Acrey v. American Sheep Industry Ass'n

772 F. Supp. 1173, 1991 U.S. Dist. LEXIS 13460, 1991 WL 191042
CourtDistrict Court, D. Colorado
DecidedJune 21, 1991
DocketCiv. A. No. 90-F-482
StatusPublished

This text of 772 F. Supp. 1173 (Acrey v. American Sheep Industry Ass'n) is published on Counsel Stack Legal Research, covering District Court, D. Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Acrey v. American Sheep Industry Ass'n, 772 F. Supp. 1173, 1991 U.S. Dist. LEXIS 13460, 1991 WL 191042 (D. Colo. 1991).

Opinion

MEMORANDUM OPINION AND ORDER

SHERMAN G. FINESILVER, Chief Judge.

On March 22, 1990, plaintiff Maxine E. Acrey brought this civil action for damages and injunctive relief based upon alleged unlawful employment practices committed by her former employer, the American Sheep Industry Association (“ASI”). Jurisdiction is based upon 28 U.S.C.A. § 1343 (West Supp.1991). Acrey seeks relief for age and sex discrimination under the Age Discrimination in Employment Act of 1967 ("ADEA”), 29 U.S.C.A. §§ 621 et seq. (West 1985 and Supp.1991) and the Civil Rights Act of 1964, 42 U.S.C.A. §§ 2000e et seq. (West 1981 and Supp.1991). On March 21, 1991, a jury returned a verdict in favor of the plaintiff on her age discrimination claim. The sex discrimination claim was submitted to the court. The following constitutes our findings of fact and conclusions of law as required by Fed.R.Civ.P. 52(a).1

FINDINGS OF FACT

I.

The plaintiff, Maxine Acrey, is a female protected by Title VII of the Civil Rights Act of 1964. The defendant, American Sheep Industry Association, is an employer covered by 42 U.S.C.A. § 2000e (West 1981 and Supp.1991). At trial, the jury determined that plaintiff had been constructively discharged, plaintiff’s age was a determinative factor, and the discharge had been a willful violation of ADEA.

The evidence established that plaintiff was hired in 1984 by the American Sheep Producers Council. Her supervisor at that time was Rita Kourlis. After approximately two years, Eldon White became her supervisor. Testimony was presented by Ms. Kourlis, Mr. White, and Rodger Wasson, another supervisor, that her performance was not satisfactory. Members of ASI’s outside accounting firm, Larry Dollinger, John Smith, and Paul Zulauf, indicated plaintiff’s performance was often inadequate. Testimony at trial also reflected that Ms. Acrey had difficulties completing various tasks and getting along with her co-workers. Ms. Kourlis, Mr. White, and Mr. Dollinger indicated that Ms. Acrey’s gender did not shape the manner in which ASI, as an organization, treated her.

On January 24, 1989, the American Sheep Producers Council merged with the National Wool Growers, forming the American Sheep Industry Association. Plaintiff resigned on September 12, 1989.

CONCLUSIONS OF LAW

II.

42 U.S.C.A. § 2000e-2(a)(l) (West 1981) provides that “[i]t shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual ... because of such individual’s race, color, religion, sex, or national origin.” Maxine Acrey has alleged that she [1176]*1176was constructively discharged from ASI based upon her gender.

To establish a prima facia case of sex discrimination by constructive discharge, a determination must be made that the employer through illegal discriminatory acts made working conditions so intolerable that a reasonable person would feel compelled to resign. Hirschfeld v. New Mexico Corrections Dep't 916 F.2d 572, 580 (10th Cir.1990); Spulak v. K Mart Corp., 894 F.2d 1150, 1154 (10th Cir.1990); Derr v. Gulf Oil Corp., 796 F.2d 340, 344 (10th Cir.1986); Price v. Federal Express Corp., 660 F.Supp. 1388, 1391 (D.Colo.1987); see Daemi v. Church’s Fried Chicken, Inc., 931 F.2d 1379 (10th Cir.1991). Plaintiff bears the burden of proving that she was constructively discharged by a preponderance of the evidence. Hirschfeld, 916 F.2d at 580.

With the exception of the alleged statement discussed in III B that follows, no evidence was presented that Ms. Acrey was subjected to recurrent slurs based upon her sex. Cf Hicks v. Gates Rubber Co., 833 F.2d 1406, 1416-17 (10th Cir.1987); Ebert v. Lamar Truck Plaza, 715 F.Supp. 1496, 1498 (D.Colo.1987). Sexual harassment was never alleged. Cf Hirschfeld, 916 F.2d at 580. That plaintiff often received less than stellar evaluations does not support a finding of constructive discharge. See Garner v. Wal-Mart Stores, Inc., 807 F.2d 1536, 1539 (11th Cir.1987). Even if such criticisms were unjust, such statements would not necessitate a conclusion that plaintiff was constructively discharged. See Miller v. Aluminum Co., 679 F.Supp. 495, 501-02 (W.D.Pa.1988), aff'd, 856 F.2d 184 (3d Cir.1988). We recognize that the jury found that Ms. Acrey had been constructively discharged under the age claim. However, under our view of the evidence, plaintiff has failed to establish by a preponderance of the evidence that defendant’s action made working conditions so difficult that a reasonable person in her position would feel compelled to resign. Ramsey v. City and County of Denver, 907 F.2d 1004, 1010 (10th Cir.1990). We sit as triers of fact on the sex discrimination claim and are not bound by the jury’s determination on the separate charge.

III.

A.

Assuming we found that plaintiff had been constructively discharged, we do not believe that any such discharge was based upon her gender. In Title VII cases, the ultimate burden of persuasion remains with the plaintiff at all times. Kachel v. City of Pueblo, 743 F.Supp. 749, 755 (D.Colo.1990). We do not believe that Ms. Acrey has met her burden of persuasion.

Under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973) and Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981), a three-stage analysis must be conducted. First, plaintiff has the initial burden of establishing a prima facia case of discrimination. Second, if plaintiff establishes a prima facia case, the burden shifts to the defendant to articulate some legitimate, non-discriminatory reason for its actions. Third, if the defendant offers such a reason, plaintiff must prove by a preponderance of the evidence that the reason offered was a mere pretext for discrimination. Johnson v. Transportation Agency, 480 U.S. 616, 626-67, 107 S.Ct. 1442, 1448-70, 94 L.Ed.2d 615 (1987); Ramsey, 907 F.2d at 1007; Equal Employment Opportunity Comm’n v. Wendy’s, 727 F.Supp. 1375, 1382-83 (D.Colo.1989).

B.

Under the first prong, plaintiff has not established a prima facia case of sex discrimination. The only credible evidence offered suggesting gender-based discrimination was the alleged statement made by Mr. White that Ms.

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Related

McDonnell Douglas Corp. v. Green
411 U.S. 792 (Supreme Court, 1973)
Texas Department of Community Affairs v. Burdine
450 U.S. 248 (Supreme Court, 1981)
Johnson v. Transportation Agency, Santa Clara Cty.
480 U.S. 616 (Supreme Court, 1987)
Price Waterhouse v. Hopkins
490 U.S. 228 (Supreme Court, 1989)
Gail Derr v. Gulf Oil Corporation
796 F.2d 340 (Tenth Circuit, 1986)
Marguerite Hicks v. The Gates Rubber Company
833 F.2d 1406 (Tenth Circuit, 1987)
Dorothy Willner v. University of Kansas
848 F.2d 1023 (Tenth Circuit, 1988)
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861 F.2d 1222 (Tenth Circuit, 1988)

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Bluebook (online)
772 F. Supp. 1173, 1991 U.S. Dist. LEXIS 13460, 1991 WL 191042, Counsel Stack Legal Research, https://law.counselstack.com/opinion/acrey-v-american-sheep-industry-assn-cod-1991.