Berg v. La Crosse Cooler Co.

• Decision Date: 08 January 1980
• Docket Number: No. 78-2647,78-2647
• Citation: 612 F.2d 1041
• Parties: 21 Fair Empl.Prac.Cas. 1012, 21 Empl. Prac. Dec. P 30,542 Laurel B. BERG, on her behalf and on behalf of all others similarly situated, Plaintiff-Appellant, v. LA CROSSE COOLER COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1041

612 F.2d 1041

21 Fair Empl.Prac.Cas. 1012,

21 Empl. Prac. Dec. P 30,542

Laurel B. BERG, on her behalf and on behalf of all others similarly situated, Plaintiff-Appellant, v. LA CROSSE COOLER COMPANY, Defendant-Appellee.

No. 78-2647.

United States Court of Appeals Seventh Circuit.

Argued Dec. 4, 1979.

Decided Jan. 8, 1980.

Joel M. Cohn, E.E.O.C., Washington, D.C., for plaintiff-appellant.

Patricia M. Heim, La Crosse, Wis., for defendant-appellee.

Before FAIRCHILD, Chief Judge, CASTLE, Senior Circuit Judge, and SPRECHER, Circuit Judge.

SPRECHER, Circuit Judge.

The issue presented by this appeal is whether the opposition by an employee to what he or she reasonably believes to be an unlawful employment practice is protected against retaliatory discharge by the employer under § 704(a) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a). The district court held that it was not protected and entered a summary judgment in favor of the employer-defendant. We reverse.

I

The plaintiff, a 27 year old female with a Bachelor of Arts degree from the University of Wisconsin, was employed as a personnel clerk by the defendant with the duty, among others, of answering questions from fellow employees concerning their rights under the defendant's temporary disability insurance program, which covered all employees for accidents or illnesses making it impossible for them to work, but not for the effects of pregnancy or maternity making it impossible to work.

In February, 1976, plaintiff was requested by a fellow employee, Mrs. Oliver, to explain what insurance benefits might be available to her in connection with her pregnancy and maternity. The plaintiff explained that the defendant's temporary benefit program excluded absences due to pregnancy and maternity; she furnished Mrs. Oliver with a booklet describing available benefits; and she directed Mrs. Oliver to discuss any further questions with the plaintiff's supervisor, Wolfgang Heinrich Fechtel, who served as the defendant's director of personnel.

In early March, 1976, Mrs. Oliver returned to the plaintiff and told her that Fechtel had advised her that she would not receive pregnancy benefits and that the defendant was not required by law to furnish such benefits. Shortly prior to this second conference with Mrs. Oliver, plaintiff had attended a course of instruction at a college in La Crosse, Wisconsin, in which she had been informed by lawyer-instructors that in the case of Ray-O-Vac v. Wisconsin Department of Industry, Labor and Human Relations, 70 Wis.2d 919, 236 N.W.2d 209 (1975), the Supreme Court of Wisconsin had determined that under the Wisconsin Fair Employment Law, an employer offering a program of disability benefits to its employees could not lawfully exclude compensation for inability to work by reason of pregnancy. The plaintiff informed Mrs. Oliver of plaintiff's understanding of the law of Wisconsin in this respect and furnished Mrs. Oliver with a copy of the Ray-O-Vac opinion. Plaintiff again advised Mrs. Oliver to discuss the matter with Fechtel, which Mrs. Oliver proceeded to do.

In the Oliver-Fechtel conversation, Fechtel said that the defendant would provide disability benefits to her if she could establish that her pregnancy was accidental. It was Fechtel's personal belief that pregnancy and maternity should not provide a basis for disability compensation and that the defendant was not required by law to provide such benefits, based upon statements in periodicals which he had read from time to time in the course of his duties and statements made to him by representatives of defendant's insurer. Fechtel was aware of the Ray-O-Vac case but believed that the decision was not final.

Up to this time, the plaintiff's work performance prompted no criticism or reprimand from her supervisor or from any representative of the defendant.

On March 25, 1976, the plaintiff received a telephone call from Mrs. Oliver in which plaintiff was informed that Fechtel had repeated the defendant's intention to deny her pregnancy benefits.

On March 26, Fechtel approached the plaintiff at her desk and the following conversation occurred: Fechtel asked plaintiff whether plaintiff knew what Mrs. Oliver was trying to do to him and said that Mrs. Oliver was trying to require him to pay her disability compensation benefits when she became unable to work by reason of her pregnancy. He said that Mrs. Oliver had expressed the opinion that the exemption of pregnancy related absences from work represented sex discrimination. Plaintiff told Fechtel that she agreed with Mrs. Oliver that this practice was sex discrimination. Fechtel stated that the law did not require the employer to provide such disability benefits. Plaintiff stated that Wisconsin law required such coverage, but Fechtel said that this point had not been decided finally. Fechtel asked why the company should pay Mrs. Oliver temporary disability benefits for 10 minutes of her fun. Plaintiff counteracted his remark. Fechtel told the plaintiff that she could not support Mrs. Oliver in pressing her claim. Plaintiff stated that she supported Mrs. Oliver's right to benefits and that she was on Mrs. Oliver's side of the issue. Fechtel said that plaintiff could not give Mrs. Oliver support on company time, and plaintiff agreed that she would not do so on company time. Fechtel then told the plaintiff that she was discharged.

The parties stipulated that plaintiff was discharged by the defendant because of what she said to Fechtel in the course of the March 26 conversation, and for no other reason, and stipulated that the plaintiff betrayed no confidences of management at any time. The district court also found that the plaintiff's "opposition was peaceable and mild in form and manner."

Although on April 9, 1976, the district court said it believed "that the plaintiff has shown that she enjoys a reasonably good chance to prevail in her contention that the employment practice of the defendant, in excluding pregnancy and maternity benefits, is made unlawful by Title VII," after the Supreme Court decision in General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976), the district court granted the defendant's motion for summary judgment.

II

Section 2000e-3(a) provides in part as follows:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter, ¹ or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

On December 7, 1976, the Supreme Court of the United States held in the Gilbert case that a disability benefits plan does not violate Title VII because of its failure to cover pregnancy related disabilities. At that time, the practice opposed by the plaintiff here was determined by the Supreme Court not to be an unlawful employment practice.

Although the second or "participation" clause of § 2000e-3(a) protects an employee from retaliation regardless of the ultimate merit of the Equal Employment Opportunity Commission investigation, proceeding or hearing, ² the district court in this case, considering the first or "opposition" clause, concluded that "unless the practice opposed is in truth a 'practice made an unlawful employment practice' by subchapter VII . . . , the employee-opponent enjoys no protection from Sec. 2000e-3(a)."

Section 2000e-3(a) is part of Title VII of the Civil Rights Act of 1964. In 1972, several years after the Act's passage, the EEOC promulgated a guideline which stated in part:

Disabilities caused or contributed to by pregnancy, miscarriage, abortion, childbirth, and recovery therefrom are, for all job-related purposes, temporary disabilities and should be treated as such under any health or temporary disability insurance or sick leave plan available in connection with employment. . . . (Benefits) shall be applied to disability due to pregnancy or childbirth on the same terms and conditions as they are applied to other temporary disabilities.

29 C.F.R. § 1604.10(b) (1975).

Not only was this guideline, promulgated by the agency charged by Congress with administering Title VII, in effect on March 26, 1976, when the plaintiff "opposed" her employer on this ground, but six courts of appeals which had addressed the question, also agreed with the view taken by EEOC and the plaintiff. Communications Workers v. American Tel. & Tel. Co., 513 F.2d 1024 (2d Cir. 1975); Wetzel v. Liberty Mutual Ins. Co., 511 F.2d 199 (3rd Cir. 1975), vacated on jurisdictional grounds, 424 U.S. 737, 96 S.Ct. 1202, 47 L.Ed.2d 435 (1976); Gilbert v. General Electric Co., 519 F.2d 661 (4th Cir. 1975); Tyler v. Vickery, 517 F.2d 1089, 1097-99 (5th Cir. 1975) (dictum); Satty v. Nashville Gas Co., 522 F.2d 850 (6th Cir. 1975); Hutchison v. Lake Oswego School Dist. No. 7, 519 F.2d 961 (9th Cir. 1975).

In addition, the federal district court in the Eastern District of Wisconsin had also found the withholding of pregnancy benefits to be unlawful, Guse v. J. C. Penny Co., 409 F.Supp. 28, 33 (E.D.Wis.1976), while the court in the Western District of Wisconsin in this case, prior to the Gilbert decision believed that there was a likelihood of success for plaintiff's position that the exclusion of pregnancy benefits was unlawful under Title VII. See Supra, Part I.

Even at the time that Gilbert was decided, the plaintiff here was in distinguished intellectual company in maintaining her belief that the defendant's program was an unlawful employment practice. Justices Brennan, Marshall and Stevens concluded that the language of the statute, motive, administrative expertise, and policy required the result which the courts of appeals had reached unanimously. See 429 U.S. at 162, 97 S.Ct. 401 (Stevens, J., dissenting). Justices Stewart and Blackmu...