882 F.2d 908 (4th Cir. 1989), 88-2574, Mallory v. Booth Refrigeration Supply Co., Inc.

Docket Nº:88-2574.
Citation:882 F.2d 908
Party Name:Erma R. MALLORY; Joyce S. Byrd Plaintiffs-Appellants, and Barbara A. Hill; Vivian E. Reid Plaintiffs, v. BOOTH REFRIGERATION SUPPLY CO., INC., a/k/a Refrigeration Supply Co., a/k/a Booth Supply Co. Defendant-Appellee.
Case Date:August 23, 1989
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 908

882 F.2d 908 (4th Cir. 1989)

Erma R. MALLORY; Joyce S. Byrd Plaintiffs-Appellants,

and

Barbara A. Hill; Vivian E. Reid Plaintiffs,

v.

BOOTH REFRIGERATION SUPPLY CO., INC., a/k/a Refrigeration

Supply Co., a/k/a Booth Supply Co. Defendant-Appellee.

No. 88-2574.

United States Court of Appeals, Fourth Circuit

August 23, 1989

Argued Feb. 9, 1989.

Page 909

Henry L. Marsh, III (D. Eugene Cheek, Hill, Tucker & Marsh; Jay J. Levit, Levit & Mann on brief), for plaintiffs-appellants.

Cynthia Eppes Hudson (Eva S. Tashjian-Brown, McGuire, Woods, Battle & Boothe on brief), for defendant-appellee.

Before MURNAGHAN, Circuit Judge, BUTZNER, Senior Circuit Judge, and TILLEY, United States District Judge for the Middle District of North Carolina, sitting by designation.

BUTZNER, Senior Circuit Judge:

Erma Mallory and Joyce Byrd appeal from a district court judgment in favor of Booth Refrigeration Supply Company (Booth Supply). Mallory and Byrd sued Booth Supply under Title VII of the Civil Rights Act, 42 U.S.C. Sec. 2000e et seq., and 42 U.S.C. Sec. 1981 alleging race discrimination in wages and promotions. After a bench trial, the district court found that there had been no discrimination. Because its judgment is supported by the evidence, we affirm.

I

Booth Supply is a wholesale supplier of refrigeration, heating, and air conditioning equipment. The company is a family-owned business begun by E.L. Booth and his brother. E.L. Booth personally managed the company until his death in June 1987. Both Byrd and Mallory are black and have been employed in the main office in Richmond, Virginia, since 1975 and 1976 respectively. Byrd is an accounts receivable clerk and Mallory is a government billing clerk; both work in the accounts receivable department.

E.L. Booth made all employment decisions at issue in this case. He promoted employees based on his personal observations. There were no written policies on promotions, and the company did not post announcements about available positions.

In the three years preceding Byrd's and Mallory's complaint, three supervisory positions became available in the main office, one of which was in Byrd's and Mallory's department. This position opened in the summer of 1986, and E.L. Booth promoted a white employee, Lori Thorp, to the job in October 1986. Subsequently, Mallory and Byrd filed a complaint with the EEOC and in due course instituted this action alleging that E.L. Booth's failure to promote them instead of Lori Thorp was due to racial discrimination.

E.L. Booth also determined all wages, and Byrd and Mallory alleged that he did so in a discriminatory manner. They claimed that similarly situated white employees were paid substantially more than they were paid.

The district court held that Mallory and Byrd failed to produce any evidence that they would have been promoted but for their race. With respect to the discriminatory pay claim, the district court found no evidence that black clerical employees were paid less than similarly situated white clerical employees. Instead, the court found that Byrd and Mallory were among the highest paid clerical employees and that white employees who were paid more worked in different jobs and were therefore not similarly situated.

II

The trial court's determination that Booth Supply did not discriminate against Mallory and Byrd is a factual one and must not be disturbed on appeal unless it is clearly erroneous. See Pullman-Standard v. Swint, 456 U.S. 273, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982); Anderson v. City of Bessemer, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). To reverse the trial court's finding under the clearly erroneous standard of review, we must be "left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948).

Page 910

In Patterson v. McLean Credit Union, --- U.S. ----, 109 S.Ct. 2363, 2376-79, 105 L.Ed.2d 132 (1989), the Court recently explained that where a "promotion rises to the level of an opportunity for a new and distinct relation between the employee and the employer," a claim of discrimination with respect to a promotion is "actionable under [42 U.S.C.] Sec. 1981." --- U.S. at ----, 109 S.Ct. at...

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