Bowes v. American Tobacco Co., 89-2673

• Decision Date: 11 March 1991
• Docket Number: No. 89-2673,89-2673
• Citation: 928 F.2d 399
• Parties: Unpublished Disposition NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. Vickie L. BOWES, Plaintiff-Appellant, v. The AMERICAN TOBACCO COMPANY, Defendant--Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 399

928 F.2d 399

Unpublished Disposition

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Vickie L. BOWES, Plaintiff-Appellant, v. The AMERICAN TOBACCO COMPANY, Defendant--Appellee.

No. 89-2673.

United States Court of Appeals, Fourth Circuit.

Submitted Oct. 16, 1990.

Decided March 11, 1991.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert R. Merhige, Jr., Senior District Judge. (CA-88-229-R)

Vickie L. Bowes, appellant pro se.

D. Eugene Webb, Jr., Mays & Valentine, Richmond, Va., for appellee.

E.D.Va.

AFFIRMED.

Before K.K. HALL, WILKINSON and NIEMEYER, Circuit Judges.

PER CURIAM:

Vickie L. Bowes brought this action against her former employer, American Tobacco Co., alleging that she was subjected to a hostile work environment and was terminated from her job as a clerk/typist in the graphic arts department in violation of Title VII. Bowes claimed that her former supervisor, Arthur Klevenz, gave her poor performance evaluations, treated her badly, and eventually fired her because of her gender.

The case was tried before a district judge. At trial, Bowes and two other women who worked under Klevenz during Bowes's tenure testified that Klevenz treated the women in the office differently than he treated the men. ¹ Bowes's attorney specifically stated at trial that Bowes was alleging both harassment creating a hostile work environment and discriminatory discharge. The district court held for the defendants. It found that, while Klevenz was a difficult person to work for, and though Klevenz showed some gender-based hostility toward women, Bowes's termination was caused by her deteriorating work performance. The district court did not make any specific findings regarding Bowes's allegation of a hostile work environment. Bowes appealed.

The district court's findings of fact in a bench trial may not be set aside unless they are clearly erroneous. Fed.R.Civ.P. 52(a). Whether Bowes was dismissed because of her gender is a finding of fact. Pullman-Standard v. Swint, 456 U.S. 273, 285-90 (1982); Moore v. City of Charlotte, 754 F.2d 1100, 1104 (4th Cir.), cert. denied, 472 U.S. 1021 (1985). The district court's finding that Bowes was not discharged because of her gender may only be overturned if this Court is of a "definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948).

In order to show that she was discharged because of her gender, a plaintiff has to show that her employer actually relied, at least in part, on her gender when it decided to terminate her. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). If the plaintiff shows such reliance, the employer must show that even without reliance on the plaintiff's gender, the employer would have terminated her. 490 U.S. 228. After hearing the testimony of Bowes, Klevenz, and others who worked at American Tobacco, the district court concluded that Bowes was fired because of the deterioration of her performance rather than because of the animus which Klevenz bore towards women.

The district court's findings regarding Bowes's termination were not clearly erroneous. While Klevenz was hostile to women he worked with, Bowes's performance of her job was deficient in a number of respects. She questioned Klevenz's directions regarding how and when her duties were to be completed; she failed to take correct or complete telephone messages; and her work was not of the quality required by Klevenz or Klevenz's supervisor. Therefore, the district court's judgment in favor of American Tobacco regarding Bowes's termination is affirmed.

The court did not, however, make any findings regarding Bowes's claim that she was subjected to a hostile work environment. See Meritor Savings Bank v. Vinson, 477 U.S. 57, 66 (1986). Such a claim exists independent of a discriminatory discharge claim. Paroline v. Unisys Corp., 900 F.2d 27 (4th Cir.1990) (en banc), adopting in part the panel's decision in Paroline v. Unisys Corp., 879 F.2d 100 (4th Cir.1989); Rabidue v. Osceola Refining Co., 805 F.2d 611 (6th Cir.1986); Henson v. City of Dundee, 682 F.2d 897 (11th Cir.1982) (although properly discharged plaintiff may not, on a hostile work environment claim, obtain injunctive relief to restrain...