*1 (1985); The missioner, term of those leases. decision (CCH) 228 50 T.C.M. Commissioner, (CCH) tax court is AFFIRMED. v. 50 T.C.M. Hunter Commissioner, v. (1985); Sanders without (1984), (CCH) T.C.M. aff'd opinion, F.2d 174 Cir. published Commissioner, v.
1985); T.C. Peterson And, (CCH) government
M. issue, depend on all sides
has been advantage gained. This to be
ing on
v.
Bloomberg
also
See
example.
is
case
HICKS, Plaintiff-Appellant,
Marguerite
Commissioner,
herein, argument reject the we
taxpayers’ contemplation of ear- reasonable agree-
ly cancellation overrides actual lease term. Just as in
ment as to the fixed form, agree- the written
substance versus parties expresses also their
ment of the lease,
contemplation respect to the estopped repudiating they are drafted, they
document which themselves unexpressed understanding
in favor of an alleged contemplation to have existed at
the time.
III.
CONCLUSION taxpayers’
We have considered all addressing
arguments, specifically those necessary. considered We conclude
we question on their face fail
that the leases qualify for investment credit. four
parties fixed the term of the leases at fifty percent
years which is excess of equipment.
the useful life of the leased early privi-
The existence of an cancellation the fixed
lege does not void or override Following Recent Judicial Inter tests ment Tax Credit a discussion of the confusion of 9. For 46(e)(3)(B), deny employed by government tax bene Tax pretations 37 The Section O’Connell, area, Wiesner, (Fall 1983); in the investment credit see Lawyer fits Traditional Credit, Maximizing 42 N.Y.U. ERTA?, the Investment Tax Leasing: 41 N.Y.U. Is There Life After Vitale, (1983); Note Inst. on Fed. Tax’n 5.03[5] Inst. on Fed. Tax'n 11.07[2] —Noncorporate the Invest- Lessors Retention of *3 Moran, Denver, (John Mosby, Elisa Colo. Denver, Colo., brief), for was also on the plaintiff-appellant. Denver, (David Biskup,
Steven F. Colo. Gorsuch, Kirgis, Campbell, R. Gorsuch of Colo., Grover, Denver, was on Walker and brief), defendant-appellee. HOLLOWAY, Judge, Before Chief CROW, SETH, Judge, and Circuit Judge.* District HOLLOWAY, Judge. Chief Marguerite appeal by Plaintiff This an (“Hicks”) judgment by the Hicks from a in favor district court a Title action (“Gates”). Company The of Gates Rubber that case arose out of a series incidents brief, during eight period month occurred a of Hicks Gates. elements, Hicks’ Stripped to its essential subjected to racial claim was that she was in violation of 42 U.S.C. 1981 harassment (1982), subjected to racial and that she was sexual harassment in violation of Title Rights Act of VII of the Civil addition, seq. 2000e et In U.S.C. alleged complained she that when Equal Employment to the (“EEOC”), Opportunity she Commission defense, retaliatorily discharged. In was maintained that Hicks was neither Gates harassed, and she sexually racially nor discharged solely of unsatis- was because An of the factory job performance. outline evidence follows.
I woman, 15, 1980, Hicks, July a On black guard. security hired Gates as a working, em- began the time she At security force. ployed thirty people in its in the only woman Hicks was the black Kansas, sitting by designation. Sam Crow of the District * The Honorable force, security and one of two black jump foot dock, off a loading III R. guards. 51-52; Lyons, and that in contravention of procedure, standard permit would not her primary responsibility of the securi- to sit while conducting plant inspection. ty guards patrol at Gates was to the Gates R. Ill 52. She asserted that on one occa- plant grounds. To ensure the thor- sion Holec refused to allow oughness patrols, of these Gates had devel- to take her lunch break at time, oped an usual system elaborate as —known instead requiring her to relieve “walking a white keys” monitored a —that coworker, 54; III R. and that guard’s progress Holec patrol. insist- essence, ed that she ride in a car even system required though guard carry each passenger wet, seat was time patrol consequence clock on which was activated which was that she was keys forced strategically placed to “walk ninety-three at plant pants with wet various the rest patrol locations on the route. Ill shift.” R. 55. guard When a Hicks also reached one claimed locations, *4 during her period he or she probationary inserted key the into clock she was the sexually which harassed. She recorded the time guard’s recounted an inci- during dent trip arrival. a Although to patrol the time hangar involved in the “walking where Holec keys” the reached over vary depending could her and rubbed thigh said, factors, on and optimal external “I you’re the going rate for think to patrolling make it.” grounds Ill R. the was fifteen 55. keys per Finally, Hicks deline- half examples hour. In ated guards addition of hostility by carried exhibited co- short-wave radios and were workers. subject peri- to odic radio checks. Guards were also re- Evidence offered Gates differed radi- quired to maintain daily logs that detailed cally from Hicks’ probation- account of her any variation from patrol the normal rou- ary period. According Gates, to Hicks had tine. difficulties performing her duties as a se- When employee a new began working at curity guard from very beginning of Gates, employee was automatically employment. her trainer, Lyons, Her testi-
placed on ninety day a period, probationary fied that during her training, Hicks was during which time he or she could be dis- unable to accurately remember the loca- charged without cause. keys along tions patrol route, V 449-54, R. and as a trial, consequence, At he was sought Hicks to establish that instructed by his to simplify the work during environment at Gates her training program to probationary period her accommodate permeated was memory problems. Lyons racial and testified hostility. Gates’ employ- performance Hicks’ ees testified so atmosphere that an was deficient that existed in by the week, end of the which first jokes begun racial slurs and he had were tolerated. question Ill R. to her ability 40-42. At adequately per- one to supervisor, least Gleason, form the work. V Lyons referred to R. 450. “niggers,” blacks as also III R. at found it necessary and to “coons.” IV R. extend Hicks’ 162. On train- occasion, ing period one Gleason was from the said to normal time have of one made a to reference week four “lazy to weeks. R. niggers V 457. Even at and weeks, Mexicans” end of appeared to four did spe- Lyons really have been not cifically capable directed feel she fully at was performing Hicks. IV R. In a vein, similar one of her duties a guards, security guard. as security Brawley, referred to Hicks as “Buffalo Gates challenged also interpreta- Hicks’ Butt.” IV R. 164. tion the events cited her as evidence Hicks early claimed that probation- her disparate treatment. The loading dock ary period she subjected was disparate to event was to said be a minor incident that treatment supervisors both and cowork- occurred when Hicks’ trainer took short a complained ers. She trainer, that her up cut to make lost on patrol time Lyon, forced her to make a four or five route. The pants got incident when Hicks’ warning, Ely record of Ely. In the verbal an inad- the result of described as
wet was job five areas which Hicks’ Finally, delineated R. 468. oversight. V vertent (1) unsatisfactory: miss- performance was Hicks’ conten- strenuously disputed many keys during patrol, too her sexually harassed that she had been tion walking keys per less than fifteen half miscon- Holec, asserting that Hicks had hour; (2) taking long inspecting too gesture of Mr. and harmless an innocent strued (3) hangar; failing to Gates’ house and encouragement. instructions; supervisor’s follow her difficulties, successfully Hicks Despite many missing reporting late on too radio period, becom- completed probationary her checks; (5) failing report to all devia- guard time on October ing a full patrol route on her tions from normal However, began to Hicks said she soon again daily report. On December supervisor, experience difficulties with her by filing responded discipline a claim to On November Gleason Gleason. with the EEOC. of retaliation put up Hicks “that he would his foot told long receiving warn- go Not after the verbal ass so far that would have [her] [she] again sexually ing, Hicks said that she was take it out.” Ill R. 56. to clinic to taking following She addition, day, harassed Gleason. Hicks said that up in a patrol her on the on when Gleason drove Gleason touched break November “ said, stopped caught “I going get you go-cart. He said ‘I’m buttocks and ” time, got Ill you,” you.” or “I R. at 70. He yet.’ III R. 56. At about this grabbed manager security, allegedly Hicks' breasts and instructions from the then *5 over, got top began making notations she “fell and he Ely, Gleason also [her].” Ill denied such acts. job performance. R. 70. Gleason on Hicks’ 3, 1981, January injured Hicks her problems with some of On Hicks also had 18, 1980, leg, slipped and head she and her November for back when coworkers. On walking instance, step ex- fell on a broken while Hicks had a heated verbal Gleason, Although supervisor, change guards, Phyl- keys. her with one of the other step, of the broken he did not warn lis Adams. This altercation was the sub- knew including meeting guards swing Ely an informal with on the on the ject of shift— 12, danger. February 19. He Hicks that he Hicks—of the On November warned claim, alleg- going Hicks filed her fourth EEOC “not to have this kind of action was ing for injury Ill R. 61. Hicks filed a that her was retaliation out of [her]....” having previous complaints. charge Equal filed the EEOC of discrimination with Employment Opportunity Commission injury, As a result of her Hicks missed (“EEOC”) alleged on November She returning days, for six to work on work arising out of racial and sexual harassment return, inju- January her her On environment, general as work as well resumption prevented an immediate ries specific instances harassment. guard Consequently, her she was duties. by given “light duty slip” a the Gates clinic November Hicks was involved
On return, following relieving security for the week her an incident with another Gates Roe, alleg- walking keys. she guard, in which Hicks her from When Patricia however, duties, fight. regular her challenged Roe to a After an resumed edly pain in by Ely, persistent Hicks Hicks continued to have investigation of the incident job per- her Nota- her back that interferred with Derogatory was issued a Personnel giv- (“DPN”) February Hicks was 1980 and formance. On tion on December response, poor job performance. en a DPN for suspended days. for three charge filed of discrimina- Hicks a second received a verbal February On alleging tion with the EEOC that the sus- weapon when warning mishandling for for her earlier pension was retaliation gun accidentally dropped. On her was charge of discrimination. again disciplined February Hicks was involving mis- incident Hicks received a for a second On December 17, a by handling weapon. her On March warning poor performance verbal for 14H hearing proclivities, at which Hicks dis- was held was and there was never a sugges- charged poor performance. by work On tion made Mr. Gleason that submission complaint to April 20 Hicks filed her final his attentions was a condition of favor- EEOC, contending supervisory had able with the she treatment him or con- retaliatorily discharged employment. for her tinuation of her been four Indeed it appears that Mr. prior complaints. Gleason guilty
gratuitous personal acts of boorish conduct II unrelated to implicit overt or demand responsive invitation him for conduct trial, After a bench the district court of any by plaintiff. kind dispute It is in as rejected racially Hicks’ claim of a hostile to whether Mr. plain- Gleason’s acts toward environment, along work with all her brought tiff were to the attention of Mr. disparate retaliatory claims of racial Ely, Division, of the Guard treatment and sexual harassment. The tri- court find no basis for [the could] alia, stated, inter judge’s findings al resolution of the conflict.” I R. 59. plaintiff’s trainer determined that she re- The court quired learning job additional time in her recounted the as several com- plaints by plaintiff filed learning she was slow the location of all the EEOC and noted July that on keys required punch. she was Addi- EEOC plaintiff notified it could find no training plaintiff’s tional was a result of reasonable support plaintiff’s cause to complaints. needs and there was impermissibly not an discriminatory reason for additional train- With respect to the December indicating training and no evidence complaint EEOC, with the the court found rigorous was more or abusive than that this challenge was the result of a issued required non blacks or that it was de- plaintiff fight another female security signed quitting. to harass her into guard, the challenge provoca- was without tion, and it was by provocative attended
The court found that there was no evi- unjustified plaintiff. behavior support plaintiff’s dence to claim that de- warning verbal delivered to permitted fendant maintained and a work Ely, subject of her third EEOC com- openly environment hostile to black em- *6 plaint, was regular issued as a result of a ployees. only suggestive evidence of spot semiannual check of time charts and disputed testimony this was specific of daily reports, spot and the check was not workers, by statements fellow but there by Ely any purpose instituted for other and was no evidence that defendant condoned plaintiff singled spot was not out for the such conduct. Plaintiff testified about cer- check. The court found that the December tain acts of unwarranted violation her of warning poor perform- 1980 verbal person by supervisory personnel. The (missing many keys, failing ance too to court patting found the incident of her hour, etc.) meet the keys per standard of 15 thigh by Hollec was an isolated incident in had a basis fact. which there was no sexual advance intend- ed. respect plaintiff’s With to fourth EEOC complaint concerning the fall when she was alleged The court found acts to have allegedly stair, unwarned about a broken by (squeezing been committed Gleason her the court found that Gleason had been ad- touching buttocks one time and her breasts vised of the broken stair but failed to warn another) on only were found to be in dis- guards plaintiff’s of the shift of the pute violation, degree as to the dangerous condition and that there was no plaintiff subjected that “the by was Mr. singled basis for the assertion that Gleason Gleason touching to unwarranted of her plaintiff out or that his failure to warn her person and to familiarities neither invited was based on malice toward her. encouraged by nor I her.” R. 58. The notwithstanding court found Finally plaintiff’s that the evi- the court found that dence discharge indicates these incidents were on March 1981 followed an consequences Ely “the investigatory hearing of Mr. Gleason’s own before Mr. VII; personnel
two members of defendant’s of- violation of Title in concluding fice; charges the basis for the on that Gates had legal, articulated a nondis- discharge which the were made was the criminatory for terminating basis Hicks’ warning same as the verbal of December addition, employment. Hicks claims a 15, 1980, poor performance; and that der- variety evidentiary errors at trial. rogatory personnel giv- notations had been warnings poor en Gleason about Ill performance. The court found that at the investigatory hearing plaintiff time of the Racial Harassment responded performance that her had been prohibits Title VII discrimination employees; at same level as other but employer “against any individual with that she did not deny specific otherwise respect compensation, terms, to his condi charges poor performance. She assert- tions, privileges employment, because inability perform ed her rounds within race, color, of such religion, individual’s keys per standard of 15 half hour was sex, origin_” or national 42 U.S.C. injury because she sustained in Janu- 2000e-2(a)(l) (1982). The trial court re- ary 1981. The court found that there “is a jected Hicks’ claim that Gates had violated specific poor basis fact for the acts of by failing Title provide “to and ensure performance upon disciplinary which the a work environment free from racial hostil- discharge invoked.” I R. 62. The ity and harassment and I intimidation.” R. guards court found that no other employed Instead, the court found that “[t]he by defendants sustained the difficulties of only evidence [supporting the is dis- claim] plaintiff achieving the standard or other- puted testimony specific statements performing assigned wise the same tasks workers, made fellow is no there to her and that there is “no evidence that evidence whatever that the defendant con- plaintiff treatment of the was different doned such conduct.” I R. 68. Because guards.” from treatment of non-black I R. we conclude that the trial court’s erroneous, clearly uphold was not we must The court concluded was not rejection its of the racial harassment claim. subjected disparate treatment on the gender defendant; It is basis race or well established she that “a work subjected was not to the sort of environment dominated racial slurs cognizable under Title VII “be- constitutes violation of Title VII.” John cause her tolerance of or consent to the Bunny Co., son v. Bread 646 F.2d acts of either Mr. Hollec or Mr. (8th Cir.1981). Gleason 1257 Accord Walker was not made a condition continued Co., Ford Motor employment_ The defendant dis- Cir.1982). “To racially establish a hostile *7 charged of her because inabili- environment, however, work plaintiffs ty adequately perform to job for which prove must more than a few isolated inci she was hired and for no other reason.” I enmity.” dents of racial Snell v. Suffolk good R. 64. Defendant articulated a faith Co., 1094, (2d Cir.1986). 782 F.2d 1103 Ac plaintiff's business reason for discharge as Rock, City cord Gilbert v. Little 722 of punitive taken, well as the other action (8th Cir.1983), denied, F.2d 1394 cert. actions, punitive including the dis- 972, 104 466 U.S. 80 S.Ct. L.Ed.2d 820 charge, specific non-pretex- were based on comments, “Casual or accidental or grounds tual they were not in retalia- conversation, sporadic trigger eq will not filing complaints tion for with EEOC. pursuant uitable relief to the statute.” Snell, appeal, alleges
On
782 F.2d
Rogers
at
Accord
that the trial
(1)
determining
Equal
Employment
court erred
Opportunity
that Hicks
Comm’n,
(5th Cir.1971),
had not
subjected
been
to
454 F.2d
racial harass-
proscribed by
denied,
ment
Title VII
and U.S.C. cert.
406 U.S.
S.Ct.
1981; (2)
finding
(1972). “Instead,
that Hicks had not L.Ed.2d 343
there
§
must
been the victim of sexual
steady barrage
opprobrious
harassment
be
racial
Johnson,
IV
or offensive work environment must be de-
termined
Sexual
totality
Harassment
of the circum-
stances. Henson,
1414
credibility of
the
judge
the
court to
acts ... was not made
trial
a condition of
52(a) (1982).
64,
her
employment,”
continued
I
the witnesses.” Fed.R.Civ.P.
R.
it
‘clearly seems clear that
finding
may
“A
be deemed
court believed that
fact
only
Hicks could recover
only
finding
quid pro quo
if the
is without
erroneous’
result,
sexual
if
harassment. As a
support in the record ... or
court
factual
failed to consider whether the “unwarrant-
reviewing court on the entire evidence is
touching
ed
... and
firm
familiarities” to which
left with the definite and
conviction
58,
subjected,
Hicks was
I R.
and other
made.”
that a mistake has been
Colon-
evidence established
Marsh,
hostile work environ-
78,
v.
733 F.2d
81
Sanchez
noted,
ment sexual
denied,
harassment. As
Cir.),
855,
469 U.S.
cert.
judge
trial
did not
explica-
have Vinson’s
181,
(1984).
L.Ed.2d 115
“This standard
tion on the “hostile
theory.
environment”
reviewing
plainly does not entitle a
court to
finding
of the trier
reverse
of fact
findings
“When
are infirm because of an
simply because it is convinced it would
law,
erroneous
view
a remand is the
differently.”
have decided the
case
proper course unless the
permits
record
Anderson,
themselves,
support
insufficient
to
a
be
may,
pervasive
of such force
if
enough,
racially
claim can
hostile work environment
illegal
form an
‘condition of employ-
incidents of sexual
be combined with
pattern
ment.’ So too a
of mixed sexual
prove pervasive pattern
a
of
harassment
physical
advances and
may
force
il-
be
discriminatory harassment
in violation of
legally discriminatory if based on the em-
Title VII.
ployee’s sex....
McKinney,
ture....”). harassment, incidents of serious sexual judge they district found that occurred.
In the District of Columbia Court addition, Hicks Appeals rejected introduced evidence of of this narrow definition Dole, physical threats of violence and incidents of McKinney of sexual harassment (D.C.Cir.1985). verbal abuse. evidence F.2d 1129 Such should be There the determining considered in directly whether court confronted with the has established a hostile question work environment physically aggressive “whether a sexual harassment claim. explicitly not sexual act a male supervisor against employee may a female part prohibited pattern constitute of a of
sexual discrimination.” Id. at 1131. The question in- The second is whether responded: court cidents of sexual harassment directed at have held employees plaintiff
We never that sexual harass- other than the can be unequal proof plaintiff’s ment or other treatment of an used as of a of claim employee group employees or that oc- hostile work environment. The answer employee inquiries curs because of the sex of an seems clear: one critical must, illegal VII, to be under Title take a hostile environment claim must be the general the form of sexual advances or of other environment. Evidence work clearly atmosphere instances with sexual overtones. therefore —as well as evidence Rather, specific hostility And we decline to do so now. directed toward the important we hold that harassment or other an factor evaluat- —is Indeed, unequal employee treatment the claim. “such evidence case, group employees plaintiff’s that would not occur could be critical to a where employee but for the sex of the or em- cannot estab- a claim of harassment be ployees may, showing if isolated sufficiently patterned or lished without a
1416
discriminatory
may
indicia of a
aggregate
environment.”
evidence of racial hostility
(D.C.Cir.1985),
Taylor,
141
Vinson v.
753 F.2d
with evidence of
hostility.
sexual
We con-
part
part,
clude
permissible.
and rev’d in
477
that such aggregation is
aff
'd
57,
2399,
U.S.
106 S.Ct.
work in an
where such harass-
plaintiff appealed, arguing that the court
pervasive.”
ment was
Id. at 146. This
refusing
had erred in
to consider her claim
support
view finds
in racial discrimination of discrimination based on both race and
brought
cases
under Title VII.
Rogers
See
sex.
agreed.
The Fifth Circuit
Relying on
Equal
Employment Opportunity
cases
disparate
treatment of a sub-
Comm’n,
(5th Cir.1971),
Jack Lee
pro-
and the case is remanded for further
opera-
Company’s
Gates Rubber
Denver
ceedings
opinion.
in
this
The
accord with
tions, testified that
the clock charts and
present
reconsider the
district court should
routinely
daily reports were
used for deter-
hearings
further
record
conduct
disciplinary
mining whether
action should
making of re-
necessary
deemed
for the
against
guard,
IV R.
be taken
disposition
findings, conclusions and
vised
278, 280, and that
the clock charts and
on reconsideration of all of the
of the cause
daily reports
in fact relied on in disci-
were
claims.
plining
ultimately firing Hicks.
R.
IV
IT IS SO ORDERED.
299-300, 306, 307, 328, 329, 333. The doc-
having
uments
“records
to do with
were
SETH,
Judge, dissenting:
Circuit
demotion,
termination,”
or
29 C.F.
...
...
from the ma-
respectfully
I must
dissent
1602.14(a),
personnel
R.
and are thus
or
accept the
jority opinion
I cannot
because
employment records which should have
(slip opin-
majority opinion
quotation in the
argument
been retained
Gates. Gates’
Dole,
ion,
1415)
reports
page
McKinney
v.
daily
that the clock charts and
were
employer
selectively
cer-
support
retained
the record does not
where an
has
5. We observe that
self-serving
and discarded
in
documents
the assertion that Gates acted in bad faith
tain
period.
particular
destroying
in a
time
the documents. This is not the case
remainder
(D.C.Cir.),
McKinney
only pervasive harassment but also crimi-
nal conduct of the most serious nature— plainly
are sufficient to state claima
‘hostile environment’ sexual harass- ment.” SHELEY, Robert P. Supreme Court does not center on “un- Petitioner-Appellant, equal treatment” but on sexual harass- ment conse- DUGGER, Richard L. quences on Robert A. Butter employment. conditions of worth, Respondents-Appellees. It very specific. is all the case before us the trial court No. 85-3636. found that there had been two incidents Appeals, United States Court involving the same employee male Eleventh Circuit. plaintiff which implications. had sexual Nov. This was a of fact as to the work- ing environment and approach does not Meritor,
statement of the doctrine in perhaps
would generalized conform to the