Parker v. Siemens-Allis, Inc. Findings of Fact and Conclusions of Law

    FILED
U.s. DISTRICT C O U R T  

EASTERN DISTRICT A R K A N S A S

JAN 5 01935

IN THE UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF ARKANSAS 

WESTERN DIVISION

CARL R. BRENTS, CLERK
________________

DIP. C L E R K

LINDA SUE PARKER PLAINTIFF

vs. No. LR-C-83-203

SIEMENS-ALL IS, INC. . DEFENDANT

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. The Plaintiff, Linda Parker was employed by the Defendant 

Siemens-Al1is on April 6, 1970, and continued her employment with 

the Defendant until her termination on September 2, 1980. The 

present lawsuit was brought as a result of the termination.1 

Plaintiff alleges she was terminated on the basis of her sex.

2. Defendant's Little Rock plant manufactures small motors.

It is divided into the following departments: Electrical Assembly,

Machine Shop and Final Assembly. The first line supervisors in these 

areas are foremen who at the time of Parker's employment reported to 

superintendents. The superintendents reported to the production 

manager.

3. Plaintiff made application at Siemens-Al1is in February of 

1970. Although she was not offered a job at that time, she was 

offered a slot to participate in the company training program with 

no pay for her participation and no guarantee of a job.

defendant contends Plaintiff was laid off rather than 
terminated. The Court will discuss this more fully later when 
dealing with the theory of constructive discharge.



4. Upon opening its new facility in Little Rock, Defendant 

hired Plaintiff on April 6, 1970.

5. Defendant contends that Plaintiff misrepresented her 

employment history on her application. Specifically, Plaintiff 

failed to acknowledge her prior employment with Timex. Plaintiff 

was employed twice at Timex but failed to note such on her 

application. Apparently, Plaintiff had been counseled for excessive 

absenteeism during her first employment at Timex, and was terminated 

from her second employment at Timex because she walked off the

job. The Court took the above information into consideration when 

assessing credibility, and, considering the evidence as a whole, 

placed little weight on the deletion.

6. Plaintiff's initial job assignment was stator winder in the 

electrical department. Plaintiff's application shows that she 

applied for a "machine or assembly or inspector" position.

Defendant contends Plaintiff did not request employment in the 

machine shop. The Court finds Defendant's construction of the 

application unreasonable. Further, Plaintiff testified that she 

applied for the machine shop or assembly as her first choice because 

she had worked in the electrical industry before and knew that the 

machine shop positions paid more than positions in the electrical 

department. Despite her application, she was assigned to work in 

the electrical department.

7. From the time of Plaintiff's hire to the present, the 

majority of the machine shop and stator assembly employees have been 

male, while the majority of the electrical department employees have 

been typically female. This is evidence of a pattern and practice 

of discrimination in job assignment and steering.

2



8. Further steering and job assignment was evidenced by the 

Plaintiff's unrebutted testimony that there are certain jobs in even 

the electrical department which are held by males, the dip and bake, 

set up, leadman and foreman positions. No evidence was presented 

indicating that females were not capable of performing those jobs.

9. Ten years after Plaintiff's hire, the machine shop was 95 

percent male and assembly was 80 percent male, while the electrical 

department was 85 percent female.

10. Plaintiff remained in the position of stator winder for 

four to six months and was promoted to stator testor, a position 

which she held for two years before being promoted to foreman.

Next, Plaintiff was promoted to foreman in the electrical department 

on March 16, 1974, and held that position until 1980 when she was 

terminated.

11. Plaintiff stated that she cross-trained in the machine 

shop. Plaintiff contends that she was discriminated against because 

of her sex since Carl Garmon was promoted to foreman in 1972. 

Although Plaintiff failed to list this alleged discrimination on her 

EEOC charge, the promotion claim is like or related to the substance 

of the Plaintiff's charge.

12. Carl Garmon, a male whose initial hire date is April 13, 

1970 (seven days after that of the Plaintiff) and who had never 

worked in the electrical department, was promoted to foreman in her 

department in 1972. It took Plaintiff twice as long to reach the 

position of foreman as the time required for Garmon. Defendant 

contends that Garmon was asked to take a foreman's position over 

both Final Assembly and the Electrical Assembly Department on the

3



second shift - 3:30 pm. - 11:00 p.m., and that Plaintiff was not 

interested in a second shift position because she wanted to work the 

same hours as her husband. Although Plaintiff testified she wanted 

to work the same day hours as her husband, no evidence was presented 

showing that Defendant asked Plaintiff if she would be willing to 

work a shift other than the day shift. In fact, Plaintiff testified 

she would have accepted Garmon's position if it had been offered to 

her.

13. Both the testimony and the exhibits introduced by 

Plaintiff indicate that six of the nine male foremen were promoted 

to foreman at a rate faster than Plaintiff.

14. The Court finds it significant that there had never been a 

female foreman in the plant's history before the promotion of the 

Plaintiff. Further, there have been no female foremen since her 

termi nation.

15. The Affirmative Action Plan and Defendant's Answers to 

Interrogatories show the work force is 30-40 percent female.

16. Promotions to first line supervisor are made from within 

the work force.

17. Plaintiff complained to Fred Quick, her immediate 

supervisor, that Garmon had less seniority and no prior experience 

in the electrical department, but no action was taken with respect 

to her complaint.

18. Defendant contends that while Plaintiff was a collective 

bargaining unit employee, jobs were posted and any employee could 

bid on any opening. Defendant contends that under the collective 

bargaining agreement procedure, if a bargaining unit employee feels

4



he or she has been discriminated against, they could file a 

grievance, and there is no evidence that Plaintiff filed a 

grievance. Defendant further contends that during Parker's tenure 

as foreman, she never sought a transfer to the machine shop.

However, Betty Stoner, a female presently employed by the Defendant, 

testified that she has never sought a position outside the 

electrical department because she believes Defendant's managerial 

staff and personnel in the predominately male departments do not 

want women in those departments. She also testified that when she 

was hired by Defendant she was interviewed for positions in the 

electrical department only. She was not informed of any positions 

available in any other department. Jean Smith, who presently works 

for Defendant, testified that she made an effort to bid on a 

promotion in the machine shop. However, Carl Garmon, her male 

supervisor at the time, took her to the machine shop and showed her 

the heaviest machine in the department and told her she would have 

to lift it to do the job. He failed to tell her, which she later 

learned, that a hoist was used to lift that object. Kitty Wood, 

presently an employee of Defendant, testified that another employee, 

Katherine Pfeiffer, was going to bid on a job and Fred Quick asked 

her not to pursue the position. Wood testified that Quick had 

considered Wood for promotion to foreman in 1972 but rejected her 

because he did not think she was interested in the position and 

promoted Carl Garmon, even though Garmon had never worked in the 

electrical department before. Wood, like Plaintiff, was not offered 

the position although she had been in the department during her 

entire employment with the Defendant. The Court finds it

5



significant that Quick never asked either Plaintiff or Wood if they 

were interested in the position but merely assumed they were not.

The Court finds that males in the Defendant's plant are promoted to 

foremen while females are denied promotions to foreman even though 

they are as qualified as males to be promoted.

Based upon the evidence presented, it appears to the Court that 

women were discouraged from applying for positions outside the 

electrical department. Therefore, Plaintiff's failure to seek a 

transfer does not weigh heavily, if at all, in Defendant's favor.

19. The promotion process at Siemens to foreman has no written 

job criteria, no application and no test. The process is totally 

subjective and was therefore open to sex discrimination. The 

process is tainted further by the fact that all persons making 

decisions for promotion to foreman are and have been white males.

20. Plaintiff testified that there are still no written job 

criteria for positions which are not protected by the collective 

bargaining agreement.

21. Qualification for all employment positions by Defendant's 

plant is obtained by on-the-job training. The Defendant's policy to 

assign work in a discriminatory manner impacted the Plaintiff's and 

other women employees' ability to obtain the broad experience on 

jobs provided to male employees. Besides the experience gained by 

the actual job perfomance, Plaintiff attended training programs 

relating to her particular position both before and after her 

promotion to foreman in 1974.

22. Plaintiff Parker had no unusual problems as foreman and 

received no written negative performance evaluations. Written

6



negative evaluations were received by male employees who were 

retained at the time of Plaintiff’s termination.

23. Plaintiff's problems as foreman began when Louis Prather 

became production manager in 1979. Prather supervised Jim Prince, 

the general foreman, who in turn supervised the foremen. Although 

it appears that many employees did not get along well with Prather, 

the testimony also indicates that Prather was unusually hard on the 

Plaintiff. Prather began immediately to harass and continually 

harassed the Plaintiff in front of her subordinates, question her 

ability as a foreman, and ask her how she became a foreman in the 

first place. One time Prather called Plaintiff to his office and 

reminded her there weren't any other women making what Plaintiff was 

making. These harassments were not isolated incidents, but occurred 

in a manner of pattern and practice. Betty Stoner, a white female 

presently employed by the Defendant, observed Louis Prather harass 

Plaintiff Parker and other female employees, but never observed him 

harass or reprimand any male foremen in front of their 

subordinates. Jean Smith, who presently works in the electrical 

department at Defendant’s plant, also observed Prather's harassment 

of Plaintiff. Kitty Wood observed Louis Prather tell Plaintiff, 

about a week after he came to work there, to either "shape up or 

ship out”. Plaintiff's peformance as supervisor had never been 

questioned before. Wood stated that Prather did not act like women 

could do what men could. Plaintiff also stated that Prather asked 

her to cut back from two operators in stator repair to one, which 

was impossible. He told her if she couldn't, he'd find someone who 

could. There are still two operators there presently.

7



24. Plaintiff contends that another example of Prather's 

harassment is referred to often in the testimony as the "Kalamazoo, 

Michigan" incident. Plaintiff contends that she was required to go 

by herself, while other foremen went with one or two others. The 

evidence is conflicting as to whether other foremen were required to 

travel alone. Carl Garmon testified that when he went out of town, 

he went with an engineer and safety man. However, he also testified 

that there were occasions when foremen traveled by themselves, and 

Jim Prince testified that Bobby Moody went to Maine by himself. The 

Court finds the evidence less than compelling that Plaintiff was 

treated discriminatorily with respect to the trip.

25. Billy Payton, a current male employee of the Defendant, 

worked in the electrical department when Plaintiff was his 

foreman. He occupied the positions of set-up leadman and the dip 

and bake position. These positions are the two positions in the 

electrical department no woman has ever held. Payton futher 

testified that women are capable of doing the work. Payton 

transferred out of the electrical department to the machine shop for 

more money because employees in the machine shop are paid more. He 

had no trouble transferring. He stated that when you move to a 

different department you receive about two weeks training in that 

job. He observed that Prather treated women differently than men; 

he acted as though he was "higher" than they. He observed Prather 

treat Plaintiff differently than any other supervisor and that 

Prather embarrassed Plaintiff in front of other employees.

26. The record was replete with evidence that the Defendant's 

agent, Louis Prather, discriminated against the Plaintiff in terms 

and conditions of employment on the basis of her sex.

8



27. The Court believes the Plaintiff and the corroborating 

testimony and finds that Prather's actions were intentional acts of 

harassment because of Plaintiff's sex. The Court finds further that 

Prather was Defendant's agent and that Defendant knew or should have 

known about his acts of sex discrimination against Plaintiff, and 

not only did Defendant condone Prather's behavior, but added to it 

by discrimi natorily terminating Plaintiff. Payton denied 

Defendant's stated reason for Plaintiff's termination that there was 

a general reduction in force.

28. On the day following Labor Day, September 2, 1980, 

Plaintiff was told by Louis Prather that he had to lay off two 

supervisors and she was one of them. He offered her the opportunity 

of going back into the bargaining unit into the same position (an 

entry level position, Grade 1) which she had been offered ten and 

one-half years earlier. Prather stated "Linda, I don't have to 

offer you anything".2 Plaintiff attempted to talk with Mike 

Goodwin, the EEOC supervisor at the time. Goodwin told Plaintiff 

that Prather had to eliminate two foremen and that he had to go 

along with Prather.

29. Jim Prince and Prather made the recormnendat i on to 

terminate Plaintiff to Mike Goodwin. Mike Goodwin had received a 

directive from management to reduce the staff in September 1980.

Each department manager was charged with the responsibility of

2
Although Plaintiff was unaware that any other terminated 

employee was not offered a job, defendant's witnesses testified 
that not everyone was offered a job.

9



devising a plan for making reductions in his area. Goodwin's role 

was to work with the department managers and advise them of the EEOC 

ramifications of the termination decisions. Goodwin did not discuss 

EEOC ramifications with Prince and Prather, but was concerned with 

their suggestion of terminating Plaintiff.3 Goodwin also stated 

that he was surprised since he understood the focus was to reduce 

the machine shop.

30. Larry Croy, a male foreman in the machine shop, was laid 

off at the same time. The evidence is conflicting as to what 

position Croy was offered. Plaintiff testified he was offered the 

position of bullard operator. Defendant's witnesses tesified he was 

offered the position of drill press operator. Irrespective of the 

title given to the position offered, there is ample evidence to 

support the fact that the position offered Larry Croy provided for a 

higher salary than that offered Plaintiff.

31. There was no written procedure for terminating salaried 

personnel, and they were not protected by the collective bargaining 

agreement. The decision to terminate Plaintiff was made on the day 

before she was notified. Only Prince and Prather met in Prather's 

office and reviewed a list of all foremen showing their date of 

hire. They had the personnel file there and considered length of 

service as foremen and work history. The Court finds that Prince's 

testimony corroborates Prather's that length of time as foreman had 

been Defendant's primary consideration.

3Mike Goodwin did testify that he consulted legal counsel 
when the recommendation was made.

10



32. Jim Prince testified that they had too many foremen in the 

machine shop and could have decided to eliminate two out of that 

department. He testified that although two machine shop positions 

were eliminated at the time of Plaintiff's termination, Plaintiff, a 

foreman in the electrical department, was selected for layoff.

33. He stated they did not consider sex or race of the people 

involved. The Court does not find Prince's testimony on this issue 

credible.

34. Prince testified that economic conditions dictated that 

they retain the most versatile person, but on cross examination he 

could not explain how Henry Raynor or anyone else who had been 

retained in the machine shop and had less seniority as supervisor 

were more versatile than Plaintiff.

35. He admitted that Henry Raynor, foreman in the machine 

shop, had considerably less seniority as foreman than Plaintiff; had 

an unsatisfactory performance review in his personnel file and took 

longer to get promoted to foreman than Plaintiff yet Raynor was 

retained while Plaintiff was terminated.

36. Prather testified that the criteria for terminating 

foremen was seniority, qualifications and the ability to perform. 

Prather further testified that Plaintiff, Linda Parker, had no more 

problems than any of the other foremen, although she was the only 

woman foreman in the plant. The performance evaluations were not 

considered when the decision to terminate her was made. He never 

saw any written rules regarding layoff of salaried employees. He 

also testified that Plaintiff's sex was not considered.

11



37. Defendants, at one point in the discovery process, argued 

that the decision to layoff the Plaintiff was making a choice 

between Carl Garmon and the Plaintiff. Prather testified that all 

ten (10) foremen were considered for the termination.

38. Prince, who testified for the Defendants at trial, 

corroborated his testimony by stating that all foremen were 

candidates for termination but that they were told they had too many 

foremen in the machine shop. The end result was that two positions 

of foreman were eliminated from the machine shop.

39. Prather recalled the termination decision was based on 

seniority and knowledge of the operations as a foreman.

40. The Court finds from Prather's testimony that seniority as 

a foreman was Defendant's primary consideration in terminating 

foremen. The Court finds from other testimony and exhibits that 

seniority as a foreman was Defendant's prior practice for 

terminating foremen.

41. The Court finds that if seniority as a foreman was the 

real reason for the choice then Henry Raynor, Larry Croy, Carl

Carlton and Phil Carter would have been terminated before the 

Plaintiff.

42. The Court finds that Defendant did not follow it's own

prior practice and that there is evidence of discrimination in this 

case.

43. Although Defendant's answers to Plaintiff's 

interrogatories state that Prather and Prince made the decision for 

Fred Quick to bump Parker, Prather stated unequivocably that bumping 

»as a term he could not relate to and that Siemens had no bumping 

policy for foremen.

12



44. Prather anticipated the question would arise as to which 

job in the bargaining unit foremen being laid-off would be offered, 

but could not remember which job they would be offered.

45. Plaintiff knew that the Defendant's practice in the past 

had been to terminate foremen according to seniority. In fact, 

Defendant's own exhibit bears this out.

46. Prior to Plaintiff's termination Bob Launius had been 

terminated in December of 1979 with only 2 or 3 years experience as 

foreman. He was offered the set-up leadman position, which is the 

next highest paying job to foreman, but he refused to return to the 

bargaining unit. Percey Billingsley had been terminated in May of 

1980 with three years experience as foreman.

47. Plaintiff had six and one half years of experience as 

foreman and was terminated while three male foremen with less 

experience as foremen were retained. Although the exhibits are 

conflicting as to the exact figures with respect to seniority as 

foreman, even using Defendant's figures, Henry Raynor had only 3 

years experience; Carl Carlton had 5 years and 8 months; and Phil 

Carter had 6 years and 3 months and were retained over Plaintiff, 

the only female foreman in the history of the plant.

48. Plaintiff's position as foreman in the electrical 

department was not eliminated. Fred Quick, a male, transferred from 

the machine shop and was placed in that position at Plaintiff's 

termination. Two foremen positions were eliminated in the machine 

shop - the positions held by Larry Croy and Fred Quick.

49. Mr. Quick had been hired on March 27, 1970, one week 

before Plaintiff was hired on April 6, 1970, when the plant was

13



first opened in Little Rock. He was hired as a motor technician, 

promoted to leadman, motor repair, Quality Assurance and acting 

foreman within his first year with Defendant. He was promoted to 

foreman in the electrical assembly department in October 10, 1971, a 

position which he held until 1974 when he was promoted to general 

foreman, electrical assembly. In 1975 Quick was promoted to general 

foreman of electrical and mechanical assembly and promoted to 

general foreman in the machine shop on December 1, 1977. He was 

demoted to foreman in the machine shop in October, 1979.

50. Quick was promoted more often and at a faster rate than 

Plaintiff.

51. Quick was assigned to work in many different departments
t

throughout his employment with Defendant and he never requested any 

of the moves. These on-the-job training opportunities were denied 

Linda Parker.

52. Quick testified that he was demoted from time to time, but 

his pay was never cut.

53. Defendant contends that it decided to transfer Fred Quick 

to the electrical assembly department, which resulted in three 

foreman being placed in the area. Thus, Defendant contends it was 

then necessary to decide whether Parker or Garmon should be 

retained. Defendant contends that it compared seniority as a 

supervisor; that Garmon had been responsible for the operation of 

the Final Assembly Department on the evening shift and that Garmon 

had roughly the same seniority as Plaintiff. It appears that the 

factors considered by the Defendant were those which were a result 

of promoting Garmon in 1972. The Court has already indicated that

14



Defendant's presumption that Plaintiff would not work the evening 

shift was no reason not to inquire as to whether she would have 

accepted the position. Defendant’s actions in promoting Garmon 

clearly had an impact on the subsequent decision to lay off 

plaintiff.

54. The Court finds that because the electrical department is 

predominately female while the other production departments are 

predominately male, this fact of lower pay grade levels for 

identical positions is, per se, sex discrimination.

55. Plaintiff's production in her area of supervision ran 

consistently 80 percent or above. Carl Garmon's production slipped 

below 70 percent consistently, so much so that during Plaintiff's 

last two years of employment she was required to supervise Garmon's 

area for six months at a time to bring that production up to 80 

percent, which she always did before returning to her own area.

While Garmon was supervising Plaintiff's area, production there fell 

to 70 percent or below and Plaintiff would be required to bring 

production back to the 80 percent level again. The Defendant denied 

the above and asserted that it was because Plaintiff borrowed 

Garmon's employees that Garmon's production fell. The Court finds 

Plaintiff's testimony more credible.

56. There was no bona fide seniority system for foremen. Yet,

prior to Plaintiff's layoff, seniority had been a major determining 

factor.

57. Plaintiff knew immediately that she had been a victim of 

sex discrimination. The Defendant's discriminatory act of offering 

the Plaintiff a Grade Level 1 job while offering the male foremen a

15



higher grade level is sex discrimination and violative of Title 

VI I.

58. Plaintiff has never before filed a charge of 

discrimination and did not have an attorney at the time of filing 

her charge.

59. Mr. Elbert Morgan, a current male employee, testified that 

he knew of no written policy for promotion out of the bargaining 

unit into first line supervisory positions. He does not know how 

they are filled. The Court finds that Defendant has no objective 

policy for promotion out of the bargaining unit into first line 

supervi sor.

60. He testified that the electrical department is 

predominately female and the pay is lower than in the machine shop 

or final assembly departments which are predominately male.

61. This Court finds that the difference in pay of level one 

and five positions demonstrates that they are not equal job 

opportunities. Therefore the Defendant clearly discriminated 

against Plaintiff by offering her a position of lower pay grade than 

those offered males being laid off or terminated.

62. Ralph Shilling, the present supervisor of personnel for 

Defendant, admitted that prior experience in a department was no 

prerequisite to supervise in that department as evidenced by 

Garmon's supervision of the electrical department and his own 

supervision of the tooling department. Neither had worked in those 

departments prior to becoming supervisor.

63. Shilling did not occupy his present position when the 

decision was made to terminate Plaintiff. He testified that Prather

16



who was production manager and Jim Prince who was general manager 

were charged with the duty to decide which of the foremen would be 

termi nated.

64. Shilling became EEO coordinator in 1981 when the OFCCP 

issued its letter of deficiencies.

65. He was aware that OFCCP was doing job audits during 1980, 

at the time Plaintiff was terminated. His duty as EEO coordinator 

was to make management aware of the implications of employment 

decisions and to revise the Affirmative Action Plan to correct the 

deficiencies noted in the OFCCP's letter, which noted severe under­

representation of females in supervisory positions and certain 

production departments.

66. He testified that he was aware that Plaintiff was the only 

female foreman at the time of her termination and he admitted that 

no female has been promoted to production supervisor since 

Plaintiff’s termination.

67. Shilling testified that he would not consider the fact 

that Plaintiff was the only female supervisor to be reason enough 

not to terminate her, even with her positive performance record. He 

testified that he would not consider her sex when making the 

selection for termination.

68. Shilling was unaware whether Plaintiff’s termination was 

in violation of Defendant's Affirmative Action Plan in effect at the 

t ime.

69. Robert Baker is a professor at Hendrix College who is 

employed on a regular basis by the law offices of counsel for the 

Defendant as an expert in Title VII cases.

17



70. On the day of trial, counsel for the Defendant objected to 

the testimony of Dr. Baker, arguing that the Defendants had violated 

the duty created by Federal Rule 26 in failing to notify them of an 

expert, by stating in answers to interrogatories that no expert 

would be used, and that they had not timely included Baker's name on 

the witness list.

71. Baker stated that he was not retained to testify in this 

matter until after Defendant received the Plaintiff's pre-trial 

submissions. The Court allowed Dr. Baker's testimony to be 

received, noting that Plaintiff knew Dr. Baker would testify as 

early as May. The Court did require Dr. Baker to be available for 

examination by Plaintiff.

72. Some of the deficiencies noted by OFCCP were under­

representation of females in supervisory positions; lower wages for 

females despite higher female seniority; over representation of 

females in the electrical department where wages are lower, and 

under representation of females in the machine shop where wages are 

higher.

73. Baker's Exhibit 5-2 showed movement out of the electrical 

department, which was at least 85% female over the years 1977, 1978, 

and 1979. In each of those years, the percentage of persons moving 

out of the electrical department was disproportionately male.

74. In 1977 out of 10 persons moving out of the electrical 

department, three were males or 30%, twice the percentage of male 

employees in that department.

75. In 1978 of five movements out of the electical department, 

two were male, or 40%, almost three times the male percentage of the 

depar tment.

18



76. In 1979, out of seven, two were males for 28.5%.

77. Goodwin testified he wrote the AAP himself. He stated on 

page 142 of the plan his reasons for not considering female 

concentration in electrical winding to be discriminatory as:

There are some things about the job that appeal to 
the females such as: clean working conditions, routine
work, which once learned, gives the female the 
opportunity to plan the family budget, menu and other 
responsibilities directly related to family ties.

The Court finds any AAP with this clause to be a per se violation of 

Title VII. The Court finds that a discriminatory employment 

decision was placed on Goodwin's desk and he failed to veto it.

This is conclusive evidence of Defendant's practice of sex 

di scr imi nation.

78. Goodwin testified that a general downturn in business 

forced them to a reduction to save money.

79. Even if the Court were to believe a reduction in force was 

necessary, this Court is not convinced by Goodwin's testimony of 

any facts which explain the selection of Linda Parker for layoff in 

a nondiscriminatory fashion.4 Therefore this Court finds Plaintiff 

was selected for layoff because of her sex in violation of Title 

VII.

80. This Court finds, further, that Plaintiff was 

discriminated against on the basis of sex by being offered a

4The only objective evidence of a downturn in business is 
the reduction in total workforce between 1978 and 1981.

19



position at a lower pay grade than male foremen being laid off.

81. Plaintiff, after ten (10) years of employment, with no 

negative written evaluations, was offered the lowest level position 

in the plant - the one she began in 10 years before.5 Recognizing 

that she was being discriminated against because of her sex and that 

Defendant was intentionally making an effort to force her out, she 

refused the position and filed her EEOC charge.

82. The OFCCP letter of February 4, 1981, to Defendant from the 

OFCCP outlines several areas of deficiency in which Defendant does 

not comply with federal regulations for maintaining its federal 

contracts. At the time of Plaintiff's termination, however, its 

work force did not comply, particularly in the area of female 

representation at the supervisory and managerial levels.

83. Another deficiency noted was Defendant's under­

representation of females in the high paying departments of the 

plant, namely, the machine shop and final assembly, and

over represen tation of females in the lowest paying department, 

namely, electrical. This is corroborated by all of Plaintiff's 

witnesses and even some of Defendant's witnesses who admitted that 

positions in the machine shop paid better than "equivalent positions 

in the electrical department" (Prince's testimony). This evidence

There wf s evidence introduced that management did have to 
talk with Plaintiff about some performance difficulties, i.e., 
lack of sensitivity toward employees, failure to answer a
Ik 1*?"1!!! S paJ e; and borrowing employees. However, it is apparent 
I n ! \ J hGSe d^ cussions were not an indication that plaintiff had 

y more problems than any other supervisor. In fact, Louis 
Prather so stated.

20



is corroborated by Defendant's work force analysis in its 

Affirmative Action Plan.

84. The Court finds that Plaintiff was a victim of this plant­

wide sex discrimination in that she was denied the opportunity to 

move freely from department to department for advancement and this 

denial adversely impacted on Plaintiff when the opportunity for 

Plaintiff to become versatile and to develop vital skills needed 

plant-wide.

85. Although Defendant has denied that it has a bona fide 

seniority system for foreman, its past actions and past and present 

attitudes indicate that it relied on some sort of seniority 

rationale to justify retaining Garmon over Plaintiff.

86. The rationale of "experience as foreman" however, does not 

explain why Plaintiff was terminated while Raynor, Carter and 

Carlton were retained with less experience as foremen. In fact, 

Plaintiff had actually worked in the machine shop while Raynor, et. 

al, had never worked in the electrical department.

87. The Court finds that Defendant discriminatorily applied 

its "experience as foreman" factor against Plaintiff.

88. In answer to Interrogatory No. 19, Defendant stated that 

there were no reassignments or transfers of supervisory personnel 

during the three years prior to Plaintiff's termination. The 

testimony of witnesses was to the contrary and Mike Goodwin 

testified that this answer was wrong. Witnesses testified that 

prior to Plaintiff's termination other foremen had been offered high 

paying jobs back in the bargaining unit.

89. Mike Goodwin attempted to explain why Plaintiff could not

21



be offered a high paying job back in the bargaining unit, but his 

attempt fails to explain why the male who was terminated on the same 

day could be offered a Grade Level 5 while Plaintiff could be 

offered only a Grade Level I position.

90. The Court finds that Defendant has deliberately attempted 

to conceal from Plaintiff the true reasons for her termination. The 

Court finds this to be evidence of intentional discrimination and 

finds that Plaintiff has sustained her burden of persuasion that she 

was a victim of intentional disparate treatment and suffered job 

discrimination because of her sex.

91. With respect to salaries, Plaintiff’s salary was $1447;

Bobby M o o d y’s was listed as $1554 and he was hired four months after 

Plaintiff; Carl Garmon’s was listed as $1529 and he was hired a week 

after Plaintiff; Carl Carlton’s was listed as $1114, but testimony 

at trial showed his salary to be $1447 and he was hired two and one- 

half years after Plaintiff. Phil Carter's official pay records show 

his salary to be $1430.00 and he was hired four months after 

Plaintiff. These answers show that although Plaintiff was hired before 

these males, her salary was equal to one and below all but one.

92. Defendant's EEOC creed was shown to be as follows:

Employment, promotion, transfer, demotion, compensation 
and separation decisions at Siemens-Al1 is shall be 
based only on appropriate combinations of such factors 
as skills, knowledge, merit, service, physical fitness, 
capacity and ability to effectively perform the 
assignments. These shall be determined, as 
appropriate, by work and education reviews, interviews, 
examinations and tests, reference checks and analysis ' 
of total job requirements without regard to such nnn- 
pertinent factors as race, creed, color, sex, age, 
ancestry or national origin". (Emphasis added).

93. The Court finds from Mike Goodwin's testimony that this

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Creed was not followed when the decision to terminate Plaintiff was 

m a d e .

94. Plaintiff's exhibits show that Henry Raynor received 

written warning on Janaury 30, 1979, "that his performance, in the 

area of quality workmanship from his department, had not been 

satisfactory and improvement must be made." It was signed by Louis 

Prather. His 1979 progress review showed that his overall 

promotabi1ity was only acceptable and that he would not be ready for 

promotion for 3 years. It was signed by Mike Goodwin and Louis 

Prather.

95. Jim Prince placed a handwritten memo in Richard Rogers' 

personnel file on June 5,1980 (three months prior to Plaintiff's 

termination) on the subject of his job performance. The memo begins 

"This memo is being placed in Richard Rogers' file to document a 

substandard performance in his responsibilities as a foreman."

Rogers was retained over Plaintiff in September 1980 and the 

decision was made in part by Jim Prince.

96. Carl Garmon's progress review for 1979 shows a specific 

goal for him was to operate at 90 percent measured and 71 percent 

earned efficiencies and that he made progress in that it was 

accomplished in some weeks. This evaluation was signed by Jim 

Prince and Louis Prather. In his progress review dated January 29, 

1981, (four months after Plaintiff's termination), one of his 

specific goals was to improve performance to 80 percent effectivity 

level and was signed by Jim Prince.

97. The Court finds that Defendant did not retain those 

employees with superior basic skills and did not retain these

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employees because their ability of performance was better than 

Plaintiffs.

98. The Court finds that Defendant's articulation of its 

relative ability crieteria for deciding which foremen to retain is 

not the true basis on which it made its decision to terminate 

Plaintiff. The Defendant had no objective criteria for making its 

decision to terminate Plaintiff.

99. The Court finds that even if there was a general reduction 

in force because of business downturn, such reduction is not a 

legitimate reason to explain Defendant's method of deciding to 

terminate Plaintiff.

100. Defendant states that its comprehensive Affirmative 

Action Plan has been developed to provide employment training and 

upgrading to minorities and women in its workforce. Robert Hunter 

is identified as the EEO Coordinator.

101. The Court finds that Defendant did not pay even lip 

service to its affirmative action duty as articulated in its 

Affimative Action Plan when it terminated Plaintiff.

102. The fact that none of the males who were in the position 

to decide Linda Parker's fate considered the fact that she was the 

only female foreman in the history of the plant is evidence of the 

Defendant's callous disregard of even minimal EEO obligations.

103. On pages 10 though 12 the responsibilities for 

implementing the Affirmative Action Plan are spelled out for the EEO 

Coordinator and management. One of those responsibilities is to 

assist all management to identify problem areas, find solutions and 

make corrections and to prevent problems in the first place.

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104. If the above responsibilities are intended to give the 

EEO Coordinator veto authority over any employment decision, Mike 

Goodwin's failure to do so is clearly further evidence of 

Defendant's insensitivity to EEO matters as far as sex is a

cons i dera t i on.

105. Another responsibility of higher management is to 

evaluate the EEO efforts and performance of lower management in 

selecting, training, upgrading and promoting progressive attitudes 

toward minority and female employees. Additionally, in July the 

Defendant pledged to review the qualifications of employees to 

assure that minorities and women receive consideration for available 

oppor t un i t i es.

106. The Court finds that Defendant failed to evaluate the 

efforts and performance of lower management in the present case in 

that Prather and Prince were not counseled about the EEOC 

ramifications of selecting Linda Parker for termination.

107. Finally, the company pledged to assure that recruiting, 

hiring, layoffs and returns from layoffs will be administered in 

keeping with the Siemens-Al1is Equal Employment Opportunity Creed.

108. The Court finds that neither the selection process used 

to choose foremen for termination nor the jobs offered the two 

foremen were in keeping with the Creed.

109. A work force analysis for 1980 is contained within the 

Affirmative Action Plan by department, sex, race, name and grade 

level. Fred Quick is shown as a Grade Level 56 foreman in the 

general machine shop. This analysis also shows that the foreman 

positions in the electric winding department are grade 54 while the

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foreman positions in the machine and final assembly shops, the male 

departments, are grade 55.

In conclusion, even if the Court were to conclude the 

supervisors were terminated as a result of reduction in force, the 

Court is compelled to conclude that the manner in which Plai'ntiff 

was chosen to be terminated as a result of the reduction in force 

was discriminatory. Considering all the evidence and the totality 

of the circumstances, the Court finds Plaintiff was terminated on 

the basis of her sex. It is the duty of the Court to assess 

credibiity of the witnesses, and to that extent, the Plaintiff has 

prevailed.

CONCLUSIONS OF LAW

1. The promotion claim raised in the complaint is "like or 

related" to the substance of the plaintiff's EEOC charge, and is 

therefore properly addressed by the Court. Satz v. ITT Financial 

Corp., 619 F .2d 738 (8th Cir. 1980).

2. Plaintiff, Linda Parker, has established a prima facie case 

of sex discrimination in employment because:

A. She was qualified for the position;

B. She was discharged from her position;

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C. A male was placed in Plaintiff's position at her 

termination. Furnco Consruction Corp. v. Walters, 438 U.S. 567 

( 1978  ) . 6

3. The Defendant failed to articulate any legitimate non- 

discriminatory reason for Plaintiff's layoff/termination that 

appears to be the real reason for the employment decision. Texas 

Department of Community Affairs v. Burdine, 450 U.S. 248 (1981).

4. The Defendant utilized shifting reasons as its defenses 

that are unworthy of credence and are a mere pretext for sex

di scr imi nation.

5. Plaintiff was terminated by the Defendant because of her 

sex in violation of 42 U.S.C. 52000(e).

6. By Defendant's own admission, Plaintiff was terminated.*^

®Cf. Johnson v. Yellow Freight System, Inc., 734 F.2d 1304, 
1307 (8th Ci r. 1984), where the Court held that to establish a 
prima facie case of discriminatory discharge, plaintiff must show 
that (1) he is a member of a protected class; (2) he was capable 
of performing his job satisfactorily; and (3) he was 
discharged. In the present case, plaintiff's case was bolstered 
by the fact that a male was placed in her position at her 
terminat ion.

n
In Defendant's Answers to Plaintiff's Second 

Interrogatories, Defendant states:

There is no significant difference between 
Plaintiff's separation being characterized as a lay-off 
or termination for employment or reemployment. 
Plaintiff's separation was similar to a lay-off in that 
it was the result of a general reduction in force 
caused by depressed business conditions. Thus, 
Plaintiff was given an opportunity to return to the 
bargaining unit, an opportunity that was rejected by 
Plaintiff. However, since salaried employees are 
generally terminated and not laid-off, as a result of 
her declining the opportunity to return to the 
bargaining unit, she was terminated.

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However, even assuming a layoff argument, the facts exist for a 

constructive termination. An employee is constructively discharged 

when he or she involuntarily resigns to escape intolerable and 

illegal employment requirements. Barrett v. Omaha National Bank,

726 F.2d 424 (8th Cir. 1984). See also, Johnson v. Bunny Bread C o . , 

646 F.2d 1250 (8th Cir. 1981). Although working for unequal pay 

alone may not constitute a condition of employment so intolerable 

that an employee is forced into involuntary resignation, Bourque v. 

Powell Electrical Manufacturing C o . , 617 F.2d 61 (5th Cir. 1980), it 

is nevertheless relevant. J_d. In this case, evidence of continuing 

discrimination on the basis of sex in the form of transfers, unequal 

pay and harassment was presented which would enable the Court to 

conclude a constructive discharge took place, ^d. See also, Fancher 

v. Ninrmo, 549 F.Supp. 1324 (E.D. Ark. 1982 ).

7. Plaintiff was the victim of sex discrimination during her 

entire employment history with Defendant. She is entitled to such 

remedies as will make her whole.

8. Plaintiff is entitled to back pay in the amount of her 

salary times the number of months to the present, together with 

average pay increases as reflected in Defendant’s records for the 

foremen who were retained. According to Plaintiff's testimony, she 

was unemployed for one year, and then becaome employed earning 

$850.00 per month. She received approximately $3,500.00 in 

severance pay. She is entitled to pre-judgment interest of ten (10) 

percent on that amount plus post-judgment interest at the current 

rate until paid. Behlor v. Smith, 719 F.2d 950 (8th Cir. 1983), 

cert, denied, 104 S.Ct. 2169 (1984).

28



9. Plaintiff is entitled to damages for harassment she 

suffered at the hands of Defendant's agent, Prather. Id.

10. Plaintiff is entitled to be reinstated and if no such 

position exists, she is entitled to front pay equal to the 

difference between what she would have earned in the foreman's 

position and the amount she earns in mitigation. She is moreover 

entitled to continue to receive these payments until she is placed 

in a comparable position whenever that placement occurs. Briseno v. 

Central Technical Community College A r e a , 739 F.2d 344 (8th Cir. 

1984); U.S. v. Cotton Plant School District No. 1, 479 F.2d 671 (8th 

Cir. 1973) .

11. Plaintiff is entitled to her attorneys fees upon 

application to the court made timely after the date of this judgment 

pursuant to Title VII.

Plaintiff is directed to prepare a precedent for judgment in 

accordance with these findings and submit it to the Court within ten 

(10) days from the date of these findings. Plaintiff's counsel 

should also file with the Court their motion for attorney's fee and 

supporting information within ten (10) days from the date of these 

findings. Defendant will have ten days from receipt thereof to 

respond.

It is so ordered this ,-5*9 day of January, 1985.

r a l 8  a0GUiBtot #at6r*d “  d0C^  la COBDllKDO* »lth Rule
,n.1/or 79(a) FRCP on___ L ^ J L L z£ 5 _  ^  /____________

29