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Marshall v. Building Maintenance Corp.

decided: November 13, 1978.

RAY MARSHALL, SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR, APPELLANT,
v.
BUILDING MAINTENANCE CORPORATION, APPELLEE.



The Secretary of Labor appeals from a judgment of the United States District Court for the District of Connecticut, M. Joseph Blumenfeld, Judge, finding that the virtually all-female "light duty" cleaners employed by defendant were not doing work substantially equal in effort, skill, responsibility, or working conditions with that of the higher paid predominantly male "heavy duty" cleaners, and hence that defendant had not violated the Equal Pay Act, 29 U.S.C. § 206(d)(1). Held, the trial judge did not apply an incorrect standard of equal work, and there is sufficient evidence to support the trial judge's finding of inequality in work. Affirmed.

Before Lumbard and Oakes, Circuit Judges, and MacMAHON, District Judge.*fn*

Author: Per Curiam

The Secretary of Labor appeals from a judgment of the United States District Court for the District of Connecticut, M. Joseph Blumenfeld, Judge, which held that defendant, Building Maintenance Corporation ("BMC"), did not violate the Equal Pay Act of 1963, 29 U.S.C. § 206(d)(1).*fn1 The district court found that the virtually all-female "light duty" cleaners employed by defendant were not doing work which was equal in effort, skill, responsibility, or working conditions to the work of the predominantly male "heavy duty" cleaners employed by defendant at a higher wage. The Secretary contends that the trial judge applied an incorrect standard of "equal work," or that if the trial judge did apply the correct standard, the evidence does not support his finding that the work of the two groups was not equal. We find that the trial judge did not use an incorrect standard of "equal work," and that there is sufficient evidence to uphold his finding of inequality of work. Thus we affirm substantially on the memorandum of decision of the district court.

BMC provides day-to-day cleaning and maintenance services for commercial buildings in and around Hartford, Connecticut. It has two classes of employees engaged in maintenance: heavy duty cleaners and light duty cleaners, the former paid at a higher hourly rate. At trial, June, 1977, fewer than 70 of the approximately 350 heavy duty cleaners were women, and only one of the nearly 400 light duty cleaners was a man. All light duty cleaners perform the same tasks: dusting furniture, emptying ashtrays and wastebaskets, spot dusting and cleaning walls and floors, some damp mopping and vacuuming, cleaning lavatories, and replacing bathroom supplies. The jobs of heavy duty cleaners are more varied. Some strip, wax and buff floors. Some only remove heavy trash. Some have more general duties using equipment not used by the light cleaners such as heavier vacuums, 400-pound mopping tanks, ladders and scaffolding, and large carts carrying 50-gallon drums of cleaning material and boxes of other supplies to be distributed throughout the building.

The Secretary may carry his burden of proof under the Equal Pay Act by showing that the skill, effort, responsibility, and working conditions of the two different types of jobs are "substantially equal." Usery v. Columbia University, 568 F.2d 953, 958 (2d Cir. 1977); Hodgson v. Corning Glass Works, 474 F.2d 226, 234 (2d Cir. 1973), Aff'd, 417 U.S. 188, 94 S. Ct. 2223, 41 L. Ed. 2d 1 (1974). Additional or different tasks assigned to male employees which require more effort than tasks done in common will justify a pay differential only if the additional tasks consume a significant amount of all of the male employees' time. Usery v. Columbia University, supra, 568 F.2d at 959, 961; Hodgson v. Behrens Drug Co., 475 F.2d 1041, 1049 (5th Cir.), Cert. denied, 414 U.S. 822, 94 S. Ct. 121, 38 L. Ed. 2d 55 (1973); Hodgson v. Brookhaven General Hospital, 436 F.2d 719, 725 (5th Cir. 1970).

The Secretary contends that the trial judge, in his findings of fact, compared the light duty cleaners with those specialized heavy duty cleaners whose jobs require the most effort instead of with those heavy duty cleaners whose jobs required the least effort and whose jobs are the most similar to the jobs of light duty cleaners. As we read Judge Blumenfeld's memorandum of decision, however, we find that in considering equality of effort he compared the tasks of a light duty cleaner with the distinguishing duties of those heavy duty cleaners who are least specialized.*fn2 Therefore, we cannot agree with the Secretary on this issue.

The Secretary also contends that the evidence, if weighed under the correct standard, is not sufficient to support the trial judge's finding of inequality of work. The Secretary, relying upon "the frequently cited rule . . . that additional tasks must "consume a significant amount of the time of All those whose pay differentials are to be justified in terms of them,' " Usery v. Columbia University, supra, 568 F.2d at 961, Citing Hodgson v. Brookhaven General Hospital, supra, 436 F.2d at 725,*fn3 alleges that certain heavy duty cleaners do not spend a significant amount of time doing tasks not done by light duty cleaners. The Secretary advances the testimony of eight heavy duty cleaners and twenty-six of BMC's own job descriptions to support his position. For the reasons below we do not agree with the Secretary that the trial judge's finding of inequality of work is clearly erroneous.

The job descriptions advanced by the Secretary are not persuasive. BMC denies that the job descriptions have any probative value, citing the Secretary's own regulations to this effect: "application of the equal pay standard is not dependent on job classifications or titles but depends rather on actual job requirements and performance." 29 C.F.R. § 800.121. See also Brennan v. Victoria Bank & Trust Co., 493 F.2d 896, 899 (5th Cir. 1974) ("the controlling factor in equal pay allocations has to be Job content, not the job description prepared by the employer") (emphasis in original). We cannot agree with BMC; in a case where the job descriptions are introduced against the employer who made them, and the employer has adequate opportunity to introduce evidence that the job descriptions are inaccurate, job descriptions can be probative of job content.*fn4 In this case, however, the Secretary must show not only that the heavy duty cleaners share many tasks with light duty cleaners, which the job descriptions do show, but that the additional tasks performed by the heavy duty cleaners do not consume a substantial amount of their time. As the job descriptions fail to state how much time is spent on each activity listed, and each job description includes several tasks not performed by light duty cleaners, the trial judge could legitimately find that the Secretary had failed to prove that the jobs described were "substantially equal" to the job of a light duty cleaner.

The Secretary also relies upon the testimony of eight heavy duty cleaners. Each of the eight testified to performing general cleaning duties similar to those performed by light duty cleaners with a few additional duties not performed by light duty cleaners. We believe that the trial judge could have found solid justification in the testimony of two of the heavy duty cleaners that they spent a substantial amount of time performing additional duties.*fn5 It is more difficult, however, to find that the other six heavy duty cleaners spent a substantial amount of time at the additional tasks. Three clearly spent only a trivial amount of time doing additional tasks;*fn6 the remaining three spent two or three hours a week on additional tasks,*fn7 which arguably would not be a "significant" amount of time spent on additional tasks under some prior cases.*fn8

We must therefore consider whether the "frequently cited" rule that the additional tasks must consume a significant amount of the time of All of the higher paid male employees is to be strictly interpreted to require the finding of a violation no matter how large the total number of employees involved and how small the number of higher paid employees performing substantially equal work. We specifically reserved this question in Usery v. Columbia University, supra, 568 F.2d at 961, discussed in note 3, Supra. We hold that this rule is to be applied with a measure of reasonableness and not with absolute strictness.*fn9

In this case, three heavy duty cleaners clearly did work "substantially equal" to that of light duty cleaners. But during the seven-year period at issue, except for a period of a few months, only one of them was doing "substantially equal" work at any one time.*fn10 Of the other three heavy duty cleaners who performed arguably "substantially equal" work, at most two were working at any one time.*fn11 Thus, in a company with 350 heavy duty cleaners and 400 light duty cleaners working at many different buildings, no more than three heavy duty cleaners less than 1% Of the total at any one time performed work substantially equal to that of the light duty cleaners. It should also be noted that, in conformity with the various buildings that BMC cleaned, many of the heavy duty cleaners, and each of the suspect cleaners, had jobs tailored to the facility. In such a situation, where the jobs create a spectrum of degrees of difficulty, any line drawn between classes of workers will leave a very few workers on one side of the line with jobs slightly more difficult than, but "substantially equal" to, jobs on the other side of the line. Considering the large number of light and heavy duty cleaners, the much greater effort some heavy duty cleaners expend than light duty cleaners, and the impossibility of drawing a line between the two groups such that no heavy duty cleaners perform work substantially equal to that of any light duty cleaners, we conclude that the rule that additional tasks must consume a significant amount of the time of All the higher paid employees need not be so rigidly applied in this situation. The maxim, de minimis non curat lex, still has meaning.

Accordingly, we uphold the determination of the trial judge that BMC's heavy duty cleaners do not perform work which is equal to the work of light duty cleaners within the meaning of the Equal Pay Act.

Affirme ...


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