9730278, Antonelli - Decision

Commission on Human Rights and Opportunities ex rel.
Nancy Gyurko, : CHRO Case Nos. 9730281
Debra Remillard, : 9730280
Lisa Bambikidou, and : 9730279
Charlene R. Antonelli, Complainants : 9730278
v.
City of Torrington, Respondent : January 26, 2000

FINAL DECISION

I. Names and Addresses of the Parties:

Complainants:

Commission:

Respondent:

1. Procedural Background

:

Ms. Nancy Gyurko, Ms. Debra Remillard, Ms. Charlene R. Antonelli and Ms. Lisa Bambikidou (hereinafter "Complainants") are or were management employees employed by the City of Torrington (hereinafter "Respondent").

Complainants filed individual complaints with the Commission on Human Rights and Opportunities alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 e 2(h), the Equal Pay Act, 29 U.S.C. § 206 (d)(1) and General Statutes § 46(a)-60(a)(1) because the Respondent failed to compensate them the same as certain male employees because of their gender (female). The complaints were investigated and a finding of reasonable cause was made by the Commission. After the failure of conciliation efforts, the complaints were certified to the Office of Public Hearings on September 18, 1997. Upon certification of the complaint, John F. Daly, III, was appointed as presiding officer. Later, David M. Spinner was appointed presiding officer after John Daly, III voluntarily excused himself. A motion to consolidate the four cases was granted on January 21, 1999. On March 21, 1999, the undersigned human rights referee was substituted as presiding officer. The public hearing was held on May 17, 18, and 19, 1999.

2. Findings of Fact
:

From the testimony and the evidence presented at the public hearing the, undersigned, human rights referee finds the following facts relevant to the present decision:

1. All statutory and procedural prerequisites to the public hearing have been satisfied and this matter is properly before the undersigned presiding human rights referee. Record Exhibits 1-38.
2. All Complainants are of the female gender. Record Exhibits 1-38.
3. The Respondent is a municipality located in the State of Connecticut and employs a workforce of managers and employees. Respondent’s Brief, P3.
4. All Complainants are managerial employees of the Respondent. Tr 38.
5. Local 818, Council 4, AFSCME, was formed in 1992 and is the collective bargaining agent of the Complainants and other management-level employees. Tr 163.
6. All of the Complainants, with the exception of Charlene R. Antonelli, joined Local 818 in 1995. Charlene R. Antonelli changed from part-time to full-time status and joined the union on November 5, 1996. Tr 38, 39, 189, 190, 219, 354, 355.
7. Prior to being represented by Local 818, Complainants, like other management employees who work for the Respondent, were covered by a Management Resolution which set the terms of their salaries, benefits and other working conditions. Management Resolutions were voted on by the Respondent’s City Council. Tr 477-478.
8. The first collective bargaining agreement between Local 818 and the Respondent was effective July 1, 1993 through June 30, 1995. Joint Exhibit 2.
9. Complainants’ salaries, with the exception of Charlene R. Antonelli, who was then part-time and not a member of Local 818, were incorporated into the 1993-1995 contract between Local 818 and the Respondent. Joint Exhibit 2 Article XIV.
10. The Respondent employs nineteen managerial employees. Joint Exhibit 15.
11. Complainants were members of Local 818 at the time they filed their complaints with the Commission on Human Rights and Opportunities. Record Exhibits 1, 9, 17 and 25.
12. The salaries of Ms. Lisa Bambikidou, Ms. Debra Remillard and Ms. Nancy Gyurko, were formerly set by Management Resolution. Their salaries were incorporated into the 1993-1995 collective bargaining agreement between Local 818 and Respondent. Tr 478.
13. Article XIV, Section 14.1 of the 1993-1995 collective bargaining agreement between Local 818 and Respondent required the Respondent to "evaluate positions". Joint Exhibit 2, Article XIV.
14. The results of the "evaluation" would be the basis for further negotiations between Local 818 and the Respondent. Joint Exhibit 2, Article XIV.
15. The Respondent hired Mr. William W. Swords, of Personal Management Associates, to perform an evaluation of all union and non-union management positions. Tr 430-431. Joint Exhibit 15.
16. Mr. William Swords distributed questionnaires to all employees whose positions were being evaluated. Tr 430-431. Joint Exhibit 15.
17. Employees sent the completed questionnaires to Mr. William Swords along with an updated job description. Tr 43-50, 191-194, 222-223.
18. All employees, including Complainants, met to discuss the points, position levels and job descriptions assigned to their position with Mr. William Swords and Mr. Thomas Gritt, Personnel Director. Tr 43-50, 191-194, 222-223.
19. After gathering information, conducting interviews, evaluating each management position both initially and recalculating in instances where his results were challenged, Mr. William Swords presented the completed Job Study to the Respondent during November of 1994. Tr 47-50. Joint Exhibit 15.
20. The Job Study established points and position levels for each position evaluated. Joint Exhibit 15.
21. The Job Study was the subject of the negotiations between Local 818 and Respondent. Tr 150, 276, 434.
22. When the negotiations between Local 818 and Respondent reached an impasse in March of 1996, the parties entered into mediation. Tr 159, 283. Joint Exhibit 23.
23. When mediation efforts were unsuccessful, Local 818 and Respondent submitted the disputed issues from the 1995-1998 collective bargaining agreement to binding arbitration in July of 1996. Tr 159, 173, 284. Joint Exhibit 22 page 1.
24. General wage increases, wage equity adjustments, the Job Study, and other issues, were placed before the arbitration panel. Joint Exhibits 16, 22, 23.
25. The decision of the arbitration panel, dated December 5, 1997, awarded a 2.5% general wage increase to all members of Local 818 for each year of the 1995-1998 contract. Joint Exhibit 16 pages 78-87.
26. The arbitration panel decision, dated December 5, 1997, also awarded wage equity adjustments to 14 people in Local 818, including Complainants, each in differing amounts, retroactively to July 1, 1996. Joint Exhibit 16 pages 88-98.
27. After the expiration of the 1995-1998 collective bargaining agreement, Local 818 and the Respondent entered into negotiations for a successor contract. Tr 453.
28. Local 818 and Respondent reached an agreement in August of 1999 awarding each member of Local 818, including Complainants, 3% per annum increase for each year of the 3-year contract, July 1, 1998-June 30, 2001. Joint Evidentiary Stipulation– Post Hearing, dated September 29, 1999.
29. There are currently twenty-eight (28) management positions in the City of Torrington. Nineteen (19) positions are represented by Local 818. Seven (7) positions are held by females; seventeen (17) are held by males; and, four (4) positions are vacant.

Findings of Fact with Respect to Ms. Nancy Gyurko.

30. Ms. Nancy Gyurko was hired by the Respondent in 1976, as an Outreach Worker for the Elderly Nutrition Program. Record Exhibit 25.
31. Ms. Nancy Gyurko was promoted to Director of Elderly Services in 1985. She currently holds the same position. Tr 36. Record Exhibit 25.
32. Ms. Nancy Gyurko worked for the Respondent for 21 years. She has held the position of Director of Elderly Services for 13 1/2 years. Tr 39.
33. Ms. Nancy Gyurko has been a member of Local 818 since 1993. Tr 38. Joint Exhibit 2.
34. Ms. Nancy Gyurko has received awards for excellence in her field. Tr 38.
35. Ms. Nancy Gyurko’s annual salary, as Director of Elderly Services, is $47,209.00. Tr 38.
36. Her position was evaluated by Mr. William Swords during 1994. Tr 43, 44. Joint Exhibit 15.
37. Ms. Nancy Gyurko filled out the questionnaire sent out by the consultant and attached an updated job description. Tr 44-47.
38. The position of the Director of Elderly Services was given an evaluation of 54 points and placed in an E-5 position level. Tr 50-53. Joint Exhibit 15.
39. Ms. Nancy Gyurko met with the Consultant and Mr. Thomas Gritt to provide input concerning how they ranked her position. Tr 48.
40. Ms. Gyurko met with the Consultant for a second time because she thought her position was ranked low in comparison to other positions, especially in comparison with Respondent’s male employees. Tr 52.
41. After the meeting, the point value assigned to her position was lowered to 53. Tr 51-53. Joint Exhibit 15.
42. At the time her complaint was filed with the CHRO in December of 1996, Ms. Nancy Gyurko’s annual salary was $41,458.00. Tr 65. Record Exhibit 25. Joint Exhibit 35.
43. The annual salary of the Superintendent of Streets was $49,879.00 when Ms. Nancy Gyurko filed her complaint with the Commission in December of 1996. Tr 65. Record Exhibit 25. Joint Exhibit 31 p 5. Joint Exhibit 35.
44. Ms. Nancy Gyurko selected the Superintendent of Streets as the male employee to whom she compared herself because both positions were assigned 53 points by the Job Study. Tr 65.
45. As a result of the December 5, 1997, arbitration award Ms. Nancy Gyurko received a 2.5% General Wage Increase, along with other members of Local 818, for each of the three years of the contract. The increase was retroactive to July 1, 1995. Tr 79, 82. Joint Exhibit 16.
46. In addition, the arbitration award dated December 5, 1997, awarded Ms. Nancy Gyurko two equity adjustments: $1,266.00 was paid retroactive to July 1, 1996 and $1, 266.00 was paid retroactive to July 1, 1997. Tr 79, 82. Joint Exhibit 16.
47. As a result of the December 5, 1997 arbitration award, Ms. Nancy Gyurko’s adjusted annual salary in December of 1996 was $44,622.00. Joint Exhibit 31 p 9. Joint Exhibit 35.
48. The Job Study placed the Superintendent of Streets in the E-5 position level and he was given an evaluation of 53 points. Joint Exhibit 15.
49. The annual salary of the Superintendent of Streets at the time Ms. Nancy Gyurko filed her complaint with the Commission on Human Rights and Opportunities in December of 1996 was $49,879.00. Record Exhibit 25. Joint Exhibit 31 p 5. Joint Exhibit 35.
50. The Superintendent of Streets current annual salary is $50,349.00. Joint Exhibit 19. Respondent’s Exhibit 6.

Findings of Fact with Respect to Ms. Debra Remillard:

51. Ms. Debra Remillard was hired by Respondent in 1988 as a Handicapped Transportation and Special Diet Coordinator. Record Exhibit 17.
52. In May of 1992, the Respondent promoted Ms. Debra Remillard to the position of Nutrition Supervisor for the Elderly Nutrition Program. Tr 188.
53. Ms. Debra Remillard left the employment of the Respondent on June 11, 1999. Tr 198.
54. Ms. Debra Remillard was receiving an annual salary of $37,785.00 when she left her position as Nutrition Supervisor for the Elderly Nutrition Program. Tr 189, 198, 199.
55. Ms. Debra Remillard was a member of Local 818 from 1993 to 1999. Tr 190. Joint Exhibit 2.
56. Ms. Debra Remillard’s position was evaluated in 1994 as part of the Job Study conducted by Respondent. Tr 191-194. Joint Exhibit 15.
57. After evaluation by Consultant Swords of her completed questionnaire and job description, Ms. Debra Remillard’s position was placed in an E-4 position level and given an initial evaluation of 35 points. Tr 194.
58. After a meeting with Mr. William Swords, Mr. Thomas Gritt and Michael Michaud, a representative of Local 818, her point total was increased to 43 points but the E-4 position level was retained. Tr 194-196. Joint Exhibit 15.
59. When Ms. Debra Remillard filed her complaint with the Commission her annual salary was $25,600.00, Record Exhibit 17. Joint Exhibit 35.
60. As a result of the December 5, 1997 arbitration award, Ms. Debra Remillard, along with other members of Local 818, received a 2.5% General Wage increase for three years retroactive to July 1, 1995 through June 30, 1998. Tr 207, 208. Joint Exhibit 16.
61. Ms. Debra Remillard also received two equity adjustments: $5,045.00 was retroactive to 1996; and, $5,045.00 retroactive to July 1, 1997. Tr 207, 208. Joint Exhibit 16 p 24.
62. Ms. Debra Remillard’s adjusted annual salary in December of 1996 was $31,941.00. Joint Exhibit 35.
63. In her complaint, Ms. Debra Remillard compares herself to the Assistant Superintendent of Streets as a position filled by a male employee that is most closely comparable to her own job. Record Exhibit 17.
64. The results of the Job Study placed the Assistant Superintendent of Streets in an E-4 position level and he was given a point total of 40 points. Joint Exhibit 15.
65. The annual salary of the Assistant Superintendent of Streets on December 23, 1996, when Ms. Debra Remillard filed her complaint with the Commission, was $39,981.00. Record Exhibit 17. Joint Exhibit 35.
66. The position of Assistant Superintendent of Streets is currently vacant and is advertised as having an annual salary of $40,000.00. Joint Exhibit 18.
67. Ms. Debra Remillard also compares herself to Environmental Planner, a position also filled by a male employee. Record Exhibit 17.
68. The Job Study placed the position of Environmental Planner in an E-4 position level and allocated it 40 points. Joint Exhibit 15.
69. The annual salary of the Environmental Planner, at the time Ms. Debra Remillard filed her complaint with the Commission, was $35,061.00. Record Exhibit 17. Joint Exhibit 35.
70. The position of Environmental Planner was vacant at the time of the public hearing. Tr 433, 532.

Findings of Fact with Respect to Ms. Charlene Antonelli:

71. Ms. Charlene Antonelli was hired as a part-time Purchasing Agent by the Respondent in February of 1994. Tr 352. Record Exhibit 9.
72. The Respondent hired her as a full-time Purchasing Agent in November of 1996. Tr 3553. Record Exhibit 9.
73. Ms. Charlene Antonelli joined Local 818 as soon as she became a full-time employee. Tr 354.
74. Ms. Charlene Antonelli’s annual salary at the time of the public hearing is $37,352.00. Tr 354. Joint Exhibit 31 p 16.
75. Her position was evaluated by the Job Study. Tr 356, 357. Joint Exhibit 15.
76. Her position was placed in the E-4 level with an initial evaluation of 37 points. Tr 363. Joint Exhibit 15.
77. After meeting with Consultant Swords the point value of the position was raised to 43, still within the E-4 position level. Tr 368. Joint Exhibit 15.
78. Ms. Charlene Antonelli filed a complaint with the Commission on December 23, 1996.
79. On December 23, 1996, her annual salary was $31, 894.00. Joint Exhibit 35. Joint Exhibit 31 p 16.
80. As a result of the arbitration award she, as well as other members of Local 818, received a 2.5% General Wage increase for two contract years retroactive to November 5, 1996; the date she became a full-time employee for Respondent. Tr 389, 402-404. Joint Exhibit 16. Joint Exhibit 35.
81. Ms. Charlene Antonelli also received an equity adjustment as part of the December 5, 1997 arbitration award: $1,900.00 was retroactive to November 1996; and, $1,900.99 was retroactive to July 1, 1997. Tr 389, 402, 404. Joint Exhibit 16. Joint Exhibit 35.
82. As a result of the arbitrator’s decision, Ms. Charlene Antonelli’s effective annual salary in December of 1996 was $34,589.00. Tr 401-402. Joint Exhibit 35.
83. Ms. Charlene Antonelli amended her complaint to compare herself to male employees of Respondent filling the positions of Assistant Superintendent of Streets, Environmental Planner, and Data Processing Manager. Tr 413.
84. As a result of the Job Study the position of Data Processing Manager was placed in an E-4 position level and given an evaluation of 40 points. Joint Exhibit 15.
85. In December of 1996 the annual salary of the Data Processing Manager was $39,923.53. Joint Exhibit 29.
86. The position of Data Processing Manager is currently filled by Mr. William Hoffman who was hired at $40,000.00 per year. Joint Exhibit 31 p 44.

Findings of Fact with Respect to Ms. Lisa Bambikidou:

87. Ms. Lisa Bambikidou was hired by Respondent in July of 1995 as Assistant Parks and Recreation Director and she currently holds this position. Tr 219. Record Exhibit 1.

88. Ms. Lisa Bambikidou’s annual salary as Assistant Parks and Recreation Director is $29,958.00. Tr 220. Joint Exhibit 31 p 50.

89. She is a member of Local 818. Joint Exhibit 2.
90. Her Position was evaluated as part of Respondent’s Job Study in 1994. Joint Exhibit 15.
91. The Job Study placed her position in an E-3 position level with an initial evaluation of 32 points. Joint Exhibit 15.
92. After meeting with Consultant Swords and Mr. Thomas Gritt, her points were changed to 34. Tr 225. Joint Exhibit 15.
93. In December of 1996 her annual salary was $21,528.72. Record Exhibit 1 & 4. Joint Exhibit 3 p.50. Joint Exhibit 35.
94. As a result of the arbitrator’s award she received a 2.5% General Wage Increase for three contract years; retroactive to July 24. 1995, her date of hire. Tr. 236-237. Joint Exhibit 16.
95. Also, as a result of the December 5, 1997 arbitration decision, Ms. Lisa Bambikidou received an equity adjustment: $2,516.00 was retroactive to July 1, 1996; and, $2,516.00 was retroactive to July 1, 1997. Tr. 236-237. Joint Exhibit 16.
96. As a result of the arbitration decision Ms. Lisa Bambikidou’s adjusted annual salary in December of 1996 was $25,964.61. Joint Exhibit 16. Joint Exhibit 35.
97. In her Complaint with the Commission on Human Rights and Opportunities, Ms. Lisa Bambikidou compares herself to the male employee filling the position of Zoning Enforcement Officer. Record Exhibit 1.
98. The position of Zoning Enforcement Officer was given an evaluation of 30 points by the Job Study. Joint Exhibit 15.
99. The salary of the Zoning Enforcement Officer at the time Ms. Lisa Bambikidou filed her complaint in December of 1996 was $33,753.00. Record Exhibit 1. Joint Exhibit 35.

III  Analysis:

Jurisdictional Defenses:

A threshold issue raised by the Respondent, City of Torrington, is whether the Connecticut Commission on Human Rights and Opportunities has jurisdiction over the Complaints because of the fact that there is an existing collective bargaining agreement between the parties and there have been two binding arbitrations before the State Board of Mediation and Arbitration on similar or related issues. I rule this matter is properly before the Connecticut Commission on Human Rights and Opportunities and this Human Rights Referee.

The Respondent makes the following four arguments:

1. Complainants have failed to exhaust the remedies available to them under the collective bargaining agreement between the parties.
2. Respondent cannot grant the relief requested by the Complainants because it is bound by the terms of the collective bargaining agreement.
3. The Complainants’ salaries were negotiated between the parties pursuant to the Connecticut General Statutes § 7-474. This is the exclusive method for making salary adjustments or changes between parties to a collective bargaining agreement and, thus, I am precluded from considering any salary changes.
4. Finally, there have been two binding arbitrations before the State Board of Mediation and Arbitration pursuant to General Statutes § 7-473c. These arbitrations have resulted in adjustments to the Complainants’ salaries and therefore, I am precluded from considering the Equal Pay Act and Title VII issues raised by the Complainants.

The Respondent has not claimed, or presented any evidence suggesting, that there has been an express written or verbal waiver by the Complainants, or Local 818, of their Title VII or Equal Pay Act rights to a hearing of their claims before the Connecticut Commission on Human Rights and Opportunities, or the State and Federal Courts.

The United States Supreme Court has decided three cases which are directly on point. In Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) the court held that there can be no prospective waiver of an employee’s rights under Title VII.

The Supreme Court makes the following statement:

The fact pattern that the Supreme Court addressed is identical to the present case with two differences. In Gardner-Denver there was only a Title VII claim, whereas in this case there are both Title VII as well as Equal Pay Act claims. The decision contains strong language on the waiver of Title VII rights:

The Supreme Court ruled that the federal policy favoring arbitration did not mean that an arbitrator’s resolution of contractual claims is dispositive of an individual’s statutory rights under Title VII. The Supreme Court also noted that the petitioner had not voluntarily entered into a waiver of the petitioner’s cause of action under Title VII. Gardner-Denver Id at 51.

The Supreme Court confronted the waiver issue in Gilmer v. Interstate/Johnson Lane Corporation, 500 U.S. 20 (1991) where a registered securities representative brought suit against his employer alleging that his termination violated the Age Discrimination in Employment Act (ADEA). Gilmer was required, by his employer, to register as a securities representative with the New York Stock Exchange (NYSE). The registration application contained an agreement to arbitrate when required by NYSE rules. NYSE Rule 347 provides for arbitration of any controversy arising out of a registered representative’s employment or termination of employment. When the Respondent terminated Gilmer at age 62, he filed a claim with the EEOC and brought suit in federal district court alleging he had been discharged in violation of the ADEA. Respondent moved to compel arbitration. The District Court denied the motion. The Court of Appeals reversed. The Supreme Court, holding that an ADEA claim can be subject to compulsory arbitration, affirmed the decision of the Court of Appeals. The court noted at page 24 of its decision that the arbitration in this case was pursuant to the Federal Arbitration Act (FAA), 9 U.S.C § 1 et seq. and that prior court decisions permitted the arbitration of statutory claims pursuant to the FAA.

The Supreme Court makes the following observations with respect to the distinctions between its decision in Gardner-Denver and Gilmer:

The facts of the present case fall squarely within the Gardner-Denver precedent because none of the three exceptions cited in Gilmer are applicable.

The language of the collective bargaining agreement between the parties in the present case does not require Complainants to submit their Title VII or Fair Employment Practices Act claims to the grievance and arbitration process. The language of the collective bargaining agreement provides that only contractual disputes shall be submitted to arbitration. The language in the 1993-1995 and 1995-1998 Agreements between the Respondent and Local 818 is identical and reads as follows:

a.    Matters relating to the interpretation and application of the Article and Sections in this Agreement."

Finally, and most tellingly for purposes of this decision, neither the Complainants nor Local 818, executed any verbal or written waiver of their Title VII or Equal Pay Act statutory claims.

The Supreme Court’s most recent decision addressing this issue is Wright v. Universal Maritime Service Corp. 119 S.Ct. 391 (1998). In this decision, the court held that the collective bargaining agreement between the parties did not contain a valid waiver of an employee’s right to access the federal judicial forum for his ADA claim because the waiver was not "clear and unmistakable". The court makes the following statement:

The court also held there was no preclusive effect due to the prior rulings by the labor arbitrator in the case. The Supreme Court makes the following statement on this issue:

Finally, in Beason v. United Technologies Corp. 37 F.Supp.2d 127 DC.Conn (1999), Judge Droney held that a prior adverse labor arbitrator’s decision which alleged violation of the ADA and Connecticut Fair Employment Practices Act (CFEPA) did not have a preclusive effect on a plaintiff’s right to file a suit in federal court alleging violations of the ADA and CFEPA.

There is also a Connecticut Supreme Court case which is directly on point on the issue of the preclusive effect of a prior grievance or arbitration proceeding on an employee’s right to pursue a statutory action. In Genovese v. Gallo Wine Merchants, Inc. 226 Conn. 475, 480 (1993). The court cites General Statutes § 31-51bb which reads as follows:

The Connecticut Supreme Court held that General Statutes § 31-51bb permits an employee to assert statutory rights in a court action despite a prior adverse determination of the same or a similar claim in an arbitration proceeding brought pursuant to a collective bargaining agreement. Genovese, supra, at 485.

Therefore, because both the federal and the state court precedents are in accord, I hereby rule that the prior rulings of the labor mediators and arbitrators do not have a preclusive effect upon the jurisdiction of the Connecticut Commission on Human Rights and Opportunities and this matter is properly before this Human Rights Referee.

IV.    Standards:

Equal Pay Act:

In the past, the Connecticut courts have looked to federal standards in interpreting our anti-discrimination statutes. Wroblewski v. Lexington Gardens, Inc. 188 Conn. 4, 53 (1982). The Connecticut Supreme Court has held that "Although we are not bound by federal interpretation of Title VII provisions, we have often looked to federal employment discrimination law for guidance in enforcing our own anti-discrimination statutes." State of Connecticut v. Commission on Human Rights and Opportunities, 211 Conn. 464, 470 (1989). Since most of the relevant precedent in the Equal Pay Acts and Title VII cases is found in federal law, I will look to federal law in analyzing this case.

In Koster v. Chase Manhattan Bank, 609 F.Supp. 1191, 1193 (1985) (DCNY) the Court states the burden of proof in Equal Pay Act cases as follows:

In Holt v. KMI-Continental, Inc., 95 F.3d 123, 131 (2d Cir.1996) the United States Court of Appeals for the Second Circuit makes the following statement with regard to the burden of proof in Equal Pay Act and Title VII cases:

If the Complainants prove that they are being paid less than male employees for the same or similar work, the burden shifts to the Respondent to show that any pay differences are justified under any one of the four exceptions discussed in Holt:

1. a seniority system,
2. a merit system,
3. a system that measures quality or quantity of production
4. where pay differentials are based on any factor other than sex.

Title VII (Connecticut Fair Employment Practices Act):

In order to prove that disparities in pay between male and female employees constitute gender discrimination under Title VII and the Connecticut Fair Employment Practices Act, the Complainants must demonstrate that the employer exhibited discriminatory animus in addition to establishing that equal work is being performed. The burden of proof in a Title VII and Connecticut Fair Employment Practices Act discrimination case is well established. Initially, the Complainants have the burden of proving, by a preponderance of the evidence, a prima facie case of discrimination. If they are successful, the burden of production shifts to the Respondent to articulate a legitimate non-discriminatory reason for the wage disparities. Finally, if the Respondent satisfies this burden, the Complainants have the ultimate burden to prove that the Respondent’s reason was merely a pretext for discrimination. Under the Title VII and the Connecticut Fair Employment Practices Act analysis, the Complainants have the ultimate burden of persuading the Human Rights Referee that the Respondent intentionally discriminated against them because of their sex. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981); St. Mary’s Honor Center v. Hicks, 113 S.Ct. 2742 (1993); Miko v. Commission on Human Rights and Opportunities, 220 Conn. 96 (1996); Ann Howard’s Apricots Restaurant v. Commission on Human Rights and Opportunities, 237 Conn. 209 (1996).

Equal Pay Act - Prima Facie Case

In presenting their prima facie case the Complainants testified concerning their own jobs. In addition, they claimed, in their pleadings and testimony, that their jobs were the same or similar to the male employees of the Respondent to whom they compare themselves for purposes of the Equal Pay Act.

Complainants did not present any evidence, either by way of testimony from the Complainants, or by way of testimony from the other employees of the Respondent or by the testimony of others, concerning the job duties and responsibilities of the male employees to whom they compared themselves for the purposes of the Equal Pay Act. Complainants relied, almost solely, in presenting their prima facie case on the Job Study. Complainants argue that the points established by the Job Study should, without more, translate into higher salaries from the Respondent.

At this point, it is worth listing all of the 16 positions found in Local 818’s bargaining unit:

The very titles of the jobs that the members of Local 818 perform for the Respondent, City of Torrington, indicate to me that the responsibilities performed by the employees who fill those positions are different. Without more evidence or testimony from the Complainants about the skill, effort and responsibility of the men filling the positions to whom they compare themselves or that these jobs were performed under similar working conditions, I am left to speculate as to whether any of the comparison jobs are the same or similar for purposes of the Equal Pay Act.

The conclusion I draw, as the trier of fact, is that the jobs found in Local 818 are comparable but not similar. Having reached this conclusion the case law and legislative history leaves me with no choice but to find that Complainants have failed to sustain their burden of presenting a prima facie case under the Equal Pay Act.

The United States Supreme Court, in interpreting the legislative history of the Equal Pay Act, has consistently held that the theory of the "comparable worth" of jobs was discarded by Congress in favor of the … "same or similar job" language currently found in the statute. The standard that the Complainants must meet with respect to this question is to show that the Respondent "pays different wages to employees of opposite sexes 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, 194 (1974).

In a recent case, the United States Supreme Court makes the following statement with regard to the legislative history of the Equal Pay Act:

The Second Circuit Court of Appeals has made the following statement with regard to the burden of proof in Equal Pay Act cases in Tomka v. Seiler Corp., 66 F.3d 1295, 1309, (2nd Cir. Ct. of App. 1995):

In Lemons v. City and County of Denver, 620 F.2d 228 (1980), nurses employed by the City of Denver brought suit alleging that they were underpaid in comparison with other city employees. The City of Denver calculated the pay of its nurses by comparing their salaries to nurses who worked in the community. The city nurses argued that since nurse positions have traditionally been filled by women, nurses in the community were historically underpaid compared to male employees.

The city nurses further argued that the city should not perpetuate a wage level for city nurses which is unfair in relation to the salaries of other city employees. The city nurses requested the city to compare their positions to other non-nursing positions in the City of Denver.

The Court provides the following analysis of the nurses’ claims:

The jobs to whom the Complainants compare themselves are jobs which require different skills and abilities than the work performed by the Complainants. I find that the comparison jobs are "comparable" but are not the "same" or "similar" for purposes of the Equal Pay Act.

The Respondent’s Job Study

Complainants have relied, almost solely, on the Job Study commissioned by the Respondent. Article XIV, Section 14.1 of the 1993-1995 collective bargaining between Local 818 and the Respondent reads as follows:

The findings of the Job Study were to serve as a subject of collective bargaining between the parties.

The criteria utilized in the Job Study follows:

"EXEMPT POSITION EVALUATION PLAN
(Factor Comparison/Point Rating Plan)

The three (3) basic factor groups are:

    I.    Requirements (Knowledge and Skills Required)     II.    Authority (Use of Knowledge and Skills)

    III.    Responsibility (Scope and Impact)

FACTOR GROUP A – REQUIREMENTS

This factor considers the total ‘Know-How’ an exempt employee must have in order to carry out the tasks assigned to his or her position. These include specialized or technical knowledge of accounting, law, personnel, library science, social sciences, education, engineering, etc. Also includes knowledge of municipal ordinances and policies, State statutes, collective bargaining agreements, municipal government practices and trends that might affect the future of the City or Town.

Factor Group A also measures the skills of direct negotiating, bargaining and persuading others to act. This factor does not relate to getting things done through subordinates. It applies only to positions that clearly require specialists in the art and technique of persuasion.

FACTOR GROUP B – AUTHORITY

This factor measures the ‘freedom to act’ – the final decision making – actually saying ‘yes’ or ‘no’ – of committing some part of the municipality to action, of taking risks and of having action follow to obtain desired results within the framework and constraints of the Charter and/or By-Laws, State statutes, ordinances, policies and administrative controls, collective bargaining agreements, etc. It also considers the mental application required for carrying out the assigned task involving foresight, analytical ability, ingenuity and creativeness.

FACTOR GROUP C – RESPONSIBILITY

This factor group covers the scope and impact of all tasks related to management, development, protection, use and control of the municipality’s physical assets and financial resources including property, equipment, payroll costs, supervision, budgets, investments, and outside revenues."

I have quoted at length from the language of the Job Study in order to classify the "factors" in the Job Study in accordance with the statutory requirements of the Equal Pay Act.

Factor Group A is entitled "Requirements" and lists the knowledge and skills required for jobs. Since the language of this basic factor group is similar to the equal skill required by the Equal Pay Act, it is easy to equate this group with equal skill.

Factor Group B entitled "Authority" is separated into two categories: The first is "the freedom to act" which I equate with the equal responsibility requirements of the Equal Pay Act. The second portion of Basic Factor Group B calls for "… foresight, analytical ability, ingenuity and creativeness". I equate these requirements with the equal skill required by the Equal Pay Act.

Factor Group C is entitled "Responsibility (Scope and Impact)" and is defined as "the scope and impact of all tasks related to management". I equate this Basic Factor Group to the equal responsibility required by the Equal Pay Act.

Therefore, the statutory factors measured by the Respondent’s 1994 Job Study include only skill and responsibility. The Equal Pay Act requires, for jobs to be equal or substantially equal, a demonstration of equal skill, effort, responsibility as well as a showing that the jobs are performed under similar working conditions.

In Schultz v. Corning Glass, 319 F.Supp, 1161 (1970) the United States District Court for the Western District of New York dealt with two job evaluation plans prepared by Corning Glass. One, entitled the Stevenson, Jordan & Harrison Job Evaluation was completed in 1946. This plan measured skill, responsibility and working conditions in evaluating work performed in different job classifications. The plan assigned points to each job studied. The other job study was entitled the Corning Glass Works Job Evaluation Plan. Started in 1957, this plan measured effort, skill, responsibility and working conditions of different jobs and also assigned points to each job studied.

The Court makes the following statement on the Stevenson, Jordan and Harrison Job Evaluation:

The court refused to rely on the SJ&H plan because it did not contain all of the statutory elements required by the Equal Pay Act for jobs to be considered the same or similar.

The court goes on to state the following with regard to the Corning Glass Works Job Evaluation Plan:

The court accepted the validity of the Corning Glass Works Job Evaluation Plan because it contained all of the statutory elements mandated by the Equal Pay Act.

Finally, in Koster v. Chase Manhattan Bank, (S.D.N.Y. 1985) 609 F. Supp. 1191, 1194 the court makes the following statement with regard to the plaintiff’s claim that because her total point value under an evaluation system utilized by her employer was the same as the total point value of other employees she should receive the same wages:

Finally, the Respondent argues that some male employees are not paid in accordance with the point totals generated by the Respondent’s Job Study, while all female employees are paid in accordance with the points assigned by the Job Study.

Having dealt with the Job Study, I now proceed to an analysis of the other evidence presented by the Complainants. Each Complainant testified, at some length, about their own jobs. The Complainants, in their pleading and testimony, argued that their job duties and responsibilities were the same or similar to the male employees to whom they compared themselves for purposes of the Equal Pay Act. However, the Complainants did not present any testimony or evidence concerning the job duties and the job performance of the male employees of the Respondent. The Complainants did not subpoena the Respondent’s male management employees to testify concerning their jobs and how those jobs compared to the Complainants’ jobs. Likewise, the Complainants did not testify, themselves, concerning what work the men did and how it related to their claims of violations of the Equal Pay Act.

My analysis of the claim that the jobs of the female Complainants were the same or similar to the males to whom they compared themselves follows:

1. All of the job titles in this case were different. Each job, based on the evidence presented, required different educational or work experience to quality for and discharged different duties and obligations to the citizens of Torrington.
2. The job titles and responsibilities were not created by the Respondent but are in common use throughout the State of Connecticut by other, if not most, municipalities.
3. Without more evidence concerning the job duties and responsibilities of the male management employees of the Respondent, I am left to speculate concerning whether these jobs are the same or similar for purposes of the Equal Pay Act.
4. There was no evidence presented demonstrating that the different job titles and duties were created by the Respondent as a subterfuge to evade the statutory mandates of Title VII or the Equal Pay Act.

In the absence of such evidence, the only conclusion I can draw is that the Respondent’s management job classifications are based on the needs of the Respondent to manage its staff of municipal employees and to serve the needs of the citizens of Torrington. While the Complainants argue in page 27 of their brief that they "perform equal work on jobs requiring equal skill, effort and responsibilities as their male counterparts and the jobs are performed under similar working conditions …" this legal conclusion remained unproved by the Complainants. Therefore, because of the disparate types of jobs at issue in this case, I find that the jobs are not the same or similar for purposes of the Equal Pay Act.

Following the precedent of the United States District Court in Schultz, I hold that the Complainants have not satisfied their burden of proof by relying on the job descriptions and evaluation points developed in the City of Torrington, November, 1994 Job Study. Therefore, I must rule in favor of the Respondent, City of Torrington, because the Equal Pay Act requires proof of equal skill, effort and responsibility, and performance under similar working conditions for jobs to be considered the same or similar. While the Job Study measured skill and responsibility, it did not measure effort and performance under similar working conditions. The evidence presented by the Complainants at the public hearing relied, in the end, on the Job Study to satisfy their burden of proof in their prima facie case. Complainants have failed to meet their burden of presenting a prima facie case.

Title VII (Connecticut Fair Employment Practices Act) – Prima Facie Case

Complainants have failed to meet their burden of presenting a prima facie case.

The Complainants have failed to produce any evidence that the Respondent paid them less than the male employees to whom they compare themselves because of an intentional act on the part of the Respondent. The Complainants rely on the fact that the comparison employees of the Respondent were paid more than they were paid and that they are males. Complainants presented no evidence that Respondent’s conduct was intentional or motivated by discriminatory animus. The Complainants’ evidence does not support the inference that the Respondent acted with "discriminatory intent".

V. Conclusion of Law:

For the foregoing reasons, the Complainants have failed to carry their burden of proving that they were paid less than certain male employees of the Respondent for equal work on jobs whose performance requires equal skill, effort and responsibility and which are performed under similar working conditions. The Complainants have also failed to carry their burden of proving discriminatory intent. Accordingly, the Complaint is hereby DISMISSED.

Dated this 26^th day of January 2000 in Hartford, CT.

Hon. Leonard E. Trojanowski

 cc: Nancy Gyurko
Debra Remillard
Charlene Antonelli
Lisa Bambikidou
Thomas Gritt, City of Torrington
Attorney Victor Muschell
Attorney C. Joan Parker, Commission Counsel II
Attorney Raymond Pech, Deputy Commission Counsel