Duchon v. Cajon Co.

• Decision Date: 19 May 1986
• Docket Number: No. 85-3398,85-3398
• Citation: 791 F.2d 43
• Parties: 40 Fair Empl.Prac.Cas. 1432, 27 Wage & Hour Cas. (BN 1077, 41 Empl. Prac. Dec. P 36,470 Roseann DUCHON, Plaintiff-Appellant, v. CAJON COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 43

791 F.2d 43

40 Fair Empl.Prac.Cas. 1432,

27 Wage & Hour Cas. (BN 1077,

41 Empl. Prac. Dec. P 36,470

Roseann DUCHON, Plaintiff-Appellant, v. CAJON COMPANY, Defendant-Appellee.

No. 85-3398.

United States Court of Appeals Sixth Circuit.

Argued Feb. 10, 1986.

Decided May 19, 1986.

Denise J. Knecht, argued, Russell Z. Baron, Ticktin, Baron & Co., L.P.A., Cleveland, Ohio, for plaintiff-appellant.

Jeffrey M. Embleton, argued, Mansout, Gavin, Gerlack, & Manos, Cleveland, Ohio, for defendant-appellee.

Before KRUPANSKY and GUY, Circuit Judges, and PECK, Senior Circuit Judge.

PER CURIAM.

Roseann Duchon appeals the summary judgment entered in her action which charged her former employer, Cajon Company, with sex discrimination in violation of Title VII, 42 U.S.C. Sec. 2000e et seq., and failure to pay regular and overtime wages in violation of the Fair Labor Standards Act, 29 U.S.C. Sec. 201, et seq. The action also alleged pendent state claims against three individual defendants, Bruce Baunach, Bruce Mayer, and Timothy Coleman, all Cajon employees, for defamation and interference with contractual relations. Duchon alleges that the district court's grant of summary judgment was erroneous because there were genuine issues of material fact concerning the reasons for her termination and Cajon's alleged nonpayment of overtime wages due. She also challenges the district court's denial of her request to amend her complaint in order to establish diversity jurisdiction against Timothy Coleman. For the reasons stated below, we affirm the judgment of the district court in part, reverse in part, and remand this case for further proceedings consistent with this opinion.

Duchon was hired by Cajon in 1981 as a receptionist. She performed these duties satisfactorily. In June 1982 she was laterally transferred to a clerical position in the personnel department. Duchon alleges that throughout her employment with Cajon she was subject to sexual harassment in the form of sexual innuendo, unwelcome advances, and an atmosphere generally degrading to women, but that Cajon did nothing when told of such incidents. Duchon states that she became involved with Coleman in December 1981. She phoned and visited him at his apartment. Duchon alleges that the relationship was consensual until September 1983 when Coleman surprised her by calling police when she went to his apartment. Duchon also asserts that Coleman confided that he had been previously involved with another receptionist who was transferred to a Cajon affiliate at the end of the relationship. Duchon alleges that on September 13, 1983, Bruce Mayer, the Industrial Relations Manager and her immediate supervisor, told her to resign or face termination because of her relationship with Coleman. She resigned. Coleman was not disciplined, discharged, or asked to resign. Duchon asserts that she adequately performed her job, received regular salary increases, and was never warned that her job was in jeopardy. After termination, Duchon received unemployment compensation, because Cajon told the Ohio Bureau of Employment Services that she was terminated for "lack of work." Duchon further alleges that she was not paid properly for overtime. In addition to the above allegations presented in her complaint and sworn affidavit, Duchon submitted the affidavit of an accountant who attested that she had compared Duchon's time cards with her paycheck stubs in accordance with Fair Labor Standards Act requirements and that in her professional opinion Duchon had been undercompensated by $670.36.

Cajon alleged the following facts in its motion for summary judgment under Rule 56, Fed.R.Civ.P. After Duchon transferred into the clerical position, she performed her duties less than satisfactorily. In a February 1983 formal review her immediate supervisor and Industrial Relations Manager, Bruce Mayer, told her not to misrepresent her authority, to prioritize and organize her work better, and to remedy a tardiness problem created when she stretched her lunch period to nurse her infant. Mayer also warned Duchon on June 24, 1983, that her attitude, if not changed, would jeopardize her continued employment. Subsequent to this Duchon misrepresented her authority by using a fictitious job title for mailing lists, signed Mayer's name to several office notices without his approval, and failed to follow her work schedule. In late August 1983, Bruce Baunach, the Sales Manager, told Mayer that Duchon was harassing Coleman by phoning and writing him. Coleman confirmed this, but said that he would handle the problem without involving management. Two weeks later, Coleman told Mayer that Duchon had appeared at his condominium on September 9, 1983, and that he had been forced to call the police when she refused to leave. In light of this incident and Duchon's prior performance problems, Mayer decided to terminate her on September 13, 1983. He told Duchon that she could resign or be terminated. After Duchon left, her position remained open until February 1984 when another woman was hired to replace her. Duchon never reported a single instance of harassment. With regard to overtime, Duchon was paid for all authorized overtime. Because office policy permitted employees to conduct personal business or socialize after quitting time, their time cards would often show that they left later than quitting time.

Summary judgment may only be granted when the pleadings, depositions, answers to interrogatories, admissions and affidavits demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Rule 56(c), Fed.R.Civ.P. All facts and inferences to be drawn therefrom must be read in a light most favorable to the party opposing the motion. Smith v. Hudson, 600 F.2d 60, 63 (6th Cir.), cert denied, 444 U.S. 986, 100 S.Ct. 495, 62 L.Ed.2d 415 (1979). We agree with the district court that Duchon established a prima facie case of sex discrimination in that she is a member of a protected class, she was discharged, and she was qualified for the position she held. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Becton v. Detroit Terminal of Consolidated Freightways, 687 F.2d 140, 141 (6th Cir.1982), cert. denied, 460 U.S. 1040, 103 S.Ct. 1432, 75 L.Ed.2d 791 (1983). Although replacement of the plaintiff by someone outside the protected class is often an element of establishing a prima facie case, see e.g. Becton, 687 F.2d at 141, in a case such as this in which disparate discipline for involvement in a personal affair is alleged, Duchon's replacement by another female is irrelevant to the reason for her discharge. See Beaven v. Commonwealth of Kentucky, 783 F.2d 672, 676-677 (6th Cir.1986); Burdette v. FMC Corp., 566 F.Supp. 808, 815-817 (S.D.W.Va.1983). Once Duchon established her prima facie case the burden of production shifted to Cajon to articulate a legitimate, nondiscriminatory reason for her discharge. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254-55, 101 S.Ct. 1089, 1094-95, 67 L.Ed.2d 207 (1981). The district court found that Cajon's reason for discharge; i.e. Duchon's inadequate performance and her personal relationship with Coleman, was non-discriminatory. The district court further found that Duchon's admission of her personal relationship with Coleman corroborated Cajon's explanation, so that she had failed to raise a genuine question of fact concerning the material issue of whether Cajon's articulated reason for her discharge was merely a pretext for discrimination. See id. at 255-56, 101 S.Ct. at 1094-95. The district court thus granted summary judgment.

We conclude that the district court erred. Duchon's affidavit specifically attested that she received regular wage increases (which Mayer never denied); that she had never been warned or disciplined about her performance; and that she received unemployment benefits because Cajon represented to the Ohio Bureau of Employment Services that she had been terminated for "lack of work" (which Mayer never denied). These allegations, which the district court ignored, directly contradict Cajon's stated reason that Duchon was discharged in part for poor performance. They raise a genuine issue of material fact with respect to the reason for her discharge so as to preclude summary judgment. Moreover, Mayer's affidavit, when read in a light most favorable to Duchon as it must be on a motion for summary judgment, in and of itself raises an inference of discrimination. Coleman continued in Cajon's employ while Duchon was terminated for "the harassment of Mr. Coleman." Mayer's affidavit strongly suggests that Coleman's version of the relationship and alleged harassment was readily accepted, while little or no attempt was made to investigate or hear Duchon's side of the story. Duchon's affidavit confirms this. Such...