Equal Employment Opportunity Commission v. New York Times Broadcasting Service, Inc., WREC-T

• Decision Date: 04 October 1976
• Docket Number: WREC-T,D,No. 75-2055,75-2055
• Citation: 542 F.2d 356
• Parties: 13 Fair Empl.Prac.Cas. 813, 12 Empl. Prac. Dec. P 11,205 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. The NEW YORK TIMES BROADCASTING SERVICE, INC., d/b/aefendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 356

542 F.2d 356

13 Fair Empl.Prac.Cas. 813,

12 Empl. Prac. Dec. P 11,205

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. The NEW YORK TIMES BROADCASTING SERVICE, INC., d/b/a

WREC-TV, Defendant-Appellee.

No. 75-2055.

United States Court of Appeals, Sixth Circuit.

Argued April 6, 1976.

Decided Oct. 4, 1976.

Susan J. Johnson, Beatrice Rosenberg, Margaret Poles, E.E.O.C., Appellate Div., Washington, D. C., Ellis L. Bert, Lawrence J. Kamenetzky, E.E.O.C., Atlanta Regional Center, Atlanta, Ga., for plaintiff-appellant.

John J. Stanton, Jr., New York City, Bowling & Jackson, Gordon Jackson, W. Kerby Bowling, Memphis, Tenn., for defendant-appellee.

Before PECK, McCREE and ENGEL, Circuit Judges.

ENGEL, Circuit Judge.

This is an appeal from a judgment entered in favor of the defendant television station in an action brought by the Equal Employment Opportunity Commission (EEOC) pursuant to 42 U.S.C. § 2000e-5(f)(1). In its complaint the EEOC alleged that the New York Times Broadcasting Service, Inc., d/b/a WREC-TV, had violated Title VII of the Civil Rights Act of 1964 by:

(a) Failing and refusing to recruit and hire females on an equal basis with males and otherwise discriminating against females with respect to terms, conditions, and privileges of employment because of their sex.

(b) Maintaining departments and job classifications which are segregated on the basis of sex and otherwise limiting, segregating and classifying employees in a way which deprives and tends to deprive females of employment opportunities and otherwise adversely affects their status because of their sex. ¹

The EEOC complaint sought both injunctive and monetary relief, particularly an injunction against the television station prohibiting it from engaging in any practice which interfered with the employment opportunities of women. The complaint also sought an award of back pay for those women discriminated against by the defendant's employment practices.

The EEOC action arose out of the unsatisfactory resolution of a complaint filed with the Commission by Camilla Wilson, alleging that she had been discriminated against on the basis of her sex. On December 9, 1971, Ms. Wilson applied for a job with WREC-TV as a television announcer or newswriter-reporter. Her educational background included two master's degrees, one in journalism, but her experience was limited to work as a correspondent and photographer in Vietnam. She had no experience in radio or television broadcasting. Her complaint stemmed from a comment made by Mr. Russell Hodge, News Director of WREC-TV, who conducted the interview with Ms. Wilson. During the interview Mr. Hodge stated that he already had a woman reporter and did not expect to hire another. Nevertheless, although he did not ask her to file a formal application, he told Ms. Wilson to check back in a few weeks to see if there were any openings. When she called back, however, Mr. Hodge told her that the position she was seeking had already been filled by Mr. Paul Barnett, an employee of WREC radio with more than 20 years experience in radio and television broadcasting. Thereafter Ms. Wilson filed her sex discrimination charge with the EEOC. After she did so, the television station called and asked her to come in for an interview and to file a job application, but upon the advice of the EEOC, she declined to do so.

The EEOC action charged defendant with sex discrimination in the announcer and reporter classifications in the production and news units of WREC-TV's program department. ² At the time Ms. Wilson applied for a job with defendant in December 1971, WREC-TV had one female television reporter-writer in its news department out of five employed. In the announcer category, WREC-TV had never employed a female prior to August 1973. In the news department, three females were hired as reporter-writer trainees after August 1972, and in the announcer category one female trainee was hired in 1973. The EEOC charged that males hired in these job classifications were not hired as "trainees" and were paid at a higher rate than their female counterparts.

After hearing the evidence in the case, the district judge made findings of fact and conclusions of law denying all relief which the plaintiff had sought. Specifically, he concluded that with regard to the charging party, Ms. Wilson, the evidence failed to show she was denied employment with the defendant because of her sex. He also held that Ms. Wilson had suffered no damages and had rebuffed good faith efforts by the company to reconsider her application after learning of her charge. With respect to the female employees of WREC-TV generally, the court held that the evidence did not support the EEOC contention that the defendant discriminated against them in terms of pay. The action was, therefore, dismissed. On appeal, the EEOC does not claim that any of the district judge's findings of fact are clearly erroneous, but rather argues that the facts as found support its claim for relief.

With regard to the individual claim of Ms. Wilson for back pay, we affirm the district court's ruling that she suffered no damages by reason of her unsuccessful attempt to obtain employment with WREC-TV. Ms. Wilson's own testimony indicates that she earned $8,700 in 1972 while working for the Memphis Board of Education, and $16,000 in 1973, including outside income from her writing. The evidence shows that Mr. Paul Barnett, who was hired on February 13, 1972 for the position which Ms. Wilson sought, was paid initially $135 per week or about $7,000 per year.

42 U.S.C. § 2000e-5(g) specifically provides that any award of back pay otherwise allowable will be reduced by interim earnings of the person discriminated against. Assuming, with out deciding, that Ms. Wilson was discriminated against by the defendant, she clearly was not damaged monetarily thereby. She no longer seeks employment with the defendant. Accordingly, the district judge did not err in entering judgment for defendant as to that part of the action which sought relief for Ms. Wilson.

We find no reversible error in the district court's determination that on the facts here, the discrepancy in pay between that afforded male employees and female employees was not based upon considerations of sex. The EEOC argues that sex discrimination was shown by the fact that all the females hired as reporter-writers or announcers after 1971 were classified as "trainees" while only one male was hired as a "trainee" and several were not. Further, the plaintiff notes, all persons who were hired went through a training period, and the females hired were uniformly paid a lower starting wage than males who were hired.

A careful analysis of the evidence presented at trial, however, indicates that the starting salaries paid to new employees bore a direct relationship to the prior broadcast experience they possessed at the time of hire. The evidence shows...