Box v. A & P Tea Co.

SWYGERT, Senior Circuit Judge,

dissenting.

I would reverse both orders of summary judgment. Box and Brockhouse have satisfied their duty under Fed.R.Civ.P. 56(e) to go beyond bare allegations of sex discrimination and to come forward with “specific facts showing that there is a genuine issue for trial.”

The majority reasons that summary judgment against Box’s sex discrimination is appropriate because she fails to come forward with specific facts that indicate she can establish one element of a prima facie case of disparate treatment with respect to promotion: that she applied for an available position. The majority acknowledges that Box’s deposition and affidavit tend to establish that she repeatedly requested training for and promotion to any position above cashier, including that of assistant manager.

Perhaps this indicates, as the majority believes, that Box’s interest specifically in the assistant manager position was “vague,” and therefore not a bona fide application for employment. On the other hand, Box’s desire for any kind of promotion may also be indicative of the pervasiveness of discrimination at A & P and the desperation that is bred when an employer channels the vast majority of its female employees into low-paying jobs like that of cashier and offers no formal system of promotion. See Reed v. Lockheed Aircraft Corp., 613 F.2d 757, 761-62 (9th Cir.1980) (no need to show that plaintiff applied for promotion where such an application would be futile). It is enough that Box has gone beyond her pleadings to show some evidence indicating that she requested promotion to assistant manager. Cf. Munson v. Friske, 754 F.2d 683, 690 (7th Cir.1985) (summary judgment on questions of motive and intent not proper unless party resisting motion “presents no indications of motive and intent supportive of his position”).

The majority also reasons that Box must show which one of the twenty-seven promotions to assistant manager granted to others during her tenure she desired. In other words, it would be unlawful to deny Box promotion on the basis of sex in one specific instance; but it was entirely appropriate to pass her over for promotion for the same impermissible reason twenty-seven times. Suffice to say that Box was interested in all twenty-seven promotions and was denied each one. Furthermore, the record evidence tends to show that an employee at A & P simply did not apply to any specific promotion at any specific store. Rather, an employee was “noticed” by supervisory personnel who toured the stores and was then approached when an assistant manager position became available somewhere in the metropolitan area. See Appellant’s Appendix at 206, 209-10, 214 (reprinting deposition of John Rogers).

As for Brockhouse, the majority finds summary judgment appropriate because of her failure to come forward with specific facts to show that her discharge for cash overages was pretextual. Even if this is true, summary judgment is still improper because Brockhouse does not confine her sex discrimination claims to the circumstances surrounding her discharge. Like Box, Brockhouse alleges that A & P had *1381 “limited the job opportunities available to women through discrimination in terms of job assignment, promotion, and transfer policies” throughout her tenure. Appellant’s Appendix at 30 (reprinting first amended complaint of Brockhouse). According to her deposition, Brockhouse requested reassignment to any higher position with longer hours, A & P had no formal application system, and A & P promoted a male stockman to assistant manager in her store. Appellant’s Appendix at 80, 99-100. Thus, even if Brockhouse’s discriminatory discharge claim is unsupported, her claim of discriminatory denial of promotion during the years prior to her discharge is supported by sufficient facts to survive a summary judgment motion.

In any event, I disagree with the majority’s decision to dismiss Brockhouse’s claim of pretextual discharge. Brockhouse’s theory of recovery is that A & P tended to subject women to harsher discipline than men. She cites as an example A & P’s failure to discipline Lance Gardner, a male employee, for the same kind of cash discrepancies. The majority reasons, however, that Gardner is not a similarly situated employee because he did not work full-time as a cashier. Yet that is precisely the point. Brockhouse testifies in her deposition that, with one exception, there were no full-time male cashiers in her store. Appellant’s Appendix at 86-87. The position was considered a female job, and men were channeled into other, more remunerative jobs. Thus, in the Chicago metropolitan area, 820 of the 892 utility clerks were male, 90 of the 97 dairy heads were male, 139 of the 139 produce heads were male, 180 of the 183 assistant managers were male, and 132 of the 137 store managers were male. Appellant’s Appendix at 132 (reprinting A & P documents). Generally, women became “grocery clerks” or “deli clerks.” See id. The one supervisory position dominated by women was that of head cashier. See id.

In short, comparison between similarly situated employees of the opposite sex are difficult only because of A & P’s practice of segregating jobs by sex. Guidance out of this' quandary can be found in the statute itself. The statute states that “[i]t shall be an unlawful employment practice for an employer ... to limit, segregate, or classify his employees ... in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s ... sex.” 42 U.S.C. § 2000e-2(a)(2) (1982). Thus, the statute prohibits in sweeping terms segregation by sex that adversely affects the individual employee. It says nothing about “similarly situated” employees or the elements of a prima facie case; such concepts are judicially created tools of analysis, not the ends of the statute. See Jayasinghe v. Bethlehem Steel Corp., 760 F.2d 132, 136 (7th Cir.1985). Where a peculiar set of facts renders use of one of these tools inapt, the tool, not the statute, must give way. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 , 802 n. 13, 93 S.Ct. 1817 , 1824 n. 13, 36 L.Ed.2d 668 (1973) (elements of prima facie proof may vary in different settings).

Where a plaintiff can point to specific evidence of sexual segregation and where the only comparisons between treatment of the different sexes possible under the circumstances indicate disparate treatment, then a plaintiff is entitled to at least a trial on the merits. Substantial anecdotal and statistical evidence supports Brockhouse’s claim of sexual segregation, and the comparison between her and a part-time male cashier indicates that she was subjected to harsher discipline than the comparable male.

Finally, I wish to voice my concern about two separate aspects of this case. First, I deplore the increasing use of summary judgment when the posture of the case calls for a trial. Pressures allegedly caused by heavy caseloads ought not be the excuse for violating both the spirit and the literal terms of Fed.R.Civ.P. 56.

Second, it is with regret that I am constrained to say that the disposition of this case seems to reflect a recent trend in the *1382 federal courts to blunt the salutary purpose of Title VII of the Civil Rights Acts of 1964. That purpose was clearly stated by Chief Justice Burger in Griggs v. Duke Power Co., 401 U.S. 424, 431 , 91 S.Ct. 849, 853 , 28 L.Ed.2d 158 (1970).

Discriminatory preference for any group, minority or majority, is precisely and only what Congress has proscribed. What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification.

Sex and race discrimination with respect to employment opportunities and promotions should be eliminated “root and branch,” cf. Green v. County School Board, 391 U.S. 430, 438 , 88 S.Ct. 1689, 1694 , 20 L.Ed.2d 716 (1967), and not be left to fester and poison the ideal of equal justice for all segments of our society.