Graham v. Bendix Corp., S82-19.

Decision Date20 April 1984
Docket NumberNo. S82-19.,S82-19.
PartiesJune GRAHAM, Plaintiff, v. The BENDIX CORPORATION, Defendant.
CourtU.S. District Court — Northern District of Indiana


Prof. Frank Booker, Notre Dame, Ind., for plaintiff.

Robert Kenagy, South Bend, Ind., for defendant.


ALLEN SHARP, Chief Judge.


This case was tried before the court on February 6, 1984 in South Bend, Indiana. This will state the legal basis of the separately entered findings and conclusions.

This is a claim under Title VII of the Civil Rights Act of 1964 for employment discrimination on the basis of race and sex. The plaintiff is a black female person. This is a "disparate treatment" case.

The starting point is McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804, 93 S.Ct. 1817, 1824-1825, 36 L.Ed.2d 668 (1973), where the Supreme Court dealt with shifting burdens of going forward with the evidence. The court stated one permissible form of prima facie case, suitable for a non-hiring complaint under Title VII, while cautioning that this pattern would not be applicable to all Title VII cases. Id. The question of burdens of proof and the shifting burdens of going forward with the evidence were further addressed by the Supreme Court in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). The Supreme Court had warned over the intervening years that the McDonnell Douglas prima facie case "was not intended to be an inflexible rule", but that "the facts necessarily will vary in Title VII cases, and the specification of the prima facie proof required from Respondent is not necessarily applicable in every respect to differing factual situations." Furnco Construction Corp. v. Waters, 438 U.S. 567, 575-6, 98 S.Ct. 2943, 2948-9, 57 L.Ed.2d 957 (1978). There the Court held that:

The central focus of the inquiry in a case such as this is always whether the employer is treating "some people less favorably than others because of their race, color, religion, sex, or national origin" Teamsters v. United States, supra 431 U.S., at 335 n. 15 97 S.Ct. at 1854 n. 15. The method suggested in McDonnell-Douglas for pursuing this inquiry, however, was never intended to be rigid, mechanized, or ritualistic.

438 U.S. at 577, 98 S.Ct. at 2949.

The Supreme Court's latest and clearest word on this subject is United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983), in which the Court held that where the district court has heard and received all of the evidence in the case, the question of prima facie case at some earlier stage of the proceedings "is no longer relevant." 460 U.S. ___, 103 S.Ct. at 1482. The Supreme Court cautioned that attempting to focus backward on the prima facie case after the evidence was all in would be to evade unnecessarily the ultimate question of discrimination vel non. 460 U.S. at ___, 103 S.Ct. at 1481. The factual inquiry in a Title VII case is whether the defendant intentionally discriminated against the plaintiff. The district court must decide which party's explanation of the employers motivation it believes. 460 U.S. at ___, 103 S.Ct. at 1482. Aikens is controlling. It is the clear teaching of Aikens that a district court cannot require a plaintiff to submit direct evidence of discriminatory intent. 460 U.S. ___, n. 3, 103 S.Ct. at 1481, n. 3. The Aikens approach places in proper perspective defendant arguments that no plaintiff shows forbidden discrimination unless they duplicate the prima facie case of McDonnell, which was a hiring case, when many cases have an altogether different set of circumstances. The McDonnell suggestion does not require litigants and courts to attempt to pound "square pegs in round holes". Burdette v. FMC, 566 F.Supp. 808, 815-817 (S.D.W.Va.1983).

As Aikens, supra, directs, this court should reach the central focus of the case and decide the discrimination issue on the merits. See, Furnco Construction Corp. v. Waters, supra, 438 U.S. at 577, 98 S.Ct. at 2949, citing and quoting Teamsters v. U.S., 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396 (1977); Martinez v. El Paso County, 710 F.2d 1102 (5th Cir.1983); Wall v. National Railroad Passenger Corp., 718 F.2d 906, 908-909 (9th Cir.1983); Williams v. S.W. Bell Tel Co., 718 F.2d 715, 717 (5th Cir.1983); Constar Inc. v. Plumbers Local 447, 568 F.Supp. 1440, 1447 n. 9 (E.D.Cal.1983).

Preference of males over females, or whites over blacks, is textually forbidden by Title VII. That preference in transfer opportunities by an employer may be a violation of the Act. Bremer v. St. Louis Southwestern R.R. Co., 310 F.Supp. 1333, 1335, 1339 (S.E.Mo.1969). Accord, Harris v. Richards Manufacturing Co., Inc., 511 F.Supp. 1193, 1204 (W.D.Tenn.1981), as modified, 675 F.2d 811 (6th Cir.1982); and Local 246 v. Southern Cal Edison, 320 F.Supp. 1262 (C.D.Cal.1970). The Third Circuit has held that in matters of promotion and transfer, the plaintiff need only show that the employer acted deliberately, rather than accidentally. Kober v. Westinghouse Electric Corp., 480 F.2d 240, 246 (3d Cir.1973).

If a plaintiff from a protected minority shows that she therefore suffered disparately harsher treatment during employment, such a preference of males over females is a violation of Title VII. Lowry v. Whittaker Cable Corp., 348 F.Supp. 202 (W.D.Mo.1972), aff'd, 472 F.2d 1210 (8th Cir.1973).

The plaintiff, a black female, was treated differently than other employees who were not black females. She was singled out for critical and job-threatening performance reviews upon return from every major legitimate and authorized absence for illness, when the employer was well aware that the illness (stress), was job-related and was worsening to depressive anxiety. These performance reviews were more frequent, severe, and critical than those received by other employees not within the protected class. She was denied consideration for transfer in violation of written company policy. Contrary to company policy, she was never offered long-term sick leave to recover fully so as to be able to meet job requirements. Ultimately, she was fired, shortly after an acknowledgment that her work was satisfactory.

The dispute at trial was really on the second part of Furnco, supra, viz., that plaintiff should establish by a preponderance that this was "because of race, sex ...". Direct evidence of forbidden motive is very rare and is not required.

The evidence shows that plaintiff was treated more severely in the matter of attendance, both regarding absences (whether excused or not) and tardiness, than were employees who were not black females.

In Brown v. A.J. Gerrard Mfg. Co., 643 F.2d 273 (5th Cir.1981), aff'd on reh., 695 F.2d 1290 (1983) (en banc), plaintiff Brown was a black male and his evidence showed the employer defendant was more severe on his attendance record than on white employees, and fired Brown on this pretextual excuse. The Court of Appeals ordered judgment for the plaintiff for back pay and affirmed and restored this award after further proceedings. 695 F.2d 1290 (11th Cir. 1983) and 715 F.2d 1549 (11th Cir.1983).

The plaintiff's supervisor, John Bryant, testified that he kept special time notes or records on June Graham which he had never kept on other employees in his 18 to 22 person department (T. 16) from 1976, when he took over, to his retirement after the plaintiff had been fired in 1983 (T. 48-59). As a result, he turned in "performance reviews" on plaintiff which faulted her for being five minutes late (T. 48, PX 22, T. 51, 52 PX 27) on a number of days in a department where this was unremarkable (Ruth Miller, T. 165-166). Supervisor Bryant filed absence reports against plaintiff which inflated her absence record by computing for criticism as ordinary or undifferentiated or unexcused absences periods when the plaintiff was on grief and burial leave for her child, and fully authorized and excused sick leave under company policy (T. 55). The majority of the absences plaintiff was severely faulted for were in fact fully excused for grief or illness under written company policies (PX 27, end table, T. 55, 56). It must be remembered that, though the "performance reviews" contain remarks indicating some suspicion of plaintiff's bona fides (see, for example PX 27, T. 54), it was admitted that there was no element of malingering involved (T. 54, 55, see especially T. 142, 141; see also T. 170).

The white male employee of the department, Milner, was not faulted for sick leave absences (T. 67, 68) and the white female employee, Ruth Miller, was not "nitpicked" for tardiness when mental and emotional stress caused her to fall under performance review.

The only two employees of the department who were ever faulted for excused as well as unexcused absences were June Graham, the plaintiff, and Marilyn Hall (T. 67); both were discharged and both were black females (T. 69-70). Marilyn Hall was similarly "nit-picked" for minor tardiness by supervisor Bryant (T. 62, 64, 66; see also DX BB, T. 61), and reported for having x-rays taken (T. 64) and for leaving her desk to give blood in the company blood drive (T. 65). Marilyn was even reported for suspicion of minor lateness (T. 65).

The performance review rating system on which plaintiff was rated as sometimes having less than satisfactory work performance is suspect under the tests of the cases cited as being capable of lending itself to bias abuse and lacking in objectivity.

In the rating system used, plaintiff was not compared with other employees in the same division, nor in the same job/salary grade, by any objective or blind formula for performance. She was not rated independently by several supervisors or colleagues. The system called for her immediate supervisor, John Bryant, to translate his opinion of verbally stated conclusions into a number rating ...

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