Wilkins v. University of Houston

• Decision Date: 28 August 1981
• Docket Number: No. 79-2817,79-2817
• Citation: 654 F.2d 388
• Parties: 26 Fair Empl.Prac.Cas. 1230, 26 Empl. Prac. Dec. P 32,101 Jeanine W. WILKINS and Sharon D. Hill, et al., Plaintiffs-Appellants, v. The UNIVERSITY OF HOUSTON, et al., Defendants-Appellees. . Unit A
• Court: U.S. Court of Appeals — Fifth Circuit

Page 388

654 F.2d 388

26 Fair Empl.Prac.Cas. 1230,

26 Empl. Prac. Dec. P 32,101

Jeanine W. WILKINS and Sharon D. Hill, et al., Plaintiffs-Appellants, v. The UNIVERSITY OF HOUSTON, et al., Defendants-Appellees.

No. 79-2817.

United States Court of Appeals, Fifth Circuit.

Unit A

Aug. 28, 1981.

Rehearing and Rehearing En Banc Denied Dec. 7, 1981.

See 662 F.2d 1156.

Carol Nelkin, Houston, Tex., for plaintiffs-appellants.

Lonny Zwiener, Asst. Atty. Gen., Austin, Tex., for defendants-appellees.

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

Before BROWN, COLEMAN and GEE, Circuit Judges.

GEE, Circuit Judge:

Jeanine Wilkins and Sharon Hill, employees of the University of Houston, brought this Title VII ¹ suit against the university and KUHT-TV on behalf of themselves and a class of women, alleging that the university discriminated against women in a variety of its employment practices. The class certified by the district court included all past, present, and future female employees on the faculty or in a professional or administrative staff position, as well as unsuccessful female applicants for such employment. ² After a trial on the merits, the district court rendered judgment for the university on both the individual and class claims. As to the claim that the university discriminated against its women employees in the academic division of the professional and administrative staff with respect to compensation, we reverse the district court's judgment for the defendants. 471 F.Supp. 1054. In all other respects, we affirm.

I. STANDARD OF REVIEW

The standard by which we review a factual finding of a district court depends upon whether the finding at issue is one of ultimate fact or subsidiary fact. The ultimate fact at issue in a Title VII action is whether the defendant unlawfully discriminated against the plaintiff. That finding is not subject to the clearly erroneous standard of review; rather, the reviewing court must make an independent determination of the ultimate fact issue of discrimination. In doing so, however, the appellate court is bound by the trial court's findings of subsidiary facts that are not clearly erroneous. Danner v. United States Civil Service Commission, 635 F.2d 427 (5th Cir. 1981).

II. INDIVIDUAL CLAIMS

A. Jeanine Wilkins.

Ms. Wilkins was employed by KUHT-TV ("KUHT"), an auxiliary enterprise of the University of Houston, in August of 1973. In April of 1974, Ms. Wilkins notified the university that she was terminating her employment effective July 31, 1974. Plaintiff Wilkins claims that she was constructively discharged by defendants in violation of her Title VII rights. As we recently reiterated, a "(c)onstructive discharge occurs when the employer deliberately makes an employee's working conditions so intolerable that the employee is forced into an involuntary resignation." Pittman v. Hattiesburg Municipal Separate School District, 644 F.2d 1071, 1077 (5th Cir. 1981). The question is not whether the employer's purpose was to force the employee to resign; rather, the issue is whether "a reasonable person in the employee's position and circumstances would have felt compelled to resign." Id. It is clear from our review of the record that Ms. Wilkins was not constructively discharged by sexually discriminatory employment practices committed by defendants.

When Ms. Wilkins was hired, the film production unit at KUHT had been virtually shut down for more than a year, and efforts were underway to revitalize the department. This situation, and the small size of the station's film operation, dictated that employees of the department perform a variety of tasks. While Ms. Wilkins replaced the station's only film editor, it is Shortly after Ms. Wilkins was hired, the film unit began working on a mass transit film with a rather short deadline entitled "Getting There." While plaintiff testified that she did not edit the major portion of this film, the trial court found on the basis of substantial evidence that she edited some 97 percent of it. The remaining segment of the film was edited by a Mr. Brian Beasley, a film editor who had worked with Mr. Cousins on other films not related to KUHT. This 3 percent segment involved cutting the film to music, a process that is somewhat more difficult than the typical editing of film. Beasley, who had more than ten years' experience as a film editor and who was then employed elsewhere, edited the film on a Saturday on a voluntary, noncompensatory basis apparently as a favor to Cousins.

undisputed that there was not nearly enough film editing to be done to justify the employment of a full-time film editor and that her duties were to extend considerably beyond merely editing films. In fact, both Jim Bauer, the station manager, and Bob Cousins, a producer-director at KUHT and Ms. Wilkins' immediate supervisor, testified that Ms. Wilkins expressed a strong desire to engage in a wide variety of activities at the station and that their decision to hire her was based in part on that desire.

The mass transit film was finished in late September or early October 1973. From that date until at least the following January, Beasley was completely uninvolved with KUHT. According to Ms. Wilkins, she learned in January 1974 that Beasley was going to be hired on a free-lance basis to edit a film the station was going to make for Rice University later in the spring. Plaintiff testified that the station's decision to use Beasley on the Rice film conceded by all to be the most important project that had come into the film production unit was a major factor in her decision to terminate her employment at KUHT. Her Title VII claim is that Cousins could not accept women working with him in positions of authority; that this attitude was reflected not only in the decision to use Beasley on the Rice film but also in the fact that Cousins assigned various clerical, routine, and relatively menial tasks to Wilkins; and that this situation made working conditions so intolerable that Wilkins was forced into an involuntary resignation. We reject this argument for a number of reasons.

First, it is clear that Beasley had considerably more experience and skill as a film editor than did Wilkins. Cousins testified that Beasley had been editing films for some twenty to twenty-two years and that he (Cousins) considered Beasley "probably the best film editor in Houston and the southwest." Cousins and Beasley had worked together on films for the National Aeronautics and Space Administration; from that experience Cousins had developed "every confidence" in Beasley as a film editor. Producing and directing films is a creative process the ultimate success of which is highly dependent upon the work of the film editor, with whom the producer-director must work closely. Cousins testified that his decision to hire Beasley to edit the Rice film was based on his belief that Beasley was an excellent editor and his desire to make certain that the very important Rice film was produced and edited properly. While Cousins stated that Wilkins had competently edited the other films to which she had been assigned, he also testified that her limited experience editing films prior to coming to KUHT Wilkins had one year of film experience in which she had edited two films was a factor in his decision to hire Beasley for the Rice film. Cousins' decision to use the best possible people on the Rice film was also reflected in his hiring a free-lance cameraman to shoot the film rather than using the station's male staff cameraman. We agree with the district judge's finding that Cousins' decision to hire Beasley to edit the Rice film, rather than using Wilkins, was not sexually discriminatory.

Other factors supporting our decision that Wilkins was not constructively discharged include the following: Wilkins was hired to perform a variety of tasks other than editing films. While she testified that she edited, partially or wholly, at least seven

films, the evidence also indicates that she was involved in researching film ideas, writing proposals, producing a film, and assisting in the production of several other films. At the time the Rice film was being produced, KUHT was involved in its annual auction from which it derived a major portion of its operating funds for the next year. Wilkins was assigned to produce and edit a number of short commercial films for the auction. While the Rice film may have been the station's most important film project from a creative standpoint, the auction generated more than forty times as much revenue for the station than did the Rice film. Finally, we note that near the beginning of 1974 Ms. Wilkins told Cousins that her salary was too low; soon thereafter she began interviewing for other employment. As there is no serious contention that Wilkins was discriminated against with respect to pay, the effect of her dissatisfaction with her salary on her decision to resign indicates a reason other than sexual discrimination for that decision. Our review of the record indicates that Wilkins was assigned a variety of tasks of varying degrees of importance and difficulty at KUHT and that sexually discriminatory practices committed by the station, if any, did not make her working conditions so intolerable as to force her into an involuntary resignation.

B. Sharon Hill.

In late 1973, Ms. Hill worked for the university in a computer laboratory that serviced the College of Engineering by providing computer programming and access to computers primarily to faculty and students within the college. At that time David Lowell was the lab employee with technical proficiency in the computer services offered by the lab. Ms. Hill's duties involved such tasks as scheduling users' access to the computers, billing, budgeting, hiring and supervising student computer operators, and ordering supplies; the extent of her supervisory authority over Lowell is the subject of...