Rutherford v. American Bank of Commerce

Decision Date21 November 1977
Docket NumberNo. 76-1467,76-1467
Citation565 F.2d 1162
Parties16 Fair Empl.Prac.Cas. 26, 15 Empl. Prac. Dec. P 7945 Bertha M. RUTHERFORD, Plaintiff-Appellee, v. AMERICAN BANK OF COMMERCE, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Teresa M. Sanchez of the EEOC Law Clinic, Albuquerque, N. M., for plaintiff-appellee.

Peter J. Broullire, III, Albuquerque, N. M. (Coors, Singer & Broullire, Albuquerque, N. M., and William C. Schauer, Alamorgordo, N. M., on the brief), for defendant-appellant.

Before McWILLIAMS and DOYLE, Circuit Judges, and MARKEY, Chief Judge. *

McWILLIAMS, Circuit Judge.

This is a civil rights case brought by Bertha Rutherford against her former employer, the American Bank of Commerce, a state banking corporation in Albuquerque, New Mexico, hereinafter referred to as "the Bank." After trial to the court, the trial judge entered judgment in favor of Rutherford against the Bank for violation of Section 704(a) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-3(a), in the amount of $2,450 as damages, and in the additional amount of $1,000 as attorney's fees. The Bank appeals. We affirm.

The statute upon which the present action is predicated, 42 U.S.C. § 2000e-3(a) provides, in relevant part, as follows:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment . . . because he has made a charge . . . under this subchapter. (Emphasis added.)

In the definition section of the subchapter, 42 U.S.C. § 2000e(f), the term "employee" is defined as meaning "an individual employed by an employer . . . ."

Rutherford was first employed by the Bank in 1961. As of August 1971, Rutherford was a loan officer trainee with the Bank. On August 31, 1971, Rutherford was directed by her supervisor to perform certain clerical duties in place of a secretary who had resigned. Believing this to be a demotion, Rutherford became considerably upset, and, after unavailing appeals to both the vice president and president of the Bank, she resigned rather than accept the reassignment.

Rutherford thereafter filed a sex discrimination charge against the Bank with the United States Equal Employment Opportunity Commission, and later brought suit against the Bank in the United States District Court for the District of New Mexico. Trial of this matter resulted in a judgment in favor of the Bank, which judgment was affirmed on appeal by this Court in an unpublished opinion, Rutherford v. American Bank of Commerce, No. 74-1313 (10th Cir. filed January 27, 1975). In affirming, we upheld the finding of the trial court that there was no discrimination based on sex, and that the reassignment was motivated by the personnel situation at the Bank.

Shortly after Rutherford resigned her job with the Bank on August 31, 1971, but before she filed the sex discrimination charge, Phil White, a vice president of the Bank, gave Rutherford a highly complimentary letter of recommendation, in which he stated, in part, that "we respect her decision and her reasons for resigning." Subsequently, the following sequence of events occurred: The Bank learned that Rutherford had filed a discrimination charge against it; Rutherford applied for a position with the Citizens Bank in Albuquerque; Gary McPherson, a vice president of Citizens Bank, contacted Phil White to inquire as to Rutherford's employment record with the Bank, at which time White, inter alia, volunteered that Rutherford, after terminating her employment with the Bank, had filed a sex discrimination charge against the Bank.

Still later, in connection with an application for employment with Frontier Air Lines, Rutherford contacted Phil White and asked for an up-dated letter of recommendation. White, on this occasion, advised Rutherford that any such letter would set forth the circumstances surrounding her termination of employment and would mention the fact that she had filed a discrimination charge against the Bank. Rutherford then filed a second charge of discrimination against the Bank with the EEOC, and later instituted the present proceeding against the Bank.

Rutherford testified that her initial conversations with representatives of the Citizens Bank were highly encouraging, and that Citizens Bank indicated, at least as far as she was concerned, that employment in the near future was a good possibility. It was Rutherford's theory of the case that Citizens, after being advised by the Bank that Rutherford had filed a discrimination charge against it, had a change of heart and only then advised her that there was no chance of employment with it.

The trial court, upon trial to the court, found that the Bank, in advising the Citizens Bank that Rutherford had filed a sex discrimination charge against it, had violated the provisions of 42 U.S.C. § 2000e-3(a). Specifically, the trial court found that in advising the Citizens Bank of the fact that Rutherford had filed a Title VII sex discrimination charge against the Bank, the latter had acted in a purely retaliatory manner, and that such was a form of discrimination prohibited by the applicable statute.

That the Bank did act in a spirit of retaliation is in our view amply borne out by the record. Before the filing of the sex discrimination charge by Rutherford, the Bank's vice president had given Rutherford a glowing letter of recommendation in which he stated that Rutherford's reasons for terminating her employment with the Bank were reasonable and understandable. However, after Rutherford filed a sex discrimination charge against the Bank, this same vice president conceded that he was "not pleased" at all by such filing, and when called by the Citizens Bank concerning Rutherford's employment record at the Bank, volunteered that Rutherford had filed discrimination charges against the Bank. The finding that in thus advising the Citizens Bank the Bank was itself acting by way of retaliation is supported by the record and cannot be overturned by us on appeal.

The trial court also found that as a result of the information imparted by the Bank concerning the filing of a sex discrimination charge, Rutherford lost her employment opportunity at the Citizens Bank. On appeal, counsel asserts that this finding is clearly erroneous. It is true the officials of the Citizens Bank testified that the reason they did not hire Rutherford was unrelated to the fact that Rutherford had filed charges against the Bank. However, this matter is not necessarily resolved by such self-serving statements. Inferences from circumstantial facts may frequently amount to " full proof" of a given theory, and may on occasion even be strong enough to overcome the effect of direct testimony to the contrary. The Wenona, 86 U.S. 41, 58, 22 L.Ed. 52 (1873).

In our view, the facts and circumstances of the instant case are such as to permit the inference that any chance of Rutherford's obtaining employment at the Citizens Bank was eliminated after the latter learned of Rutherford's discrimination charge against her former employer. Rutherford's testimony was that her initial contacts with the Citizens Bank were highly encouraging and that she was led to believe that her obtaining employment with...

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