Johnson v. Olin Corp., Civ. A. No. H-77-280.

• Decision Date: 14 February 1980
• Docket Number: Civ. A. No. H-77-280.
• Citation: 484 F. Supp. 577
• Parties: Faye B. JOHNSON, Plaintiff, v. OLIN CORPORATION, Defendant.
• Court: U.S. District Court — Southern District of Texas

484 F. Supp. 577

Faye B. JOHNSON, Plaintiff, v. OLIN CORPORATION, Defendant.

Civ. A. No. H-77-280.

United States District Court, S. D. Texas, Houston Division.

February 14, 1980.

Craig A. Washington, Houston, Tex., for plaintiff.

Ian Spier, Stamford, Conn., Coyt Randal Johnston, Baker & Botts, Houston, Tex., for defendant.

MEMORANDUM OPINION AND ORDER

McDONALD, District Judge.

This is an employment discrimination action filed by a black female who was terminated by the defendant Olin Corporation. This action was filed pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (hereinafter "Title VII") and 42 U.S.C. § 1981.

The plaintiff was terminated by the defendant on April 9, 1976. Thereafter, on April 13, 1976, she filed a Charge of Discrimination with the Equal Employment Opportunity Commission against the defendant and the Commission issued its Notice of Right to Sue on November 22, 1976. The complaint was filed within ninety (90) days of receipt of that Notice of Right to Sue on February 18, 1977. The Court has jurisdiction over the subject matter and the parties to this action under both Title VII and 42 U.S.C. § 1981 insofar as plaintiff's complaint of racial discrimination is concerned. The defendant is an employer within the meaning of those statutes. Section 703(a) of Title VII makes it unlawful for an employer to discharge an individual because of such individual's race and such action on the part of an employer is unlawful under 42 U.S.C. § 1981.

Although this case was originally filed as a class action under Rule 23(b)(2) of the Federal Rules of Civil Procedure, the class action aspects of the case were dismissed by common agreement and the case proceeded to trial on an individual basis. See, Order of November 2, 1978 (per Bue, J.). After careful review of all of the evidence adduced, observing the demeanor of the witnesses who testified and assessing the credibility of such witnesses, the Court finds that the plaintiff has established that she was terminated by the defendant because of her race in violation of Title VII and 42 U.S.C. § 1981. The Court finds that her sex was not a factor in the defendant's decision to terminate her employment.

Plaintiff first made application for employment with the defendant on September 27, 1975. As of that date, no black females had been employed in either the office or the plant. Plaintiff was not hired at the time of her initial application, but was subsequently employed on February 11, 1976, as a laborer in the Maintenance Department and assigned to the Shipping and Receiving Department as a Dock Helper. She worked in that capacity until March 11, 1976, when she requested to be assigned to the Labor Department because of the difficulty that she encountered in opening box car doors in the Shipping Department. Upon that assignment, plaintiff became the first black woman and one of only two women working in the Labor Department. Plaintiff worked in the Labor Department until April 9, 1976, when she was discharged. Plaintiff's supervisor in the Shipping and Receiving Department, Mr. W. Dean Jackson, a caucasian, under whom she worked for the first thirty (30) days of her sixty (60) day probationary period, considered her to be an "average" worker and would not have recommended her termination. However, her supervisor in the Labor Department, Mr. W. D. Davis, a caucasian, recommended her termination on the grounds that her performance was unsatisfactory.

The evaluation of the plaintiff's performance in the Labor Department by Mr. Davis, however, contrasts sharply with the testimony of other witnesses whom the Court considers to be more credible. Mr. Davis testified that on March 2, 1976, the plaintiff worked with Mr. Emmitt Houston as a Helper on the flatbed truck and that Mr. Houston had complained about the plaintiff's performance and requested another Helper. Mr. Houston, however, testified that he had never made such comments to Mr. Davis and that, to the contrary, the plaintiff had worked well with him on several occasions. Similarly, contrary to Mr. Davis' testimony that on March 30, 31, and April 1, 1976, the plaintiff's work on the truck scales had been unsatisfactory, Mr. Winston Gonzales testified that he worked with the plaintiff on those occasions and that she was doing her share of the work.

Significantly, repeated testimony was received commending the plaintiff's work performance and comparing it favorably with that of Ms. Josephine Garcia, a nonblack and the only other female in the department who was retained on the recommendation of Mr. Davis. Mr. Kelly Gordon, for example, a truck driver, testified that he had observed both the plaintiff and Ms. Garcia working and had worked with both of them on the flatbed truck and testified that the quality of their performances was the same, i. e., both were satisfactory. Indeed, Ms. Garcia herself testified that she had worked with the plaintiff frequently and found their work performances to be comparable. The only area in which Mr. Davis rated their performances similarly was in attendance. However, subsequent testimony revealed that Ms. Garcia was absent one week and a day during her probationary period, while the plaintiff, on the other hand, was not absent at all.

Mr. Davis testified that he had received several complaints about plaintiff's unwillingness to work and that he spoke with the plaintiff about her performance, citing as an example, her use of a shovel. The plaintiff contends, however, that Mr. Davis spoke with her only once about her job performance shortly before the completion of her probation and then only in response to the plaintiff's request for an evaluation of work. Mr. Davis merely responded that she had to do better. Mr. Felton Milton, however, testified that he had observed the plaintiff working with a shovel and concluded that she was doing the same amount of work as the other employees in the department.

Mr. Davis testified that a caucasian supervisor Mr. C. F. Durham, had advised him that the plaintiff "just stands back and lets the others do the work." Mr. Durham testified that this "report" was related to one occasion when the plaintiff was working with Mr. Gonzales. That appraisal of her work, however, was made on the basis of a brief passing of the job site and he admitted that Mr. Gonzales had not complained about the plaintiff's work. Moreover, on cross examination, he stated that one of plaintiff's fellow employees had spoken favorably about the plaintiff's performance in the Labor Department, but that this commendation was not reported by him to Mr. Davis. Testimony about Mr. Durham's negative response to efforts of black employees to end job segregation at defendant's plant, coupled with his failure to pass on the favorable report regarding plaintiff convinces the Court that little weight should be given to Mr. Durham's testimony. Further, the Court finds it difficult to believe that even Mr. Davis credited such a scanty report without conducting further inquiry.

The Court is thus left with two different portraits of the plaintiff. The first, painted by Mr. Davis, is that the plaintiff was unwilling to work and that he recommended her termination for that reason. The other picture, portrayed by the plaintiff and her fellow employees, is that plaintiff is a good worker whose performance was as satisfactory as that of Ms. Garcia. Was the plaintiff's performance in the Labor Department unsatisfactory or did Mr. Davis recommend her termination because of her race? The defendant argues that the issue is whether or not the defendant (i. e., Mr. Davis) truly believed that the plaintiff was not performing satisfactorily. According to the defendant, if Mr. Davis truly believed that the plaintiff was performing unsatisfactorily, then even if he was wrong, action taken based on his belief would not constitute racial discrimination. See, Turner v. Texas Instruments, Inc., 555 F.2d 1251 (5th Cir. 1977). In resolving such grossly conflicting versions of the plaintiff's performance and testing the "belief" of Mr. Davis, the obvious determining factor is the credibility of the witnesses.

The trial of this case consumed several days and this Court had substantial opportunity to observe the demeanor of the witnesses. Considerable testimony was offered during the several days of trial that goes to the precise issue of the credibility of Mr. Davis, and upon a review of that testimony the Court concludes that Mr. Davis used his evaluation of plaintiff's work performance as a pretext to effectuate his racially discriminatory attitudes.

Mr. Davis testified that he was not aware of the plaintiff's performance in the Shipping and Receiving Department when she was transferred to the Labor Department. Plaintiff testified that on the day that she was transferred to the Labor Department she met with Mr. Pisley, a supervisor of the defendant, and Mr. Davis and discussed her prior performance in the Shipping and Receiving Department. Mr. Gonzales also testified that before the plaintiff was transferred to the Labor Department he heard a company official advise Mr. Davis that the plaintiff was being transferred because she "could not handle the work at the dock." Mr. Gonzales heard Mr. Davis respond to this company official that if the plaintiff could not handle the work in the Labor Department then "he would let her go and that if she upset him he would assign her to the `nasty' jobs." Mr. Pisley was not called by the defendant.

Further, credible evidence was presented regarding Mr. Davis' racial antagonism against blacks. Mr. Davis was a vice-president in the labor organization representing employees of the defendant before he became a supervisor. During that period, a Biracial Committee was organized to integrate the jobs and facilities at the defendant's plant. Two witnesses testified that Mr. Davis had opposed this integration and had...