Powe v. GEORGIA PAC. CO., INC., K 77-539.
| Citation | 488 F. Supp. 467 |
| Decision Date | 22 April 1980 |
| Docket Number | No. K 77-539.,K 77-539. |
| Parties | Cherry POWE, Plaintiff, v. GEORGIA PACIFIC COMPANY, INC., Defendant. |
| Court | United States District Courts. 6th Circuit. United States District Court (Western District Michigan) |
Lawrence P. Schneider of Sinas, Dramis, Brake, Boughton, McIntyre & Reisig, P. C., Lansing, Mich., for plaintiff.
Charles K. Howard of Elarbee, Clark & Paul, Atlanta, Ga., Stephen D. Turner, Baxter & Hammnond, Grand Rapids, Mich., for defendant.
The above entitled action arises out of a civil rights complaint filed on October 25, 1977 alleging that the Plaintiff was discriminated against in his employment on account of his race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. (The Act). The Complaint charges the Defendant with unjust discipline and termination of the Plaintiff in violation of The Act.
On April 17, 1974 Plaintiff filed a charge of discrimination with the Michigan Civil Rights Commission (MCRC) alleging racial discrimination in his employment based on his receipt of a written reprimand and one day suspension from his foreman, Don Lacey. Thereafter the Plaintiff filed a Complaint with the Equal Employment Opportunity Commission (EEOC), which took jurisdiction and made attempts to conciliate the parties.
On September 19, 1974, during the pendency of the EEOC investigation, the Plaintiff was discharged by the Defendant. Initially, the Plaintiff believed that his first Complaint covered both incidents in which the alleged discrimination occurred, but he became uneasy with that position and filed a second Complaint on May 23, 1975 with the MCRC. The EEOC later declined to take jurisdiction over this second Complaint on the grounds that it was not timely filed. On July 28, 1977 the EEOC mailed a "Right to Sue" authorization letter, with regard to the first allegation, to the Plaintiff.
At the Pretrial held January 15, 1980, the Court, pursuant to FRCP 42(b), entered an Order bifurcating trial on the issues of liability and damages. Trial on the issue of liability began on March 31, 1980 and concluded on April 1. After the Plaintiff rested, the Defendant made a Motion to Dismiss under FRCP 41(b). The Court denied the Motion, finding that the Plaintiff had established a prima facie case of employment discrimination.
The Court also held that it had jurisdiction over the discharge, as well as the earlier discipline, because the discharge was within the scope of the EEOC investigation reasonably expected to stem from the initial charge of discrimination. Defendant then presented its case in rebuttal. Both parties rested and final arguments were waived.
The following constitutes the Court's Findings of Fact and Conclusions of Law as required by FRCP 52(a):
FINDINGS OF FACT
Plaintiff's General Employment History with Defendant:
Plaintiff, a black male, was hired by Defendant at its Kalamazoo plant on September 23, 1968. Through the system established by the collective bargaining agreement, he moved into higher paying positions by bidding on and qualifying for work in different departments. At the time of the alleged discriminatory employment practices, he was working as lead man in the Number One De-Inking Department. Persons in this job classification are responsible for operating a de-inking or hydrapulping machine which converts waste and scrap paper to pulp.
In this key step in the recycling process various types of paper are placed on a conveyor belt which leads to a large vat in which the paper and chemicals are combined and mixed to remove ink from prior printing. To obtain optimal results, it is necessary that the correct amount of paper (in terms of weight) be added, and that the proper mixture of paper types be accomplished. After the lead man places the bales of paper on the conveyor belt, it is his responsibility to record what types of paper have been used in order to maintain a sufficient and correct inventory.
Prior to the first alleged incident of discriminatory discipline, the Plaintiff had been the subject of several minor disciplinary measures. On February 12, 1970, he received a written reprimand for leaving work before being properly relieved. At this time Defendant was utilizing a number of shifts, and its employees were working around the clock. The new shift was to report to work half an hour before the prior shift was scheduled to leave. Once the new shift's relief man had reported and was prepared to take over, the employee from the prior shift could leave, even before the end of the half hour overlap period. On the other hand, if the relief man did not show up, the prior shift's employee was required to stay until another relief man could be located. No evidence as to the particulars of the Plaintiff's violation of this rule on this date was presented, but this same rule is also in issue with respect to a later violation (March 5, 1974).
No further violation of company rules occurred until October of 1972 when the Plaintiff was cited for arriving late for work on one occasion, and for leaving early on another date.
In November of the same year the Plaintiff was given a written reprimand for being absent from his job for four hours.
The Plaintiff maintained a "clean" work record for another year and one-half, until shortly before the incident leading to the filing of a Complaint with the MCRC. On March 5, 1974, the Plaintiff was again cited for leaving work without being relieved. Plaintiff claims that Don Lacey, his relief man at the time (the person who became his foreman and who is charged with being the instigator of the discriminatory action), came to work and told the Plaintiff he could leave. Lacey testified, however, that he was ill that day and had not reported to work — a position confirmed by company records.
These four violations in six years do not establish that the Plaintiff was a poor employee. While it was the testimony of a witness (Holden) that a person with such a record of discipline is not a good employee, the Court does not infer from that statement that Plaintiff was a poor employee. Testimony of the Plaintiff's co-workers showed that he was generally regarded to be a good worker, and one who did not fall behind in his work. As to the Plaintiff's work performance prior to the alleged acts of discrimination the Court concludes that while the Plaintiff was not a model employee, he was, at least, a satisfactory worker.
Lacey, who became the Plaintiff's foreman in April of 1974, is the focus of the discrimination controversy giving rise to the instant suit. The Plaintiff does not charge Defendant, Georgia Pacific, with a policy and general scheme of discrimination, but seeks to hold the Defendant liable, under a respondeat superior theory, for the actions of its agent and employee, Lacey.
One source of strife between the Plaintiff and Lacey, relating to the latter's relieving of the former, has already been discussed. If the Plaintiff's allegation that Lacey reported for work and told Plaintiff he could go home (then leaving himself, without properly relieving the Plaintiff) were, in fact, true, such conduct might have supported his contention of discriminatory animus on the part of Lacey.
The contrary testimony of Lacey, and the company records supporting Lacey's testimony, in conjunction with the absence of other witnesses testifying that they saw Lacey in the plant that day, persuades the Court that Lacey did not, in fact, come to work on that occasion.
Another more serious, and relevant, cause of embitterment between Plaintiff and Lacey arose from certain racially oriented questions and comments that Lacey directed to the Plaintiff while both parties were union employees. During this period of time, the Plaintiff (a black man) was living with a white woman, and Lacey asked the Plaintiff to compare the sexual performance of white and black women. Lacey also made reference to his plans for going bear hunting in order to shoot "a big black bear", while pointing an imaginary weapon (Plaintiff contends in his direction).
While the above comments were undisputed, the Plaintiff also testified about a statement of Lacey's which the Defendant denies. Plaintiff stated that Lacey told him just prior to his (Lacey's) becoming a foreman that he "might just as well quit because he (Plaintiff) was first on his list".
Plaintiff also alleged that Lacey would come in on certain mornings and say "Oh my goodness, it's another black morning", and that he persisted in asking questions about Plaintiff's white "wife" (including asking if Plaintiff would sell her).
Plaintiff testified, that, after Lacey became a foreman, Lacey would "hassle" Plaintiff, and that when co-workers were able to take a break, Lacey would always find something for Plaintiff to do.
In rebuttal of these charges, Lacey testified that, although he did inquire as to whether "black or white women were better", when he observed that the Plaintiff was offended, he refrained from further questions along that line. It was also established by several witnesses, including union personnel, that these questions had been asked long before Lacey had been made foreman. When all the testimony had been received, the "bear hunting" comment by Lacey appeared much less offensive, although not wholly innocuous. Indeed, Lacey testified that a running "joke" between he and Plaintiff went to the issue of whether Lacey would get the bear, or vice versa.
As to the potentially most damaging statement regarding Lacey's intention to fire Plaintiff at his first opportunity, the Court after hearing all the evidence, is not persuaded that such a comment was ever made. Additionally, it should be noted, this "threat" was not mentioned in the charge filed with the MCRC, despite the fact that the Plaintiff alleged the threat was made just prior to the discipline leading to the filing of Plaintiff's Complaint. Such a threat would have been a...
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