897 F.2d 1067 (11th Cir. 1990), 88-5169, E.E.O.C. v. Beverage Canners, Inc.

Docket Nº:88-5169.
Citation:897 F.2d 1067
Party Name:EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, Cross-Appellee, v. BEVERAGE CANNERS, INC., Defendant-Appellee, Cross-Appellant.
Case Date:April 02, 1990
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 1067

897 F.2d 1067 (11th Cir. 1990)


Plaintiff-Appellant, Cross-Appellee,


BEVERAGE CANNERS, INC., Defendant-Appellee, Cross-Appellant.

No. 88-5169.

United States Court of Appeals, Eleventh Circuit

April 2, 1990

Page 1068

John F. Suhre, Washington, D.C., for plaintiff-appellant, cross-appellee.

Samuel L. Bare, III, Miami, Fla., for defendant-appellee, cross-appellant.

Appeals from the United States District Court for the Southern District of Florida.

Before TJOFLAT, Chief Judge, JOHNSON, Circuit Judge, and BROWN, 1 Senior Circuit Judge.

JOHN R. BROWN, Senior Circuit Judge:

The Equal Employment Opportunity Commission (EEOC or the Commission) brought suit against Beverage Canners, Inc. (the Company) for violation of section 703(a)(1) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Sec. 2000e-2(a)(1) 2 on behalf of Tina Wilson. The case was tried to the bench by Judge Aronovitz of the Southern District of Florida. The facts gave rise to a disparate impact case under Title VII. Emil Windholtz was plant manager for the Company and had lay-off and hiring authority. He and Bennett Achins, a supervisor at the plant, frequently made flagrant, revolting, and insulting racially derogatory remarks towards and in the presence of blacks. After finding direct evidence of discrimination, the trial court issued a permanent injunction against the Company from which it appeals. The Company was enjoined from maintaining terms and conditions of employment that discriminate on the basis of race or that create a racially abusive or hostile atmosphere of employment, which we affirm. The trial court, however, denied Ms. Wilson relief. As to her claims, it found, as a matter of law, that the Company had not violated Title VII. We reverse this ruling and hold that the EEOC proved Ms. Wilson was discriminated against. We remand for a determination of the appropriate relief.

I. The Facts Reveal A Racially Hostile Environment

Regarding the issue of racial hostility in the work place, the trial court found that Windholtz and one of the plant supervisors frequently made racially derogatory remarks. Because they are so flagrant, revolting, and inflammatory, and reflect--better than anything we could say--the deplorable atmosphere of open, hostile, and racially motivated discrimination, we set them out below. 3 Moreover, these racially hostile remarks were made, with the obvious though unthinking purpose to demean them, in the presence of and about black employees. They were, the judge stated, so "commonplace, overt and denigrating that they created an atmosphere charged with racial hostility." The Court concluded that racial harassment at the Company was sufficiently severe and pervasive that it

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created an abusive work environment for blacks in clear violation of Sec. 703 of Title VII. The Company's management had knowledge of these activities and this environment. The Court enjoined the Company from maintaining a work place with a racially hostile environment.

II. Employment Hopes "Crushed"

Tina Wilson, a black female, was hired in February 1983. She worked in the Company's plant as a machine operator producing one-liter plastic bottles used to contain soft drinks. On April 22, 1983, Tina Wilson and a white machine operator, Susan Gillespie, were laid off because of a surplus inventory of plastic containers. The layoff was ordered by Windholtz. At the same time Donald Hartwell, a white male machine operator, was transferred to a different job at another of the Company's plants.

The supervisors of both Wilson and Gillespie testified that Windholtz told them that the layoffs were temporary and that both employees would be called back when production resumed. Windholtz, John Shurman, the President of the Company, and John Slocum, Executive Vice-President, however, all testified that the Company did not have a policy or practice of recalling laid off employees. The Company hired by placing signs outside the office, employing walkins, placing newspaper advertisements, or by using temporary placement services. According to Slocum, laid off employees were not barred from their jobs, but they did need to reapply.

Both of the white employees (Hartwell who had been transferred to another division, and Gillespie, who had been laid off) ultimately returned to the plant. Hartwell was transferred back to the plant two weeks after the layoff. It is unclear precisely when Gillespie was rehired. When the line that Hartwell, Gillespie, and Wilson had worked on returned to full capacity, another employee, a white female, was hired to fill Wilson's former job. The trial court found that Wilson, along with Gillespie, had been laid off but that in the context of the Company's employment policies, being laid off was equivalent to being fired or terminated because there was no policy of recalling former employees. The judge also determined that there was no entitlement to be called back to work and that Wilson had never been told by anyone with authority to set labor policy that she would be recalled to work.

The court concluded that because Wilson presented direct evidence of discrimination, the Company had the burden of proving by a preponderance of the evidence that it would have decided not to rehire Wilson even in the absence of any discriminatory motive. The court held that this burden was met on the simple ground that the...

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