Henry Tidwell v. Meyer's Bakeries ( 1996 )

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No. 95-3506
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Henry N. Tidwell; Herman L. *
Muldrow, *
*
Appellees, *
*
v. *
*
Meyer's Bakeries, Inc., *
*
Appellant. *
___________ Appeal and Cross-Appeal
from the United States
No. 95-3507 District Court for the
___________ Western District of Arkansas.
Henry N. Tidwell, *
*
Appellant, *
*
Herman L. Muldrow, *
*
Plaintiff, *
*
v. *
*
Meyer's Bakeries, Inc., *
*
Appellee. *
__________
Submitted: April 10, 1996
Filed: August 21, 1996
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Before MAGILL, Circuit Judge, HENLEY, Senior Circuit Judge, and
LOKEN, Circuit Judge.
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MAGILL, Circuit Judge.
Henry N. Tidwell, an African-American, worked as a production
supervisor at Meyer's Bakeries, Inc. Following a work schedule
change that Tidwell perceived to be a demotion, he quit his job.
Shortly thereafter, he brought suit under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e-2, and under the Civil Rights
Act of 1991, 42 U.S.C. § 1981, against Meyer's, claiming that
Meyer's' employment practices were racially discriminatory and
resulted in his constructive discharge.
The jury returned a verdict in favor of Tidwell and awarded
him $34,470 in back pay. The district court, through a subsequent
order, awarded Tidwell front pay and attorney's fees. On appeal,
Meyer's challenges the verdict, claiming that as a matter of law
there was insufficient evidence upon which the jury could conclude
that its working environment was so intolerable that it compelled
Tidwell to quit. Tidwell cross-appeals, challenging the district
court's calculation of front pay damages and attorney's fees. We
agree with Meyer's and reverse.
I.
Meyer's Bakeries, Inc. is a family-owned business based in
Little Rock, Arkansas. It produces bread products which are sold
to customers throughout the United States. Meyer's' customers
repackage the products and sell them under various private labels.
Meyer's provides English muffins to McDonald's Restaurants and
English muffins and bread sticks to Sam's Club. III Trial Tr. at
579.
Meyer's has a baking facility located in Hope, Arkansas, that
produces English muffins, bread, and "brown and serve" rolls. The
Hope bakery is divided into five departments, one of which is
production. As the name suggests, the production department mixes
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the dough, operates the ovens, and oversees the packaging of the
finished product. The production department at the Hope bakery is
divided into three operations that correspond to the three products
baked there: muffins, bread and "Lanham." The Lanham operation
produces the "brown and serve" rolls.
Each production line has a shop division and a wrap division,
each with a supervisor. The shop supervisor works at the beginning
of the production line, overseeing the mixing of the dough and
generally ensuring that the dough moves smoothly onto the baking
line. The wrap supervisor works at the end of the production line
where the finished product is packaged and boxed. Generally, shop
and wrap supervisors on each line are paired together, sharing the
same work schedule.
Operating at a normal production rate, Meyer's has one Lanham
shift per day. During the "rush" periods in the months leading up
to Christmas and Easter, Meyer's will run up to four Lanham shifts
each day. The Christmas rush begins in August and lasts for
approximately three months.
Because of the surge in personnel needs during rush periods,
Meyer's typically rearranges employee schedules. Some supervisors
are switched to different shifts and temporary supervisors are
assigned to fill the empty slots. The assistant plant manager,
Mike Nelson, made staffing decisions for production supervisors.
IV Trial Tr. at 635.
From 1991 to 1993, over fifty percent of the production
workers in Hope were African-American. Out of the twelve
production supervisors in Hope in 1987, four were African-American.
By 1993, the number of production supervisors had increased to
eighteen of which eight were African-Americans. Few African-
Americans occupied management positions above the level of
production supervisor, however.
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Tidwell was employed by Meyer's on a full-time basis in the
production department of the Hope bakery from October 27, 1978
until September 25, 1993. For the first eight years of his
employment, Tidwell worked as a production worker, spending time on
all three production lines. In June 1986, Tidwell worked as a
temporary wrap supervisor for first shift Lanham. After Christmas
rush, Tidwell became a full-time production supervisor. As a
production supervisor, Tidwell changed shift and line with some
regularity.
Initially, Tidwell was assigned as the wrap supervisor of
second shift muffins. When the 1987 Christmas rush season began,
Tidwell was sent to first shift Lanham, where he had been stationed
the prior year. After the 1987 Christmas rush period was over,
Tidwell went back to second shift muffins. He went back to first
shift Lanham during the 1988 Christmas rush and remained there
through the 1989 Christmas rush period. He then went back to
second shift muffins and, in addition, he began filling in for
other supervisors on vacation and wherever he was needed. David
Overstreet, a white production worker who had been promoted to
production supervisor earlier that year, replaced Tidwell as first
shift Lanham wrap supervisor.
When the 1990 Christmas rush began, Tidwell was assigned to
second shift Lanham and, after the rush, he went back to second
shift muffins. Again in 1991 he worked second shift Lanham and
returned to supervising the muffin line following Christmas rush.
Prior to the start of the 1992 rush, Tidwell told the production
manager that he preferred to remain with second shift muffins and
wanted to avoid second shift Lanham during the Christmas rush
period because he disliked supervising the untrained workers on
second shift Lanham. II Trial Tr. at 134. After Overstreet left
Meyer's, the production manager told Tidwell that he would be given
his choice of shifts if he agreed to return to the Lanham line.
Tidwell agreed and chose to serve as first shift Lanham wrap
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supervisor. After the 1992 Christmas rush, Tidwell remained on
first shift Lanham as the wrap supervisor until August 22, 1993.
During this period, Mike Bishop, an African-American assistant
production superintendent, told Tidwell that the bakery would be
hiring a new assistant production superintendent and that he had
recommended Tidwell and Mark Smithers, a white production
supervisor, for the job.1 Bishop also allegedly told Tidwell that
he thought that Tidwell would not be selected because Meyer's would
not want two African-American assistant production superintendents
at the Hope bakery.2
At the time Meyer's was considering who to promote, Smithers
was already serving as a temporary assistant production
superintendent. IV Trial Tr. at 713. Still, Tidwell believed he
and Smithers were equally qualified candidates. Meyer's offered
Smithers the job.3 When Tidwell congratulated Smithers on the
promotion, Smithers told him that "Lanham is yours so long as you
are with the company." II Trial Tr. at 150. Tidwell understood
Smithers to mean that he would be the permanent, first shift Lanham
wrap supervisor.
In August 1993, four supervisory positions were eliminated in
a downsizing which resulted in a reassignment of supervisors.
Under the new schedule, no wrap supervisor was assigned to any
particular department. Tidwell was assigned to work "relief" along
1
The bakery production manager, Beryl Freeman, was responsible
for promotion decisions in the production department. Freeman,
however, sought Bishop's assistance in evaluating the abilities of
the lower level employees.
2
Bishop denied making this statement to Tidwell. IV Trial Tr.
at 743-44.
3
Tidwell later came to believe he was the better qualified
candidate because he had been employed longer at the bakery and
because he had taken an American Institute of Baking course.
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with three other wrap supervisors, filling various time slots and
production lines as needed.
On September 25, 1993, Meyer's announced a new schedule to
take effect the next day. Tidwell was removed from the all wrap
supervisor schedule and assigned to serve as second shift Lanham
wrap supervisor. According to the assistant plant manager, Tidwell
was assigned to be one of the two second shift Lanham supervisors
because Meyer's wanted to pair experienced wrap supervisors, in
this case Tidwell, with inexperienced shop supervisors.
Tidwell was upset with the new schedule. Another supervisor,
Charles Scisson, questioned the production superintendent, Red
Rosenbaum, regarding whether the schedule was accurate. After
Rosenbaum determined that the schedule was, in fact, accurate and
was to be worked, Tidwell "got up and walked out." II Trial Tr. at
279.
Tidwell testified that he was upset with the newest schedule
for several reasons. First, he felt that Smithers had broken a
promise to allow Tidwell to stay with first shift Lanham. As
Tidwell testified, "when Mr. Smithers got his promotion [he told
me] that Lanham was mine as long as I was with the company."
Second, Tidwell testified that he did not want to supervise second
shift production workers, who tended to be less experienced or less
motivated. Third, he believed that this "demotion" to the second
shift represented another example of Meyer's' discriminatory
employment practices.4 On the September 26, 1993 schedule,
4
Tidwell had made earlier complaints about Meyer's' racially
discriminatory scheduling practices to the bakery production
manager and the assistant production superintendent. In July 1993,
Tidwell and four other African-American production supervisors
filed a race discrimination charge against Meyer's with the Equal
Employment Opportunity Commission, claiming that the production
supervisor shift assignments were determined in a racially
discriminatory manner.
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Charlotte Bobo, a white supervisor, was assigned first shift Lanham
wrap supervisor. Bobo had less experience than Tidwell and he
viewed her assignment to first shift Lanham wrap supervisor as a
promotion of a white employee over a more qualified African-
American employee.
Tidwell never inquired as to the reasons for Bobo being placed
on first shift Lanham nor did he inform anyone in management that
he believed that he had been promised an assignment to that shift
as long as he worked for the company or that he believed he had
been denied the shift assignment because of his race.
After walking off the job on September 25, 1993, Tidwell had
no further contact with Meyer's. On October 27, 1993, he filed a
second charge of discrimination against Meyer's with the Equal
Employment Opportunity Commission (EEOC). The EEOC refused to take
action itself, but issued a right to sue letter. Tidwell filed
suit in federal court on March 7, 1994, alleging unlawful race
discrimination and constructive discharge. After a four-day trial,
the jury returned a verdict in favor of Tidwell.
Meyer's moved for judgment as a matter of law at the close of
plaintiff's evidence and after the jury returned its verdict. The
district court denied both motions. Meyer's appeals, arguing that,
as a matter of law, there was insufficient evidence upon which a
reasonable jury could conclude that working conditions were so poor
for Tidwell that he was compelled to quit his employment. Tidwell
cross-appeals, raising two issues. He argues that in awarding
front pay, the district court erred in limiting it to two years
into the future. He also argues that the district court abused its
discretion in reducing counsel's hourly rate and time calculation
in determining the attorney's fee award.
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II.
We review de novo the district court's denial of judgment as
a matter of law. Amerinet, Inc. v. Xerox Corp., 972 F.2d 1483,
1505 (8th Cir. 1992), cert. denied, 506 U.S. 1080 (1993). "A
motion for judgment as a matter of law presents a legal question to
the district court and this court on review: 'whether there is
sufficient evidence to support a jury verdict.'" Smith v. World
Ins. Co., 38 F.3d 1456, 1460 (8th Cir. 1994) (quoting White v.
Pence, 961 F.2d 776, 779 (8th Cir. 1992)). We view the evidence in
the light most favorable to the prevailing party, giving him the
benefit of all reasonable inferences that can be drawn from the
evidence. Smith v. Goodyear Tire & Rubber Co., 895 F.2d 467, 471
(8th Cir. 1990). Judgment as a matter of law is appropriate only
when all of the evidence points in one direction and is susceptible
to no reasonable inference that would sustain the position of the
nonmoving party. Id. After a thorough review of the trial record,
we conclude that there is insufficient evidence, as a matter of
law, to establish that Tidwell was constructively discharged.
To establish a prima facie case of discriminatory discharge,
Tidwell must show that (1) he was a member of a protected class,
(2) he was capable of performing the job, and (3) he was discharged
from the job. See Johnson v. Bunny Bread Co., 646 F.2d 1250, 1253
(8th Cir. 1981); see also Richmond v. Board of Regents of Univ. of
Minn., 957 F.2d 595, 598 (8th Cir. 1992) (prima facie case under
Title VII and section 1981 are identical). Tidwell has met the
first two elements of this test. Because Tidwell was not formally
terminated by Meyer's, he must show that he was nevertheless forced
to leave Meyer's' employment due to constructive discharge.
To constitute a constructive discharge, the employer must
deliberately create intolerable working conditions with the
intention of forcing the employee to quit and the employee must
quit. See Bunny Bread Co., 646 F.2d at 1256. The plaintiff can
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satisfy the intent requirement by demonstrating that he quit as a
reasonably foreseeable consequence of the employer's discriminatory
actions. Hukkanen v. International Union of Operating Eng'rs, 3
F.3d 281, 285 (8th Cir. 1993).
A constructive discharge arises only when a reasonable person
would find the conditions of employment intolerable. Id. To act
reasonably, an employee has an obligation not to assume the worst
and not to jump to conclusions too quickly. West v. Marion Merrell
Dow, Inc., 54 F.3d 493, 498 (8th Cir. 1995). An employee who quits
without giving his employer a reasonable chance to work out a
problem has not been constructively discharged. Id.
We have looked at the evidence in this case in the light most
favorable to Tidwell, and conclude that there is no indication that
Meyer's acted with the intention of forcing Tidwell to resign or
that Tidwell's resignation was a reasonably foreseeable consequence
of Meyer's' actions. While there is evidence that Tidwell was
discriminated against on the basis of his race, we hold that there
was insufficient evidence to establish that a reasonable person
would find the working conditions at Meyer's intolerable. Without
this evidence, a finding of constructive discharge cannot be
sustained.
Rather than presenting one event as the defining moment in his
employment at Meyer's, Tidwell points to a number of incidents and
circumstances spread over several years which he claims, taken
together, forms a complex tapestry of discrimination. See
Appellee's Br. at 12; see also Burns v. McGregor Elec. Indus.,
Inc., 955 F.2d 559, 564 (8th Cir. 1992) ("[T]he trier of fact must
keep in mind that each successive episode has its predecessors,
that the impact of the separate incidents may accumulate, and that
the work environment created may exceed the sum of the individual
episodes." (quotation & citation omitted)); Aman v. Cort Furniture
Rental Corp., 85 F.3d 1074, 1083 (3d Cir. 1996) ("discrimination
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analysis must concentrate not on individual incidents, but on the
overall scenario" (quotation & citation omitted)).
At trial, Tidwell offered evidence that Meyer's acted in a
racially discriminatory manner in making shift assignments. White
production supervisors were favored for positions on the first
shift of all the production lines. Meyer's usually assigned
Tidwell to the second shift. Tidwell wanted the first shift Lanham
wrap assignment because the workers on the first shift tended to be
more experienced and more motivated. His poor shift assignments,
Tidwell argues, had the secondary effect of impeding his salary
advancement, forcing him to do more hands-on work, and requiring
him to work at less desirable times. Supervisors' raises were
based on performance evaluations conducted annually, and first
shift supervisors were more likely to receive a high evaluation
because the workers under them were better. Despite these
disadvantages, in 1993 Tidwell was the sixth highest paid
production supervisor of the sixteen at the Hope bakery.
Tidwell also claimed that Meyer's failed to promote him to
assistant production superintendent because of his race. Bishop
allegedly had told Tidwell that he would not be made assistant
production superintendent because Meyer's did not want two African-
Americans at that management level. Tidwell testified that he
believed he was better qualified than Smithers, the white employee
who received the position instead. Tidwell had taken an American
Institute of Baking course that Smithers had not. Tidwell had also
been employed by the bakery longer. Smithers, however, had been
working as a production supervisor longer than Tidwell. II Trial
Tr. at 150. At the time Meyer's made the promotion decision,
Smithers had been serving as a temporary assistant production
superintendent.
In situations more egregious than this, where a better
qualified employee is repeatedly turned down for promotions in
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favor of inferior candidates, we can foresee that a negative and
degrading atmosphere sufficient to constitute constructive
discharge might exist. In this instance, however, where Tidwell
lost a single promotion opportunity to an arguably better qualified
candidate, the overwhelming compulsion to quit that is necessary
for constructive discharge is not created. As we recently stated
in West, 54 F.3d at 498, "frustration and embarrassment at not
being promoted do not make work conditions sufficiently intolerable
to constitute constructive discharge." See also Maney v. Brinkley
Mun. Waterworks & Sewer Dep't, 802 F.2d 1073, 1075-76 (8th Cir.
1986) (African-American plaintiffs who were passed over for a
promotion in favor of a less qualified white employee were victims
of discrimination, but were not constructively discharged).
According to Tidwell, the straw that broke the camel's back
was the announcement of the September 26, 1993 work schedule. This
schedule moved him to second shift Lanham wrap. Tidwell wanted,
and claimed he had been promised by Smithers, to be permanently
staffed as first shift Lanham wrap production supervisor.
Objectively, the newly-appointed Smithers promised Tidwell only
that Lanham "is yours"; there is no testimony that he ever
mentioned a particular shift. II Trial Tr. at 150. In addition,
Smithers' statement constitutes a mere hortatory statement which he
had no authority to ensure was fulfilled. Work schedules at
Meyer's were set by the assistant plant manager, not by assistant
production superintendents. IV Trial Tr. at 634.5
5
Herman Muldrow, an African-American who worked at Meyer's as
a production supervisor and was a co-plaintiff with Tidwell at
trial, testified that he overheard Mike Nelson say "I got my HNIC
in charge of it" while Nelson was speaking on the telephone to a
salesman. III Trial Tr. at 404. According to Muldrow, HNIC stood
for "Head Nigger in Charge." Id. at 404-05. Assuming that Muldrow
was correct in explaining what HNIC meant, then Nelson overstepped
the bounds of acceptable workplace behavior. Because there is no
evidence that Tidwell heard or knew of Nelson's comment, however,
this instance of insulting, racist language does not create an
intolerable workplace for Tidwell.
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Even assuming that Smithers had intended to promise Tidwell a
slot on first shift Lanham, the unforeseen work force reduction
combined with the beginning of Christmas rush forced Meyer's to
make significant adjustments in the work schedules. The bakery
eliminated four of the sixteen production supervisor positions, a
quarter of the employees at that level. As a consequence of this
schedule adjustment, Tidwell was required to work second shift
Lanham wrap. Dissatisfaction with a work assignment is, as a
matter of law, normally not so intolerable as to be a basis for
constructive discharge. See Carter v. Ball, 33 F.3d 450, 459 (4th
Cir. 1994) ("Dissatisfaction with work assignments, a feeling of
being unfairly criticized, or difficult or unpleasant working
conditions are not so intolerable as to compel a reasonable person
to resign.").
Other surrounding circumstances further mitigated the impact
of Tidwell's assignment to the second shift. Throughout his career
at the bakery, Tidwell had been moved from shift to shift depending
on the particular production stresses of the moment. Prior to
1991, when Smithers promised Tidwell he could stay with the Lanham
line, Tidwell spent most of his time on second shift Lanham or
second shift muffins, moving to first shift only during the
Christmas rush season. The schedule posted on September 25, 1993,
was a temporary schedule, establishing shift staffing for the next
week. II Trial Tr. at 310, 312. At the most, this schedule would
have lasted about three months, until the end of the Christmas
rush. In addition, there was nothing objectively undesirable about
Tidwell's new work hours. On four of his six workdays, his shift
started at 11 a.m. and ended at 7 p.m.
The schedule change did not mean a reduction in pay,
responsibility, benefits, or job title for Tidwell. Nelson, who is
in charge of scheduling, testified that the September 26, 1993
schedule change occurred because the production rate for the Lanham
line was too low for rush period. IV Trial Tr. at 619. To achieve
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this goal, Meyer's sought to form supervisor pairs that matched
experienced supervisors with relatively inexperienced ones.
Tidwell was moved to the second shift to be the senior supervisor.
Nor was Tidwell's assignment to the second shift a harbinger
of imminent dismissal or even a sign that he would not be
considered for future promotions. Mike Bishop, an African-American
assistant production superintendent, had been promoted from
production supervisor while he was working primarily on the second
and third shifts. IV Trial Tr. at 712. In fact, Tidwell had every
reason to believe that Meyer's had confidence in his abilities as
a supervisor. The September 26, 1993 schedule came a few months
after Tidwell's annual evaluation. In June 1993, Tidwell received
a performance rating of 3.6, the highest he had ever received, and
the seventh highest rating of the sixteen production supervisors.
A performance rating of 3.6 translates into a pay increase of 3.6%.
Furthermore, upon seeing the new schedule, Tidwell did not
give Meyer's an opportunity to explain the situation or remedy it.
Once he confirmed that the schedule posted on September 25 had been
printed correctly and would be implemented the next day, he quit.
"Society and the policies underlying Title VII will be best served
if, wherever possible, unlawful discrimination is attacked within
the context of existing employment relationships." West, 54 F.3d
at 498 (quoting Bourque v. Powell Elec. Mfg. Co., 617 F.2d 61, 66
(5th Cir. 1980)). Tidwell's decision to forego any effort at
communicating his grievance to Meyer's reinforces the fact that he
acted unreasonably when he quit.
What is missing from this catalogue of evidence is any
indication that Tidwell faced objectively intolerable working
conditions. While the conditions under which Tidwell worked may
have been unpleasant and tinged with discriminatory acts, they do
not create an intolerable atmosphere that would allow Tidwell's
quitting to be considered a constructive discharge.
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III.
For the reasons stated above, we reverse the district court,
remand to the district court, and direct that it grant judgment as
a matter of law in favor of Meyer's Bakeries. Because Tidwell has
failed to establish, as a matter of law, that he was the victim of
discriminatory company action that compelled him to quit, we need
not decide his cross-appeals on damages and attorney's fees other
than to say, as we now do, that on remand the awards for front pay
and damages are to be vacated and judgment on such claims entered
in favor of Meyer's Bakeries.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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