989 F.

2d 406
61 Fair Empl.Prac.Cas. (BNA) 528,
61 Empl. Prac. Dec. P 42,194, 61 USLW 2627,
124 Lab.Cas. P 35,788,
1 Wage & Hour Cas.2d (BNA) 512

Sharon K. TIDWELL, Plaintiff-Appellee, Cross-Appellant,

v.
FORT HOWARD CORPORATION, a Delaware corporation,
Defendant-Appellant, Cross-Appellee.
Nos. 91-7063, 91-7069.

United States Court of Appeals,

Tenth Circuit.
March 24, 1993.

David E. Strecker (Leslie C. Rinn, with him, on the briefs), of Shipley,

Inhofe & Strecker, Tulsa, OK, for defendant-appellant, cross-appellee.
Laura Emily Frossard, Tulsa, OK, for plaintiff-appellee, cross-appellant.
Before McKAY, Chief Judge, SETH and McWILLIAMS, Circuit Judges.
SETH, Circuit Judge.

The Plaintiff Sharon K. Tidwell brought an Equal Pay Act claim, Fair Labor
Standards Act, 29 U.S.C. 206(d), combined with a cause of action under Title
VII, 42 U.S.C. 2000e, against the Defendant Fort Howard Corporation, her
employer. The causes were tried in one proceeding. The jury returned a verdict
for the Plaintiff on the Equal Pay Act claim (two years back pay), but held that
the Defendant's violation was "nonwillful." 756 F.Supp. 1487. On the Title VII
cause the trial court entered judgment for the Defendant.

This appeal centers on the comparison or contrast between the jury verdict for
Plaintiff in the EPA cause and the court's judgment for the Defendant in the
Title VII cause. Both matters were tried at the same time and the evidence is in
one package.

The position of the Plaintiff is basically that the jury verdict decided both
causes. The Plaintiff appeals the denial of liquidated damages and the trial
court's ruling on attorney fees. She also appeals the trial court's judgment on the
Title VII cause. The Defendant Fort Howard appeals from the denial of its
motion for judgment n.o.v. and the denial of its alternative motion for a new
trial on the EPA cause.

The Defendant Fort Howard has a paper products mill in Oklahoma where
Sharon Tidwell was employed beginning in 1985 as an accounts payable clerk.
She received several advances after moving into the raw materials department
which was expanding. She was put in a supervisory position in 1989, and
became Coordinator of that department. She succeeded a male in that position
who had been paid a higher salary than Plaintiff was paid.

The predecessor had been transferred some four years before from a job as
machine operator into the materials department. His position as Coordinator
was carried as "temporary" as was the company policy when employees were
moved to a different department from jobs which were higher paid into a
department where the scale was lower. The Defendant's evidence was that this
was done so the employee would not have to take a pay cut and for seniority
reasons was considered to be in his original department. There was another
male employee in the raw materials department under similar circumstances.
The "temporary" classification for her predecessor had been for some four
years.

Much of the EPA evidence was, of course, directed to an element of Plaintiff's

prima facie case, that is, whether her duties and job circumstances were
substantially the same as those of her male predecessors. Nulf v. International
Paper Co., 656 F.2d 553 (10th Cir.). With the evidence on that element, and the
others, we must conclude that Plaintiff established a prima facie case under the
EPA. Corning Glass Works v. Brennan, 417 U.S. 188, 94 S.Ct. 2223, 41
L.Ed.2d 1. The burden of persuasion was then fully on the Defendant to
persuade the jury, if it could, that one or more of the four statutory reasons
existed to permit the pay disparity as listed in the Act, 29 U.S.C. 206(d)(1)(i).
These the Supreme Court refers to as "affirmative defenses," County of
Washington v. Gunther, 452 U.S. 161, 101 S.Ct. 2242, 68 L.Ed.2d 751, and
hereinafter listed. It is apparent that the jury was not so persuaded, but it did
find Defendant's acts nonwillful.

There is the somewhat unusual and significant element in the determination by

the EPA jury. That is the finding the EPA violation was "nonwillful." Also in a
related point, the trial court in the EPA cause denied liquidated damages after

referring to the evidence generally and to the jury's "nonwillful" finding.

The EPA Case
8

It seems necessary to repeat the several elements and the order of proof
established by statute and decisions in Equal Pay Act cases and in Title VII
cases. In EPA cases the plaintiff, to establish a prima facie case under Corning
Glass Works v. Brennan, 417 U.S. 188, 94 S.Ct. 2223, has the burden of
proving that (1) she was performing work which was substantially equal to that
of the male employees considering the skills, duties, supervision, effort and
responsibilities of the jobs; (2) the conditions where the work was performed
were basically the same; (3) the male employees were paid more under such
circumstances.

If a prima facie case is so established under the EPA the defendant must
undertake the burden of persuading the jury that there existed reasons for the
wage disparity which are described in the Equal Pay Act, 29 U.S.C. 206(d)
(1). These reasons are: (1) a seniority system; (2) a merit system; (3) a pay
system based on quantity or quality of output; (4) a disparity based on any
factor other than sex.

10

If the defendant fails to convince the jury with its evidence of one or more of
the "affirmative defenses" listed above the plaintiff will prevail on her prima
facie case.

Title VII (42 U.S.C. 2000e)

11

It may be repetitious to describe the elements of a Title VII action as they

appear at length in all Title VII opinions, but we are necessarily concerned with
the comparison of the trial requirements between Title VII and the EPA,
especially the elements of the order of proof and the burdens of persuasion.
These were fully described and examined by the trial court in its Findings of
Fact and Conclusions of Law. See also Skinner v. Total Petroleum, Inc., 859
F.2d 1439 (10th Cir.), hereinafter quoted.

12

Thus under Title VII once the plaintiff has established a prima facie case the
defendant must then produce some evidence, or at least as some cases indicate,
articulate a nondiscriminatory reason for the disparate treatment. If this is done,
the plaintiff continues or reverts to his or her basic burden to persuade the trier
of fact that the defendant, regardless of the reasons advanced, intentionally
discriminated against plaintiff. Texas Dep't of Community Affairs v. Burdine,
450 U.S. 248, at 253, 101 S.Ct. 1089, at 1093, 67 L.Ed.2d 207; McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668. See
Watson v. Ft. Worth Bank & Trust, 487 U.S. 977, 108 S.Ct. 2777, 101 L.Ed.2d
827.
Comparisons--EPA and Title VII
13

The trial court, in the case before us, concluded Plaintiff had completely failed
in her Title VII proof. The court, in part, made these findings of fact:

14

"The only evidence presented at trial which would have the tendency to prove
discriminatory conduct on the part of defendant relates to compensation paid to
Bruce Smith (Smith) and Harold Willard (Willard), two of defendant's
employees who temporarily performed duties associated with the raw materials
department. A closer look at such evidence, however, reveals that defendant
articulated legitimate, nondiscriminatory reasons for compensating Smith and
Willard at a higher rate than plaintiff for the time they performed work in the
raw materials department. Both Smith and Willard performed their duties in the
raw materials department as part of temporary job assignments. Neither was
actually transferred or assigned to the raw materials department on a permanent
basis. Their temporary assignments resulted from a valid assessment of
operations demands at defendant's mill.

....
15
16

"The court concludes that defendant has articulated legitimate,

nondiscriminatory reasons for the pay differential and that plaintiff has wholly
failed to present any evidence which indicates, much less proves, that defendant
intentionally discriminated against her on the basis of her sex. This conclusion
is further supported by the jury's determination that defendant did not willfully
violate the provisions of the Equal Pay Act."

17

We must conclude that the evidence put on by the Plaintiff when applied to the
Title VII claim did not meet her burden of proof. Specifically, it did not show
an intentional discrimination by Defendant directly or indirectly, and no
evidence was directed to this issue.

18

It is apparent that the same evidence was used for both claims. The Plaintiff did
not put on further proof directed to the judge's consideration of Title VII nor did
the Defendant. The different procedure under the two statutes as to the burden
of proof, and the different elements to be established, were, of course, applied
to the same evidence.

19

The application by the trial court of the different requirements in the two
statutes, and the decisions under each, resulted, as mentioned, in the jury
verdict for Plaintiff in the EPA cause of action, and the court's judgment for the
Defendant in the Title VII cause.

20

The circuits are divided on the impact of a jury verdict in a discrimination case
combined with a Title VII case. See Korte v. Diemer, 909 F.2d 954 (6th Cir.);
Fallon v. Illinois, 882 F.2d 1206 (7th Cir.); Peters v. Shreveport, 818 F.2d 1148
(5th Cir.); McKee v. Bi-State Development Agency, 801 F.2d 1014 (8th Cir.);
Brewster v. Barnes, 788 F.2d 985 (4th Cir.); Kouba v. Allstate Insurance Co.,
691 F.2d 873 (9th Cir.); Odomes v. Nucare Inc., 653 F.2d 246 (6th Cir.).

21

We have carefully considered our opinion in Ammons v. Zia Co., 448 F.2d 117
(10th Cir.). The case concerned a sex case brought under Title VII and the
court considered provision of the EPA. It required a showing of equal work by
reason of 29 U.S.C. 206(d)(1). The Supreme Court as to the order of proof,
burdens, and otherwise has made many changes since 1971 which have
substantially modified Ammons. See County of Washington v. Gunther, 452
U.S. 161, 101 S.Ct. 2242, McDonnell Douglas, Burdine, and cases cited herein.

22

The authorities must be evaluated with consideration given to which statutes

have been combined in the one action. The Plaintiff argues that the jury verdict
in the EPA case constitutes indirect evidence of intentional discrimination. We
cannot agree. In reality, there was nothing whatever to show any intentional
discrimination.

23

There was a failure of proof by Plaintiff on her Title VII cause. We have held
that even a disparate treatment finding alone is not enough under Title VII.
EEOC v. Flasher Co., Inc., 986 F.2d 1312 (10th Cir.). There is nothing in the
legislative history of either statute to indicate that the order of proof and the
burdens of Title VII were altered by the Bennett Amendment, hereinafter
considered, for sex-pay discrimination cases. As the court said in Fallon v.
Illinois, 882 F.2d 1206 (7th Cir.):

24 see no reason why this class of case--sex-based wage discrimination--deserves

"We
special treatment under Title VII as distinct from race, color, religion, or national
origin cases."
25

The Fallon court could also find nothing in the Bennett Amendment to
reallocate burdens.

The Bennett Amendment

26

As mentioned, we find nothing in the sparse legislative history of the Bennett

Amendment that requires the trial of sex-based pay discrimination is to be
handled differently as to basic elements from other Title VII actions. That is a
different sequence of proof, different burdens and different prima facie
requirements. This would be a substantial change derived from very vague
language were the EPA burdens, order of proof, and elements of the cause to be
carried over into Title VII. The Supreme Court in County of Washington v.
Gunther, 452 U.S. 161, 101 S.Ct. 2242, did not decide the full impact of the
Bennett Amendment on the combination of the two Acts except as to whether
the EPA requirement of "equal work" was incorporated in Title VII. The Court
emphasized that the purpose of the Bennett Amendment was to incorporate the
EPA four "affirmative defenses" into Title VII in sex-based wage
discrimination cases, but not the EPA equal work requirement. No mention was
made of the order of proof and burdens in Title VII by the Court. It expressly
did not decide:

27

"We do not decide in this case the precise contours of lawsuits challenging sex
discrimination in compensation under Title VII."

28

It must be assumed that there was not an "incorporation" of such elements nor a
modification of the intentional discrimination requirement of Title VII in sexbased wage discrimination cases. The statement by Justice O'Connor
concurring in Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104
L.Ed.2d 268, is significant:

29 would be odd to say the least if the evidentiary rules applicable to Title VII
"It
actions were themselves dependent on the gender or the skin color of the litigants."
30

The statute provides for the determination of whether the defendant acted
willfully to trigger a possible extension of the statute of limitations from two
years to three. It also provides a like determination as to whether liquidated
damages should be awarded. 29 U.S.C. 260. The latter is made expressly a
matter for the trial court's discretion. The statute does not expressly provide for
any other impact of willfulness or for an affirmative finding of nonwillfulness.

31

The jury here found, as mentioned, that Defendant's acts were nonwillful. We
see no reason why that jury determination should not apply to all aspects of the
EPA case and the Title VII case. The statute does not limit its use. It is a
characterization of the reality of the acts and relationship of the parties out of

which the cases arose and it should not be ignored as to important issues tried.
Liquidated Damages
32

The Plaintiff appealed the trial court's finding that the EPA violation was not
such as to authorize the award of liquidated damages under 29 U.S.C. 260,
which are ordinarily ordered by the court. She urges the court did not make
adequate findings and relied only on the jury nonwillful verdict. See Crenshaw
v. Quarles Drilling Corp., 798 F.2d 1345 (10th Cir.). In her brief she argues that
the court did not find expressly "good faith" and "honest intention." She states
in her brief on this point, at page 19, a conclusion which relates more to the
impact of the jury finding of nonwillfulness and intentional discrimination:

33

"The jury's finding that Fort Howard's violation of the Equal Pay Act was
nonwillful shows that Fort Howard proved by a preponderance of the evidence
that it did not act knowingly or with reckless disregard."

34

In our view the "proof" that Defendant did not act "knowingly" is the
equivalent to not intentional.Conclusion

35

Since there was no evidence whatever, direct or indirect, on the basic elements
of Title VII, that is intentional discrimination, and since the showing here made
under the EPA cause only met the very limited and modest requirement there
required, we cannot compare the combination of statutory causes with those
cases concerned with other mixes.

36

We affirm the trial court's judgment in the Title VII cause, but there is more.

The VII Amendment of the Constitution

37

There is to be added a significant factor to the above consideration. This is the

finding by the jury that the EPA violation by Defendant was "nonwillful." This
is, in our view, very significant on the EPA-Title VII sorting because it raises
an issue under the VII Amendment to the Constitution.

38

If this nonwillfulness was a jury finding on a factual element of the cases as to

the relationship and acts of the parties, and we hold that it is, the trial court had
no choice under the VII Amendment but to reach the same result on the
intentional discrimination element of the Title VII action. It was an element of
both cases. Whether the trial judge actually followed the jury finding or
whether the judge independently reached the same determination, or both, does

not matter as the result is the same. The position taken by the jury prevailed.
39

In Skinner v. Total Petroleum, Inc., 859 F.2d 1439 (10th Cir.), this
Constitutional issue is presented in a somewhat different case, a combined trial
of a 1981 claim and a Title VII claim, but the doctrine is examined. The
1981 action sought several remedies including back pay and damages which
required the claim to be tried to a jury, and Title VII remedies to be tried to the
court. The jury awarded $13,945.48 as back pay under 1981. The court
awarded Title VII damages for back pay and "lost benefits" under Title VII in
the amount of $40,000.00. The trial court denied plaintiff's motion to set aside
the jury verdict. The opinion in Skinner in the 1981-Title VII comparison
states:

40

"The strictures of the Seventh Amendment are particularly applicable in a case

where, due to the presence of both equitable and legal issues, trial is both to the
jury and to the court. In such a situation, when a case involves both a jury trial
and a bench trial, any essential factual issues which are central to both must be
first tried to the jury, so that the litigants' Seventh Amendment jury trial rights
are not foreclosed on common factual issues."

41

(Citations omitted.) The essential factual issue was discrimination and both
contemplate a determination on whether it was intentional and whether it was
willful. The opinion in Skinner also states:

42
"Moreover,
the court is bound by the jury's determination of factual issues common
to both the legal and equitable claims. Hunter v. Allis-Chalmers Corp., Engine Div.,
797 F.2d 1417, 1421 (7th Cir.1986); Lincoln v. Board of Regents of the Univ.
System of Ga., 697 F.2d 928, 934 (11th Cir.)...."
43

Thus, as mentioned, the trial court was bound by the jury finding of nonwillfulness made in the EPA action. Thus, whether as a VII Amendment
requirement or independently it was applied in the Title VII action. Again, it
made no difference as the jury verdict was preserved.

44

We must hold that the trial court's conclusion as to liquidated damages in the
EPA action was correct. The trial court was in error in the reduction of attorney
fees. There was, as we have seen, one bundle of evidence and there was
substantial success for the Plaintiff.

45

As to attorney fees, the Plaintiff was the prevailing party. The trial court stated
that "she succeeded on the significant issue of rectifying her past pay disparity."

As mentioned, there was one bundle of proof presented on the three issues.
There was no way to separate the work on the core issue. Plaintiff prevailed on
the basic issue in the three causes. Her attorneys were entitled to be fully
compensated pursuant to Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933,
76 L.Ed.2d 40, Spulak v. K Mart Corp., 894 F.2d 1150 (10th Cir.), and Starrett
v. Wadley, 876 F.2d 808 (10th Cir.), rather than having reductions made for
the Title VII matter and the state law claims. Thus it was not a "total victory."
46

The case is REVERSED as to attorney fees but is otherwise AFFIRMED. IT IS

SO ORDERED.