805 F.2d 611 (6th Cir. 1986), 84-1362, Rabidue v. Osceola Refining Co., a Div. of Texas-American Petrochemicals, Inc.

• Citation: 805 F.2d 611
• Party Name: 27 Wage & Hour Cas. (BN 1513, Vivienne RABIDUE, Plaintiff-Appellant, v. OSCEOLA REFINING COMPANY, A DIVISION OF TEXAS-AMERICAN PETROCHEMICALS, INC., Defendant-Appellee.
• Case Date: November 13, 1986
• Court: United States Courts of Appeals, U.S. Court of Appeals — Sixth Circuit

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805 F.2d 611 (6th Cir. 1986)

27 Wage & Hour Cas. (BN 1513,

Vivienne RABIDUE, Plaintiff-Appellant,

v.

OSCEOLA REFINING COMPANY, A DIVISION OF TEXAS-AMERICAN

PETROCHEMICALS, INC., Defendant-Appellee.

No. 84-1362.

United States Court of Appeals, Sixth Circuit

November 13, 1986

Argued Sept. 25, 1985.

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Barbara A. Klimaszewski (argued), William T. Street, Lead Counsel, Saginaw, Mich., for plaintiff-appellant.

Seth Lloyd (argued), Fred Woodworth, Dykema, Gossett, Spencer, Goodnow and Trigg, Detroit, Mich., M. Beth Sax, for defendant-appellee.

Before KEITH, KRUPANSKY and MILBURN, Circuit Judges.

KRUPANSKY, Circuit Judge.

The plaintiff Vivienne Rabidue (plaintiff or Rabidue) timely appealed the district court's judgment in favor of defendant Osceola Refining Co. (Osceola), a division of Texas-American Petrochemicals, Inc. (defendant or Texas-American), after a bench trial on plaintiff's charges of sex discrimination and sexual harassment. In her complaint, the plaintiff asserted charges of sex discrimination and sexual harassment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq., Michigan's Elliott-Larsen Act, Mich.Comp.Laws Ann. Sec. 37.2101 et seq., and the Equal Pay Act, 29 U.S.C. Sec. 206(d). A memorandum opinion and judgment of the district court concluded that: (1) the defendant Texas-American, a successor corporation, was not liable for any preacquisition sex discrimination; (2) evidence of the plaintiff's hostile personality, willful rudeness, and disregard for company policies satisfied the burden of proof placed upon the defendant to articulate nondiscriminatory reasons in support of her discharge; (3) the plaintiff failed to produce evidence in support of her charge that the defendant's articulated nondiscriminatory reasons for discharge were pretextual; (4) a male employee's language and sexual poster displays constituted "verbal conduct of a sexual nature" within the meaning of the sexual harassment guidelines promulgated by the Equal Employment Opportunity Commission (EEOC); (5) the language and posters did not create an environment of harassment necessary to support a charge of sexual harassment; (6) the plaintiff failed to establish sexual harassment under Michigan's Elliott-Larsen Act; and (7) the plaintiff failed to establish Equal Pay Act violations. Rabidue v. Osceola Refining Co., 584 F.Supp. 419 (E.D.Mich.1984).

A review of the record disclosed that the plaintiff entered the employ of Osceola during December of 1970, at which time Osceola was an independently owned company. In 1974, United Refineries of Warren, Ohio acquired Osceola and operated it as a separate division. On September 1, 1976, Osceola was acquired by Texas-American, which corporation is the defendant in this lawsuit.

The plaintiff initially occupied the job classification of executive secretary. In that position, she performed a variety of duties, which included attending the telephone, typing, and a limited amount of bookkeeping. In 1973, the plaintiff was promoted to the position of administrative assistant and became a salaried rather than hourly employee. Her new position entitled

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her to a longer lunch hour, more liberal vacation allowances, together with various other benefits. In her position of administrative assistant, the plaintiff was responsible for, among other duties, purchasing office supplies, monitoring and/or distributing incoming governmental regulations, and contacting customers. Subsequently, she was assigned additional duties as credit manager and office manager. Included in the plaintiff's new responsibilities was the authority to assign work to a number of other Osceola employees.

The plaintiff was a capable, independent, ambitious, aggressive, intractable, and opinionated individual. The plaintiff's supervisors and co-employees with whom plaintiff interacted almost uniformly found her to be an abrasive, rude, antagonistic, extremely willful, uncooperative, and irascible personality. She consistently argued with co-workers and company customers in defiance of supervisory direction and jeopardized Osceola's business relationships with major oil companies. She disregarded supervisory instruction and company policy whenever such direction conflicted with her personal reasoning and conclusions. In sum, the plaintiff was a troublesome employee.

The plaintiff's charged sexual harassment arose primarily as a result of her unfortunate acrimonious working relationship with Douglas Henry (Henry). Henry was a supervisor of the company's key punch and computer section. Occasionally, the plaintiff's duties required coordination with Henry's department and personnel, although Henry exercised no supervisory authority over the plaintiff nor the plaintiff over him. Henry was an extremely vulgar and crude individual who customarily made obscene comments about women generally, and, on occasion, directed such obscenities to the plaintiff. Management was aware of Henry's vulgarity, but had been unsuccessful in curbing his offensive personality traits during the time encompassed by this controversy. The plaintiff and Henry, on the occasions when their duties exposed them to each other, were constantly in a confrontation posture. The plaintiff, as well as other female employees, were annoyed by Henry's vulgarity. In addition to Henry's obscenities, other male employees from time to time displayed pictures of nude or scantily clad women in their offices and/or work areas, to which the plaintiff and other women employees were exposed.

The plaintiff was formally discharged from her employment at the company on January 14, 1977 as a result of her many job-related problems, including her irascible and opinionated personality and her inability to work harmoniously with co-workers and customers. The immediate incidents that precipitated the plaintiff's termination included a heated argument with Charles Shoemaker (Shoemaker), the vice-president of Osceola, concerning the implementation of certain accounting practices and procedures by the company and a subsequent, vitriolic confrontation with Robert Fitzsimmons (Fitzsimmons), the vice-president of United Refineries, one of Osceola's major customers, concerning pricing schedules that existed between the companies. The latter incident proved to be highly embarrassing to Shoemaker, especially since the plaintiff intruded into his office while he was meeting with Fitzsimmons. A male employee assumed the plaintiff's former duties as administrative assistant.

Subsequent to her discharge, the plaintiff applied for unemployment benefits with the appropriate state agency, payment of which the company opposed. The plaintiff also timely filed charges of discrimination against her former employer with the EEOC and thereafter commenced the instant action in the district court. At the conclusion of a five-day bench trial which involved the testimony of several witnesses and numerous exhibits, the trial court entered its findings of fact and conclusions of law. See Rabidue, 584 F.Supp. 419.

The plaintiff assigned several errors to the trial court's findings of fact and conclusions of law. Mindful of its responsibilities, this court, at the outset, notes that the district court's factual findings are subject to a clearly erroneous standard of

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review. Federal Rule 52 provides: "Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Fed.R.Civ.P. 52(a). A finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Anderson v. Bessemer City, 470 U.S. 564, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985); United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). This standard does not permit a reviewing court to reverse the finding of the trier of fact simply because it is convinced that it would have decided the case differently. Anderson, 105 S.Ct. at 1511. Where there are two permissible views of the evidence, the interpretation assigned by the fact-finder must be adopted. Id. at 1512. Rule 52 demands even greater deference to the trial court's findings where they are based on credibility determinations. Id.

Initially, this court's attention is directed to the defendant Texas-American's asserted successorship defense. It argued that since it did not acquire Osceola until September 1, 1976, it could not be held liable for Osceola's alleged discrimination which occurred prior to that acquisition date. The issue of the defendant's liability as a successor is disposed of by this circuit's pronouncements in Wiggins v. Spector Freight System, Inc. 583 F.2d 882 (6th Cir.1978). In EEOC v. MacMillan Bloedel Containers, Inc., 503 F.2d 1086 (6th Cir.1974), which predated Wiggins by approximately four years, this circuit enunciated nine criteria to be applied in evaluating successor liability for purposes of Title VII. The MacMillan court directed balancing of the following factors: (1) notice of the charged discrimination by the successor or lack thereof; (2) the ability of the predecessor to provide relief; (3) whether there had been a substantial continuity of business operations; (4) whether the new employer continued to utilize the same plant; (5) whether the successor continued to employ substantially the same work force; (6) whether the new employer continued to use substantially the same supervisory personnel; (7) whether the same jobs remained in existence under substantially the same conditions; (8) whether the employer continued to...