Berry v. Stevinson Chevrolet, Civ. A. No. 90-B-916.
| Decision Date | 24 September 1992 |
| Docket Number | Civ. A. No. 90-B-916. |
| Parties | Charles H. BERRY, Jerald S. Reynolds, and Jesse L. Carter, Jr., Plaintiffs, v. STEVINSON CHEVROLET, a Colorado corporation, Stevinson Toyota, a Colorado corporation, Stevinson Toyota East, Inc. d/b/a Mark Toyota, a Colorado corporation, and Charles Stevinson, individually, Defendants. |
| Court | U.S. District Court — District of Colorado |
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Darold W. Killmer and Gilbert M. Roman, Feiger, Collison & Killmer, Denver, Colo., for plaintiffs.
John M. Husband, Gregory A. Eurich, Brian M. Mumaugh, Holland & Hart, Denver, Colo., and Martin P. Miller, Miller & Leher, Littleton, Colo., for defendants.
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND MEMORANDUM OPINION AND ORDER
This case was tried to the Court for ten days beginning August 24, 1992. I have jurisdiction over plaintiffs' claims under 28 U.S.C. §§ 1331 (1980) and 1343(a)(4) (1979) and 42 U.S.C. § 1988 (1980). Venue is proper under 28 U.S.C. § 1391(b) (1988) and 42 U.S.C. § 2000e-5(f)(3) (1972). Each plaintiff asserts Title VII claims against the defendants for discriminatory discharge. In addition, plaintiff Charles H. Berry (Berry) asserts a failure to promote claim under 42 U.S.C. § 1981 (1976) against defendants Stevinson Chevrolet (Chevrolet West) and Charles Stevinson (Stevinson). Jerald S. Reynolds (Reynolds) also asserts a Title VII retaliation claim against Stevinson Toyota West (Toyota West) and Stevinson. I now enter my findings of fact, conclusions of law, and order for judgment.
Chevrolet West, Toyota West, and Stevinson Toyota East, Inc. d/b/a Mark Toyota (Mark Toyota) are automobile dealerships in the Denver metropolitan area owned and managed principally by Stevinson. Chevrolet West, Toyota West, and Mark Toyota are employers under 42 U.S.C. §§ 2000e through 2000e-17.
All plaintiffs are black. Berry was employed at Chevrolet West as a salesperson from October 1978 to September 1989. Reynolds was employed at Toyota West as a general sales manager from January 1, 1989 to August 4, 1989 when he was discharged. Jesse L. Carter, Jr. (Carter) was employed at Chevrolet West in January 1984. He was transferred to Mark Toyota in November 1985 and discharged from his position as a new car sales manager on July 1, 1987.
All plaintiffs have exhausted their administrative remedies. Berry received his EEOC right to sue letter on June 8, 1990. Reynolds received his right to sue letter on June 4, 1990 on his discrimination charge and on September 8, 1990 concerning his retaliation charge. This action was filed on May 24, 1990, within ninety days of Berry's and Reynolds' receipt of their notice of right to sue letters.
Carter filed his charge of discrimination with the EEOC on July 6, 1987. On June 6, 1988, the EEOC issued its determination that there had been no violation of Title VII and that day mailed Carter's right to sue notice by certified mail return receipt requested to Carter's address of record, 6165 E. Iliff Avenue, # 419E, Denver, CO 80222. The notice was returned unclaimed after the post office made three attempts at delivery on June 7, 1988, June 11, 1988, and June 22, 1988.
Carter testified that the above address was his home address and he was there during June 1988. However, he testified that he never received the notice of right to sue or the notices of attempt to deliver it. The "window style" envelope, (Exhibit D-19), contains Carter's correct address, including zip code. Exhibit D-20 shows the same envelope without the addressed enclosure and a receipt for certified mail designating a street address of 6165 E. Iliff, # 419E. The receipt omits the word "avenue" and the zip code. However, the envelope has a bar code that is read by the postal department's scanning equipment. Donald Finney of the postal department testified that this nine digit bar code reads "XXXXX-XXXX" designating the zip code and the 6100 block of E. Iliff Avenue, Denver, Colorado. Mr. Finney testified credibly that the chances of misdelivery are three percent and, in this instance, it was virtually impossible for the notice not to have been delivered three times.
I find that the notice of right to sue letter was mailed by certified mail to Carter's correct address and he failed to receive it as a result of his own neglect and inattention. These findings rest upon evidence independent of the record of the EEOC's April 4, 1988 predetermination telephone interview with Carter. (Exhibit D-15.) At that time the EEOC advised him of its anticipated determination adverse to his charge. Carter made no effort to contact the EEOC after that date. This further evidences Carter's inattention and neglect.
No evidence was presented that anyone deceived Carter regarding the procedural requisites for filing timely his lawsuit. Almost two years after the issuance of the right to sue letter Carter joined with Berry and Reynolds in filing this action on May 24, 1990.
Berry quit Chevrolet West after almost eleven years as a used car salesperson at that dealership. The evidence concerning his claims of constructive discharge and failure to promote is in stark conflict. However, from Berry's credible testimony, corroborated by the credible disinterested testimony of other former employees at Chevrolet West, I find that management at Chevrolet West engaged in discriminatory conduct which produced working conditions that a reasonable person would consider intolerable. I further find that, although Berry made known his desire for promotion and was qualified for promotion to new or used car sales manager, he was denied promotion because of his race in favor of less qualified white individuals. The evidence as to these two claims is interrelated.
There is little evidence of racial hostility before Carter started to work at Chevrolet West in 1984. Carter testified credibly that while employed there he heard general manager, Reggie Bonino, and general sales manager, James Malafronte, refer to black customers as "spicoons" and often as "credit bandits" or "credit criminals". Dennis Guse testified by deposition that he was employed at Chevrolet West between March 1984 and October 1987. He testified that Bonino was "a constant user of the word `nigger' and `darkie' when referring to Mr. Berry". Bonino and Malafronte told him that "tusconne" is an Italian word for "nigger". Bonino would ask such questions as "where is the darkie today", "what is the tusconne doing", "is the tusconne selling any cars". On one occasion Malafronte told Guse not to eat lunch with Berry in the lunch room because Bonino would not like him associating with a nigger. During the spring of 1987 at a manager's meeting, Guse told Bonino that Berry was interested in a management position. Bonino replied "I don't trust niggers and I don't want niggers in management".
Although Berry and Bonino would at times banter with each other in terms such as "spicoon" and "dago", when Jim Crisafi was hired as the new car manager at Chevrolet West in March 1989, Crisafi encouraged, promoted, and infused racial hostility to an intolerable level. Crisafi became antagonistic to Berry from the outset. As the hostility increased, Crisafi told Berry that "I got permission to gas you nigger" and "I got permission to blow your ass out nigger". Crisafi told David Musgrave, then employed at Chevrolet West, that they should "gas the nigger" and that they "need to get the nigger out — he's a trouble maker".
Stevinson's stated policy is to promote employees from within the organization to management positions. However, Paul Birge is an example of one who was hired from outside the organization into management despite limited automotive sales or management experience. Birge, no longer employed at Chevrolet West, testified that Crisafi told him that he would "get Berry's black rear end ass fired if I could". He also testified that he heard Crisafi say to Bonino "well we just have to get rid of his black ass".
Crisafi testified that he tried to get along with everybody. He denied making any racially derogatory comments and denied ever using the word "nigger". Crisafi's credibility was impeached by deposition. His claim that he never used racist language rings hollow.
Crisafi testified that he was aware of Stevinson's written policy prohibiting both racially and sexually derogatory language in the work place and that such language and attitude had no place in his life. Yet, the following colloquy occurred on cross examination by plaintiff's attorney, Ms. Lynn D. Feiger:
Crisafi's testimony is wholly incredible.
The Stevinson dealerships' written policy signed by the employees prohibiting racial and sexual harassment urges all employees who feel they are being subjected to harassment to report the matter to any member of management. (See Exhibit A-1.) All Stevinson dealership managers attended seminars where they were told that such harassment would not be tolerated. Bonino attended these seminars. Yet, he testified that "affirmation action" means to discipline an employee. For example, he claims that he would take "affirmative action" against an employee who steals gasoline. Nor could he define "racial harassment". He, like other white managers, testified that they simply...
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