Petition — Hamilton v. General Motors Corp.

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uPreme Cou U.

FILED

APR 25 1990

S MICHAEL RUDAK, JR, CLERR |

"99-1694

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

ROGERS HAMILTON,

PETITIONER

GENERAL MOTORS CORPORATION,

RESPONDENT

PETITION FOR WRIT OF CERTIORARI

BILL KIMBLE

West Texas Legal Services

First Savings Building

Suite 400

San Angelo, Texas 76903

DON GLADDEN

2814 Avenue D

Fort Worth, Texas

76105

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

ROGERS HAMILTON,

PETITIONER

GENERAL MOTORS CORPORATION,

RESPONDENT

PETITION FOR WRIT OF CERTIORARI

TO THE HONORABLE UNITED STATES SUPREME

COURT:

INDEX

Table of Contents

Table of Authorities

Explanation of Record

References

Opinions and Orders Delivered

in the Courts Below

Statement of the Grounds on

Which Jurisdiction is Invoked

Questions Presented for Review

Statutes Involved in this Case

Statement of the Case

Reasons for Granting the

Writ of Certiorari

Prayer

Certificate of Service

Index to Appendix

Appendix

Page

: eS oe ae

CASES Page

EEOC v. Detroit Edison Co.,

ho Bs page oe » OSH RY pee 30

Griggs v. Duke Power Co.,

401 U.S. 424, 91 S.Ct. 849

SO Eves Se SOC) Teele et sha cbse a 1l

Parson v. Kaiser Aluminum

and Chemical Corporation,

575 F.2d 1374 (5th Cir. 1978)....12,19,

SU, SA, ae,

Rowe v. General Motors Corporation,

457 F.2d 348 (5th Cir. 1972).....12,19,

30,31,34,

Stamps v. Detroit Edison Co.,

365 F.Supp. 87 (E.D. Michigan

RU A aha boo EK kee we at 30

United Steelworkers, et al v.

Weber 99 S.Ct. 2721 (1979)....... 36,39,

EXPLANATION OF RECORD REFERENCES

All record: references in this peti-

tion are to the trial testimony. The

trial testimony is numbered consecu-

tively, starting with Page 1 through

1108, in Volumes 4 through 7 of the

Original Record on Appeal.

Except where otherwise indicated, in

the portions of the record which have

been quoted directly, the person doing

the questioning is the Petitioner's

lawyer.

OPINIONS AND ORDERS DELIVERED

IN THE COURTS BELOW

The three-judge panel of the United

States Court of Appeals for the Fifth

Circuit decided this case on November

14, 1979 in a published opinion,

Hamilton v. General Motors Corporation,

606 F.2d 576 (5th Cir. 1979). The

Court of Appeals denied rehearing en

banc on January 28, 1980, at 611

F.2d 882.

The United States District Court's

judgment of January 31, 1979, con-

tained findings of fact and conclusions

of law, but the Court did not issue an

opinion. The trial court's judgment

and findings of fact and conclusions

of law are attached as part of the

appendix.

STATEMENT OF THE GROUNDS

ON WHICH JURISDICTION IS INVOKED

Jurisdiction of this Court is invoked

under 28 U.S.C., §2101(c) to seek re-

view of the decision of the Court of

Appeals entered on November 14, 1979,

which affirmed the district court's

judgment in favor of General Motors in

this racial discrimination case, which

was brought by Rogers Hamilton under

Title VII of the Civil Rights Act of

1964 and 42 U.S.C., §1981.

The United States Court of Appeals

for the Fifth Circuit denied Petition-

er's Petition Sugaesting Rehearing En

Banc by an order exrtered on January

28, 1980 (611 F.2d 882).

(1)

(2)

QUESTIONS PRESENTED FOR REVIEW

DOES GENERAL MOTORS' USE OF A

SUBJECTIVE ORAL INTERVIEW IN ITS

APPLICATION PROCESS FOR ENTRY INTO

SKILLED TRADES OPERATE AS A "READY

MECHANISM" FOR DISCRIMINATION

AGAINST BLACKS AND THEREFORE VIO-

LATE TITLE VII AND 42 U.S.C.,

§ 1981?

IS THE SUBJECTIVITY OF THE ORAL

INTERVIEW CURED BY THE PROVISION

IN THE COLLECTIVE BARGAINING AGREE-

MENT ALLOWING AN APPLICANT TO

QUALIFY FOR SKILLED TRADES IF HE

OR SHE HAS EIGHT YEARS EXPERIENCE

AS AN ELECTRICIAN OR, IS THE EVAL-

UATION OF AN APPLICANT'S WORK

EXPERIENCE ALSO SUBJECT TO ABUSES

WHICH ALLOW DISCRIMINATORY HIRING

DECISIONS?

STATUTES INVOLVED IN THIS CASE

This case involves a construction of

the meaning of Title VII of the Civil

Rights Act of 1964. Specifically in-

volved is the provision prohibiting

racial discrimination by employers, 42

U.S.C., §20006e-2(a), Pub. L. 88-352,

Title VII, §703, July 2, 1964, 78 Stat,

255. That provision is set out in the

appendix.

Also involved is the construction

of 42 U.S.C., §1981 (Act May 31, 1870,

c.114, §16, 16 Stat. 144). The text of

the statute is set out in the appen-

dix.

STATEMENT OF THE CASE

This is a racial discrimination case

which was brought under Title VII of

the Civil Rights Act of 1964 and 42

U.S.C., §1981. Jurisdiction of the

Trial Court was invoked pursuant to

28 U.S.C., § 1343 and 42 U.S.C., §

2000e-5 (f) (3).

The Arlington plant of General Mo-

tors Corporation has been in operation

since 1953. (R.733). When he was fi-

nally hired on July 1, 1974 after

having been refused employment in 1969,

1971, 1972 and on May 8, 1974, Rogers

Hamilton became the first black to

work in the Skilled Trades Department

at the Arlington plant. (R.529).

On April 7, 1969, Hamilton was re-

fused employment as an electrician on

the basis that he had flunked his phy-

Sical. This was a pretext for racial

discrimination. One of the reasons

given for Hamilton's failing the phy-

sical was that the tip section of his

right middle finger was stiff. How-

ever, 10 days before Hamilton's flunk,

the plant doctor had passed a white

electrical applicant who was missing

his entire left index finger. (R427-

428).

General Motors again refused to hire

Hamilton on May 8, 1974. (R474). Ham-

ilton was subjected to an almost two-

month long intensive investigation into

his job experience before he was hired

on July 1, 1974. This two-month gap re-

sulted in lost pay and lost seniority,

which has caused even more lost pay be-

cause Hamilton has been laid off sever-

al times due to reductions in force,

when he would not have been laid off if

he had been given his rightful senior-

ity.

In sharp contrast to the almost two-

month long hassle Hamilton endured in

1974, nine white electricians were hired

almost as soon as they applied, and

without having submitted any documen-

tation of previous employment. (Plain-

tiff's Exhibit #4). Hamilton was ul-

timately found to have been qualified.

(R992). The justification given by

General Motors for this disparate treat-

ment is that Hamilton was flunked on an

oral interview by the plant's chief

electrician. The testimony of General

Motors' management-level witnesses

shows, however, that this oral inter-

view was not governed by any written

guidelines, that there were no safe-

guards to avert discriminatory prac-

tices, and that the oral interview was

of critical importance in the appli-

cation process. The oral interview by

the chief electrician is a mechanism

for racial discrimination.

REASONS FOR GRANTING

THE WRIT OF CERTIORARI

Although the United States Supreme

Court has addressed the general prob-

lem of facially neutral "procedures"

used by employers to exclude blacks,

as in Griggs v. Duke Power Co., 401

U.S. 424, 31 S.Ct. 849, 28 L.Ed.2d

158, (1971), the Court has never ad-

dressed the specific problem presented

by the use of subjective oral inter-

views. The use of a subjective, stand-

ardless oral interview as a device to

discriminate against blacks who are

seeking jobs in the skilled trades is

illustrated by the record in this case.

In an era in which employers have

become increasingly more subtle in the

ways in which they discriminate, the

issue of the use of subjective oral

interviews is one which takes on ex-

treme importance. Involved in this

case are the Skilled Trades hiring

procedures of the Arlington, Texas,

plant of General Motors Corporation,

which is one of the largest and most

influential employers in the Dallas-

Fort Worth area. For approximately

21 years after the plant opened in

1953 there were no blacks hired to work

in the Skilled Trades division. The

record in this case brings one to the

sad conclusion that blacks can expect

to be discriminated against when they

are evaluated by whites. The obser-

vation by Chief Judge Brown in Rowe v.

General Motors Corporation, 457 F.2d

348, 359 (5th Cir. 1972), correctly as-

sesses the uphill fight faced by blacks.

--.-all we do today is rec-

ognize that promotion/trans-

fer procedures which depend

almost entirely upon the

subjective evaluation and

favorable recommendation of

the immediate foreman are a

ready mechanism for discrim-

ination against Blacks much

of which can be covertly con-

cealed and, for that matter,

not really known to manage-

ment. We and others have

expressed a skepticism that

Black persons dependent

directly on decisive recom-

mendations from whites can

expect non-discriminatory

action... (emphasis added.)

The method by which General Motors

chooses people for entry into Skilled

Trades is a classic example of a giant

corporation's use of facially neu-

tral "procedures" as a device to ex-

clude blacks from skilled jobs. These

methods amount to a rigged game in

employment; their use has been con-

demned in the landmark case of Rowe v.

General Motors Corporation, 457 F.2d

348 (5th Cir. 1972) and in the recent

case of Parson v. Kaiser Aluminum, 575

F.2d 1374 (5th Cir. 1978).

On May 8, 1974, Rogers Hamilton

applied for a job as an electrician in

General Motors' Skilled Trades Depart-

ment at its plant in Arlington, Texas.

Mr. Hamilton underwent an interview by

a personnel employee; his work history

was rated "very good" and his experi-

ence in the "job desired" was rated

"very good" (R463). He received a

favorable evaluation from the inter-

viewer, William Roach, who then re-

ported to Jack Hogge, Supervisor of

Employment, that he had an applicant

who might qualify for the job (R464).

But because of an unfavorable eval-

uation by Dale Hurd, the plant's chief

electrician, who gave Mr. Hamilton an

oral interview later in the day, Gen-

eral Motors on May 8, 1974, refused to

hire Rogers Hamilton as an electrician.

Jack Hogge testified as follows:

Q. All right now, on May

8, 1974, did you, on

your authority from

General Motors, refuse

to hire Rogers Hamilton?

A. Yes, sir, as an

electrician.

(R474)

After Rogers Hamilton asserted to

General Motors that he knew he had been

refused employment because of his race

and after General Motors had subjected

him to an almost two-month long hassle

in which an intensive investigation on

iis previous employment was done, Mr.

Hamilton was hired as an electrician on

or about July 1, 1974. Mr. Hamilton

was ultimately found to have been qual-

ified as an electrician. On that point,

Don Whitney, who was then head of Labor

Relations at the Arlington plant, tes-

tified as follows:

Q. Your Labor Relations

Division, though, qual-

ified Mr. Hamilton for

employment, didn't they?

Your earlier testimony

was he qualified?

A. Qualified him?

Q. Yes.

A. In terms of the stand-

ards that were approv-

able under our agreement

we said he was qualified,

yes. (R992).

In glaring contrast to the two-

month long hassle which Rogers Ham-

ilton had to endure, nine white per-

sons who applied at approximately the

same time as Hamilton were hired very

soon after they applied and without

having to submit any documentation of

their previous employment. Seven of

the nine white persons were hired with-

in a week after they applied. In all

nine cases documentation of previous

employment was not submitted until long

after the date the person was hired.

Plaintiff's Exhibit #4, which is set

out on the following two (2) pages,

illustrates this disparate treatment:

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Further emphasizing this profile of

unequal treatment is the fact that

three of the white people who were hired

at the same time Hamilton was refused

employment were either working with

Hamilton at American Manufacturing Com-

pany at the time they applied, or had

been working with him in the recent

past. (R 468-473). Jack Hogge testi-

fied that he made no check on the three

white applicants who had worked at

American Manufacturing. For example:

Q. And P.J. Blubaugh, was

he doing the same type

of work as Mr. Hamilton

was doing at American

Manufacturing?

A. I don't know. He was

working at the same

company. I don't know

if they were doing the

same job.

Q. The reason you don't know

that is that you didn't

check him out either,

did you?

A. Nov sir; I €se not.

(R 470.)

They were, in fact, doing the same

type of work as Mr. Hamilton. This is

clear from P.J. Blubaugh's testimony.

(R 761-762.) ;

What explanation, then, does General

Motors make for this disparate treat-

ment? General Motors says that the

nine white men passed their oral in-

terview with Dale Hurd, the plant's

chief electrician, and Rogers Hamilton

did not. The discussion on the fol-

lowing pages will detail the character

of this oral interview. It is the

same type of practice which was held

violative of Title VII in Rowe v.

General Motors Corporation, supra,

p. - it is a subjective inter-

view which is carried out without the

restriction of written guidelines; it

has no safeguards to avert discrimi-

natory practices; and it is the most

critical part of the application pro-

cess, Parson v. Kaiser Aluminum and

Chemical Corp., 575 F.2d 1374, 1385

(Sth Cir. 1978). We should have long

ago progressed past the point where

blacks must prove their qualifica-

tions to whites who are vested with

sweeping, unfettered discretion in

their hiring decisions.

There is really no dispute about

the facts concerning how the chief

electrician's oral interview is con-

ducted. These facts are found in the

testimony of General Motors' own

management-level employees. The

vagueness and subjectivity of the oral

interview are evident from the testi-

mony of Jack Hogge, General Motors'

Supervisor of Employment. Also evi-

dent is the fact that the chief elec-

trician is given absolute discretion

over the content of the interview and

the decision on whether he will recom-

mend that the applicant oe hired:

All right, was Mr.

Hamilton then interviewed

by Mr. Hurd?

Yes, sir, he was.

Do you know what that

interview consisted of?

No, sir, I wasn't at the

interview.

All right, and at some

point were you notified of

Mr. Hurd's evaluation?

Yes, sir, I was.

All right, and what was

that evaluation?

Mr. Hurd said that Mr.

Hamilton did not qualify

as an electrician.

All right, and did he tell

you--did he give you the

basis for that evaluation?

No, he did not.

Did you ask him for what

his reason was that this

man who was apparently

qualified had now been

found not to be qualified?

No, sir, I didn't ask him

for an explanation.

In the ordinary course of

things would you ask for

an explanation if Mr. Hurd

told you someone was not

qualified?

No, sir, I would not.

You just take his word

on it?

Yes, sir.

Just yes or no?

Yes.

If the man is not quali-

fied that is good enough

for you?

Yes, sir.

I guess you would rely

quite a bit on someone in

a position of responsibility

like Mr. Hurd, is that

correct?

Yes, sir, I do.

(R465-466.)

Mr. Hogge also testified that the

interview that applicants have with

Dale Hurd, the chief electrician, is

of critical importance:

Q. In the application pro-

cess, as far as elec-

tricians are concerned,

is that interview that

the applicant has with Mr.

Hurd a pretty important

step in the process?

A. Yes, sir, I would think

so.

Q. It is of critical inm-

portance, isn't it?

A. Yes, sir.

(R 466.)

Jack Hogge further testified that

there are no safeguards to avert

racial discrimination:

Q. In that interview that

Mr. Hurd holds with these

applicants, are there any

safeguards that are set

up to guard against racial

discrimination?

A. I have never been in any

of the interviews. It is

an employment interview as

far as an individual

applying for a particu-

lar trade.

Q. Well, it sounds like you

just take his word on it,

yes or no, whether a per-

son is qualified. It

doesn't sound like there

is much in the way of

safeguards there, does it?

A. I have never questioned it.

(R 468)

The chief electrician, Dale Hurd,

has been conducting oral interviews

on electrician applicants since 1959

or 1960 and during that time, he has

interviewed only two blacks--Rogers

Hamilton and one other person:

Q. So then perhaps we need

to talk about this any-

way. So since 1959 or

1960, you have interviewed

two blacks, one of them

broke off the interview

and said, "I can't do the

work," and the other one

(Hamilton) said you were

unfair. Now isn't that

right?

A. That's right.

(R 724 and 727)

Mr. Hurd's testimony establishes

that he has never been given any

written cuidelines governing the con-

tent of the oral interview and that he

is given complete, unfettered discre-

tion concerning the interview. His

testimony also demonstrates that there

are no safeguards to prevent discrim-

ination; the nature of the interview is

such that Mr. Hurd can use the inter-

view as a device to discriminate, with-

out any fear of being detected. Dale

Hurd testified as follows:

Q. All right, Mr. Hurd, in

conducting this inter-

view you conducted that

you just testified about,

have you ever been given

any written instructions

--let me rephrase that.

Have you ever been given

any written guidelines

about what the content of

that interview is supposed

to be?

A. No, I have not.

Q. You are completely left

to conduct that interview

and make the content of

that interview whatever

you wish, are you not?

A. That is correct.

And nobody checks you on

that, do they?

No, they do not.

And never have?

No, they haven't. Except

when we had the test, then

they graded the test. But

since we eliminated the

test, there is no way to

check it.

(R 723.)

Hurd's testimony furnishes further

evidence to the effect that his eval-

uation of an applicant cannot be ex-

amined:

Mr. Hurd, do you have a

record--is there a copy

of that diagram you said

Rogers Hamilton drew wrong

in '74?

No, I don't have a copy

of it:

Does the corporation have

a copy of it?

If it is, he would have it

in his personnel file. We

didn't usually keep them,

no, sir.

Didn't usually keep them?

No, sir, not the drawings,

no, sir.

It was not your routine to

keep drawings like that you

had had made by an applicant

in an interview?

No, it was not.

Then it would be pretty

hard for anybody to check

to see whether that draw-

ing would be really wrong,

wouldn't it?

Yes, it would.

Be impossible, wouldn't

it?

That's right.

(R721 - 722.)

Under questioning by the Court,

Dale Hurd testified further about the

lack of instructions about the inter-

view:

Have you been given any

instructions by your

superiors with regard to

how to interview or not in-

terview applicants?

A. No, sir. I sat in on one

interview many years ago

when I first started in-

terviewing electricians.

Now we gave the test for

several years and through

those I determined, you

know, what questions I

would ask and so on. But

as far as sitting down and

saying, “you ask these ques-

tions, determine this and

this," no sir.

(R 748.)

Mr. Hurd's response shows that, in

addition to all the other deficiencies

of this subjective oral interview, he

was using questions from a written

test which had previously been given

and which had never been validated.

(Please see testimony of William Todd,

at R 457 - 459).

Sometime after he was refused em-

ployment on May 8, 1974, Rogers Ham-

ilton called Jack Hogge to complain

that he had been discriminated against

because of his race. (R521). Hogge's

first response was to offer Hamilton

another interview with Dale Hurd. After

Hamilton stated the obvious--that Hurd

would simply discriminate against him

again (R 65)--Hogge arranged for an

interview with Sam Pollock, a foreman

who did not usually conduct such in-

terviews. It is clear from the testi-

mony that Pollock's interview was of

the same type as Hurd's. General Mo-

tors rigged this interview, too, by

telling Pollock that Hamilton had al-

ready been flunked by Dale Hurd:

Q. Mr. Pollock, I believe

your testimony was that.

you were called off the

floor and went to see Mr.

Hogge and he told you that

he wanted you to interview

an electrical applicant

named Hamilton and that

this man had been inter-

viewed previously by Dale

Hurd and Hurd had turned

him down, is that correct?

A. That is correct.

(R 1057-1058.)

That the characteristics of Sam Pol-

lock's interview were the same as

Dale Hurd's is demonstrated by the fol-

lowing testimony from Mr. Pollock:

Q. Now, you--just for clari-

fication, you have never

been given any written

instructions or any writ-

ten guidelines as to how

these interviews are to be

conducted?

A. No written guidelines as

such, no, other than the

test that I mentioned

earlier. .

From the testimony of General Mo-

tors' own management-level employees,

Oh, you were using it as a

guideline?

Prior to 1972 when I was

electrical foreman I very

definitely used it as a

guideline.

All right, other than that,

after that written test was

discontinued, were there

ever any other written

guidelines given you on

how to conduct these in-

terviews?

No.

Were there any oral in-

structions given you on

how to conduct these in-

terviews?

No.

They just relied on your

experience as an electri-

cian and said, “Hey Mr.

Pollock, interview this

man and tell us if he is

qualified or not," didn't

they?

That is correct.

(R 1058-1059.)

there can be no doubt about the sub-

jective and discriminatory character of

the oral interview with the chief

electrician, Dale Hurd, and with the

foreman, Sam Pollock. This record

paints an unmistakable picture of how

this subjective oral interview has

been used as a device to discrimina-

te against black applicants for

Skilled Trades. In addition to Rowe

v. General Motors Corporation, supra,

p. 12 , and Parson v. Kaiser Aluminum,

supra, p.12,13_, another significant

decision which bears on this issue is

EEOC v. Detroit Edison Co., 515 F.2d

301 (6th Cir. 1975). In that case,

at p. 313, the Court condemned the em-

ployer's heavy reliance on subjective

judgments of interviewers, affirming

the lower court's finding that the

process discriminates against black

applicants.

The following language from the

District Court's opinion, Stamps v.

Detroit Edison Co., 365 F.Supp. 87

(E.D. Michigan 1973), fits the in-

stant case. The Court said at p.117:

Where few blacks are hired

overall and none have been

hired in some departments,

and ultimate hiring auth-

ority is left with white

supervisors, it must be in-

ferred that these supervi-

sors have resisted the

hiring of blacks for reasons

of race, and the con-

tinuation of this prac-

tice is unlawful. (Citing

Rowe v. General Motors

Corporation, supra, p. 12).

(Emphasis added.) |

Even though the illegality of the

oral interview by the chief electri-

cian is clear from the face of the

record in this case, the Court of Ap-

peals seemed bent on avoiding the

question. The Court of Appeals held

that since the trial court had found

that appellant was not qualified to be

an electrician in 1974, no prima facie

case had been established (Panel Opin-

ion, at Appendix, p. 52). Judged by

any fair standard, however, the trial

court's finding is "clearly erroneous."

As set out at p. 14 of this petition,

the head of the Labor Relations Di-

vision testified that Rogers Hamilton

was qualified:

A. In terms of the standards

that were approvable under

our agreement we said he

was qualified, yes.

(R 992).

That testimony should have ended

the inquiry as to Hamilton's quali-

fications.

Moreover, a finding of nondis-

crimination is a finding of ultimate

fact that can be reversed free of the

clearly erroneous rule, and Rule 52(a)

does not apply to findings made under

an erroneous view of controlling legal

principles. Parson, supra, p. 12 , at

p.1382.

The District Court's only finding

of fact on Mr. Hamilton's qualifica-

tions was as follows:

40. On May 8, 1974, when

Plaintiff applied to

Defendant for work as an

electrician, he did not

have the 8 years electri-

cal experience required

by the GMC-UAW agreement

then in effect, having done

journeyman electrical work

cnly since May 23, 1968.

This finding of fact is insufficient

as a finding of subsidiary facts.

It is as defective as the finding of

fact in Parson v. Kaiser Aluminum:

The testimony at trial

revealed that Parson was

considered for promotion

to foreman but did not get

the job because he did not

possess or demonstrate the

requisite attributes nec-

essary to perform the job.

Parson did not get the job

of foreman not because he

was black but rather because

he was not qualified. In

fact, other black men have

made foreman and other

salaried positions in a

number of departments of

the Chalmette Works.

(at 575 F.2nd 1382)

Of this finding, Judge Brown said at

1383:

The District Judge offered

no hints as to the basis

for his finding that Parson

was not qualified for promo-

tion to the position of

foreman. We are simply un-

able to determine whether

the Judge found sufficient

subsidiary facts to under-

gird the ultimate finding

that the decision not to

promote Parson was not ra-

cially motivated or taken

in retaliation for his in-

volvement in racial rela-

tions at the plant. It is

therefore necessary for us

to reverse the dismissal of

Parson's claim and remand

for an articulation of the

basis for the Judge's con-

clusion that Parson was

not qualified to become a

foreman. This articulation

is to include an examina-

tion of the comparative

qualifications of non-blacks

promoted to foreman.

(Emphasis added.)

At the time of his application of

May 8, 1974, Rogers Hamilton had been

working as an electrician for 15 years.

Many, many pages of the record in

this case deal:: with his qualifica-

tions. But the trial judge gives no

hint as to any basis for his finding

that Hamilton's electrical experience

was not sufficient.

Since finding Number 40 is insuf-

ficient, this Court is not bound by it

and can make an independent review of

the record. The only review neces-

sary on the point of qualifications is

to recognize that General Motors' head

of Labor Relations Division said they

found Hamilton to be qualified.

(R 992.)

All of the Findings of Fact made by

the trial court concerning the oral

interviews by the Chief Electrician,

Dale Hurd, and the oral interview by

Sam Pollock were made under an erron-

eous view of controlling legal prin-

ciples--with the controlling cases

being Rowe v. General Motors and

Parson v. Kaiser Aluminum.

There can be no doubt from the

testimony in this case that the oral

interview by the chief electrician

renders the hiring procedure fatally

defective. But the holding of the

Court of Appeals is that the subject-

ivity is cured by the existence of

provisions in the collective bargain-

ing agreement dealing with qualifica-

tions. This interpretation by the pan-

el emasculates Rowe and Parson. A

fatally subjective hiring process can-

not be saved by the fact that an agree-

ment between the employer and the

union provides that an applicant can

qualify if he or she has had 8 years

experience as an electrician or the

functional equivalent. Indeed, the

Fifth Circuit has strongly indicated

in Parson that the requirement of

prior industrial experience may itself

violate Title VII:

The statistical evidence,

with the testimony by in-

dividual members of the

class as to obstacles they

encountered in seeking en-

try to the crafts, requires

the conclusion that the

Plaintiff made a prima

facie showing that the cur-

rent system, with its prior

experience requirement, is

discriminatory in effect.

Kaiser therefore has the

burden of showing that the

prior experience require-

ment has "a manifest re-

lationship" to the legi-

timate needs of the craft

positions.

(at 575 F.2d 1390)

(Emphasis added)

It is worth noting also that Kaiser's

requirement was 5 years prior indus-

trial experience. (Please see dis-

cussion in United Steelworkers, et al

v. Weber, at 99 S.Ct. 2721 (1979), at

p.2731).

Appellant did not attack the re-

quirement of 8 years experience in

the trial court because at the time he

applied on May 8, 1974, Rogers Hamil-

ton had 15 years experience as an elec-

trician. The District Court's in-

sufficient finding of fact to the con-

trary cannot be justified by any in-

terpretation of this record. Certain-

ly, the requirement of 8 years prior

experience as an electrician or the

functional equivalent, because of the

strong indication in Parson that it

violates Title VII, cannot be used to

cure a fatally subjective hiring

process.

Further, the application of the 8

years experience requirement is it-

self subjective and subject to abuse.

General Motors makes it part of the

subjective oral interview; part of

what the chief electrician does dur-

ing the oral interview is to quiz the

applicant about the character of his

experience. (R 696.) So, the most

crucial evaluation of an applicant's

experience is done in the very in-

terview which is used as a "ready

mechanism" for racial discrimination.

The 8 years experience requirement

does not cure the subjectivity of

General Motors' hiring procedure for

Skilled Trades. Instead, in the case

$3539 ————_«s———_

of blacks, it operates to incorporate

the racial prejudices of previous em-

ployers into the General Motors' hir-

ing process. This was true of at

least three of Rogers Hamilton's pre-

vious employers. Jack Hogge of Gen-

eral Motors talked to someone named

"Sarge" at Leonard's, one of Mr. Ham-

ilton's previous employers. Fully 8

years after Hamilton had left the

employ of Leonard's, where he worked

for 3 years, the first thing Sarge

had to tell his prospective employer

was that he thought Hamilton was hired

in 1963 because Leonard's was being

picketed by blacks. (R 477.) That

is racist behavior. Hogge contacted

American Manufacturing Company twice.

The first time he talked to someone

in the Personnel Department, who

without much knowledge of the actual

facts, gave him an unfavorable re-

port. (R 482.) But on the second

contact, Hogge got what he charac-

terized as a favorable report. (R484.)

It is reasonable to assume that there

was a racist motivation behind the un-

favorable report which was given the

first time. On May 21, 1974, Mr.

Ingram of the Stevens Corporation

gave Mr. Hamilton an unfavorable

evaluation. On May 28, 1974, he called

Jack Hogge of General Motors and told

him that he felt as if he had not

given Hamilton a fair and complete

evaluation. (R 491.) When Jack Hogge

and Dale Hurd, the chief electrician,

talked to Hamilton's former super-

visor at Stevens, they got a glowing

report:

A. Re: Rogers Hamilton, 6-5-74.

Dale Hurd and J. Hogge

talked to Fred Hall (for-

mer employer at’ Stevens).

Mr. Hall indicated that at

one time at Stevens Ham-

ilton worked as a helper

then for a couple of years

in all types of electrical

work, such as wiring the

presses, running circuits,

following prints, working

on motors, starters, trans-

formers, et ceter*. He in-

dicated he performed jour-

neyman's work. He also

stated that at American

Manufacturing the work was

very hazardous and persona-

lly he would not work there.

But Hamilton was working

there as a Class A elec-

trician and they worked a

lot of electrical trans-

former devices and so forth.

He gave Hamilton a good

recommendation.

(R 489.)

In addition to the other errors

made by the trial court and perpet-

uated by the Court of Appeals, the

trial court and the Court of Appeals

have each chosen to ignore an over-

whelmingly important item of evidence:

that the Arlington plant of General

Motors Corporation has been in opera-

tion since 1953 (R 733.), but when he

was hired on July 1, 1974, Rogers

Hamilton became the first black to

work in the Skilled Trades Depart-

ment at the Arlington plant. (R 529).

Not one word is said by either the

trial court or the Court of Appeals

about this significant fact, which is

by itself, prima facie proof of dis-

crimination.

In addition to their total disre-

gard of the teachings of Rowe v.

General Motors, supra, p. ew the

Court of Appeals has made a specific

remark about Rowe which appears to be

in error. The Court of Appeals said

at Appendix, p52 of the Opinion:

In Rowe we found a pro-

motion procedure re-

quiring a recommendation

of the immediate foreman

to be inconsistent with

Title VII. The reconm-

mendation included an

experience factor which

no black could then meet.

Appellant's lawyer has searched the

opinion in Rowe for any emphasis on

"an experience factor" and has found

none. In fact, I can find no mention

of "an experience factor."

Finally, the Court of Appeals held

that the appellant was hired as an

electrician as part of an informal

affirmative action program such as

was recently approved by the Supreme

Court in United Steelworkers v. Weber,

U.S. , 99 S.Ct. 2721, 61

a ~

L.Ed.2d 480 (1979). The Court of

Appeals’ holding represents the most

cynical interpretation of this record

that could be imagined. There are many

factors, most of them blatantly ob-

vious, which distinguish this case from

Weber, but it is enougn to point out a

few. In Weber, the employer and the

union had agreed to reserve 50 percent

of the openings in a crafts training

program for blacks; there was no

reservation of any positions for

blacks by General Motors. More im-

portantly, though, General Motors did

not initiate any action to hire Rogers

Hamilton. Instead, through the use of

a racially discriminatory device they

refused him a job on May 8, 1974.

There would have been no further act-

ion by General Motors. But Rogers

Hamilton called Jack Hogge of per-

sonnel later in the day on May 8th to

tell him he thought he had been re-

fused employment "because of the color

of my skin." (R61). A meeting was

held the next day between Hamilton

and Hogge, along with some other per-

sonnel types. (R 62, 63). Rogers

Hamilton remained accusatory; he used

wording in that meeting that would

indicate to any halfway intelligent

person that he was prepared to file

a charge of racial discrimination

against General Motors. This is no

case of a benevolent act by a giant

corporation. Once General Motors

realized that Mr. Hamilton was pre-

pared to take action against them and

after a seven-week attempt showed

them that they could not discredit his

qualifications, they knew they had to

hire him.

The most appalling aspect of the

Court of Appeals' decision is that they

have taken Weber, a good and progres-

sive decision and used it to defeat

Title VII. If this decision is left

standing, any employer can discrimi-

natorily refuse employment to blacks

and then if a black applicant makes

an issue of the refusal, the employer

can spend an indefinite period of time

trying to discredit the applicant's

qualifications. The only blacks who

will get hired are those who are

assertive enough to stick it out

through long periods of third-degree

type attempts to discredit their

qualifications. The employer can

then say: "Pardon us, the delay was

not discrimination, it just took us

a while to decide that we need to

hire a black for our plant."

PRAYER

Petitioner Rogers Hamilton re-

quests that the Supreme Court grant

a Writ of Certiorari and consider.

this case on its merits.

Respectfully submitted,

. .

BILL KI

Attorney for Petitioner

West Texas Legal Services

First Savings Building

Suite 400

San Angelo, Texas 76903

(915) 653-6982

BY:

DON GLADDEN

Attorney for Petitioner

2814 Avenue D

Fort Worth, Texas 76105

(817) 531-3667

CERTIFICATE OF SERVICE

The undersigned, a member of the

Bar of this Court, hereby certifies

that copies of the foreoing have this

th ay Of April, 1980, been

served upon Mr. Ira Butler, Sr., 1800

First National Bank Building, Fort

Worth, Texas 76102; Mr. Edward L.

Kemble, 1800 First National Bank

Building, Fort Worth, Texas 76102 and

Mr. J.R. Wheatley, 3044 West Grand

Boulevard, Detroit, Michigan 48202,

counsel of record for Respondent in

accordance with Rule 33 of this Court,

by depositing the same in a United

States mail box, with first class

postage prepaid addressed to said

counsel at their post office

addresses. Three (3) copies of the

Petition for Writ of Certiorari have

been sent to each of Respondent's

lawyers.

DON GLADDEN

Attorney for Petitioner

2814 Avenue D

Fort Worth, Texas 76105

(817) 531-3667

INDEX TO APPENDIX

5th Circuit Court Opinion

5th Circuit Court Order of

January 28, 1980

District Court Judgment

District Court Findings

42 U.S.C., §2000e-2(a),

Pub. L. 88-352, Title VII,

§703, July 2, 1964, 78

Stat., 255

42 U.S.C., §1981 (Act

May 31, 1870, c.114,

§16, 16 Stat.

ROGERS HAMILTON, Individually and on

behalf of others similarly situated,

Plaintiff-Appellant,

Vv.

GENERAL MOTORS CORPORATION,

Defendant-Appellee.

No. 79-2139

Summary Calendar

United States Court of Appeals,

Fifth Circuit.

Nov. 14, 1979

Before GOLDBERG, RUBIN and POLITZ,

Circuit Judges.

POLITZ, Circuit Judge.

Appellant, a black man, filed suit

against his employer under Title VII

of the Civil Rights Act of 1964, 42

U.S.C. §2000e et seq., and under 42

U.S.C. §1981, alleging racial discrim-

ination in employment practices. The

district court found that the complain-

ant had failed to establish the prima

facie case of racial discrimination as

required for a Title VII case by

McDonnell Douglas Corp. v. Green, 411

U.S. 792, 93S.Ct. Tey, 36 L.Ed.2d 668

(1973). The relief sought, including

an injunction against alleged haras-

sment and retaliation, was denied.

We affirm.

In 1969 appedlanat sought employment

as an assembly worker in defendant's

plant in Arlington, Texas. He failed

the employment physical and was immed-

iately so advised. On May 8, 1974, he

applied for employment as an electrician

and he was hired on July l, 1974.1

The relief sought under Title VII

and the Civil Rights Act was for the

defendant's failure to hire in 1969

and for the damages sustained by virtue

of the delay between the application

in May 1974 and the hiring seven weeks

later. Appellant also claimed entitle-

ment to injunctive relief against har-

assment and other retaliation for the

attempts to assert his rights under

Title VII.

Appellant raises three issues on

appeal. First, he contends the re-

fusal of employement in 1969 was the

product of racial discrimination.

Second, he contends the delay in hir-

ing him in 1974 was likewise racially

motivated and discriminatory, com-

plaining that there were others more

rapidly hired and that defendant con-

ducted employment interviews which

were violative of the standards ex-

pressed by this court in Rowe v. General

1. Complainant claims he also applied

for employment in 1971 and 1972 and was

rejected contrary to Title VII. The

district court found no such application

was made. Appellant offers nothing to

convince that this was error.

Motors Corp., 457 F.2d 348 (5th Cir.

1972), and Parson v. Kaiser Aluminum

and Chemical Corp., 575 F.2d 1374 (5th

Cir. 1978). Finally, he claims error

in the denial of the injunction.

THE 1969 EMPLOYMENT APPLICATION

(1) The threshold consideration of the

1969 employment dispute is its time-

liness. A jurisdictional prerequisite

to a Title VII action is the timely

filing of a complaint with the Equal

Employment Opportunity Commission

(EEOC). The EEOC complaint must be

filed within 180 days of the alleged

discriminatory act. 42 U.S.C. §2000e-

5(e); McArthur v. Southern Airways, Inc.,

569 F.2d 276 (5th Cir. 1978) (en banc);

Chappell v. Emco Machine Works Co.,

601 F.2d 1295 (5th Cir. 1979). Appel-

lant first filed with the EEOC on

June 18, 1974.

(2,3) Appellant's claim under §1981 is

similarly time tarred. In such actions

applicable state statutes of limita-

tion are to be applied. Shelly v.

Bayou Metals, 561 F.2d 12 5th Cir.

1997)

; Franks v. Bowman Transportation

Co., 495 F.2d 398 (5th Cir. 1974).

Reversed on other grounds 424 U.S. 747,

96 S.Ct. 1251, 47 L.Ed.2d 444 (1976).

In this instance Art. 5526 of Texas

Rev.Civ.Stat.Ann., providing for a two

year period, is controlling. Bernard

v. Gulf Oil Co., 596 F.2d 1249 (5th

Cir. 1979); Green v. Forney Engineer-

ing Co., 589 F.2d 243 (5th Cir. 1979).

The instant suit was filed August 4,

1975.

(4,5) Appellant insists that the run-

ning of the prescriptive periods was

tolled until 1974 when he passed the

employment physical given by the same

doctor who had earlier failed him. Ap-

pellant claims that it was only then

that he realized the 1969 rejection had

been racially motivated. Equitable

considerations may very well require

that the filing periods not begin to

run until facts supportive of a Title

VII charge or civil rights action are

or should be apparent to a reasonably

prudent person similarly situated.

Chappell, supra; Bickham v. Miller,

Sei F-2a 736 (Sth Cir. 1978); Reeb v.

Economic Opportunity Atlanta, Inc.,

516 F.2d er (5th ae 1975); Franks,

supra. On April 7, 1969, within

twenty minutes of completion of the

physical examination, appellant was

informed he had failed. An employee

in defendant's personnel section told

appellant he should have passed the

physical. Appellant later passed

physical examinations administered by

his family doctor and by a doctor of

another major corporate employer.

Despite this information, appellant

did nothing for several years. Under

these circumstances, neither the EEOC

filing period or the Texas statute of

limitations is subject to equitable

tolling. The claim based on the 1969

physical examina*ion and its results

have not been timely presented. Con-

sideration of this claim is, accord-

ingly, barred. :

THE 1974 EMPLOYMENT APPLICATION

Appellant complains of what he con-

siders to be inordinate delay between

his application and his actual hiring

in 1974. He complains of loss of

seniority occasioned by this delay and

notes that others, all white, were more

quickly hired. Appellant contends that

he was subjected to discrimination in-

herent in oral employment interviews,

which he argues violate the Rowe stan-

dards. He further complained that he

was required to make proof of prior

employment.

The National Collective Bargain-

ing Agreements between defendant and

the International Union, United Auto-

mobile, Aerospace and Agricultural

Implement Workers of America, required

that all electricians at the Arlington

plant meet certain tests or have eight

years of journeyman experience or the

equivalent thereof. In 1974 defendant

instituted a program for hiring elec-

tricians which required, inter alia,

interviews and verification of prior

work experience. The chief electri-

cian concluded that appellant was not

qualified as a journeyman electrician.

Appellant complained and was then in-

terviewed by defendant's general

maintenance foreman who came to the

same conclusion. Despite this ap-

pellant was hired as an electrician.

We are convinced from the record that

defendant's higher level management

wanted to hire blacks in skilled

trades, an obvious informal affirma-

tive action pursuit.

The collective bargaining agreement

prescribes that to be eligible for

employment as an electrician an ap-

plicant must: (1) have journeyman

status, (2) have completed an ap-

prentice-training course, (3) have

previously carried journeyman status

in a General Motors plant subject to a

previous bargaining agreement, or (4)

have had eight years experience as an

electrician or the functional equiva-

lent. Appellant did not meet any of

these requirements. He does not chal-

lenge their validity or propriety.

The district court found that the

temporary hiring process for elec-

tricians in 1974 had six steps: (1)

a finding that the application, on its

face, reflected the necessary quali-

fications, (2) a finding by the em-

ployment interviewer that the ap-

plicant "might be qualified", (3)

concurrence by the employment super-

visor in that finding, (4) approval

of the applicant by the chief elec-

trician, (5) approval by the labor

relations department, and (6) verifi-

cation of the asserted prior work ex-

perience. The court found that the

interview by the chief electrician was

done without regard to race and that

the questions dealt with simply prin-

ciples of electricity. The follow-up

interview by the general maintenance

foreman was similarly conducted.

Appellant argues that the employment

process was discriminatory, that the

interviews lacked objective guidelines

and were mere shields for such dis-

crimination, and that the employment

procedure followed was not attuned

to the expressions by this court and

is therefore invalid. We disagree.

(6,7) A plaintiff in a Title VII case

need not show that his employer in-

tentionally discriminated against

him. Griggs v. Duke Power’Co., 401

U.S. 424, 91 S.ct. 849, 28 L.Ed.2da

158 (1971); Scott v. City of Anniston,

597 F.2d 897 (5th Cir. 1979). The

Supreme Court in McDonnell enunicated

four elements for a prima facie case:

(1) plaintiff belongs to a protected

minority, (2) plaintiff was qualified,

(3) plaintiff's application was re-

jected, and (4) the employer continued

to seek applicants with plaintiff's

qualifications. See also Parson,

supra, and Adams v. Reed, 567 F.2d

1283 (5th Cir. 1978). If the plain-

tiff establishes a prima facie case

the responsibility shifts to the de-

fendant to articulate legitimate non-

discriminatory reasons for its act-

ions. If defendant does so articu-

late, the plaintiff is then allowed

an opportunity to show that the rea-

sons stated by defendant are in fact

a pretext for prohibited discrimi-

nation.

(8) The court below found that ap-

pellant was not qualified to be an

electrician in 1974 and thus no prima

facie case had been established. Ap-

pellant now claims that the fact that

there was a subjective oral inter-

view in the employment process opera-

ted as a ready mechanism for discrim-

ination, contrary to Rowe's mandates,

and the process is thus, necessarily,

invalid. From this he would insist

the prima facie case has been made.

In Rowe we found a promotion pro-

cedure requiring a recommendation of

the immediate foreman to be incon-

sistent with Title VII. The recom-

mendation included an experience fac-

tor which no black could then meet.

We there said (at page 359):

"All we do today is

recognize that promo-

tion/transfer procedures

which depend almost en-

tirely upon the subject-

ive evaluation and fav-

orable recommendation of

the immediate foreman are

a ready mechanism for dis-

crimination against Blacks

much of which can be cov-

ertly concealed and, for

that matter, not really

known to management.”

In the instant case, unlike Rowe,

there is a valid objective criterion,

the qualification required by the

collective bargaining agreements. We

are not prepared to say that the ex-

istence of subjective oral interviews

in the employment process will render

that process per se discriminatory

where there are meaningful, known ob-

jective standards involved.

We are aware of no holding to the

effect that a complainant who fails to

satisfy a valid objective hiring

criterion may nonetheless make out a

prima facie case under McDonnell and

Rowe by pointing to what may be con-

Sidered an impermissible subjective

interview. We do not now so hold. We

do not suggest that an employer may

not properly include interviews in its

employment process. The test is one

of objective fairness.

(9) Appellant would have us infer from

the fact that he was hired on July l,

1974, that he was qualified when he

applied for work as an electrician on

May 8, 1974, and therefore the delay

was the fruit of racial discrimina-

tion. We decline to draw that in-

ference. The record is clear. The

appellant was hired as an electrician

as part of an informal affirmative

action program such as was recently

approved by the Supreme Court in

United Steelworkers v. Weber, U.S.

, 99 S.Ct. 2721, 61 L.Ed.2d 480

(1979). We choose not to dampen the

enthusiasm of employers to do that

which defendant did herein when it

hired appellant. There is decidedly

no justification for penalizing the

defendant for not acting more quickly

(the asserted delay between the ap-

plication and the hiring) in an in-

stance in which defendant could not

have been legally faulted for not

having acted at all.

(10) Finally, we conclude that injunc-

tive relief is not appropriate. We

have found no Title VII violation.

And, further, we concur with the find-

ing of the district court that the

evidence does not support the claim

that appellant has heen given more

difficult or dangerous job assign-

ments because he filed the EEOC com-

plaint and this law suit. Nor can

defendant be found wanting because of

the unacceptable and contemptible

actions of one or more of appellant's

coemployees since we find in the rec-

ord that the defendant has taken rea-

sonable steps to discourage such

reprehensible activity.

For these reasons, the decision of

the district court is:

AFFIRMED.

611 FEDERAL REPORTER, 2d SERIES

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

PAGE 882

DENIALS OF REHEARING EN BANC

Date of Citation of

Docket

Number

Panel Decision >

Denial

Title

606

W.D. Tex. ,

F.2d 576

1/28/80

79-2139

Hamilton v. General Motors Corp.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

ROGERS HAMILTON §

§ CIVIL ACTION

GENERAL MOTORS §

CORPORATION §

JUDGMENT

This action came on for trial before

the Court, Honorable Eldon B. Mahon,

District Judge, presiding, and the

issues having been duly tried and a

decision having been duly rendered,

it is ORDERED and ADJUDGED that the

plaintiff, ROGERS HAMILTON, take

nothing, that the action be dismissed

on the merits, and that each party

bear its own costs of action.

Entered this 3lst day of January,

1979.

SIGNED: Eldon B. Mahon, United

States District Judge

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

ROGERS HAMILTON

CIVIL ACTION NO.

CA 4-75-200

vs.

GENERAL MOTORS

CORPORATION

AMMMMMMAMN

MEMORANDUM OPINION

This is a civil rights suit brought

pursuant to Title VII of the Civil

Rights Act of 1964, 42 U.S.C. §2000e,

et seg. and 42 U.S.C. §1981. Plain-

tiff is a black male who alleges (1)

that defendant refused to hire him in

1969, 1971 and 1972 because of his

race, (2) that defendant delayed hir-

ing him from May 8, 1974 to July l,

1974, because of his race, (3) that

defendant has subjected him to con-

tinuous racially motivated harassment

while he has been employed by defen-

dant, and (4) that defendant has

harassed plaintiff in retaliation for

a charge that plaintiff filed against

defendant with the Equal Employment

Opportunity Commission (EEOC). After

carefully considering the evidence

presented at trial, the Court has de-

termined that plaintiff's claims are

without mérit and files these findings

of fact and conclusions of law.

FINDINGS OF FACT

l. Plaintiff is a black citizen of

the United States and resides in Fort

Worth, Tarrant County, Texas.

2. The defendant, General Motors

Corporation, is incorporated under

the laws of Delaware and is duly auth-

orized to do business in Texas. De-

fendant operates through its GM

Assembly Division an assembly plant at

Arlington, Tarrant County, Texas, and

is an employer within the meaning of

42 U.S.C. §2000e (b).

3. International Union, United

Automobile, Aerospace and Agricul-

tural Implement Workers of America

(UAW) and its Local 276 are labor or-

ganizations within the meaning of 42

U.S.C. §2000e (d) and are engaged in

an industry affecting commerce.

4. Plaintiff is a member of UAW

and its Local 276 and is a member of

a unit of employees for which the UAW

is the sole exclusive collective bar-

gaining agent in respect to rates of

pay, wages, hours of employment and

other terms and conditions of employ-

ment as more fully set forth in the

agreements between defendant and UAW

and its Local 276.

5. The provisions of the national

collective bargaining agreements be-

tween the defendant and the UAW in

effect at all times pertinent to this

lawsuit have required that an appli-

cant, to be eligible for employment as

an electrician:

(a) have journeyman status as

such and as defined in and re-

ferred to in paragraphs 167 and

178 of the national GMC-UAW agre-

ement, or

(b) have completed a bonafide

apprentice training course

with similar standards to the

GMC-UAW apprentice training

program, or

journeyman status in any General

Motors plant under the terms of

previous agreements between Gen-

eral Motors Corporation and UAW,

(d) have 8 years equivalent ex-

perience in the trade as de-

fined in section 167 and section

178 of the national GMC-UAW |

agreement.

These requirements are reasonably re-

lated to the heavy industrial elec-

trical work demanded of electricians

at defendant's Arlington, Texas, plant.

The job of electrician at General

Motors' Arlington plant is a critical

job, involving the safety of employees

and the efficient operation of the

assembly line running. If the line

should be shut down, 2000 employees

would be standing idle. When elec-

trical problems develop, these elec-

tricians must be qualified to act

immediately and efficiently on their

own initiative.

6. Plaintiff applied to defendant's

Arlington plant for employment in

April, 1969. He was given a pre-em-

ployment physical examination on April

7, 1969, and was found by the plant's

medical director to be unemployable

under the standards required.

7. Plaintiff was advised by de-

fendant on or about April 7, 1979,

that he did not pass the physical ex-

amination.

8. The standards applied by the

defendant's medical director in the

1969 physical examination of plaintiff

were the same standards applied in

physical examinations of white appli-

cants.

9. The defendant's medical dir-

ector's 1969 finding that Hamilton was

unemployable was not racially moti-

vated.

10. No employee or representative

of General Motors Corporation ever

suggested or intimated to the medical

director of the plant or any member of

his staff that there should be any

difference in the standards applied

in the physical examinations of black

and white applicants and no such dis-

tinction was ever made in such ex-

aminations.

ll. Plaintiff contends that he

asked the medical director at the

General Motors plant "What did you turn

me down for in 1969" and that the med-

ical director responded to plaintiff,

"I didn't turn you down in 1969." The

Court finds that those statements were

never made.

12. Plaintiff was not qualified to

be hired by defendant as an electrician

in 1969.

13. Plaintiff did not apply to de-

fendant for a job as an electrician in

1969.

14. Race was not a factor in de-

fendant's decision not to hire plain-

tiff in 1969.

15. Plaintiff was not hired by de-

fendant in 1969 because he failed the

physical examination.

16. Plaintiff did not file any

charge against defendant with the EEOC

within the time required by 42 U.S.C.

§2000e after his application for em-

ployment at defendant's Arlington,

Texas, plant in 1969.

17. Plaintiff did not file any suit

against defendant based upon defen-

dant's failure to hire him in 1969

with the time required to prevent any

claim he could have asserted against

defendant under 42 U.S.C. §1981 from

being barred by the Texas statute of

limitations.

18. The facts that form the basis

of plaintiff's 1969 claim were appar-

ent to plaintiff in 1969, and should

have been apparent in 1969 to a person

(1) who was similarly situated to

plaintiff and (2) who possessed a rea-

sonably prudent regard for his rights.

19. Plaintiff did not appiy for

employment with defendant in either

1971 or 1972.

20. Even if plaintiff had applied

for employment with defendant in 1971

or 1972, he did not file within the

applicable limitations period a charge

with the EEOC or a lawsuit against

defendant for defendant's alleged

failure to then employ him.

21. The only charge filed by plain-

tiff against defendant with the EEOC

was dated June 18, 1974, and received

by EEOC on July l, 1974.

22. The records in this cause and

in this Court do not show a lawsuit

alleging racial discrimination filed

by plaintiff against defendant prior

to August 4, 1975.

23. At the time plaintiff applied

for employment at defendant's Arlington

plant on May 8, 1974, defendant had

openings for electricians.

24. Defendant requires all persons

seeking employment as skilled trades

journeymen (including electricians) to

provide documented proof of their prior

work showing the required experience

and qualifications of such applicants.

Defendant is required by the terms of

paragraph 178 of the national GMC-UAW

agreement to furnish copies of all such

documents upon request to the chairman

of the shop committee of the local

union.

25. At the time in 1974 when plain-

tiff applied, defendant was operating

under the following temporary policy

and practice: If (1) an application

for employment as an electrician showed

on its face that the applicant met the

GMC-UAW agreement requirements, (2)

the employment interviewer concluded

that the applicant might be qualified,

and (3) the supervisor of employment

concurred, then the applicant was in-

terviewed by the chief electrician.

If the chief electrician approved,

the application would be submitted to

the labor relations department, and

if approved there the applicant would

be temporarily employed. This tem-

porary employment was conditioned upon

verification of the applicant's work

experience. If the applicant's work

experience was not verified and docu-

mented within a reasonable time, he

would be terminated.

26. If an application showed that

an applicant for skilled trades

claimed journeyman electrician quali-

fications, as defined in the GMC-UAW

agreements, the applicant could not

have been rejected by the supervisor

of employment, the skilled trades in-

terviewer, or the plant's medical

director. Instead, any such appli-

cation would have ultimately been

referred to the labor relations de-

partment for its review and further

handling by management before re-

jection.

27. At the time plaintiff applied

to the plant for employment on May 8,

1974, as an electrician, he presented

no written proof to verify his claim

of journeyman status as an electri-

cian or other required qualifications

under the GMC-UAW agreement.

28. Plaintiff was interviewed by

Bill Roach who reported to the super-

visor of employment, Jack Hogge, that

plaintiff might qualify. Hogge re-

viewed the application and authorized

Roach to have plaintiff interviewed

that day by Dale Hurd, the defendant's

chief electrician.

29. Hurd reviewed plaintiff's ap-

plication with him and inquired as

to just what work he had done for the

employers listed on his application.

As related by plaintiff during the

interview, his electrical work had

consisted in most part of changing

light bulbs, running conduits and

hooking up extensions. Hurd then in-

quired of plaintiff the ways in which

he would handle installations and other

electrical work performed by electri-

cians at the General Motors plant.

Plaintiff's answers indicated a lack of

qualifications to do the work required.

Hurd then drew a schematic of the

simplest electrical equipment used at

the plant and asked plaintiff to hook

the wires up; plaintiff did not hook

these up correctly. When asked about

a fundamental principle of electricity,

Ohms Law, plaintiff evidenced a lack

of understanding. Hurd advised super-

visor of employment Hogge that plain-

tiff was not qualified to be hired as

an electrician.

30. The questions asked and prob-

lems posed by Hurd during his interview

of plaintiff were the same as those

used by Hurd when interviewing all

applicants, including the white ap-

plicants that he interviewed for jobs

as electricians during this emergency

and found to be not qualified.

31. Plaintiff was advised by Hogge

that it would be necessary for him to

present written proof from former em-

ployers showing the required experi-

ence and qualifications to be further

considered for employment as an elec-

trician. Plaintiff stated that he

would furnish such documentary proof.

32. On May 20, 1974, plaintiff

told Hogge that he felt he had not re-

ceived a fair interview. Hogge there-

fore arranged for plaintiff another

interview with Sam Pollock, the gen-

eral foreman of maintenance who has

had 27 years of electrical experience.

Pollock interviewed plaintiff and re-

ported to Hogge that plaintiff was not

qualified under the GMC-UAW agreement.

While a supervisor in the electrical

department, Pollock had interviewed

applicants for jobs at the plant as

electricians and had found some lack-

ing in the required experience and

qualifications. He had not discussed

with the chief electrician the lat-

ter's interview with plaintiff.

33. The interviews of plaintiff by

defendant's chief electrician and gen-

eral foreman of maintenance were fair

and related directly to the qualifi-

cations of plaintiff to perform elec-

trical work at the plant. Similar in-

terviews were given and similar stand-

ards applied to the white applicants

who applied for jobs as electricians

during the 1974 emergency and were

found not to be qualified and were not

hired. Similar interviews were given

and similar standards applied to those

who were hired.

34. On May 20, 1974, plaintiff in-

formed Hogge that he was having dif-

ficulty securing proof of his work

experience. Hogge then called plain-

tiff's employer and various former em-

ployers in an attempt to verify plain-

tiff's experience and qualifications

so that he could be temporarily hired

and have additional time to furnish

documentation and proof of his ex-

perience and qualifications.

35. On May 22, 1974, defendant de-

cided to give plaintiff a pre-employ-

ment physical examination while the in-

vestifation of his qualifications con-

tinued. He was examined and approved

by the plant's medical director, with

certain work restrictions.

36. The responses which the em-

ployment supervisor Hogge received

from plaintiff's employer and former

employers indicated that plaintiff did

not have the required electrical qual-

ifications for work at the plant. Dur-

ing the week of June 17, 1974, Hogge

submitted to the labor relations de-

partment plaintiff's application and

all of the information which had been

gathered from plaintiff's former

employers.

37. Notwithstanding doubt on the

part of the defendant as to plain-

tiff's qualifications, after extended

conferences between the supervisor of

labor relations and the plant manager,

the manager of personnel and the plant

engineer, plaintiff was notified on

June 28, 1974, that he would be hired

effective July 1, 1974, but would be

required to furnish the documentary

proof of his required experience and

qualifications.

38. The delay between the time of

plaintiff's application and the date

of his employment was attributable

solely to the difficulty defendant en-

countered in verifying plaintiff's

electrical experience and his quali-

fications as a journeyman electrician

as provided by the GMC-UAW agreements.

39. Defendant assisted plaintiff in

every reasonable way to obtain veri-—

fication that plaintiff's work experi-

ence and qualifications met the re-

quirements of the GMC-UAW agreements.

40. On May 8, 1974, when plaintiff

applied to defendant for work as an

electrician, he did not have the 8 years

electrical experience required by the

GMC-UAW agreement then in effect,

having done journeyman electrical work

only since May 23, 1968.

41. Defendant has never given

plaintiff more difficult job assign-

ments than it has given white employ-

ees.

42. Defendant has never withheld

tools from plaintiff which were nec-

essary to perform the work that he was

assigned.

43. Plaintiff was never given work

assignments which violated any medical

restrictions under which he was work-

ing. Plaintiff was not required to

simultaneously lift two wheels totaling

45 pounds during the time when he was *

under a doctor's orders not to lift

more than 25 pounds. Plaintiff was

told by defendant that he could lift

each wheel individually and that he

could work at whatever- pace he could

manage.

44. Under the provisions of the

GMC-UAW supplemental agreement of

November 19, 1973, which was in ef-

fect in 1974 and 1975, defendant's

hourly employees were provided with in-

surance covering hospital, medical,

surgical, prescriptions and dental ex-

penses without cost to them. The cov-

erage commenced on the first day of

the second month after an employee's

date ot hire and extended through the

month following the month when the

employee might be laid off. Plaintiff

went on sick leave on November 25,

1974, during which time his insurance

should have been kept in effect. On

December 2, 1974, there was a reduc-

tion in work force and plaintiff would

have been laid off but for the fact

that he was on sick leave. The infor-

mation on employees' coverage is com-

puterized. The notice of the ac-

cident of November 25, 1974, had been

put in the computer. Through inad-

vertence, the notice of the layoff of

December 2 was also put in the compu-

ter. This resulted in the termination

of plaintiff's insurance coverage on

the last day of the following month.

When the error was brought to defen-

dant's attention, the insurance cov-

erage was reinstated to the date of its

termination. Similar errors were made

at the time involving five white em-

ployees. During a layoff in September

of 1975, plaintiff's insurance was

cancelled effective November 1, 1975,

which would have been correct except

for a supplemental agreement between

GMC and UAW, made earlier in 1975,

extending the time of coverage after a

layoff. The notice of this extension

was overlooked when the information

on plaintiff's layoff was computerized.

When the error was discovered, plain-

tiff's insurance was reinstated as of

November 1975. All of plaintiff's

claims during both periods were paid

by defendant's insurance carriers.

Defendant's employees who processed

this information on insurance cov-

erage did not know whether an em-

ployee was white or black. These two

incidents were clerical errors and

not racially motivated.

45. During the course of his em-

ployment plaintiff was embroiled in

numerous and continuous disputes with

his supervisors.

46. Defendant's safety rules and

regulations applicable to electri-

cians, which plaintiff was familiar

with, provide in part 3, "Eye pro-

tection must be worn while operating

any power equipment or machinery, or

while working in specified eye pro-

tection areas of the plant." Despite

repeated requests, admonitions, and

instructions by defendant's supervi-

sors, plaintiff refused to wear safety

glasses until the matter was sub-

mitted to labor relations.

47. Plaintiff received a disci-

plinary layoff for a violation of de-

fendant's shop Rule 14. This layoff

lasted for the balance of the shift and

the following day. Plaintiff's duties

include keeping spot weld guns re-

paired. These are necessary to keep

the assembly line in operation. Be-

cause of plaintiff's failure to prop-

erly repair a spot weld gun the night

before, that gun and two other guns

required repairs at the beginning of

an ensuing shift. Plaintiff called

his supervisor and asked for assistance

and a co-worker was sent to help him.

After the co-worker had repaired one

gun, he noticed that plaintiff had not

properly repaired the gun he had been

working on and explained this to plain-

tiff and agreed to help him further.

Although the assembly line was running

and the guns were needed, plaintiff

without any word to the co-worker as

to where he was going, left the place

where they were working. In his ab-

sence, the supervisor and the co-

worker repaired the guns. When plain-

tiff returned and the supervisor re-

quested an explanation of his unauthor-

ized absence, plaintiff replied that

he had gone to get a soft drink.

48. The only other disciplinary

action by the defendant against plain-

tiff was a routine reprimand. Plain-

tiff was assigned the task of over-

hauling a spot weld gun. The gun was

not properly overhauled and would not

Operate when needed on the assembly

line of the next shift.

49. Plaintiff was never requested

by defendant's supervisors to plug a

power panel module or electrical

starter control into a hot line and

never did so.

50. Plaintiff was never requested

by defendant's supervisors to cut a

277 volt line and never did so.

51. Plaintiff was never instructed

by defendant's supervisor to hang or

disconnect lights at great heights and

to do so "like a monkey hanging by

his tail."

52. Plaintiff's work assignments

at defendant's Arlington plant were

reasonable and not racially motivated.

53. Defendant has used all reason-

able means to discourage and prevent

racial slurs, epithets, and imposi-

tions from being directed by fellow

workers toward black employees. There

have been regular meetings of all

supervisory and other salaried per-

sonnel at which video tapes from top

corporate officials have been shown,

including a message from the Chairman

of the Board advising that any employee

who did not comply with the corpora-

tion's non-discriminatory policy would

not be working for it any longer.

54. Any finding of fact deemed to

be a conclusion of law is so found.

SIGNED: Eldon B. Mahon, United

States District Judge

§2000e-2. UNLAWFUL EMPLOYMENT

PRACTICES--EMPLOYER

PRACTICES

(a) It shall be an unlawful employment

practice for an employer--

(1) To fail or refuse to hire or

to discharge any individual, or

otherwise to discriminate against any

individual with respect to his com-

pensation, terms, conditions, or

privileges of employment, because of

such individual's race, color, reli-

gion, sex, or national origin; or

(2) To limit, segregate, or

classify his employees or applicants

for employment in any way which would

deprive or tend to deprive any indi-

vidual of employment opportunities

or otherwise adversely affect his

status as an employee, because of such

individual's race, color, religion,

sex, Or national origin.

§1981. EQUAL RIGHTS UNDER THE LAW

All persons within the jurisdiction

of the United States shall have the

same right in every State and Terri-

tory to make and enforce contracts,

to sue, be parties, give evidence, and

to the full and equal benefit of all

laws and proceedings for the security

of persons and property as is enjoyed

by white citizens, and shall be sub-

ject to like punishment, pains, pen-

alties, taxes, licenses, and exactions

of every kind, and to no other.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.