E.E.O.C. v. Exxon Shipping Co.

• Decision Date: 05 November 1984
• Docket Number: No. 84-2169,84-2169
• Citation: 745 F.2d 967
• Parties: 36 Fair Empl.Prac.Cas. 330, 35 Empl. Prac. Dec. P 34,756 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, Avis M. Cook, Plaintiff-Intervenor, v. EXXON SHIPPING COMPANY, Defendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 967

745 F.2d 967

36 Fair Empl.Prac.Cas. 330,

35 Empl. Prac. Dec. P 34,756

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee Avis M. Cook, Plaintiff-Intervenor, v. EXXON SHIPPING COMPANY, Defendant-Appellant.

No. 84-2169

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Nov. 5, 1984.

Melinda Furche Harmon, J. Kevin French, Houston, Tex., for defendant-appellant.

Dianna B. Johnston, E.E.O.C., Washington, D.C., for E.E.O.C.

Gordon R. Cooper, II, Houston, Tex., for Cook.

Appeal from the United States District Court for the Southern District of Texas.

Before RUBIN, RANDALL and TATE, Circuit Judges.

RANDALL, Circuit Judge:

Exxon Shipping Company appeals from the judgment in this Title VII disparate treatment case in which the district court, 583 F.Supp. 632, found that plaintiff-intervenor, Avis Cook, was discriminatorily denied a promotion to the position of Transportation Allocator. The district court awarded backpay, increased annuity payments and attorneys' fees. This appeal attacks the court's finding of discrimination and its determination that the accrual of backpay was not tolled by the unconditional offer of a comparable job. For the reasons set forth below, we affirm.

I. PROCEDURAL AND FACTUAL BACKGROUND.

Avis Cook ("Cook"), a woman, worked for the Marine Department of Exxon Corporation ("Exxon") ¹ for approximately fifteen years as a secretary. Throughout much of that period, she aspired to move up the Exxon ladder into jobs with higher pay and greater responsibilities. In 1978 and 1979, Cook's department at Exxon was reorganized and many personnel changes occurred, which, Cook felt, created vacancies in higher positions for which she was qualified. Although promotions were discussed with her, the positions desired by Cook were ultimately filled by men. On June 21, 1979, Cook filed a charge of sex-based discrimination against Exxon with the Equal Employment Opportunity Commission ("EEOC"). Conciliation efforts failed and the EEOC filed a Title VII, 42 U.S.C. Sec. 2000e, suit against Exxon in the district court. Cook intervened in the suit and was represented throughout trial by her own counsel.

Cook was employed at Exxon's Baytown office, which is responsible for providing field support for Exxon's marine activities. Throughout the period relevant to this lawsuit, the work at Baytown fell into one of two roughly defined categories: (1) "Inland" work, which dealt primarily with Exxon's marine activities along the intercoastal waterway and (2) "Agency" work, which dealt primarily with sea-going vessels making port calls in the Texas area. To handle this work, Exxon employed persons in a job classification entitled "Transportation Allocator." Transportation Allocators ("TAs") were assigned either to Agency work or Inland work.

Agency TAs were responsible for administering to the needs of sea-going vessels docking in the area and for minimizing the amount of time these vessels spent in port. Agency TA duties included: (1) arranging for tug boats and personnel; (2) ordering goods and services needed by the vessel's seamen; (3) replenishing the vessel's provisions; and (4) preparing and filing documentation required by various government agencies. Inland TAs, on the other hand, coordinated the activities of Exxon tugs and barges used to deliver fuel sales to customer-vessels in the intercoastal waterway. Inland TA duties included: (1) confirming sale orders; (2) issuing loading and discharge orders; (3) ensuring that deliveries were made; and (4) transmitting billing information through proper channels. The Inland position was primarily a desk job. The Agency TAs, on the other hand, spent some of their time out of the office, boarding ships and dealing with government officials.

It is undisputed that Cook desired a promotion to a TA position. It is also undisputed that Exxon considered Cook qualified for such a position. The parties do dispute, however, whether, through a complicated series of personnel changes, Exxon deprived Cook of a TA position because of her sex. Cook testified that, before Exxon implemented its alleged discriminatory scheme, she would have accepted either an Inland or an Agency TA position and that she might have even preferred an Inland slot. Her pleadings, however, complain only of a failure to promote her to an Agency slot. Indeed, the district court found that she was discriminatorily denied an Agency slot in May or June of 1979.

The circumstances surrounding the failure to promote Cook are somewhat complicated. A summary of the fact findings underpinning the district court's ultimate finding of intentional discrimination follows. Traditionally, Agency and Inland TAs at Baytown worked Monday through Friday and rotated weekend responsibilities. In late 1978, Exxon reorganized the Baytown operation by reducing the number of Inland TAs to two and by increasing the number of Agency TAs. As part of this plan, Exxon determined that the least experienced Inland TA should work every weekend, on a Thursday to Monday shift, while the senior Inland TA should work Monday to Friday, with weekends off. ² Agency TAs would, however, continue to rotate weekend work.

In November of 1978, Cook's supervisor, Craig Rassinier ("Rassinier"), informed her that, as a result of this shake-up, two Agency TA slots might be opening up. Ultimately, only one position became available when Tom Brown ("Brown") refused a transfer from Inland to Agency and elected to retire. At about the same time, however, W.A. Scott ("Scott"), an Agency TA, went on extended medical leave, but indicated that he would like to return to his duties, if possible, in about six month's time. In the interim, Scott's duties were performed by Billy Hopper ("Hopper"), who was hired on a contract basis. At this time, Cook was not offered either the Brown or the Scott Agency TA position. Instead, she was offered an Inland TA position in December of 1978 which became available when Stringer resigned. She refused the job because, as the junior TA in the reorganized Inland section, she would be required to work every weekend. The reasons for the switch from rotating weekends were not explained to Cook, and she was left with the impression that weekend work would be a permanent requirement if she accepted the job. The vacancy was filled by Frank Sylvia ("Sylvia"), a transfer from the marketing department, who was told that the weekend assignment would last only until the lead Inland TA position became available.

Thereafter, in March of 1979, Hopper was hired as a permanent employee, purportedly to fill the Agency position that Brown had refused. The position was not filled earlier because Brown delayed his retirement by taking accrued vacation time. While working on a contract basis, however, Hopper had been doing Scott's work and he apparently continued to do so after his permanent employment began. Sometime after March of 1979, Scott informed Exxon that, although he would like to return to work, his health prevented him from resuming his Agency TA duties. Rather than force Scott into medical retirement, Exxon engineered a job swap: Scott was transferred to Houston into a job held by Ignatio Hurtado ("Hurtado") and, at least on paper, Hurtado came to Baytown to fill Scott's Agency TA slot. Since Hopper was already performing Scott's job, however, Hurtado actually filled the vacancy created by Brown's retirement. At about the same time, Brentzel resigned as lead Inland TA. Sylvia was taken off weekend duty, and the back up Inland TA job was again offered to Cook. Cook again turned the job down.

The district court found that, during this time frame, two Agency TA positions became available: the position filled by Hopper and the position filled by Hurtado. The court also found that, although Hopper may have been better qualified for an Agency TA position than Cook, Cook was discriminatorily denied the position filled by Hurtado. The district court further found that Exxon's offer of the back up Inland TA position to Cook in May of 1979 did not toll the accrual of backpay for the denial of an Agency position because the jobs are not comparable and because the job was offered to Cook as part of Exxon's ongoing, discriminatory scheme to keep women out of Agency positions.

II. CONTENTIONS ON APPEAL.

Exxon argues on appeal that the district court erred (1) by finding that Exxon intentionally discriminated against Cook and (2) by misapplying the Supreme Court's decision in Ford Motor Co. v. EEOC, 458 U.S. 219, 102 S.Ct. 3057, 73 L.Ed.2d 721 (1982), to the backpay issue. As to liability, Exxon claims that the court misallocated the burden of proof and held Exxon to the standard appropriate in disparate impact cases, not disparate treatment cases. As to damages, Exxon claims that the court erroneously determined that Exxon did not toll backpay liability by offering Cook the back up Inland TA position because the offer did not include retroactive seniority. With respect to both damages and liability, Exxon claims that the court's ultimate determinations are undermined by several clearly erroneous fact determinations.

Cook, in a brief filed by the EEOC, claims that Exxon's legal arguments are spawned by a mischaracterization of the record and the district court's opinion and that the ultimate findings of liability and damages are amply supported by the record.

III. LIABILITY ISSUES.

A. The Burden of Proof in Disparate Treatment Cases.

The burden of proof in a Title VII disparate treatment case is clear beyond question: the plaintiff must prove that the defendant intentionally discriminated against her. U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983). To facilitate the inquiry into intentional discrimination, the Supreme Court has outlined a framework for the orderly presentation and evaluation of the evidence: (1) plaintiff establishes a...