Smith v. Consolidated Rail Corp.

Shepherd, J.

(dissenting). I agree with the majority opinion with the exception of the analysis of the claim of plaintiffs that Mr. Payne saw Mr. Ratke fill in answers for a white employee. In my view this raises an issue of discrimination that should go to the trier of fact. On the assumption that Payne is an agent of the employer we would be faced with a situation where the employer allegedly gave assistance to a white employee and failed to do so for black employees. Whether this was an isolated event, an action not approved by the. employer or whether the assistance was rendered for reasons other than race are all factual questions that require further development. Blacks deserve to be treated the same way as whites with respect to the contents of the examination as well as the administration of the test. If the employer assisted white employees and did not assist blacks, an argument could be made that the entire test was void and that had the blacks received equal treatment, i.e., had they been assisted also, they would have passed. Plaintiffs would then be able to claim damages. Accordingly, I would reverse and remand for trial but only on the issue of whether Ratke filled in answers for a white employee and whether this constituted racial discrimination in the context of all of the other facts.