Jacobs v. Martin Sweets Co., Inc.

• Decision Date: 11 February 1977
• Docket Number: Nos. 75-2406,75-2407,s. 75-2406
• Citation: 550 F.2d 364
• Parties: 14 Fair Empl.Prac.Cas. 687, 13 Empl. Prac. Dec. P 11,537 Rose M. JACOBS, Plaintiff-Appellee Cross-Appellant, v. The MARTIN SWEETS COMPANY, INC., Defendant-Appellant Cross-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 364

550 F.2d 364

14 Fair Empl.Prac.Cas. 687,

13 Empl. Prac. Dec. P 11,537

Rose M. JACOBS, Plaintiff-Appellee Cross-Appellant, v. The MARTIN SWEETS COMPANY, INC., Defendant-Appellant Cross-Appellee.

Nos. 75-2406, 75-2407.

United States Court of Appeals, Sixth Circuit.

Argued Oct. 13, 1976.

Decided Feb. 11, 1977.

Marvin J. Hirn, Ronald D. Ray, Greenebaum, Doll, Matthews & Boone, John S. Reed, II, Louisville, Ky., for appellant in No. 75-2406 and for appellee in No. 75-2407.

Abner W. Sibal, Gerald D. Letwin, Equal Employment Opportunity Comm., Washington, D. C., for amicus curiae E.E.O.C.

James C. Hickey, Ewen, MacKenzie & Peden, Louisville, Ky., for appellee in No. 75-2406 and appellant in No. 75-2407.

Before WEICK and McCREE, Circuit Judges, and MILLER, Judge, United States Court of Customs and Patent Appeals. ^*

MILLER, Judge.

This action, involving alleged sex discrimination in employment because of unwed pregnancy, was brought by Rose M. Jacobs ("Jacobs") against The Martin Sweets Company, Inc., Louisville, Ky. ("Sweets Co." or "Company"), under the provisions of Title VII of the Civil Rights Act of 1964 ("Act"), Pub. L. No. 88-352, 78 Stat. 253, 42 U.S.C. § 2000e et seq. Sweets Co. appeals from that portion of the district court's amended judgment awarding back wages to Jacobs in the sum of $7,500 pursuant to 42 U.S.C. § 2000e-5(g). ¹ Jacobs appeals from that portion of the amended judgment dismissing the class action allegations of her complaint with prejudice. She also asks that the district court's award of attorney's fee be reversed, with certain directions for recomputation. We affirm those portions of the amended judgment pertaining to back wages and the class action issue; the portion pertaining to attorney's fee is modified to the extent that the fee awarded is to be increased by the sum of $1,000 for services rendered on this appeal.

BACKGROUND

Jacobs began her employment with the Sweets Co. on December 9, 1970, as executive secretary to James Hanna, the Senior Vice President. She received an increase in salary to $600 per month on April 1, 1971, an outstanding annual performance evaluation Jacobs' testimony was that on September 8, 1972, ² Hanna called her into his office, shut the doors, and said he had heard from other employees that she was pregnant, which she confirmed; that he declared he could not tolerate it, Martin Sweets, the President, would never approve of it, and he was giving her two weeks' notice, with her last day to be September 22; ³ and that Hanna stated "there would be no problem whatsoever with getting me a more than good recommendation if I needed it." Following this meeting, Jacobs contacted the District Office of the Equal Employment Opportunity Commission (EEOC), where she spoke with the Department Director, Robert Jeffries, who advised that it would be illegal for the Company to fire her due to her pregnancy and suggested that she get the matter in writing if at all possible. On September 12 she presented two documents to Hanna: (1) a request that he write a letter of recommendation, with the letter indicating it was not due to her work but to her pregnancy that she was being let go; and (2) a notice to her, for Hanna's signature, stating that the Company was required to terminate her employment due to her being pregnant and not married "in order to avoid embarrassment to the company and to yourself," and that the Company intended to issue her a letter of recommendation. She said that Hanna refused to sign and that, while leaving his office, she heard him place a telephone call and ask for the Company's attorney.

in February of 1972, and a second increase in salary to $633 per month in May of 1972; however, during 1972 she was warned by Hanna on several occasions about her tardiness and absenteeism. During her employment with the Company she was unmarried.

Jacobs further testified that on the morning of September 14, S. J. Popson, one of Sweets Co.'s vice presidents, came into her office and told her that Hanna had directed him the night before to supervise her immediate transfer to the Purchasing Department and that she was to clean out her desk, get all her things together, turn in her keys, and not return to the office except under supervision; that this was the first she had heard about a change in her assignment, Hanna having said nothing to her about it. She stated that Popson told her that her pregnancy had been mentioned to him by Hanna; that he did not tell her the transfer was temporary; and that later that day, after her typewriter, office equipment, and other personal things had been moved to the Purchasing Department, she filed a charge against the Company with the EEOC. She also stated that the Purchasing Agent told her that Hanna had called him, also the night before, about the transfer and had said it was to try to get her to quit. ⁴ Jacobs further stated that her job in the Purchasing Department was "just a clerical position"; that, notwithstanding several attempts on her part, Hanna refused to see her until September 28, when she told him that she had filed suit with the EEOC and would not be returning to the Company; and that she came in on September 25, picked up her paycheck of Additional testimony of Jacobs was that she received a notice from Hanna, dated September 18, advising, inter alia, that "under current company policy any employee who becomes pregnant shall be allowed to work as her physical condition permits and as long as the work will not jeopardize her health"; that she also received a copy of a notice, dated September 18, to the Purchasing Agent from Hanna, subject: "Temporary Transfer of Rose Jacobs," reciting that due to the senior officer of the Company being on an extended trip and the need for only one executive secretary, it was more feasible to use the senior executive secretary and to transfer Jacobs to the Purchasing Department "to fulfill the overload requirements," ⁶ with no change in hours and no reduction in salary. ⁷

September 22, and worked in the Purchasing Department, ⁵ but that the main reason was to try to see Hanna about staying on with the Company in her former position.

S. J. Popson testified that Hanna had telephoned him the evening of September 13 and told him that he was to supervise Jacobs' transfer from Hanna's office to the Purchasing Department; that he was not to leave Jacobs alone in the office; that he should get her key to the office after her things were moved out, lock the office, and not allow her to return; that Hanna's instructions were carried out the next morning; and that he did not recollect whether Hanna told him to tell Jacobs that the transfer was temporary. The record also shows the following on direct examination of Popson by Jacobs' lawyer:

Q. Did Mr. Hanna discuss Miss Jacobs' pregnancy with you that evening in that conversation?

A. In that conversation? All I can say is I can't imagine that it wasn't discussed. I wouldn't take the conversation (sic) and do the job without asking why. And I'm sure that we did go into the ramifications. But as far as the details of what was discussed, I really couldn't remember specifics.

Robert Jeffries, Department Director of the District Office of the EEOC during the period involved, stated that he took a telephone call on or about September 12 from a lawyer for Sweets Co., inquiring about the law pertaining to pregnancy; that the lawyer "asked me to fully explain the laws where the pregnant party was married or unmarried"; and that the conversation pertained to the Company and Jacobs, who had previously talked to him about the Company and her being pregnant and unmarried.

The Company's attorney, Marvin Hirn, testified that his assistant telephoned the District Office of the EEOC in September of 1972; that the call was precipitated by Hanna's call to him on September 12, during which "we entered into a discussion of the company's pregnancy policy"; and that, based on the information his assistant received from the EEOC, he advised Hanna that Jacobs should be permitted to work as long as she was able.

Hanna insisted, inter alia, that he did not tell Jacobs that she was fired or would be fired because she was pregnant and unmarried. He stated that Jacobs "temporary" transfer to the Purchasing Department was to help with the overload and because he did not trust her after she had tendered to him what he labeled a "false statement" for him to sign; that, prior to Martin Sweets'

                departure for an extended overseas trip on August 31, Sweets told him to utilize Sweets' secretary during his absence; that highly sensitive negotiations involving the Company had been going on, of which only Sweets, Hanna, and Sweets' secretary were to have knowledge; that he had previously considered using Jacobs for additional help in the Purchasing Department during Sweets' absence; and that, although the Company's Policies and Procedures Manual provided for termination of employment of pregnant employees at the end of six months of pregnancy, this had never been enforced, the Company allowed such employees to work as long as they were able, consistent with their health, and jobs were held open for employees on pregnancy leave.  8 He agreed that it was a common occurrence in the Purchasing Department that the work load increased during the last six months of the year
                

OPINION

Discrimination Issue

The district court's determination that, because she was pregnant and unmarried, Jacobs was given two weeks' notice of termination of her employment on September 8, 1972, and was transferred, without consultation and against her wishes, from her job as executive secretary to the Senior Vice President of the Company to a clerical position in the Purchasing Department on September 14, is supported by substantial evidence and is not clearly erroneous. Smith v. South Central Bell Telephone Co., 518 F.2d 68 (CA 6 1975). The district court's further determination...