Hill v. Winn-Dixie Stores, Inc.

Decision Date10 July 1991
Docket NumberWINN-DIXIE,90-3510,Nos. 89-3719,s. 89-3719
Parties119 Lab.Cas. P 10,839, 6 Indiv.Empl.Rts.Cas. 1068, 7 Indiv.Empl.Rts.Cas. 1671 Joanne W. HILL, Plaintiff-Appellant, v.STORES, INC., Defendant-Appellee.
CourtU.S. Court of Appeals — Eleventh Circuit

Robert V. Williams, Joryn Jenkins, Taub & Williams, P.A., Tampa, Fla., for plaintiff-appellant.

Peter W. Zinober, Joan Young, Zinober & Burr, Adrien Fechter, Tampa, Fla., for defendant-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before ANDERSON and CLARK, Circuit Judges, and TUTTLE, Senior Circuit Judge.

ANDERSON, Circuit Judge:

Appellant Joanne W. Hill seeks reversal of two orders: an order granting a judgment notwithstanding the verdict and, in the alternative, an order granting a new trial if the judgment notwithstanding the verdict is reversed on appeal. Hill filed a complaint in district court against appellee Winn-Dixie Stores, Inc. ("Winn-Dixie"), seeking damages for violation of the Jury System Improvements Act of 1978, 28 U.S.C. Sec. 1875 (1986) (the "Jury Act").

At the conclusion of the evidence at trial, the jury found, by special verdict, that Winn-Dixie's actions toward Hill had violated the Jury Act. The jury assessed a civil penalty against Winn-Dixie in the amount of $500.00, pursuant to the Jury Act, but declined to award Hill front pay, finding that Hill had unreasonably refused Winn-Dixie's offer of reinstatement. The district court overturned the jury verdicts regarding Winn-Dixie's liability under the Jury Act and entered judgment in favor of Winn-Dixie on all counts, taxing costs against Hill.

I. FACTS

Winn-Dixie employed Joanne Hill for approximately fourteen years. Hill served as produce manager for 2 1/2 years prior to leaving the company, the last 1 1/2 years at Store 605. Pursuant to company regulations, Hill, as produce manager, was responsible for, inter alia, taking inventory of the produce department between 4:00 and 8:00 P.M. every Wednesday and reporting inventory to the central office.

In early December, 1986, the United States District Court in the Middle District of Florida at Tampa notified Hill that she would be serving jury duty in January. 1 At that time, Hill alerted Gordon Fick, the manager of Store 605, that she would be serving jury duty for the month of January. Fick responded with the comment, "Oh, great." Hill arranged with Fick that she would call the store and notify whoever was in charge of the store when she received notice to serve the following day. Hill also notified Lawrence Bellerose, supervisor of several Winn-Dixie stores, including Store 605, of her jury duty in January, informing him of the arrangements she made with Fick in the event she was called to serve on a jury. Bellerose told Hill that when he was served a jury duty notice, he "got out of it."

Hill appeared for jury duty on Wednesday, January 7, 1987, but she was not selected to serve on a jury. She returned to work at approximately 3:00 that afternoon. At 5:00 P.M. on that same day, Hill discovered that Fick was drafting a new work schedule for her around the hours of the day when she might be called in for jury duty. After Hill protested to Fick and Bellerose, Fick destroyed the schedule.

On the afternoon of January 20, Hill learned that she would have to report for jury duty the following day, Wednesday, January 21. Hill came to work at approximately 7:30 on Tuesday evening to prepare for her absence on Wednesday. 2 Because Fick was not on duty Tuesday evening, Hill notified John Gerke, the assistant store manager, that she would be absent the next day for jury duty. She told Gerke that if she were not back in the store by 5:00 P.M. on Wednesday, then she would not come in to work that day. Hill testified that she specifically requested coverage for her inventory duty. 3 Gerke responded that he would leave a note for Fick. However, Fick never received the note.

On Wednesday, January 21, Hill reported for jury duty and was selected to serve that day. She was excused from jury duty at 5:00 P.M. Upon returning home at approximately 6:15 P.M., Hill left to take her son to a baseball game and to meet a hair appointment. Meanwhile, not having received any explanation for Hill's absence from work that day, Fick called Hill's house on Wednesday evening. When Hill returned Fick's call at approximately 9:00 P.M., Hill informed Fick that she had been selected to serve on a jury that day and would be absent from work again the following day for the same reason. She also told Fick that Gerke had left him a note regarding her absence. Fick was upset. Upon exiting his office to do the produce inventory himself, Fick told one of Hill's subordinates that Bellerose was going to "get" Hill.

Hill served on a jury until 5:00 P.M. on Thursday and thereafter telephoned the store, informing Fick that she would have to report for jury duty again the next day. On Friday, Hill served on a jury until 4:00 P.M., at which time she was excused. Hill worked her regular hours at Winn-Dixie on Saturday, January 24, without incident.

On Monday, January 26, Fick summoned Hill to meet with him and Bellerose. Bellerose read to Hill a written reprimand in the form of a "personnel action form," regarding the events surrounding her jury duty. 4 The reprimand also threatened to reduce Hill's position to that of a stock clerk if she did not obtain fair-share profit sales per man-hour. 5 Hill requested that Bellerose write her version of the past week's events on the top of the form. 6 Hill explained to Fick and Bellerose that she had informed Gerke of her jury service on January 21, and they telephoned Gerke, who verified Hill's story. On January 29 and 31, Hill asked Bellerose whether he planned to file the action report, and he responded affirmatively. Bellerose told Hill that Harry Stewart, Winn-Dixie's district supervisor and Bellerose's superior, had also signed the report.

After January 21, the date on which Hill served jury duty, Bellerose and Fick began criticizing Hill regarding her job performance and the ratio of sales per man-hour of her department, as they had not done prior to that date. 7 Specifically, on Friday morning, January 29, Fick questioned the number of hours used by the produce department on the previous day, stating that Bellerose was upset and had telephoned him to complain about them. Hill explained that the delivery truck was late that day, that Bellerose had been present and should have known that fact, and that she could compensate by minimizing her hours during the remaining days of the pay period. On Wednesday, February 4, Fick and Bellerose again approached Hill regarding the low sales per man-hour ratio of her department. Additionally, after January 21, Fick no longer helped to improve the sales per man-hour ratio of the produce department as he had customarily done prior to that date. 8

On Thursday morning, February 5, 1987, Hill submitted a two-week notice of resignation to Fick. That same day, Hill called the vice-president of human resources at Winn-Dixie's corporate headquarters to explain her reasons for resigning. The following day, Hill had a similar conversation with the regional supervisor, Stewart's immediate superior, and he promised Hill that he would "look into it."

On Saturday, February 7, Stewart offered Hill a lesser-paying position at another store under a different manager and supervisor as an alternative to her current job. 9 Bellerose tore up the action report pursuant to direction from his superiors on the following Friday. He encouraged Hill to continue employment with Winn-Dixie either in her current capacity, promising no reprisal from him, or in a different store with a different supervisor. However, responding to Hill's inquiry regarding his opinion of the events that had transpired, Bellerose stated that he still felt he had correctly handled the situation. Hill did not withdraw her resignation, and she terminated her employment with Winn-Dixie on Tuesday, February 17, 1987.

II. PROCEEDINGS BELOW

On January 26, 1988, Hill filed the present action, alleging coercion, intimidation, harassment and constructive discharge by Winn-Dixie in violation of 28 U.S.C. Sec. 1875 10 and Fla.Stat. Sec. 40.271. 11 Among other interlocutory rulings, the district court denied Winn-Dixie's motion to strike Hill's request for a jury trial. Hill v. Winn-Dixie, No. 88-91-CIV-T-13A, 1988 WL 151723 (October 12, 1988) (Carr, J.). The court found that although neither the language nor the legislative history of the Jury Act indicates congressional intent to provide the right to trial by jury under that statute, the instant suit fell within the category of suits addressed by the Seventh Amendment, which preserves the right to a jury trial in suits at common law, because Sec. 1875 creates legal remedies. Id. at 9. 12 Thus, the court held that "[w]hile the equitable power to enjoin the offender and reinstate the offended will remain with the court, the question of whether to award back wages and to impose civil penalties must be tried to a jury." Id. at 10.

On April 20, 1989, the jury rendered a special verdict, finding that Winn-Dixie "threaten[ed] to fire or otherwise coerce or intimidate the plaintiff Joanne W. Hill because of her service or in connection with a federal jury" and that "in response to the plaintiff's federal jury service, [Winn-Dixie] made the plaintiff's working conditions so difficult or unpleasant that a reasonable person in her position would have felt compelled to resign." However, the jury found that Hill was unreasonable in rejecting Winn-Dixie's offers of reinstatement, and, accordingly, denied Hill an award of front pay, i.e. wages lost after the date of Winn-Dixie's offers of reinstatement. 13 Pursuant to the jury verdict and a stipulation from the parties, the district court set damages in the amount of $1,290.00 for "lost...

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