Brown v. Parker-Hannifin Corp.

• Decision Date: 22 October 1984
• Docket Number: PARKER-HANNIFIN,No. 81-2471,81-2471
• Parties: 36 Fair Empl.Prac.Cas. 127, 35 Empl. Prac. Dec. P 34,739 Elizabeth BROWN, Plaintiff-Appellant, v.CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1407

746 F.2d 1407

36 Fair Empl.Prac.Cas. 127,

35 Empl. Prac. Dec. P 34,739

Elizabeth BROWN, Plaintiff-Appellant, v. PARKER-HANNIFIN CORPORATION, Defendant-Appellee.

No. 81-2471.

United States Court of Appeals, Tenth Circuit.

Oct. 22, 1984.

Paul Franklin Farr and Carolyn Montgomery of J. Craig Carman & Associates, Salt Lake City, Utah, for plaintiff-appellant.

Gordon L. Roberts and Kathlene W. Lowe of Parsons, Behle & Latimer, Salt Lake City, Utah, and Bruce G. Hearey and Stanley Dan Pace of Spieth, Bell, McCurdy & Newell Co., L.P.A., Cleveland, Ohio, for defendant-appellee.

Before HOLLOWAY, Chief Judge, and McWILLIAMS and BARRETT, Circuit Judges.

HOLLOWAY, Chief Judge.

After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); Tenth Circuit R. 10(e). The cause is therefore ordered submitted without oral argument.

Plaintiff Elizabeth Brown commenced this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq., alleging, inter alia, that defendant Parker-Hannifin Corporation (Parker-Hannifin) discriminatorily discharged her from employment because of her German national origin. ¹ The district court granted the defendant's motion for summary judgment.

Plaintiff Brown appeals from the district court order, contending that: (1) summary judgment was improper since, plaintiff contrary to the district court's rulings, established a triable prima facie case of discrimination; and (2) the denial of plaintiff's Rule 56(f) motion for postponement of the summary judgment hearing was improper because she was not afforded the opportunity to demonstrate through further discovery that defendant's nondiscriminatory reason for her termination of employment was pretextual. We must agree with plaintiff's primary contention and conclude that material issues of fact existed as to whether the plaintiff presented a prima facie claim of disparate treatment and whether the defendant's stated reason for her discharge was pretextual. Thus we must set aside the summary judgment.

I

Plaintiff Brown is a German who moved to the United States in 1956. She was first hired by defendant Parker-Hannifin in 1972 as a "manufacturer expediter" in the packing division of the corporation. I R. 41, III R. 26. Plaintiff testified by deposition that she was a hard worker who neither complained nor refused to do work; that she was capable of handling a number of different jobs; and that she was given various duties by her supervisor because she "could get (the job) done and could get it done fast." III R. 29, 36.

On January 6, 1977, Parker-Hannifin terminated plaintiff's employment. The reason given for her discharge was that she was insubordinate in refusing to fill in on a job as ordered by her supervisor. Plaintiff stated that she told her supervisor and the personnel manager that she could perform the requested job for only a few hours because of problems she was having with her knee. Plaintiff further testified, by deposition and by her affidavit, that other non-German employees continued to work as expediters for the defendant's packing division after her discharge, and that plaintiff had done her job as well as anyone there. I R. 187, III R. 40-41.

Plaintiff produced evidence that another non-German employee was treated more leniently for a similar infraction; the other employee was merely suspended from work for insubordination. I R. 186. She also testified in her deposition that other employees harassed her and called her a "German Kraut," while her supervisors did nothing to stop them. III R. 39-45.

Plaintiff had previously filed a discrimination complaint in 1975 with the EEOC against the defendant after being laid off work. The charge was resolved by written agreement, and she was reinstated and paid lost wages. Plaintiff's affidavit states that EEOC officials visited the company and interviewed her in November 1976 and that her discharge followed some two months thereafter. I R. 188.

Plaintiff brought this Title VII suit in the District of Utah. The district court held, in granting the defendant's summary judgment motion, that plaintiff did not produce sufficient evidence to make out a prima facie case of discrimination. The court therefore concluded that no genuine issue of material fact existed and that defendant was entitled to summary judgment as a matter of law. The court found that the only evidence supporting plaintiff's claim was that another non-German employee received a less severe punishment for a similar work infraction; the court concluded, however, that such evidence did not raise a material issue of fact because the two situations were "not that comparable." See Memorandum Decision at 2.

The district court also denied plaintiff's Rule 56(f) motion. The court held that further discovery would not aid plaintiff in defending against the summary judgment motion and that she had sufficient time and opportunity to produce some evidence to support her claim.

II.

We must consider whether the defendant's affidavits, depositions and other materials established the absence of a genuine issue of material fact and defendant's right to judgment as a matter of law (1) as to plaintiff's Title VII claim of discriminatory treatment because of her German national origin, and (2) as to the company's defense that in any event defendant had a legitimate non-discriminatory reason for discharging plaintiff.

A. Establishment of prima facie case of discrimination

The Supreme Court has held that a prima facie case of employment discrimination is established when plaintiff demonstrates that: (1) she belongs to a racial minority; (2) she applied and was qualified for a job the employer was trying to fill; (3) although qualified, she was rejected; and (4) the employer continued to seek applicants with the plaintiff's qualifications. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1972). See also EEOC v. University of New Mexico, 504 F.2d 1296, 1305 (10th Cir.1974). Although the four McDonnell Douglas factors were not cast as a rigid rule to apply to all factual situations, ² courts have adapted the formulation to fit cases involving claims of discriminatory discharge.

This court has held that a discharged employee establishes a prima facie case by satisfying the first three requirements of McDonnell Douglas and by producing evidence that someone was hired in her place after she was fired. Crawford v. Northeastern Oklahoma State University, 713 F.2d 586, 588 (10th Cir.1983). ³ Plaintiff has made no showing that her job remained available after her discharge, as indicated in Ray v. Safeway Stores, Inc. However, she has successfully demonstrated that she satisfies even the stricter test established by some courts.

First, plaintiff belongs to a minority based on national origin; she was born in Germany in 1936, moved to the United States twenty years later, and first obtained her American citizenship in 1959. Second, she made a showing in her deposition and other evidentiary materials that she was qualified for her job; that she was a hard worker capable of handling different duties; and that her supervisors knew of her capabilities and entrusted her with various jobs in the plant. Third, plaintiff was discharged from employment in January 1977. Finally, plaintiff stated in her deposition that she was doing the work faster than other employees; that she was "used" while other employees "could play around, having fun in there"; and that other employees knew what plaintiff could do and were on her side concerning her discharge. III R. 35-36. Other employees called her a "German, Kraut" and harassed her, and the supervisors did nothing to stop that behavior. III R. 39-41, 43. We must agree that plaintiff demonstrated a triable prima facie claim of discrimination against the defendant for her discharge. We are persuaded that this case is similar to Byrd v. Roadway Express, Inc., 687 F.2d 85 (5th Cir.1982), where the court held that summary judgment was precluded because the plaintiff's deposition "demonstrated a potential for a prima facie case at trial" of his Sec. 1981 claim involving harassment and threatening conduct. ⁴

Defendant argued in its memorandum for summary judgment in the district court that the record would simply not permit a finding of disparate treatment; that plaintiff was insubordinate; and there was no evidence that defendant's discharge of her was motivated by unlawful discriminatory animus. I R. 161. However the record shows that plaintiff did present some evidence of disparate treatment. Defendant's arguments about the weakness of the plaintiff's case should be addressed to a trier of facts at trial. The plaintiff, as detailed above, provided some evidence of the elements of a prima facie case, her own capabilities, and of the failure of her supervisors to stop harassment of those abusing her. "It is reasonably clear that an employer must do more than merely avoid actively creating a racially intimidating environment. If he has actual or constructive notice of the situation and fails to take active and effective steps to remedy it, he may have violated Title VII. This is true even if the acts of harassment are committed entirely by non-supervisory personnel." 3 A. Larson and L. Larson, Employment Discrimination. Sec. 84.10 at 17-7 (1984).

In light of the evidentiary materials presented to support plaintiff's prima facie case, we are unable to agree that summary judgment was proper on the theory that plaintiff failed at the stage of developing a prima facie case. The Supreme Court has noted that "the burden of establishing a prima facie case of disparate treatment is not onerous." Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d...