Employment Practices Decisions Archive: 1937 - 1995, EMPLOYMENT-PRACTICES 52 EPD ¶39,559, International Brotherhood of Electrical Workers (IBEW), Local 494 et al., Plaintiffs v. City of Milwaukee et al., Defendants., (Mar. 17, 1989), (Mar. 17, 1989)

International Brotherhood of Electrical Workers (IBEW), Local 494 et al., Plaintiffs v. City of Milwaukee et al., Defendants.

United States District Court, Eastern District of Wisconsin. No. 87-C-1397, March 17, 1989

Equal Pay Act of 1963

Title VII--Civil Rights Act of 1964

State and Local Government Employment--Retirement and Pension Plans--Female Dispatchers in Separate Plan.

--A local government violated the federal equal pay law by excluding female fire alarm dispatchers from a fire fighters retirement plan and instead placing them in another, coordinated plan that would not be as beneficial to them. The city’s claim that the distinction was based on male dispatchers’ prior certification as fire fighters was not supported by the city’s charter and was not followed when another group was placed in the fire fighters’ plan.

Back references.--¶582 and 1093.25 .

Remedies, Equal Pay Act--Liquidated--Willful Violation.

--Since a city was aware of, and concerned about, potential equal pay violations caused by promoting women to fire alarm dispatcher positions and not placing them in the fire fighters’ pension plan, the city acted willfully when it placed the women instead in another plan. Good faith was not demonstrated by asserted reliance on a court order for placement of paramedics in the other plan.

Back reference.--¶2660.501 .

Remedies, Equal Pay Act--Back Pay--Social Security Payments.

--A refund of social security payments was not ordered for female plaintiffs who were unlawfully excluded from a fire fighters’ pension plan and placed instead under a city’s coordinated plan. The city paid an equal amount in FICA withholding, and the record did not show whether the plaintiffs had qualified for social security benefits.

Back reference.--¶2660 .

Marianne Goldstein Robbins (Previant, Goldberg, Velmen, Gratz, Miller & Brueggeman), Milwaukee, Wisconsin, for Plaintiffs.

Thomas E. Hayes, Special Deputy City Attorney, Bruce D. Schrimpf & Thomas C. Goeldner, Assistant City Attorneys, Milwaukee, Wisconsin, for Defendants.

Reynolds, D.J.: On February 14, 1989, the above-captioned action was tried to the court. Plaintiffs allege that defendants have discriminated on the basis of sex in violation of Title VII, §1983 and the Equal Pay Act. Most of the material facts were stipulated to by the parties. The first 51 paragraphs of the court’s findings of fact consist of the stipulations entered into by counsel on the record at trial. Some stipulations were received subject to relevance objections; however, all stipulations are included in this decision. The court has reviewed the record and heard the arguments of counsel. The court now issues the following decision.

Findings of Fact

1. The court has jurisdiction over this complaint under 28 U.S.C. §1331 and 42 U.S.C. §2000e-5(f).

2. The venue in this action lies in the United States District Court for the Eastern District of Wisconsin.

3. On or about December 31, 1986, plaintiffs filed a written charge of discrimination with the Equal Employment Opportunity Commission and received notice of their right to sue dated December 11, 1987.

4. Plaintiff International Brotherhood of Electrical Workers, Local 494 (“Local 494”) is a labor organization within the meaning of Title VII of the Civil Rights Act of 1964 with offices located at 212 West Wisconsin Avenue, Milwaukee, Wisconsin 53203.

5. At all times pertinent to this complaint, Local 494 acted as the exclusive bargaining representative of Fire Alarm Dispatchers employed by the City of Milwaukee, including plaintiffs Patrice Ripple and Karen Kvidera.

6. Plaintiff Patrice Ripple is an adult female who is a resident of the State of Wisconsin and currently resides at 5216 North 62 Street, Milwaukee, Wisconsin 53218.

7. Patrice Ripple has been employed by the City of Milwaukee Fire Department continuously since April 12, 1982. She held the position of Paramedic from that date until she was promoted to Fire Alarm Dispatcher on July 7, 1986, and has remained in that position to the present date. Patrice Ripple’s seniority date as a Fire Alarm Dispatcher relates back to May 4, 1986, when she commenced training.

8. Plaintiff Karen Kvidera is an adult female resident of the State of Wisconsin and currently resides at 2809 North 48 Street, Milwaukee, Wisconsin 53210.

9. Karen Kvidera has been employed by the City of Milwaukee Fire Department since January 30, 1984, when she was hired for the position of Paramedic. Her adjusted seniority date in that position is February 14, 1984. She maintained that position until she was promoted to the position of Fire Alarm Dispatcher. She initially was promoted to the position of Fire Alarm Dispatcher on July 7, 1986, but at her request was demoted back to the position of Paramedic for several months after her promotion. As a result of another request to promote back to the position of Fire Alarm Dispatcher, Karen Kvidera has a seniority date in the position of Fire Alarm Dispatcher of October 18, 1986.

10. Defendant City of Milwaukee (“City”) is a municipal corporation under the laws of the State of Wisconsin with offices located at 200 East Wells Street, Milwaukee, Wisconsin 53202. At all times pertinent to this complaint, the City of Milwaukee was an employer within the meaning of Title VII of the Civil Rights Act of 1964 and the Equal Pay Act.

11. Defendant Richard P. Seelen is the Chief of the City of Milwaukee Fire Department with offices at 711 West Wells Street, Milwaukee, Wisconsin, 53203.

12. Defendant James Blumenberg is Executive Director of the Board of Fire and Police Commissioners of the City of Milwaukee, a statutory executive board responsible for oversight of the City of Milwaukee Fire Department.

13. Defendants William Gore, Gilbert Jewell, Leonard Ziolkowski, Ronald San Felippo and Patrice Hargarten at all pertinent times herein are members of the Board of Fire and Police Commissioners of the City of Milwaukee, a statutory executive board responsible for oversight of the City of Milwaukee Fire Department.

14. Effective July 7, 1986, female Paramedics Patrice Ripple and Karen Kvidera were promoted to the position of Fire Alarm Dispatcher, a sworn position which was available only to those with prior experience as sworn officers of the Milwaukee Fire Department. They currently hold the classification of Fire Alarm Dispatcher II (“FAD II”).

15. Patrice Ripple and Karen Kvidera perform substantially equal work to that performed by males in the same classification, currently designated FAD II.

16. Prior to being promoted to Fire Alarm Dispatcher, plaintiffs were employed as Paramedics in the City of Milwaukee Fire Department.

17. The work performed by female Paramedics and males holding the classification of Firefighter but serving as paramedics is substantially equal.

18. Males who perform work as paramedics and women in the Paramedic classification staff Paramedic Units interchangeably as Paramedics and, if qualified, as Paramedic Officers.

19. Plaintiffs Patrice Ripple and Karen Kvidera currently hold the classification of FAD II, a sworn position which is held only by those with prior experience as sworn officers of the Milwaukee Fire Department.

20. With the exception of Patrice Ripple and Karen Kvidera, all other FAD IIs are male. The males are also prior Firefighters, with the exception of one who was a Fire Boat Pilot.

21. With the exception of Patrice Ripple and Karen Kvidera, all other FAD IIs are covered by the Milwaukee Employees Retirement System Fire Plan (“Firefighter’s Plan”).

22. Patrice Ripple became a FAD II in May of 1987, and was placed in the third step for that position at the annual rate of $28,857.16. She thereafter has progressed through the annual step increments provided to a FAD II.

23. Karen Kvidera became a FAD II on October 18, 1987, at which time she was placed in the second step at a salary of $27,957.70, and since then has progressed through the annual step increments provided by contract for FAD IIs.

24. Plaintiffs’ Exhibit 7 is the job description for Fire Boat Pilot and is the best available description of the duties performed by that position and is admitted into evidence.

25. Plaintiffs’ Exhibit 9 is a list of former Fire Boat Pilots, their date of appointment and work history, and is admitted into evidence.

26. All Fire Boat Pilots, with the exception of Robert G. Sullivan, were hired directly into the position of Fire Boat Pilot. The position of Fire Boat Pilot was eliminated in approximately 1984.

27. Plaintiffs’ Exhibits 16, 17, 18 and 19 are copies of correspondence leading up to the supplemental order of November 12, 1980. They include Exhibit 16, letter of James Brennan and Maurice Markey to Kevin O’Connor dated April 3, 1980, Exhibit 19, letter from James Mortier, City Negotiator, to Kevin O’Connor and attachments dated April 7, 1980, Exhibit 18, letter from Maimon Schwartzchild to Maurice Markey dated July 22, 1980, Exhibit 17, letter from James Blumenberg to Kevin O’Connor dated September 5, 1980. These exhibits are admitted into evidence.

[Paramedics]

28. On September 9, 1980, the City of Milwaukee passed a resolution establishing the Paramedic position. A copy of the resolution is admitted into evidence as plaintiffs’ Exhibit 15.

29. Plaintiffs’ Exhibit 20 is a Paraamedic Curriculum and attachments which are used alike by female paramedics and males assigned to Paramedic Units who are classified as Firefighter/Paramedics, and is admitted into evidence over relevancy objections by the defendants.

30. Plaintiffs’ Exhibit 22 is a Paramedic Curriculum and attachments which are used alike by female Paramedics and males assigned to Paramedic Units who are classified as Firefighter/Paramedics, and is admitted into evidence over relevancy objections by the defendants.

31. Plaintiffs’ Exhibit 23 is a Paramedic Curriculum and attachments which are used alike by female Paramedics and males assigned to Paramedic Units who are classified as Firefighter/Paramedics, and is admitted into evidence over relevancy objections by the defendants.

32. Plaintiffs’ Exhibit 44 is the court order in United States v. City of Milwaukee [22 EPD ¶30,696 ] dated 12/14/79, and is admitted into evidence.

33. Plaintiffs’ Exhibit 45 is a supplemental order in United States v. City of Milwaukee, dated November 12, 1980, and is admitted into evidence.

34. Plaintiffs’ Exhibit 46 is a consent decree entered on October 17, 1974, and is admitted into evidence.

35. There are five Paramedic Units in the City of Milwaukee. Each is staffed by two Paramedics and a Paramedic Officer. Alternately, when necessary, units may be staffed by one Paramedic, one Paramedic Officer and one Emergency Medical Technician.

36. A Paramedic Unit provides advanced life support services. Each is stationed at a fire house and staffed 24 hours a day. Paramedics and Paramedic Officers work a 24-hour on, 48-hour off shift schedule.

37. All female Paramedics were hired without prior experience as a Firefighter and are within the exclusively female classification Paramedic. Currently female Paramedics receive the Coordinated Plan of the Employees’ Retirement System of the City of Milwaukee (“City’s Coordinated Plan”).

38. Males and females serve as paramedics interchangeably. On a given day, a Paramedic Unit may be staffed by all females, all males, or a combination of males and females.

39. All male paramedics are Firefighters and participate in the Firefighter’s Plan.

40. Both men and women may serve as Paramedic Officers and have substantially equal duties when they do so. However, the female holds the official job title of Paramedic Officer and receives the City’s Coordinated Plan while the male holds the formal title of Fire Paramedic Officer and is part of the Firefighter’s Plan.

41. Females serving as paramedics have the job title of Paramedic. Males serving as paramedics hold the job title of Firefighter. In common usage, both males and females assigned to Paramedic Units are called paramedics or meds. The numerical time card designation for work performed by officers assigned to med units is the same for males and females, but is different from the numerical designation for firefighters.

42. The classification of Paramedic within the Fire Department has been maintained since its creation in 1980 to the present as an exclusively female classification and has been advertised as such.

43. Males who perform work as paramedics have transferred from the position of Firefighter and retain the Firefighter classification designation.

44. The work performed by female Paramedics and males holding the classification of Firefighter but serving as paramedics is substantially equal.

45. Firefighters working as paramedics may transfer back to the function of firefighting if they request transfer and it is approved by fire department management.

46. Firefighters who perform work as paramedics and women in the Paramedic classification staff Paramedic Units interchangeably as Paramedics and, if qualified, as Paramedic Officers.

47. On October 17, 1974, December 14, 1979 and November 12, 1980, this court entered certain orders respecting the hiring of women in the Milwaukee Fire Department. Additionally, the December 14, 1979 order stated:

It Is Therefore Ordered that defendants:

1. Permit women to apply for positions as paramedics within the Milwaukee Fire Department and to be hired and trained specifically for such positions if they meet valid qualifications without first passing the training academy course of firefighters.

2. Submit reports to the court and the plaintiff on the implementation of these actions at least at six-month intervals and in accordance with paragraph 17(b) of the consent order of October 17, 1974.

48. On November 12, 1980, this court entered an order respecting the treatment of Paramedics only previously trained as Firefighters with respect to compensation and benefits. Paragraph 4 of the November 12, 1980 order stated:

Paramedics shall receive the retirement, disability, and death benefits of employees under the Coordinated Plan of the Employees’ Retirement System.

[Benefit Plans]

49. Paramedic FAD IIs and Fire FAD IIs of the Dispatching Bureau of the Milwaukee Fire Department all perform work requiring substantially similar skill, effort and responsibility under identical working conditions. Currently, there are a total of 7 individuals in the Alarm Bureau who are civilians, and have never been employed as either Firefighters or Paramedics in the Milwaukee Fire Department. Four of those individuals are males, and three of those individuals are females. All of the individuals employed in the Dispatching Bureau of the Milwaukee Fire Department who have not previously served as Firefighters, Fire Boat Pilots or Paramedics, are covered under the City’s Coordinated Plan, which is the same plan as set forth in paragraph 4 of the court’s order of November 12, 1980. Male Fire FAD IIs are members of the Firefighter’s Plan. Firefighters and Fire Boat Pilots who are serving as FAD IIs in the Dispatching Bureau were members of the Firefighter’s Plan prior to entering the Alarm Bureau. No one who becomes a FAD II has become a member of the Firefighter’s Plan for the first time. Those individuals hired directly from non-firefighting and non-paramedic positions who are currently functioning in the Dispatching Bureau and are referred to as “civilians,” have been placed by the City in the City’s Coordinated Plan by virtue of their employment within the Dispatching Bureau.

50. Those individuals under the City’s Coordinated Plan receive benefits as set forth in defendants’ Exhibit 2, and in addition, obtain social security benefits which are coordinated with their pension benefits. Those individuals who obtain Firefighter benefits under the Firefighter’s Plan receive no social security benefits through their employment with the City. The city matches the employees’ contribution if they are under the Social Security System while employed by the City.

51. If on examines benefits alone, on average, the Firefighter’s Plan’s benefits have a greater value than the City’s Coordinated Plan’s benefits.

52. Plaintiffs Karen Kvidera and Patrice Ripple are not Civilian Fire Alarm Dispatchers. The decision to civilianize the Alarm Bureau was made after plaintiffs had become FAD IIs. FAD IIs are not the same as Civilian Dispatchers. Civilian Dispatchers will function with computer assistance, and FAD IIs are relied upon for their field experience in making emergency decisions until the computers are in place.

53. The charter ordinances found in Chapter 36 of the Milwaukee City Charter provide that Firemen include Fire Boat Pilots and Fire Alarm Dispatchers receive the Firefighter’s Plan. Males hired directly into the position of Fire Boat Pilot were not trained as Firefighters, but still received the Firefighter’s Plan.

54. The City of Milwaukee was aware of the potential equal pay problem created by maintaining an exclusively female class of Paramedics who received lesser benefits than the male class of Paramedics who received lesser benefits than the male Fire Paramedics who performed substantially the same job. Firefighters serving as paramedics are not called upon to perform any firefighting duties. The City has considered modifying the duties of the male paramedics to justify the difference in pension benefits.

55. The City of Milwaukee was aware of the potential equal pay problem created when female Paramedics were promoted to the position of Fire Alarm Dispatcher without being placed in the Firefighter’s plan. The City acknowledged this equal pay problem internally, and in collective bargaining with plaintiff Local 494; however, the City has refused to remedy the problem.

Conclusions Of Law

1. The City of Milwaukee is an employer covered by the Equal Pay Act, 29 U.S.C. §206(d)(1) . The Equal Pay Act was enacted in 1963, and pension benefits are within the scope of the Equal Pay Act. 29 C.F.R. §1620.10 -12.

2. The City of Milwaukee has violated the Equal Pay Act by providing men and women who perform substantially the same job and hold the same job title of Fire Alarm Dispatcher II with different pension benefits. The new civilian dispatching position is irrelevant because it is different from the FAD II position, and was created after plaintiffs were promoted to the FAD II position and after this lawsuit was filed.

3. The court finds that the City of Milwaukee acted willfully in this discrimination. The City was arare of, and concerned about, the potential equal pay violation caused by promoting the plaintiffs to the FAD II position and not placing them in the Firefighter’s Plan. The City has raised the defense that it acted in good faith, relying on this court’s November 12, 1980 order approving the placement of Paramedics in the City’s Coordinated Plan instead of the Firefighter’s Plan. However, this court’s order only addressed the Paramedic position and does not apply to the FAD II position. Moreover, substantial evidence was produced to show that, since 1980, the City has been concerned that the placement of female Paramedics in the City’s Coordinated Plan created an Equal Pay Violation. The City has even explored ways to differentiate the duties between the male and female paramedics to justify the difference in benefits.

4. The City of Milwaukee also defends against this action by claiming that the pension classification of FAD IIs is determined by the employee’s prior pension classification in the fire department. The City contends that, under the Charter, only employees trained as firefighters can receive the Firefighter’s Plan. This position is not clearly supported by the City’s Charter, and was not followed when Fire Boat Pilots were placed in the Firefighter’s plan. Moreover, the plaintiffs’ prior classification is based on sex because the City of Milwaukee, over objections by the Department of Justice and without court approval, chose to maintain the classification of Paramedic, from which plaintiffs were promoted, as an exclusively female position. Riordan v. Kempiners, [44 EPD ¶37,418 ] 831 F.2d 690, 699 (7th Cir. 1987). Only sworn officers could be promoted to the FAD II position, and the female Paramedic classification was the only sworn position in the fire department which was not included in the Firefighter’s Plan.

5. Having found that the City of Milwaukee has violated the Equal Pay Act by willfully compensating men and women performing the same job differently, the court also finds that the City of Milwaukee has violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§2000e-2000e-17. Orahood v. Board of Trustees, etc., 645 F.2d 651, 654 (8th Cir. 1981); Grann V City of Madison, [34 EPD ¶34,517 ] 738 F.2d 786, 788 n.1 (7th Cir.) cert. denied, [35 EPD ¶34,701] 469 U.S. 918 (1984).

6. Plaintiffs Karen Kvidera and Patrice Ripple have also established that the City of Milwaukee deliberately discriminated against them because of their sex in violation of §1983 and the Equal Protection Clause of the Fourteenth Amendment. The City chose to establish an exclusively female class of Paramedics from which plaintiffs were promoted. The City knew that maintaining this exclusively female class created potential equal protection problems, and yet did nothing to remedy the situation. When plaintiffs were promoted to the position of Fire Alarm Dispatcher, the City relied on their previous classification as female Paramedics to deny them membership in the Firefighter’s Plan. During collective bargaining with plaintiff Local 494, the union representing the Fire Alarm Dispatchers, the City steadfastly refused to place plaintiffs Kvidera and Ripple in the Firefighter’s Plan. The City acknowledged that its failure to place plaintiffs Kvidera and Ripple in the Firefighter’s Plan while providing all other Fire Alarm Dispatcher IIs with the Firefighter’s Plan created potential equal protection problems.

[Remedies]

7. This court will enjoin defendant City of Milwaukee from continuing to discriminate against plaintiffs Kvidera and Ripple, and will order defendant City of Milwaukee to enroll plaintiffs Kvidera and Ripple in the Firefighter’s Plan effective February 14, 1989. This court will award to plaintiff Kvidera past pension benefits in the amount of $2,671 which covers benefits lost by Kvidera from the time she was promoted to the position of Fire Alarm Dispatcher until the present. This court will award to plaintiff Ripple past pension benefits in the amount of $3,871 which covers benefits lost by Ripple from the time she was promoted to the position of Fire Alarm Dispatcher until the present. The court will also award liquidated damages to plaintiffs Kvidera and Ripple in the amounts of $2,671 and $3,871 respectively, as well as costs and attorney’s fees. See 29 U.S.C. §216 and 42 U.S.C. §2000e-5.

8. At trial plaintiffs asked for damages dating back to their employment as Paramedics with the Milwaukee Fire Department. The court will not award past pension benefits covering the time plaintiffs spent as Paramedics because plaintiffs’ complaint did not address an equal pay violation in the Paramedic position.

9. Plaintiffs have also asked the court to award past damages to cover the amount of FICA payments that plaintiffs made while members of the City’s Coordinated Plan. The court will not order the City to refund plaintiffs’ FICA payments. The court notes that the City has also paid an equal amount in FICA withholding. Moreover, the record does not establish whether plaintiffs have qualified for social security benefits and, it would be improper for the plaintiffs to receive a windfall. This court will not speculate as to whether or not the FICA payments benefit the plaintiffs, and will not order a refund.

[QR]It Is Therefore Ordered that:

1. The City of Milwaukee is permanently enjoined from discriminating against plaintiffs Karen Kvidera and Patrice Ripple because of their sex. Plaintiffs Patrice Ripple and Karen Kvidera are to be accorded the same compensation and benefits as all other Fire Alarm Dispatcher IIs.

2. Effective February 14, 1989, plaintiffs Karen Kvidera and Patrice Ripple are to be enrolled in the Milwaukee Employees Retirement System Fire Plan.

3. Defendant City of Milwaukee shall pay to plaintiff Patrice Ripple past pension benefits in the amount of $3,871, and liquidated damages in the amount of $3,871.

4. Defendant City of Milwaukee shall pay to plaintiff Karen Kvidera past pension benefits in the amount of $2,671, and liquidated damages in the amount of $2,671.

5. Defendant City of Milwaukee shall pay plaintiffs’ costs and reasonable attorney’s fees.

6. Within ten (10) days from the date of this order, counsel for plaintiff shall serve and file an attorney’s fees petition. Defendants shall have ten (10) days to serve and file any objections to the amount of fees claimed.