# Petition — Hamilton v. General Motors Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2034%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 447 U.S. 907 ## Text 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 V. 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 q NO. IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1979 ROGERS HAMILTON, PETITIONER V. 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 11 42 43 a4 45 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, 39 Rowe v. General Motors Corporation, 457 F.2d 348 (5th Cir. 1972).....12,19, 30,31,34, 39 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, 40 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 10 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. 11 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- 12 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 13 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 14 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: VL-8T-L bL-9T-L =» s HL-TO-L_~—SséL-80-S YOPTA uozTTueH sreboy °oT GL-07-€ vL-¥I-3 DL-EZ-L bL-@2-L = L-¥7-9 = ss HL-LT-9 ~— ue TSeoNeD uooTUeA “I'L °¢ pL-81-9 bL-ET-S L-87-S PL-¥I-S — UeTSeONeD zoTAeL “aT °° ™ “ pL-ET-8 pL-OT-8 PL-87-S PL-ET-S UeTSeoNeD UTTITH “M°H °L vL-€0-0T pL-0€-9 bL-EZ-9 = HL-OT-S = L-LO-G = ue Tseonea TT®UDITW “DU *9 uoTzejUSeUMD0q peAitH pettddy s0eY oureN pez;Tuqns e3eq = a3eq e7eq NOILWLNAWND0d JO NOISSIWENS ONY SYIH ‘NOI~WolIdav dO Saivd yL-07-9 vL-80-S vL-LO-S uetTseone) uewezI0d “H*Y “Ss YL-E0-L L-T72-9 . Oe orus ¥L-OT-S VL-LO-S uetseones) ybneqntd “ed v bL-Z1-6 PLaLt-9 vL-80-S 1-90-S uUeTSeoneD weybuTUUND “A‘H “E 4 yL-9T-6 vL-Z7-9 , ars vL-8T-9 vL-80-S vL-90-S uetseone) wees 6S vL-vI-8 panes. PL-ET-8 vL-90-S L-Z0-S = UeTSeONeD ied ith he Geet UOTZejUSUMDOg peatH petTdady 9oed i pez stuqns o3eq 97e¢d 97ed NOILWLNAWNOCG JO NOISSIWENS AUNW dAYIH ‘NOILWOIIddW dO Saivd 18 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.) ; 19 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 20 over the content of the interview and the decision on whether he will recom- mend that the applicant oe hired: Q. 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. al 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.) 22 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 23 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) 24 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. 25 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: Q. 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? 26 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: Q. Have you been given any instructions by your superiors with regard to how to interview or not in- terview applicants? 27 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 28 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. . A. From the testimony of General Mo- tors' own management-level employees, 29 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.) 30 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 31 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 32 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 33 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 p- 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.) 34 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- 35 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- 36 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———_ 37 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: 38 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 39 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 ~ 40 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 41 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." 42 PRAYER Petitioner Rogers Hamilton re- quests that the Supreme Court grant a Writ of Certiorari and consider. this case on its merits. Respectfully submitted, . . B 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 43 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. 55 56 57 73 74 45 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. 46 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. 47 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. 48 (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. : 49 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 50 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. 51 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. 52 (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 ps 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 54 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 55 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. 56 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 57 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. 58 t 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 59 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 (c) have properly carried such journeyman status in any General Motors plant under the terms of previous agreements between Gen- eral Motors Corporation and UAW, or (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 60 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 61 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. 62 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 63 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 64 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 65 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- 66 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. 67 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 68 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 69 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, 70 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. 71 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 72 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 73 §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. 74 §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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2034%3A1. Public record. Not legal advice.