Saltzman v. Fullerton Metals Co.

• Citation: 661 F.2d 647
• Decision Date: 06 October 1981
• Docket Number: No. 80-2562,80-2562
• Parties: 26 Fair Empl.Prac.Cas. 1659, 25 Wage & Hour Cas. (BN 136, 27 Empl. Prac. Dec. P 32,185, 92 Lab.Cas. P 34,086, 9 Fed. R. Evid. Serv. 11 Freyda SALTZMAN, Plaintiff-Appellant, v. FULLERTON METALS COMPANY, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 647

661 F.2d 647

26 Fair Empl.Prac.Cas. 1659,

25 Wage & Hour Cas. (BN 136,

27 Empl. Prac. Dec. P 32,185, 92 Lab.Cas. P 34,086,

9 Fed. R. Evid. Serv. 11

Freyda SALTZMAN, Plaintiff-Appellant, v. FULLERTON METALS COMPANY, Defendant-Appellee.

No. 80-2562.

United States Court of Appeals, Seventh Circuit.

Argued June 1, 1981.

Decided Oct. 6, 1981.

Laurie E. Leader, Michael Lee Tinaglia, Chicago, Ill., for plaintiff-appellant.

Sheribel F. Rothenberg, D'Ancona, Pflaum, Wyatt & Riskind by Jay Riskind, Robert Gettleman, Sheribel Rothenberg & Ellen Fredel, Chicago, Ill., for defendant-appellee.

Before SPRECHER and CUDAHY, Circuit Judges, and EAST, Senior District Judge. ^*

CUDAHY, Circuit Judge.

Plaintiff Freyda Saltzman is appealing from an adverse judgment in her suit charging sexual discrimination in employment. Plaintiff's complaint is framed in three counts. Count I alleges that defendant Fullerton Metals Co. ("Fullerton") violated the Equal Pay Act of 1963, 29 U.S.C. § 206(d) (1976), by paying plaintiff less than a similarly situated male employee, James Carlin. Count II alleges a violation of the Illinois Fair Employment Practices Act based upon Fullerton's alleged discharge of plaintiff. Ill.Rev.Stat. ch. 48, § 851 et seq. Count III alleges a claim under Article I, Section 17 of the Illinois Constitution of 1970 on some unspecified theory.

Count II was tried to the court without a jury. The district court found that plaintiff had not been involuntarily terminated and thus entered judgment for the defendant. In the words of the district court, plaintiff voluntarily left Fullerton "by mutual agreement" and "was not fired or discharged." Therefore, the district court did not reach the question whether the discharge was itself lawful.

Counts I and III were tried to a jury. The jury found for the defendant on both counts and the district court entered judgment for Fullerton accordingly. Plaintiff now appeals from the adverse judgments with respect to Counts I and II. ¹ We affirm the district court's judgment with respect to Count I but reverse and remand the judgment entered on Count II.

I. Background

Fullerton hired plaintiff in 1972 as a clerical worker in its Credit Department. By 1976, plaintiff spent half of her time in collection. The remainder of her time was spent on credit extension and various other duties. When making credit decisions, plaintiff used past payment history and reports of credit services to guide her. Plaintiff did not have the ability to analyze financial statements and did not handle accounts with complex financing.

Because of increased work in the Credit Department, Fullerton officials approached plaintiff regarding the possibility of adding another employee to the credit department. Plaintiff felt threatened by the development and, in June of 1976, threatened to quit. Fullerton gave plaintiff a bonus, a raise and a new job title (although no new responsibilities) in order to placate her.

In July of 1976, Fullerton decided to transfer James Carlin to plaintiff's department as "Assistant to the Corporate Credit Manager." Plaintiff protested that the title indicated that Carlin would be more important than she was. Once again, Fullerton acceded to plaintiff's wishes and changed Carlin's title.

Carlin arrived in plaintiff's department in September of 1976. Plaintiff was "uncomfortable" and "felt threatened." Two weeks later, plaintiff allegedly overheard a conversation mentioning Carlin's name and a salary of $16,500. At that time, plaintiff was making $13,500 a year.

Plaintiff demanded a meeting with her superiors and presented them with the salary disparity. No one denied that the disparity existed but another meeting was scheduled to include a vice-president of Fullerton who was out of town at the time of the first meeting. At this second meeting on September 26, 1978, plaintiff was either fired or quit, depending upon how one interprets the facts. Plaintiff then filed this suit challenging her alleged discharge as well as the salary disparity.

II. Count II: Did Plaintiff Leave Fullerton Voluntarily or Was She Discharged?

The district court found that plaintiff left Fullerton's employ voluntarily. This finding may not be set aside on appeal "unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Fed.R.Civ.P. 52(a). "A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948).

In the instant case, the evidence centered on the meeting on September 26, 1978, at which plaintiff complained of the disparity in her salary vis-a-vis her male counterpart, James Carlin. Kenneth Riskind, then executive vice president and treasurer of Fullerton, Walter Krauss, Credit Manager and plaintiff's immediate superior, and Larry Isaac, Fullerton's Controller, were also present at the meeting. These four people testified to substantially the same discussion. In the critical phases of the conversation, Riskind explained that the salary disparity was the product of differing responsibilities. Plaintiff indicated that she was still unhappy with the differential. Riskind then said "Well, maybe perhaps you ought to look for work elsewhere." Plaintiff replied, "Are you telling me to leave?" Riskind responded that plaintiff was "pushing us" and that, "Well, what choice do we have?" "Maybe you'd better leave." Tr. 291-93; 428; 478-80. At that point, plaintiff broke Krauss' zebra plant, placed a portion of it on his desk and left the meeting. She then packed up her belongings and left Fullerton's offices before anyone else spoke to her about this subject. The district court concluded that plaintiff was unhappy and, essentially, left her job voluntarily because she could not accept the salary disparity.

Obviously, Riskind did not come out directly and tell plaintiff that she was fired. Phrasing an employee's discharge in terms like "maybe you'd better leave" is not sufficient, however, to insulate an employer from potential liability for wrongful discharge. Regardless of the words used, we must confront whether plaintiff left her job voluntarily. Despite the ambiguity present in the statements made at the meeting, all three Fullerton executives testified that plaintiff had been "terminated," a characterization inconsistent with a voluntary separation. Tr. 308, 528 (Krauss); Tr. 442 (Isaacs); Tr. 508 (Riskind). ²

The involuntary nature of plaintiff's termination was also confirmed in a letter Fullerton sent to plaintiff following her discharge. The letter stated:

(u)nder Illinois law we are obliged to offer you the opportunity to stay in our group insurance program for up to six weeks after leaving the company ....

Tr. 447. Attached to the letter was a copy of a form addressed to Fullerton's insurance company advising it that plaintiff was "involuntarily terminated as defined by Illinois P.A. 79-95, H.B. 761, from our plan of group accident and health insurance." Tr. 449. This form explicitly characterized plaintiff's separation as an "involuntary termination." In addition, the very fact that Fullerton sent a letter to plaintiff concerning the possibility of continued insurance benefits is highly probative. The Illinois law in question, Public Act 79-95, House Bill 761, Ill.Rev.Stat. ch. 73, § 979.1 (1975) (expired July 1, 1977), required such interim insurance benefits only when the employee had been involuntarily terminated.

In light of the foregoing evidence, we must determine that the district court's finding of fact was clearly erroneous and that plaintiff was, in fact, discharged. Instead of our proceeding to a determination whether that discharge was unlawful, however, we note that the claim was not specifically addressed by the district court, and we think that the better policy would be to remand this matter for initial consideration by the district court.

III. Count I: The Denial of a Fair Trial

Plaintiff challenges the adverse jury verdict on Count I, her Equal Pay Act claim, based upon several alleged deficiencies concerning the conduct of the trial and discovery. Plaintiff argues that these deficiencies, either separately or cumulatively, operated to deprive her of a fair trial. Plaintiff's burden is a heavy one for she must convince us that the trial was flawed in a manner that affected plaintiff's rights so that a refusal to grant a new trial is "inconsistent with substantial justice." Fed.R.Civ.P. 61; 28 U.S.C. § 2111 (1976).

A. Travel Vouchers

One of Fullerton's principal defenses at trial to plaintiff's Equal Pay claim was that plaintiff's job differed from that of her purportedly parallel male counterpart, James Carlin. Carlin, unlike plaintiff, travelled extensively to visit customers to evaluate their credit needs.

At trial, there was some dispute over the extent of Carlin's travel responsibilities. Walter Krauss was plaintiff's and Carlin's immediate supervisor and he testified to the critical facts concerning Carlin's travel. On direct examination, Krauss testified that Carlin travelled 25% to 35% of his time on the job while plaintiff did not travel in this capacity. Carlin travelled "in a training mode" and usually called on customers with Krauss.

On cross-examination, plaintiff's counsel went through all of Carlin's travel vouchers that had been produced in response to several discovery and pretrial requests. Plaintiff's counsel established that, in her view, only a few of those vouchers pertained to travel to call on customers concerning credit matters. Plaintiff's counsel thus tried to impeach Krauss by showing that his estimate of Carlin's time involved in travel (at 25% to 35%) was excessive.

On redirect, Krauss explained that the...