Rabidue v. Osceola Refining Co.

• Decision Date: 18 April 1984
• Docket Number: No. 79-40258.,79-40258.
• Citation: 584 F. Supp. 419
• Parties: Vivienne RABIDUE, Plaintiff, v. OSCEOLA REFINING COMPANY, A DIVISION OF TEXAS-AMERICAN PETROCHEMICALS, INC., Defendant.
• Court: U.S. District Court — Western District of Michigan

584 F. Supp. 419

Vivienne RABIDUE, Plaintiff, v. OSCEOLA REFINING COMPANY, A DIVISION OF TEXAS-AMERICAN PETROCHEMICALS, INC., Defendant.

No. 79-40258.

United States District Court, E.D. Michigan, S.D.

April 18, 1984.

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Barbara A. Klimaszewski, Saginaw, Mich., for plaintiff.

Seth M. Lloyd, Detroit, Mich., for defendant.

MEMORANDUM OPINION AND ORDER

NEWBLATT, District Judge.

I INTRODUCTION

This is an employment discrimination action brought by Vivienne Rabidue against the Osceola Refining Company. Ms. Rabidue has asserted claims of sex discrimination and sex harassment under Title VII of the 1964 Civil Rights Act¹ and the Michigan Elliott Larsen Act.² Plaintiff Rabidue also has asserted a claim under the federal Equal Pay Act.³

The liability issues came on for trial by the bench on May 3, 1983, and concluded on May 7, 1983. The Court heard the testimony of several witnesses and admitted numerous exhibits. The de bene esse depositions of Charles A. Muetzel and Robert A. Fitzimmons also were admitted.

The evidence and the governing legal principles have been reviewed. Findings of fact and conclusions of law as required by Rule 52(a) of the Federal Rules of Civil Procedure are made herein.

II FINDINGS OF FACT

Plaintiff was hired by Osceola Refining Company in December of 1970. At the time, Osceola was an independently owned company. In 1974, United Refineries of Warren, Ohio purchased Osceola and operated it as a separate division.

On September 1, 1976, Osceola was acquired by Texas American Petrochemicals. It is noted that Texas American is the defendant in this lawsuit.⁴

The position for which plaintiff was hired and which she initially occupied was Executive Secretary. In this position, plaintiff performed a variety of duties including typing, fielding telephone calls and bookkeeping.

In 1973, plaintiff was promoted to the position of Administrative Assistant. This enabled plaintiff to become a salaried— rather than hourly—employee. Plaintiff also enjoyed other advantages as a result of the promotion including longer lunch hours and more liberal vacation entitlements.

The promotion brought plaintiff additional responsibilities and duties. Plaintiff was responsible for purchasing office supplies and dealing with customers. Plaintiff also was responsible for noting incoming governmental regulations and pertinent newspaper articles. Plaintiff then either filed these materials away or forwarded them to the appropriate person in the company.

Eventually, plaintiff was assigned additional duties the most important of which were those of credit manager and office manager. Plaintiff also had the responsibility of assigning work to a number of other Osceola employees. It is noted that plaintiff never produced convincing evidence that male employees in substantially equal jobs to the jobs occupied by plaintiff received greater remuneration than plaintiff.

A prominent character in the trial evidence was Douglas Henry. Mr. Henry was an Osceola employee working as a supervisor of the company's keypunch and computer operators. Occasionally, plaintiff's duties and Mr. Henry's duties intersected.

Mr. Henry was a crude and vulgar man. He habitually used vulgar language around the office. It was not unusual for him to make obscene comments about women, and to use words like "cunt," "pussy," and "tits." On at least one occasion Mr. Henry called plaintiff a "fat ass."

Plaintiff was annoyed by Mr. Henry's language. Other Osceola female employees also were annoyed by Mr. Henry's vulgarity. The vulgarity clearly was a problem, but not so pervasive a problem as to substantially interfere with plaintiff's employment. During the time plaintiff worked for Osceola, the company was aware of Mr. Henry's vulgarity, but was not successful in curbing it.

It also is noted that a number of other Osceola male employees occasionally displayed pictures of nude or partially clad women in their office and work areas. Plaintiff saw these pictures during many work days.

Plaintiff doubtless was an intelligent and ambitious person. These qualities were responsible for the 1973 promotion and the delegation to her of fairly important duties. On the other hand, plaintiff—on the whole—was a rather troublesome employee. Plaintiff's supervisor and the people with whom plaintiff dealt almost uniformly found plaintiff to be abrasive, extremely willful, and difficult to get along with. This was clearly reflected in the testimony of witnesses Muetzel, Fitzimmons, Shoemaker, Attinger and Martonosi.

Plaintiff argued with customers and yelled at other employees. In defiance of explicit instructions, plaintiff continued to contact individual terminal managers to ask for daily liftings. This practice jeopardized Osceola's relations with major oil companies. Furthermore, the Vice President of United Refineries—Osceola's largest customer—was particularly annoyed by plaintiff's rudeness.

As a result of plaintiff's many job-related problems—in particular, her inability to work harmoniously with customers and co-workers —Mr. Shoemaker decided once and for all that plaintiff would have to be discharged. The recommendation was accepted, and plaintiff's employment position was formally terminated as of January 14, 1977. Plaintiff's replacement as Administrative Assistant was a male.

Plaintiff filed her sex discrimination charge with the EEOC on or about March 9, 1977. In this respect, it also should be noted that the Court finds that prior to its September 1, 1976 acquisition of Osceola, defendant Texas American had no notice that plaintiff actually intended to pursue a claim of sex discrimination or sex harassment against the predecessor company, United Refineries.

III CONCLUSIONS OF LAW

As has been noted plaintiff has asserted the following claims: sex discrimination in violation of Title VII; sex discrimination in violation of the Elliott Larsen Act; sex harassment in violation of Title VII; sex harassment in violation of the Elliott Larsen Act; and violation of the federal Equal Pay Act. In this portion of the opinion, a separate analysis of each of these claims will be made.

A. Plaintiff's Title VII Sex Discrimination Claim

At the threshold, defendant has asserted a successorship defense. Pointing out that it did not acquire Osceola until September 1, 1976, defendant argues that it cannot be held liable for Osceola's alleged discrimination occurring prior to that date.

In the 1974 case of EEOC v. MacMillan Bloedel,⁵ the Sixth Circuit Court of Appeals set out a nine-point totality of circumstances test for determining Title VII successor liability. Under this test, the following factors are to be balanced: (1) whether the successor company had notice of the charge; (2) the ability of the predecessor to provide relief; (3) whether there has been a substantial continuity of business operations; (4) whether the new employer used the same plant; (5) whether the new employer uses substantially the same work force; (6) whether the new employer uses substantially the same supervisory personnel; (7) whether the same jobs exist under substantially the same conditions; (8) whether the employer uses the same machinery, equipment and methods of production; (9) whether the employer produces the same product.⁶

The MacMillan Bloedel test seemed to be a balancing test. In 1978, however, the Sixth Circuit decided Wiggins v. Spector Freight System.⁷ There, the Sixth Circuit held that a successor employer could not be held liable if (1) charges were not filed with the EEOC at the time of the acquisition and (2) the successor had no notice of the discrimination claims.⁸ In this respect, it must be noted that the Wiggins court explicitly stated that where these two conditions exist, the successorship claim is "removed from the rationale" of MacMillan Bloedel.⁹ In light of this, the law must be interpreted as exonerating successors where these two conditions exist.

In applying Wiggins, the Court first notes that plaintiff had not filed EEOC charges at the time of the September 1, 1976 acquisition of Osceola by defendant. Next, the Court hearkens to its earlier findings that Texas American was not given notice of plaintiff's claim prior to its acquisition of Osceola. In light of these two Rule 52(a) fact findings, the Court is compelled to conclude that defendant cannot be held liable for any pre September 1, 1976 sex discrimination.

An analysis of plaintiff's Title VII disparate treatment sex discrimination claim is next. After studying the facts, it is determined that plaintiff has failed to prove that she ever was the victim of disparate treatment Title VII sex discrimination while employed by Osceola. Thus, even if the Court had ruled in favor of plaintiff on the successorship issue, plaintiff's Title VII sex discrimination claim would fail. The explanation follows.

Plaintiff's disparate treatment Title VII claim should be viewed as a claimed continuing violation of Title VII culminating in plaintiff's discharge. With respect to the factual elements of the discrimination occurring prior to the discharge, the Court has determined that the company did not direct sex based discriminatory conduct at plaintiff. These issues will, of course, be treated in detail in the sex harassment and Equal Pay Act portions¹⁰ of this opinion. For now, however, it is merely concluded that the company's pre-discharge conduct toward plaintiff was not based on anti-female animus. Absent such animus, there can be no violation of Title VII.¹¹

Turning to plaintiff's discriminatory discharge claim, it is, of course, a classic disparate treatment claim bottomed on section 703(a)(1) of Title VII. In plain and simple terms, plaintiff is claiming that she was discharged because she is female.

The most recent Sixth Circuit case dealing with a discriminatory discharge is Rasimas v. Michigan Department of Mental Health.¹² Rasimas, a...