Sherry Eirhart and Equal Employment Opportunity Commission v. Libbey-Owens-Ford Company and Lof Glass Incorporated

HARLINGTON WOOD, Jr., Senior Circuit Judge.

This appeal concerns the enforcement of a 1988 consent decree between the parties which settled a Title VII lawsuit against defendants Libbey-Owens-Ford Company and LOF Glass Incorporated (collectively “LOF”). At issue was LOF’s minimum height and weight requirements used in hiring employees. Plaintiffs Sherry Eirhart and the Equal Employment Opportunity Commission (“EEOC”) alleged in* a class action that LOF’s policy discriminated against women. This appeal was consolidated with appeal number 91-3299. We write separately, however, on one of the two disputed issues. 1 We assume familiarity with the background of the case because of several other published opinions, see Eirhart v. Libbey-Owens-Ford Co., 616 F.2d 278 (7th Cir.), cert. denied, 449 U.S. 828 , 101 S.Ct. 93 , 66 L.Ed.2d 32 (1980); Eirhart v. Libbey-Owens-Ford Co., 692 F.Supp 871 (N.D.Ill.1988); Eirhart v. Libbey-Owens-Ford Co., 482 F.Supp. 357 (N.D.Ill.1979), and will discuss only the facts relevant to this appeal concerning the hiring and subsequent firing of class members at a LOF plant in Sherman, Texas. The EEOC did not participate in the appeals.

I.

Under the terms of the consent decree, LOF must hire the 342 class members who were denied employment because of LOF’s height and weight requirements when openings arise at LOF plants. Each job seeking class member (“JSCM”) was placed on a hire list or a transfer hire list for her chosen LOF plant. A JSCM is offered a job at a plant when she reaches the top of the list, and an opening occurs. Once a JSCM is offered a *839 position, her name is removed from the list. LOF must make offers: “With respect to each and every permanent (more than 120 days) job openings (“Opening”) which arises at any LOF glass plant which has. any JSCMs on its Hire List or Transfer Hire List.” Consent Decree Art. VII, section 5(E).

The first seventy-five permanent openings at LOF’s plant in Sherman, Texas were to be offered to qualified JSCMs. In 1990, as a result of an analysis of several factors, including labor and production needs at the Sherman plant, the plant manager determined there was a need for fifty-four additional full-time employees at the plant. In June and July 1990, a LOF director of manufacturing reviewed reports from various supervisors at the plant and authorized the hiring of fifty new full-time employees. Beginning in August 1990, LOF hired forty-two JSCMs for what LOF says were permanent positions. LOF, however, quickly laid off all newly hired JSCMs in October 1990 because of an unforeseen large cancellation of orders by General Motors Corporation, an important customer, as well as “a sudden, unanticipated recession,” according to LOF. Some JSCMs had only been working for a few days or weeks. When business turned bad for LOF, the JSCMs were the first to go because of their low seniority status at the plant. Other temporary and probationary employees were also laid off though no regular LOF employees were.

LOF supplements its approximately four hundred person work force at the plant with temporary employees who are hired “for peaks and valleys or fill in.” The record shows in a four-year period, temporary employees were regularly used at the Sherman plant. As many as eighty-nine temporaries were hired one month while up to forty-six have been laid off in a month. Plaintiff relies upon a pattern in the number of temporaries showing a regular increase in temporaries in the spring and summer months with a slowdown by October. The record indicates that temporary employees were to be replaced by permanent positions in 1990 which LOF knew would be filled by JSCMs. LOF claims this is because business was improving in such a way that the positions became permanent; Eirhart claims the temporary positions were-simply replaced by permanent ones.

In 1990, a union campaign was also being mentioned- at the non-union Sherman plant. In response to employees’ interest in possibly unionizing, LOF hired a consultant to conduct a survey of employees at the plant. The record shows one of the concerns raised was the use of temporary employees because of its impact on quality and safety at the plant.

Eirhart filed a Motion for Recall and Other Relief on November 19, 1990, days after learning the JSCMs had been laid off. Eir-hart claimed LOF violated the consent decree by hiring JSCMs for temporary positions. Eirhart argued the positions were not permanent because under the consent decree, permanent positions must be at least 120 days and none of the JSCMs had worked that long. Eirhart argued the JSCMs who were hired and then quickly fired are actually worse off because of LOF’s action under the consent decree than before. At the district court’s direction, LOF responded to the issue of a 120-day minimum requirement on December 12. The parties submitted a joint discovery schedule on December 21 to the court after being directed to do so at a discovery conference concerning the Motion for Recall and Other Relief. The parties agreed on the scheduling of interrogatories, document requests, and depositions to be completed by January 15, 1991.

At a hearing on February 15, 1991, the district judge orally ruled that the consent decree unambiguously did not guarantee employment for 120 days. Instead, the judge found the decree required LOF to use its best predictive judgment when making any offers. The judge said the decree plainly intended that “a temporary offer should not be a trigger for bringing a JSCM into the loop.” Rec. 1207-2 at 2. The judge then advised LOF to respond to the second part of plaintiffs’ argument that the JSCMs were hired for positions that were temporary in nature and had simply been renamed permanent. “The idea of attaching a permanent label to people in order to get rid of the concept of temporaries is something I think *840 LOF has got some explaining to do.” Id. at 5.

Finally, on May 31, 1991, the court ruled on the Motion for Recall and Other Relief and found LOF had violated the terms of the consent decree. The court ordered the JSCMs to be placed back on the Sherman hire list as if they had never been removed from it. Damages were awarded to the JSCMs for lost wages, benefits, and consequential damages. On appeal, LOF argues it did not violate the consent decree because the positions were permanent, not temporary. If unsuccessful on this issue, LOF then appeals the district court’s method of calculating damages for lost benefits.

II.

There is a dispute whether the Motion for Recall and Other Relief was really a motion for summary judgment, or if the district judge made his findings of facts and conclusions of law pursuant to Federal Rule of Civil Procedure 52. 2 LOF argues on appeal the motion was for summary judgment, and we should examine the. entire record and draw all inferences in its favor as the non-moving party. Eirhart argues the motion was tried by the court under Rule 52, and we should review it under the Rule’s clearly erroneous standard.

We agree with Eirhart that the motion was heard by the court which made findings pursuant to Rule 52. Eirhart filed her motion to which LOF responded. Then, after extensive discovery which included interrogatories, at least five depositions, and numerous LOF business records, both parties filed more briefs. There are many obvious differences between a summary judgment motion and a matter tried by the court under Rule 52, but LOF focuses only on the different standards of review. LOF has never once argued that a material issue of fact exists which precludes finding in favor of Eirhart. The motion was not called a summary judgment motion, it was never referred to as a summary judgment motion before Judge Shadur, and neither party followed local rules concerning motions for summary judgment. 3

Rule 52 allows for matters to be tried to the district court on a written record; we do not read the Rule to require that an evidentiary hearing be held. See SMP Sales Management, Inc. v. Fleet Credit Corp., 960 F.2d 557, 558 (5th Cir.1992); Connors v. Ryan’s Coal Co., 923 F.2d 1461 , 1466 (11th Cir.1991); Edwards v. United States Postal Service, 909 F.2d 320, 322 (8th Cir.1990); Volkswagen of America, Inc. v. Jahre, 472 F.2d 557, 558-59 (5th Cir.1973). The Motion for Recall and Other Relief was fully developed by the parties’ briefs, numerous exhibits consisting of affidavits, excerpts from depositions, and LOF records. No party at any time requested a hearing be held or witnesses be allowed to testify. Cf. United States v. City of Northlake, 942 F.2d 1164, 1165 (7th Cir.1991). Nor did LOF ever object to the procedure in district court or make any motion to reconsider after the court’s decision. LOF’s last minute request at oral argument in this court for an evidentiary hearing comes too late and was only made after direct questioning from this court. LOF first mentioned summary judgment only in its appellate brief and could not *841 explain why it was a summary judgment motion. LOF did not request a hearing in its brief or argue that any issue of material fact existed. For all intents and purposes, this motion was decided by the district court under Rule 52 based upon the written record submitted by the parties with their briefs. 4

We cannot reverse the district court’s findings of facts unless they are clearly erroneous. Fed.R.Civ.P. 52; Anderson v. Bessemer City, 470 U.S. 564, 573 , 105 S.Ct. 1504, 1511 , 84 L.Ed.2d 518 (1985). This standard does not change when the findings are based solely on a written record. Id. at 574 , 105 S.Ct. at 1511 ; Mucha v. King, 792 F.2d 602, 605 (7th Cir.1986). “A finding is ‘clearly erroneous’ when although there is evidence to support it, the 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 (1948). It is, therefore, not our role to chose between two permissible views of the evidence, Anderson, 470 U.S. at 574 , 105 S.Ct. at 1511 , and a district court’s choice cannot be clearly erroneous when there are two permissible conclusions. In re Weber, 892 F.2d 534, 538 (7th Cir.1989).

The district court found LOF had hired forty-two JSCMs into temporary, not permanent, positions in its order dated May 17, 1991. The court based its conclusion on the “extensive discovery” and submissions from both sides. The court found that the jobs were the same as the jobs traditionally filled by temporary workers at the plant. 5 The court rejected LOF’s contention that because of production and labor demands, the temporary jobs had become permanent positions by mid-1990. The court was persuaded by the cyclical use of temporary employees at the plant which almost always resulted in a complete drop in numbers by October. In 1990, the court found LOF’s 'sales and production requirements for the Sherman plant did not create a need for permanent positions any more than in earlier years. The court recognized the impact of General Motors’s unforeseen cancellation of orders and the major recession in the automobile industry, but the court found these factors only accelerated the layoff situation rather than causing it.

The court adopted nineteen pages of findings and conclusions offered by plaintiffs for its own. Plaintiffs demonstrated below in their motion, as Eirhart does here, that the evidence shows the JSCMs were hired to replace temporary employees. The temporary employees hired by LOF in 1990 were hired for short-term problems in the production of new products. In June and July 1990 when the decision to hire permanent employees was being made, the nature of these problems had not changed. Also, LOF’s manpower reviews and production plans according to General Motors estimates did not show how these positions were any more permanent than they had been temporary in other years. Nor were there mechanical changes at the plant that could explain why permanent employees were needed instead of temporary ones. Further, when the decision was made, the General Motors weekly product orders showed no increase in demand. The court somewhat modified plaintiffs’ findings concerning LOF’s alleged response to the threat of a union campaign by hiring permanent employees and found it was not a motivating factor in the decision, but rather the decision was made in the context of the union problem and a possible solution.

The district court’s findings were sufficient for Rule 52. A court may adopt *842 verbatim a party’s findings as its own, even though it is preferred that a court independently make its own findings. See Anderson, 470 U.S. at 572 , 105 S.Ct. at 1510 ; Walton v. United Consumers Club, Inc., 786 F.2d 303, 313-14 (7th Cir.1986). We recognize that district courts are presently under great litigation pressure. The district judge here carefully reviewed the evidence submitted by the parties and explained his conclusions in an eight page memorandum opinion and order. He has been involved with the case for most of its history and did not lightly consider plaintiffs’ request to enforce the decree. As we stated in City of Northlake, 942 F.2d at 1168 -69: “Much of a consent decree’s value lies not in the steps to be taken immediately by the defendant to remedy discrimination, but in the promise that the plaintiff in a case like this one can look to the courts to hold the defendant in contempt for ongoing and future violations.” We affirm the findings made by the court and those specifically adopted by the court.

After concluding the JSCMs who had been laid off were entitled to damages, the parties filed several more briefs on the calculation and amount of damages. We review the district court’s damages award also under the clearly erroneous standard. Stanley Gudyka Sales Co. v. Lacy Forest Products Co., 915 F.2d 273, 277 (7th Cir.1990); Hunter v. Allis-Chalmers Corp., 797 F.2d 1417, 1424-25 (7th Cir.1986). The district court awarded damages measured from the JSCMs’ layoff date for lost wages and benefits from their other employment. LOF appeals the calculation of benefits offered by plaintiffs and accepted by the court. Plaintiffs retained an independent, experienced actuary who calculated the benefits for each non-LOF employer according to a uniform average from an employee benefits survey published by the United States Chamber of Commerce. LOF offered the calculations by its own in-house benefits director who sought to make a case by case analysis for each JSCM. The court, however, agreed with plaintiffs’ actuary who believed LOF’s expert did not have the informational input from the other employers necessary for accurate individual calculations. Based on our careful review of the record, we affirm the court’s choice in favoring plaintiffs’ calculations.

III.

The district court’s findings and conclusions were not clearly erroneous. We affirm.

AFFIRMED.

. Appeal number 91-3299 concerned the award of attorneys’ fees to plaintiff class counsel for implementation of the consent decree and other post-decree matters. We decided the attorneys' fees issue in Eirhart v. Libbey-Owens-Ford Co., 996 F.2d 846 (7th Cir.1993).

. Federal Rule of Civil Procedure 52(a) provides in part:

In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon, and judgment shall be entered pursuant to Rule 58.... Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.... It will be sufficient if the findings of fact and conclusions of law are stated orally and recorded in open court following the close of evidence or appear in an opinion or memorandum of decision filed by the court. Findings of fact and conclusions of law are unnecessary on decisions of motions under Rule 12 or 56....

. We also do not believe this is a case where cross-summary judgment motions became a bench trial either because the parties consented to this, impliedly or otherwise, or because it involved a legal conclusion to be drawn from undisputed facts. See Market St. Assocs. Ltd. Partnership v. Frey, 941 F.2d 588, 590 (7th Cir.1991); Brock v. TIC Int’l Corp., 785 F.2d 168 , 169 (7th Cir.1986); Lac Courte Oreilles Band v. Voigt, 700 F.2d 341 , 349 (7th Cir.), cert. denied, 464 U.S. 805 , 104 S.Ct. 53 , 78 L.Ed.2d 72 (1983).

. This Title VII action has been thoroughly argued during its more than ten years time before .Judge Shadur. Eirhart's counsel stated a hearing or trial has never been held in the long history of the case, and we found no evidence of one in the record. In the issue before us, the focus is not on LOF’s intent when it offered the JSCMs jobs at the plant. Judge Shadur did not find that LOF offered the JSCMs these jobs in bad faith in order to remove JSCMs from the hire or transfer hire lists. Rather the judge found the jobs were not permanent jobs within the requirements of the consent decree. There is no need for a hearing to be held to resolve LOF’s intent in order to enforce the consent decree in this instance.

. The court indicated LOF changed the label of its temporary positions to permanent apparently in ignorance of a traditional attribution to Abraham Lincoln (even if apocryphally so): "If you call a tail a leg, how many legs has a dog? Five? No, calling a tail a leg don’t make it a leg.”