Lindale v. Tokheim Corp.

• Decision Date: 26 June 1998
• Docket Number: 97-2265,Nos. 97-1591,s. 97-1591
• Citation: 145 F.3d 953
• Parties: 76 Fair Empl.Prac.Cas. (BNA) 1858, 73 Empl. Prac. Dec. P 45,454 Michelle L. LINDALE, Plaintiff-Appellee, v. TOKHEIM CORPORATION, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 953

145 F.3d 953

76 Fair Empl.Prac.Cas. (BNA) 1858,

73 Empl. Prac. Dec. P 45,454

Michelle L. LINDALE, Plaintiff-Appellee, v. TOKHEIM CORPORATION, Defendant-Appellant.

Nos. 97-1591, 97-2265.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 11, 1997.

Decided May 29, 1998.

Rehearing and Suggestion for Rehearing en banc Denied June 26, 1998.

Cynthia Rockwell, Haller & Colvin, Fort Wayne, IN, John C. Hamilton (argued), Doran, Blackmond, Ready, Hamilton & Williams, South Bend, IN, for Plaintiff-Appellee.

Robert O. Vegeler, Beers, Mallers, Backs & Salin, Fort Wayne, IN, Maureen E. Mahoney (argued), Latham & Watkins, Washington, DC, Mary R. Alexander, Latham & Watkins, Chicago, IL, for Defendant-Appellant.

Before POSNER, Chief Judge, and EASTERBROOK and RIPPLE, Circuit Judges.

POSNER, Chief Judge.

Michelle Lindale brought suit against her former employer, Tokheim Corporation, claiming that it had discriminated against her on grounds of sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. sec.sec.2000e et seq., and the Equal Pay Act, 29 U.S.C. § 206(d). She obtained a jury verdict for $100,000 in compensatory damages, and $250,000 (reduced by the judge to $200,000) in punitive damages, under Title VII, and some additional equitable relief, including $2,400 in double damages, under the Equal Pay Act. The Title VII violations involved constructive discharge and failure to promote.

In August of 1993, Tokheim, a manufacturer of gasoline pumps, hired the plaintiff's husband, Adam Lindale, a mechanical engineer working for a competitor of Tokheim's, as an "ME II." Tokheim has four pay grades for its mechanical engineers: ME I through ME IV, ME I being the lowest rank. Michelle Lindale had graduated in the same class from the same college, also with a bachelor's degree in mechanical engineering, as her husband, but she had gone to work for a company that did not make gasoline pumps. (She had, however, worked on the design of gasoline pumps as part of her college studies.) Shortly after Adam arrived at Tokheim, he noticed an opening for a mechanical engineer. Michelle applied and, in September of 1993, was hired as an ME I at a salary of $33,000. This was much higher than her existing salary but $1,356 less than her husband was receiving as an ME II. (After subsequent merit raises, two for her husband but only one for her, the gap between her pay and her husband's pay widened to $3,600.) Her superior at Tokheim assured her that with her qualifications and experience she would be promoted to an ME II within a year. She was the only female mechanical engineer employed by Tokheim.

Her work for Tokheim was excellent, and after a year her supervisor recommended that she be promoted to an ME II. Nothing happened. Around this time, two male engineers were hired. Tall, heavyset men (one was 6 foot 8 inches tall, and Michelle is only a 5-footer), they were boorish and kept logging her off the computer they shared with each other and her, thus interfering with her ability to work. She felt intimidated, and that they weren't treating her like a full professional. One of them took over her cubicle when she wasn't there, forcing her to move elsewhere. But her work continued to be excellent, and she became impatient for her promotion. In April 1995, when she had been employed at Tokheim in the lowly ME I slot for 19 months, she informed her then supervisor both that she was five weeks pregnant and that she still had not heard about her promotion. He promised to look into the matter but apparently never did. She said she planned to continue working after her baby was born and he remarked, "Well, isn't that going to be difficult for you to be both a mother and an engineer?"

In June of 1995, Adam Lindale resigned from Tokheim to return to his former employer. His resignation created an ME II vacancy, and Tokheim posted a notice of the job opening. Michelle promptly applied. She called her original supervisor, who was now in Scotland, and he faxed her superiors repeating his previous recommendation that she be promoted. Three weeks later, still not having received the promotion or an explanation for the delay, Michelle learned that Tokheim had placed an ad in the local newspaper for mechanical engineers, specifying qualifications (such as at least three years' experience) that she had. After getting the impression that her husband's vacated ME II slot was the one to which the ad referred, and that she wouldn't be considered for the position, Michelle quit. This was the end of July; she had been employed by Tokheim for 22 months.

We must decide whether a reasonable jury could find that she was constructively discharged because the failure to promote her, in combination with the boorish behavior of the two men with whom she shared a computer, made it intolerable for her to continue working for Tokheim. Tokheim argues that a precondition to claiming constructive discharge is that the employee show that before quitting she had (unless in some imminent peril) sought legal redress for the condition that drove her to quit. Some cases say this (though none holds it), e.g., Darnell v. Target Stores, 16 F.3d 174, 177, 179 (7th Cir.1994); Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 677 (7th Cir.1993); Brooms v. Regal Tube Co., 881 F.2d 412, 423 (7th Cir.1989), but these dicta cannot be taken literally. For if they were, it would mean that in order to sue for constructive discharge, one would first have to bring a separate lawsuit challenging the condition that made one want to quit. Tokheim acknowledges as it must the exception (to any requirement of seeking legal redress) for cases of imminent peril--what the cases call "aggravated circumstances." But in making this concession it comes close to throwing in the towel, by conceding the existence of a class of constructive discharges in which the circumstances are not aggravated. If there is such a class, maybe the plaintiff is right that a failure to promote, though a lot less alarming than a threat to kill or to rape, might entitle an employee to quit and claim that she had been discharged.

The term "constructive discharge" refers to the situation in which an employee is not fired but quits, but in circumstances in which the working conditions have made remaining with this employer simply intolerable. E.g., Drake v. Minnesota Mining & Mfg. Co., 134 F.3d 878, 886 (7th Cir.1998); Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1015 (7th Cir.1997); Poole v. Country Club of Columbus, Inc., 129 F.3d 551, 553 (11th Cir.1997). Unless the employer is proved to be deliberately taking advantage of a known idiosyncratic vulnerability of the employee (like Winston's fear of rats in Orwell's Nineteen Eighty-Four) by altering the employee's working conditions in order to make the employee's life at work intolerable, the test for intolerable working conditions is whether a reasonable employee would have concluded that the conditions made remaining in the job unbearable. Drake v. Minnesota Mining & Mfg. Co., supra, 134 F.3d at 886-87; Rabinovitz v. Pena, 89 F.3d 482, 489 (7th Cir.1996); Vega v. Kodak Caribbean, Ltd., 3 F.3d 476, 481 (1st Cir.1993).

In some situations, the standard of reasonableness will require the employee who wants to make a successful claim of constructive discharge to do something before walking off the job. The reason is not that there is a doctrine of exhaustion of remedies, which would, as we said, mean that the employee might have to sue twice to preserve his right to sue at all. The reason, rather, is that passivity in the face of working conditions alleged to be intolerable is often inconsistent with the allegation. See, e.g., Brown v. Ameritech Corp., 128 F.3d 605, 608 (7th Cir.1997); Knowles v. Citicorp Mortgage, Inc., 142 F.3d 1082, 1086 (8th Cir.1998); Tidwell v. Meyer's Bakeries, Inc., 93 F.3d 490 (8th Cir.1996); Clowes v. Allegheny Valley Hospital, 991 F.2d 1159, 1161-62 (3d Cir.1993); Boze v. Branstetter, 912 F.2d 801, 805 (5th Cir.1990). The significance of passivity is thus evidentiary. Suppose a worker has just been assigned to a job that he believes to be dangerous to his health, but the work force is unionized and he can file a grievance complaining about the assignment. His failure to do so may be compelling evidence that he, or a reasonable person in his situation, would not actually have found conditions in his new assignment unbearable. And likewise if, in a nonunionized shop, he is given an unreasonable order by his foreman and instead of complaining to the foreman's superior walks off the job and claims he was constructively discharged. Failure to exhaust may show that the employee didn't really consider his working conditions intolerable or may deny the employer a reasonable opportunity to correct the situation without facing a lawsuit. But if neither condition is fulfilled, exhaustion is not required.

There was no constructive discharge in this case. But this was not because Michelle Lindale failed to complain--she complained plenty--and not because she failed before quitting to bring a lawsuit complaining about the failure to promote her, which would be an unreasonable condition to impose. It was because (setting the boors to one side for the moment) a reasonable employee would not have considered a failure to be promoted an event that made her working conditions intolerable. The Fifth Circuit was right in Jurgens v. EEOC, 903 F.2d 386, 392 (5th Cir.1990), to reject "the proposition that a simple discriminatory denial of promotion that cannot be reasonably construed as a career-ending action can alone create such embarrassment or humiliation that the denial comprises a constructive discharge." We are mindful of the qualification ("cannot be reasonably construed as a career-ending action"); if an employer has an "up or out" policy, as many law firms do, then refusal of up may mean out. See Hopkins v. Price...