624 F.2d 945 (10th Cir. 1980), 78-1593, Fitzgerald v. Sirloin Stockade, Inc.

Docket Nº:78-1593.
Citation:624 F.2d 945
Party Name:Regina FITZGERALD, Plaintiff-Appellee, v. SIRLOIN STOCKADE, INC., Defendant-Appellant.
Case Date:March 05, 1980
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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624 F.2d 945 (10th Cir. 1980)

Regina FITZGERALD, Plaintiff-Appellee,

v.

SIRLOIN STOCKADE, INC., Defendant-Appellant.

No. 78-1593.

United States Court of Appeals, Tenth Circuit

March 5, 1980

Argued Nov. 30, 1979.

Rehearing Denied Aug. 21, 1980.

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Terry W. Tippens, Oklahoma City, Okl. (Margaret McMorrow-Love, Oklahoma City, Okl., with him on brief), of Fellers, Snider, Blankenship, Bailey & Tippens, Oklahoma City, Okl., for plaintiff-appellee.

Jim Ikard, Oklahoma City, Okl. (Robert Jernigan, Oklahoma City, Okl., with him on brief), for defendant-appellant.

Issie L. Jenkins, Acting Gen. Counsel, Joseph T. Eddins, Associate Gen. Counsel, Beatrice Rosenberg, Asst. Gen. Counsel, and Phillip B. Sklover, Atty., Equal Employment Opportunity Commission, Washington, D. C., filed an amicus curiae brief.

Before HOLLOWAY, BARRETT and DOYLE, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

Sirloin Stockade, Inc. seeks reversal of a final judgment of the United States District Court for the Western District of Oklahoma. The case is one which arises under Title VII of the Civil Rights Act of 1964, as amended. Damages in the amount of $63,822.92 were assessed based on the district court's determination that appellant had discriminated against the plaintiff consistently and continuously throughout her employment at Sirloin Stockade because of her sex. The discrimination took the form of denial of equal pay, denial of opportunities for advancement, and clear acts of retaliation as a result of her filing a claim in the state office concerned with equal employment opportunity.

Sirloin Stockade is a relatively new organization which was shown to have grown and expanded very rapidly during the relevant

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period and thus offered many opportunities for advancement. It was formed in the mid-sixties and by 1973 it had 120 outlets. A number of these were added in the years 1974-1977.

Plaintiff-appellee started work with appellant in 1972, soon after receiving a degree in liberal arts with a psychology major from Oklahoma University. She sought to obtain an assignment in the Training Department. At the time she was advised that there was no opening but that one would probably develop soon. She elected to work temporarily in one of appellant's steak houses to gain general experience in appellant's operations. She continued this for five months. While so engaged, she contacted the Training Director from time to time about openings. In February of 1973, she was transferred to the Printing Department and she was given the task of preparing an operations manual. Upon completion of this, she was moved to the Training Department where she was assigned work under the then director and his assistant. Her duties consisted of answering the phone, doing clerical work and assisting in general department functions. Later, she began performing light testing and interviewing. During this period the director left and the assistant director succeeded him and appellee's duties increased. Notwithstanding this fact, she was not appointed as assistant director nor did she receive the pay of an assistant director. Plaintiff worked in the department for nine months. The department was then abolished and she was transferred to the Advertising Department.

In the Advertising Department, plaintiff worked under the director, Mr. Milt Powell. After about a month he left this position and gave up all his duties with the exception of some of the art work. He continued to do this work on an hourly basis. The plaintiff performed Powell's other duties. In October 1974, the Advertising Department was terminated, and an outside agency took over the advertising work. Plaintiff did not obtain either the position title or the pay of the director during her stay in the department.

Next, the plaintiff was transferred to the Purchasing Department and worked under Ms. Marge Meacham doing the purchasing of items and equipment for new restaurant outlets. She also assisted Ms. Meacham in company publications and in store contests. The plaintiff suggested to Ms. Meacham the creation of a new position in the Purchasing Department involving quality control. Ms. Meacham said that she would take the idea up with one of the officers. Later, the plaintiff was told that she could devote one day per week to this work. Soon after that, however, Roy Rogers, who had been zone manager, was transferred to the Purchasing Department and took on many of these duties. The man who had been the Director of Training was promoted to the position which had been vacated when Rogers was transferred. Plaintiff applied for the vacated position of Director of Training. She was told that she could not be considered for the position. Plaintiff filed a complaint with the Oklahoma Human Rights Commission the next day, February 26, 1976.

Things drastically changed after the filing of the complaint. Plaintiff's responsibilities were taken from her and were assigned to others. Ms. Meacham began calling closed door conferences with her. These were conducted in order to discuss and criticize the plaintiff's work performance and attitude. Derogatory memos were placed in her file by Meacham and Rogers. Finally, she was discharged on June 25, 1976. The reason assigned was failure to perform duties to which she was no longer assigned. After that, plaintiff obtained the essential "Right to Sue" letter from the EEOC. Her next step was to commence the present action.

FINDINGS AND CONCLUSIONS

The cause was tried to Judge Eubanks, who made detailed and thorough findings of fact and conclusions of law. In general, the judge concluded that, beyond a shadow of doubt, the defendant had discriminated against the plaintiff throughout her employment

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based on her sex; that it had consistently denied her the same pay that would have been given to men for the same work; and that she had been denied the opportunity for promotion within the company.

The substance of the court's findings is as follows:

1. That the plaintiff had performed a substantial part of the duties of Advertising Manager for seven months, and although she was not qualified for title of Advertising Director, she was not given a salary which reflected the responsibilities that she had. The court determined that she was entitled to compensation for the actual work that she had performed. The court found that the difference between what she was receiving and what she was entitled to was $200.00 per month.

2. That she was not considered for a promotion in the Purchasing Department when an opening occurred because of her sex; that she was better qualified than was Roy Rogers, who filled the position. On account of this denial because of her sex, the court said that she was entitled to the same pay Rogers received.

3. That she was denied consideration for the position of training director because of her sex, even though she was not as well qualified or better qualified than the male competitor who obtained the position; that she was discriminated against because of her sex when the company refused to consider her.

4. That the defendant wrongfully retaliated against the plaintiff following her discrimination charge with the Oklahoma Human Rights Commission; and that the company discharged her on this account.

5. That plaintiff is entitled to back pay in order to compensate her for the discrimination; that she is entitled to front pay compensation in lieu of reinstatement until June 30, 1981, a period of five years from the date of her wrongful termination. The amount of front pay was calculated to equal the difference between the compensation she was expected to receive in her new job and the salary of Roy Rogers on the date of the judgment. The court said that this remedy was necessary because reinstatement would not be appropriate because the environment at Sirloin Stockade was shown to be too hostile to permit this. In addition, plaintiff is also entitled to lost profit sharing benefits in the amount of $6,708.92, car allowance in the amount of $6,900.00, and reasonable attorney's fees and costs.

From a reading of the findings and statements made at the trial, it is apparent that Judge Eubanks was unquestionably convinced that there had been gross discrimination against the plaintiff because of her sex. The judge found that she was bright, educated and competent, and that she had begun her work with the company at a time when it was growing at a rapid rate, which produced considerable advancement opportunities. Notwithstanding all of these facts, she was kept in the stereotypical role of a clerical position even when she was performing more responsible work. The court found that this company's decisions on promotion were made on a subjective basis and had a discriminatory impact on females, and that the plaintiff's failure to advance was the result of the discriminatory policies and practices. It was further found that the general discrimination against the plaintiff during the entire period of her employment was supported by very specific instances evidencing a conscious intent on the part of the defendant to discriminate against plaintiff on the basis of her sex.

The following are the contentions asserted by the company:

1. That the court erred in finding that the plaintiff was part of a training program.

2. That there was error in connection with the motion for directed verdict as to the advertising director position.

3. That the court's reference to the Equal Pay Act in its findings introduced a new issue into the trial, and that the company was entitled to a jury trial if relief was to be given under the Equal Pay Act.

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4. That the court erred in finding discrimination in relationship to the compensation paid for the Advertising Department position.

5. That the court...

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