Jackson v. Pepsi-Cola, Dr. Pepper Bottling Co., a Div. of RKO Bottlers of Toledo, Inc., PEPSI-COL
| Decision Date | 10 February 1986 |
| Docket Number | DR,No. 85-3232,PEPSI-COL,85-3232 |
| Citation | 783 F.2d 50 |
| Parties | 40 Fair Empl.Prac.Cas. 222, 39 Empl. Prac. Dec. P 35,892 John JACKSON, Plaintiff-Appellant, v.PEPPER BOTTLING CO., a DIVISION OF RKO BOTTLERS OF TOLEDO, INC., Defendant-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Dennis P. Strong, Bayford, Senerius, Vaporis & Strong, Gordon A. Senerius (argued), Toledo, Ohio, for plaintiff-appellant.
Peter R. Casey, III (argued), Eastman & Smith, Toledo, Ohio, for defendant-appellee.
Before KEITH and MILBURN, Circuit Judges, and UNTHANK *, District Judge.
Appellant John Jackson, a black male, appeals from a judgment in favor of RKO Bottlers in this Title VII discrimination case tried without a jury by Judge Potter. This Court previously heard this case, Jackson v. RKO Bottlers of Toledo, 743 F.2d 370 (6th Cir.1984), and remanded on the basis that the district court erroneously concluded that plaintiff had not established a prima facie case pursuant to McDonnell-Douglas Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Specifically, the trial court erroneously found that plaintiff had not proved he was qualified for the job of plant superintendent. Plaintiff claims he was not promoted to plant superintendent due to racial discrimination, and that he was unlawfully discharged on December 1, 1980, in retaliation for his having filed discrimination charges. Plaintiff originally filed his lawsuit November 15, 1978.
On remand the trial court accepted plaintiff's prima facie case. Nevertheless, the court determined plaintiff could not prevail because there were legitimate, nonpretextual reasons, proffered by RKO, which adequately explain why he was not promoted. Furthermore, the district court found plaintiff was discharged not in retaliation for filing discrimination charges, but for "assaulting"
an hourly employee in the parking lot after previously being warned that such action would result in his termination. We affirm, finding the decision below rendered by Judge Potter was not clearly erroneous.
The appellant, John Jackson, began working for the predecessor of RKO Bottlers, Variety Club Beverage Company, of Toledo, Ohio, as a laborer in 1951. In 1966, the Variety Club Beverage Company was purchased by RKO for bottling and distributing Pepsi Cola. The plant superintendent at that time was Daniel Starsky. The general sales manager was Robert Johnson. Following the purchase, a decision was made by RKO to build a new bottling and distribution facility, known as "Hill Avenue".
In early 1978, Starsky, the plant superintendent, was offered the position of managing the RKO Bottling facility in Muncie, Indiana, and Johnson was faced with a decision as to the future operating method of the Toledo facility. The stage was thus set for the crux of plaintiff's complaint: why was he not promoted to plant superintendent? Plaintiff claims it was due to impermissible racial discrimination. We disagree.
Originally, Johnson decided to employ a "team management" concept, rather than use a plant superintendent. This system is frequently used within the bottling industry, and is used by the Pepsi-Cola Bottling Group. There is conflicting evidence as to whether the "team concept" was a contest to see which of three individuals, Kerner, a white, Jackson or Taylor, would succeed Starsky as plant superintendent. However, the system did not work, and Johnson decided to return to a plant supervisor system. The choice for plant supervisor came down to Jackson or Kerner, although Mr. Taylor was given slight consideration.
The district court found that Johnson was familiar with Kerner because they had worked together at the Variety Club prior to the opening of the Hill Avenue facility, and he knew Kerner's achievements and responsibilities as a warehouse supervisor at Hill Avenue. Johnson was also aware of Jackson's duties and responsibilities at the Variety Club and had a great deal of contact with Jackson between 1969 and 1978.
The evidence as to who would have made the better plant superintendent, Jackson or Kerner, was conflicting. Johnson felt that Kerner was the more qualified to be plant superintendent because he was experienced in all phases of the business. Kerner was experienced in warehousing, and had straightened out the warehousing situation after being brought to Hill Avenue from Variety Club. He had sales experience, which Johnson felt was important to understanding the total scope of the operation. Kerner had successfully run the complex Variety Club operation where he had responsibility for production, warehousing, and quality control.
In contrast, Jackson had little or no involvement in quality control at Variety Club, and no direct involvement at Hill Avenue. During the period of time that Kerner was running the entire Variety Club operation, Jackson was running merely one line at Hill Avenue. Jackson had no night warehousing experience, and he had no sales experience. Jackson had also been criticized on occasion for his handling of employees on a day-to-day basis. He was not familiar with stock ordering, forecasts, or budgets. Johnson also felt that, during the "team concept" period of management, Jackson was trying to operate production in the same manner as Starsky, and Johnson did not wish that type of management to continue.
Although Starsky testified that he would have made Jackson plant superintendent had the decision been his, this decision was based primarily on Jackson's personal loyalty to Starsky. Even Starsky believed Kerner had more total experience in running the plant operations. The district court found that Johnson's decision to promote Kerner over Jackson was based on Kerner's overall greater experience in the bottling industry, and that racial animus
did not play a part in the promotion decision.
In 1976 an incident occurred between an hourly employee, McGee, and Jackson, who was a supervisor at that time. Jackson had given McGee instructions and McGee started swearing at him. When McGee approached Jackson, Jackson grabbed McGee and pushed him away. This incident was observed by John McCullum, who was a union steward. McCullum brought the incident to the attention of Bob Johnson, who at that time was general manager. Johnson spoke to both McGee and Jackson in McCullum's presence, and heard their versions of what had occurred. Johnson told McGee that he was wrong for swearing at Jackson, and told Jackson that if he ever laid hands on another hourly employee, he would be fired. In May of 1979 Jackson grabbed the shoulders of a female production employee, Carol Cowell, as if to kiss her, and, later that day when the same employee requested that Jackson sign her time card, Jackson responded "for a little sugar, anything can be done around here". This incident was brought to Johnson's attention, and he called Ms. Cowell to his office. Johnson asked Ms. Cowell if she wished to sign a complaint against Jackson, and she indicated no. Johnson told Cowell to think about her decision for a few days. Subsequently, Ms. Cowell told Johnson that Jackson had apologized to her and that she wanted to drop the matter and forget it. Johnson did not pursue the matter further. Jackson argues that Johnson's query to Ms. Cowell to "think over" her decision not to lodge a complaint, indicates that RKO was out to "get him" in retaliation for his filing suit.
In November of 1980 the RKO facility was involved in a bitter labor dispute. On Saturday, ...
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