Levendos v. Stern Entertainment, Inc., Nos. 89-3727

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtBefore SLOVITER, NYGAARD and ALDISERT; ALDISERT
Citation909 F.2d 747
Parties53 Fair Empl.Prac.Cas. 779, 54 Empl. Prac. Dec. P 40,121, 59 USLW 2135 Elizabeth LEVENDOS, Appellant, v. STERN ENTERTAINMENT, INC., and Stern Entertainment System, Inc., Appellees. Elizabeth LEVENDOS, Appellee, v. STERN ENTERTAINMENT, INC., and Stern Entertainment System, Inc., Appellants. . Argued and Submitted Under Third Circuit Rule 12(6)
Docket Number89-3791,Nos. 89-3727
Decision Date21 May 1990

Page 747

909 F.2d 747
53 Fair Empl.Prac.Cas. 779,
54 Empl. Prac. Dec. P 40,121, 59 USLW 2135
Elizabeth LEVENDOS, Appellant,
v.
STERN ENTERTAINMENT, INC., and Stern Entertainment System,
Inc., Appellees.
Elizabeth LEVENDOS, Appellee,
v.
STERN ENTERTAINMENT, INC., and Stern Entertainment System,
Inc., Appellants.
Nos. 89-3727, 89-3791.
United States Court of Appeals,
Third Circuit.
Argued and Submitted Under Third
Circuit Rule 12(6) May 21, 1990.
Decided July 25, 1990.

Page 748

Kenneth G. Gormley (argued), Mansmann Cindrich & Titus, Pittsburgh, Pa., for appellant Elizabeth Levendos.

Ronald L. Hicks, Jr. (argued), Meyer, Unkovic & Scott, Pittsburgh, Pa., for appellee Stern Entertainment Systems, Inc.

Before SLOVITER, NYGAARD and ALDISERT, Circuit Judges.

OPINION OF THE COURT

ALDISERT, Circuit Judge.

In the primary appeal at No. 89-3727 we must determine whether the district court erred as a matter of law in injecting a notice requirement into the doctrine of constructive discharge under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Secs. 2000e-2000h-6 (1982). Subsumed in this problem are two somewhat related but distinct subordinate inquires: whether the existence of notice vel non is a question of fact, and if so, was the court clearly erroneous in finding no notice (a) on the basis of imputed notice to the employer based on actions of and notice to supervisory employees or agents of the employer, or (b) on the basis of inferred notice to the employer given the small size of the business enterprise and repeated unsuccessful efforts by the employee to reach the employer to complain about acts of gender discrimination.

The appeal at No. 89-3791 concerns attorney's fees relating to the primary case.

Jurisdiction was proper in the trial court based on 42 U.S.C. Sec. 2000e et seq. and 28 U.S.C. Sec. 1331. Because there was an issue as to whether this was a final judgment under 28 U.S.C. Sec. 1291, we permitted counsel for both appellant and appellee to file a joint request for certification under Rule 54(b) Fed.R.Civ.P. The district court so certified the judgment, thereby removing any problem of jurisdiction. The appeal was timely filed under Rule 4(a) F.R.A.P.

Page 749

A district court's findings of fact may be set aside on appeal only if they are clearly erroneous. Amadeo v. Zant, 486 U.S. 214, 108 S.Ct. 1771, 100 L.Ed.2d 249 (1988). The standard of review with respect to alleged error in applying law to facts, however, is plenary. See United States v. Adams, 759 F.2d 1099, 1106 (3d Cir.), cert. denied, 474 U.S. 906, 106 S.Ct. 275, 88 L.Ed.2d 236 (1985); Gaines v. Amalgamated Ins. Fund, 753 F.2d 288, 290 (3d Cir.1985).

I.

We are familiar with the concept of constructive discharge in Title VII cases, having described it as "acts of discrimination in violation of Title VII [that] make working conditions so intolerable that a reasonable employee would be forced to resign." Goss v. Exxon Office Systems Co., 747 F.2d 885, 887 (3d Cir.1984). Nor are we strangers to this case, having previously considered an appeal from this appellant, Elizabeth Levendos, in Levendos v. Stern Entertainment Inc., 860 F.2d 1227 (3d Cir.1988) (hereinafter Levendos I ). The facts are not complicated.

Appellees Stern Entertainment, Inc., and Stern Entertainment System, Inc. operated the Les Nuages Restaurant and the Heaven Night Club, both located in the Fulton Building, Pittsburgh, Pennsylvania. They employed Levendos in their restaurant. She began as a waitress in 1979 and was subsequently promoted to maitre d' and pastry chef during 1981 and 1982. Levendos contends that she was constructively discharged on April 22, 1982, when she submitted her resignation. Her salary as maitre d' and throughout her employment was $300.00 per week; as pastry chef she received additional compensation equal to one-third of the pastry receipts.

On December 21, 1984, after receiving a Notice of Right to Sue from the Equal Employment Opportunity Commission (EEOC), she filed a complaint in the district court alleging a violation of Title VII of the Civil Rights Act of 1964. She alleged that the appellees constructively discharged her from her employment as maitre d' and pastry chef at their restaurant based on her gender, and that their supervisory employees made working conditions so intolerable that a reasonable person in her situation would resign.

On January 22, 1987, the district court consolidated the claim of Elizabeth Levendos with that of her daughter, Katerina Levendos, who had alleged that she was terminated from the same establishment as a waitress based upon her gender. On September 9, 1987, the court entered summary judgment against appellant Elizabeth Levendos, but allowed Katerina's case to proceed to trial. As to Elizabeth, the court held that even if the facts Levendos alleged were true, they did not establish, as a matter of law, that she was constructively discharged from her position.

Elizabeth successfully appealed. We held that the allegations of Levendos "contain[ed] both the quality and quantity of evidence sufficient to allow the question of constructive discharge to go to a jury." 860 F.2d at 1232. Determining that the events of alleged discrimination described by her were "clearly not trivial" we remanded the case for further proceedings.

By this time, the district court had already conducted its trial with respect to the daughter, Katerina. In light of our decision that vacated and remanded the case of Elizabeth, the lower court re-consolidated the two cases for the purpose of receiving further evidence. During the second set of hearings held April 19-24, 1989, the district court concluded that the evidence and testimony received in each trial were applicable to both cases.

II.

During the course of trial, appellant Elizabeth Levendos introduced testimony that her treatment by management began to deteriorate by the end of 1981. She specifically introduced testimony to demonstrate the following events:

1. She began experiencing difficulty in ordering supplies, which adversely affected her ability to run the restaurant

Page 750

as maitre d'. Brief for Appellant at 6-7; A-62-64.

2. She was excluded from management meetings, although previous maitre d's and other managers had been included. Id.

3. Chef David DeVos accused her of stealing and drinking on the job and stated that these accusations had been suggested by the president of the defendant-corporations, Richard Stern. Id.

4. Chef DeVos told her that Stern intended to replace her with a male maitre d'. Id.

5. She made at least ten attempts over a period of months to communicate with Richard Stern concerning the sexually discriminatory conduct. App. at 232-33; 415-416. The day before she resigned she attempted to reach Stern by telephone numerous times. App. at 232; 416-418.

6. She discovered wine bottles wrapped in an apron, hidden in her locker, placed there to appear as if she were stealing. Brief for Appellant at 6-7; A-62-64.

According to an affidavit filed by Levendos, she "was the only female in a management position." She further stated that Herman Hartman, the general manager of both the night club and the restaurant, "boasted that [Levendos] would not be there long," that "management ... told other employees that [she] did not fit the 'mold' for maitre d' because [she] was a woman," that Chef David DeVos "was asked ... by [the owner] to find a male to replace [her]," that "management ... falsely accus[ed her] of stealing, drinking and fraternizing with employees." E. Levendos Affidavit at 2-3; Record at 24.

An affidavit filed by Robert Roth, one of Levendos' co-workers, stated that Levendos "had an excellent reputation at the restaurant [and that c]ustomers frequently came in and asked for her specifically," and that "she was written up in the Pittsburgh Press for her excellent work." Roth Affidavit at 2-3; Record at 23. He stated also that he believed the owner "liked the image of a male staff," that the chef "acknowledged that [there] was a plan to get rid of her, and replace her with a male friend of [the chef]," and that the owner refused to meet with her. Roth Affidavit at 3; Record at 23.

Both affidavits included the affiants' view that the Stern management disliked women in general and viewed them as inferior. Moreover, in the complaint filed by Levendos with the EEOC, she alleged that she was not allowed to order supplies even though a male manager was permitted to order them. Additionally, she was replaced by a male.

On October 4, 1989, the district court issued an opinion and judgment in the consolidated cases. 723 F.Supp. 1104. The court found in Katerina's favor, holding that defendants or their agents had intentionally discriminated against her based upon her sex, and terminated her from her...

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35 practice notes
  • Martin v. Cavalier Hotel Corp., Nos. 94-1600
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • March 10, 1995
    ...rise to Martin's constructive discharge effectively put Cavalier on notice of this conduct. See Levendos v. Stern Entertainment, Inc., 909 F.2d 747, 751-52 (3d Cir.1990) ("the actions of and notice to [the individual defendants], as supervisory employees and agents, may be imputed to [the c......
  • Stewart v. Weis Markets, Inc., No. 4:CV-92-0539.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • June 30, 1995
    ...individual supervisory employees or agents which may be imputed to the employer under agency law. Levendos v. Stern Entertainment, Inc., 909 F.2d 747, 751 (3d Cir.1990) (Levendos Satisfying these criteria is not an easy task. "Demonstrating constructive discharge requires a showing that `a ......
  • Churchill v. INTERN. BUS. MACHINES, INC., Civ. A. No. 87-4024.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • April 16, 1991
    ...discharge, the Third Circuit found notice to be a relevant factor for a court to consider. Levendos v. Stern Entertainment, Inc., 909 F.2d 747 (3d Cir.1990). Notice to IBM is not a problem in this case since Churchill filed a grievance about the alleged discrimination with the...
  • Crawford v. West Jersey Health Systems, Civ. No. 92-4572.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • March 31, 1994
    ...Denver Sewage Disposal District, 537 F.Supp. 966, 970 (D.Colo.1982)); quoted with approval in Levendos v. Stern Entertainment, Inc., 909 F.2d 747, 757 (3d In Counts One through Three, in addition to West Jersey Physician, plaintiff names West Jersey Health Systems (Voorhees Division) ("West......
  • Request a trial to view additional results
35 cases
  • Martin v. Cavalier Hotel Corp., Nos. 94-1600
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • March 10, 1995
    ...rise to Martin's constructive discharge effectively put Cavalier on notice of this conduct. See Levendos v. Stern Entertainment, Inc., 909 F.2d 747, 751-52 (3d Cir.1990) ("the actions of and notice to [the individual defendants], as supervisory employees and agents, may be imputed to [the c......
  • Stewart v. Weis Markets, Inc., No. 4:CV-92-0539.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • June 30, 1995
    ...individual supervisory employees or agents which may be imputed to the employer under agency law. Levendos v. Stern Entertainment, Inc., 909 F.2d 747, 751 (3d Cir.1990) (Levendos Satisfying these criteria is not an easy task. "Demonstrating constructive discharge requires a showing that `a ......
  • Churchill v. INTERN. BUS. MACHINES, INC., Civ. A. No. 87-4024.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • April 16, 1991
    ...discharge, the Third Circuit found notice to be a relevant factor for a court to consider. Levendos v. Stern Entertainment, Inc., 909 F.2d 747 (3d Cir.1990). Notice to IBM is not a problem in this case since Churchill filed a grievance about the alleged discrimination with the...
  • Crawford v. West Jersey Health Systems, Civ. No. 92-4572.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • March 31, 1994
    ...Denver Sewage Disposal District, 537 F.Supp. 966, 970 (D.Colo.1982)); quoted with approval in Levendos v. Stern Entertainment, Inc., 909 F.2d 747, 757 (3d In Counts One through Three, in addition to West Jersey Physician, plaintiff names West Jersey Health Systems (Voorhees Division) ("West......
  • Request a trial to view additional results

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