I scooted my chair close to her and rested her small hand in mine, amazed at how light it felt. It shook a little, her skin brushing mine as lightly as the fluttering of a butterfly’s wing. With my other hand I smoothed the hair above her forehead like I used to do to Vickie when she was sleeping. I was amazed that Edna’s expression seemed so sweet and was reminded of when I was a child and she would wrap my feet with blankets warmed by the stove. How I would long for her to stay on my bed and talk to me. She didn’t linger once her job was done. During my entire life, I’d waited for her in those quiet moments before bed or the unsure seconds before I stepped on the school bus to tell me, “I love you.” But something about me must have disappointed her so deeply, she couldn’t bring herself to say those three simple words.
Lost in my thoughts and memories, it took me a minute to feel the stillness in my hand. I leaned toward Edna’s face to listen closely. Her rattled breath was quiet. I sat, afraid to let go, afraid to shatter the stillness with the inevitable, numbing details of practical action, my sadness deepened by my shame: Not once had I ever told her that I loved her, either.
CHAPTER 8
Protecting My Good Name
Protect Our Good Name.
—GOODYEAR MOTTO
SOON AFTER I took the early buyout October, 31, 1998, I was contacted by a Goodyear attorney. The company was offering me a small sum of money to settle the EEOC complaint I had filed. It seemed that the constant upheaval in my life would never end, and I was ready to put the past couple of years behind me—finding the note and filing the complaint, undergoing knee surgery, nursing Edna, being told my position was being eliminated, and coming to terms with retiring early had added up to a never-ending ordeal. Glad about the idea of moving on and eager to focus on Charles and my grandchildren, I made a counteroffer, agreeing to accept two years’ back pay as the next-lowest-paid person in the department. I never received a response from Goodyear.
Shortly afterward, in October 1999, I was issued the right to sue by the EEOC for the claim I’d made the year before. I lost no time contacting a young attorney I’d heard about, Jon Goldfarb, who’d been practicing for seven years, specializing in employment discrimination. The word was that he took pro bono cases, and I was hopeful he’d represent me.
We met at his office in Birmingham. As I told my story, he listened, taking notes, stopping me to ask questions, sometimes asking me to repeat an incident, his dark brown eyes flashing with a hint of anger. Jon didn’t mince words, and he immediately gave me a feeling of confidence. Though he had a natural sense of authority, it was the intensity in his eyes that assured me I’d found the right person to argue my case, to stand up for what was right.
To my great relief Jon agreed to take my case that very day. Sometimes I wonder if he would have made the same decision if he’d known what the process would entail and the ultimate outcome. By the end of the trial, if all of the documents were vertically stacked, they would create a fifty-foot tower, tall as a three-story building. To make matters more challenging, this process involved twentieth-century technology—briefs, complaints, and appeals were either faxed, mailed, or hand-delivered. Today everything is filed electronically.
The time between the filing of the lawsuit on November 24, 1999, and the actual trial on January 21, 2003, was more than three years of my life. I can’t tell you how many miles I drove on the road to and from Birmingham, skirting strips of blown-out tires (known as “gators”) littering the highway, fighting construction delays, and avoiding wrecks. By the time of the trial, Jon, who had only two children when I met him, would be a father of four.
The number of hours and days translated into over half a million dollars in the law firm’s time and out-of-pocket expenses. I depleted our 401(k) account just to make ends meet. Charles assured me that we’d started out with nothing and survived, and if we ended up with nothing in order to fight this battle, well then, we’d take care of ourselves one way or another. Even though I’d worked my entire life, motivated by fear, ambition, love for my family, and a desire to keep from slipping back into poverty, when you’ve lived with cracks between the floorboards so large a cat could fit through them, it’s not so scary to imagine being destitute. And I would rather be financially devastated than live the rest of my life feeling victimized.
I’m not sure how to calculate the emotional toll suing a multibillion-dollar corporation takes. From the day I filed the lawsuit, I opened my eyes every morning to the knowledge that I had no control over the outcome, and it’s what gnawed at me until I closed my eyes at night.
I struggled to relax, to breathe deeply. I was imprisoned by each long moment leading to the trial; I wanted to fast-forward time, to wake up the day after the trial. But I had to force myself not to become lost in my musings about a future I couldn’t predict. I focused on what I could control: my preparation.
My greatest joy came from spending time with Charles. For the first time since we’d been married and had children, Charles and I were at home together. He puttered around in his workshop making elaborate, whimsical birdhouses, battling the squirrels as he tested out different bird feeders, filling them till they brimmed over with the gourmet birdseed he liked to buy. I’d hear him in the living room calling my name, as urgent and persistent as a fire alarm. I’d run to see what the emergency was, and there he’d be looking through the window, muttering as a crafty squirrel swung on top of the bird feeder he’d thought for sure was squirrel-proof. They thwarted his best efforts each time. Often, I’d go bargain hunting when he was gardening. While I watched TV, he read biographies about men such as Ted Turner, Billy Graham, and Bear Bryant. He went through every book in the Left Behind series.
Many nights we watched his favorite show, Law & Order, but we had no idea how justice unfolded in real life. I could not even begin to comprehend the depth and breadth of what a lawsuit actually involved, and how hard it would be, even under the best of circumstances, to prove my case. Suing Goodyear was like giving birth: There’s no way to know what it feels like until you’re smack-dab in the middle of pushing that baby into the world. I soon became familiar with legal terms and phrases, most of which I’d heard on TV: depositions, affidavits, subpoenas, exhibits, briefs, mediation, witness lists, exhibit lists. Many I’d never heard, such as Motions to Compel, Summary Judgments, cat’s paw,* and quid pro quo harassment. The list seemed endless.
Goodyear stalled, of course, at every possible turn, refusing to deliver documents. They stalled so handily that in the fall of 2000, after months of preparation and multiple requests for employee records and other key documentation, Jon was forced to file a Motion to Compel, asking the court to order Goodyear to produce the information it had refused to turn over to him, such as the rates of pay of my male coworkers. Thankfully, the court granted the motion and ordered Goodyear to produce the requested information.
To see the real pay disparity there on paper and to see how cheap I was compared to my male coworkers made me realize that I must have been just a joke to Goodyear’s human resources department. Seeing the difference in front of me confirming what I’d long suspected hurt more than my wondering thoughts. It was clear that Goodyear didn’t play fair, never had, and never would as far as I was concerned; this, along with my painful memories, fired me up even more during this long phase of preparation.
TO PREPARE for my deposition, I’d spent numerous hours discussing with Jon what had happened and when. A deposition, Jon explained, is like your life in a book in the most negative light. Goodyear’s lawyer would ask me the most minute details from every phase of my career at Goodyear, knowing how easy it could be to confuse me when I was trying to remember and recount events and conversations that happened long ago.
I was nervous before the day I was to be deposed, but I was willing to walk through fire and brimstone to do what I needed to do, and I didn’t throw up like Jon had warned me many people do.
My deposition was a ten-hour ordeal.
Th
e defense attorney who took the deposition was a seasoned corporate defense litigator from the law firm Bradley Arant Rose & White. At first Jay St. Clair, a middle-aged man dressed in a perfectly tailored suit, asked basic questions. He joked a little with me about football and seemed like a regular guy. But as the day wore on, he started picking apart my answers in an increasingly insinuating tone. The last several hours, he’d repeat the same questions over and over again, his open, friendly manner replaced by rapid-fire questioning.
My head spinning and my heart beating so fast I felt nauseous, I knew what he was doing. He was trying to beat me down, confuse me, make me stumble and trap myself in a web of words. I stuck to the truth. I sweated so much that day that even the dry cleaner couldn’t eliminate the dark crescent stains of nervous perspiration in the armpits of my jacket. I never wore that blue suit again.
After my own deposition, I attended every deposition of the Goodyear men, about ten all together. I sat across the table, stiff, my emotions glazed, listening to their defensive account of our working life at Goodyear. One plant manager got so mad, ranting and raving at Jon, that he had to be excused, his attorney claiming that his heart wouldn’t be able to stand the stress of a trial. His outburst didn’t surprise me one bit; this time he couldn’t intimidate me, and he acted out with impotent rage when he lost control of the situation.
After another deposition, from a former plant manager who had been vicious toward me for a long time, the man shook my hand and said, “I’m sorry. I hope it goes well, and I do hope you get what you deserve.” I was shocked by this unexpected change of heart. He’d retired by then. Maybe being away from the performance pressure and outside the internal politics of the plant had given him a different perspective.
WHEN JON filed my complaint, the four counts in my claim fell under three separate laws: the Equal Pay Act, Title VII of the Civil Rights Act of 1964, and the Age Discrimination in Employment Act.
The first count came under the Equal Pay Act of 1963,* which makes it illegal to pay men and women different wages for equal work on jobs that require equal skill, effort, and responsibility and are performed under similar working conditions. My suit contended that I was “similarly situated” (that is, I had similar qualifications, experience, and tenure with Goodyear) and was doing the same work as my male coworkers but was paid less. After my transfer to the technology engineer position, I was again paid a lower rate than the other, male technical engineers in a “willful and malicious” (acting with full knowledge of the consequences of the action) manner because of my sex.
Under this act, if I’d only experienced pay discrimination, I could have hired an attorney and filed a lawsuit two years from the day I received my last discriminatory paycheck, skipping the step of filing an EEOC charge to obtain a “right to sue” notice.
But the Equal Pay Act (EPA) only ensures that employers can’t deny equal pay for equal work, while Title VII encompasses sex discrimination more broadly to ensure that employers can’t deny women transfers, promotions, or raises; manipulate evaluations to reduce pay; or segregate employees according to their gender. All of these situations I’d encountered, so under Title VII, I was required by law to start the legal proceedings through the EEOC office.
Count two, which claimed “disparate treatment,” fell under Title VII of the Civil Rights Act.* I was discriminated against in wages. I performed work “equal or substantially equal” to that of the male area managers but received less pay for a “substantially similar” job. Despite my expressed interest in overtime, I was offered overtime last, only after the other, male managers had been offered it. I was also discriminated against in evaluation and terms and conditions of employment, in which I received a low score while men performing the same job in the same manner received a higher score; I was excluded from meetings and involuntarily transferred from a supervisory position, which reduced my pay and benefits. Out of the sixteen managers, I was the only area manager transferred, and the position I vacated was filled by a man. Once I left as a supervisor, there were no other women in management. Despite receiving no training, procedure manual, or job description, I did my job, a grueling assignment. I was also suspended for supposedly making an error, while men who had made similar mistakes had not been.
Also part of Title VII is the provision known as the Paycheck Accrual Act, which defines the starting point for discriminatory behavior as the last discriminatory paycheck issued. In other words, each new paycheck is a new starting point for the discriminatory act. This provision would become an important element of my case as it progressed.
Count three came under the Age Discrimination in Employment Act† and also claimed disparate treatment. I was discriminated against because of my age by being transferred and replaced by a younger coworker. A male in his twenties filled this vacant position. Significantly younger, male area managers made substantially higher salaries for equal work. At the time these events occurred, I was over the age of forty, the oldest manager. After complaining to my supervisor about being discriminated against, I was instructed that it was in my own best interest to accept the transfer. I was further retaliated against when I applied to be rehired and was told that Goodyear was not rehiring, when in fact five area-manager positions were available and one person was rehired.
Because my work environment was hostile and abusive, we decided to file a constructive-discharge complaint under Title VII as count four, which meant that the intolerable working conditions I experienced as a technology engineer were intended to force me to quit. The environment was so hostile and abusive that I suffered depression and underwent medical treatment. Eventually, the conditions of being a technology engineer and the unwarranted discipline forced me to resign against my will.
I belabor these dry, often tedious points because the judicial process would become for me a quagmire of interpreting and reinterpreting the intricacies of these laws. It’s also important to note the ripple effect sex discrimination had on my career and the devastating consequences for my income and quality of life. Goodyear effectively relegated me to being a second-class citizen for the rest of my life.
AFTER DISCOVERY ended, Goodyear filed a Motion for Summary Judgment to dismiss the lawsuit on all claims; this, Jon assured me, was typical in discrimination cases. Our case was before a magistrate judge, John Ott. Judge Ott issued a Report and Recommendation that recommended granting Summary Judgment on all claims except the three-day suspension for the tire hold. He reasoned that on this claim I’d offered sufficient evidence by citing several incidents in which other employees who were responsible for tire holds weren’t suspended as I was. We appealed the rest of his ruling to an Article III judge and caught our first break.
Judge U. W. Clemon was Alabama’s first African American federal judge and had a long history as a civil rights activist. He was randomly selected to review the magistrate judge’s order and try the case. On July 31, 2002, Judge Clemon overruled Judge Ott’s Report and Recommendation. He kept the Title VII discriminatory pay claim that I was discriminated against for being a woman, the age discrimination claim, the retaliatory refusal to rehire claim, and the unfair suspension claim. He agreed with the magistrate judge’s decision to throw out the retaliatory evaluation and transfer claim, the constructive discharge claim, the lack-of-training claim, and the pay-discrimination claim falling under the Equal Pay Act. Later, after all was said and done, there would be criticism that this case wasn’t handled properly because the pay claim under the Equal Pay Act wasn’t included, but it was. Judge Clemon upheld Judge Ott’s ruling to throw it out, but we had a pay claim under Title VII that allowed us to move forward. Interestingly, the pay claim under the EPA has a more difficult standard for proving discrimination in jobs with similar working conditions and performed with equally substantial work than the 1964 Civil Rights Act does.
The trial date was set for January 21, 2003, Jon’s thirty-ninth birthday, and after his fourth child’s due date.
The maj
ority of cases like mine settle out of court, a situation that can occur at any point in the process. Three weeks before the trial date, we met with the Goodyear attorney, Jay St. Clair, to mediate the case. Fern Singer, a well-known employment attorney who’d mediated hundreds of cases, attempted to mediate a negotiated settlement. To no avail.
Goodyear offered what my counsel deemed an insufficient amount. They also offered to rehire me two days a week for two years, working with a human resources manager named Thomas they knew I liked. I suspected those two days would amount to my sweeping lampblack in the mill room on Saturday and Sunday. I also knew that Thomas was due for a transfer, which happened shortly after the mediation.
At one point during our preparation for the mediation, Fern commented, “The law is frequently an ass.” I didn’t quite know what she meant, but I assure you, by the time I reached the end of this long road, I understood it well. All I knew after the mediation was that I wanted what I’d already earned, not the pittance they’d offered.
BY THE time the trial rolled around, I’d called more than one hundred people to ask them to testify on my behalf. Mostly I was turned down. The reasons varied: They couldn’t afford to lose their jobs, they wanted to avoid controversy, they were afraid of placing themselves and their families at risk in a town where Goodyear was the nerve center. We scrounged up four witnesses: Sharon; Rodney; Karen, a former manager; and Joe, a union pipefitter. All but Karen still worked at the plant, so they were taking a huge personal risk by testifying, and I knew way back then I couldn’t ever repay them for their commitment to this case. I worried after they testified they’d all be forced to quit, but that didn’t stop them from agreeing. There was no hesitation on their part, no abrupt no, no hanging up in my face, no “I’ll think about it.”
Grace and Grit Page 17