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HELBLING v. UNCLAIMED SALVAGE & FREIGHT CO.

May 19, 1980

FLORENCE HELBLING
v.
UNCLAIMED SALVAGE AND FREIGHT CO., INC.



The opinion of the court was delivered by: BRODERICK

MEMORANDUM

The plaintiff, Florence Helbling, brought this suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. ยง 2000e et seq., alleging that the defendant, her employer, denied her a promotion to the position of store manager on the basis of her sex. The question of liability was tried by the Court on April 16-18, 1980. For the reasons hereinafter set forth, the Court finds that defendant denied plaintiff a promotion on the basis of her sex, in violation of Title VII.

 The parties entered into the following stipulation of fact:

 
Plaintiff was hired as a cashier by Defendant on August 8, 1976, to work in its Levittown store. The manager at the time Plaintiff was hired was Michael Smith. Michael Smith left the employ of Defendant on October 16, 1976. At that time, Howard Feuerbach worked for Defendant as a supervisor for all its stores and was in charge of interviewing applicants for the position of manager of the Levittown store. Howard Feuerbach interviewed Ray King for the position of manager of the Levittown store. Ray King was hired as a trainee on November 1, 1976. On November 8, 1976, Florence Helbling was officially placed on the payroll of Defendant as assistant manager of the Levittown store. Florence Helbling continued in this position until sometime in January of 1977. On February 9, 1977, Plaintiff left the employ of the Defendant.

 According to plaintiff's testimony, she held a series of retail jobs before coming to work for defendant; most of these positions were either temporary or part-time. While plaintiff was hired by defendant as a part-time cashier, her hours of work and duties gradually increased so that she assumed the duties of head cashier, scheduling the work of other cashiers.

 Both plaintiff and Michael Smith testified that, while he managed defendant's Levittown store, he trained plaintiff in the duties of assistant manager. She learned to perform the following duties: setting up and posting daily work schedules, supervising employees, checking inventory, ordering merchandise, counting contents of cash drawers, and preparing daily reports of receipts. Michael Smith gradually delegated these tasks to plaintiff, and informed defendant's management that he was doing so. Smith requested that plaintiff be given the position of assistant manager, but defendant did not agree at the time. Before Smith left defendant's employ on October 16, 1976, plaintiff was independently performing all of the managerial duties listed above.

 On October 16, 1976 Michael Smith gave plaintiff the keys to the store and informed her that he was resigning. He had not informed defendant's management that he was leaving, and plaintiff called the President, Joseph Colabella, to inform him.

 The Levittown store was without a manager from October 16 through November 1, 1976. During that period, defendant sent its supervisor, Howard Feuerbach, to supervise the operations of the Levittown store and to recruit a new manager. During this period, plaintiff acted as the manager and performed the following managerial duties: opening and closing the store, setting up and posting daily work schedules, handling customer complaints, supervising personnel, taking inventory, placing orders, counting money in the register drawers, placing money in the safe, making daily reports to the main office, counting daily receipts and making bank deposits.

 All of plaintiff's witnesses testified that, during plaintiff's tenure with defendant, both male and female employees, including plaintiff, participated in unloading trucks and carrying furniture and other heavy items. Shipments of large and heavy items arrived only occasionally.

 Plaintiff requested that Mr. Feuerbach consider her for the manager's position. He told her that it was not necessary for her to file a formal application, since her application was on file in the main office. When she inquired a second time about the manager's position, Mr. Feuerbach told her that it was the policy of company President Joseph Colabella not to consider women for the store manager position. Sherry Leonard, an employee of defendant at the time, testified that she overheard Mr. Feuerbach make this statement to the plaintiff.

 Defendant objected, on hearsay grounds, to the testimony of plaintiff and Sherry Leonard as to Mr. Feuerbach's remark that it was defendant's policy not to hire women as managers. Rule 801(d)(2)(D) of the Federal Rules of Evidence provides that a statement made by a party's "agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship" is not hearsay. The Third Circuit has held that Rule 801(d)(2)(D) permitted the admission of testimony that a managerial employee of defendant had informed plaintiff that he was not hired because he was "blacklisted". The Court found that the managerial employee had at least implied authority to inform plaintiff of the reason he was not hired. Baughman v. Cooper-Jarrett, Inc., 530 F.2d 529, 531 (3d Cir.), cert. denied, 429 U.S. 825, 97 S. Ct. 78, 50 L. Ed. 2d 87 (1976). Similarly, here, Mr. Feuerbach was a managerial employee to whom defendant's president had assigned major responsibility for hiring the Levittown store manager. His statement to plaintiff was a statement of company policy, made within the scope of his authority. Defendant did not produce Mr. Feuerbach to refute this testimony, though Mr. Colabella testified that he could have located him.

 A short time after Mr. Feuerbach advised plaintiff that she would not be considered for the position because she was a woman, defendant hired Ray King as manager of the Levittown store on November 1, 1976. Mr. King had replied to the newspaper ad, was interviewed and recommended by Mr. Feuerbach, and Mr. Colabella gave final approval to his hiring. On November 9, 1976, plaintiff was made assistant manager of the Levittown store. In January, 1977, after the Christmas holiday season, Mr. Colabella told plaintiff she would have to return to the cashier position if she wished to remain with defendant. She reluctantly agreed to do so, at a rate of pay of $ 2.65 per hour. In February, 1977 she was told by Mr. King that her working hours were reduced to fourteen per week. Thereafter, she had a disagreement with Mr. King, and she left defendant's employ on February 9, 1977.

 Plaintiff introduced into the record the following portions of the deposition of Mr. Colabella, the President of defendant:

 
Q. Now, what are the requirements of assistant manager?
 
A. I would say the same qualifications as manager.
 
Q. So, are you saying an assistant manager has to have had some ...

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