8. Did the defendant attempt to hire female laborers?
The court does not believe the testimony of Mr. Nealey and Mr. Oxford that they were willing to hire female laborers. Their testimony that they repeatedly sought out female laborers was unconvincing, and there was no question that they failed to hire a single woman as a laborer during their tenure with the defendant. Further, by Mr. Nealey's own admission, they did not even consider the plaintiff as a candidate for a laborer position when they terminated her position as escort.
Of course, had this court believed that Mr. Oxford fired the plaintiff because of her work deficiencies, then the fact that he did not hire her as a laborer would not have been significant. The court, however, did not believe that such deficiencies formed the basis for Mr. Oxford's decision, and found it particularly telling that Mr. Oxford decided to fire the plaintiff without even consulting the two immediate supervisors for whom she did most of her work, Mr. Rush and Mr. Kelly. Indeed, neither Mr. Nealey nor Mr. Oxford could get their stories straight as to why they fired the plaintiff: At times they testified that the decision arose out of her work habits; at other times they insisted that the decision resulted from a reduction in the need for escorts. This court believed the latter -- a belief supported by the fact that they did not subsequently hire another full-time escort -- and concluded that the reason they did not retain her as a laborer (where she could also have filled in as a needed part-time escort) was because they had no interest in having women work as non-escort laborers on their job sites.
(The court thought it had made a sufficient finding that the defendant did not hire female laborers because it did not want women serving as laborers. See Findings at 6. The court acknowledges that its statement that it could not believe that no women were available for a $ 35,000 a year job was not supported by the record.)
The Court of Appeals spent an entire subsection of its opinion discussing what it perceived as an inconsistency between, on the one hand, this court's finding that the number of escorts the defendant needed fell from four to three in December and, on the other, the court's finding that the overall workload increased throughout the winter following the plaintiff's firing. Yet, as the Court of Appeals acknowledged (after gratuitously questioning whether this court bothered to do the necessary calculations), the workload of laborers did increase throughout the winter. At the same time, there is no dispute as an empirical matter that the defendant did not hire another full-time escort. Further, the defendant's witnesses repeatedly testified that even when the workload was increasing, the need for specific types of workers -- including escorts -- could be decreasing.
This court found (and still finds) no inconsistency in its findings that the defendant's need for escorts fell while its overall need for laborers grew.
Absence of Appropriate Legal Framework
The Seventh Circuit's final criticism of this court's ruling concerned this court's failure to set forth with particularity how its factual findings fit within the analytical framework for indirect proof of discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). This court did not do so for two reasons. First, the court felt that the direct and circumstantial evidence of discrimination -- e.g., Mr. Oxford's demeaning references to the plaintiff as a "broad" who would be fired if she did not keep herself in line -- made indirect analysis unnecessary. See Oxman v. WLS-TV, 846 F.2d 448, 452 (7th Cir. 1988). Second, the court did not believe it necessary to spell out the burden-shifting analysis so long as it set forth all of the factual elements and reached the ultimate conclusion that sex played a critical role in the discharge. Because the Court of Appeals apparently disagrees, however, this court here elaborates on its legal conclusions.
In ordinary discharge cases, a plaintiff establishes a prima facie case of discrimination by proving (1) that she is a member of a protected class, (2) that she was satisfactorily performing the duties of her position, (3) that she was discharged, and (4) that her employer sought a replacement for her. Further, in reduction-in-force cases, the plaintiff can satisfy the fourth element by establishing that others not in the protected class were treated more favorably. This case, however, involved a hybrid situation. It was not an ordinary discharge case because this court found that the defendant fired the plaintiff in order to reduce the number of escorts. Nor was it a typical reduction-in-force case since the court found no (credible) evidence that the defendant has been laying off workers overall at the time of the plaintiff's discharge.
That the plaintiff could not fit her proof neatly within the traditional framework made her case more difficult, but, in this court's view, did not preclude her from prevailing. The Supreme Court has instructed that, although the "prima facie case method . . . is . . . a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination," it is not "intended to be rigid, mechanized, or ritualistic." Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 57 L. Ed. 2d 957, 98 S. Ct. 2943 (1978); accord United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715, 75 L. Ed. 2d 403, 103 S. Ct. 1478 (1983). This court thus analyzed the situation as follows.
The plaintiff is a woman. She was satisfactorily performing her duties. The defendant had other work available for which she was qualified. Yet, she was discharged. Why? The defendant provided five reasons: failure to respond to radio calls; leaving the premises without permission; late arrivals and early departures; poor job performance; and personality conflicts with the other escorts. For all of the reasons discussed above, this court did not believe that the first four factors played a role in Mr. Oxford's decision to fire her, but did agree that her personality conflicts with the other escorts led Mr. Oxford to choose her among the four as the one to remove when the need for escorts dropped, as the defendant's witnesses testified that it did, in early December.
This justification, however, did not tell the whole story. Although the defendant no longer needed four full-time escorts, it did have work for more than three, and had a continuing need for skilled and unskilled non-escort laborers (as evidenced by Mr. Rush's ongoing battle with Mr. Oxford to use the plaintiff in non-escort capacities). Mr. Nealey testified that, had he known the plaintiff could perform this labor, he would have retained her, but that he did not know. Tr. 529. Yet, Mr. Oxford surely did know that the plaintiff could do, and in the past had done, unskilled labor (see Tr. 627) but he did not even consider her for this work. Why not?
Well, had Mr. Oxford's reason for removing the plaintiff from her position as an escort been her poor performance or work habits, then he obviously would not have wanted her merely to switch jobs. That, however, was not his reason for removing her from this position; instead, he removed her because she did not get along with the other escorts. This justification explains why he terminated her position as full-time escort, but does not explain why he refused to return her to what she was doing before Mr. Nealey and Mr. Oxford arrived -- that is, a combination of general labor and escort work. Mr. Rush found the plaintiff's work outstanding, continuously sought her for non-escort services, and urged Mr. Oxford to allow her to remain with the company, but Mr. Oxford refused. Based on Mr. Oxford's attitude toward women at the job site, his failure ever to hire a female laborer, and his non-credible testimony, this court determined that the plaintiff's sex served as the primary factor in his decision not to retain the plaintiff as a laborer.
This court originally ruled, and still believes, that such conduct violated the plaintiff's rights under Title VII.
In its original ruling, this court attempted to set forth all of the factual findings necessary to explain its ruling: that the plaintiff is a woman; that she was satisfactorily performing her duties as an escort and, when instructed to do so, as a general laborer; that she was discharged from her position as an escort because of her personality conflicts with the other escorts; that these personality conflicts were insufficient to justify her discharge because she could have been retained as a general laborer; that she would have been retained as a laborer/part-time escort had she been a man; and that she was not so retained. Rather than accepting these factual findings, and exploring the record to determine whether or not they had sufficient evidentiary support, the Court of Appeals chose to reprimand this court for not providing book and verse to explain them. In the course of doing so, the Court of Appeals ignored many of this court's factual findings, misread others so as to find inconsistencies that did not exist, gratuitously questioned this court's examination of the record, and criticized the court for omitting factual findings that were immaterial to this court's legal conclusion. (For example, how could what Mr. Oxford told Mr. Rush about the new rules have impacted one iota on Mr. Oxford's view of whether the plaintiff was performing her duties as she understood them?)
With the benefit of the trial transcripts prepared for the Court of Appeals, this court has here provided a more comprehensive and complete explanation of the factual and legal issues bearing on the original ruling. This luxury, however, is unusual. The Court of Appeals repeatedly has urged district courts to rule as quickly as possible on bench trials, either immediately upon the conclusion of closing arguments or shortly thereafter, and this court has made an effort to abide that request. The unique fact pattern of this case made it a difficult one to call, particularly without the ability to review in detail all of the testimony. If this court's original ruling lacked specificity in certain particulars, and the Court of Appeals needed further explication to ensure a proper review, this court gladly would have elaborated on its original ruling. Why the Court chose to exaggerate the ruling's deficiencies, and to suggest that this court haphazardly rendered its judgment, this court cannot say. In any event, because this court defers to the order of the superior court, it has endeavored to provide a detailed -- if at times redundant -- exposition of the aspects of the original ruling which the Court of Appeals could not understand.
Responsive to the Seventh Circuit's July 20, 1989 order, this court hereby enters its additional findings of fact and conclusions of law, and re-enters judgment for the plaintiff.