The Plaintiff Sharon K. Tidwell brought an Equal Pay Act claim, Fair Labor Standards Act, 29 U.S.C. § 206(d), combined with a cause of action under Title VII, 42 U.S.C. § 2000e, against the Defendant Fort Howard Corporation, her employer. The causes were tried in one proceeding. The jury returned a verdict for the Plaintiff on the Equal Pay Act claim (two years back рay), but held that the Defendant’s violation was “nonwillful.”
This appeal centers on the comparison or contrast between the jury verdict for Plaintiff in the EPA cause and the court’s judgment for the Defendant in the Title VII cause. Both matters were tried at the same time and the evidence is in one package.
The position of the Plaintiff is basically that the jury verdict decided both causes. The Plaintiff appeals the denial of liquidated damages and the trial court’s ruling on attorney fees. She also appeals the trial court’s judgment on the Title VII cause. The Defendant Fоrt Howard appeals from the denial of its motion for judgment n.o.v. and the denial of its alternative motion for a new trial on the EPA cause.
The Defendant Fort Howard has a paper products mill in Oklahoma where Sharon Tidwell was employed beginning in 1985 as an accounts payable clerk. She received several advances after moving into the raw materials department which was expanding. She was put in a supervisory position in 1989, and became Coordinator of that department. She succeeded a male in that position who had been paid a higher salary than Plaintiff was paid.
The predecessor had beеn transferred some four years before from a job as machine operator into the materials department. His position as Coordinator was carried as “temporary” as was the company policy when employees were moved to a different department from jobs which were higher paid into a department where the scale was lower. The Defendant’s evidence was that this was done so the employee would not have to take a pay cut and for seniority reasons was considered to be in his original department. There was another male employee in the raw materials department under similar circumstances. The “temporary" classification for her predecessor had been for some four years.
Much of the EPA evidence was, of course, directed to an element of Plaintiff’s prima facie case, that is, whether her duties and job circumstances were substantially the same as thоse of her male predecessors. Nulf
v. International Paper Co.,
*409
There is the somewhat unusual and significant element in the determination by the EPA jury. That is the finding the EPA violation was “nonwillful." Also in a related point, the trial court in the EPA cause denied liquidated damages after referring to the evidence generally and to the jury’s “nonwillful” finding.
The EPA Case
It seems necessary to repeat the several elements and the order of proof established by statute and decisions in Equal Pay Act cases and in Title VII cases. In EPA cases the plaintiff, to establish a prima facie case under
Corning Glass Works v. Brennan,
If a prima facie case is so established under the EPA the defendant must undertake the burden of persuading the jury that there existed reasons for the wage disparity which are described in the Equal Pay Act, 29 U.S.C. § 206(d)(1). These reasons are: (1) a seniority system; (2) a merit system; (3) a pay system based on quantity or quality of output; (4) a disparity based on any factor other than sex.
If the defendant fails to convince the jury with its evidencе of one or more of the “affirmative defenses” listed above the plaintiff will prevail on her prima facie case.
Title VII (42 U.S.C. § 2000e)
It may be repetitious to describe the elements of a Title VII action as they appear at length in all Title VII opinions, but we are necessarily concerned with the comparisоn of the trial requirements between Title VII and the EPA, especially the elements of the order of proof and the burdens of persuasion. These were fully described and examined by the trial court in its Findings of Fact and Conclusions of Law.
See also Skinner v. Total Petroleum, Inc.,
Thus under Title VII once the plaintiff has established a prima facie case the defendаnt must then produce some evidence, or at least as some cases indicate, articulate a nondiscriminatory reason for the disparate treatment. If this is done, the plaintiff continues or reverts to his or her basic burden to persuade the trier of fact that the defendant, regardless of the reasons аdvanced, intentionally discriminated against plaintiff.
Texas Dep’t of Community Affairs v. Burdine,
Comparisons — EPA and Title VII
The trial court, in the case before us, "concluded Plaintiff had completely failed in her Title VII proof. The court, in part, made these findings of fact:
“The only evidence presented at trial which would have the tendency to prove discriminatory conduct on the part of defendant relates to compensation paid to Bruce Smith (Smith) and Harold Willard *410 (Willard), two of defendant’s employees who temporarily performed duties associated with the raw materials department. A closer look at such evidence, however, reveals that defendant articulated lеgitimate, nondiscriminatory reasons for compensating Smith and Willard at a higher rate than plaintiff for the time they performed work in the raw materials department. Both Smith and Willard performed their duties in the raw materials department as part of temporary job assignments. Neither was actually transferred or assigned to the raw materials department on a permanent basis. Their temporary assignments resulted from a valid assessment of operations demands at defendant’s mill.
“The court concludes that defendant has articulated legitimate, nondiscriminatory reasons for the pay differential and that plaintiff has wholly failed to prеsent any evidence which indicates, much less proves, that defendant intentionally discriminated against her on the basis of her sex. This conclusion is further supported by the jury’s determination that defendant did not willfully violate the provisions of the Equal Pay Act.”
We must conclude that the evidence put on by the- Plaintiff when applied tо the Title VII claim did not meet her burden of proof. Specifically, it did not show an intentional discrimination by Defendant directly or indirectly, and no evidence was directed to this issue.
It is apparent that the same evidence was used for both claims. The Plaintiff did not put on further proof directed to the judge’s consideration of Title VII nor did the Defendant. The different procedure under the two statutes as to the burden of proof, and the different elements to be established, were, of course, applied to the same evidence.
The application by the trial court of the different requirements in the two statutes, and the decisions under each, resulted, as mentioned, in the jury verdict for Plaintiff in the EPA cause of action, and the court’s judgment for the Defendant in the Title VII cause-.
The circuits are divided on the impact of a jury verdict in a discrimination case combined with a Title VII case.
See Korte v. Diemer,
We have carefully considered our opinion in
Ammons v. Zia Co.,
The authorities must be evaluated with consideration given to which statutes have been combined in the one aсtion. The Plaintiff argues that the jury verdict in the EPA case constitutes indirect evidence of intentional discrimination. We cannot agree. In reality, there was nothing whatever to show any intentional discrimination.
There was a failure of proof by Plaintiff on her Title VII cause. We have held that even a disparate treatment finding alone is not enough under Title VII.
EEOC v. Flasher Co., Inc.,
“We see no reason why this class of case — sex-based wage discrimination— deserves special treatment under Title *411 VII as distinct from race, color, religion, or national origin cases.”
The Fallon court could also find nothing in the Bennett Amendment to reallocate burdens.
The Bennett Amendment
As mentioned, we find nothing in the sparse legislative history of the Bennett Amendment that requires the trial of sex-based pаy discrimination is to be handled differently as to basic elements from other Title VII actions. That is a different sequence of proof, different burdens and different prima facie requirements. This would be a substantial change derived from very vague language were the EPA burdens, order of proof, and elements of the cause to be carried over into Title VII. The Supreme Court in
County of Washington v. Gunther,
“We do not decide in this case the precise contours of lawsuits challenging sex discrimination in compensation under Title VII.”
It must be assumed that there was not an “incorporation” of such elements nor a modification of the intentional discrimination requirement of Title VII in sex-based wage discrimination cases. The statement by Justice O’Connor concurring in
Price Waterhouse v. Hopkins,
“It would be odd to say the least if the evidentiary rules applicable to Title VII actions were themselves dependent on the gender or the skin color of the litigants.”
The statute provides for the determination of whether the defendant acted willfully to trigger a possible extension of the statute of limitations from two years to three. It also provides a like determination as to whether liquidatеd damages should be awarded. 29 U.S.C. § 260. The latter is made expressly a matter for the trial court's discretion. The statute does not expressly provide for any other impact of willfulness or for an affirmative finding of nonwillfulness.
The jury here found, as mentioned, that Defendant’s acts were nonwillful. We see no reason why that jury determinatiоn should not apply to all aspects of the EPA case and the Title VII case. The statute does not limit its use. It is a characterization of the reality of the acts and relationship of the parties out of which the cases arose and it should not be ignored as to important issues tried.
Liquidated Damages
The Plaintiff appealed the trial court’s finding that the EPA violation was not such as to authorize the award of liquidated damages under 29 U.S.C. § 260, which are ordinarily ordered by the court. She urges the court did not make adequate findings and relied only on the jury nonwillful verdict.
See Crenshaw v. Quarles Drilling Corp.,
“The jury’s finding that Port Howard’s violation of the Equal Pay Act was non-willful shows that Fort Howard proved by a preponderance of the evidence that it did not act knowingly or with reckless disregard.”
In our view the “proof” that Defendant did not act “knowingly” is the equivalent to not intentional.
*412 Conclusion
Since there was no evidence whatever, direct or indirect, on the basic elements of Title VII, that is intentional discrimination, and since the showing here made under the EPA cause only met the very limited and modest requirement there required, we cannot compare the combination of statutory causes with those cases concerned with other mixes.
We affirm the trial court’s judgment in the Title VII cause, but there is more.
The VII Amendment of the Constitution
There is to be added a significant factor to the above consideration. This is the finding by the jury that the EPA violation by Defendant was “nonwillful.” This is, in our view, very significant оn the EPA-Title VII sorting because it raises an issue under the VII Amendment to the Constitution.
If this nonwillfulness was a jury finding on a factual element of the cases as to the relationship and acts of the parties, and we hold that it is, the trial court had no choice under the VII Amendment but to reach the same result on the intentional discrimination еlement of the Title VII action. It was an element of both cases. Whether the trial judge actually followed the jury finding or whether the judge independently reached the same determination, or both, does not matter as the result is the same. The position taken by the jury prevailed.
In
Skinner v. Total Petroleum, Inc.,
“The strictures of the Seventh Amendment are particularly applicable in a case where, due to the presence of both equitable and legal issues, trial is both tо the jury and to the court. In such a situation, when a case involves both a jury trial and a bench trial, any essential factual issues which are central to both must be first tried to the jury, so that the litigants’ Seventh Amendment jury trial rights are not foreclosed on common factual issues.”
(Citations omitted.) The essential factual issue was discriminatiоn and both contemplate a determination on whether it was intentional and whether it was willful. The opinion in Skinner also states:
“Moreover, the court is bound by the jury’s determination of factual issues common to both the legal and equitable claims. Hunter v. Allis-Chalmers Corp., Engine Div.,797 F.2d 1417 , 1421 (7th Cir.1986); Lincoln v. Board of Regents of the Univ. System of Ga.,697 F.2d 928 , 934 (11th Cir.)....”
Thus, as mentioned, the trial court was bound by the jury finding of non-willfulness made in the EPA action. Thus, whether as a VII Amendmеnt requirement or independently it was applied in the Title VII action. Again, it made no difference as the jury verdict was preserved.
We must hold that the trial court’s conclusion as to liquidated damages in the EPA action was correct. The trial court was in error in the reduction of attorney fees. There was, as we have seen, one bundle of evidence and there was substantial success for the Plaintiff.
As to attorney fees, the Plaintiff was the prevailing party. The trial court stated that “she succeeded on the significant issue of rectifying her past pay disparity.” As mentioned, there was one bundle of proof presented on the three issues. There was no way to separate the work on the core issue. Plaintiff prevailed on the basic issue in the three causes. Her attorneys were entitled to be fully compensated pursuant to
Hensley v. Eckerhart,
The case is REVERSED as to attorney fees but is otherwise AFFIRMED. IT IS SO ORDERED.