758 F.2d 1462 (11th Cir. 1985), 84-8288, Nord v. United States Steel Corp.

Docket Nº:84-8288.
Citation:758 F.2d 1462
Party Name:Michaele Cowart NORD, Plaintiff-Intervenor-Appellee, Cross-Appellant, v. UNITED STATES STEEL CORPORATION, Defendant-Appellant, Cross-Appellee.
Case Date:April 25, 1985
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1462

758 F.2d 1462 (11th Cir. 1985)

Michaele Cowart NORD, Plaintiff-Intervenor-Appellee, Cross-Appellant,

v.

UNITED STATES STEEL CORPORATION, Defendant-Appellant, Cross-Appellee.

No. 84-8288.

United States Court of Appeals, Eleventh Circuit

April 25, 1985

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James T. Carney, Pittsburgh, Pa., for defendant-appellant, cross-appellee.

Peggy R. Mastroianni, Washington, D.C., for E.E.O.C.

Charles W. Whitney, Jesse P. Schaudies, Jr., Atlanta, Ga., for plaintiff-intervenor-appellee, cross-appellant.

Appeals from the United States District Court for the Northern District of Georgia.

Before KRAVITCH, JOHNSON and TUTTLE, Circuit Judges.

KRAVITCH, Circuit Judge:

Michaele Cowart Nord brought suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e, et seq., claiming that her former employer, United States Steel (U.S.S.), discriminated against her on the basis of her sex by failing to promote her and by discharging her. The court below found in favor of Nord and awarded her back pay for the time period between the date of her discharge and the date of the court's oral findings. U.S.S. appeals from the court's ruling on the issue of liability, and both parties challenge the manner in which the court determined damages.

I. BACKGROUND

The lower court made the following findings:

In February, 1972, Nord was hired by U.S.S. as a stenographer-clerk in its Atlanta sales office. 1 She continued to work there until her termination in January, 1979.

At the time Nord was hired, the Atlanta sales office was organized into teams. A team consisted of a service representative, who performed follow-up work on sales accounts, and a stenographer-clerk, a support person who acted at the direction of the service representative. Frequently, the stenographer-clerk performed the same tasks as the service representative. While Nord worked as a stenographer-clerk, she performed both clerical duties and dealt directly with customers by soliciting and taking orders, providing price quotations, hearing complaints, and answering inquiries. Thus, she had the opportunity to undertake all of the duties performed by a service representative in addition to her duties as a clerk.

In October, 1978, the office was reorganized and Nord was reclassified as a sales-service clerk. All service representatives were reclassified as inside sales representatives. The basic duties of each position remained the same. A normal order of promotion from sales-service clerk to service representative appeared to be through the positions of service correspondent, claims correspondent, and order correspondent.

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Each of these jobs would provide a training ground to progress and ultimately reach the position of service representative. U.S.S. stipulated that it never gave serious thought to promoting Nord to one of these higher positions.

When Nord began working at the Atlanta sales office, all of the service representatives were male and all of the stenographer-clerks were female. At the time of her discharge, there was one female inside sales representative. By the time of Nord's trial, there were twelve inside sales representative positions, of which nine were held by males, two were held by females, and one was vacant. Donna Walker, the only female inside sales representative when Nord was terminated, testified that she had been an inside sales representative or a service representative for ten years, but had been told that her opportunities for advancement were limited. The defendant did not offer any contrary evidence or any explanation for this. From May 1, 1973, until June 1, 1979, defendant neither hired nor promoted a woman to a sales position. While Nord was employed at the Atlanta sales office, twelve individuals were promoted, hired, or transferred to sales positions, of whom only one was a female. Frederick M. Peggs, the Atlanta regional sales manager since July, 1978, testified that as of November 12, 1981, he had never received recommendations for or applications from female employees for the position of sales representative.

For the years 1972 through 1977, Nord received written evaluations of "good as most" or "above average." Her first adverse evaluation was filed in 1978 when she received a "below average" rating. Prior to receiving this adverse evaluation, Nord made two requests for promotion, one oral and one written. 2 U.S.S. did not reply to either request. Subsequent to Nord's requests for promotion, defendant filled two positions of service correspondent and four positions of inside sales representative with males. Either of these positions would have been a promotion for Nord.

U.S.S. claims that Nord was not promoted and was eventually terminated because of her bad attitude and inability to get along with other employees. The evidence shows that Nord had one conflict with another employee named Spires. On two occasions she was transferred from one inside sales representative to another. These transfers involved two male inside sales representatives, Joseph Odishoo and Richard Estes. At trial, Odishoo and Estes testified that Nord had performed inadequately while under their supervision and that she had personality problems. In his written evaluations of this same period, however, Odishoo had rated Nord as "above average" or as "good as most" and had described her personality as "super." It was not until after Nord requested a promotion that her written evaluations became negative. Nord's last conflict with management occurred when she asked Bailey, the technical coordinator, for permission to review her personnel file. After two requests, Nord was allowed to see the file, but was told that she would be fired if any other employee made a similar request.

The court below found "two significant and interesting" factors about Nord's alleged conflict with management: first, the conflict came after she requested a promotion and received no response; and second, management was all male. The court also found that the following aspects of defendant's subjective promotion process indicated a built-in mechanism for sex discrimination: all of the management personnel were male; all of the supervisors were male and a principal factor in determining who received a promotion was the recommendation of a supervisor; there was no practice of posting job openings, rather, all

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information was conveyed by word of mouth; there were no established procedures or standards governing promotion; employees were not provided with information regarding the necessary qualifications for promotion.

The court below found that defendant intentionally discriminated against the plaintiff, and awarded her $88,960 in back pay and $18,193.50 in attorney's fees, together with other costs.

II. LIABILITY

Applying the test set out by the Supreme Court in McDonnell-Douglas v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973), the lower court determined that Nord had satisfied her burden of establishing a prima facie case of sex discrimination by showing that she was a member of a group protected by Title VII, that she applied for and apparently was qualified for available positions, and that after she applied for these positions, the defendant filled the vacancies with other applicants of equal or lesser qualifications. Regarding plaintiff's qualifications for the position of inside sales representative, the court found that there was uncontroverted testimony that Nord was capable of performing, and actually had performed, many of the duties of this position. Moreover, the court found that Nord's qualifications for the positions of inside sales representative and service correspondent were not in issue because defendant had conceded that it never considered Nord for promotion. Defendant's proffered legitimate nondiscriminatory reason for not promoting plaintiff, and for ultimately firing her, was that she had a poor work performance record, a bad attitude, and personality conflicts with her supervisors and coworkers. The court found that plaintiff had successfully challenged these allegations as pretextual "and had demonstrated overwhelmingly that the less-than-satisfactory work performance reviews did not occur until after [plaintiff] had made repeated requests to be considered for promotion and that the alleged personality and attitude problems did not exist." The court below also determined that the subjective nature of defendant's promotion policy rendered it invalid. See Parson v. Kaiser Aluminum & Chemical Corp., 575 F.2d 1374 (5th Cir.1978), cert. denied, 441 U.S. 968, 99 S.Ct. 2417, 60 L.Ed.2d 1073 (1979); 3 Rowe v. General Motors Corp., 457 F.2d 348 (5th Cir.1972); see also Bell v. Birmingham Linen Service, 715 F.2d 1552 (11th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 2385, 81 L.Ed.2d 344 (1984); Harris v. Birmingham Board of Education, 712 F.2d 1377 (11th Cir.1983); Watson v. National Linen Service, 686 F.2d 877 (11th Cir.1982).

Defendant claims that certain factual errors by the district court render its opinion clearly erroneous. First, defendant claims that Nord's conflict with management began before she requested a promotion. In support of this claim, defendant points to plaintiff's testimony that, from the beginning of her employment...

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