731 F.2d 64 (1st Cir. 1984), 82-1886, Johnson v. Allyn & Bacon, Inc.

Docket Nº:82-1886, 83-1048.
Citation:731 F.2d 64
Party Name:Barbara C. JOHNSON, Plaintiff, Appellant, v. ALLYN & BACON, INC., Defendant, Appellee.
Case Date:March 29, 1984
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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731 F.2d 64 (1st Cir. 1984)

Barbara C. JOHNSON, Plaintiff, Appellant,


ALLYN & BACON, INC., Defendant, Appellee.

Nos. 82-1886, 83-1048.

United States Court of Appeals, First Circuit

March 29, 1984

Argued Aug. 1, 1983.

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Edward J. Collins, Wayland, Mass., for Barbara C. Johnson.

John D. Canoni, New York City, with whom Townley & Updike, New York City, was on brief, for Allyn & Bacon, Inc.

Before CAMPBELL, Chief Judge, BOWNES, Circuit Judge, and PEREZ-GIMENEZ, [*] District Judge.

PEREZ-GIMENEZ, District Judge.

Barbara C. Johnson appeals from a decision of the United States District Court for the District of Massachusetts, Robert E. Keeton, Judge, entered September 3, 1982, denying relief for alleged acts of sex discrimination which she claims were committed against her by defendant-appellee, Allyn & Bacon, Inc., (Allyn & Bacon) in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e, et seq. (1976). Specifically, Johnson alleges that she was discriminated against because of her sex in connection with (1) her application for promotion to the position of Senior Production Editor; (2) her application for promotion to the position of Production Manager; (3) her application for promotion to the position of Series Editor; (4) the disparity in salary between what she was paid as a Basic Books Editor and what a Series Editor was paid for allegedly comparable work; and (5) her dismissal from Allyn & Bacon. 1 Moreover, Johnson argues in her brief that the district court erred in treating the case entirely as a "disparate treatment" case instead of applying the "disparate impact" theory to some of her claims. For the reasons set forth below, we affirm the decision of the district court.

I. Facts

Appellee, Allyn & Bacon, is a Delaware corporation that maintains offices and facilities in Massachusetts, where it publishes textbooks. Appellant, Barbara Johnson, was hired by Allyn & Bacon on April 10, 1972, as a Production Editor for scientific and technical books in the College Editorial Department, at a salary of $10,500 per year. Johnson's duties included copy editing, proof editing and obtaining illustrations for books, and she worked primarily on math and science texts. On August 1, 1973, she was promoted to the newly created position of Basic Books Editor for technical books, and her salary increased from $11,525--to which it had grown as a result of cost of living and merit raises--to $12,600. Appellant herself was greatly responsible for creating the Basic Books Editor position at Allyn & Bacon and for outlining its contours. As a Basic Books Editor, Johnson worked closely with authors in the writing and editorial process to help them develop marketable manuscripts and iron out problems before the manuscripts went to production editors.

On October 3, 1974, Johnson was put on probation by William Bokerman, Production Manager for Allyn & Bacon's College Editorial Division, and her immediate superior. Bokerman sent Johnson a memorandum (dated October 21, 1974) explaining

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that her probation resulted from her disruptiveness within the company--i.e., her "public disputes with supervisors, production editors, and designers, as well as with individuals outside the department and the company", coupled with her "inability or unwillingness to restrain (sic) from subjecting [her] co-workers to marathon one-sided conversations...." The probation period was to last three months, during which time Johnson could receive no promotions or salary increases. On January 17, 1975, shortly after the probation period ended, Johnson was dismissed from Allyn & Bacon. In the termination letter, Bokerman informed her that since the probation period began she had "been involved in a number of incidents that [had] convinced [him] that [her] continued employment with Allyn & Bacon [was] no longer tenable."

Thereafter, Johnson filed a complaint with the Massachusetts Commission Against Discrimination (MCAD), on January 21, 1975, claiming unlawful discrimination in her firing. The MCAD charge was docketed with the Equal Employment Opportunity Commission (EEOC) on January 28, 1975, and on February 20, 1975, Johnson filed an amended charge with the EEOC, also claiming sex discrimination. On August 12, 1976, the MCAD issued a finding of lack of probable cause stating that "(t)here is no evidence to sustain [Johnson's] contention that sex was the reason for her termination" and dismissed her complaint. After a further investigation, the MCAD sustained the lack of probable cause finding on February 8, 1977. On August 4, 1977, the District Director of the EEOC issued a determination dismissing Johnson's charge, stating "there is not reasonable cause to believe that the charge is true." As required by EEOC regulations, the District Director issued Johnson a Notice of Right to Sue in the United States District Court.

On October 31, 1977, Johnson filed this action. She alleged in the complaint 2 deprivation of rights secured by Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Sec. 2000e, et seq., claiming that she was the victim of unlawful sex discrimination in the terms and conditions of her employment and that she was dismissed in retaliation for her opposition to the company's discriminatory practices. The court's jurisdiction was invoked pursuant to 42 U.S.C. Sec. 2000e-5(f) and 28 U.S.C. Sec. 1343(4).

A twelve-day bench trial was held before Judge Keeton during parts of June, July and August of 1982. Twenty witnesses testified producing a lengthy transcript, and the parties submitted over sixty written exhibits. On September 3, 1982, the district court issued a memorandum opinion finding against Johnson and for Allyn & Bacon on the merits of all of Johnson's claims, and ordering the action dismissed. 3 In his very detailed and well-reasoned memorandum opinion, Judge Keeton summarized Johnson's contentions as follows:

(1) that she was qualified for, applied for, and was denied the position of Senior Production Editor, after which the position remained open and then was filled by a less qualified man; (2) that she was qualified for, applied for and was denied the position of Production Manager, after which the position remained open and then was filled by a less qualified man; (3) that as a Basic Books Editor she requested and was denied pay increases and certain benefits and work conditions that would have made her pay, benefits, and conditions comparable to those of men doing similar work; (4) that she

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wished to apply for a sales position, but was told that the company did not hire women in sales positions, and that she was also unable to obtain a series editorial position because of her sex; (5) that she was placed on probation and then terminated because of her requests for comparable pay, benefits and conditions and because, in general, she was an aggressive woman who would not accept A & B's unlawful discrimination against her.

Judge Keeton went on to hold that Johnson had not proven a Title VII violation in that she had failed to carry her burden of persuading the court that Allyn & Bacon's actions were motivated by a discriminatory animus. Specifically, the court found that Johnson failed to show that the reasons advanced by Allyn & Bacon for its actions were pretextual. As to Johnson's claims of disparity in salary, Judge Keeton further found that she failed even to establish a prima facie case of discrimination, i.e., unequal treatment. 4 Subsequently, the district court entered an order dismissing Johnson's actions. 5 This appeal followed.

II. Standards of Disparate Treatment Claims

The central focus of a court confronted with a Title VII sex discrimination case is whether the employer is treating "some people less favorably than others because of their ... sex." Teamsters v. United States, 431 U.S. 324, 335, n. 15, 97 S.Ct. 1843, 1854, n. 15, 52 L.Ed.2d 396 (1977). To succeed in such a case the plaintiff must prove that he or she was discriminated against. See, Teamsters, supra (where a pattern or practice of discrimination is shown, each member of the discriminated-against class is presumptively entitled to relief, but individual relief may be granted only on an individualized finding of discrimination).

In determining whether Johnson was discriminated against, the district court correctly applied the analytical framework provided by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under McDonnell Douglas, a plaintiff asserting a disparate treatment discrimination claim must first establish a...

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