Wheeler v. Southland Corp.
| Decision Date | 19 July 1989 |
| Docket Number | No. 88-3668,88-3668 |
| Citation | 875 F.2d 1246 |
| Parties | 50 Fair Empl.Prac.Cas. 86, 50 Empl. Prac. Dec. P 39,109 Connie Lynn Tye WHEELER, Plaintiff-Appellee, v. The SOUTHLAND CORPORATION, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Alphonse A. Gerhardstein (argued), Roger R. Chacksfield, Chacksfield & Cooper, Cincinnati, Ohio, for Connie Lynn Tye Wheeler.
James E. Davidson (argued), James M. L. Ferber, Schottenstein, Zox & Dunn, Columbus, Ohio, for Southland Corp.
Before MERRITT and BOGGS, Circuit Judges, and CONTIE, Senior Circuit Judge.
Defendant The Southland Corporation (Southland) appeals from the judgment of the district court awarding plaintiff Connie Lynn Tye Wheeler back pay on her constructive discharge claim based on sexual harassment in this suit brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. For the following reasons, we affirm the judgment of the district court.
Southland is a national corporation which operates convenience stores under the trade name 7-11.
Wheeler was hired by Southland as a part-time clerk in June of 1979. In July of 1981, she became a certified store manager 1 of a newly opened store near the University of Cincinnati. Anthony Abbattista was an area supervisor for Southland from February of 1979 to August of 1983, when he was fired for touching a female receptionist. Harry Schmidt was a management trainee who was being trained to replace Abbattista. Schmidt was assigned to Wheeler's store.
In January of 1982, Abbattista became area supervisor over the area including Wheeler's store. In this capacity, Abbattista visited Wheeler's store several times a week. Each time he visited the store, he would lean against her, touch her hips, and call her "honey" or "baby". In early April of 1982, Abbattista invited Wheeler to a bar for a drink. Wheeler rebuffed his advances. On his next visit to the store, Abbattista was curt and critical of Wheeler's conduct as manager. He gave her a performance notice when he left the store. He was critical of the people she hired, and asked her why she did not hire women with large breasts.
On April 29, 1982, Abbittista wrote Wheeler and advised her that she had not met the certification criteria for January, February and March, and requested that she appear before a Certification Review Board. On June 3, 1982, Wheeler appeared before the Certification Review Board and presented a memorandum offering her explanation of the conditions in the store. Included in the memorandum were three pages describing sexual harassment and discrimination by Abbittista. After the meeting, the district manager told Wheeler that he did not know that Abbittista had been harassing her, although Wheeler claims that she sought to meet with the district manager about the harassment earlier that month. Wheeler was decertified the following day.
Southland conducted an investigation of Wheeler's harassment claim. The administrative assistant who investigated the claim felt the facts did not substantiate Wheeler's claim. The assistant placed weight on the fact that Wheeler had not come forward with the specifics of her claim until the decertification hearing.
On June 16, 1982, Schmidt was assigned to Wheeler's store. Wheeler allegedly told Schmidt of her problems with Abbattista. Schmidt told her to "hang in there" because he would be replacing Abbattista, though Wheeler disputes this. However, Schmidt did not specify when he would be replacing Abbattista.
In mid-June of 1982, Wheeler left work on sick leave for two weeks. She received a doctor's certificate to return to work on July 6th. She then took vacation time. During her vacation, she stopped at the store to pick up her paycheck and told Schmidt that she did not know if she could work for Abbattista. She never returned to work for Southland.
On November 15, 1985, Southland sold its Ohio 7-11 stores to United Dairy Farmers (UDF). At the time of the sale, certified store managers with five years' experience were offered the opportunity to remain with Southland. Also, UDF agreed to use its best efforts to retain Southland employees after the sale, and there was testimony below that Southland employees were retained by UDF.
On February 23, 1984, after exhausting her administrative remedies, Wheeler filed suit in district court under Title VII alleging that she was the victim of sexual harassment and that as a result of this harassment she was forced to resign. The parties consented to all proceedings, including final judgment, being determined by a United States Magistrate. See 28 U.S.C. Sec. 636(c)(1). The case was assigned to Magistrate Robert A. Steinberg. The issues of liability and damages were bifurcated for trial. The liability phase was held from February 4th through the 7th of 1986. On July 23, 1986, the magistrate held that Wheeler had been sexually harassed, but that she had not made out a case of constructive discharge. The magistrate based his decision substantially on a finding that Wheeler knew that she would eventually be working for Schmidt and not Abbattista.
On January 20, 1987, Wheeler filed a memorandum on relief and also requested the court to reconsider its ruling on constructive discharge. Magistrate Steinberg unsuccessfully attempted to settle the case in the spring of 1987. On December 11, 1987, Magistrate Steinberg issued an opinion granting Wheeler's motion to reconsider and held that she had proven that she was constructively discharged. The major basis for the reversal on this issue was the magistrate's reversal of his finding that Wheeler knew that Abbattista would be replaced as her supervisor.
On January 8, 1988, Southland filed a motion to recuse and to vacate judgment. The motion was based on Magistrate Steinberg's participation in settlement negotiations and his reversal on the constructive discharge issue. On January 29, 1988, Magistrate Steinberg denied the motion to recuse and vacate, but transferred the case to Magistrate Aug for the damages phase of the proceedings. After a damages trial was held, Wheeler was awarded back pay for the period from her constructive discharge through the time of the damages trial. Southland timely appeals.
Southland raises three arguments on appeal: (a) it challenges the magistrate's holding that Wheeler had established a constructive discharge; (b) it challenges the award of back pay for the time period after it sold the 7-11 stores to UDF; and (c) it challenges the magistrate's order denying its motion to recuse himself and vacate the December 11th opinion. 2
This court has recently set forth the standards by which a plaintiff establishes a constructive discharge claim.
A finding of constructive discharge in this circuit requires an inquiry into both the objective feelings of the employee and the intent of the employer.... This court has ... held that '[p]roof of discrimination alone is not a sufficient predicate for a finding of constructive discharge, there must be other aggravating factors.' We have also required some inquiry into the employer's intent and the reasonably foreseeable impact of its conduct on the employee.... Thus it would appear that the courts have been trying to create a two pronged test whereby the feelings of the reasonable employee would not be enough to show discharge without at least some foreseeability on the part of the employer.
Yates v. Avco Corp., 819 F.2d 630, 636-37 (6th Cir.1987). In Yates, this court noted that the issue of constructive discharge is at least partially a question of law and therefore must be reviewed de novo. Id. at 636 (citing Jacobs v. Martin Sweets Co., 550 F.2d 364, 370-71 (6th Cir.), cert. denied, 431 U.S. 917, 97 S.Ct. 2180, 53 L.Ed.2d 227 (1977)).
In this case, Southland does not challenge the finding that Wheeler was the victim of sexual harassment; rather, it argues that the court's finding of a constructive discharge was erroneous because it did not find that Southland intended to force Wheeler to resign and it did not find aggravating circumstances. In finding a constructive discharge in his second opinion, the magistrate stated that
This court has stated that "the constructive discharge issue depends upon the facts of each case and requires an inquiry into the intent of the employer and the reasonably foreseeable impact of the employer's conduct upon the employee." Held v. Gulf Oil Co., 684 F.2d 427, 432 (6th Cir.1982). This court has also endorsed the well recognized rule in labor relations that a man is held to intend the foreseeable consequences of his conduct. Id. Therefore, an employee can establish a constructive discharge claim by showing that a reasonable employer would have foreseen that a reasonable employee (or this employee, if facts peculiar to her are known) would feel constructively discharged. 3
To establish her claim, Wheeler must show that a reasonable employer would have foreseen that she would resign, given the sexual harassment she faced. It is uncontested that Wheeler was the victim of sexual harassment. We agree with the magistrate that had Wheeler resigned in May or June, before the investigation by Southland and the placement of Schmidt in her store, she would have established a constructive discharge. We also believe that it is reasonably foreseeable that an employee who faces the kind of harassment to which Wheeler was...
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