54 Fair empl.prac.cas. 1873, 45 Empl. Prac. Dec. P 37,758, 46 Empl. Prac. Dec. P 37,996
Docket: 1409
Court: Court of Appeals for the Ninth Circuit; February 7, 1988; Federal Appellate Court
Stephanie E. Forsberg, representing similarly situated female employees as "Maintenance Administrators" at Pacific Northwest Bell Telephone Company, appeals the district court's denial of class certification and summary judgment favoring the company on various sex discrimination claims under state and federal laws. Forsberg seeks both monetary and injunctive relief, with the district court having jurisdiction based on federal statutes and exercising pendent jurisdiction over a state claim. The Ninth Circuit, under jurisdiction from 28 U.S.C. § 1291, affirms the district court's decision. The case involves historical employment practices where, in 1979, the majority of Test Desk Technicians (TDTs) were male, engaged in diagnosing telephone line issues using a manual testing device. The TDT position, classified as a "craft" level role, was governed by a collective bargaining agreement negotiated by AT&T and the Communications Workers of America union, and involved intricate manual testing procedures in multiple repair service bureaus across the Northwest.
In 1980, AT&T introduced the MLT-1 computerized testing device to improve the analysis of customer complaints regarding telephone line malfunctions. During collective bargaining negotiations, AT&T and the union established the Maintenance Assistant (MA) position, classifying them as G-5 clerks while paying them at the G-8 rate. To fill MA positions, AT&T promoted clerks, primarily women, who previously handled manual record keeping. By 1982, the MLT-2 system was implemented, which retrained MAs to perform all testing functions previously managed by Technicians (TDTs), leading to the phase-out of the TDT position and the consolidation of testing facilities.
The MLT-2 system automates the complaint process; a message clerk inputs customer complaints, and the MLT-2 conducts tests and generates a report for the MA to analyze and relay to technicians. In 1983, a new collective bargaining agreement maintained the MA classification and G-8 pay rate.
Forsberg has been employed as an MA since March 7, 1983, and filed a lawsuit on November 16, 1984, on behalf of female MAs, alleging wage discrimination under Title VII, the Equal Pay Act, the Oregon Fair Employment Practices Act, the Oregon Equal Pay Act, and the Oregon Wage Claim Statute. Forsberg claimed significant pay disparities existed between the predominantly female MAs and predominantly male TDTs, despite the work being "substantially equal," seeking both monetary and injunctive relief for herself and approximately 80 other plaintiffs.
The company sought to join the union and its locals as defendants, arguing they had negotiated wage rates deemed discriminatory. The company asserted that if Forsberg and her class proved discrimination, the union might be liable and that any relief granted would impact the union contract. The district court joined the union and its locals as defendants under Federal Rule of Civil Procedure 19 to assess their potential liability and prevent the company from facing inconsistent obligations. The court declined to exercise pendent jurisdiction over Forsberg's state law claims but maintained jurisdiction over claims under the Oregon FEPA.
Later, the district judge realigned the union and locals as non-aligned parties for the limited purpose of making any relief binding on the union and avoiding inconsistent obligations for the company. Forsberg's motion for class certification was assigned to a magistrate, who recommended certifying the class for Title VII and Oregon FEPA claims but not for EPA claims. The district court ultimately denied class certification for all claims.
The company subsequently moved for summary judgment on all remaining claims, arguing: (1) Forsberg could not claim under the EPA due to the gender composition of the comparator job, (2) the MA and TDT jobs were not "substantially equal," (3) all EPA opt-in claimants outside Portland should be dismissed as the Portland maintenance center was a single establishment, (4) it opposed Forsberg's Title VII and Oregon FEPA claims for similar reasons, and (5) there was insufficient evidence of intentional discrimination.
The district court granted the company's motions on all claims, leading Forsberg to appeal, seeking reversal of the summary judgment and class certification for all claims. The appeal will assess whether the district court properly granted summary judgment on Forsberg's EPA, Title VII, and Oregon FEPA claims, with a de novo review to identify any genuine issues of material fact and examine the application of relevant law.
The Equal Pay Act (EPA) prohibits employers from discriminating based on sex by paying employees less than their counterparts of the opposite sex for equal work, defined by equal skill, effort, and responsibility under similar working conditions. Exceptions to this rule include payments based on seniority, merit, production quality or quantity, or other non-sex-based factors. Courts are instructed to interpret the EPA broadly to fulfill its remedial purpose, ensuring equal pay for equal work regardless of sex.
To establish a prima facie case under the EPA, the plaintiff must demonstrate a lack of equal pay for equal work. Jobs are considered equal if they are substantially equal, not necessarily identical. Courts must evaluate job performance and content rather than relying solely on titles or classifications, and substantial equality must be determined on a case-by-case basis. Each aspect of skill, effort, responsibility, and working conditions must be separately assessed to support an EPA claim.
In a specific case involving Forsberg, the district court found notable differences in the skill, effort, and responsibility required for two positions. Forsberg contended the court erred by not adequately analyzing the equality of the jobs based on these factors and argued that differences in equipment used by the positions should not negate a finding of substantial equality. Forsberg maintains that a proper analysis would have shown material issues of fact warranting further examination rather than summary judgment.
Forsberg argues that a genuine issue of material fact exists regarding whether the MA and TDT jobs require "substantially equal" skill, as defined by education, training, experience, and ability. She claims there is no evidence on education differences, but asserts that both positions receive extensive formal and on-the-job training. Forsberg highlights conflicting affidavits regarding experience, noting a TDT's claim of relevant craft skills versus a former TDT's assertion of their irrelevance. On ability, while acknowledging MAs cannot operate a testboard, she contends that MAs and TDTs demonstrate equal ability on more modern equipment.
In contrast, the company argues that no material fact exists regarding the skills necessary for the TDT position compared to the MA role. The company asserts that while both jobs require formal training, the nature of the training differs significantly, with TDTs possessing an average of over eight years of relevant technical craft experience deemed essential for their role. The company also points to MAs' admissions of their inability to use a testboard as evidence of differing abilities.
For Forsberg to succeed under the Equal Pay Act (EPA), a material issue of fact regarding the equality of skills required for both jobs must be identified. The Department of Labor's guidelines suggest considering education, training, experience, and ability to assess job equality. The court emphasizes that jobs requiring different skills are not considered substantially equal, and even if Forsberg raises a material issue concerning one skill subfactor, summary judgment may still be appropriate if other factors clearly indicate no material fact issue exists. The focus should ultimately be on the relationship between job content and requisite skills.
The Third Circuit's analysis in Angelo established that job functions may appear similar but require different skill sets, which is critical in evaluating Equal Pay Act (EPA) claims. In the case, Bench Assemblers claimed their work was substantially equal to that of Heavy Assemblers, despite performing similar tasks such as cutting and soldering. The court found no evidence that the skill levels required for these tasks were equal, leading to the affirmation of a directed verdict.
The current case similarly involves two job classifications—TDTs and MAs—that, while performing the same function of identifying malfunctions in telephone lines, necessitate qualitatively different skills. TDTs engage in complex problem-solving and manual testing, while MAs rely on automated systems for diagnosing issues with minimal analytical input. The development of MLT-2 shifted significant analytical responsibilities from humans to computers, further distinguishing the roles.
Consequently, since the skills required for TDTs and MAs are not substantially equal, there is no need to evaluate other factors such as effort, responsibility, or working conditions. The court also decided not to consider arguments regarding the absence of pay discrimination among MAs or the classification of the Portland Maintenance Center as a single establishment under the EPA. Additionally, Forsberg's claim that the use of different equipment between MAs and TDTs constituted a basis for equality was rejected, referencing relevant regulations and case law.
29 C.F.R. Sec. 800.123 stipulates that performing jobs on different machines does not automatically indicate unequal work under the Equal Pay Act (EPA), provided that the equal pay provisions apply. If the skill or effort required for operating the machines is negligible, paying one sex a higher wage due to machine differences is a prohibited wage differential. In the case Thompson, the D.C. Circuit ruled that jobs in a book bindery were "substantially equal" despite being performed on different machines, explicitly rejecting the notion that machine differences preclude a determination of substantial equality.
However, the court's analysis in Thompson involved a detailed examination of the skills necessary for operating the relevant machines. For example, the operator of the Smyth sewing machine had to make numerous adjustments and perform routine maintenance tasks, requiring significant dexterity and skill. The court upheld the district court's reliance on expert testimony that the skills, effort, and working conditions for operating the Smyth and bookbinder machines were substantially equal, affirming an EPA violation.
In contrast, Forsberg's case lacks the same depth of inquiry. The court noted that operating the oversewer machine was less complex than operating the Smyth, leading to a conclusion that the Government Printing Office did not violate the EPA by paying oversewers less than bindery workers. Similarly, Forsberg's role, involving simple keystrokes on a computer, is deemed to require far less skill and analytical ability than operating the testboard, which involves diagnosing telephone line malfunctions. Thus, the comparison fails to establish substantial equality.
Forsberg contends that her expert witness should have been allowed to testify that the Medical Assistant (MA) and Telecommunication Device Trainer (TDT) positions are substantially equal under the Equal Pay Act (EPA), despite the differing skills required. The company argues that the expert's affidavit was not included in the summary judgment record, thus it should not be considered. Additionally, the company claims the affidavit is irrelevant as it relies on job descriptions rather than actual job performance, failing to meet the EPA's criteria. Forsberg did not present the affidavit in her opposition to the summary judgment, which was only considered by the district judge in relation to class certification. Consequently, Forsberg cannot criticize the district judge for not considering it for summary judgment.
Forsberg's Title VII claim is based on two theories. First, she alleges unequal pay for equal work, which the district court rejected, noting that Title VII claims must meet the same substantial equality standard as EPA claims. As Forsberg's EPA claim could not withstand summary judgment, her Title VII equal pay claim similarly fails.
In her second theory, Forsberg asserts a material factual dispute regarding "intentional discrimination" under Title VII, which is broader than under the EPA. She relies on a 1973 consent decree, the company's discriminatory history, evidence presented to Judge Frye, and past EEOC claims about discrimination in the telephone industry. However, this evidence was neither offered nor accepted in court. The district court dismissed her claims, determining they were based on conclusory allegations. It is implied that Forsberg's Title VII claim is grounded in a disparate treatment theory, which requires demonstrating that the employer's policy was intentionally discriminatory, rather than merely having adverse effects on a protected class.
Direct proof of discrimination is often elusive; however, courts can infer discriminatory intent through circumstantial and statistical evidence, though the latter should be approached with caution. For a case to proceed, there must be a material issue of fact regarding the alleged discriminatory intent of the company. In this instance, Forsberg's claims regarding AT&T's intent to discriminate against female MAs during the implementation of the MLT system are not supported by evidence from the 1980 and 1983 collective bargaining negotiations, which indicate that decisions were based on job content rather than discrimination. Forsberg fails to present any substantive evidence that raises a material issue of fact, such as the expired 1973 consent decree or general allegations of AT&T's discriminatory history. The court also dismisses Forsberg's reliance on an EEOC brief not entered into evidence. Additionally, while courts should be cautious with summary judgments involving intent, purely conclusory allegations without supporting details do not prevent summary judgment. Forsberg further contends that the district court erred in granting summary judgment on her Oregon FEPA claim, arguing that Oregon's standards for discrimination are less stringent than those under federal law. She claims reversible error occurred when the district judge applied the same reasoning for both her federal and state claims.
Oregon has adopted the Supreme Court's interpretation for establishing a prima facie case of sex discrimination under the Oregon Fair Employment Practices Act (FEPA), as established in Henderson v. Jantzen, Inc., which cites the standards from Texas Department of Community Affairs v. Burdine and McDonnell Douglas Corp. v. Green. The court found that there is no indication of a "less restrictive" standard under Oregon law. The district court's summary judgment on Forsberg's Title VII claim was properly extended to her Oregon FEPA claim.
Forsberg's objections regarding the denial of class certification for female Medical Assistants (MAs) and the court's failure to notify other MAs of their potential to join the lawsuit are rendered moot by the affirmation of summary judgment on all her claims. Additionally, Forsberg's arguments about the district court's failure to allow discovery regarding the company’s job evaluation plan and salaried positions are also moot, as any potential evidence would not have changed the outcome regarding discrimination.
The company’s request for the district court to realign the union and its locals as nonaligned parties also became moot following the affirmation of summary judgment. Forsberg contends that the district court erred in not asserting pendent jurisdiction over her claims under the Oregon Equal Pay Act and Oregon Wage Claim Statute, as these issues are better suited for state court. The district court did assert pendent jurisdiction over her Oregon FEPA claim, but not the other two, highlighting that the doctrine of pendent jurisdiction is discretionary rather than an absolute right of the plaintiff.
The district court's decision to decline pendent jurisdiction over state law claims was reviewed for abuse of discretion. Summary judgment on federal claims did not eliminate the court's authority to hear related state claims. In exercising discretion regarding pendent jurisdiction, the district court should weigh factors identified in Gibbs, while also considering other relevant aspects, such as the novelty and complexity of state law questions. The district court opted not to assert pendent jurisdiction over Forsberg's claims under the Oregon Equal Pay Act and the Oregon Wage Claim Statute, citing the lack of significant interpretation of the Act by Oregon courts and uncertainty regarding legislative intent on issues like damages and jury rights. Forsberg argued that prior Oregon cases provided sufficient guidance, but the court found these cases did not clarify the scope of damages under the Act. Similarly, unresolved questions regarding private rights of action under the Wage Claim Statute further supported the district court's decision. Hence, the conclusion was that the district judge acted within her discretion in refusing pendent jurisdiction. Additionally, the company claimed an error by the district court for not awarding attorneys' fees.
The company requested a total of $305,493.74 in fees and expenses, including $261,734 in attorneys' fees, $9,670.85 in litigation expenses, and $34,088.89 in consultants' fees from Forsberg, other opt-in plaintiffs, and union Local 9201, citing entitlement under 42 U.S.C. § 2000e-5(k), Or. Rev. Stat. § 659.121(1), and as sanctions under Fed. R. Civ. P. 11. The court reviews refusals to award costs under these authorities for an abuse of discretion. To recover expenses, a prevailing defendant must demonstrate that the plaintiff's action was frivolous, unreasonable, or lacking foundation, even without bad faith. The district court denied the company's request, despite granting summary judgment on all claims, concluding that the case involved complex issues that were not without merit. The denial of attorneys' fees and expenses was affirmed, with the court finding no abuse of discretion.
In dissent, Circuit Judge Pregerson contested the majority's affirmation of the summary judgment regarding Forsberg's claim under the federal Equal Pay Act (EPA), arguing that Forsberg presented genuine issues of fact regarding whether the Maintenance Administrators (MAs), predominantly women, were paid less than the predominantly male Test Desk Technicians (TDTs) despite performing substantially equal work. The dissent emphasized that the majority focused only on one of the four criteria for determining substantial equality between the two positions, specifically the skill requirement.
The majority concluded that the MA job lacks skills substantially equal to those of the TDT job, primarily citing the MA's inability to operate the TDT testboard. However, the assertion that differing equipment usage equates to unequal skill contradicts EPA regulations, specifically 29 C.F.R. Sec. 800.123, which states that job performance on different machines does not inherently indicate unequal work. This reasoning could lead to illogical outcomes, illustrated by a comparison to bus drivers who operate different transmission types. Defendants argue the TDT and MA positions require distinct skills, but the court's role is not to arbitrate these perspectives. On summary judgment, the plaintiff successfully presented evidence suggesting substantial skill equality exists, including affidavits from various sources. The majority's own discussion highlights the analytical skills both jobs require, further indicating that the claim of differing skills is disputed. The majority's determination of skill disparity was inappropriate for summary judgment, and the factual resolution should be left to the trier of fact. Additionally, the majority did not address the other factors—effort, responsibility, and working conditions—critical for determining substantial equality, yet the plaintiff raised genuine issues regarding these as well.
Plaintiff provided affidavits disputing the defendant's claim that Medical Assistants (MAs) exert less effort and conduct fewer tests than Telecommunication Device Technicians (TDTs). Testimony indicated that MAs are responsible for analyzing, diagnosing, and resolving telephone issues based on machine-generated reports, similar to TDTs. The defendant, PNB, did not contest the equivalence of working conditions for both roles. Forsberg identified genuine factual disputes regarding the criteria necessary under the Equal Pay Act (EPA) to demonstrate "substantial equality" of jobs.
Oregon Revised Statute (Or.Rev.Stat.) Sec. 659.030(1)(a) prohibits employers from discriminating against individuals based on sex in hiring or employment practices unless due to a bona fide occupational requirement. Or.Rev.Stat. Sec. 652.220(1) mandates equal pay for work of comparable skill and character between sexes, with exceptions for seniority or merit systems and non-sex-based wage differentials.
Additionally, Or.Rev.Stat. Sec. 652.355 prohibits discrimination against employees for making wage claims or participating in related proceedings, entitling affected employees to damages or $200, alongside potential attorney fees. Under 42 U.S.C. Sec. 2000e-5(k), courts may award reasonable attorney fees to the prevailing party in discrimination cases. Lastly, Or.Rev.Stat. Sec. 659.121(1) allows individuals claiming unlawful employment practices to file civil suits for injunctive relief and other equitable remedies, including reinstatement or back pay.
Back pay liability is limited to a maximum of two years prior to the complaint filing date with the Commissioner of the Bureau of Labor and Industries, or, if no complaint is filed, two years prior to the civil suit. In lawsuits under this provision, the prevailing party may be awarded costs and reasonable attorney fees for both trial and appeal. The court majority did not consider Dr. Rollins' affidavit because Forsberg did not specifically reference it in her opposition to the defendant's summary judgment motion, even though it was submitted during the class certification phase. Forsberg had claimed reliance on all factual submissions before the court, including deposition testimony and other affidavits. The majority’s decision to disregard the affidavit is viewed as an error; however, even without it, Forsberg has demonstrated a genuine issue of fact regarding the substantial equality of skills between TDTs and MAs based on other evidence.
