Rohde v. K. O. Steel Castings, Inc.

• Decision Date: 30 June 1981
• Docket Number: No. 80-1394,80-1394
• Citation: 649 F.2d 317
• Parties: 26 Fair Empl.Prac.Cas. 308, 26 Empl. Prac. Dec. P 31,927 Linda L. (Shodrock) ROHDE, Plaintiff-Appellee, v. K. O. STEEL CASTINGS, INC., Defendant-Appellant. . Unit A
• Court: U.S. Court of Appeals — Fifth Circuit

Page 317

649 F.2d 317

26 Fair Empl.Prac.Cas. 308,

26 Empl. Prac. Dec. P 31,927

Linda L. (Shodrock) ROHDE, Plaintiff-Appellee, v. K. O. STEEL CASTINGS, INC., Defendant-Appellant.

No. 80-1394.

United States Court of Appeals,

Fifth Circuit.

Unit A

June 30, 1981.

Rehearing Denied Aug. 18, 1981.

Schoolfield, Smith & Weissert, Allen P. Schoolfield, Jr., John M. Weissert, Dallas, Tex., for defendant-appellant.

Southers, Goldberg & Lyons, Inc., Jeffrey Clarke Anderson, Steven A. Sinkin, San Antonio, Tex., for plaintiff-appellee.

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

Before RUBIN and GARZA, Circuit Judges, and SPEARS, ^* District Judge.

GARZA, Circuit Judge:

Plaintiff-appellant Linda Shodrock Rohde maintains this suit against her former employer, defendant-appellant K. O. Steel Castings, Inc. Rohde was discharged following an altercation with a male employee who retained his job. She alleges that this constituted impermissibly disparate treatment Rohde had been employed for almost six years at the time of her discharge. She worked as the only secretary on the company's "executive floor." For some time, she had been engaged in an affair with Arnulfo Lopez, a cleaning room foreman for K. O. The record indicates that company executives were aware of their relationship.

of "similarly situated" employees, amounting to discrimination on account of sex under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.

This peaceable status quo collapsed on the evening of July 15, 1976, when Lopez went to Rohde's apartment and struck her in the course of an argument. The next morning, Rohde called the firm's personnel director and told him that she had been injured. He allowed her to remain at home. She returned on the 17th, only to be assaulted by Lopez again. The personnel director was advised of this second incident and told her to take the balance of the week off, the days coming from vacation time. The company's president and vice-president were out of town on business, and returned on Monday the 21st to learn of Rohde's absence. She was then told that her services were no longer required. It is undisputed that Lopez was not dismissed.

This suit followed, and the district court appointed a United States Magistrate to "hear and determine the merits," pursuant to 42 U.S.C. § 2000e-5(f)(5) and 28 U.S.C. § 636(b)(2). A three-day evidentiary hearing was held, at which K. O. attempted to rebut the discrimination allegations by presenting evidence that Rohde was a poor employee who was discharged on the basis of her record as a whole, and that Lopez' record, in contrast, was meritorious. The magistrate agreed, and filed Findings of Fact and Conclusions of Law which sustained K. O.'s position. The district court rejected these findings and, concluding that Rohde had established a prima facie case which K. O. had failed to rebut, entered judgment in favor of Rohde.

K. O. mounts a two-pronged attack on this judgment. First, it contends that the district court erred in determining that the findings of the magistrate were "clearly erroneous," and that it did not accord proper deference to those findings; secondly, it asserts that the court erred in its definition of "similarly situated" under Title VII, and in holding that these two employees were so situated. We find both arguments to be without merit, and affirm.

The parties have devoted a considerable portion of their briefs and argument to the question of the standard of review. Indeed, on the procedural history of this case, the question is not without difficulty. The dispute centers on whether we apply the "clearly erroneous" standard to the findings of the magistrate, who found that Rohde was not discriminated against under 42 U.S.C. § 2000e, or to the conclusion of the district court that she was.

Fed.R.Civ.P. 53 governs references to a master, whether it be to "a referee, an auditor, an examiner, a commissioner, (or) an assessor." Subsection (e)(2) of that rule governs the effect of the master's findings: "in an action to be tried without a jury the court shall accept the master's findings of fact unless clearly erroneous The court after hearing may adopt the report or modify it or may reject it in whole or in part or may receive further evidence or may recommit it with instructions." The district court, in its opinion rejecting the magistrate's recommendation, recognized that it was "bound by the clearly erroneous standard "

Once the master's recommendation is accepted or rejected, however, what standard must be applied by the Court of Appeals? It is uniformly held that to the extent that a district court accepts the master's findings, they become the findings of the district court, and cannot be set aside in the Court of Appeals unless clearly erroneous. See Fed.R.Civ.P. 52(a); Coen v. Zick, 458 F.2d 326 (9 Cir. 1972); In Re American Packer's Exchange, Inc., 449 F.2d 1313 (1 Cir. 1971); In Re George W. Myers Co., 448 F.2d 1260 (3 Cir. 1971); Transportation Ins. Co. v. Hamilton, 316 F.2d 294 (10 Cir. 1963); London v. Troitino Bros., Inc., 301 F.2d 116 (4 Cir. 1962); Howard Indus., Inc. v. Rae As the district court cogently observed, the application of this rule of construction has little relevance here. The court admitted that it was bound by the clearly erroneous standard "for the magistrate's credibility determinations and findings of subsidiary facts (but not) in regard to the magistrate's determination of nondiscrimination, which is a finding of ultimate fact." See Williams v. Tallahassee Motors, Inc., 607 F.2d 689 (5 Cir. 1979); East v. Romine, Inc., 518 F.2d 332 (5 Cir. 1975). ¹ Thus, the district court accepted the subsidiary findings of its master, but, upon weighing them, reached a different conclusion as to the ultimate discrimination issue. Under Williams and East, supra, we are also unconstrained by the strictures of the clearly erroneous rule in passing on the nondiscrimination conclusion.

Motor Corp., 293 F.2d 116 (7 Cir. 1961); Porterfield v. Gerstel, 249 F.2d 634 (5 Cir. 1957); Cold Metal Process Co. v. Republic Steel Corp., 233 F.2d 828 (6 Cir. 1956); In Re DiPalo, 218 F.2d 816 (2 Cir. 1955); Collins v. O'Brien, 208 F.2d 44 (D.C. Cir. 1953); Frank Adam Electric Co. v. Colt's Patent Fire Arms Mfg. Co., 148 F.2d 497 (8 Cir. 1945). Where the district court rejects the master's findings in whole or in part, the applicable standard is less clear. The Fourth Circuit has held that it would give due consideration to the fact that the master heard the witnesses and the judge did not, but that it would accept the district court's findings unless clearly erroneous. See U. S. v. Twin City Power Co., 248 F.2d 108 (4 Cir. 1957); Mutual Savings & Loan Ass'n v. McCants, 183 F.2d 423 (4 Cir. 1950). The majority view however, and that of this circuit, is that the findings of the master will be measured by the clearly erroneous rule. See Matter of Multiponics, Inc., 622 F.2d 709, 722-23 (5 Cir. 1980); 9 Wright and Miller, Federal Practice and Procedure § 2584.

Beyond the standard of factual review, it cannot be disputed that the court of appeals may reexamine the legal conclusions of either the magistrate or district court, and reverse if error is perceived. The district court ruled that the magistrate placed too narrow a construction on the "similarly situated" requirement, in holding that the jobs of two employees receiving disparate treatment must have been "similar in all respects" to give rise to a cause of action.

We agree with the district court's studied conclusions of law on the order and burden of proof in this case as well as its construction of "similarly situated." As the court noted, under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668, 677 (1973), "The complainant in a Title VII trial must carry the initial burden under the statute of showing a prima facie case of racial discrimination." In 1978, the Supreme Court held that a prima facie case under McDonnell-Douglas is established where the plaintiff shows "actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were 'based on a discriminatory criterion illegal under the Act.' " Furnco Construction Corp. v. Waters, 438 U.S. 567, 576, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957, 966. Once a prima facie case is shown, McDonnell-Douglas provides that the burden "must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee's rejection." 411 U.S. 792 at 802, 93 S.Ct. 1817 at 1824, 36 L.Ed.2d 668 at 678. The burden then shifts back to the plaintiff to show by a preponderance of the evidence that the employer's reason was a pretext for discrimination. 411 U.S. 792 at 804, 93 S.Ct. 1817 at 1825, 36 L.Ed.2d 668 at 679. See also Turner v. Texas Instruments, Inc., 555 F.2d 1251, 1254 (5 Cir. 1977); Causey v. Ford Motor Co., 516 F.2d 416, 420 at n. 6 (5 Cir. 1975); Peters v. Jefferson Chemical Co., 516 F.2d 447, 449-51 (5 Cir. 1975).

The magistrate made 21 findings of fact and three conclusions of law. ² The critical The magistrate correctly recited the relative burden of proof as we have described it above, and was correct in holding that "to successfully establish a prima facie case of sex discrimination based upon disparate treatment the complainant must show that she is a member of a protected minority, and that because of her sex, she and a similarly placed male received dissimilar treatment." Indeed, in Turner v. Texas Instruments, supra, we held that a prima facie case was made out simply by "the discharge of Turner, a black, and the retention of Burns, a white, under apparently similar circumstances." 555 F.2d 1251 at 1255.

fact deduced was that "(P)laintiff was not discharged because of her controversy with Lopez, but because of a series of instances in which her work was...