Fine v. GAF Chemical Corp. ( 1993 )

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that this opinion should not be published.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.
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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.
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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
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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.
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