Commons v. Montgomery Ward & Co., Civ. A. No. 83-4119.

• Decision Date: 30 July 1985
• Docket Number: Civ. A. No. 83-4119.
• Citation: 614 F. Supp. 443
• Parties: Betty D. COMMONS, Plaintiff, v. MONTGOMERY WARD & COMPANY, Defendant.
• Court: U.S. District Court — District of Kansas

614 F. Supp. 443

Betty D. COMMONS, Plaintiff, v. MONTGOMERY WARD & COMPANY, Defendant.

Civ. A. No. 83-4119.

United States District Court, D. Kansas.

July 30, 1985.

Fred W. Phelps, Sr., Fred W. Phelps, Jr., Phelps-Chartered, Topeka, Kan., for plaintiff.

Grant M. Glenn, Edward L. Bailey, Michael J. Grady, Cosgrove, Webb & Oman, Topeka, Kan., for defendant.

MEMORANDUM AND ORDER

EARL E. O'CONNOR, Chief Judge.

This Title VII, 42 U.S.C. § 1981, and Age Discrimination in Employment Act (ADEA) action was tried to a jury and the court from November 26 through November 29, 1984. The jury returned a verdict for plaintiff on the section 1981 claim and for defendant on the ADEA claim. We have considered all the evidence, memoranda, and proposed findings and conclusions submitted by the parties, and are now prepared to rule on various post-trial motions and the Title VII claim. We turn first to the Title VII claim.

Plaintiff is a white, 58-year-old American female. She was employed at the Montgomery Ward & Company (Montgomery Ward) store in Topeka, Kansas, from 1967 to 1983. For the 15 years prior to her termination, she was manager of the customer accomodation center (formerly called the credit department). In that capacity plaintiff supervised six to eight employees, some of whom were part-time.

During the early 1980's, Montgomery Ward was having financial difficulties. As a result, various merchandising techniques were changed, stores were closed, and several reorganizations took place, causing many employees to lose their jobs either through termination or attrition. Also, Montgomery Ward's corporate head-quarters determined that a reduction in management personnel was needed to streamline the organization. This brought about a reduction in the number of retail sales managers in the Topeka store from nine to six. The relevant changes with regard to the instant case were that the catalog department and customer accommodations center were merged, and the new department leader was given the title of customer service manager.

On April 1, 1983, plaintiff was brought to the office of Jim Fleshman, the store manager, and advised that these departments would no longer exist independently. She was also advised that the customer service manager's position would be given to Terri Lewis.

Lewis was a 29-year-old black female who had been with Wards for six years. She had graduated from Central Missouri State University and obtained a Bachelor's Degree in Textiles and Clothing. Lewis was enrolled in Montgomery Wards' Retail Store Sales Manager's (RSSM) training program. She had little or no experience in either the credit or catalog areas and was familiar with them only slightly from her management training program four years earlier.

Plaintiff was told at the meeting that she had three options. She was offered the position of clerk in the customer services department, or the position of merchandise record clerk in a different department. Both of these positions would pay plaintiff approximately $3,000.00 less than what she was making at the time. If plaintiff took either position, she would also be required to stay in the customer accommodations department for a period of time in order to train Lewis. If she declined both of these offers, she was told the Company would have no choice but to terminate her. In fact, Grace Patterson, the store personnel manager, had already been requested by Fleshman to prepare plaintiff's severance papers. Plaintiff was told her decision had to be made that day. Thereupon, she refused the offers and was terminated the same day.

In order to make out a prima facie case of employment discrimination based on race, a plaintiff has the initial burden of showing:

(1) that plaintiff belonged to the protected class;

(2) that plaintiff applied and was qualified for the position;

(3) that plaintiff was rejected; and

(4) that after plaintiff's rejection, the position remained open.

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). Although this standard was developed for Title VII actions, it is also applicable in section 1981 cases. See e.g. Elkassabany v. King Radio Corp., No. 79-4193 (D.Kan., unpublished, 8/17/83); Hall v. Bio-Medical Application, Inc., 671 F.2d 300 (8th Cir.1982). The McDonnell Douglas test is not an inflexible standard, as the facts necessarily will vary in each case. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).

Once a plaintiff meets this initial burden a rebuttable presumption of unlawful discrimination is created. The Supreme Court has stated: "The prima facie case serves an important function in the litigation: it eliminates the most common nondiscriminatory reasons for the plaintiff's rejection." Texas Dept. of Community Affairs v. Burdine, 450 U.S. at 254, 101 S.Ct. at 1094; see Carlile v. South Routt School Dist. RE-3J, 739 F.2d 1496 (10th Cir.1984). To rebut the presumption of discrimination, the defendant must then come forward and show that the action taken was for a legitimate, nondiscriminatory reason. Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24, 99 S.Ct. 295, 58 L.Ed.2d 216 (1978); Carino v. University of Oklahoma Board of Regents, 750 F.2d 815 (10th Cir.1984).

The legal standards to be applied when determining whether a plaintiff has made out a prima facie case of discrimination in a reverse discrimination context are unclear. Compare Parker v. Baltimore & Ohio Railroad Co., 652 F.2d 1012 (D.C.Cir. 1981), with Setser v. Novack Investment Co., 657 F.2d 962 (8th Cir.1981) (en banc), and Johnson v. Transportation Agency, Santa Clara County, 748 F.2d 1308 (9th Cir.1984). Much of this confusion has resulted from two Supreme Court cases which seem to dictate opposite results. In McDonald v. Santa Fe Trail Transportation, 427 U.S. 273, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976), the Court held that section 1981 prohibits discrimination against white persons on the basis of race. Only three years later the Court decided United Steelworkers v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979), a Title VII action. There, the Court upheld voluntary affirmative action plans designed to promote minority employment. Other courts have since held that Weber also applies to section 1981 actions. See Setser v. Novack Inv. Co., 657 F.2d at 966-67 (and cases cited therein). In light of these cases, several courts have sought to reconcile the decisions and develop a workable standard for application in reverse discrimination cases.

In Parker v. Baltimore & Ohio Railroad Co., 652 F.2d 1012 (D.C.Cir.1981), the District of Columbia Circuit analyzed the question, and held that a majority plaintiff must show, as a part of his prima facie case, some "background circumstances which support the suspicion that the defendant is that unusual employer who discriminates against the majority." Parker, 652 F.2d at 1017. This would effectively eliminate the normal McDonnell Douglas presumption. The court further observed that "a prima facie case under McDonnell Douglas raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not to be based on the consideration of impermissible factors, but it defies common sense to suggest that the promotion of a black employee justifies an inference of prejudice against white co-workers in our present society." Parker, 652 F.2d at 1017 (citations omitted).

The Eighth Circuit examined the problem in greater depth in Setser v. Novack Inv. Co., 657 F.2d 962 (8th Cir.1981) (en banc), and held that the McDonnell Douglas standard applied generally but that certain modifications were needed because "a race-conscious choice by reason of a remedial affirmative action plan is legitimate under Title VII or section 1981." Id. at 968. The court went on to state that the employer bears the burden of producing some evidence that its plan was in response to a conspicuous racial imbalance and that the plan is reasonably related to the intended remedial purpose. In response, the employee must then present evidence that the plan was unreasonable or irremedial. If the plan is found to be bona fide, judgment must be entered for the employer because "any other alleged reason for plaintiff's rejection would not be based on a race conscious choice and therefore would defeat his claim of racial discrimination under section 1981." Id. at 970 n. 9.

In Johnson v. Transportation Agency, Santa Clara County, 748 F.2d 1308 (9th Cir.1984), the Ninth Circuit followed the Eighth Circuit and held that the traditional McDonnell Douglas test applied. The Ninth Circuit made clear that the employer could produce evidence of its affirmative action plan as a nondiscriminatory reason for its employment decision. The court proceeded to analyze the employer's affirmative action plan and reversed the district court's finding that the employer had not met its burden of showing a bona fide plan.¹

We believe the view of the Eighth and Ninth Circuits is persuasive and should be followed in reverse discrimination cases. Majority plaintiffs should be able to rely on the McDonnell Douglas-Burdine presumption in order to test the validity of the defendant's affirmative action plan by requiring the defendant to put on evidence concerning the plan, its reasonableness and purposes. See generally Winkes v. Brown University, 747 F.2d 792, 799-800 (1st Cir. 1984) (Pettine, J., dissenting).

We now turn to the facts in the present case. Several incidents led plaintiff to believe that she was the victim of racial discrimination. Commons testified that she had attempted to enter the Company's Management Trainee Program (RSSM), but was told by a store manager that she was too old to enter the program and that it wouldn't hurt if she were black. Another witness was told by a store manager that plaintiff did not get the job because t...