Welty v. SF & G., INC.

• Citation: 605 F. Supp. 1548
• Decision Date: 11 April 1985
• Docket Number: No. CV 83-HM-5907-NE.,CV 83-HM-5907-NE.
• Court: U.S. District Court — Northern District of Alabama
• Parties: Madelyn WELTY, Plaintiff, v. S.F. & G., INC., d/b/a Mercury; Mercury Consolidated, Inc. ["Mercury"], Defendant.

605 F. Supp. 1548

Madelyn WELTY, Plaintiff, v. S.F. & G., INC., d/b/a Mercury; Mercury Consolidated, Inc. "Mercury", Defendant.

No. CV 83-HM-5907-NE.

United States District Court, N.D. Alabama, Northeastern Division.

April 11, 1985.

COPYRIGHT MATERIAL OMITTED

Gary V. Conchin, Higgs & Conchin, Marcia Stevens, Huntsville, Ala., for plaintiff.

William F. Gardner, William K. Thomas, Cabaniss, Hohnston, Gardner, Dumas & O'Neal, Birmingham, Ala., for defendant.

MEMORANDUM OF DECISION

HALTOM, District Judge.

I. INTRODUCTION

This is a discharge case involving two claims, one filed under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e ("Title VII"), the other under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"). The claims allege that defendant S.F. & G., Inc., d/b/a Mercury; d/b/a Mercury Consolidated, Inc. terminated plaintiff's employment because of her sex and age. The correct name of defendant in this litigation is Mercury Consolidated, Inc. ("Mercury"). The case is before the Court on Mercury's submitted motion for summary judgment based on the plaintiff's failure to comply with the statutory requirement of filing a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") within 180 days of the alleged unlawful employment practice.

II. UNDISPUTED FACTS

The following facts relevant to the motion for summary judgment are undisputed:

A. PLAINTIFF'S EMPLOYMENT WITH MERCURY:

1. Mercury Consolidated, Inc. is a contractor at the Marshall Space Flight Center in Huntsville, Alabama. It was formerly known as S.F. & G., Inc. d/b/a Mercury. Mercury's contract with the National Aeronautics and Space Administration is for base operations and maintenance. The contract includes building and grounds maintenance at the Center, some construction work, the supply system, and the taxi transportation service. There are normally approximately 400 people employed by Mercury under the contract. (Plaintiff's depositions, at 50-51).

2. Plaintiff was employed by Mercury as Administrative Manager on March 1, 1981. (Plaintiff's deposition, at 46-47). As Administrative Manager, plaintiff was responsible for personnel matters with the exception of labor relations, for the accounting function (Plaintiff's deposition, at 55), for insuring that requirements of the government contract were met, for negotiating contract changes with the government, and for the security function. (Plaintiff's deposition, at 60). Plaintiff reported directly to Project Manager John Hill.

B. TERMINATION OF PLAINTIFF'S EMPLOYMENT.

3. According to the plaintiff's testimony, approximately $1,000,000 in government payments was lost shortly before her discharge. Prior to issuing replacement checks, the government required that Mercury attempt to track down the lost payments (Plaintiff's deposition, at 70-71). The delay in receiving these substantial payments "caused a lot of financial problems." To meet the financial difficulties, plaintiff went through the accounts payable and set aside for later payment Mercury debts which she concluded "could be set aside and not paid immediately." (Plaintiff's deposition, at 71).

4. Among the bills which plaintiff set aside were statements from the Company's group insurance carrier. Id. This carrier provided health insurance coverage for approximately 200 Mercury employees. (Plaintiff's deposition, at 178). When Project Manager Hill learned that the Company had two unpaid bills from the insurance carrier and that the Company had "received a letter from the insurance company saying that if we didn't pay our insurance premium by a certain date, our employees' group insurance would be terminated" (Plaintiff's deposition, at 72), he requested that plaintiff get a list of all the vendors whose bills were put to the side.

5. When Mr. Hill saw the list, plaintiff was informed of her termination. Ms. Welty described her discharge in the following terms:

He took one look at it and said he was terminating me, that that was unacceptable. He didn't like surprises. He was upset that I coordinated it with the corporate office instead of with him and that he felt that I was on their team and not on his team, and I was through. That was the extent of it.

(Plaintiff's deposition, at 72-73).

6. The meeting at which plaintiff was informed of her termination took place on approximately November 3, 1982. The deposition testimony relevant to the date of this meeting is as follows:

Q When were you informed that you were going to be discharged?

A It was the first week in November.

* * * * * *

Q But you said, I believe, that you were told you were going to be discharged back in November?

A That's right. It was approximately the 3rd of November.

* * * * * *

Q You're certain that it was during at least the first week of the first few days of November; is that correct?

A Yes.

(Plaintiff's deposition, at 67-68).

Q ... It was November the 3rd, 1982, that you were informed your employment was being terminated.

A It was approximately. It might have been the 2nd or the 4th, but it was in that area to where 30 days would be December 3rd.

(Plaintiff's deposition, at 174-75).¹

7. At the time plaintiff was informed that she "was through" and was being discharged, she was requested to work for 30 days to accomplish certain specific tasks, including the training of another employee who would be taking over some of her responsibilities:

Q And I'd just like you to tell me what was said during that meeting in his office.

A ... He said that he felt that I was on the corporate team, not his team, which he is a corporate officer, and he felt that we just couldn't work together. And it was due to a specific incident, but he told me that he would discharge me, and he wanted me to work for 30 days. And I would be discharged effective 30 days from the meeting in his office.

* * * * * *

We had some discussion of the incident that he said the termination was based on. He told me during the 30 days he had specific things he wanted me to accomplish, to get done. And he told me that he wanted me to teach Jerry Stewart what I did because he would be taking over some of my functions.

(Plaintiff's deposition at 69-70). Ms. Welty was told that during the 30-day period she "would be fairly flexible in being able to get time off to look for a job or whatever she needed to do." (Plaintiff's deposition, at 147).

8. There is no question but that plaintiff understood on November 3, 1982, that her employment was being terminated:

Q So you understood, as of that meeting when you talked about the insurance and other vendors that occurred on or about November the 3rd, 1982, that your employment was being terminated?

A That's right.

(Plaintiff's deposition, at 73). Not only did Ms. Welty understand that her employment was being terminated, but the employees who worked under her, and the government personnel with whom she worked, knew that she had been discharged. For this reason, Ms. Welty decided, after only two weeks of the 30 days, that she preferred to "go ahead and terminate":

After I had been there two weeks, I told Jerry that I would like to just go ahead and terminate, and I meant without pay, just terminate at the end of the two weeks because it was hard for me to do any kind of a job there. The people that worked for me all knew that I had been terminated. The people I dealt with with NASA all knew I had been terminated, and it was hard to do an effective job under those circumstances.

(Plaintiff's deposition, at 147).

9. Consistent with her desires, Ms. Welty did not return to work after Saturday, November 20 but was on call at home to answer questions through December 3. She remained on the payroll through December 3. (Plaintiff's deposition, at 148).

10. At the time plaintiff was informed of her discharge on November 3, she believed that she was being discriminated against on the basis of age and sex:

Q Going back to the time that you were informed of your discharge on or about November the 3rd, 1982, I understand it was your belief that you were discharged because of Mr. Hill's feelings about women in management; is that correct?

A That's right.

Q And on the basis of your sex and your age; is that correct?

A That's right.

Q Was it your feeling at that time, November the 3rd when you were informed of your discharge, that you were being discharged for that reason?

A Yes.

(Plaintiff's deposition, at 156-57).

C. PLAINTIFF'S EEOC CHARGE.

11. Prior to filing a charge of discrimination with the EEOC, plaintiff consulted with legal counsel. (Plaintiff's deposition, at 143). Ms. Welty contacted legal counsel on March 2, 1983. (Plaintiff's deposition, at 169). The plaintiff's EEOC charge was signed on May 25, 1983, in her lawyer's office. (Plaintiff's deposition, at 66-67).

12. The plaintiff's charge of discrimination was received by the EEOC on May 31, 1983. (See Exhibit 1 to plaintiff's deposition).

13. The plaintiff's EEOC charge was executed by the plaintiff and received by the EEOC more than 180 days after November 3, the date on which she was informed that she "was through" and was being discharged.

14. Similarly, the plaintiff's EEOC charge was executed by the plaintiff and received by the EEOC more than 180 days after November 20, the date on which plaintiff was last at work at Mercury's offices.

D. PLAINTIFF'S FAMILIARITY AND EXPERIENCE WITH EEO MATTERS.

15. Prior to her employment with Mercury, plaintiff was employed by Bendix Corporation in Huntsville from 1976 until 1980 as Business Manager. (Plaintiff's deposition, at 34, 41).

16. As Bendix Business Manager, Ms. Welty was responsible for personnel, accounting, contracts, security and the typing pool. (Plaintiff's deposition, at 34). In connection with her personnel duties, plaintiff "was responsible for all areas of personnel including labor relations, wage and salary, equal opportunity, and hiring policies and procedures." (...