Smith v. Texas Department of Water Resources

POLITZ, Circuit Judge,

dissenting:

Because I am persuaded beyond peradventure that the district court should be reversed, I respectfully dissent. The treatment accorded Victoria Smith by Charles Baskin, Division Director, was undeniably sexually based and motivated. I understand that by adopting Title VII Congress acted to proscribe that sort of gender-based discrimination towards employees. Notwithstanding, today we have permitted such.

The majority correctly notes that the “clearly erroneous” standard restrains a reviewing court from reversing the trier of fact “simply because it is convinced that it would have decided the case differently.” Anderson v. Bessemer City, 470 U.S. 564, 573 , 105 S.Ct. 1504, 1511 , 84 L.Ed.2d 518, 528 (1985). But the courts of appeals have not been made into courts of legal error only. To do so would require a rule change. Fed.R.Civ.P. 52(a).

The time-honored standard teaches that “[a] finding is ‘clearly erroneous’ when although there is evidence to support it, the *368 reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395 , 68 S.Ct. 525, 542 , 92 L.Ed. 746, 766 (1948). Anderson teaches further, “[w]here there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” Anderson, 470 U.S. at 574 , 105 S.Ct. at 1512 , 84 L.Ed.2d at 528 . But Anderson does not supplant our duty to conduct “a comprehensive review of the entire record,” Id., 470 U.S. at 581 , 105 S.Ct. at 1515 , 84 L.Ed.2d at 533 (Powell, J., concurring); Parker v. Mississippi State Department of Public Welfare, 811 F.2d 925 (5th Cir.1987). As we recently stated in Brock v. Mr. W Fireworks, Inc., 814 F.2d 1042, 1044 (5th Cir.1987), “Congress surely did not intend Rule 52(a) to constrict as a Victorian corset, binding the courts of appeals to the findings of the district court absent a careful and fitting examination.”

Victoria Smith was a secretary. She was a good secretary but she had higher aspirations, as she viewed them, and desired to move into the technical field. She saw an opening for an Engineering Aide III and applied for the job, even though it meant a substantial pay cut. Before accepting the job, she made certain that it was a technical job with no secretarial-type duties. She was assured of that.

She performed her work well. Her first-line supervisor, Gustav “Emil” Blomquist, testified that she was a fine employee. Her second-line supervisor, engineer Bobbie Ray Critendon, gave her high marks, finding her to be a fast study who was “becoming an outstanding employee” in her new, technical assignment as an Engineering Aide III in the Topographic Mapping Section.

Notwithstanding the assurances given Victoria Smith when she transferred jobs at a pay cut, and despite the fact that her job description called only for non-teehnical duties, Charles Baskin decided that she would, on a permanent basis, relieve his secretary in the morning and again in the afternoon. To this we would add, and whenever else she might be needed, if the past was any indication of the future. Ms. Smith was understandably chagrined and reluctant. Her immediate supervisor was opposed to the assignment; he neither recommended that she accept it nor did he order it. The Personnel Director, Gary L. Otting, found the assignment inconsistent with her job description.

Director Baskin worked his will. He decreed that Victoria Smith would either do the secretarial duties he assigned or she would be fired. The entire process was prestructured. On January 17 Smith was given a memo from Baskin telling her to report for secretarial relief duties on January 20, “or else.” Simultaneously, on January 17 the papers terminating Smith were prepared and signed by the Personnel Director, Baskin, and Charles E. Nemir, Executive Director of the Texas Department of Water Resources. Ms. Smith was in fact discharged before the time arrived for her to perform.

The defendant offered no witnesses although the pretrial order lists Baskin as a witness. He was not called nor did he testify by deposition. One has to ask why. He was the person responsible. Methinks his silence indicates that Baskin had no non-gender-based reason for his action and his superiors well knew it.

Did defendant articulate a legitimate business reason? Was there really an employee RIF or other crunch requiring people to pull in their belts? If so, this record doesn’t show it. The trial court and majority conclude that Baskin’s demand on Victoria Smith was just reflective of hard times. But was it?

According to uncontradicted testimony, only two people were ever taken out of the Topographic Mapping Section and made to relieve Baskin’s personal secretary — Victoria Smith and her female predecessor, Amy Nevarez. Ms. Nevarez, like Ms. Smith, was hired as an Engineering Aide III in the Topographic Mapping Section. Unlike Ms. Smith, Amy Nevarez had no secretarial skills. Unable to type, she had to “hunt and peck” to complete labels for the maps. Nonetheless, she was a female, and appar *369 ently because Baskin believed females are supposed to be secretaries, he ordered her to relieve his secretary.

The assignment for Ms. Nevarez lasted three to four months, apparently until she transferred to another division. The time was originally supposed to be 30 minutes in the morning and 30 minutes in the afternoon. That didn’t last long, as Nevarez testified:

I was told it was going to be 30 minutes in the morning and 30 minutes in the afternoon, then it would be an hour, and then it got to be days____ The ladies would go away on vacation and I would stay there for three days, whole days.

Most telling of all, no male Engineering Aide III was ever called to relieve Baskin’s secretary. Even if hard times did require a fill-in from the technical staff, no male, even one who could type, was ever considered for the job. In the myopic, gender-prejudiced eye of division director Baskin, being a secretary is not a male duty, it is exclusively in the domain of the ladies.

The trial court found that males routinely relieved Baskin’s secretary. The record lends no support to that finding. Bill Caskey was Baskin’s assistant. Caskey’s desk was next to Baskin’s secretary; in fact she was secretary for both of them. Caskey performed the “routine” male relief work that the trial court found so significant. It appears that on some afternoons when Baskin’s secretary left the office for a few minutes around 4:30 p.m. to take late mail to the mailroom, Caskey answered the telephone if it rang. Bully for Caskey!

I am not persuaded that the defendant articulated a legitimate business reason for Baskin's actions, but even if it did, the evidence overwhelms that it was pretextual. I read this record as reflecting a classic example of “backing and filling.”

Smith was discriminated against because of her sex. She was ordered to do a job because of her sex. She was reluctant, but never specifically declined. Each time she was approached she demurred and asked for more time to think about it. Nonetheless she was fired, ostensibly for insubordination. Moreover, despite this “insubordination,” remarkably her record was marked that she was eligible for rehiring. The Personnel Director knew of no other person who was ever fired who was also marked for rehire by the agency, nor did the Personnel Director know of any other termination where, as here, the first-line and second-line supervisors were not involved in the decision.

Baskin is no longer with the agency. Dr. Tommy Ray Knowles is the new Division Director. His secretary is relieved daily by other secretaries. No technical people, male or female, are pulled from their jobs. This demonstrates to me the clearly erroneous nature of the trial court’s conclusion that “Ms. Smith failed to present any evidence establishing that her selection as the person to do the secretarial relief work in Mr. Baskin’s office was based on her sex.”

Moreover, the trial court erred in its application of Title VII, finding that Baskin could discriminate against Smith simply because she was a new, “probationary," employee. Curiously, the court found that, “[h]ad Defendant desired to discriminate against women, it simply would not have hired Plaintiff.” This ignores the statute and vast body of easelaw recognizing discriminatory acts and practices outside the hiring process. 42 U.S.C. § 20006-2 . 1

The evidence is undeniable that because of her sex Baskin assigned the secretarial duties to Smith, rather than any other technical employee. This violates Title VII. See Futran v. RING Radio Co., 501 F.Supp. 734, 741 (N.D.Ga.1980) (Radio station violated Title VII by asking female talk show host “to add to her job essentially clerical duties that males were not similarly requested to perform and in the retaliatory termination of her employment when she protested the assignment of clerical duties as discriminatory.”)

*370 The defendant would make much of the fact that Smith was discharged because she refused an assignment. Counsel argued that she should have worked as ordered and then complained. That argument misperceives Title VII. The fact that Smith did not cheerfully accede to improper demands is of no moment because Title VII proscribes the demands themselves. Moreover, Smith was protected under the opposition clause of section 704(a), 42 U.S.C. § 2000e-3(a), which proscribes retaliation against employees who oppose their employer’s unlawful employment practices:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice by this title____

See Payne v. McLemore’s Wholesale & Retail Stores, 654 F.2d 1130 (5th Cir.1981), cert. denied, 455 U.S. 1000 , 102 S.Ct. 1630 , 71 L.Ed.2d 866 (1982); Armstrong v. Index Journal Co., 647 F.2d 441, 448 (4th Cir.1981). In Payne we concluded that a plaintiff claiming opposition need not prove that the practice she opposed was indeed unlawful, just that plaintiff had a reasonable belief that it was unlawful. An employee who resists unlawful conduct may not be sanctioned for that resistance. Congress apparently thought that to permit such would turn Title VII on its head. I totally agree.

The majority distinguishes this case from Payne and Armstrong by claiming that Baskin fired Smith because she rejected efforts to “seek a solution to the problem,” and not because she complained of his discriminatory acts in forcing her to accept secretarial duties. The proffered solution consisted of a vague suggestion that Smith would be transferred from the secretarial duties as soon as possible. If the past was any indication, she would have been performing secretarial duties for Baskin indefinitely. I understand the opposition clause to bar an employer from firing a person because she objected to a discriminatory job assignment.

Nor is this a case where, as the majority suggests, Smith’s conduct so interfered with her legitimate duties that she became ineffective in the job for which she was employed. See Payne. Smith’s reluctance to accept the secretarial duties amounted to silent opposition. This was not “insubordinant, disruptive, or nonproductive behavior” by any measure. See Armstrong.

Moreover, Smith should not now be penalized for not filing an immediate claim with the EEOC. I do not expect an aggrieved employee to act with the legal skills of a lawyer acting with the benefit of hindsight.

I am persuaded that under our appellate responsibilities, as defined by Rule 52(a) and Anderson and other cases, unless we are ready to abandon all appellate factual review, we should reverse in this case. The trial court’s factual findings are clearly erroneous. Further, it erred in its application of the law. Victoria Smith could not be fired for declining to accept gracefully that which Title VII forbade her employer to do, i.e., discriminate against her because of her sex. I disagree with my brothers of the majority and respectfully dissent.

. Similarly, the majority’s conclusion that Smith should have accepted the assignment and then complained does not accord sufficient weight to the fact that Baskin violated Title VII not only when he fired her, but when he first demanded that she accept secretarial duties.