Hallquist v. Local 276, Plumbers and Pipefitters Union, AFL-CIO

• Decision Date: 03 February 1988
• Docket Number: No. 87-1873,AFL-CIO,87-1873
• Citation: 843 F.2d 18
• Parties: 47 Fair Empl.Prac.Cas. 323, 46 Empl. Prac. Dec. P 37,908, 25 Fed. R. Evid. Serv. 47 Diane Egger HALLQUIST, Plaintiff, Appellee, v. LOCAL 276, PLUMBERS AND PIPEFITTERS UNION,, et al., Defendants, Appellees. Appeal of MAX FISH PLUMBING AND HEATING CO., INC., Defendant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 18

843 F.2d 18

47 Fair Empl.Prac.Cas. 323,

46 Empl. Prac. Dec. P 37,908,

25 Fed. R. Evid. Serv. 47

Diane Egger HALLQUIST, Plaintiff, Appellee, v. LOCAL 276, PLUMBERS AND PIPEFITTERS UNION, AFL-CIO, et al.,

Defendants, Appellees.

Appeal of MAX FISH PLUMBING AND HEATING CO., INC., Defendant.

No. 87-1873.

United States Court of Appeals,

First Circuit.

Heard Feb. 3, 1988.

Decided March 25, 1988.

Richard W. Petrocelli with whom David M. Campbell and Visconti & Petrocelli Ltd., Providence, R.I., were on brief, for defendant.

George C. Deptula with whom Berlin, Clarey, Deptula & Levee, Boston, Mass., was on brief, for plaintiff, appellee Diane Egger Hallquist.

Before BREYER, Circuit Judge, ALDRICH, Senior Circuit Judge, and PETTINE, ^* Senior District Judge.

PETTINE, Senior District Judge.

This is an appeal from the district court's decision that the appellant, Max Fish Plumbing and Heating Co., Inc. ("Max Fish") discriminated against appellee, Diane Egger Hallquist, because of her sex in violation of 42 U.S.C. Sec. 2000e et seq. and Massachusetts General Laws c. 151B Sec. 4. For the following reasons, we affirm the district court's judgment.

I. FACTS

After a non-jury trial, the district court made the following detailed findings of fact:

"1. In May 1983, Egger was a licensed journeyman plumber and a member of Local 276 of the Plumbers and Pipefitters Union located in Brockton, Massachusetts. In order to obtain her journeyman's license, Egger completed all the requirements for actual 'hands-on' plumbing work experience: she enrolled in all the required educational programs and passed all the necessary tests. Prior to obtaining her license, Egger was employed as an apprentice plumber. She worked on numerous projects, including a waste treatment center in Taunton, a one-hundred unit condominium complex, and a hot and cold water line installation project in Middleboro. Egger also worked as a 'jobber' on residential plumbing jobs, and she helped install new oxygen and vacuum lines at the Morton Hospital in Taunton. Prior to her employment with the defendant Max Fish, Egger worked at the Brockton Hospital on a project to re-route hot and cold water lines. During the time she worked at the Brockton Hospital, Egger drilled shields for the pipes. Egger also worked for her father, who owned a contracting business, on projects involving cost estimates. In addition to her training at South Easton Vocational Regional School and at Old Colony Trade School, a private school for plumbing, Egger enrolled in additional courses toward her master plumber's license.

"2. As a member of Local 276, Egger received job assignments from the Union. She was placed on a list of unemployed persons; when her name came up for a job assignment, she was referred to the job by Mr. McKeown, the business agent for Local 276. On or about Friday, May 6, 1983, McKeown assigned Egger to a plumbing job for Max Fish. She was instructed to report to the Brockton Hospital the following Monday to work on a plumbing and heating project in connection with the renovation of the Hospital. McKeown told Egger that the job would last for approximately one year.

"3. Egger arrived at the Max Fish trailer on the site of the Brockton Hospital in a timely manner on or about Monday, May 9, 1983. Present in the trailer at that time were Mr. Wilsey, Max Fish's foreman and supervisor on the job; Mr. Gunderson, the Local 276 shop steward; and Mr. Reis, another Local 276 plumber. The evidence shows that upon Egger's arrival at the trailer, Wilsey looked at her strangely and Gunderson kidded her about the fact that she was hired because the company needed a minority. The evidence also shows that Gunderson told Egger, in Wilsey's presence and without contradiction, that the job would last about one year.

"4. As the union shop steward, Gunderson's responsibilities included receiving job-related complaints from members of Local 276. Once a complaint was lodged with Gunderson, he presented it to the owner and/or other union representatives in an attempt to resolve the problem.

"5. As the foreman and field superintendent for Max Fish on the Brockton Hospital job, Wilsey's responsibilities included determining the number of employees necessary to complete the work. Wilsey had the authority to make hiring and firing recommendations to Max Fish. He also coordinated the day to day operations. At all times during her employment by Max Fish, Wilsey was Egger's supervisor.

"6. Wilsey first assigned Egger to a core drilling project which involves the use of an expensive piece of electric equipment. The core driller drills holes through cement to accommodate the placement of pipes. As a result of her previous jobs, Egger had considerable experience using core drilling equipment. She told Wilsey about her experience, but Wilsey insisted on showing her how to use it. He drew circles on the cement to mark the areas for drilling, which Egger considered to be demeaning of her skills. Wilsey also checked on Egger's progress once every hour, a level of supervision which Egger testified was unusually frequent.

"7. Before she began to drill, Egger was not permitted to examine the 'as built' plans of the pre-existing structure of the hospital. Egger considered these drawings to be important for her to review because the core drilling machine was operated while water flowed through it and while she stood in a pool of water. By reviewing the drawings, Egger could have located the live wires so that she would not drill into one and receive a shock.

"8. After Egger completed the core drilling, Wilsey assigned her to drill shields for hangers. This work involves the drilling of shields into the ceiling to support pipes. As a result of her previous jobs, Egger had considerable experience drilling shields. In fact, she drilled shields for nine months during her prior job at the Brockton Hospital. In spite of her experience however, Wilsey and Gunderson continued to monitor her closely. Also, while she was drilling shields, other workmen who were neither employees of Max Fish, nor members of Local 276, kidded Egger. They called her 'Diane Shields,' a nickname she had earned because of her previous nine-month stint drilling shields. When Wilsey inquired of Egger about why the workmen were joking with her, both Wilsey and Gunderson laughed at her when she told them the reason.

"9. The third and final project Wilsey assigned to Egger involved assisting Mr. Green, a senior plumber from Local 276, with work on the air condensing unit located on the roof of the hospital. There was a second air condensing unit on the roof but no one had begun work on it. When Egger inquired of Wilsey whether she could start work on the second condensing unit, Wilsey told her not to worry about it, and that she should continue to assist Green by shining and cutting copper. Such work is generally not assigned to a licensed plumber for three consecutive days.

"10. On or about May 18, 1983, which was approximately the seventh day of Egger's employment with Max Fish, Egger took an afternoon coffee break with Wilsey, Gunderson, other plumbers from Local 276, and some other workmen. During the coffee break, Gunderson kidded Egger about the men's reaction to her when she walked onto a big job. Egger told Gunderson that usually the men would refuse to speak to her and instead just look at her. Gunderson then asked Egger whether the men ever said anything to her. Egger responded by stating the [sic] once when she walked onto a job, the superintendent said 'don't tell me they have sent me a fucking woman.' Gunderson then turned to Wilsey and asked Wilsey whether he had said something like that. According to Egger, Wilsey responded: 'I said it, but just not to her face.' As a result of Wilsey's comment, all of the men laughed, and Egger testified that she felt embarrassed, humiliated, and stupid. Wilsey testified that he never made such a remark. Furthermore, Wilsey maintained that Egger's testimony that he had made such a remark was a personal affront. I find credible Plaintiff's detailed recollection of this particular exchange.

"11. After the coffee break, Egger returned to work on the roof. When she went downstairs later, Wilsey handed Egger an envelope. He told Egger that she was laid off. At first Egger thought that Wilsey was kidding, but Wilsey repeated that it was not a joke. Wilsey told Egger that she was laid off due to a lack of work. Egger was very mad and upset, and she cried after leaving Wilsey's presence.

"12. As she left the hospital, Egger told Gunderson that she had been laid off. According to Egger, Gunderson was surprised. He told her that he had not known this was going to happen. Egger then complained to McKeown, the union business agent, about the lay-off. McKeown contacted a representative of Max Fish, a foreman by the name of Upham, and was told that Egger had been laid off due to her unsatisfactory work. Wilsey testified that Egger's work was at all times satisfactory. I am persuaded that the purported reason for Egger's lay-off was lack of work, not her unsatisfactory performance.

"13. Plaintiff introduced evidence to show that, according to the construction plans, there was a substantial amount of work that was not completed at the time of her lay-off. The construction plans indicate the addition of a new bathroom requiring substantial new piping to be installed in the area where Egger performed the core drilling. Before she was laid off, Egger observed that none of the new piping had been installed. Plaintiff introduced further evidence to show that the pipes for which she drilled shields were not installed by the time she was laid off. Furthermore, at the time she was laid off, work had not yet begun on the second condensing unit on the roof. Max Fish introduced evidence to show that the General Contractor, Gilbane, informed Wilsey on Monday morning, the day Egger reported to work,...