EEOC v. Ackerman, Hood & McQueen, Inc.

• Decision Date: 20 February 1991
• Docket Number: No. CIV-90-727-P.,CIV-90-727-P.
• Citation: 758 F. Supp. 1440
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. ACKERMAN, HOOD & McQUEEN, INC., Defendant.
• Court: U.S. District Court — Western District of Oklahoma

758 F. Supp. 1440

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. ACKERMAN, HOOD & McQUEEN, INC., Defendant.

No. CIV-90-727-P.

United States District Court, W.D. Oklahoma.

February 20, 1991.

Tela L. Gatewood, Supervisory Trial Atty., and Nancy Dean Edmonds, Trial Atty., Dallas, for plaintiff.

Stephen P. Friot and Barbara L. Swimley, Spradling, Alpern, Friot & Gum, Oklahoma City, for defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

PHILLIPS, District Judge.

I. BACKGROUND

A. Summary of Facts and Ruling

In January 1986, Phyllis Kay Torbeck, a secretary, learned that she was pregnant and announced this fact to her coworkers. Torbeck was working in the secretarial pool of the Oklahoma City office of Ackerman, Hood & McQueen ("AHM"), an advertising and public relations firm. Prior to her pregnancy, Torbeck had never been disciplined at AHM, and her personnel file contained no indication of adverse comments or counseling sessions. As a pregnant employee at AHM, Torbeck would have been eligible to take six weeks of paid maternity leave at the time she gave birth to her child.

On January 14, 1986, four days after Torbeck's pregnancy test, the chairman of AHM "counseled" Torbeck about her alleged unwillingness to work overtime, including time in the evenings and on Saturdays and Sundays. The AHM officer, Raymond B. Ackerman, wrote in a memorandum after the session that he had reminded Torbeck that a condition of her employment required her to be available "on any evening or any day of the weekend requested."

Three months after the counseling session, AHM fired Torbeck. Torbeck had been experiencing some of the physical symptoms of a typical pregnancy — fatigue, headaches, and lower back pain. At her request, Torbeck's obstetrician sent a letter to AHM that recommended that she work no more than 40 hours a week; the doctor also noted in the letter that Torbeck was in "good health." AHM discharged Torbeck on April 3, 1986, the day after she submitted her doctor's letter. AHM's position essentially was that Torbeck was fired for insubordination because she intended to follow her doctor's recommendation and not work overtime, despite the fact she was in good health.

In this discriminatory discharge action, the Equal Employment Opportunity Commission ("the EEOC") alleged that AHM fired Torbeck in violation of the provisions of Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), including the Pregnancy Discrimination Act of 1978. The EEOC argued that because she was pregnant AHM treated Torbeck's request to reduce her working hours differently than similar requests made by other employees. In response, AHM insisted that Torbeck had refused to work overtime and had not presented the company with valid medical evidence to support her request to work fewer hours.¹

The Court has concluded that Torbeck would not have been fired had she not been pregnant. AHM treated her request for a schedule adjustment differently than the firm handled other similarly situated employees' requests. The evidence shows that AHM liberally granted leaves and work schedule adjustments to other employees for medical and other reasons under an unwritten policy. In considering Torbeck's request, AHM applied a higher standard; the firm justified her firing by insisting that she had failed to provide sufficient evidence of medical need.

B. Trial Procedure and Attorneys

Using an affidavit procedure,² the Court heard testimony in the bench trial on January 3 and 4, 1991.

All counsel were extremely well prepared and represented their clients with the highest degree of professionalism. Tela L. Gatewood, supervisory trial attorney, and Nancy Dean Edmonds, trial attorney, both of the EEOC office in Dallas, represented the EEOC. Stephen P. Friot and Barbara L. Swimley, of the law firm Spradling, Alpern, Friot & Gum, of Oklahoma City, represented AHM.

II. EXHIBITS

The Court received into evidence without objection the following plaintiff's exhibits: Nos. 1-30. The Court received into evidence without objection the following defense exhibits: Nos. 1, 3-6, 10-13. The Court rejected Defendant's Exhibit No. 7. The Court sponsored the following exhibits: Court's Exhibit Nos. A-Q.³

III. WITNESSES

The EEOC called the following witnesses in its case in chief: Ron Cawthon, former AHM employee; Karen Cottrell, AHM public relations account manager, Washington, D.C., office; James Gregory Cox, M.D., obstetrician and gynecologist; Betty Jo Garner, EEOC paralegal specialist, Dallas district office; Beverly J. Harp, owner of a firm at which Torbeck sought employment; Kathie Jo Marshall, former supervisor of the AHM secretarial pool; Phyllis Kay Torbeck, former AHM secretary; and Ruby Elaine Williamson, former AHM secretary.

AHM called the following witnesses in its case in chief: Raymond B. Ackerman, chairman of the board of directors of AHM; Bruce E. Anderson, AHM executive vice president and director of client services; Karen Cottrell (also an EEOC witness); Jeanette Elliott, AHM senior vice president and creative director; Jana Fielder, assistant to Raymond Ackerman at AHM; Donald J. Loewen, AHM art director; Laura L. Mackie, M.D., obstetrician and gynecologist; Nancy Martin, AHM director of traffic, Tulsa office; Angus L. McQueen, president and chief executive officer of AHM; Christy Tebow, AHM creative services manager; Jenifer J. Ware, former supervisor in AHM accounting office; Patti Weinbrenner, AHM senior vice president; and William F. Winkler, Jr., AHM chief financial officer.

IV. STIPULATIONS

The parties provided the Court with written stipulations in which they agreed on the following matters:

A. All parties are properly before the court.

B. The court has jurisdiction of the parties and of the subject matter.

C. All parties have been correctly designated.

D. There is no question as to misjoinder or nonjoinder of parties.

E. Facts:

1. The Plaintiff is an agency of the United States of America charged with the administration, interpretation, and enforcement of Title VII and is expressly authorized to bring this action by Section 706(f)(1) of Title VII, 42 U.S.C. Section 2000e-5(f)(1).

2. At all relevant times, the Defendant has continually been an employer doing business in ... Oklahoma City, Oklahoma and has continuously had at least 15 employees.

3. At all relevant times, the Defendant has continuously been and is now an employer engaged in an industry affecting interstate commerce within the meaning of Section 701(b), (g) and (h) of Title VII, 42 U.S.C. Section 2000e-(b), (g) and (h).

4. Ackerman, Hood & McQueen is an advertising, marketing and public relations firm based in Oklahoma City. The Chairman of the Board of Ackerman, Hood & McQueen is Ray Ackerman. The President and Chief Executive Officer is Angus L. McQueen. Messrs. Ackerman and McQueen reside in Oklahoma City.

5. Phyllis Torbeck, a female, was hired as a secretary by the Defendant on December 17, 1984.

6. From December 17, 1984, until approximately October 11, 1985, Torbeck's direct supervisor was Ray Ackerman.

7. During the initial period of her employment at Ackerman, Hood & McQueen, Mrs. Torbeck was an executive secretary to Mr. Ackerman and two account executives. Under this arrangement, Mrs. Torbeck reported to, and worked only for, Mr. Ackerman and the two account executives.

8. From the beginning of her employment at Ackerman, Hood & McQueen, through the summer of 1985, Mrs. Torbeck was required to work very little overtime.

9. Defendant permitted Torbeck to take time off from October 14, 1985, through November 10, 1985, to enable her to have surgery.

10. From November 11, 1985, until February 21, 1986, Torbeck's direct supervisor was Karen Cottrell.

11. From November 11, 1985, until February 21, 1986, Bruce Anderson was Karen Cottrell's supervisor.

12. From February 24, 1986, until April 3, 1986, Torbeck's direct supervisor was Kathy Jo Gardner.

13. From November 11, 1985, through April 3, 1986, both Phyllis Torbeck and Ruby Williamson were secretaries in the "secretarial pool".

14. Ray Ackerman counseled Phyllis Torbeck about overtime on January 14, 1986, at the request of Karen Cottrell.

15. While employed by the Defendant, Torbeck was paid additional compensation for overtime each hour she worked in excess of forty hours per week.

16. On April 2, 1986, Bruce Anderson and Ray Ackerman received a note from Phyllis Torbeck's obstetrician, Dr. James G. Cox.

17. Angus McQueen, Bruce Anderson, Ray Ackerman and William Winkler have no medical training.

18. Dr. Laura Mackie was not consulted by the Defendant prior to the discharge of Phyllis Torbeck.

19. Phyllis Torbeck was discharged by the Defendant on April 3, 1986.

20. On April 3, 1986, Phyllis Torbeck was pregnant.

21. Ray Ackerman, William Winkler, Angus McQueen and Bruce Anderson all took part in the decision to discharge Phyllis Torbeck.

22. All persons who took part in the decision to terminate Phyllis Torbeck are still employed by the Defendant.

23. Prior to discharging Phyllis Torbeck, the Defendant consulted its attorneys.

24. The attorneys who were consulted by the Defendant prior to Phyllis Torbeck's discharge are the same attorneys who are representing the Defendant in this action.

25. At the time of her discharge on April 3, 1986, Torbeck's base bi-weekly salary was $750.00.

26. From August 26, 1985, through October 6, 1985, Karen Cottrell, a secretary, worked between 31.25 and 33.25 hours per week.

27. For the week ending August 18, 1985, Karen Cottrell worked a total of 16.5 hours. A total of 23.25 hours was reported as "illness".

28. For the week ending August 25, 1985, Karen Cottrell worked a total of 10 hours. A total of 31 hours was reported as "illness".

29. Jeanette Elliott took time off for "illness" on Monday, Wednesday, Thursday and Friday of the week ending April 6, 1986.

30. Don Loewen was permitted time off for medical reasons from April 30, 1985, through June 7,

...