Barnes v. Lerner Shops of Texas, Inc.

• Decision Date: 08 March 1971
• Docket Number: Civ. A. No. 68-H-735.
• Parties: Herma BARNES, Plaintiff, v. LERNER SHOPS OF TEXAS, INC., Defendant.
• Court: U.S. District Court — Southern District of Texas

323 F. Supp. 617

Herma BARNES, Plaintiff, v. LERNER SHOPS OF TEXAS, INC., Defendant.

Civ. A. No. 68-H-735.

United States District Court, S. D. Texas, Houston Division.

March 8, 1971.

James R. Watson, Jr., Dixie, Wolf & Hall, Houston, Tex., for plaintiff.

James M. Neel, Richard R. Brann, Baker & Botts, Houston, Tex., for defendant.

MEMORANDUM OPINION

BUE, District Judge.

This case was tried to the Court. Plaintiff, a Negro, instigated this action for reinstatement, back pay, and injunctive relief pursuant to the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2(a), 3(a), 5(e)-(g). The amended complaint alleges that defendant, Lerner Shops of Texas: (1) discharged the plaintiff solely because of her race and because she opposed defendant's unlawful employment practices; (2) discriminated against her during her employment with respect to the conditions of employment; and (3) discriminated against all of defendant's Negro employees with respect to their compensation, terms and conditions of employment, and opportunities for promotions.

Defendant contends that plaintiff was discharged for reasons other than her race and that it has not otherwise discriminated against its Negro employees.

Lerner Shops of Texas, Inc., is a subsidiary of Lerner, Inc., which has its main offices in New York City and operates retail stores throughout the United States. In the Houston area defendant had four stores in operation at all times material to this lawsuit. Each store's managerial staff included a store manager, two or three sales department managers, a credit manager and a display manager.

The plaintiff was initially employed by Lerner stores in March of 1952 as a "wrapper" in its Dayton, Ohio store. Shortly thereafter, she resigned that position, but was reemployed as a "presser" in August of 1952 at the Downtown store in Houston, Texas. She again resigned in May of 1953, but was once more reemployed two weeks later. It is not clear whether she worked for Lerner stores the remainder of 1953 and in 1954. However, it is clear that she was employed from November, 1954 to August, 1955, as a maid in the Downtown store's display department. In March of 1963 she was employed for approximately three weeks as a maid in Houston's Northline store. Finally, in August of 1965 she was employed as display manager at the Northline store. On May 13, 1966, plaintiff left a note for the store manager before departing on her scheduled vacation. Although subject to various interpretations, that note indicated that plaintiff was dissatisfied with her job, that she felt she was receiving less pay than other managers, that she was probably going to work for another retail firm during her vacation, and, finally, that she felt other managers had received an employment privilege that she had not.¹ The note makes no charge or reference to race or racial discrimination. The store manager, although unsure at first as to the note's proper interpretation, responded by sending a note to plaintiff accepting her resignation. He then placed an advertisement in a local newspaper, and, shortly thereafter, hired a white retired Lerner's employee, a Mrs. Stephens, as a replacement. The defendant concedes that these events are tantamount to a formal discharge of plaintiff.

After her discharge, plaintiff on July 16, 1966, filed a charge with the Equal Employment Opportunity Commission (EEOC) alleging racial discrimination on the basis that (1) she was paid less than white display managers; and (2) that she was discharged solely because defendant desired to replace her with a person of the white race. After an investigation the EEOC concluded that there was no disparity in wages and that she was not replaced for discriminatory reasons. However, upon a request for reconsideration based upon new evidence presented by the plaintiff, the EEOC reversed its earlier position and ruled that reasonable cause did exist to believe that defendant had violated the Civil Rights Act of 1964. That new evidence included plaintiff's allegations that (1) other display managers worked 5 days and were paid for 6 days work;² (2) she was unjustifiably harassed by her fellow employees and by a store detective when the 6 days pay for 5 days worked privilege was discontinued after she also attempted to participate in its benefits; (3) her note to the store manager could not be interpreted as a resignation; (4) a Negro was given the display manager's job following her departure only after defendant learned of the charge filed before the EEOC; and (5) plaintiff had also been unlawfully discharged from defendant's store in 1963. After conciliative efforts failed, plaintiff filed this action.

The defendant contends that the only issues before the Court are (1) whether plaintiff was unlawfully discharged by defendant; and (2) whether defendant discriminated against her by paying her a salary that was less than that of the white display managers. Those were the only allegations presented in the plaintiff's initial charge to the EEOC. The plaintiff contends that, although not expressly made a class action under Rule 23 of the Federal Rules of Civil Procedure, this Court should grant relief to all Negro employees of the defendant. This position under certain circumstances finds legal support in the language of Jenkins v. United Gas Corporation, 400 F.2d 28, 33 (5th Cir. 1968), wherein it is stated that "whether in name or not, the suit is perforce a sort of class action for fellow employees similarly situated." Further support comes from Oatis v. Crown Zellerbach Corporation, 398 F.2d 496 (5th Cir. 1968), wherein a class action was held to be permissible, although only one of its members had presented his grievance to the EEOC.

More analogous to this situation, however, is Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970). In the Sanchez decision the permissible scope of a complaint was stated to be limited "to the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination." 431 F.2d at 466. It is this Court's conclusion that the above standard requires a reasonable relevancy between the EEOC investigation and the scope of the civil action. Here, the scope must be limited to issues of whether plaintiff was discriminatorily discharged and whether plaintiff or other Negro employees received less pay than white employees for comparable work. Of course, defendant's other forms of unlawful discrimination could be relevant to this cause, since defendant's "pattern of action" is material to a determination of whether specific unlawful employment procedures were practiced. See Blue Bell Boots, Inc. v. Equal Employment Opportunity Commission, 418 F.2d 355 (6th Cir. 1969).

After hearing all of the evidence, it is obvious to this Court that the basic issues for decision are factual and not legal. As a result, the burden of proof is an important determinant. The defendant contends that plaintiff must prove by a preponderance of the evidence that a violation of the Act occurred. On the other hand, plaintiff contends that its burden is a lesser one. It is this Court's opinion that the defendant's position is the more persuasive and that it is supported by substantial authority. See Dewey v. Reynolds Metals Co., 429 F.2d 324, 328 (6th Cir. 1970). See, e. g., United States v. Jacksonville Terminal Co., 316 F.Supp. 567, 615-616 (M.D.Fla. 1970); Green v. McDonnell-Douglas Corp., 318 F.Supp. 846, 850 (E.D.Mo. 1970). See generally, McBeth v. Board of Education, 300 F.Supp. 1270, 1275 (E.D.Ark.1969). The preponderance of the evidence test is therefore applied in this case, although as a practical matter the decision of the Court would be precisely the same if a lesser test had been applied.

Prior to the Court's assessment of the various contentions relating to discrimination presented by the parties, it must be recognized that there are numerous factual areas in this cause in which the evidence is in sharp conflict, thereby obligating the Court to assess credibility of the witnesses in order to determine what version of an incident is more believable. This the Court has done by carefully reviewing the various claims leveled by the parties.

At the trial the plaintiff relied heavily, in demonstrating discrimination, upon the incident wherein she allegedly signed in on the employee time sheet on her day off so as to qualify for an extra day's pay, as the other managers allegedly did. When the privilege was thereafter discontinued as to all managers, her professed efforts to achieve equal treatment created animosity towards her, and resulting harassment, on the part of the white employees. Apparently, the plaintiff is contending that the store manager discontinued this so-called privilege, rather than permit a member of a minority race to participate in its benefits. However, contrary to the plaintiff's contention, the evidence clearly reflects that as a consequence of the Easter selling season the sales managers had worked approximately 16 to 24 overtime hours. Their employment contracts provided that they were to receive half time for all overtime hours worked.³ They preferred to take time off, rather than to receive this small rate of overtime pay. The store manager, at their request, permitted these sales managers to adopt a practice whereby they received an hour off with pay for every hour they had worked overtime during a "rush" season. As a result, these sales managers signed in on the time sheet and were paid for 6 days work during a period of 2 or 3 weeks after Easter, but actually worked only 5 days per week. The practice was terminated when the time off owed by the store to these employees under this arrangement expired. Plaintiff's display work during "rush" periods, on the other hand, did not fluctuate to the same extent as that of the sales managers. As a result, she was rarely called upon to work overtime. Therefore, the alleged...