Glass v. Petro-Tex Chemical Corp.

• Decision Date: 22 April 1985
• Docket Number: PETRO-TEX,No. 84-2164,84-2164
• Citation: 757 F.2d 1554
• Parties: 37 Fair Empl.Prac.Cas. 972, 36 Empl. Prac. Dec. P 35,187 Mary GLASS, Plaintiff-Appellee, v.CHEMICAL CORP., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1554

757 F.2d 1554

37 Fair Empl.Prac.Cas. 972,

36 Empl. Prac. Dec. P 35,187

Mary GLASS, Plaintiff-Appellee, v. PETRO-TEX CHEMICAL CORP., Defendant-Appellant.

No. 84-2164.

United States Court of Appeals Fifth Circuit.

April 22, 1985.

Baker, Smith & Mills, Lawrence J. McNamara, Dallas, Tex., for defendant-appellant.

George C. Dixie, Houston, Tex., for plaintiff-appellee.

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

Before CLARK, Chief Judge, GOLDBERG, and TATE, Circuit Judges.

TATE, Circuit Judge:

The plaintiff Mary Glass filed a sex-discrimination suit against her former employer, Petro-Tex Chemical Corporation ("Petro-Tex"), pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. She contended, inter alia, that Petro-Tex refused to promote her to payroll manager in 1969 and again in 1974 because she was a woman and that the company constructively discharged her in 1974 in retaliation for complaints she made regarding the company's allegedly discriminatory treatment. Following a bench trial, the district court entered a final judgment for Ms. Glass, awarding her $60,466.61 in back pay and ordering her reinstatement to employment. Petro-Tex appeals.

On appeal, Petro-Tex argues that the following findings of fact entered by the district court are clearly erroneous: (1) that the company intentionally discriminated against Ms. Glass; (2) that the company engaged in a "continuing violation" of Title VII between 1969 and 1974; (3) that the company constructively discharged Ms. Glass in 1974; and (4) that Ms. Glass had sufficiently mitigated her damages following the constructive discharge through her mainly unsuccessful efforts to secure other employment. Petro-Tex further argues that the district court abused its discretion in awarding Ms. Glass $40,987.50 in attorneys' fees. We find no reversible error in the district court's factual findings and no abuse of discretion in its award of attorneys' fees. Accordingly, we affirm.

Factual Background and Proceedings Below

During the relevant time (1967-1974):

The employer Petro-Tex was a manufacturer of petro-chemical products in Houston, Texas. It employed about one thousand people. More than half were unionized employees who received hourly wages. The remaining some 350 employees were salaried employees, including the 50 females employed as non-supervisory office and clerical workers, with the exception of a few female accountants.

Ms. Glass, the plaintiff, was a salaried employee. Salaried employees were governed by no formal seniority system, personnel policy, or lines of progression. No tests for job skills were administered to evaluate employee performance. With regards to promotions, no formal system of posting and application was followed. Promotions were granted upon a supervisor's subjective assessment and recommendations to his superior. However, it was company policy to look within the department to make promotions from below.

Ms. Glass worked within the Treasury Department, in which decisions as to promotions and salaries were made by Harold Buchtler, the Treasurer. Ms. Glass was hired by Petro-Tex as payroll clerk in 1967, based on eight years highly recommended service in the payroll departments of other corporations, culminating in her promotion there to chief payroll clerk. From 1967 to 1974, when her employment with Petro-Tex terminated, Ms. Glass received merit raises uniformly, and the record reflects that, until shortly before she left Petro-Tex, she was uniformly regarded as a conscientious and well-qualified employee, who performed her responsibilities with initiative and dedication.

This litigation arises out of the failure of Petro-Tex, through Buchtler (the Treasurer and promoting authority), to even consider Ms. Glass for promotion to Payroll Manager (or Paymaster), despite her known ambition to receive this promotion, on the three occasions in which the position fell vacant during her employment. Ms. Glass alleged that the failure to consider her was solely because she was a female. When she expressed this view to company superiors on the occasion of the last vacancy, she alleges (and as held by the district court) that her supervisors made her working conditions so intolerable that she resigned (i.e., was constructively discharged).

The District Court's Factual Findings

In its factual findings, the district court specifically fully credited Ms. Glass's testimony, as corroborated by the testimony of some co-employees and some admissions in the generally unfavorable testimony of Petro-Tex witnesses, primarily managerial employees or supervisors. The district court's factual findings evidence that it did not give credit to the testimony of Petro-Tex witnesses to the contrary of its findings.

The district court found:

(1) Buchtler, the Treasurer and appointing authority, was biased against women and believed they should be given no initiative. He routinely promoted men over women. Within the Treasury Department, no woman had ever held a supervisory or managerial post during the period of Ms. Glass's employment. Because Buchtler was sexually biased against women, he did not even consider Ms. Glass for promotion to Paymaster on the occasions of the three vacancies, although she was well qualified to receive the promotion. On each occasion, deviating from the ordinary company policy of promoting from within, he went outside the department in order to find a male to fill the vacancy.

(2) Moreover, on at least two of the occasions, Buchtler chose a male less qualified than Ms. Glass to fill the vacancy. The vacancies arose and were filled as follows:

(a)

Ms. Glass had been hired in early 1967 as an intermediate payroll clerk and received merit raises and a promotion to Payroll Clerk by December 1968, just before her first paymaster (Wehunt) left the company. About a month before he departed in September 1969, she learned that a male (Pryhoda) from outside the Treasury Department was to be named as Wehunt's successor. She expressed her disappointment and inquired of Wehunt why she had been passed over, and the latter replied, "Because they want a man." Pryhoda had been an employee in the Accounting Department since 1951, had no payroll experience, and was in poor health. During Pryhoda's brief tenure, Ms. Glass had to teach him his work and, sometimes, to do his work for him. Ultimately, on May 1, 1970 he was relieved of his duties, and he was subsequently demoted to payroll clerk. The district court found that Pryhoda was less qualified than Ms. Glass to become the Payroll Manager.

(b)

Pryhoda's demotion created the second vacancy. Again reaching outside the department, despite Ms. Glass's expressed interest in the promotion, Buchtler appointed as Payroll Manager on May 1, 1970 Barziza, an assistant personnel manager (1964-1970) in the Industrial Relations Department. Barziza had served as paymaster and supervisor of payrolls in the Treasury Department from 1945-1964. Ms. Glass acknowledges that Barziza's qualifications were equal to or superior than her own, but she points out that--again--to avoid promoting her, Buchtler chose a male from outside the Department.

(c)

Barziza, the new Paymaster, was planning to retire in May 1973. Despite Ms. Glass's known interest in filling the vacancy, in July 1972 Buchtler, the Treasurer, transferred Donald Weidig from the Accounting Department and had him appointed as Chief Payroll Clerk July 1, 1972, with the intention of qualifying him to succeed Barziza. Weidig had first been employed by Petro-Tex in 1970 and had served as a property accountant until his transfer in 1972 to the Treasury Department as Chief Payroll Clerk. Weidig had a bachelor's degree in mathematics and a master's degree in education, and he was a capable person. Weidig had never applied for work in the payroll section, and he had no experience doing that work. Although holding a higher title and paid more than Ms. Glass, Weidig performed the same duties as she did, learning them on the job. When Barziza retired from the position, Weidig became the Payroll Manager on May 1, 1974.

Based on Ms. Glass's 15 years as an experienced and highly commended payroll clerk, as compared with Weidig's two-years' (partly as an apprentice-learner) and his training and experience in other fields only, the district court concluded that Weidig was less qualified to receive the appointment than was Ms. Glass. While we may have some question as to this particular conclusion, we nevertheless, ultimately affirm, as not clearly erroneous, the district court's finding that this reason given for the promotion of Weidig (his alleged superior qualifications ¹) over Ms. Glass was pretextual and that, instead, the primary reason for Weidig's transfer to Treasury and his promotion to Payroll Manager by Buchtler was to appoint a male rather than to promote from within the department a fully qualified female payroll clerk. The rule in this circuit is that a Title VII plaintiff can prove discrimination-based causation by showing that the employer's discriminatory intent was a "significant factor" in the allegedly illegal employment decision. Whiting v. Jackson State University, 616 F.2d 116, 121 (5th Cir.1980).

(3) Prior to Weidig's final appointment as Payroll Manager, in late 1973 Ms. Glass complained to her superiors of what she felt to be illegal discrimination against her because of her sex. Following this complaint, Buchtler and other superiors refused to talk with her. Subsequently, although she remained responsible for salaried payroll and for secretarial tasks after her transfer to another section of the Department with additional duties, the Petro-Tex superiors, in the district court's words, "deliberately gave excessive work to Ms. Glass in reaction to her opposition to sexual discrimination." Other employees corroborated her complaints of hostility, and one of them...