Brown v. A. J. Gerrard Mfg. Co., 78-3188
| Decision Date | 20 April 1981 |
| Docket Number | No. 78-3188,78-3188 |
| Citation | 643 F.2d 273 |
| Parties | 25 Fair Empl.Prac.Cas. 1089, 25 Empl. Prac. Dec. P 31,758 Eddie Charles BROWN, etc., Plaintiff-Appellant, v. A. J. GERRARD MANUFACTURING CO., Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Robert L. Wiggins, Jr., Birmingham, Ala., for plaintiff-appellant.
Whitmire, Morton & Coleman, Bryant A. Whitmire, Birmingham, Ala., for defendant-appellee.
Appeal from the United States District Court for the Northern District of Alabama.
Before GODBOLD, Chief Judge, and SIMPSON and THOMAS A. CLARK, Circuit judges.
This is an appeal from an employment discrimination case brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. The lower court found that plaintiff Brown had failed to rebut the showing by the employer, Gerrard Manufacturing Co., of a legitimate nondiscriminatory basis for his discharge. Because we believe that the lower court erred both in the allocation of the burden of proof and in its evaluation of the evidence in light of the proper allocation of the burden of proof, we reverse.
The facts may be summarized. Brown was hired by the Gerrard Manufacturing Co. on April 26, 1972. About seven weeks later, on June 12, 1972, Brown was injured on the job when a part of the machine he was operating swung loose and hit him on the head. He was taken to a doctor, who certified that Brown might return to work the next day.
Evidently not content with this first diagnosis, Brown returned the next day, not to work, but to the first doctor's partner, under whose care Brown remained for the rest of the time in question. Brown still complained of dizziness and pain, and this second doctor found evidence of a concussion. This doctor excused Brown from work until June 20. 1 He returned to work early, however, working all day on June 19 and part of the next before leaving work again complaining of recurring symptoms. 2 Brown was later admitted to the hospital, where he stayed from June 27 until July 7, 1972. 3
When he returned to work on August 14, Brown was told by the plant foreman, John Ward, that he had been "terminated." The termination notice in Brown's personnel file gives as the reason for his discharge his failure to keep the company advised of his status. 4 The effective date of the discharge is given as June 20, the date Brown left work for the second time, and before his admission to the hospital. With the exception of June 20, by which time his doctor had earlier certified that Brown could return to work (and before which time he had already returned to work), at all times from the accident on June 12 until he returned to work on August 14, Brown was under his doctor's certification that he was not yet able to return to work. 5 Most of the testimony at trial concerned the dispute between Brown and the plant manager, Michael Burdyk, over whether Brown had effectively communicated to the company his continuing disability, as well as his intention to return to work.
Some matters, however, were not in dispute. There was no dispute, for instance, that at the time of his discharge the company as yet had no formal policy in the matter of unexcused or unreported absences. Burdyk conceded, however, that the company's invariable practice had been to counsel absentees, advising them that absences had to be reported in advance. In no event would an employee be discharged for the first such unexcused absence, nor would he be terminated without warning. 6
Moreover, plaintiff corroborated the company's own testimony concerning its discharge policy by introducing extensive portions of personnel records of white employees. Most of these incidents postdated Brown's discharge, but they show a consistent pattern of counseling and warning before termination. 7 On at least one occasion, when the company's records showed that telephone calls were not being answered, the personnel file contained a certified mail letter to that effect, together with a warning to respond. 8
Brown insisted that he had received no warnings that his prolonged disability leave was endangering his job. The company, for its part, presented no evidence suggesting that he had. The company nonetheless insisted that Brown's failure to keep the company advised of his status and of his intentions was sufficient good cause for his discharge.
The lower court viewed the case as a straightforward dispute whether Brown, a black employee, received the benefit of the same company policy regarding unreported absences as did white employees. As the lower court saw it, however, the key issue of fact was not whether Brown had been warned that his absences were endangering his job, but whether Brown had reported his absences to the company. 9 In effect the lower court concluded that Brown was not entitled to any warning, as a matter of company policy, if he did not first prove that he reported his absences in advance. Therefore, although the lower court appears to have assumed that Brown made out a prima facie case of employment discrimination, 10 actually it concluded that Brown's case did not get that far.
Thus viewing the case, the district court had to determine whether or not Brown ever reported in. Brown testified that he called in many times from the date of the accident until he reported for work on August 14, and that each time he spoke with his superior, John Ward. Ward had moved since the events in question, and did not testify either in person or by deposition. Burdyk in effect was able to testify to no more than that he was unaware of whether Brown had been in touch with Ward or not. Thus, Brown's testimony that he called in about his illness was uncontradicted. Aside from several documents in Brown's personnel file, consisting of letters from lawyers concerning Brown's workmen's compensation claims, medical bills, and management notes concerning visits and calls by Brown, this was all the evidence on the matter. Although the evidence strongly supported inferences both that Brown contacted the company and that the company knew how to contact Brown if it wanted to, the district court found the evidence inconclusive, wished it had more evidence, and then found for the company on the question of whether Brown reported in. 11
We think the lower court erred first of all in its evaluation of what was sufficient to make out a prima facie case. As we have noted, the lower court concluded that Brown never really made out a prima facie case because he failed to carry his burden of proving that he reported in. It was undisputed, however, that absences without prior warning by the employee were precisely the sort of violations of company rules that would not be met by discharge, absent counseling by management and warning of future disciplinary action. Much of plaintiff's evidence was to this effect, and the company never...
To continue reading
Request your trial
-
Graham v. Bendix Corp.
...both regarding absences (whether excused or not) and tardiness, than were employees who were not black females. In Brown v. A.J. Gerrard Mfg. Co., 643 F.2d 273 (5th Cir.1981), aff'd on reh., 695 F.2d 1290 (1983) (en banc), plaintiff Brown was a black male and his evidence showed the employe......
-
McAlester v. United Air Lines, Inc.
...that similarly situated non-minority employees who violated the same rule were treated differently than he was. Brown v. A.J. Gerrard Mfg. Co., 643 F.2d 273, 276 (5th Cir.1981). United did not contest the first two elements. United asserts McAlester failed to prove intentional race discrimi......
-
Jackson v. Georgia-Pacific Corp.
...either without application of a lenient policy, or in conformity with the strict one. [Id. at 1147 (citing Brown v. A.J. Gerrard Mfg. Co., 643 F.2d 273, 276 (5th Cir.1981)).] In Schaefer, ibid., the plaintiff had demonstrated that the African-American supervisor was fired without warning wh......
-
Donovan v. Peter Zimmer America, Inc., Civ. A. No. 78-1010-0.
...317, 320 (4th Cir. 1967)); N.L.R.B. v. Big Three Ind. Gas & Equipment Co., 579 F.2d 304, 312-312 (5th Cir.1978); Brown v. A.J. Gerrard Mfg. Co., 643 F.2d 273, 276 (5th Cir.1981); Marshall v. P & Z Company, Inc., (c) The defendant has not produced evidence that it has treated similar situati......
-
Internal Investigations
...that a company selectively enforced company policies could be evidence of discrimination. See, e.g., Brown v. A.J. Gerrard Mfg. Co., 643 F.2d 273, 276 (5th Cir. 1981). E. w orkPLacE v ioLEncE Violence in the workplace has become a serious and, unfortunately, all too common reason for an int......
-
Internal Investigations
...that a company selectively enforced company policies could be evidence of discrimination. See, e.g., Brown v. A.J. Gerrard Mfg. Co., 643 F.2d 273, 276 (5th Cir. 1981). E. Wඈඋඉඅൺർൾ Vංඈඅൾඇർൾ Violence in the workplace has become a serious and, unfortunately, all too common reason for an inter......
-
Internal investigations
...that a company selectively enforced company policies could be evidence of discrimination. See, e.g., Brown v. A.J. Gerrard Mfg. Co., 643 F.2d 273, 276 (5th Cir. 1981). E. Workplace Violence Violence in the workplace has become a serious and, unfortunately, all too common reason for an inter......
-
Table of cases
...S.W.2d 772 (Tex. Ct. App.—Corpus Christi 1989, writ denied), §§16:3, 16:3.F Texas employmenT law a-728 Brown v. A.J. Gerrard Mfg. Co. , 643 F.2d 273 (5th Cir. 1981), §13:1.D Brown v. Ameritech Corp. , 128 F.3d 605 (7th Cir. 1997), §4:2.A Brown v. Aztec Rig Equip., Inc. , 921 S.W.2d 835 (Tex......