McKee v. McDonnell Douglas Technical Services Co., Inc.

• Decision Date: 18 March 1983
• Docket Number: No. 81-2406,81-2406
• Citation: 700 F.2d 260
• Parties: 31 Fair Empl.Prac.Cas. 383, 26 Wage & Hour Cas. (BN 21, 31 Empl. Prac. Dec. P 33,441, 96 Lab.Cas. P 34,345, 12 Fed. R. Evid. Serv. 1671 Mary McKEE, Plaintiff-Appellant, v. McDONNELL DOUGLAS TECHNICAL SERVICES CO., INC., a corporation, Defendant- Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 260

700 F.2d 260

31 Fair Empl.Prac.Cas. 383,

26 Wage & Hour Cas. (BN 21,

31 Empl. Prac. Dec. P 33,441, 96 Lab.Cas. P 34,345,

12 Fed. R. Evid. Serv. 1671

Mary McKEE, Plaintiff-Appellant, v. McDONNELL DOUGLAS TECHNICAL SERVICES CO., INC., a corporation, Defendant- Appellee.

No. 81-2406.

United States Court of Appeals Fifth Circuit.

March 18, 1983.

Rehearing and Rehearing En Banc Denied May 26, 1983.

David T. Lopez, Houston, Tex., for plaintiff-appellant.

Gerald T. Holtzman, Houston, Tex., for defendant-appellee.

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

Before RUBIN, RANDALL and JOLLY, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

Mary McKee filed a claim against her employer, McDonnell Douglas Technical Services Company (McDonnell) alleging that the company was violating the Equal Pay Act ¹ by paying her less than a male employee who performed the same or equal work. She later amended her complaint to allege a Title VII ² claim based on the same facts. The district court, concluding that McKee had not filed a formal charge with the Equal Employment Opportunity Commission (EEOC), granted McDonnell's motion for summary judgment and dismissed the Title VII claim. ³

McKee tried the Equal Pay Act claim to a jury, which found in response to special interrogatories that she neither performed work equal to that done by a male fellow employee nor had a job requiring the same skill, effort, and responsibility as his. Finding the evidence sufficient to support that verdict, we affirm the judgment for McDonnell on the Equal Pay Act claim. However, we conclude that a material issue of fact remained in dispute concerning the basis for dismissal of the Title VII claim: whether the EEOC's alleged refusal to accept McKee's charge in April of 1979 tolled the 180-day period within which such a claim must be filed. Therefore, we vacate the grant of summary judgment dismissing that claim.

I.

McKee first complains of an evidentiary ruling by the trial judge. After the court had ordered witnesses to be sequestered and had directed them not to discuss their testimony with other witnesses, one of McDonnell's witnesses, McKee's immediate supervisor, Paul Ledoux, was seen talking to Peggy Dugge, another McDonnell witness. McKee's counsel asked that Ledoux's testimony be stricken. The court denied the request.

Allowing the sequestration of witnesses is imparted to the discretion of the trial judge. It is equally within his discretion to determine whether the separation mandate has been violated and, if so, what sanctions, if any, should be imposed. United States v. Berry, 670 F.2d 583, 606 (5th Cir.1982) (en banc); United States v. Brooks, 303 F.2d 851, 853 (6th Cir.) (per curiam), cert. denied, 371 U.S. 889, 83 S.Ct. 184, 9 L.Ed.2d 122 (1962). A violation of the rule does not automatically bar the testimony of the errant witness. United States v. Warren, 578 F.2d 1058, 1076 n. 16 (5th Cir.1978) (en banc), reaff'd on rehearing, 612 F.2d 887, 891 (5th Cir.) (en banc), cert. denied, 446 U.S. 956, 100 S.Ct. 2928, 64 L.Ed.2d 815 (1980); Easley v. United States, 261 F.2d 276, 277 (5th Cir.1958) (per curiam).

The record does not disclose that anything Ledoux and Dugge discussed was addressed on direct or cross-examination. Moreover, Ledoux's testimony on cross-examination was prejudicial to McDonnell and was used by McKee's counsel in closing argument to show that McKee had proved her case. We, therefore, find that the trial court did not abuse its discretion in refusing to strike Ledoux's testimony.

II.

McKee next argues that the evidence was insufficient to support the verdict for McDonnell on the Pay Act claim. In reviewing the district court's denial of a motion for judgment notwithstanding the jury's verdict, which calls into question the sufficiency of the evidence supporting that verdict, see J & H Auto Trim Co. v. Bellefonte Insurance Co., 677 F.2d 1365, 1368 (11th Cir.1982), we consider the proof in the light most favorable to the verdict-winner and inquire whether evidence supporting the jury's conclusion is substantial. See Boeing Co. v. Shipman, 411 F.2d 365, 374-75 & n. 16 (5th Cir.1969) (en banc).

In summary, McDonnell's evidence showed that McKee and a male employee, Huckestein, worked as a team preparing a materials test data handbook. Huckestein was responsible for the generation, coordination, collection and dissemination of computer reports containing test data. McKee's primary responsibility, on which she spent 55 to 80 percent of her time, was encoding data for use in the computer.

Huckestein did no encoding but was responsible for all computer work and test coordination necessary to produce the handbook. When Huckestein later resigned, McDonnell changed the structure of the project. It divided Huckestein's responsibilities into two jobs: the performance of the computer-related activities and the testing work. McKee, offered her choice of jobs, chose the testing work. She continued her encoding work until an in-house computer terminal became operational and obviated the need for encoding. McKee admitted that, after Huckestein's departure, she assumed no responsibility for the computer system. In sum, she never worked on the function that had occupied a majority of Huckestein's time.

In order to make out an Equal Pay Act claim, a plaintiff must demonstrate that the jobs in question require equal effort, skill, and responsibility, see 29 C.F.R. Secs. 800.125-.130 (1981), and are performed under similar working conditions. Id. Secs. 800.131, .132. The plaintiff must meet each test in order to demonstrate a Pay Act violation. Here, there was ample evidence to support the jury's verdict that McKee failed to show that the jobs were substantially the same. See Angelo v. Bacharach Instrument Co., 555 F.2d 1164, 1173 (3d Cir.1977); 29 C.F.R. Sec. 800.120 (1981). Fairminded jurors in the exercise of impartial judgment might have reached this conclusion on the record. That is enough to support the verdict. Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir.1969) (en banc).

III.

We turn to the summary judgment dismissing McKee's Title VII claim. Summary judgment is appropriate only when there is no genuine issue of material fact. See, e.g., EEOC v. Brown & Root, Inc., 688 F.2d 338, 339 (5th Cir.1982); Fed.R.Civ.P. 56(c). McKee submitted evidence in affidavit form, admissible under Fed.R.Civ.P. 56 for the purpose of raising such an issue of fact, that she went to the Houston office of the EEOC to file a complaint against McDonnell on April 11, 1979, after she did not receive a promotion that she was allegedly promised in December, 1978. An EEOC employee did not accept the charge but suggested that McKee file a complaint under the Equal Pay Act ⁴ with the United States Department of Labor (DOL). McKee deposed that, after unsuccessful efforts to obtain the remedy she sought through the DOL, she returned to the EEOC office and an unidentified employee refused to accept her claim.

After McKee amended her complaint in the district court to allege a Title VII violation, McDonnell moved to dismiss that claim for lack of subject-matter jurisdiction because McKee had neither filed a timely charge with the EEOC nor received a right-to-sue letter as required by 42 U.S.C. Secs. 2000e-5(e), (f)(1) (1976). McKee then (on June 13, 1980) filed a formal charge with the EEOC claiming that she was being discriminated against because of her sex, that she was being paid less than a male employee (Huckestein) who was doing the same job as she was, and that she was being adversely affected by McDonnell's policy, unrelated to her work duties, of requiring an engineering degree. She further claimed that McDonnell's other female employees had complained of sexual harassment and discrimination by company officials. The record does not indicate whether McKee had made these same allegations when she visited the EEOC with the intention of filing a charge in April, 1979 and was referred to the DOL.

In Zipes v. Trans World Airlines, 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982), the Supreme Court held that a federal court is not deprived of subject-matter jurisdiction over a Title VII case simply because a plaintiff fails timely to file a charge with the EEOC. The Court held that the time requirement is in the nature of a limitation period, subject to waiver, estoppel, and equitable tolling. Id. at 393, 102 S.Ct. at 1132, 71 L.Ed.2d at 243; see Coke v. General Adjustment Bureau, Inc., 640 F.2d 584, 588, 591-93 (5th Cir.1981) (en banc) (and cases cited therein).

EEOC regulations do not vest Commission officials with discretion to turn away complainants. 29 C.F.R. Sec. 1601.6 (1981) states: "The Commission shall receive information concerning alleged violations of Title VII from any person. Where the information discloses that a person is entitled to file a charge with the Commission, the appropriate officer shall render assistance in the filing of a charge." (emphasis added). ⁵ Nowhere is the Commission given discretion to refuse a valid allegation of a Title VII violation except that "[a] charge which raises a claim exclusively under section 717 of Title VII [42 U.S.C. Sec. 2000e-16 (1976) ] shall not be taken and shall be referred to the appropriate agency." 29 C.F.R. Sec. 1601.19 (1981). ⁶

McKee's claim filed in June 1980 alleged facts that would have entitled her to file a charge had those facts been related to an EEOC official during her April, 1979 visit to the Commission. This conclusion is inescapable in light of the Supreme Court's decision in County of Washington v. Gunther, 452 U.S. 161, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981). The Court in Gunther held that a Title VII cause of action may be asserted on the basis of wage discrimination premised on sex even though the claim does not support an Equal Pay Act violation. Id. at 181, 101 S.Ct. at 2254, 68 L.Ed.2d at 767. McKee's...