22 Fair empl.prac.cas. 1191, 23 Empl. Prac. Dec. P 30,891 Claudette T. Bourque, Cross v. Powell Electrical Manufacturing Company, Cross

617 F.2d 61
CourtCourt of Appeals for the Fifth Circuit
DecidedMay 28, 1980
Docket78-1247
StatusPublished
Cited by299 cases

This text of 617 F.2d 61 (22 Fair empl.prac.cas. 1191, 23 Empl. Prac. Dec. P 30,891 Claudette T. Bourque, Cross v. Powell Electrical Manufacturing Company, Cross) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
22 Fair empl.prac.cas. 1191, 23 Empl. Prac. Dec. P 30,891 Claudette T. Bourque, Cross v. Powell Electrical Manufacturing Company, Cross, 617 F.2d 61 (5th Cir. 1980).

Opinions

FRANK M. JOHNSON, Jr., Circuit Judge:

Claudette Bourque, the plaintiff here, began her employment with defendant Powell [63]*63Electrical Manufacturing Company in October, 1967. Except for two pregnancy leaves, Ms. Bourque was continuously employed by Powell until May of 1975. In February, 1975, she was promoted to a position as buyer in the purchasing department at Powell. She left defendant’s employ ninety days later. Following her departure, Ms. Bourque filed a sex discrimination claim with the Equal Employment Opportunity Commission and the present litigation resulted.

The district court found that defendant Powell, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.,1 had discriminated against Ms. Bourque on the basis of her sex by failing to provide her equal pay for equal work. The court also found that plaintiff had voluntarily left defendant’s employ and, accordingly, entered judgment for back pay covering the period of time Ms. Bourque had worked as a buyer. Both parties appeal. We affirm.

Powell urges that the court’s finding of sexual discrimination be reversed but nevertheless concedes that factual findings must be reviewed under the clearly erroneous standard of Rule 52(a) of the Federal Rules of Civil Procedure. We believe that the court’s subsidiary findings of fact and its ultimate determination of liability are amply supported by the evidence. See Burdine v. Texas Dep’t of Community Affairs, 608 F.2d 563, 566 (5th Cir. 1979); Wade v. Mississippi Cooperative Extension Service, 528 F.2d 508, 516 (5th Cir. 1976); Causey v. Ford Motor Co., 516 F.2d 416, 420 (5th Cir. 1975). Plainly, these findings were not clearly erroneous.

Ms. Bourque began work in 1967 in Powell’s purchasing department as a secretary-clerk. Over the years she served as the secretary for the head of the department, Mr. Jack Heidelberg, and after a time took on secretarial supervisory duties. During her last two years as a clerical worker Ms. Bourque also began to handle some of the functions performed by buyers and expeditors in the department and she even filled in for buyers during vacations and other absences. In February, 1975, an opening for a buyer in purchasing occurred because of the dismissal of one of the employees. Ms. Bourque was well aware of the work done by that person and she requested Mr. Heidelberg to recommend her to fill the job. Mr. Heidelberg agreed to do so.

At least with respect to Ms. Bourque, the hiring and salary decision fell to Tom Powell, vice-president of the company and at the time its head of production. Although there was no evidence that Mr. Powell was familiar with the work of Ms. Bourque, he expressed reluctance to hire her. Ultimately, however, he agreed to promote Ms. Bourque to fill the vacancy. At a meeting Ms. Bourque was informed she could have the job but Tom Powell told her that she would not receive the salary, $950 per month, earned by the employee who had been dismissed. Rather, Powell stated that she [64]*64would continue in the salary she had earned as a secretary, $675 per month.2 Powell also stated that her position as a buyer was subject to a ninety-day trial period. Ms. Bourque responded that she needed some time to consider the offer.

A few days later plaintiff informed Powell that she would accept the position, at her secretarial salary, and she insisted upon a trial period. Ms. Bourque stated, however, that after ninety days her compensation would have to be raised to $850 per month; even that amount was $100 per month less than the amount paid to the person she had replaced. Thereafter Ms. Bourque moved into the office formerly held by the person she replaced and, according to the trial court, “assumed the title, position and duties of a buyer.”

After ninety days in her new job Ms. Bourque’s coworkers and supervisors were well pleased with her work. Nevertheless, although she received a wage increase to $719 per month, her compensation remained $180 per month below the $850 she had requested and far less than the salaries earned by male buyers. The receipt of this raise, considerably less than she had expected, precipitated her departure.

The district court extensively considered evidence of all of the responsibilities of Ms. Bourque and those of male buyers. See Marshall v. Dallas Ind. School Dist., 605 F.2d 191, 194-95 (5th Cir. 1979). Sufficient evidence supports the court’s finding that plaintiff’s duties as a buyer were the same as or substantially similar to those performed by the person whom she replaced. The court also found her job equivalent to that of a male employee who became a buyer shortly before Ms. Bourque left. See Burdine v. Texas Dep’t of Community Affairs, supra, 608 F.2d at 569; Orr v. Frank MacNeill & Son, Inc., 511 F.2d 166, 171 (5th Cir.), cert. denied, 423 U.S. 865, 96 S.Ct. 125, 46 L.Ed.2d 94 (1975); Brennan v. Prince William Hosp. Corp., 503 F.2d 282, 285 (4th Cir. 1974), cert. denied, 420 U.S. 972, 95 S.Ct. 1392, 43 L.Ed.2d 652 (1975).3 Despite the equivalence of the positions, Ms. Bourque —even with her raise — was to receive more than $200 per month less than either of the males whose duties compared with hers. The trial court’s findings were not clearly erroneous.

Ms. Bourque contends that the district court erred in finding her departure from Powell’s employ to have been voluntary. She argues that she was constructively discharged from her position as buyer.4 In applying the facts as found by the district court to the law of constructive discharge see Young v. Southwestern Savings & Loan Ass’n, 509 F.2d 140, 143 (5th Cir. 1975), we affirm the determination of the court below. As a matter of law the facts involved here do not constitute constructive discharge.

[65]*65In Young this Court enunciated the standard for determining whether an employee has been constructively discharged. The general rule is that if the employer deliberately makes an employee’s working conditions so intolerable that the employee is forced into an involuntary resignation, then the employer has encompassed a constructive discharge and is as liable for any illegal conduct involved therein as if it had formally discharged the aggrieved employee.

509 F.2d at 144; see Calcote v. Texas Educ. Foundation, Inc., 578 F.2d 95, 97 (5th Cir. 1978).

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