Hill v. K-Mart Corp.

• Decision Date: 11 March 1983
• Docket Number: No. 80-3838,K-MART,80-3838
• Citation: 699 F.2d 776
• Parties: 31 Fair Empl.Prac.Cas. 269, 31 Empl. Prac. Dec. P 33,422 Jacquelyn HILL, Ind. & ex rel. All Others Similarly Situated, Plaintiffs- Appellants, v.CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 776

699 F.2d 776

31 Fair Empl.Prac.Cas. 269,

31 Empl. Prac. Dec. P 33,422

Jacquelyn HILL, Ind. & ex rel. All Others Similarly Situated, Plaintiffs- Appellants, v. K-MART CORPORATION, Defendant-Appellee.

No. 80-3838.

United States Court of Appeals Fifth Circuit.

March 11, 1983.

Hunt & Jamison, Eugene Hunt, Pine Bluff, Ark., Ronald L. Ellis, New York City, for plaintiffs-appellants.

Milling, Benson, Woodard, Hillyer & Pierson, Michael J. Molony, Jr., New Orleans, La., for defendant-appellee.

Appeal from the United States District Court for the Western District of Louisiana.

Before CLARK, Chief Judge, POLITZ and RANDALL, Circuit Judges.

POLITZ, Circuit Judge:

Invoking Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e, et seq., and the Civil Rights Act of 1866, 42 U.S.C. Sec. 1981, Jacquelyn Hill, a black female, charged her former employer, K-Mart Corporation, with employment discrimination based on race and sex. A lengthy bench trial was held, and the district court dismissed Hill's individual and class action. We affirm.

Background Facts

Hill began her employment with K-Mart in November 1973 in the candy and delicatessen department of its Pine Bluff, Arkansas store. In March 1975 Hill was accepted into K-Mart's Management Training Program. In August 1975, following orientation at a Little Rock store, Hill was promoted to Assistant Manager and transferred to K-Mart's newest store in Shreveport, Louisiana.

For the next 21 months, Hill continued in the Management Training Program at the Shreveport store. During that period she and the other assistant managers were periodically rotated throughout the various store departments as part of the training process. Hill's performance consistently earned her high ratings and regular salary increases.

In May 1977 Hill received notice of a transfer to a K-Mart location in Jackson, Mississippi. A white male assistant manager who had, like Hill, worked in the Shreveport store for 21 months simultaneously received a transfer notice. Assistant managers routinely were transferred after serving 18 to 24 months in a store. Hill declined the transfer for personal reasons and on May 23, 1977, she resigned. After resigning, Hill wrote John Lynch, Regional Personnel Manager, requesting a "resident" assistant manager position in the Pine Bluff store. Lynch made inquiry and recommended Hill to the Arkansas region manager. There were no openings; Lynch's efforts to assist Hill were unsuccessful.

Within two weeks after quitting K-Mart, Hill filed discrimination charges with the Equal Employment Opportunity Commission. After receipt of the right-to-sue letter she filed the instant complaint. Hill's class action charged a pervasive pattern of sexual and racial discrimination in the three K-Mart stores in the Shreveport/Bossier City area. Her individual claim charged that K-Mart subjected her to unlawful treatment.

Individual Claim

Hill alleged that: (1) her authority was undermined because of her race and sex, (2) she was singled out and harassed, (3) she was constructively discharged, and (4) her pay was discriminatory. Her complaints at trial focused on various incidents which, Hill claims, amounted to invidious discrimination.

Shortly after beginning her Shreveport assignment, Hill began to experience problems with an employee in the plant department who was working under her supervision. This employee refused to obey Hill's instructions and at one point referred to her using a racial slur. Hill reported the employee to Store Manager McDaniel for drinking on the job, improper behavior toward female employees, and insubordination, including the racist remark. McDaniel was new and not familiar with the store's employees. He immediately investigated the matter. The employee denied any wrongdoing, but when McDaniel detected the odor of alcohol on the employee's breath he fired him. The employee worked less than 10 days.

In December 1975, a few months after arriving in Shreveport, Hill experienced similar difficulties with a white female employee she upbraided for inadequate work performance. That employee approached McDaniel in tears and referred to Hill in racist terms. McDaniel ordered the employee to "cool off," but when the employee left the store premises without permission, McDaniel sent a discharge order to the personnel office. The next day McDaniel began a vacation. Upon his return he discovered that the personnel director had not fired the employee but had transferred her to another department. McDaniel reprimanded the personnel director but took no further action against the offending employee.

In the fall of 1976, Hill encountered difficulties with a white male subordinate, Bill Brooks, manager of the plant department. Brooks at times ignored Hill's orders. McDaniel considered Brooks a valued employee, crediting the plant department's notable success to Brooks' experience and creativity. McDaniel consistently accorded Brooks considerable latitude in the management of his department. Brooks was noted for his on-going confrontations with assistant managers--black and white, male and female--and his persistent ability always to come out on top, giving him, as the district court observed, a "charmed existence."

When McDaniel could not mediate the dispute between Hill and Brooks he rotated the assistant manager, a personnel management technique used before and after. Six months later Hill complained to McDaniel that Brooks was watching her while she supervised a sidewalk sale. McDaniel assured Hill that Brooks, in the absence of the regular security guard, had been assigned to watch the entire outdoor sales area for security purposes and that she was not under personal surveillance.

Because of these incidents, Hill maintained that K-Mart undermined her authority and denied her the respect to which she was entitled. The district court was not persuaded that the incidents amounted to intentional discrimination in Hill's terms, conditions, or privileges of employment. Nor are we. ¹

Two of the incidents involved race. The court observed that the handling of the incidents of racial remarks left something to be desired. On both occasions McDaniel based his disciplinary decision on grounds other than racism or insubordination and, in one of the instances, allowed the offending employee to remain employed after ordering her dismissed. But Hill has not proved that the incidents had any significant impact on her position or authority. The only evidence of a negative effect was Hill's conclusional statement that the two episodes placed her in a bad light. The record as a whole, including evaluations and testimony from other employees, established that Hill's tenure after the racial slurs--the second occurring one and one-half years before her resignation--was successful and indicated no lack of respect or dignity. We are convinced that Hill stood above the remarks and her position or authority suffered nothing because of them. Hill has not shown that her perceived loss of respect in fact occurred among her subordinates or that McDaniel's response constituted official approval of racist behavior. ² Nor does the record support a finding that these isolated incidents resulted in an atmosphere charged with racist overtones and racial tension, see Rogers v. Equal Employment Opportunity Commission, 454 F.2d 234 (5th Cir.1971), cert. denied, 406 U.S. 957, 92 S.Ct. 2058, 32 L.Ed.2d 343 (1972), sufficient to taint the terms, conditions, or privileges of her employment.

Hill also maintained that her difficulties with Brooks undermined her authority. We are not persuaded. Brooks apparently treated all assistant managers equally--with measured disdain. Brooks' intransigence was extended to all alike. See Vaughn v. Pool Offshore Co., 683 F.2d 922 (5th Cir.1982) (offensive harassment, shared equally by all, not considered actionable discrimination).

Hill had no further difficulties with Brooks for six months after the initial encounter, when she became upset because she thought Brooks had her under surveillance during a sidewalk sale. McDaniel told Hill, and reiterated at trial, that he had ordered surveillance of the sale, both customers and employees, because of an upsurge in missing inventory and the obvious heightened exposure to loss involved in an outside sale. When McDaniel learned that his regular security officer was off-duty, he directed Brooks to watch the sale area, citing Brooks' experience with problems of outdoor security in his plant department. We cannot find that the sidewalk sale incident constituted harassment directed at Hill or that it involved race or sex.

Hill's final complaint is that she was constructively discharged. We are not persuaded that the employment milieu, including the relationship with superiors, co-equals, and subordinates, presented a situation " 'so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign,' " Bourque v. Powell Electrical Manufacturing Co., 617 F.2d 61, 65 (5th Cir.1980) (quoting Alicea Rosado v. Garcia Santiago, 562 F.2d 114, 119 (1st Cir.1977)). Thus, Hill has not shown that she was constructively discharged. Most of the incidents took place long before her resignation. Testimony of co-workers and Hill's letters to Lynch indicate that her primary basis for resigning was the transfer to Jackson, a location more inconvenient to her husband's home in Arkansas than Shreveport or the Arkansas stores. As indicated above, such transfers were standard K-Mart policy, and no showing was made that this one was unusual or unreasonable or in any way motivated by race or sex. Hill was entitled to resign for any reason she deemed sufficient but cannot convert that decision into a "constructive discharge" absent the impermissible factors. Junior v. Texaco, Inc., 688 F.2d 377 (5th Cir.1982).

There should be little need to repeat the reminder that in all things and at...