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Saltzman v. Fullerton Metals Co.

decided: October 6, 1981.


Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 78 C 3440 -- J. Sam Perr, Judge.

Before Sprecher and Cudahy, Circuit Judges, and East, Senior District Judge.*fn*

Author: Cudahy

Plaintiff Freyda Saltzman is appealing from an adverse judgment in her suit charging sexual discrimination in employment. Plaintiff's complaint is framed in three counts. Count I alleges that defendant Fullerton Metals Co. ("Fullerton") violated the Equal Pay Act of 1963, 29 U.S.C. § 206(d) (1976), by paying plaintiff less than a similarly situated male employee, James Carlin. Count II alleges a violation of the Illinois Fair Employment Practices Act based upon Fullerton's alleged discharge of plaintiff. Ill.Rev.Stat. ch. 48, § 851 et seq. Count III alleges a claim under Article I, Section 17 of the Illinois Constitution of 1970 on some unspecified theory.

Count II was tried to the court without a jury. The district court found that plaintiff had not been involuntarily terminated and thus entered judgment for the defendant. In the words of the district court, plaintiff voluntarily left Fullerton "by mutual agreement" and "was not fired or discharged." Therefore, the district court did not reach the question whether the discharge was itself lawful.

Counts I and III were tried to a jury. The jury found for the defendant on both counts and the district court entered judgment for Fullerton accordingly. Plaintiff now appeals from the adverse judgments with respect to Counts I and II.*fn1 We affirm the district court's judgment with respect to Count I but reverse and remand the judgment entered on Count II.

I. Background

Fullerton hired plaintiff in 1972 as a clerical worker in its Credit Department. By 1976, plaintiff spent half of her time in collection. The remainder of her time was spent on credit extension and various other duties. When making credit decisions, plaintiff used past payment history and reports of credit services to guide her. Plaintiff did not have the ability to analyze financial statements and did not handle accounts with complex financing.

Because of increased work in the Credit Department, Fullerton officials approached plaintiff regarding the possibility of adding another employee to the credit department. Plaintiff felt threatened by the development and, in June of 1976, threatened to quit. Fullerton gave plaintiff a bonus, a raise and a new job title (although no new responsibilities) in order to placate her.

In July of 1976, Fullerton decided to transfer James Carlin to plaintiff's department as "Assistant to the Corporate Credit Manager." Plaintiff protested that the title indicated that Carlin would be more important than she was. Once again, Fullerton acceded to plaintiff's wishes and changed Carlin's title.

Carlin arrived in plaintiff's department in September of 1976. Plaintiff was "uncomfortable" and "felt threatened." Two weeks later, plaintiff allegedly overheard a conversation mentioning Carlin's name and a salary of $16,500. At that time, plaintiff was making $13,500 a year.

Plaintiff demanded a meeting with her superiors and presented them with the salary disparity. No one denied that the disparity existed but another meeting was scheduled to include a vice-president of Fullerton who was out of town at the time of the first meeting. At this second meeting on September 26, 1978, plaintiff was either fired or quit, depending upon how one interprets the facts. Plaintiff then filed this suit challenging her alleged discharge as well as the salary disparity.

II. Count II: Did Plaintiff Leave Fullerton Voluntarily or Was She Discharged?

The district court found that plaintiff left Fullerton's employ voluntarily. This finding may not be set aside on appeal "unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Fed.R.Civ.P. 52(a). "A finding is "clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 542, 92 L. Ed. 746 (1948).

In the instant case, the evidence centered on the meeting on September 26, 1978, at which plaintiff complained of the disparity in her salary vis-a-vis her male counterpart, James Carlin. Kenneth Riskind, then executive vice president and treasurer of Fullerton, Walter Krauss, Credit Manager and plaintiff's immediate superior, and Larry Isaac, Fullerton's Controller, were also present at the meeting. These four people testified to substantially the same discussion. In the critical phases of the conversation, Riskind explained that the salary disparity was the product of differing responsibilities. Plaintiff indicated that she was still unhappy with the differential. Riskind then said "Well, maybe perhaps you ought to look for work elsewhere." Plaintiff replied, "Are you telling me to leave?" Riskind responded that plaintiff was "pushing us" and that, "Well, what choice do we have?" "Maybe you'd better leave." Tr. 291-93; 428; 478-80. At that point, plaintiff broke Krauss' zebra plant, placed a portion of it on his desk and left the ...

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