Junior v. Texaco, Inc.

• Decision Date: 07 October 1982
• Docket Number: No. 81-2522,81-2522
• Citation: 688 F.2d 377
• Parties: 29 Fair Empl.Prac.Cas. 1696, 30 Empl. Prac. Dec. P 33,095 Lames JUNIOR, Plaintiff-Appellant, v. TEXACO, INC., Defendant-Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 377

688 F.2d 377

29 Fair Empl.Prac.Cas. 1696,

30 Empl. Prac. Dec. P 33,095

Lames JUNIOR, Plaintiff-Appellant, v. TEXACO, INC., Defendant-Appellee.

No. 81-2522

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Oct. 7, 1982.

Greg Frazer, Houston, Tex., for plaintiff-appellant.

James D. Garrison, Houston, Tex., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before BROWN, POLITZ and WILLIAMS, Circuit Judges.

POLITZ, Circuit Judge:

Lames G. Junior filed a complaint against his former employer, Texaco, Inc., under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and the Civil Rights Act of 1866, 42 U.S.C. § 1981, alleging racial discrimination in employment practices. Junior, a black male, alleged that although he resigned his clerical position after six years on the job, his resignation was, in reality, a constructive discharge. At the close of Junior's presentation of evidence the court granted Texaco's motion to dismiss filed pursuant to Fed.R.Civ.P. 41(b). Junior's appeal challenges the trial court's finding and conclusion that his resignation was not a constructive discharge. Finding no error, we affirm.

Facts

Employed as a junior clerk in August of 1972, Junior held various clerical positions until December of 1977 when he was assigned to the Consignee Sales Verification Group in Texaco's Houston office. In the spring of 1978 Junior asked his supervisor about a promotion and title change. The other seven members of his group, all white, were senior clerks. Junior stated that his experience and evaluations justified such a promotion. He was told the matter would be looked into. On August 25, 1978 Junior asked his immediate supervisor whether he had any information about the earlier request. The supervisor responded in the negative but offered to pursue the matter. Shortly thereafter Junior was called into the office of the assistant personnel manager for a periodic job performance evaluation which reported Junior's performance as less than satisfactory in four of six categories. ¹

Junior's protest of the low evaluation was followed by a discussion of the quantity of his work. Junior was told that he would be given an opportunity for a reappraisal in a few months, ² that they should "try again." No one suggested to Junior that he was going to be fired. Junior returned to his desk, wrote out a resignation giving two weeks notice, and delivered it to his supervisor.

Junior continued working the following week. After receiving his father's sage advice that one should not voluntarily leave a job before another is in hand, Junior asked the assistant personnel manager about the possibility of withdrawing his resignation. He was informed that the paperwork on his resignation had been processed and his position had been filled. Junior left the job in accordance with his resignation notice. Thereafter he complained to the Equal Employment Opportunity Commission and, after receipt of the requisite notice, filed the instant suit.

Standard of Review

Junior challenges the finding that he was not constructively discharged. The constructive discharge doctrine, first developed in unfair labor practice cases and more recently applied to employment discrimination actions, serves as a legal substitute for the discharge element of a prima facie case of discrimination. ³

We spoke of constructive discharge in Young v. Southwestern Savings and Loan Association, 509 F.2d 140, 144 (5th Cir. 1975):

The general rule is that if the employer deliberately makes an employee's working conditions so intolerable that the employee is forced into an involuntary resignation, then the employer has encompassed a constructive discharge and is as liable for any illegal conduct involved therein as if it had formally discharged the aggrieved employee.

A constructive discharge results when job conditions are " 'so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign.' " Bourque v. Powell Electrical Manufacturing Co., 617 F.2d 61, 65 (5th Cir. 1980) (quoting Alicea Rosado v. Garcia Santiago, 562 F.2d 114, 119 (1st Cir. 1977)). The focus is upon the reasonable reaction of the employee; it is not necessary to show that the employer subjectively intended to force a resignation.

The certainty which prevails in our standard for determining constructive discharge is not matched by like certainty in the standard for appellate review of the trial court's resolution of the question. The Bourque court "appl(ied) the facts as found by the district court to the law of constructive discharge" and held that "(a)s a matter of law the facts involved here do not constitute constructive discharge." 617 F.2d at 64. In Calcote v. Texas Educational Foundation, 578 F.2d 95 (5th Cir. 1978), we used "conclusion of law" language. In Meyer v. Brown & Root Const. Co., 661 F.2d 369, 372 (5th Cir. 1981), we cited Fed.R.Civ.P. 52(a) and observed that the "court's finding that plaintiff was constructively discharged is supported by the evidence ...."

The recent teachings of the Supreme Court are pertinent. In Pullman-Standard v. Swint, --- U.S. ----, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982), the Court cautioned against the drawing of distinctions, at the appellate level, between ultimate facts and basic or subsidiary facts, for Rule 52(a) "does not divide facts into categories." 102 S.Ct. at 1789. In the Swint case, the Court held that a trial court's finding of a lack of discriminatory intent was a finding of fact reviewable only under the clearly erroneous rule. The Court's admonition did not extend to situations involving mixed questions of law and fact "of the kind that in some cases may allow an appellate court to review the facts to see if they satisfy some legal concept of discriminatory intent." 102 S.Ct. at 1790. ⁴

The Standard Applied

Today we avoid the Serbonian bog which appears to encircle the inquiry whether constructive discharge poses solely a question of fact or a mixed question of fact and law. On the record before us it matters not whether we view the trial judge's conclusion that Junior was not constructively discharged as a fact subject to the clearly erroneous rule or a mixed question which might permit broader appellate review. Looking through either appellate prism, we find no reversible error. Applying the rubric expressed in Young and Bourque to the established facts leads inexorably to the conclusion that Junior's departure did not constitute a constructive discharge.

The record makes manifest that Junior's work environment was far from intolerable. Junior attested to his identification with his employer and to the fact that he enjoyed his work and work environ. Since the August 25 work evaluation was the precipitant for the resignation, our inquiry must focus on whether Junior's resignation was a reasonable reaction under all prevailing circumstances. We must determine whether Junior reasonably could conclude that he had no meaningful choice but to resign.

The evidence reflects that Junior's periodic appraisals had fluctuated. Generally, his performance earned satisfactory ratings. The August 25 report was mixed. He was credited with having a good working knowledge of his job and satisfactory personal job characteristics. Work quantity was considered fair and work quality was acceptable. As to initiative, he was "inclined to take things easy." In the final category, attendance, he received the lowest possible rating: "Excessive time loss." Evidence established that Junior was frequently late for work, having been "substantially late to work nine times in ninety (90) days that were reported and some thirty (30) times in ten months that were unreported." It was only in...