Petition for Writ of Certiorari — Nichelson v. Quaker Oats Co.
Supreme Court brief1985
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In THE
Supreme Court of the United
OctosEr TERM, 1984
Vernicr C. NicHELSON,
Petitioner,
Vv.
Quaker Oats CoMPANy
a
=
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Avon N. Wr11aMs
Riouarp R. Dinxins
Russett T. Perkins
Williams & Dinkins
203 Second Avenue, North
Nashville, Tennessee 37201
(615) 244-3988
J. LeVonne CHAMBERS
Ronatp L. Ex.is
Eric SoHNAPPER*
NAACP Legal Defense &
Educational Fund, Inc.
16th Floor
99 Hudson Street
New York, New York 10013
(212) 219-1900
Counsel for Petitioner
*Counsel of Record
QUESTIONS PRESENTED '
1. Did the court of appeals exceed
its authority under Rule 52, F.R.C.P., by
overturning the credibility findings of
the trial judge?
2. Did the court of appeals exceed
its authority under Ruie 52, F.R.C.P., by
reversing the trial court's factual
findings of discrimination?
a
e
The Sixth Circuit decision in this case
was issued prior to this Court's opinin in
Anderson v. City of Bessemer City, No.
63-1623, Which directly addresses the
proper scope of appellate review of
credibility determinations. We suggest
that the decision in this case be vacated
and remanded for further consideration in
light of Anderson.
1~
PARTIES
The parties to this proceeding are
Vernice C. Nichelson and the Quaker Oats
Company.
TABLE OF CONTENTS
Page
Questions Rresented .....ceceeeees i
Parties weccccccccccccccccsccsccccce Li
Table of Authorities......seeeeee iii
Opinions BelOW ...cecccccccceccesss
JUTISGICCION .ccccccccccccccccccece
Statute and Rule Involved ........
Statemenc of the CaSe ...eeeeeeees
Reasons for Granting the Writ ....
i. a A, on
Conclusion eeeeeeeeeeeeeeeneeeeneeee 1
APPENDIX
District Court Opinion,
June, 1983 e*eeeeeeeeeeeeeeneee la
District Court Order, September
15, 1983 eeeeieeeeneeeeeeeeeeee 98a
Opinion of the Court of Appeals,
January 22, 1985 w.ceeceeeeee 1118
- iii -
TABLE OF AUTHORITIES
- Page
Cases
Anderson v. City of Bessemer
City, No. 83-1623 eeeeee i,7,8,9,
16,17
Wainwright v. Witt, 53 U.S.L.W.
4108 (1985) eeeeeneenseeeeneeee 7
Other Authorities
28 U.S.C. 5 1254(1) eeereeeeeeeeee 2
42 U.S.C. § 2000e-2(a) eeeeeeeeeeer 3
Rule 52, Federal Rules of
Civil Procedure ...ceeeeee 1,3,7
No.
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1984
sunuhusanennsnadiienn
VERNICE C. NICHELSON,
Petitioner,
Ve
QUAKER OATS COM} ANY
PETITION FOR WRIT OF CERTIORARI
TO THE UNiTED STATES
COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Petitioner Vernice Nichelson_ re-
spectfully prays that a Writ of Certiorari
issue to review the judgment and opinion
of the United States Court of Appeals for
the Sixth Circuit entered in this pro-
ceeding on January 22, 1985.
= 2
OPINIONS BELOW
The decision of the court of appeals,
which is not yet reported, is set out at
pp. tlla-124a of the Appendix. The
district court's opinion is reported at
573 F. Supp. 1209 (W.D. Tenn. 1983), and
is set out at pp. ta-97a of the Appendix.
The district court's order of September
15, 1983, which is not reported, is set
out at pp. 98a-110a of the Appendix.
JURISDICTION
The judgment of the court of appeals
was entered on January 22, 1985. Juris-
diction of this Court is invoked under 28
U.S.C. § 1254(1).
STATUTE AND RULES INVOLVED
Section 793(a) of Title VII of the
1964 Civil Rights Act, 42 U.S.C. §
2000e-2(a), provides in pertinent part:
It shall be an unlawful employment
practice for an employer -
(1) to ... discriminate against any
indiwidual with respect to his
compensation, terms, conditions or
penror eee of employment, because of
such ndividual's race, color,
religion, sex, or national origin.
Rule 52(a), Federal Rules of Civil
Procedure, provides in pertinent part:
In all actions tried upon the facts
without a jury ... the court shall
find the facts specially and state
separately its conclusions of law
thereon.... Findings of fact shall
not be set aside unless clearly
erroneous, and due regard shall ce
given to the opportunity of the trial
court to judge of the credibility of
the witnesses....
STATEMENT OF THE CASE
This case arises from what the trial
judge concluded was a “pervasive" pattern
of racial discrimination at defendant's
Plant in Jackson, Tennessee. (89a). The
Gistrict court identified 11 separate
racial incidents, including the use of
— =
racist epithets, harassment of black
employees, and discriminatory demotions
and denial of promotions. A number of
these rcacial actions were directed at
petitioner, because, in the words of the
trial judge, management officials wanted
"to make an example of her as a warning to
other black employees." (89a-90a).
The first of these incidents involv-
ing petitioner occurred in January and
February, i980, when she was demoted and
suspended. Petitioner, alleging that no
action had been taken against whites who
acted as she had, filed a complaint of
racial discrimination with the EEOC.
Thereafter, in October 1980, petitioner
was denied a promotion, and then subjected
to an extended demotion. Petitioner
brought this Title VII in the United
States District Court for the Western
District of Tennessee, alleging that all
@ 8 «
four adverse actions were racially
motivated, and that the events of October,
1980, were motivated in particular by a
desire to retaliate against her for having
filed charges with the EEOC.
After a six day trial in the spring
of 1982 the district court upheld peti-
tioner's claims with regard to each of
these four incidents. In reaching that
conclusion the trial judge relied heavily
on its conclusion that the testimony of
the key defense witnesses was not credi-
ble. The district court, in rejecting as
pretextual the explanations offered by the
defendant, also emphasized the existence
of several other racial incidents, all
involving the same supervisors, which the
trial court concluded revealed a general
pattern of discriminatory conduct. The
district court awarded petitioner $15,772
in back pay and $1,000 in compensatory
damages, and ordered that she be given the
promotion earlier denied to her for racial
reasons. (104a-106a). On appeal the Sixth
Circuit reversed the finding of liability
on each of the four incidents. The Sixth
Circuit did not hold that the district
court had committed any error of law, but
insisted that the trial judge's factual
findings with regard to those incidents
were simply mistaken. The court of
appeals attached no weight to the trial
judge's credibility findings, choosing
instead to credit precisely the testimony
which the district judge had _ found
unworthy of belief.
REASONS FOR GRANTING THE WRIT
The Sixth Circuit's January 1985
opinion in this case presents the same
problem of appellate review of trial court
credibility determinations which was
resolved by this Court's subsequent
decision in Anderson'v. City of Bessemer
City, No. 83-1623 (March 19, 1985). The
Sixth Circuit, writing prior to the
decision in Anderson, gave no deference to
the trial court credibility determinations
in this case. Anderson has now condemned
that appellate practice, holding a trial
judge's credibility assessments are often
virtually conclusive:
When findings are based on determi-
nations regarding the credibility of
witnesses, Rule 52 demands even
greater deference to the trial
court's findings; for only the trial
judge can be aware of the variations
in demeanor and tone of voice that
bear so heavily on the listener's
understanding of and belief in what
is said. Wainwright v. Witt, 469
U.S. (T585).... (Wjhen a trial
judge‘e Findings is based on his
decision to credit the testimony of
one Of two or more witnesses, each of
whom has told a coherent and facially
plausible story that is not contra-
dicted by extrinsic evidence, that
finding, if not intennally inconsis-
tent, can virtually never be clear
error. (Slip opinion p. 10).
In the instant case, the court of appeals,
acting without the advantage of the
decision in Anderson, gave little heed to
the trial judge's conclusions regarding
which of the conflicting witnesses was to
be believed.
The resolution of the discrimina-
tion claims in the instant case turned
largely on the credibility of the wit-
nesses, particularly on whether the finder
of fact chose to credit testimony by three
white supervisors, one or more of whom was
involved in each of the four incidents at
issue. In most instances that defense
testimony was squarely contradicted by the
testimony of petitioner. This conflicting
testimony concerned simple matters of
historical facts, such as what had been
said during a number of disputed conversa-
tions. The determination of petitioner's
ee ee ey ee
~—
claims required a decision as to which
witnesses were and were not to be be-
lieved. The trial judge found the
critical defense testimony unworthy of
belief; the Sixth Circuit, apparently
making its own evaluation of the matter,
and without an opportunity to observe the
demeanor of those witness, reached the
opposite conclusion. The Sixth Circuit's
action turned on precisely the sort of
appellate credibility determinations which ©
have since been condemned by this Court in
Anderson.
The first instance of alleged
discrimination, a demotion in January
1980, involved a direct conflict between
the testimony of petitioner and of Dale
Smith, a white supervisor, regarding what
Smith had done and why. The district
judge expressly resolved that conflict on
the basis of demeanor:
=~. %-=
The Court noted at trial that Smith
did not appear to be forthright in
his answers. The Court is still of
this opinion. Based on the trial
testimony and determination by the
Court of the credibility of the two
witnesses, Nichelson and Smith, the
Court finds that Nichelson is the
mere credible of the two. (28a)
(Emphasis added).
In holding that the January 1980 demotion
was racially motivated, the district court
expressly based that conclusion on its
evaluation of "the objectivity, sincerity
and honesty of the witnesses." (47a).
The second incident involved a
suspension for allegedly filling out a
time card in a manner contrary to company
policy. Petitioner testified she had been
instructed to fill out the card in
precisely the manner she had utilized; a
defense witness insisted petitioner had
not been so instructed. The trial judge,
emphasizing the vagueness of the defense
- 11 -
witness, found “the testimony of Nichelson
to be the more credible.“ (50a) (Emphasis
added). Three white supervisors, Smith,
Dean and Hold, testified that petitioner
had violated normal company procedure. The
district court, however, noted that their
testimony was “not consistent" (56a), and,
"[b]ased on the credible evidence"
concluded that the supervisors were well
aware that the manner in which petitioner
filled out her time card was "the practice
in the plant." (59a) (Emphasis added).
The district judge repeatedly expressed
skepticism about the inability of the
defense witnesses to recall critical
meetings and discussions. (59a, 61a).
The third and fourth incidents, the
denial of a promotion followed by a
aenotion, both involved the same three
Supervisors whose testimony the trial
judge had already concluded was unworthy
oe t2 «
of belief. The trial judge rejected as
pretextual the explanations they offered
for the demotion and the denied promotion.
(82a, 86a). The district court expressed
particular skepticism about’ testimony
offered regarding why petitioner had not
been promoted. (70a). The trial court
expressly grounded the disposition of
these claims in part on its view of the
testimony offered regarding the suspension
and earlier demotion, relying on “the
totality of facts in this case and the
entire web of circumstances presented..."
(82a; see also id. at 86a, 99a).
In rejecting the various explanations
offered by the defense witnesses, the
trial court relied as well on a series of
other racial incidents in which one or
more of those supervisors had _. been
involved. Smith, for example, had referred
to blacks as "niggers", and had remarked
=» (3.<
that he would oppose blacks moving into
the same neighborhood in which he lived.
Two other blacks who worked or had worked
at Quaker Oats testified about incidents
involving these supervisors; one recounted
having been told by one of the white
Supervisors that she should seek employ-
ment elsewhere because she would never be
promoted at Quaker Oats. The trial judge
regarded these incidents, which it
thought revealed a pattern of "obvious
racial turmoil" (86a), as bearing signifi-
cantly on whether to credit the explana-
tions offered by the defense witnesses
regarding why petitioner had been sus-
pended, denied a promotion, and twice
—
demoted.
Credibility determinations were thus
both central and essential to the district
judge's resolution of petitioner’s claims.
The Sixth Circuit opinion, however, is
"BEST AVAILABLE COPY J
= 44 «
entirely devoid of any reference to those
trial court credibility determinations.
The court of appeals did not suggest that
the trial judge had committed any error of
law, and did not offer any principled
basis for reviewing the demeanor based
conclusions of the trial judge that the
defense witnesses were not to be believed.
The Sixth Circuit simply disregarded in
their entirety each of those credibility
assessments, and proceeded to credit the
testimony of the very defense witnesses
whom the trial judge, who had observed
their demeanor on the stand, thought were
not telling the truth.
In the first alleged incident of
discrimination, for example, petitioner
was demoted because she complied with a
court order, in an unrelated proceeding,
that required her to be in court, and away
from work, during part of one business
se
day. The central issue in dispute was
whether petitioner had _ notified , her
supervisor of the order, and received
permission to leave work; petitioner
testified she had done so, but’ the
supervisor denied it. The trial judge,
expressly relying on the comparative
credibility of those two witnesses,
accepted petitioner's testimony (17a); the
Sixth Circuit chose to believe the
supervisor instead. (116a). The second
incident involved a similar problem.
Petitioner testified that her time card
was filled out in the same manner as that
which was the accepted practice at Quaker
Oats and which she had been instructed was
proper; defense witnesses testified to the
contrary. The trial judge, finding the
testimony of the defense witnesses
unworthy of belief, concluded that
petitioner's version was correct (50a);
= 16 -
again the Sixth Circuit rejected peti-
tioner's testimony, choosing to believe
instead the statements of the defense
witnesses (116a). Testimony regarding why
petitioner was denied a promotion, which
the trial judge rejected as “merely
pretextual" (82a), the Sixth Circuit
embraced as “clearly ... nonpretextual"
(121a).
The Sixth Circuit issued its opinion
in case two months prior to this Court's
decision in Anderson. Petitioner main-
tains that Anderson compels affirmance of
the district court decision. Since the
Sixth Circuit, however, was not in a
position to appraise the district court's
findings in light of Anderson, we believe
that the court of appeals should be
afforded an opportunity to do so. Accord-
ingly, we urge the Court to vacate the
= 19
decision of the court of appeals and
remand the case for further consideration
in light of Anderson.
CONLCLUSION
For the above reasons the Court
should grant the petition, vacate the
decision of the court of appeals, and
remand the case for further considerati
in light of Anderson v. City of Bessemer
City.
Respectfully submitted,
AVOW N. WILLIAMS
RICHARD R. DINKINS
RUSSELL T. PERKINS
Williams & Dinkins
203 Second Ave., North
Nashville, Tenn. 37201
(615) 244-3988
J. LeVONNE CHAMBERS
RONALD L. ELLIS
ERIC SCHNAPPER*
= 1@ «
NAACP Legal Defense &
Educational Fund, Inc.
16th Floor
99 Hudson Street
New York, New York 10013
(212) 219-1900
COUNSEL FOR PETITIONER
*COUNSEL OF RECORD
APPENDIX
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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
VERNICE C. NICHELSON,
Plaintiff,
vs.
QUAKER OATS COMPANY, ET AL
Defendants.
OPINION
Vernice Nichelson filed this lawsuit
against the Quaker Oats Company, its
employees and agents, charging the Quaker
Oats Company discriminated against her
with respect to the terms, conditions and
mbigiieece of her employment because of
her race and retaliated against her for
- 2a -
exercising rights secured to her by the
civil rights laws of the United States.
Mrs. Nichelson claims the defendants’
conduct violated legal rights guaranteed
her under 42 U.S.C. §§ 1981, 1985, 1986
and 2000e et seg., Title VII of the Civil
Rights Act of 1964, as amended, and the
Thirteenth and Fourteenth Amendments to
the Constitution of the United States.
Jurisdiction of this Court is’ invoked
pursuant to the above-mentioned statutes
along with 28 U.S.C. §§ 1331, 1343(4),
2201 and 2202. Specifically, Mrs. Nichel-
son charges:
1) The Quaker Oats Company racially
discriminated against her when it
denied her promotion to the
position of Sensory Specialist
Supervisor in 1979;
2) She was demoted by the Quaker
Oats Company and thereby racially
discriminated against in connec-
tion with her work assignment
during the week of January 11,
1980;
- 3a - :
3) The Quaker Oats Company racially
discriminated against her when it
suspended her for two days in
February, 1980, for allegedly
falsifying her employee time
records; and
4) The Quake Oats Company racially
discriminated and retaliated
against her in October, 1980,
after she filed discrimination
charges against the Quaker Oats
Company with the Equal Employment
Opportunity Commission (EEOC), by
denying her promotion to the
newly created position of Quality
Assurance Supervisor and _ by
demoting her to the position of
Quality Assurance Monitor.
The Quaker Oats Company denies that
it has violated the civil rights laws of
the United States. Instead, Quaker Oats
charges that Mrs. Nichelson has failed to
prove, by a preponderance of the evidence,
that she was treated differently from
white employees because of her race or
that its actions were motivated by an
intent to discriminate or retaliate
against her because of her race and
‘BEST AVAILABLE COPY ji
- 4a-
because she filed charges against Quaker
Oats with the EEOC. Mrs. Nichelson seeks
a declaratory judgment that the Quaker
Oats Company, its agents and employees,
violated the civil rights laws of the
United States, injunctive relief, \compen-
satory and punitive damages, attorneys'
fees and costs.
The issue presented in this case is
whether Mrs. Nichelson has shown, by a
preponderance of the evidence, that the
Quaker Oats Company, its agents’ and
employees, violated her legal rights as
established by the thirteenth and four-
teenth amendments and 42 U.S.C. §§ 1981,
1985, 1986, and 2000-e et seg. After
trial before the Court and after a careful
and thorough review of the entire record
in this case, the Court finds Nichelson
has shown, by a preponderance of the
evidence, that the Quaker Oats Company
- 5a -
violated Title VII of the Civil Rights Ast
of 1964, as amended, 42 U.S.C. § 2000e et
seg., specifically § 2000e-2(a)(1) which
makes it an unlawful employment practice
for an employer “to fail or refuse to hire
or to discharge any individual, or
otherwise to discriminate against any
individual with respect to his compensa-
tion, terms, conditions, or privileges of
employment, because of such individual's
race, color, religion, sex, or national
origin." The Court also concludes that
Nichelson has shown by a preponderance of
evidence that the Quaker Oats Company
violated 42 U.S.C. § 1981 which provides
that:
All persons within the jurisdic-
tion of the United States shall have
the same right in every State and
Territory to make and enforce
contracts, to sue, be parties, give
evidence, and to the full and equal
benefit of all laws and proceedings
for the security of persons and
property as is enjoyed by white
EDITOR'S NOTE
THE FOLLOWING PAGES WERE POOR
HARD COPY AT THE TIME Of FILMING.
IF AND WHEN A BETTER COPY CAN BE
OBTAINED, A NEW FICHE WILL BE
ISSUED.
a Ge «
citizens, and shall be subject to
like punishment, pains, penalties,
taxes, licenses, and exactions of
every kind, and to no other.
However, the Court finds that Quaker Oats
did not violate the thirteenth and
fourteenth amendments or 42 U.S.C. §§ 1985
and 1986. Although several individuals
were named as defendants in this lawsuit,
the Court finds the evidence in this case
related primarily to Quaker Oats, and at
an appropriate time the Court will
entertain a motion to dismiss the claims
against the individuals.
An extensive recital of particular
facts is necessary to illustrate the
atmosphere and climate in Quaker Oats'
Jackson, Tennessee plant. The atmosphere
and climate at the plant is evidenced and
illustrated by the treatment afforded Mrs.
Nichelson and other blacks by defendant's
supervisory personnel.
'2a la -
Plaintiff, Vernice Nichelson, a black
woman, who completed three years of
college, was employed by the Quaker Oats
Company on or about August 16, 1976. She
is still so employed. Mrs. Nichelson was
hired in 1976 as a production worker. In
May of 1977, she was promoted to the
position of laboratory technician in the
plant's Quality Assurance Department where
she was trained initially as an analytical
laboratory technician. In 1979, she was
trained to perform the duties of a
microbiological iaboratory technician in
the Quality Assurance Department. In
October of 1980, Mrs. WNichelson was
transferred from the job of laboratory
technician to the position of quality
assurance monitor by Quaker Oats.
Since June 1981 and to the time of
this lawsuit she has worked as a labora-
tory technician.
The Quaker Oats Company owns and
operates a large frozen food manufacturing
plant in Madison County, Jackson, Tennes-
see. The plant manufactures frozen foods
such as waffles, pancakes and pizza. The
Quality Assurance Department in the plant
controls the quality of incoming ingredi-
ents, products in process and finished
products at the plant to assure that
products are manufactured in accordance
with specifications and to eliminate risks
to the consumers.
The following management personnel
are named defendants in this lawsuit; Mr.
Douglas Dean, Employee and Community
Relations Manager: Mr. Dale Smith, Quality
Assurance Manager; and Mr. Gregory Nold,
Laboratory Manager at the Jackson plant.
SENSORY SPECIALIST SUPERVISORY POSITION
The alleged discriminatory and
retaliatory actions against plaintiff
began in 1979. Prior to the filing of
this lawsuit, Quaker Oats did not post
managerial job vacancies. Employees at
the pliant were made aware of such posi-
tions after they had been filled by
management.
Mary Wondolowski was hired in 1977 as
Sensory Specialist Supervisor. This
vacant managerial position was not posted
by Quaker Oats. Plaintiff nor any other
hourly employee’ at the plant knew that
the position was available. The position
of Sensory Specialist Supervisor had been
vacant at the plant for some time. Ms
Wondolowski, a white female, was hired for
the position in September, 1977. She
graduated from the University of Califor-
nia at Davis with a Bachelor of Science
- 10a -
degree in Food Science. While enrolled at
the University of California at Davis, she
took a basic statistics course and a
statistics course which emphasized
Statistical appiications to environmental
sciences.
The duties of a Sensory Specialist
Supervisor included the selection of
people for use on taste panels, evaluation
of the tasters' judgments and the utiliza-
tion of statistical techniques for the
purpose of testing the sensory attributes
of certain food products.
Mrs. Nichelson testified she observed
Ms. Wondolowski and her predecessor in the
Sensory Specialist Supervisor position
perform their job. Further, Mrs. Nichel-
son testified she assisted Ms. Won-
dolowski in her sensory specialist work.
Ms. Wondolowski also testified that Mrs.
Nichelson,along with others, assisted her
Se
- lla.-
in preparing the foods used in the taste
panels. However, Mrs. Nichelson did not
assist Ms. caeinianiiies in the statistical
analysis of the taste panels nor in the
preparation of a quality assurance sensory
manual prepared by Ms. Wondolowski.
Mr. Wondolowski and Mr. Dale Smith
testified that in 1979 Ms. Wondolowski
began spending far less time on sensory
evaluation matters because the use of
taste panels was almost. completely
eliminated. Instead, her duties shifted
to a concentration on evaluating in-pro-
cess weight data, conducting short term
capability studies on the processing line,
coordinating research tests, preparing a
computerized weight control program for
collection and statistically analyzing
data on pizza products. In recognition of
this change in duties, Ms. Wondolowski's
job title was changed in 1979 to Quality
- 12a -
Assurance Engineer and the position to
Sensory Specialist Supervisor was elimi-
nated. As Quality Assurance Engineer, Ms.
Wondolowski continued to be responsible
for sensory evaluation work. Mrs. Nichel-
son does not claim she _ should have
received the position of Quality Assurance
Engineer created for Ms. Wondolowski.
Mrs. Nichelson asserts Quaker Oats
should not have eliminated the position of
Sensory Specialist Supervisor in 1979,
that she should have been promoted to that
position and that she was not promoted
because of her race. It is Nichelson's
position that she should have _ been
promoted to the position of Sensory
Specialist Supervisor in 1979 because she
knew the duties of the position as a
result of her observance of prior supervi-
sors in that position and because she
assisted Wondolowski. She further asserts
— ee
- i3a -
she could have adequately performed the
duties of Sensory Specialist Supervisor if
she had received the same training Quaker
Oats gave Ms. Wondolowski.
Nichelson admits she was not quali-
fied to do the statistical analysis work
required of a Sensory specialist Supervi-
sor. She testified that after the Sensory
Specialist Supervisor position was
eliminated, she performed the work of a
Sensory Specialist Supervisor and that
after her assignment to the monitor
position, others performed the work of a
Sensory Specialist Supervisor. Specific-
ally, Nichelson stated she continued to do
the taste panels but not the paper work.
Nichelson testified she had not taken any
statistics course.
The Court finds that Mrs. Nichelson
has not shown by a preponderance of the
evidence that she was qualified and
- 14a -
competent to perform the duties of a
Sensory Specialist Supervisor or that
Quaker Oats' elimination of the position
and its failure to promote her to the
position were on account of her race. Mrs.
Nichelson has not established a prima
facie case of racial discrimination under
Title VII or 42 U.S.C. § 1981 on this
asserted racial discrimination claim.
McDonnell Douglas Corp. v. Green 411, U.S.
792, 93 S.Ct. 1818 (1973); Texas Dept. of
Community Affairs v. Burdine, 450 U.S
248, 101 S.Ct. 1089 (1981).
Nor has Mrs. Nichelson shown by a
preponderance of the evidence that she was
unfairly denied the training she asserts
Ms. Wondolowski received. Mrs. Nichelson
testified Ms. Wondolowski was sent to a
place where computers were made and there
she received some training. During the
period Ms. Wondolowski was Sensory
- 18a -
Specialist Supervisor, she made several
trips to Quaker Oats' corporate offices in
Chicago, Illinois, and to its research
facilities in Berrington, Illinois, where
she reported the quality sineinticeibie
activities at the Jackson plant = and
learned of the quality assurance activi-
ties conducted at other Quaker Oats'
plants. However, Ms. Wondolowski testi-
fied that she received no special training
by Quaker Oats to perform her job as
Sensory Specialist Supervisor and _ she
received no special computer training
while at the Jackson plant. Ms. Wondolow-
ski further testified she made a trip to
Chicago in 1981 to purchase a computer
for the company.
The Court concludes that Nichelson
has failed to substantiate this allegation
in her complaint.
- 16a -
FLOOR ASSIGNMENT
In January of 1980, Mrs. Nichelson
charges she was demoted by Dale Smith,
Quality Assurance Manager, on a Monday
morning following an appearance in court
Friday, January 11, 1980. Nichelson was
sent from her job as laboratory technician
to the plant floor taking temperatures of
frozen foods. She stated Mr. Smith
accused her of: leaving dirty work in the
laboratory Friday, January 11, 1980.
Quaker Oats contends plaintiff was
assigned to the floor only temporarily to
separate her from another’ laboratory
technician, Ms. Deborah Hale.
Plaintiff testified she was absent
from work on the afternoon of January i1,
1980, because she had been subpoenaed to
Court. She stated she had so informed Mr.
Smith. Mr. Smith testified he was noti-
ee
- 17a -
fied by letter sometime in December of
1979 that Mrs. Nichelson was to appear in
court on December 28, 1979. However, her
appearance in court on December 28, 1979,
was not required because the hearing was
postponed. Mr. Smith further testified
Nichelson never informed him when the
hearing was rescheduled and that he did
not know she was to appear in Court on
Friday, January 11, 1980.
Nichelson stated that when she re-
ceived a second letter in January of 1980
to appear in court on January 11, 1980,
she reported to work that morning because
she did not have to appear in court until
1:00 o'cloak. She worked until 12:00 p.m.
on January 11, 1980. She testified that
she gave Mr. Smith her letter requiring
her appearance in court when she was
sitting at the colony counter counting
Plates and he acknowledged by saying, all
- 18a -
right. Subsequent to her court appear-
ance, plaintiff brought a letter addressed
to Mr. Douglas Dean indicating she had
been in court on January 11, 1980. This
confirming letter indicated that a letter
of January 10, 1980, had been written to
excuse Nichelson for court duty. Smith
had no explanation as to why he had not
received the letter referred to as the
January 10th letter.
Smith testified he remembered twice
passing the area in the laboratory where
Mrs. Nichelson and Mrs’- Hale worked and
noticed there was some incomplete micro-
biological testing work on the microbio-
logical side of the lab.
Smith testified when he left work
Friday, January 11, 1980, around 4:30
p.-m., he noticed there was still incom-
plete work on the microbiological side.
He stated this did not strike him as
- 19a -
unusual since often he had observed
incomplete work on the microbiological
side at that time of the work day. Smith
stated he asked Deborah Hale who was
assigned to the microbiological side and
Mrs. Hale told him that was Mrs. Nichel-
son’ assignment. The plaintiff was not in
the laboratory when Smith left, and he did
not inguire as to her whereabouts. Hale
testified she knew Mrs. Nichelson had left
work to go to court. Hale was still in
the laboratory, and Smith left knowing she
would lock the lab.
It is important at this time to note
the organizational structure in the
laboratory at the Jackson plant.
The organizational stcucture of
defendant's Quality Assurance Laboratory
was outlined by Mr. David Johnson, plant
microbiologist. There are three kinds of
work performed in the laboratory. There
- 20a -
is microbiological testing for prevention
of public health problems as well as food
spoilage. There is analyticai and
chemical testing for quality of the
product, and there is a sensory department
for food sensory testing. The heaviest
work is in microbiology. The microbio-
logical tests performed in the quality
assurance department for identification of
bacteria are conducted by placing a food
sample in a series of media at varying
times during the day. The most critical
test performed in the laboratory is to
discover the existence of salmonella
bacteria in foods.
Weekend work in the laboratory is
primarily microbiological. According to
Johnson, microbiological work is necessary
on the weekends because bacteria do not
- 21a -
cease grgwing on weekends. Culture tests
and other tests have to be continously
performed.
Nichelson worked on the analytical
side of the \ethennenn until October of
1979. Plaintiff then began training to
learn the duties of a laboratory techni-
cian on the microbiological side. On
January 11, 1980, Nichelson was working on
the microbiological side in the labora-
tory. Deborah Hale, a white laboratory
technician, was also working in the
laboratory that day. Hale had worked on
the microbiological side from the time of
her employment in 1976, until she was
switched in October of 1979, to learn the
analytical side. It is Nichelson's
testimony that when she left work on
January 11, 1980, around noon to go to
court, she asked Hale to complete her
- 22a -
microbiological work and Hale agreed.
Nichelson stated she thought she would be
able to return to work.
Hale testified that she did not
remember Nichelson asking her to perform
her work and that she would have
performed tic work had she been asked.
David Johnson and Dale Smith testified
when employees were away from the job on
emergencies it was expected that someone
at the laboratory would complete things
left incomplete. Hale did not complete
Nichelson's work or inform Smith that
plaintiff's work was incomplete. Nichel-
son did not return to work on January 11,
1980, since she was not released from
court until 5:00 p.m. and her shift had
ended at 4:30 p.m. Nichelson testified
she called the plant after she was
released from court and was told Smith had
already left the plant.
- 23a -
On Saturday, January 12, 1980, Smith
received a call from Hale shortly after
she arrived at the laboratory. Hale told
him that she could not do her work because
Nichelson had left incomplete work and
some of the plates had not been counted
for bacteria. Hale testified she called
Smith that morning because she did not
feel that she should have to stay at the
lab and complete the work Nichelson had
left as well as her own work. Hale
testified she told Smith that she could
not remain in the laboratory as long as it
would take to get all the work done. Hale
Stated Smith told her not to worry about
it, to go home and he would take care of
it.
Smith stated when Hale telephoned him
on January 12, 1980, expressing that it
would be difficult to complete the work he
told her to “stand by in the laboratory”
- 24a -
and he would try to get some help. He
said he tried to get someone to help her
in the laboratory but he was not success-
ful. He stated he telephoned Nichelson
and Mrs. Anna Cole, another laboratory
technician, to see if they could help
Hale, but he received no answer. After he
was unsuccessful in obtaining help for
Hale, he stated he called Hale at the
laboratory and instructed her to close the
laboratory and go home, which she did.
Smith did not go to the laboratory
that Saturday to determine how much work
was left incomplete or to determine
whether Hale could have completed the work
or salvaged any of the plates within the
time she was scheduled to work. Smith
asserts he did not have Hale do the work
or attempt to do the work himself because
he did not want to make a decision as to
what tests should be run or completed. He
- 25a -
explained that while he was department
manager he did not feel qualified and was
not qualified to do everything that was
required in the laboratory. However, he
did testify that he knew if microbiologi-
cal work was left incomplete for an
extended period of time it could not be
salvaged. Hale stated that some of the
plates which had been in the laboratory
since that Thursday should have been
counted by her that Saturday but they were
not since Smith allowed her to leave. The
record indicates her only work on that
Saturday was a phone call for which she
apparently received four hours pay.
The following Monday, Smith trans-
ferred Nichelson to the floor taking the
temperature of waffles. Smith talked with
both Nichelson and Hale that Monday
concerning the work in the laboratory. He
- 26a -
talked to Hale first. The substance of
the conversation between Smith and Hale
was testified by Hale as follows:
I just was talking about I don't
want, you know, I was afraid
Vernice might be upset with me
because I didn't do her work for
her, and that's all I told him. I
just didn't want, you know, her
to be mad at me or anything like
that.
Nichelson's testimony at trial
regarding the content and manner of her
conversation with Smith on the following
"ay
Monday was as follows:
Q.
What happened when you reported
to work the following Monday?
When I reported to work the fol-
lowing Monday, Mr. Smith called
me in his office, and he stated
that I had let a whole lot of
test results go undone. So he
wanted me out of the lab until
he got his head straight.
In what manner did Mr. Smith say
that to you? Describe, if you
will, his tone of voice and his
manner and his expression on his
face, and that sort of thing.
= 278 -
Well, his face was very red. He
said, "Mrs. Nichelson, I want
you out of this lab until I get
my head straight."
I don't mean to try to mimic him
yourself. Just describe it in
terms of softness, loudness,
belligerence?
It was in a loud manner. He was
very loud when he told me that.
And he said what, now?
He wanted me out of the lab un-
til he got his head straight.
I was trying to explain to him
that the court lasted until 5:00
o'clock. But he opened the door
and called Mrs. Wondolowski, who
is a white employee, and told
her to carry me down and show me
what to do on the floor.
All right. Did he give you
an opportunity to explain?
No sir, he didn't.
Did he ask you any questions
or make any investigation what-
soever before sending you down
to the floor?
No, Sir, he didn't.
- 28a -
Smith's version of the conversation
is contrary to plaintiff's. He testified
that when he talked to Nichelson the
following Monday, he inquired why she had
left her work incomplete on Friday,
January 11, 1980. Plaintiff replied that
she had been in court on that day. Smith
said he did not recall plaintiff telling
him in this conversation that she had
notified him when she left for court.
The Court noted at trial at trial
tnat Smith did not appear to be forthright
in his answers. Court is still of this
opinion. Based on the trial testimony
and determination by the Court of the
credibility of the two witnesses, Nichel-
son and Smith, the Court finds’ that
Nichelson is the more credible of the two.
There is testimony in the record by
other witnesses, Wondolowski and Ms. Anna
Cole, that Smith was abrupt and had the
- 29a -
tendency to be abusive in conversations
with employees at the plant. Wondolowski
testified she and Smith had disagreements
and on one occasion while the two were in
the laboratory and in the presence of
another employee he used abusive language
towards her.
"He got angry with me and took me back
into his office and started screaming at
me and told me that I was nothing but a
‘goddamned smartass bitch,'" Wondolowski
testified. She said these comments upset
her and she reported the comments’ to
Douglas Dean. "I told Doug Dean what Dale
had said to me," Wondolowski stated, "and
Doug told me that I shouldn't be concerned
about it because I knew how Dale acted."
Smith instructed David Johnson on
that following Monday “to go through and
check what materials, what plates, et
cerera, could be salvaged and read and
- 30a -
analyze them". Smith stated he decided
that morning to transfer Nichelson to the
floor taking temperatures. He said part
of the reason for his decision was he felt
there was an air of blame and hostility
existing between Nichelson and Hale
regarding fault for the ruining of the
tests. Hale did not corroborate Smith's
claim that Mrs. Nichelson was transferred
to separate her from Hale. Hale stated
plaintiff had given her no indication that
she wished to fight with her or that she
was angry with her.
He also stated since Nichelson had
been receiving training in microbiological
testing and a new set of tests would have
to be set up, that week would not have
been a good time to continue her training.
Smith stated:
Mrs. Nichelson had been in training
the preceding week in microbiology.
She had not been totally qualified
- 3la -
as a technician in that she was in
training for the microbiology part
and had not yet felt comfortable to
do weekend work by herself. This
was not a week that was conducive to
good training, because it was a
change in sequence, cleaning the
lab and starting things over again.
So I didn't really feel it was a
good time for her to train. I saw
no need to change the assignment of
Deborah Hale from what she had the
preceeding week.
However, Mr. Smith's testimony on
cross examination indicates Nichelson
was competent as a laboratory technician.
On the training issue Smith testified as
follows:
Q. (By Williams) Do I understand
your testimony now to be that
Mrs. Nichelson was somewhere in
between: that she was competent
to do some phases of microbio-
logical lab work but not fully
competent to do others?
A. Sir, in our opinion she was fully
competent to do the lab work. She
had indicated to us that she
wanted to continue training,
because she did not feel comfort-
able at doing Saturday work by
herself. Therefore, we were
- 32a -
granting that wish and giving her
as much time for the training as
she felt was necessary.
All right. So then get back to my
Original question on that Monday
you gave as one of the reasons
for assigning Mrs. Nicheison down
to the floor that she was in
training, as I recall, and that
-~- let me see if I can get you
exactly right, so I won't
misquote you -- that Mrs.
Nichelson had been in training or
microbiological lab work and that
it was not a good week for
training. So the training that
you were talking about was not
this work during the week for
which you just testified she was
fully competent, but simply her
feeling that she wasn't fully
competent on the Saturday work.
The training required the direct
attention of the microbiologist,
who would not have been able to
give her that type of direction
during that week. Therefore, it
would not have been a good week
for training.
Did I understand you? Did you
just testify that you felt she
was fully competent to do the
micro-lab work during the week?
Yes, sir. If I had not felt she
was competent, I would not have
assigned her to that on the
preceding Friday.
- 33a -
Q. (By Mr. Williams) Mr. Smith, was
the substance of your answer in
response to my question as to
whether Mrs. Nichelson could not
have undergone training in the
course of Mr. Johnson correcting
what had been invalidated that
Saturday in testing, and you said
yes, if he assigned it to her, or
something like that. Was it your
intention by that answer to say
yes, she could have undergone
training?
A. Yes, she could have.
Mr. Smith indicated that Hale was
also in training on the analytical side.
It is plaintiff's assertion that this
assignment to the floor for one week in
January of 1980 was a demotion and that
she suffered humiliation and embarrassment
as a result. In the Quality Assurance
Department working on the floor. was
considered a lower level job assignment
according to Ms. Anna Cole, a lab
technician. Wondolowski testified that a
lab technician and a quality assurance
- 34a -
monitor were over qualified for the job
plaintiff performed while transferred to
the floor.
Ms. Pat Vaughn a white production
worker on temporary loan to the Quality
Assurance Department, had been transferred
from Production to take temperatures of
waffles at the freezer the previous week.
Plaintiff was transferred to take tempera-
tures that following week when Production
required Vaughn's return. Ms. Delores
Jones, a quality assurance monitor was
transferred by Smith to work with Johnson
in the laboratory on the micro-lab bench
the same week plaintiff was assigned to
the floor. Mr. Smith admitted on cross
examination that Ms. Delores Jones took
plaintiff's place in the laboratory that
week. Ms. Jones had worked in the past
- 386 <-
performing routine laboratory work,
washing dishes and preparing media in the
laboratory according to Mr. Smith.
It is Quaker Oats' position that
Nichelson was not transferres to the floor
as punishment or a demotion but was
transferred because someone was needed to
work on a special project initiated by the
company's Director of Frozen Foods
Research. Quaker Oats also asserts that
the work performed by the plaintiff during
the week of January 14, 1980, was the same
work performed by white employees.
Title VII and 42 U.S.C. § 1981 are
coextensive and coterminus federal
statutes which afford a federal remedy to
an aggrieved litigant who has _ been
discriminated against in employment
because of race. Johnson v. Railway
Express Agency, Inc., 421 U.S. 454,
459-460, 95 S.Ct. 1716, 1719-1720 (1975).
- 36a -
A plaintiff such as Nichelson
proceeding under Title VII and 42 U.S.C.
§1981 has the burden of proving by a
preponderance of the evidence a prima
facie case of racial discrimination.
McDonnell Douglas, supra; Long v. Ford
Motor Co., 496 F.2d 500 (6th Cir. 1973).
Under the McDonnell Douglas test, Nichel-
son may establish a prima facie case by
showing 1) that she was a member of a
racial minority, 2) that she and a
similarly placea white person received
dissimilar treatment, and 3) that suffi-
cient evidence exists from which the Court
can find a causal connection between race
and the alleged acts of Quaker Oats. The
facts which comprise a prima facie case
may vary.
To prevail under either Title VII or
42 U.S.C. § 1981, Mrs. Nichelson must show
by a preponderance of the evidence that
- 37a -
race was a factor in Quaker Oats' action
transferring her to the floor for one week
in 1980. Plaintiff must show a purposeful
discrimination in the decision to demote
her to the floor by a preponderance of the
evidence Burdine, supra; Washington v.
Davis, 426 U.S. 229, 96 S.Ct. 2040
(1976). Mrs. Nichelson is not required to
show that the challenged action rested
solely on racially discriminatory pur-
poses, but rather that the discriminatory
purpose or intent was a factor in the
decision.
Mr. Smith testified as to a labora-
tory technician being assigned to the
floor as follows:
A. When was the last time previous
to that (the assignment of
plaintiff to the floor) that you
had assigned Mrs. Nichelson or
any other lab technician to take
temperatures for a week on the
floor?
- 38a -
A. That test had never been done by
a lab technician before on the
floor.
Q. All right. So the answer is
never?
A. Sir, you asked if I had ever
assigned one to take tempera-
tures. I don't know is the
answer to that question. I
don"t know.
Q. You don't know of any time that
you ever assigned a lab techni-
cian to go down on the floor and
take temperatures in a job that
you had previously had an hourly
employee doing, do you?
A. I don't know of any time, no.
Nichelson informed Dean that she felt
her assignment to the floor was punishment
for being absent from work because she had
to be in court. Dean testified he asked
Smith if he transferred Nichelson as
punishment and Smith told him no and that
she was sent to the floor because of a
special project. Dean accepted Smith's
explanation and made no further inquiry
- 39a -
into plaintiff's charge that she was being
punished. Nor does he recall asking
Nichelson what circumstances made her
think her assignment was discipline.
Mr. Dean stated sbete are rules at
the plant describing the discipline
policy, but the supervisors have free
reign in disciplining employees. Also he
stated supervisers have no_ specific
guidelines to follow when administering
discipline. Further, he stated reassign-
ment to another job ie not part of any
discipline program at the plant.
Nichelson and Hale were both labora-
tory technicians under Smith's supervi-
sion. Nichelson is black, and Hale is
white. The clean up required in the
laboratory was a result of incomplete work
left by both Nichelson and Hale. Both
were in training to some extent. There is
sufficient evidence in the record from
- 40a -
which the Court can reasonably find a
causal connection between race and the
alleged acts of Quaker Oats. Nichelsen
has shown sufficient facts to sustain an
inference that her transfer to the floor
was racially motivated and that she was
treated in a dissimilar manner from Hale,
a white similarly situated. Sanders v.
Sherwin Williams Co., 495 F.Supp. 571, 573
(E.D. Mich. 1980). Courts may properly
infer discriminatory animus from the
actions of the employer upon the estab-
lishment of a prima facie case “only
because we presume these acts, if other-
wise unexplained, are more likely than not
based on the consideration of impermissi-
ble factors." Furnco Construction Corp.
v. Waters, 438 U.S. 567, 577, 98 S.Ct.
2943, 2949 (1978).
- 4la -
Once the plaintiff has established a
prima facie case, tne burden shifts to
the defendant to articulate a legitimate,
non-discriminatory reason for its action.
When the defendant ebdied ches a non-dis-
criminatory reason, the plaintiff may
still prevail if she can prove by a
preponderance of the evidence that
defendant's non-discriminatory reason is
merely pretextual. Burdine, supra: Becton
v. Detroit Terminal of Consol. Freight-
ways, 687 F.2d 140, 141 (6th Cir. 1982).
The principles which govern the procedural
matters in a Title VII case apply with
equal force to a 42 U.S.C. § 1981 action.
Long at 505.
As previously stated, defendant's
articulated reason for demoting plaintiff
to the floor to take temperatures of
waffles was because she was in training,
her training on the microbiological side
- 42a -
could not be continued that week, and
Smith felt there was some element of blame
between plaintiff and Hale. Quaker Oats
asserts this assignment was within the job
description of a laboratory technician and
other employees had been assigned this
task on the floor. However, the Court
finds the taking of temperatures by other
employees was not for punishment. The
employees who defendant asserted performed
the same test as plaintiff were managerial
and supervisory employees for the most
part. Gary Haines, Director of Frozen
Foods Research and Kent Salisbury both
white, came to Jackson from Berrington,
Illinois, to set up the test and took
temperatures of frozen waffles. Wondolow-
ski and Dale Smith performed the test.
Those employees of Quaker Oats were
primarily concerned with making sure the
tests were correctly set up and adminis-
- 43a -
tered to insure the validity of the
results. They performed temperature tests
in the initial stage of the operation.
Thoss employees cannot be considered to be
Similarly situated to plaintiff. Pat
Vaughn was the non-management and non-
Supervisory employee assigned to take
temperatures after the studies had been
established.
Quaker Oats argues plaintiff was not
demoted because there was no reduction in
her pay when she worked the week on the
floor. The Court does not agree with this
position. Black's Law Dictionary defines
demotion as a reduction to a lower rank or
grade, or to a lower position. Nichel-
son's assignment to the floor to take
temperatures was a reduction to a lower
rank or grade. The fact that she suffered
no reduction in pay is not controlling on
whether she was demoted. The job of
- 44a -
laboratory technician did not usually call
for the performance of such mundane tasks
as taking temperatures of waffles. MThis
is probably why Pat Vaughn was originally
assigned to take the temperatures. Prior
to the fall of 1980, regular trips to the
floor were required by laboratory techni-
cians for sample collections to be brought
to the laboratory for analysis. However,
laboratory technicians were not required
to take temperature tests on the floor
prior to the fall of 1980. The legisla-
tive intent behind Title VII and 42 U.S.C.
§ 1981 is to protect employees from any
form of disparate treatment because of
race in the terms and conditions of their
employment regardless of the label placed
on the discriminatory practice. Gilbert
v. General Electric Co., 519 F.2d 661, 663
(4th Cir. 1975), rev. on other grounds 429
U.S. 125, 97 S.Ct. 701.
- 45a -
When Vaughn was returned to her regu-
larly assigned job in the production
department, Smith had to assign someone to
take the ‘tests. He selected Nichelson who
was black. When he transferred Nichelson
to the floor, he did not allow her to
explain why the work was’ incomplete.
Instead, he told her to go to the floor
and perform test until he could get his
head together. Hale was merely asked what
happened concerning the Saturday work.
Hale was allowed to leave her _ work
incomplete without punishment of any kind.
She had Smith's permission to leave the
work incomplete.
Smith asserted Nichelson's reassign-
ment to the floor was neither punishment
nor a demotion and he told her so.
However, the Court does not accept Smith's
assertion that the reassignment’ was
reassignment to the floor was punishment
- 46a -
and a demotion and Smith's becision to
reassign her to the floor was motivated by
her race. Race may not have been the sole
factor for his decision, but the decision
was due in part because of plaintiff's
race. Ford at 506. No laboratory
technician had ever been assigned to take
temperatures on the _ floor. Mr. Nold
testified it was not normally within the
function of a laboratory technician to go
down on the floor and take temperatures,
replacing an hourly employee. Nichelson,
a black laboratory technician, was
admittedly over qualified for this assign-
ment. Smith assigned Delores Jones, a
qualityassurance monitor, a position
beneath plaintiff's, to work in Mrs.
Nichelson's place in the laboratory. The
Court cannot close its eyes to management
decisions motivated by race. Nichelson
has carried her burden by proving by a
- 47a -
preponderance of the evidence that Quaker
Oats' articulated reason, of blame and
training, is not the true reason for her
demotion. Viewing the record in its
entirety, and evaluating the objectivity,
sincerity and honesty of the witnesses,
the Court concludes that Mrs. Nichelson's
demotion for a period of one week was
racially motivated. Mr. Smith certainly
treated Mrs. Nichelson, a black woman,
vastly different from the way he treated
Ms. Hale, a white woman. Although this
is not a class action, the treatment of
Plaintiff along with other blacks at the
plant by Quaker Oats' officials cannot be
ignored by the Court in determining the
employer's motives. Title VII and 42
U.S.C. § 1981 tolerates no racial dis-
crimination in employment, subtle or
otherwise. Burroughs v. Marathon Oil Co.,
446 F.Supp 633, 638 (E.D. Mich. 1978).
- 48a -
TWO-DAY SUSPENSION
Another element of plaintiff's claim
alleging racial discrimination in employ-
ment concerns a two-day suspension she
received in February of 1980. Nichelson
alleges she was suspended on a charge of
overstatement of hours worked because of
her race. Mrs. Nichelson began receiving
training on the microbiological side of
the laboratory in October of 1979. The
plant microbiologist trained her to
perform certain microbiological tests for
the purpose of enabling her to work
independently on weekends. Smith in-
struct-1i Johnson to work with Nichelson
one weekend before she was assigned to
work alone in the laboratory on weekends.
Johnson and Nichelson worked together
on Saturday, January 5, ° 1980. The
following Monday when she was recording
- 49a -
her time for the previous Saturday, she
asked Johnson how many hours he put on his
time card. Nichelson said Johnson told
her eight hours. Johnson was not a
supervisor but on ‘weekends had the
authority to tell Nichelson what to do.
Accordingly, Nichelson put down eight
hours. She testified she and Johnson
worked about seven hours that Saturday and
that they left the laboratory together.
Johnson testified he did not recall any
conversation with Nichelson about any time
card or whether Nichelson asked him about
that subject. He said his own practice
was to record work time exactly or as near
exactly as possible. Johnson admitted
there seemed to be some confusion about
employees recording time and management
held a meeting with plant employees to
clarify the matter.
- 50a -
Weighing the testimony of Nichelson
and Johnson, the Court finds the testimony
of Nichelson to be the more credible.
Nichelson is specific in her testimony
that she asked Johnson how many hours he
recorded on his time card and he told her
he recorded eight. She did likewise.
Johnson said he could not recall any such
conversation with Nichelson. He did,
however, admit there seemed to be some
confusion among employees about recording
time at the plant.
Nichelson stated that management took
no action against her when she reported
eight hours on her ti.e card that Saturday
she worked with Mr. Johnson. She also
stated since she was not familiar with
Saturday work she thought it was customary
to put down eight hours. In February of
1980, Nichelson worked her first Saturday
- 5la -
alone. She again reported eight hours on
her time card. She worked about seven
hours on that Saturday.
Gregory Nold, Laboratory Manager,
reviews employee time sheets at the plant.
In regard to plaintiff's suspension
for overstatement, Nold stated he had
been at the Jackson plant for only two (2)
weeks and was reviewing the time sheets as
part of his normal job functior. He
noticed the plaintiff had eight (8) hours
Saturday overtime on her time sheet. He
thought that unusual based upon his past
experience at the Missouri plant at which
he worked. There, it was unusual for an
employee to have that much overtime. He
stated he also thought it was an unusually
high number of hours because he had been
in the lab on that Saturday and had not
seei;) the plaintiff. Nold then had a
conversation with Wondolowski regarding
- 52a -
the Saturday events. Wondolowski told
Nold she had left the lab at 3:30 p.m. and
locked the lab, but she did not see
Nichelson. Nold then stated he decided to
discuss the matter with Smith as Nichel-
son's conduct appeared to be improper.
Smith and Nold decided to call Nichelson
in to discuss the matter.
When plaintiff reported to work the
following Monday, Nold told her to go to
the personnel office. Smith and Douglass
Dean were in the personnel office when
Nichelson and Nold arrived. Nichelson
testified that Dean presented her with her
time card for the previous Saturday. Dean,
Smith and Nold asked Nichelson if she
worked eight hours. She responded, no.
They then told Nichelson she had recorded
eight hours on her time card. Nichelson
said she told all three that she and
Johnson had done the same thing. before,
5 Wh PRUE RTS SATE KBP Oe
MASSA PS:
- $3a:.-
recorded eight hours when they worked less
than eight hours. According to Nichelson,
Smith stated that she was stealing the
company's money and that was a terrible
offeuse. He then asked her to leave the
room and wait until they called her.
Thereafter, she was told by Dean that she
was suspended indefinitely. Smith told her
to go and get her coat and leave the
plant. 3
Nichelson telephoned the plant
manager and informed him that she had been
suspended indefinitely from her job for
doing the same thing she did when she
worked the Saturday before with Johnson.
After that call to the plant manager, Nold
called Nichelson and told her to report
to Smith. Nichelson said Smith told her
he was sorry the situation happened and
that she should not trust Hale. Thereupon
- 54a -
she returned to work, she said "as if
nothing happened." Nichelson was sus-
pended for two days.
Quaker Oats admits there was a mis-
understanding among plant employees as to
how they should report time worked during
the week and on weekends due to past
instructions from their supervisors.
During the regular work week, it was a
practice, prior to the incident involving
Plaintiff, for all quality assurance
employees to record eight hours straight
time pay for work performed even if the
actual straight time hours worked on any
particular week day was less than eight
hours. It was also a practice in the
plant for quality assurance employees to
record a minimum of four hours on their
time sheets when they worked overtime on
Saturday. Quaker Oats urges the Court to
separate the regular work week time
- 65a =
situation in the plant from the Saturday
Or overtime situation. The Court thinks
that argument ignores the solidly estab-
lished fact in this record that, as
Johnson, and anne company employees
testified, there seemed to be widespread
confusion among plant employees about
recording time. In fact, management of
the plant subsequently met with plant
employees and instructed them on how to
specifically record time worked. There-
after, employees were required to record
the exact time worked.
In his deposition, Smith stated the
general misunderstanding related not to
overtime work but to other time. He
admitted, however, that in general the
time rules were not clear to “our employ-
ees." Ms. Rosa Benson, an employee of
Quaker Oats who was originally hired as a
production worker in 1976 and promoted to
Pe SNE oo be
- 56a -
quality assurance monitor in 1978 testi-
fied that before Nichelson was suspended
employees who worked more than four hours
on Saturdays reported eight hours on their
time cards regardless of the hours worked,
but after Nichelson's suspension, they
were instructed to record on their time
cards only the actual hours worked.
The testimony of Dean, Smith and Nold
is not consistent as to what was said by
all parties in the meeting with plaintiff
regarding the overstatement of hours. Dean
stated he did not Nichelson was suspended.
It is not clear from Smith's testimony
when he claims he first learned of the
practice regarding overstatement of hours.
Smith stated at one time he first learned
of the practice when Nichelson mentioned
it in the meeting which transpired in his
office before her suspension. At another
time in his testimony, Smith indicated he
- 378 =
/
was not sure of the exact date he first
learned of the practice but he first
learned of it after Nichelson's suspension
when he held meetings with his employees.
There is also testimony in the record by
Rosa Benson that Smith instructed her,
prior to Nichelson's suspension, to report
eight hours on weekends regardless of the
time she actually worked. Nold testified
that he, Smith and Dean knew, at the time
of Nichelson's suspension, of the practice
in the plant concerning overstatement of
hours. He stated they asked Nichelson to
leave the room to discuss what level of
discipline she should receive. They
discussed what Nichelson had told them
about others overstating their time. Nold
stated this was one of the factors they
considered in deciding to suspend Nichel-
son and then investigate rather than
discharge her. A letter sent to plaintiff
- 58a -
confirming her suspension for overstating
hours corroborates Nold's statement that
they all knew of the practice in the plant
of overstating actual hours worked on the
time cards. The relevant portion of the
letter is as follows:
False documentation of any
records is a serious violation of
company policy and could have re-
sulted in the termination of your
employment. You did point out
that you have been misinformed by
other department employees. We
have since taken appropriate
steps to review our department
position on the reporting of
information as relating to hours
worked, and record keeping with
all our employees.
Dean stated he asked Nichelson if she knew
the company policy regarding reporting
overtime hours and that he did not know
whether she understood him to be referring
to the policy as Dean understood it or the
- 59a -
practice followed by employees. Dean could
not remember whether the nature of the
policy was discussed with Nichelson.
Based on the credible evidence in the
record, the Court finds that Dean, Smith
and Nold must have known of the practice
in the plant of employees overstating
hours. The Court further concludes that
Nichelson overstated her hours because she
vat eolioving Johnson's example on how to
record time on her card. The managers,
smith and Nold, either did not remember or
could not recall whether Johnson's name
was mentioned. Again, Nichelson's
testimony is specific that she told Dean,
Smith and Nold in that meeting she was
following Johnson's example in explaining
why she overstated hours. Dean testified
he knew Johnson's name was not mentioned
but he does not recall or cannot remember
if the company policy on_- reporting
- 60a -
Straight time and overtime was explained
to Nichelson or whether Nichelson was
precisely asked why she overstated her
hours.
Little investigation was conducted by
Quaker Oats to ascertain whether other
employees had committed the same offense.
Instead, other employees benefited from
Nichelson's suspension. Subsequent to
Nichelson's suspension, meetings were held
with employees to clear up misunderstand-
ings employees had about reporting hours
worked on their time cards. Apparently,
no written report was made of any investi-
gation. Even after Quaker Oats management
discovered the misunderstanding about
reporting straight time as well as
overtime hours as stated to them by
Nichelson, she was not afforded similar
treatment given other employees. She was
never paid for the two days.
~ 61a -
It also puzzles this Court why, if
the overstatement of hours was such a
serious offense and this was the first
occasion management could remember of an
employee cieaeititnn this serious offense,
they could remember or recall so little
concerning the content of their discussion
with Nichelson. Nor could management
personnel recall or remember when they
held meetings to state the company policy
or whether they asked or ascertained if
other employees had overstated their work
hours.
Nichelson certainly was not afforded
the same treat..ent as two white employees,
Ms. Patsy Alexander Reed and Ms. Frances
Morris who were in a similar position. Ms.
Reed testified that she and Ms. Morris
were called into the office by Dale Smith
for falsifying time sheets. When they
denied the accusations, Smith told them to
- 62a -
go back to work. Reed and Morris were
never disciplined in any way. Nor did
Smith conduct any meaningful investigation
to verify their version of what happened
that morning. He stated no investigation
was warranted since they denied the
charges and two other employees stated
they arrived at work at the time they
said.
Based upon all of the evidence in the
record, and an analysis of that evidence,
the Court finds the defendant discrimi-
nated against Nichelson, a black woman,
when she was selected for punishment by
suspension for two days for an alleged
offense for which no other employee in the
plant was punished because of her race and
that defendant's articulated reason,
falsifying time sheets, is a pretext and
nothing more.
- 63a -
QUALITY ASSURANCE SUPERVISOR
In October of 1980, after this suit
was filed, Quaker Oats created two new
Quality Assurance Supervisor positions.
Management posted notices of these new
supervisory positions and urged all
qgualiity asurance empoloyes, laboratory
technicians and monitors to apply.
Nichelson applied for one of the supervi-
sory positions,but she did not receive the
job.
Management selected Delores Jones, a
black quality assurance monitor with a
high school education, and Ms. Shirley
Pounds, a white quality assurance monitor,
with less than a high school education,
for the positions of Quality Assurance
Supervisors. Quaker Oats asserts the
positions were recreated due to plant
re-organization. The Quality Assurance
- 64a -
Supervisor positions had been in existence
in the early 1970's but had been elimi-
nated in 1976.
Nold testified the Quality Assurance
Supervisory position involved supervising
the work of the quality assurance monitor.
Knowledge of production work would also
aid a Quality Assurance Supervisor in
performing her job, according to Nold. The
supervisor is primarily concerned with the
process and weight control proaram.
Additionally, Nold stated leadership
capabilities and prior experience on the
line were characteristics he sought in
making his selections for the two supervi-
sory positions. He admitted that experi-
ence as a quality assurance monitor was
not an absolute requirement.
Nold also stated there were particu-
lar objectives established for a Quality
Assurance Supervisor which are as follows:
- 65a -
1) Reporting relationships between
the quality assurance supervisor
and the quality assurance
monitors:
2) Working with the laboratory
manager to understand the
computer weight system as it
relates to process control:
3) Becoming familiar with the
laboratory bench top method/pro-
cedures both in analytical and
microbiological:
4) Providing a framework to improve
employee/supervisor relations and
continue to develop continunity
between shifts:
5) Working toward developing a
system of reworking standard
product to improve case account-
ability: and
6) Attending at least one seminar
during the current year.
The Quality Assurance Supervisory
position is described best as a general
Supervisory job to handie basic problems
that occur on the off shifts when the
majority of management is not there to
handle such problems. The supervisors
- 66a -
handle personnel problems such as sickness
on the job and questions relating to
policy and deal with situations regarding
whether a product is substandard or not.
Smith stated that the one specialized
thing a Quality Assurance Supervisor would
have to know would be how to program
computer.
Nichelson has established a prima
facie case that she was not promoted to
the position of Quality Assurance Supervi-
sor because of her race and in retaliation
for having filed a charge against Quaker
Oats with the EEOC and for having filed
‘
this lawsuit. McDonnell Douglas estab-
lished the basic requirements to establish
a prima facie case under Title VII and 42
U.S.C. § 1981. The McDonnell Douglas
formula must be adjusted to cases of
discriminatory refusal to promote. In
establishing a prima facie case, Nichelson
- 67a -
has shown that she belongs to a protected
group; that she was qualified for and
applied for a promotion; that she did not
receive the promotion, and that another
employee with similar qualifications
received the job. Nichelson is a black
female. The Quality Assurance Supervi-
sor's job was offered to all quality
assurance monitors and laboratory techni-
cians. Nichelson was initially employed
as a production worker and promoted to
laboratory technician. See Aikens v. U. S.
Postal Service Bd. of Governors, 665 F.2d
1057 (D.C. Cir. 1981). She has three years
of college education. Nichelson applied
for the supervisory job which was created
in 1980. She did not receive the promo-
tion. Quaker Oats promoted Delores Jones
and Shirley Pounds.
- 68a -
Quaker Oats attempted to make much of
fact that Ms. Jones is black and
therefore asserted Nichelson has not
established a prima facie case of racial
discrimination on her failure to promote
claim. The court in DeLesstine v_ Fort
Wayne State Hosp., Etc., 682 F.2d 130 (7th
Cir. 1982), petition for certiorari filed
September 22, 1982, rejected this same
argument raised by the employer/defendant
in that suit. This Court concurs with the
rationale of that court and adopts it as
its own in rejecting Quaker Oats, asser-
tion that Nichelson has not established a
prima facie case on this point. The court
stated the following:
That reasoning would foreclose a
plaintiff from proving a rima
facie case unless an employer
discriminated not only a plaintiff
but also against every so called
minority by hiring a so called
‘non-protected person to fill the
- 69a -
position. Appellants' argument
defies the legic, purpose and
language of Title VII.
The reference to an employer
seeking applicants from persons of
"complainant's qualifications" in
the (iv) element of the McDonnell
model for establishment of a prima
facie case, does not refer to the
complainant's racial, ethnic,
gender, religion, or national
origin background. Title VII does
not establish a class of protected
minorities and non-protected
others. (citation omitted) "It is
clear beyond cavil that the
obligation imposed by Title VII is
to provide an equal opportunity.
for each applicant regardless of »
race, without regard to whether
members of the applicant's race
are already proportionately
represented in the work force."
Furnco Cons. Corp. v. Waters, 438
U.S. at 579, 98 S.Ct. at 2951. We
hold that the reference to
"complainant's qualifications" in
the McDonnell model refers to a
complainant's pertinent’ skills,
talents, learning, training, and
experience. The central focus of
the inquiry in a Title VII case
such as this is whether’ the
employer is treating a plaintiff
less favorably than others because
of his race, color, religion, sex
or national orgin. Id. at 132,
ip:
- 70a -
The establishment of a prima facie
case merely raises an inference of racial
discrimination. Quaker Oats articulated
that Jones and Pounds were selected for
the job primarily because they had more
experience on the line. Nold, one of the
supervisors who selected Jones and Pounds,
Stated at the time he made the selection
he did not know that Nichelson had some
experience on the line. If this was as
important a criteria as Quaker Oats
asserts, it puzzles this Court that the
decision maker selected supervisors
without ascertaining the qualifications of
all applicants. As to the objectives
established for a Quality Assurance
Supervisor, the Court finds that a
laboratory technician such as Nichelson
was just as quaiified as the applicants
- 71a -
selected to meet. the requirements and
objectives of this general supervisory
job.
Subjectivity in the selection of the
supervisors is apparent from Nold'‘s
testimony:
Q. Now, Mr. Nold, what you actually
did was that you just made a
subjective decision about the
two people that you wanted to
appoint as quality assurance
monitors [supervisors], isn't
that correct?
a Decisions based on experience.
Q. Based on their experience as
perceived by you subjectively?
A As perceived by me.
When it is considered that the major
objective criteria, experience on _ the
line, was not available to Nold when he
made his selections, the Court is left
with a decision based on _ primarily
subjective criteria. Objective criteria
- 12a -
is favored by the courts since subjective
criteria may be an effective shield for
discriminatory. practices. Rowe vy.
General Motors Corporation, 457 F.2d 348
(5th Cir. 1972): Lee v. Conecuh County Bd.
of Education, 634 F.2d 959, 963 (5th Cir.
1981); Abrams v. Johnson, 534 F.2d 1226
(6th Cir. 1976). Subjective criteria may
be a valid factor that an employer
consider but it should be combined with
meaningfully applied objective criteria
which indicates the selection was inher-
ently fair. Rowe at 359: See Nath v.
General Electric Co. 438 F.Supp. 213
(E.D. Pa. 1977), aff'd, 594 F.2d 855 (3rd
Cir. 1979); Parson v. Kaiser Aluminum &
Chemical Corp. 575 F.2d 1374, 1.385-138
(Sth Cir. -1978)3 Rowe v. Cleveland
Pneumatic Co., Numerical Control, Inc.,
690 F.2d 88 (6th Cir 1982). Any procedure
- 73a -
employing subjective criteria will be
carefully scrutinized to prevent abuse.
Id. at 93.
Dean stated as personnel manager he
considered experience, merit, education
and personnel work performance important
factors to consider in making a promo-
tional decision. However, he also stated
the company had no written, objective
guidelines to aid management personnel in
making promotional decisions. Dear said
he participated in promotional decisions
along with other management personnel. The
management person or persons in the
department where the promotion was to
eccur assisted Dean in the promotional
decision. In this case, Dean, Smith and
Nold selected the new Quality Assurance
Supervisors. The procedures used by the
management personnel permitted them to
select for promotion those persons they
- 74a -
desired based on unlawful criteria. The
Civil rights laws do not affect the
employer's discretion to choose among
equally qualified candidates, provided the
decision is not based on unlawful crite-
ria, Burdine, supra.
To prevail on a racial discrimination
claim, alleging disparate treatment, the
plaintiff must show by a preponderance of
the evidence a discriminatory motive on
the part of the defendant. Intentional
discrimination may be proved by direct or
circumstantial evidence. Burdine, supra. A
showing of disparate treatment can be
buttressed with evidence of a history of
discrimination practiced by the employer,
individual instances of discrimination and
evidence that the employer had the oppor-
tunity to discriminate. Payne v. Travenol
Laboratories, Inc., 673 F.2d 798 (5th Cir.
1982). Intent may be inferred by the
- 75a -
Court assessing all the relevant facts and
circumstances of this case. Proof of
discriminatory motive can in some situa-
tions, “be inferred from the mere fact of
indifference in treatment." Teamsters v.
United States, 431 U.S. 324 at 355 (1977).
An incident which occurred after this
Suit was filed in January of 1982,
revealed something of Smith's attitude
toward black workers at the plant. Smith
came into the kitchen area in the quality
Assurance Department where the employees
drank coffee. When he entered the room,
he saw Deborah Hale and Nichelson in the
kitchen. Hale stated in substance the
interchange which occurred between Smith
and Nichelson as follows:
We were in the kitchen of the lab.
She (Nichelson) came in to get a cup :
of coffee. Dale Smith came in just
a few minutes later. Vernice had
gotten coffee, which was done by the
employees. Dale Smith asked
Nichelson didn't she have any work
Te
- 76a -
to do and she said she had just sat
down. She told him it was no big
deal and she got up and left and
Smith went out behii.d her.
Hale said that Dale Smith seemed
upset. She said that Smith did not say
anything to her. When asked what her
reaction was to Smith's attitude, Hale
said:
I was shocked I could not believe
it and stated that to Mrs. Nichel-
son.
After this lawsuit was filed, Nichel-
son was required to work overtime while
she was sick while Patsy Heed and Myrtle
Crider were not required to work overtime
when sick. When Nichelson was asked in
January of 1981 to work overtime she told
Nold she was sick. Nold denied this. He
testifiec that Delores Jones, Nichelson's
supervisor, asked her to work overtime and
plaintiff told her she did not have a
- 77a -
babysitter. Nold stated he then told
Nichelson she was the lowest on overtime
and she would have to work. Nold did not
recall whether Nichelson told him she was
not feeling well. Nichelson worked
overtime that night.
Reed stated that after the above
incident, Delores Jones asked her to work
overtime. Reed told Jones she was sick
and that she was not going to work. Reed
stated she talked to Nold and told him she
was sick and he told her “that you cannot
make anyone work that is sick." Reed was
not required to work overtime. Reed
stated she knew at this time Nichelson had
been required to work overtime when she
was sick.
Purther, Reed testified WNichelson
because upset when she learned that Reed
had not been made to work sick. Reed,
Nichelson, Crider and Jones went to
- 78a -
Nold's office to confirm what the policy
was \in regard to working overtime. Nold
told all of them at that time an employee
was not required to work overtime if he or
she ‘was sick. Nold testified it is his
policy that if an employee is not feeling
well he is required to work overtime but
if he is sick and unable to work he is not
required to work overtime. According to
Nold, an employee would have to specifi-
cally tell him that he or she was unable
to work overtime to be excused. Again,
plaintiff, a black employee,was not
afforded the same treatment as a white
employee in a similar situation.
The record in this case is replete
with testimony indicating a disturbing
racial attitude in the Quaker Oats plant
in Jackson. The evidence of racial
prejudice is strong in this case. A black
witness, Anna Cole, testified that she
- 79a -
formerly worked at the Quaker Oats Company
in Jackson. She stated that she resigned
and left Quaker Oats after it was obvious
to her that she would not be able to
advance in that plent. She testified that
Smith told her if she expected to advance
she should seek employment with another
company as he did not see anything for her
until retirement. She also testified that
Smith used racial slurs in her presence.
She stated that when talking about the
"Roots" television program Smith said "I'm
just glad I don't have any niggers in my
family." She also said Smith told her he
did not want any blacks on his street
because it would devalue his property.
Rosa Benson corroborated Cole's testimony
as to Smith's remark about not wanting any
blacks on his street. Minnie Womack, a
black employee, was suspended about the
same time as Nichelson for leaving work
- 80a -
without reporting to her immediate
Supervisor. However, Mrs. Womack stated
she did tell a production supervisor she
was leaving the plant because she was
sick. The company officials who suspended
Womack never made any effort to ascertain
if Womack had indeed informed a plant
supervisor she was leaving the plant.
After their suspensions, Nichelson
and Womack approached Douglass Dean and
asked him if he thought it was fair that
two black women were suspended when all
employees did the same_ thing. They
testified he responded:
They had to start somewhere and
make an example of someone. He
said “think of it as a vacation."
When asked why they started with
two black women employees, he did
not respond.
- 8la -
Based on the totality of the facts
and the circumstances in this case the
Court finds Nichelson has carried her
burden by a preponderance of the evidence
proving that Quaker Oats refusal to
promote her was racially motivated. The
Court finds Quaker Oats' articulated
reason is pretextual. Burdine, supra:
Long, supra.
The Court also finds that Nichelson
has established a prima facie case that
Quaker Oats failed to promote her in
retaliation for engaging in activities
protected by Title VII. Quaker Oats knew
a charge had been filed with the EEOC
against it and that this lawsuit had been
filed by plaintiff when it selected Jones
and Pounds for the supervisory jobs.
Nichelson was qualified for the job. The
timing of Quaker Oats' action raises an
inference of retaliatory actions. Sutton
- 82a -
v. National Distillers Products Co., 445
F.Supp. 1319 (S.D Ohio 1978), aff'd, 628
F.2d 936 (6th Cir. 1980).
Defendant's articulated reason for
not promoting Nichelson to the Quality
Assurance Supervisor's position is necely
pretextual. Based on the totality of
facts in this case and the entire web of
circumstances presented, the Court finds
the decision by Quaker Oats not to promote
Nichelson was motivated substantially by
her engaging in activities protected by
Title VII. Jones and Pounds had not
filed a charge. Sutton at 1328. The
facts found by the Court to establish a
claim for racial discrimination are
relevant to the establishment of a claim
based on retaliatory motives.
- 83a -
DEMOTION TO QUALITY ASSURANCE MONITOR
In October, 1980, some six months
after this suit was filed Nichelson was
demoted from laboratory technician to the
position of monitor on the floor where she
remained until June, 1981. When Anna Cole
resigned, Nichelson was reinstated as
laboratory technician in replacement of
Cole. Nichelson suffered no reduction in
pay because of her demotion to the monitor
position. Defendant asserts pursuant to a
reoganization of the Quality Assurance
Department, it was decided that the force
in the laboratory should be reduced.
Nichelson was transferred to the floor
bécaube she was the junior laboratory
technician, with less seniority as a
laboratory technitian according to Quaker
Oats.
- 84a -
Nichelson was hired by defendant in
August, 1976, as a production worker with
three years of college. She was promoted
to laboratory technician in May of 1977.
Deborah Hale was hired as a laboratory
technician with a tenth grade education on
December 1, 1976. Anna Cole became a
laboratory technician in 1972.
Dean and Nold testified the company
policy is to reassign, or transfer the
hourly employee with the least service in
that job classification. It was stated
the person with least seniority in a
particular job classification would be the
one laid-off if a decision was made to
lay-off employees within a department.
This asserted company policy has not been
reduced to writing. There was no formmal-
ized established policy at the time
plaintiff was assigned to the monitor
position in 1980. Nor was there a
- 85a -
collective bargaining agreement governing
lay-offs or transfers. Nold stated
someone in the personnel department
relayed this asserted policy to him.
A white employee's job as a monitor
was eliminated about this - same time.
Myrtle Crider was told she had to go to
pizza if not she would be terminated.
Quaker Oats asserts this indicates whites
received the same treatment as Nichelson
in similar situations. It is indicated by
Crider's testimony that she was a monitor
who had been performing paperwork func-
tions for a couple of years and that her
job preparing paperwork was eliminated.
There is no evidence that any other
employee was performing this function. At
the time of trial Crider was working in
the laboratory but she testified she is
still assigned to pizza.
- 86a -
The Court finds Quaker Oats' asserted
policy that the junior employee in a
particular job classification is the one
selected for transfer if there is a
reduction in force was used as a subter-
fuge in the case. Based on all the facts
as found by this Court and considering the
obvious racial turmoil in Quaker Oats'
Jackson plant, Nichelson, the Court finds,
was demoted to the monitor position
because of her race and in retaliation for
seeking to exercise rights provided to her
by federal law.
Additionally, Nichelson asserts
Quaker Oats has violated her civil rights
protected by 42 U.S.C. §§ 1985 and 1986
and the thirteenth and the fourteenth
amendments. Nichelson has failed to
establish that she is entitled to relief
under any of the above provisions of law.
- 87a -
Title 42 U.S.C. § 1985 protects indi-
viduals from a conspiracy to interfere
with their civil rights. Based on the
evidence presented an trial, the Court
finds that no conspiracy to interfere with
Nichelson's civil rights was established.
Cameron v. Brock, 473 F.2d 608 (6th Cir.
1973). To have a claim under 42 U.S.C. §
1986, plaintiff must establish a claim
under 42 U.S.C. § 1985. Rogin v. Bensalem
Township, 616 F.2d 680 (3rd Cir. 1980);
Dowsey v. Wilkins, 467 F.2d 1022 (5th Cir.
1972). Since Nichelson has failed to
establish any right to relief under 42
U.S.C. § 1985, her claims under both 42
U.S.C. §§ 1985 and 1986 will be dismissed.
Likewise, Nichelson's claim pursuant
to the Thirteenth and Fourteenth Amend-
mentsto the United States Constitution
will be dismissed. The Fourteenth Amend-
ment provides relief when an individual's
- 88a -
civil rights have been violated as the
result of significant state action.
Neither the pleadings nor _ the proof
established that Quaker Oats‘ conduct
constituted state action. In the employ-
ment context, a claim cannot be sustained
under the thirteenth amendment unless a
plaintiff has no option to work elsewhere.
Pollock v. Williams, 322 U.S. 792 (1944):
Tucker v. Harley Davidson Motor Co., 454
F.Supp. 738 741 (E.D Wis. 1978); Flood v.
Kuhn, 443 F.2d 264 (2nd Cir. 1971),
aff'd, 407 U.S. 258, 92 S.Ct. 2099 (1972).
Neither Nichelson's complaint nor the
proof presented in this case established
that she was forced to continue working
for Quaker Oats.
The Court has asked itself, time and
again, during the trial and while con-
sidering this case, why the Quaker Oats
management, particularly Smith, would
- 89a -
engage in such a systematic pattern of
racially motivated conduct against
Nichelson and other black women employees
in the plant. To try and reach a rational
answer, the Court considered the totality
of all the facts and circumstances in this
case.
While the incidents cited in this
case,if viewed as simple incidents, appear
to be marginal, the totality of all the
circumstances, considered together, shows
unmistakably that racial prejudice, racial
discrimination and racially motivated
conduct was pervasive in management
decisions affecting Nichelson and other
Similarly situated black women employees.
The Court finds from all of the proof the
obvious purpose of this racially motivated
conduct was (1) to somehow eliminate
Nichelson from the plantwork force and (2)
to make an example of her as a warning to
- 90a -
other black employees. She is black. She
sought promotion. She filed an EEOC
complaint against Quaker Oats. It just
appears that from a racial perspective,
she was a thorn in the side of management.
Por all the reasons stated in this
Opinion, the Court concludes that Quaker
Oats did treat Vernice Nichelson differ-
ently from other employees similarly
situated because of her race and in
retaliation for engaging in protected
activity in violation of Title VII of the
Civil Rights Act of 1964, as amended, and
42 U.S.C. § 1981.
Once a violation of Title VII has
been established, the Court has the power
to order whatever equitable relief,
including, but not limited to, reinstate-
ment, back pay, costs“and attorney's fees,
as may be appropriate. § 706(qg) of Title
- 9la-
Accordingly the Court will enter an
order providing relief as follows:
*1.
*2.
Immediate appointment of Vernice
Nichelson to the position of
Quality Assurance Supervisor.
The appointment of Nichelson to
that supervisory position shall
not affect the two persons pres-
ently occupying that position.
Ifvimmediate appointment is not
feasible, then the Court awards
in the alternative, front pay
consisting of the difference
between the pay of a Quality
Assurance Supervisor and the pay
now earned by plaintiff until
such time as promotion to
supervisor can be made. The
record indicates at the time the
Quality Assurance Supervisor
position was recreated in 1980
the salary range consisted of a
base amount of $1,589.00 per
month and a maximum of $2,383.00
per month. Shirley Pounds’
Salary at the time of trial was
$1,589.00 per month and Delores
Jones’ salary was $1,630.00. Mr.
Dean indicated the salary range
has increased somewhat.
The Court awards Vernice Nichel-
son back pay consisting of the
difference between the pay of a
Quality Assurance Supervisor and
the pay earned by plaintiff
since October, 1980, to place
her in the position she would
- 92a -
have been had Quaker Oats not
violated Title VII of the Civil
Rights Act of 1964.
*3. Mrs. Nichelsen is also awarded
back pay for the twoday suspen-
sion she received in February of
1980.
4. Under 42 U.S.C. § 1981, a
prevailing plaintiff can recover
both compensatory and punitive
damages. Harris v. Richards
Mfg. Co., Inc., 675 F.2d oll,
a13 (6th Cir. 1982). In refer-
ence to compensatory damages,
plaintiff is entitied to damages
for emotional dis-tress mental
and physical pain, agony and
embarrassment, which may be
inferred from circumstances as
well as proved by the testimony.
Johnson v. Railway Express
Agency, 421 U.S. ist 460
‘SDDE Ruayan Vv. eS 427
U.S. 160, . . 1976):
Garner v. Giarrusso, 571 F.2d
7330, 1333 (Sth Cir. 1978).
5. Counsel for Nichelson will be
awarded reasonable attorney fees
to be taxed as part of the costs
which are hereby adjudged
against Quaker Oats. Northcross
v. Board of Education Of Memphis
City Schools, 611 F.2d 624, rath
*The financial information necessary to
compute the sums due must be filed with
the Court by Quaker Oats within 20 days
from the date of this order.
- 93a -
Cir. 1980), cert. denied, U.S.
911 (1980). Counsel for Nichel-
son will submit forthwith an
Affidavit in support of his
Claim for said attorney fees.
Defendants will respond within
ten days and, if no agreement
can be reached between the
parties the matter will be
resolved by the Court.
6. The Court will enter an Order
permanently enjoining Quaker
Oats from any further violation
of Title VII of the Civil Rights
Act of 1964, as amended, and
requiring that notice of the
injunction be posted promptly in
the Jackson plant. |
The Seventh Amendment guarantees a
jury trial where a plaintiff is seeking
legal relief, either compensatory or puni-
tive damages, even though the right to
such relief is created by federal statute.
In an action brought under Title VII and
42 U.S.C. § 1981 both parties have a right
to a jury trial on the legal claims under
42 U.S.C. § 1981. However, a party can be
held to have waived his right to a jury
- 94a -
trial if he does not timely demand a jury
trial. Fed.R.Civ.P. 38(b). Plaintiff's
legal claim under 42 U.S.C. § 1981 was
first raised in the complaint. Both
parties addressed and briefed the Section
1981 issue in the pre-trial and post-trial
stages of this lawsuit. Quaker Oats was
fully aware of Nichelson's Section 1981
claim from the inception of this suit but
never demanded a jury trial. Harris at
815. Defendant waived its right to trial
by jury on the Section 1981 claim.
Nichelson testified she was extremely
humiliated and upset as a result of
Quaker Oats' discriminatory conduct. There
'1is substantial evidence in the record to
support her assertions. Nichelson testi-
fied she cried when she was demoted and
assigned to take temperatures on the floor
for a week, Even Smith testified he
observed plaintiff was upset by her
- 95a -
claimied demotion and she told him she was
embarrassed in the presence of other
employees because she had been assigned to
take temperatures on the floor. There is
also evidence in the record that Nichelson
was treated by her physician for nervous-
ness suffered as a result of Quaker Oats
discriminatory conduct against her.
Nichelson established injury for which she
is entitled to compensation with evidence
that she was embarrassed and humiliated by .
defendant's conduct. Vernice Nichelson is
hereby awarded compensatory damages in the
sum of $1,000.00.
While the Court finds it borderline,
Quaker Oats' conduct does not rise to that
level of such malicious or willful conduct
to sustain an award of punitive damages.
Claiborne v. Illinois Cent. R.R., 583 F.2d
142 (5th Cir. 1978).
- 96a -
The primary reason for this conclu-
sion is the Court was impressed during the
trial of the appearance, demeanor and
attitude of Mr. Charles Dunham, the Plant
Manager of the Quaker Oats plant in
Jackson. There is no evidence that he
personally participated in racially
motivated conduct against Mrs. Nichelson
Or any other black person. In fact, the
black women employees apparently turned to
him for relief. The testimony is that he
responded in a constructive way. For
example, he reduced two indefinite
suspensions to two-day suspensions. It
appears to the Court that he sought to be
a peacemaker when confronted by work place
situations with racial implications. The
Court finds that Mr. Dunham should be
commended.
- 97a -
The Court disects Nichelson's attor-
ney to prepare and present to the Court
an appropriate order to be entered in this
case within 30 days from the date of this
opinion. The proposed order should first
be presented to counsel for Quaker Oats.
ENTERED this. day of June, 1983.
ODELL HORTON, JUDGE
UNITED STATES DISTRICT JUDGE
- 98a -
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF
EASTERN DIVISION
Case No. 80
VERNICE E. NICHELSON,
Plaintiff,
Vv.
QUAKER OATS COMPANY, ET AL
Defendants.
ORDER
The above case was heard upon the
entire record before the Court upon the
following dates: 14, 15, 16 April and 14,
15, 16 June, 1982, including the plead-
ings and evidence introduced in open Court
and the entire record, after which the
Court established a schedule for the
- 99a -
attorneys to submit proposed findings of
fact and conclusions of law and thereafter
took the matter under advisement. After
considering all of the foregoing, the
Court rendered its decision on 22 June
1983, which is a part of the record and
will constitute the findings of fact and
conclusions of law by the Court under Rule
52 of the Federal Rules of Civil Proce-
dure, and pursuant to which it is there-
fore ORDERED, ADJUDGED, DECREED AND
ENJOINED as follows:
1. The Court has jurisdiction of
this case pursuant to 28 U.S.C. sections
1331, 1343(4), 2201 and 2202 for redress
of equal rights of the plaintiff secured
by 42 U.S.C. sections 1981 and 2000e, et
seq.
- 100a -
2. Defendant, Quaker Oats Company,
hereafter Defendant, has violated rights
of the Plaintiff secured by 42 U.S.C.
sections 1981 and 2000e et. seq., specifi-
cally 2000e-2(a)(1).
3. Defendant did not violate rights
of the Plaintiff secured by the Thirteenth
and Fourteenth Amendments or 42 U.S.C.
sections 1985 and 1986.
4. Although several individuals were
named as defendants in this lawsuit, the
Court finds the evidence in this case
related primarily to Quaker Oats, and the
Court will dismiss the claims against the
individuals.
5. Said violations by Defendant of
42 U.S.C. sections 1981 and 2000e-2(a)(1)
include the following:
- 10la -
a. Racially motivated demotion of
Plaintiff from her job as a labora-
tory technician to a job on the plant
floor, taking temperatures of foods,
for a week in January, 1980.
b. Discrimination against Plaintiff
by selecting her, because of her
race, for punishment by suspension
for two (2) days in January, 1980,
for an alleged offense for which no
other employee in the plant was
punished; the alleged offense,
falsifying time sheets, was a pretext
and nothing more.
c. Failure and refusal to promote
Plaintiff to one of two new Quality
Assurance Supervisor positions for
which she applied in October, 1980,
because of her race and in retalia-
- 102a -
tion for her having filed a charge
against defendant with the EEOC and
for her having filed this lawsuit.
d. Demotion of Plaintiff in October,
1980, some six (6) months after this
suit was filed, from Laboratory
Technician to the position of Monitor
on the plant floor where she remained
until June, 1981, because of her
race and in retaliation for seeking
to exercise rights provided to her by
Federal Law.
e. Other disparate treatment of
Plaintiff in such matters as dis-
crimination as between her and white
employees in reference to coffee
breaks, working overtime while sick,
suspensions for alleged violations of
rules and other matters constituting
a totality of facts and circumstances
reflecting a general climate of
- 103a -
racial prejudice in the Defendant's
plant in Jackson as set forth in said
opinion of this Court of 22 June
1983.
6. Having found that Defendant treated
Plaintiff differently from other employees
in similar situations because of her race
and in retaliation for engaging in
protected activity, in violation of Title
VII of the Civil Rights Act of 1964, as
amended, and 42 U.S.C. section 1981, the
Court orders the following equitable
relief pursuant to Section 706(g) of Title
VII, 42 U.S.C. section 2000e-5(g) which
Defendant will effectuate forthwith:
a. Immediate appointment of Plaintiff
by Defendant to the position of
Quality Assurance Supervisor. Said
appointment of Plaintiff to that
supervisory position shall not affect
- 104a -
the two (2) persons presently occupy-
ing that position. If immediate
appointment is not feasible, then the
Court awards, in the alternative,
front pay consisting of the difference
between the pay of a Quality Assurance
Supervisor and the pay now earned by
Plaintiff until such time as promotion
to supervisor can be made. Defendant
has informed the Court that front pay
based on the monthly difference in pay
between plaintiff and Shirley Pounds
as of July 1, 1983, = $615.00.
b. Payment by Defendant to Plaintiff
forthwith of back pay consisting of
the difference between the pay of a
Quality Assurance Supervisor and the
pay earned by Plaintiff since October,
1980, to place her in the position she
would have been had Defendant not
violated Title VII of the Civil Rights
- 105a -
Act of 1964. Quaker Oats reported to
the Court that back pay from November
1, 1980, through July 1, 1983,
calculated by computing the difference
in pay between plaintifé and Shirley
° Pounds is $15,689.00. It appears to
the Court this figure must be adjusted
to the present time.
Cc. Payment by Defendant to Plaintiff
forthwith of back pay for the two day
suspension she received in February,
1980. According to Quaker Oats this
sum is $83.94.
7. Under 42 U.S.C. section 1981
Plaintiff can recover both compensatory
and punitive damages and, on the evidence
in this case, is entitled to compensatory
damages for emotional distress, mental and
physical pain, embarrassment, and humilia-
tion caused by Defendant's conduct, in the
- 106a -
sum of $1,000.00 which she is hereby
awarded against Defendant. Plaintiff is
not awarded punitive damages.
{n compliance with Northcross v.
Board of Education of Memphis City
Schools, 611 F.2d 624 (6th Cir. 1979),
cert. denied, 447 U.S. 911 (1980), the
Court must determine the number of hours
of legal services performed by plaintiff's
counsel, the normal hourly billing rate
applicable, and whether an upward adjust-
ment should be made, and if so, the amount
thereof.
Plaintiff's counsel claims entitle-
ment to compensation for 184.9 hours of
legal services at the rate of $120.00 per
hour plus a 100% contingency factor or a
fee of $75,000.00. This computation of
hours is disputed The Court finds this
fee request to be unreasonable The Court
does not understand how counsel arrived at
- 107a -
a fee request of $75,000.00. Defendant
claims the number of hours should be
reduced by 10.1 hours which were devoted
to unsuccessful efforts to obtain class
certification in this case. The Court
agrees with the defendant on this issue
and finds that plaintiff's lead counsel is
entitled to compensation based on 174.8
hours. The Court finds, upon the entire
record in this case, the fair market value
of counsel's services is $120.00 per hour
or a fee of $20,976.00. The Court further
finds, based upon the entire record in
this case, that a contingency factor of
25% is reasonable. This Court is of the
opinion that assimilating that the
evidence necessary to substantiate the
charges in this case presented plaintiff's
counsel with arecs of real uncertainty and
complexity and thus with a subsubstantial
element of condition and negligence in
- 108a -
this case. In addition, the evidence, in
its totality, demonstrated that racial
acrimony permeated this’ case. : The
adjustment factor of 25% adds an addi-
tional $5,244.00 making plaintiff's lead
counsel's fees $26,220.00. The Court
concludes this fee is reasonable and has a
valid relationship to the results ob-
tained. Hensley v. Eckerhart, 103 S. Ct.
1933, 1942 (1983). Plaintiff's co-coun-
sel, Richard H. Dinkins, Esq., claims
entitlement to compensation for 9.7 hours
at the rate of $120.00 per hour. In
addition he claims entitlement to compen-
sation for one day's legal services at a
deposition in the amount of $1,500.00. The
Court finds this claim to be unreasonable
also. The Court finds Mr. Dinkins is
entitled to an hourly rate of $75.00 for
15.4 hours of legal services or a fee of
$1,155.00.
- 109a -
Defendant Quaker Oats, together with
its employees, servants and agents are
hereby permanently enjoined from = any
further violation of Title VII of the
Civil Rights Act of 1964, as amended, in
reference to any terms or conditions of
employment against the Plaintiff with
respect to demotions, promotions” and
discipline.
Defendant will also promptly post a
notice of this injunction in the Jackson
Plant on all employee bulletin boards and
serve notice of the injunction on all
managerial and supervisory employees at
Quaker Oats' Jackson Plant.
All costs of the cause will be taxed
by the Clerk against the defendant, Quaker
Oats Company, and for which execution may
issue following such taxation.
- 110a -
Defendant's motion to dismiss’ the
complaint as to the individual defendants
is granted.
Entered this _ day of September 1983.
ODELL HORTON, JUDGE
UNITED STATES DISTRICT COURT
RECOMMENDED FOR FULL TEXT PUBLICATION
Ses, Sixth Circuit Rule 24
No. 83-5746
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Veanice C. NicHELSOY, ;
On Appgat from the
Plaintif-Appellee, | 1, ited States District
v. Court for the West-
Quaxer Oats Company, ern District of Ten-
Defendant-Appellant.| "©*#°°-
Decided and Filed January 22, 1985
Before: Merritt and Kennepy, Circuit Judges; DzMascio,
District Judge.°
Menarrt, Circuit Judge. In this racial discrimination in
t case under Title VII of the 1064 Civil Rights
Act and § 1981, Title 42, U.S.C., the District Court found in
favor of plaintiff, one of approximately 500 employees of the
defendant, Quaker Oats, at its Jackson, Tennessee, frozen
food plant. The defendant presents assignments of error that
ick Ceemthhe Rebate E: ‘Delano, J of the United States
a nm for the Eastern District Michigan, sitting by
-llla-
2 . Nichelson v. Quaker Oats Company No. 83-5746
the District Court made four clearly erroneous factual find-
ings and four other trial errors on questions of law in its
opinion reported at 573 F. Supp. 1209 (W.D. Tenn. 1983).
Because we resolve this case on the basis of the factual
findings, we do not reach the defendant's assignments of
error on questions of law. Here are the four factual findings
made by the District Court which are at issue:
1. Defendant punished plaintiff by imposing a two day
suspension and a one week change in work assignment for
racially motivated reasons.
2. In retaliation for filing this lawsuit, defendant denied
plaintiff a promotion to one of two supervisory positions, one
of which was given to another black woman and the other to
a white woman.
3. Defendant made a retaliatory transfer of plaintiff to
another job assignment and used as a pretext for this transfer
the excuse that it was simply transferring the least senior
employee during a period of staff reduction.
4. Plaintiff's counsel is entitled to attorney’s fees in the
amount of $20,976.00 based on an hourly rate of $120.00, and
$5,244.00 based on a 25% contingencv factor.
L
Plaintiffs claims require a rather lengthy discussion of the
facts. The parties agree on the following facts:
1. The conduct in question occurred in a Quaker Oats
plant that makes some 30 different frozen food products in-
cluding pancakes, waffles and various frozen pizzas. The
plant has several different departments including the produc-
tion floor where the frozen food products are made, the
shipping department, the personnel department and the
quality assurance department. Plaintiff was employed by
defendant on the production floor in August, 1976, and was
-ll2a-
No. 83-5746 Nichelson v. Quaker Oats Company 3
promoted the next year to the position of laboratory tech-
nician testing food samples in the quality assurance depart-
ment. Dale Smith was the manager of the quality assurance
department during the period in question.
2. During the first two weeks in January, 1980, plaintiff
was participating in a microbiological or bacteria testing train-
ing program. On Friday, January 11, 1980, she left work be-
fore her shift was over to attend court in a case unconnected
with this case. When she left work on that day, she left a
part of her bacteria testing work uncompleted on a table in
the laboratory. On the following Monday, Smith reassigned
her for the week, without a change in pay, to work on a pro-
ject on the production floor testing the temperature of waffles.
The District Court found that this move was prompted by
racial considerations.
3. Plaintiff received overtime pay for work on weekends
during January and February, 1980. On Saturday, February
16, 1980, she worked not more than six hours but incorrectly
entered eight hours on her pay time card. For this incorrect
entry, the defendant suspended her for two days without pay.
The District Court found this action was racially motivated.
4. In October, 1980, the company reorganized the quality
assurance department. It created two quality assurance su-
pervisor positions. All quality assurance employees, ten of
whom were white and six of whom were black, were invited
to apply for the two newly created supervisory positions. The
jobs entailed supervision of quality assurance food monitors.
Plaintiff had not had experience as a monitor. The company
gave the jobs to two former monitors, one black and the
other white.
5. In October, 1980, as part of its departmental reorgani-
zation, the defendant introduced a pasteurizer in the quality
assurance laboratory which reduced the number of hours of
microbiological analysis by lab technicians. The defendant
-ll3a-
4 Nichelson v. Quaker Oats Company No. 83-5746
reduced the number of such jobs from three to two. Plaintiff,
the least senior laboratory technician at the time, was trans-
ferred to the position of quality assurance monitor at no
reduction in pay. The defendant reassigned her to the posi-
tion of quality assurance technician in June, 1981, when a
more senior technician resigned.
I.
We are aware that employment discrimination based on
race can occur both in subtle and obvious ways, both of
which are contrary to the equal opportunity goals set out by
Congress in Title VII, 42 U.S.C. § 2000e et seq. We are also
aware that subtle forms of discrimination may be difficult to
prove, but the burden of proof is on the plaintiff to prove
that it is more probable than not that he or she was discrim-
inated against on the proscribed basis. McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). The plaintiff has the
burden both of establishing the inference of discrimination
and of proving that any asserted legitimate non-discrimina-
tory motive of the defendant is pretextual. Texas Dept. of
Community Affairs v. Burdine, 450 U.S. 248 (1981). The
allocation of burdens of proof may often determine the out-
come of a case.
We are constrained on appellate review to reverse a district
court's holding if it is clearly erroneous. A clearly erroneous
holding is one not supported by the record on which the
holding is based. The record in this case does not contain
evidence to support finding that plaintiff proved the claims
outlined above by a preponderance of the evidence. Accord-
ingly, we must reverse the holding of the District Court.
A. January, 1980, Work Reassignment
The District Court discussed plaintiffs one week reassign-
ment to production floor food testing in January, 1980, in its
~ll4a-
No. 83-5746 Nichelson v. Quaker Oats Company 5
opinion at 573 F. Supp. 1215-21. The Court concluded that
plaintiffs reassignment was a form of discipline for leaving
microbiological testing work uncompleted on Friday, January
11, 1980, and over the weekend; that Smith, the depart-
ment manager, was angry at her on the following Monday;
and that the disciplinary measure was racially motivated
because Smith did not become angrv at or discipline another
white laboratory technician, Ms. Hale, who did not finish
the microbiological testing work for plaintiff on that Friday
or over the weekend.
We accept the finding that Smith was angry on Monday
and that he did not discipline Hale, the white employee. But
the proof clearly shows that Smith was a temperamental
rather than a mild mannered manager who showed anger
often and that he directed his anger at both white and black
employees when he thought they were not working up to par.
We do not see that any racial motivation for the reassignment
can be inferred from Smith’s treatment of Ms. Hale. She
was not assigned to taking temperatures on the floor when
this incident occurred because she did not leave any of her
own work unfinished on the Friday that plaintiff was absent.
She testified that she did not know that plaintiff wanted her
to finish the microbiological testing when plaintiff left early,
and plaintiff herself testified that she thought she would be
able to come back and finish the work on Friday.
Most significant, Hale contacted Smith for express permis-
sion to leave particular work undone when she came ‘to the
lab on Saturday. Smith gave her permission to do this.
We agree with the District Court that plaintiff's reassign-
ment — without any loss of pay — was a disciplinary measure.
There must be evidence, however, to support the inference
that the punitive action was racially motivated. A discipli-
nary weasure against a black or a woman or other protected
individual does not in itself justify a finding that it is wrong-
fully motivated. In what ‘is essentially a claim of disparate
punishment. as here, plaintiff must introduce evidence to
-115a-
6 Nichelson v. Quaker Oats Company No. 83-5746
show that similarly situated white employees were not pun-
ished for workplace mistakes or oversights similar to that
committed by plaintiff, that is, leaving work undone without
giving timely notification that the work would be undone or
getting prior permission to do so. The District Court does not
point to any evidence that would justify an inference of dis-
parate treatment based on race; we have searched the record
and have found no such evidence. We must conclude, there-
fore, that the finding cannot be sustained.
B. The February, 1980, two day suspension
The District Court at 573 F. Supp. 1221-24 finds that plain-
tiffs two day suspension for exaggerating the overtime hours
she worked on Saturday, February 16, 1980, was based on
race (a) because she was simply following a pattern of ex-
aggerating overtime that she and Johnson, another employee,
had followed on January 5, a Saturday several weeks earlier,
when they worked together; (b) because there was confusion
in the plant about whether exaggerating eight hours overtime
on Saturdays was permissible; (c) because Rosa Benson testi-
fied “that Smith instructed her, prior to Nichelson’s suspen-
sion, to report eight hours on weekends regardless of the time
she actually worked,” 573 F. Supp. 1223; and (d) because two
white employees, Reed and Morris, were caught exaggerating
their time and were not disciplined.
The finding concerning Johnson on January 5 is in error.
Johnson did tell plaintiff that he put down eight hours for
that day, but he testified that he was an exempt employee
who did not receive overtime pay and that he did in fact
work eight hours on January 5, when plaintiff left earlier.
Johnson's unequivocal denial that he exaggerated his hours is
a sufficient non-race-based reason for the company to treat
the case of Johnson and plaintiff differently.
On the question of confusion in the plant about overtime
pay, a close review of the record indicates (a) that the cus-
-ll6a-
No. 83-5746 Nicheleon v. Quaker Oats Company 7
tom was for employees to be paid for four hours on Saturday
even if they worked less, but (b) that no custom existed al-
lowing eight hours when employees worked less. Both black
and white employees so testified, with one exception. Rosa
Benson's testimony on this subject is equivocal. She testified
both ways:
Q.
(by Mr. Williams}. Well, what would be the situa-
tion if you did not actually work eight hours on a
Saturday?
We would put down the actual! hours, seven hours,
or six, or whatever, but that would be evertime
hours.
Transcript, pp. 1256-57.
Rosa Benson repeated this testimony on cross examination:
Q.
Q.
A.
Oro
Mrs. Benson, if you worked seven hours on a Satur-
day overtime, how many hours do you put down on
your time sheet?
Forty-seven.
Forty for the week p'us seven?
Right.
If you worked seven hours on a Saturday and the
plant was running on Saturday as well, but you only
worked seven hours, how many hours would you
put down on your time sheet?
I would put down forty-seven.
And that was true even at the time that Mrs. Nichel-
son was suspended. wasn’t it?
Yes.
Transcript, pp. 1264-65.
-ll7a-
8 Nichelson v. Quaker Oats Company No. 83-5746
Then upon redirect by plaintiff's counsel, she testified:
A. Yes. Before Mrs. Nichelson was suspended, there
have been times that if you worked six hours and
went home, we would still put down eight hours.
Even on Saturday when the plant was running?
Yes.
But it was clarified after Mrs. Nichelson was sus-
pended? Is that what you are saying?
Yes. After Mrs. Nichelson and Mrs. Womack, it was
clarified that you put down your actual hours that
you worked.
Transcript, p. 1266.
Upon recross by defense counsel, Benson reiterated:
Q. But you knew even before Mrs. Nichelson was sus-
pended that if you worked six hours on a Saturday
and that’s all you worked, you put down six hours,
didn’t you?
A. No. We put down eight hours. All of us did.
Q. Even if vou worked overtime?
A. Even if we worked overtime. All of us did.
Transcript, p. 1277.
When a witness makes two directly opposite statements
with equal certainty, it is difficult to see how the testimony
can be viewed as authoritative for either proposition. Further,
Rosa Benson did not testify, as the District Court found, that
Smith told her to put down eight hours overtime on weekends
if she had worked less. We have read and reread her testi-
mony on this finding, and we can locate no such testimony
by her. In fact, her testimony is directly contrary to the Dis-
trict Court's finding. She testified as follows:
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No. 83-5746 Nichelson v. Quaker Oats Company 9
Q. Why did you fill out the time sheet with the full
eight hours for all five days even though you knew
she had left sometime around 8:00 o'clock on Friday?
But if we had worked any overtime, that we put
down our actual overtime hours that we worked.
Transcript, p. 1255. (emphasis added).
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Thus, again we are constrained to reverse the District
C. Failure to Promote Plaintiff to Quality
Assurance Supervisor
The District Court’s findings that the defendant did not
promote plaintiff to the position of quality assurance super-
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10 Nichelson v. Quaker Oats Company No. 83-5746
after this suit was filed, and almost all of the 16 employees
in the department, six of whom were black, applied. One
black and one white were promoted. It is undisputed that
the supervisor's job was to oversee the work of the quality
assurance monitors on the floor, and the company gave great
weight in making the promotions to prior experience as mon-
itors. It is undisputed that the plaintiff had no such ex-
perience at that time. The undisputed testimony of Mr. Greg-
ory Nold concerning the company’s reasons for selecting Mrs.
Jones, a black, and Mrs. Pounds, a white, rather than plaintiff
Nichelson, was as follows:
(By Mr. Sherman.) Whom did you select?
Mrs. Delores Jones and Mrs. Shirley Pounds.
What was the reason you selected those?
Chiefly, the reason was their prior experience on the
line, their experience with QA monitoring. Other
things that I looked for was initiative, aggressive-
ness, leadership qualities... .
Q. How did you rate Mrs. Jones’ and Mrs. Pounds’
qualifications viz a viz Ms. Cole and Ms. Nichelson?
A. Chiefly, as I mentioned before, their jobs — The
main thing that I looked for in filling the positions
was experience on the line. I was pleased with the
amount of time thev had on that particular job, and
they were familiar enough with the packaging and
the process control. They knew production em-
ployees. They knew operators. They knew most of
the iine people down there.
Q. What was the reason they knew this? Why were
they familiar with production operators and line op-
erators?
A. Because they had worked as a QA monitor.
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No. 83-5746 Nichelson v. Quaker Oats Company ll
Q. At this time, had Mrs. Nichelsor. had any experience
as a QA monitor?
A. Not that I am familiar with, no.
Transcript, p. 1047-48.
This testimony clearly provides a nonpretextual reason for
promoting Jones anc Pounds rather than plaintiff, and the
District Court was not justified in finding from this testimony
that Nold made his selections “without ascertaining the qual-
ifications of all the applicants.” 573 F. Supp. at 1226.
D. Demotion to Quality Assurance Monitor
In October, 1980, six months after this suit was filed, plain-
tiff was reassigned from laboratory technician to the position
of monitor on the production floor where she remained until
June, 1981, at no reduction in pay. The District Court's find-
ing of racial discrimination in connection with this transfer is
as follows:
The Court finds Quaker Oats’ asserted policy that the
junior employee in a particular job classification is the
one selected for transfer if there is a reduction in force
was used as a subterfuge in the case. Based on all the
facts as found by this court and considering the obvious
racial turmoil in Quaker Oats’ Jackson plant, Nichelson,
the court finds, was demoted to the monitor position be-
cause of her race and in retaliation for seeking to exer-
cise rights provided to her by federal law.
573 F.Supp. at 1229.
The evidence is undisputed, however, that the staff reduc-
tion itself was appropriate because new, more efficient ma-
chinery was installed which reduced the hours necessary for
lab technician work. It is also undisputed that the company
had a policy of transferring or laying off the junior member
of a department in case of staff reduction. It is also undis-
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12 Nichelson v. Quaker Oats Company No. 83-5746
puted that plaintiff was the junior member and was restored
to her old job as soon as the next employee above her re-
signed. The court attributes subterfuge to the company ap-
parently because the company’s stated seniority policy was
not reduced ic writing. No evidence was adduced to dis-
prove the company’s seniority-based transfer policy. When
an objective and widely-applicable employment practice such
as a seniority system is at issue, the court's finding that it is
pretextual should rely on evidence in the record more sub-
stantial than the lack of any formalized writing. A few
months after the assignment to the floor, the company re-
assigned plaintiff to her old position when a more senior tech-
nician resigned. Both the assignment to the floor and the
reassignment to the lab were based on seniority, a neutral,
permissible, nonracial basis.
In view of our conclusions that the findings of liability
based on racial discrimination are unsupported in the record
and therefore clearly erroneous, the judgment of the District
Court is reversed.
E. Use of a Racial Slur
Several years before the events in question in this case,
Dale Smith, the manager of the department in question, made
a racial slur, as follows:
Q. Would vou tell me [Mr. Smith] the context of that
statement?
A. This statement was made the first working day after
the completion of the first showing of “Roots” on
television, and Debcrah Hale and Anna Cole and
Mary Wondolowski were in the kitchen area when
I walked in that morning to get my cup of coffee.
As I turned around, from getting the cup of coffee,
Anna said to me, “Your ancestors” — they were talk-
ing about the ‘Roots’ program —— and she said,
“vour ancestors were very cruel to us.”
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No. 83-5746 Nichelson v. Quaker Oats Company 13
And she seemed at that point to be very pleasant
in her comment, and I didn’t see anything unusual
about that and I, in a very feeble attempt to make
a joke, tried to quote a statement that I had heard,
because I had watched the show, too, something
[quoted in ‘Roots’] to the effect, “but my ancestors
weren't niggers.” Immediately as soon as that left
my mouth, I realized that I should not have said it,
and she became very upset. I can understand why
she would. She was very upset, and it hurt me that
I had said it, and that she was so upset, and so I
immediately tried to apologize to her, and I went
over to her, and she pushed me away, and she
wouldn’t accept my apology. She then got up and
left the room, and I followed her trying to apolo-
gize, and she wouldn’t accept it.
Q. Did you ever make any other attempts to apologize
to her?
A. That bothered me a lot for several months, and I
attempted to apologize, and I really don’t believe
she ever did forgive me for it.
Transcript, pp. 1136-37.
Plaintiff strongly asserts that this reference justifies the Dis-
trict Court's findings of racial discrimination toward plaintiff,
who was not present when this conversation took place. We
find no linkage or causative effect between this statement
made several years earlier and the plaintiff's specific claims
against the company in this case. Unfortunately, racial slurs
occur among the members of many races. The destructive
effect of racial slurs on our society cannot be underestimated,
particularly when the statements are directed toward a mem-
ber of a minority race by one of a majority. But such speech
is not normally actionable unless it is connected in a cause
and effect relationship with conduct that is unlawful. The
conduct in the instant case of which the plaintiff complains
14 Nichelson v. Quaker Oats Company No. 83-5746
has not been shown to be based on considerations other than
legitimate, non-racial employment criteria, and one uncon-
nected racial comment remote in time and circumstance does
not convert the case into one of racial discrimination in em-
ployment.
Accordingly, the findings of liability made by the District
Court are reversed and the attorney's fees awarded plaintiff as
the prevailing party under 42 U.S.C. § 1988 are set aside.
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.