Appendix — Owens-Illinois, Inc. v. Williams
Supreme Court brief1982
Ask Donna
What actually matters in this document.
Text
In the Supreme Court
OF THE
United States
Ocroser Teem, 1982
Owens-I.uino1s, Inc.,
Petitioner,
vs.
Fioyvp Wiuu1aMs, Jr., et al.,
Respondents.
APPENDIX TO
PETITION FOR WRIT OF CERTIORARI
To the United States Court of Appeals
For the Ninth Circuit
Moroenstein, Lapp & J uBELIRER
Marvin D. Morcenstrern
COUNSEL OF RECORD
Jzerraey R. Wou114Ms
255 California Street, Suite 800
San Francisco, California 94111
(415) 421-9320
R. Jerrrey Brxver
Owens-Iuuino1s, Lye.
One SeaGate Plaza
Toledo, Ohio 43666
(419) 247-5000
Pavut, Hastines, Janorsxy & Walker
Lioyp Sutrer
230 Peachtree Street, N.W.
Suite 1100
Atlanta, Georgia 30303
(404) 588-9900
aoe a
BOWNE OF GAN FRANCIOCO, INC. * ISO NINTH OT. © 6.F.,.CAS410B © (415) 664-8900
FLOYD WILLIAMS, et al., Plaintiffs,
v.
OWENS-ILLINOIS, INC., Defendant,
No. C-75-1197
United States District Court
N.D. California
January 8, 1979, as amended May 17, 1979
Judgment, March 15, 1979, as
amended May 17, 1979.
FINDINGS OF FACT AND
CONCLUSIONS OF LAW
SCHNACKE, District Judge.
The Findings of Fact and Conclusions
of Law herein are based upon the findings of
the Court and, in those cases of unanimous
agreement by the Jury, upon the Jury's
verdict. As to matters not unanimously
agreed to by the Jury, the Court has found
the facts to be in accordance with the view
of a majority of the jurors.
On or before January 19, 1979, the
parties shall submit proposed forms of judgment,
suggestions of the relief appropriate to the
findings of fact relating to the class of
female employees, memoranda relating to the
back pay due plaintiff Alice Brice, and any
other matters properly to be brought to the
attention of the Court. All of such matters
will be heard at 9:30 a.m., on Friday, February
2, 1979. |
‘THE CLASS OF BLACK EMPLOYEES
1. Defendant’s Oakland Plant is located
in Oakland, California, on the border of Alameda,
California. It is within commuting distance
of the California cities of Oakland, Hayward,
Alameda, San Leandro, Fremont, Richmond, San
Lorenzo, Union City and Berkeley. During the
period January, 1971 through July 31, 1978
the following percentage of its employees
were hired from those cities: Oakland--46.1%;
Hayward--12.4%; Alameda--9.7%; San Leandro--
8.6%; Fremont--4.0%; Richmond--3.13%; San
Lorenzo--3.1%; Union City~--2.4%; Berkeley--
1.8%; other cities--8.6%.
2. Of the persons hired in the period
from March 7, 1971, through July 31, 1978,
and still employed on July 31, 1978, 35% were
Black, 41% were White, and 23% were non-Black
minority; information on the remaining 1% was
not available.
3. The work force statistics by race
of all employees at the Oakland Plant for the
following years was as follows:
1971: Minority 30.5%
Black 14.8%
Caucasian 69.5%
March 31, 1973: Minority 31%
Black 20%
Caucasian 69%
August 31, 1974 Minority 38.5%
Black 19%
Caucasian 61.5%
March 31, 1975 Minority 39%
Black 19%
Caucasian 61%
March 31, 1976 Minority 40%
Black 20%
Caucasian 60%
March 31, 1978 Minority 45%
Black 23%
Caucasian 55%
4. In the initial assignment of new
hires, Owens-Illinois did not discriminate
against Black employees. The evidence estab-
lished that assignment of new employees was
based upon job openings and qualifications of
the employee without regard to the race of
the employee.
a
5. With respect to all employees who
were paid an hourly rate, which employees
composed 90% of the work force of the Oakland
plant, Black and non-Black employees were
paid the amounts required to be paid to them
pursuant to the collective bargaining agreements
applicable to those jobs, and no Black employee
was paid either less than the amount required
to be paid pr suant to a collective bargaining
agreement or less than a non-Black employee
in a similar job.
6. With respect to salaried employees,
Black employees were paid an amount equal to
non-Black employees for similar work, and no
Black employee was paid less than the amount
established by a bona fide job evaluation
system for the job performed.
7. The percentage of Black employees
hired by the Oakland plant commencing March
7, 1971 when compared with the percentage of
Black persons in the civilian work force for
the cities from which it would be anticipated
that employees for the Oakland plant would be
hired, demonstrates that the Black percentage
of persons hired was equal to or greater than
the number of Black persons in the applicable
civilian work force, so that no finding can
be made that Owens-Illinois discriminated
against Black persons in hiring from a conm-
parison of the civilian work force statistics
with the Oakland plant statistics.
8. Black employees were not placed in
jobs within departments, or in special depart-
ments, because of their race. The placing of
employees was based upon job vacancies in the
departments and the qualifications of the
employees seeking those vacancies, without
regard to race.
9. When an employee was employed in a
job covered by a collective bargaining agree-
ment, the promotion of that employee in hourly
jobs was controlled by the system provided in
the employee's collective bargaining agreement,
and Owens-Illinois followed the procedure for
promotion established by the collective bar-
gaining agreements.
10. Promotion of employees, from houuwsly
jobs to salaried jobs, and promotion of employees
in the salaried jobs, was not made with regard
to the employee's race, nor were Black employees
as a class denied promotions because of their
race,
ll. The variance and regression analysis
introduced into evidence by plaintiffs did
not establish, or support a claim that Owens-
Illinois discriminated against its employees
in their pay on the basis of the race of the
employee, or the sex of the employee.
Jo
a
”h
)
- ,
ee
12. Plaintiffs failed to prove that
Owens-Illinois engaged in any policy, pattern,
or practice of terminating Black employees
because of their race.
13. Job vacancies in the hourly jobs
at the Oakland plant have been filled without
regard to the employee's race. Where a job
vacancy was a promotion pursuant to a collective
bargaining agreement, the job was filled pursuant
to the terms of the collective bargaining
agreement, without regard to the race of the
applicant. Where the job was not a promotion
within a department, but was an entry into
the department, it was filled without regard
to the race of the applicant.
14. Vacancies in salaried jobs at the
Oakland plant were filled without regard to
the race of the applicant.
15. Job vacancies in the Teamster,
Warchouse, Corrugated and Mold Repair depart-
’
ae Le i » ie
ments required that the vacancies be filled
through hiring halls pursuant to collective
bargaining agreements between Owens-Illinois
and the unions which represented the employees
within the departments. Entry into the Main-
tenance, Central Mold Shop, Machine Repair
and Forming departments were through apprentice-
ship programs administered by the union which
represented the employees in the department
and Owens-Illinois. The use of the union
hiring halls and the use of the apprenticeship
programs did not discriminate against any
Black employees because of their race.
16. There is no evidence that Black
employees as a class were denied jobs for :
which there were vacancies since March 7,
ig7i.
17. Since March 7, 1971, the procedure
for promotion of hourly employees and the pay
of those employees has been covered by collective
bargaining agreements between Owens-Illinois
and the union representing the employees of
the department. The requirements of the agree-
ments for promotion and pay of union employees
has been adhered to by Owens-Illinois at all
times since March 7, 1971; and the effect and
impact of the provisions of the collective
bargaining agreements has not had any adverse
impact or effect upon Black persons as a class
and has not had the effect of denying any job
Or promotion or pay increase or any other
term or condition of employment to any Black
person because of his race.
18. Since March 17, 1971, there was
no evidence that Black persons as a class
were denied jobs for which there were vacancies
in any department at the Oakland plant.
19. During the trial plaintiffs offered
evidence of isolated acts or practices which
had occurred prior to March 7, 1971 with respect
to Black persons. There was no evidence that
any of those acts or practices continued, or
had any present effect or impact upon Black
persons, subsequent to March 7, 1971.
20. Since March 7, 1971 Owens-Illinois
has not engaged in any policy, pattern or
practice in hiring employees at its Oakland
plant which either discriminated against, or
had any adverse impact or effect upon Black
persons because of their race.
CONCLUSIONS OF LAW
{1) 1. This claim was brougit pursuant to
F.R.Civ.P., Rule 23(b) (2), by plaintiffs who
sought to represent, and were certified to
represent, a class of all Black employees who
were employed by Owens-Illinois at any time
since March 7, 1971.
2. Since March 7, 1971, Owens-Illinois
has not engaged in any pattern or practice
-ll-
which discriminated against its Black employees
as a class in violation of either 42 U.S.C.
§ 1981 or Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e et seq.
3. Such class of employees are not
entitled to relief, injunctive or otherwise.
CLASS OF FEMALE EMPLOYEES
1. Since March 23, 1974 the Owens-
Illinois Oakland plant has at all times employed
between 1600 and 2000 employees in approximately
21 departments. Between 30% and 35% of the
work force during this period of time have
been female employees.
2. Since March 23, 1974 approximately
70% of the job vacancies at the Oakland plant
have been in three job classifications: lehr
attendant, carton assembler, and selector.
3. The job of selector requires the
employee to inspect bottles which are moving
along an assembly line and to pack them into
cartons for delivery. The selector must check
the quality of bottles and discard the defective
ones. The job requires a small amount of
manual dexterity but generally can be acconm-
plished by anyone.
4. The job of carton assembler requires
the employee to take flat pre-stamped pieces
of corrugated cardboard and assemble them
into cartons and place the separators inside
of them. This job requires some small degree
of manual dexterity and may require a degree
of strength as occasionally cardboard blanks
in bundles must be lifted; however, basically
anyone can perform this job.
5. The job of lehr attendant requires
the employee to remove cartons filled with
bottles of various sizes from a rapidly moving
conveyor and place them on trailers and pallets
at the rate of between 10 and 30 boxes a minute.
This job requires little manual dexterity,
however, it is extremely physically demanding
and exhausting and requires a great deal of
endurance and physical strength.
6. At all times since March 23, 1974
the pay of lehr attendants, selectors, and
carton assemblers have been set forth and
required by collective bargaining agreements
between Owens-Illinois and the Glass Bottle
Blowers Association Union.
7. Since March 23, 1974 very few women
have filled the lehr attendant job.
8. Since March 23, 1974 most of the
carton assemblers and selectors have been
women.
9. Since March 23, 1974 almost all
selector job vacancies have been filled from
outside Owens-Illinois. Applicants for this
job were received from the Department of Human
Resources Development, screened in the company
personnel office, and sent to the selecting
foreman for ultimate hiring or rejection. |
Most persons sent by the Department of Human
Resources Development were ultimately hired.
10. Since March 23, 1974 carton assembler
and lehr attendant job vacancies have been
filled from outside of Owens-Illinois by the
above described procedure and by job postings.
The job posting is a procedure whereby a notice
of the job opening is posted throughout the
plant, union employees sign the job posting,
and the job is filled on the basis of seniority.
Since the job of lehr attendant continually
has vacancies in it, a permanent lehr attendant
job posting was kept in a personnel office.
All persons signing a job posting for lehr
attendant or carton assembler had priority
hae
over any non-Owens-Illinois employee for these
jobs.
ll. Since March 23, 1974 very few
women signed job postings or otherwise applied
for lehr attendant jobs despite the fact that
the job postings on their face stated “females
are encouraged to apply." Women who did sign
up for the job of lehr attendant and were the
most senior on the list were awarded the job
with rare exception.
12. Lehr attendant job postings were,
generally speaking, awarded to persons with
low seniority. On the other hand, other jobs
in the selecting department, such as inspector
and lehr foreman, were invariably awarded to
persons with extremely high seniority (between
10 and 20 years). The result was that many
women who were unable to achieve inspector
jobs could easily have posted for the received
lehr attendant jobs but elected not to take
the lehr attendant job. On occasion, when
Owens-Illinois laid off employees from the
selecting department, women selectors with
higher seniority than male lehr attendants
elected to be laid off rather than take the
lehr attendant job which they could have
obtained.
13. The lehr attendant job is performed
standing up and has not become physically
less demanding over the years; whereas the
selector job is performed sitting down and
has beccme easier due to mechanization over
the years.
14. There was no evidence that a single
woman applied for or posted for the job of
lehr attendant and was refused such job.
15. Since March 23, 1974, most of the
women employed at the Oakland plant were employed
in the finished products department and very
few women, if any, were employed in the mold
repair, central mold shop, corrugated, forming,
trucking, warehouse, maintenance, and batch
and furnance departments.
16. In the departments in which few
women have been employed since March 23, 1974
there is a very low rate of turnover and most
the employees employed in those departments
during this period of time were employed by
Owens-Illinois prior to March 23, 1974.
Approximately 75% of all job vacancies during
this period of time have occurred in the lowest
entry level positions at the Oakland plant
Classified in the EEO category of operatives
and laborers.
17. Since March 23, 1974 women were
employed when qualified and available in the
vacancies in the eight departments in which
few women are employed. Thus, since March
23, 1974 at least seven women were employed
in the batch and furnace department as general
laborers, at least two women were employed in
the maintenance department as apprentices, at
least one woman was employed in the machine
repair department as a machinist helper, at
least one woman was employed in the central
mold shop as a mold inspector, at least six
women were employed in the corrugated department
as corrugators and a large number of women
were employed in the maintenance department.
Additionally, some women who were hired since
March 23, 1974 in these departments subsecjuently
quit or left Owens-Illinois for their own
reasons and these persons are not reflected
in either the exhibits or the plaintiffs’ or
defendant's statistics.
18. In the departments in which very
few women were employed since March 23, i974
all jobs above entry level were filled through-
out job postings. Entry level jobs in trucking,
warehouse, corrugated, and mold repair were
filled exclusively from union hiring halls;
maintenance, central mold shop, and forming
from apprenticeship programs. The hiring
hall and apprenticeship program mechanisms
were established pursuant to union-management
agreements and were administered jointly by
the union and the company. There was no evidence
that the hiring halls or apprenticeship programs
had a discriminatory purpose or effect.
19. Most entry level jobs in the mold
repair, trucking, central mold shop, machine
repair, forming, warehouse, batch and furnace,
and maintenance department, require a high
degree of specialized skill or are extremely
dirty, heavy work.
20. Since March 23, 1974 there was no
evidence that a qualified woman applied for
and/or was denied a vacancy in the machine
repair, central mold shop, corrugated, forming,
trucking, warehouse, maintenance, and batch
and furnace departments. There was, however,
evidence of women being offered and accepting
or refusing entry level positions and appren-
ticeships in these departments.
21. Plaintiffs introduced a myriad of
statistics during the trial. These statistics
were, in large part, confused, and misleading.
The statistics relied upon unreal and contrived
wage and pay figures, excluded large populations
of the plant including new hires and non-
Black minorities, and were deficient in other
ways.
22. Since March 23, 1974 be*ween 32%
and 37% of the employees hired at the Oakland
Plant have been women. There was no evidence
that any qualified woman applied for and was
denied employment at the Oakland plant.
23. Since March 23, 1974 the terms
and conditions of the employment including
pay, promotions, terminations, and treatment
of 90% of the female employees was governed,
in large part, by the collective bargaining
agreements between the company and the union
which represented employees in each of the
separate departments, and the Court finds
these agreements to be non-discriminatory.
24. Since March 23, 1974 the Oakland
plant had in effect salary and hourly job
posting mechanisms whereby vacancies in 95%
of the positions at the Oakland plant were
brought to the attention of all employees who
then had an opportunity to bid on such jobs.
Approximately 90% of the time the job was
then awarded to the senior person. If the
senior person was not awarded the job, it was
because such person lacked the necessary qual-
ifications for the job.
25. During the course of the trial,
plaintiffs introduced evidence of Owens-Illinois’
dealings with the federal government compliance
agencies, including the adoption by the Oakland
plant of a special program for an “affected
Class" which included women who were purportedly
not promoted out of the selector job between
1942 and 1973. However, this action and other
activities between the office of the contract
compliance and Owens-Illinois regarding enforce-
ment of the Executive Orders 11246 and 11375
were not per se probative of any discriminatory
activity at the Oakland plant after March 23,
1974.
26. That Owens-Illinois management
has discretion to decide who will be promoted
to a few union positions and all non-union
positions by being the primary judge of whether
an applicant has the ability for a particular
job.
“ae |
27. That Owens-Illinois has used its
discretion to promote men over women because
of their sex.
28. That there is a large available
pool of women both within the plant and in
the surrounding communities who are qualified
for managerial positions.
29. That throughout the relevant period,
Owens-Illinois has intentionally engaged in a
pattern of practice of promoting only men
into its management positions even though
qualified women were svailable.
30. That there are no written standards
or guidelines for promotion to management
level jobs. All promotions except for the
top five positions at the plant are determined
by the individual supervisor of the departments
in which there is a management vacancy. There
is no system whereby any management job openings
are publicized to the employees, and there is
no system of applying for these jobs. Normally,
supervisors choose a candidate for a job without
the candidate's knowledge.
31. That throughout the relevant period,
Owens-Illinois has had management training
positions in which it has placed men both as
new hires and as transfers from other jobs in
the company. The position of student industrial
engineer in the cost control department was
the major training job for management employees.
Women were not chosen for entry into this
program even though qualified women were available
at the plant and in the general population.
32. That despite the fact that most
employees in the finished products/selecting
department are women, virtually none of the
supervisors of that department have been women
during the relevant period.
33. That the policies and practices
of Defendant regarding promotion, especially
into management positions, have unduly restricted
females both from promotions into these positions
and from the promotion process itself, since
the Oakland plant has had virtually no female
supervisors or management personnel.
CONCLUSIONS OF LAW
{2] 1. That Defendant has engaged in conduct
with the purpose and effect of discriminating
against women, on account of sex, in that
Defendant has:
a. Unduly limited the initial hiring
of women for management training posi-
tions.
b. Unduly limited the promotion of
women to supervisory and management
level positions.
2. That this Court shall determine
appropriate relief in accordance with these
findings.
CLAIM OF AUNITA JONES
1. Aunita Jones is a 31-year-old
Black woman.
2. Aunita Jones was hired by
Defendant Owens-Illinois on July 14, 1971 as
a secretary in the personnel department at
Defendant's Oakland Plant.
3. Aunita Jones was the first Black
employee ever hired by Defendant in its
personnel department at its Oakland Plant.
4. Before she was hired, Aunita Jones
was interviewed by Defendant's assistant
personnel director, Mike Lunny. During this
interview Mr. Lunny asked Ms. Jones how she
would respond if she were called a “nigger.”
He told her that as the first Black person
a
23
hired in the personnel department, her
performance would determine whether other
Blacks were hired into personnel.
5. After she began working for Defendant,
Aunita Jones was subjected to racial insults
by a co-worker. Aunita Jones complained to
her supervisors about this conduct including
the director of personnel, but no apparent
remedial action was taken, and Aunita Jones
continued to be subjected to this treatment.
6. In November 1974, Mr. Joe Woods
was placed in the assistant personnel director's
job. Bart Oxley then asked Aunita Jones to
train Mr. Woods even though he continued to
maintain that she was unqualified for the
job. In December 1974, Aunita Jones transferred
out of the personnel office to the maintenance
department as a secretary.
=
7. Thereafter on several occasions
Aunita Jones complained to the personnel director
about racially discriminatory policies of the
company and about his conduct in particular
in racial matters.
8. In June 1975, Aunita Jones was
accused by Defendant of forging the name of a
doctor employed by the company to a disability
Claims form which Aunita Jones had submitted
to her own private insurance company.
9. Aunita Jones at all times denied
she had committed this forgery.
10. Defendant did not in good faith
believe that Aunita Jones had forged the form.
ll. The claims form was not related to
any job duties for which Aunita Jones was
responsible.
12. Defendant terminated Aunita Jones
on June 6, 19875. The reason stated for term-
ination was that Aunita Jones had forged the
Claims form. Defendant also charged alternately
that Aunita Jones had not recorded days she
was sick on her attendance card.
13. In fact, Aunita Jones had recorded
her days absent but she had mistakenly recorded
the absence in the wrong week. Defendant was
aware and informed that Aunita Jones had in
fact recorded ail her absent days.
14. The reasons stated by Defendant
for terminating Aunita Jones were a mere pretext.
In fact, Aunita Jones was terminated by Defendant
because of her race and because of her outspoken
opposition to discrimination against Black
persons by Defendant.
15. The acts of Defendant described
above were done intentionally and wantonly
and for the purpose of discriminating against
Aunita Jones because of her race and her actions
to combat the racially discriminatory acts of
Defendant.
16. Defendant did not subject its
White employees to the treatment described
above which Defendant subjected Aunita Jones
to.
17. That at the time Aunita Jones was
terminated on June 6, 1975, she was employed
in Grade 4 position as a secretary in the
Maintenance Department.
18. That she became employed at the
rate of $600.00 per month in August, 1975.
19. That she received $50.00 raises
every six months.
20. That as of July 24, 1978, she was
earning $850.00 per month.
21. That therefore Aunita Jones earned
$25,400 since her termination.
22. That Aunita Jones would have earned
an additional $6,888.50 if she had continued
to be paid at the same rate, with normal raises,
as she was paid as of her termination date.
23. Since March 7, 1971, Owens-Illinois
did not engage in any act or practice in her
compensation, training, or promotion which
either discriminated against, or had any adverse
impact or effect upon, Aunita Jones because
of her race.
24. Since March 23, 1974, Owens-Illinois
did not engage in any act or practice with
respect to her compensation, training, promotion,
treatment, termination, or terms, conditions,
or privileges of employment which discriminated
against Aunita Jones, or had any adverse impact
or effect upon her, because of her sex.
CONCLUSIONS OF LAW
{3} 1. Since March 23, 1974, Owens-Illinois
did not discriminate against Aunita Jones
-32-
because of her sex in violation of Title VII
of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq.
2. Defendant Owens-Illinois did discrim-
inate against Aunita Jones on the basis of
her race in violation of 42 U.S.C. § 1981 and
Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et sec., and Aunita Jones is
entitled to a judgment against Owens-Illinois,
Inc. in the amount of $15,000 compensatory
damages, $15,000 punitive damages and back
pay of $6,888.5C.
CLAIM OF ROBERT HAROLD
1. That Robert Harold is a Black male
who worked for Owens-Illinois from April 9,
1968, to September 6, 1977. He became the
first Black maintenance mechanic at the plant
after completing the apprentice program.
2. That during the relevant period,
Robert Harold was a temporary leadman eight
-33-
or nine times and was the first Black temporary
leadman.
3. That when Robert Harold was temporary
leadman the Defendant failed to support his
authority while it did support the authority
of similarly situated White employees.
4. That on one occasion when Robert
Harold was temporary leadman, one of his crew
threw water in his face; and that the management
official in charge and present at that time
intentionally and wantonly did nothing to
indicate company disapproval and in fact inten-
tionally and wantonly joined in the amusement
of the all-white crew thereby ratifying said
action and failing to support the authority
and dignity of a temporary leadman whereas
the company did so support the authority and
dignity of similarly situated White employees.
5. That on one occasion, when Robert
Harold was a temporary leadman, a member of
his crew named George set the time clock ahead
so that he could leave early and still be
paid for an eight hour day.
6. That Robert Harold reported this
incident to the proper company official and
yet the company paid George his full eight
hour salary, thereby intentionally and wantonly
failing to support the authority of Robert
Harold as temporary leadman whereas the company
did so support the authority of similary situated
White employees.
7. That on several occasions when
Robert Harold was a temporary leadman, Steve
Greenwood, a member of his crew, refused to
carry out the assignment given to him by Robert
Harold.
8. That Robert Harold reported this
to the proper company official and that no
action was ever taken by the company and there-
— Te
by the company intentionally and wantonly
refused to suppoit the authority of Robert
Harold as temporary leadman whereas the company
did so support the authority of White employees
similarly situated.
9. Since March 7, 1971 Owens-Illinois
did not engage in any act or practice with
respect to his compensation, placement, promo-
tion or termination, which discriminated against
Robert Harold or had any adverse impact or
effect upon him because of his race.
CONCLUSIONS OF LAW
[4] Defendant Owens-Illinois did discrimate
against Robert Harold on the basis of his
race in violation of 42 U.S.C. § 1981 and
Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e, et seq. and Robert Harold is
entitled to compensatory damages in the amount
of $5,000, and punitive damages in the amount
of $15,000.
thas
CLAIM OF ALICE BRICE
1. Alice Brice is a Black woman who
has been employed by Defendant from May 18,
1964 to the present time.
2. That Alice Brice has a B.S. Degree
in business which she received prior to applying
to Owens-Illinois for work.
3. That Alice Brice received a teaching
credential as a result of her graduation from
college in the State of Arkansas and subsequently
in 1969 received one from the State of California.
4. That when hired at the company,
Alice Brice was assigned the job of traffic
clerk. She was promoted to the job of shift
dispatcher on July 1, 1972 and was then promoted
to traffic representative on August 16, 1974,
to Traffic Supervisor on August 1, 1977, and
she continued to hold that job as of the time
of trial.
sp W -_.
5. That despite her college degree
and experience with the company Ms. Brice was
refused on the basis of her race and sex a
job in the industrial engineering department
which is the normal position for management
trainees, even though she requested such place-
ment.
6. That a supervisor told Alice Brice
that she was not to speak to another Black
employee who was a teletype operator and who
had to convers. with Alice Brice in the course
of her daily work. Other women in the depart-
ment spoke to each other, but no White woman
was ever told to cease speaking to other women
in the department.
7. That Alice Brice took a leave of
absence for her pregnancy on January 31, 1972.
She was allowed only six weeks for pregnancy
leave even though other employees were allowed
six months.
eh
8. As a result of the discrimination
experienced at the company, Alice Brice experi-
enced serious hypertension while she was pregnant
in 1972 and had to be treated for this. The
diagnosis was confirmed by the company doctor
as well as her treating doctor.
9. That Alice Brice, while in the
traffic department did her work very well and
needed very little supervision and was very
accurate.
10. That Alice Brice complained to
the Fair Employment Practices Commission of
the State of California in 1971. A represen-
tative of the organization called Mr. Bart
Oxley who stated that she did not have to
pursue the complaint with the FEPC since he
understood that her supervisor was a problem
and he would try to take care of it. Nothing
was changed as a result of this complaint.
an
> a
ll. Soon after this, upon return from
maternity leave, Alice Brice was offered the
job of shift dispatcher on the swing shift.
She was told that this was to include a pay
increase and an 8% shift differential and
overtime pay for working on Sunday.
12. That because of her race and sex
no pay raise was given to Alice Brice when
she took over the job of shift dispatcher
which was one grade level higher than her
previous job; she was also not given a shift
differential and overtime pay as had been
promised to her.
13. That because of her race and sex
when she became radio dispatcher she was ordered
to take on the additional duties of the shipping
clerk on her shift, which included typing and
filing. At that time there were three other
radio dispatchers, all of whom were White
"ales. Alice Brice was the first female radio
dispatcher. None of the other radio dispatchers
had to do the work of the shipping clerk.
The shipping clerk who had previously worked
on the same shift as Alice Brice was moved
off the shift and only Alice Brice was told
to do that work. There was no extra pay for
doing this work.
14. Alice Brice was also ordered to
take on additional duties of receiving records
and time cards which the other dispatchers
did not have to do.
15. Charles Santillanes, whose job
Alice Brice took over, was directed by the
supervisor of that department that he should
not train her because he did not want her in
the department.
16. During this time she worked as
dispatcher and also doing the extra work as
shipping clerk, she was suffering from glaucoma,
Gizzy spells, and general hypertension. She
had to take medication for the hypertension
from this time in 1973 and has continued to
have to take it through the present time.
17. Alice Brice requested to be trained
as a service representative in the spring of
1974. There was no posting system for higher
level salaried jobs and she was never invited
to take any jcbs other than the shift dispatcher
job up until that time. The only way to obtain
a promotion in the higher level salaried range
was to be offered a job by a supervisor or
higher management person. Sometime after
1974 a promotion committee was set up to review
some vf the management promotions. It did
not review all promotions as some supervisors
still made their own decisions.
18. That Alice Brice, after making
this request, approached Willie Huff, the EEO
—_
Coordinator at the plant, as a member of the
promotion committee in an attempt to get pro-
moted into the service department. She was
informed that the head of the service depart-
ment felt that women should stay home and
have babies and she could not get the job.
Upon objecting to the refusal to Bart Oxley,
the personnel direct~r, Alice Brice was told
it was the feeling of the company that she
would be offensive as a service representative
although he would not explain the remark and
had not so treated White employees. Alice
Brice was qualified for that job.
19. That on September 23, 1972 Alice
Brice, with other Black employees, signed a
petition addressed to management officials of
Defendant complaining of the lack of opportu-
nities for Black employees. As a result she
was called into the office of her supervisor
and told that she was not discriminated against
by him but he admitted her prior supervisor
had discriminated against her.
20. In 1974 Alice Brice requested
consideration for the traffic representative
job which she discovered was to be vacant.
She spoke to her immediate supervisor, but he
did nothing to assist her in getting the job
and therefore she wrote a letter to Mr. Willie
Huff, the EEO Coordinator.
21. That Alice Brice was not considered
as the primary candidate for the job by the
plant manager and the personnel director at
the promotion committee meeting. Subsequent
to the meeting a letter was written by Mr.
Huff, the EEO Coordinator, further recormnending
Alice Brice and subsequently on August 16,
1974 A.ice Brice was then given the job of
traffic representative, but only on condition
that she take certain courses that White males
before her had not had to take.
22. That because she was Black her
authority was not supported by management
when a White subordinate would not work for
her and walked off the job. The employee was
not penalized for her behavior and received a
transfer to another department.
23. That when Alice Brice was given
the traffic representative job she received a
pay increase from $770 to $850 per month, the
minimum salary range for her new job. Even
though the job was ordinarily an exempt job,
her starting salary was too low to consider
her exempt, so therefore she was initially
considered a non-exempt employee and was paid
for over-time.
24. That after receiving this job
Alice Brice again requested to be trained as
ts
an Industrial Engineer and asked to be considered
for distribution manager in the warehouse.
Because of her race and sex no response was
given to her by her supervisors and management
officials on this request.
25. That on September 9, 1974, Alice
Brice signed a ietter directed to the President
of the corporation complaining of racial problems
ir reference to the letter previously sent in
1972. Alice Brice was a signatory amoung six
Black individuals who signed the letter (Exhibit
#70).
26. That because she was Black and a
woman she was not allowed to take the Dale
Carnegie course that was generally given to
all management personnel at Owens-Illinois by
her supervisor when she specifically requested
it.
27. That because of her race and sex
she was denied the job of trucking sup. ‘visor,
for which she was qualified, since she knew
about rates and tariffs and has perviously
worked in the shipping department. Upon conm-
Plaining about this to management she was
informed by her supervisor that the shipping
supervisor, Dave Hattig, said he wasn't ready
to have a woman report to him.
28. That Alice Brice continues to
request and is qualified for promotions but,
because of the intentional discrimination of
Defendant she has received none since 1977.
29. The acts of Defendant described
above had the purpose and effect of discrin-
inating egainst Alice Brice because of her
race and sex and her actions to combat the
discriminatory acts of Defendant.
30. Alice Brice has suffered a loss
in pay as a result of said discriminatory
practices described above in an amount equal
-47-
to the difference between the wages and salary
actually received by her and the sum she would
have received had she been earlier promoted
to the jobs for which she was qualified, and
which were filled by others. The amount shall
be computed after further hearing.
31. That Alice Brice suffered a serious
medical and nervous condition since 1972 due
to the discrimination caused by Owens-Illinois
for which she has been continually treated by
Kaiser Hospital. Said discrimination has
affected her private life and caused marital
psoblems between her and her husband. She
pad a worsening of the glaucoma problem in
her eye and has had rashes, hair loss and
sleeping problems.
CONCLUSIONS OF LAW
{5] Defendant Owens-Illinois did discrimate
against Alice Brice on the basis of her race
and sex in violation of 42 U.S.C. § 1981 and
Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq., and Alice Brice is
entitled to a judgment against Owens-Illinois,
Inc. in the amount of $50,000 compensatory
damages, $15,000 punitive damages and back
pay in an amount to be fixed by the Court
after further hearing.
OTHER INDIVIDUAL CLAIMS
LOUIS ALTHEIMER
1. Louis Altheimer is a Black male
employed at the Oakland Plant since July 22,
1963.
2. Louis Altheimer filed an EEOC
charge against Owens-Illinois on April 7,
1977.
3. Since March 7, 1971, Owens-
Illinois did not engage in any act or
practice with respect to his compensation,
terms of employment, promotions, demotion, or
treatment, which discriminated against, or
had any adverse impact or effect upon, Louis
Altheimer because of his race.
4. Louis Altheimer was not offered
the position of a salaried foreman at a salary
less than the salary being offered to another
person who was not Black.
5. Louis Altheimer was demoted in
March, 1977 from relief foreman to fork lift
driver because of his harassment of two female
employees at the Oakland Plant, his becoming
involved in an altercation with a subordinate
employee, his general poor work performance,
and his inability to perform the job of relief
foreman. The demotion was in no way based
upon the fact that he was Black.
6. There was no credible evidence
that Louis Altheimer was harassed or discrimated
against in job assignments, or disciplined,
or criticized in any manner because of his
MARSHALL DAILEY
l. Marshall Dailey is a Black male
who was hired at the Oakland Plant on November
3, 1969 and was terminated on July 12, 1972.
2. Marshall Dailey filed an EEOC charge
on August 3, 1972.
3. Since March 7, 1971 Owens-Illinois
did not engage in any act or practice with
respect to his promotion, termination, treatment,
compensation, terms, condition or privileges
or employment which discriminated against or
had any adverse impact or effect upon Marshall
Dailey because of his race.
4. Since March 7, 1971 Owens-Illinois
did not assign the most difficult, onerous,
or dirty jobs to Black employees as a class,
or to Marshall Dailey individually.
-51-
5. On July 7, 1972 Marshall Dailey
refused to perform work properly assigned to
him by his foreman and he walked off the job
without authority. He was terminated because
of his refusal to work and his having walked
off the job. Such termination was uniformly
applied to Owens-Illinois employees who engaged
in similar conduct, and was not applied to
Marshall Dailey because of his race.
6. Since March 7, 1971 Owens-Illinois
did not retaliate against any employees, including
Marshall Dailey, because of their complaints
to the EEOC, or to company management.
GAIL GARRETT
1. Gail Garrett is a Black female who
was hired at the Oakland Plant on December 16,
1970. She was terminated on January 14, 1975.
2. Gail Garrett filed an EEOC charge
on February 7, 1975.
3. Since March 7, 1971, Owens-Illinois
did not engage in any act or practice with
respect to her compensation, promotion, termi-
nation, treatment, terms, condition or privileges
of employment which discriminated against
Gail Garrett, or had adverse impact or effect
upon her because of her race.
4. Since March 23, 1974, Owens-Illinois
did not engage in any act or practice with
respect to her compensation, promotion, termi-
nation, treatment, terms, condition or privileges
of employment which discriminated against
Gail Garrett, or had any adverse impact or
effect upon her because of her sex.
, 5+ Owens-Illinois did not refuse to
rehire Gail Garrett after her termination
because of her race or sex.
6. Owens-Illinois did not refuse to
give Gail Garret training as a PBX operator
and a teletype operator because of her race.
-53-
7. The failure to promote Gail Garrett
to keypunch supervisor was not because of her
race or sex.
8. Gail Garrett was not required to
do more work than either male or White employees
doing the same job or receiving the same pay
as she, nor was she required to do more work
or work under more severe conditions because
of her race or sex.
9. The request made to Gail Garrett
to work during the strike in 1974, or the
request for her to work during July 4, 1974,
or during evenings, were requests made of
other salaried employees and were not made to
her in an attempt to harass her or mistreat
her because of her race or sex.
10. Gail Garrett was discharged on
January 14, 1975 for cause because of her
insubordination and conduct which created an
irreconcilable conflict between Gail Garrett
and her superviso:, Mary Villa. The discharge
was not because of her sex, or because of her
race.
CHARLOTTE HARRIS
1. Charlotte Harris is a Mexican-
American female who wes hired at the Oakland
Plant on August 3, 1966. She entered an
apprenticeship program at the Oakland Plant
on January 30, 1975, and was terminated from
that program on December 30, 1976. She is
currently an employee at the Oakland Plant.
2. Charlotte Harris filed an EEOC
charge on January 11, 1977.
3. Since March 23, 1974, Owens-Illinois
did not engage in any act or practice with
respect to her compensation, placement, training,
promotion, treatment, terms, conditions or
privileges of employment which discriminated
against Charlotte Harris or had any adverse
effect or impact upon her because of her race
or sex.
4. Since March 23, 1974, Owens-Illinois
did not discriminate against Charlotte Harris
in admission to, or termination from, any
program established to provide apprenticeship
or other training because of her race or sex.
5. The requirement that Charlotte
Harris take certain courses in her apprentice
program was a requirement uniformly applied
to all apprentices, and was not a requirement
of Charlotte Harris because of her sex or
race.
6. The requirement that Charlotte
Harris enter the apprentice program, and the
refusal to make her a maintenance mechanic
without such apprentice program was uniformly
- .
applied to persons of her ability and qualifi-
cations to perform the job of maintenance
mechanic, and was not a requirement of Charlotte
Harris because of her race or sex.
7. Charlotte Harris was not harassed,
or subjected to treatment or requirements rot
required of other persons in the apprenticeship
program.
8. The requirement that Charlotte
Harris complete a mathematics course was a
requirement uniformly applied to all apprentices.
Charlotte Harris failed to complete the math-
ematics courses within the time required.
She was terminated by the joint apprentice
committee composed of (1) members of the union
which represented persons in the maintenance
Gepartment and (2) members of management.
She was terminated because she failed to complete
the mathematics course.
9. Charlotte Harris has been promoted
and has received pay increases comparable to
other employees of equal seniori’y and ability,
without regard to their race or sey There
is no evidence that she was denied any promotion
or denied any pay raise because of her race
or sex.
10. When Charlotte Harris was terminated
from the apprenticeship program, she returned
to a job in the Selecting Department. This
was the only vacancy available. Tne return
of Charlotte Harris to this job was not a
reduction in pay or mistreatment in terms or
conditions of employment because of her race
or sex. She has subsequently been promoted
when other jobs became available as a result
of her seniority.
JUDY WEEK
1. Judy Week is a White female who was
employed at the Oakland Plant on June 16,
1965.
2. Judy Week filed an EEOC charge on
June 29, 1976. 3
3. Since March 23, 1974, Owens-Illinois
did not engage in any act or practice in connection
with her compensation, training, promotion,
treatment, or terms, conditions, or privileges
of employment which discriminated against
Judy Week, or had any adverse impact or effect
upon her, because of her sex.
4. From March 23, 1974, to the time
of trial, Judy Week was promoted to cost and
budget clerk and later to cost accountant in
the central mold shop. She was not denied
any promotions because of her sex.
5. In late 1975, Judy Week was asked
to perform additional duties. Her supervisors
complained that she was unable to perform
these duties adequately, and Judy Week admitted
that she was unable to perform these duties.
The complaints of her performance were not
harassment of Judy Week because of her sex.
6. In early 1976, Judy Week complained
that she needed training for her job. A program
was established to provide for her training.
She was not denied training because of her
CURTIS WILLIAMS
1. Curtis Williams was employed at
the Oakland Piant on October 21, 1964. He
was terminated on May 19, 1972.
2. Curtis Williams filed an EEOC charge
on January 21, 1975.
yo
3. In 1973, Curtis Williams sought
reemployment at the Oakland Plant. He was
denied employment at the Oakland Plant, but
was hired by the Forest Products Division of
Owens-Illinois at a plant in Union City, Cali-
fornia. Curtis Williams voluntarily term-
inated his employment at the Forest Products
Division plant in Union City, California on
February 6, 1973.
4. Since March 7, 1971, Owens-Illinois
did not engage in any act or practice with
respect to termination, compensation,
training, promotion, treatment, terms,
conditions, or privileges of employment of
Curtis Williams which discriminated against
him, or had any adverse impact or effect upon
him, because of his race.
5. The failure of Owens-Illinois to
rehire Curtis Williams at the Oakland Plant
was not because of his race.
6. Curtis Williams was not denied any
promotions because of his race, or because of
any retaliatory action against hi because of
complaints to management.
7. Curtis Williams was not denied a
promotion to foreman because of his race.
8. Owens-Illinois did not harass Curtis
Williams or treat him dif‘terently than other
employees.
9. In May, 1972, Curtis Williams failed
to report to work for a five day period and
was terminated. Termination for failure to
report to work for five days was equally applied
to all employees, regardless of race, and
Curtis Williems was not terminated because of
his race.
10. At all times Curtis Williams was
paid wages as provided by the agreement between
Owens-Illinois and the union which represented
me
the employees in the department where Curtis
Williams worked. He was not denied any pay,
nor was he treated differently with respect
to pay, because he was Black.
EUGENE WILLIAMS
1. Eugene Williams is a Black male
who has been employed at the Oakland Plant
since July 10, 1964.
2. Eugene Williams filed an EEOC charge
on September 3, 1971.
3. Since March 7, 1971, Owens-Illinois
did not engage in any act or practice with
respect to his compensation, training,
promotion, treatment, or terms, conditions,
or privileges of employment which
discriminated against Eugene Williams or had
any adverse impact or effect upon him because
of his race.
-63-
4. Eugene Williams was promoted to a
crew leader in 1974. At no time prior to
that was he denied any promotion because of
his race, and at no time prior to that was
any person, less senior or less qualified,
appointed to a crew leader job ahead of hin.
5. Owens-Illinois did not deny Eugene
Williams the right or ability to become a
member of the International Brotherhood of
Teamsters.
6. Owens-Illinois did not assist any
persons to become members of the International
Brotherhood of Teamsters and did not refuse
to assist Eugene Williams to become a member
of that union because of his race.
7. Eugene Williams was offered an
apprenticeship position in the Maintenance
Department, which he refused. Owens-Illinois
did not permit any person to become a maintenance
mechanic with similar or fewer qualifications
than Eugene Williams. He was not denied the
opportunity to immediately become a maintenance
mechanic because of his race, but was denied
the job because of his inability to perform
the work required of a maintenance mechanic
without apprenticeship training.
8. Eugene Williams was not denied the
position of supervisor of the Forming Department
or supervisor of the Selecting Department
because of hig. race, but because more qualified
persons were appointed in each of those jobs
when they become vacant.
9. Eugene Williams was not denied any
training which would have permitted him to
become a shift foreman.
10. AVO's placed into Eugene Williams’
file because of performance or attendance
were not placed there because of harassment
-65-
or retaliation against him because he was
Black, or because he has complained to manage-
ment about discrimination. Such AVO's were
customarily placed in the files of other em-
ployees, regardless of their race, because of
conduct similar to that of Eugene Williams.
ll. In 1976, Eugene Williams was appointed
to the job of Assistant Selecting Foreman.
At the time he had the lowest seniority of
any of the persons who were appointed to that
position.
12. The shift foremen who were appointed
between 1970 and 1976, prior to Eugene Williams,
all were employed by Owens-Illinois prior to
the time Eugene Williams was employed by Owens-
Illinois, and all had greater seniority.
FLOYD WILLIAMS
1. Floyd Williams is a Black male who
was hired at the Oakland Plant on March 21,
1962. Floyd Williams was terminated on Septen-
ber ll, 1974.
2. Floyd Williams filed an EEOC charge
on September 23, 1974.
3. Since March 7, 1971, Owens-Illinois
did not engage in any act or practice with
respect to his termination, compensation,
training, promotion, treatment, or terms,
conditions or privileges of employment which
discriminated against Floyd Williams, or had
any adverse impact or effect upon him, because
of his race.
4. Floyd Williams was interviewed for
a job as sales representative for Owens-Illinois.
His interview was conducted in the same manner
in which all interviews of other employees
were conducted. The persons interviewing
Floyd Williams determined that he was not
qualified for the position of sales represen-
-67-
tative. The decision of such persons was
based upon his lack of qualifications, and
was not based upon his race.
5. Floyd Williams was not denied the
opportunity to participate in the glass
bottle quality audits. He declined to
participate in such audits because he had
outside employment which did not permit him
to work overtime.
6. Floyd Williams was not denied any
training because of his race.
7. Floyd Williams was not denied any
promotions because of his race. Because of
his ownership of a motel, he took substantial
leaves of absence and did not work overtime.
As a result of such leaves of apsence and
inability to work overtime, he was rot promoted.
The failure to promote Floyd Williams was
because of his outside activities, and not
because of his race.
8. Floyd Williams was not harassed,
nor was there any retaliation against him,
because of his participation in group meetings
where complaints of racial discrimination
were made to macagement, nor was there any
retaliation, or harassment, because of his
complaints to the EEOC.
9. Floyd Williams was warned for being
away from his work in June, 1974. Other em-
ployees who were away from their work were
terminated. His treatment as a result of the
incident was neither harassment nor retaliation.
10. Floyd Williams was terminated
September, 1974, because he threatened his
supervisor. He had previously been warned
about conduct directed towards management.
The termination of Floyd Williams was because
of his threatening conduct, and was not because
of his race. Any other employee, who had
engaged in similar conduct, would have been
terminated regardless of that employee's race.
CONCLUSIONS OF LAW
{6] 1. Since March 7, 1971, Owens-Illinois
did not discriminate against Louis Altheimer
because of his race in violation of either 42
U.S.C. § 1981 or Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq.
2. Since March 7, 1971, Owens-Illinois
did not discriminate against Marshall Dailey
because of his race in violation of either 42
U.S.C. § 1981 or Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq.
3. Since March 7, 1971, Owens-Illinois
did not discriminate against Gail Garrett
because of her race in violation of either 42
U.S.C. § 1981 or Title VII of the Civii
Rights Act of 1964, 42 U.S.C. § 2000e et seq.
be
3
4. Since March 23, 1974, Owens-Illinois
did not discriminate against Gail Garrett
because of her sex in violation of Title VII
of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq.
5. Since March 23, 1974, Owens-Illinois
did not discriminate against Charlotte Harris
because of her race or sex in violation of
Title VII of the Civil Rights Act of 1064
{sic}, 42 U.S.C. § 2000e et seq.
6. Since March 23, 1974, Owens-Illinois
did not discriminate against Judy Week because
of her sex in violation of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e
et seq.
7. Since March 7, 1971, Owens-Illinois
did not discriminate against Curtis Williams
because of his race in violation of either 42
U.S.C. § 1981 or Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq.
8. Since March 7, 1971, Owens-Illinois
did not discriminate against Eugene Williams
because of his race in violation of either 42
U.S.C. § 1981 or Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq.
9. Since March 7, 1971, Owens-Illinois
did not discriminate against Floyd Williams
because of his race in violation of either 42
U.S.C. § 1981 or Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq.
The foregoing Findings of Fact and
Conclusions of Law are made this Eighth day
of January, 1979.
JUDGMENT
The trial of this action havinc commenced
on July 12, 1978, before the Court and a jury,
and the jury having reached both advisory and
binding verdicts on October 2, ).978, and the
Court having issued its Findings of Fact and
Conclusions of Law on January 8, 1979,
IT IS HEREBY ORDERED AND ADJUDGED as
follows:
1. This action is maintainable as a
Class action pursuant to Fed.R.Civ.P., Rule
23(b) (2), on behalf of the following two classes:
(a) all blacks who were employed at defendant's
Oakland plant at any time since March 7, 1971;
(b) all women who have been employed at defendant's
Oakland plant since March 23, 1974.
2. The certified class of all black
employees who were employed at defendant's
Oakland plant since March 7, 1971, is entitled
to no relief, and its claims and the complaint
on its behalf are dismissed.
3. The certified class of all female
employees who have been employed at defendant's
Oakland plant since March 23, 1974, is entitled
to equitable relief in the terms of the Remedial
Order which is attached hereto as Exhibit 1
and incorporated herein by reference.
4. Plaintiff Robert Harold shall recover
from defendant, $5,000 compensatory damages
and $15,000 punitive damages, for a total sum
of $20,000, in accordance with the verdict of
the jury.
5. Plaintiff Aunita Jones shall recover
nothing on her claim of sex discrimination in
violation of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e, et seg., but
shall recover from defendant Owens-Illinois,
Inc., $15,000 compensatory damages and $15,000
punitive damzae=, in accordance with the verdict
of the jury, and back pay in the amount of
$6,888.50 in accordance with Court's Findings
of Fact and Conclusions of Law, for a total
sum of $36,888.50 for violation of 42 U.S.C.
§ 1981 and Title VII of the Civil Rights Act
of 1964, 42 U.&.C. § 2000e, et seq.
6. Plaintiff Alice Brice shall recover
from defendant, $50,000 compensatory damages
and $15,000 punitive damages in accordance
with the verdict of the jury and back pay in
the amount of $15,061.34 for violations of 42
U.S.C. § 1981 and Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seg., and
defendant is further ordered to pay Alice
Brice, for services commencing on April l,
1979, the sum of $1,866.24 per month and to
continue payment at such rate until the salary
rate of the job she is actually performing
shall exceed such rate, at which time her
Salary shall then be fixed by the regular
salary rate.
7. Plaintiffs Louis Altheimer, Marshall
Dailey, Gail Garrett, Charlotte Harris, Judy
Week, Curtis Williams, Eugene Williams, and
Floyd Williams each shall take nothing, and
all claims of these defendants are dismissed
on the merits.
8. The prevailing plaintiffs are
awarded: (a) their costs, taxable under 28
U.S.C. § 1920, pursuant to Fed.R.Civ.P., Rule
54(d), and (b) a reasonable attorneys’ fee,
which is fixed, after due consideration of
all circumstances, at $50,000,
9. The Court retains jurisdiction for
the purpose of determining the nature and
extent of the relief to be awarded to the
Class of female employees under the Remedial
Order.
4
EXHIBIT 1
REMEDIAL ORDER RE THE CLASS OF
FEMALE EMPLOYEES
The Court having considered the parties’
suggestions as to the relief appropriate to
the Class of Female Employees, and a hearing
thereon having been held on February 16, 1979,
this Court now makes this Remedial Order in
accordance with its Findings of Fact and Conclu-
sions of Law entered January 8, 1979.
injunctive Relief
I. Owens-Illinois is hereby enjoined from
discriminating against women on account of
their sex by unduly limiting the hiring of
women for management training positions or by
unduly limiting the promotion of women to
supervisory and management level jobs.
ee ees "
#
4
II. Owens-Illinois is hereby ordered to
implement the procedures and standards set
forth below.
(1) Within sixty (60) days of entry
of judgment Owens-Illinois shall develop job
descriptions for all supervisory/management
positions at the Oakland plant.! Such job
descriptions shall specify the duties and
functions of, and the job-related
qualifications necessary to perform, each
salaried supervisory/management job,
including the salary, duties, hours,
supervisor, employees supervised, respon-
sibility, working conditions, and, where
applicable, special qualifications, skills,
strength, education, experience, prerequisite
training, etc. Owens-Illinois shall revise
these job descriptions whenever necessary to
conform them to job-related changes with
respect to efficient and safe performance of
such job(s).
(2) Within ninety (90) days of entry
of judgment Owens-Illinois shall perform a
“skills inventory" questionnaire [in a format
substantially similar to Exhibit A] at the
Oakland plant to ascertain for all current
and future hourly and salaried employees their
individual level of education, prior work
experience [with Owens-Illinois and other
employers], and interest in “placement” in
salaried jobs at the Oakland plant which become
vacant in the future. The “skills inventory”
shall be periodically updated as necessary.
An employee may elect not to complete the
<2 Lattteg 1 cgi > » A PERE TF
wet
"skills inventory” questionnaire, but at any
subsequent time such employee may request and
complete a “skills inventory” questionnaire.
(3) Within sixty (60) days of entry
of judgment Owens-Illinois shall notify all
female employees of all current salaried
supervisory/management training programs,
including, where applicable, scheduled date(s)
and the application procedure necessary to
obtain consideration for enrollment.
(1) Owens-Illinois shall post
conspicuously on one or more designated
bulletin boards in the Oakland plant a JOB
POSTING-NOTICE OF VACANCY (including, at
-80-
ee
least, job title, duties, salary, and any
special qualifications reasonably required,
together with the legend “Both Female and
Male Applicants Encouraged"), for each salaried
supervisory, management and management trainee
job vacancy position at the plant and shall
make available upon request the description
of and qualifications for such job as developed
in accordance with Paragraph II.A(1l) above.
(The notice should, unless otherwise necessary,
be posted at least eight working days before
the job is filled.)
(2) Owens-Illinois shall accept from
interested employees or other applicants written
applications for such posted job vacancies in
a form similar to Exhibit B for a period of
at least five working days. (Owens-Illinois
may, if necessary, fill the job on a temporary
basis until the full selection procedure can
be accomplished.)
-81-
(3) Selection of the employee or other
applicant for all salaried supervisory/management
and management trainee position vacancies
except the top five positions at the plant
shall be made by the following procedures:
(a) All applications will be considered;
(b) All employees will be considered
who have the necessary qualifications as reflected
in the “skills inventory";
(c) If there are no female applicants
or candidates for any salaried supervisory/
management or management trainee vacancy,
then Owens-Illinois shall solicit interest
from qualified c irrent Oakland plant female
employees and/or from qualified females other-
wise available.
(d) Owens-Illinois may also consider
for any vacancy such qualified persons without
regard to sex who may be otherwise available
from outside the Oakland plant, including
persons presently employed by the Company at
another facility or “new hires” from the Oakland
plant recruiting area.
(e) From the candidates selected under
the procedures contained in B(3)(a)-(d) above,
the supervisor or management official with a
requirement to fill any salaried supervisory/
management or management trainee vacancy will
interview such candidates and thereafter will
recommend in writing to the plant administrative
manager the top three individual candidates
deemed “best qualified", ranking them in order
of selection choice with the reason(s) therefor.
(£) In making such recommendation,
the supervisor or management official with a
reguirement to fill any salaried supervisory/
management or a management trainee vacancy
shall consider the candidates’ job qualifications,
-83-
disciplinary records attendance and medical
records, length of service (but length of
service or seniority is not required to be a
controlling factor entitling any candidate to
be selected), experience, education, prior
training, job performance ratings, interest
in the vacant position, and any other factor
unigue to the job vacancy. The factors which
are determinative shall be reflected in writing
in the recommendation made to the plant admin-
istrative manager.
(g) From the supervisor's or management
official's recommendation and from the infor-
mation available with respect to all other
candidates based upon applications on file
and the “skills inventory", the plant admin-
istrative manager shall select the “best qual-
ified" person to fill the particular job
vacancy.
7
os
"
(h) Those who file applications for
the vacant job shall be notified promptly in
writing who has been selected to fill the
vacancy; and unsuccessful candidates, upon
request, shall be advised of the reason(s)
why they were not selected.
(i) All candidates not selected shall
be offered counseling by the plant administra-
tive manager and/or the supervisor or manage-
ment official who was responsible for filling
the vacant job as to how they should prepare
for future vacancies in such job, such as
specification of additional work, experience,
education, training, or other such factors.
C. Record Keeping, Reporting, Dispute
Resolution
(1) For a period of two years from
the date of entry of judgment, Owens-Illinois
shall maintain written records of the foregoing
standards and procedures, including copies of
all job descriptions, skills inventory records,
notices of educational and/or training oppor-
tunities, notices of salaried supervisory/
management and management trainee position
vacancies, applications for such vacancies,
supervisor or management official recommenda-
tions, notices of filling of vacancies, and
requests of unsuccessful applicants for reason(s)
required by this Order. For this two-year
period, Owens-Illinois shall semiannually
file with the Court on August 31 and February
28 of each year a report reflecting the manner
in which it has complied with this Order.
(2) In the event that any claim of
sex discrimination arises with respect to the
filling of any supervisory/management or manage-
ment trainee vacancy under this Remedial Order
Sy ay
sled ~*
a .
within two years from the date of entry of
judgment which the job applicant desires to
pursue to this Court, such claim shall be
referred by thie Court to a United States
Magistrate for proposed findings of fact and
recommendations for disposition pursuant to
28 U.S.C. § 636 and Local Rule 405.
Monetary Relief
I. Proceedings to determine whether back
pay should be awarded to any individual member
of the Class of Female Employees are referred
to the Honorable Fred C. Woelflen, United
States Magistrate, or if he is not available
to such other Magistrate as the Chief Magistrate
may designate.
II. On or before [a date 3 weeks after
resolution of any post-trial motions), Owens-
Illinois will give notice in substantially
the same form as Exhibit C to the Class of
Female Employees by distributing to each class
member currently employed at the Oakland plant
a copy of that notice and Claim Form (Exhibit
D) with her paycheck. Notice to class members
no longer employed at Owens-Illinois shall be
by first-class mail (addressee only return
receipt requested) to the most recent address
for which Owens-Illinois has record. Copies
of the notice shall also be posted on bulletin
boards at the Oakland plant used for communication
with employees. An official of Owens-Illinois
shall certify to the Court compliance with
this paragraph.
III. On or before [a date 30 days after
the notice date], each class member who wishes
to make a claim for back pay shall return to
the Court the Claim form (Exhibit D). No
as
“GOVE,
back pay claims shall be considered unless
the Claim form has been completed and returned
to the Court by the specified date, or contains
a@ postmark no later than the specified date.
IV. On or before [one week after return
date), the Clerk shall make available for
pick-up by counsel for each side copies of
the Claim forms which have been submitted.
V. On or before [two weeks after pick-up
of Claim forms), or at a later date convenient
to the Magistrate's Calendar, a status conference
shall be held before the Magistrate to which
this matter has been referred. At the status
conference the following matters, listed by
way of illustration and not limitation, shall
be discussed:
A. Procedures for determining individual
back pay claims;
-89-
B. Hearing dates; and
c. Any other matters relevant to the conduct
of the hearings.
The Magistrate shall file a written
order setting forth the procedures to be followed
in determining the validity of back pay claims.
VI. The Magistrate will handle these
proceedings in accordance with the Federal
Rules of Ci’’il Procedure and Federal Rules of
Evidence. At the conclusion of all of the
back pay proceedings, the Magistrate shali
submit to the Court his Findings of Fact and
Recommendation for Disposition with respect
to each claimant who has appeared at a hearing.
Special Defense in Proceedings
Before Magistrate
In the proceedings before the Magistrate
that are referred to in the Sections "“Injunctive
Relief" (Paragraph II.C.(2)) and "Monetary
Relief," the Magistrate is precluded from
considering the merits of a claim if defendant
shows that claimant, in connection with the
claim, had, at the relevant times, an adequate
remedy under a collective-bargaining agreement.
Jurisdiction
The Court retains jurisdiction until
the four semi-annual reports required by .
Paragraph C(1) above have been filed with the
Court for the purpose of assuring compliance
with the provisions in this Order. The
action will be dismissed thirty (30) days
after the filing of the last such report,
unless a party hereto shows good cause for
the Court to retain jurisdiction further.
>
EXHIBIT A
l. Education (Circle highest year completed)
Grammar School 12345678
High School 9 10 11 12
College a’ Cay. 4
2. Are you presently enrolled in any
educational orc training programs?
Yes No
If yes, describe course(s).
3. List the skills you presently have
(for example, typing, shorthand, computer,
engineering or other technical skills).
4. List skills you would like to learn.
5. List or describe any other special skill
or ability which you believe supports your
employment goals at Owens-Illinois.
Work Experience
Describe any employment (outside Owens-
Illincis) where you gained experience
which supports your future goals.
Areas of Interest
Consider each of the following ares of
work and list the jobs in each area which
are of most interest to you.
c. Purchasing
7 eats.
e. Others
2. Manufacturing
a. Finished Products
b. Quality Assurance
c. Selecting
Gd. Corrugating
e. Others ;
b. Apprentice Programs
-94-
:
:
EXHIBIT B
SALARIED JOB_ APPLICATION
JOB APPLIED FOR:
3. CURRENT JOB AND SHIFT:
4. HAVE YOU READ THE JOB DESCRIPTION FOR THIS
JOB?
5. DI'SCRIBE BRIEFLY ANY EDUCATION, TRAINING
OR WORK EXPERIENCE WHICH YOU THINK QUALIFIES
YOU _FOR THIS POSITIION
Date:
Signatur?
J
i
ne
Cente a a ve : . »
es AOVs - ey Se eS, ee _ — 5 eo eer -_
EXHIBIT C
LEGAL NOTICE
TO: All females who were employed at the
Oakland Plant of Owens-Illinois, Inc.
since March 23, 1974.
On March 15, 1979, the United States
District Court for the Northern District of
California determined that from March 23,
1974 until January 8, 1979 Owens-Illinois,
Inc. ("Owens-Illinois"), at its Oakland
Plant, discriminated against its female
employees on account of their sex by unduly
limiting the intitial hiring of women for
management training positions and unduly
limiting the promotion of women to
‘ gupervisory and management level positions.
You may have been affected by such
discrimination.
Injunctive relief has been granted in the
Remedia. Order Re Class of Female Employees
-97-
which is enclosed with this Notice. You should
carefully study the provisions of the Remedial
Order, and you should seek explanation of its
terms if you are uncertain of its effect on
you or your job.
Court proce~dings will be held to determine
whether any of you are entitled to back pay.
To be entitled to back pay you must show that
but for Owens-Illinois, Inc.'s discrimiuation
against you during the period from March 23,
1974 to January 8, 1979, in refusing you manage-
ment training, or refusing you a promotion to
a supervisory or management level position of
account of your sex, you would have a better
job, or have earned more money than you did,
in fact, earn. To be entitled to back pay,
you must show that with respect to some job
vacancy.
(1) You applied for that vacancy
or
You would have applied for that job
but you were deterred from applying because
you believed a Company policy made your applying
a useless act because you are a woman;
(2) You were qualified for the job;
(3) You did not receive the job; and
(4) The job was awarded to a male.
Owens-Illinois can rebut your claim of
discrimination by showing that it did not
award you the vacant job for non-discriminatory
reasons, for example, because a more qualified
applicant was available. If Owens-Illinois
makes such a showing you must then prove that
the reason Owens-Illinois gave for not selecting
you was a mere pretext, that is, that it was
not the true reason for denying you the job
and that the true reason was bovause of your
-99-
—_...
In order to present a claim for back pay
you must complete the attached Claim form and
return it to the address shown below by no
later than (date 30 days from notice).
Floyd Williams, et al. v. Owens-Illinois,
inc.
Clerk, United States District Court
Federal Office Building
450 Golden Gate Avenue
San Francisco, CA 94102
If you do not return the Claim form, any
Claim to back pay which you may have as the
result of discrimination on account of your
sex by Owens-Illinois during the period March
23, 1974-January 8, 1979, will be waived, and
when the final decree and judgment is entered
in this case, you will be bound by that judgment
whether or not you received a back pay award.
You are entitled to have any attorney repre-
sent you in these proceedings. You may choose
to be represented by your own attorney. Other-
wise, the plaintiffs’ attorneys will represent
you if you wish them to do so. They are the
firm of Withy, Gould, Miller & Gertsler, 2222
Grove Street, Berkeley, California 94704.
You may consult these attorneys for information
regarding this case or any claim you may have
in connection with it. ’
-101-
7.
eer. ae
EXHIBIT D
CLAIM
Name:
Social Security Number:
Owens-Illinois Identification Number:
Date first employed by Owens-Illinois:
If employment not continous,
(a) list any break(s) in service:
(b) list any re-employment dates:
List each specific job vacancy(ies) for
which you believed yourself qualified:
List your qualifications for each such job
vacancy:
For such job, list
(a) when you believe you were qualified
for that job:
(b) the date when you applied or otherwise
sought to be selected (If you did not
apply, explain why):
-102-
(c) the result or response from Owens-
Illinois:
(d) the name and sex of the person who was
selected for that job, if you know:
(e) your supervisor at the time you applied
for or sought the position:
9. If you are no longer employed by Owens-
Illinois, list all jobs held since you
left Owens-Illinois including:
(a) employer;
(b) employment dates;
(c) job title and description;
(4) pay (including all increases, fringe
benefits and other compensation), and
(e) reason for leaving.
~103-
If you have not held a job since you left
Owens-Illinois explain why not.
I declare under penalty cf perjury that
the above statements are true and correct.
Dated:
Name
Address
-104- :
l. The term “supervisory/management positions”
as used herein shall be defined to include
all management training positions, including
but not limited to the position of student
industrial engineer in the cost control depart-
ment; all crew leaders and working foreman,
union or non-union, who are responsible for
supervising the work of one or more other
persons, including but not limited to relief
foremen and like foremen positions; and any
other positions where the employee is respon-
sible for supervising one or more employees
in their work, but shall exclude the top five
positions at the Oakland plant.
-105-
for, W. WILLIAMS, Jr., et al.,
Plaintiffs/Cross-Appellees,
Alice Brice,
Plaintiff/Appellant/Cross~Appellee,
Robert Harold and Aunita Jones, Plain-
tiff-Intervenors/Appellants/Cross-Ap-
pellees,
and
Charlotte Harris, et al.,
Plaintiff-Intervenors/Cross-Appellees,
V-
OWENS-ILLINOIS, INC.,
Defendant /Appellee/Cross-Appellant.
No. 79-4410.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted April 13, 19861.
Decided Jan. ll, 1982.
el
Employment discrimination action was
brought alleging discrimination on basis of
race and sex. The United States District
Court for the Northern District of California,
Robert H. Schnacke, J., 469 F.Supp. 70, entered
judgment granting partial relief, and three
of the plaintiffs appealed. The Court of
Appeals, Canby, Circuit Judge, held that:
(1) applicable period of limitations should
have been calculated by subtracting 300 days
from the date of initiai complaint filed with
the Equal Employment Opportunity Commission;
(2) continuing violations doctrine was inappli-
cable to refusals to hire and terminations,
but opportunity to prove continuing violations
had to be provided as to claims of discrimina-
tory placements or denials of promotions; (3)
plaintiffs established a prima facie case of
race discrimination if the relevant labor
market was the one urged by plaintiffs or
some other market of equivalent or greater
minority representation, and employer failed
to rebut the statistical case presented by
plaintiffs; (4) district court erred in deter-
mining that county rather than city was the
relevant labor market on the basis of residence
of current employees; (5) trial court did not
abuse its discretion in refusing to consider
prayer for $50 million in punitive and compen-
satory damages as incidental to class request
for injunctive relief; (6) employer's evidence
was not sufficient to rebut the statistical
case of sex discrimination; (7) remedial order
as to sex discrimination was not an abuse of
discretion in failing to require employer to
adopt any affirmative action guidelines; and
(8) district court erred in precluding any
Claims for back pay which were subject to
grievance proceedings under any union contract.
Affirmed in part, reversed in part,
and remanded.
Appeal from the United States District
Court for the Northern District of California.
Before TANG and CANBY, Circuit Judges,
and WILLIAMS,* District Judge.
CANBY, Circuit Judge.
This action was brought by twelve named
plaintiffs representing themselves and a class
of current and former black and female emloyees
of Owens-Illinois’ Oakland glass container
plant. They alleged that the company's employ-
ment and promotion practices violated Titie
VII, 42 U.S.C. § 2000e et seq., and 42 U.S.C.
§ 1981 and Executive Orders 11246 and 11375.
In adéition to their individual claims, appel-
lants asserted class wide claims of discrimin-
ation by race or sex in hiring, initial job
assignments, transfers and promotions. They
also alleged discriminatory harassment and
discharge. They sought injunctive relief,
back pay and compensatory and punitive damages.
Following a lengthy trial, the jury found in
favor of only three individual plaintiffs on
their § 1981 claims. On issues tried to the
court with the advice of the jury, the district
court rejected the class race claims and found
sex discrimination only with regard to initial
hiring for management training positions and
promotions into supervisory and managerial
positions. 469 F.Supp. 70, 74, 77 (N.D.Cal.
1979). Appellants, the three individuals who
prevailed below, limit their appeal to issues
relating to the class actions. They assert
numerous errors concerning pre-trial proceedings,
the trial itseif, the remedial order and the
award of attorneys’ fees.
I
The Oakland plant is located on the
edge of Alameda County. During the 1971-78
period, it employed between 1600 and 2000
workers. Employees produce, pack and ship
glass bottles, make the cartons in which the
bottles are packed and administer the operation.
"Selectors" inspect the glass and place accept-
able bottles in cartons. “Lehr attendants”
stack the filled cartons on pallets. The
packed bottles are kept in the warehouse and
eventually delivered by drivers working in
the trucking department. The plant also has
a maintenance department and a central mold
shop, where molds are produced for use in a
number of Owens-Illinois glass bottle plants.
The plant is organized into 20 depart-
ments which are grouped into five general
areas (production, finished products, packaging
and distributing, administration and other).
Four of the departments, employing approximately
10% of the workers, are composed entirely of
salaried employees. The remaining 16 depart-
ments employ hourly workers who belong to
=~£=
various unions and whose wages, hours and
terms of employment are controlled by collective
bargaining agreements.
Seven named plaintiffs filed suit on
behalf of themselves and similarly situated
blacks and women in June 1975. They alleged
that Owens-Illinois had discriminatcd against
them in violation of Title VII, 42 U.8.C.
§ 1981 and Executive Orders 11246 and 11375.
Five additional plaintiffs subsequently inter-
vened. Shortly before trial, the court cer-
tified two classes; blacks employed at the
plant after March 7, 1971 and women employed
there after March 23, 1974. The court ruled
that any earlier claims were time-barred. It
further ruled that because the unions were
not parties to the suit, any actions by Owens-
Illinois which were undertaken in compliance
with independently entered collective bargaining
agreements would not provide the basis for
any claim of discrimination. The trial court
granted summary judgment to Owens-Illinois on
appellants’ executive order claims. Appellants
do not challenge this last ruling on appeal.
The court left for trial individual and class
race claims which were based on 42 U.S.C.
§ 1981 and Title VII as well as individual
and class sex discrimination claims brought
pursuant to Title VII.
The § 1981 individual claims were tried
to a jury which also considered the class
claims in an advisory capacity. The trial
court rejected appellants’ contention that
the jury be permitted to determine compensatory
and punitive class damages pursuant to § 19861.
The Court held that because the class was
certified under Federal Rule of Civil Procedure
23(b) (2), recovery was limited to equitable
relief. The court consequently struck the
prayer for compensatory and punitive class
relief.
a |
The jury found against seven cf the
eleven named plaintiffs.+ It found in favor
of three plaintiffs and disagreed as to one.
In its advisory capacity the jury split six
to three in the company's favor on the issue
of black class liability and found discrimina-
tion against women only in promotions to manage-
ment positions and placement in supervisory
and management training jobs. The trial court
entered judgment in accordance with the jury's
verdict on the individual claims and the jury's
recommendations on the class actions.
The court entered a remedial order
requiring the company to implement new policies
for the promotion of women to supervisory and
management positions. The court rejected,
however, appellants’ request for specific
affirmative action goals. The court ordered
that all back pay claims of the female class
be heard by a magistrate, but directed that
the magistrate deny relief to any class member
whose claim could have been addressed through
the grievance procedure established by the
collective bargaining agreements.
The court also rejected appellants’
request for approximately $650,000 in attorneys’
fees. It awarded $50,000, which it concluded
was more than adequate compensation.
It
Pre-trial Rulings: Continuing violations
[1-3] In a class action, a class represen-
tative's EEOC complaint tolls the statute of
limitations for all class members. Inda v.
United Air Lines, Inc., 565 F.2d 554, 559
(9th Cir. 1977), cert. denied, 435 U.S. 1007,
98 S.Ct. 1877, 56 L.Ed. (1978). The trial
court established the limitations period for
the two classes by subtracting the 180 day
statute of limitations for filing with the
-10-
=~ ——
EEOC from the date of the first EEOC complaint
filed by a member of each class. The court
therefore concluded that claims of sex discrin-
ination based on acts prior to March 1974 and
of race discrimination based on acts prior to
March 1971 were time-barred.* The court re-
jected the continuing violation doctrine as
inapplicable.
{4, 5] The doctrine of continuing
violations, as one court observed, is “actually
a conglomeration of several different ideas."
Elliott v. Sperry Rand Corp., 79 F.R.D. 580,
585 (D.Minn.1978). For present purposes,
however, the relevant strain of continuing
violation doctrine is that a systematic policy
of discrimination is actionable even if some
or all of the events evidencing its inception
occurred prior to the limitations period.
Id. at 585-86. The reason is that the contin-
uing system of discrimination operates against
the employee and violates his or her rights
up to a point in time that falls within the
applicable limitations period. Such continuing
violations are most likely to occur in the
matter of placements or promotions. A minority
employee who is not promoted in 1973, for
example, and is subject to a continuing policy
against promotion of minorities, may then
file a timely charge in 1976, because the
policy against promoting him or her continued
to violate the employee's rights up to the
time the charge was filed. With regard to
such discrimination in promotion, this court
has accepted the following formulation:
{A] challenge to systematic discrimination
is always timely if brought by a present
employee, for the existence of the system
deters the employee from seeking his
full employment — or threatens to
adversely affect him in the future.
Reed v. Lockheed Aircraft Corp., 613 F.2d
757, 761 (9th Cir. 1980), quoting Elliott y.
-)2-
Sperry Rand Corp., 79 F.R.D. at 586; accord,
Higgins v. Oklahoma ex rel. Oklahoma Employment
Security Comm'n, 642 F.2d 1199, 1200 n.2 (10th
Cir. 1981); Clark v. Olinkraft Inc., 556 F.2d
1219, 1221-22 (5th Cir. 1977), cert. denied,
434 U.S. 1069, 98 S.Ct. 1251, 55 L.Ed.2a 772
(1978); Rich v. Martin Marietta Corp., 522
F.2d 333, 348 & n.15 (10th Cir. 1975); Wetzel
v. Liberty Mutual Life Ins. Co., 508 F.2d
239, 246 (3d Cir.), cert. denied, 421 U.S.
1011, 95 S.Ct. 2415, 44 L.Ed.2d 679 (1975).
The situation may be different, however,
with regard to complainants who have ceased
to be employees or never were employees. A
refusal to hire or a decision to fire an employee
may place the victim out of reach of any further
effect of company policy, so that such a complain-
ant must file a charge within the requisite
time period afer the refusal to hire or term-
ination, or be time-barred. If in those cases
the victims can show no way in which the company
policy had an impact on them within the limita-
tions period, the continuing violation doctrine
is of no assistance or applicability, because
mere “continuing impact from past violations
ig not actionable. Continuing violations
are." Reed v. Lockheed Aircraft Corp., 613
F.2d at 760; see United Air Lines, Inc. v.
Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 1889,
52 L.Ed.2d 571 (1977).
[6] We agree with the trial court
that in this case Owens-Illinois’ refusals to
hire and terminations did not give occasion
to apply the continuing violations doctrine.
Claims based on discriminatory refusals to
hire or on terminations occurring before the
limitations period were therefore properly
excluded.
The trial court erred, however, in
concluding that the continuing violations
a ere
gaging
Ee
,
ae i
doctrine did not apply to discriminatory place-
ments or denials of promotions. It should
not have barred consideration of such events
that may have occurred prior to the limitations
period. The reason is that appellants were
entitled to base claims on such discriminatory
acts if they could show that these acts continued
as violations because the supporting discrina-
inatory policy carried forward into the limita-
tions period and had its effect on employees.
This opportunity to prove a continuing violation
must be provided, of course, whether the claim
is race or gender discrimination. Jenkins 7.
Home Insurance Co., 635 F.2d 310, 312 (4th
Cir. 19890).
(7) For reasons set forth below, remand
of both the black class claims and most of
the womens’ class claims is necessary. On
remand, evidence of discriminatory acts relating
to placement or promotion of blacks and women
-15-
aa
9
= . an :
So « AL. SP” See Fae
occurring before the applicable limitations
period may be admitted for the purpose of
attempting to show continuing violations having
an effect on the concerned employees within
the limitations period.
Iit
Race Claims
Appellants asserted race claims pursuant
to both Title VII and 42 U.S.C. § 1981. They
contend that they presented sufficient evidence
to support a prima facie case.
A. Title VII
l. Prima Facie Case
{8-10} The trial court properly discounted
much of appellants’ statistical evidence as
4
unhelpful. We conclude, however, that appel-
lants presented sufficient evidence to establish
a prima facie case of discrimination if the
relevant labor market is one of those urged
by appellants or is some other market of equiv-
alent or greater minority representation.
(See subdivision 2, following).
Appellants’ statistical study representing
the job classification of 88% of all persons
hired between 1971 and 1976 is instructive.
That study showed that although blacks comprised
27% of the new hires most of the blacks hired
were service workers. Another meaningful
statistic was provided by Owens-Illinois.
During the period April 1974 through April
1975, only 11% of the craftsmen hired were
black.
We believe that Owens-Illinois failed
to rebut the statistical case presented by
appellants. While the company did offer alter-
native studies, these did not negate the prob-
ative value of appellants’ statistics. Indeed,
Owens-Illinois’ own study suggested that the
-l1?-
percentage of blacks hired in craft positions
was extremely low.
The company's primary defense was that
many of its wage rates and promotion practices
were mandated by collective bargaininsa agree-
ments. In addition, Owens-Illinois claimed
that several contracts eliminated its discretion
in hiring by requiring the company to accept
all employees referred by union hiring halls.
The trial court ruled that any actions which
the company undertook pursuant to union con-
tracts would be deemed non-discriminatory,
apparently because appellants had not brought
the unions in as defendants. This ruling was
erroneous as a matter of law.
{1l, 12] An employer-union agreement
permitting the employer to discriminate is
not immune to race discrimination claims.
"Rights established under Title VII ... are
*not rights which can be bargained away ~
either by a union, by an employeer, or by
both acting in concert.'" Laffey v. Northwest
Airlines, Inc., 567 F.2d 429, 447 (D.C. Cir.
1976), cert. denied, 434 U.S. 1086, 98 S.Ct.
1281, 55 L.Ed.2d 792 (1977), quoting Robinson
v. Lorillard Corp., 444 F.2d 791, 799 (4th
Cir.), cert. dismissed, 404 U.S. 1006, 92
S.Ct. 573, 30 L.Ed.2d 655 (1971). “[U]jnion
pressure on an employer does not relieve the
latter of its obligation to respect an appli-
cant's Title VII rights ...." Grant v. Bethlehem
Steel Corp., 635 F.2d 1007, 1016 (2d Cir.
1980), cert. denied, __—s- «U.S. ___, ll
S.Ct. 3083, 69 L.Bd.24 954 (1981).°”
The low percentage of blacks employed
in certain areas of the plant suggests possible
discrimination. Whether the studies in evidence
establish a prima facie case, however, can be
conclusively determined only by correlating
these statistics with the corresponding percen-
tage of blacks in the relevant geographic
labor market. Unfortunately, for reasons to
be stated now, the correlation between the
Owens-Illinois work force and the relevant
labor market can only be made upon remand.
2. Relevant Labor Market
Appellants contend that the relevant
market was either the population of Oakland
or its labor force. In 1970, blacks comprised
40% of the Oakland population and 30% of the
labor force. Owens-Illinois argues that the
labor force of Alameda County was the relevant
market. For the years 1973-78 blacks comprised
only 13.6% of the Alameda County labor force.
It is apparent, therefore, that whether or
not a prima facie case of discriminatory impact
was established is wholly dependent on whether
Oakland is selected as the relevant labox«
market.
{13} The trial court determined that
Alameda County was the relevant market and
~20-
Na . eee Fee Ree Pe
a * ‘ , garry
ar : |
accordingly appears to have held that appellants’
statistics did not establish a prima facie
case.° The court relied in large degree upon
"zip code" data submitted by Owens-Illinois
showing that its employees resided throughout
Alameda County. Less than 50% of its new
hires and only 34% of its total employees
lived in Oakland. We conclude that the district
court erred in selecting Alameda County as
the relevant market on the basis of these
date.
The zip code data, relied upon by the
district court, do not prove that the Owens-
Illinois' hiring practices were non-discrinmi-
natory. The data do indicate the geographic
area from whch the company hired its employees;
they are not probative of whether Owens-Illinois
actually hired its employees in non-discriminatory
fashion from the available pool of labor.
Indeed, the post hoc approach accepted by the
ee
trial court would permit an employer to limit
the number of blacks employed by drawing his
employees from predominantly white areas within
commuting distance. See Markey v. Tenneco
Oil Co., 635 F.2d 497, 499-500 (5th Cir. 1980).
Because the district judge may have premised
his conclusion that Owens-Illinois did not
engage in discriminatory practices on this
improper market determination, we reverse and
remand the claims of the black class.’
We do not automatically accept, however,
appellants’ reasoning in support of their
view that the relevant market is either the
Oakland population or its labor force. These
market definitions were initially adopted to
determine whether Owens-Illinois was in com-
pliance with the affirmative action goals of
Executive Order 11246 and 11375 and could
therefore be awarded a government contract. °®
While other factors may ultimately be
found that will lead to selection of the Oakland
-22-
population or labor force es the relevant
market, we are reluctant to adopt » market
definition solely on the ground that Owens-
Illinois was willing to accept it i: order to
qualify for government contracts. We fear
that such an approach would have a chilling
effect on contract compliance and affirmative
action. It is possible that Owens-Illinois
would not have acceded to the government's
definition had it been aware that an attendant
consequence of its acquiescence would be to
bind it to a particular definition of the
market in subsequent non-related litigation.
{14} On remand, it will be open for
the trial court to determine the appropriate
definition of relevant market, so long as
that determination is not simply based on
actual past hiring or Owens-Illinois’ accep-
tance of a given definition for purposes of
Executive Orders 11246 and 11375. One poten-
tially more accurate indicator of the relevant
market would be actual applicant (as opposed
to hired worker) flow, at least where there
is no evidence of systematic discouragement
of minority applicants. See Dothard v. Rawlinson,
433 U.S. 321, 330, 97 S.Ct. 2720, 2727, 53
L.Ed.2d 786 (1977). These data would readily
indicate what percentage of Owens-Illinois’
applicants come from Oakland as opposed to
other areas. e Hazel hool Dis
v. United States, 433 U.S. 299, 308, 97 S.Ct.
2736, 2741, 53 L.Ed.2d 768 n.13; Phillips vy.
Joint Legislative Committee, 637 F.2d 1014,
1025 (Sth Cir. 1981); United States v. County
of Fairfax, 629 F.2d 932, 940 (4th Cir. 1980),
cert. denied, 449 U.S. 1078, 101 S.Ct. 858,
66 L.Ed.2d 801 (1981).
If these data are unavailable, the
district court may accept any other reasonable
proxy which indicates the source of Owens-
Illinois’ potential employees. One such proxy
would be *prlicant data for a period subsequent
to the one covered by this litigation. Cf.
Heagney v. University of Washington, 642 F.2d
1157, 1165 (9th Cir. 1981) study measuring
conditions 22 months after appellant was employed
and therefore admissible.) Unless the parties
can show otherwise, we see no reason to assume
that the source of Owens-Illinois’ applicant
pool has radically changed over time.
B. § 1981 Claims
1. Intent
{15) Appellants and amicus Mexican
American Legal Defense and Education Fund
(MALDEF) assert that the trial court erred in
ruling that employment discrimination claims
brought pursuant to § 1981 require proof of rf
intent. Although an open question when the
parties filed their initial briefs, see Davis
-25-
vy. County of Los Angeles, 566 F.2d 1334,
1340 (9th Cir. 1977), vacated as moot, 440
U.S. 625, 634, 99 S.Ct. 1379, 1384, 59 L.Ed.2d
642 (1979), this issue has been definitively
determined by two recent decisions of this
court. Craig v. County of Los Angeles, 626
F.2d. 659, 668 (9th Cir. 1980), cert. denied,
450 U.S. 919, 101 S.Ct. 1364, 67 L.Ed.2d 345
(1981) and Golden v. Local 55, International
Association of Firefighters, 633 F.2d 817,
823 (9th Cir. 1980), clearly establish that
proof of intent is required.
2. Jury Trial
{16, 17] Section 1981 provides both
legal and equitable remedies. Johnson vy.
Railway Express Agency, 421 U.S. 454, 460, 95
S.Ct. 1716, 1720, 44 L.Bd.2d 295 (1975).
The legal remedies include compensatory and
punitive damages. See Claiborne v. Illinois
Central Railroad, 583 F.2d 143, 154 (5th Cir.
be Stee
1978), cert. denied, 442 U.S. 934, 99 S.Ct.
2869, 61 L.Ed.2d 303 (1979); Sethy v. Alameda
County Water District, 545 F.2d 1157 (9th
Cir. 1976) (en banc). Accompanying these
legal remedies is the right to trial before a
jury. Set v nv t Co., 638
F.2d 1137 (8th Cir. 1981); Moore v. Sun Oil
of Pennsylvania, 636 F.2d 154 (6th Cir. 1980);
cf. Shah v. Mt. Zion Hospital & Medical Center,
642 F.2d 268, 272 (9th Cir. 1981).
As part of their § 1981 claim, appellants
sought both compensatory and punitive damages
for the class of black employees. The trial
court certified the class under Federal Rules
of Civil Procedure 23(b)(2) and, while permitting
a jury trial of individual damage claims,
limited the class remedy solely to injunctive
relief.? Appellants contend that their prayer
for punitive and compensatory damages as a
class was incidental to the request for injunc-
-27=
yee
Po
tive class relief and therefore should have
been permitted. Appellants further contend
that they were entitled to a jury trial on
their § 1981 claims, including their prayer
for compensatory and punitive class relief.
We disagree with both contentions.
[18] It is true that this court has
adopted the view that legal remedies which
are incidental to a request for injunctive
relief may be included as a part of the (b) (2)
Claim. Society for Individual Rights, Inc.
v. Hampton, 528 F.2d 905, 906 (9th Cir. 1975);
Elliot v. Weinberger, 564 F.2d 1219, 1228
(9th Cir. 1977); see Proposed Rules of Civil
Procedure, Advisory Committee's Note to proposed
Rule 23, 39 F.R.D. 98, 102 (1966) ((b) (2)
designation not appropriate where “final relief
relates exclusively or predominantly to money
damages." (emphasis supplied)); 7A Wright & Miller
Pederal Practice and Procedure § 1775, at 22-
23 (1972).
It appears here, however, that the
Claimed compensatory damages were not neces-
sarily compatible with class injunctive relief.
Unlike back pay, compensatory damages are not
subsumed by the traditional equitable concepts
of reinstatement and restitution. More impor-
tantly, establishing the amount of compensatory
damages due éach plaintiff is a far more complex
and uncertain exercise than the determination
of back pay, and greatly complicates the manage-
ment of the class action. “(I]t is within
the discretion of the trial judge, under Rule
23(c) (4), to limit the issues in a class action
to ‘those parts of a lawsuit which lend themselves
to convenient use of the class action motif.‘'*
Society for Individual Rights, Inc. v. Hampton,
528 F.2d at 906, quoting Nix v. Grand Lodge,
IAM, 479 F.2d 382, 385 (5th Cir.), cert.
Genied, 414 U.S. 1024, 94 S.Ct. 449, 38 L.Ed.2d
316 (1973). In this instance we do not believe
that the trial court abused its discretion in
refusing to consider appellants’ prayer for
$50 million in punitive and compensatory damages
as incidental to the request for injunctive
relief.
{19} Thus, the only requested remedy
other than injunctive relief which was before
the court was back pay. That relief, however,
was properly viewed as either equitable or as
@ legal remedy incidental to an equitable
cause of actionl® and accordingly not suffi-
cient to create a right to jury trial. See
Moore v. Sun Oil Co., 636 F.2d 154, 156-57
{6th Cir. 1980); Slack v. Havens, 522 F.2d at
1094 & n.4; Lynch v. Pan American World Airways,
Inc., 475 F.2d 764, 765 (Sth Cir. 1973); Robinson
v. Lorillard Corp., 444 F.2d at 802. But see
Setser v. Novack Investment Co., 638 F.2d
1137, 1142 (8th Cir. 1981).
ee a
“s, lie
IV
A. Female Class Prima Facie Case
Appellants’ sex discrimination suit
was predicated solely on Title VII. C£. Runyon
v. McCreary, 427 U.S. 160, 96 S.Ct. 2586, 49
L.Ed.2d 415 (1976) (§ 1981 not applicable to
gender discrimination). All claims were there-
fore tried to the court. Under the Act the
standard for proving sex discrimination and
race discrimination is the same. See White
v. City of San Piego, 605 F.2d 455, 458-59
(9th Cir. 1979). Appellants sought to establish
a prima facie case of sex discrimination by
introducing evidence of statistical disparity
and augmenting the statistics with documents
and testimony.
[20] Appellants’ statistical studies
indicated that although women comprised more
than 30% of the Oakland plant work force,
they were systematically excluded from many
job categories. No women were employed as
machine repairers, mold repairers or teamsters.
Women were concentrated in three departments:
janitorial, accounting and finished products.
Women comprised only 4% of the officials and
managers and 4% of the craft workers but were
48% of the operatives and 67% of the office
and clerical workers. These statistics were
demonstrably disproportionate when compared
with the relevant laber market which Owens-
Illinois had accepted for purposes of compliance
with contracts of the Energy Research and
Development Adminstration.11 women constituted
38% of the managers and professionals in the
combined Oakland-Alameda County labor market
and 40% of the Oakland work force which Owens-
Illinois had agreed was its source for all
other categories.
Of the new hires between 1971 and 1976,
37.2% were women. No women were hired, however,
Am
i
as “journeymen,"12 teamsters or lehr attendants.
Appellants also introduced evidence showing
that as late as 1974 some departments were
still designating by gender their requests
for applicants and that particular individuals
were denied promotions and harrassed because
of their sex.
Appellants offered two studies showing
that women at the Oakland plant earned signifi-
cantly less than men. Dr. Peele compared
earnings between males and females. He found
that male hourly employees, on the average,
earned 63% more than women in 1973. This
disparity was 61% in 1976. Dr. Drogin compared
base salary rates for hourly employees and
concluded that women earned approximately
$2650 less per year.
Owens-Illinois’ rebuttal of sex discrin-
ination claim closely paralleled its response
to the race claims. It attacked the reliability
of the statistical studies and introduced
other studies to support its view. It also
showed that most the initial hiring was con-
trolled by union hiring halls and that well
over 80% of all promotions were subject to
procedures in contracts between Owens-Illinois
and particular unions. For reasons similar
to those already explained in regard to the
black class claims, we do not regard the evi-
dence sufficient to rebut appellants’ statis-
tical case.
The company also challenged the non-
statistical evidence. Although it acknowledged
that women were generally not employed as
lehr attendants, it presented evidence that
it had encouraged women to apply for the position
but that few women had chosen to do so. It
further showed that during a reduction in
work force, senior women selectors who could
have remained on the job by exercising their
ls fae ae gh de
ms
:
labor agreement seniority rights to displace
junior male lehr attendants, uniformly preferred
unemployment.
The company conceded that at one time
there were discriminatory placements. These
placements may have accounted for an initial
disparity between men and women, but the company
argued that these practices were not actionable
because they occurred prior to March 23, 1974,
the cutoff date set by the trial court. More-
over, Owens-Illinois contended that although
the initial placements may have been discrim-
inatory, women had an equal opportunity for
promotion under the applicable labor agreements.
The trial judge concluded that appellants
failed to prove sex discrimination in earnings
and non-supervisory and management promotions.
The court did not state, however, whether
plaintiff had proved a prima facie case of
sex discrimination for anything more than
supervisory and management promotions.
-35-
We have already held that the trial
court erred in defining the relevant labor
market, refusing to consider the continuing
violations doctrine for promotions cr place-
ments occurring prior to the applicable limita-
tions period, and in deeming non-discriminatory
any action taken pursuant to a collective
bargaining contract. Accordingly, we remand
those parts of the women's class claims that
relate to possible discrimination in: (1)
hirings occur: ing within 300 days/3 prior to
the filing of the first women's charge with
the EEOC; (2) placements or promotions to
non-professional and non-managerial positions
occurring within the same period or earlier
in the case of continuing violations; (3)
promotions to professional and managerial
positions occurring prior to the limitations
period if they are continuing violations.
Redetermination of the relevant market will
permit assessment of appellants’ prima facie
case. If a prima facie case is established,
adherence to collective bargaining agreements
will not suffice as a rebuttal.
B. Remedial Order
[21] The trial court's remedial order
directs Owens-Illinois to (1) compile job
descriptions for all supervisory and management
positions at the Oakland plant; (2) permit
all employees to complete a skill inventory
form indicating their skills and areas of
interest for promotion; (3) notify all female
employees of current training programs for
supervisory or management positions; (4) con-
spicuously post in one or more areas notices
for each salaried supervisory, management and
management trainee vacancy and include in the
notice of vacancy the legend "Both female
and male applicants encouraged” and (5) establish
nondiscriminatory procedures for filling these
vacancies. The company must (a) consider all
applicants whose skills inventory forms show
them to be qualified; (b) if there are no
women applicants, solicit female applicants
from qualified Oakland plant employees end/or
from qualified females otherwise available;
(c) choose the “best qualified" person according
to a list of objective and subjective criteria;14
(d) maintain records explaining why a participant
was not selected for a particular position
and (e) promptly notify in writing all applicants
th’. the position has been filled and inform
unsuccessful applicants upon request of the
reason they were not selected.
The remedial order referred all claims
for monetary relief to a United States Magistrate.
The Magistrate was to provide back pay hearings
for all women who claimed to have been discrim-
inated against subsequent to March 23, 1974,
ee
in that they did not receive a supervisory or
management position. The trial judge ruled
that the Magistrate could not consider the
nerits of any claim which, at the relevant
time of the violation, had an adequate remedy
under a coilective bargaining agreement.
Appellants contend that the remedial
order is critically deficient in two aspects:
(1) the order does not require Owens-Illinois
to adopt any affirmative action guidelines;
(2) it severely restricts the number of women
entitled to relief by disqualifying claimants
who had a remedy under a collective bargaining
agreement.
1. Affirmative Action
The primary objective of Title VII is
prophylactic: to achieve equal employment
opportunity and remove discriminatory barriers
which have operated to favor white male employees
over others. Albemarle Paper Co. v. Moody,
422 U.S. 405, 417, 95 S.Ct. 2362, 2371, 45
L.Ed.24d 280 (1975); Griggs v. Duke Power Co.,
401 U.S. 424, 429-30, 91 S.Ct. 849, 852-53,
28 L.Ed.2d 158 (1971). Towards this end,
Congress has granted broad equitable powers
to enable the courts to fashion the most complete
relief possible. The district courts have
“'not merely the power but the duty to render
a decree which will so far as possible eliminate
the discriminatory effects of the past as
well as bar like discrimination in the future.'"
Albemarle Paper Co. v. Moody, 422 U.S. at
418, 95 S.Ct. at 2371, quoting, Louisiana v.
United States, 380 U.S. 145, 154, 85 S.Ct.
817, 822, 13 L.Ed.2d 709 (1965).
(22, 23] The particular remedy granted,
however, is not limited to any specific or
prescribed form; rather it is left largely to
the broad discretion of the district court.
po
Davis v. County of Los Angeles, 566 F.2d at
1342; Rios v. Enterprise Association Steamfitters
Local 638, 501 F.2d 622, 631 (2d Cir. i974).
We conc).ude that the trial court's remedial
order was not an abuse of discretion.
Although the court's order does not
give appellants everything they sought, it
does eradicate the subjective criteria which
permitted discriminatory promotions and it
also places an affirmative duty on Owens-
Illinois to seek women for its management and
supervisory positions.
Firefighters Institute for Racial Equality
v. City of St. Louis, 588 F.2d 235 (8th Cir. |
1978), cert. denied, 443 U.S. 904, 99 S.Ct.
3096, 61 L.Ed.2d 872 (1979), cited by appellants
to support its contention that the court of
appeals should unilaterally order more affirmative
measures such as preferential hiring or quotas,
is distinguishable. In Firefighters, the
ot > ars *
Eighth Circuit concluded that the city was
doing everything in its power to maintain its
discriminatory policy and delay implementation
of the trial court's decree. 588 F.2d at
240. The court of appeals therefore concluded
that the only way to end this discrimination
was by such affirmative measures. In this
case, however, there has been no indication
of non-compliance. It was not an abuse of
discretion for the trial judge to conclude
that preferential hiring or a quota system
was unnecessary.
2. Grievance proceedings
[24] The district court also precluded
any Claims for back pay which were subject to
grievance proceedings under any union contract.
Appellants contend that this ruling improperly
restricts class members' right to recover.
We agree.
a
{25] Title VII is silent on the need
to exhaust contractual remedies or the effect
of invoking union grievance procedures. Oubichon
vy. North American Rockwell Corp., 482 F.2d
569, 572 (9th Cir. 1973). Courts have stated,
however, that Congress intended Title VII to
be a separate and distinct mode of recovery.
A Title VII plaintiff will therefore not be
denied relief if he or she initiates a grievance
proceeding prior to bringing a civil rights
suit. Alexander v. Gardner-Denver Co., 415
U.S. 36, 59-60, 94 S.Ct. 1011, 1024-25, 39
L.Bd.2d 147 (1974); Oubichon, 482 F.2d at 572
This same policy argues strongly in favor of
permitting a Title VII claimant to recover
even if he or she failed to exhaust contractual
remedies.
Owens-Illinois asserts that this issue
is moot. Following the entry of the remedial
order, Owens-Illinios circulated notices to
women employed at the plant since March 23,
1974 advising them to file claims if they
believed that they were discriminated against
with respect to any promotion into any management
or supervisory position including hourly super-
visory positions covered by collective bargaining
agreements. All resulting back pay claims
were settled prior to the scheduled hearing
before the Magistrate. The Magistrate there-
fore never determined whether any claim was
subject to a union grievance procedure and
therefore precluded by the court's remedial
order.
While we agree that any claims which
were settled are moot, we recognize that in
further proceedings the trial court may discover
additional women who are entitled to relief.
Accordingly, we vacate that part of the remedial
order which precludes claims which were subject
to grievance procedures.
-{*
m7
A. Discovery
The trial judge specified in his pretrial
order that appellants could not discover Owens-
Illinois computer tapes. He required the
company to process whatever computer runs
appellants requested but did not order Owens-
Illinois to turn over physical possession of
the tapes. The judge also allowed the possi-
bility of further discovery if appellants
could show good cause. Appellants contend
that this order did not permit them adequate
discovery and therefore resulted in a statis-
tical case “prepared for them by [the] defen-
dants." Appellants therefore request that on
remand they be permitted to discover these
tapes. We decline to impose such a limit on
the trial court's discretion.
{26, 27} While it is true that computer
tapes are not per se non-discoverable, Dunn
ae
yv. Midwestern Indemnity, 88 F.R.D. 191, 194
(S.D. Ohio 1980), cf. Manual for Complex Liti-
gation, 1 Pt. 2 J. Moore Federal Practice,
Pt. 1 § 2.715 at 129 (24 Ed. 1980) ("{d]iscovery
requests relating to the computer, its programs,
inputs and outputs should be processed under
methods consistent with the approach taken to
discovery of other types of information"),
the facts here do not compel the granting of
appellants request. All information contained
on the computer tapes was included in the
wage cards which appellants discovered. R.T.
6645-59. Appellants were therefore not deprived
of any data. While using the cards may be
more tixe consuming, difficult and expensive,
these reasons, of themselves, do not show
that the trial judge abused his discretion in
denying appellants the tapes.
ao er
vi
Appellants have attacked the trial
court's award of attorneys’ fees to them as
being too low. Because that award may have
been in part on the outcome of the case, our
reversal requires that we also vacate the
award. A new award will take into account
the fact that appellants largely prevailed on
appeal, and will of course reflect services
rendered in further proceedings. The amount
ultimately award by the district court should
be explained and justified according to the
factors set forth in Kerr v. Screen Extras
Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975),
cert. denied sub nom. Perkins v. Screen Extras
Guild, Inc., 425 U.S. 951, 96 S.Ct. 1726, 48
L.Ed.2d 195 (1976). See also Sethy v. Alameda
County Water District, 602 F.2d 894 (9th Cir.
1979), cert. denied, 444 U.S. 1046, 100 S.Ct.
734, 62 L.Ed.2d 731 (1980).
VII
To summarize:
The black class claims are remanded
for further proceedings. It will there be
necessary to redefine the relevant labor market
for the purpose of determing the existence of
disparate impact. Evidence of racial discrin-
ination in placements and promotions occurring
prior to the limitations period may be admitted
for the purpose of determining the existence
of violations supported by a policy with a
continuing effect. Claims for any employment
discrimination, discrete or continuing, occurring
within 300 days before the initial charge
filed with the EEOC or extending into that
period will not be barred by limitations.
The prospective relief ordered by the
district court for gender discrimination in
promotion to supervisory or management positions
is affirmed as modified. Remand is ordered,
vo ee A
ee:
Hef,
+4
however, to permit women so discriminated
against to establish back pay claims for
discrimination occurring within 300 days before
the initial charge to the EEOC, whether or
not union grievance procedures were exhausted.
The remaining womens’ class claims are
remanded for further proceedings. As already
indicated, the relevant market must be redefined.
Evidence of gender discrimination in placement
Or promotion to non-managerial or non-supervisory
positions antedating the limitations period
may be admitted for the purpose of Gotermining
the existence of violations supported by a
policy with a continuing effect. Claims for
discrimination, discrete or continuing, occur-
ring within 300 days of the initial charge to
the EEOC or extending into that period are
not barred by limitations. Failure to invoke
grievance procedures will not defeat an other-
wise viable claim.
With regard to both the black class
and womens’ class claims, the fact that dis-
crimination, if established, was compelled by
the provisions of a collective bargaining
contract will not be a defense.
Affirmed in part, reversed in part and
remanded.
ad
-
*The Honorable Davie Williams, United Stctes
District Judge, for the District cf Central
California, sitting by designation.
l. One plaintiff's claims were dismissed
prior to trial.
2. Appellants aiso contend that the trial
court erred in calculating the applicable
statute of limitations. The court established
the applicable period by subtracting 180 days
from the date of the initial complaint filed
with the EEOC. The court refused to apply
the 300 day limit available in states which
have a qualified compliance agency because
there was no evidence that appellants had
ever filed with the state. Appellants assert
that filing with the state was not a prerequisite
for extending the limitations period. We
conclude that the trial court should have
applied the 300 day limit.
ae
,
42 U-S.C. § 2000e-5(c) provides that
when there is a qualified state agency, a
complaint must first be filed there. The
statute also provides that the limitations
period for filing with the EEOC is extended
from 180 to 300 days when the aggrieved party
has initiated a complaint with a qualified
state agency. Id. § 2000e-5(e). The Supreme
Court has held that the statute is satisfied
when the Commission refers the complaint to
the state agency on behalf of the person aggrieved.
Love v. Pullman Co., 404 U.S. 522, 525, 92
S.Ct. 616, 618, 30 L.Ed.2d 679 (1972). Moreover,
the EEOC has imposed upon itself the duty of
making such a referral in every case where
there is a qualified state agency. 29 C.F.R.
§ 1601.13 (1980) as revised by 46 Fed.Reg.
43,040 (1981). This court has held that a
complainant is not charged with the failure
of the EEOC to fulfill procedural requirements
imposed upon it by statute. Watson v. Gulf &
Western Industries, 650 F.2d 990, 992-93 (9th
Cir. 1981). The same principle relieves the
complainant from the consequences of a failure
of the EEOC to follow the procedures it has
imposed upon ‘itself. Cf. Ramirez v. National
D Cc rp., 586 F.2d 1315,
1320 (9th Cir. 1978). Filing a complaint
with the EEOC placed the Commission under a
duty to refer the complaint to the California
compliance agency. The complainant is not to
be prejudiced by the EEOC's failure to fulfill
its duty. Roberts v. Arizo rd of nts,
661 F.2d 796 at 799 (9th Cir. 1981). This
conclusion does not automatically invoke the
300 day limit, however. The statute further
provides that no charge may be filed with the
EEOC until the expiration of 60 days after
proceedings have been commenced with the state
agency. 42 U.S.C. §2000e-5{c). The Supreme
Court held in Mohasco Corp. v. Silver, 447
U.S. 807, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980),
that the effect of this provision is to render
untimely any charge originally filed with the
EEOC more than 240 days after the act complained
of, unless the state agency actually disposes
of the referred charge before a total of 300
days has elapsed. Id. at 814 n.16.
This court has ruled, however, that
the Mohasco rule is not to be applied
retroactively, and that the 300 day limit
applies to charges filed with the EEOC in
deferral states on or before June 23, 1980.
Wiltshire v. Standard Oil Co. of California,
652 F.24 837, 842 (9th Cir. 1981). Charges
in the present case are therefore subject to
the 300 day limit.
3. We emphasize that a continuing violation
exists only if Owens-Illinois’ promotion policy
was discriminatory and continued in effect
into the permissible limitations period. A
continuing violation should be distinguished
from the continuing impact of a past, yet
discrete and no longer existent discriminatory
act. The fact that some employees were harmed
by the continuing impact of Owens-Illinois’
discrete incidents of prior discrimination
that occurred before the ‘imitations period
is not sufficient. Compare United Air Lines
Inc. v. Evans, 431 U.S. 553, 558, 97 S.Ct.
1885, 1889, 52 L.Ed.2d 571 (1977) (continuing
impact of past violation not actionable) with
Reed v. Lockheed Aircraft Corp., 613 F.2d
757, 760 (mere continuing impact must be dis-
tinguished from continuing violations; continuing
violations are actionable, continuing impact
from a past violation is not).
4. Appellants introduced two statistical
studies which classified employees by race.
These studies indicated that few blacks were
employed as managers or craftsman and that
the majority of blacks worked as service workers
(janitors and matrons) and laborers. The
district court properly discounted these studies
because they failed to excluded employees
hired prior to July 2, 1965, the effective
date of Title VII for private employers. The
Supreme Court has stated that an employer who
after the effective date of the Act makes all
employment decisions in a non-dicriminatory
manner “would not violate Title VII even if
it had formerly maintained an all-white work
force by purposefully excluding Negroes.”
Hazelwood School District v. United States,
433 U.S. 299, 309, 97 S.Ct. 2736, 2742, 53
L.EBd.2a 768 (1977) (footnote omitted). "To
include pre-Act hires in the statistical
analysis in this case would improperly weigh
the evidence and would tend to show present
discrimination by an employer if it hmd dis-
criminated prior to the effective date of the
Act but had not discriminated after the Act
took effect." EEOC v. United Virginia Bank,
615 F.2d 147, 150 (4th Cir. 1980); see Movement
for Opportunity and Equality v. General Motors
Corp., 622 F.2d 1235, 1245 (7th Cir. 1980).
Appellants also introduced studies
showing statistical disparity in terminations.
This study indicated that 20% of white employees
who left the Oakland plant were fired while
tue ‘orresponding figure for blacks was 48%.
The district court properly concluded that
this study was also invalid. On cross-exami-
nation, one of appellants statistical experts
conceded that although he developed the study,
he did not know what Owens-Illinois classified
as “termination for cause.”
We express no opinion as to appellants’
two wage and pay studies. Appellants’ statistics
indicated that black workers earned significantly
fag Ppl ‘ peta t, al
less than waite workers. Owens-Illinois asserted
that appellants’ studies were methodologically
unsound. In addition, the company claimed
that all wage rates were set pursuant to the
provisions of collective bargaining agreements.
Under questioning by the court, appellants’
counsel admitted that there were no wage dis-
crepancies between whites and blacks or men
and women that were not the result of union
contracts. Reporter's Transcript, Vol. XXXV,
at 4477-78. As is discussed more fully in
the text, infra, the trial court incorrectly
ruled that any action undertaken pursuant to
a collective bargaining agreement was non-
discriminatory. The court therefore discredited
the wage studies as a natural consequence of
its ruling regarding the collective bargaininy
agreements.
5. Appellants’ failure to assert a cause
of action against the union does not provide
Weve cal, pa
a defense to the employer. Whether Owens-
Illinois has fulfilled its responsibility to
protect the Title VII rights of its current
and prospective employees is determined in
terms of its own actions, not in relation to
the actions of others. See Grant v. Bethlehem
Steel Corp., 635 F.2d at 1014; Rosen v. Public
Service Electric & Gas Co., 477 F.2d 90, 95
(3rd Cir. 1973). Nor do we understand appellants
to have conceded that actions taken pursuant
to union contracts were non-discriminatory.
The appellants merely asserted that they had
not sued the unions because the unions were
willing voluntarily to change any practices
found to violate Title VII. keporter's Trans-
cript of Pretrial Conference, 16-19 (June 16,
1978).
6. The trial judge did not indicate whether
his ultimate conclusion that Owens-Illinois
did not discriminate was predicated on appel-
lants' failure to prove a prima facie case by
showing that the company's actual hiring was
statistically disparate, or whether he found
that Owens-Illinois successfully rebutted
appellants’ prima facie case. In any event,
we have concluded that the establishment of a
prima facie case can only be determined upon
remand when the relevant market is properly
established. We have also concluded that
upon the present record, appellants’ statistical
case has not been rebutted.
7. See note 6 supra.
8. In 1973, Owens-illinois was considered
for a government contract by the United States
Energy Research and Development Adminstration
(ZRDA). Prior to awarding the contract, ERDA
examined the composition of the Oakland plant
to determine whether the company was in compli-
ance with the affirmative action goals of
Gxecutive Orders 11246 and 11375. Owens-
~60-
Illinios considered the labor pool for all
non-managerial and professional jobs to be
the labor force for the city of Oakland. ERDA
accepted Oakland as the relevant market, but
considered the population a more accurate
reflection of the percentage of blacks available.
9. The trial court's pretrial order is
ambiguous on this point. It states: "The
trial will be to a jury, which will consider
questions of both liability and remedy. The
trial will not be bifurcated. The jury verdict
will be advisory as to all matters the jury
considers, except the matters of: (a) whether
Gefendant was guilty of such racial discrimi-
nation as to make it liable for § 1981 compen-
satory and punitive damages: (b) the amount
if any, of such compensatory and punitive
damages." Excerpt of Record at 72.
The reporter's transcript for the session
which discussed whether the class claims would
-6l-
be tried to the jury is similarly unclear,
although subsequent references indicate that
the district judge felt that he had disallowed
all class claims for legal relief. See Reporter’:
Transcript, 5-8 (Oct. 10, 1978); Vol. XXXV,
at 4472-75.
10. Even if the back pay remedy is legal
in nature, appellants were nevertheless not
entitled to a jury trial, because it is here
incidental to equitable claims. Beacon Theater,
Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948,
3 L.Ed.2d 988 (1959) and Dairy Queen Inc. v.
Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d
44 (1962) preserved the right to jury trial
where there was a joinger of both legal and
equitable causes of action, not in a situation
where a single cause of action must be charac-
terized as either legal or equitable. See
Slack v. Havens, 522 F.2d 1091, 1094, n.4
(9th Cir. 1975).
ll. Buc see text & note 8 supra.
12. The Oakland plant has approximately
350 different job classifications. There is
no “journeyman” class. This terms [sic] was
created by appellants’ counsel who combined
numerous skilled positions to create this
category. Owens-Illinois attacked this category
as an arbitrarily contrived, meaningless amalgam.
See Reporter's Transcript, Vol. XXXIII, at
4076-81. The absence of female hires in the
component categories is not, however, without
probative force.
13. See note 2 supra.
14. Owens-Illinois must consider, among
other factors, the applicant's job qualifica-
tions, disciplinary record, attendance and
medical record, length of service (although
seniority is not required to he a controlling
factor), experience, education, prior training,
job performance ratings, interest in the position
-$3-
:
’
.
i
4
- eed
—--
’
and any other factor unique to the vacancy.
Naturally, the district court's list is not
exclusive. We therefore highlight one factor
which the trial judge did not include but
which Owens-Illinois should consider in deter-
mining which applicant is “best qualified" -
she benefit from and desirability of having
an integrated and diverse work force. Cé£.
Regents of University of California v. Bakke,
438 U.S. 265, 311-14, 98 S.Ct. 2733, 2759-
60, 57 L.Ed.2d 750 (1978).
ie
“ .
:-
‘
e hee
APPENDIX C
IN THE UNITED STATES COURT OF APPFALS
FOR THE NINTH CIRCUIT
Floyd W. WILLIAMS, Jr., et al.,
Plaintiffs/Cross~Appeliees,
Alice Brice,
Plaintif£/Appellant/Cross~-Appellee,
Robert Harold and Aunita Jones,
Plaintiff-Intervenors/Appellants/
Cross-Appellees,
and
Charlotte Harris, et al.,
Plaintiff-Intervenors/Cross-Appellees,
Vv.
OWENS~-ILLINOIS . INC *?f
Defendant/Appellee/Cross- Appellant.
No. 79-4410
ORDER AMENDING OPINION,
DENYING REHEARING AND REJECTING
SUGGESTION FOR REHEARING EN BANC
Appeal from the United States District Court
for the Northern District of California
Honorable Robert H. Schnacke, Judge, Presiding
Argued and Submitted: April 13, 1981
BEFORE: TANG and CANBY, Circuit Judges, and
WILLIAMS,* District Judge
The opinion filed in this case on
January 11, 1982, slip op. at 129, is modified
as follows:
r y
eek pit
At slip op. at 138, left column, second
paragraph, after the second sentence ending
" . . . referred by union hiring halls" and
before the sentence beginning “The trial court
ruled .
- «", insert the following sentences:
It is true that Title VII does provide
certain limited defenses to an employer.
See n. 15, infra. The district court's
ruling went beyond the scope of those
defenses, however. To the extent that
the district court made findings of
fact based on this ruling, those findings
must be redetermined on remand in light
of the proper application of law.
P ~ w 2 5 ee
F , 50 U.S.L.W. 4425, 4429
(Apr. 27, 1982).
ee Ee
At slip op. at 139, at the end of foot-
note 6, without paragraphing, add the following
sentences:
For example, in Finding of Fact No. 7,
the district court concluded that “no
finding can be made that Owens-Illinois
discriminated against Black persons in
hiring from a comparison of the civilian
work force statistics with the Oakland
plant statistics." 469 F.Supp. at 72.
Because the district court erred in
its selection of the relevant labor
market, this finding of fact must be
redetermined after the relevant labor
market is properly selected.
At slip op. at 143, right column, first
full paragraph, after the first sentence ending
". . - collective bargaining contract" and
before the sentence beginning “Accordingly we
remand. . .", insert the following sentence:
Any findings of fact of no discrimination
that are based on these rulings must
be reconsidered on remand.
At slip op. at 147, right column, at
the end of the first full paragraph after the
word “defense”, insert an indication for a new
footnote 15. Then in the margin add the fol-
lowing footnote:
15. Im ruling that an employer's dis-
crimination is not removed from the
prohibition of Title VII merely because
it is compelled by a collective bar-
gaining agreement, we do not preclude
the employer from asserting on remand
the defense of action taken pursuant
oa
to a bona fide seniority system or
other defenses provided by § 703(h) of
Ti.le VII, 42 U.S.C. § 2000e-2(h).
See California Brewers Ass'n. v. Bryant,
444 U.S. 598 (1980); International
Brotherhood of Teamsters v. United
States, 431 U.S. 324 (1977); Pullman-
Standard v. Swint, U.S. ,
50 U.S.L.W. 4425 (Apr. 27, 1982).
The full court has been advised of the
proposal to amend the opinion, and of the sug-
gestion for en banc rehearing, and no judge
has objected to the amendment or requested a
vote on the suggestion for rehearing en banc.
Fed. R. App. 35(b).
The petition for rehearing is denied,
and the suggestion for a rehearing en banc is
rejected.
+
T
toe
pas : j :
tas? aes : é fy
(a? Ce é ~ Pa ee - i’ Loe, OP ak ee ae, i
*The Honorable David Williams, United
| States District Judge, for the District of
‘Central California, sitting by designation.
Rule 52, Federal Rules of Civil Procedure. Findings
by the Court.
(a) Effect. In all actions tried upon the
facts without a jury or with an advisory jury,
the court shall find the facts specially and
State separately its conclusions of law thereon,
and judgment shall be entered pursuant to Rule
58; and in granting or refusing interlocutory
injunctions the court shall similarly set forth
the findings of fact and conclusions of law
which constitute the grounds of its action.
Requests for findings are not necessary for
purposes of review. Findings of fact shall
not be set aside unless clearly erroneous, and
due regard shall be given to the opportunity
of the trial court to judge of the credibility
of the witnesses. The findings of a master,
to the extent that the court adopts them, shall
be considered as the findings of the court.
If an opinion or memorandum of decision is
ole
filed, it will be sufficient if the findings
of fact and conclusions of law appear therein.
Findings of fact and conclusions of law are
unnecessary on decisions of motions under Rules
12 or 56 or any other motion except as provided
in Rule 41(b).
42 U.S.C. §2000e-5. Enforcement Provisions.
Time for filing charges; time for service of
notice of charge on respondent; filing of
charge by Commission with State or local agency
| (e) A charge under this section shall
be filed within one hundred and eighty days
after the alleged unlawful employment practice
occurred and notice of the charge (including
the date, place and circumstances of the alleged
unlawful employment practice) shall be served
upon the person against whom such charge is
made within ten days thereafter, except that
in a case of an unlawful employment practice
with respect to which the person aggrievec has
initially instituted proceedings with a State
or local agency with authority to grant or
%
oie te eel
S Ne J
seex relief from such practice or to institute
criminal proceedings with respect thereto upon
receiving notice thereof, such charge shall be
filed by or on behalf of the person aggrieved
within three hundred days after the alleged
unlawful employment practice occurred, or within
thirty days after receiving notice that the
State or local agency has terminated the
proceedings under the State or local .aw, which-
ever is earlier, and a copy of such charge
shall be filed by the Commission with the State
or local agency.
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.