Bell v. Birmingham Linen Service

• Decision Date: 30 September 1983
• Docket Number: No. 81-7849,81-7849
• Citation: 715 F.2d 1552
• Parties: 32 Fair Empl.Prac.Cas. (BNA) 1673, 32 Empl. Prac. Dec. P 33,831 Nora C. BELL, Plaintiff-Appellant, v. BIRMINGHAM LINEN SERVICE, etc., Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1552

715 F.2d 1552

32 Fair Empl.Prac.Cas. (BNA) 1673,

32 Empl. Prac. Dec. P 33,831

Nora C. BELL, Plaintiff-Appellant, v. BIRMINGHAM LINEN SERVICE, etc., Defendant-Appellee.

No. 81-7849.

United States Court of Appeals, Eleventh Circuit.

Sept. 30, 1983.

Robert L. Wiggins, Jr., Birmingham, Ala., for plaintiff-appellant.

Engel, Hairston, Moses & Johanson, William B. Hairston, Jr., Birmingham, Ala., Elarbee, Clark & Paul, Robert J. Martin, Jr., Atlanta, Ga., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before TJOFLAT, HILL and JOHNSON, Circuit Judges.

TJOFLAT, Circuit Judge:

Nora Bell brought this suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e--2000e-17 (1976 & Supp. V 1981) alleging that Birmingham Linen Service declined to promote her, or "constructively demoted" her, because she was a woman. Following a non-jury trial, the district court concluded that Ms. Bell had failed to carry her burden of proving by a preponderance of the evidence that she was the victim of gender discrimination. The district court erred in applying the relevant legal principles; we therefore vacate the judgment and remand the case for additional factual findings under the correct legal standards.

I.

Birmingham Linen Service (BLS) operates an industrial laundry in Birmingham, Alabama. Nora Bell works as a presser in that laundry, and has worked for BLS some 23 years. Local 218 of the Laundry, Dry Cleaning, and Dye House Workers Union represents BLS' employees. A collective bargaining agreement between Local 218 and BLS governs the terms and conditions of employment of BLS' workers.

Article 18 of that agreement provides for a posting and bidding procedure to fill job vacancies within the collective bargaining unit. Under Article 18, both immediate job openings and trainee positions must be posted on the employee bulletin board for three working days so that bargaining unit employees may bid for them. Assignments to these jobs and training positions must be made from the bidding. A job will not be considered to be open, however, if a trainee has bid on the job previously and is willing to accept the new assignment. Thus, receipt of a trainee position is a stepping-stone to filling a position that subsequently comes open.

We are hampered in our exposition of the events forming the background of this dispute because the district court failed to make findings concerning many of the basic, subsidiary facts which are unclear or disputed in the record. In March or April of 1977, Richard Day retired from his position as "washman" in BLS' washroom department. ¹ On July 12, 1977, BLS' production manager, Gus Westbrook, posted a bid for an "extra washman" position. ² Westbrook took down the bid sheet on July 18, 1977. Four persons bid on the position: Nora Bell and three males, including Waddell Mason. Ms. Bell was the most senior employee who bid on the job. Westbrook awarded the position to Waddell Mason.

Bell complained to her union representative, Georgia Robinson, that she should have been awarded the extra washman position. Bell and Robinson went to see Westbrook to determine why Bell had not received the position. Westbrook apparently told them that Mason was more qualified. Bell and Robinson then met with plant manager Charles Jones on Friday, August 5, and complained that the job should have been awarded to Bell, the most senior bidder. After that meeting, BLS awarded the position to Ms. Bell. She was told to report to the washroom on Monday, August 8.

When Bell arrived in the washroom on August 8, Westbrook apparently told her that she would be performing "pulling" and "loading" functions. ³ Bell replied that the pulling and loading tasks were not part of the washman position upon which she had bid. Westbrook then offered Bell the apron that pullers wear to keep their clothing dry, and Bell refused to take the apron. Bell left the washroom to see plant manager Jones, who apparently told her to return to the washroom and talk with Westbrook.

Accompanied by union steward Robinson, Bell then met with Westbrook. Westbrook apparently told them that he gave Waddell Mason the job because he had experience in the washroom. He also stated, according to the testimony of both Bell and Robinson, that he would not put Nora Bell in the washroom because if he did, "every woman in the plant would want to go into the washroom." The district court, deciding the credibility of the evidence, specifically found that Westbrook made this statement, or a similar statement in substance, to Bell and Robinson.

Bell then left the washroom, and returned to her job as a presser. She left work that day, August 8, 1977, and filed both a grievance with her union and a charge of gender discrimination with the Equal Employment Opportunity Commission (EEOC). She filed a second, amended charge with the EEOC on September 13, 1978, alleging that Westbrook harassed and intimidated her in retaliation for filing the earlier charge.

Pursuant to Article 27 of the collective bargaining agreement, the dispute went to arbitration. The arbitrator, in his decision of March 7, 1978, found that previous bid awards had been made according to seniority, not qualifications. He also found that Bell possessed sufficient qualifications, under the contract, to have been awarded the job and been trained for it. The arbitrator found that she met all specified criteria for the job. He decided that BLS had violated the contract in two ways. First, it created a "changed" job, that of an extra washman, by combining the duties of a "hydraulic and tumbler operator" (also called an "extractor operator" in the plant) and of a washman, without notifying the union and discussing the change. (This finding pertains to BLS' effort to impose the pulling and loading tasks on Bell.) Second, the arbitrator determined that BLS, either wittingly or unwittingly, violated the contractual proscription against gender discrimination by refusing to award Bell the job because of her sex. The arbitrator ordered that the extra washman position be abolished and that washroom vacancies be awarded on the basis of seniority. He also awarded Bell back pay for the difference between her current hourly rate and the washman rate. Bell received $631.29 pursuant to this award, covering the period from August 16, 1977, to March 17, 1978.

BLS defended in the EEOC proceeding by contending that Bell was denied the vacant extra washman position because she was less qualified than Waddell Mason, the male initially selected for the position. Bell also contended that she was offered the "puller" job previously held by Mason. The EEOC made its determination on November 30, 1978. It found reasonable cause to believe Bell's allegation that she was denied the extra washman position because of her sex. ⁴

The EEOC based its determination on a number of underlying findings. First, seniority had been the governing factor prior to the Bell incident. Second, no female had ever been assigned to the washroom. Third, the job BLS offered Bell as a puller was dissimilar to the extra-washman job she had been denied. The EEOC also cited the evidence indicating Westbrook's sexual bias, and the arbitrator's determination that gender was a factor in BLS' decision. Finally, the EEOC rejected Bell's charges of retaliatory harassment and discrimination stemming from her earlier charge of discrimination filed with it.

Bell originally brought this action as a class suit on behalf of a putative class of women who are employed, were employed, or were wrongfully rejected for employment by BLS. In an amended complaint filed March 26, 1980, she alleged that BLS maintained a pattern and practice of gender discrimination in hiring, initial job assignments, promotions, transfers, wages and other terms and conditions of employment. Bell also reiterated her individual claims of discriminatory nonpromotion and retaliation. Bell also complained that she was denied equal pay for work of equal value. The complaint alleged violations of Title VII and of the Equal Pay Act of 1963, 29 U.S.C. § 206(d) (1976).

In narrowing the issues for trial, the district court ruled that all the allegations of discrimination except the failure-to-promote and retaliation claims were beyond the scope both of the actual EEOC investigation and of what the EEOC reasonably could have been expected to investigate based upon the original charge filed with it. The court therefore granted BLS summary judgment as to all allegations in Bell's complaint except those pertaining to its promotion practices. Bell does not challenge this ruling on appeal. The court also granted BLS' motion to deny the suit class action status since Bell filed no response to the motion and no other material in support of her class claims.

After a two-day trial, the district court found that Bell did make out a prima facie case as to her promotion, or constructive demotion, claim under McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The court found that a vacancy existed, that she applied for it, that she was capable of being qualified for the job with reasonable training, and that the job was later filled by a male. The court further found that it was not necessary for a person to "pull and load" to train for the washman position, and that pulling and loading had not previously been a criterion for obtaining the job of washman.

Applying Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), the court stated that a burden of production shifted to BLS to articulate a legitimate, nondiscriminatory reason for its refusal to place Bell in the washman position or its placing increased burdens on the job after Bell applied for the position. The court summarized BLS' position as being that Mason, the male who ultimately received the job, was...