Kay Ammons v. Zia Company, 448 F.2d 117, 10th Cir. (1971)

448 F.
2d 117
Kay AMMONS, Plaintiff-Appellant,

v.
ZIA COMPANY, Defendant-Appellee.
No. 606-70.
United States Court of Appeals, Tenth Circuit.

September 7, 1971.
Nancy Alden Bragg, Denver, Colo., for plaintiff-appellant.

Ray O. Sage, of Darden & Sage, Las-Cruces, N. M., for defendantappellee.
Before BREITENSTEIN, ALDISERT* , and BARRETT, Circuit Judges.
ALDISERT, Circuit Judge.
This appeal is from a denial of relief requested under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. 2000e et seq., which prohibits discrimination
in employment classifications and compensation on the basis of sex.
Contending that she was denied additional compensation because of her sex
and was ultimately discharged for the same reason, appellant argues that the
district court erred in its finding of fact and in its application of the statutory
provisions.
Originally hired in October 1964, as a junior clerk-steno at the Apollo Site in

Dona Ana County, New Mexico, at an $86.00 weekly salary, appellant was
later transferred to a newly-established publication section of the Zia Company
as an editor-writer, also qualified for full stenographer duties, at a salary of
$502.66 per month. At the time of her discharge she was earning $580.00
monthly. During this time there were eighteen men employed as "procedures
writer" or "technical writer"; twelve were associated with appellant in the
publication section. These employees, including appellant, worked with
engineers in the preparation of various system operational check lists and
detailed maintenance procedures. Only appellant did not receive clearance for
duties in the Apollo test area, where her male co-workers were able to enter and
discuss specifics with various engineers, and it is this exclusion from the test
area upon which appellant anchors her basic contentions of discrimination in
compensation by reason of sex.
3
Although in Shultz v. Wheaton Glass Co., 421 F.2d 259, 266 (3 Cir. 1970),
cert. denied, 398 U.S. 905, 90 S. Ct. 1696, 26 L.Ed.2d 64 (1970), the Third
Circuit interpreted the Equal Pay Act of 1963, 29 U.S.C. 206(d), it held that
the provisions of the Civil Rights Act "regarding discrimination based on sex
are in pari materia with the Equal Pay Act," that both statutes "serve the same
fundamental purpose" and that the "Equal Pay Act may not be construed in a
manner which by virtue of 703(h) would undermine the Civil Rights Act."
Therefore, the burdens of proof therein delineated have proper application in
the instant case: while one who asserts a violation of the statute has the burden
of proving that the company's wage differential is based on sex discrimination,
if a prima facie case of discrimination is established, the burden of proof falls
upon the company to prove that the differentiation is authorized by Section
2000e-2(h) of the Civil Rights Act which provides that a differential may be
authorized if permitted by the Equal Pay Act, 29 U.S.C. 206(d): "(iv) a
differential based on any other factor other than sex."
It is the contention of appellant that she established a prima facie case of

discrimination in compensation by showing that she was not permitted to
qualify for the test area, even to the extent of being denied the opportunity of
taking a physical examination. Critical to this approach, however, would have
been a further showing that test area clearance would have entitled her to higher
pay. The sole evidence supporting this inference was evidence that three male
writers in the publication section, qualified for the test site, earned more than
she. Yet, nine of the twelve male procedures writers in the publication section,
who also qualified for the test area, earned the same or less than she.1 Thus,
higher compensation appears not to have been keyed to qualifications relating
to test area clearance. There was no other evidence which directly or by
implication supported the contention that admission to the test area was a
passport to higher pay.
Additionally, it will be observed that the male writers who did earn more than
appellant bore more impressive credentials. Although appellant attended junior
college, she had earned no degree. She had last attended college in 1932 or
1933, had been unemployed for eight years and nine months before going to
work for Zia Company, and her only previous employment experience in heavy
industrial areas was in the Brooklyn Navy Yard during World War II. Although
she had held several previous editorial positions, she had no engineering
training or experience.
Of the men in the publication section earning more than she, Browning had
earned both a bachelor and master's degree in journalism; Mack held a
bachelor's degree in psychology, had two years of mechanical engineering
study, twenty graduate semester hours toward a master's degree in industrial
engineering, and extensive experience as a procedures writer and systems
engineer; and Perron had two years of college, plus a year of radio electronics
school and extensive experience in electronic and technical writing.
Moreover, to establish a case of discrimination under Title VII, one must prove
a differential in pay based on sex for performing "equal" work. "[C]ongress in
prescribing `equal' work did not require that the jobs be identical, but only that
they be substantially equal." Shultz v. Wheaton Glass Co., supra, 421 F.2d at
265. Thus, in the instant case, appellant was obliged to demonstrate that the
work performed by the three higher paid male workers was "substantially
equal" to that performed by her.
Appellant cites Browning and Mack as examples of males performing

substantially equal work. Browning, the journalism school graduate, was hired
to produce the company newspaper. Mack was responsible for systems
analysis, computer programming, and preparing data for White Sands Missile
Range. In addition, he actually designed some of the tests about which the
publication section did its writing. Appellant had no similar responsibilities.
Indeed, her non-writing duties, including typing, taking dictation, and
answering the telephone, involved less responsibilities than those expected of
the higher paid men.
Congress did not intend that a naked averment of job discrimination would
suffice to establish a prima facie case under the Equal Pay Act. It required
factual support of an accusation that the employer paid the aggrieved employee
wages "at a rate less than the rate at which he pays wages to employees of the
opposite sex in such establishment for equal work on jobs the performance of
which requires equal skill, effort, and responsibility, and which are performed
under similar working conditions." 29 U.S.C. 206(d) (1). An independent
review of the evidence persuades us that appellant failed to sustain her burden
of showing that she was paid less than others performing "substantially equal
work." It therefore does not become necessary to meet the question, reached by
the district court and decided adversely to the appellant, whether the company
would have been justified under 29 U.S.C. 206(d) (1) (iv) in establishing a
differential based on work within the vigorous environment of the test area.
10
The second prong of appellant's attack is the allegation of discriminatory

discharge. Specifically, she contends that she was fired because she constantly
complained of low pay based on her sex.

11
Methodically keeping a record of her complaints about low pay, she totalled 32
such instances. These complaints began, however, while she was still a junior
clerk-steno and persisted when she was transferred to the publication section at
a time when she was earning more money than the only other procedures
writer, a male. Between August 15, 1965 and November 15, 1966, a period
during which there was no male procedures writer paid more than she,
appellant demanded more pay on fourteen different occasions.
12
The company admits that appellant's constant complaints about being

underpaid had some bearing on its ultimate decision to discharge her. It
emphasizes, however, that this stemmed from the complaints qua complaints of
underpayment, not as complaints of underpayment by reason of her sex. In
support of this contention it points to the many complaints made before there
were higher paid male writers. Moreover, the company insists that other
reasons prompted its action. It produced evidence that appellant persisted in
violating a company rule prohibiting the bringing of personal equipment to
work; that she improperly used a government typewriter and paper for personal
correspondence; that an "average" efficiency rating resulted in dramatic
protests that she deserved the rating of "excellent" or "superior"; and that she
had been using amphetamines and barbiturates for thirty years. Finally, upon a
request for company information, represented by the co-employee to be
urgently needed for company business, received by telephone shortly after close
of office hours, appellant responded that she could not use government property
the telephone after hours. This last incident, occurring shortly after her
being criticized for the use of the government typewriter, was "the final straw."
The company said she was fired because of the accumulation of all the
incidents and not because of her sex.
13
The district court found: "Plaintiff was discharged because of a series of

incidents, not related to her sex, which were reasonable grounds for her
discharge." We will not disturb that finding.
14
The judgment of the district court is affirmed.
Notes:
*
Of the Third Circuit sitting by designation
*
*
**
***
*
***
*
**
*
**
***
*
Male Procedures
Writer
Date Highest
Salary Attained
During Period
Amount
Kay
Ammons'
Salary
Alford
Avara
Browning
Donley
Garratt
Guest
McDonald
Mack
Paris
Perron
Stambaugh
Tatowicz
August 15, 1966

September 15, 1966
March 15, 1968
May 15, 1966
August 15, 1966
August 15, 1966
Feb. 15, 1968
March 15, 1968
December 15, 1966
March 15, 1968
April 15, 1966
March 15, 1967
$476.66
502.66
684.66
528.66
502.66
528.66
554.66
736.66
520.00
689.00
528.66
520.00
$528.66
528.66
580.66
528.66
528.66
528.66
580.66
580.66
528.66
580.66
528.66
554.66
Earned less than Ammons
**
Earned more than Ammons
*** Earned Same as Ammons

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448 F.

Kay AMMONS, Plaintiff-Appellant,

United States Court of Appeals, Tenth Circuit.

Nancy Alden Bragg, Denver, Colo., for plaintiff-appellant.

Originally hired in October 1964, as a junior clerk-steno at the Apollo Site in

It is the contention of appellant that she established a prima facie case of

Appellant cites Browning and Mack as examples of males performing

The second prong of appellant's attack is the allegation of discriminatory

complained of low pay based on her sex.

The company admits that appellant's constant complaints about being

The district court found: "Plaintiff was discharged because of a series of

The judgment of the district court is affirmed.

Of the Third Circuit sitting by designation

August 15, 1966

Earned less than Ammons

Earned more than Ammons

*** Earned Same as Ammons

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