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Berg v. La Crosse Cooler Co.

decided: January 8, 1980.

LAUREL B. BERG, ON HER BEHALF AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF-APPELLANT,
v.
LA CROSSE COOLER COMPANY, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Western District of Wisconsin. No. 76 C 634 - James E. Doyle, Judge.

Before Fairchild, Chief Judge, Castle, Senior Circuit Judge, and Sprecher, Circuit Judge.

Author: Sprecher

The issue presented by this appeal is whether the opposition by an employee to what he or she reasonably believes to be an unlawful employment practice is protected against retaliatory discharge by the employer under § 704(a) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a). The district court held that it was not protected and entered a summary judgment in favor of the employer-defendant. We reverse.

I

The plaintiff, a 27 year old female with a Bachelor of Arts degree from the University of Wisconsin, was employed as a personnel clerk by the defendant with the duty, among others, of answering questions from fellow employees concerning their rights under the defendant's temporary disability insurance program, which covered all employees for accidents or illnesses making it impossible for them to work, but not for the effects of pregnancy or maternity making it impossible to work.

In February, 1976, plaintiff was requested by a fellow employee, Mrs. Oliver, to explain what insurance benefits might be available to her in connection with her pregnancy and maternity. The plaintiff explained that the defendant's temporary benefit program excluded absences due to pregnancy and maternity; she furnished Mrs. Oliver with a booklet describing available benefits; and she directed Mrs. Oliver to discuss any further questions with the plaintiff's supervisor, Wolfgang Heinrich Fechtel, who served as the defendant's director of personnel.

In early March, 1976, Mrs. Oliver returned to the plaintiff and told her that Fechtel had advised her that she would not receive pregnancy benefits and that the defendant was not required by law to furnish such benefits. Shortly prior to this second conference with Mrs. Oliver, plaintiff had attended a course of instruction at a college in La Crosse, Wisconsin, in which she had been informed by lawyer-instructors that in the case of Ray-O-Vac v. Wisconsin Department of Industry, Labor and Human Relations, 70 Wis.2d 919, 236 N.W.2d 209 (1975), the Supreme Court of Wisconsin had determined that under the Wisconsin Fair Employment Law, an employer offering a program of disability benefits to its employees could not lawfully exclude compensation for inability to work by reason of pregnancy. The plaintiff informed Mrs. Oliver of plaintiff's understanding of the law of Wisconsin in this respect and furnished Mrs. Oliver with a copy of the Ray-O-Vac opinion. Plaintiff again advised Mrs. Oliver to discuss the matter with Fechtel, which Mrs. Oliver proceeded to do.

In the Oliver-Fechtel conversation, Fechtel said that the defendant would provide disability benefits to her if she could establish that her pregnancy was accidental. It was Fechtel's personal belief that pregnancy and maternity should not provide a basis for disability compensation and that the defendant was not required by law to provide such benefits, based upon statements in periodicals which he had read from time to time in the course of his duties and statements made to him by representatives of defendant's insurer. Fechtel was aware of the Ray-O-Vac case but believed that the decision was not final.

Up to this time, the plaintiff's work performance prompted no criticism or reprimand from her supervisor or from any representative of the defendant.

On March 25, 1976, the plaintiff received a telephone call from Mrs. Oliver in which plaintiff was informed that Fechtel had repeated the defendant's intention to deny her pregnancy benefits.

On March 26, Fechtel approached the plaintiff at her desk and the following conversation occurred: Fechtel asked plaintiff whether plaintiff knew what Mrs. Oliver was trying to do to him and said that Mrs. Oliver was trying to require him to pay her disability compensation benefits when she became unable to work by reason of her pregnancy. He said that Mrs. Oliver had expressed the opinion that the exemption of pregnancy related absences from work represented sex discrimination. Plaintiff told Fechtel that she agreed with Mrs. Oliver that this practice was sex discrimination. Fechtel stated that the law did not require the employer to provide such disability benefits. Plaintiff stated that Wisconsin law required such coverage, but Fechtel said that this point had not been decided finally. Fechtel asked why the company should pay Mrs. Oliver temporary disability benefits for 10 minutes of her fun. Plaintiff counteracted his remark. Fechtel told the plaintiff that she could not support Mrs. Oliver in pressing her claim. Plaintiff stated that she supported Mrs. Oliver's right to benefits and that she was on Mrs. Oliver's side of the issue. Fechtel said that plaintiff could not give Mrs. Oliver support on company time, and plaintiff agreed that she would not do so on company time. Fechtel then told the plaintiff that she was discharged.

The parties stipulated that plaintiff was discharged by the defendant because of what she said to Fechtel in the course of the March 26 conversation, and for no other reason, and stipulated that the plaintiff betrayed no confidences of management at any time. The district court also found that the plaintiff's "opposition was peaceable and mild in form and manner."

Although on April 9, 1976, the district court said it believed "that the plaintiff has shown that she enjoys a reasonably good chance to prevail in her contention that the employment practice of the defendant, in excluding pregnancy and maternity benefits, is made unlawful by Title VII," after the Supreme Court decision in General Electric Co. v. Gilbert, 429 U.S. 125, 97 S. Ct. 401, 50 L. Ed. 2d 343 (1976), the district court granted the defendant's motion for summary judgment.

II

Section 2000e-3(a) provides in part ...


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