Clаudette T. BOURQUE, Plaintiff-Appellant Cross Appellee, v. POWELL ELECTRICAL MANUFACTURING COMPANY, Defendant-Appellee Cross Appellant.
No. 78-1247.
United States Court of Appeals, Fifth Circuit.
May 5, 1980.
Rehearing Denied May 28, 1980.
Under these circumstances, the district court concluded that Valdes had beеn part of a large and well-financed drug operation and had not produced any substantial evidence indicating that he had severed his connection with it. Rather, the court implied, the risk of continued illegal drug activities was a danger.1
The government urges that the single fact that Valdes has engaged in one drug conspiracy, by itself, is sufficient basis for a conclusiоn that the risk of repetition is a danger to the community that supports denial for bail, relying upon U. S. v. Miranda, 442 F.Supp. 786 (S.D.Fla.1977), rev‘d on other grounds, 593 F.2d 590 (5th Cir. 1979). This argument misstates the holding in Miranda, and the district judge in the present case did not hold that one swallow makes a summer; rather, he concluded from all the surrounding circumstances that the risk of continued drug activity by Valdes was so high that he is a danger to the community. The record before us does not convince us that we should reach a different conclusion.
The motion for bail pending appeal is DENIED.
Baker & Botts, Richard R. Brann, Tony P. Rosenstein, Houston, Tex., for defendant-appellee cross appellant.
Before GOLDBERG, FRANK M. JOHNSON, Jr., and HATCHETT, Circuit Judges.
FRANK M. JOHNSON, Jr., Circuit Judge:
Claudette Bourque, the plaintiff here, be
The district court found that defendant Powell, in violation of Title VII of the Civil Rights Act of 1964,
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 еvidence. 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 thе 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 tо 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
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 wоuld 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 $130 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 hеr 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 (1975); Brennan v. Prince William Hosp. Corp., 503 F.2d 282, 285 (4th Cir. 1974), cert. denied, 420 U.S. 972 (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 distriсt 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.
Neither in Young nor in Calcote did this Court examine the facts under the stringent test that requires an employer‘s intent to rid itself of an employee. In neither case did the Court attempt to divine the state of mind of the employer. Rather, analysis proceeded upon an examination of the сonditions imposed. See Calcote, supra, 578 F.2d at 97-98; Young, supra, 509 F.2d at 144. To find constructive discharge we believe that “the trier of fact must be satisfied that the ... working conditions would have been so difficult or unpleasant that a reasonable person in the employee‘s shoes would have felt compelled to resign.” Alicea Rosado v. Garcia Santiago, 562 F.2d 114, 119 (1st Cir. 1977).
Consideration of the question of constructive discharge from the perspective of a reasonable employee, however, does not aid plaintiff. Ms. Bourque voluntarily accepted a promotion at a rate of compensation she knew to be unequal to that earned by males holding the job. Further, she agreed to work for unequal pay and expected only that her compensation would be increased to a level she also knew to be unequal to that earned by male buyers. We have no question that her resignation resulted directly from her disappointment in not receiving the raise she had expected. We cannot fault her for that disappointment. Nevertheless, we cannot accept that under the circumstances presented here a reasonable employee would have felt compelled to resign. Moreover, we believe that discrimination manifesting itself in the form of unequal pay cannot, alone, be sufficient to support a finding of constructive discharge. See Cullari v. East-West Gateway Coordinating Counsel, 457 F.Supp. 335, 341 (E.D.Mo.1978).
Ms. Bourque urges that the working conditions she faced were no less objectionable than those faced by the plaintiff in Young. We disagree. In Young, wе held that mandatory attendance at company prayer meetings imposed an intolerable working condition upon the plaintiff because attendance would have forced her to sacrifice her fundamental religious beliefs. While we by no means discount the discrimination Ms. Bourque may have faced, we simply do not believe that working for unequal pay under the circumstances presented here constitutes a condition of employment so intolerable that an employee is forced into involuntary resignation. The very fact that Ms. Bourque accepted the position under the conditions imposed belies such a contention.
Plaintiff admitted in brief and at oral argument that a cause of action existed from the moment she accepted the job at unequal compensation. She contends, however, that to require employees suffering
Certainly unlawful discrimination in the form of unequal pay is relevant in any detеrmination of whether constructive discharge has occurred. We recognized as much in Calcote. See 578 F.2d at 97. That case, however, presented continuing discrimination on the basis of race in the form of unequal pay and merit raises and racial harassment. See id. at 96-97.7 We think that unequal pay alone does not constitute such an aggravated situation that a reasonable еmployee would be forced to resign. Unequal pay is not a sufficient justification to relieve Ms. Bourque of her duty to mitigate damages by remaining on the job. See Alicea Rosado supra, 562 F.2d at 119.8
AFFIRMED.
HATCHETT, Circuit Judge, dissenting.
I dissent because Powell Electrical constructively discharged Mrs. Bourque under this circuit‘s law of constructive discharge. Calcote v. Texas Educational Foundation, 578 F.2d 95 (1978); Young v. Southwestern Savings & Loan Association, 509 F.2d 140 (1975). Mrs. Bourque‘s case is one “in which an employee involuntarily resigns in order to escаpe intolerable and illegal employment requirements.” Young at 144. She has a statutory entitlement to equal pay under Title VII. Her employer denied her this right.
This particular violation of Title VII did not, by itself, make Mrs. Bourque‘s working conditions so intolerable as to force her into an involuntary resignation. She also endured Mr. Powell‘s discriminatory statements and his aversion to her prоmotion to buyer, a job for which she fully qualified. Mr. Powell approved her promotion only after imposing upon her conditions which were not inflicted upon male buyers: a three-month trial period*; a salary $275 per month lower than her male counterparts; and time clock check-in. Further, upon successful completion of the trial period, even with a raise, Mrs. Bourque‘s salary still was over $200 less than either of the males whose duties compared with hers.
These actions are sufficient to constitute working conditions so intolerable as to
* Though Mrs. Bourque subsequently desired a three-month trial period, Mr. Powell originally created the trial period as a condition precedent to her promotion to buyer.
JOSEPH W. HATCHETT
UNITED STATES CIRCUIT JUDGE