Ferguson v. EI duPont de Nemours and Co., Inc.

Decision Date24 March 1983
Docket NumberCiv. A. No. 76-407,77-48.
Citation560 F. Supp. 1172
PartiesSara L. FERGUSON, Plaintiff, v. E.I. duPONT de NEMOURS AND COMPANY, INC., Defendant.
CourtU.S. District Court — District of Delaware

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Mary C. Boudart, and Vivian Ann Houghton, Boudart & Houghton, Wilmington, Del., for plaintiff.

Richard D. Allen, Morris, Nichols, Arsht & Tunnell, Wilmington, Del., for defendant; Charles E. Mitchell, Wilmington, Del., of counsel.

OPINION

MURRAY M. SCHWARTZ, District Judge.

I. Introduction

In November of 1976, plaintiff Sara L. Ferguson1 commenced a sex discrimination action pursuant to Title VII of the Civil Rights Act of 19642 ("Title VII") against defendant E.I. duPont de Nemours and Company, Inc. ("Du Pont").3 Basically, plaintiff claimed violations of Title VII based upon the following four theories: first, denial of promotion due to intentional sexual discrimination; second, wage discrimination; third, sexual harassment;4 and fourth, retaliation. The Court has jurisdiction over these claims pursuant to 28 U.S.C. §§ 1331, 1337 and 42 U.S.C. §§ 2000e-5(f)(3). These claims were tried to the Court from September 15 through September 21, 1982. Post-trial briefing was completed and oral argument held on December 28, 1982. Consequently, the action is ready for disposition and what follows constitutes the findings of fact and conclusions of law required by Fed.R.Civ.P. 52(a).

II. Factual Background
A. The Principal Parties and Players

In April of 1973, Ferguson applied to Du Pont for a secretarial position. She had recently received a Bachelors of Arts in Spanish Literature with a minor in Sociology from the University of Delaware in 1972. Trial Transcript ("Tr."), A-5.5 Ferguson was hired as a secretary in the secretarial pool of Du Pont's Public Affairs Department.6 She began work on April 30, 1973 at a salary of $600 per month. In July of 1973, she moved to the International Section of the Public Affairs Department.7 Initially, she performed duties for people outside the International Section, but eventually worked solely in the section. Dkt. 148, § 3, ¶ 4.

When Ferguson joined the International Section, it consisted of a manager, Dimitri Andriadis, a Public Relations Representative,8 James F. Joines, a secretary to Andriadis, Virginia Hamilton, and another secretary, the plaintiff. Dkt. 148, § 3, ¶ 5. Ferguson worked primarily for Joines but performed some work for Andriadis. Id.

In May of 1974, Joines was transferred to another position in the Public Affairs Department and Nuot D. Laetsch was transferred to the International Section. Laetsch, a Swiss resident, had been employed by Du Pont since 1972 as a Public Relations Representative in its Geneva, Switzerland, office. Id. at ¶ 7.9 This assignment was temporary and designed for training and development of members of the Public Affairs Department working outside the corporate headquarters. Id. at ¶ 8. Laetsch was the second European chosen for such a temporary orientation position. Tr. D-15-16. He worked in the International Section from May 1, 1974 to February 15, 1975, and in other sections of the Department thereafter before returning to Geneva. Id. While in the International Section, Laetsch occupied the office previously occupied by Joines.

On November 1, 1974 Catherine Houghton joined the International Section as a Public Relations Representative. She had worked for Du Pont as a research associate in another section of the Public Affairs Department since September 1974. During November, Houghton's office was located in a building other than the one housing the International Section. When she moved into the same building, her office was not in the same suite as Andriadis, Laetsch, Ferguson, and Hamilton. Dkt. 148, § 3, ¶ 9. Houghton was employed by Du Pont until September of 1975. Tr. B-13; C-171.

On October 1, 1974, Hamilton retired and plaintiff became secretary to Andriadis, Laetsch, and Houghton. She received a promotional salary increase from $679 to $739 per month. Dkt. 148, § 3, ¶ 10; Tr. D-70, D-83. The International Section functioned with only one secretary for a period of time until Toni deAngelis joined the Section. Tr. B-32.

Ferguson complained to the management of the Public Affairs Department about matters which ultimately were raised in this lawsuit.10 The Du Pont personnel involved in the investigation of Ferguson's complaint, and their positions at that time, were: Thomas W. Stephenson, the Department Director; Harlan P. Wendell, the Department Assistant Director; George H. Soule, the Department Personnel Director; and Robert P. McCuen, a Division Manager within the Department. Tr. C-9; D-12; E-23, 31-32.

B. Plaintiff's Promotion Claim

In the spring of 1974, Ferguson expressed to Andriadis an interest in a promotion to a staff level position in the Public Affairs Department. Plaintiff's Exhibit ("PX")-2, at 4, Tr. A-13-14.11 Plaintiff testified that in the spring of 1974, Andriadis related that she was being considered for a staff position with the responsibility of liaison with Latin American subsidiaries—a position which did not exist at the time. Tr. A-13; PX-2, at 4. Andriadis testified that he had no recollection of a conversation about such a specific position, Tr. C-177, and, in any case, had no ability to create a new position. Tr. B-64-65. However, Andriadis did undertake to put forward her name for consideration should a staff position come open. Tr. B-64. In addition, he urged plaintiff to better her clerical skills, retain and enhance her linguistic abilities and to attend higher education courses. All of these things could assist plaintiff's development with Du Pont and enhance her professional prospects. Tr. B-72.

Andriadis recorded Ferguson's interests in promotion in her October 1974 performance review. PX-31. In addition, on numerous occasions, he orally advised his division manager, Robert P. McCuen, of her interests and abilities. Tr. D-13, D-77.

The Public Affairs Department does not administer written tests in selecting professional (staff or managerial) personnel. Dkt. 148, § 3, ¶ 12. The process, as developed through the testimony of George Soule—the personnel manager of the Public Affairs Department from 1972 through 1975—was relatively informal. Vacancies or newly created positions would be filled in the following manner: first, employees within the Department were considered; second, employees outside the Department, but within Du Pont, as identified by the Employees Relations Department, were considered; and finally, individuals outside Du Pont were considered. Tr. C-8-10, PX-88, Answer 11. Since the Department did not maintain bulletin boards or issue circulars either posting or advising of vacancies, notice of the availability of a position was by word of mouth. Tr. B-73, C-11.

Wyatt DeLoache, the personnel manager of the Public Affairs Department from late 1975 to 1980 testified that when a vacancy occurred, rather than fill it with another person, the position might be eliminated and duties shifted to other personnel. On the other hand, a position might be created, even without an existing vacancy, for an exceptionally qualified applicant. Tr. C-68-69. In any case, DeLoache delineated the following as desirable qualifications: first, advanced quality education, preferably graduate studies in the humanities, business or law; second, experience in public affairs; and third, personal characteristics such as poise, integrity, judgment, high motivation, and gregariousness. Tr. C-72-74.

Du Pont's Public Affairs Department made a serious effort to promote secretarial level personnel to staff positions and instituted a procedure to accomplish this goal. Each fall, the Department conducted a review of all departmental employees. Tr. D-13; E-23-24. The Director, Assistant Director, Division Managers and the Personnel Manager participated in this review. One aspect of that review involved the identification and listing of secretaries within the Department who, by reason of their background and performance, might be viewed as candidates for promotion to appropriate exempt level positions. This was pursuant to an ongoing effort at that time to increase the number of women at the professional level, primarily from outside hiring but also in a few instances by the promotion of able and experienced secretaries. Tr. D-14; C-75.

A significant number of professional level employees in the Department were women. Tr. C-74.12 During the early 1970's, the above described system utilized to promote secretaries to the professional level resulted in two such promotions in the Department: Sara Garrison and Mary Huffman. Tr. C-75; C-79. Du Pont terminated this program and no other secretaries were promoted to professional level positions after 1976. Tr. C-78, C-83.

During the annual personnel review of 1974, Ferguson, based on recommendations of Andriadis and McCuen, was identified as a secretary with possible potential for promotion and, after discussion by participants at the meeting, was added to a list of such secretaries. Tr. D-14; E-24. She was, however, only one of a number of secretaries on that list. Defendant's Exhibit ("DX")-1; DX-25 at 10; Tr. D-14.

In December 1974, when plaintiff learned that Laetsch would be moving to a different section of the Public Affairs Department, she went to McCuen to advise him of her interest in the position then held by Laetsch. Dkt. 148, § 3, ¶ 13. McCuen advised her that she should discuss her interest first with her immediate supervisor, Andriadis. Tr. D-17.

In January 1975, plaintiff, in conversations with Andriadis, began pressing a demand for immediate promotion. Tr. C-155. Essentially, she asserted that she should be given the soon to be vacated position occupied by Laetsch or, alternatively, that a staff level position should be created for her because she ...

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