Opinion
Nos. C-C-76-191-M, C-C-79-130-M and C-C-79-137-M.
October 10, 1986.
Michael A. Sheely, Charlotte, N.C., for plaintiffs.
John O. Pollard, Blakeney, Alexander Machen, Charlotte, N.C., for defendant.
This case was tried to the court sitting without a jury. The court issued a memorandum of decision finding in favor of certain plaintiffs and against certain plaintiffs on the merits. Lilly v. Harris-Teeter Supermarket, 503 F. Supp. 29 (W.D.N.C. 1980). Detailed findings of fact, conclusions of law and a final judgment were filed on July 13, 1982. 545 F. Supp. 686 (W.D.N.C. 1982). Defendant appealed, and the decision of this court was affirmed in part and reversed in part in an opinion which appears at 720 F.2d 326 (4th Cir. 1982).
The Court of Appeals:
1. Affirmed the decision of this court in favor of the plaintiffs Lilly, Gregory and Porter;
2. Affirmed the action of this court in denying relief to all plaintiffs as to whom this court denied relief;
3. Remanded the case for reconsideration of the decisions which this court had made in the claims of the following persons for denial of promotion upon racial grounds: James Mobley; Philip Reed; Jerome Gary; Christopher McKinney; Roy Torrence; Roosevelt Patterson; Curtis Jones; Frank Sullivan; Ken Bailey and John LeGrand; and
4. Remanded the case for reconsideration of attorney fees.
The court has re-examined the claims of the ten persons who were found to have been denied promotion upon racial grounds.
The findings of this court on the promotion claims did not rely and do not rely upon the probative effect of the statistical analyses, regression or otherwise, of the experts who testified. The decision as to each employee is based upon
(a) The specific practices of the defendant, shown abundantly by the evidence, which are set out on page 30 of the original memorandum of decision, 503 F. Supp. 29 (W.D.N.C. 1980), as follows:
The particular practices which effectuated discrimination against black employees are the following:
1. Jobs were not posted.
2. Written job descriptions were not available.
3. There was no written promotion system.
4. There were no written promotion criteria.
5. There was no requirement nor suggestion that an employee ask for a particular job in order to be considered for it.
6. There were no written job evaluations for warehouse workers.
7. No written list was maintained of employees wanting to change to other or better jobs; only a "mental" list was kept by foremen and supervisors of persons who may have shown interest in a particular job.
8. Requirements for "lead" jobs included the following:
(a) Correct "attitude";
(b) Initiative; an employee must not only excel in his job but say he wanted to get ahead (this requirement of "speaking up" was never publicized).
9. Promotions were available only within the same shift (with exceptions for various whites).
10. Promotions were available only within the same department (with exceptions for various whites).
11. Refusals by blacks to take jobs on particular occasions, regardless of circumstances, were carefully remembered, but such blacks were never asked whether they had changed their minds.
12. Previous job experience was not systematically recorded. Relevant job experience of blacks not noted on the application form was deemed not to exist; however, word of mouth information about the job experience of whites was remembered.
As usual, statisticians testified on both sides of the case. Statisticians for the plaintiffs selected data and made comparisons which generally support the plaintiffs' contentions, and statisticians for the defendant testified generally about other figures and opinions which support the position of the defendant. To a tremendous extent the opinions were determined by the choices of samples and the elements of the labor market and the employer's work force which were compared with each other. The statistical evidence generally shows about what the raw data shows — that blacks had less chance of getting good jobs than whites and less chance of getting promotions than whites.
(b) The detailed evidence about the treatment of each individual plaintiff, as summarized in the original memorandum of decision and in the findings of fact and conclusions of law in 545 F. Supp. 686, at 691-698 (W.D.N.C. 1982).
No presumption, statistical or otherwise, was entertained that plaintiffs who sought promotions would probably win. Three persons who sought promotions (plaintiff Mack Ervin, plaintiff Woodrow McManus and plaintiff Richard Burch) were denied promotion even though they had prima facie proof, for the reason that the court was not persuaded that race played a moving part in the employment decisions affecting them. The "ADDITIONAL FINDINGS OF FACT AND CONCLUSIONS OF LAW" dated June 17, 1981 (document number 23), contain the following specific findings as to Mack Ervin, Woodrow McManus and Richard Burch:
III. Mack Ervin.
Mack Ervin claimed that he was paid less than a white employee performing the same job as he. His testimony in support of his claim was inconsistent with his own exhibits consisting of extracts from personnel files.
Although Ervin claimed that a white employee, Strann, received five cents more per hour than Ervin received when raises were given on May 3, 1976, the personnel files showed that Ervin was classified as a picker on May 3, 1976 rather than as a lift operator. Strann's personnel file shows that Strann had been classified as a lift operator since November 11, 1974. The documents are more credible evidence than Ervin's unsupported assertions. Ervin did not show that he was performing the same duties as Strann.
* * * * * *
VIII. Woodrow McManus.
McManus was hired in September 1974, as an order puller (selector) in the warehouse. During the course of his employment McManus took courses in computer programming at Central Piedmont Community College. McManus testified that prior to the completion of his studies, he saw a notice on the employee bulletin board of an opening for an RPG Programmer within the defendant's computer department. He said that he applied for the position of RPG Programmer but was advised he would not be selected because he had no experience.
Documentary evidence showed that there were three programmers in the computer department in mid-1975. The first available opening for a programmer came in October 1976, and it was filled from within by promoting a black computer operator into the position. There were no openings for a programmer at the time McManus said he applied. The company had never used the computer language referred to in the "RPG" designation and had never advertised such a position. McManus failed to establish a prima facie case, and, even if he did, defendant's evidence provided ample rebuttal.
* * * * * *
X. Richard Burch.
Burch was hired on February 9, 1976, as a wash man. He is still employed by the company.
Burch claimed that he was not permitted to enroll in a truck driver training program because of his race.
Some time after August 1976, Burch requested that he be placed in the training program. He was placed on a list of individuals to be trained. In November 1976, Burch joined a strike against the company and did not return until August 29, 1977.
In 1976, as a result of a grievance filed on his behalf by the union, Burch was given a driver road test to determine whether he was qualified to operate a tractor-trailer unit. The test was administered by Marshall Little, a black supervisor in charge of driver training. Little determined that Burch was not qualified.
Prior to the strike by employees in November, 1976, the company did have a driver training program which was suspended during the course of the strike. At the time of trial, the program had not been reinstated, but a proposal for its reinstatement had been submitted to the union pursuant to the company's collective bargaining obligation.
Burch failed to establish that between the time of his request and the beginning of the strike any white employees were accepted for the training program who were less qualified than Burch. Burch's race did not play a part in his inability to obtain a position within the training program.
The other seven plaintiffs (Hazel Fisher, Shirley Gatewood, William Carrothers, Barbara Anderson, Austin Pharr, Tresevant Goodwin and Therrell McMoore) (asserting claims other than promotion) were expressly found by the court, on conflicting evidence, not to be entitled to recover on matters like discharge, maternity leave, unequal pay, denial of re-hire and discharge for errors in production.
If the court had been proceeding in fact upon a presumption based upon statistics, it might well have found in favor of those seven plaintiffs.
In the cases of every one of the ten plaintiffs whose promotion claims were allowed, it was the finding of this court that, on the facts of each individual case, the plaintiffs were entitled to recover. The court was satisfied from the ad hoc evidence as to each particular plaintiff that the reasons stated by the defendant were pretextual.
I have photographed, and there appear in parallel columns below, copies of the specific findings as to each of those ten plaintiffs as those findings appear (left hand column) in the original memorandum of decision, 503 F. Supp. 30-32, and as they appear (right hand column) in the final order and judgment, 545 F. Supp. pp. 710-714.
503 F. Supp. 29, et seq.: 545 F. Supp. 686, et seq.:
James Mobley. — James Mobley, a James Mobley has proved a lead man in the milk-dairy-meat prima facie case in that he departments, was denied several was qualified for promotion, promotions which went to white there were vacancies, he was employees (Terry Givens, Allison not promoted, and whites and Jeff Fowlkes), all of whom were were promoted. See e.g. junior to him. Although Mobley went Higgins v. State of Okla. on strike in the winter of 1976-77, Ex. Rel. Okla. Emp. Sec., 642 he was available to work by F.2d 1199, 1201 (10th Cir. February of 1977 and notified his 1981). Harris-Teeter stated employer of his availability and that the promotees were more willingness at the times that the qualified, Mobley was on other three men were promoted. strike when Allison was promoted, and Mobley was in a different department/shift. Standing alone, each reason is legitimate and non-discriminatory. Considering all of the evidence, said reasons are pretextual. Mobley was more qualified than the promotees because of his job experience, including "fill-in" leadman duties and performance. He was never considered for the Allison and Givens leadman openings. Allison was promoted some 8 weeks after Mobley informed the company that he was available for work. The same shift/same department defense for not promoting Mobley to the "defacto leadman" position of Jeff Fowlkes is invalid because of the way the practice was applied, and the adverse impact of said application upon blacks. See Finding 16. Finally, this conclusion is supported by the nature of the promotion system at Harris-Teeter and its adverse impact upon blacks. Mobley was denied promotions received by Givens, Allison, and Fowlkes because of his race.
Philip Reid [Reed]. — Philip Philip Reed established a Reid applied in April of 1976 for prima facie case when he a job as a produce manager. He was showed that he applied for hired as a produce clerk but was the position of produce never promoted to manager. White manager twice, that he was persons who were promoted ahead of qualified, that vacancies him but were no better qualified existed, and that less were Andy Wilson and Warren Allen. qualified whites were He is entitled to compensation for selected. Defendant's stated being denied promotion to produce reasons were that the manager because of his race. His selectees were more discharge, however, I do not find qualified and that there was to be the result of racial no vacancy. These reasons, discrimination. standing alone, are legitimate, non-discriminatory reasons. Considering all of the evidence, defendant's reasons are pretextual. There were vacancies. Reed had more retail grocery management experience and was more qualified than the promotees. Harris-Teeter was aware of this experience but ignored it, just as it did with other black employees. See Finding 19. Reed was never considered for either position. The statistics show that 104 whites and 4 blacks were promoted to store management positions in 1975-76. Reed was affected by the discriminatory nature of the promotion system. Reed was denied the promotions received by Allen and Wilson because of his race.
Jerome B. Gary. — Jerome Gary, a Jerome Gary has proved a fork lift operator and stocker with prima facie case by showing two years of work as an automobile that he was neither promoted mechanic and auto body worker, was nor transferred; he sought denied opportunity because of his the positions; there were race to transfer to a mechanic's vacancies; he was qualified; job. Two white employees (Burris and, whites received said and Richards) were allowed to positions. Harris-Teeter's transfer. Gary was also for the reasons for neither same reason denied transfer to a promoting Gary (not "sit down" lift truck operation qualified) nor transferring although white employees were (never asked) standing allowed to make that transfer. alone, are legitimate, non-discriminatory. Considering all of the evidence, said reasons are pretextual. The Court resolved the credibility issue of whether Gary asked for the sitdown lift in favor of Gary. In reference to the mechanic's position, Gary was more qualified than the selectees because of his education and job training. The statistical evidence in Finding 26 also supports this conclusion. Finally, this conclusion is supported by the nature of the promotion system at Harris-Teeter and its adverse impact upon blacks. Gary was denied a transfer to the sitdown lift and a promotion to mechanic because of his race.
Christopher McKinney. — This Christopher McKinney has plaintiff started to work June 18, proved a prima facie case in 1975, in the Harris-Teeter that he was qualified for a warehouse as a lift truck operator, promotion, there were and his duties have not changed vacancies, he was not since that time. He had previous promoted, he expressed an experience as a line foreman, interest in promotion, and supervising several machine whites were promoted. operators. He sought promotion to Harris-Teeter stated that it lead man or foreman but the jobs did not promote McKinney were given to Guy Fowlkes and to because he was not Weaver. Fowlkes, though not qualified, and he was on formally appointed lead man, was strike when the positions given the duties of a lead man in were filled. Standing alone, the fall of 1976 before the 1976-77 each reason is legitimate strike and was made a management and non-discriminatory. trainee and foreman in 1977. Weaver Considering all the was hired during the strike and was evidence, said reasons are junior to McKinney in experience pretextual. A Harris-Teeter and qualifications. McKinney was witness testified that denied the jobs because of his McKinney was not qualified race. because of his poor work record and that persons received warnings when they had a poor work record. McKinney did not have any warnings. McKinney was more qualified than either promotee because of his greater departmental and supervisory experience. McKinney informed Harris-Teeter of his availability for employment before either position was filled. McKinney worked in the same department and on the same shift as each of the openings. Each promotee crossed either a departmental or shift line to receive the promotion. This violated the same shift/deparment rule. Finally, this conclusion is supported by the nature of the promotion system and its adverse impact on blacks. McKinney was denied the promotions received by Fowlkes and Weaver because of his race. Roy Torrence. — Torrence, hired Roy Torrence has proven a in 1974, had owned and supervised prima facie case in that he a restaurant for eight or nine was qualified for promotion, years. He was qualified for he expressed interest in promotion to lead man or foreman. promotion, he was not He had supervised a number of promoted, there were employees in a previous job. A vacancies, and whites were white employee (Mitchell) was promoted. Harris-Teeter trained by him and was then stated that it did not promoted over him. A white employee promote Torrence because he (Hanson), junior to him and no did not ask for a position, better qualified, was promoted over and he was a poor employee. him. He was denied promotion Standing alone, each reason because of his race. is legitimate and non-discriminatory. Considering all of the evidence, said reasons are pretextual. Torrence asked for a promotion. He was told he would never be promoted. Torrence was rated as an excellent employee. He had prior supervisory experience. He was never considered for the Mitchell position. He was more qualified than either of the promotees (Mitchell, Hanson). He trained Mitchell. The criteria utilized in the Hanson promotion were subjective. Finally, the conclusion is supported by the nature of the promotion system and its adverse impact upon blacks. Torrence was denied promotion to the positions received by Mitchell and Hanson because of his race.
Roosevelt Patterson. — Patterson Roosevelt Patterson has worked for Harris-Teeter during established a prima facie large parts of 1972 and 1973 and case in that he was since October 1973 has worked qualified for various continuously for Harris-Teeter. promotions, he was not Since March of 1974 he has been a promoted, he asked to be lift driver on the day shift. He promoted, there were wanted to become receiver and in vacancies, and whites were fact worked the job full time for a promoted. Harris-Teeter week or more, but was not paid a stated that it did not receiver's wages. Numerous whites promote Patterson because he junior to him were promoted over left a position, he was not him. These included David Allison, in the same department or on Jeff Fowlkes and Terry Givens. the same shift as the Patterson was denied promotion openings, he was not because of his race. qualified, and he was on strike when the positions were filled. Standing alone, each reason is legitimate and non-discriminatory. Considering all of the evidence, each reason is pretextual. Patterson was more qualified than the promotees. Patterson left the receiver's job because he was denied assistance. The record evidence shows that generally 2 whites performed this job and Patterson performed it alone. He was never considered for any of the promotions. The same shift/same department rule is pretextual. See Finding 16, supra. Patterson was qualified for said positions because of his experience and performance. The positions were filled either before Patterson went on strike or after he notified the employer he was available for work. Finally, the nature of the promotion system and its impact upon blacks supports this conclusion. Patterson was denied the positions listed in Finding 29 because of his race. Curtis Jones. — Jones has been Curtis Jones established a salvage worker since July 1974. a prima facie case in that He sought the job of rail dock he asked for the position of worker from his supervisors, Dick rail unloader twice, he was Jackson and John Watson. Several qualified, he did not whites, James Lamb, Eddie Kistler receive said position, there and Neal Mitchell, all junior to were vacancies, and whites him, were hired into that job ahead were hired. Harris-Teeter of him. He was denied promotion stated that it did not because of his race. promote Jones because of his back problem. Said reason, standing alone, is legitimate and non-discriminatory. Considering all of the evidence, the reason is pretextual. His back problems were minor. The supervisor never asked him about the problem. He was transferred to the salvage dock where the items he moved were similar in size to those moved by a rail unloader. In 1976 Harris-Teeter hired seven whites and no blacks in loader/unloader positions. Jones was more qualified than the hirees. Finally, this conclusion is supported by the nature of the promotion system and its adverse impact on blacks. Jones was denied the rail unloader positions because of his race.
Frank Sullivan. — Sullivan has Frank Sullivan proved a been with Harris-Teeter for eleven prima facie case by showing years as collector and receiver. In that he was qualified for July 1973 he became a de facto lead various promotions, he was man. He did the job but was not not promoted, there were given the pay raises which other vacancies, and whites were lead men received. Mitchell, his promoted. Harris-Teeter supervisor, had made a public stated that it did not announcement to the day shift of promote Sullivan because he the whole department of his left the foreman trainee promotion to lead man, but program, was less qualified repudiated it the following spring. than the promotees, and was Sullivan was qualified to be lead on a different shift than a man and was, in fact, a lead man vacancy. Each reason, for several months. George Hamilton standing alone, is and David Kiker were both junior to legitimate and him but were promoted to lead men non-discriminatory. ahead of him. The reason given for Considering all of the depriving Sullivan of his de facto evidence, they are lead man job and pay was that two pretextual. Sullivan was years earlier, immediately after he more qualified than the had gotten married, the employer promotees because of his had put him in a night program as experience, including that foreman trainee and he had asked of leadman. His leaving the out of it because he had just foreman training program as gotten married. I do not find that a defense is unworthy of two-year-old piece of history to be credence. The same a valid reason for denying him shift/department reason promotion. He was denied promotion lacks credence. See Finding because of race. 16. Finally, the nature of the promotion system and its adverse impact on blacks supports this conclusion. Sullivan was denied the promotions received by Kiker and Hamilton because of his race.
Kenneth Joe Bailey. — Bailey is Kenneth Bailey established the chief steward on the day shift a prima facie case in that and a manager of the union he was qualified for negotiating committee. He started promotions, there were as a loader's helper in 1974, vacancies, he was not became a loader, and since April promoted, and whites were 27, 1974, has been a "stacker." He promoted. Harris-Teeter has three years of college. He stated that Bailey was not filed grievances in connection with promoted because he was not promotions to lead men of Richard as well qualified as the McLain and Wade Carpenter, alleging promotees. Standing alone, racial discrimination. Bailey was this reason is legitimate qualified for the lead job and non-discriminatory. Carpenter got and was senior to Considering all of the him. Participation in the strike evidence, said reason is was not fatal to the promotion of pretextual. Bailey was more Carpenter (white). Bailey was qualified than each promotee denied promotion because of race. because he had greater departmental experience and performed a broader range of duties. Finally, this conclusion is supported by the nature of the promotion system and its adverse impact on blacks. Bailey was denied the positions received by McClain [McLain] and Carpenter because of his race. John Wallace LeGrand. — LeGrand John LeGrand established started work for Harris-Teeter in a prima facie case by July 1974 as a picker in frozen showing that he was foods. He was instructed to learn qualified for several the job of an employee named Black promotions, there were so he could be a fill-in lead man vacancies, he was not and he became a fill-in lead man. promoted, and whites were He had had previous experience as a promoted. Harris-Teeter lead man and had told the manager stated that it did not about it when he came to work. He promote LeGrand because he trained a white person named Avery was on strike when Fowlkes to be lead man. The job was offered was promoted; in a different to Avery but was not offered to department or shift than the LeGrand. LeGrand, because of his vacancy, and less qualified race, was not considered for lead than the promotees. Standing man jobs which were awarded to alone, each reason is Douglas Dover, Terry Givens and legitimate and Jeff Fowlkes. non-discriminatory. Considering all of the evidence, said reasons are pretextual. LeGrand was more qualified than the promotees because of his prior experience. He had more loading experience than Fowlkes. Fowlkes assumed the defacto leadman duties before the strike. The same shift/department reason is invalid for the reasons set forth in Finding 16. Finally, this conclusion is supported by the nature of the promotion system and its adverse impact on blacks. LeGrand was denied the promotions received by Fowlkes, Dover, and Givens because of his race.
The nature of the promotion "system" and its adverse impact upon blacks is mentioned as a consideration in the findings as to most if not all those plaintiffs. That "nature" is not statistics nor statistical opinion, but is twelve promotion practices which are quoted on page 3, above, and which were a central part of this court's original memorandum of decision ( 503 F. Supp. 29, at Page 30, W.D.N.C. 1980).
Statistical opinions based on regression analysis or otherwise, were not and are not a "but for" factor in the judgment the court has made.
The finding that the promotion system as a whole was discriminatory against blacks in each of those cases was a cumulative but not a necessary part of the original determination.
The subjective criteria advanced by the defendant in support of the individual decisions against the ten plaintiffs were not, in fact, the true reasons for the decisions against those ten plaintiffs.
The case by case analysis which is directed by the Circuit Court in 720 F.2d 326 at 339 has already been done; the individual cases were decided by this court on individual bases; the statistics, whether expert or otherwise, were not relied upon by the court to create a presumption or to prove an unlawful intent in the promotion cases.
IT IS THEREFORE ORDERED:
1. That defendants shall afford to plaintiffs Lilly, Gregory and Porter the relief previously ordered.
2. That since this court has concluded that the original judgment should be reinstated, there does not appear to be any occasion to change the previous judgment, as far as it goes, with regard to attorney fees.
3. That the original judgment, as it appears on pages 715-721 of 545 F. Supp. 686 is hereby reinstated in all particulars.
4. That counsel for the plaintiffs will submit any appropriate petitions with regard to costs, fees and expenses.