E.E.O.C. v. Beverage Canners, Inc.

Decision Date02 April 1990
Docket NumberNo. 88-5169,88-5169
Citation897 F.2d 1067
Parties52 Fair Empl.Prac.Cas. 878, 53 Empl. Prac. Dec. P 39,809 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, Cross-Appellee, v. BEVERAGE CANNERS, INC., Defendant-Appellee, Cross-Appellant.
CourtU.S. Court of Appeals — Eleventh Circuit

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 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 Company did not have a "recall" policy. This finding was based on the theory that the Company fired (laid off) and then "rehired" former employees and did not "recall" them. 4 The court held that a recall policy was a necessary precondition in this case for Title VII protection to apply because of the "terms, conditions, or privileges of employment" language in the statute. 5 Thus the court held that "because the defendant had no policy or practice of recalling employees who were previously let go, the defendant has demonstrated by a preponderance of the evidence that Tina Wilson would not have been recalled even if she were white."

The EEOC appeals the determination that Wilson was not racially discriminated against and supports the trial court's decision that the work place was racially hostile. The Company appeals the injunction and the determination that the work place was racially hostile and supports the decision that Tina Wilson was not discriminated against.

III. We Won't Allow A Racially Hostile Environment

The trial court's permanent injunction ordered the Company to refrain from maintaining terms and conditions of employment that discriminate on the basis of race or create a racially abusive or hostile atmosphere of employment.

A factual determination of a trial court can only be set aside if it is "clearly erroneous." Lincoln v. Board of Regents of University System, 697 F.2d 928, 939 (11th Cir.), cert. denied, 464 U.S. 826, 104 S.Ct. 97, 78 L.Ed.2d 102 (1983); see F.R.Civ.P. 52(a).

The Company contests the trial court's factual findings on the ground that not all racial slurs rise to the level of Title VII violations. The Company stresses the Eighth Circuit's requirement that there be a steady barrage of denigrating racial comments, as distinguished from offensive terms limited to casual conversation among employees, before such slurs rise to the level of a Title VII violation. Johnson v. Bunny Bread Co., 646 F.2d 1250 (8th Cir.1981).

This was no Bunny Bread situation where the court found that the use of racial terms was infrequent, limited to casual conversation, and not directed at black co-workers. Bunny Bread was poles apart from Beverage Canners. Here the trial court found that racist remarks were frequent, not part of casual conversation and were made to or about black employees. Additionally, the comments were made by the plant manager, not just co-workers. The trial court simply had to find that the racially derogatory remarks were "commonplace, overt and denigrating" and so pervasive and shocking in this more enlightened day that they "altered the conditions of employment and created an abusive working environment for blacks." 6

The Company, ignoring the fact-finding role of the trial judge, stresses the contrary testimony of management personnel that they knew of no discriminatory conduct and that no such conduct was ever brought to their attention by way of employee complaints. How simple would be race discrimination cases if, as the Company argues, it cannot be held responsible for the remarks of its employees.

Despite this testimony, the court found that management was informed about events at the plant. This included testimony, some conflicting, that management was informed on several occasions about the racial hostility at the plant.

The trial court, whose role, not ours, was to determine facts, had the advantage of observing all the witnesses to make credibility determinations. It is " 'our duty to decide whether the district court could have entered the order that it did.' " Harris v. Amoco Production Co., 768 F.2d 669, 684 (5th Cir.1985), cert. denied, 475 U.S. 1011, 106 S.Ct. 1186, 89 L.Ed.2d 302 (1986), quoting, Brown v. Arlen Management Corp., 663 F.2d 575, 580 (5th Cir.1981) (citations omitted).

We uphold the trial court's findings that "the numerous racial epithets were not made sporadically, accidentally, or as part of casual conversation" and that management was informed but did nothing to correct the situation. The finding of a racially hostile environment was not clearly erroneous and the injunction at the hands of EEOC was fully justified.

IV. "Classic" Discrimination

The trial court, citing, Hishon v. King & Spalding, 467 U.S. 69, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984), held that since the Company did not have a policy or practice of recalling laid off employees, the right to be rehired was not a "term, condition, or privilege" of employment. Thus he held that the...

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