Jones v. Flagship Intern.

• Decision Date: 09 July 1986
• Docket Number: No. 85-1124,85-1124
• Citation: 793 F.2d 714
• Parties: 41 Fair Empl.Prac.Cas. 358, 27 Wage & Hour Cas. (BN 1153, 40 Empl. Prac. Dec. P 36,392 B.T. JONES, Plaintiff-Appellant, v. FLAGSHIP INTERNATIONAL d/b/a Sky Chefs, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 714

793 F.2d 714

41 Fair Empl.Prac.Cas. 358,

27 Wage & Hour Cas. (BN 1153,

40 Empl. Prac. Dec. P 36,392

B.T. JONES, Plaintiff-Appellant, v. FLAGSHIP INTERNATIONAL d/b/a Sky Chefs, Defendant-Appellee.

No. 85-1124.

United States Court of Appeals Fifth Circuit.

July 9, 1986.

Arkie Byrd, Little Rock, Ark., for plaintiff-appellant.

Benita Terry Jones, Dallas, Tex., pro se.

Justine S. Lisser, EEOC, Washington, D.C., for amicus curiae EEOC.

Thomas L. Case, St. Claire & Case, Dallas, Tex., David A. Schwarte, Airport, Tex., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before GEE, RUBIN and GARZA, Circuit Judges.

GARZA, Circuit Judge:

Benita T. Jones filed suit against her former employer, Flagship International ("Flagship"), under 42 U.S.C. Secs. 2000 et seq. ("Title VII"), 29 U.S.C. Sec. 206(d) (the "Equal Pay Act"), and 42 U.S.C. Sec. 1981. ¹ Flagship hired Jones, a licensed attorney in Little Rock, Arkansas, on July 30, 1979, as the company's "Manager of Equal Employment Opportunity (EEO) Programs". Jones' principal duties were to investigate charges of discrimination brought against the company, to represent the company before state and federal administrative agencies, to "conciliate" such discrimination charges, and to prepare an affirmative action plan. Jones initial salary of $21,000 was increased to $22,050 in November, 1979; to $23,153 in June, 1980; and to $27,000 on August 29, 1980.

At Flagship, Jones was placed under the supervision of Jared Metze, the Vice-President in charge of Personnel. Jones testified at trial that Metze subjected her to sexual harassment throughout her tenure at Flagship. According to Jones, she had been with Flagship for six weeks when she, Metze, and others went on a business trip to Chicago. Although Metze sent the others home, he and Jones continued on business to Detroit before returning to Dallas. Jones testified that Metze had been driving her home from the airport when she expressed concerns about the security of the hotel in Chicago in which they had stayed. At this point, Metze replied that his wife did not know he was back in town, and offered to take Jones to a "reputable" hotel in Dallas because she needed the "comfort of a man." Jones further testified that she had been so distressed by this incident that she left for Little Rock the next day, remained there for two weeks, and returned only upon Metze's promise that such an incident would not recur.

Jones then testified as to two further occurrences several months later. According to Jones, Metze propositioned her during a trip to San Francisco, and, during a trip to Denver, told her that she was "off the hook" because of a friend's interest in her. Jones stated that she rebuffed these as well as numerous other advances. Metze denied making any advances toward Jones.

A final "sex-related" incident occurred during Flagship's headquarters office Christmas party in December, 1981. On that occasion Kurt Elmer, the company's In addition to sexual harassment, Jones testified that she had been discriminated against in terms of pay and promotion while at Flagship. According to Jones, she made several complaints to Metze and Joseph Primavera, the company's Assistant Vice-President of Employee Relations and another of Jones' supervisors, concerning her pay since the spring of 1980. Jones testified that her grievances were ignored.

Executive Chef and Vice-President, created figures of bare-breasted mermaids as table decorations. After receiving several complaints from female employees, Jones asked Metze whether a complaint should be made to Elmer. Metze proposed that Jones prepare a memo on the matter in order to avoid upsetting Elmer at the party. Jones later wrote such a memo, expressing the distaste of female employees for the figures, and received in reply a short polemic from an obviously unrepentent Elmer.

Jones mentioned her complaints to Peter Vygantas, the company's Senior Vice-President for Administration, during a meeting on January 27, 1982. Jones stated that during the course of the discussion Vygantas asked for a dollar amount of Jones' claims. Jones testified that, in order to get the necessary information for Vygantas, she had to derive salary data from the salary record cards of Metze and Catherine Sharp, her immediate predecessor; this, in turn, required Jones to copy data from their personnel files. Jones further testified that she continued to discuss her complaints, including sexual harassment, in subsequent meetings with Vygantas and Metze.

On February 3, 1982, Jones filed a charge with the EEOC, claiming discrimination in pay and sexual harassment. On February 11, Metze and Vygantas learned of the charge; the latter suspended Jones with pay on the following day. Vygantas testified that the action was necessary because of the conflict of interest created by Jones' position with the company. Shortly after Jones' suspension, Barbara McCaffrey, Metze's secretary, told Metze that she had seen copies of his personnel file in Jones' home. Metze informed Vygantas of this information, as well as information that Jones had solicited Dorothy Smith, another female employee, to file a charge of sex discrimination against the company. Vygantas also testified that he had learned from a security investigation interview conducted on March 22, 1986, that Jones had "invited" Patricia Love, another female employee, to "participate" in an action against the company during the course of numerous meetings between Jones and Love in January, 1982. ²

As a result of this information, Vygantas terminated Jones' employment on April 15, 1982. According to Vygantas, this action was necessary because of the "lack of confidence the company had in her because she clearly had a conflict of interest in performing her duties," Jones' misuse of company property, i.e., Metze's personnel file, in acquiring information concerning salaries, and Jones' attempt to encourage others to file charges against Flagship. ³ Jones then filed a second charge with the EEOC, charging unlawful retaliation.

On October 1, 1982, Jones filed a "class action complaint" which alleged numerous claims on behalf of blacks, women and herself, including claims of discrimination in terms of pay and promotion, sexual harassment and retaliation. During the class certification proceedings, Flagship moved to dismiss the class allegations of Jones' complaint. The district court disqualified Jones as a class representative on the basis of Doe v. A. Corp., 709 F.2d 1043, 1047-48 (5th Cir.1983) (holding that a corporation's former house counsel who had rendered legal advice concerning employee benefits to the corporation prior to his resignation was barred by his ethical obligations as a lawyer from prosecuting, as a class representative of other employees, benefits allegedly due under the corporation's pension and life insurance plans); on November 8, 1983, the court dismissed Jones' class allegations from the complaint.

On January 11, 1984, Jones sought to amend her complaint to include additional defendants, to plead state law claims for invasion of privacy, defamation, intentional infliction of emotional distress, and to add other federal claims under 42 U.S.C. Secs. 1985, 1986. By order dated February 1, 1984, the district court denied Jones' leave to amend. Following trial, which commenced on March 12, 1984, and concluded on March 15, 1984, the district court, in its Memorandum of Decision and Judgment, dated January 24, 1985, entered judgment for Flagship. This appeal followed.

THE NATURE OF JONES' CLAIMS

Jones' claims at trial were grounded on racial and sexual discrimination. The district court found that there was "not the slightest hint that race was even a factor in any of Flagship's employment decisions regarding Jones." It is well established that such a finding is final unless clearly erroneous. F.R.Civ.P. 52(a). A finding is not clearly erroneous unless "the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed." Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 394-95, 68 S.Ct. 525, 541, 92 L.Ed. 746 (1948)). By contrast, a district court's legal conclusion is subject to an appellate court's plenary review.

Jones has abandoned her race discrimination claims, and, on appeal, argues that the district court erred in failing to find sex-based discrimination in terms of pay and promotion, sexual harassment and retaliation. Jones also claims that the court abused its discretion in denying her leave to amend her complaint. Finally, the Equal Employment Opportunity Commission ("EEOC"), as amicus curiae, contends that the court erred in not finding retaliation on Flagship's part.

Most of Jones' complaints fall under Title VII. It is well settled that in a suit arising under Title VII the ultimate burden rests upon the plaintiff to prove, by a preponderance of the evidence, unlawful discrimination.

First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination.

Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant 'to articulate some legitimate, nondiscriminatory reason for the employee's rejection.' ... Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pre-text for discrimination.

Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253-54, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207, 215 (1981) (citations omitted). Accord, McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804-05, 93 S.Ct. 1817, 1825, 36 L.Ed.2d 668 (1973)....