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McCluney v. Jos. Schlitz Brewing Co.

decided: February 27, 1984.

FORREST F. MCCLUNEY, PLAINTIFF-APPELLANT, CROSS-APPELLEE,
v.
JOS. SCHLITZ BREWING CO., DEFENDANT-APPELLEE, CROSS-APPELLANT



Appeal from the United States District Court for the Eastern District of Wisconsin. No. 79 C 647 -- Myron L. Gordon, Judge.

Posner and Flaum, Circuit Judges, and Grant, Senior District Judge.*fn*

Author: Grant

GRANT, Senior District Judge.

Plaintiff-Appellant, Forrest F. McCluney, sued Defendant-Appellee, Jos. Schlitz Brewing Co., alleging retaliatory discharge in violation of 42 U.S.C. § 2000e-3(a) (1976). McCluney claimed that he was terminated from his employment because he expressed opposition to Schlitz' allegedly discriminatory employment practices. In an unpublished decision and order, the United States District Court for the Eastern District of Wisconsin held that McCluney had failed to show that it was his position regarding discriminatory practices which brought about his discharge. The district court found that McCluney was dismissed because of his inability to accept a company decision. On appeal, McCluney raises five issues:

I. Whether the district court erred in holding that McCluney failed to make a prima facie case for retaliatory discharge;

II. Whether the district court placed the proper burden of proof upon McCluney;

III. Whether the district court improperly found that McCluney failed to make a convincing showing that his position regarding the discriminatory nature of the transfer decision caused his discharge;

IV. Whether the district court erroneously dismissed McCluney's claim for wrongful discharge; and

V. Whether the district court erred in excluding evidence regarding McCluney's complaints about other practices of Schlitz and in excluding the initial determination of the Wisconsin Department of Industry, Labor and Human Relations?

Schlitz cross-appeals claiming that McCluney's action is barred by res judicata. For the reasons stated below, this Court affirms the decision of the district court.

Facts

In May 1975, Schlitz promoted McCluney from his position of plant manager at their Winston-Salem, North Carolina brewery to that of vice president of operations at Schlitz' corporate headquarters in Milwaukee, Wisconsin. McCluney moved to Milwaukee immediately and upon his arrival there, began requesting that his secretary at the Winston-Salem brewery, Rinne, be transferred to Milwaukee. Schlitz denied McCluney's request because it had provided McCluney with a competent secretary in Milwaukee and had a company policy against transferring secretaries between locations.

McCluney, not easily dissuaded, continued his pursuit of the transfer of his former secretary through the summer of 1975. On August 22, the executive vice president and general manager of Schlitz met with McCluney and told him that the decision not to transfer the former secretary was final. McCluney threatened to quit unless Schlitz complied with his request for the transfer. Schlitz, undaunted by McCluney's brinkmanship, discharged McCluney on August 25.

McCluney initiated several actions against Schlitz and, in the instant action, claims that Schlitz dismissed him in retaliation for his opposition to a sexually discriminatory company transfer policy in violation of 42 U.S.C. § 2000e-3(a) (1976). Schlitz contends that it discharged McCluney because of his threat to resign, his unwillingness to accept a top-level decision regarding the transfer of Rinne, his obstinance in pursuing the matter after ...


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