Cohen v. Fred Meyer, Inc.

• Decision Date: 08 September 1982
• Docket Number: Nos. 81-3187,81-3226,s. 81-3187
• Citation: 686 F.2d 793
• Parties: 29 Fair Empl.Prac.Cas. 1268, 30 Empl. Prac. Dec. P 33,030 Phyllis COHEN, Danielle Hopkins, and Marianne Bires, on behalf of themselves and all others similarly situated, Plaintiffs-Appellees, v. FRED MEYER, INC., Defendant-Appellant. Phyllis COHEN, et al., Plaintiffs, and Marianne Bires, Plaintiff-Appellant, v. FRED MEYER, INC., and Local 1092, Retail Employees Union, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 793

686 F.2d 793

29 Fair Empl.Prac.Cas. 1268,

30 Empl. Prac. Dec. P 33,030

Phyllis COHEN, Danielle Hopkins, and Marianne Bires, on

behalf of themselves and all others similarly

situated, Plaintiffs-Appellees, v. FRED MEYER, INC., Defendant-Appellant.

Phyllis COHEN, et al., Plaintiffs, and Marianne Bires, Plaintiff-Appellant, v. FRED MEYER, INC., and Local 1092, Retail Employees Union,

Defendants-Appellees.

Nos. 81-3187, 81-3226.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 4, 1982.

Decided Sept. 8, 1982.

Susan P. Graber, Stoel, Rives, Boley, Fraser & Wyse, Portland, Or., for defendant-appellant.

Ronald P. Schiffman, Tolovana Park, Or., argued, for plaintiffs-appellees; Patricia Watson, Tolovana Park, Or., on brief.

Appeal from the United States District Court for the District of Oregon.

Before KILKENNY, GOODWIN and POOLE, Circuit Judges.

POOLE, Circuit Judge:

Fred Meyer, Inc. appeals from the district court's judgment that it violated § 704(a) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a), by retaliating against appellee/cross-appellant Marianne Bires for having filed an employment discrimination complaint with the EEOC. The court also held that such retaliatory action resulted in her constructive discharge. We vacate the judgment and remand to the district court for further findings of fact. ¹

FACTS

Marianne Bires worked in the apparel department of Fred Meyer's store in Burlingame, Oregon, from August, 1969, until she quit on October 17, 1973. Originally hired as a clerk, she was promoted in late 1971 to the position of Person in Charge (PIC) which she held until early August, 1973. The apparel department had one manager and two PICs, one for fabrics (Bires) and one for clothing (Cherie Storm). In the manager's absence, the PICs performed certain supervisory duties, such as approving checks and responding to customer complaints.

In November, 1972, Bires filed an employment discrimination complaint with the Oregon Bureau of Labor and the Equal Employment Opportunity Commission (EEOC), alleging a pattern and practice of sexual discrimination in hiring and promotion at Fred Meyer's stores. ² The complaint did not receive active attention until March, 1973, when EEOC notified Gary Baker, Fred Meyer's Vice President and Director of Employee Relations, of the charges. In May, 1973, Baker was contacted by Sandy Henderson of the State Civil Rights Division, who had been assigned to investigate Bires' charges. Baker did not tell Bires' supervisors of her complaint.

Also in May, 1973, Ron Reynolds was appointed District Manager of the apparel departments at Fred Meyer's Burlingame and Tigard, Oregon, stores. ³ Shortly thereafter, he received numerous complaints from other departments at the Burlingame store about the lack of evening managerial coverage in the apparel department. Apparently, the manager in apparel worked only one night shift a week, and both Bires and Storm worked straight day shifts. Managerial personnel in other departments working nights were thus forced to respond to apparel's customer complaints with which they were unfamiliar.

In response to this situation, Reynolds decided to implement a policy whereby PIC shifts were to be scheduled so that a PIC would always be on duty in the absence of the manager. Thus, when the manager worked the day shift, the PICs would work the opposite night shift. Another policy effected by Reynolds required all employees to rotate shifts, so that everyone would work some night and weekend shifts each week. There was no evidence that Baker participated in either policy decision.

In July, 1973, Bires and Storm learned that they would have to begin working nights on a regular basis or lose their PIC status and pay. Moreover, even if they lost their PIC status, they still would have to work some night and weekend shifts pursuant to Reynolds' second policy. Bires immediately informed Sandy Henderson that she thought she was being harassed because of her EEOC complaint. On July 26, Henderson telephoned Baker and Reynolds to discuss the new policies and Bires' claim of harassment. Both men told her that the policies had been adopted for legitimate and desirable business reasons, and would be implemented despite Bires' concerns. During this conversation, Reynolds learned for the first time that Bires had filed a complaint with EEOC.

On July 30, Bires and Henderson met with Baker and Reynolds. Baker and Reynolds again explained the reasons behind the adoption of the policies and stated that they would be maintained regardless of Bires' suspicions. They also rejected Henderson's suggestion for a delay until EEOC resolved Bires' complaint.

The policies went into effect in the first week of August, 1973. Because they chose not to work nights on a regular basis, both Bires and Storm lost their PIC status and pay. Moreover, each had to work some night and weekend shifts as part of Reynolds' rotating shift policy. According to In November, 1975, Bires joined as a named plaintiff in a class action against Fred Meyers alleging discrimination on the basis of sex in hiring and promotional opportunities. The class claims and the claims of the other named plaintiffs were settled in 1978. Bires' individual claims were tried to the district court on May 8, 1979. ⁴ The court concluded that she had made out a narrow case of retaliation based on the changes in her PIC status and her work shifts, and that such retaliation constituted sufficient evidence to support a finding of constructive discharge. After additional briefing, the court awarded Bires $36,831 in back pay and.$19,000 in attorney's fees.

Bires, the manager of apparel thereafter became unreasonably critical of her work, and she was expected to perform PIC duties despite her demotion. When Bires returned from vacation on October 8, 1973, a dispute arose over the calculation of her vacation pay. Although she complained to her manager, nothing was done. Finally, on October 17, 1973, Bires walked off the job after a confrontation with her manager over a work assignment.

DISCUSSION

On appeal, Fred Meyer contends that, under the applicable legal standards governing Title VII cases, the district court's findings of fact do not support its conclusion that Fred Meyer violated § 704(a). We agree.

Section 704(a) provides in relevant part that "(i)t shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because (that employee) has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge ... under this subchapter." 42 U.S.C. § 2000e-3(a). The order and allocation of proof for Title VII suits set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-1825, 36 L.Ed.2d 668 (1973), is applicable to actions for unlawful retaliation under this section. See Aguirre v. Chula Vista Sanitary Service, 542 F.2d 779, 781 (9th Cir. 1976); accord Womack v. Munson, 619 F.2d 1292, 1296 (8th Cir. 1980). The plaintiff must first establish a prima facie case of retaliation by showing that she engaged in a protected activity, that she was thereafter subjected by her employer to adverse employment action, and that a causal link exists between the two. Gunther v. County of Washington, 623 F.2d 1303, 1314 (9th Cir. 1979), aff'd., 452 U.S. 161, 101 S.Ct. 352, 66 L.Ed.2d 213 (1981); Miller v. Williams, 590 F.2d 317, 320 (9th Cir. 1979). To show the requisite causal link, the plaintiff must present evidence sufficient to raise the inference that her protected activity was the likely reason for the adverse action. See Hagans v. Andrus, 651 F.2d 622, 626 (9th Cir. 1981); see also Meyer v. California and Hawaiian Sugar Co., 662 F.2d 637, 639 (9th Cir. 1981). Essential to a causal link is evidence that the employer was aware that the plaintiff had engaged in the protected activity. See Gunther v. County of Washington, supra, 623 F.2d at 1316; Aguirre v. Chula Vista Sanitary Service, supra, 542 F.2d at 781.

Once the plaintiff has established a prima facie case, the burden of production devolves upon the defendant to articulate some legitimate, non-retaliatory reason for the adverse action. See Gunther v. County of Washington, supra, 623 F.2d at 1314. The defendant need not prove the absence of retaliatory intent or motive; it simply must produce evidence sufficient to dispel the inference of retaliation raised by the plaintiff. See Furnco Construction Corp. v. Waters, 438 U.S. 567, 577-78, 98 S.Ct. 2943, 2949-50, 57 L.Ed.2d 957 (1978); Knutson v. Boeing Co., 655 F.2d 999, 1001 (9th Cir. 1981); Womack v. Munson, supra, 619 F.2d at 1296. If the defendant meets this burden, the plaintiff must then show that the asserted reason was a pretext for retaliation. Aguirre v. Chula Vista Sanitary Service, supra, 542 F.2d at 781. The ultimate In this case, the district court did not articulate the standards by which it evaluated the evidence and arrived at its finding of liability. It must necessarily have found that Bires made a prima facie showing of retaliation, but there is no indication whether, in the court's view, Fred Meyer failed to articulate a legitimate non-retaliatory reason for its actions, or whether its asserted reason was shown by Bires to be a pretext. More important, the court does not make clear whether its finding of retaliation was based on Fred Meyer's decision to implement the policies that adversely affected Bires, or was based on the manner in which the policies were in fact applied. If the former, the finding of liability cannot stand. If the court made the...