Brown v. Wesley's Quaker Maid, Inc.

• Decision Date: 27 August 1985
• Docket Number: No. 84-1141,84-1141
• Citation: 771 F.2d 952
• Parties: 38 Fair Empl.Prac.Cas. 1763, 38 Empl. Prac. Dec. P 35,529, 54 USLW 2154, 3 Fed.R.Serv.3d 498 Delores BROWN, Plaintiff-Appellee, v. WESLEY'S QUAKER MAID, INC., A Michigan Corporation, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 952

771 F.2d 952

38 Fair Empl.Prac.Cas. 1763,

38 Empl. Prac. Dec. P 35,529, 54 USLW 2154,

3 Fed.R.Serv.3d 498

Delores BROWN, Plaintiff-Appellee, v. WESLEY'S QUAKER MAID, INC., A Michigan Corporation Defendant-Appellant.

No. 84-1141.

United States Court of Appeals Sixth Circuit.

Argued June 10, 1985.

Decided Aug. 27, 1985.

Charles S. Rudy, argued, Barris, Sott, Denn & Driker, Detroit, Mich., for defendant-appellant.

Susan McParland, Wayne County Neighborhood Legal Service, Douglas E. Lewis, Jeane Mirer, argued, Detroit, Mich., for plaintiff-appellee.

Before KENNEDY and MILBURN, Circuit Judges, and BERTELSMAN, District Judge. ^*

BERTELSMAN, District Judge.

This Title VII case requires us to analyze the role of United States magistrates in conducting hearings pursuant to references by district judges, especially in Title VII cases. Particularly in issue is the scope of review by the referring district judge of the findings of fact of a magistrate who has heard the evidence.

The defendant, Wesley's Quaker Maid, Inc., manufactures ice cream. The plaintiff, Delores Brown, was hired to work in Wesley's Detroit facility on November 25, 1966. She began as a "light packager," loading ice cream onto baskets as they came off the production line. She began on Lines 1 and 2 unloading half gallons and progressed to Lines 3, 4, and 5 unloading lighter "novelty" ice creams. In 1974 Brown was "promoted" to general laborer. This position carried a higher pay scale and encompassed several jobs on an "as needed" basis: offloading ice cream machines, removing refuse from the plant, unloading trucks, washing windows and walls, cleaning fruit and syrup rooms, and sorting scrap ice cream from saleable ice cream.

On July 10, 1975, Brown filed a grievance via her union (Teamsters) complaining that she should be paid wages as a semi-skilled worker in that she operated ice cream machines on a relief basis. The company agreed and reclassified her as semi-skilled.

On March 4, 1977, Brown filed a grievance and a complaint with the Michigan Department of Civil Rights complaining that she had been placed on Line # 1 on the previous day whereas white men with less seniority were placed on the easier lines. Wesley's received a copy of the civil rights complaint on March 18, 1977.

Brown dropped her complaint after a meeting with Wesley's management at which it was decided that the company would give more consideration to senior employees' job preferences. Brown claims that at this meeting Harold Collins, Vice President, stated: "Now we have civil rights on our back." Collins denies he made the statement.

Brown was discharged on March 31, 1977, for theft of ice cream. She admits having taken four to six malt cups and six to eight ice cream bars. Brown contends that the ice cream was scrap ice cream and that even though the company had a policy (of which she was aware) of requiring a bill of sale on all ice cream taken by employees, nevertheless employees often received verbal permission to take scrap ice cream. Defendant contends that the ice cream was saleable and that even if it was scrap, a bill of sale was required which plaintiff did not have.

Brown filed a complaint with the Michigan Department of Civil Rights. Its investigation disclosed no evidence of unlawful discrimination. The same was true of a complaint she filed with the Equal Employment Opportunity Commission. She then filed this action in the United States District Court.

The district judge referred this case to a magistrate as a special master under F.R.Civ.P. 53. The magistrate conducted a trial and made findings of fact and conclusions of law. The magistrate found that defendant's reason for discharging the plaintiff--the theft of ice cream--was not a pretext for discrimination and that Brown had not been treated more harshly than a white male would have been. The magistrate recommended judgment for the defendant. After reviewing the transcript, the district judge reversed the magistrate and ordered judgment for plaintiff including reinstatement and full back pay. He did so using de novo review.

The resolution of this case turns on whether or not the de novo scope of review employed by the district judge in refusing to accept the magistrate's findings of fact was correct under the circumstances. Since the evidence was complex and turned primarily on questions of credibility, there is no doubt that the decision of the magistrate must be upheld and that of the district judge reversed, if the scope of review was limited to the clearly erroneous standard provided by F.R.Civ.P. 53, rather than the de novo standard employed by the district judge.

We conclude that the district judge incorrectly used the de novo standard, and that his decision must be reversed. In this opinion, we will attempt to clarify the various types of references to magistrates in situations such as this and the concomitant types of review.

In analyzing the statutes and procedural rules involved herein, it is necessary to construe in pari materia, 28 U.S.C. Sec. 636 (the Magistrates' Act), 42 U.S.C. Sec. 2000e-5(f)(5) (part of Title VII), and F.R.Civ.P. 53. The complete text of these provisions is attached as Appendix A for ease of reference.

So far as pertinent to this case, the statutes and civil rules provide for five possible kinds of references by district judges to magistrates. ¹ They are as follows:

(1) A non-dispositive pretrial motion such as a discovery motion. The magistrate may rule directly on such a motion. The scope of review is the "clearly erroneous" standard. 28 U.S.C. Sec. 636(b)(1)(A).

(2) A dispositive pretrial motion, such as a motion to dismiss or for summary judgment. Such a reference empowers the magistrate to hold an evidentiary hearing, if required. The magistrate does not rule directly on such a motion, but rather must file a report containing findings of fact and recommendations for the assistance of the district judge who makes the ruling. Here the scope of review of the magistrate's report is de novo. 28 U.S.C. Sec. 636(b)(1)(B) and (C). ² Equal Employment Opportunity Comm. v. Keco Industries, Inc., 748 F.2d 1097, 1102 (6th Cir.1984).

(3) A magistrate may be designated to serve as a special master for a non-jury trial by "showing that some exceptional condition requires it." 28 U.S.C. Sec. 636(b)(2); F.R.Civ.P. 53(b). This may be done without the consent of the parties. The scope of review is the "clearly erroneous" standard. F.R.Civ.P. 53(e)(2); Hawkins v. Ohio Bell Tel. Co., 93 F.R.D. 547 (S.D.Ohio 1982).

(4) A magistrate may be designated to serve as a special master, with consent of the parties, even though no exceptional condition requires it. 28 U.S.C. Sec. 636(b)(2); F.R.Civ.P. 53(b). The scope of review is the "clearly erroneous" standard. F.R.Civ.P. 53(e)(2).

(5) The district judge may refer a Title VII action to a magistrate acting as a master, even though no exceptional condition exists and the parties have not consented, if such case has not been set for trial within 120 days after issue has been joined. 42 U.S.C. Sec. 2000e-5(f)(5). It is clear that the review of the magistrate's findings in this kind of reference is under the "clearly erroneous" standard, because the reference is made under F.R.Civ.P. 53, the only difference being that neither consent of the parties nor showing of an exceptional condition is required. Day v. Wayne County Bd. of Auditors, 749 F.2d 1199, 1201-02 (6th Cir.1984) Spaulding v. University of Washington, 740 F.2d 686, 695 (9th Cir.1984), cert. denied --- U.S. ----, 105 S.Ct. 511, 83 L.Ed.2d 401 (1984).

The plaintiff argues that 28 U.S.C. Sec. 636(b)(3), which permits assignment to magistrates of "such additional duties as are not inconsistent with the Constitution and laws of the United States" authorizes the reference of a matter to a magistrate without consent of the parties with the court reserving to itself a de novo review contrary to the provisions above discussed. This court has implicitly rejected such contention, holding that this subsection applies only to procedural and administrative matters. Hill v. Duriron, Inc., 656 F.2d 1208, 1214 (6th Cir.1981); see also, Banks v. United States, 614 F.2d 95, 97 (6th Cir.1980); Accord: Muhich v. Allen, 603 F.2d 1247, 1251 (7th Cir.1979); Collins v. Foreman, 729 F.2d 108, 119 (2d Cir.1984), cert. denied --- U.S. ----, 105 S.Ct. 218, 83 L.Ed.2d 148 (1984); contra Calderon v. Waco Lighthouse for the Blind, 630 F.2d 352, 354 (5th Cir.1980). We now make explicit what was implicit in Duriron. We believe that a construction of subsection Sec. 636(b)(3) to permit non-consensual references to magistrates in a manner at variance with the carefully crafted provisions of Sec. 636 would be anomalous and contrary to fundamental precepts of statutory construction and the legislative history of the Magistrate's Act.

With this background we may turn to the actual proceedings in the instant case. At the conclusion of the pleading stage, the case came before the district judge at a docket or status call. At that time, he dismissed a counterclaim involving a state law claim of defamation. He then orally stated:

"In all, the counterclaim does not state any claim that can be adjudicated by the court and I will grant the motion to strike the counterclaim. That leaves us only with a Title VII case and I am going to direct the Clerk Monday to transfer this case to the Magistrate for trial. I am going to direct the Magistrate [to] conduct a timely trial in this matter so we can get it disposed of. An order will be entered directing the Magistrate to bring this matter to trial, and I will set an early date for it. Of course, you will receive a copy of that order, each of you will."

"Thank you both very much."

The order of reference entered pursuant to this oral direction is set forth in Appendix B hereto. It may be seen that it is not totally clear as to the authority for the...