Holden v. Owens-Illinois, Inc.

• Decision Date: 18 June 1986
• Docket Number: Nos. 85-3405,85-3420,INC,OWENS-ILLINOI,s. 85-3405
• Citation: 793 F.2d 745
• Parties: 41 Fair Empl.Prac.Cas. 49, 41 Empl. Prac. Dec. P 36,449, 55 USLW 2028 E. Marie HOLDEN, Plaintiff-Appellee (85-3405), Plaintiff-Appellant (85-3420), v., Defendant-Appellant (85-3405), Defendant-Appellee (85- 3420).
• Court: U.S. Court of Appeals — Sixth Circuit

Page 745

793 F.2d 745

41 Fair Empl.Prac.Cas. 49, 41 Empl. Prac.

Dec. P 36,449,

55 USLW 2028

E. Marie HOLDEN, Plaintiff-Appellee (85-3405) Plaintiff-Appellant (85-3420), v. OWENS-ILLINOIS, INC., Defendant-Appellant (85-3405) Defendant-Appellee (85- 3420).

Nos. 85-3405, 85-3420.

United States Court of Appeals Sixth Circuit.

Argued May 8, 1986.

Decided June 18, 1986.

Harland M. Britz, argued, Britz & Zemmelman, Toledo, Ohio, for E. Marie Holden.

R. Jeffrey Bixler, Owens-Illinois, Inc., Toledo, Ohio, Lloyd Sutter, argued, King & Spalding, Atlanta, Ga., for Owens-Illinois, Inc.

Before KENNEDY and MILBURN, Circuit Judges, and JOINER, Senior District Judge. ^*

CORNELIA G. KENNEDY, Circuit Judge.

Owens-Illinois, Inc. ("Owens") appeals and E. Marie Holden ("plaintiff") cross-appeals from the judgment for plaintiff in this employment discrimination action. During the summer of 1975, Owens recruited plaintiff to manage the company's affirmative action programs and to design and implement affirmative action plans that would comply with Exec. Order No. 11,246, 30 Fed.Reg. 12,31 9 (September 24, 1965), reprinted in 42 U.S.C. Sec. 2000e note, as amended ("Executive Order No. 11,246"). Plaintiff eventually accepted the position and agreed to commence employment on October 1, 1975. After approximately six weeks, Owens terminated plaintiff's employment on November 11, 1975. The District Court held that Owens discharged plaintiff because she aggressively sought to do her job and that the discharge violated 42 U.S.C. Sec. 2000e-3(a), the "opposition clause" in Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. Sec. 2000e. We hold that plaintiff's attempts to implement affirmative action plans which would comply with Executive Order No. 11,246 do not qualify as protected activity under the opposition clause. We also hold that the District Court did not err in dismissing plaintiff's state law claim for wrongful discharge. Accordingly, we reverse the judgment for plaintiff on the "opposition clause" claim and remand the case to the District Court with instructions to dismiss plaintiff's complaint.

Plaintiff commenced this action on September 2, 1976 in the United States District Court for the Northern District of Ohio. Plaintiff's complaint alleged diversity of citizenship and asserted a claim under state law for "fraudulent representation." Joint Appendix at 8. Plaintiff filed an amended complaint on February 15, 1977 which added a claim alleging that Owens' termination of her employment violated Title VII. Plaintiff's amended complaint alleged that "her firing was racially motivated, in that the plaintiff was a black woman, insisting on compliance by the defendant with Title VII, and furthermore that her firing was retaliatory in that it resulted from plaintiff's insistence upon the company's compliance with Title VII...." Joint Appendix at 20. Plaintiff's pre-trial brief, however, clarified her federal claim:

The court will note that we have not pleaded that the plaintiff was fired because she was a black female. We are pleading, rather, that defendant's discharge was "in retaliation" for plaintiff's proper use of Title VII, thereby falling under the express provisions of Title 42 US Code Sec. 2000e-3 [sic] which provides that "it shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice by this subchapter ..." We believe that this language means just what it says.

Joint Appendix at 31.

The District Court conducted a bench trial over three and one-half non-consecutive days in September and October, 1981. At the close of plaintiff's evidence, Owens moved for an involuntary dismissal under Fed.R.Civ.P. 41(b). Owens argued that plaintiff did not make out a claim under 42 U.S.C. Sec. 2000e-3(a) because Title VII did not cover plaintiff's opposition to Owens' employment practices. The District Court reserved its ruling on the motion, which Owens renewed at the close of all the evidence.

On July 25, 1984, or almost three years after the trial, the District Court rendered its decision on the question of liability. Initially, the District Court concluded that since plaintiff's employment contract was of indefinite duration, the employment contract was terminable at will. Accordingly, the District Court ruled for Owens on the state law cause of action and granted Owens' Fed.R.Civ.P. 41(b) motion on that claim. On the federal claim, the District Court found that:

There is no doubt in the Court's mind that at the time the defendant employed the plaintiff, its employment practices were in many respects discriminatory, especially as to race, but also as to gender. It had been following the common practice of window-dressing by token employment of minority individuals, rather than seriously trying to change its methods and to remedy the results of its past discriminatory actions. When the plaintiff, perhaps with more zeal than good judgment, moved aggressively to try to get action, she was summarily discharged.

Joint Appendix at 61. The District Court awarded plaintiff full back pay, holding that although plaintiff had earned less than $1,000 during the eight and one-half years since Owens terminated her employment, Owens had failed to prove a lack of mitigation. The District Court instructed the parties to meet and attempt to agree on the appropriate amount of back pay. The District Court also awarded reinstatement even though, as the District Court expressly acknowledged, plaintiff had not requested reinstatement in her prayer for relief.

Although the parties stipulated to several matters affecting the computation of back pay, the parties could not agree as to the appropriate treatment for income taxes and lost pension benefits. Consequently, the District Court held a hearing on those issues affecting damages on December 12, 1984. Plaintiff claimed that she would have to pay more income taxes on the lump-sum back pay award than she would have had to pay if she had received her wages on an annual basis. Accordingly, plaintiff requested an addition to the amount of damages to compensate her for this increased tax liability. Plaintiff also requested monetary compensation in lieu of pension credit. The District Court refused to increase the amount of damages to compensate plaintiff for increased income taxes and awarded pension credit rather than the dollar value of her lost pension benefits. On March 29, 1985, the District Court issued an order entering judgment against Owens. On April 24, 1985, the District Court amended the previous order to enter a judgment against defendant for $372,279.45. On May 9, 1985, the District Court, sua sponte, entered an order to correct a clerical mistake in the April 24, 1985 order and amended the order by changing the amount of the judgment to $361,835.45.

This appeal and cross-appeal raise seven issues: (1) Whether plaintiff's actions seeking to implement an affirmative action program that would comply with Executive Order No. 11,246 qualified as protected conduct under 42 U.S.C. Sec. 2000e-3(a); (2) Whether the District Court abused its discretion in excluding as irrelevant: (a) evidence that a previous employer terminated plaintiff for reasons similar to those that defendant gave for plaintiff's termination; and (b) evidence that plaintiff physically assaulted another employee shortly before defendant terminated plaintiff's employment; (3) Whether the District Court's conclusion that defendant terminated plaintiff for engaging in protected conduct is clearly erroneous or erroneous as a matter of law; (4) Whether the District Court erred in granting plaintiff reinstatement to her previous position even though plaintiff did not request such relief in her pleadings or at trial; (5) Whether the District Court erred in dismissing the claim for wrongful discharge under Ohio law; (6) Whether the District Court erred in denying plaintiff additional damages for the tax effect of receiving a large sum of back pay in one year; and (7) Whether the District Court erred in granting plaintiff pension credit rather than the cash equivalent of defendant's contribution to the pension. For the reasons stated below, we hold that plaintiff's actions seeking to implement an affirmative action program which would comply with Executive Order No. 11,246 do not qualify as protected conduct under 42 U.S.C. Sec. 2000e-3(a) and that the District Court erred, as a matter of law, in concluding that defendant terminated plaintiff's employment because she engaged in protected conduct. Finally, we hold that the District Court did not err in dismissing plaintiff's state law claim for wrongful discharge. Accordingly, we reverse the judgment for plaintiff and remand the case to the District Court with instructions to dismiss plaintiff's complaint. In light of this disposition, we need not and do not address the remaining issues.

I.

Title 42 U.S.C. Sec. 2000e-3(a) ¹ contains two separate clauses which prohibit an employer from retaliating against an employee--an "opposition clause," which prohibits discrimination or retaliation against an employee because the employee "has opposed any practice made an unlawful employment practice by [Title VII]," and a "participation clause," which prohibits discrimination or retaliation against an employee because the employee "has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII]." See Sias v. City Demonstration Agency, 588 F.2d 692, 694 (9th Cir.1978). Although plaintiff filed a discrimination charge against Owens the day before the company terminated her employment, plaintiff has not alleged that Owens fired her because she filed a discrimination complaint. Consequently, this case involves the "opposition clause."

Owens argues that the District Court erred...