E.E.O.C. v. Crown Zellerbach Corp.

• Decision Date: 02 August 1983
• Docket Number: Nos. 82-5455,82-5570,s. 82-5455
• Citation: 720 F.2d 1008
• Parties: 32 Fair Empl.Prac.Cas. 809, 32 Empl. Prac. Dec. P 33,752 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. CROWN ZELLERBACH CORPORATION, Zellerbach Paper Company, Defendants-Appellees, Raymond B. Brown, Walter L. Cook, Thomas F. Gibbs, Herbert E. King, Sheddrick Charles Kinnebrew, Edgar G. Walker and Luther E. Washington, Intervenors-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1008

720 F.2d 1008

32 Fair Empl.Prac.Cas. 809,

32 Empl. Prac. Dec. P 33,752

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. CROWN ZELLERBACH CORPORATION, Zellerbach Paper Company,

Defendants-Appellees,

Raymond B. Brown, Walter L. Cook, Thomas F. Gibbs, Herbert

E. King, Sheddrick Charles Kinnebrew, Edgar G.

Walker and Luther E. Washington,

Intervenors-Appellants.

Nos. 82-5455, 82-5570.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 9, 1983.

Decided Aug. 2, 1983.

Justine S. Lisser, Atty., E.E.O.C., Washington, D.C., for plaintiff-appellant.

William C. Bottger, Jr., Latham & Watkins, Los Angeles, Cal., for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before FLETCHER and NELSON, Circuit Judges, and SOLOMON, ^* District Judge.

FLETCHER, Circuit Judge:

The Equal Employment Opportunity Commission (EEOC) and intervenors appeal from a ruling of the district court that four-month disciplinary suspensions imposed on each of the intervenors did not violate the opposition clause of Title VII, 42 U.S.C. Sec. 2000e-3(a). The issue presented is whether black employees' conduct in writing a letter to the local school board, a customer of the employer, protesting an affirmative action award to the employer, is a permissible form of protected opposition to discriminatory practices. We conclude that such conduct is protected, and reverse.

I FACTS

1. Background.

The essential facts are undisputed and were stipulated for purposes of the proceeding To remedy what they considered wrongful racial discrimination, black employees at the warehouse filed complaints with the EEOC and engaged in several other protest measures. They formed an organization titled "The Concerned Black Zellerbach Employees." They wrote letters to elected officials at the federal, state, and local levels. On June 15, 1976, 16 black warehouse employees sent a letter to C.R. Dahl, the board chairman of Crown Zellerbach Corporation, Zellerbach's parent, complaining of discrimination against blacks and inadequate affirmative action in the warehouse. As a result of this letter, Crown Zellerbach officials proposed a meeting with the authors to discuss the complaints. All but one of the letter signers refused to attend this meeting, however, because Crown Zellerbach management would not agree to permit the presence of an outside observer.

below. For a number of years during the late 1960's and early 1970's, black employees working in a Los Angeles, California warehouse of the Zellerbach Paper Company expressed discontent concerning certain employment practices prevalent in the warehouse. Specifically, the black employees objected to what they perceived as a practice by Burl McColm, the Personnel Manager at the warehouse, of placing blacks in jobs involving the highest level of physical strain and the longest wait before promotion. The black employees felt that the extremely low percentage of blacks holding supervisory positions in the Los Angeles facility was evidence that McColm and other Zellerbach employees discriminated against blacks.

Later, some of the black employees picketed the campaign headquarters of Los Angeles Mayor Tom Bradley to protest his failure to investigate conditions at the warehouse. On another occasion, black employees picketed the warehouse itself.

In 1976, black Zellerbach employees lodged an administrative complaint with the Office of Federal Contract Compliance Programs, charging that Zellerbach practices did not conform to Executive Order 11246, which requires federal contractors to observe equal employment opportunity guidelines. The General Services Administration investigated this charge. Ultimately it negotiated with Zellerbach a "conciliation agreement" that contained several "findings" that Zellerbach practices were discriminatory in certain respects. Later, this conciliation agreement was superseded by a second conciliation agreement, which again identified certain "deficiencies" and provided that Zellerbach would take corrective action.

The EEOC never sued on any of the unlawful practice charges filed by black Zellerbach employees, except for the one involved in the present action. In December 1978, black Zellerbach employees instituted a class suit alleging racial discrimination. Sometime after the incident that gave rise to the present case, the suit was dismissed on its merits.

2. The Present Controversy.

In late June or early July of 1979, an item appeared in the Union Pacific Press, the house organ newspaper at the Zellerbach warehouse, describing "Project Early Bird." "Project Early Bird" was a program funded by Zellerbach designed to provide special career guidance for sixth-grade students in the predominantly Hispanic school near the Los Angeles warehouse. After describing some of the activities undertaken in the course of "Project Early Bird," the article stated that "on June 11, 1979, Burl McColm, representing Zellerbach, will receive an award from the Los Angeles Unified School District." The Los Angeles Unified School District is composed of elected officials. As virtually all Zellerbach employees knew, it ranks in the top 10% by dollar value of purchases among Zellerbach's customers.

The intervenor-appellants are seven black employees in the Los Angeles Zellerbach warehouse. When they read the Express item, they were extremely displeased because they believed that Zellerbach, and particularly McColm, did not merit what the employees perceived as an award for affirmative action. The seven appellants The black employees of Zellerbach Paper Company and members of the Concerned Black Employees of Zellerbach were shocked and dismayed at the award given to Burl McColm.

together composed a letter addressed to the "Members of the L.A. Unified School District" that read as follows:

Burl McColm has been the Standard Bearer of the bigoted position of racism at Zellerbach Paper Company.

The 1st (first) charges were filed against Zellerbach Paper Company in 1969 and additional charges were filed throughout the seventies.

The Equal Employment Opportunities Commission substantiated many of the charges and the emergent case is now pending litigation (Case No. CV 78-4803-LTL-(SX).

We take issue with the awards being given to these kinds of people when most of us have been fighting racism and discrimination at Zellerbach for the last ten years and some even longer.

We would like an immediate reply from you explaining why you failed to look at Zellerbach's Total Affirmative Action Picture.

Copies of the letter were delivered to officials at Crown Zellerbach as well as the Los Angeles School District. Crown executives were disturbed by the letter because they feared that the school district, a significant customer, might respond adversely to allegations that a supplier practiced racial discrimination. They therefore resolved to fire each of the seven employees who had signed the letter. The appellants were notified of their termination, most on August 3, and one on August 6. It has never been disputed that the sole reason for the discharge was the letter.

Pursuant to the terms of a collective bargaining agreement between Zellerbach and the United Paperworkers International Union, Local 1400, the appellants filed grievances. Each sought reinstatement and full backpay, benefits and seniority on the ground that the dismissal was without "just cause" as required by the agreement. An arbitrator ruled that the employees had been "disloyal" to Zellerbach, the employer, but that the disloyalty did not amount to "just and sufficient cause" for discharge. The arbitrator ordered the employees reinstated immediately, and awarded them backpay starting from a date four months after the discharge. This decision effectively reduced the dismissal sanction to a four-month disciplinary suspension without pay.

In addition to the labor grievance, the appellants filed a charge with the EEOC. They contended that Crown Zellerbach's decision to fire them for writing the letter constituted retaliation for opposition to a discriminatory employment practice, prohibited by section 704(a) of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e-3(a). The EEOC elected to pursue the charge, and filed this action in district court. The seven discharged employees intervened.

On the basis of the stipulated facts set forth above, the district court resolved the statutory issue in favor of the defendant Zellerbach. The court reasoned that the employee letter did constitute good faith "opposition" to employment practices perceived as discriminatory. However, it concluded that the opposition was not protected under section 704(a) because the opposition was expressed in a disloyal and therefore unreasonable form.

II DISCUSSION

Section 704(a) of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e-3(a) (1976), provides that "[i]t 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." To determine whether an employer has discriminated against its employee in violation of this provision, a court must assess the proof of discriminatory treatment claims using the three-stage procedure set forth by the Supreme Court in Texas Department of Community Affairs v First, the plaintiff has the burden of proving a prima facie case of discrimination based on opposition to an unlawful employment practice. See Burdine, 450 U.S. at 252-53, 101 S.Ct. at 1093. The plaintiff meets this burden if he shows that (1) he has engaged in statutorily protected expression; (2) he has suffered an adverse employment action; and (3) there is a causal link between the protected expression and the adverse action. ¹ Payne, 654 F.2d at 1136.

                Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981), and McDonnell

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