Jackson v. RKO Bottlers of Toledo, Inc.

• Decision Date: 30 August 1984
• Docket Number: No. 82-3803,82-3803
• Parties: 35 Fair Empl.Prac.Cas. 1318, 35 Empl. Prac. Dec. P 34,622 John JACKSON, Plaintiff-Appellant, v. RKO BOTTLERS OF TOLEDO, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 370

743 F.2d 370

35 Fair Empl.Prac.Cas. 1318,

35 Empl. Prac. Dec. P 34,622

John JACKSON, Plaintiff-Appellant, v. RKO BOTTLERS OF TOLEDO, INC., Defendant-Appellee.

No. 82-3803.

United States Court of Appeals Sixth Circuit.

Argued April 19, 1984.

Decided Aug. 30, 1984.

Dennis P. Strong, Gordon A. Senerius (argued), Bayford, Senerius & Vaporis, Toledo, Ohio, for plaintiff-appellant.

Peter R. Casey, III (LC) (argued), John T. Landwehr, Eastman & Smith, Toledo, Ohio, for defendant-appellee.

Before KEITH and MARTIN, Circuit Judges, and HILLMAN, District Judge. ^*

HILLMAN, District Judge.

Plaintiff filed suit under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Sec. 2000e, et seq. (1976), and, 42 U.S.C. Sec. 1981 (Section 1981), claiming that defendant discriminated against him on account of his race. Jackson, who is black, claimed that RKO Bottlers of Toledo (RKO) discriminatorily refused to promote him and then unlawfully discharged him in retaliation for his having filed discrimination charges. Following a bench trial, the district court filed a memorandum opinion concluding that plaintiff failed to prove that defendant unlawfully discriminated against him in either the matter of promotion or discharge. Judgment was entered for defendant and plaintiff appealed.

FACTS

Plaintiff, John Jackson, is a black male. Defendant, RKO Bottlers of Toledo, Inc., manufactures, bottles and distributes soft drinks. Plaintiff began work in 1951 as a general laborer with Variety Club, defendant's predecessor, located in Toledo, Ohio. In 1966, defendant purchased Variety Club, including Variety Club's franchise for bottling and distributing Pepsi Cola. In 1969, RKO built a bottling and distribution facility on Hill Avenue in Toledo, Ohio (Hill Avenue). Plaintiff was offered, and accepted, the opportunity to move to Hill Avenue as working line foreman. In 1974, RKO made plaintiff a salaried supervisory employee, changing his title from working line foreman to Production Supervisor.

From 1969 until 1978, the Plant Superintendent at the Hill Avenue facility was Dan Starsky. Starsky testified that plaintiff functioned as his assistant during the nine-year period Starsky was Plant Superintendent at Hill Avenue. Plaintiff filled in for Starsky during periods when Starsky was absent, albeit with instructions left by Starksy. Plaintiff was responsible for supervising approximately 50 employees. In April of 1978, Starsky received a promotion to become general manager at the RKO facility in Muncie, Indiana. Initially, Robert Johnson (Johnson), the General Manager of RKO in Toledo, decided to replace the Plant Superintendent position with a "team concept" used at other bottling plants. Johnson made plaintiff production manager, another employee, Pete Kerner, warehouse manager, and a third employee, Frank Taylor, maintenance manager of the Hill Avenue facility. Thereafter, Johnson became dissatisfied with the team management system and decided to appoint one individual as Plant Superintendent. He considered plaintiff, Kerner and Taylor for the position, but only plaintiff and Kerner Kerner had also worked at Variety Club since 1951. From 1969 until 1972, Kerner was the Assistant Plant Superintendent at Variety Club. There was much conflict, even among defendant's own witnesses, concerning the extent of Kerner's autonomy as Assistant Plant Superintendent at the Variety Club facility from 1969 until 1972. This issue was relevant to plaintiff's contention that his (Jackson's) skills and experience were superior to Kerner's relative to the Hill Avenue Plant Superintendent position. Defendant, on the other hand, stressed Kerner's history of having managed the Variety Club facility independently and effectively. Kerner testified that Starsky, Plant Superintendent at Hill Avenue, had little involvement at Variety Club and that he (Kerner) reported to Bill McCluskey, who was Plant Manager at Variety Club. Starsky, however, testified that he (Starsky) was Kerner's boss. Starsky further testified that he went over to Variety Club every week or so and probably told Kerner what to buy and what to schedule. Jim Snyder, Vice President and General Manager of RKO from 1969 until 1974, testified that Starsky went to Variety Club once or twice a week, and that he himself probably went once every two weeks.

received serious consideration. In June, 1978, Kerner was selected over plaintiff for the position of Plant Superintendent.

In 1972, the Variety Club operation was closed in favor of the more modern Hill Avenue facility. Kerner then became night warehouse supervisor at the Hill Avenue facility, supervising approximately 10 to 15 employees. It is neither necessary nor proper, for purposes of this appeal, for this court to resolve conflicting evidence regarding the respective experience and qualifications of plaintiff and Kerner with regard to the Plant Superintendent position at Hill Avenue, and we do not do so.

On July 12, 1978, plaintiff filed charges of employment discrimination with the Ohio Civil Rights Commission and the United States Equal Employment Opportunity Commission alleging that he had not been promoted to the position of Plant Superintendent because of his race. On November 15, 1978, he filed this action. Plaintiff alleges that, subsequent to filing this lawsuit and his charges of discrimination, he was subjected to a series of retaliatory actions until his discharge effective on December 1, 1980. After filing discrimination charges, plaintiff was removed from his office. According to defendant, it was Kerner's prerogative, as Plant Superintendent, to choose his office and he chose the office occupied by plaintiff. Defendant claims that plaintiff had the option of sharing a different office with Taylor, who had remained maintenance manager, but that plaintiff declined this arrangement.

Plaintiff further claims defendant retaliated against him when Johnson allegedly urged two female employees, Carol Cowell and Beth Alexander, to file sexual harassment charges against plaintiff in May of 1979. There was conflicting evidence regarding whether Johnson in fact urged the two employees to file these charges against plaintiff, as well as the facts surrounding the underlying incident(s). Neither Cowell nor Alexander, in fact, filed sexual harassment charges.

Plaintiff further alleges that defendant retaliated against him following his filing of discrimination charges by excluding him from production management meetings and by changing his bottling schedules without notice on a number of occasions. According to plaintiff, defendant's final act of retaliation was his discharge from employment.

Plaintiff was discharged by defendant in November, 1980. The incident triggering this discharge occurred after working hours on November 22, 1980, in defendant's parking lot and involved physical contact between plaintiff and one of the defendant's hourly employees, Robert Haas (Haas). Conflicting evidence was introduced as to whether the incident was one of friendly horseplay or was a more serious assault by plaintiff against Haas. November 22, 1980, was the last day of a strike by defendant's hourly employees. During the As Haas and Taylor, the maintenance manager, were leaving the plant, plaintiff and Haas engaged in a verbal exchange about whether Haas owed plaintiff $5 from a bet on the game. Plaintiff followed Haas from the parking lot, approached him and again asked him for the bet money. As noted, the tone of this exchange, i.e. whether humorous or serious, is in dispute. In any event, plaintiff grabbed Haas's clothing and pinned him against Haas's car and then released him. Three security guards, on the premises because of the strike, observed the incident and approached plaintiff and Haas. By the time the guards walked over to the scene of the incident, plaintiff had released Haas.

strike, the plant had been run by supervisory employees and hourly employees not participating in the strike. It was also the day of the University of Michigan-Ohio State football game. The mood at the plant was jovial, both by reason of the end of the strike and the football game. Television sets were placed in the plant that day in order that defendant's personnel could watch the game. On prior occasions, plaintiff and Haas had bet on football games. Plaintiff claims that on November 22, 1980, he and Haas had such a bet. This was denied by Haas.

Taylor, who was present during the incident, reported the incident to Johnson later that weekend after several attempts to reach him. After an investigation of the incident, the thoroughness of which was vigorously disputed, Johnson discharged plaintiff. Defendant characterizes the discharge as a reasonable response to a serious breach of company policy, and notes that plaintiff had been warned previously to never put his hands on an hourly employee. Plaintiff contests both the seriousness of the incident and whether it was the real reason for his discharge. Plaintiff characterizes it as a pretext for what in reality was a retaliatory discharge because of plaintiff's activity protected by Title VII.

DISCUSSION

Section 703(a) of the Act, 42 U.S.C. Sec. 2000e-2(a), makes it unlawful for an employer to discriminate against an employee because of the employee's race, and section 704(a), 42 U.S.C. Sec. 2000e-3(a), makes it an unlawful employment practice to discriminate against an employee for filing a charge under Title VII.

A decision by a district court on the issue of discrimination, or lack thereof, under Title VII is subject to review under the clearly erroneous standard of Rule 52(a), Fed.R.Civ.P.; Pullman--Standard v. Swint, 456 U.S. 273, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982); Anne Geisler v. Frank Folsom, Jr., et al., 6th Cir., 735 F.2d 991 (1984). Findings of the district court are not clearly erroneous unless, upon review of the entire record, the court is left with a definite and...