Held v. Gulf Oil Co.

• Decision Date: 13 August 1982
• Docket Number: Nos. 80-5400,80-5401,s. 80-5400
• Citation: 684 F.2d 427
• Parties: 29 Fair Empl.Prac.Cas. 837, 29 Empl. Prac. Dec. P 32,968 George Ann Martin HELD, Plaintiff-Appellee, Cross-Appellant, v. GULF OIL COMPANY, Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 427

684 F.2d 427

29 Fair Empl.Prac.Cas. 837,

29 Empl. Prac. Dec. P 32,968

George Ann Martin HELD, Plaintiff-Appellee, Cross-Appellant, v. GULF OIL COMPANY, Defendant-Appellant, Cross-Appellee.

Nos. 80-5400, 80-5401.

United States Court of Appeals, Sixth Circuit.

Argued May 4, 1982.

Decided Aug. 13, 1982.

William N. Ozier, Bass, Berry & Sims, Nashville, Tenn., for defendant-appellant, cross-appellee.

David M. Pack, Pack, Neil & Price, Nashville, Tenn., for plaintiff-appellee, cross-appellant.

Before LIVELY and KEITH, Circuit Judges, and GILMORE, District Judge. ^*

GILMORE, District Judge.

This is a sex discrimination case in which complainant alleges that the defendant discriminated against her in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Plaintiff claims that the defendant subjected her to disparate treatment in her capacity as a retail marketer assigned to defendant's Tennessee-Kentucky marketing district and constructively discharged her from employment.

Plaintiff, a 35 year old white female, was employed by defendant beginning December 1, 1974 at a salary of $1,133 per month. She was hired as part of Gulf Oil's program to increase its percentage of minority employees. She was interviewed in Atlanta, Georgia, and sent to training school in Houston prior to employment. Upon completion of her training, she and a black male were assigned to Gulf's Nashville, Tennessee district office.

Plaintiff claims that she was assigned the job of self-serve marketer rather than the more desirable jobs of marketing representative or retail marketer solely because of her sex, and that from that point forward was the subject of continued discriminatory treatment.

Plaintiff contends that she was required to work in a manner, and assume burdens, totally different from her male counterparts. Plaintiff was called upon to work extremely long hours, complete volumes of paper work, unstop toilets, clean or pick up the area surrounding her self-serve stations, and was regularly asked to visit the stations in response to emergencies late in the evening and very early in the morning. She claims that her work load was at least twice that of her male counterparts. At trial, she testified that she was never able to take a vacation because of the constant demands of her job. Finally, plaintiff testified that she was constantly subjected to sex-based innuendoes.

The case was tried in the Spring of 1980, and on July 15, 1980, the District Court entered a memorandum decision and order finding that defendant had violated Title VII. It held:

In summary, Gulf has not advanced and could not advance any credible excuse for its conduct towards plaintiff. Without discussing the niceties of a prima facie case, the shifting burden of persuasion, or the articulation of a legitimate nondiscriminatory reason, this Court holds that plaintiff has proved overwhelmingly that solely because of sexual discrimination practiced by defendant through its employees, she was literally chased from her job.

Joint App. Vol. I, p. 32.

The trial court, in ruling for the plaintiff, made the following findings (inter alia):

1. Because of her sex, the plaintiff was assigned to the least desirable job of self-service marketer, the more desirable jobs being those of marketing representative or retail marketer;

2. Plaintiff, as a self-service marketer, was required to work longer hours than her male counterparts;

3. Plaintiff was continuously treated in a discriminatory manner;

4. A separate personnel file was kept on plaintiff;

5. Plaintiff was given increased hours and other burdens that male employees did not receive;

6. Repeated warnings were given to the plaintiff not to socialize with male employees;

7. A course of treatment by management and fellow employees, with management's knowledge, involved frequent sex-based references; and

8. The plaintiff was constructively discharged from her job.

A hearing on damages was subsequently conducted, and on September 26, 1980, the District Court entered an order awarding attorney fees in the amount of $18,370, and damages to plaintiff of $14,474.74. Defendant has appealed, and plaintiff has taken a cross-appeal on the issue of damages only.

The following issues are presented for review:

1. Whether the District Court's finding that Gulf Oil discriminated against plaintiff because of her sex is clearly erroneous;

2. Whether the present action was timely filed with the EEOC within 180 days after alleged acts of discrimination; and

3. Whether the findings which supported the District Court's conclusion that plaintiff was "constructively discharged" are clearly erroneous.

After a close review of the record, we are persuaded that there is substantial support in the record for the findings of the trial court that plaintiff was the object of serious and continuous sex discrimination. The findings of the trial court are not clearly erroneous. See Smith v. South Central Bell Telephone Co., 518 F.2d 68 (6th Cir. 1975); Heard v. Mueller Co., 464 F.2d 190 (6th Cir. 1972). ¹

It is clear that plaintiff was subjected to disparate working conditions solely because of her sex, and there is no doubt that such disparate working conditions may form a predicate for a Title VII violation. In Harrington v. Vandalia-Butler Bd. of Ed., 585 F.2d 192 (6th Cir. 1978), the trial court held that the plaintiff, a female physical education teacher, had been discriminated against on the basis of sex. In affirming this finding, the Court stated:

The trial judge's finding that Mrs. Harrington was discriminated against on account of her sex has support in the record. The evidence showed that the facilities provided Mrs. Harrington... were neither equal nor even comparable to those provided male physical education teachers.

Id. at 193.

The difficult question in this case, however, is whether any of the discriminatory acts occurred within 180 days prior to the plaintiff filing her complaint with the Equal Employment Opportunity Commission on February 16, 1978. Appellant argues that no discriminatory conduct occurred within the 180 day period prior to the filing of plaintiff's administrative claim on February 16, 1978, and therefore 42 U.S.C. § 2000e-5(e) bars plaintiff's claim. ²

With reference to this claim, the Supreme Court of the United States in United Airlines v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed. 571 (1977) stated:

A discriminatory act which is not made the basis of a timely charge is the legal equivalent of a discriminatory act which occurred before the statute was passed .... separately considered, it is merely an unfortunate event in history which has no present legal consequences.

Plaintiff's termination was effective December 15, 1977, and her administrative claim was filed with the EEOC on February 16, 1978. Thus, any incident occurring more than 180 days prior to February 16, 1978, is legally insignificant. This result, however, does not obtain where subsequent identifiable acts of discrimination occur within the critical time period and are related to the time-barred incident. Smith v. American President Lines, 571 F.2d 102 (2d Cir. 1978); Woodard v. Virginia Board of Bar Examiners, 420 F.Supp. 211 (E.D.Va.1976); aff'd 598 F.2d 1345 (4th Cir. 1979). In the latter case, the District Court pointed out:

When a person challenges continuous discriminatory conduct rather than any single discriminatory act, the 180 day limitation period of Title VII ... (is) not operative.

420 F.Supp. at 214, n.3.

Additional appellate court authority supports the continuous discrimination construction of the subject statute. See Williams v. Norfolk & Western Railway Co., 530 F.2d 539 (4th Cir. 1975); Macklin v. Spector Freight Systems, 478 F.2d 979 (D.C.Cir.1973); Cox v. United States Gypsum Co., 409 F.2d 289 (7th Cir. 1969).

Thus, if the discriminatory acts commenced prior to the 180 day period and there was a continuous pattern of discrimination that continued into the 180 day period, plaintiff may still maintain her action even though single discriminatory acts prior to the 180 days period are barred.

Defendant argues, however, that in January 1977 plaintiff received several independent distributorships and reasons that the increase in plaintiff's territory was possible because of a change in the operation of the self-serve stations. Defendant contends that 10 to 14 self-serve stations handled by the plaintiff were converted into mini-markets which were run by independent contractors, thereby obviating the need for plaintiff to keep track of inventory, sales, and restocking. Defendant thus contends that, assuming the existence of sex discrimination, the discrimination ended in January of 1977, well outside the 180 day period.

There was testimony in the record, however, that rebuts defendant's assertion, and the trial judge obviously accepted such testimony. ³

We are convinced that the discriminatory acts found by the trial court occurred throughout the term of plaintiff's employment. Although the trial court's findings did not make express reference to the dates of occurrences of various discriminatory acts, a close reading of the transcript indicates that the sex discrimination against plaintiff continued through the effective date of her termination. Her work load never lightened throughout the entire period of her employment; sex-based innuendos continued throughout the period of employment; and she was continually excluded from the terminal. All of these things were found by the trial court to be because of her sex. There is significant testimony in the record, including that of plaintiff, Mrs. Crowder, and Olinda Gonzalez, to support such findings. Since this testimony supports a finding that discriminatory acts continued throughout her period of employment, the plaintiff's action is not time barred because of 42 U.S.C. § 2000e-5(e).

Finally, appellant argues...