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MARCING v. FLUOR DANIEL

June 16, 1993

KAREN MARCING, Plaintiff,
v.
FLUOR DANIEL, INC., a California corporation, Defendant.



The opinion of the court was delivered by: MILTON I. SHADUR

 This action by Karen Marcing ("Marcing") against her ex-employer Fluor Daniel, Inc. ("Fluor") embraces three claims: one charging sex discrimination in violation of Title VII, another charging age discrimination in violation of the Age Discrimination in Employment Act ("ADEA") and the third charging a violation of the Equal Pay Act. *fn1" Because Fluor's conduct that forms the gravamen of Marcing's claims antedated December 1, 1991, but the trial of this action was held this spring, the case possess (among a number of issues) the question whether and to what extent the Civil Rights Act of 1991 (the "1991 Act") might apply here.

 This Court (like most of not all of its colleagues) had viewed our Court of Appeals' decision in Luddington v. Indiana Bell Tel. Co., 966 F.2d 225, 227-30 (7th Cir. 1992) as having sent a strong signal negating any potential application of the 1991 Act to Marcing's case. But two developments--our Court of Appeals' acceptance of Mojica v. Gannett Co., No. 91-3921 for en banc hearing and the Supreme Court's granting of certiorari in Landgraf v. USI Film Prod., 122 L. Ed. 2d 649, 61 U.S.L.W. 3580, 113 S. Ct. 1250 (U.S. Feb. 22, 1993)--suggested to this Court that the most prudent procedure was to conduct the trial in a manner that would provide an answer on both liability and damages no matter how the legal issues turned out. In that way no new trial should be needed whichever way the law develops in Landgraf and Mojica. As chance would have it, our Court of Appeals (earlier this month, shortly after the trial of this action) has spoken of just such a possible procedure--see Townsend v. Indiana University, No. 92-2869, 995 F.2d 691, 1993 U.S. App. LEXIS 13257, at *7 (7th Cir. June 4, 1993).

 To accomplish that goal, this Court convened a jury and obtained a jury verdict on all issues, while at the same time having advised the litigants that it was conducting a simultaneous bench trial on Marcing's Title VII claim. What follows are this Court's findings of fact ("Findings") and conclusions of law ("Conclusions") as to that claim, entered independently by this Court in accordance with Fed. R. Civ. P. ("Rule") Rule 52(a) on the assumption that no aspect of the 1991 Act will ultimately apply to Marcing's Title VII claim. *fn2"

 To the extent (if any) that the Findings as stated may be deemed conclusions of law, they shall also be considered Conclusions. In the same way, to the extent (if any) that matters later expressed as Conclusions may be deemed findings of fact, they shall also be considered Findings. In both those respects, see Miller v. Fenton, 474 U.S. 104, 113-14, 88 L. Ed. 2d 405, 106 S. Ct. 445 (1985).

 Findings of Fact

 1. On December 4, 1961 Marcing (then age 19) was hired by Pioneer Service and Engineering Co. (Fluor's corporate predecessor *fn3" ) as a stenographer. Marcing's abilities first led to her becoming Executive Secretary to the then head of Fluor's Procurement Department, Edward Bradley ("Bradley"). Then with his encouragement she worked her way up through Fluor's Procurement Department, becoming an assistant buyer in tandem with her executive secretarial duties, and then a full-fledged buyer (most recently Fluor has changed the title of "buyer" to "Procurement Specialist," but these Findings will treat the terms as interchangeable). Finding 21 will expand on Marcing's background and experience in those activities.

 2. Marcing resigned her position with Fluor on March 13, 1990. At that time she was a Procurement Specialist III in the Procurement Department. Among her other claims, Marcing asserts that her resignation was really a constructive discharge. Later Findings will expand upon and uphold that claim.

 3. In the fall of 1989 Marcing was assigned the task of obtaining updated bids on seven packages included in a project known as "Salt City." *fn4" Because some aspects of that assignment were outside of Marcing's prior range of experience, she requested training and assistance from her superiors on the Salt City bid proposals--in particular on the establishment of more complex contract conditions than had been involved in her prior buying assignments. Although Marcing was not given that necessary training and assistance, she still completed the buying portions of those packages in a professional manner.

 4. In early December 1989, as the result of discussions among Fluor's Edward Touchette ("Touchette," the Project Procurement Manager on the Salt City Project), Fluor's new Manager of Procurement David Bellamy ("Bellamy") and Procurement Department Manager Richard Martin ("Martin"), it was decided to assign Marcing to the full-time buyer position on the Salt City project. On December 6, 1989 Bellamy told Marcing that he would be assigning 75 bid packages from Salt City to her.

 5. Initially Marcing declined that assignment because she was aware of the limitations on her experience and of the fact that she had not received the necessary assistance that she had requested on the phase of the project referred to in Finding 3. That initial negative response stemmed from Marcing's perception that her nonacceptance of the assignment would best serve the interests of both Fluor and its Salt City client. Fluor's immediate reaction was a decision among the three individuals referred to in Finding 4 to assign the Salt City project to a much younger and less experienced Procurement Specialist III, Suzanne Markham ("Markham"), who until then had been doing the less demanding Administrative Procurement assignment. *fn5"

 6. By the following day Marcing had decided that she was willing to undertake the Salt City project despite her concerns, particularly when Martin then told her that Markham would be given the Salt City assignment and that Marcing would be relegated to Markham's Administrative Procurement assignment--really a type of demotion for Marcing (despite no reduction in pay or benefits) in light of her past tenure, experience and skills. Martin further told Marcing that other client project work would likely be unavailable to her in the future, effectively limiting (if not foreclosing entirely) her opportunity for further development and growth.

 8. Martin had also involved Fluor's Director of Human Resources Donald Huston ("Huston") in that last-mentioned December 8 meeting. At the end of that meeting they told Marcing that they would get back to her with a final decision. Just a few days later Fluor's then Director of Project Operations James Reynolds ("Reynolds") told Marcing that she could have only the limited options of (a) transferring to another job (the Administrative Procurement position) with no prospect of further assignments in project procurement, (b) working part-time on project procurement or (c) taking a leave of absence.

 9. As indicated in n.5, the Administrative Procurement position offered to Marcing consisted of "overhead buying" for the office facility, requiring less skill than the Project Procurement position in which Marcing had been employed up to December 1989. Marcing was overqualified for the Administrative Procurement position, as she had performed the same or similar duties in the years 1974 to 1978. She also legitimately feared, based on what had been said to her during the several meetings, that taking that job would cut her off from technical project procurement, as she would not be performing project buying in that position. As Finding 6 reflects, a transfer to the Administrative Procurement position as her sole assignment would essentially have been a type of demotion for Marcing, in spite of the fact that Marcing's pay and job classification would have remained the same.

 10. Faced with what effectively amounted to a Hobson's choice among three undesirable alternatives, Marcing chose part-time employment instead of resigning her position or taking a de facto demotion. As of January 1, 1990 Marcing's employment status was therefore changed to part-time.

 11. Although Fluor's personnel involved in establishing the course of conduct and in making the decisions described in Findings 5 through 8 have characterized those decisions as purely business-oriented, this Court finds that they would not have treated Marcing as they did--and most particularly that they would not have refused to let her reconsider the matter overnight and accept the Salt City assignment the very next day--if she had not been both a woman and an older employee. Marcing has proved to this Court's satisfaction that both her sex and her age played critical roles in, and had determinative influences on the outcome of, Fluor's employment decisions affecting Marcing. This Court expressly finds that Fluor would not have made the same decisions if it had not taken Marcing's sex into account, and it also concurs in the jury's determination that Fluor would not have made the same decisions if it had not taken Marcing's age into account. Finally, because part-time work on project procurement reasonably appeared to Marcing to be the least unpalatable of the three alternatives that had been forced on her by Fluor's sex-biased and age-biased imposition of conditions (because that part-time alternative at least appeared to hold out the prospect of further project procurement assignments as the office's business increased), Marcing's choice of that alternative was a reasonable response to the decision that she was compelled to make. *fn6"

 13. Between January 1, 1990 and March 13, 1990 Marcing's working conditions deteriorated in a number of ways: Marcing was required to obtain a superior's signature authorizing all purchases on her project work, she was removed from the Technical Information distribution list and excluded from procurement staff meetings, and she was required to keep a daily log in addition to her usual time sheets. None of Marcing's male counterparts was treated in any of those adverse manners. Moreover, between February 7, 1990 and March 13, 1990 Fluor refused to assign Marcing to new projects.

 14. While Marcing was employed on part-time status, her male coworkers--Jack Planz ("Planz"), Michael Riley ("Riley") and Robert J.C. Damon ("Damon")--continued to work full-time (and also some overtime) for Fluor, performing various duties that Marcing could have been able to perform. Those male co-workers continued to receive new project assignments, while Marcing did not. Fluor failed to offer any of the overtime work to Marcing or to discuss with her whether she could perform any of those assignments. *fn7" Fluor also took some of the work on Marcing's projects away from her and gave it to Plans.

 15. On February 21, 1990 Kara Mitchell, an employee in Fluor's Human Resources Department, transmitted a memorandum to Human Resources Director Huston at his request. That memorandum reflected that Marcing and female co-worker Markham were receiving salaries lower than those received by their male coworkers, including male co-workers who as to Marcing compared unfavorably in terms of experience and demonstrated skills.

 16. Male co-worker Riley, who assumed the Administrative Procurement position after January 1, 1990, was permitted to continue with his project procurement duties in conjunction with his administrative duties (basically the Administrative Procurement job was added to keep his hours up to a full 40 hours per week). That arrangement, particularly the continuation of his project procurement assignments with a view to his receiving more such assignments when they became available, was not an option that had been offered to Marcing when she was offered the Administrative Procurement position in December 1989. Again that reflects a difference in treatment that this Court finds to have been sex-based.

 17. In March 1990 Marcing was told by Bellamy that her hours would be further reduced to 12 hours per week. No other Procurement Department employee was relieved of his or her full-time duties or subjected to a reduction in hours. Fluor seeks to justify that decision as based on the permissible business consideration that if the volume of its business had declined so as to call for a reduction in total hours, it was a legitimate decision to impose that on a part-time employee rather than on those working full time. But that assertion ignores two factors:

 
(a) Marcing's part-time status had been forced on her by Fluor's impermissibly sex-based and age-based imposition of the Hobson's choice described in earlier Findings. Fluor's further reduction in her hours to a point at which Marcing could not sustain herself economically simply exacerbated the effects of that first adverse and discriminatory employment decision.
 
(b) It is impossible, because of Fluor's sex-discriminatory perception of Marcing, to determine what business decision Fluor would have reached if the situation had been different--if it had a part-time employee in Marcing's position. For aught that appears, if it had not been for the fact that Marcing as an older woman was deemed expendable, Fluor would have made the equally legitimate decision (as many industries have done) to spread the available work by cutting down on the hours of the full-time employees to keep the part-time person as a member of the available workforce when a hoped-for upturn in business would take place.

 In any event, that further drastic cutback on her hours made the economic aspect of the job (added to the oppressive working conditions referred to in Finding 13) intolerable for Marcing.

 18. In March 1990 Marcing was forced to resign her position with Fluor (a) because she could not afford to live on the salary payable for just 12 hours' work per week that had now been offered to her by Fluor and (b) because she had been excluded from the normal professional activities of the Procurement Department. At that time Fluor had made Marcing's working conditions so intolerable that a reasonable person in her position would have felt compelled to resign. Hence Marcing was in fact effectively forced to resign due to those intolerable conditions. That constituted her constructive discharge by Fluor.

 19. During Marcing's tenure with Fluor, particularly since the retirement of her mentor Bradley, she has been treated less favorably than her male buyers/procurement co-workers. *fn8" For example, Marcing continued to perform typing duties while working as a buyer, and she received a lower salary and lower benefits than were received by comparable males. This Court finds that the testimony of the Fluor decisionmakers--principally Bellamy and Martin, and James Reynolds as well--manifested their unexpressed but actual view of Marcing as an inferior because she was a woman who had worked her way up from a clerical position: She was not "one of the boys" (either literally or figuratively).

 20. For purposes of comparison in terms of evaluating the effects of the sex discrimination suffered by Marcing, the male employees in Fluor's Procurement Department (both current and former employees) who were reasonably similarly situated to Marcing were Damon, Riley and Plans. Both the male and female employees of Fluor serving in the position of buyer performed assignments requiring equal skill, effort and responsibility under similar working conditions.

 21. Marcing (who did not have a college degree) began performing buying duties for Fluor in the late 1970's, in addition to her duties as Bradley's Executive Secretary. In 1977 she was promoted to assistant buyer, and in 1983 she became a full-time buyer. Marcing was consistently promoted as a buyer and received acceptable to above-average performance appraisals. Indeed, she received a bonus for her work on the Midland project. As a buyer, Marcing had signature authority for orders up to 51 million until that authorization was arbitrarily and discriminatorily cancelled in 1990 (see Finding 13). She bought engineered and complex products, including (among others) cable, instrumentation, public address systems and some service work. Marcing acted as buyer for different projects such as chemical and nuclear power plants. For those purposes she negotiated with vendors. Marcing took over as Project Procurement Manager for the Midland project in its windup phase, and she served in that capacity until her resignation from Fluor's employ. In summary, Marcing was well qualified to do the work of a Procurement Specialist III and more than satisfied Fluor's job requirements for that position.

 22. Damon became a buyer with Fluor in January 1989. His prior work experience had included purchasing reproductive equipment, security systems, packaging components, boxes and chemicals. During the hiring process Bellamy assessed Damon only as an entry-level buyer. Damon had a college degree in an area unrelated to purchasing. Yet Damon's starting pay was $ 2,950 per month at the Procurement Specialist III level, although Marcing was earning only $ 2,810 per month in the same Procurement Specialist III job at that time. In January 1990 Damon's monthly salary was increased to $ 3,250, while Marcing's salary remained at its $ 2,810 level.

 23. Riley became a buyer with Fluor in 1987. Riley like Marcing did not have a college degree. Riley's 1988 performance appraisal rated his performance between "acceptable" and "needs improvement," while his 1989 performance appraisal carried a rating of "below job expectations." Even though according to Fluor performance was a key ingredient in determining an ...


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