Smith v. Southwestern Bell Telephone, Civ. No. LR-C-88-142.

• Decision Date: 22 September 1989
• Docket Number: Civ. No. LR-C-88-142.
• Citation: 724 F. Supp. 630
• Parties: Ann D. SMITH, Plaintiff, v. SOUTHWESTERN BELL TELEPHONE, Defendant.
• Court: U.S. District Court — Eastern District of Arkansas

724 F. Supp. 630

Ann D. SMITH, Plaintiff, v. SOUTHWESTERN BELL TELEPHONE, Defendant.

Civ. No. LR-C-88-142.

United States District Court, E.D. Arkansas, W.D.

September 22, 1989.

John S. Choate, McHenry, Choate and Hartsfield, Little Rock, Ark., for plaintiff.

Martha M. Adcock, Little Rock, Ark., for defendant.

MEMORANDUM OPINION

ROY, District Judge.

Trial in three consolidated actions was held on April 10 and 11, 1989, post-trial briefs have been received, and the matter is now ripe for determination.

Plaintiff began her employment with defendant in 1974. She resigned effective September 30, 1986. After her resignation, plaintiff filed three separate lawsuits in federal district court alleging she had been discriminated against on the basis of her sex and that defendant had retaliated against her for filing an EEOC charge. These were consolidated into one action. The Court has jurisdiction of this case pursuant to 42 U.S.C. § 2000e-5.

Both parties agree that plaintiffs' claims can be divided into three categories: (1) failure to promote; (2) retaliation for filing an EEOC charge; and (3) that the culmination of the retaliation was that she was forced to terminate her employment.

Before addressing these issues, the Court notes that plaintiff failed to present evidence regarding several allegations which were included in the original complaints filed with the Court. After plaintiff completed her case, defendant moved for a directed verdict and plaintiff's counsel agreed that evidence had not been presented on some of those allegations. The Court struck those issues from further consideration. Those specific issues include: (1) Plaintiff alleged that Southwestern Bell retaliated against plaintiff by failing to publish her photograph taken with the Governor in a company publication; (2) plaintiff alleged that one of Southwestern Bell's departments was staffed predominantly by white males, and the Company had reduced the number of females in that department. Further, plaintiff alleged that the Company discriminated against females as a class.

In her complaint, plaintiff alleged that Southwestern Bell retaliated against her by giving her a performance appraisal and potential appraisal on her last day of work. Defendant moved for a directed verdict on this issue at the close of plaintiff's case, but counsel did not agree to dismissal. The Court has reviewed the record and found no testimony introduced by plaintiff regarding this issue, and it was not addressed in plaintiff's post hearing brief. Even though no evidence was introduced by the plaintiff on this issue, defendant did introduce relevant testimony through Deborah Heritage. Ms. Heritage stated that there were three reasons plaintiff was given the appraisals on her last day: (1) Plaintiff was leaving with vested rights, which meant she could be re-employed. Defendant therefore prepared a re-employability form which required a current up-to-date assessment of plaintiff's performance. Plaintiff was one of three managers that left the division that had vested rights, and all three of them had appraisals made out on them before they left; (2) Defendant had made a commitment to plaintiff to reassess her potential, and was abiding by that commitment, and (3) plaintiff's supervisor, Jannette Burke, was moving to a new position in forecasting, and Heritage asked Burke to update all of her personnel records before she left. All of the first-level managers who reported to Burke had a new appraisal prepared. The Court finds that the allegation regarding the performance appraisal and potential appraisal given on her last day of work should be dismissed since plaintiff did not meet her burden of proof.

All of the plaintiff's claims of sex discrimination and retaliation can be analyzed as disparate treatment claims. Disparate treatment claims turn on whether the employer intentionally treated some employees less favorably than others because of race, color, religion, sex, or national origin. Craik v. Minnesota State University Board, 731 F.2d 465, 468-469 (8th Cir. 1984).

A case proceeding on the theory of disparate treatment has three phases. First, plaintiff must establish a prima facie case; second, defendant may rebut that prima facie case by offering a legitimate, nondiscriminatory reason for its actions; and third, plaintiff is given the opportunity to prove that defendant's rebuttal is a pretext to cover a discriminatory move. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Johnson v. Bunny Bread Co., 646 F.2d 1250 (8th Cir.1981).

In order to establish a prima facie case, a plaintiff must meet the requirements set forth in the seminal case of McDonnell Douglas Corp. v. Green, supra. The criteria established in McDonnell Douglas must be adapted to meet the factual situations. In a promotion case, the plaintiff must establish that (1) she was a member of a protected class under Title VII; (2) she applied for and was qualified for the position; (3) despite her qualifications she was denied promotion in favor of a male. Pierce v. Marsh, 859 F.2d 601 (8th Cir.1988); Hayes v. Thomas, 851 F.2d 1101 (8th Cir.1988); McDonnell Douglas, supra.

The basis for plaintiff's failure to promote claim is that her name was removed from the candidate list for promotion without her being aware of it until later, and that promotions to second level positions were given to three males, identified as John Andrews, Greg Gilbert and Bart Hindley. Plaintiff was unable to recall the positions these men filled, but testified that she was qualified for them. Plaintiff was unable to give a description or job duties for each man's position, and was therefore unable to tell how she was qualified to perform the duties. It is essential to plaintiff's proof of a prima facie case that she was qualified for the positions. Plaintiff did go through the appraisal of management potential forms that were prepared on Andrews, Gilbert and Hindley, and attempted to make comparisons with her appraisal. However, there was no explanation offered by plaintiff of how those appraisals of management potential were used or applied to these promotions.

Even though the plaintiff did not present sufficient evidence for the Court to conclude that she was qualified for the three positions, testimony from defendant's witness, Mr. William Griep, indicated that plaintiff may have been minimally qualified for the positions held by Andrews and Gilbert. The Court finds, however, as will be discussed later, that plaintiff failed to prove she was qualified for the position held by Hindley. Based upon Mr. Griep's testimony, the Court will assume the plaintiff met her burden of proving a prima facie case regarding the failure to promote issue as to those positions held by Gilbert and Andrews. However, the Court also finds that Southwestern Bell offered a legitimate, nondiscriminatory reason for promoting Andrews and Gilbert. To articulate a legitimate nondiscriminatory business reason, an employer must present admissible evidence sufficient to raise a genuine factual issue as to whether plaintiff was discriminated against. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 257, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981). Proof that the candidate selected was better qualified than the plaintiff is a legitimate nondiscriminatory reason for the employer's action. See Pierce v. Marsh, supra, 859 F.2d at 603.

Mr. William A. Griep, General Manager of Network and Distribution Services for

Southwestern Bell, testified as to the specific qualifications of Andrews, Gilbert and Hindley, and the duties of their positions. Each man was promoted under Griep's supervision. According to Mr. Griep, Mr. Hindley received a promotion into a second level position with the title staff specialist, OSP engineering. Mr. Hindley had done outside plant engineering work for about 13 years total, and the position to which he was promoted was a position where he would review the work on the outside plant engineers. He would be required to review engineering plans and pass judgment on whether good design criteria had been followed as far as providing the technical service. He would also look at the financial impact, decide whether the design was cost effective and whether it was the best way to design a job. He would review all of the engineering plans for the State of Arkansas that flowed in for him to take a look at from the field engineers. Mr. Griep also stated that he believed Mr. Hindley had an architectural degree. In his former position, Mr. Hindley would design the outside plant and was also responsible for planning and making the determination when a new engineering job had to be drawn up.

On the other hand, Mr. Griep stated that plaintiff's experience was all on the construction side of the business — she had nothing to do with the design and had no engineering experience whatsoever. Mr. Griep testified and the record reflects that plaintiff does not have a college degree. Plaintiff argues that she had engineering experience by virtue of her job title of Network Staff Supervisor, Outside Plant Engineering. However, Mr. Griep offered unrefuted testimony that the job title was given to many positions which did not have anything to do with engineering. Ms. Smith had no experience drawing engineering plans as did Mr. Hindley and it is clear she was not qualified for the position held by Hindley.

In December 1984 Mr. Andrews received a promotion to the position of Manager OSP maintenance, outside plant maintenance. In May of 1985, he was moved to a test center position and Mr. Gilbert took Andrews' place as Manager OSP maintenance, Outside Plant Maintenance. Mr. Griep stated that both of these men began their careers in the early 1970's in installation and maintenance work. After five...