Fine v. GAF Chemical Corp.

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 24, 1993
• Docket: 92-2824
• Status: Published

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 92-2824

Summary Calendar

DOROTHY J. FINE, Plaintiff-Appellant,

versus

GAF CHEMICAL CORPORATION, ET AL., Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Texas

( July 6, 1993 )

Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.

PER CURIAM:*

Plaintiff Dorothy J. Fine brought suit under Title VII and the

Fair Labor Standards Act against DeJean Contract Maintenance Co.,

Inc., and GAF Chemical Corp. One claim is gender discrimination.

The other alleges retaliation for asserting discrimination, as well

as for filing a wage and hour claim. Following a hearing, the

district court granted summary judgment for defendants without a

memorandum opinion.

* Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that Rule, the Court has determined that this opinion should not be published. GAF hired DeJean to perform maintenance and construction work

at GAF's Texas City plant. There is evidence that DeJean employees

are often directly supervised by GAF supervisors at the plant.

DeJean assigns employees to the plant on a permanent or temporary

basis, although as a temporary assignee Fine worked there

exclusively and apparently with as much frequency as permanent

assignees. In part, this stemmed from a requirement that all

workers undergo safety training before working at the GAF plant.

In response to the retaliation claims, DeJean and GAF1

maintain that the allegedly retaliatory act--reducing the hours

Fine would work--occurred before Fine filed either her EEOC or wage

and hour charges. Fine filed charges with both the Labor

Department's Wage and Hour Division and the EEOC on November 29,

1990. DeJean points to statements by Fine in deposition, and in

handwritten notes, that she learned on November 28 that her hours

would be reduced.

On the other hand, other notes kept by Fine indicate that she

first learned of the reduction on December 4, 1990. Moreover, Fine

was uncertain of the November 28 date during her deposition

testimony, relying primarily on a note to that effect that might

not have been contemporaneously made. The inconsistencies affect

the weight of Fine's proof, but do not destroy the probativeness of

1 Fine maintains that GAF's control over DeJean and her work makes GAF her de facto employer or co-employer; she also argues that GAF is a "person" liable under FLSA for causing retaliatory conduct regardless of whether it is her employer. Because these contentions may turn on factual issues, we express no opinion regarding them.

2 evidence in the non-movant's favor. Other testimony, for instance

her statement that she did not work on the day after the decision,

support the inference that the reduction occurred after Fine filed

her charges. The record does not demonstrate the absence of a

genuine issue of material fact regarding the retaliation claim.

On the Title VII claim, DeJean relies upon Fine's testimony

regarding the two positions that opened in September 1990. One

required carpentry skills; the other involved hanging scaffolding.

DeJean selected two men: one with carpentry skills and another

experienced in hanging scaffolding. Fine conceded that she was

less qualified in carpentry, and admitted a fear of heights that

would interfere with the task of hanging scaffolding. On this

record, Fine has failed to establish a prima facie case against

DeJean's decision to hire others for these vacancies in September

1990. Relatedly, DeJean's assertion that the two persons hired

were better qualified and hired for that reason defeats Fine's

claim of sexual discrimination in the absence of a fact issue of

pretext. We find none.

Fine's charges against GAF stem from its refusal to hire her

as an apprentice chemical operator. She maintains that she had

applied for such a position several times. Her statement to the

EEOC states that her last application occurred in February 1990.

Fine concedes that GAF disproved this specific allegation. Even

so, Fine named two men who had been hired during the period that

she had allegedly sought a position.

3 There is no dispute that the two men were hired in January

1989 and May 1990. GAF had no job openings in February 1990; it

had no record of an application from Fine in that year and she

conceded that the application she had in mind could have occurred

in 1989. To the extent that they are supportable by evidence, the

allegations Fine made to the EEOC do not show that her gender

discrimination claim against GAF was timely made.

Fine responds by advancing a claim that GAF once more

discriminated against her in October and November 1990. She

maintains that she orally applied to GAF's plant manager for a job

in October, and that three men were hired to the position sought on

November 28--the day before her EEOC complaint. Although the EEOC

complaint makes no mention of a job application or rejection in the

fall of 1990, Fine asks the court to liberally construe her EEOC

charge. See Terrell v. U.S. Pipe & Foundry Co., 644 F.2d 1112,

1123 (5th Cir. Unit B 1981). "[A] rule of reason ... permits the

scope of a Title VII suit to extend as far as, but no further than,

the scope of the EEOC investigation which could reasonably grow out

of the administrative charge." Id. A Title VII cause of action

may be based, not only upon the specific complaints made by the employee's initial EEOC charge, but also upon any kind of discrimination like or related to the charge's allegations, limited only by the scope of the EEOC investigation that could reasonably be expected to grow out of the initial charges of discrimination.

Fellows v. Universal Restaurants, Inc., 701 F.2d 447, 451 (5th Cir.

1983).

As both Terrell and Fellows make clear, this rule protects

unlettered lay persons making complaints without legal training or

4 the assistance of counsel. GAF argues with some force that the

absence of counsel has no bearing on the complainant's ability to

recall and state facts--especially facts that occurred the day

before the complaint. Fine's charges drew the EEOC's attention to

an application she allegedly made in February 1990, and refered to

events even further in the past. We conclude that the events now

cited could not reasonably be expected to be within the scope of

the EEOC investigation.

Finally, Fine seeks, for the first time on appeal, a ruling

that she may recover punitive damages under the FLSA for the

alleged retaliatory conduct. Defendants moved to strike the prayer

for punitive damages, arguing that such damages were not

recoverable under Title VII or the FLSA. Plaintiff responded that

she could recover punitive damages under 42 U.S.C. § 1981a (the

Civil Rights Act of 1991); Fine did not argue to the district court

that the FLSA allowed the recovery of punitive damages. Having

heard these arguments, the district court struck the prayer for

punitive damages after a hearing on June 23, 1992. We decline to

express an opinion on the FLSA issue, which Fine failed to present

to the district court in the first instance. See Capps v. Humble

Oil & Refining Co., 536 F.2d 80, 82 (5th Cir. 1976).

For the foregoing reasons, the order striking the prayer for

punitive damages is AFFIRMED, the grant of summary judgment is

VACATED, and the case is REMANDED for further proceedings

consistent with this opinion.