James D. Hodgson, Secretary of Labor, United Statesdepartment of Labor, Plaintiff-appellee, v. Miller Brewing Company, Defendant-appellant.virginia Murphy et al., Plaintiffs-appellees,plaintiffs-cross-appellants, v. Miller Brewing Company, Defendant-appellant, Defendant-cross-appellee, 457 F.2d 221 (7th Cir. 1972)

These consolidated cases and appeals arise under the Fair Labor Standards Act of 1938¹  (Act) and the Equal Pay Act of 1963.²  No. 18929 was filed October 15, 1965 by the three female plaintiffs,³  all laboratory technicians employed by defendant Miller Brewing Company (Miller), to recover back wages, liquidated damages and attorneys' fees under 29 U.S.C.A. Sec. 216(b). No. 18560 was commenced March 31, 1967 by the Secretary of Labor pursuant to 29 U.S.C.A. Sec. 217 to enjoin Miller from violating the equal pay provisions of the Act by paying discriminatory wages to its female laboratory technicians and by reducing the wage rates of certain male technicians. The cases were tried together in June 1968, during the course of which the trial judge toured Miller's operations in Milwaukee, Wisconsin and observed the laboratory technicians' jobs actually being performed. The district court filed its opinion, reported as Murphy v. Miller Brewing Company, D.C., 307 F. Supp. 829 (1969), in favor of the three private plaintiffs and the Secretary of Labor. Judgment was entered enjoining Miller from violating the Act and ordering Miller to equalize the wage rates of all employees in the Analytical Laboratory with those in the Materials Quality Control Laboratory by increasing the former 70 cents per hour. Judgment was also entered in favor of the three private plaintiffs granting back pay, liquidated damages and attorneys' fees.⁴  Miller has appealed. The private plaintiffs have cross-appealed on the question of interest. We affirm.

Miller is engaged in the production and sale of beer which is sold in interstate commerce within the meaning of Sec. 206(d). The equal pay provisions of the Act have been applicable to Miller's employees since June 11, 1964.

These cases primarily involve employees in two main laboratory facilities-the Analytical Laboratory and the Packaging Laboratory.

The Analytical Lab is located on the second floor of the "Research Building." The technicians, both men and women, perform tests to analyze and measure the chemical and physical characteristics of raw materials, beer in process, packaged beer and competitors' products. The tests are conducted according to standardized processes and procedures. No prior experience is necessary and a visual demonstration of the procedures is sufficient training. There are no differences of any significance in terms of the skill, effort, and responsibility required to perform the various tests and other duties in the Analytical Lab.

During the period from January 1961 to January 1965, female laboratory technicians were restricted to work in the Analytical Lab. They were also restricted to working only on the first shift from 8:00 a. m. to 4:00 p. m. in that laboratory. The other two shifts, which were not always operated, were run by male technicians. The men who worked on the other shifts in the Analytical Lab received 70 cents per hour more than the women. This was in addition to a shift differential of 10 to 16 cents per hour.

After the effective date of the Equal Pay Act, men and women continued concurrently and interchangeably to perform the same tests and jobs in the Analytical Lab. On occasion women trained the men to perform these tests. Despite this, women continued to receive 70 cents per hour less than the men for the same work.

During the period July 10, 1964 to January 2, 1965, men were transferred out of the Analytical Lab to the Packaging Lab. During the period of January 2, 1965 to October 31, 1966, Miller allowed only women to perform the work in the Analytical Lab. The women continued to receive 70 cents per hour less than the men who had been transferred out.

After October 31, 1966, both men and women were allowed to work in the Analytical Lab. At this time both men and women in the Analytical Lab received the same lower rate which was 70 cents an hour less than what the men in the Analytical Lab had previously received and than what technicians working in the Packaging Lab received. After October 1966, women were permitted to transfer to the Packaging Lab as vacancies arose.⁵ 

The Packaging Lab, which prior to October 1966 was restricted to male technicians, consists of three separate laboratory areas: (1) the Materials Quality Control Laboratory (MQC Lab); (2) the Air Laboratory; and (3) the Bottle House Laboratory.

The MQC Lab is located on the second floor of the "Packaging Building." While it is near the production area, it is enclosed and separated from it by tile and glass walls and doors. The temperature and noise levels in both the Analytical and MQC Labs are substantially the same.⁶  Both labs are equipped with sundry chemical testing equipment much of which is the same. As in the Analytical Lab, the tests in the MQC Lab are standardized and training consists merely of demonstrations. Most of the tests are performed in the MQC Lab but a few require the employee to go outside the laboratory. Time spent outside the laboratory varies from zero to one and a half hours per day.

We agree with the district court's conclusion that "the working conditions in the MQC Lab are similar to the working conditions in the Analytical Lab, and there is no substantial difference in terms of the skill, effort and responsibility required between the jobs in the Analytical Lab and the MQC Lab."⁷  Thus, we find that the jobs in the two laboratories constitute "equal work"⁸  within the meaning of Sec. 206(d).⁹ 

The first issue for our resolution is whether the female laboratory technicians in the Analytical Lab, including the three women plaintiffs, were discriminated against by Miller solely on the basis of sex, in violation of Sec. 206(d) of the Equal Pay Act.¹⁰ 

Keeping in mind the broad remedial purpose of the Equal Pay Act, the following language from Shultz v. Wheaton Glass Company, 3 Cir., 421 F.2d 259, at 265 (1970), cert. denied, 398 U.S. 905, 90 S. Ct. 1696, 26 L. Ed. 2d 64, sets the tone for reviewing the discriminatory wage policy in this case: "The Act was intended as a broad charter of women's rights in the economic field. It sought to overcome the age-old belief in women's inferiority and to eliminate the depressing effects on living standards of reduced wages for female workers and the economic and social consequences which flow from it."

We find that there are two significant situations in which Miller has discriminated and continues to discriminate against women.

It is almost without question that Miller's wage differential between men and women, who, we have found, performed equal work in the Analytical Lab, from the effective date of the Equal Pay Act (June 11, 1964) to the date when all men had been transferred out of the Analytical Lab (January 2, 1965) was in violation of Sec. 206(d). At that juncture Miller was required, in order to avoid continued violation of the Act, to raise the wages of the women laboratory technicians in the Analytical Lab by 70 cents per hour.

In order to circumvent this requirement, Miller instituted the following arrangement: (1) all men were transferred out of the Analytical Lab to the Packaging Lab and women were restricted to working in the Analytical Lab; (2) women continued to receive 70 cents per hour less than the men had formerly earned in the Analytical Lab and now earn in the Packaging Lab; (3) then, about one year later, the Analytical Lab was again opened up to both male and female technicians with all receiving the lower women's rate; and (4) at the same time, women were for the first time allowed to work at the transfer to the higher paying Packaging Lab jobs.

As a result of this scheme, Miller arrived at the same result as if it had initially, after the effective date of the Equal Pay Act, equalized pay in the Analytical Lab by lowering the male employees wages by 70 cents per hour. Since that in substance is what was accomplished, Miller violated Sec. 206(d). The proviso of Sec. 206(d) which Miller violated is " [t]hat an employer who is paying a wage rate differential in violation of this subsection shall not, in order to comply with the provisions of this subsection, reduce the wage rate of any employee.¹¹ 

"At the outset, we think it clear that the Company did not cure the alleged violation of the Equal Pay Act by agreeing to open the night shift to women. If in fact the work of the women was equal to that of the men, the Company became obligated to pay them the same scale as their male counterparts on the effective date of the Act * * *. It could not relieve itself of that obligation by agreeing to allow some women to work on the night shift at a higher rate of pay at some future date when a vacancy occurred. [Citation omitted.] Nor could it achieve compliance by opening the AM-PM shifts to men at the lower rate." Shultz v. American Can Company-Dixie Products, 8 Cir., 424 F.2d 356, at 359 (1970).

The second situation in which Miller has discriminated against the female Analytical Lab technicians is in paying them 70 cents per hour less than the male employees in the MQC Lab. We have already found that the jobs in these two laboratories constitute "equal work" within the meaning of those terms in Sec. 206(d). It is irrelevant that the male technicians in the Analytical Lab are now also receiving the lower wage or that the jobs in the MQC Lab are now open to women at the higher rate, since we have found those circumstances to be part of a plan to circumvent the Act's requirement that the wages of the women in the Analytical Lab be raised. See American Can, supra.

Miller argues that if we find the jobs in Analytical and MQC to be equal we are engaged in job rating rather than determining whether the jobs are the same. We agree that the Equal Pay Act does not authorize courts to equalize wages merely because they find that two substantially different jobs are worth the same monetarily to the employer and therefore should be paid the same wages. However, " [t]here is evidence that Congress intended that jobs of the same or closely related character should be compared in applying the equal pay for equal work standard (Daily Congressional Record, House, May 23, 1963, pp. 8686, 8698). Jobs that require equal skill, effort, and responsibility in their performance within the meaning of the Act are usually not identical in every respect (Daily Congressional Record, Senate, May 28, 1963, p. 9219)." 29 C.F.R. Sec. 800.120. "Application of the equal pay standard is not dependent on job classifications or titles but depends rather on actual job requirements and performance." 29 C.F.R. Sec. 800.121. See also Shultz v. Wheaton Glass Company, 3 Cir., 421 F.2d 259, 265 (1970), cert. denied, 398 U.S. 905, 90 S. Ct. 1696, 26 L. Ed. 2d 64.

In light of the foregoing, we conclude and hold that Miller has violated the Equal Pay Act and that its discriminatory practices did not cease with the removal of all male laboratory technicians from the Analytical Lab, or with the opening of all jobs in the Analytical Lab and MQC Lab to both men and women.

The next issue is whether it was proper for the district court to award liquidated damages to the three private plaintiffs. Section 216(b), 29 U.S.C.A. provides, inter alia, for the recovery of back pay for violations of the Equal Pay Act and "an additional equal amount as liquidated damages." On May 14, 1947, 29 U.S.C.A. Sec. 260 of the Portal-to-Portal Pay Act became effective. It provides that a court may in its sound discretion award no liquidated damages if the employer can show that it acted in good faith.¹² 

Miller claims that it acted in good faith for several reasons. First, Miller asserts that an investigator from the Department of Labor visited its plant in 1965 and on June 11, 1965, delivered a "Summary of Unpaid Wages" to Miller and orally represented at that time that the summary showed Miller's total liability under the Act. Second, it claims to have relied upon the determinations of the Wisconsin courts concerning Miller's discrimination under a state statute which is substantially similar to the federal Act.

It should first be noted that a lower court's decision concerning the employer's good faith or lack thereof is a question of fact that will be modified on appeal only if shown to be clearly erroneous. Day & Zimmermann v. Reid, 8 Cir., 168 F.2d 356, 360 (1948); Lassiter v. Guy F. Atkinson Co., 9 Cir., 176 F.2d 984, 993 (1949); Tripp v. May, 7 Cir., 189 F.2d 198 (1951); and Van Dyke v. Bluefield Gas Co., 4 Cir., 210 F.2d 620, 622 (1954), cert. denied, 347 U.S. 1014, 74 S. Ct. 870, 98 L. Ed. 1137. In this regard the district court stated: "I do not believe that Miller has demonstrated that it made any good faith efforts to comply with the Equal Pay Act or that it had reasonable grounds to believe that it was not in violation of the Act." 307 F. Supp. at 839. We agree.

The investigator was not a person upon whom Miller, by statute, was entitled to rely, and in any event, he did not issue his opinion until after the three women plaintiffs had commenced their state court action challenging Miller's discriminatory wage policy. Also, Miller's reliance on the actions of the Wisconsin courts is misplaced since the Wisconsin Supreme Court did not issue its decision until January 30, 1968 and the accrual of all damages to the private plaintiffs ceased in June 1967. In addition, we are not certain that Miller can properly rely on the Wisconsin decision, since in fact the courts there found discrimination but held that under the applicable Wisconsin statute damages were not recoverable. Murphy v. Industrial Comm., 37 Wis.2d 704, 155 N.W.2d 545 (1968).

The third issue which Miller raises is whether the award of $20,000 attorneys' fees to the three women plaintiffs was excessive and an abuse of discretion. Section 216(b) allows an employee claiming under the Fair Labor Standards Act to recover reasonable attorneys' fees. The amount of attorneys' fees is within the sound discretion of the trial court and much reliance should be placed on the findings of the trial judge because of his intimate relation-ship with the case. Bable v. T. W. Phillips Gas and Oil Company, 3 Cir., 287 F.2d 21 (1961); Michigan Window Cleaning Co. v. Martino, 6 Cir., 173 F.2d 466, 468 (1949); and Van Dyke, supra at 622.

Miller points to the fact that the total damage award to the plaintiffs was only $24,371.20; yet, the attorneys' fees were almost equal to that.

The question now presented to this court is not what amount of attorneys' fees this court would have awarded but, rather, was the trial court's award an abuse of its discretion. The amount of damages recovered is only one factor to be considered in arriving at a reasonable fee award. To hold otherwise would in reality prevent individuals with relatively small claims from effectively enforcing their rights and protecting the interest of the public in having equal pay for equal work. Employees exercising their rights under the Equal Pay Act are benefiting not only themselves but also the general public as well.¹³  This is pertinent in light of Miller's conscious effort to circumvent the Equal Pay Act. We have reviewed the "Itemized Statement of Services by Counsel for Plaintiffs" submitted to the trial judge by counsel and give great weight to the opportunity of the district court to view the efforts of counsel firsthand. We find and hold that the award given did not constitute an abuse of discretion.

The final issue, which is raised by the private plaintiffs in their cross-appeal, is whether the district court erred in concluding that where the maximum amount of liquidated damages are awarded it cannot in addition award interest on the back pay.

The Fair Labor Standards Act, 29 U.S.C.A. Sec. 201 et seq., is silent as to the allowance of interest. Prior to the enactment of the Portal-to-Portal Pay Act of 1947, inter alia, 29 U.S.C.A. Sec. 260, which made the award of liquidated damages discretionary, the courts were required to award liquidated damages in an amount equal to the actual damage award. Accordingly, prior to the enactment of Sec. 260, the Supreme Court in Brooklyn Bank v. O'Neil, 324 U.S. 697, at 715, 65 S. Ct. 895, at 906, 89 L. Ed. 1296 (1945), held, in regard to 29 U.S.C.A. Sec. 216(b), that " [t]o allow an employee to recover the basic statutory wage and liquidated damages, with interest, would have the effect of giving an employee double compensation for damages arising from delay in the payment of the basic minimum wages."

Regardless of the change in the basis for awarding liquidated damages, as evidenced by Sec. 260, we think that Brooklyn is still controlling where, as here, the maximum amount of liquidated damages are awarded. All federal appellate cases brought to our attention where interest has been awarded involved situations where liquidated damages had not been awarded; hence, they are distinguishable from the case at bar. See Hodgson v. Daisy Manufacturing Company, 8 Cir., 445 F.2d 823 (1971); Hodgson v. Wheaton Glass Co., 3 Cir., 446 F.2d 527, 534 (1971); McClanahan v. Mathews, 6 Cir., 440 F.2d 320, 325 (1971); and Holtville Alfalfa Mills v. Wyatt, 9 Cir., 230 F.2d 398, 401 (1955). Thus, we find that the district court was correct in its determination not to award interest in addition to liquidated damages.

The three private plaintiffs further request that we remand this matter for a determination of the amount of additional attorneys' fees for services on this appeal. This we decline to do. The award of $20,000 as hereinabove approved shall stand without further change.

For the foregoing reasons, the judgments appealed from are in all respects affirmed.

Affirmed.