Full opinion text
MEMORANDUM OPINION AND ORDER BATTISTI, Chief Judge. The Secretary of Labor brought this action on May 24,1973, pursuant to Section 17 of the Fair Labor Standards Act of 1938 (Act of June, 1938, c. 676, 52 Stat. 1060, as amended, 29 U.S.C. § 201 et seq.), alleging that the defendant J. C. Penney Company, Inc., violated the Act’s equal pay provisions (29 U.S.C. § 206(d)) by maintaining an unlawful wage differential at its Great Lakes Mall, Mentor, Ohio store between certain of its men and women employees. The Secretary seeks back wages for female salespersons, department heads, and a seamstress at the Great Lakes Mall store for the period from May 24, 1970 to the present, and an injunction against the company enjoining future violations of the equal pay provisions of the Fair Labor Standards Act at all J. C. Penney stores nationwide. This Court has jurisdiction under 29 U.S.C. Sec. 217. The case was tried to the Court sitting without a jury on various dates between March 29,1977 and November 4,1977. The Court, having considered the record in this case, including the pleadings, the out-of-court testimony, and oral testimony in court, the exhibits introduced by both parties, the statements of counsel, and all the files, records, and proceedings herein, does hereby make and enter its Findings of Fact and Conclusions of Law and Order for Judgment as follows, in accordance with Rule 52 of the Federal Rules of Civil Procedure. FINDINGS OF FACT 1. Defendant, J. C. Penney Co., Inc., is a Delaware corporation qualified to do business in Ohio and is engaged in the operation of a nationwide chain of approximately 1700 stores, including the Mentor Store. The parties agree that the defendant is an enterprise engaged in commerce within the meaning of sections 3(r) and 3(s)(l) of the Act, and that it is an employer having employees subject to section 6 of the Act. Penney’s corporate executive offices and headquarters are located in New York, New York. The New York headquarters supervises the activities of the Penney Company’s retail stores through five regional administrative subdivisions, with headquarters in Pittsburgh, Pennsylvania; Atlanta, Georgia; Dallas, Texas; Rolling Meadows, Illinois; and Buena Park, California. The Mentor store is located in the Eastern region, with headquarters in Pittsburgh, Pennsylvania. 2. There are six types of J. C. Penney Stores: (1) softline or M.A.P. (merchandise assistance planning); (2) soft line; (3) limited line (food); (4) limited line (checkout); (5) limited line; and (6) full line. “The Penney store at Mentor is a full line store, which means that it carries a relatively complete assortment of merchandise sold by the company, specifically including deliverable lines such as home electronics, tires, batteries, and automotive equipment. The same job descriptions, prepared at national headquarters, are applicable to every store in the company. The particular jobs in existence in any one store will depend on several factors, including the store’s volume of business. 3. For the purposes of this lawsuit, the Mentor Store is the “establishment” within which jobs and wages are being compared. 29 C.F.R. § 779.23. The Secretary did not submit or offer any evidence respecting any other single establishment in the Penney chain apart from certain "snap shot” statistics dealing collectively with all Penney stores nationwide regardless of the size or type of store and the positions used therein. 4. The J. C. Penney’s New York headquarters closely regulates the operation of its 1700 odd stores by issuing policy and procedure manuals and bulletins. Little deviation is permitted without the prior approval of officials of the regional or national headquarters, and an audit of each of the stores, at least once a year, reviews every phase of store operations, including personnel matters. 5. The Penney Company has been aware of the applicability of the Fair Labor Standards Act and its equal pay provisions to its operations for the time period pertinent to this lawsuit. Local stores are instructed how to comply with the FLSA, including its equal pay provisions. Since 1961, local store managers have been forbidden to settle alleged FLSA violations independently; any such alleged violations must be negotiated through the New York headquarters which will direct store managers to raise wages which are in violation of the Act if necessary. New York headquarters has also issued to the local stores through the Digest of Personnel laws its views of which jobs in the stores are equal within the meaning of the Equal Pay Act and has represented to the local stores that compliance with the pay scales and job classifications issued by New York headquarters will result in compliance with the Equal Pay Act. It appears that on the national level, Penney has made a good faith effort to comport with requirements of the Act. The Associate Solicitor of Labor advised the Company in 1970 that as to the then current job classifications for salespersons, the Department did not feel they would be relied upon as evidence of compliance with the Equal Pay Act. See, however, Findings of Fact 40-43, infra. 6. Prior to 1971, the Mentor store classified all salespersons, both male and female, in three classifications, as either “salespersons” (since redesignated “customer assistants”) position code 021; “head salespersons” (since redesignated “merchandising assistants”) position code 242; or “Selling Specialist A” (position code 077). (The 077 position is not under comparison in this lawsuit.) In late 1971, the Mentor Store added a fourth classification of salesperson, the “Selling Specialist B” (position code 076). The 021,242, and 076 salespersons are paid a flat hourly rate and no commissions, except for the salespersons in cosmetics who are classified as 021 or 242, and who receive a 5% commission on their sales in addition to their base hourly pay. The range of hourly wages for these three classifications is set by “The Schedule of Hourly Rate Structures,” (Plaintiff’s Exhibit 8). This schedule divides the Penney hourly rated work force into 10 labor grades, called position levels, which provide for progressively higher over-lapping pay ranges. The 021 positions are in grade 1, which, as of August 1977, was assigned a rate range from $2.40 to $3.12 per hour; the 242 positions are in Labor Grade IV, which was assigned a range of from $2.91 to $3.99 per hour; and the 076 positions are in Labor Grade VI, which was assigned a range of from $3.39 to $4.71 per hour. The Penney company claims that the 076 positions require greater skill, effort, and responsibility than the 021 and 242 positions, thus justifying their higher pay. 7. Certain selling areas in the store, referred to herein as “021 areas,” are authorized to use only the lower-paid 021 and 242 selling positions; other selling areas, referred to as “076 areas,” are authorized to use the higher paid 076 position in addition to the 021 position. Some persons classified as 021 sell in the 076 areas. Defendant claims that these salespersons are “in training” for the 076 position. The Secretary claims that the work required of persons in all these job classifications is substantially equal within the meaning of the Act because its performance requires substantially equal skill, effort, and responsibility and it is performed under similar working conditions in the following fourteen selling or merchandise areas at the store. Position Authorized under Merchandise Area the Penney System Paint & Hardware (merchandising departments 1081,1083,1084 & 1087) 021 & 076 Shoes (merchandising department 001) 021 & 076 Photograph (merchandising department 1062) 021 & 076 Women’s Dresses (merchandising department 1022) 021 & 242 Bridal (merchandising subdivision 226) 021 & 076 Women’s Coats & Suits (merchandising department 1026) 021 & 076 Sporting Goods (merchandising departments 1060 & 1061) 021 & 076 Cosmetics (merchandising subdivision 108) 021 & 242 Lingerie and Robes (merchandising departments 1011 & 1012) 021 & 242 Women’s Sportswear (merchandising department 1025) 021 & 242 9. Infants & Toddlers (merchandising department 1034) 021 & 242 10. Girls (merchandising department 1030) 021 & 242 íi. Boys (merchandising department 1040) 021 & 242 12. Men’s Accessories (merchandising department 1050) 021 & 242 13. Piece Goods (merchandising department 1070) 021 & 242 14. Curtains & Draperies (merchandising department 1073) 021 & 242 8. Both males and females are hired into each of the job classifications. There is evident a greater representation of males in the higher paying 076 areas, though any inferences that that may raise are beyond the scope of the Equal Pay Act. 9. The primary responsibility of salespersons in all areas under comparison is to assist customers in selecting merchandise. Salespersons are expected to stop whatever else they are doing, whether stockwork or housekeeping, to help a customer requiring assistance. All salespersons in the selling areas under comparison, regardless of their classification as 021’s, or 076’s, or 242’s, are responsible for stockwork and bookwork, which includes filling in stock, moving stock, making price changes on stock, counting stock, changing displays in their selling areas, and keeping their assigned areas straightened and in order; housekeeping, which includes dusting, straightening, and cleaning glass counters and fixtures; training or acclimating salespersons new to the selling area, to its procedures and merchandise; and reporting customer reaction to the merchandise to the supervisors of their selling areas. 10. The defendant claims that the 021 selling areas have their displays and fixtures arranged to promote self-service, whereas the displays and fixtures of the 076 areas presuppose sales assistance. Due to this fixturing and to the nature of the merchandise, defendant claims the 021 selling areas do not require the same exercise of selling skill by the salesperson. The plaintiff argues that it is the customer, rather than the merchandise or the fixtures of the selling area, who determines whether a particular sale is self-service and whether or not the salesperson is called upon to render assistance. The record shows that in no selling area under comparison at the Mentor Store is all merchandise available without exception to be selected by the customer and brought to the cash register for ringing and wrapping without some intervention by the salesperson; conversely, there is no area at issue where all merchandise must be secured for the customer by a salesperson. Customers may self-select expensive items such as lawnmowers in such 076 selling areas as Hardware, and they may require considerable assistance with inexpensive items such as bras or infants’ pajamas in such 021 selling areas as Girls’ and Infants’. Nevertheless, the Court finds that even where the amount of customer assistance is the same, the type of assistance may differ from one area to another, demanding varying selling skill and effort on the part of the salesperson. 11. The plaintiff argues that while the percentage of time each salesperson spends in customer assistance varies from selling area to selling area and salesperson to salesperson, salespersons in all the selling areas under comparison are required to possess selling skill — that is, to be able to sell the merchandise, maximize sales in the area, and assist customers so that they feel they have made a wise purchase. The defendant counters that it is more difficult or demanding — thus requiring greater skill, effort, and responsibility — to “sell the products in the 076 areas.” Representative of the evidence on this issue is the testimony of Suzanne Goertz, who compared her experience selling in Boys’, an 021 area, and Cameras, an 076 area. It was apparent that Mrs. Goertz perceived a difference between the two jobs. When asked by the plaintiff whether her “duties changed” when she transferred from one area to another, Mrs. Goertz responded: “No — well, yes, they did. The main duty still was the same. It was selling the products.” Tr. 1820. On cross-examination, the defendant expanded on this answer. Q. (Counsel for Penney) Is the merchandise in the [076] camera department store more complex than [021] boys clothing? A. Yes. Q. And is there a need — is there a greater variety of features and models and manufacturers which must be described to a customer in the [076] camera department? A. Yes. Q. You do draw a sharp distinction between the [076] camera department and the [021] boys’ department? A. Definitely. Q. So that even if you did provide assistance to both the customers in the [021] boys’ department and the customers in the [076] camera department, it was a different kind of assistance, was it not, Mrs. Goertz? A. Yes. Q. And drawing more upon your knowledge of the merchandise in the [076] camera department, didn’t it? A. Yes. Q. And would you in the boys’ department wait on customers? A. Yes. Q. And give information as to merchandise? A. Yes. Q. And you would attempt to persuade the customer to buy additional and higher-priced merchandise? A. Yes. Q. And to perform cashier and wrapping duties? A. Yes. Q. And to perform stockkeeping and bookwork duties? A. Yes. Q. And straightening merchandise? A. Yes. Q. And assisting in stock counts? A. Yes. Q. And assuring that the work area is kept neat? A. Yes. Q. And solicit charge applications? A. Yes. Q. And assist in the training of associates? A. Yes. Q. And Mrs. Goertz, didn’t you do those same things in the camera department? A. Yes. Q. But there was a difference? A. Yes. Q. And the difference was in the type of assistance that was offered to the customer? A. Right. Tr. at 1860-62 (emphasis added). Q. (Counsel for Penney) Mrs. Goertz, isn’t the merchandise in the [076] camera department more complex than the merchandise in the [021] boys’ department? A. Yes, it is. Q. And aren’t the customers in the camera department more discerning than customers in the boys’ department? A. Yes. Q. And are not associates required to be more knowledgeable and have more detailed knowledge and use salesmanship to persuade customers in the camera department as opposed to the boys’ department? A. Yes. Q. And what was the principal function, your principal function? A. Selling. Q. And was that not the same in the broad sense in both the boys’ and the camera departments? A. Selling, yes. Q. But there was a difference in kind? A. Yes. Tr. at 1868-69. 12. The proportion of the work week which salespersons spend in performing their primary duties of selling and their secondary duties of performing book and stockwork, housekeeping, training salespersons new to the selling area, and reporting customer reaction, vary from salesperson to salesperson and department to department. The variations in time spent are not determinative of the amount of skill, effort, and responsibility required to perform the sales jobs under comparison. 13. Similarly, the details of the sales effort vary from department to department, as a direct result of the differences in the merchandise sold. Thus, in Lingerie, Junior Sportswear, Women’s Dresses and Bridal, Coats and Suits, Men’s Furnishings and Accessories, Infants, Boys, and Girls, salespersons bring garments to the fitting rooms to assist the customer, measure customers to determine sizes, advise as to fabric care, and offer opinions as to the proper fit of the garment. They also recommend gift items and sizes. In Curtains and Drapes, salespersons advise customers as to fabric care, window measurement for drapes, figuring of drape size, coordination of colors and material with the customer’s decor, what rods and hardware are suitable for particular curtains and drapes, how to hang drapes and how the drapes are constructed. In Patterns and Fabrics, salespersons cut materials, measure customers for pattern size, and advise customers as to fabric care, how much material is required for patterns, what types of fabrics are appropriate for particular uses, what size pattern should be purchased, how patterns should be altered, and what notions are necessary for particular patterns. In Hardware and Paints, salespersons advise as to how particular tools and lawn equipment are operated, what electrical parts are suitable for particular customers needs, and mix paint. In Shoes, salespersons measure for size and advise on fit. In Sporting Goods, salespersons fill out government gun and ammunition forms and drill finger holes in bowling balls. In Cameras, salespersons demonstrate camera operation and make minor repairs to cameras. In Infants, salespersons compare the features of furniture in the department and such items as infant auto seats, arrange for delivery and help assemble layettes. In Cosmetics, salespersons coordinate different types of makeup for the customers and determine appropriate products for particular skin care problems. 14. The level of skill necessary to perform effectively varies considerably from one area to another. Virtually every witness who described the assistance required in an 021 or 076 merchandise area testified that: (i) the customer assistance in the 021 areas is generally routine and repetitive primarily involving cashiering and wrapping, locating merchandise, color coordinating, and merchandise, tasks requiring little skill from the salesperson; (ii) in contrast, the customer assistance in the 076 merchandise areas is personal and specialized, requiring training or experience, a thorough understanding of the merchandise, and the communication of that knowledge to the customer in an effort to persuade the customer to buy; (iii) the products sold in the 076 areas are generally more complicated structurally and technically than those sold in the 021 areas, requiring the salesperson to possess and exercise a greater degree of skill to be able to answer routine questions about the products; and (iv) the products sold in the 076 department, with certain exceptions noted infra, tend to be of a higher price and therefore to require the salesperson to exercise a greater degree of salesmanship, or selling skill, to convincé the customer to buy. Therefore, the Court finds that the plaintiff has not met its burden of proving that the 021 jobs and the 076 jobs under comparison are substantially equal in skill. 15. The effort required by all salespersons under comparison consists of the physical effort of standing, walking, and carrying and the mental effort of waiting on customers, cashiering, wrapping, and filling out forms. The plaintiff and defendant agree that there is no significant difference in the physical effort required of all salespersons at Penneys. Although the plaintiff’s expert suggested that the mental effort of cashiering for many customers might be equal to the mental effort of providing a long and detailed technical explanation of a product, there is insufficient evidence on this point to enable the Court to find that all salespersons must exert the same degree of mental effort to perform their jobs in the various departments. 16. The responsibility of all the salespersons under comparison is to sell the product, make sure that the product is accurately represented to the customer, care for merchandise properly, keep records accurately and make change correctly. However, the evidence showed that the more complicated products sold in the 076 areas generally change more often and in more technical detail than the products sold in the 021 areas, requiring the salesperson to exert a greater effort to keep abreast of new developments so as to be able to communicate those changes to customers. In addition, the salespersons in the 076 areas are responsible for providing a substantially higher level of customer assistance than are salespersons in the 021 areas. 17. All of the salespersons as well as the department/head merchandisers and alterations persons under comparison work in a modern, air-conditioned, well-lighted department store. Both parties agree that all employees under comparison work under the same working conditions. 18. In the 076 selling areas, the Penney Co. hires some unskilled and untrained salespersons at the 021 salary level. Penney designates these salespersons as 021’s “in training.” It is immaterial that Penney has no job description which distinguishes these salespersons from others classified as 021’s. 19. There is evidence that 076’s exercised significantly different levels of skill and responsibility than 021’s “in training” in the same departments. Although all salespersons “sold” the same merchandise and started selling it immediately upon assignment to an 076 area, regardless of whether they had prior experience in selling that merchandise or had seen the company training films on the merchandise in the selling area, and some 076’s testified that their duties had not changed when they were promoted from the 021 position, the record shows that the 021’s “in training” were usually not left alone on the selling floor. Management tried to schedule a more experienced or more highly trained 076 to work with an 021, so the 076 could handle the more complicated questions or more difficult selling jobs. When there was no experienced salesperson available, the record shows that 021’s would “sell” the merchandise — that is, they would answer customer inquiries to the extent of their knowledge and would cashier and wrap packages. These are the same “selling” tasks performed by 021’s in any selling area. They could not, however, exercise the same level of skill as an 076 because they generally did not have the same product knowledge or selling experience. Witnesses’ estimates of the amount of time it would take the average person to acquire the skill to be “effective” in an 076 selling area varied from three months to two years. These estimates contrasted sharply with witnesses’ estimates of the amount of time it would take the average person to feel “comfortable” or to “function effectively” in an 021 selling area — one week to one month. Ron Pyles, a Penney Management Associate at the Mentor Store from 1966 through 1972, emphasized that although inexperienced salespersons are assigned to Photography (an 076 area) because of the unavailability of a sufficient number of associates with practical experience with the equipment, these inexperienced salespersons cannot and do not effectively assist customers. Q. (Counsel for the Secretary) If selling in cameras required all this technical knowledge and skill, can you tell me why people were hired off the street into the camera department with no prior experience? A. Mr. York, I have been asking that question for years. I have no idea why. Q. But were those people able to function in the camera department? A. No, sir, they were not. Q. They were not? A. No, sir, not if they came off the street with no prior skills like Belva [Cooper]. Q. Were they fired? A. No. If I saw any hope for them, if they stood there and they looked like decent people who weren’t stealing from us or something of that nature, we would get in and attempt to train them, because I knew if I got rid of them I would just get somebody else that didn’t know anything, too. Q. In other words, you would attempt to teach them the merchandise? A. We would attehipt, and if they were quick and they learned, we would leave them on. Tr. 4079-80. Q. (Counsel for Penney) Does it take any time for an inexperienced person to acquire the needed knowledge in photography? A. I would say an average person, if they walk in cold off the street, it would take about a year to become truly proficient. An exceptional person, it could take six months to a year. Q. And would an inexperienced person, when first assigned to the photography department, be performing the minimum job required in that department? A. No. Tr. 3993-94. Witnesses testified repeatedly that in order to effectively assist customers, specialized training or experience is required in the 076 merchandise areas which is not required in the 021 areas. Typical of such testimony is that of James Sciano, a management associate at the Mentor Store since 1973. When asked by the plaintiff to identify some of the factors which would determine the difficulty of “selling” or the level of customer assistance required in a given selling area, he identified the method fixturing displays, the required merchandise knowledge, and the price of the merchandise. 20. Salespersons classified as 242 head salespersons are required to, and do exercise significantly different levels of skill, effort, and responsibility than either the 076 selling specialists or the 021 salespersons. Unlike the jobs of the 021 and the 076, the principal function of the 242 is to assist first-level supervisors and provide leadership to associates on the sales floor. The 242 “is not considered to be a direct customer assistance position in the same sense as [an] 021, 076 and 077 . . . .” [T]he function of (the 242) was to serve in a leadership position, in training other associates in the department and providing certain non-management support services to the Department Head or Department Manager responsible for that department rather than be scheduled on the floor for the purpose of providing direct service to customers. Baumann Dep., Ex. 13, at p. 86. The testimony of first-level supervisors confirms that the principal job duties and job functions of the 242 are unique. For example, Mara Walker, a female management associate hired in 1969, testified that 242’s, unlike other associates, are “go-betweens,” communicating her instructions to the associates, reviewing merchandise control books and being aware of new merchandise and merchandise rates of sale. Onalee Reiss, hired in 1969, testified that the 242 in Draperies during the time she managed the department functioned as her “liaison” with associates on the sales floor. The 242 conveyed her instructions to the associates, reported on the state of the department and was given responsibility for mark-ups and mark-downs and the training of new associates. In addition, associates working with 242’s readily perceived the leadership role and different duties and functions of the 242. For example, Gertrude Anderson, an 021 associate in Lingerie from 1969 through 1976, testified that the 242 in Lingerie had job duties “over and above” those of other associates, including taking responsibility to see that counts were completed and conveying the supervisors’ instructions to the associates on the sales floor. Moreover, every 242 who testified on the subject readily recognized that their jobs involved different and additional duties and functions in comparison to the jobs of the 021 and 076, duties and functions which were performed continuously and required a significant portion of their workday. For example, plaintiff’s witness, Pat Spong, a 242 associate in Piece Goods from 1966 to 1976, drew a sharp distinction between her job as a 242 and her previous job as an 021. Q. (Counsel for Penney) [T]he duties that you have testified to, including the ordering and advising on fast selling items and working with the department manager and coordinating efforts such as arranging for model garments, these were functions you performed as the head sales person in that department? A. Yes. Q. And these were duties that other associates did not have, is that correct? A. Right. Q. And you had additional responsibilities and these being some of those additional responsibilities? A. Yes. Q. Did you also have the responsibility of coordinating the activities of all of the other associates in the Piece Goods Department in making sure that all of the areas were properly maintained and— A. Yes. Q. —properly stocked? A. Right. Q. And counts were taken when necessary? A. Yes. Q. In fact, when you were made aware of upcoming price breaks you pretty much took it upon yourself to coordinate activities and you, yourself, prepare for these price breaks? A. Yes. I had to see that we were all ready for them. That fabric was on the floor and on the racks. Signs were in the sign holders. It was my responsibility to write the signs and see that they were ready when the sale was ready. Q. And this would include the counts and making sure the merchandise is out. A. Yes. Q. And you also, I believe, testified that you would have the responsibility, additional responsibility, as the head salesperson, to make sure that new associates would become acclimated to the Piece Goods Department? A. Yes. Q. And would you also, in performing duties as the head salesperson, 242, recommend the items for markdowns? A. Yes. Q. To the department manager? A. Yes. Q. And work with them on what items those should be and the amount of the markdown? A. Yes, right. Q. So, in short, Mrs. Spong, is it fair to say that you had significant additional responsibilities and, frankly, a different job from the other associates in the Piece Goods Department? A. I would say so, yes. Q. And what percent of your time, if you can give an estimate to the Court, did you spend performing these duties and undertaking these responsibilities as head salesperson; can you give me a rough approximation? Is it fair to say a significant amount of your time? A. Well, yes, a significant amount of my time. I don’t know what percentage, actually, because those duties were something that were carried on continuously. Q. And a significant part of your job in that department? A. Yes. Tr. B695-98. Finally, the defendant’s expert, Jon Laking, following what was clearly an intensive and exhaustive study and evaluation of the sales floor jobs testified that the job of the 242 was substantially different with different functions and job duties than the other sales floor jobs. Despite this overwhelming and uncontradicted evidence, the plaintiff claims that the “primary responsibility” of the 021, 242, and 076 is the same, i. e., to “interface” with customers. The Secretary’s assertions that “an 021 who becomes a 242 in an 021 area . does not move into a different job with a different basic function,” and that “[t]he testimony of plaintiff’s employee witnesses and of its expert witness to the effect that the job content of the 021, 076 and 242 jobs is substantially equal thus stands uncontradicted by credible relevant evidence” are clearly without evidentiary support and, indeed, are contradicted by virtually all of the evidence. 21. It is also clear from the evidence concerning the different levels of customer assistance in the 021 and 242 merchandise areas, as compared to the 076 merchandise areas, that the job of the 242 requires substantially less skill, effort and responsibility to assist customers than is required of the 076. The evidence shows that, although a 242 head salesperson may develop a considerable depth of merchandise knowledge, that knowledge covers a much narrower breadth of products than does the knowledge required of an 076 selling specialist, resulting in their exercising less skill overall. For instance, 242’s in the Curtain and Drapery area have specialized knowledge of the method of ordering fabric for custom made draperies, including measuring, fabric content and care, types of rods, styles of draperies, etc. An 076 in the Paint and Hardware, Lawn and Garden area would be required to have similar type and degree of knowledge about lawn mowers, but he or she would also be required to have a like amount of knowledge about wallpaper, paints, lawn care products, and so forth. Thus the 076 is required to have and exercise greater skill than the 242. In addition, the products in the 076 areas generally change more often than those in the 021-242 areas, placing a responsibility on the salesperson to keep his or her merchandise knowledge current. This is a different and significantly greater responsibility growing out of the nature of the merchandise, which the 242 salesperson generally does not have, or has to a significantly lesser degree. 22. The plaintiff alleges that 021 salespersons in Cosmetics perform jobs substantially similar in skill, effort, and responsibility to those of 021 salespersons and 076 selling specialists in the other departments under comparison. The evidence shows, however, that the 021 in Cosmetics has important duties and functions unlike the duties and functions of 021’s in other merchandise areas. These job duties and functions, referred to collectively as the “line assignment,” result from the assignment to each associate of certain merchandise management responsibilities for a number of cosmetic lines. They are responsible for fixing displays, determining initial orders, counting books, preparing sales reports, and keeping abreast of sales trends and new products. In determining orders, these salespersons work with vendor representatives, discuss and recommend orders to the department manager, and prepare sales reports for their particular lines. The evidence establishes that Cosmetic salespersons spend from 40% to 60% of their workday performing these tasks. The plaintiff has offered no evidence that any 021 salesperson in any other selling area has merchandising duties and responsibilities similar to those of the Cosmetic salesperson. Such duties are unique. The Court, therefore, finds that the job content of the 021 in Cosmetics is not substantially equal to that of the other 021 sales jobs at issue. 23. The Court now considers the 076 position. 021s in Cosmetics must have and exercise selling skill and product knowledge substantially similar to that required of 076 selling specialists in other merchandise areas compared in this lawsuit. Cosmetics salespersons are expected to and do discover the customers’ needs, advise customers of the correct product for their particular skin problem or need, discuss the relative value of products for a particular customer, advise as to proper combination of products based on skin type, coloring, and so forth. This type of selling requires the same in-depth knowledge of a broad range of products as is required by an 076 selling specialist in, for instance, Sporting Goods or Bridal. Also, cosmetics salespersons attend manufacturers’ training courses, in most cases receiving more formal and concentrated training than that given to 076s by Penney. Similarly, 021s in Cosmetics, like 076s, are involved in a field where frequent product changes require them to be responsible for constant learning. The defendant argues that because salespersons in Cosmetics spend a smaller percentage of their time in personalized selling (10-15%) than do 076 selling specialists (40-50%), they do not exert similar effort. The Court finds, however, that any disparity in selling effort is compensated by the extra effort required by the unique “line assignment” duties of the 021’s in Cosmetics. Although the Secretary has carried his burden with respect to the requirement that the two positions be substantially equal in skill and effort, the Court finds that the two positions are not substantially equal in responsibility. There are two notable differences in the levels of responsibility for the 021 in Cosmetics and the 076 selling specialist positions. First, the 076 position includes a supervisory responsibility for the 021 salespersons in that 076 area. The work schedules are arranged so that an 076 will be on the floor with 021 salespersons to handle the more complicated questions on harder selling jobs (See Finding of Fact No. 19). The 076 also is involved in the training of 021 salespersons working in the 076 areas (Tr. 4079-80). Second, there is varying responsibility for the products sold in Cosmetics and the 076 areas. The 021 in Cosmetics has responsibility for indepth knowledge limited to the line or lines assigned. This is significantly more narrow than the 076 selling specialists’ responsibility for product knowledge of all items sold in the more diverse 076 selling area. Therefore, the Court finds that the Secretary has not' met his burden of proof to show that the positions of 021 salesperson in Cosmetics and the 076 selling specialists are substantially equal for the purposes of the Act. 24. The Secretary alleges that the J. C. Penney Company has maintained and continues to maintain unlawful wage differentials between six females and twelve males who, between May, 1970 and the present, have been first-line supervisors of merchandise departments, initially classified as department heads and later as merchandisers (position code 432) or merchandising managers (431). They were employed in the following merchandise departments or clusters of departments: (1) Lawn and Garden; Paint and Wallpaper; Lighting and Hardware; (2) Women’s Dresses & Bridal; Coats and Suits (Fashions); (3) Women’s Sportswear; (4) Women’s Sportswear; Lingerie and Robes; (5) Cameras (Photograph Shop); (6) Men’s Clothing; (7) Curtain and Drapery Shop; (8) Curtain and Drapery Shop; Bedding Shop; Closet and Bath Shop; (9) Men’s Accessories, Sportswear and Furnishings (Men’s Accessories); (10) Family Shoes; (11) Candy, Foods, Smokeshop; Stationery, Records; Luggage, Health and Beauty, Personal Care Appliances; (12) Candy, Foods, Smokeshop; Stationery, Records; Luggage; Health and Beauty, Personal Care Appliances; Women’s Accessories; (13) Recreational Equipment and Apparel; (14) Recreational Equipment and Apparel; Work Clothing; Toys and Wheel Goods; Adult Games and Hobbies; (15) Recreational Equipment and Apparel; Work Clothing. 25. Throughout the J. C. Penney Company and at the Mentor store, first line supervisors of merchandise departments were classified as department heads until approximately September, 1974 when, as the result of a company-wide position reclassification, the positions of first-line supervisors were changed to merchandisers (Code 432). At the same time, department managers were reclassified as merchandising managers (Code 431), and senior merchandising managers, (Code 430). Department heads were paid an hourly rate plus a percentage of the department’s sales, called an override; department managers were paid on a salary basis. All three categories of merchandiser, the 432, 431 and 430, are paid on a salary basis. Senior merchandising managers are paid more and have a more responsible position than merchandising managers; the merchandiser position is the lowest paid and least responsible of the three. The 430 senior merchandising manager position is not involved in this litigation. The company-wide reclassification made little difference in the duties of the first-line supervisors; most department heads became merchandisers with no change in the department, or cluster of departments which they managed. However, they all assumed certain general management responsibilities which they had not previously had, such as locking the store at night and supervising salespersons throughout the store. 26. There is no dispute that the work of the male and female department heads is equal and that the work of the male and female merchandisers (position Code 432) is also equal. Rather, the defendant claims that the male-female wage differentials in these categories are attributable to “factors other than sex.” The defendant has admitted that the company considers all the jobs of department heads to be “substantially equatable” under the Act, and likewise that “the jobs of a merchandiser position 432 are substantially equatable under the Act” (Tr. 397a, 398a). Although there were separate position descriptions for each of the department heads depending on the departments supervised, they were virtually identical; the merchandiser positions, on the other hand, had only one position description regardless of the departments supervised. In addition, the company’s own position descriptions and store organization manual set forth virtually identical job descriptions for the 432 merchandiser position and the 431 merchandising manager position. The 432 position is considered a “small” assignment, while the 431 position is considered a “medium” assignment. The only other difference between the two positions is that the 431 position is designated FLSA exempt, because the 431 is expected to perform “the basic responsibilities of a (J. C. Penney) executive” while the 432 is a non-FLSA exempt position expected to “sell merchandise and provide selling leadership,” and has no executive responsibilities. 27. The supervisors under comparison were generally responsible for planning and building annual or semi-annual assortment plans and for periodically reordering stock from the assortment plans based on a count of stock on hand and estimates as to how many items they could sell; for selling merchandise on the floor which might consume as much as % of their time; for supervising salespersons, which included interviewing applicants (although they were not responsible for hiring), scheduling the salespersons’ hours, completing their yearly merit appraisals, and training them on the sales floor; for planning promotional sales; for maintaining departmental presentation, including displays, stockkeeping and housekeeping; for attending weekly store sales meetings; for shopping the competition; and for approving customer adjustments and exchanges and handling complaints. Some supervisors had duties which others did not, but these duties were incidental to their basic functions and were not performed by all members of the same sex. For example, some of the males then classified as department heads (William Ham-mack and Charles Finley) locked up the store at night, while none of the females had such responsibilities until after their job classification was changed from department head to merchandiser. Male department heads Robert Burke and Walter Go-sky never had the responsibility for locking The department heads of up the store. Women’s Fashions, Junior Sportswear, Men’s Clothing, and Shoes had differing degrees of participation in fashion shows. Both Mr. Finley of Recreational Equipment and Apparel and Mr. Gosky of Shoes participated in sidewalk promotional sales, and Mr. Finley also conducted tent sales. Mrs. Cooper, the department head in Cameras, routinely took pictures of problem areas and other matters of interest around the store, and handled minor camera repairs. 28. Despite the admitted equality of the work of the male and female department heads, the males were paid more than the females almost without exception, whether comparing hiring rates or salaries at certain snapshot dates. Thus, no female under comparison became department head at more than the minimum base rate authorized by the J. C. Penney pay plan, while, with the sole exception of Otis Barnes, no male ever began as a department head at less than $.30 per hour above the minimum. When the department head classification was changed to the merchandiser classification in 1970, the company continued to pay experienced female merchandisers who had made the transition from department heads less than similarly situated males and to start female merchandisers at lower rates than male merchandisers. One female, Mara Walker, while classified as a 431 merchandising manager, was paid less than 432 merchandisers William Hammack and James McLaughlin for the performance of an allegedly more responsible first-line supervisory position. (Plaintiff’s Exhibit 6-1, 6-19, 6-20a) Penney argues that wage differences between males and females are proper under the Act because they are attributable to objective, consistently applied factors other than sex, namely: (1) sales and management experience directly related to the assigned line, (2) general management training, and (3) the volume of the assigned merchandise line. The Court is thus confronted with the limited issue whether the differences in pay among department heads and the differences in pay among merchandisers are based on legitimate factors other than sex. The Court will examine the validity of each of these factors separately. Penney groups department heads into the following categories: Date to Position Dept. Volume Actual Annual Earnings Directly Related Sales and Management Experience ' Mauk, Jack 02/01/66 $350,000 (1966) 8,780 Roessler, James 07/12/67 $190,000 (1967) 7,520 Gosky, Walter 08/03/70 $430,812 (1971) 9,447 Penney General Management Training & Experience_ Finley, Charles 09/06/71 $243,841 (1972) $ 8,473 McLaughlin, James 10/16/72 $424,700 (1973) $10,246 Edmonds, James 01/29/73 $273,500 (1973) $ 8,841 No Directly Related Experience or General Management Training Cooper, Belva 03/04/68 $176,803 (1968) $ 5,564 Hammack, William 03/03/69 $386,103 (1969) $ 8,691 No Directly Related Experience or General Management Training Teitlebaum, Betty 03/31/69 $497,475 (1969) $ 6,647 Walker, Mara 04/30/72 $647,265 (1972) $ 8,177 Burke, Robert 10/10/72 $260,000 (1973) $ 7,384 Reiss, Onalee 12/30/72 $292,743 (1973) $ 6,956 Barnes, Otis 10/28/73 $424,300 (1974) $ 7,284 29. Directly Related Sales and Management Experience Penney claims that the department heads listed under the category “Directly Related Sales and Management Experience” were hired directly into or for immediate promotion to the department head position because of their sales and management experience directly related to their assigned line. Upon examination, this criteria explains some wage rates, but not all. Jack Mauk and Walter Gosky came to Penney with many years of shoe sales experience. Mauk had approximately 9 years of experience managing shoe stores. He was the assistant manager of a Baker’s Shoe Store from approximately 1954 through 1958, sold shoes for Winkelman’s Shoes from approximately 1959 through 1960, sold shoes for Carlisle Allen for approximately 4 months in 1961 and managed a Nobil Shoe store from approximately 1961 through 1966. Gosky managed a Nobil Shoe store from approximately 1969 through 1970, and had also completed three years of college including 1 year of business management when he was hired as the department head of shoes. Although James Roessler had extensive retail management experience prior to coming to Penney, the evidence does not show that he had any prior experience “directly related” to the specific products he sold at Penney. In the 15 years prior to coming to Penney, he was the assistant manager and later manager of an F. W. Woolworth Co. store from approximately 1951 through 1962, the assistant manager and later manager of a Giant Tiger store from approximately 1962 through 1964, and the manager of Uncle Joe’s Value Center from approximately 1964 through 1966. He was hired and subsequently promoted to the position of department head of Paint and Hardware. There is no evidence that he had any prior experience in selling, a job which the parties agree takes up ZU of a department head’s time at Penney. Betty Teitelbaum, who became the department head of Women’s Fashions in 1967, two years after Roessler became department head of Paint and Hardware, was hired at nearly $1000 less per year than he into a department with 2lh times the dollar volume. She had 11 years experience in direct sales and sales management in the jewelry field, where she had supervised, recruited, and trained large numbers of salespeople, planned long-term sales objectives, ordered merchandise and controlled inventory, and planned, organized and directed large fashion shows. It appears to the Court that Teitelbaum’s experience in the jewelry field was as “directly related” to her work in Women’s Fashions, as Roessler’s experience was “directly related” to Paint and Hardware. Instead of neutrally applying this factor of experience, at the Mentor Store, Penney used it differently for males and for females, resulting in lower wages being paid to a female department head, Teitelbaum, than to a male department head, Roessler, for the same job. Thus the Court must conclude that it cannot qualify as a defense to an Equal Pay Act violation. 30. Penney General Management Training & Experience The second group of department heads listed under the heading “Penney General Management Training and Experience” represent those department heads who had prior Penney general management experience or extensive and advanced management training. Prior to 1974, Penney had two different management training programs. The “Merchandise Management Trainee B” program, position code 026, was designed to train associates for the position of department head, a career position requiring specialized management generally of a single merchandise area and which involved extensive selling responsibilities. The “Merchandise Management Trainee A” program, position code 025, and the “Management Trainee” program, position code 024, were programs designed to train associates for general store management positions including the department manager position. Participation in the 025 program was limited generally to individuals with two or more years of college and a strong interest in retail management. The 025 trainee position was more highly paid than the 026 position, although the testimony and their respective position descriptions show little difference in the program actually followed (Plaintiff’s Exhibits 60 and 80 to Plaintiff’s Exhibit 9). There was testimony than an 026 trainee was being trained solely to become a department head whereas an 025 trainee was supposedly training for general management positions at higher executive levels in the company, but 025 management trainees did in fact become department heads, as in the case of James Edmond, Charles Finley and James McLaughlin, while 026’s in fact become department managers as in the case of Mara Walker. Although the Compliance Officer found that both management trainee programs were “opened to male and female alike” (Narrative Report, Exhibit B-l), until 1974, when Marjorie Berg Gianelli, who is not under comparison in this lawsuit, became an 025, no female at the Mentor store was ever admitted to the 025 training program whereas seven males had been in the program (Charles Finley, James McLaughlin, James Edmond, James Sciano, Richard McAteer, Stanley Davisson, and Gary Glotzbecker). At the Mentor store, no males, but two females, Mara Walker and Onalee Reiss, had been in lower-paying 026 trainee programs. Despite their training, Mara Walker’s and Onalee Reiss’ beginning department head rates were less than that of Robert Burke who began his employment with defendant about the time of the females’ promotion without any training at J. C. Penney or elsewhere in the procedures required of a Penney department head such as- planning and controlling merchandise assortments and inventories. The evidence also shows that females Betty Teitelbaum and Belva Cooper, hired directly as department heads, were not advised of the existence of either of these training programs, but were paid at a lower rate than other department heads as “on-the-job trainees” and, when the defendant agrees they were fully trained in their particular merchandise area, were still paid at lower rates than males who had been given the opportunity to enter and complete one of the formal company training programs. For example, prior to becoming department head, Betty Teitelbaum had been “in training” for nine months at a rate of $2.00 per hour, while William Hammack had been “in training” for 14 months at a rate of $3.56. The defendant advanced no explanation for the disparity in their “training” rates. They became department heads at the same time, in March, 1969, she of Women’s Fashions and he of Men’s Clothing. Her starting salary as department head was $2.00 + .5% override; his was $3.25 + .5% override. This differential continued until she was transferred to another J. C. Penney establishment in October 1973; at that time she was earning $3.20 + .43% override to his $4.30 + .43%. Mrs. Teitelbaum’s beginning rate as a department head was also lower than the beginning rates paid to males who became department heads at a later date than she. The evidence further shows that every person assigned to head a merchandise department in which he or she had no prior selling experience required some on-the-job training and assistance from supervisors and salespersons to effectively perform the job of department head. This occurred regardless of whether the person had completed a formal company training program. Testimony showed that the formal training program did not make a person more effective as a department head than did on-the-job training, and in fact the opposite seemed to be true. Furthermore, completion of a Penney training program was not consistently applied to result in a higher starting wage for department heads. Comparing Mara (Thomas) Walker, a female graduate of the formal Penney training program, who became head of Women’s Sportswear on April 30,1972, with a similarly situated male employee who became a department head within several months of that date, Charles Finley, shows that she was made department head at $2.50 an hour + .46% override, while Finley started at $3,375 + .6%. This differential is not explained by prior experience and training. Walker had had some college when she was hired as a salesperson in May, 1969, and became an 026 department head trainee in November, 1970 prior to being given the department head position in 1972. Finley had had no prior sales experience but had just graduated from college with a degree in Business Administration prior to working for the store as an 025 management trainee for 2 years before becoming department head. Although Finley had more college courses in management, Walker had prior sales experience. In addition, Walker, was assigned to a department with 2V2 to 3 times the dollar volume of Finley’s department, (a factor Penney cited as contributing to salary determinations). Walker was reclassified to 432 merchandiser in 1974 and was promoted to the next highest rank, 431 merchandising manager on March 30, 1975. After her promotion, she was paid at a lower rate than that being paid to William Hammack and James McLaughlin, who had not been promoted and remained in the lower 432 merchandiser position. Since the factor of “Penney General Management Training and Experience” was not consistently applied to determine wage levels, the Court cannot consider it as a valid “factor other than sex” to excuse the payment of lower wages to female employees than to males for equal work. Since it also appears that females were effectively excluded from the higher-paid 025 management trainee program, failure to complete this program cannot be used as a “factor other than sex” to explain the later wage differential of male and female department heads. 31. No Directly Related Experience or General Management Training A third group of department heads are listed under the heading “No Directly Related Experience or General Management Training.” Penney claims that these individuals, unlike Messrs. Mauk, Roessler, and Gosky, did not possess sales and management experience directly related to the specific merchandise line to be managed, and unlike Messrs. McLaughlin, Edmonds, and Finley, these individuals were not given general management training and did not possess prior Penney management experience. The Court finds, however, that these claims do not stand up to close examination. In addition, Penney fails to creditably account for the pay differentials within this third category. Comparing the experience of Belva Cooper, department head of Cameras, and William Hammack, department head of Men’s Clothing, she had had almost two years prior experience as a sales clerk and assistant manager at a Drug and Variety store, which was comparable to his food selling experience, and had sold cameras at Penneys and before, as he had sold men’s clothing prior to becoming department head. Unlike Hammack, Cooper had basic knowledge in planning long-term merchandising sales objectives and had worked with and was familiar with control books and merchandising systems similar to those used at J. C. Penney. Despite their similarity of experience, Hammack was paid $3.25 per hour + .5% when he became a department head in March, 1969; Cooper, who had already been department head of cameras for at least one year was earning $2.40 + .5%. As of September 1974, just before they were both classified as 432 merchandisers, she was earning $3.40 + .73% override to his $4.03 + .43% override. Because of the smaller net sales of her department, her greater override did not eliminate the difference between their hourly base rates. The reclassification in September, 1974 continued the wage differential between Cooper and Hammack. Like Mrs. Teitelbaum, Mrs. Cooper continued to earn less than other male department heads hired at later dates than she. Onalee Reiss and James Edmond became department heads one day apart in January, 1973 at rates of $2.50 per hour + .6% override and $3.4615 and .66% respectively, she of Curtain and Drapery Shop, he of Recreational Equipment and Apparel. These differentials are not explained by prior experience and training. Edmond, a college graduate with no prior sales experience, had been an 025 management trainee for 2V2 years in another Penney’s store prior to becoming a department head; Reiss had been a salesperson and assistant manager of a small food store for seven years prior to her employment by Penney’s in November, 1968 as an 021 salesperson, had been promoted to 077 “Selling Specialist A” in March, 1971, and had then served as an 026 department head trainee from May, 1972 until she was made a department head. Her prior experience in retail food sales also compares closely to William Ham-mack’s as does her in-store sales experience. However, her beginning rate as department head of Women’s fashions, a position she assumed in October, 1973, at the rate of $2.50 per hour + .43% override was less than William Hammack’s beginning rate as department head of Men’s Clothing four years earlier. Penney argues that because Hammack’s rate is considerably above both male and female department heads in the same category and is even higher than the rates of associates hired with extensive directly related management experience or assigned after graduation from a general management training program, it should be considered an “aberration,” not attributable to sex. Hammack’s high assignment rate was the product of his higher rate prior to assignment. He was hired and assigned as a part-time associate in Men’s Suits, a commission sales area, and was later made a full-time associate in Men’s Suits and promoted to the position of head salesperson. In this position, in addition to selling, he was expected to provide sales leadership, assist in the training of new associates and perform other tasks to assist the department manager in Men’s Suits. Because Hammack could not devote full time to sales, he was paid an hourly rate roughly comparable to the earnings of commissioned salespersons. His hourly rate prior to his assignment as the department head in Men’s Suits was therefore considerably above the pre-assignment rates of other department heads. However, Penney does not explain why Reiss was not paid at the same high rate when her position was changed from 077 “Selling Specialist A,” a commissioned selling position similar to Hammack’s job as “head salesperson” in Men’s Suits, to 026 department head trainee. It appears that male and female salespersons were not consistently paid at their prior rates. Therefore, the Court finds that in this case, the factor of prior rate does not satisfactorily explain the difference in pay between Ham-mack and the female department heads otherwise similarly situated. 32. The Court finds that males and females hired and promoted under the new management