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January 30, 1985


The opinion of the court was delivered by: ROY

 1. The Plaintiff, Linda Parker was employed by the Defendant Siemens-Allis on April 6, 1970, and continued her employment with the Defendant until her termination on September 2, 1980. The present lawsuit was brought as a result of the termination. *fn1" Plaintiff alleges she was terminated on the basis of her sex.

 2. Defendant's Little Rock plant manufactures small motors. It is divided into the following departments: Electrical Assembly, Machine Shop and Final Assembly. The first line supervisors in these areas are foremen who at the time of Parker's employment reported to superintendents. The superintendents reported to the production manager.

 3. Plaintiff made application at Siemens-Allis in February of 1970. Although she was not offered a job at that time, she was offered a slot to participate in the company training program with no pay for her participation and no guarantee of a job.

 4. Upon opening its new facility in Little Rock, Defendant hired Plaintiff on April 6, 1970.

 5. Defendant contends that Plaintiff misrepresented her employment history on her application. Specifically, Plaintiff failed to acknowledge her prior employment with Timex. Plaintiff was employed twice at Timex but failed to note such on her application. Apparently, Plaintiff had been counseled for excessive absenteeism during her first employment at Timex, and was terminated from her second employment at Timex because she walked off the job. The Court took the above information into consideration when assessing credibility, and, considering the evidence as a whole, placed little weight on the deletion.

 7. From the time of Plaintiff's hire to the present, the majority of the machine shop and stator assembly employees have been male, while the majority of the electrical department employees have been typically female. This is evidence of a pattern and practice of discrimination in job assignment and steering.

 8. Further steering and job assignment was evidenced by the Plaintiff's unrebutted testimony that there are certain jobs in even the electrical department which are held by males, the dip and bake, set up, leadman and foreman positions. No evidence was presented indicating that females were not capable of performing those jobs.

 9. Ten years after Plaintiff's hire, the machine shop was 95 percent male and assembly was 80 percent male, while the electrical department was 85 percent female.

 10. Plaintiff remained in the position of stator winder for four to six months and was promoted to stator testor, a position which she held for two years before being promoted to foreman. Next, Plaintiff was promoted to foreman in the electrical department on March 16, 1974, and held that position until 1980 when she was terminated.

 11. Plaintiff stated that she cross-trained in the machine shop. Plaintiff contends that she was discriminated against because of her sex since Carl Garmon was promoted to foreman in 1972. Although Plaintiff failed to list this alleged discrimination on her EEOC charge, the promotion claim is like or related to the substance of the Plaintiff's charge.

 12. Carl Garmon, a male whose initial hire date is April 13, 1970 (seven days after that of the Plaintiff) and who had never worked in the electrical department, was promoted to foreman in her department in 1972. It took Plaintiff twice as long to reach the position of foreman as the time required for Garmon. Defendant contends that Garmon was asked to take a foreman's position over both Final Assembly and the Electrical Assembly Department on the second shift - 3:30 p.m. - 11:00 p.m., and that Plaintiff was not interested in a second shift position because she wanted to work the same hours as her husband. Although Plaintiff testified she wanted to work the same day hours as her husband, no evidence was presented showing that Defendant asked Plaintiff if she would be willing to work a shift other than the day shift. In fact, Plaintiff testified she would have accepted Garmon's position if it had been offered to her.

 13. Both the testimony and the exhibits introduced by Plaintiff indicate that six of the nine male foremen were promoted to foreman at a rate faster than Plaintiff.

 14. The Court finds it significant that there had never been a female foreman in the plant's history before the promotion of the Plaintiff. Further, there have been no female foremen since her termination.

 15. The Affirmative Action Plan and Defendant's Answers to Interrogatories show the work force is 30-40 percent female.

 16. Promotions to first line supervisor are made from within the work force.

 17. Plaintiff complained to Fred Quick, her immediate supervisor, that Garmon had less seniority and no prior experience in the electrical department, but no action was taken with respect to her complaint.

 18. Defendant contends that while Plaintiff was a collective bargaining unit employee, jobs were posted and any employee could bid on any opening. Defendant contends that under the collective bargaining agreement procedure, if a bargaining unit employee feels he or she has been discriminated against, they could file a grievance, and there is no evidence that Plaintiff filed a grievance. Defendant further contends that during Parker's tenure as foreman, she never sought a transfer to the machine shop. However, Betty Stoner, a female presently employed by the Defendant, testified that she has never sought a position outside the electrical department because she believes Defendant's managerial staff and personnel in the predominately male departments do not want women in those departments. She also testified that when she was hired by Defendant she was interviewed for positions in the electrical department only. She was not informed of any positions available in any other department. Jean Smith, who presently works for Defendant, testified that she made an effort to bid on a promotion in the machine shop. However, Carl Garmon, her male supervisor at the time, took her to the machine shop and showed her the heaviest machine in the department and told her she would have to lift it to do the job. He failed to tell her, which she later learned, that a hoist was used to lift that object. Kitty Wood, presently an employee of Defendant, testified that another employee, Katherine Pfeiffer, was going to bid on a job and Fred Quick asked her not to pursue the position. Wood testified that Quick had considered Wood for promotion to foreman in 1972 but rejected her because he did not think she was interested in the position and promoted Carl Garmon, even though Garmon had never worked in the electrical department before. Wood, like Plaintiff, was not offered the position although she had been in the department during her entire employment with the Defendant. The Court finds it significant that Quick never asked either Plaintiff or Wood if they were interested in the position but merely assumed they were not. The Court finds that males in the Defendant's plant are promoted to foremen while females are denied promotions to foreman even though they are as qualified as males to be promoted.

 Based upon the evidence presented, it appears to the Court that women were discouraged from applying for positions outside the electrical department. Therefore, Plaintiff's failure to seek a transfer does not weigh heavily, if at all, in Defendant's favor.

 19. The promotion process at Siemens to foreman has no written job criteria, no application and no test. The process is totally subjective and was therefore open to sex discrimination. The process is tainted further by the fact that all persons making decisions for promotion to foreman are and have been white males.

 20. Plaintiff testified that there are still no written job criteria for positions which are not protected by the collective bargaining agreement.

 21. Qualification for all employment positions by Defendant's plant is obtained by on-the-job training. The Defendant's policy to assign work in a discriminatory manner impacted the Plaintiff's and other women employees' ability to obtain the broad experience on jobs provided to male employees. Besides the experience gained by the actual job performance, Plaintiff attended training programs relating to her particular position both before and after her promotion to foreman in 1974.

 22. Plaintiff Parker had no unusual problems as foreman and received no written negative performance evaluations. Written negative evaluations were received by male employees who were retained at the time of Plaintiff's termination.

 23. Plaintiff's problems as foreman began when Louis Prather became production manager in 1979. Prather supervised Jim Prince, the general foreman, who in turn supervised the foremen. Although it appears that many employees did not get along well with Prather, the testimony also indicates that Prather was unusually hard on the Plaintiff. Prather began immediately to harass and continually harassed the Plaintiff in front of her subordinates, question her ability as a foreman, and ask her how she became a foreman in the first place. One time Prather called Plaintiff to his office and reminded her there weren't any other women making what Plaintiff was making. These harassments were not isolated incidents, but occurred in a manner of pattern and practice. Betty Stoner, a white female presently employed by the Defendant, observed Louis Prather harass Plaintiff Parker and other female employees, but never observed him harass or reprimand any male foremen in front of their subordinates. Jean Smith, who presently works in the electrical department at Defendant's plant, also observed Prather's harassment of Plaintiff. Kitty Wood observed Louis Prather tell Plaintiff, about a week after he came to work there, to either "shape up or ship out". Plaintiff's performance as supervisor had never been questioned before. Wood stated that Prather did not act like women could do what men could. Plaintiff also stated that Prather asked her to cut back from two operators in stator repair to one, which was impossible. He told her if she couldn't, he'd find someone who could. There are still two operators there presently.

 24. Plaintiff contends that another example of Prather's harassment is referred to often in the testimony as the "Kalamazoo, Michigan" incident. Plaintiff contends that she was required to go by herself, while other foremen went with one or two others. The evidence is conflicting as to whether other foremen were required to travel alone. Carl Garmon testified that when he went out of town, he went with an engineer and safety man. However, he also testified that there were occasions when foremen traveled by themselves, and Jim Prince testified that Bobby Moody went to Maine by himself. The Court finds the evidence less than compelling that Plaintiff was treated discriminatorily with respect to the trip.

 25. Billy Payton, a current male employee of the Defendant, worked in the electrical department when Plaintiff was his foreman. He occupied the positions of set-up leadman and the dip and bake position. These positions are the two positions in the electrical department no woman has ever held. Payton further testified that women are capable of doing the work. Payton transferred out of the electrical department to the machine shop for more money because employees in the machine shop are paid more. He had no trouble transferring. He stated that when you move to a different department you receive about two weeks training in that job. He observed that Prather treated women differently than men; he acted as though he was "higher" than they. He observed Prather treat Plaintiff differently than any other supervisor and that Prather embarrassed Plaintiff in front of other employees.

 26. The record was replete with evidence that the Defendant's agent, Louis Prather, discriminated against the Plaintiff in terms and conditions of employment on the basis of her sex.

 27. The Court believes the Plaintiff and the corroborating testimony and finds that Prather's actions were intentional acts of harassment because of Plaintiff's sex. The Court finds further that Prather was Defendant's agent and that Defendant knew or should have known about his acts of sex discrimination against Plaintiff, and not only did Defendant condone Prather's behavior, but added to it by discriminatorily terminating Plaintiff. Payton denied Defendant's stated reason for Plaintiff's termination that there was a general reduction in force.

 28. On the day following Labor Day, September 2, 1980, Plaintiff was told by Louis Prather that he had to lay off two supervisors and she was one of them. He offered her the opportunity of going back into the bargaining unit into the same position (an entry level position, Grade 1) which she had been offered ten and one-half years earlier. Prather stated "Linda, I don't have to offer you anything". *fn2" Plaintiff attempted to talk with Mike Goodwin, the EEOC supervisor at the time. Goodwin told Plaintiff that Prather had to eliminate two foremen and that he had to go along with Prather.

 30. Larry Croy, a male foreman in the machine shop, was laid off at the same time. The evidence is conflicting as to what position Croy was offered. Plaintiff testified he was offered the position of bullard operator. Defendant's witnesses testified he was offered the position of drill press operator. Irrespective of the title given to the position offered, there is ample evidence to support the fact that the position offered Larry Croy provided for a higher salary than that offered Plaintiff.

 31. There was no written procedure for terminating salaried personnel, and they were not protected by the collective bargaining agreement. The decision to terminate Plaintiff was made on the day before she was notified. Only Prince and Prather met in Prather's office and reviewed a list of all foremen showing their date of hire. They had the personnel file there and considered length of service as foremen and work history. The Court finds that Prince's testimony corroborates Prather's that length of time as foreman had been Defendant's primary consideration.

 32. Jim Prince testified that they had too many foremen in the machine shop and could have decided to eliminate two out of that department. He testified that although two machine shop positions were eliminated at the time of Plaintiff's termination, Plaintiff, a foreman in the electrical department, was selected for layoff.

 33. He stated they did not consider sex or race of the people involved. The Court does not find Prince's testimony on this issue credible.

 34. Prince testified that economic conditions dictated that they retain the most versatile person, but on cross examination he could not explain how Henry Raynor or anyone else who had been retained in the machine shop and had less seniority as supervisor were more versatile than Plaintiff.

 35. He admitted that Henry Raynor, foreman in the machine shop, had considerably less seniority as foreman than Plaintiff; had an unsatisfactory performance review in his personnel file and took longer to get promoted to foreman than Plaintiff yet Raynor was retained while Plaintiff was terminated.

 36. Prather testified that the criteria for terminating foremen was seniority, qualifications and the ability to perform. Prather further testified that Plaintiff, Linda Parker, had no more problems than any of the other foremen, although she was the only woman foreman in the plant. The performance evaluations were not considered when the decision to terminate her was made. He never saw any written rules regarding layoff of salaried employees. He also testified that Plaintiff's sex was not considered.

 37. Defendants, at one point in the discovery process, argued that the decision to layoff the Plaintiff was making a choice between Carl Garmon and the Plaintiff. Prather testified that all ten ...

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