#### Albert EAKIN et ux. v. ASCENSION PARISH POLICE JURY et al.

No. 9454.

Court of Appeal of Louisiana, First Circuit.

June 29, 1973.

Rehearing Denied Sept. 25, 1973.

Writ Granted Nov. 16, 1973.

Miriam T. Attaya and John F. Robi-chaux, Gonzales, for appellants.

John A. Lieux & A. J. Kling, Jr., Gonzales, for appellees.

Before LOTTINGER, ELLIS and CRAIN, JJ.

LOTTINGER, Judge.

This is a suit for past wages and damages filed by Albert Eakin and his wife, Mrs. Joyce Eakin for the benefit of the community of acquets and gains existing between them. The suit is for the alleged violation of the Federal Fair Labor Standards Act of 1938, as amended, and the defendant is the Ascension Parish Police Jury and the East Ascension General Hospital. Certain exceptions were filed which were referred to the merits and, after trial on the merits, the Lower Court rendered judgment in favor of defendants and against petitioners dismissing petitioner’s action. Petitioners have taken this appeal.

The Fair Labor Standards Act of 1938, 29 U.S.C.A. Section 206(d)(1) provides as follows:

> “No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment 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 re*275sponsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a senority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex . . ."

The record reveals that Mrs. Eakin became employed by the East Ascension General Hospital on July 25, 1968, as a nurse’s aide. She was paid the starting wage of $1.30 an hour and was maintained at that wage rate through November 26, 1968 when her rate was raised to $1.45 per hour. Again on April 16, 1970, Mrs. Eak-in’s hourly wage was raised to $1.57j/2 per hour; and on November 27, 1968 their hourly rate was raised to $1.70 where it remained until their termination of employment during the year 1969.

The record also shows that Edward Carter, who was initially employed as a janitor and after a couple of months changed to the position of male orderly and Richard Miles, a male orderly, were both hired on July 25, 1968, when the hospital opened, at an hourly rate of $1.45 an hour; and on November 27, 1968 their hourly rate was raised to a $1.70 where it remained until their termination of employment during the year 1969.

The differential in the hourly rate for the orderlies and nurse’s aides is the basis of this lawsuit. Petitioners contend that the job of orderly and nurse’s aide were identical and that they performed identical services, that she was, therefore, discriminated against because of her sex. Under the provisions of the Fair Labor Standards Act she claims she was underpaid the sum of $706.47 which amount she claims plus a similar amount as liquidated damages as well as reasonable attorney fees. By amended petition, the petitioner added overtime to her claim.

The Lower Court held that the petitioners failed to sustain their burden of proving any discrimination as against the petitioners because of her sex, saying:

> “The burden is on the plaintiff to prove that. There’s not a shred of evidence to show that because of sex anything happened in this law suit. The only thing that was shown, there was some testimony, and it certainly wasn’t a propounderous of the testimony, that shows that the duties of the two classes of employees were the same. But that just wasn’t, it wasn’t proven, no. 1, that any distinction was on account of sex and, no. 2, your own witnesses show that the duties weren’t the same. Your own witnesses testified that the aide performed in the OB section whereas the orderlies didn’t. Now, maybe the priority’s in reverse; maybe the nurse’s aides ought *to be*getting more than the orderlies; I’m not here to dispute that. But what you’ve got to show by your own allegations is that because of sex that was what resulted.”

A reading of the testimony shows certainly that petitioners failed to sustain the burden of proving that petitioner was discriminated against by the hospital because of her sex. Although there are many of the duties of the orderlies and nurse’s aides that are similar this was so because they both worked in the hospital giving aid or treatment and assistance to the patients in the hospital. Mrs. Jo Ann Brown, a practical nurse who worked during the same period as the petitioner testified that the nurse’s aides worked in the nursery regularly however she could only remember one time when she saw an orderly in the nursery. She observed the nurse’s aides regularly working in the OB section of the hospital whereas the orderlies did not work in this section. Her testimony was further to the effect that if a duty arose requiring any sort of heavy lifting and the alternative was present between an aide and an orderly that the orderly would be required to do the lifting rather than the aide.

*276Mrs. Eakin herself testified that while she was working at the hospital she was required to go to classes whereas she does not remember any of the orderlies being required to go to these classes. She testified herself that she had never seen an orderly working in the OB or nursery sections of the hospital. She testified that the orderlies were required to catheterize the male patients while the nurse’s aides never did perform this treatment.

Several of the witnesses testified that the orderlies were placed on the night shifts because of security reasons. Mrs. Betty Louis Tucker, the Director of Nurses at the hospital, testified that the orderlies do what aides do plus more. She stated that they do heavier work. And that they employ them on the three to eleven and eleven to seven shift for the specific reason for security. In this regard, she testified :

> “We use them on that shift for, I think for the security of the nursing service personnel. We need a man around on that shift. We lock the doors and we do answer emergency room buzzers and of course you never know what you are going to find out by the emergency room door. So wc have an orderly to, around for that reason.”

She further testified that the ratio of orderlies and nurse’s aides were different because it doesn’t take as many orderlies as it does nurse’s aides. She said that on a job that an orderly might do, it might take two aides to do the same job.

The record amply supports the findings of the Lower Court and we cannot say that the judgment is manifestly erroneous.

For the reasons hereinabove assigned, the judgment of the Lower Court will be affirmed, all costs of this appeal are to be paid by petitioner.

Judgment affirmed.

ON APPLICATION FOR REHEARING

ELLIS, Judge

(dissenting):

After reviewing the application for rehearing and the authorities therein cited, I am of the opinion that the plaintiff has proved the case to the extent required by law, and believe a rehearing should be granted.

According to the federal authorities, which must govern in this case, a plaintiff proves a prima facie case when it is shown that the work done by the men and women was substantially equal, rather than identical; and that the women were paid at a lower rate than were the men. Shultz v. Wheaton Glass Company, 421 F.2d 259 (3 Cir. 1970). It then becomes incumbent on the defendant to show that the wage differential is based on factors other than the sex of the employees. In this case, the defense is that the orderlies do not perform the same duties as the aides.

The record in this case shows that there were, during the period in question, only two orderlies employed. When no orderly was on duty, all of his duties would be done by the aides. When orderlies were on duty, the only things that they did which were not routinely done by aides was the cathe-terization of male patients. Aides worked in the obstetrics department of the hospital, and orderlies, as a general rule, did not. Orderlies generally worked the evening and night shifts, so that there would be a man on duty in the hospital for what is described as “security reasons”. However, no one testified that they performed any specific duties in connection with security.

In the case of Shultz v. Brookhaven General Hospital, 305 F.Supp. 424 (D.C.1969), a case virtually identical with this one, the court found a violation of the Equal Pay Act, holding that “insubstantial difference in the skill, effort and responsibility requirements of particular jobs should be ig*277nored. The job requirements are to be viewed as a whole.”

It seems apparent that there is no difference in the skill required of orderlies and aides. It also seems clear that the duties of the orderlies relative to male patients are duplicated by those of the aides relative to female patients. With respect to lifting heavy objects, patients, the testimony is to the effect that when aides were called on to perform this task, it might take two of them to perform what one orderly might do.

In evaluating cases of this type, the Federal Courts apply an “equal effort” criteria. In Hodgson v. Brookhaven General Hospital, 436 F.2d 719 (5th Cir. 1970), that doctrine was expressed as follows:

> “As the doctrine is emerging, jobs do not entail equal effort, even though they entail most of the same routine duties, if the more highly paid job involves additional tasks which (1) require extra effort, (2) consume a significant amount of the time of all those whose pay differentials are to be justified, and (3) are of an economic value commensurate with the pay differential. We are persuaded that this approach to the application of the statutory ‘equal effort’ criterion is in keeping with the fundamental purposes of the Equal Pay Act, and adopt it here. Employers may not be permitted to frustrate the purposes of the Act by calling for extra effort only occasionally, or only from one or two male employees, or by paying males substantially more than females for the performance of tasks which command a low rate of pay when performed full time by other personnel in the same establishment.”

I do not believe that this record justifies the conclusion that orderlies performed tasks requiring greater skill or that they expended significantly more effort in carrying out their duties. I believe the differences between the two jobs are insubstantial, and that the aides are entitled, under the law, to equal pay.

A rehearing should be granted.