Smith v. Texas Department of Water Resources

799 F.2d 1026, 41 Fair Empl. Prac. Cas. (BNA) 1328, 1986 U.S. App. LEXIS 30507, 42 Empl. Prac. Dec. (CCH) 36,757
CourtCourt of Appeals for the Fifth Circuit
DecidedSeptember 15, 1986
DocketNo. 85-1453
StatusPublished
Cited by4 cases

This text of 799 F.2d 1026 (Smith v. Texas Department of Water Resources) 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
Smith v. Texas Department of Water Resources, 799 F.2d 1026, 41 Fair Empl. Prac. Cas. (BNA) 1328, 1986 U.S. App. LEXIS 30507, 42 Empl. Prac. Dec. (CCH) 36,757 (5th Cir. 1986).

Opinion

KAZEN, District Judge:

Victoria A. Smith brought suit against her former employer, the Texas Department of Water Resources (“TDWR”) and its Executive Director, Charles E. Nemir, in his official capacity, alleging that her discharge from employment was a result of sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq.1 After trial to the court, judgment was rendered for the Defendants based on written findings of fact and conclusions of law. Because the findings lack the required specificity to permit effective appellate review, we vacate the judgment and remand for further proceedings.

I. Background.

Smith’s evidence reflected that at the time of her discharge in January, 1983, she was employed by TDWR as an Engineering Aide III in the Topographic Mapping department (Topo’Mapping) of the Data and Engineering Services Division. She had first been employed as a secretary at TDWR in September 1982, but applied for the engineering aide’s position when a vacancy was posted in October 1982. She applied even though the aide’s position would initially pay less than her secretarial position. Smith wanted to transfer because of her technical background, including a Bachelor of Science degree in photography, and her perception that a technical career offered more long-term opportunity for advancement than did a secretarial position. While interviewing for the new position, she sought and obtained assurance from TDWR’s interviewer that the position was indeed a technical one, not involving secretarial duties. This assurance also conformed to the written job description furnished by TDWR. Smith was selected for the aide’s position effective November 22, 1982.

On January 13, 1983, Smith was asked to report to Charles R. Baskin, the then-Director of the Division, at his office on another floor. Baskin requested of Smith “a favor,” namely that she relieve Baskin’s secretary on a daily basis. This relief duty was to be permanent, consisting of 30 minutes each morning and afternoon. Smith was skeptical of the latter aspect, because on one previous occasion she had agreed to relieve Baskin’s secretary for 20 minutes but was kept for 3 hours. She also felt that she was being channeled back into the secretarial field from which she had so recently taken affirmative steps to leave. Moreover, the aide’s position, unlike that of a secretary, was one in which the employee’s production was measured. To the extent that Smith would be performing secretarial duties outside her department, she felt her measurable production in the aide’s job and therefore her job evaluations would be adversely impacted.

Smith did not initially refuse Baskin’s request but asked for time to think about it. She then received from Baskin a memo dated January 17, 1983, stating that the prior request for Smith to perform secretarial duties was now an assignment effective January 20, 1983, and that refusal to accept this assignment would constitute grounds for immediate termination. On January 20, Baskin called Smith to ask if she were going to relieve his secretary that day. When she replied that she needed more time to think about it, Baskin hung up. Smith attempted to telephone Baskin that afternoon, without success, and he did not return her call. Smith was next contacted on January 31, 1983, when she was handed her termination notice. No one was hired to replace Smith as an engineering aid, and Baskin's secretary was thereafter relieved by other secretaries.

Emil Blomquist, Smith’s immediate supervisor in Topo’Mapping, testified that the only other employee from that department ever requested to do secretarial relief work was Amy Nevarez, who was also the only other female employed in Topo’Mapping prior to Ms. Smith. None of the prior male employees in Topo’Mapping was ever asked to perform secretarial relief work. Blom-[1029]*1029quist also testified that it was unusual procedure for Baskin to make a direct work assignment to someone in Blomquist’s section, and that he regarded Smith’s secretarial assignment as unreasonable. Blom-quist considered Smith to be a good, dependable employee and was not consulted about the decision to fire her. Blomquist also described as insubordinate a male employee who preceded Ms. Smith and Amy Nevarez; Baskin took no disciplinary measures against this male employee and in fact he was later given a merit raise.

Bobbie Critendon was Blomquist’s supervisor and Smith’s “second-line supervisor.” He likewise did not participate in the decision to fire Smith and was unaware of any other incident in the TDWR where neither the first-line nor second-line supervisor participated in a decision to discipline an employee. In a written evaluation of December 1982, Critendon stated that Ms. Smith was “becoming an outstanding employee” and at trial stated she was virtually a “model employee.” Critendon likewise could not recall any male employee from Topo’Mapping ever being requested to perform secretarial duties.

Gary L. Otting, TDWR’s Director of Personnel, acknowledged that secretarial work was not related to the job description for an Engineering Aide and stated that no person in the agency had authority to unilaterally rewrite a job description. Baskin had approved and signed the Engineering Aide’s job description before it was posted and had the opportunity to give input about its contents. The description makes no reference to secretarial duties, although it does provide that the aide may “[ajssist in other Division programs as needed.”

Finally, Amy Nevarez testified that while employed as an Engineering Aide, she had been requested to do secretarial relief work for Baskin although she could not type and had no secretarial skills.

Defendants called no witnesses, but developed their case through cross-examination of Plaintiff’s witnesses. Their evidence indicated that at least one other male employee, albeit not from Topo’Mapping, “routinely” relieved secretaries although it was not part of his job description; that the predecessor male employee mentioned by Blomquist had never been insubordinate; that performing part-time secretarial duties would not adversely impact Smith’s future performance evaluations; and that Baskin did have authority to change an employee’s job description. Defendants also elicited testimony suggesting that budgetary pressures and staff reductions required the agency to be “flexible” and demanded that the Director modify individual assignments to meet the needs of the agency. It was further established that, because she had been employed at TDWR less than six months, Smith was considered to be on “probationary status.”

This evidence obviously could lead to sharply conflicting conclusions. Plaintiff described a model female employee, having recently transferred from a secretarial to a technical position at personal cost, unnecessarily re-assigned to secretarial duties contrary to her job description and agency procedures, which duties were never required of male employees, and summarily fired for balking at the assignment. Defendants saw an insubordinate probationary employee who refused to perform a direct job assignment, placing her personal preferences above the needs of the employer.

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799 F.2d 1026, 41 Fair Empl. Prac. Cas. (BNA) 1328, 1986 U.S. App. LEXIS 30507, 42 Empl. Prac. Dec. (CCH) 36,757, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-texas-department-of-water-resources-ca5-1986.