E.E.O.C. v. Avery Dennison Corp.

• Decision Date: 07 May 1997
• Docket Number: Nos. 94-4320,95-3060,s. 94-4320
• Citation: 104 F.3d 858
• Parties: 72 Fair Empl.Prac.Cas. (BNA) 1602, 69 Empl. Prac. Dec. P 44,473 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant (95-3060), Ronald W. Willis, Plaintiff-Intervenor-Appellant (94-4320), v. AVERY DENNISON CORPORATION, d/b/a Avery Label Systems, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 858

104 F.3d 858

72 Fair Empl.Prac.Cas. (BNA) 1602,

69 Empl. Prac. Dec. P 44,473

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant (95-3060), Ronald W. Willis, Plaintiff-Intervenor-Appellant (94-4320), v. AVERY DENNISON CORPORATION, d/b/a Avery Label Systems,

Defendant-Appellee.

Nos. 94-4320, 95-3060.

United States Court of Appeals, Sixth Circuit.

Argued May 7, 1996

Decided Jan. 17, 1997.

Rehearing and Suggestion for Rehearing En Banc Denied May 7,

1997. ^*

Robert J. Gregory (argued and briefed), Office of General Counsel, Washington, DC, for Plaintiff-Appellant in No. 94-4320.

Joseph W. Diemert, Jr. (briefed), Laura J. Gentilcore, Joseph W. Diemert, Jr. & Assoc., Cleveland, OH, for Plaintiff-Intervenor-Appellant in No. 94-4320.

Mark E. Staib (argued), Amy Berman Hamilton, Hahn, Loeser & Parks, Cleveland, OH, for Defendant-Appellee in No. 94-4320.

Robert J. Gregory (argued and briefed), Office of the General Counsel, Washington, DC, Sophia C. Goodman (briefed), Equal Employment Opportunity Commission, Washington, DC, for Plaintiff-Appellant in No. 95-3060.

Mark E. Staib (argued), Amy Berman Hamilton, Mark D. Griffin (briefed), Hahn, Loeser & Parks, Cleveland, OH, for Defendant-Appellee in No. 95-3060.

Before: MARTIN, Chief Judge, and JONES and RYAN, Circuit Judges.

JONES, J., delivered the opinion of the court, in which MARTIN, C.J., joined. RYAN J. (pp. 863-867), delivered a separate dissenting opinion.

NATHANIEL R. JONES, Circuit Judge.

In this retaliatory discrimination case, Plaintiffs filed motions for summary judgment, claiming inter alia that they had met their prima facie burden. Defendant, in its response, directly countered that assertion. The district court denied Plaintiffs' motions without definitively ruling on the prima facie question and proceeded to trial. After a four day bench trial during which testimony on all issues was received, the district court ruled that Plaintiffs had failed to establish a prima facie case of retaliation, and therefore, entered judgment for the Defendant. For the reasons that follow, this was error. We therefore reverse the judgment of the district court.

I.

Plaintiff-Intervenor Ronald W. Willis ("Willis"), an African-American male, was employed by Defendant Avery Dennison, Inc. ("Avery"), from 1977 until 1990 at one of Avery's plants located in Cleveland, Ohio. In 1982, Willis filed an Equal Employment Opportunity Commission ("EEOC") complaint asserting that he was laid off and that his job was threatened after reinstatement, because of his race and in retaliation for having protested Title VII violations and company policies of not hiring minorities. This charge was settled in July, 1983, when Avery awarded Willis back pay.

In 1983, Willis applied for a foreman position, but the position was given to Ronald Gainer (a caucasian male). At the time, Willis was supervised by David Salantry. Following Gainer's promotion, he occasionally supervised Willis. In October, 1986, Willis was disciplined by Salantry for tardiness. Willis tore up the discipline citation and complained to the production manager Ronald Jones, in Gainer's presence, threatening to bring an action with the EEOC. Jones then suspended Willis for insubordination. The following year, Willis filed a charge with the EEOC alleging that his suspension was due to racial discrimination and retaliation. After receiving a right to sue letter, Willis filed suit under Title VII and 42 U.S.C. § 1981. In 1990, Willis agreed to dismiss his suit in return for payments in settlement of his claims. The confidential settlement agreement further provided that Willis would resign from Avery and that Avery would provide Willis a letter of reference.

In May 1991, Willis applied for a position at Container Corporation of America ("CCA"). On the application he stated that he left Avery due to "lack of work," and gave the name and phone number of Ronald Jones as a contact person for Avery. He also attached a copy of the letter of reference from Avery. Following a favorable interview, a CCA representative contacted Avery. The CCA representative spoke with Ronald Gainer rather than Ronald Jones, whom Willis had listed as a contact person. Gainer stated that Willis had attendance or absentee problems, and that he left Avery because of an arbitration case that awarded him a cash settlement on the condition that he terminate his employment with Avery. CCA did not hire Willis based on Gainer's comments.

Willis filed a third charge with the EEOC against Avery in 1992, alleging that Avery's provision of a negative employment reference to CCA constituted unlawful retaliation in violation of Title VII. The EEOC filed a complaint against Avery asserting retaliation in violation of 42 U.S.C. § 2000e-3(a). Willis was granted limited Intervenor status. Following cross-motions for summary judgement, which were denied by the district court, a four-day bench trial was held.

On November 14, 1994, the district court issued its Findings of Fact and Conclusions of Law. It assumed, without deciding, that Gainer was Avery's agent in making the employment reference. It found that Willis had proven by a preponderance of the evidence: 1) that he was engaged in a protected activity; 2) that Gainer knew of Willis' protected activity; and 3) that Gainer's employment reference constituted adverse employment action. However, the district court entered judgment in favor of Avery. The district court concluded that Plaintiffs had failed to establish a prima facie case of retaliation, as the evidence did not establish, by a preponderance, the existence of a causal connection between Willis' protected activities and Gainer's negative employment reference.

II.

On appeal, Plaintiffs contend that the district court erred when it determined that Plaintiffs failed to present sufficient evidence to meet their burden of establishing a prima facie case of retaliation.

This court reviews the evidence necessary to establish a prima facie case of employment discrimination under the "clearly erroneous" standard of review. Anderson v. Bessemer City, 470 U.S. 564, 575, 105 S.Ct. 1504, 1512, 84 L.Ed.2d 518 (1985). However, the elements that must be proven in a prima facie case are a question of law which is reviewed de novo. Gafford v. General Electric Co., 997 F.2d 150, 168 (6th Cir.1993).

A.

We begin by confronting Plaintiffs' argument that the evidence presented establishes a prima facie case of discrimination. In order to find a prima facie case of retaliation under Title VII a plaintiff must prove by a preponderance of the evidence: 1) plaintiff engaged in activity protected by Title VII; 2) plaintiff's exercise of his civil rights was known by the defendant; 3) that, thereafter, the defendant took an employment action adverse to the plaintiff; and 4) that there was a causal connection between the protected activity and the adverse employment action. Wrenn v. Gould, 808 F.2d 493, 500 (6th Cir.1987). The district court erred in determining that Plaintiffs had failed to demonstrate a prima facie case. Indeed, the Supreme Court held in United States Postal Serv. Bd. v. Aikens, 460 U.S. 711, 717, 103 S.Ct. 1478, 1482-83, 75 L.Ed.2d 403 (1983), that it is inappropriate for a court to resolve a discrimination case on grounds that a prima facie case had not been made, after the case has been fully tried on the merits.

Aikens involved a suit alleging employment discrimination on the basis of race that was fully tried on the merits. The Supreme Court found that in such an instance it was unnecessary for parties thereafter to address the question of prima facie case, and, by so doing, the parties unnecessarily evaded the ultimate question of discrimination vel non. Aikens, 460 U.S. at 714, 103 S.Ct. at 1481. Accordingly, after a discussion of the appropriate shifting of burdens, the Court held that the district court "erroneously focused on the question of prima facie case rather than directly on the question of discrimination," and remanded the case to the district court "so that it may decide on the basis of the evidence before it whether the Postal Service discriminated against Aikens." Id. at 717, 103 S.Ct. at 1483.

In the instant case, the district court denied Plaintiffs' summary judgment motions, awkwardly finding that "a reasonable jury could find ... that there was no causal connection...." J.A. at 1230. We interpret the district court's ruling to mean that it believed that genuine issues existed with respect to the prima facie case. At that point, however, the court should have drawn appropriate reasonable inferences and ruled on whether or not a prima facie case had been made, reserving for trial only the ultimate issue of discrimination. The fact that the court was faced with the prima facie case question at the summary judgment stage and then allowed the case to go to trial, could be construed as a tacit acknowledgment of Plaintiffs' prima facie case. Proof of the prima facie case is only the first step in the proof of a Title VII claim.

The prima facie case is not the final inquiry, but rather the first prong of analysis which defeats a motion for dismissal prior to trial. The Supreme Court so noted this in Aikens when it stated: "By establishing a prima facie case, the plaintiff in a Title VII action creates a rebuttable 'presumption that the employer unlawfully discriminated against' him." Aikens, 460 U.S. at 714, 103 S.Ct. at 1481 (quoting Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981)). In fact, a prima facie case is defined as "sufficient evidence in the type of case to get plaintiff past a motion for directed verdict in a jury case or motion to dismiss in a nonjury case; it is the evidence necessary to require defendant to proceed with his case." Black's Law Dictionary 1190 (6th ed. 1990). The finding that plaintiff has proven a prima facie case forces ...