Welch v. University of Texas and Its Marine Science Institute, 80-2019

• Decision Date: 15 October 1981
• Docket Number: No. 80-2019,80-2019
• Citation: 659 F.2d 531
• Parties: 26 Fair Empl.Prac.Cas. 1725, 27 Empl. Prac. Dec. P 32,183 Mary WELCH, Plaintiff-Appellee-Cross Appellant, v. The UNIVERSITY OF TEXAS AND ITS MARINE SCIENCE INSTITUTE, Defendant- Appellant-Cross Appellee. Summary Calendar. . Unit A *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 531

659 F.2d 531

26 Fair Empl.Prac.Cas. 1725,

27 Empl. Prac. Dec. P 32,183

Mary WELCH, Plaintiff-Appellee-Cross Appellant, v. The UNIVERSITY OF TEXAS AND ITS MARINE SCIENCE INSTITUTE Defendant- Appellant-Cross Appellee.

No. 80-2019

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Unit A ^*

Oct. 15, 1981.

Lucius D. Bunton, Jr., Asst. Atty. Gen., Austin, Tex., for defendant-appellant-cross appellee.

Bill Blackburn, Corpus Christi, Tex., for plaintiff-appellee-cross appellant.

Appeals from the United States District Court for the Southern District of Texas.

Before GEE, GARZA and TATE, Circuit Judges.

GARZA, Circuit Judge:

Mary Welch brought this Title VII ¹ suit against her former employer, the University of Texas, alleging discriminatory discharge from employment. After a bench trial, the district court rendered judgment for the plaintiff. Defendant, the University of Texas, appeals the judgment on the grounds that the lower court erred in finding (1) plaintiff was forced to resign, (2) plaintiff was constructively discharged, and (3) defendant had a duty to inquire regarding the voluntary nature of plaintiff's resignation. Plaintiff cross-appeals charging error in the amount of damages and attorney fees ordered by the district court. Finding all contentions without merit, we affirm.

Mary Welch was hired by the University of Texas in 1973 as a research assistant in the Marine Science Institute at Port Aransas, Texas. She was employed at the laboratory until August 31, 1976, when she resigned employment as a result of occurrences which are the basis of this suit. After exhausting all administrative remedies, ² Welch filed suit against her former employer, alleging constructive discharge from employment in violation of Title VII of the Civil Rights Act of 1964. One year prior to her resignation, her supervisor informed her that when she received the doctorate degree on which she was working, she would be unable to work for him because he did not want a woman doctor in his employ. After she received the Ed.D. degree in 1976, he spoke with her again and after expressing his opinion that she was now overqualified for her job, demanded to know when she was leaving. In light of past dealings with this individual, Welch responded that since it was obvious he did not want a woman with a doctorate working for him, she would leave August 31st whether or not she located other employment.

When she resigned from the position of research assistant, Welch completed a separation from employment form as required by the University of Texas. On that form, she indicated that her termination was involuntary and clearly stated that she had been forced to resign by her supervisor. Despite the fact that evidence demonstrates her competence as an employee, neither her supervisor nor any member of the personnel department contacted her to deny this allegation. Furthermore, the director of personnel was aware of her belief that she was being terminated one month prior to her actual departure but did nothing to correct this perception.

In order to establish a prima facie case of sex discrimination under Title VII, plaintiff must first prove by a preponderance of the evidence that (i) she is a member of a protected class, (ii) she was qualified for the job from which she was discharged, (iii) she was discharged, and (iv) after the discharge the employer filled the position with a non-minority. ³ Marks v. Prattco, Inc., 607 F.2d 1153, 1155 (5th Cir. 1979) The district court found that plaintiff successfully presented a prima facie case of sex discrimination.

The defendant's first two points of appeal can be jointly discussed because they both dispute the district court's finding that Welch was constructively discharged. In holding that the plaintiff was constructively discharged, the district court utilized the standard set by Young v. Southwestern Savings Association, 509 F.2d 140 (5th Cir. 1975):

(I)f the employer deliberately makes conditions so intolerable that the employee is forced into an involuntary resignation, then the employer has encompassed a constructive discharge and is as liable for an illegal conduct involved therein as if it had formally discharged the aggrieved employee.

Id. at 144. The standard to be met in determining whether an employee was forced to resign was further clarified by Bourque v. Powell Electrical Manufacturing Co., 617 F.2d 61, 65 (5th Cir. 1980). A constructive discharge will be found where

working conditions would have been so difficult that a reasonable person in the employee's shoes would have felt compelled to resign.

Id., citing Alicea Rosado v. Garcia Santiago, 562 F.2d 114, 119 (1st Cir. 1977).

Upon review of the finding of constructive discharge, we must initially comment that a district court's findings of fact will not be set aside unless they are adjudged "clearly erroneous." As the Fifth Circuit recently reiterated in Wilkins v University of Houston, 654 F.2d 388 (5th Cir. 1981), the appellate court is required to make an independent determination of the ultimate fact issue of discrimination in Title VII actions, but is bound by subsidiary fact determinations which are not clearly erroneous. Id. at 390-391. The findings of the district court that Welch's supervisor told her that as a woman doctor she would be unable to work for him and demanded to know, once she had received her Ed.D., when she would leave her employment are supported by the record and do not leave this court with the conviction that a mistake has been committed. Therefore, the district court's finding of constructive discharge must be affirmed. ⁴ A reasonable person would certainly resign employment after being ordered to leave.

Once Welch successfully presented a prima facie case of discrimination, the burden shifted to defendant to "articulate some legitimate, nondiscriminatory reason for the employee's rejection." McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). Although Texas Department of Community Affairs v. Burdine, --- U.S. ----, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), announced after the district court decision in this case, changed the prior Fifth Circuit rule and held that it is not the burden of persuasion which shifts but rather an intermediate evidentiary burden, the district court result remains valid. Defendant satisfies this Burdine requirement if his "evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff." Id. --- U.S. at ----, 101 S.Ct. at 1094, 67 L.Ed.2d at 216. In response to plaintiff's sex discrimination claim, defendant asserted that plaintiff departed voluntarily. In support of this assertion, defendant presented evidence that Welch desired to do cancer research, an endeavor not possible at the Marine Science Institute. Although this explanation initially appears satisfactory to shift the burden back to plaintiff to provide further proof that this reason was a mere pretext for discrimination, Welch's prima...