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Krieger v. Gold Bond Building Products

decided: December 19, 1988.

MARY KRIEGER, PLAINTIFF-APPELLEE,
v.
GOLD BOND BUILDING PRODUCTS, A DIVISION OF NATIONAL GYPSUM COMPANY, DEFENDANT-APPELLANT



Appeal from a final judgment awarding plaintiff reinstatement, backpay, and attorney's fees for discriminatory termination of employment, 42 U.S.C. § 2000e et seq. Affirmed in part, vacated and remanded in part.

Van Graafeiland and Kearse, Circuit Judges, and Pollack, District Judge.*fn*

Author: Kearse

Defendant Gold Bond Building Products, a division of National Gypsum Company ("Gold Bond" or the "company"), appeals from a final judgment entered in the United States District Court for the Western District of New York, following a bench trial before Michael A. Telesca, Judge, awarding plaintiff Mary Krieger, inter alia, (1) reinstatement to a job as sales representative of Gold Bond with no loss of seniority or privileges, (2) back-pay of $60,843.38, plus interest, and (3) attorney's fees of $51,269, on the ground that in terminating Krieger's employment, Gold Bond discriminated against Krieger because of her gender, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. (1982). On appeal, Gold Bond contends principally that the district court failed to explain adequately its rejection of Gold Bond's evidence, relied on inadmissible evidence, made certain findings that were clearly erroneous, and included improper enhancement in its award of attorney's fees. For the reasons below, we conclude that the enhancement of attorney's fees was unwarranted, and in all other respects we affirm the judgment.

I. BACKGROUND

The findings of the trial court set forth in its Decision and Order dated October 6, 1987 ("Decision"), together with the evidence supporting the findings, revealed the following.

Krieger was a full-fledged sales representative for Gold Bond from November 1975 until she was fired in April 1981. She was first employed by Gold Bond in 1971 as a stenographer; she was promoted to the position of "assistant sales serviceman" in 1973. In July 1975, Krieger learned that a full-fledged salesperson position was available but encountered difficulty in even being considered for the position. When she asked the regional manager to allow her to interview for the position, his initial reaction was simply to tell Krieger to "get out" of his office. Krieger persevered, however, and eventually was interviewed for the job. The job was at first awarded to another candidate, but illness prevented him from performing his new duties. After the position remained vacant for a few months, Krieger sought it again. This time she was given the job, and she began to work as the salesperson for the Buffalo southern tier territory in November 1975. She was the only woman salesperson then employed by Gold Bond in its Buffalo district.

The duties of a Gold Bond salesperson included selling the company's products in the assigned territory, servicing the territory's customers with respect to those products, and seeking out new customers. The salesperson was required to file weekly activity and expense reports with the company. Each salesperson was given a sales objective to meet, and the company viewed the achievement of sales equaling or exceeding the assigned quota as the salesperson's single most important responsibility.

Krieger's performance as a salesperson generally earned her praise from the company, as in virtually every year her sales either exceeded her quotas or exceeded the performance of many of her male counterparts in the surrounding areas. In 1976, she sold 111% of her quota. In 1977, she sold more than 133% of her quota. In 1978, though she achieved only 95% of her quota, that quota had been increased by 43% over its 1977 level, and in fact her sales were $10,000 higher in 1978 than in 1977. Thus, Harley Logsdon the then - new district manager for the Buffalo district, rated her performance as "acceptable," and then-regional manager Al Burgess congratulated her for achieving "quota buster" status with her 1978 sales. For 1979, Krieger's sales performance was rated even better -- "very acceptable" -- and she was described in her overall evaluation as "competent."

In 1979, the local economy declined and Krieger's territory was closed. In December she was transferred to the rural, unstaffed Finger Lakes territory, which, like her old territory, consisted principally of small building products dealers. Despite her request in March 1980 to be reassigned to a vacancy in a more active area, Krieger remained assigned to the Finger Lakes territory until her employment was terminated in April 1981.

In the new area, Krieger sold only 87% of her quota for 1980. Nonetheless, she outperformed half of her male counterparts in the surrounding areas who, for 1980, averaged less than 80% of their quotas.

In January 1981, part of Krieger's territory was reassigned to another salesperson. Krieger's quota, however, was increased by 13%. Notwithstanding the decrease in territory and the increase in quota, Krieger's sales of more than $216,000 for the first four months of 1981 exceeded her new quota for that time period.

On three occasions after Logsdon became assistant district manager and then district manager for the Buffalo area in 1978, Krieger received criticisms for matters other than the level of her sales. In the spring of 1978, Logsdon sent her a memorandum stating that she had taken excessive sick leave and had failed to file timely reports, and criticizing her dress and overall appearance. The memorandum warned that if the deficiencies were not cured, Krieger would be placed on probation. After Krieger discussed this report with Logsdon and showed him medical records, he told her that probation was not warranted; nonetheless, in July of that year she was placed on 30 days' probation. In May 1980, Logsdon placed Krieger on 60 days' probation, citing delays in her paperwork. Ultimately, for the year 1980 Logsdon gave her a performance rating of "marginal." Finally, on January 30, 1981, citing Krieger's failure to sell the full range of Gold Bond's products and her use of her home telephone instead of personal visits to contact her clients, Logsdon placed her on 90 days' probation.

During this last probationary period, Krieger repeatedly asked Logsdon to advise her how she was progressing. He merely encouraged her to "'keep doing what you're doing.'" Decision at 9. Krieger's performance during these first few months of 1981 was indeed considered good by the company. She sold over 100% of quota during this period and was recognized in a company publication as a salesperson who had "beat the average." On April 29, 1981, however, Logsdon summoned Krieger to his office and summarily announced, "'You are no longer employed with Gold Bond.'" Decision at 11. When Krieger asked for an explanation, Logsdon said, "'It just doesn't matter, you don't work for Gold Bond.'" Id. He told her that if she did not resign, she would not be paid backpay or severance pay. When Krieger declined to resign, Logsdon fired her.

The trial court found that Gold Bond fired Krieger because she was a woman.

Gold Bond, presenting its position at trial principally through the testimony of Logsdon, contended that in fact it had fired Krieger because of her poor paperwork, her failure to sell the full range of the company's products, and her use of her home telephone to contact customers. The trial court found that the company had created a genuine issue of fact as to its claimed reasons; but it found Logsdon not to be a credible witness, and it rejected each of the company's proffered reasons as mere pretexts.

It noted that the company's sales manual stated, and Logsdon had admitted at trial, that "selling the assigned quota for the territory [was] the number-one priority" given to the Gold Bond salespersons, Decision at 19, and that the overwhelming weight of the evidence showed that Krieger's performance in this respect was good throughout her employment as a salesperson. The court found that her failure to sell the full range of the company's products could not have been a genuine reason for her termination because, given the local economy, "across the board sales were nearly impossible to make in the territories to which the plaintiff was assigned." Id. at 20. One salesman previously assigned to the Finger Lakes area testified that he too had been unable to sell the full range of products in that area and had moved on because of the territory's lack of potential ("'[he] was starving to death.'"). Id.

Similarly, the court found that Gold Bond's reliance on Krieger's tardy filing of the weekly reports was "nothing more than pretext for gender-based discrimination." Id. at 21. The court noted that Krieger had repeatedly made written requests for help in preparing these reports; she never received so much as a response to her requests for help. Further, though Krieger was often late in filing her reports, so were many other company salespersons. The court noted that Krieger's paperwork was no worse and no more tardy than that of many of the men. Yet for their tardiness the men were neither fired nor even placed on probation. Indeed, the company did not even have a procedure for placing an employee on probation. As additional evidence of Logsdon's use of a double standard where Krieger was concerned, the court noted that at the same time Logsdon was criticizing Krieger for her paperwork, he was demanding that she submit to the company false expense vouchers and pay him the unspent amounts for which she obtained reimbursement.

Finally, the court also rejected the company's suggestion that Krieger was terminated because of her use of her home telephone to contact customers. First, the Finger Lakes area covered nine counties in which Krieger had 168 customers; it would have been "nearly, if not entirely, impossible for one sales representative to make personal calls upon every account within that extensive territory," id. at 22. Further, on one customer visit on which Krieger was accompanied by Logsdon, the two had been kept waiting nearly an hour, and Logsdon had advised Krieger to use the telephone more. In addition, in March 1980, Logsdon had cut Krieger's expense allowance, specifically reducing her mileage allowance. The court also noted that the company did not provide salespersons with offices or telephones, and they normally worked out of their homes. Thus, other Gold Bond salepersons testified to their extensive use of their telephones to contact customers; none of them was fired for this.

In all, the court concluded that Krieger had "adequately demonstrated that the reasons set forth by the defendant to explain her termination are nothing more than pretexts to mask its ...


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