Heymann v. Tetra Plastics Corp.

• Decision Date: 02 March 1981
• Docket Number: No. 80-1039,80-1039
• Citation: 640 F.2d 115
• Parties: 25 Fair Empl.Prac.Cas. 173, 25 Empl. Prac. Dec. P 31,513 Elsie Mae HEYMANN, Appellant, v. TETRA PLASTICS CORPORATION, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 115

640 F.2d 115

25 Fair Empl.Prac.Cas. 173,

25 Empl. Prac. Dec. P 31,513

Elsie Mae HEYMANN, Appellant, v. TETRA PLASTICS CORPORATION, Appellee.

No. 80-1039.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 14, 1980.

Decided Jan. 30, 1981.

Rehearing and Rehearing En Banc Denied March 2, 1981.

Melba I. Parente, Clayton, Mo., for appellant.

Thomas M. Hanna, St. Louis, Mo., for appellee.

Before STEPHENSON and HENLEY, Circuit Judges, and HUNTER, ^* District Judge.

HENLEY, Circuit Judge.

The appellant, Elsie Mae Heymann, individually brought this action against the appellee, Tetra Plastics, Inc. (Tetra), alleging that Tetra had engaged in discriminatory and unlawful employment practices in violation of Title VII of the Civil Rights Act of 1964, §§ 703-704, 42 U.S.C. §§ 2000e-2 to 3. The district court, ¹ after a hearing, found that Heymann failed to establish a prima facie case under Title VII, or, in the alternative, that if such a prima facie case was established it had been rebutted by Tetra. Accordingly, judgment was entered in favor of the appellee, Tetra. From this judgment Heymann appeals. We affirm.

I.

Tetra was created in 1964 to perform the customized extrusion of plastic products. Until 1970 Tetra primarily performed extrusion work, and performed little supplementary work on the extruded product. In 1970 Tetra contracted with Hussmann Refrigerator Co. to extrude and finish certain plastic products. At the time this contract was entered into Tetra's plant had only one department, the extrusion department. To meet the demands of the Hussmann contract Tetra established a fabrication department which was responsible for performing supplementary work on plastic parts produced in the extrusion department. Tetra employed approximately ten people to work in the fabrication department.

All individuals hired to work in the fabrication department were female. Any male hired subsequent to establishment of the fabrication department was assigned to another department in the plant. As a result of these job assignments, the fabrication department became a "female department." Tetra explains this phenomenon by alleging that only females applied for those jobs available in the fabrication department. Appellant challenges this explanation and claims that a job application with Tetra was general and for no specific department. She claims to have expressed no interest in any specific department when applying for a job with Tetra. Appellant contends that the "female fabrication department" resulted from Tetra intentionally assigning only females to that department and intentionally assigning males to other departments. The district court made no finding concerning this issue, and for purposes of this appeal we will assume appellant's contention to be true.

Appellant was one of those individuals employed to work in the fabrication department. She was hired on April 4, 1971 to work on the third shift and was paid an entry level wage of $2.24 per hour. ² All other individuals working in the fabrication department performing substantially similar work were also paid the entry level wage. Employees in the fabrication department were not as a general rule, however, paid as much as individuals working in the extrusion department, particularly not as much as those individuals responsible for operating the extrusion machines. Operating the extrusion machines required more skill than any other job in the plant.

In May, 1972 Tetra began classifying employees according to the jobs they performed. Employees working in the fabrication department were classified either F-1 or F-2, and employees working in the extrusion department were classified either E-1, E-2, E-3 or E-4. Only employees classified either E-3 or E-4 operated the extrusion machines. At the inception of this classification system, appellant was classified F-2 and was receiving a wage of $2.49 per hour, having been given a raise since being hired.

In October, 1972 Hussmann Refrigerator Co. terminated its contract with Tetra. This termination necessitated the laying off by Tetra of sixteen employees, three men and thirteen women. Every employee in the fabrication department was laid off. This departmental layoff is not surprising considering that the fabrication department was created only in response to the Hussmann contract. At the time of her layoff appellant was receiving a wage of $2.65 per hour, having been given a raise in August, 1972. Appellant was laid off for sixteen weeks and returned to work in December, 1972.

When appellant returned to work she was reclassified as E-2. Appellant was reclassified because fabrication work was no longer performed on the third shift. She was paid.$2.80 per hour, six cents more per hour than the only male classified E-2. After returning to work appellant rapidly received several raises and in September, 1973 was being paid $3.15 per hour as an E-2. In September, 1973 the average wage of all males classified E-2 was $3.08 per hour.

In October, 1973 appellant received a promotion and was classified as an E-3. ³ This promotion came rapidly and there is evidence indicating that appellant was promoted to E-3 without adequate training. Appellant, as an E-3, was rated as qualified to operate the extrusion machines. She apparently experienced difficulty operating them and often angered her supervisors. However, this experience would not appear to have been uncommon since Tetra maintained no formal training program. ⁴

Any difficulty appellant had performing her job was not reflected in the wage she was paid. After her promotion to E-3 and several subsequent raises, appellant, in May, 1974 was being paid $3.96 per hour. The average wage of all males classified E-3 in May, 1974 was $4.02 per hour. In May, 1975 appellant received a promotion and was classified as an E-4, receiving a wage of $4.91 per hour. She was the first female to be classified E-4. The only other employee in the plant classified as an E-4, a male, was being paid $5.01 per hour.

Soon after receiving the promotion to E-4 appellant learned that Tetra was seeking an assistant supervisor for the second shift. Appellant pursued this position and was told that her performance as an employee indicated she was not the best qualified person for the job. Tetra indicated that Gary Larkins, a male employee, was going to receive the job of assistant supervisor, as he indeed did on July 28, 1975. After learning that she would not receive the assistant supervisor job, appellant, on July 1, 1975, filed a complaint with the Equal Employment Opportunity Commission (EEOC) alleging that Tetra had discriminated against her because she was female.

On January 21, 1977 the EEOC issued a Letter of Determination finding cause to believe that Tetra had discriminated against the appellant in violation of Title VII. Soon after this action by the EEOC, Tetra, in February, 1977, restructured its job classification system by abolishing E-4 and establishing E-3a as the highest classification. In accordance with this restructuring appellant was reclassified as an E-3a and her wages were frozen temporarily. Not long after being classified as an E-3a appellant was removed from the third shift and transferred to the first shift. While on the first shift appellant's work was monitored closely. She received poor job performance reports and was inept at performing the tasks expected of a person with her job classification. Appellant worked on the first shift for only a short time and was then reassigned to the third shift. At the time of her reassignment appellant was being paid $5.56 per hour, more per hour than any other employee, female or male, working in the extrusion department.

In light of the above mentioned events transpiring subsequent to the EEOC's issuance of a Letter of Determination, appellant, in March, 1977, filed a second complaint with the EEOC alleging that Tetra had retaliated against her for filing her initial complaint. On September 13, 1977 appellant filed the present action in the district court alleging that Tetra had discriminated against her for the reason that she was a female. Appellant alleged that Tetra violated Title VII by (1) assigning her to the fabrication department, (2) denying her equal pay, (3) subjecting her to a layoff, (4) denying her the job of assistant supervisor, and (5) retaliating against her for filing a complaint with the EEOC. ⁵ The district court found appellant's allegations meritless, and concluded that Tetra had not violated Title VII.

We address first Tetra's alleged violations of section 703 of Title VII.

II.

Appellant relies on a disparate treatment theory to establish a section 703 violation. See generally Furnco Const. Corp. v. Waters, 438 U.S. 567, 575 n.7, 98 S.Ct. 2943, 2948 n.7, 57 L.Ed.2d 957 (1978); International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n.15, 97 S.Ct. 1843, 1854 n.15, 52 L.Ed.2d 396 (1977). A case proceeding on this theory is divided into three phases. McCosh v. City of Grand Forks, 628 F.2d 1058, 1062 (8th Cir. 1980). Phase one requires that a plaintiff establish a prima facie case by "showing actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were 'based on a discriminatory criterion illegal under (Title VII).' " Furnco Const. Co. v. Waters, 438 U.S. at 576, 98 S.Ct. at 2949 (quoting in part International Brotherhood of Teamsters v. United States, 431 U.S. at 358, 97 S.Ct. at 1866).

Assuming a prima facie case has been established, phase two then requires that the employer articulate a legitimate consideration upon which its employment decision was based. Board of Trustees v. Sweeney, 439 U.S. 24, 25, 99 S.Ct. 295, 296, 58 L.Ed.2d 216 (1978); Ligons v. Bechtel Power Corp., 625 F.2d 771, 773 (8th Cir.), cert. denied, --- U.S. ----, 101 S.Ct. 400, 66 L.Ed.2d 246 (1980). To meet...