Appeal from the United States District Court for the Western District of Pennsylvania (Pittsburgh) (D.C. Civil No. 82-2283)
Before: GIBBONS, Chief Judge, MANSMANN, Circuit Judge, and KATZ, District Judge.*fn*
This matter comes before us on appeal from a judgment upon a verdict in favor of the defendant, Columbus Services International ("CSI"), in the plaintiffs' action under the Equal Pay Act of 1963, See 29 U.S.C. § 201 note (1982); 29 U.S.C. § 206(d) (1982).*fn1 We possess jurisdiction pursuant to 28 U.S.C. § 1291 (1982). We find that the district court adequately charged the jury that the plaintiffs bore the burden of proving that CSI had discriminated against them on the basis of sex. Moreover, evidence regarding the gender of, and wages paid to, the plaintiffs and the allegedly preferred CSI employees reached the jury in the form of payroll records. Thus, the trial judge's error in twice excluding testimony concerning the sex of CSI's employees was harmless. We will, therefore, affirm the district court's judgment.
The plaintiffs are present or former maintenance employees of Cedar Crest College ("Cedar Crest" or "the college") in Allentown, Pennsylvania. Before July 3, 1977, the college classified the workers as either "laborers" or "custodians." The laborers were all male and earned forty cents per hour more than the custodians who were, all but one, female. Cedar Crest paid this premium to the laborers averredly since they maintained the college grounds and so had chores relatively heavier than the custodians' tasks. The laborers also occasionally had to operate floor buffers, rug shampooers, and similar power equipment indoors. The custodians, on the other hand, cleaned rest rooms, vacuumed and dusted, and emptied trash. However, a custodian would receive the $.40 per hour premium whenever he had to perform "laborers' work."
On July 3, 1977, CSI took over the maintenance work at Cedar Crest. CSI then reclassified all of the employees as "custodians" and compensated them at the lower, custodian scale without altering their duties. Four employees filed grievances. An arbitrator thereupon ordered CSI to pay the premium to custodians while they did laborers' work. CSI refused on the ground that a consent decree in an unrelated Equal Pay Act case barred CSI from paying different wages for substantially equal work. CSI then petitioned the Department of Labor ("DOL") to approve CSI's position, but DOL opined that CSI should have to compensate all of its custodians at the higher, laborer rate.
The plaintiffs, in turn, sued CSI, alleging violations of the Equal Pay Act and of the consent decree.*fn2 The district court, on CSI's motions in limine and for summary judgment, found no breach of the consent decree by CSI, concluded that the custodian and laborer jobs in no way constituted "equal work" for Equal Pay Act purposes, and granted summary judgment for CSI since the plaintiffs supposedly failed to establish a prima facie case that "CSI equalized male and female wage rates at a lower 'female' rate." Brobst v. Columbus Services Int'l, 582 F. Supp. 830, 834 (W.D. Pa. 1984).
On appeal, we vacated and remanded. Brobst v. Columbus Services Int'l, 761 F.2d 148 (3d Cir. 1985). We determined that the district court erroneously decided the motion in limine on different grounds than CSI asserted, effectively transformed the motion into one for summary judgment and, thereby, precluded the plaintiffs from marshalling evidence to show a genuine issue of material fact on the "equal work" question. Id. at 154. We further held that the district court improperly made factual findings instead of accepting CSI's proffered theory on CSI's motion for summary judgment. Id. at 157-58.
At trial, the plaintiffs introduced evidence that, inter alia, the custodian and laborer work required equal skill, effort, and responsibility and offered similar working conditions. When the plaintiffs sought to prove that the laborers were all males, however, the trial judge sustained the defendant's relevancy objection.
MR. ORLOSKI [for the plaintiffs]: The people the Judge has just been talking about [the laborers], are those people paid the same rate as the custodians?
MR. SNYDER [plaintiff]: No. sir.
MR. ORLOSKI: The people that the Judge was just talking about, what is their sex?
MR. SNYDER: They are all males.
MR. PUSKAR [for the defendant]: Your Honor, I am going to ask that be stricken. This is not a civil rights case. It doesn't matter what sex they are. It has no relevancy to this cause of action, this lawsuit at all.
THE COURT: We will sustain the objection and strike the last question and answer and ask the jury to disregard it.
Subsequently, a similar exchange occurred.
MR. ORLOSKI: The laborers are practically all now male and have always been all male?
MS. MIDDLECAMP-WAITKUS [plaintiff]: Yes. That's correct.
MR. PUSKAR: Same objection, Your Honor.
THE COURT: All right. We, of course, sustain the objection. Any other questions of ...