Jones v. Flagship International Petition for a Writ of Certiorari

    No.

(
/

In t h e

Bnpxmx (Eetirt uf tty Imtpfc &Utm
O ctober T e r m , 1986

B e n it a  T . J o n es ,

v.
Petitioner,

F l a g sh ip  I n ter n a tio n a l ,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

M orris W . T h o m pso n  
(Counsel of .Record)

904 West 2nd Street 
Little Rock, Arkansas 72201 
(501) 375-2963

Attorney for Petitioner



QUESTIONS PRESENTED
1. Does §704(a) of Title VII of the 

Civil Rights Act of 1964 permit an 
employer to discharge an employee whose 
duties include representing it in EEO 
matters solely because that employee filed 
a charge of discrimination with the EEOC 
and otherwise engaged in activities 
protected by Title VII?

2 . Did the court of appeals apply 
the correct legal standard when it held 
that the discharge of petitioner was legal 
under Title VII?

PARTIES
All of the parties are set out in the 

caption.

i



TABLE OF CONTENTS
Page

iQuestions Presented
Table of Contents ......................ii
Table of Authorities.................. iv
Opinions Below ....................... 1
Jurisdiction ......................... 2
Statute Involved . . .  ..............  3
Statement of the Case . . . . . . . .  3

A. Proceedings Below . . . . .  3
B. Statement of Facts...........5

REASONS FOR GRANTING THE WRIT . . . .  12
I. THIS CASE RAISES AN IMPORTANT 

QUESTION RELATING TO THE PRO­
TECTIONS AVAILABLE UNDER 
TITLE VII TO EMPLOYEES WHO
PURSUE THEIR STATUTORY RIGHTS . 12

II. THE DECISION OF THE COURT BELOW 
IS IN CONFLICT WITH THIS COURT'S 
DECISION IN TRANS WORLD AIR­
LINES, INC. V. THURSTON AND WITH 
DECISIONS OF THE ELEVENTH
CIRCUIT . . . . . .  ..........  14

CONCLUSION ..........  . . . . . . .  18
i i



APPENDIX OF THE DECISIONS BELOW
Decision of the Court of
Appeals of July 9, 1986 . . . .  la
Order of the Court of Appeals
Denying Rehearing, August
21, 1986 .......... .. 29a
Decision of the United States
District Court for the
Northern District of Texas . . 31a
Judgment of the District Court 61a

i i i



Table of Authorities
Pages

Cases:
Hishon v. King & Spaulding, 467 U.S.

69 (1984)..................... 18
Holden v. Owens-Illinois, Inc., U.S.

S.Ct. No. 86-645 . . .  12, 13, 14, 18
Lee v. Russell County Bd. of Ed., 684

F.2d 769 (11th cir. 1982) . . . .  15
Lehman v. Trout, 465 U.S. 1056 (1984) . 16
McDonnell-Douglas Corp. v. Green, 411

U.S. 792 (1973) ............ 9, 11, 14
Mt. Healthy Bd. of Ed. v. Doyle, 429

U.S. 274 (1977)................  16
Pullman-Standard v. Swint, 456 U.S.

273 (1982)....................... 16
Thompkins v. Morris Brown College, 752

F .2d 558 (11th Cir. 1985) . . .  .15
Trans World Airlines, Inc. v.

Hardison, 432 U.S. 63 (1977) . . .  17
Trans World Airlines, Inc. v. Thurston,

469 U.S. ____, 83 L.Ed.2d 523
(1985)....................... 14, 15

Statutes:
42 U.S.C. §2000e-3(a), §704(a) of 

Title VII of the Civil Rights 
Act of 1964 ................... passim

iv



No. 86~
In The

SUPREME COURT OF THE UNITED STATES 
October Term, 1986

BENITA T. JONES,
Petitioner,
v.

FLAGSHIP INTERNATIONAL, d/b/a
SKY CHEFS,

Respondent.

PETITION FOR A WRIT OF CERTIORARI T 0 
THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

Petitioner Benita T. Jones prays that 
a writ of certiorari issue to review the 
judgment of the United States Court of 
Appeals for the Fifth Circuit entered in 
this case on July 9, 1986, petition for
rehearing denied August 21, 1986.

OPINIONS BELOW
The decision of the Court of Appeals 

of July 9, 1986, is reported at 793 F.2d



2

714 and is set forth in the appendix at 
pages la-28a. The order of the Court of 
Appeals denying a petition for rehearing 
is not reported and is set forth in the 
appendix at page 29a-30a. The decision of 
the United States District Court for the 
Northern District of Texas, Dallas 
Division, is not reported and is set forth 
in the appendix at pages 31a-61a.

JURISDICTION
The judgment of the Court of Appeals 

affirming the decision of the district 
court was entered on July 9, 198 6. The 
Court of Appeals granted an extension of 
time to and including August 6, 1986, to 
file a petition for rehearing. The 
petition for rehearing was timely filed on 
August 6, 1986. On August 21, 1986, the 
Court of Appeals denied the petition for 
rehearing. Jurisdiction of this court is 
invoked pursuant to 28 U.S.C. § 1254(1).



3

STATUTE INVOLVED
This case involves 42 U.S.C. § 2000e-

3(a), § 704(a) of Title VII of the Civil
Rights Act of 1964, as amended, which
provides in pertinent parts

It shall be an unlawful 
employment practice for an 
employer to discriminate against 
any of his employees . . . ,
because he has opposed any 
practice made an unlawful 
employment practice by this 
title, or because he has made a 
charge, testified, assisted, or 
participated in any manner in an 
investigation, proceeding, or 
hearing under this title.

(July 2, 1964, P.L. 88-352, Title VII, §
704, 78 Stat. 257; Mar. 24, 1972, P.L. 92-
261, § 8(c), 86 Stat. 109.).

STATEMENT OF THE CASE
A. Proceedings Below

Petitioner Benita T. Jones, a black
woman, commenced this action in the United
States District Court for the Northern
District of Texas, Dallas Division in 1982
after a receipt of a right to sue letter



4

from the Equal Employment Opportunity 
Commission.

The complaint raised a number of 
claims concerning violations of Title VII 
of the Civil Rights Act of 1964, 42 U.S.C. 
§ 1981, and the Equal Pay Act,including 
claims that the petitioner had been 
subjected to sexual harassment; that she 
had been denied promotions 
discriminator ily; and that she had been 
denied equal pay, all because of her race 
and/or sex. In addition, the complaint 
alleged that petitioner had been 
discharged because she had filed a 
complaint of discrimination with the Equal 
Employment Opportunity Commission and had 
otherwise opposed practices that were in 
violation of Title VII.

After a trial before the court, the 
district court ruled against petitioner on 
all claims and its decision was affirmed



5

by the court of appeals. The present 
petition raises only one claim: that 
petitioner was discharged in violation of 
42' U.S.C. § 2000e-3(a) in that she was 
discharged because she filed a complaint 
with the EEOC and otherwise opposed 
discriminatory policies of the respondent 
employer.
B. Statement of Facts

Petitioner was employed by Flagship 
International in the position of manager 
of Equal Employment Opportunity programs. 
Her principal duties were to prepare an 
affirmative action plan and to investigate 
charges of employment discrimination 
brought against the company. (App. 
p.33a.) Although petitioner is an 
attorney, the position she held was not 
that of a lawyer as such. Thus, while her 
duties included defending her employer 
before state and local administrative



6

agencies against discrimination charges 
brought by other employees of Flagship 
International, she "had no responsibility 
to litigate them in court." (App., 
p.33a.)

After a series of incidents 
petitioner filed with the Equal Employment 
Opportunity Commission a charge that she 
herself had been discriminated against in 
violation of Title VII in that she had 
been subjected to sexual harassment by her 
immediate supervisor and she had received 
a lower salary for work essentially the 
same as that done by male employees.

It is undisputed that upon learning 
of the EEOC charge her employer suspended 
her from her duties as EEO officer. 
(App., p. 47a-48a.) Subsequently, her 
employer claimed that there were a number 
of events related to her EEO charge and 
opposition to activities believed to



7

violate Title VII that resulted in her 
termination.

First, her employer claimed that she 
had solicited the support of two other 
black women employees of Flagship 
International for her claims that there 
was a policy of discrimination based on 
race and sex. Second, her employer 
claimed that her retained attorney stated 
that she was planning to expand her 
individual claim into class action on 
behalf of all black and female employees 
of the company. Third. the company 
claimed that she had violated company 
policy by removing a confidential 
personnel file.

The district court, although, it 
ruled against petitioner, did so on a 
limited basis. The court recited the 
events which were alleged to constitute 
sexual harassment and simply held that



8
they did not rise to the level of creating 
a hostile work environment and that she 
had not been adversely affected by her 
supervisor's actions. (App. 39a-46a.) The 
court rejected the failure to promote 
claim on the ground that it had not been 
raised in the EEOC charge (App. 5Qa-51a) 
and the equal pay claims on the lack of 
evidence showing an inequality of equal 
pay for comparable work. (App. 51a-57a.)

With regard to the claim of 
retaliation, the court did not dispute the 
fact that the reason for plaintiff's 
suspension and then discharge was her 
participation in protected activities. 
Indeed, it rejected her employer's claim 
that she had violated company policy by 
her use of a personnel file. Further, the 
district court made no findings with 
regard to the alleged threat of a class 
action. It only found that she had given



9
"aid and comfort" to only one other
employee to pursue a claim of
discrimination against the company. (App.
48a-49a.) It was solely on the basis of 
this one incident that the court held that 
the company was justified in terminating 
petitioner, i.e.. because there was a 
conflict with petitioner's role as the 
company's EEO representative.

The court of appeals affirmed the 
denial of the retaliation claim but on a 
somewhat different basis. It held that 
petitioner had met her burden under 
McDonnell-Douqlas Corp. v. Green. 411 
U.S.792 (1973), and its progeny and had 
made out a prima facie case that "but for” 
her filing of a charge with the EEOC she 
would not have been fired. (App. p. 2 0a) 
The court further concluded, however, that 
respondent employer had met its McDonnell- 
Douqlas burden of articulating a



1 0

legitimate, non-discriminatory basis for 
the discharge because of the conflict of 
interest with her duties as an EEO officer 
resulting from not only her filing an EEO 
charge, but because of her alleged plan to 
initiate a class action of employment 
discrimination against the company.1

Therefore, the court concluded, 
whatever the protections available to 
other types of employees under § 704(a) of 
Title VII, petitioner could be discharged 
because her duties included 
"representating her company on equal 
employment matters." (App. 25a.) In 
short, Jones could be fired because she:
(1) had filed a discrimination charge

1 The court of appeals made this 
finding based on its own review of the 
record even though it acknowledged that 
the district court had not relied on this 
alleged incident. (App. 23a-24a.)
Indeed, the district court did not even 
find that the purported conversation had 
occurred.



11
against her employer; (2) had suggested 
that a class action suit would follow; and
(3) had invited other employees to bring 
charges or join in her complaint. (App. 
26a - 27a.) Therefore, the employer was 
entitled to judgment under the McDonnell 
Douglas - Burdine analysis.



1 2

REASONS FOR GRANTING THE WRIT
I .

THIS CASE RAISES AN IMPORTANT QUESTION 
RELATING TO THE PROTECTIONS AVAILABLE 
UNDER TITLE VII TO EMPLOYEES WHO PURSUE 
THEIR STATUTORY RIGHTS.

Pending before this court is a 
petition for a writ of certiorari in 
Holden v. Owens-Illinois, Inc.. No. 86- 
645. That case raises a question closely 
related to the present case; to what 
extent does an employee whose job duties 
include internal EEO enforcement forfeit 
her rights under Section 704 of Title VII.

Here, it is undisputed that the 
reasons for the adverse action taken 
against petitioner, beginning with her 
suspension and culminating with her 
discharge, were her filing an EEOC 
complaint and taking other actions in 
opposition to alleged discriminatory 
practices that clearly come within the 
scope of activity protected by the



13

statute. The justification presented by 
the company, and accepted by the lower 
courts, is that, because plaintiff had as 
one of her duties the defense of the 
employer against EEO claims brought by 
other employees, there was an inherent 
conflict of interest between her retaining 
her position and pursuing her own rights 
under Title VII. The courts below 
essentially have read into the statute an 
exception to the protections of 704 (a) 
for a certain class of employees, even 
though there is no support for such an 
exception in either the section's language 
or the legislative history of Title VII.

As noted in the petition in Holden, 
the question of the scope of the 
protections of Section 704 for EEO 
personnel is both recurring and important. 
Petitioner respectfully suggests that it 
would be appropriate to hold this petition



14

pending the Court's disposition of the 
petition in Holden. If certiorari is 
granted in Holden. then an appropriate 
order could be entered here depending on 
the outcome of that case. If certiorari 
is denied in Holden the present petition 
could then be considered and granted.

II.
THE DECISION OF THE COURT BELOW IS IN 
CONFLICT WITH THIS COURT'S DECISION IN 
TRANS WORLD AIRLINES. INC. V. THURSTON AND 
WITH DECISIONS OF THE ELEVENTH CIRCUITS.

As discussed above, the basis of the 
court of appeals' decision with regard to 
plaintiff's retaliation claim was an 
application of the standards in McDonnell- 
Doualas Corp. v. Green. 411 U.S. 792 
(1973). However, this Court held in Trans 
World Airlines. Inc, v. Thurston. 469 U.S.
___, 83 L. Ed. 2d 523 (1985) that the
McDonnell-Douglas analysis was
inapplicable where there was direct 
evidence of a violation of the statute.



1 5

In Thurston it was clear that the
reason for the forced retirement of the
plaintiffs was a policy based on age in
violation of the Age Discrimination in
Employment Act. Similarly here, it is
undisputed that the reason for the
suspension and then discharge of the
petitioner was her involvement in actions 
protected by of Title VII.

Given the direct evidence of a 
statutory violation, it was erroneous to 
permit a defense based on evidence of a 
"legitimate, non-discriminatory reason" 
for the adverse action.2 Rather, as in 
Thurston, any defense to the merits of 
petitioner's claim had to come from the 
language of the statute. As we have noted

2Prior to Thurston the same result 
had been reached by the Eleventh Circuit 
in Lee v. Russell County Bd. of Ed. . 684
F. 2d 769, 772-74 (11th Cir. 1982),' see
also Thompkins v. Morris Brown College. 
752 F.2d 558, 563 (11th Cir. 1985).







1 8

nature of her duties. Such a result finds 
no support in the clear language of § 704
(a) , is at odds with the intent of 
Congress, and is inconsistent with 
decisions of this Court. See Hishon v. 
King & Spaulding. 467 U.S. 69 (1984).
Certiorari should be granted to address 
these important issues.

CONCLUSION
The petition for writ of certiorari 

should be held for disposition in light of 
Holden v. Owens-Illinois. Inc.. No. 86- 
645. In the alternative, the petition for 
a writ of certiorari should be granted.

Respectfully submitted,

MORRIS W. THOMPSON 
(Counsel of Record)
904 West 2nd Street 
Little Rock, Arkansas 72201 (501) 375-2963
Attorney for Petitioner



A P P E N D I X  

Decisions of the Courts Below



la
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

B. T. J ones,
Plaintiff-Appellant,

v.
Flagship International d /b /a/ Sky 
C hefs,

Defendani-A ppellce.

No. 85-1124 
OPINION

Filed July 9, 1986

Before: Thomas Gibbs Gee, Alvin B. Rubin, and 
Reynaldo G. Garza, Circuit Judges.

Opinion by Judge Reynaldo G. Garza

Appeal from the United States District Court 
for the Northern District of Texas 

A. Joe Fish, District Judge, Presiding

SUMMARY

Employment Discrimination

Appeal from judgment in favor of defendant and denial of 
request to amend complaint. Affirmed.

The appeal arises from appellant Jones’ sexual harassment, racial 
and sexual discrimination and unlawful retaliatory charges against 
her former employer, appellee Flagship International (Flagship). 
Flagship had employed Jones as its Manager of Equal Employment 
Opportunity (EEO) Programs. Her principal duties involved deal­
ing with employment discrimination claims against Flagship. The 
district court found for Flagship on all of Jones’ claims. Jones con­
tends that the court erred in failing to find sex-based discrimination 
in terms of pay and promotion, sexual harassment, retaliation, and

7112



Jones v. Flagship International 7113
that the court abused its discretion in denying her leave to amend 
her complaint. The Equal Employment Opportunity Commission 
(EEOC), as amicus curiae, contends that the court erred in not find­
ing retaliation on Flagship’s part.

[11 In a suit arising under Title VII the ultimate burden rests 
upon the plaintiff to prove, by a preponderance of the evidence, 
unlawful discrimination. [2] In claims of disparate treatment on the 
basis of sex, the factual inquiry' is whether the defendant intention­
ally discriminated against the plaintiff. [3] In order to establish a 
claim against an employer for a hostile work environment, the 
plaintiff must show (1) the employee belongs to a protected group,
(2) the employee was subject to unwelcome sexual harassment, (3) 
the harassment complained of was based upon sex, (4) the harass­
ment complained of affected a term, condition or privilege of 
employment, and (5) respondeat superior. [4] While an employee 
need not prove tangible job detriment to establish a sexual harass­
ment claim, the absence of such detriment requires a commensu- 
rately higher showing that the sexually harassing conduct was 
pervasive and destructive of the working environment. [5] 
Although this court agrees that the district court’s ruling fails to 
recount in detail all of the incidents reported by Jones, it disagrees 
with the court’s conclusion that the conduct complained of was not 
sufficiently pervasive to constitute a hostile work environment. [6] 
This court finds unpersuasive Jones’ arguments supporting her 
claim that the court’s finding that she did not suffer adverse 
employment was clearly erroneous. [7] In order to establish a claim 
under the Equal Pay Act, Jones must show (1) that her employer is 
subject to the Act, (2) that she performed work in a position requir­
ing equal skill, effort and responsibility under similar working con­
ditions, and (3) that she was paid less than members of the opposite 
sex. The court correctly found that Jones failed to show a violation 
of the Act by a comparison with male Flagship employees. [8| As to 
Jones’ Title VII equal pay claim, she is required to show that Flag­
ship intentionally discriminated against her on the basis of her sex. 
Jones failed to establish a discrimination in pay claim under Title 
VII also. [9] As to Jones’ failure to promote claim, she did not sub­
mit any evidence that she applied for a position for which she was 
qualified and rejected, and which was later filled by a male 
employee.



3a

|101 This court concludes that Jones did meet her prima facie 
burden of showing that but for her filing charges with the EEOC she 
would not have been suspended and terminated from her employ­
ment. However, Flagship presented evidence sufficient to rebut 
Jones’ prima facie case and to support the district court’s conclu­
sion that Flagship did not engage in unlawful retaliation. Jill In 
assuming her position as Flagship’s Manager of EEO Programs, 
Jones neither abandoned her right to be free from discriminatory' 
practices nor excluded herself from its protections. |12j However, 
although eliminating discriminatory employment practices is the 
goal of Title VII, cooperation and voluntary compliance are the 
preferred methods of promoting that goal. [13] This court need not 
decide the extent to which an employer may act in relieving an 
employee of her EEO duties without running afoul of her rights, or 
to whether Flagship’s response was sufficiently excessive to consti­
tute unlawful retaliation. The record establishes that Jones’ filing of 
charges with the EEOC was not the sole reason for Flagship’s action 
at the time of suspension. [14] The courts have required that 
employee conduct be reasonable in light of the circumstances, and 
have held that the employer's right to run his business must be bal­
anced against the rights of the employee to express his grievances 
and promote his own welfare. [15] Jones’ actions not only rendered 
her ineffective in the position for which she was employed, but crit­
ically harmed Flagship’s posture in the defense of discrimination 
suits brought against the company. [16] Flagship, having met its 
burden of production by providing a legitimate, nondiscriminatory 
basis for its action, rebutted Jones’ prima facie case and shifted the 
burden of persuasion to Jones to show that Flagship’s proffered 
explanation is unworthy of credence. [17] Moreover, Flagship need 
not have been correct in its basis for suspending and discharging 
Jones to show that its actions were motivated by non-retaliatory 
reasons. ]18] This court holds that Flagship presented sufficient, 
credible evidence to show that its actions were motivated by non- 
rctaliatory reasons, and therefore, to rebut Jones’ case. [19] Given 
the late date of Jones’ motion to amend her complaint, the district 
court’s denial was not an abuse of its discretion.

7114 Jones v. Flagship Internationa!



4a
Jones v. Flagship International 7115

O PIN IO N

REYNALDO G. GARZA, Circuit Judge:

Benita T. Jones filed suit against her former employer, Flagship 
International (“Flagship"), under 42 U.S.C. §§ 2000 et. seq. (“Title 
VII”), 29 U.S.C. § 206(d) (the “Equal Pay Act”), and 42 U.S.C. 
§ 1981.1 Flagship hired Jones, a licensed attorney in Little Rock, 
Arkansas, on July 30. 1979, as the company’s “Manager of Equal 
Employment Opportunity (EEO) Programs”. Jones’ principal 
duties were to investigate charges of discrimination brought against 
the company, to represent the company before state and federal 
administrative agencies, to “conciliate” such discrimination 
charges, and to prepare an affirmative action plan. Jones initial sal­
ary of $21,000 was increased to $22,050 in November, 1979; to 
$23,153 in June, 1980; and to $27,000 on August 29, 1980.

At Flagship, Jones was placed under the supervision of Jared 
Metze. the Vice-President in charge of Personnel. Jones testified at 
trial that Metze subjected her to sexual harassment throughout her 
tenure at Flagship. According to Jones, she had been with Flagship 
for six weeks when she, Metze, and others went on a business trip 
to Chicago. Although Metze sent the others home, he and Jones 
continued on business to Detroit before returning to Dallas. Jones 
testified that Metze had been driving her home from the airport 
when she expressed concerns about the security of the hotel in Chi­
cago in which they had stayed. At this point, Metze replied that his 
wife did not know he was back in town, and offered to take Jones to 
a “reputable” hotel in Dallas because she needed the “comfort of a 
man.” Jones further testified that she had been so distressed by this 
incident that she left for Little Rock the next day, remained there 
for two weeks, and returned only upon Metze’s promise that such 
an incident would not recur.

Jones then testified as to two further occurrences several months 
later. According to Jones, Metze propositioned her during a trip to 
San Francisco, and, during a trip to Denver, told her that she was 
“off the hook” because of a friend’s interest in her. Jones stated that

'Jones’ claim under 42 U.S.C. § 1981 is not before this court on appeal.



5 a

she rebuffed these as well as numerous other advances. Metze 
denied making any advances toward Jones.

A final “sex-related” incident occurred during Flagship’s head­
quarters office Christmas party in December, 1981. On that occa­
sion Kurt Elmer, the company’s Executive Chef and Vice- 
President, created figures of bare-breasted mermaids as table deco­
rations. After receiving several complaints from female employees, 
Jones asked Metze whether a complaint should be made to Elmer. 
Metze proposed that Jones prepare a memo on the matter in order 
to avoid upsetting Elmer at the party. Jones later wrote such a 
memo, expressing the distaste of female employees for the figures, 
and received in reply a short polemic from an obviously unrepen- 
tent Elmer.

In addition to sexual harassment, Jones testified that she had 
been discriminated against in terms of pay and promotion while at 
Flagship. According to Jones, she made several complaints to 
Metze and Joseph Primavera, the company’s Assistant Vice- 
President of Employee Relations and another of Jones’ supervisors, 
concerning her pay since the spring of 1980. Jones testified that her 
grievances were ignored.

Jones mentioned her complaints to Peter Vygantas, the compa­
ny’s Senior Vice-President for Administration, during a meeting on 
January 27, 1982. Jones stated that during the course of the discus­
sion Vygantas asked for a dollar amount of Jones’ claims. Jones tes­
tified that, in order to get the necessary information for Vygantas, 
she had to derive salary data from the salary record cards of Metze 
and Catherine Sharp, her immediate predecessor; this, in turn, 
required Jones to copy data from their personnel files. Jones further 
testified that she continued to discuss her complaints, including 
sexual harassment, in subsequent meetings with Vygantas and 
Metze.

On February 3, 1982, Jones filed a charge with the EEOC, claim­
ing discrimination in pay and sexual harassment. On February' 1 1, 
Metze and Vygantas learned of the charge; the latter suspended 
Jones with pay on the following day. Vygantas testified that the 
action was necessary because of the conflict of interest created by 
Jones' position with the company. Shortly after Jones’ suspension.

7116 Jones v. Flagship International



6a

Barbara McCaffrey, Metze’s secretary, told Metze that she had seen 
copies of his personnel file in Jones’ home. Metze informed 
Vygantas of this information, as well as information that Jones had 
solicited Dorothy Smith, another female employee, to file a charge 
of sex discrimination against the company. Vygantas also testified 
that he had learned from a security investigation interview con­
ducted on March 22, 1986, that Jones had “invited” Patricia Love, 
another female employee, to “participate” in an action against the 
company during the course of numerous meetings between Jones 
and Love in January, 1982.2

As a result of this information, Vygantas terminated Jones’ 
employment on April 15, 1982. According to Vygantas, this action 
was necessary because of the “lack of confidence the company had 
in her because she clearly had a conflict of interest in performing 
her duties,” Jones’ misuse of company property, /.<?., Metze’s per­
sonnel file, in acquiring information concerning salaries, and Jones’ 
attempt to encourage others to file charges against Flagship.3 Jones

_________  Jones v. Flagship International 7117

investigators of the Security Department of American Airlines, Inc., then 
Flagship’s parent company, conducted the interview as part of Flagship’s inves­
tigation into Jones' claims.

3In a discharge letter to Jones, Vygantas summarized the basis of his action:

When commencing my investigation on the claim you had made, we 
learned that you had surreptitiously copied and taken home all or a 
pan of a personnel file of Mr. J. R. Metze, your immediate supervisor. 
Further, we discovered that you had shown copies of a portion of the 
file to at least one employee at your home. When I asked you on Febru­
ary 18, about having Mr. Metze’s file or a copy of thereof, you denied 
it. Yet, you later admitted to the Company’s Security Representatives 
investigating your charges against Mr. Metze that you had reproduced 
his payroll records.

As you know. Sky Chefs General Rules of Conduct state:

27. The use of Company time, material or facilities for purposes 
not directly related to Company business, or the removal or bor­
rowing of Company property without permission is prohibited.

Based on the above information, you have violated this rule. More 
importantly, your misconduct was a gross violation of the privacy of a 
co-employee. It is especially intolerable of a management employee 
such as yourself having for business purposes access to privileged 
information.



7 a

then filed a second charge with the EEOC, charging unlawful retali­
ation.

On October 1, 1982, Jones filed a “class action complaint” which 
alleged numerous claims on behalf of blacks, women and herself, 
including claims of discrimination in terms of pay and promotion, 
sexual harassment and retaliation. During the class certification 
proceedings, Flagship moved to dismiss the class allegations of 
Jones’ complaint. The district court disqualified Jones as a class 
representative on the basis of Doe v. A. Corp., 709 F.2d 1043, 1047- 
48 (5th Cir. 1983) (holding that a corporation’s former house coun­
sel who had rendered legal advice concerning employee benefits to 
the corporation prior to his resignation was barred by his ethical 
obligations as a lawyer from prosecuting, as a class representative 
of other employees, benefits allegedly due under the corporation's 
pension and life insurance plans); on November 8, 1983, the court 
dismissed Jones’ class allegations from the complaint.

On January 11, 1984, Jones sought to amend her complaint to 
include additional defendants, to plead state law claims for inva­
sion of privacy, defamation, intentional infliction of emotional 
stress, and to add other federal claims under 42 U.S.C. §§ 1985, 
1986. By order dated February 1, 1984, the district court denied 
Jones' leave to amend. Following trial, which commenced on 
March 12, 1984, and concluded on March 15, 1984, the district 
court, in its Memorandum of Decision and Judgment, dated Janu­
ary 24, 1985, entered judgment for Flagship. This appeal followed.

7118 Jones v. Flagship International

In the course of the Company’s inquiry, it was also found while in your 
job of Manager—EEO Programs, before you had filed a claim person­
ally, you had solicited other Sky Chefs’ employees to file charges of dis­
crimination against the Company. Such actions on your part are 
wholly at odds with the responsibilities of your job. As an Attorney, 1 
hope you can appreciate the conflict of interest inherent in soliciting 
claims against the very client you represent.

Your misconduct in secretly reproducing your supervisor’s personnel 
records, coupled with your lack of honesty about the subject, and your 
attempts to initiate and encourage other charges against Sky Chefs has 
rendered you ineffective in your present job. Therefore, as previously 
communicated to your Attorney by Sky Chefs’ Legal Counsel, your 
employment with Sky Chiefs was terminated as of April 15, 1982... .



8a

THE NATURE OF JONES’ CLAIMS

Jones' claims at trial were grounded on racial and sexual discrim­
ination. The district court found that there was “not the slightest 
hint that race was even a factor in any of Flagship’s employment 
decisions regarding Jones,’’ It is well established that such a finding 
is final unless clearly erroneous. F.R.Civ.P. 52(a) A finding is not 
clearly erroneous unless “the reviewing court on the entire evidence 
is left with a definite and firm conviction that a mistake has been
committed.” Anderson v. City o f Bessemer City. N .C.,_U .S.__ ,
105 S.Ct. 1504, 1511 (1985) (quoting United States v. United States 
Gypsum Co.. 333 U.S. 364, 394-95 (1948)). By contrast, a district 
court’s legal conclusion is subject to an appellate court’s plenary 
review.

Jones has abandoned her race discrimination claims, and, on 
appeal, argues that the district court erred in failing to find sex- 
based discrimination in terms of pay and promotion, sexual harass­
ment and retaliation. Jones also claims that the court abused its dis~ 
cretion in denying her leave to amend her complaint. Finally, the 
Equal Employment Opportunity Commission (“EEOC”), as 
amicus curiae, contends that the court erred in not finding retalia^ 
tion on Flagship’s part.

[1] Most of Jones’ complaints fall under Title VII. It is well set­
tled that in a suit arising under Title VII the ultimate burden rests 
upon the plaintiff to prove, by a preponderance of the evidence, 
unlawful discrimination.

First, the plaintiff has the burden of proving by the pre­
ponderance of the evidence a prima facie case of discrimi­
nation. Second, if the plaintiff succeeds in proving the 
prima facie case, the burden shifts to the defendant ‘to 
articulate some letigimate, nondiscriminatory reason for 
the employee’s rejection.’ . . .  Third, should the defendant 
carry this burden, the plaintiff must then have an opportu­
nity to prove by a preponderance of the evidence that the 
legitimate reasons offered by the defendant were not its 
true reasons, but were a pre-text for discrimination.

________________Jones v. Flagship International 7119



9a

7120 Jones v . Flagship International

Texas Department o f Community Affairs v. Burdinc, 450 U.S. 248, 
253-54, 101 S.Cl. 1089, 67 L.Ed.2d 207, 215 (1981) (citations 
omitted). Accord, McDonnell Douglas Corps v. Green, 411 U.S. 792, 
804-05 (1973).4 * *

12] Because Jones’ claims under Title VII allege “disparate 
treatment” on the basis of sex, the “factual inquiry" is “[whether] 
the defendant intentionally discriminated against the plaintiff." 
United States Postal Service Board of Governors v. Aikens, 460 U.S. 
711, 715 (1983) (quoting Burdinc, 450 U.S. at 253). “In other 
words, is ‘the employer .. . treating some people less favorably than 
others because of their race, color, religion, sex, or national 
origin’.” Id. (quoting Furnco Construction Corp. v. Waters, 438 U.S. 
567, 577 (1975)). With the foregoing standards and burdens in 
mind, we now turn to Jones’ claims.

4In Burdinc the Supreme Court stressed the importance of the prima facie 
case in Title VII actions.

The burden of establishing a prima facie case of disparate treatment is 
not onerous [and] serves an important function in litigation: it elimi­
nates the most common nondiscriminatory reasons for the plaintiffs 
rejection. See Teamsters v. United States, 431 U.S. 324, 358. and n.44,
97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). As the Court explained in 
Furnco Construction Corp. v. Waters. 438 U.S. 567, 577, 98 S.Ct. 2943,
57 L.Ed.2d 597 (1978), the prima facie case “raises an inference of dis­
crimination only because we presume these acts, if otherwise unex­
plained, are more likely than not based on the consideration of 
impermissible factors.” Establishment of the prima facie case in effect 
creates a presumption that the employer unlawfully discriminated 
against the employee. If the trier of fact believes the plaintiffs evi­
dence, and if the employer is silent in the fact of the presumption, the 
court must enter judgment for the plaintiff because no issue of fact 
remains in the case.7

***********
7The phrase “prima facie case" may denote not only the establishment 
of a legally mandatory, rebuttable presumption, but also may be used 
by courts to describe the plaintiffs burden of producing enough evi­
dence to permit the trier of fact to infer the fact at issue. 9 J. Wigmore, 
Evidence § 2494 (3d ed 1940). McDonnell Douglas should have made 
it apparent that in the Title VII context we use “prima facie case” in 
the former sense.

Id  450 U.S. at 253-54.



10a

1. Sexual Harassment

[3J Sexual harassment is a form of employment discrimination 
prohibited by Title VII. Simmons v. Lyons, 746 F.2d 265, 270 (5th 
Cir. 1984). In determining that Jones failed to make out a claim of 
sexual harassment, the district court referred to the “hostile work 
environment” and '"quid pro quo” paradigms outlined in Henson v. 
City o f Dundee, 682 F.2d 897 (11th Cir. 1982).

a. Hostile Work Environment

In order to establish a claim against an employer for a hostile 
work environment, the plaintiff must show the following:

(1) The employee belongs to a protected group, i.e., a simple stip­
ulation that the employee is a man or a woman;

(2) The employee was subject to unwelcome sexual harassment, 
i.e., sexual advances, requests for sexual favors, and other verbal or 
physical conduct of a sexual nature that is unwelcome in the sense 
that it is unsolicited or unincited and is undesirable or offensive to 
the employee;

(3) The harassment complained of was based upon sex, i.e., that 
but for the fact of her sex, the plaintiff would not have been the 
object of harassment;

(4) The harassment complained of affected a “term, condition or 
privilege o f employmenti.e., the sexual harassment must be suffi­
ciently pervasive so as to alter the conditions of employment and 
create an abusive working environment;

(5) Respondeat superior, i.e., that the employer knew or should 
have known of the harassment in question and failed to take 
prompt remedial action.

Id. at 903-05.5

Jones v. Flagship International___________ 7121

5In contrast to the role of the “prima facie case” in the typical disparate treat­
ment context.



11a

[4] In concluding that Jones failed to establish a hostile work 
environment, the district court recounted Jones’ testimony con­
cerning her trips with Metze to Chicago and Denver and the Christ­
mas party incident. The court found that the harassment 
complained of was insufficiently pervasive to alter a condition of 
Jones’ employment and create an abuse working environment.6 
The court also noted that Jones failed to demonstrate that she had 
been adversely affected, and that she admitted to the absence of an 
adverse affect.

Jones contends that the district court erred in two respects. First, 
Jones asserts that “tangible job detriment" or adverse employment 
effect is not necessary to establish a prima facie case of sexual 
harassment under Title VII. We agree. See e.g., Henson, 682 F.2d at 
901 (“under certain circumstances the creation of an offensive or 
hostile work environment due to sexual harassment can violate 
Title VII irrespective of whether the complainant suffers tangible 
job detriment’’); Bundy v. Jackson, 641 F.2d 934, 943-44 (D.C. Cir. 
1981) (that sexual harassment causing a hostile work environment 
is prohibited “follows ineluctably from numerous cases finding 
Title VII violations where an employer created or condoned a sub­
stantially [racially] discriminatory work environment, regardless of 
whether the complaining employees lost any tangible job benefits”); 
See generally, Rogers v. E.E.O.C.. 454 F.2d 234, 238 (5th Cir. 
1971). The trial court’s ruling, however, is not to the contrary. We 
conclude, as did the court below, that while an employee need not 
prove tangible job detriment to establish a sexually harassment

7122 Jonhs v. Flagship International.

the case of sexual harassment that creates an offensive environment 
does not present a factual question of intentional discrimination which 
is at all elusive. Except in the exceedingly atypical case of a bisexual 
supervisor, it should be clear that sexual harassment is discrimination 
based upon sex. We therefore see no reason to suggest a specific prima 
facie case for the hostile environment claim. In trying these cases, the 
district courts should employ normal principles of pleading and proof 
allocation. These principles may, in some cases, dictate that the alloca­
tion scheme vary in the individual case because of superior knowledge 
on the part of one party or other similar factors.

Id. at 905, n.l 1.
im plicit in the district court's conclusion is that Jones established the first 

three elements of the hostile work environment paradigm.



12a

claim, the absence of such detriment requires a commensurately 
higher showing that the sexually harassing conduct was pervasive 
and destructive of the working environment.

In Rogers, supra, this court held that the state of psychological 
well-being is a term, condition, or privilege of employment within 
the meaning of Title VII: “One can readily envision working envi­
ronments so heavily polluted with discrimination as to destroy 
completely the emotional and psychological stability of minority 
j>roup workers.” 454 F.2d at 238. However, the “mere utterance of 
an ethnic or racial epithet which engenders offensive feelings in an 
employee” does not affect the terms conditions, or privileges of 
employment to a sufficiently significant degree to violate Title VII. 
Id. “Whether sexual harassment at a workplace is sufficiently severe 
and persistent to affect seriously the psychological well-being of an 
employee is a question to be determined with regard to the totality 
of the circumstances.” Henson, 682 F.2d at 904.

[5] Jones argues that the district court’s ruling, by reciting only 
three sex-related incidents, understates the pervasiveness of the 
sexual harassment she experienced at Flagship. According to Jones, 
the number of “sexually harassing” incidents reported establishes a 
sexually abusive and hostile working environment. Although we 
agree that the district court’s ruling fails to recount in detail all of 
the incidents reported by Jones, we do not disagree with the court’s 
conclusion that the conduct complained of was not sufficiently per­
vasive to constitute a hostile work environment.7

161 Jones argues, alternatively, that she did suffer adverse 
employment action and that the court’s ruling to the contrary is 
clearly erroneous. Jones’ claim is based on the following: (i) that the 
incident following her trip with Metze to Chicago resulted in severe

Jones v. Flagship International 7123

7Jones has argued that the district court failed to take into account sexually 
harassing incidents reported by other female employees. Such testimony, 
though relevant in a class action suit, does not bear on Jones’ individual claim 
of sexual harassment in the absence of evidence that such incidents affected 
Jones’ psychological well-being. We note, moreover, that the district court did 
not credit Jones' testimony regarding the three major sex-related incidents as 
factual findings. The court’s ruling appears to recount these incidents only to 
show that, even if true, such “harassment” was insufficiently pervasive to con­
stitute a violation of Title VII.



7124 Jones v. Flagship International

distress; (ii) that she was adversely affected in terms of pay and pro­
motion; (iii) that Metze increased her responsibilities when she 
complained; (iv) that Metze fabricated rumors about her; and (v) 
that the district court erred in finding that she had admitted to not 
being adversely affected. We find Jones’ points unpersuasive.

(1) The Trip to Chicago. It appears that Jones confuses tangible 
job detriment with distress or psychological harm, an intangible 
detriment. Moreover, assuming that Metze’s proposition caused 
Jones to return to Little Rock, Arkansas, we cannot discern from 
the record that this incident caused a tangible job detriment to 
Jones. On the contrary. Jones’ testimony on this point reveals no 
adverse employment effect.

(2) Pay and Promotion. While an adverse employment decision 
in this regard would certainly amount to a tangible job detriment, 
the record is barren of any indication that Jones’ complaints of sex­
ual harassment were related to her equal pay and promotion com­
plaints. This court cannot infer such a relationship.

(3) Increased Responsibilities. Although Jones claims that Metze 
increased her responsibilities after she complained of sexually 
harassing conduct, and refers this court to exhibits indicating those 
responsibilities, neither the exhibits nor the testimony in the record 
establish that Jones’ responsibilities increased unduly in relation to 
her position at Flagship, or otherwise resulted from her sexual 
harassment complaints.

(4) Rumors. Jones' contention that Metze fabricated rumors 
about her throughout the company is without support. Metze’s 
cross-examination testimony reveals that he listened to, and, at 
most, participated in company gossip about Jones. 5

(5) Jones’ Admission. According to Jones, her “admission” to not 
being adversely affected by the sexually harassing conduct was 
included in a “fabricated” report prepared by security personnel in 
connection with a “retaliatory investigation” conducted for the 
purpose of finding a “ostensible” reason for terminating her 
employment at Flagship. While Jones’ assertion may be credible, 
the trial court found to the contrary. We cannot say that this deter­
mination is clearly erroneous.



1 4 a

b. Quid Pro Quo

An employer may not require sexual consideration from an 
employee as a quid pro quo for job benefits. Henson, 682 F.2d at 
908. In Henson the court summarized the prima facie elements of 
a quid pro quo claim under Title VII.

In order to establish a violation of Title VII on grounds of 
sexual harassment of this kind, an employee must prove a 
number of elements, many of which are similar to the 
proof required to establish the existence of a hostile or 
offensive work environment:

(1) The employee belongs to a protected group.

(2) The employee was subject to unwelcome sexual 
harassment.

(3) The harassment complained o f was based upon sex.

(4) The employee’s reaction to harassment complained 
of affected tangible aspects o f the employee’s compensation, 
terms, conditions, or privileges o f employment. The accep­
tance or rejection o f the harassment by an employee must 
be an express or implied condition to the receipt o f a job 
benefit or the cause o f a tangible job detriment in order to 
create liability under this theory o f sexual harassment. As 
in the typical disparate treatment case, the employee must 
prove that she was deprived of a job benefit which she was 
otherwise qualified to receive because of the employer’s 
use of a prohibited criterion in making the employment 
decision.

(5) Respondeat superior.

Id. at 909 (emphasis added) (citations omitted).

As discussed above, Jones failed to demonstrate that the inci­
dents of which she complained resulted in a tangible job detriment. 
Similarly, the record fails to establish that Jones was required to 
accept sexual harassment as a condition to the receipt of a job bene­

Jones v. Flagship International 7125



1 5 a

fit. The district court’s finding that Jones failed to make out a quid 
pro quo claim for sexual harassment under Title VII is not in error.

We, therefore, affirm the trial court’s ruling that Jones failed to 
establish her claim for sexual harassment under Title VII.

11. Jones’ Pay and Promotion Claims

a. Equal Pay

[7] Jones asserts that Flagship discriminated against her in pay 
under both the Equal Pay Act and Title VII. The former statute 
provides:

No employer having employees subject to any provi­
sions of this section shall discriminate, within any estab­
lishment in which such employees are employed, between 
employees on the basis of sex by paying wages to employ­
ees in such establishment at a rate less than the rate at 
which he pays wages to employees o f the opposite sex in 
such establishment for equal work on jobs the performance 
of which requires equal skill, effort, and responsibility, 
and which are performed under similar working condi­
tions, except where such payment is made pursuant to (i) 
a seniority system; (ii) a merit system; (iii) a system which 
measures earnings by quantity or quality of production; or 
(iv) a differential based on any other factor other than sex

7 126_________ Jones v. Flagship International

29 U.S.C. § 206(d)(1) (emphasis added).

Unlike Title VII, the burden of persuasion may shift from the 
plaintiff to the defendant in a suit under the Equal Pay Act.

The plaintiffs having made out a prima facie case has dif­
ferent ramifications under the Equal Pay Act than it has 
under the Title VIE Under the Equal Pay Act, the plaintiff 
has the burden of proof to “show that an employer pays 
different wages to employees of opposite sexes ‘for equal 
work on jobs the performance of which requires equal 
skill, effort, and responsibility, and which are performed



16 a

under similar working conditions.’ ” Corning Glass Works 
v. Brennan, 417 U.S. 188. 195, 94 S.Ct. 2223, 2228, 41 
L.Ed.2d 2, 10 (1974). If the plaintiff meets this burden, the 
burden of proof “shifts to the employer to show that the 
differential is justified under one of the Act’s four 
exceptions.” Id. at 196, 94 S.Ct. at 2229, 41 L.Ed.2d at 11.
The exceptions are affirmative defenses on which the 
employer has the burden both of production and of per­
suasion. Id. at 197, 94 S.Ct. at 2229, 41 L.Ed.2d at 11. In 
other words, the burden shifts to the employer once a 
plaintiff shows that she was paid less than a male who was 
performing substantially the same job.

Plemer v. Parsons-Gilbane, 713 F.2d 1 127, 1136 (5th Cir. 1983).

Thus, in order to establish a claim under the Equal Pay Act, the 
plaintiff must show (1) that her employer is subject to the Act; (2) 
that she performed work in a position requiring equal skill, effort 
and responsibility under similar working conditions; and (3) that 
she was paid less than members of the opposite sex. To establish 
“equal work”, the plaintiff need only prove that the “skill, effort 
and responsibility” required in the performance of the jobs is 
“substantially equal.” Pearce v. Witchita County, City o f Witchita 
Falls, Texas Flospital Bd., 590 F.2d 128, 133 (5th Cir. 1979). The 
Act necessarily requires a plaintiff to compare her skill, effort, 
responsibility and salary with a person who is or was similarly situ­
ated.

Jones based her pay complaints at trial on salary comparisons 
with four male employees whom she regarded as having compara­
ble qualifications and responsibilities; Jared Metze, Ken Diebold, 
Jim Lawther and Joseph Primavera.

Metze. Jones compared'her position to Metze’s when the latter 
was “Manager of Personnel Relations” from April, 1972, to July, 
1974. Metze’s employee record card reveals that he earned $271.16 
per week at his hire and $380.80 per week when promoted to Direc­
tor of Public Affairs. Jones, meanwhile, earned $403.85 per week 
when hired in 1979. Thus, assuming that Metze’s job was substan­
tially similar to Jones' job as EEO Manager, the district court cor-

Jones v. Flagshh* International 7127



1 7 a

7128 Jones v. F lagship International

redly concluded that Jones failed to establish that she earned less 
than Mctzc for equal work.

Dicbold. Jones did not introduce Diebold’s employee record card 
at trial. Consequently, even if the jobs of Jones and Diebold were 
substantially similar, Jones failed to show that she earned less than 
Diebold.

Lawther. Flagship hired Lawther as “Specialist in Employee 
Relations” three months before Jones joined the company. Lawther 
and Jones both started at $403.85 per week. Beginning in Decem­
ber, 1980, Lawther earned $20 per week more than Jones following 
his promotion to “Manager of Union Contract Administration.” 
Lawther, who had been a high school teacher for 12 years, and a 
teachers' union representative for two years prior to his hire, was 
involved in collective bargaining negotiations and affirmative 
action programs at 46 locations. Based on our review of the record, 
we cannot disagree with the district court’s finding that Jones and 
Lawther did not engage in jobs requiring “substantially equal skill, 
effort and responsibility.”

Primavera. Jones testified that she had comparable qualifications 
to Primavera, one of her supervisors. However, as Jones’ testimony 
demonstrates, Primavera’s supervisory duties differed from Jones’ 
EEO duties for the company. Although the court below did not 
address Jones’ comparison with Primavera, we find that Jones and 
Primavera did not engage in substantially similar jobs.

18] In regard to her equal pay claim under Title VII, Jones was 
required to show that Flagship intentionally discriminated against 
her on the basis of her sex.8 Jones first testified that the company

sTitle VII makes il an unlawful employment practice for an employer “to dis­
criminate against any individual with respect to his compensation, terms, con­
ditions, or privileges of employment, because of such individual’s race, color, 
religion, sex, or national origin!'...” 42 U.S.C. § 2000e-2(a). In County o f  
Washington v. Gunther, 452 U.S. 161, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981), 
the Supreme Court held that failure to allege or prove the equal work standard 
of the Equal Pay Act did not bar a plaintiff’s cause of action under Title VII 
does incorporate that portion of the Equal Pay Act which permits dissimilar 
wages between men and women pursuant to (i) a seniority system, (ii) a merit 
system, (iii) a system which measures earnings by quantity or quality of produc­
tion, or (iv) a differential based on any other factor other than sex. See 42 
U.S.C. § 2000e-2(h).



1 8 a

refused to evaluate her job performance in accordance with com­
pany policy—evaluations, according to Jones, which would have 
resulted in a salary raise. Flagship, on the other hand, offered evi­
dence to show that Jones’ evaluation for 1981 was postponed due 
to Jones’ two-month absence for sick leave. Metze testified that he 
delayed the process in order to help Jones obtain a positive evalua­
tion. We cannot say, based on the record before us, that Flagship’s 
failure to evaluate Jones in 1981 constituted discrimination in pay.

Jones also testified that Flagship paid its employees at the 
“prevailing market rate” and that she earned less than that “rate.” 
However, as the district court held, there is no requirement that an 
employer pay its employees at market rate. We must, therefore, 
affirm the district court’s ruling that Jones failed to establish a dis­
crimination in pay claim under either the Equal Pay Act or Title 
VII.

b. Failure to Promote

19] In a suit alleging sex discrimination in an employer’s failure to 
hire or promote, the plaintiff must prove the following to establish 
a prima facie case: (1) that she was a member of a protected group; 
(2) that she applied for a position for which she was qualified; (3) 
that she was rejected; and (4) that after she was rejected, the 
employer promoted, hired, or continued to seek a member of the 
opposite sex for the job. McDonnell Douglas Corp. v. Green, 411 
U.S. 792 (1973); Uveida v. Steves Sash & Door Co., 738 F.2d 1425, 
1428 (5th Cir. 1984), cert, denied, 106 S.Ct. 791 (1986). Plemer, 
713 F.2d at 1135. Where the plaintiff claims discrimination in pro­
motion on the basis that jobs for which she was qualified were 
never posted or otherwise opened for formal applications, she must 
establish that the company had some reason or duty to consider her 
for the post. Carmichael v. Birmingham Saw Works, 738 F.2d 
1 126, 1133 (1 1th Cir. 1984).

The district court found that Jones did not submit any evidence 
that she applied for a position for which she was qualified and 
rejected, and which was later filled by a male employee. Our review 
of the record, moreover, discloses no evidence that Flagship had a 
duty or a legitimate reason to consider Jones for another position 
within the company. Consequently, we affirm the district court’s

Jones v . Flagship International 7129



7130
19a

J ones v. F lagship International

ruling that Jones failed to make out a discrimination in promotion 
claim under Title VII.

III. Retaliation

HO] Jones and the EEOC argue that the district court erred in 
concluding that Jones had failed to make out a prima facie case of 
retaliation under § 704(a) of Title VII.9 A plaintiff establishes a 
prima facie case of retaliation by showing (1) that she engaged in 
activity protected by Title VII; (2) that an adverse employment 
action occurred; and (3) that there was a causal connection between 
the participation in the protected activity and the adverse employ­
ment decision. Irby v. Sullivan, 737 F.2d 1418, 1426 (5th Cir. 
1984); McMillan v. Rust College, Inc., 710 F.2d 1112, 1116 (5th 
Cir. 1983).

The district court found that “Jones was clearly engaging in pro­
tected activity when she filed a charge of discrimination with the 
EEOC [and that] [h]er subsequent suspension and termination 
were adverse employment actions.” The court further found, how­
ever, that Flagship’s actions were taken, in part, as a result of Jones’ 
solicitation of Patricia Love, a female co-worker;

“the evidence did establish that Jones gave aid and com­
fort, if not outright encouragement, to Pat Love to pursue 
her grievances against the company, at a time when Jones’ 
duty was to discourage and defend such claims . . . .  The 
court is persuaded, therefore, that Flagship had reasonable 
grounds, or in good faith thought it did . . .  for suspending 
and later terminating Jones.”10

*Section 704(a), 42 U.S.C. § 2Q00e—3(a), reads in pertinent part:
“It shall be unlawful employment practice for an employer to dis­

criminate against any of his employees . .. because he has opposed any 
practice made an unlawful employment practice by this subchapter, or 
because he has made a charge, testified, assisted, or participated in any 
manner in an investigation, proceeding, or hearing" under this 
subchapter.”

10Flagship asserted at trial that it also terminated Jones’ employment for her 
solicitation of Dorothy Smith, another female co-worker, to sue the company, 
and for her breach of company policy in taking Metze’s personnel file home. 
See footnote 3, supra. The district court found that Jones did not solicit Smith 
and did not breach any “clearly stated” company policy, “at least as it pertained 
to Jones.” The court’s findings in this regard are not in error.



2 0 a

The court ruled that, as a consequence, Jones failed to establish the 
causation link between the charges and Flagship’s actions, 
that absent retaliation her employment would have continued.”

We conclude that Jones did meet her prima facie burden of 
showing that “hut for” Tier fillrig Qf charges with the EEOC she 
would not have been suspended and terminated of her emplov- 
ment. We conclude, however, under the McDonnell—Burdine 
allocation of burdens and order of presentation of proof in a Title 
VII case, that Flagship presented evidence sufficient to rebut Jones’ 
prima facie case and to support the district court’s conclusion that 
Flagship did not engage in unlawful retaliation." *

Jones v. Flagship International 7131

"T he Supreme Court has delineated the burden on a Title VII defendant in 
rebutting the plaintiff’s prima facie case, and the plaintiffs subsequent and ulti­
mate burden.

The burden that shifts to the defendant, therefore, is to rebut the pre­
sumption of discrimination by producing evidence that the plaintiff 
was rejected, or someone else was preferred, for a legitimate, nondis- 
criminatory reason. The defendant need not persuade the court that it 
was actually motivated by the proffered reasons. See Sweeney, supra, at 
25, 58 L.Ed.2d 216, 99 S.Ct. 295. It is sufficient if the defendant’s evi­
dence raises a genuine issue of fact as to whether it discriminated 
against the plaintiff. To accomplish this, the defendant must clearly set 
forth, through the introduction of admissible evidence, the reasons for 
the plaintiffs rejection. The explanation provided must be legally suf­
ficient to justify a judgment for the defendant. If the defendant carries 
this burden of production, the presumption raised by the prima facie 
case is rebutted, and the factual inquiry proceeds to a new level of spec­
ificity. Placing this burden of production on the defendant thus serves 
simultaneously to meet the plaintiffs prima facie case by presenting a 
legitimate reason for the action and to frame the factual issue with suf­
ficient clarity so that the plaintiff will have a full and fair opportunity 
to demonstrate pretext. The sufficiency of the defendant’s evidence 
should be evaluated by the extent to which it fulfills these functions.

The plaintiff retains the burden of persuasion. She now must have 
the opportunity to demonstrate that the proffered reason was not the 
true reason for the employment decision. This burden now merges 
with the ultimate burden of persuading the court that she has been the 
victim of intentional discrimination. She may succeed in this either 
directly by persuading the court that a discriminatory reason more 
likely motivated the employer or indirectly by showing that the 
employer’s proffered explanation is unworthy of credence. See McDon­
nell Douglas, 411 U.S. at 808-805, 36 L.Ed.2d 668, 92 S.Ct. 1817.

Burdine, 450 U.S. at 254-56 (footnotes omitted).



21 a

Jones and the EEOC maintain that Flagship’s suspension and 
subsequent termination of Jones’ employment were based solely on 
Jones’ action in filing discrimination charges with the EEOC. Jones 
and the EEOC point out that, since Flagship was unaware of any 
communication beiween Jones and Love at the time of Jones’ sus­
pension, the district court’s conclusion, viz., that Flagship had 
“reasonable grounds, or in good faith thought it did . . .  for sus­
pending and later terminating Jones,” is erroneous. While it is true 
that the court stated that Jones’ suspension and termination were 
adverse employment actions, a review of the court’s ruling reveals 
that it treated Flagship’s conduct on the whole as a single adverse 
action. However, even if Jones’ suspension is viewed as a separate, 
single adverse employment decision, as Jones and the EEOC urge, 
it does not follow that Flagship’s action constituted unlawful retali­
ation.

The district court found that Jones was suspended “to avoid the 
conflict of interest inherent in Jones’ representation of Flagship 
before the agency to whom she had made a complaint.”12 The 
EEOC contends that, notwithstanding the conflict of interest cre­
ated, § 704(a) applies with equal force in protecting an employee 
charged with EEO responsibilities from retaliatory conduct.

We are well aware that the provisions of Title VII must be con­
strued broadly in order to give effect to Congress’ intent in elimi­
nating invidious employment practices. Sec Pettway v. American 
Cast Iron Pipe Co., 411 F.2d 998, 1004-07 (5th Cir. 1969). More­
over, since the enforcement of Title VII rights necessarily depends 
on the ability of individuals to present their grievances without the 
threat of retaliatory conduct by their employers, rigid enforcement 
of § 704(a) is required. Pettway, 422 F.2d at 1107. EEOC v, Kallir, 
Phillips, Ross, 401 F. Supp. 66, 72 (S.D.N.Y. 1975), affd, 559 F.2d 
1203 (2d Cir.), cert, denied, 434 U.S. 920 (1977).

7132 Jones v. Flagship International

12Jones contends that because her duties were primarily “conciliatory” and 
“non-adversarial,” no actual conflict of interest was created by her actions. 
Although Jones’ duty may have been to counsel discrimination claimants and 
to conciliate discriminate claims in a non-adversarial manner, it was her posi­
tion as a representative of the company in EEO matters, not her methods, 
which created the conflict of interest.



22a

[HI In assuming her position as Flagship’s Manager of EEO Pro­
grams, Jones neither abandoned her right to be free from discrimi­
natory practices nor excluded herself from the protections of 
§ 704(a). In filing a charge against Flagship on the ground that the 
company had discriminated against her in terms of pay and sexual 
harassment, Jones was exercising a protected right under Title VII, 
as the district court found. Pettway, supra.

[12J However, we are also well aware that, although eliminating 
discriminatory employment practices is the goal of Title VII, coop­
eration and voluntary compliance are the preferred methods of 
promoting that goal. See generally, Alexander v. Gardncr-Denver 
Co., 415 U.S. 36, 44 (1974). An employer has a strong interest in 
having an opportunity to settlecqual employment disputes through, 
conference, conciliation and persuasion before an aggrieved 
employee resorts to a lawsuit. In St. John v. Employment Develop­
ment Dept., 642 F.2d 273 (9th Cir. 1981), the court noted that a 
conflict of interest created by an EEO employee’s filing of charges 
with the EEOC could justify adverse employer action: “It may be 
that the fundamental policies of Title VII require that voluntary 
compliance be encouraged by allowing an employer's transfer of a 
complaining employee to a position without EEOC contact, but 
otherwise equivalent.’’ Id. at 275.13

In the instant case Vygantas, the Flagship officer responsible for 
Jones' suspension and discharge, testified that he suspended Jones 
with pay pending reassignment and an investigation of her claims. 
The EEOC notes that, unlike the situation contemplated in St. 
John, Jones was never reassigned and was barred from Flagship’s 
premises and educational seminar functions. Jones and the EEOC 
contend that Flagship’s conduct following Jones’ claims againsi the

Jones v. Flagship International 7133

13The Ninth Circuit grounded this possible exception to § 704(a) on the 
“business necessity” doctrine of Griggs v. Duke Power Co., 401 U.S. 424, 431 
(1971). In Griggs the Supreme Court held that employment practices which are 
discriminatory in operation are not prohibited if the employer shows they are 
related to job performance, i.e. that they are required by “business necessity.” 
Id. See Prewitt v. United States Postal Service, 662 F.2d 292, 306 (5th Cir. 
1981). The Tenth Circuit has also held that business necessity may justify retal­
iation. See Barela v. United Nuclear Corp., 462 F.2d 149, 152, n.5 (10th Cir. 
1972) (apparently accepting business necessity as an appropriate defense in 
principle, but holding that it had not been established).



7134 Jones v. Flagship International

company. indicate that Flagship’s sole intention was to fire Jones 
tor exercising her rights under Title VII.

f 13] We need not address ourselves to the extent to which an 
employer may act in relieving an employee of her EEO duties with­
out running afoul of § 704(a), or to whether Flagship’s response, if 
based on Jones' filing of charges alone, was sufficiently excessive to 
constitute unlawful retaliation. The record establishes that Jones’ 
filing of charges with the EEOC was not the sole reason for Flag­
ship’s action at the time of suspension. Vygantas testified that he 
suspended Jones with pay not only for the conflict of interest stem­
ming from her position as an EEO officer, but for Jones’ plan to ini­
tiate a class action suit against the company.14

14Vygantas’ testimony reads in pertinent part:

[Direct Examination]

Q. Now, did there come to be a time where you made the determi­
nation to send Mrs. Jones home?

A. Yes.

Q. Tell me how you came to that determination.

A. if 1 recall the events correctly, on the 1 !th of February 1 was 
informed that a charge had been filed and identified what the charge 
was. I invited her to come up to my office, and I raised some questions 
about in view of the fact that she had sought a solution of her claim 
with the agency that she was representing Sky Chefs, 1 felt that that was 
a conflict of interest and similarly saying to her, Seems to me you have 
a conflict of interest on this situation. She at my perception understood 
that. It could be that with respect to her issues she would have a con­
flict of interest. I also had been told bv Mr Metze while the charge was 
being filed he had a call from her attorney, Mr. Walker, who said 1 ’d like 
to settle this before we file a class action suit in view o f  the fact o f a class 
action suit that is beyond just her representation.

* % * *
[Cross-Examination]

Q. Let me be sure of your position on the conflict that the charge 
presented to you. Did you testify that you saw a basic conflict there?

# # #
A. There was a conflict in the sense that she was responsible to rep­

resent to the EEO commission and other third parties, governmental 
parties, Sky Chef and she had sought—she had sought an answer—1



24a

Although we realize that the district court did not identify in its 
ruling Jones’ conduct in this regard as a separate basis to iustifv 
Flagship’s action, a review of the entire record leaves no doubt that 
the court considered the evidence of Jones’ solicitation of Pat Love 
against the background of Jones’ attempt to file a class action suit. 
Flagship’s belief of Jones’ plan to file a class action claim on the 
date of her suspension, and its subsequent belief of Jones’ attempt 
to solicit others, including Pat Love, to sue or to join Jones in suing 
the company, will be discussed jointly.

Jones and the EEOC argue that the district court never found 
that Jones actually solicited Love, but merely that Jones “gave aid 
and comfort, if not outright encouragement, to Pat Love to pursue 
her grievances against the company at a time when Jones’ duty was 
to discourage and defend such claims . . . . ’’ Jones and the EEOC 
maintain that a company’s EEO officer has no duty to discourage 
discrimination claims, and, moreover, is expected to give aggrieved 
employees “aid and comfort” as a means of conciliating discrimi­
nation disputes. While we do not take issue with Jones’ conciliatory 
role, we view this contention as one taken out of context. It is clear 
from the lower court’s decision, when read on the whole, that the 
court was referring to solicitation in the form of aid and comfort 
and encouragement. We will not quibble with the district court’s 
choice of words where the meaning is apparent.

Jones v . Flagship International 7135

don’t know the proper legal terms for it with that very commission. So 
therefore, it was my judgment that she could not effectively represent 
the company, and in addition 1 was told by Mr. Metze a day or two 
before, even three of four days before—

Q. Was it two days before or three or four?

A. I cannot exactly tell you, but it was before. It was before the 11th, 
that he had a telephone conversation with her attorney who said he 
would like to settle this before this develops into a class action suit.

Q. Let me ask you this then. 1 thought you testified on direct that 
you sent her home because of the basic conflict that the charge repre­
sented. Arc you saying there were other reasons why you sent her home?

A. Lcl. there were two reasons. ..  .

(emphasis added).



2 5 a

7136 Jones v. Flagship International

The EEOC next argues that Jones’ “aid and comfort” of Love 
constituted lawful opposition to a “practice made an unlawful 
employment practice by [§ 704(a)].”15 42 U.S.C, § 2000e-3(a). We 
agree that employee opposition to discriminatory employment 
practices directed against a fellow employee may constitute activity 
protected under § 704(a). In Berg v. LaCrosse Cooler Co., 612 F.2d 
1041 (7th C’ir. 1980) the court held that it is a violation of § 704(a) 
to fire an employee because he opposed discrimination against a 
fellow employee, even if he was mistaken and there was no discrim­
ination. See also, Rucker v. Higher Educational Aids Bd., 669 F.2d 
1179, 1182 (7th Cir. 1982) (holding that it is unlawful to retaliate 
against an individual who opposed discrimination against a co­
worker).

114] However, unlike the employees in Berg and Rucker, Jones 
was an employee charged with representing her company on equal 
employment matters. As the EEOC concedes, some conduct, even 
if in sincere opposition to unlawful employment practices under 
Title VII, may be so disruptive or inappropriate as to fall outside 
the protections of § 704(a). “There may arise instances where the 
employee’s conduct in protest of an unlawful employment practice 
so interferes with the performance of his job that it renders him 
ineffective in the position for which he was employed. In such a 
case, his conduct, or form of opposition, is not covered by 
§ 704(a).” Rosser v. Laborers’ International Union, Local 438, 616 
F.2d 221,223 (5th Cir.), cert, denied, 449 U.S. 886 (1980). In deter­
mining whether particular conduct constitutes activity protected 
under § 704(a), this circuit has required a balancing test: “[T]he 
courts have required that the employee conduct be reasonable in 
light of the circumstances, and have held that ‘the employer’s right 
to run his business must be balanced against the rights of the 
employee to express his grievances and promote his own welfare’.” 
Jeffries v. Harris County Community Action Assoc. 615 F.2d 1025,
1036 (5th Cir. 1980) (quoting Hochstadt v. Worcester Foundation 

for Experimental Biology, 545 F.2d 222, 223 (1st Cir. 1976)). 
Accord, Payne v. McLemore’s Wholesale & Retail Stores, 654 F.2d 
1130 (5th Cir. 1981), cert, denied. 455 U.S. 1000 (1982).

The EEOC maintains that Jones’ dealings with Love did not 
harm Flagship. We disagree. As Flagship’s Manager of EEO Pro­

15According to Jones, Love had also been propositioned by a male manager.



2 6 a

grams, Jones necessarily played a crucial role in equal employment 
matters involving the company. Jones knew of Flagship’s position 
in discrimination cases filed against the company and acted as its 
representative before administrative agencies, including the EEOC. 
The need to settle discrimination claims through the process of 
cooperation and conciliation necessarily required Flagship to 
repose great confidence in its EEO personnel, in general, and Jones, 
in particular.

|15J Jones’ action in (1) filing a discrimination suit against Flag­
ship, (2) suggesting that a class action suit would follow, and (3) 
soliciting or inviting others to sue or join in a suit against the com­
pany not only rendered Jones ineffective in the position for which 
she was employed, but critically harmed Flagship’s posture in the 
defense of discrimination suits brought against the company. 
Moreover, Jones’ right to express her grievances and promote her 
own welfare did not depend on others joining in her suit. We con­
clude, therefore, that under the aforementioned “balancing test” 
Jones’ conduct in soliciting or inviting others to join in her discrim­
ination claim,16 coupled with her expressed intent to serve at the' 
vanguard of a class action suit, was not protected under § 704(a) 
and provided Flagship with a nondiscriminatory basis upon which 
,to suspend and discharge Jones.

116] Flagship, having met its burden of production by providing 
a legitimate, nondiscriminatory basis for its action, rebutted Jones’ 
prima facie case and shifted the burden of persuasion to Jones to 
show that a discriminatory reason more likely motivated Flagship, 
or that Flagship’s “proffered explanation is unworthy of credence.” 
Burdine, 450 U.S. at 256. McMillan, 710 F.2d at 1116. The EEOC 
contends that the district court failed to assess whether the compa­
ny’s reasons were pretexts for discrimination. Specifically, the

________________Jones v. Flagship International 7137

16Jones and the EEOC argue that Love's testimony cannot support the con­
clusion that Jones solicited or encouraged Love to sue or join in suing Flagship. 
Although Love’s testimony is not the model of clarity, it is apparent that her 
understanding at the time of her discussion with Jones was that the latter had 
asked her to “join” in Jones’ claim. The court below could have properly deter­
mined that Love’s understanding of Jones’ request was communicated to 
Metze, who, in turn communicated this understanding to Vygantas. Jones’ sub­
sequent “explanation” to Love that Jones only wanted Love to testify as to her 
knowledge of Jones’ claims came too late.



2 7 a

7138 Jones v. Flagship International

EEOC asserts that Flagship’s investigation was conducted to 
uncover inculpatory evidence upon which to discharge Jones. 
According to the EEOC, the district court’s finding that two of Flag­
ship’s proffered reasons—Jones’ solicitation of Dorothy Smith and 
Jones’ unauthorized use of Metze's personnel file—were not sup­
ported by the record, and Love’s “confused” testimony, demon­
strate the absence of any non-retaliatory motive.

117! The EEOC’s point misses the mark. As discussed above, the 
court below was entitled to credit Love’s testimony as supporting 
Flagship’s position that Jones had engaged in solicitation, which, if 
true, would have jeopardized the company’s posture with respect to 
defending discrimination claims. Moreover; Flagship need not 
have been correct in its basis for suspending and discharging Jones 
to show that its actions were motivated for non-retaliatory reasons. 
Sec, e.g., De Anda v. St. Joseph's Hospital, 671 F.2d 850, 854, n.6 
(5th Cir. 1982) (“Whether St. Joseph was wrong in its determina­
tion that she should have checked is irrelevant, as long as its belief, 
though erroneous, was the basis for the termination”); Dickerson v. 
Metropolitan Dade County, 659 F.2d 574, 581 (5th Cir. 1981)(Unit 
B) (“Even if DERM were wrong in its evaluation of the seriousness 
of the injury and the justifiability of the absences, it did not violate 
Title VII if it acted on the reasonable belief about the absences”). 
Accord Jeffries, supra. It is sufficient, as the district court held, that 
“Flagship had reasonable grounds, or in good faith though it did,” 
for its suspension and termination of Jones’ employment.17

[181 We hold that, although Jones did establish a prima facie case 
of unlawful retaliation under § 704(a), i.e„ that but for her filing of 
charges with the EEOC she would not have been suspended and 
fired, Flagship presented sufficient, credible evidence to show that 
its actions were motivated by non-retaliatory reasons, and there­
fore, to rebut Jones’ case. We hold, furthermore, that Jones failed 
to show that Flagship’s reasons were a pretext for discrimination. 
Accordingly, we affirm the district court’s ruling that Jones failed to 
establish that Flagship engaged in unlawful retaliation under 
§ 704(a).

17Jones and, to a lesser extent, the EEOC assert that the district court created, 
in effect, a “good faith” exception to § 704(a) in its ruling. This argument is also 
taken out of context. In using the term “good faith,” the court merely denoted 
that Flagship had a reasonable belief that Jones had solicited Love.



2 8 a

IV. Jones’ Additional Claims

[19] Jones complains that the district court abused its discretion 
in denying her leave to amend her complaint 15 months after com­
mencement of this case. Such a ruling is within the sound discre­
tion of the trial court and, given the late date of Jones' motion, was 
not inappropriate.

________________ Jones v . Flagship International___________ 7139

CONCLUSION

In sum, we conclude that Jones failed to show that the sexually 
harassing conduct complained of resulted in a tangible job detri­
ment or affected a term, condition or privilege of employment to a 
degree sufficient to establish a sexually abusive or hostile work 
environment. We hold, therefore, that Jones failed to establish a 
prima facie case of sexual harassment under Title VII and affirm 
the district court’s ruling in this respect. We also conclude that 
Jones failed to demonstrate (1) that she earned less than male 
employees for substantially equal work; (2) that Flagship intention­
ally discriminated against her in terms of pay; and (3) that Flagship 
either rejected her application for another position, or failed to 
advise her of an opening for which she was qualified. Accordingly, 
we hold and affirm the district court's ruling that Jones failed to 
establish disparate treatment in terms of pay and promotion under 
Title VII and the Equal Pay Act.

Finally, we conclude that, although Jones did establish a prima 
facie case of unlawful retaliation under § 704(a) of Title VII, under 
the McDonnell-Burdine allocation of burdens and order of presen­
tation of proof. Flagship sufficiently rebutted Jones’ case by adduc­
ing evidence that is suspended and fired Jones for non-retaliatory 
reasons. Moreover, we find that Jones did not demonstrate that the 
reasons proffered by Flagship were pretexts for discrimination. We, 
therefore, hold that Jones failed to show that Flagship engaged in 
unlawful retaliation under Title VII, and affirm the district court’s 
ruling in this regard.

AFFIRMED.



2 9 a

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 85-1124

B. T. JONES,
Plaintiff-Appellant,

versus
FLAGSHIP INTERNATIONAL, A DELAWARE 
CORPORATION D/B/A SKY CHEFS,

Defendant-Appellee.

Appeal from the United States District Court 
for the Northern District of Texas

ON PETITION FOR REHEARING 
(August 21, 1986)

Before GEE, RUBIN, and GARZA, Circuit 
Judges.
PER CURIAM;

IT IS ORDERED that the petition for 
rehearing filed in the above entitled and 
numbered cause be and the same is hereby



denied.
ENTERED FOR THE COURT:
s /  _______________________
United States Circuit Judge

30a



31a
IN THE UNITED STATES DISTRICT 

FOR THE NORTHERN DISTRICT OF TEXAS 
DALLAS DIVISION

B .  T .  JO NES, )
)
)Plaintiff, )
)CIVIL ACTION NO. 

VS. )
5 CA 3-82-1611-G 

FLAGSHIP INTERNATIONAL, ) 
a Delaware Corporation, ) 
d/b/a SKY CHEFS, )

)Defendant. )
MEMORANDUM OF DECISION

Introduction
1. This is a race and sex 

discrimination case brought by Benita J. 
Jones ("Jones") under 42 U.S.C. §2000e et 
seq. ("Title VII"), 29 U.S.C. §206(d) 
("the Equal Pay Act"), and 42 U.S.C. §1981 
("§1981"). After bifurcation of liability 
and remedy issues, Fed. R. Civ. P. 42(b), 
the liability phase of the case was tried 
to the court on March 12-15, 1984, and the



3 2 a

court makes the following findings and 
conclusions in connection therewith.

Factual Background
2. Jones, a black female citizen of 

the United States and resident of Dallas, 
Texas, was employed by Flagship at its 
headquarters office in Arlington, Texas 
from July 30, 1979 to April 15, 1982.

3. Flagship is a Delaware 
corporation doing business in the Northern 
District of Texas.

4. At all times material to this 
action, Flagship was engaged in an 
industry affecting commerce and employed 
15 or more employees each working day in 
each of 2 0 or more calendar weeks in the 
then current or preceding calendar year. 
Flagship is thus an employer within the 
meaning of Title VII and the Equal Pay 
Act.

5. The court has jurisdiction over



33a
the subject matter and the parties.

6. After her admission to the 
Arkansas bar in 1976, Jones worked in the 
city attorney's office in Little Rock and 
as an attorney for the Arkansas Department 
of Aging before her employment at Flagship 
as manager of Equal Employment Opportunity 
("EEO") programs.

7. As manager of EEO programs, 
Jones8 principal duties were to prepare an 
affirmative action plan and to investigate 
charges of employment discrimination 
brought against the company. She also 
represented the company before various 
administrative agencies, state and 
federal, to defend or conciliate such 
charges, but she had no responsibility to 
litigate them in court.

8. Jones * initial salary was 
$21,000. About November 11, 1979, her 
salary was increased to $22,050 annually



34a
and, following a change of job grades, it 
was increased again on June 8, 1980 to 
$23,153 per year. On August 29, 1980, 
Jones received what was to be her last pay 
increase - to $27,000 - before leaving 
Flagship's employ.
The Title VII Claims - Burden of Proof

9. In a suit arising under Title 
VII, although the elements of each claim 
may differ, the ultimate burden rests upon 
the plaintiff to prove unlawful 
discrimination by a preponderance of the 
evidence; that burden of persuasion never 
shifts to the defendant. Texas Department 
of Community Affairs v. Burdine, 450 U.S. 
248, 253-55 (1981); Board of Trustees of 
Keene State College v. Sweeney, 439 U.S. 
24, 25 (1978).

10. If the plaintiff makes out a 
prima facie case under Title VII, the 
defendant's burden is not then one of



35a
proof, but rather of coming forward with 
admissible evidence that the employment 
actions complained of were taken for 
legitimate, nondiscriminatory reasons. 
Burdine. 450 U.S. at 254-55.

11. If the defendant carries this 
burden of production, the presumption of 
discrimination raised by the prima facie 
case is rebutted; the defendant need not 
persuade the court that it was actually 
motivated by the reasons advanced.
Burdine, 450 U.S. at 254.

12. The plaintiff still has the
opportunity to demonstrate that the
reasons advanced by defendant are mere
pretext and do not represent the true
motivation. Burdine. 450 U.S . at 256;
McDonnell Douglas Corporation v. Green, 
411 U.S. 792, 804 (1973) . This burden
merges with the plaintiff1s ultimate 
burden of persuading the court that she



36a
has been the victim of discrimination, 
either by demonstrating directly that a 
discriminatory reason was the likely 
motivation or indirectly by showing the 
legitimate, nondiscriminatory reasons 
advanced by the employer are not credible 
(i.e., they are probably pretextual). 
Burdine. 450 U.S. at 256. See also
Elliott v. Group Medical & Surgical 
Service, 714 F.2d 556, 564 n. 9 (5th Cir.
1983), cert, denied. ___ U.S. ___, 104
S.Ct. 2658 (1984).

13. Jones' claims under Title VII 
allege "disparate treatment": i.e., she
claims that Flagship treated her less 
favorably than others because of her sex 
and race. The factual inquiry in a 
disparate treatment case under Title VII 
is "whether the defendant intentionally 
discriminated against the plaintiff." In 
other words, is "the employer



37a
treating "some people less favorably than 
others because of their race, color, 
religion, sex, or national origin.'" 
United States Postal Service Board of
Governors v. Aikens, ___ U.S. ___, 103
S.Ct. 1478, 1482 (1983).

14. Jones alleges that she was 
discriminated against on racial or sexual 
grounds by means of (1) sexual harassment,
(2) retaliation for filing an EEOC charge,
(3) unequal pay, and (4) failure to 
promote. Although the precise elements of 
a plaintiff's prima facie case differ 
depending upon the claim, the essential 
showing which Jones must make is that she 
was treated differently from similarly 
situated individuals, and that a causal 
relationship existed between her sex (or 
race) and the adverse employment decision. 
Furnco Construction Corporation v. Waters, 
438 U.S. 567, 575-77 (1978).



38a
15. Jones failed to make out even a 

prima facie case of discrimination on 
grounds of race. She was hired at 
Flagship by Jarred Metze, a black male who 
had performed EEO duties in the early 
1970's. Many of Jones's complaints of 
discrimination were directed at the 
conduct of Metze. As manager of EEO 
programs, Jones succeeded Catherine Sharp, 
another black female. There is not the 
slightest hint that race was ever a factor 
in any of Flagship's employment decisions 
regarding Jones. Although Jones placed 
great stress on the small number of blacks 
and females in upper management at 
Flagship, that evidence was inconclusive 
without a demonstration that those numbers 
were disproportionate to the pool of 
available qualified personnel from which 
such management was drawn. See, e.g.,
Lindsey v. Southwestern Bell Telephone



39a
Company, 546 F.2d 1123, 1124 (5th cir. 
1977); Hill v. K-Mart Corporation, 699 
F.2d 776, 780-81 (5th Cir. 1983).

16. Since most of Jones’ complaints 
are grounded on sexual discrimination, and 
since the elements of a prima facie case 
vary depending on the means by which such 
discrimination was allegedly practiced, 
these claims, and the evidence pertaining 
to them, will be discussed separately in 
the following sections.

Sexual Harassment
17. According to Henson v. city of 

Dundee, 682 F.2d 897 (11th Cir. 1982), a 
plaintiff may make out a claim of sexual 
harassment under Title VII by showing 
either a hostile work environment or a 
quid pro quo.

1.8. To show a hostile work 
environment, Jones has to prove the 
following elements:



40a
(a) that she belonged to a 

protected group;
(b) that she was subject to

unwelcome sexual
harassment;

(c) that the harassment
complained of was based 
upon sex;

(d) that the harassment
complained of affected a 
"term, condition, or 
privilege" of employment; 
and

(e) respondeat superior, i.e. , 
that Flagship knew or 
should have known of the 
hostile work environment 
created by Jones*
supervisor or co-workers 
but failed to take prompt 
remedial action.

Id. at 903-05.
19. Jones testified at trial about 

three discrete incidents which she 
contends to be evidence of a hostile work 
environment. The first occurred only six 
weeks after she joined Flagship when she 
and her supervisor, Jarred Metze, were
returning from a business trip to Detroit.



4 1 a

While Metze was driving her home from the 
Dallas airport; Jones was complaining 
about the security of their lodgings in 
Chicago. Metze replied that his wife did 
not yet know he was back in town and that 
he would take Jones to a reputable hotel. 
When Jones asked what he meant, he said 
she needed "the comfort of a man." Jones 
was so distressed by this occurrence that 
she left for Little Rock the next day. 
She stayed there two weeks and returned 
only upon Metze!s promise that it wouldn't 
happen again.

20. The second incident occurred 
several months later when Jones and Metze 
were traveling together to Denver and San 
Francisco. Metze introduced her to a male 
friend and later told her that she was 
"off the hook" because of his friend's 
interest in her, to which Jones responded 
that she was off limits to Metze in any



42a
event.

21. The third incident, which was
alleged in detail in £>7(e) of plaintiff's 
complaint, occurred during the
headquarters office Christmas party in 
December, 1981. On that occasion, figures 
of mermaids with bare breasts, which had 
been created by Kurt Elmer, the company's 
executive chef, were used as table 
decorations. As soon as she saw them, 
Jones told Metze that these statutes would 
create problems for female employees. To 
avoid upsetting Elmer during the party, 
Metze proposed that Jones write Elmer a 
memo. Jones later wrote such a memo, 
expressing the distaste of female 
employees for the figures, and received in 
reply a short polemic from an obviously 
unrepentant Elmer.

22. In addition to these specific 
incidents, Jones testified generally that



43a
Metze often leered at her in his office 
after she finished presentations, that he 
frequently called her at home, and that he 
tried to make her think she was obliged to 
spend time with him after hours.

23. As described in Henson. 682 F.2d 
at 903, the Equal Employment Opportunity 
Commission ("EEOC") has issued regulations 
defining sexual harassment as [u] nwelcome 
sexual advances, requests for sexual 
favors, and other verbal or physical 
conduct of a sexual nature . . . when . .
. such conduct has the purpose or effect 
of unreasonably interfering with an 
individual's work performance or creating 
an intimidating, hostile, or offensive 
working environment. *' 29 C.F.R. 
§1604.11(a) (1981).

24. The court is of the opinion 
that, under Henson and the relevant EEOC 
regulations quoted above, Jones failed to



44a
establish a hostile work environment. 
"For sexual harassment to state a claim 
under Title VII, it must be sufficiently 
pervasive so as to alter the conditions of 
employment and create an abusive working 
environment." Henson.682 F.2d at 904. 
The sporadic incidents recounted by Jones, 
occurring at three different times over 
the course of Jones' two and one-half 
years' employment, hardly qualify as 
pervasive. Indeed, one of them ■—  the 
mermaid incident —  may not even have a 
sexual meaning at all. It may just as 
well be a disagreement over artistic 
taste. Jones indicated that was her 
personal opinion in a subsequent 
handwritten note to Elmer (PX 3 5 and DX 
28) . At all events, Jones never
demonstrated that she was adversely 
affected in her employment by a hostile 
work environment, i.e., that it altered



45a
the conditions of her employment. To the 
contrary, Flagship offered evidence at 
trial that Jones admitted, during its 
investigation of her allegations of sexual 
harassment, that she had not been 
adversely affected. This evidence was 
never contradicted and the court finds it 
persuasive.

Quid Pro Quo
25. Since an employer may not 

require sexual consideration from an 
employee as a quid pro quo for job 
benefits, Henson. 682 F.2d at 908, a Title 
VII plaintiff may also make out a claim of 
sexual harassment by showing (a) that she 
belonged to a protected group; (b) that 
she was subject to unwelcome sexual 
harassment; (c) that the harassment 
complained of was based upon sex; and (d) 
that the employee's reaction to the 
harassment complained of affected tangible



46a
aspects of the employee's compensation, 
terms, conditions, or privileges of 
employment. Id. at 909.

26. The proof in support of these 
elements, already discussed under the 
hostile work environment theory, is 
similarly deficient to support a quid pro 
quo claim. Jones failed to show that the 
incidents of which she complained affected 
tangible aspects of her job in any way. 
In fact, she admitted to the American 
Airlines' Security Department 
investigators that they did not. For 
these reasons, Jones has failed to 
establish sexual harassment under Title 
VII on a quid pro quo theory.

Retaliation
27. A plaintiff establishes a prima 

facie case of retaliation by showing (a) 
that she engaged in an activity protected 
by Title VII; (b) that an adverse



47a
employment action occurred; and (c) that 
there was a causal connection between the 
participation in the protected activity 
and the adverse employment decision. Irby 
v. Sullivan, 737 F.2d 1418, 1426 (5th Cir. 
1984) .

28. Jones was clearly engaging in 
protected activity when she filed a charge 
of discrimination with the EEOC. Her 
subsequent suspension and termination were 
adverse employment actions. The question 
for decision, then, is whether the filing 
of discrimination charges caused Jones5 
suspension and later discharge.

29. To prove that causation element 
in this circuit, the alleged discriminatee 
in a Title VII case must show that she 
would not have been discharged absent the 
forbidden motive —  i.e., retaliation 
against her protected act. Unless Jones 
establishes that without this retaliation



48a
her employment would have continued, she 
is not entitled to recover. Jack v. 
Texaco Research Center, 743 F.2d 1129, 
1130 (5th Cir. 1984).

30. Flagship asserts that Jones was 
suspended with pay to avoid the conflict 
of interest inherent in Jones' 
representation of Flagship before the 
agency to whom she had made a complaint. 
It further asserts that she was later 
terminated for violating company rules 
when she removed a confidential personnel 
file from company premises and when she 
breached her duty of undivided loyalty to 
Flagship by soliciting two female 
employees to sue the company for 
employment discrimination.

31. The court is not convinced that 
Jones breached company policy when she 
took Metze's personnel file home. Any 
such company policy was not clearly



49a
stated, at least as it pertained to Jones. 
On the other hand, the evidence did 
establish that Jones gave aid and comfort, 
if not outright encouragement, to Pat Love 
to pursue her grievances against the 
company, at a time when Jones' duty was to 
discourage and defend such claims (the 
evidence failed to establish, however, 
that Jones solicited or encouraged Dorothy 
Smith to sue Flagship) . The court is 
persuaded, therefore, that Flagship had 
reasonable grounds, or in good faith 
thought it did, see Dickerson v. 
Metropolitan Dade County, 659 F. 2d 574, 
581 (5th Cir. 1981); DeAnda v. St. Joseph 
Hospital, 671 F.2d 850, 854 n. 6 (5th Cir. 
1982) for suspending and later terminating 
Jones. Thus, Jones has failed to show the 
causative link between her charges and 
termination, i.e., that absent retaliation 
her employment would have continued.



50a
Failure to Promote

32. To establish prima facie case of 
disparate treatment in promotion, a 
plaintiff must show: (a) membership in a 
protected group; (b) an application for an 
open job for which he or she was 
qualified; (c) rejection; and (d) action 
by the employer in promoting or hiring a 
nonminority for the job or in continuing 
to seek nonminority applicants for that 
job. Uviedo v. Steves Sash & Door 
Company, 738 F.2d 1425, 1428 (5th Cir. 
1984) .

33. Jones did not present evidence 
that she ever applied for a specific job 
opening for which she was qualified nor 
that Flagship hired a nonminority for such 
opening.

34. Moreover, the scope of Jones' 
administrative charges, as amended, did 
not fairly encompass a claim of failure to



51a
promote. See Sanchez v. Standard Brands, 
Inc., 431 F.2d 455, 465-67 (5th Cir. 1970) 
(Title VII clearly contemplates that no 
issue will be the subject of a civil 
action until the EEOC has first had the 
opportunity to attempt to obtain voluntary 
compliance). See also Vuyanich v. 
Republic National Bank of Dallas, 723 F.2d 
1195, 1199 (5th Cir. 1984) (plaintiff's 
claims should be limited to those 
contained in EEOC complaint.)

Equal Pay Act Claim
35. Jones rests her claim that she 

was the victim of discrimination in pay on 
both the Equal Pay Act and Title VII. The 
court will therefore discuss them 
separately in that sequence.

36. In a suit arising under the 
Equal Pay Act, a plaintiff bears the 
burden of proving by a preponderance of 
the evidence that (1) plaintiff was



52a
employed by an employer subject to the 
Act; (2) plaintiff performed work in a 
position requiring equal skill, effort and 
responsibility under similar working 
conditions; and (3) plaintiff was paid 
less than members of the opposite sex 
performing such work employed in the same 
establishment. Corning Glass Works v. 
Brennan, 417 U.S. 188, 195 (1974).

37. To establish "equal work," the
plaintiff need not prove that the duties 
performed are identical, but merely that 
the "skill, effort and responsibility" 
required in the performance of the jobs is 
"substantially equal." Pearce v. Wichita 
County, City of Wichita Falls, Texas, 
Hospital Board, 590 F.2d 128, 133 (5 th
Cir. 1979).

38. The employees whose pay is the 
subject of comparison may hold jobs in 
succession as well as simultaneously.



53a
Pearce, 590 F.2d at 133; Hodgson v. 
Behrens Drug Co., 475 F.2d 1041, 1049 (5th 
Cir.), cert, denied. 414 U.S. 822 (1973).

39. Jones compared her pay and job 
with those of three male employees; Jared 
Metze, Ken Diebold, and Jim Lawther. 
Assuming that Metze's job when he was 
Manager of Personnel Relations was 
substantially similar to Jones', i.e. , 
that it called for substantially equal 
skill, effort and responsibility, Jones 
failed to show that she was paid less than 
Metze. A comparison of the employee 
record cards of Metze and Jones 
demonstrates that from his hire in April 
1972 until July 1974, when Metze left his 
position as Manager of Personnel Relations 
to become Director of Public Affairs, he 
earned less per week than the $403.85 
salary at which Jones started in 1979. At 
his hire Metze earned $271.16 per week and



54a
was earning $380.80 when promoted in July 
1974. Accordingly, the court find that 
Jones failed to establish that she was 
paid less than Metze for equal work.

40. Diebold testified that after two 
years with the company, he became Manager 
of Employee Relations in 1976, a position 
he held until 1981. Diebold did not 
testify concerning his salary level in 
that capacity, however, and Jones did not 
introduce his employee record card at 
trial. As a result, even if it is assumed 
that the jobs of Jones and Diebold were 
substantially similar, Jones failed to 
prove the third element of an Equal Pay 
Act claim as set forth in Corning Glass 
Works v. Brennan, 417 U.S. at 195.

41. Lawther was hired as Specialist 
in Employee Relations in 1979, three 
months before Jones joined Flagship. 
Lawther started as a grade 35 at $403.85



55a
per week, the same salary at which Jones 
started as a grade 37. Lawther was a high 
school teacher for 12 years prior to his 
hire.

42. From 1979 on, Lawther’s salary 
and Jones' moved slowly upward together 
until Lawther jumped ahead by $2 0 a week 
in December of 1980, upon his promotion to 
Manager of Union Contract Administration, 
increasing his job grade to a 65, while 
that of Jones remained at grade 66.

43. Lawther was involved in the 
collective bargaining process and 
affirmative action plans at 46 locations, 
where he could put to work the experience 
gained as his teachers' union 
representative for two years. Neither 
Lawther nor Jones had any supervisory 
responsibilities during the period in 
question.

44. The proof did not show that the



56a
second and third elements of an Equal Pay- 
Act claim vis-a-vis Lawther were
satisfied. The court finds that the jobs 
of Jones and Lawther were not shown to 
"require substantially equal skill, effort 
and responsibility." Moreover, until 
December of 1980, Lawther and Jones 
received approximately the same pay. When 
Lawther was promoted at that time, he 
moved slightly ahead of Jones in
remuneration, but he did not move ahead 
significantly until March 1982, after 
Jones had been suspended. The court 
declines to speculate whether Jones would 
have kept up with Lawther's March 1982 pay 
increase if she had not been suspended. 
In consequence, the evidence did not show 
that Jones was paid less for performing 
work substantially similar to Lawther's.

Title VII Pay Claim
45. As part of her claim under Title



57a

VII, Jones alleges that Flagship 
discriminated against her on the basis of 
race or sex by paying her less than her 
predecessor, Metze, or her fellow workers, 
Diebold and Lawther. As discussed in 
relation to her claim under the Equal Pay 
Act, Jones did not present evidence to 
support her contention that she was paid 
significantly less than those individuals.

45. Jones also offered evidence to 
show that she was paid less than the 
"prevailing market rate.” The Court has 
found no law mandating that an employer 
compensate its employees at such a rate. 
For these reasons, Jones claim of 
discrimination in pay under Title VII must 
be denied.

The §1981 Claim
47. Because §1981 proscribes only 

racial discrimination, Jones' claims of 
sexual discrimination are actionable only



58a
under Title VII, Bobo v. ITT, Continental 
Baking Co., 662 F. 2d 340, 344 (5th Cir.
1981), cert, denied, ____ U.S. _____, 102
S.Ct. 1985 (1982), and are not a basis for 
relief under §1981.

48. In view of the court's 
determination that Jones failed to make 
out a claim of racial discrimination (]bl5 
above), §1981 affords her no relief.

49. In addition, the court need not 
consider Jones' claim to relief under 
§1981 as an alternative to those rights 
contained in Title VII because Jones has 
not argued that any violation of §1981 can 
be made out on grounds different from 
those available under Title VII. See Page 
v. U.S. Industries, Inc., 726 F. 2d 1038, 
1041 n. 2 (5th Cir. 1984) . The elements 
of claims brought under §1981 parallel 
those of claims brought under Title VII. 
See Rivera v. City of Wichita Falls, 665



59a
F.2d 531, 534 n. 4 (5th Cir. 1982).

50. For all of the above reasons, 
Jones is entitled to no relief under 
§1981.

Relief for Jones
51. In light of the court's 

determination that Jones failed to prove 
that Flagship intentionally discriminated 
against her in the employment relationship 
on the basis of race or sex, the second 
phase of this bifurcated trial (the 
question of appropriate relief) need not 
be reached.

Flagship's Claim for Attorney's Fees
52. Although Jones was unsuccessful 

in her claims, the court is of the opinion 
that her action was not frivolous, 
unreasonable, or without foundation. 
Accordingly, Flagship is not entitled to 
recover attorney's fees. Christianburg 
Garment Co. v. E.E.O.C., 434 U.S. 412, 421



60a
1978) .

Conclusion
53. Judgment on the merits should be 

entered for Flagship.

January 24, 1985.

A. JOE FISH
United States District Judge



6 1 a

IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION

B.T. JONES, )
)Plaintiff, )
)CIVIL ACTION NO. 

VS. )
)CA 3-82-1611-G 

FLAGSHIP INTERNATIONAL, )
Delaware Corporation, )
d/b/a SKY CHEFS, )

)Defendant. )
JUDGMENT

In accordance with the memorandum of 
decision of this date, it is ORDERED, 
ADJUDGED and DECREED that plaintiff take 
nothing, that her claims are dismissed on 
the merits, and that defendant recover all 
costs of court except attorney's fees.

January 24, 1985.

A. JOE FISH
United States District Judge



Hamilton Graphics, Inc.— 200 Hudson Street, New York, N.Y.— (212) 966-4177