7 Fair empl.prac.cas. 1245, 7 Empl. Prac. Dec. P 9385 J. D. Thornton v. East Texas Motor Freight

PHILLIPS, Chief Judge

(dissenting in part, concurring in part).

I respectfully dissent from those parts of the majority opinion that are labeled “Seniority” and “Back Pay,” and concur with the remainder.

In granting seniority relief, the District Court distinguished between those city drivers who had requested transfer by notifying the company or the local union or by complaint to the E.E.O.C. and those drivers who had not requested transfer. The former, if qualified for road driving at the time of the request, would be afforded a seniority date begin *427 ning six months after the initial request, but in no event earlier than January 2, 1966, six months after the effective date of Title VII. Those drivers who did not affirmatively request transfer would have seniority status from July 1, 1967, or 18 months after they became qualified for a road position, whichever is later.

My understanding of the Congressional intent in enacting the relief provisions of Title VII, 42 U.S.C. § 2000e—5(g), is that the victims of unlawful discrimination must be made whole and restored to the position where they would have been except for the unlawful discrimination. The Senate-House Conference Report for the relief section of the 1972 Amendments to Title VII states:

“The provisions of this subsection are intended to give the courts wide discretion exercising their equitable powers to fashion the most complete relief possible. In dealing with the present section 706(g) the courts have stressed that the scope of relief under that section of the Act is intended to make the victims of unlawful discrimination whole, and that the attainment of this objective rests not only upon the elimination of the particular unlawful employment practice complained of, but also requires that persons aggrieved by the consequences and effects of the unlawful employment practice be, so far as possible, restored to a position where they would have been were it not for the unlawful discrimination.” Section-by-Seetion Analysis, Congressional Record (H. 1863), March 8, 1972.

The courts have the power and responsibility to structure equitable relief that will eradicate the present and future effects of past discrimination. See e. g., Head v. Timken Roller Bearing Co., 486 F.2d 870, 876 (6th Cir. 1973); Bing v. Roadway Express, Inc., 485 F.2d 441, 450 (5th Cir. 1973); United States v. Georgia Power Co., 474 F.2d 906, 927 (5th Cir. 1973); United States v. Local 212, Electrical Workers, 472 F.2d 634, 636 (6th Cir. 1973); United States v. Local 169, Carpenters, 457 F.2d 210 , 216 (7th Cir. 1972); United States v. Hayes International Corp., 456 F.2d 112, 117 (5th Cir. 1972); United States v. Bethlehem Steel Corp., 446 F.2d 652, 660 (2d Cir. 1971). Although the nature of equitable relief under Title VII is discretionary, it must, nevertheless, be exercised in a manner consistent with the purpose behind the statute. Head v. Timken Roller Bearing Co., supra, 486 F.2d at 876-877 ; Moody v. Albemarle Paper Co., 474 F.2d 134, 141 (4th Cir. 1973).

Seniority may be largely determinative for bidding and layoff purposes. Relief that artifically limits seniority status maintains the status quo and operates to “lock-in” those employees who were victims of the unlawful discrimination. In my view, it is logical to conclude that employees with less seniority would be discouraged from transfer to road positions just as effectively as if the no transfer rule had remained in force. I consider such a result to be in direct conflict with Title VII in that it preserves the vestiges of past discrimination.

In my opinion it is necessary to provide the victims of the unlawful discrimination with that amount of seniority they would have had except for the discrimination. This amount of seniority will provide each such employee with enough incentive to transfer into a road position and will insure that he maintains his rightful place in the company by protecting him against layoffs. I, therefore, would adopt the “rightful place” theory announced by the Fifth Circuit in Local 189, Papermakers & Paperworkers v. United States, 416 F.2d 980 , 988 (5th Cir. 1969), cert. denied, 397 U.S. 919 , 90 S.Ct. 926 , 25 L.Ed.2d 100 (1970), and recently reaffirmed in Bing, supra, 485 F.2d at 450-451 , and structure seniority from the time the city driver became qualified for a road position. White incumbent road drivers would not be bumped out of their present positions and, therefore, should not complain of “being deprived only of *428 that which they received as a consequence of discrimination.” United States v. Roadway Express, Inc., 457 F.2d 854, 856 (6th Cir. 1972).

In my judgment, this seniority relief should be available regardless of whether the employee requested a transfer to a road position or filed a charge with the E.E.O.C. The majority opinion states that “there is something to be said for rewarding those drivers who protest and help to bring rights to a group of employees who have been the victims of discrimination.” Any such “reward” should not be at the expense of the other victims of the discrimination. Title VII was enacted to protect all employees from unlawful discrimination. This is especially true where the discrimination intimidated the employees to such an extent that they felt it would be futile to request a transfer.

As stated in Bing, supra, 485 F.2d at 451 :

“We recognize the logic of that argument, but it fails to account for the realities of entrenched employment discrimination. If an employee realizes full well that blacks simply are not hired as road drivers, why should he bother to apply? Certainly a few, such as Bing, have the courage to fight ‘the system,’ but it is equally certain that others must have been intimidated and discouraged by Roadway’s discriminatory practices. For that reason we believe it is an unsound policy to date transferees’ job seniority from their first application for transfer.”

The majority opinion distinguishes Bing, supra, on the basis of the number of charges filed. The opinion states: “Given the large number of charges filed [21], we think the District Court was entirely within its discretion in not granting seniority relief like that granted in' a case [Bing] where silence and futility of protest was the norm.” I view that as a distinction without a difference. This reasoning loses sight of the purpose behind the remedy provisions of Title VII. The statute was designed to make the discriminatees whole and applies especially to those who were totally and completely intimidated and who thought that any request would be futile.

The facts of this case indicate that such a belief was well founded. The no transfer rule had been in effect since 1954. Even the large number of transfer requests and charges did not cause the company to alter its position. It was not until the instant lawsuit had been in progress over two years that the company retreated from its no transfer rule. Even then, the rule that was adopted in January 1972, although permitting transfers to road positions, was discriminatory in its prohibition against full seniority carryover in that it denied any carryover for bidding and layoff purposes.

In the face of the company’s long history of discrimination it is no wonder that many city drivers were deterred effectively from seeking transfer to road positions.

With respect to back pay, the District Court allowed relief for black city drivers who were qualified, could show economic loss as a result of the no transfer rule and who had been desirous of transferring to road positions. This relief was limited to the period from January 1, 1966 to January 1,1972.

In Head v. Timken Roller Bearing, supra, this court said:

“Congress evidently intended that the award of back pay should rest within the sound discretion of the trial judge. Although appellate courts are loathe to interfere with the exercise of such discretion by a trial court, it is recognized that it is not free from appellate scrutiny.” 486 F.2d at 876 .

Title VII became effective on July 2, 1965, and at that time all qualified city drivers had a legal right to road positions. Bing, supra, 485 F.2d at 453 . Although an award of back pay is discretionary, the exercise of that discre *429 tion must have a reasonable basis in the record. There is nothing in the record to indicate to my satisfaction that the choice of January 1, 1966, as the starting date for back pay had any basis. Rather, it was chosen without explanation and in my opinion constitutes an abuse of discretion. 1

I would begin the period for back pay on July 2, 1965, the effective date of Title VII. See Head v. Timken Roller Bearing Co., supra, 486 F.2d at 878 ; Bing v. Roadway Express, supra, 485 F.2d at 453 .

The date of January 1, 1972, was chosen because that was the day the company rescinded the no transfer rule. I am convinced that, nevertheless, it was an abuse of discretion to limit back pay to that date. The new transfer rule was still discriminatory in that there was no seniority carryover for bidding and layoff purposes. For some employees, this lack of carryover was just as effective a deterrent to transfer as was the no transfer rule.

Because of the prospect of a windfall, unlike seniority relief, I think it proper for back pay purposes to distinguish between those who had indicated a desire to transfer and those who did not. I would hold that those who had indicated such a desire prior to the District Court’s Order of December 28, 1972, are entitled to back pay from July 2, 1965, or the date the employee became qualified, whichever is later, until the date on which the employee was eligible to transfer with full seniority carryover, i. e., the date on which there were no longer any unlawful limitations. See e. g., Head v. Timken Roller Bearing Co., 486 F.2d at 875, 878 . Those employees who z-did"not-vindicate a desire to transfer prior to the District Court’s order should be awarded back pay from the date they requested transfer, assuming they were qualified, until the date they were eligible to transfer with full seniority carryover. All payments should be contingent upon actual transfer, and, therefore, should be held in escrow until the road position opens up and the employee actually effects a transfer.

The E.E.O.C. contends that back pay relief should be given on an equal basis to those drivers who are willing to transfer now and do transfer even though they never indicated a past desire to transfer. They, in effect, argue that a present desire to transfer is an indication of past desire. The E.E.O.C. also favors back pay relief for those who had indicated a desire to transfer but no longer desire a road position.

The fallacy with the former position is that a present desire to transfer with the prospect of a back pay windfall is not a reliable indication of past desire. It would be an abuse of the court’s discretion and an inequitable use of the court’s power to sanction windfall payments. The error in the E.E.O.C.’s latter position is that a past desire to transfer when coupled with no present desire may be an indication that the employee never really wanted to transfer and, therefore, suffered no economic harm.

Only with the previously enunciated distinctions coupled with actual transfer can the court approximate the true intentions of the parties and provide equitable relief. Any broader relief would be punitive in nature and would not be consistent with the purpose of making the discriminatee whole. It is to be emphasized that equitable relief under Title VII is, at best, inexact. I believe that the back pay solution suggested in this dissenting opinion is fully consistent with the Congressional intent behind the back pay provisions.

. For the same reason, the six month delay in seniority for those employees who had actually requested transfer or filed a charge with the E.E.O.C. was arbitrary and an abuse of discretion. Even assuming the date of the request was proper, seniority should not have been delayed six months,