Gillin v. Federal Paper Board Company, Inc.

• Decision Date: 11 May 1973
• Docket Number: No. 575,Docket 72-1907.,575
• Parties: Nancy A. GILLIN, Plaintiff-Appellant, v. FEDERAL PAPER BOARD COMPANY, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

479 F.2d 97 (1973)

Nancy A. GILLIN, Plaintiff-Appellant, v. FEDERAL PAPER BOARD COMPANY, INC., Defendant-Appellee.

No. 575, Docket 72-1907.

United States Court of Appeals, Second Circuit.

Argued March 16, 1973.

Decided May 11, 1973.

Lewis M. Steel, New York City (Gretchen White Oberman, New York City, of counsel), for plaintiff-appellant.

Donald F. Keefe, New Haven, Conn. (Tyler, Cooper, Grant, Bowerman & Keefe, New Haven, Conn., of counsel), for defendant-appellee.

Susan J. Johnson, Washington, D. C. (William A. Carey, General Counsel, Julia P. Cooper, Associate General Counsel, Beatrice Rosenberg and David W. Zugschwerdt, Attys., Washington, D. C., of counsel), for United States Equal Employment Opportunity Commission, amicus curiae.

Before HAYS, MULLIGAN and OAKES, Circuit Judges.

MULLIGAN, Circuit Judge:

This is an appeal from a judgment entered on May 30, 1972 in the United States District Court for the District of Connecticut, dismissing damage claims for sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1970),¹ after a nonjury trial on January 5, 1972 before the Hon. M. Joseph Blumenfeld, Chief Judge. On May 26, 1972, the court filed a memorandum decision containing its findings of fact and conclusions of law. Appellant Nancy Gillin (Gillin) contends that the district court erred in rejecting her claims that her former employer, Federal Paper Board Co., Inc. (Federal), denied her a promotion and a salary commensurate with her duties because of her sex and retaliated against her when she filed discrimination charges with the United States Equal Employment Opportunity Commission (EEOC).² Affirmed in part, reversed in part and remanded.

Federal operates paper mills and carton plants in Connecticut and elsewhere in the United States. In 1961 it established a New England Transportation Department which was a freight hauling operation for both raw materials and finished products. A number of trucks were leased and a terminal established in New Haven, Connecticut. During the same year, appellant, who had been an employee of Federal in New Haven since 1957, was appointed administrative assistant to the traffic manager, Mr. Aaron Denenberg. Her new duties included responsibility for the accounting functions of the Department, personnel and payroll records and the purchasing of office supplies. When Denenberg was away, Gillin was in charge of the daily office operation. In April, 1962, Denenberg resigned after having expanded the Department by leasing additional trucks which were operated from a terminal in Sprague, Connecticut. Thereafter, the New England transportation operation was placed under the jurisdiction of a vice-president, Mr. Hesser, who was general traffic manager for the mills in the Western Division. Eventually in 1965 Mr. Varsho was appointed traffic manager of the New England Division trucking and freight operations.

On March 15, 1966 Varsho informed Gillin that he was being promoted to the position of general traffic manager. She indicated her interest in the job he was vacating but was advised by Varsho that it "was more suited to a man" and "wasn't suitable for a woman." Gillin countered by calling his attention to the Civil Rights Act of 1964 and on March 24, 1966, she filed her complaint with the EEOC alleging sex discrimination since she had not been considered for the traffic manager's position.³

I

As a result of her charges, the EEOC conducted investigations and compiled a 260 page investigative report.⁴ Prior to trial the parties requested the district court to rule on the admissibility of this report as a business record under 28 U. S.C. § 1732. On February 15, 1970, Hon. Robert C. Zampano filed his opinion:

The investigative report is a mishmash of self-serving and hearsay statements and records which contain conflicting opinions, comments and inferences drawn by investigators, potential witnesses, and unidentified persons. This maze of material would thwart rather than ease the trier\'s efforts. Credibility of the witnesses will play a major role in resolving the conflicting positions of the parties here; justice requires that the testimony of the witnesses be given in open court, under oath, and subject to cross-examination. On the record before this Court the tests of need, reliability, and trustworthiness have not been met and, therefore, the report as a unit is not admissible as a business record under 28 U.S.C. § 1732.

52 F.R.D. 383, 385.

His decision, however, did not preclude the appellant from introducing any portion of the document which might be found admissible on other grounds. See 52 F.R.D. at 384. Judge Blumenfeld adhered to these guidelines at trial.

On appeal it is urged that the failure to admit the EEOC investigative report constituted error. Appellant's only authority for finding the document admissible is Smith v. Universal Serv., Inc., 454 F.2d 154 (5th Cir. 1972), which is clearly distinguishable. In that case the court held admissible as a business record under 28 U.S.C. § 1732, not the lengthy investigatory report sought to be introduced here, but rather the decision of the EEOC containing a summary of the investigation. The EEOC deision in that case takes up little more than a page of the court's opinion in which it is set forth. See 454 F.2d at 158-160. A comparable document was ruled admissible by Judge Zampano in this case (52 F.R.D. at 384-385) and was received into evidence as a plaintiff's exhibit. Moreover, the investigator who compiled that portion of the investigative report favorable to the appellant, was permitted to testify from it on trial and there is no showing of any prejudice from the report's exclusion. Under these circumstances we find no reason at all to disturb the district court's judgment on this ground. See Cox v. Babcock & Wilcox Co., 471 F.2d 13, 15 (4th Cir. 1972); Heard v. Mueller Co., 464 F.2d 190, 194 (6th Cir. 1972).

II

Appellant claims that she was discriminated against because she was denied a salary commensurate with her duties.⁵ We believe that the finding of the trial court that this position is "wholly unsupported" is correct. There is no evidence of sex bias with respect to wages. Mr. Varsho, her supervisor, who refused to consider her for promotion (see III infra), in fact recommended in October, 1965 that she be given a $600 raise, praising her efficiency and pointing out that she was receiving less than some of her subordinates. While even after receiving the raise, she was earning slightly less than one male dispatcher she was supervising ($128.65 per week as compared with $136.90 per week), there is no proof that her occasional supervisory responsibility properly merited a higher salary than that of a subordinate whose skills might well command more in the job market. It is not at all unusual that those who direct or supervise, are paid less than those whose particular job skills or experience may be worth more to the employer. It should also be noted that Gillin was entitled to overtime while dispatchers were not. Suffice it to say that the record here is barren of proof either that her salary was incommensurate with her duties or that if this was the case that the disparity was due to her sex. See Ammons v. Zia Co., 448 F.2d 117, 119-120 (10th Cir. 1971); cf. Arkansas Educ. Ass'n v. Board of Educ., 446 F.2d 763, 770 (8th Cir. 1971).

Appellant's claim that her employer retaliated against her for filing charges with the EEOC by demoting her and ultimately discharging her,⁶ was rejected by the district court and properly so in our view. The facts upon which appellant rests her claim of retaliatory demotion are that prior to 1966 she had neither punched a time clock nor been paid for overtime hours, and that in May of 1966, subsequent to the filing of her discrimination charges, she was directed to begin punching the clock and not to work overtime hours without permission. This resulted in a reduction of her hourly work week and a commensurate reduction was made in her work load, but her weekly salary remained unchanged.

If this is to be characterized as a demotion, it is clear that the change was not precipitated by the EEOC complaint, but rather by a determination of the Wage and Hour Division of the United States Department of Labor in January 1966 that Gillin was a non-exempt employee and thus entitled to overtime wages. While it did take Federal several months to act on the Department's findings, there was testimony that Gillin's employment status was altered in accordance with usual company procedures and Gillen testified that the company's only alternative to putting her on restricted hours was to give her a promotion.

The evidence concerning Gillin's termination of employment at Federal is in conflict. The only thing that is undisputed is that she was fired in July, 1966. Mr. George Sweezey, her supervisor at that time, testified regarding several instances where Gillin was uncooperative and was the source of continuing dissension in the office. He further stated that after a discussion with her in which he tried to straighten things out, she informed him that she had been advised by her lawyers and that it would be helpful to her discrimination case if she could get fired. He then made out a "blue slip" stating "uncooperative" as the reason for discharge. Gillin denied this, taking the largely unsupported position that her employment was terminated in retaliation for her claim of discrimination against Federal.

It is clear from Judge Blumenfeld's opinion that he chose to credit Sweezey's recollection of events. He heard the testimony of both Gillin and Sweezey and had an opportunity to observe their demeanor and assess their credibility. We have no basis to say that his assessment was wrong.

III

Appellant urges further that Federal's refusal to consider her for promotion to the position of New England Traffic Manager...