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USERY v. EDWARD J. MEYER MEM. HOSP.

UNITED STATES DISTRICT COURT, WESTERN DISTRICT NEW YORK.


April 4, 1977

W. J. USERY, Jr., Secretary of Labor, United States Department of Labor, Plaintiff,
v.
EDWARD J. MEYER MEMORIAL HOSPITAL, ERIE COUNTY and Albert C. Rekate, Individually and as Acting Director of Edward J. Meyer Memorial Hospital, Defendants.

The opinion of the court was delivered by: ELFVIN

MEMORANDUM AND ORDER

ELFVIN, District Judge.

The Secretary of Labor is seeking to enforce the equal pay provisions of the Fair Labor Standards Act ("the FLSA"), as amended, 29 U.S.C. § 206(d)(1). *fn1" The complaint now alleges that Edward J. Meyer Memorial Hospital, which is owned and operated as a public general hospital by Erie County, has discriminated on the basis of sex by paying wages to female "cleaners" at a rate less than the rate paid to male "laborers" for jobs requiring equal skill, effort and responsibility and performed under similar working conditions.

 This matter is now before me on defendants' motion to dismiss for lack of subject matter jurisdiction, for failure to state a claim upon which relief can be granted and for failure to present a federal question in light of the Supreme Court's decision in National League of Cities v. Usery, 426 U.S. 833, 96 S. Ct. 2465, 49 L. Ed. 2d 245 (1976). *fn2" Therein the Court held that the minimum wage and overtime pay provisions of the FLSA constitutionally could not be applied to states or their political subdivisions, such as counties. The effect of this decision was to remove those workers employed by the states and their subdivisions from the protective umbrella of the minimum wage and overtime pay provisions of the FLSA. The various states in their sovereign capacities were thus free to structure their wage scales and to formulate their employment policies without compliance with the federal requirements that an employee be compensated at a certain minimum rate for his labor and that a premium wage scale be paid for labor performed above forty hours per workweek.

 In its opinion, the Supreme Court stated that the sovereign power of the states undoubtedly included their right to determine the wages to be paid to public servants employed to perform the states' governmental functions, the hours those employees will work and what compensation will be paid where their employees are required to work overtime. Recognizing that the economic policy chosen by Congress with respect to the minimum wage and overtime pay provisions of the FLSA operate directly to supplant the states' considered judgments as to how to structure pay scales in state employment, the Court concluded that these provisions "will impermissibly interfere with the integral governmental functions" of the states. (Id., at 851, 96 S. Ct., at 473.)

 It should be noted that the Supreme Court's opinion in National League of Cities was not intended to be a sweeping curtailment of the power that Congress could exercise pursuant to the Commerce Clause of the United States Constitution, Article I, § 8, cl. 3. The language of the opinion was carefully tailored and tightly circumscribed to hold clearly that the states did not posses the sovereign power to act with complete freedom in all areas of employment unfettered by the will of Congress as expressed in federal legislation enacted pursuant to Congress's broad power to regulate interstate commerce. The Court only decided that, insofar as the minimum wage and overtime pay provisions of the FLSA operated "to directly displace the States' freedom to structure integral operations in areas of traditional governmental functions, they are not within the authority granted Congress by Art. I, § 8, cl. 3." (Id., at 852, 96 S. Ct. at 2474.) Such wage scale and employment decisions must remain within the sovereign power of the states, the Court reasoned, to ensure their separate and independent existence within the federal system. Only the issue of the constitutionality of the minimum wage and overtime pay provisions as applied to the states was before the Supreme Court in National League of Cities and the ultimate holding there did not venture beyond that specific issue. No intimations were expressed as to the constitutional validity of other provisions of the FLSA in their application to state employees.

 That the opinion in National League of Cities was not meant as a broad expression that the Commerce Clause power could not be utilized to restrict the employment and wage policies of the states in any instance can also be gleaned from the Court's explicit approval and reaffirmation of Fry v. United States, 421 U.S. 542, 95 S. Ct. 1792, 44 L. Ed. 2d 363 (1975); Parden v. Terminal R. Co., 377 U.S. 184, 84 S. Ct. 1207, 12 L. Ed. 2d 233 (1964); California v. Taylor, 353 U.S. 553, 77 S. Ct. 1037, 1 L. Ed. 2d 1034 (1957), and United States v. California, 297 U.S. 175, 56 S. Ct. 421, 80 L. Ed. 567 (1936). *fn3" (Id., 426 U.S. at 854, fn. 18, 96 S. Ct. 2465.) Those cases upheld, on the facts and circumstances presented therein and because of the overriding federal interests in regulating interstate commerce in a national economy, federal legislation enacted pursuant to the Commerce Clause which impinged to a substantial degree upon the power of the states to adopt independent economic policies.

 Furthermore, the concurring opinion of Mr. Justice Blackmun in National League of Cities *fn4" noted that the Court's holding, in his opinion, adopted a balancing approach and did not curtail Congressional power pursuant to the Commerce Clause where the federal interest is demonstrably greater than the state's interest in exercising its sovereignty apart from federal interference and where imposition of federal standards upon the state would be essential to ensure that the federal interests are safeguarded.

 Four days after its decision in National League of Cities, the Supreme Court decided Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S. Ct. 2666, 49 L. Ed. 2d 614 (1976). *fn5" That case unanimously sustained the constitutionality of the 1972 amendments to Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e et seq., which extended the application of Title VII to state and local governmental employers. In so holding, the Court stated that Congress had adequate legislative authority pursuant to Section 5 of the Fourteenth Amendment to provide for private suits against the various states in the context of employment discrimination notwithstanding the limitations imposed by the Eleventh Amendment. In addition to holding explicitly that Congress may prohibit employment discrimination on the basis of race, color, religion, sex and national origin by the states and their governmental agencies and political subdivisions pursuant to the enforcement provisions of the Fourteenth Amendment, the ruling in Fitzpatrick seems to indicate that the federal interest in eradicating invidious discrimination in employment practices is of such significance that Congress may appropriately legislate to the fullest extent of its constitutional powers against such discrimination and need not derive such legislative authority solely from the Fourteenth Amendment. Mr. Justice Brennan, in his concurring opinion, expressed the view that Congressional authority to enact the provisions of Title VII which extended the prohibition against employment discrimination to the states can be found in both the Fourteenth Amendment and the Commerce Clause. (Id., at 458, 96 S. Ct. 2666.)

 The Third Circuit Court of Appeals recently ruled on the same constitutional issue which must be decided in the case at hand. In Usery v. Allegheny County Institution Dist., 544 F.2d 148 (1976), that court held that the equal pay provisions of the FLSA could constitutionally be applied to state and local government employers because Congress has appropriate legislative authority to apply such prohibitions to the states pursuant to its Fourteenth Amendment power to prohibit sex discrimination in employment. The opinion in National League of Cities was interpreted as holding merely that the minimum wage and overtime pay provisions of the FLSA could not be constitutionally applied to state employers as a regulation of interstate commerce pursuant to the Commerce Clause, but did not restrict Congress's power to prohibit employment discrimination based upon the enforcement provisions of the Fourteenth Amendment. It was noted that the Supreme Court in Fitzpatrick made clear that Congress has Fourteenth Amendment power to prohibit sex discrimination in employment and that such power extends to the states as employers. Although the legislative history of the equal pay provisions of the FLSA does not explicitly rely on the Fourteenth Amendment as the source of Congressional authority, it was held that, in exercising the power of judicial review, the actual power of the federal government is at issue and that a reviewing court is not limited to the source of power recited in the statute or its legislative history. The Third Circuit Court of Appeals then concluded that the equal pay provisions of the FLSA were enacted pursuant to Congress's Fourteenth Amendment powers and were not based upon its power to regulate interstate commerce granted in the Commerce Clause.

 In Usery v. Dallas Independent School Dist., 421 F. Supp. 111 (N.D.Tex.1976), it was held that the application of the equal pay provisions of the FLSA to state and local governments was a constitutional exercise of Congressional power pursuant to the Commerce Clause. The court interpreted the Supreme Court's decision in National League of Cities as being limited to the minimum wage and overtime pay provisions of the FLSA because such legislation when applied to state employers infringed upon and displaced "functions essential to separate and independent existence" and were "highly disruptive of accepted employment practices in many governmental areas." With respect to the equal pay provisions, the court held that employment discrimination on the basis of sex was not a legitimate state interest and was not a function essential to the separate and independent existence of the states. The court read the holding in National League of Cities narrowly and not as significantly altering the balance of state and federal power and concluded that Congress has sufficient power pursuant to the Commerce Clause to legislate against sex discrimination in the employment practices of the states. *fn6"

 Christensen v. State of Iowa, 417 F. Supp. 423 (N.D.Iowa 1976), held that, because discrimination based on sex could not validly be considered a "fundamental employment decision" of state or municipal governments and could not be considered an "attribute of sovereignty", Congress had ample power under the Commerce Clause to enact the equal pay provisions of the FLSA and to make them applicable to the states and their political subdivisions. Other district court decisions also have upheld the Equal Pay Act's applicability to a state's political subdivisions. See, for example, Usery v. Washoe County School District, 79 LC 47555 ([*] 33,438) (D.Nev.1976), *fn7" Usery v. Bettendorf Community School District, 423 F. Supp. 637 (S.D.Iowa 1976), and Usery v. Fort Madison Community School District, 79 LC 47506 ([*] 33,419) (S.D.Iowa 1976). *fn8"

 Respectfully, I consider Usery v. Allegheny County Institution Dist., supra, as presenting the correct analysis of what is before me for decision and as pointing to the distinction between the same and what was submitted to the Supreme Court in National League of Cities v. Usery, supra. Section 206(d)(1) draws its life and power from the Fourteenth Amendment and the Commerce Clause. In that sense and to that degree I consider the decisions in Christensen v. State of Iowa, supra, and Usery v. Morrissey, supra (in footnote 8), to be erroneous and decline to follow their reasoning (although I reach the same end result). Based on my interpretation of the Supreme Court's decisions in National League of Cities and Fitzpatrick, set forth above, and the Third Circuit Court of Appeals' holding in Allegheny County Institution Dist., I hold that Congress had the power to extend the equal pay provisions of the FLSA to the states and their political subdivisions pursuant to both the Commerce Clause and the Fourteenth Amendment.

 It is therefore hereby

 ORDERED that defendant's motion to dismiss is denied.


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