Box v. A & P Tea Co.

• Decision Date: 05 September 1985
• Docket Number: Nos. 84-1732,84-1733,s. 84-1732
• Citation: 772 F.2d 1372
• Parties: 38 Fair Empl.Prac.Cas. 1509, 38 Empl. Prac. Dec. P 35,500 Joann Ford BOX, Plaintiff-Appellant, v. A & P TEA COMPANY, Defendant-Appellee. Paula BROCKHOUSE, Plaintiff-Appellant, v. A & P TEA COMPANY, Amalgamated Meat Cutters and Butcher Workmen of North America, Local 320 and International Brotherhood of Amalgamated Meat Cutters and Butcher Workmen of North America, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1372

772 F.2d 1372

38 Fair Empl.Prac.Cas. 1509,

38 Empl. Prac. Dec. P 35,500

Joann Ford BOX, Plaintiff-Appellant, v. A & P TEA COMPANY, Defendant-Appellee.

Paula BROCKHOUSE, Plaintiff-Appellant, v. A & P TEA COMPANY, Amalgamated Meat Cutters and Butcher

Workmen of North America, Local 320 and International

Brotherhood of Amalgamated Meat Cutters and Butcher Workmen

of North America, Defendants-Appellees.

Nos. 84-1732, 84-1733.

United States Court of Appeals Seventh Circuit.

Argued Feb. 15, 1985.

Decided Sept. 5, 1985.

Paul L. Strauss, Davis, Miner, Barnhill & Galland, P.C., Chicago, Ill., for plaintiffs-appellants.

John W. Powers, Asher, Pavalon, Gittler, Greenfield & Segall, Chicago, Ill., for defendants-appellees.

Before WOOD and POSNER, Circuit Judges, and SWYGERT, Senior Circuit Judge.

HARLINGTON WOOD, Jr., Circuit Judge.

Plaintiffs Joann Ford Box and Paula Brockhouse, two former A & P Tea Company ("A & P") cashiers, appeal from the summary judgments entered against their sex discrimination claims. Box contends that A & P discriminated against her in promotions and training while Brockhouse, who admits A & P disciplined her five times in the nine months prior to her discharge, argues that men were not disciplined for similar conduct. We affirm both summary judgments. ¹

I.

Joann Ford Box worked for A & P as a retail clerk-cashier from July, 1965 to July, 1978. In the present lawsuit, Box alleges that A & P discriminated against her both because of her race and because of her sex. Box claims that A & P refused to promote her to bookkeeper or to give her training for that position because she is black. Box further claims that A & P did not promote her to assistant manager or to another management position because of her sex. In her affidavit submitted in opposition to the defendant's motion for summary judgment, Box stated

When I worked at A & P's store on East Court Street in Kankakee, for instance, I continually asked for bookkeeper training. Eventually my store manager told me that A & P's bookkeeping school had closed. I told him that, in that case, I wanted to receive training for some other position so I could advance, for instance, into the assistant manager position. He said that he didn't think that would be possible: it was the Company's policy to usually promote women only to the bookkeeper position, he told me.

A & P moved for summary judgment on Box's sex discrimination claim on the grounds that Box failed to raise a claim of sex discrimination in her complaint to the Equal Employment Opportunity Commission ("EEOC") and that all persons who received the bookkeeper jobs Box claimed she was denied were female. The district court granted summary judgment for both reasons. ² First, the court agreed with A & P that "there [was] reason to doubt whether Box ever properly presented a specific charge of sex discrimination to the EEOC." The district court thought the second reason, that all vacancies in the bookkeeper position Box sought were filled by other women, was a more compelling reason for granting summary judgment. On appeal, Box argues that the first ground is erroneous because on a motion for summary judgment the district court must view the evidence in the light most favorable to the non-moving party. The second ground is wrong, the plaintiff claims, because the evidence submitted to the court demonstrated that Box was complaining not only of discrimination in bookkeeper promotions but also of discrimination in promotions to assistant manager positions.

Summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories, admissions, and affidavits "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Both the district court and the appellate court must view the record and any reasonable inferences drawn therefrom in the light most favorable to the non-moving party. See Munson v. Friske, 754 F.2d 683, 690 (7th Cir.1985); Hermes v. Hein, 742 F.2d 350, 353 (7th Cir.1984).

A plaintiff can bring a Title VII action in federal court only for discrimination "like or reasonably related" to the conduct identified by the plaintiff in her EEOC complaint. See Jenkins v. Blue Cross Mutual Hospital Insurance, Inc., 538 F.2d 164, 167 (7th Cir.) (en banc), cert. denied, 429 U.S. 986, 97 S.Ct. 506, 50 L.Ed.2d 598 (1976). In Jenkins, we held that a plaintiff who checked the race but not the sex discrimination box on the EEOC form could nonetheless bring an action for sex discrimination because the factual allegations in her EEOC charge fairly raised claims of both sex and race discrimination. 538 F.2d at 169; see Patterson v. General Motors Corp., 631 F.2d 476, 483 (7th Cir.1980), cert. denied, 451 U.S. 914, 101 S.Ct. 1988, 68 L.Ed.2d 304 (1981).

In the present case, the typed factual charge discusses Box's claim of race discrimination and does not suggest a sex discrimination claim. See Carrillo v. Illinois Bell Telephone Co., 538 F.Supp. 793, 798 (N.D.Ill.1982). Nonetheless, since we must view the evidence in the light most favorable to the non-moving party, we accept as true Box's affidavit statement that, after a friend had typed the complaint but before Box submitted it to the EEOC, Box checked the "sex" box on the EEOC form and wrote at the bottom "There had been assistant manager promotion[s] with less seniority than myself." Without these handwritten additions, Box's sex discrimination case would clearly lie outside the parameters of her EEOC complaint. See Clark v. Chrysler Corp., 673 F.2d 921, 931 (7th Cir.), cert. denied, 459 U.S. 873, 103 S.Ct. 161, 74 L.Ed.2d 134 (1982). We need not, and do not, decide whether a checkmark of the sex discrimination box, by itself, is sufficient to raise a sex discrimination claim in an EEOC charge. Here Box made the checkmark in the "sex" box and the handwritten statement about the promotions to assistant manager--a position other evidence shows to be held almost exclusively by men; in addition, she stated in an EEOC questionnaire that she was not promoted because she was black and because she was a female. Taken together, these actions preclude summary judgment on the ground that Box failed to present the sex discrimination claim to the EEOC.

The district court also held that A & P was entitled to summary judgment because all the bookkeeper promotions went to women. Were Box's suit based only on A & P's refusal to promote her to bookkeeper, we would agree that Box could not maintain a sex discrimination claim. But the plaintiff argued to the district court that A & P also discriminated against her on the basis of sex by not training her for or promoting her to an assistant manager position. She also submitted evidence which, viewed in the light most favorable to her, shows that she complained about the assistant manager promotions in her EEOC charge and that, in the Chicago area, A & P promoted twenty-seven male but no female grocery clerks to assistant manager from 1975 to 1978. Since the district court did not discuss the assistant manager promotions in granting summary judgment and the reason given by that court does not address this issue, the fact that women received all bookkeeper promotions does not justify the summary judgment for A & P on Box's sex discrimination claim.

A & P argues that Box's sex discrimination claim cannot withstand a motion for summary judgment because Box offered no evidence that she had applied for an assistant manager position or had identified a specific vacancy for which she was considered or should have been considered. The plaintiff counters that this court should not address the merits of these arguments because the defendant makes them for the first time on appeal.

On appeal of a summary judgment, the appellate court can usually consider only those matters that were presented to the trial court. See Frank C. Bailey Enterprises, Inc. v. Cargill, Inc., 582 F.2d 333, 334 (5th Cir.1978). True, we may affirm a summary judgment on any ground that finds support in the record, see United States v. Winthrop Towers, 628 F.2d 1028, 1037 (7th Cir.1980); Miller v. Gateway Transportation Co., 616 F.2d 272, 275 n. 7 (7th Cir.1980), but the ground must have been adequately presented in the trial court so that the non-moving party had an opportunity to submit affidavits or other evidence and contest the issue. See Charbonnages de France v. Smith, 597 F.2d 406, 416 n. 9 (4th Cir.1979); see also Arlinghaus v. Ritenour, 622 F.2d 629, 638 (2d Cir.), cert. denied, 449 U.S. 1013, 101 S.Ct. 570, 66 L.Ed.2d 471 (1980). But see Paskaly v. Seale, 506 F.2d 1209, 1211 n. 4 (9th Cir.1974) (appellate court can affirm on any ground supported by the record and discussed in the appellate court briefs). Analogously, we may affirm a summary judgment on a ground not raised in the trial court if the grounds asserted in the trial court necessarily encompass the ground asserted on appeal. See Hoffa v. Fitzsimmons, 673 F.2d 1345, 1362 (D.C.Cir.1982).

In the district court, A & P argued in its reply memorandum that Box could not "cite any facts to support the claim" of sex discrimination; A & P cited a section of its initial memorandum that included the statement "when the undisputed facts which emerge from a plaintiff's deposition show that she cannot show a prima facie case ..., summary judgment is appropriate." This argument, although not made as elaborately as the two arguments relied on by the district court in granting the motion for summary judgment, gave Box a fair opportunity to submit evidence showing that she could establish a prima facie case. See SEC v. Southwest Coal & Energy Co., 624 F.2d 1312, 1317 (5th Cir.1980); Rich v. United States Lines, Inc., 596 F.2d 541, 551 (3d Cir.1979). Since A & P's arguments that Box never applied for an assistant manager position and never identified which position she t...