Stone v. D. A. & S. Oil Well Servicing, Inc., 78-1459
| Decision Date | 23 June 1980 |
| Docket Number | No. 78-1459,78-1459 |
| Citation | 624 F.2d 142 |
| Parties | 23 Fair Empl.Prac.Cas. 157, 23 Empl. Prac. Dec. P 31,047 Yolica Y. M. STONE, Plaintiff-Appellee, v. D. A. & S. OIL WELL SERVICING, INC., Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Leonard L. Pickering, Albuquerque, N. M. (Wayne E. Bingham and J. Carter Clary, Albuquerque, N. M., with him on brief), of Pickering & Bingham, Albuquerque, N. M., for defendant-appellant.
Ann Yalman, Santa Fe, N. M. (Donald D. Becker, Albuquerque, N. M., with her on brief), for plaintiff-appellee.
Before SETH, Chief Judge, and HOLLOWAY and McKAY, Circuit Judges.
In this Title VII action, the district court found that plaintiff Stone had been denied employment by defendant D. A. & S. Oil Well Servicing, Inc. (Company), "for the sole reason that she was a woman." Record, vol. 2, at 283. On appeal, the Company challenges the finding of discrimination and, in the alternative, the measure of backpay awarded Stone.
Stone sought employment as a "floorhand," a laborer's position traditionally filled by men in the New Mexico oil industry. Floorhand positions at the Company are subject to high turnover, with openings developing nearly every day. As a result, it is likely that a willing, qualified applicant who reports for work daily at 6:00 a.m. will quickly secure permanent, full-time employment.
On September 29, 1975, Stone visited the Hobbs, New Mexico, yard of the Company looking for such a job. Company dispatcher Compton, who generally hired floorhands, told her she was too late for that day's hiring. He somewhat reluctantly detailed the hiring procedures and suggested that Stone call him that evening to learn of the next day's possibilities. However, Compton also took the unusual step of referring Stone to Company Vice President Bliss. According to Stone's testimony, Bliss "told me that he would rather not see a woman work out in the field, that I would be better off at home in the kitchen raising babies, that as long as he was working for D. A. & S. he would never ever see a woman working in the field." Record, vol. 2, at 56. Bliss concluded the interview by throwing Stone's application across the desk at her. Id.
Despite the Bliss interview, Stone called Compton that evening to check on her chances for the next day. Stone testified that Compton told her "to get my clothes, my greasers ready and be ready to go out any morning to a location, and if it was up to him he would hire me in a minute, right there." Record, vol. 2, at 58 (emphasis added). The next morning, rather than reporting to the yard, Stone called the Company and was told by an unidentified person "not to come out, that I was not needed." Id. Stone had no further dealings with the Company.
In November and December Stone worked part-time as a floorhand for other companies. On December 31, she voluntarily left New Mexico with her husband to seek employment in Colorado. At the new location Stone worked only part-time until March 14, 1976, when she secured permanent, full-time employment. The district court awarded backpay from September 29, 1975, to March 14, 1976, and then deducted amounts actually earned by Stone during this period.
The Company raises two basic issues on appeal. First, the Company urges that certain uncontradicted testimony precludes a finding of discrimination. Second, the Company believes that, if the finding of discrimination was proper, the district court erred in awarding backpay both during the period of part-time New Mexico employment and after December 31, 1975, when Stone quit her part-time job and moved from New Mexico.
The Company argues that Compton, in his evening telephone conversation with Stone, clearly offered her a position, and only her own failure to report was responsible for her unemployment. Furthermore, in the Company's view, the unidentified speaker contacted by Stone's early morning telephone call cannot, as a matter of basic agency law, be considered to have spoken for the Company. 1
The early morning call, standing alone, would raise troublesome agency questions. However, we do not believe that the district court's decision is dependent on that mysterious rejection. The court found that Bliss rejected the application and "made it clear to (Stone) that she would not be hired for a floorhand's position for the sole reason that she was a woman." Record, vol. 2, at 283. As reported by Stone, Compton's "offer" was contingent Stone would be hired "if it was up to him," id. at 58 and merely reinforces the importance of the meeting with Bliss. In no way does the conversation with Compton present uncontroverted evidence of a job offer. We are bound to review the factual findings under a ...
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