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FRANCOEUR v. CORROON & BLACK CO.

December 10, 1982

Dorothy FRANCOEUR, Plaintiff,
v.
CORROON & BLACK CO., Defendant



The opinion of the court was delivered by: SAND

SAND, District Judge.

 This controversy first came before the Court when, by order to show cause filed October 26, 1982, plaintiff sought a preliminary injunction restoring her to the position of personnel manager/office administrator with defendant ("C & B"), an insurance brokerage concern.

 On September 16, 1982 plaintiff, then in defendant's employ, filed a charge of sex discrimination with the United States Equal Employment Opportunity Commission (EEOC), alleging that her employer was violating Title VII by paying her less than her male predecessor, and by engaging in a pattern and practice of sex discrimination.

 On October 19, 1982 plaintiff was discharged from employment effective immediately, and on October 25, 1982 plaintiff filed a charge with the EEOC alleging that her termination was in retaliation for her earlier filing.

 On October 26, 1982 plaintiff filed a complaint in this Court alleging retaliation in violation of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e et seq. as amended in 1972 (Title VII), and simultaneously brought on the aforesaid order to show cause why a preliminary injunction should not issue restoring her to her position of employment with the defendants should not issue.

 A hearing on plaintiff's request for interim relief commenced on October 29, 1982 at which time the plaintiff testified.

 At the Court's suggestion and with the consent of the parties, the proceeding was adjourned until November 22, 1982 for a full trial on the merits of plaintiff's equal pay and retaliation claims. On November 4, 1982, at the request of the parties, the EEOC issued the requisite right to sue letter covering all charges.

 Plaintiff thereafter amended her complaint to allege that defendant wilfully and intentionally denied her equal pay in violation of both the Fair Labor Standards Act, 29 U.S.C. Section 206(d) ("Equal Pay Act"), and Title VII and that the defendant fired her in retaliation for asserting her civil rights in violation of Title VII.

 The case was tried by the Court on November 22-25. The following constitutes the Court's findings of facts and conclusions of law pursuant to Fed.R.Civ.Proc. 52(a). Plaintiff's testimony at the preliminary injunction hearing has been deemed part of the trial record pursuant to Fed.R.Civ.Proc. 65(a) (2).

 I. Equal Pay Claim

 A. Facts

 1. Russin's Hiring and Employment

 During the latter part of 1977 John A. Corroon, vice president of defendant, was hospitalized and away from work for approximately five weeks. During his absence senior management interviewed and hired someone to fill a newly created post designed to relieve Corroon of some of the burdens that he had previously been carrying and which were believed to have contributed to his medical problems. He testified, for example, that prior to his hospitalization he had personally attended to details of office administration as minute as reading copy machine meters.

 The individual hired during Corroon's absence withdrew from consideration upon Corroon's return, and an executive recruiter, Robert Murphy, was enlisted to find a replacement. Corroon testified that he had requested from Murphy someone with college training and experience relating to copying equipment, communications and relocation. Murphy referred Edward Russin, who was hired at the same salary as had been set for the individual who had withdrawn, $29,000 per annum.

 Russin's experience at the time he was hired by C & B included two and one half years of college. Immediately prior to his hiring by defendant he was employed by A.G. Becker & Co. ("Becker"), a brokerage concern, where he rose from the position of assistant to the assistant operations officer to that of assistant vice president. He resigned from Becker shortly after that company was acquired by a French bank.

 At Becker, Russin was heavily involved in office relocation. He testified that there was, on the average, one relocation a month and that for a period of two years he planned a relocation of 650 of Becker's employees.

 He characterized his experience in personnel matters as light, as contrasted with what he termed his heavy experience in office administration.

 He further testified that when Murphy initially communicated with him about the position at C & B, he was told that the company needed someone strong in office administration who could be trained in personnel matters.

 At a hiring interview Corroon told Russin that he would be expected over time to "get involved" with procedures relating to personnel.

 It is clear, however, that in the course of his employment at C & B Russin's involvement with personnel matters was limited and that he remained primarily concerned with office administration and equipment. Although he supervised the mail-room, switchboard and word-processing personnel, and conducted initial hiring interviews for clerical personnel, he was not involved with recruitment, hiring or supervision of employees at any higher level.

 Russin's other duties at C & B, as described by both Russin and Corroon, included the purchase of furniture, fixtures and office supplies, establishing an inventory control system, replacing the telex equipment, engaging a new telephone maintenance company, evaluating C & B's need for a word processing system and the various systems available and ultimately participating in the selection of one such system.

 Moreover, Russin made extensive use of his office relocation experience. Approximately one year after Russin's hiring, defendant's parent corporation relocated from the 15th floor of 115 William Street in Manhattan, which had been shared with the defendant until that time. Russin acted as a consultant of sorts to those employees of the parent charged with the relocation responsibility and played a role in the subsequent expansion of defendant's offices into the vacated space on the 15th floor.

 While the evidence is equivocal with respect to the extent to which Russin's relocation experience was discussed at the time of his hiring and whether defendant was aware at that time of its parent's upcoming move, it is clear that Russin did function to a significant degree in connection with the relocation of defendant and its parent.

 Although a causal relation was not made explicit at trial, we note that Russin's employment at C & B was terminated effective December 31, 1979 when the move was virtually completed.

 2. Plaintiff's Hiring and Employment

 Defendant initially intended not to hire anyone upon Russin's termination. Corroon was to take over office management and rely for support on the parent corporation to a greater extent than previously.

 In early 1980, however, defendant decided to hire an additional employee and defendant once again sought the services of Robert Murphy, the executive recruiter. Contemporaneous C & B internal memoranda regarding the position make reference to a "replacement" for Russin.

 Corroon testified, however, that it was not defendant's intention to hire someone who would perform the same duties performed by Russin, but rather an individual who would be primarily involved in personnel matters.

 In February 1980, upon referral by Murphy, Corroon interviewed plaintiff, who was ultimately hired at a salary of $23,000 per annum -- a salary within the range suggested by Murphy.

 Plaintiff's work experience immediately prior to her hiring by defendant was a five-year period of employment with American Airlines, where she started as a clerk and rose to the position of office supervisor. Her formal educational background consists of high school and personnel-related courses that she has attended from time to time.

 Like Russin, plaintiff was responsible at C & B for the supervision of back office personnel and inventory control. Plaintiff also testified, however, as to her considerable activities with respect to personnel matters. Such matters included designing and implementing attendance and punctuality programs, conducting hiring and exit interviews for all of defendant's nonexempt employees and establishing and conducting tests for all such personnel.

 Her most recent resume, prepared prior to any indication of the development of the instant dispute, strongly attests to the primarily personnel-related nature of plaintiff's position at C & B.

 The relevant portion of this resume reads as follows:

 "Manager -- Personnel/Office Administration -- Implemented uniform recruitment and hiring procedures, recruitment, testing, interviewing and hiring of all nonexempt employees. Implemented and conducted structured employee orientation programs. Designed and administered personnel policy manual. Designed and conducted training seminars for all employees. Designed and implemented personnel record system and various personnel data forms. Expanded usage of word processing system to include personnel control data forms. Processed medical claim forms for all employees. Implemented and monitored inventory control procedures for purchasing of office supplies, printed forms and equipment. Monitored functions of mail services, word processing and reception areas." Plaintiff's Exhibit 1, at 1.

 It is undisputed that throughout the term of her employment at C & B plaintiff was compensated at a lesser rate than was Russin. Their respective annual salaries are set forth in the margin. *fn1"

 B. Prima Facie Case under the EPA

 To establish a prima facie case under the Equal Pay Act, plaintiff must show that the employer "pays different wages to employees of the opposite sex 'for equal work on jobs the performance of which requires equal skill, effort and responsibility, and which are performed under similar working conditions.'" Corning Glass Works v. Brennan, 417 U.S. 188, 195, 94 S. Ct. 2223, 2228, 41 L. Ed. 2d 1 (1974), quoting Equal Pay Act Section 3, added to the Fair Labor Standards Act of 1938 Section 6, 29 U.S.C., Section 206(d) (1).

 Plaintiff need not show that the two jobs are identical. Marshall v. Building Maintenance Corp., 587 F.2d 567 (2d Cir. 1978); Odomes v. Nucare, Inc., 653 F.2d 246 (6th Cir.1981). By the same token, however, plaintiff cannot show merely that two jobs are comparable and that the wage differential between them is unjustified by the comparable worth of each job to the employer. See Hodgson v. Corning Glass, 474 F.2d 226, 231 (2d Cir.1973), affirmed 417 U.S. 188, 94 S. Ct. 2223, 41 L. Ed. 2d 1 (1974). *fn2" Plaintiff must prove a "substantial equality of skills, effort, responsibility and working conditions" between the two jobs. Odomes v. Nucare, Inc., supra, 653 F.2d at 250 (citing Shultz v. Wheaton Glass Co., 421 F.2d 259 (3d Cir.), cert. denied, 398 U.S. 905, 90 S. Ct. 1696, 26 L. Ed. 2d 64 (1970)).

 We find that plaintiff has not borne her burden of showing substantial equality between the job she performed while employed by defendant as personnel manager/office administrator from March 3, 1980 until October 19, 1982, and the job performed by Edward Russin, defendant's office manager for the period November 7, 1977 to December 31, 1979.

 In reaching this conclusion we find that despite several respects in which the services performed by plaintiff were similar to those performed by Russin and despite defendant's reference to the position that plaintiff assumed as a ...


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