Monteiro v. Poole Silver Co., 79-1346

• Decision Date: 14 February 1980
• Docket Number: No. 79-1346,79-1346
• Citation: Monteiro v. Poole Silver Co., 615 F.2d 4 (1st Cir. 1980)
• Parties: 22 Fair Empl.Prac.Cas. 90, 22 Empl. Prac. Dec. P 30,655 Frank MONTEIRO, Plaintiff, Appellant, v. POOLE SILVER COMPANY, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 4

615 F.2d 4

22 Fair Empl.Prac.Cas. 90, 22 Empl. Prac.

Dec. P 30,655

Frank MONTEIRO, Plaintiff, Appellant, v. POOLE SILVER COMPANY, Defendant, Appellee.

No. 79-1346.

United States Court of Appeals First Circuit.

Argued Dec. 6, 1979.

Decided Feb. 14, 1980.

Edward F. Haber, Boston, Mass., with whom Kenneth V. Kurnos, Boston, Mass., was on brief, for plaintiff, appellant.

William T. Sherry, Jr., Boston, Mass., with whom Nutter, McClennen & Fish, Boston, Mass., was on brief, for defendant, appellee.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

Frank Monteiro sued his former employer in the district court alleging that he had been discharged and otherwise discriminated against on account of his race in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. After a non-jury trial, the district court concluded that there had been no policy of racial discrimination practiced or knowingly permitted by Monteiro's employer, Poole Silver Company ("Poole"); that Monteiro failed to establish that his discharge was motivated by racial prejudice; and that he likewise failed to show that he was terminated in retaliation for his opposition to unlawful employment practices, see section 704(a) of the Act, 42 U.S.C. § 2000e-3(a). ¹ On appeal Monteiro challenges only the last of the foregoing rulings.

Poole hired Monteiro in late 1958 as a "buffer" at its Taunton, Massachusetts facility. Monteiro voluntarily terminated his employment there about five years later because he believed that his supervisor, Norman Courcy, returned more work for rebuffing to the few black buffers than to the white employees holding similar positions. Since buffers were paid on a piecework basis, an excessive amount of returned work would cause a reduction in the wages received. The district court, however, found that the "two workers who had in fact had the most work returned were both white."

In May 1969 Monteiro was rehired by Poole as a buffer at its newly opened plant in Fall River and given the unofficial title of "lead-man" of the buffing department. In 1972 Monteiro was demoted, in the district court's words "partly as the result of conflict with the then assistant plant manager (Colin) Menzies." Following this incident, Monteiro lodged a grievance through the Union alleging that he had been harassed and demoted because of racial prejudice, and also filed a similar complaint with the Massachusetts Commission Against Discrimination. ² In settlement, Poole reinstated Monteiro to his "lead-man" position but announced in the settlement memorandum that

"considerable emphasis (is being) placed on rules and regulations that must be maintained by Mr. Monteiro to insure his continued position and employment with the Poole Silver Company . . . . The following must be observed and followed . . .

1) must maintain his position at the lathe. . . .

4) must not roam around factory at will.

7) must refrain from the continuing use of the word discrimination. ³

8) must not drink alcoholic beverages or be intoxicated during working hours.

"With the understanding of the above rules and regulations, and understanding full well that the slightest infraction of any of the above rules shall mean immediate dismissal, Mr. Monteiro . . . agreed to the reinstatement and accepted his position of 'lead man.' "

In mid-1973 Monteiro filed further grievances and a "Charge of Discrimination" with the Equal Employment Opportunity Commission ("EEOC").

In May of 1974, apparently before disposition of the above-mentioned charges of discrimination, Norman Courcy, Monteiro's former supervisor at the Taunton plant, was named as supervisor of the Fall River facility. The incident leading to Monteiro's presently contested discharge occurred about nine months later, in February of 1975. According to the district court,

"(T)he event probably occurred in the following manner:

"The plaintiff was away from his bench. Courcy ordered him back to his bench. Plaintiff said, in substance, 'What about the other people walking around? You are harassing me.' Plaintiff then complained that Courcy was discriminating against him. The altercation continued in spurts of conversation. The plaintiff attempted to involve Souza, the shop steward. He also accused Courcy of doing buffing work in violation of union rules. Finally, plaintiff made a more vigorous accusation of discrimination against Courcy.

"The plaintiff testified that at this point Courcy said, in substance, 'I will not be accused of discrimination. You're fired.' Courcy testified that he said, in substance, 'I'll not be accused of discrimination. I'm ordering you back to your bench. You're not doing what I've told you to do, so you're fired.' In any case, the plaintiff refused to punch his timecard out, and Courcy did it himself.

"I find that Courcy's version of this conversation, or series of conversations, is probably more accurate."

Although this depiction suggests a sudden and very brief confrontation, the parties agreed during argument in this court and in their briefs that the exchanges between Courcy and Monteiro took place over a period of some thirty minutes. Courcy says he warned Monteiro repeatedly to return to his work station, and told him that a refusal to do so constituted cause for discharge. ⁴ Also according to Courcy, whose recollections the district court credited, it was not until after the above exchanges that Monteiro voiced his accusations of discrimination and ultimately was asked to punch out his time card.

After this incident Monteiro filed a second charge of discrimination with the EEOC alleging, among other things, that he was discharged in retaliation for his opposition to unlawful employer practices. The EEOC issued its "Determination" in which it addressed all of Monteiro's allegations of discrimination including those made in the earlier filed charge of 1973. While finding reasonable cause to believe that Monteiro had been temporarily demoted in 1972 by former supervisor Menzies because of his race, the Commission found that Monteiro's allegation of retaliatory discharge following the Courcy incident was "not substantiated by the evidence of record." Monteiro was subsequently issued a Notice of Right to Sue and commenced this action in the district court.

As noted, the district court rejected all of Monteiro's claims, finding, inter alia, both that no policy of racial discrimination had been practiced or knowingly permitted by Poole, and that the plaintiff had failed to sustain his burden of proving that his discharge was motivated by racial prejudice. Monteiro does not appeal from either of these conclusions. He appeals solely from the court's rejection of his further contention that his discharge was in retaliation for his protected opposition to unlawful employment practices. See note 1, supra. The district court said the following about that issue.

"There remains the question of retaliatory discharge. It is likely that the plaintiff's accusation of discrimination was one of the factors in bringing about his discharge.

"I rule, however, that the plaintiff's conduct in this case is not protected by 42 U.S.C. § 2000e-3(a). That section prohibits retaliation against an employer (sic) 'because he has opposed any (unlawful employment) practice.' This prohibition encompasses informal as well as formal opposition. Hearth v. Metropolitan Transit Commission, 436 F.Supp. 685, 688-689 (D.Minn.1977). In my opinion, this section applies to orderly opposition and not to an isolated flare-up. It applies to situations in which the employee has a conscientiously held belief that there was racial discrimination. That may have been the plaintiff's belief, but it is at least as likely that the plaintiff decided that the best defense to correction from the superintendent was a strong offense.

"I find this discharge to be essentially the result of a challenge by a volatile and voluble employee to the authority of a hard-nosed and short-fused supervisor. The result may have been unfortunate, but an action under Title VII does not provide a remedy."

Monteiro takes issue with the district court's statement that section 704(a) "applies to situations in which the employee has a conscientiously held belief that there was racial discrimination." Monteiro, citing Hearth v. Metropolitan Transit Commission, 436 F.Supp. 685, 688 (D.Minn.1977), argues that "informal opposition by an employee who reasonably believes that he has been the victim of unlawful discrimination" is protected. See also Sias v. City Demonstration Agency, 588 F.2d 692 (9th Cir. 1978) (agreeing with Hearth ). But this verbal distinction is of no assistance to Monteiro. The question in Hearth was whether, in order to prevail on a claim of retaliatory discharge, the plaintiff had to show that the employment practice complained of was in fact a Title VII violation. In holding that plaintiff need only reasonably believe that discrimination was being practiced before acting in "opposition," the Hearth court held that opposition conduct did not lose protection merely because the allegedly unlawful employment practice was later determined not to be violative of Title VII.

The question here is not the same. The district court's rejection of Monteiro's claim of retaliatory discharge did not rest simply upon the fact that it found no actual discriminatory behavior on the part of his employer. Rather, the court went on to conclude, in substance, that Monteiro had not shown that his accusations of discrimination were voiced in good-faith "opposition" to perceived employer misconduct; the court instead saw those accusations as likely having been raised as a smokescreen in challenge to the supervisor's legitimate criticism. In these circumstances, it is immaterial whether Monteiro was required to demonstrate that he harbored a "reasonable belief" of...