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

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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:

> OP

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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-

-119a-

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.

ror Oo

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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-

-l2la-

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.”

~122a-

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.

-124a-

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.

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