ wages this, garded exception plainly ly on as such. as an but are ” of all too wage many “The structure equal work.... sex ... opposite added). (emphasis industry of American has been segments U.S'.C. § ancient but outmoded belief based on an sup- the floor debates An examination of man, his role in society, that a because of the conclusion that ports paid be more than a woman even should discriminatory wage aimed McNamara, in his intro- the same. This Bill though rates. As Senator his duties are stated, of the Bill before Senate duction effect, in that such an provide, would Bill, establishes the additional “This S. longér imple- belief can no outmoded in the the others contained protection [to work will be re- mented and cannot be that a worker FLSA] equal wages.” S.Rep. No. warded of his or discriminatory wage rate because (1963), Cong. reprinted 88th 1st Sess. (1963). The Cong.Rec. her sex.” Cong.Rec. (1963). in- Congress’ as well reveal House debates terms, the debates general In more House apply only tention the Act was intended as reveal were as does wages unequal,7 attack on sex discrimination comprehensive accompanying the Purpose” “Declaration of Rather, regarded it was employment.8 House, “ex- targeted Bill in the step particular- first aimed at a wage differentials based as a limited istence of legislation evil at which the sex” as the form of sex dis- egregious blatant and ly Re- Id. at 9213. The Committee directed. wages lower paying women crimination — Bills from both the equal pay on the ports work.9 performing men for the same than this inten- House and the Senate confirm Thus, we conclude from our review of contem- Report, clearly The House tion. underlying pur- that the legislative history provision only plating application Act did not include poses states sec- wages unequal, where discrimina- of “work load prevention wage differentials tion 206 “declares tion” such. employee solely based on the sex of supports law on the Case wage The lower an unfair labor standard. to claims of view that it is limited level of the rate must be increased to the that it was not intended unequal wages and Cong., No. 88th 1st higher.” H.Rep. effects of sex reach all of the economic Sess., Cong. in 1963 & reprinted U.S.Code workplace. in the Su- Report like- Ad.News 688. The Senate County recent decision preme Court’s wise states: supporters, suggested that Supporters repeatedly of the Bill referred to Act’s pro- comprehensive all forms of problem unequal wages: attack on “The Bill employment discriminatory wage areas payment sex discrimination hibits Cong.Rec. Cong. See 109 which were covered. rates which are based on sex....” Frelinghuysen 1963) (remarks Rep. Powell); (May (Rep. see also id. at Rec. 9195 (“The only thing expect (Rep. Frelinghuysen) that the administration can —“[W]e effective, pay concept, equal and prohibited pay while fair based the is a difference in that excessively rang- Thompson) (“It wide solely sex.”); (Rep. not be excessive nor will on at 9196 (remarks Rep. Dwyer— wage ing.”); only applies of is a differen- at 9199 ... where there solely sex.”); (Rep. in this bill “There are a number of weaknesses tial on at 9204 Sick- based scope unwisely (Rep. of its les); (Rep. Ryan); I believe limit the and at 9213 which at 9211 unnecessarily en- encumber its Matsunaga). and forcement.”); (remarks Rep. Dent— at 9200 of Representatives gave ex- In instances where very legislation falls short of “I that this think Act, amples operation the “work load of doing job in area of has to be done this the was never mentioned. See id. discrimination” employment.”). (examples given by Rep. Frelinghu- at 9196 ysen). George, Rep. St. 109 remarks of 9. See the meantime, (“[I]n Cong.Rec. the primary 9193 Act was not 8. The reason that the help, going which will comprehensive to have these bills to be was its limited considered little, get a in coverage, which will foot employer will do a which was based on that of Sullivan, door.....”); Rep. at 9205 Cong.Rec. (May id. FLSA. See 109 the the but, my opinion, go enough, (“It in 1963) (remarks by Rep. George Rep. not far does St. bill.”). goes, good Bolton). by it it is a far as Frances P. Statements other of the as Gunther, jobs performance the of work on Washington equal 452 U.S. skill, effort, and re (1981), requires equal is instruc 68 L.Ed.2d S.Ct. Gunther, performed female which are under regard. sponsibility, in this In tive ” un at prison guards Washington County working sued similar conditions.’ 417 U.S. wage added). Title discrimination. der VII at 2228 The (emphasis They part Circuit, differen claimed reiter quoting language, Third jobs tial between their and those of male of as essen unequal pay ated the element to intentional sex guards was attributable prima facie case the tial to under jobs if the two were not discrimination even Angelo Act. v. Bacharach Instrument Equal Pay Act did substantially equal. 1164, 1171(3d Cir.1977). More municipal employees at that apply not relying a district court on both recently, time, provisions directly so its were not Equal Pay an Corning Angelo, rejected Court, the how issue. The before un which lacked of Act claim ever, claims under Title VII was whether equiv workers in wages paid to male equal 2000e-2(h), the were limited U.S.C. § noted job classifications. The court alent Amendment, which were Bennett those provides relief that “[t]he cognizable Equal Pay under the generally wages and females are different males the although Act. The Court held that of equal Legare University work.” to cases in Equal Pay Act was “restricted School, F.Supp. Medical Pennsylvania Title VII was volving ‘equal work omitted). (E.D.Pa.1980) (footnote 168, 101 at 2247. not so limited. Id. Dillon, F.Supp. Neale v. See also (E.D.N.Y.1982); Republic Vuyanich Thus, Equal Pay the apparent it is Dallas, Bank 505 F.Supp. National recognized Act would not have the claims of (“The dis (N.D.Tex.1980) only wage guards the female in Gunther be- prison the proscribed by crimination based sex equal their work was not admittedly cause unequal compensa Act is that of Equal Pay Accord, guards. to that of the male Ora- work.”). indi equal opinions tion for These Trustees, hood v. Board of unequal pay is a allegation cate that Cir.1981); n. 3 Pearce v. Wichita Coun- necessary element of a section 206 claim. (5th Cir.1979). The ty, 590 F.2d aspect Equal Pay that her claim of “work load Berry agrees as of a proven part claim must thus be does not fit within liter- discrimination” facie case. We conclude plaintiff’s prima argues language al of the statute proof unequal pay is also 206(d) would frustrate its restricting section case, facie and that with- plaintiff’s prima employer since it would allow an purpose out both there is no cause of action under requiring a female against discriminate Act. more work than a male for no her to do shown, pay. As greater interpreting Other cases inception from its regarded Act, although addressing particular aimed at preventing a limited measure us, question before are consistent with the men for being paid women from less than element requirement unequal pay work. It was enacted as a “first the same In prima Corning its facie case. Glass eliminating sex discrimination Brennan, step” supra, Supreme Works v. Thus, Act is employment. order to make out a Court stated “[i]n pure existence of not “frustrated” Act, [plaintiff] case under load discrimination” which employer pays show that different “work encompass.10 ‘for never meant to wages employees opposite sexes alleged suggest employ- to or understand have do not that where the do not We compensation system er’s in a establish- use of an academic or inferred that LSU’s system, piecework in fact or calculated on a time- ment based in lieu of a semester basis, work-produced worked or that the hourly wage system, itself other than or requirement pay Act’s rate of can be system any has inher- fide or that such bona by labeling system evaded as one of month- gender-discriminatory or characteristics ent ly gender-based annual so as to mask or However, compensation. discrimination in

979 B. TITLE VII THE CLAIM during remains effect pe- actionable riod, or whether there must be some actual The district court dismissed of it plaintiff to the within the Title VII claim for failure to file a timely period. Compare McKenzie v. su- Sawyer, charge with the EEOC. are unable We to pra, 684 F.2d at 72 and Williams v. Owens- entirely affirm this dismissal. A Title VII Illinois, Inc., 918, 665 F.2d (9th 924 Cir. plaintiff charge file a of discrimina cert, 1982), denied,-U.S.-, 103 S.Ct. tion with the days EEOC within 180 302, 74 (1983) L.Ed.2d 283 with Association “alleged unlawful employment practice.” Against Discrimination in Employment, Inc. 42 2000e-5(d). courts, The U.S.C. how § 256, v. City Bridgeport, (2d 647 274 F.2d ever, have frequently utilized the theory of cert, Cir.1981), denied, 988, 455 U.S. 102 a “continuing violation” in applying this 1611, 71 L.Ed.2d 847 and Acha limitation. This theory, precise con Beame, 57, v. 570 F.2d (2d Cir.1978). 65 tours and theoretical bases of which are at unclear,11 best relieves a plaintiff who The plaintiff, may not em makes such a claim from the burden of ploy continuing violation theory “to res proving that the entire violation occurred urrect claims about discrimination conclud within the actionable period. To establish past, ed in the even though its per effects continuing violation purposes for these it is sist. Delaware Ricks, State College 449 said that the plaintiff must show 250, 257, “a series U.S. 101 S.Ct. 66 L.Ed.2d acts, of related one or (1980); more which falls 431 Airlines, Evans, United Inc. v. ” within day 553, the 180 period.... 558, B. Schlei 431 U.S. 97 S.Ct. 52 Grossman, & P. Employment (1977).” Discrimination L.Ed.2d 571 McKenzie v. Sawyer, Law, (Supp.1979); 232 Olinkraft, supra, Clark v. 684 F.2d at 72. Accord Bronze cert, Inc., 1219, 1223 Shields, (5th Cir.1977), F.2d Inc. v. New Jersey Department of denied, 1069, Service, 1074, 1251, (3d Civil 667 F.2d U.S. 98 S.Ct. Cir. cert, (1978); L.Ed.2d 772 1981), denied, Scarlett v. Seaboard 1122, 458 U.S. 102 S.Ct. 3510, 73 L.Ed.2d 1384 Co., 1043, 1049 (1982); Coast Line Railroad 676 F.2d Williams v. Owens-Illinois, Inc., (5th 665 F.2d Cir.1982). supra, See McKenzie v. Saw Sears, Co., Goldman Roebuck yer, 684 F.2d & 607 F.2d (D.C.Cir.1982). cert, (1st Cir.1979), denied, Where the plaintiff has a continu- 63 L.Ed.2d 762 ing discriminatory policy, courts have dif- (1980). fered over whether the existence of the policy itself continuing constitutes a viola- theory may also be relevant to a tion, making a suit if timely the policy plaintiff’s remedy,12 for it has been stated typical recovery ing damages reasonable for that character suffered within the employment. period origi- “limitations” account acts nating period, outside the it does not tend to remedy pure is not without a for the support recovery damages entitlement alleges, “work load discrimination” which she period, appear suffered without for, nor does it below, cogniza- as discussed such claim is employed distinguish to have been between ble under Title VII. are, those violations and those that are not, “continuing.” 11. This Court has “Case law on the subject continuing aptly violations has been ” confusing’ described as ‘inconsistent and Georgia 12. This Court held in United States v. .... Vernon, Co., Dumas v. Town of Mount (5th 612 F.2d Power 1973), F.2d Cir. (5th 1980); Scarlett v. Seaboard Cir. period” applicable the “limitations to an Une R. Coast pay 180-day award of back relief was not the Cir.1982). Though period (90 days time) courts have seldom at- at that in which an EEOC tempted origins charge delve into its brought. or theoretical must be It held that Title VII underpinnings, at least one proper period court considers the was silent on the and looked to theory, aspects, or certain of analogous its to be analo- the. state statute of limitations gous concept continuing trespass to the of a length appropriate. determine what of time was Thompson Sawyer, law. below, Congress tort As noted amended Title VII in (D.C.Cir.1982) (citing period Restatement 1972 to limit back awards to a (Second) 899(d)). years of Torts filing charge While § this analo- two before the of a with gy may support concept 2000e-5(g). lend of award- 42 U.S.C. § EEOC. 980 acts are thát the latter period, indicate having shown discrimination

that “[o]nce discharge. the initial period, continuation of continuing into the actionable not a Tele- portions Potomac may Chesapeake also recover v. & plaintiffs Shehadeh illegal Co., 711, (D.C.Cir.1978); discrimi- persistent process 595 F.2d 720 phone Inc., peri- TRW, limitations that antedated the nation Division of Tarvesian v. Carr Airlines, F.2d 567 od. v. Northwest But Laffey 336, (D.Mass.1976). 340 F.Supp. 407 429, McKenzie v. Saw- (D.C.Cir.1976).” 472 Fidelity & Guar- see EEOC United States omit- (footnote 684 F.2d at 72 yer, supra, Co., 227, (D.Md.1976). F.Supp. 414 233 anty Electric ted). Accord Crawford v. Western was a to rehire failure Similarly, LSU’s Cir.1980); Co., 1300, (5th 614 F.2d of a contin- part act which was not discrete 257, 290-91 678 F.2d Thompson Sawyer, uing violation. however, (D.C.Cir.1982). recovery, Such dis- alleged that the Berry, years two period has been limited to a load, assigned criminatory work LSU charge a with the prior filing her, continuing a violation constituted Craw- 2000e-5(g). See EEOC. U.S.C. § As heretofore and of itself. Co., supra, ford v. Western Electric unequal as an may claim be construed F.2d 1309. claim, Berry as was “equal work” in the case before The district court were, they colleagues her male less than employ “alleged us held that the unlawful teaching off-campus for their being paid 1976, occurred in October practice” ment additional, being paid for her and she not contract was informed that her Berry (which prevented allegedly equal, teaching not she went would be renewed. Since off-campus teaching). performing her from 1977, a roughly the EEOC October her fi- throughout continued This situation later, timely. her was not The court claim which fell teaching, part of nal semester of se, discharge, per correctly construed with filing charge of her a days within 180 constituting continuing violation Berry To the extent EEOC.13 the time for which would have extended discrimina- alleges salary and demonstrates It act of discrimina filing. discrete for true unequal pay tion in the form of tion, relief Berry obliged to seek claim, work,” previously dis- “equal her 180-day period. from it within the statutory cussed, is covered Ricks, College Delaware State U.S. period under which the limitations extends (1980); 66 L.Ed.2d 431 1976, or, if the violation August back 6, 102 Fernandez, Chardon v. willful, which is when August (1981). 70 L.Ed.2d 6 Nor could the work employment began. U.S.C. alleged by load and discrimination judg- 255(a). summary There was no § re following decision not to LSU’s adjudication or conclusive demonstra- ment below, her, trans hire which are discussed alleged of a lack of the willfulness. tion continuing form this action into a violation. are a number of We also observe that there situation, analogous Equal Opportuni In an has in which decisions Akron Na ty Employment Commission v. viola- continuing been found to constitute a Bank, (N.D.Ohio F.Supp. tional VII, usually of Title on the rationale tion 1980) alleged initial discrimina held that an violates discriminatory paycheck that each subsequent tory assignment v. Home Insurance the Act. Jenkins failure to alleged salary discrimination and Cir.1980); (4th F.2d Hall v. Likewise, in cases where promote. opinions Ledex, Inc., Cir.1982); without the ac employee discharged Corp., ITT Financial Satz v. injured by tionable but is his former period (8th Cir.1980); v. Dillard references within 743-44 Fisher employer’s discriminatory period charge somewhat meant there was a filed her with the EEOC therefore, 12, 1977. She, allege days October than one month within the more days of that violation of Title VII within 180 work load and which she suffered date, Berry’s employ April or about salary discrimination. May ment did not end until (E.D.La. Cir.1980) (remand University, F.Supp. for 1980). of unequal salary finding But not case on existence of every continuing viola- tion). discrimination resulting presents from a Unit-

“continuing violation” situation. See Courts have not formulated a clear stan- Airlines, Evans, Inc. v. ed dard for determining alleged discrimi- 571 (1977) 52 L.Ed.2d 97 S.Ct. natory closely enough acts are related to “a having act continu- (past discriminatory continuing constitute a violation and when impact on her not for that reason ing pay” discrete, isolated, they are merely and com- However, “continuing violation”). we do a acts pleted regarded which must as indi- making any understand to be vidual Tarvesian violations. v. Carr complaints salary, of TRW, Inc., supra, F.Supp. Division such, other than have referenced those we 339-40; Williams, Nelson F.E.P. Act, unequal pay for potential (D.D.C.1981) order (“In support to a work,” Thus, in any claims. event it “equal violation, finding of a [plaintiff] continuous salary “equal for unequal is clear do a must more than show series of unrelat- claim could not have been properly work” ed and isolated instances of discrimination. regardless on grounds, dismissed limitations prove a series continuous viola- She “continuing of whether or not the viola- organized tions scheme constituting for such theory applicable, tion” is claim leading violation.”). to a present This in- actionable, potentially and not shown quiry, of on the facts necessity, turns barred, time to be under the Act. context of each case. particular Relevant Berry’s the extent Title VII claim to the To determination the following salary factors, discuss, that she three we is not suffered discrimina- which no variety, tion but means consider to be exhaustive. The first se, per subject load the alleged “work discrimination” we is matter. Do acts in- discrimination, held not to under the volve type have be actionable the same tend- Act, ing we are unable to determine to a Equal continuing connect them in viola- out continuing whether she has made a tion? The frequency. second is Are the Co., Cf. Held v. Oil a (e.g., biweekly violation. Gulf F.2d acts recurring pay- (6th Cir.1982) check) (discriminatory load or more in nature of an isolated to continuing employment held be an element work assignment or decision? court). issue, factor, found by violation This of most perhaps impor- third although tance, raised by Berry, focused is degree permanence. Does court, parties leaving permanence on or the have degree act devoid potentially important trigger record facts should an employee’s awareness of legal Thus, argument point. duty rights, on the to assert his or her also remand the whether the which should to the employee indicate load of which Berry “work discrimination” the continued of the adverse con- existence complains continuing sequences expected constituted a violation of the act is to be with- extending 180-day period.14 being into the a dependent continuing See out intent Co., Gonzalez v. Firestone & Rubber particular Tire to discriminate?15 As Assuming, deciding, (two years prior complaint). without to EEOC might present establish a case of intentional sex dis- Should that itself to situation the dis- remand, by unequal salary “equal trict crimination for court on it should also address work” yet ordinary, “continuing make out but not violation” a willful, theory salary Pay Act, “equal unequal work” violation of the so that recovery claim under Title VII. limitations would under the bar salary Act for which should have been Sears, supra, Roebuck & prior August (two years prior suit), 15. Cf. Goldman v. to to possible “continuing (discriminatory then that the violation” 607 F.2d at 1018-19 transfer theory another; department would be ultimate from one relevant refusals of requests unequal recoverable lost do not convert under sala- transfer back this to “equal ry might continuing absent work” claim in that it allow violation recovery (pursuant VII) to Title under such refusals were themselves motivated discriminatory animus). way such claim all back October her male assigned twice the work load of situations employment of individual context ever counterparts August a trial since inquiry by requires fact-specific to a reduced easily cannot be judge which Listi, supra, v. this Circuit In Lavellee feel, that considera- We formula. under section held that a cause of action generally factors will tion of the above is, plaintiff when “the 1983 accrues application and we leave their appropriate, be, injury and its should aware of both merits here, as whether trial on the as well with the acts of the defendant.” connection resolution, in the first for their required with the dis- agree F.2d at 1131. We the district court. instance to that Ber- court that this letter reveals trict THE 1983 CLAIM C. SECTION law, aware of the as a matter of was ry, January on alleged discriminatory practices a claim complaint also made Berry’s considered question, 1977. Without she 1983, which the dis based on 42 U.S.C. § to be alleged the cause of the time barred. We court held was trict her was not filed within Since suit LSU. Listi, 611 on Lavellee v. agree. Relying her cause of one after the accrual of year (5th Cir.1980), the district F.2d action, it was barred. ap prescriptive period held that court 1983 actions in Louisiana plicable to section time at oral for the first Berry asserted one was “borrowed” year. period This one-year pre- that the Louisiana argument applicable from the limitation one-year to section 1983 period applicable scriptive quasi-of “offenses and claims based on appropri- sounding in tort was actions art. in Louisiana. La.Civ.Code fenses” her action was based ate in her case because was filed on Au Berry’s suit Since Without citation on breach contract. her 4, 1978, after both gust over suits she asserted that such any authority, notice and her final ter nonreappointment ten-year governed by in Louisiana date, held that it mination the district court We decline to con- prescriptive period.16 barred. Berry failed to argument sider this since in the trial court or even in brief raise it that she rejected Berry’s argument It Singer-Friden see Melendez v. appeal, discriminatory the alleged was unaware of Cir.1976); (10th Corp., August her until practices against Asso- Masonry Contractors United States on which she learned that her the date Inc., F.2d Memphis, ciation of found was male. The court replacement Cir.1974), we thus affirm the dis- (6th “injury was aware of the her section 1983 trict court’s dismissal of by January of the action” the basis [was] claim. when she wrote a letter LSU, there was stating Chancellor of CONCLUSION College of Education history “some women,” rulings court’s and that We affirm the district against of discrimination per se is not gone “work load discrimination” “I feel the time is personally Act and women this under the you professional can treat actionable claim is time I section 1983 get away thought with it. way court, barred; to the district an end we remand rights put the whole civil movement herewith, consistent that, proceedings not at further apparently did L.S.U.” VII) (and Title claim Equal Pay Act And, being Berry’s Berry complained McCoy Tangi- any apparently Presumably, Berry be foreclosed would in event relies on School, Board, Parish our decision in Jones v. Orleans pahoa 308 So.2d Parish School Cir.1982) (on rehearing), denied, (1975), (La.App.), writ 310 So.2d 856 cert, — U.S.-, denied, princi- 103 S.Ct. for this assertion. In that case a school rejected (1983), gov- pal’s for back was held to be L.Ed.2d 1310 where claim period three-year ten-year limitation prescriptive period in erned La.Civ.Code, 3544, La.Civ.Code, in favor applies in article to all article one-year period section 1983 in a teacher’s personal provided for actions not otherwise Berry’s argument claim. the Code. We note that that she was less than her male col- work,”

leagues “equal and her Title VII Larry HALL, Plaintiff-Appellant, W. claim for the “work load discrimina- tion.” CROWN ZELLERBACH PART, AFFIRMED IN REVERSED CORPORATION, AND REMANDED IN PART. Defendant-Appellee. No. 82-3682 TUTTLE, Judge, concurring Circuit Summary Calendar. dissenting part: United Appeals, States Court of case,

I disposition concur in the of this Fifth Circuit. but I must dissent from that respectfully opinion states Sept. complaint did not state a per se violation of the Equal Pay Act. complaint alleges that Dr. Berry was

required to do twice as much work as her counterparts

male for the same amount of

pay. say, To as does the majority, that for

an employee pay a male and female

employee same and to require the female do twice as much work for

the salary pay is not to “wages employ-

ees at a rate less than the rate at which pays wages

he employees opposite

sex such establishment for equal work”

is, me, as it seems to to misread completely

not only purpose but also the language

of the statute. To require twice as much

work for a satisfy dollar cannot

requirement the statute that an employ-

er pay the same rate of equal work.

I would therefore hold that Dr. Berry’s

complaint alleged a claim under the Equal

Pay Act without the for a necessity remand

to the trial court to consider whether she

alleged a claim by stating that her extra impossible

workload made it to earn compensation

outside permitted which was

to her male counterparts. events,

In all I disposition concur in the

that made by remanding the Court in

case for further proceedings. remand, light In the of our tions which have not been addressed further ob- complaint, serve that amended filed in district court or this Court. September allega- contains class action

Case Details

Case Name: Dr. Julia Elizabeth Berry v. The Board of Supervisors of L.S.U., Etc.

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Sep 26, 1983

Citation: 715 F.2d 971

Docket Number: 82-3198

Court Abbreviation: 5th Cir.