MARILYN JANCEY & others [Note 1] vs. SCHOOL COMMITTEE OF EVERETT.

GREANEY, J. In Jancey v. School Comm. of Everett, 421 Mass. 482 (1995) (Jancey I), we considered an appeal by the defendant from a judgment entered in the Superior Court in favor of the plaintiffs, cafeteria workers in the Everett public schools. The judgment was based on a decision by the judge that the school committee had violated the Massachusetts equal pay act, G. L. c. 149, s. 105A (MEPA), by paying the female cafeteria workers a lower wage than the male custodians who worked in the Everett public schools. In reaching this determination, the judge

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ruled that the test for determining whether the work of the cafeteria workers and the custodians was "of like or comparable character," the legal standard set forth in MEPA, was whether the work required comparable skill, effort, responsibility, and working conditions. Id. at 487. Because he determined that these aspects of the two positions were comparable, the judge concluded that the over-all character of the work was comparable within the meaning of the statute. Id.

We vacated the judgment and remanded the case to the Superior Court for additional proceedings. Id. at 501. We did so after we concluded that the judge's analysis was improper. Id. at 487. In so doing, we explained that the historical context in which MEPA was enacted provided "little support for applying the term 'comparable' to positions with dissimilar substantive content." Id. at 489. We concluded that the statute requires a two-part analysis, the first requiring the judge to "determine whether the substantive content of the jobs is comparable, that is, whether the duties of the jobs have 'important common characteristics.' " Id. "[T]wo positions that are so dissimilar in their substantive content that a reasonable person would regard them as categorically separate are not 'comparable.' " Id. at 489-490. It is only after "a determination is made that the jobs are comparable in substantive content, that the second inquiry is appropriate - whether the two positions entail comparable skill, effort, responsibility, and working conditions. If the answer to both inquiries is 'Yes,' then employees in the two positions must receive equal pay." Id. at 490.

On remand, the judge relied on the findings he made in his earlier decision to conclude that, under the first part of the two-part MEPA analysis, "[t]he substantive content of the two jobs are so dissimilar that a reasonable person would regard them as categorically different or separate." Thus, he ordered the entry of a judgment for the defendant. We granted the plaintiffs' application for direct appellate review and now affirm the judgment.

1. We summarize the judge's findings regarding the substantive job content of the cafeteria worker and custodian positions. [Note 2] The cafeteria workers are responsible for providing school

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children with food that is nutritious, safe, and palatable, and for ensuring the cleanliness and sanitation of the food, workers, kitchen, serving areas, and cafeteria tables. The cafeteria worker position entails preparing, cooking, serving, selling, and accounting for individual food items procurable by school children and school employees for breakfast and lunch. Specific daily duties include transporting heavy cases of foodstuffs from the walk-in refrigerator to work stations; preparing and cooking food items; cleaning and sanitizing the cafeteria tables, serving areas, work tables, ovens, refrigerators, freezer, storage areas, sink, cooking equipment, and utensils; operating and checking temperature gauges and timers on the ovens; operating and checking steam gauges on the steamer and steam kettles; replenishing food supplies and rotating stock following deliveries; sweeping and cleaning the kitchen floor; and disposing of garbage.

The custodians are generally responsible for the security of the school buildings, for ensuring that the buildings are properly heated and ventilated, and for the over-all cleanliness and sanitation of the bathrooms, classrooms, corridors, stairways, and outside play areas. Their duties include opening and closing the schools; cleaning and maintaining the school grounds and walkways, including removing leaves and snow, and spreading sand or salt as needed; cleaning the classrooms, offices, and corridors, including removing trash, vacuuming and wet mopping floors, and cleaning and sanitizing bathrooms; repairing window screens and removing glass from broken windows; performing minor repairs on locks, doors, and furniture; receiving and storing supplies; maintaining and cleaning the heating and ventilation systems; and setting up tables and chairs in the gymnasiums or auditoriums as necessary.

2. In reviewing a nonjury case like this one, we accept the judge's findings of fact unless they are clearly erroneous (which they are not), but we independently review the legal standard

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which the judge applied to those facts. See Kendall v. Selvaggio, 413 Mass. 619, 620-621 (1992), and cases cited.

The plaintiffs contend that the judge erred in limiting the scope of MEPA to claims involving jobs which, as he said in one part of his decision, are "fungible," [Note 3] or where "[t]he subjective nature of the two jobs or the basic understanding of the objective or goal of each position [is] the same . . . ." In making these observations, the judge appears to have obscured the legal standard to be applied in assessing the comparability of the jobs. This mischaracterization, however, does not significantly advance the plaintiffs' case. [Note 4] It is the duty of an appellate court to apply the correct legal standard to the facts settled by the trial court. When we perform that function here, we also conclude that the plaintiffs cannot prevail on their claim under MEPA.

As stated above, in applying the test announced in Jancey I, the first question we must address is "whether the substantive content of the jobs is comparable," which requires us to look to the facts regarding the particular duties of each job to determine whether the jobs share "important common characteristics." Jancey I, supra at 489. Contrary to the analysis applied by the judge, the test does not require that the jobs be fungible, a requirement that we view as more restrictive than that set forth in Jancey I. [Note 5] Furthermore, that someone might subjectively consider the two jobs to be of the same nature, or that the jobs share the same general objective, are considerations irrelevant to a claim of comparability under MEPA. Instead, the first prong of the comparability test requires the court to evaluate the substantive content of the positions, specifically the actual duties of each position, from the viewpoint of an objectively reasonable person, to ascertain whether the jobs are so dissimilar that they are not comparable. Although the respective

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duties of the positions may differ in some respects, comparable positions must share "important common characteristics."

The plaintiffs argue that the positions of cafeteria worker and custodian share "important common characteristics" within the meaning of the test because they share responsibility for the "domestic" work necessary to operate the schools and since they "involve the common characteristic of housekeeping." However, in assessing whether the positions are comparable, MEPA requires more than a commonality of responsibility and purpose. As we stated in Jancey I, the content of the specific jobs must be acknowledged when applying MEPA's "comparable" standard. Id. We decline to adopt the broad reading of the phrase "important common characteristics" urged by the plaintiffs, because to do so would effectively abrogate the first prong of the Jancey I test. [Note 6]

The record reveals that only a limited number of the actual duties attendant to the cafeteria worker and custodian positions could be characterized as sharing "important common characteristics" in the sense suggested by the first prong of the Jancey I test, and those duties include the cleaning and sanitization of the various parts of the school facility for which each is responsible. Overall, however, the duties required of the cafeteria worker and custodian positions are so dissimilar that an objectively reasonable person simply would not conclude

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that the substantive content of the jobs is comparable. This case is not one, as suggested by the dissent, that simply involves "job labels" and "perceptions." There can be reasonable disagreement over which of the two jobs is the more onerous and whether cafeteria workers in Everett should be paid more than they are. It may very well be that the functions of the two classes of workers reflect traditional gender roles, and, as we recognized above, the positions may share common characteristics. These considerations, however, do not provide a basis to misapply the law in order to reach a praiseworthy but legally untenable goal. The analysis suggested by the dissent, if followed to its logical conclusion, would find comparability in many fundamentally disparate classes of jobs. [Note 7] The judge made detailed findings of fact on what each job entails and their dissimilar substantive job content belies any conclusion that the jobs are comparable under the first part of the MEPA analysis.

Judgment affirmed.

MARSHALL, J. (dissenting, with whom Abrams and Ireland, R, join). Today, the court withdraws from the difficult challenge of analyzing comparable work and forsakes the quest for gender equity in workplace compensation.

Jancey v. School Comm. of Everett, 421 Mass. 482 (1995)

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(Jancey I), acknowledged that " 'comparable' is a more inclusive term than 'equal' . . . . [and] '[w]ork of "comparable character" is broader than "equal work ... . .. Id. at 488, quoting Bureau of Labor & Indus. v. Roseburg, 75 Or. App. 306, 309 n.2 (1985). The narrow application of Jancey I's two-prong test to determine comparable work, here endorsed by the court, has the ironic and contradictory effect of making "comparable work" a more exclusive category than "equal work" under the Federal equal pay act, 29 U.S.C. s. 206(d) (1994) (FEPA). [Note Dissent-1] I have no argument in theory with a test that measures "comparability" by focusing on job content and whether duties of jobs share "important common characteristics," while the second prong measures the "equality" of jobs. Ante at 604. The level of specificity or generality by which one defines job content and duties, however, makes all the difference. At one level of specificity, nontechnical school support staff perform categorically distinct jobs of dishwasher (cafeteria worker) and snow shoveler (custodian), cook (cafeteria worker) and trash remover (custodian). At a higher level of generality, work performed by all nontechnical school support staff is comparable work, because each position may share important common characteristics, responsibilities, goals, and daily routines. Within the categories of comparable work, individuals may vary in the equality of their jobs. In this case, the plaintiffs asked the judge and now ask us to look beyond job labels and the different perceptions of cafeteria workers and custodians that are, in part at least, artifacts of sexual stereotyping and traditional job segregation by gender.

The court does not undertake this more painstaking analysis. It rejects, on the one hand, the common characteristic of cafeteria workers and custodians suggested by the plaintiffs "domestic" work, involving the "housekeeping" of schools as too broad a level of generality. On the other hand, it eschews more detailed analysis of the judge's findings concerning the

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respective duties of each set of workers. Although the court recognizes that the job categories share a number of common duties - "cleaning and sanitization of the various parts of the school facility for which each is responsible" - the court does not question what percentage of each job category is spent on these common duties. The court also ignores findings that persons in each job category operate comparable equipment and appliances; monitor gauges and ensure safety; receive, carry, store, distribute, account for and manage necessary supplies; and interact with school children in nonpedagogical ways. Each kind of equipment or set of supplies, of course, at a specific level, may be distinct, but whether such differences make a difference, for purposes of equal pay for comparable work, is the critical inquiry. At the very least, such detailed analysis would identify and disaggregate both the common and the distinct duties of each job and establish grounds to measure equality of pay for that percentage of time and responsibility in which each job was comparable. Thus, if in fact fifty percent of the time of both jobs involved comparable cleaning and sanitizing of facilities, wages should reflect equal pay for each job in that proportion to total pay for each job.

The court rightly criticizes the judge for limiting the scope of MEPA to jobs that are "fungible," and for using a standard whether "[t]he subjective nature of the two jobs or the basic understanding of the objective or goal of each position [is] the same . . . ." Ante at 606. The court's conclusory application of an "objective" standard, however - that "the duties required of the cafeteria worker and custodian positions are so dissimilar that an objectively reasonable person simply would not conclude that the substantive content of the jobs is comparable" obfuscates the analysis, as much, if not more, than the standard used by the judge. Ante at 607-608. In the long ran, an objective perspective on comparable work, shared by reasonable women and reasonable men, may develop. Before that consensus is reached, however, courts, assisted by the testimony of experts, must undertake detailed, functional analyses of jobs on a case-by-case basis, especially those jobs traditionally segregated by gender. Until such hard analytic work is done, invocation of a reasonable person's view of the comparability of jobs may do little more than mask biases.

Because the court fails to provide sufficient reasons for affirming the judge's conclusion that the jobs of cafeteria workers and custodians are not comparable, I respectfully dissent.