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Levendos v. Stern Entertainment

filed: July 25, 1990.


Appeal from the United States District Court for the Western District of Pennsylvania; D.C. Civil Nos. 84-3051 and 84-3053.

Sloviter, Nygaard and Aldisert, Circuit Judges.

Author: Aldisert


ALDISERT, Circuit Judge.

In the primary appeal at No. 89-3727 we must determine whether the district court erred as a matter of law in injecting a notice requirement into the doctrine of constructive discharge under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-2000h-6 (1982). Subsumed in this problem are two somewhat related but distinct subordinate inquires: whether the existence of notice vel non is a question of fact, and if so, was the court clearly erroneous in finding no notice (a) on the basis of imputed notice to the employer based on actions of and notice to supervisory employees or agents of the employer, or (b) on the basis of inferred notice to the employer given the small size of the business enterprise and repeated unsuccessful efforts by the employee to reach the employer to complain about acts of gender discrimination.

The appeal at No. 89-3791 concerns attorney's fees relating to the primary case.

Jurisdiction was proper in the trial court based on 42 U.S.C. § 2000(e) et seq. and 28 U.S.C. § 1331. Because there was an issue as to whether this was a final judgment under 28 U.S.C. § 1291, we permitted counsel for both appellant and appellee to file a joint request for certification under Rule 54(b) Fed.R.Ci v. P. The district court so certified the judgment, thereby removing any problem of jurisdiction. The appeal was timely filed under Rule 4(a) F.R.A.P.

A district court's findings of fact may be set aside on appeal only if they are clearly erroneous. Amadeo v. Zant, 486 U.S. 214, 100 L. Ed. 2d 249, 108 S. Ct. 1771 (1988). The standard of review with respect to alleged error in applying law to facts, however, is plenary. See United States v. Adams, 759 F.2d 1099, 1106 (3d Cir.), cert. denied, 474 U.S. 906, 106 S. Ct. 275, 88 L. Ed. 2d 321 (1985); Gaines v. Amalgamated Ins. Fund, 753 F.2d 288, 290 (3d Cir. 1985).


We are familiar with the concept of constructive discharge in Title VII cases, having described it as "acts of discrimination in violation of Title VII [that] make working conditions so intolerable that a reasonable employee would be forced to resign." Goss v. Exxon Office Systems Co., 747 F.2d 885, 887 (3d Cir. 1984). Nor are we strangers to this case, having previously considered an appeal from this appellant, Elizabeth Levendos, in Levendos v. Stern Entertainment Inc., 860 F.2d 1227 (3d Cir. 1988) (hereinafter Levendos I). The facts are not complicated.

Appellees Stern Entertainment, Inc., and Stern Entertainment System, Inc. operated the Les Nuages Restaurant and the Heaven Night Club, both located in the Fulton Building, Pittsburgh, Pennsylvania. They employed Levendos in their restaurant. She began as a waitress in 1979 and was subsequently promoted to maitre d' and pastry chef during 1981 and 1982. Levendos contends that she was constructively discharged on April 22, 1982, when she submitted her resignation. Her salary as maitre d' and throughout her employment was $300.00 per week; as pastry chef she received additional compensation equal to one-third of the pastry receipts.

On December 21, 1984, after receiving a Notice of Right to Sue from the Equal Employment Opportunity Commission (EEOC), she filed a complaint in the district court alleging a violation of Title VII of the Civil Rights Act of 1964. She alleged that the appellees constructively discharged her from her employment as maitre d' and pastry chef at their restaurant based on her gender, and that their supervisory employees made working conditions so intolerable that a reasonable person in her situation would resign.

On January 22, 1987, the district court consolidated the claim of Elizabeth Levendos with that of her daughter, Katerina Levendos, who had alleged that she was terminated from the same establishment as a waitress based upon her gender. On September 9, 1987, the court entered summary judgment against appellant Elizabeth Levendos, but allowed Katerina's case to proceed to trial. As to Elizabeth, the court held that even if the facts Levendos alleged were true, they did not establish, as a matter of law, that she was constructively discharged from her position.

Elizabeth successfully appealed. We held that the allegations of Levendos "contain[ed] both the quality and quantity of evidence sufficient to allow the question of constructive discharge to go to a jury." 860 F.2d at 1232. Determining that the events of alleged discrimination described by her were "clearly not trivial" we remanded the case for further proceedings.

By this time, the district court had already conducted its trial with respect to the daughter, Katerina. In light of our decision that vacated and remanded the case of Elizabeth, the lower court re-consolidated the two cases for the purpose of receiving further evidence. During the second set of hearings held April 19-24, 1989, the district court concluded that the evidence and testimony received in each trial were applicable to both cases.


During the course of trial, appellant Elizabeth Levendos introduced testimony that her treatment by management began to deteriorate by the end of 1981. She specifically introduced testimony to demonstrate the following events:

1. She began experiencing difficulty in ordering supplies, which adversely affected her ability to run the restaurant as maitre d'. ...

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