Frances WEEMS, Plaintiff-Appellant, v. BALL METAL AND CHEMICAL DIVISION, INC., Defendant-Appellee

753 F.2d 527, 1985 U.S. App. LEXIS 28696, 36 Empl. Prac. Dec. (CCH) 34,973, 36 Fair Empl. Prac. Cas. (BNA) 1606

• Court: Court of Appeals for the Sixth Circuit
• Decided: February 4, 1985
• Docket: 83-5544
• Status: Published

Opinions

BAILEY BROWN, Senior Circuit Judge.

This is an action brought pursuant to the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq., by Frances Weems, a black female, against Ball Metal and Chemical Division, Inc. and Lloyd Gillespie. In her complaint, Weems alleged that she was discharged on July 1, 1977 as an employee of Ball at its plant at Greene-ville, Tennessee “without cause and for no reason other than her race and sex and in retaliation for her statements made to the E.E.O.C. [Equal Employment Opportunities Commission] representative and because of her filing of a complaint with the E.E.O.C.” Weems further alleged that defendant Gillespie, who was a fellow employee and president of the local of the union to which Weems belonged, refused, because of her race and sex, to process her grievance based on her discharge.

With the consent of the parties, the case was tried before Magistrate Robert P. Mur-rian as is authorized by 28 U.S.C. § 636.

Although Weems alleged that her discharge was partly in retaliation for her having filed a complaint with the E.E.O.C., it was without dispute that the only complaints filed by Weems were after her discharge and therefore Weems did not at the trial and does not on appeal press that contention.¹ Moreover, with respect to the claim of retaliation because of Weems’ statements made to the E.E.O.C., it developed that, during an E.E.O.C. investigation of a complaint made by two other employees about two years before her discharge, Weems was called in by the investigator and gave a statement. However, there was no evidence as to the content of the statement and, more importantly, no evidence that the Ball management had had any knowledge as to such content. As a result, the magistrate determined, at the conclusion of Weems’ case-in-chief, that there was no evidence of retaliatory discharge based on her having given this statement and this claim was dismissed under Fed.R.Civ.P. 41(b), the magistrate making the above findings pursuant to Rule 52 in his memorandum filed after trial was concluded. We agree with this dismissal; although there was no evidence to support the contention, it is sufficient for affirmance of dismissal under Rule 41(b) to hold, as we do, that Weems had not carried her initial burden on that issue.

Further, at the conclusion of Weems’ case-in-chief, the magistrate dismissed the claim against defendant Gillespie pursuant to Rule 41(b). As stated, the claim was that Gillespie, as local union president, had refused, because of her race and sex, to institute a grievance following, her discharge. It developed, however, that, under the collective bargaining contract, the president of the local had no part to play in instituting a grievance. Moreover, it was without dispute that, on a prior occasion, Gillespie, by intervening, had persuaded Ball not to suspend Weems. Lastly, and perhaps most importantly, as the magistrate stated, it is difficult to believe that Gillespie, a black man and recent president of the local chapter of the National Association for the Advancement of Colored People, would have discriminated against Weems because of her race. The magistrate made the above findings on this issue in the memorandum filed after the trial was concluded, and we agree that Weems had not carried her initial burden on this issue.

The magistrate determined, on the other hand, at the conclusion of the proof-in-chief, that Weems had made a prima facie case that her discharge was motivated by her race and sex and therefore denied Ball’s dismissal motion at that point. Accordingly, the remaining witnesses were heard and the case taken under advisement. In a careful and full opinion, the magistrate determined that Weems had not, in the light of Ball’s proffered reasons for her discharge and the evidence in support thereof, carried her burden of persuasion as is required by United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983).² The magistrate, on the contrary, found that, more likely than not, Weems was discharged because of a poor work performance, difficulty in getting along with some of her fellow employees, and her unwillingness to accept supervision.

Fed.R.Civ.P. 52(a) provides in part:

Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.

The sole question presented, then, is whether the magistrate’s findings are clearly erroneous.

In arriving at his finding that Ball was not motivated by racial or sexual bias in discharging Weems, the magistrate carefully discussed and set out his subsidiary findings which we summarize.

Weems was employed by Ball in 1970 and remained employed, despite her contention that her life there from the beginning was a “nightmare,” until her discharge in 1977. Weems’ job was that of an inspector of battery cans (used in the manufacture of dry-cell batteries) as they passed before her on a conveyor belt prior to their being off-loaded and packed for shipment.³ There was a device at the end of the conveyor which picked up inspected cans and placed them in a shipping box that was placed in the “nest” by an off-bearer. Weems controlled this device and, while inspecting cans, could glance down and see whether there was a box in the “nest” to receive cans. In 1976, Weems allowed at a particular time three successive loads of cans to be removed from the conveyor and deposited with no box in place to receive them, causing the cans to be scattered about the floor. Weems received a five-day suspension without pay which she grieved and ultimately lost. This was the only grievance Weems ever filed.

At times there would be overflows of battery cans on the conveyor caused by inspection slow ups. These in turn could be caused by an unduly large number of faulty cans but also could be caused by the inspector not tending to her job. In 1975, Weems had on an occasion a particularly large overflow that her supervisor thought was due to her poor performance. Ball management prepared a written warning notice and considered suspending Weems without pay for five days, but Gillespie intervened, suggesting that a grievance would be filed on the basis of discrimination ⁴ and management decided against suspension. In 1977, as a result of another overflow situation of Weems, Ball management prepared a written warning notice and imposed a five-day suspension with recommendation of dismissal which was carried out and this action followed.

Through the years, Weems received written warnings or was counseled concerning various problems. Some had to do with staying on breaks too long, leaving work early, and using profanity at and around other employees. Weems has made much of the claim that her personnel file was over-documented and that this indicated that management was out to get her. Weems particularly emphasizes that her file contained false statements that she carried a switch-blade knife and had a criminal record. One witness, however, Ira Taylor, a lead man but a member of the bargaining unit, testified that he had seen a long bladed knife that Weems carried and that she had told him about having been in a fight years before with another woman for which she had been jailed. Taylor indicated that he was the source of this information in the file. In any event, as the magistrate found, it would be mere supposition to conclude that Weems’ personnel file was full because management was out to get her or was full because management anticipated that, if it ever discharged Weems, it would have a discrimination case on its hands that it would have to defend.

The magistrate pointed out that, while Weems complained a great deal about her work assignments (there were eight inspection lines as to which there were perceived advantages and disadvantages), Weems did not exercise her considerable seniority as to which line she would work. Weems filed, as stated, only the one grievance (about her 1976 suspension), and instead, became uncommunicative and surly when she thought she had been treated unfairly.

As noted by the magistrate, if Ball had wanted to discharge Weems, it had a legitimate basis for firing her because of infractions and under the terms of the collective bargaining contract long before it did.

We therefore conclude that the magistrate’s decision that Weems was not discharged because of her race or sex is not clearly erroneous.

Affirmed.

1 . The E.E.O.C., when it issued a right to sue letter, found "no reasonable cause” to believe Weems’ charges were true. This finding, in the sound discretion of the trial court, may be admitted in evidence. Heard v. The Mueller Co., 464 F.2d 190, 194 (6th Cir.1972). There is no indication that the magistrate gave the finding any weight.

2 . In Aikens, the Court, interpreting Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), held that if the trial judge denies defendant’s motion for dismissal after completion of plaintiffs case-in-chief on the ground that plaintiff has made a prima facie case and if defendant offers evidence in support of nondiscriminatory reasons for its action, the Burdine presumption "drops from the case” and "the factual inquiry proceeds to a new level of specificity.” Aikens, 460 U.S. at 715, 103 S.Ct. at 1482, 75 L.Ed.2d at 410. The question then becomes for the trial judge, Aikens holds, whether plaintiff has carried the burden of persuasion of showing intentional discrimination, as would be true in other civil litigation.

3 . Almost all inspectors were women and almost all off-bearers, a job which required more strength, were men. The wage rates were the same. Since almost all inspectors on all lines and all shifts were women, it is difficult to conceive of discrimination on the basis of sex.

4 . The collective bargaining contract prohibited discrimination on the basis of race and sex.