Appendix — Harris-Teeter Super Markets, Inc. v. Lilly

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| [oes spree Coun US.

83 1479 e

No.

MAR 6 (984

ALEXANDER L. STEVAS,

CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

HARRIS-TEETER SUPER MARKETS, INC.,

Petitioner

V. ’

PAUL LILLY, individually and on

behalf of all others similarly

situated

and

CHRISTOPHER McKINNEY, ET AL

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

APPENDIX

TABLE OF CONTENTS

Page Number

RULING ON PETITION FOR

REHEARING, IN THE UNITED

STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT,

DECEMBER 7, 1983 - 1-2

OPINION AND DECISION, IN

THE UNITED STATES COURT

OF APPEALS FOR THE FOURTH

CIRCUIT, OCTOBER 14, 1983 - 3-54

FINDINGS OF FACT AND

CONCLUSIONS OF LAW, IN

THE UNITED STATES DISTRICT

COURT, JULY 13, 1982 - 55-183

JUDGMENT, IN THE UNITED

STATES DISTRICT COURT,

JULY 13, 1982 - 184-201

ORDER ON REFERENCE TO A

MASTER, IN THE UNITED

STATES DISTRICT COURT, |

JULY 13, 1982 - 202-215 :

ORDER, IN THE UNITED

STATES DISTRICT COURT,

AUGUST 12, 1982 - 216-219

YD oe Pe” tee oe ot

F n OP ee ee Oe aT OT 5

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 82-1831

Paul Lilly, etc.,

et al. Appellees,

and

Philip Reed, et al, Plaintiffs.

versus

Harris-Teeter Super-

market, a corporation, Appellant.

Appeal from the United States District

Court for the Western District of

North Carolina, at Charlotte.

James B. McMillan, District Judge.

Upon consideration of the defendant-

appellants’ petition for rehearing and sug-

gestion for rehearing in banc, and no judge

having requested a poll on the suggestion

for rehearing in banc,

IT IS ADJUDGED AND ORDERED that the

petition for rehearing is denied.

+ 8 3

i Entered at the direction of chief

5 Judge Winter for a panel consisting of Chief

i Judge Winter, Judge Sprouse, and Judge 4

| :

, Kellam. 4

FOR THE COURT, |

s/ WILLIAM X. SLATE, II f

: DEC’? 1983

3 U. S. Coo of AGdeais 2

4 Fourth Crew ‘9

‘ie

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 82-1831

Paul Lilly, individually and on

behalf of all others similarly

situated, Christopher McKinney,

John LeGrand, Ken Bailey, Frank

Sullivan, James Mobley, Jerome

Gary, Curtis Jones, Roy Torrence,

John Johnson, Willie Hunt,

Roosevelt Patterson, Willie

Covington, Michael McVay,

Richard Gregory, individually and

on behalf of all others similarly

situated, Edward Porter,

individually and on behalf of

all others similarly situated,

Appellees,

and

Phillip Reed, Shirley Gatewood,

Woodrow McManus, Hazel Fisher,

William Carrothers, Tresevant

Goodwin, Richard Burch, Mack

Ervin, Barbara Anderson,

Austin Pharr, Therrell McMoore, ‘

Plaintiffs,

Vv.

Harris-Teeter Supermarket,

a corporation,

Appellant. 1

Appeal from the United States District Court

for the Western District of North Carolina,

at Charlotte. James B. McMillan, District

* C/A C-C-76-191; C-C-79-130; C-C-79-

Argued April 12, 1983

Decided October 14, 1983

Before WINTER, Chief Judge, SPROUSE, Circuit

Judge, and KELLAM,* District Judge.

John 0. Pollard (Richard F. Kane, Blakeney,

Alexander § Machen on brief) for Appellant;

Michael A. Sheely (Sheely and Blum on brief)

for Appellees.

® Honorable Richard 3. Kellam, Senior

* United States District Judge for the East-

ern District of Virginia, sitting by des-

ignation.

49.

WINTER, Chief Judge:

In this class action charging racial

discrimination in employment, Harris-Teeter

Super Markets, Inc., (Harris-Teeter) ap-

peals from a judgment of the district court

entered upon findings that it had engaged

in a pattern or practice of racial discrimi-

nation in terminations and promotions at its

Mecklenburg County, North Carolina ware-

house and retail stores, and that it had

been guilty of specific instances of racial

discrimination against thirteen of the named |

individual employees. We conclude that the

suit was properly certified as a class action

with respect to both promotions and termina-

tions, and that various individual plain-

tiffs were properly permitted to intervene.

We affirm the finding of a pattern or prac-

tice of racial discrimination in termina-

tions, but reverse the finding of a pattern

or practice of discrimination in promotions.

We affirm the judgments of discrimination

as to three named plaintiffs, but remand for

further proceedings as to the individual

plaintiffs alleging discrimination in pro-

motions.

Harris-Teeter is a retail grocery

chain with offices, retail stores, and a

warehouse located in Mecklenburg County. In

January 1975, Harris-Teeter discharged Paul

Lilly, a black warehouse employee. Lilly

filed a charge with the Equal Employment

Opportunity Commission (EEOC) alleging that

he had been discharged for protesting racial-

17 discriminatory treatment on the job and

that Harris-Teeter was engaged in systematic

~ discrimination against blacks in its termi-

nat ion practices. Lilly later amended his

EEOC charge to include allegations of syste-

matic discrimination against blacks in hir- 7

ing, promotions, personnel procedures,

terminations, and supervisory practices.

Lilly was subsequently issued a right-to-

sue letter by EEOC and, in June 1976, he

commenced the present action.

Lilly's complaint, brought under both

42 U.S.C. §§ 1981 and 2000e et seq., alleged

that he had been terminated because of his

race and in retaliation for protesting ra-

Cial discrimination. He also claimed to

represent a class of black Harris-Teeter

employees who, from July 1974 on, had suf-

fered racial discrimination in hiring, pro-

motions, interviewing, terminations, super-

vision, and discipline. In support of his

subsequent motion for class certification,

Lilly presented statistical evidence pur-

porting to show disparities in job classifi-

cation and cited specific examples of al-

leged discrimination in promotions and ter-

minations. The district court thereupon

tentatively certified the class as request-

ed.

In April 1979, twenty black Harris-

Teeter employees filed a joint motion for

permission to intervene as plaintiffs, in

order to present their individual claims of

racial discrimination. The claims of these

individuals encompassed alleged discrimina-

tion in terminations, promotions, job place-

ment, pay, and transfers. Although none of

these individuals had exhausted their ad-

ministrative (EEOC) remedies, the district

court granted the motion for joint interven-

tion. In addition, the district court con-

solidated the case with those of two other

black Harris-Teeter employees, Gregory and

Porter, who were alleging racial discrimina-

tion in demotions and hiring, respectively.

Gregory and Porter had exhausted their BEOC

remedies prior to filing their individual

suits. Subsequently, the district court

certified all twenty intervenors and Gregory

as Class representatives.

A bench trial was held from January

through March, 1980. In August, 1980, the

district court filed a "Memorandum of Deci-

sion," in which the court found a generalized

pattern of racial discrimination in hiring,

promotions, and terminations. As practices

that effectuated this discrimination, the

court found that there were no written job

descriptions, promotion criteria, job evalu-

ations, or list of employees wanting to

change jobs, that job openings were not

posted, that the company rule that limited

eligibility for promotions to employees in

the same department an? shift as the opening

was strictly enforced as to blacks but not

as to whites, that refusals by blacks to

take on jobs were carefully remembered, al-

though they were never asked if they had

changed their minds, and that claimed pre-

vious job experience of blacks was either

forgotten or disbelieved, while that of

whites was credited and utilized. The

district court also found that the statisti-

cal evidence broadly supported the court's

conclusion from the individualized testi-

mony that blacks had less chance of getting

good jobs and promotions than did whites.

The district court, in addition, found that

individual instances of discrimination had

been demonstrated as to fourteen of the named

plaintiffs, but not as to the other ten.

Finally, the district court instructed

plaintiffs' counsel to prepare proposed

findings of fact and conclusions of law as

to the class-wide issues and as to the pre-

vailing individuals; defense counsel were

instructed to do likewise for those indivi-

duals found not to be entitled to relief.!

Plaintiffs' counsel subsequently sub-

mitted lengthy proposed findings of fact and

conclusions of law; the district court re-

quested that they be condensed and invited

defense counsel to comment on the proposed

opinion. Defendant chose not to do so.

Plaintiffs then submitted a revised draft.

The district court returned this draft to

plaintiffs in marked-up form, instructing

them to incorporate various editorial

changes and to reverse the previous finding

of discrimination as to one of the inter-

venors. Although this was the only major

substantive change, notations on the marked-

up draft show that the district court checked

the proposed findings of fact against the

ini:

was

ve ton ee planes on as to

fs ntiy_sdepeed by. appeal. os *

-12-

testimony in the record and approved each

paragraph individually. The district court,

in returning the draft, again requested that

defendant submit any comments on or objec-

tions to the proposed opinion. Defendant

once again chose not to do so. The proposed

opinion, as amended, was then adopted by the

district court.

In that final opinion, the district

court first made permanent its class certifi-

cation order. It found that the claims of

persons alleging discrimination in promo-

tions and terminations were sufficiently

similar to justify single-class treatment.2

2In its judgment entered July 12,

1982, the district court certified the class

as:

Jones, Johnson,

Bailey and LeGrand;

warehouse’ by Harris -

510.

The district court excluded from the certi-

fied class, however, employees at the com-

pany's offices and employees alleging dis-

crimination in hiring for lack of proper

Class representatives. As to the merits of

the terminations claim, the court found that

the supervisory force was overwhelmingly

white and exercised virtually unlimited dis-

cretion, in that the only written statement

of Harris-Teeter's termination policy was a

list of “don'ts" whose violation might or

might not be grounds for an indeterminate

amount of discipline. The district court

then found that both the statistical data,

which showed that the actual number of blacks

involuntarily terminated for cause from 1974

(cont.)

{said warehouse and stores] at any time

since July 20, 1974 who are not currently

employed, all of whom may have been or

may be subjected to racial discrimination

by Harris-Teeter in its employment poli-

cies and practices in reference to termi-

nations and promotions.

518.

through 1978 was almost ten standard devia-

tions above what would be expected from their

proportion of the workforce, and the testi-

mony at trial, which revealed several instan-

ces in which blacks had been terminated while

equally or even more serious misbehavior by

whites had been tolerated, demonstrated that

this unlimited discretion had been exercised

in a racially discriminatory manner. Find-

ing no satisfactory explanation from Harris-.

Teeter for the statistical disparities and

crediting the direct evidence of discrimina-

tory treatment, the disrict court concluded

that Harris-Teeter had engaged in a pattern

or practice of racial discrimination in its

terminations policy.

As to the merits of the promotions

Claim, the district court again found that

the overwhelmingly white supervisory force

had wielded unlimited discretion, in that

there were no written job descriptions or 4

regular system of job performance evalua-

tion, job posting was begun only in 1979,

and the promotions criteria (such as "atti-

tude" and initiative“) were vague and sub-

jective. The district court then found that

both the statistical evidence, ieh showed

that the black promotion rate was less than

70 percent of the white promotion rate, and

the direct testimony revealed that this dis-

cretion was discriminatorily exercised. The

court rejected Harris-Teeter's explana-

tions, ruling that the company's "same.

department/same shift“ policy had been

applied only to blacks, that only the refusal

by blacks to take certain jobs was remembered

and held against them, although they were

never asked if they had changed their minds,

and that previous job experience of blacks

was ignored or disbelieved while that of

whites was utilized. In addition, the dis-

trict court found, on the basis of

3 x " ~ aaa

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statistical data, that the number of blacks

hired by Harris-Teeter was some five to seven

standard deviations below what would be ex-

pected from their proportion of the avail-

able pool of applicants, and that this evi-

dence of discrimination in hiring supported

the conclusion that Harris-Teeter discrimi-

nated in promotions. n the basis of all

of this evidence, the district court conclud- ™

ed that Harris-Teeter had engaged in a pat-

tern or practice of racial discrimination

in its promotions policy.

The district court then proceeded to

examine the . individual discrimination

Claims of the named plaintiffs. In each

case the court applied the analytic frame-

work specified in Texas Department of Con-

munity Affairs v. Burdine, 450 U.S. 248

(1981).5 The court found that Harris-Teeter

nad discrininated on the basis of race as

to Porter (hiring), Reed, Mobley, McKinney,

Torrence, Patterson, Jones, Sullivan,

Bailey, and LeGrand (promotions), Gregory

(demotion), Gary (promotion and transfer), |

and Lilly (termination). The district court

then entered judgment, ordering Harris-

Teeter to reinstate or offer promotions to

the prevailing named plaintiffs and to estab-

lish less discretionary systems of prono-

tions and terminations, referring the case

to a special master for the determination

of back pay for the named plaintiffs and of

Zunder Burdine, plaintiff must first

establish a prima Facie case of discrimina-

tory treatment, defendant must then articu-

late a legitimate, non-racial reason for its

practices, next the plaintiff: must be given

the opportunity to prove that the defend-

ant’s explanation is pretextual, and then

3 the court must decide, based on all the

5 evidence and with the ultinate burden of

R poresnsion on plaintiff, whether the chal-

ed treatment was based on intentional

racial discrimination.

» RRS 9

ee e i

1 Se n

-18-

appropriate relief for the class aeabexs,

and ruling that plaintiffs' counsel was en-

titled to an award of attorneys' fees. Xs

to this final point, the district court

thereupon entered an award of approximately

$86,000 in inter in at torneys fees.

Harris-Teeter now appeals from the

findings of liability on the issues of class-

wide discrimination as to both promotions

and terminations and individual discrimina-

tion as to each named plaintiff and from the

amount of the interim attorneys' fees award.

II.

Harris-Teeter first argues that the

ö district court failed to meet its obligation

under Federal Rule of Civil Procedure 52(a)

to "find the facts specially and state sep-

arately its conclusions of law thereon" when

it adopted essentially verbatim the proposed

“4

;

opinion prepared by plaintiffs' counsel. We

cannot accept this disingenuous argument.

“a 7 r a 2. 7 . — . at

be > 1 7) AY) ae T. W .

never responded. That the presentation was

-19-

It is true, of course, that we repeatedly

have cautioned district courts against the

practice of simply adopting findings pre-

pared ex parte by one of the litigants. See,

e.g., EEOC v. Federal Reserve Bank of Rich-

mond, 698 F. 2d 633, 639-41 (4 Cir. 1983)

(citing cases). As we stated in Federal

Reserve, "the findings must be based on

something more than a one-sided presentation

of the evidence, [because] finding

facts under Rule 52(a) requires the exercise

by an impartial tribunal of its function of

weighing and appraising evidence offered,

not by one party to the controversy alone,

but by both." Id. at 640. In the present

case, however, the district court twice spe-

cifically requested that defense counsel

submit comments on, and objections to, the

findings of fact and conclusions of law

submitted by the plaintiffs, and defendant

-20-

one-sided is therefore attributable not to

the district court's procedure, but rather

to defendant's own choice. We note, in

addition, that the district court reversed

its initial finding as to one intervenor

during its review of the proposed opinion

and that it checked the cited evidence in

the proposed findings against the actual

trial transcript, approving each paragraph

of the findings one by one. Under these

circumstances, we do not think that defend-

ant's argument that the district court fail-

ed to meet its responsibilities under Rule

| 52(a) is well taken.

; As a matter of general practice, how- :

ever, we do not approve of the issuance by

: the district court of a memorandum of its |

ultimate findings in sweeping terms followed

by a request to the parties to prepare detail-

ed findings as to the issues upon which each

side prevailed. The proper practice is for

: 2

1 rie rene

the district court, prior to reaching and

announcing any decision, to request proposed

findings from both parties as to all of the

disputed factual and legal issues, prefer-

ably with references to the record support-

ing the fact requested to be found, and then

to prepare its decision based upon its anal-

ysis of these proposed findings and the

evidence of record. By utilizing this proce-

dure, the district court can be certain of

obtaining -- and not merely of having re-

quested -- both parties' views on each dis-

puted issue and their citation to evidence

on both sides of each factual question. In

all future cases in which the district court

concludes to request proposed findings from

counsel, this latter method should be fol-

lowed.

111.

Harris- Tester next argues that the

district court erred in certifying this case

2%.

as a class action with respect to both termi-

nations and promotions.4 As to the former,

Harris-Teeter contends that although Lilly

would have been an adequate representative

for a class of discharged black employees

who similarly, in connection with their dis-

charges, suffered racial discrimination vio-

lative of both § 1981 and Title VII, the

existence of such a class was never demon-

strated. In particular, Harris-Teeter ar-

gues that Lilly never showed any facially

neutral termination policy that had a "dis-

parate impact" on blacks and that, with

respect to possible "disparate treatment,"

Lilly alleged only a few isolated instances

of discriminatory treatment.

The prerequisites to class certifica-

tion under both Title VII and g§ 1981 are

anarris - Teet er

F arama

-23-

those generally applicable under Federal

Rule of Civil Procedure 23(a). See General

Telephone Co. v. Falcon, 457 U.S. 147 (1982)

(Title VII); Stastny v. Southern Bell Tel.

§ Tel. Co., 628 F. 2d 267 (4 Cir. (1980)

(Title VII); Gonzalez v. Southern Methodist

University, 536 F. 2d 1071, 1072-73 (S$ Civ:

1976) (§ 1981), cert. denied, 430 U.S. 987

(1977). Therefore, plaintiffs need not, at

the time of the motion for class certifica-

tion, demonstrate by statistical evidence

that blacks have been terminated at a higher

rate than have whites, or any other differen-

tial. Certification is only concerned with

the commonality (not the apparent merit) of

the claims and the existence of a suffi-

ciently numerous group of persons who may

assert those claims (and, as were conceded

here, the adequacy of Lilly and typicality

of his claim). As to the commonality require-

ment, the complaint plainly alleged a

520.

practice of disparate treatment in the exer-

cise of unbridled discretion, thus raising

questions of law and fact common to all dis-

charged black employees. And as to the

numerosity requirement, the statistics at

trials revealed that 229 black employees

were involuntarily terminated from 1974

through 1978, easily enough to demonstrate

the existence of a class. We conclude,

therefore, that the class with respect to

terminations, under both § 1981 and § 2000e,

was properly certified.

As to the propriety of certifying that

class to include persons discriminated

against with respect to promotions, Harris-

Teeter contends that these claims should not

SIt is true that the numerical evi-

dence presented at the time of tentative

Class certification did not reveal how many

blacks had been discharged by Harris-Teeter,

and therefore the tentative certification

may have been improper, but the numerical

evidence at trial, as discussed in the text,

satisfied the numerosity requirement.

* Fade

i Von) ee

-25-

have been included for lack of a proper class

representative.© Lilly, although limiting

his personal claim to alleged discrimination

in his termination, claimed in his complaint

to represent all black Harris-Teeter em-

ployees who suffered racial discrimination

with respect to promotions as well, and the

district court certified him as such.

Determination of whether Lilly's

Claim is "typical" of the unpromoted employ-

ees' claims is guided by the Supreme Court's

recent decision in General Telephone v. Fal-

con, 457 U.S. 147 (1982), announced subse-

quent to the district court's decision. In

Falcon, the Court rejected the Fifth Cir-

cuit's “across the board" rule that an

6Here too the commonality and numero-

sity requirements were satisfied. The con-

plaint — 1 0 disparate treatment in the

promotions decisions, thus raising common

questions of law and fact. The numerosity

requirement was met by the fact that Harris-

Teeter employed some two hundred blacks and

romoted over one hundred employees annual-

? *

A G * 3 1

-26-

employee who suffers racial discrimination

in any employment practice automatically may

maintain a Title VII class action for all

company employees as to’all discriminatory

employment practices. But the Court also

rejected those cases that had interpreted

its decision in Bast Texas Motor Freight

System, Inc. v. Rodriguez, 431 U.S. 395

(1977), as requiring that the class represen-

tative necessarily have suffered discrimina-

tion in precisely the same employment prac-

tice as did all the other members of the

class.’ Instead, the Court reiterated that

each case must turn, based upon its particu-

lar facts, on whether the individual Title

VII claim of the named plaintiff and the

Claims of the Title VII class he purports

7This would seem to cast doubt on the

continued vitality or sweep of the language

of some of our recent cases. See, e.

Abron v. Black § Decker, Inc., 654 F. 2d 881

(4 Cir. 1981); Hill v. Western Blec. Co.

596 F. zd 99 (4 Cir.), cert. denied, 444

U.S. 929 (1979). samara anus

3 }

Se LS, Tee 4 1 1 * «i> eee) »

to represent raise common questions of law

or fact.8

When Falcon is applied here,9 it is

apparent that Lilly's individual (and class-

wide) terminations claim and the promotions

Claims overlapped on several important

pieces of proof: the absence of written,

objective criteria for prondtions and termi-

nations, the virtual absence of regular job

performance evaluations, and the presence

8such a focus serves two important

purposes. First, satisfaction of the common-

ality requirement ensures that a primary

justification for the class action -- effi-

ciency in the adjudication of duplicative

claims - will be present. Hence the empha-

sis on common issues of proof. Second,

commonality of proof serves to assure ade-

quacy of the representation that the absent

Class members will receive, in that the named

representative will have the greatest incen-

tive aggressively to discover and present

evidence needed for his own personal claims.

9The appropriateness of class certifi-

cation of a § 1981 claim also depends

the Rule 23 criteria. See, e.g., Gonzalez

v. Southern Methodist l 536 F. 2d

430 U.S. 987 (1977). Py

-28-

of an ‘overwhelmingly white supervisory

force. 10 The Suprene Court recognized in

Falcon that these conditions could justify

single class treatment for more than one

employment practice:

Significant proof that an employer

4 — under a general 8 of

discrimination conceivably could

justify a class of both 1 and

employees if the discrimination mani-

fested itself in hiring and promotion

practices in the same general fashion,

) such as through entirely subjective

: decisionmaking processes.

457 U.S. at 159 n. 15. But plaintiffs'

Class-wide promotion claim here deviated

from a claim of unfettered discretion dis-

criminatorily exercised because of the alle-

gations that defendant put substantial

weight on prior work experience and that

defendant treated blacks and whites differ-

1 ently in terms of believing and utilizing

10 Unfortunately, it is not wholly

clear from the record whether the supervi-

sors who made the decisions regarding promo- |

tions were the same people who made the

decisions regarding terminations

- 1

4) aoe 2 I +i ee

=29-

that prior work experience. There was also

an indication that the discretion in promo-

tions was further limited by a "same depart-

ment/same shift“ policy, which vas alleged

to have been enforced only as to blacks. 11

These charges raised significant issues of

proof separate from those evidentiary issues

implicated by the terminations claim. Thus, —

although the question is a very close one,

we conclude that the requirements of Rule 1

23(a) were not met and that Lilly was not a

proper representative for those persons dis-

| criminated against with respect to promo-

f tions under either 5 1981 or Title VII.

3 Plaintiffs argue, however, that even 1

ite Lilly could not represent a class

llwe of course give this factor less

weight because it was largely raised by

_ Harris-Teeter as a justification for certain

instances of refusals to promote blacks,

rather than by plaintiffs in their certifica-

tion motion, and because it was regarded by

the district court as, arguably, a pretext —

developed after the fact. By

PYRG cept N

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Bass

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including promotions, eleven of the individ-

uals whose petitions to intervene were grant-

ed by the district court were proper repre-

sentatives for a promotions class. These

eleven individuals all advanced individual

claims of discrimination in promotions and

were certified as class representatives by

the district court; eight ultimately pre-

vailed on their promotion claims. In support

of this position, plaintiffs cite Muskelly

v. Warner § Swasey Co., 653 F. 2d 112 (4

Cir. 1981), which approved the intervention

of an individual claiming discrimination in

hiring into an across-the-board class action

brought by another individual whose personal

Claim involved the employer's allegedly

wrongful failure to promote him, in order

for the former to become the proper represen-

tative of the “hiring” class and to assert

81.

his own hiring claim. In response, Harris

Teeter argues that because these individuals

never exhausted their EEOC remedies, the

district court never should have let them

intervene in the first place.12

With respect to this question, we deem

it necessary to separate the Title VII claims

from the § 1981 claims. As to the promotions

Claims brought under 42 U.S.C. § 1981, ex-

haustion of EEOC remedies is not a prere-

quisite to filing suit. See Johnson v.

Railway Express Agency, Inc., 421 U.S. 454,

460-61 (1975). We therefore conclude that

the intervenors were properly permitted to

intervene with respect to the § 1981 promo-

tions claims, and that they were properly

12 Through this argument, Harris-Tee-

ter of course also contends that the individ-

ual claims of the intervenors never 5 ao

_ have been presented and thus shoud be vacated

fe appeal. ee

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-$2-

certified as class representatives for that

claim.15

We turn next to the propriety of the

district court's order permitting the indi-

viduals to intervene, prior to exhausting

their EEOC remedies, in order to present

individual claims of, and to represent a

class asserting claims of, discrimination

in promotions in violation of Title VII.

The district court's order permitting such

intervention was based on the rule estab-

lished in Oatis v. Crown Zellerbach Corp.,

398 F. 2d 496, 498 (5 Cir. 1968), that class

members may intervene in a Title VII suit

without having exhausted their EEOC

13qithough the § 1981 promotions

Claims of the intervenors and the class they

ae eer were not, therefore, proper un-

. r of 1979, the statutory time limit

for filing these claims was tolled by the

existence of Lilly's lawsuit in which promo-

tions were contained in the putative class. 7

American pipe § Construction Co. v. Utah,

U.S. 538 (1974); Crown, Cork § Seal co.

v. Parker, 51 U. S. . V. 4746 (1983).

remedies. But because we have concluded

that the class represented by Lilly should

not have been certified to include promo-

tions, these individuals were not class mem-

bers at the time they sought to intervene.

Thus, their intervention cannot be premised

on the rule from Oatis relied upon by the

district court.

Alternatively, it is suggested that

intervention to assert promotion claims

under Title VII, without exhaustion, was

proper under the rule from Foster v. Gueory,

Foster held that individuals who are not

class members may intervene in a Title VII

suit without exhausting EBOC remedies if

their claims are so close to the named plain-

tiff's claim that no further purpose would

be served by requiring exhaustion.14 The

oe 14See also Spirt v. Teachers Ins. §

5 r. 1 l. d 627, 641-42

23 0. D.N.Y. 19825. oe

2 8 8 8 e n

«6s

question, said the Foster court, is whether

the

two claims are so similar that it can

fairly be said that no further concil-

iatory purpose would be served by fil-

ing separate EEOC charges [or whether]

the two complaints differ to the ex-

tent that there is a real possibility

that one of the claims might be admin-

istratively settled while the other

can be resolved only in the courts.

Id. at 1322.15

In the present case, Lilly's exhausted

EEOC charge alleged discrimination by Har-

ris-Teeter in promotions as well as in termi-

nations, hiring, personnel procedures, and

supervisory practices. Gregory and Porter,

whose cases were consolidated with the class

1Scf. Hill v. Western Blec. Co., 672

F. 2d 381, 390 n. 6 (4 Cir.) (suggesting

that intervention by persons claiming dis-

crimination in hiring, who had not exhausted

EEOC remedies at the time the class action

was filed by an individual claiming discrimi-

nation in 11 vas proper if the

employer had, by the time the suit was filed,

been given fair notice of, 3 *

to resolve 3 conciliation, the hiring

. 1312 » cert. denied, 74 L. Bd. 2d 294

—

: ee are 2 1 cS a” * * 88 Ae i xi

Sie iar sk ae ok 1 enn 2

ern,, . Me ty en —

—' =

action, had exhausted their EEOC remedies

with respect to their claims of discrimina-

tion in demotions and hiring. Under these

circumstances -- with EEOC remedies as to

termintion, demotions, and hiring claims

exhausted, with Lilly's EEOC charge includ-

ing promotions, and with no indication that

any discrimination claims against the com-

pany could be settled out of court -- we

think that exhaustion by the intervenors of

EEOC remedies with respect to promotions

would have been futile. Although the claims

are not precisely the same and cannot, as

we have indicated, comprise a single class,

we think that they are sufficiently similar

so that it fairly can be said that the failure

successfully to conciliate the three ex-

hausted claims foreshadows an inevitable

lack of success in conciliating the promo- 1

tions claim. We therefore conclude that

exhaustion of EEOC remedies was excused for a

- 36-

the intervenors and that their intervention

was proper. Since eleven of these inter-

venors were proper Title VII class represen-

tatives for a class of persons discriminated

against in regard to promotions, we conclude

that the Title VII promotions claim ulti-

mately was properly certified as a class

act ion. 16

IV.

Harris-Teeter's next challenge is to

the sufficiency of the evidence of a pattern

or practice of racial discrimination with

regard to both terminations and promotions.

As to the former, plaintiffs' statistical

evidence showed that blacks comprised, on

average, 15.7 percent of the Harris-Teeter

workforce from 1974 through 1978, but repre-

sented over 28 percent of the involuntary

16Because Lilly's filing suit of a

class purporting to include promotions toll-

end the limitations period, these claims were

_ timely filed. See supra note 13.

N 5 5 4 8

r= * 2 r — 3 * 7 * * 22 8 * ä

% ͤ , „ et FIP ALY pa . wae}

o $F

terminations during that period. Statis-

tical analysis of the data underlying this

disparity revealed that the number of invol-

untary “for cause“ terminations of blacks

was, over this period,!7 9.71 standard devia-

tions (by the binomial mode1!8) greater than

171f possible, it is highly preferable

to examine the statistical data for the time

riod in combined form, rather than year

y year. Combined data is more likely to

demonstrate the pattern or practice“ of

defendant's policies, whether discrimina-

tory or not. Moreover, by increasing the

absolute numbers in the és», chance will

more readily be excluded e a cause of any

disparities found. For example, if a coin

were tossed ten times in the first day and

came up heads four times, no one would think

the coin was biased (0.632 standard devia- |

tions), but if this same ratio occurred for

a total of 10,000 tosses, of which 4,000 3

were heads, the result could not be attri- :

buted tc chance (20 standard deviations).

18 A8 we have touched upon previously,

there are two common models of statistical

analysis: the binomial model and the hyper-

geometric model. See BEOC v. Federal Reserve

Bank of Richmond, 698 F. 2d 633, 650 (4 Cir. 4

1983). The binomial model is appropriate

where the "selection" (i.e., hiring, pro nos

tion, or termination) of the individuals

does not significantly alter the racial com-

position of the pool from which future selec-

tions are to be made. This would be true,

—

ays

3 > 23

¢ ‘ae PLA ene 4

-38-

would be expected on the basis of chance. 19

Under the test discussed in EEOC v. American

(cont.)

for instance, in selecting 50 people to be

hired for unskilled work from a large city,

because making the selection will not, even

if all those chosen as the process goes along

are white, significantly affect the racial

composition of the applicant pool. The

hypergeometric model, on the other hand, is

cs 5 Pie Ob pay where the selections could sig-

nificantly alter the racial composition of

the pool from which future selections are

to be made (that is, a finite pool). An

example of this would be a situation in which

10 managers are to be promoted from a group

of 30 foremen, of whom half are black and

the other half white. The key distinction

here is that the selection of a white for

the first position will significantly alter

the racial composition of the selection

pee" from 15 of 30 (.500) to 15 of 29 (.517)

lack. Thus, if another white is chosen,

the inference of discrimination will proper-

ly be heightened. See Peterson, Binomial

v. _Hypergeometric” Employee Selection

Models, 3 1 ‘Research — I (April

1983).

The binomial process is probably ap-

propriate here because although the pool of

persons who can be terminated is fixed at

any given time, it is an open pool when

examined over a five year 2 as here,

in that new employees will hired and then

themselves be subject to termination.

19under the binomial model,

inated 3

wie 8 4 f > . F

; r N A n J. is

22 * WS

; *

ote ey ~ ov,

q = — 7 1 71 2 1

1 WFP

4 * <3 . v 7

ns total ‘employees term

-39-

National Bank, 652 F. 2d 1176, 1190-93 (4

Cir. 1981) (citing Hazelwood School District

V. United States, 433 U.S. 299, 311 n. 17

(1977), and Castaneda v. Partida, 430 U.S.

482, 496 n. 17 (1977)), cert. denied, 74 L.

Ed. 2d 186 (1982), because the number of

standard deviations was more than two or

three, this statistical evidence conclusive-

ly ruled out chance as the cause of the

(cont.)

p = black percentage of the re

l-p = white percentage of the workforce

Q = actual number of black terminations

E = expected number of black terminations

= np

s = standard deviation p (1-p)

number of standard doviasicns = (Q-B)/s

Here, * 815, P * 1572, 1p s 8428,

Q = 7229, B = np = 128.12

s = 10. 39, and the number of standard

deviations = 9.71

-40-

disparity in the termination rates. 20

In addition to this statistical evi-

dence, the district court found that Harris-

Teeter's terminations policy was highly dis-

cretionary2! and had in specific instances

been applied unevenly to blacks as against

whites. The district court credited testi-

mony that whites received disciplinary warn-

ings, if at all, only after extensive ab-

sences or tardiness, while blacks, including

Lilly, were terminated for insubstantial

20By conclusively ruling out chance

as the cause of the disparity in the termina-

tion rates, plaintiffs thereby made out a

prima facie case of class-wide discrimina-

tion, thus shifting the burden to Harris-

Teeter to come forward with a credible lawful

explanation for the disparity.

2Irne fact of this discretion is it-

self relevant. See Sledge v. J. P. Stevens

‘ Co., 58S F. N 625, 635 (4 Cir. 1978)

"where ‘strong statistical] proof is cou-

2 1 — the a based

‘a ring and other employment s upon

the subjective opinions of white — rvi-

_ sors, the trial court is entitled to infer,

41 n 3 “fa

es scr na c . Oe *

11575). % S. Sonted,

7 — P

* An wh W

J ae eS one *

. 2 * . 7

2 N 4 * — * a

beta cpr ee . 4

A-

reasons. We think that the strong statisti-

cal evidence, when combined with the speci-

fic instances in which the discretion was

unevenly exercised, is sufficient to support

the district court's finding that Harris-

Teeter engaged in a pattern or practice of

racially discriminatory treatment of blacks

in connection with its terminations

policy.22

We turn next to the sufficiency of the

proof of class-wide racial discrimination

in promotions. The district court found

that in 1976 the combined black promotion

22 Harris-Teeter advanced no explana-

tion for the disparity between the black and

white termination rates, instead arguing

that the plaintiffs' statistics "showed only

that both blacks and whites had committed

dischargeable offenses and had been dis-

charged." That assertion is plainly incor-

rect, for the standard deviation analysis

demonstrates that the significant disparity

between the termination rates was not due

to chance, but instead to some other cause. a

That cause is presumed to be unlawful dis-

_ grimination until the defendant shows other 3

er JP note rris-Teeter

2 failed to so here. 5 2

i E 2 1 : a A

* ‘ * 25

i ie . E *

ane, n :

hue. tn

o42.

rate in the stores and warehouse was 69

percent of the white promotion rate, and

that in the stores alone the black promotion

rates for 1975 and 1976 were 70 percent and

67 percent, respectively, of the white promo-

tion rates. The first problem with this

data, however, is that its scope -- covering

the stores and warehouse for only 1976 and

only the stores for 1975 -- is insufficient

to prove discrimination from 1974 through

1978. Second, when additional, uncontested

data from the record is added into the over-

all numbers, the black promotion rate rises

to 86% of the white rate.25 Moreover, a

8 e 2

statistical disparity cannot, standing

alone, make out a prima facie case of class - 1

wide discrimination unless a standard devia-

;

ion analysis has ruled out chance as the 4

23The promotions data for the ware-

house in 19 available in the 2228 ad

3 ‘showed 3 more blacks were promoted * a

_ would be we apo 1 7 9

the ä 2

2 H. See . e eas ‘7

=a ie at sad * er * 1 An 2 ahs * Bo tase 4

-43-

cause of the disparity. When such an analy-

sis is performed on the promotions data, it

appears that the number of blacks promoted

is fewer than two standard deviations below

what would be expected from their proportion

of the workforce; thus chance is not excluded

as the cause of the disparity.24

In an attempt to demonstrate that dis-

criminatory intent rather than chance was

the cause of the disparity in the promotion

rates, plaintiffs submitted statistical evi-

dence demonstrating that fewer blacks were

hired by Harris-Teeter than would have been

expected from their proportion of the appli- 4

cant pool. Standard deviation analysis of 4

this data conclusively ruled out chance as

the cause of the disparity in the hiring

a ao Pe oe ee

rates, thus raising a presumption that dis-

criminatory intent was the explanation for

the hiring disparity. The district court

24See page | 54 of aus wen, 1

eee 2 . asst "ae 2 2 0 * 1

J - 3 on 7

. nanagers instructed or

-44-

accepted this as being probative of a similar

intent behind the disparity in the promo-

tions data. On the present record, however,

we cannot accept this analysis. We agree

that evidence of discriminatory intent in

one employment context (e.g., hiring) may

be probative of discriminatory intent in a

different context (e.g., promotions) where

it has been demonstrated that the same con-

pany managerial personnel were responsible

for decisionmaking in both contexts. In the

present case, however, the district court

made no finding that the store supervisors

responsible for promotions were also respon-

sible for hiring.25 We therefore conclude

There was no evidence eon Bn =

supervisors to make r

_ were influenced by raci:

that the inference of discrimintory intent

with respect to hiring should not have been

considered in determining whether discrimi-

natory intent was the cause of the disparity

in the promotions data.

The other factor relied upon by the

district court to demonstrate an intention-

ally discriminatory pattern of racial dis-

crimination was the testimony of the nine

intervenors who prevailed on their promotion

Claims. But almost none of this testimony

related to instances of direct racial dis-

crimination, and there certainly were too

few instances of direct discrimination from

which any pattern or practice of such dis-

crimination could be inferred. Instead,

most of the testimony dealt with the absence

of written, objective criteria for promotion

decisions. As we have noted, supra note 21,

2 the possession by mangement of unbridled

- discretion will tend to confirm implications — 5

“A

aie

of racial discrimination drawn from statis-

tical disparities. But here the promotions

data did not reveal any statistically signi-

ficant disparity between the black and white

promotion rates. Thus, because Title VII

and § 1981 prohibit racial discrimination,

‘

rather than simple arbitrariness or caprice,

the mere existence of vague and subjective

criteria is not alone proof of unlawful

discrimination. The district court's find-

ing of class-wide discrimination with re-

spect to promotions therefore cannot stand.

Harris-Teeter next challenges the dis-

trict court's findings as to each of the

thirteen named plaintiffs who prevailed. We

turn first to the ten plaintiffs -- Mobley,

Reed, Gary,26 McKinney, Torrence, Patter- 5

son, Jones, Sullivan, Bailey, and LeGrand 3

** _ V

———

47.

promotions because of racial discrimina-

tion. We conclude that, in light of our

reversal of the district court's finding of

Class-wide discrimination in promotions,

these cases must for two reasons be returned

to the district court for further proceed-

=“. Se ee ee oe oe eo eer

ings. First, in each instance, the district

court appears to have grounded its conclu-

sion, at least in part, on its earlier find- ‘

ing that the promotions system was, as a

whole, discriminatorily applied as to

blacks. Because the district court did not N

indicate explicitly whether this kinda dal :

a necessary, or merely a cumulative, piece

26We also include here the "transfer"

Claimed by Gary, because the district court

rs to have treated this claim along

with Gary's promotion claim, because

i . testified that this "transfer" hee 4

a have included a pay raise te ‘3

it too was actua =;

ly a claimed

ut Soe ile ee ae

— ‘i ‘ 4

U rte

“a

-48-

of evidence, we must remand to the district

court for a determination of whether any or

all of the individual claims are made out

in the absence of proof of class-wide dis-

crimination. Second, the district court

made no case-by-case findings as to the

"subjective" criteria advanced by Harris-

Teeter as the basis for its promation deci-

sions. As noted above, the district court

may, where the statistical data reveals a

disparity between the white and black promo-

tion rates of sufficient magnitude to war-

rant an inference of discrimination, con-

clude that the subjective criteria do not

overcome that inference. But the premise

that the subjective criteria were mere pre-

texts for racial discrimination cannot stand

as an across the board conclusion where, as .

here, the existence of class-wide discrimi- —

nation is not demonstrated. Rather, the

district court must, on a case-by-c

ge. ar * ‘ é 4,4 * 2 * 2 ry f

Sa ae ae Re d AA 8 7 De SN „

em. 5 8 wi ene 4 N 4 — . *

* . 2 18 ine 2 ee, Per SS Aes n R

- . nes, ot 1 ee . - 7 7 . .

„ ' *

por} “ 4

-49-

basis, determine whether the subjective cri-

teria advanced by Harris-Teeter were in fact

utilized in making the individual decision,

or whether the individual decision was based

upon unlawful discrimination.

The district court next found that

plaintiff Lilly had proven that his dis-

charge from Harris-Teeter was based on ra-

cial discrimination. We agree. The evidence

revealed that Lilly was discharged only two

days after complaining about racial discrim-

ination to Harris-Teeter's personnel direc-

tor. Further, although Harris-Teeter

Claimed that Lilly's job performance in quan-

tity checking had been deficient, it never

introduced any written substantiation of

these claims, and Lilly's supervisor admit-

ted that he never checked as to whether the

errors in counting might have been at the

receiving end. Under these circumstances, —

the district court did not clearly err in

a pe

* * 7

1 „e

. \

rejecting Harris-Teeter's purported justi-

fication and in finding that Lilly had been

the victim of racial discrimination. 27

Next, the district court found that

Richard Gregory's demotion and subsequent

constructive discharge were based upon ra-

cial discrimination. The district court

credited testimony that Gregory was assigned

duties not given to whites at his level,

that his termination of a white employee who

had called him a "nigger" was reversed by

his superiors, and that his job performance

had been praised. Further, the district

court noted that although Gregory had been

discharged by a black, that was done on

| orders by, and in the presence of, a white

territorial supervisor. We thus conclude

x 27This conclusion is buttressed by the

overwhelming statistical disparity between

_ the black and white discharge rates, which

Class-wide racial discrimination in

nations. ad

4 2

;

Sie

that the district court's finding was not

clearly erroneous.

The final individual claim decided by

the district court was that of Edward Porter,

who challenged Harris-Teeter's decision not

to hire him as a tractor-trailer driver.

The evidence showed that whites with less

experience than Porter were hired by Harris-

Teeter after he applied for the position.

Harris-Teeter contended that they were hired

instead of Porter because they came to the

company when openings were available, but

the district court found that, in at least

one instance, Harris-Teeter had filled a

subsequent position with a white who had

applied before Porter, thus revealing that

_Harris-Teeter maintained, and utilized, its

‘list of applicants on file. Moreover, the

company's asserted statistics as to the per-

a centage of black drivers are meaningless in i

* absence of data as to the pool aes

idl

82.

applicants for the positions. The district

court's conclusion as to Porter is therefore

also not clearly erroneous and will be sus-

tained.

VI.

Harris-Teeter's final contention

challenges the amount of the attorneys' fees

awarded to plaintiffs' counsel. Under our |

opinion in Anderson v. Morris, 658 F. 2d 246

(4 Cir. 1981), one of the factors to be

considered in determining the amount of the

award is the result ultimately obtained.

Because we have concluded that the finding

of class-wide discrimination in promotions

, must be reversed, and that the individual

; promoticns claims must be considered fur-

ther, we vacate the award of attorneys' fees

and remand this issue to the district court

for a determination of what effect, if any,

these changes in the ultimate result of the

-53-

case should have upon the amount of the

award. 28

AFFIRMED IN PART;

REVERSED IN PART;

AND REMANDED.

28we reject, however, several of Har- q

ris-Teeter's other objections to the attor- 8

neys fees award. First, the results obtain i

ed are merely one factor to be considered

by the district court, and the award is not

necessarily limited to time spent on issues

upon which plaintiffs ultimately prevailed. .

_ Second, it is plain that paralegals can be

billed at a rate that includes such overnead

as rent and secretarial services. Finally,

1 red 1 A sgt Fay err a awarding

2 ee ees for time s 7

8p findings. a 9 1s 2

ctly proper and chargeable to the nd-

The promotions data, in the form found by the district court

with standard deviations by the binomial method provided, is:

Employees Promotions # Standard

Unit Year White Black White Black Deviations

Ware.+

Stores 1976 1603 284 171 21 1.59

Stores 1975 1191 99 104 6 0.87

Stores 1976 1192 111 129 8 1.12

When adding the additional data metioned in footnote 23, supra, the

promotion figures are:

Employees Promotions # Standard

Unit Year White Black White Black Deviations

-0.96

Ware. 1975 223 192

Ware.+ 1975+

Stores 1976 3017 575 293 48 0.97

» $$<

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

C06 76-191

_ PAUL LILLY, individually

N and on behalf of all

: others similarly situated,

Plaintiff,

and

;

CHRISTOPHER McKINNEY,

ILIP REED, JOHN LeGRAND,

KEN BAILEY, PRANK SULLIVAN,

_ JAMES MOBLEY, SHIRLEY GATE-

MOOD, JEROME GARY, CURTIS

07 ROY TORRENCE, HAZEL FISHER,

Jom JOHNSON, WILLIE HUNT,

FINDINGS OF

_ MICHAEL McVAY, ROOSEVELT FACT AND

PATTERSON, WILLIE COVING- l

Ton, WILLIAM CARROTHERS, CONCLUSIONS =

'TREVESANT GOODWIN

| RICHARD BURCH, individuel- } or LAW

ly and on behalf of all

)

others similarly situated, }

Plaintiffs-Intervenors,

vs.

_ HARRIS-TEETER SUPERMARKET, 2

a @ corporation, | 1

Defendant.

-56-

C-C-79-130

RICHARD GREGORY, individu-

ally and on behalf of all

others similarly situated,

Plaintiff,

vs.

HARRIS-TEETER, @ corpora-

tion,

Defendant.

— ee et ace — — eee Sie Stee” Sree” — —

C-C-79-137

EDWARD PORTER,

Plaintiff,

vs.

HARRIS- TEETER, a corpora-

tion,

77, + >

Defendant.

— — — — — — — — — — —

: Michael A. Sheely, Joyce M. presha.

Sheely and Brooks, 41 Law n

Bast Trade Street, Charlotte, N..

$hell Blum, Raleigh, NC, counsel for

plaintiffs. 3

4 John 0. Pollard, Richard Raney Blake-

| » Alexander and Machen, One Plaza, 4a

E Ghariotte, NC, counsel for that | 1

es 3

Py *

* — *

tA oe —

- “on.

‘ Rea ntl —

148

587.

Before James F. McMillan, District Judge

Western District of North Carolina

Charlotte Division

Tried January 28-31, February 1, February

19-21, 1980

Non-Jury

Decided: August 15, 1980 by Memorandum of

Decision on file.

June 25, 1982 by Supplemental

Memorandum of Decison

This is an action brought pursuant to 4

42 U.S.C. 81981 and 2000e et seq. Mr. Lilly

filed his Complaint on June 18, 1976. Subse-

quent to Motion by plaintiff and the August 5

3, 1979 Order of the Court, the intervention q

of Christopher McKinney, Philip Reed, John J

ö LeGrand, Ken Bailey, Frank Sullivan, James

‘ Mobley, Shirley Gatewood, Jerome Gary,

3 Curtis Jones, Woodrow McManus, Roy Torrence,

met Pisher, John Johnson, Willie Hunt, :

mchset MeVey, Roosevelt Patterson, Willie —

2 114% Carrothers, — |

ety :

4 .

y rire i

‘Sa iin Ss Sil a a

-58-

Case Number 76-191. Edward Porter filed his

Complaint (Case Number C-C-79-137) on April

27, 1979. Richard Gregory filed his Con-

plaint (Case Number C-C-79-130) on April 25,

1979. Gregory, pursuant to his Motion and

ö Order of the Court, was allowed to intervene

in Lilly. All of these cases were consoli-

dated for trial. Plaintiffs sought injunc-

tive relief to remedy allegedly unlawful

employment practices and to provide specific

relief for each individual who suffered from

these practices. Based upon the evidence

and exhibits, and after hearing and weighing

the evidence, deciding on the credibility

of the witnesses, viewing the demeanor of

witnesses, considering the interests of wit-

ae.

nesses, and the arguments of counsel, the

Court, pursuant to Rule 820) of the Federal 4

Rules of Civil Procedure, makes the fol le-

7 *

ing: —

FINDINGS OF FACT

I. JURISDICTION

1. This Court has jurisdiction pur-

suant to 28 U.S.C. §1343 and 42 U.S.C. §2000e-

5(f).

2. The plaintiffs have complied with

the procedural requirements of Title VII (42

U.S.C. §2000e et seq.) (Trial Transcript

(hereinafter Tr. ). 161, 161,

688-690; Plaintiff Trial Exhibits P. E.

) 17, 27, 28).

II. PARTIES

3. Plaintiffs Paul Lilly, Christopher

é McKinney, Philip Reed, John LeGrand, Ken

i Bailey, Frank Sullivan, James Mobley,

Shirley Gatewood, Jerome Gary, Curtis Jones,

ha oodrow McManus, Roy Torrence, Hazel Fisher,

3 Johnson, Willie Hunt, Michael McVay,

R It Patterson, Willie Covington,

’ 1111 cerrothers, Trevesant Goodwin, —

1 3 . 5

ae ie

-60-

Porter are bla adult residents of the

counties of Orange (Lilly), Lincoln (Reed),

Gaston (Porter), and Mecklenburg (remain-

der), North Carolina.

4. Defendant Harris-Teeter (the "Com-

pany". or "defendant"):

(a) is a corporation which trans-

acts business in North Caro-

lina; 4

(b) is involved in the retail grocery

business;

of 42 U.S.C. §1981, and an employ-

er within the meaning of 42

U.S.C. §2000e(b). (Tr. 688-

690).

ILI. INTERVENTION

5. Plaintiffs Christopher McKinney,

_ Philip Reed, John LeGrand, Ken Bailey, Prank

Sullivan, Janes Mobley, Shirley ne

Jerome Gary, Curtis Jones, Woodrow „

ota „

K-

Roy Torrence, Hazel Fisher, John Johnson,

Willie Hunt, Michael McVay, Roosevelt

Patterson, Willie Covington, William Carro-

thers, Trevesant Goodwin, and Richard durch

filed a Motion to Intervene on April 24,

1979 in Case Number 76-191. Intervenor

Richard Gregory filed a separate action (C-

C-79-130) and a Motion to Intervene in C-C-

76-191.

6. At the time said plaintiffs filed

their Motion to Intervene, they were members

of the class certified by the July 22,1977

Order of the Court.

7. At the time intervention was

sought, and as borne out by the evidence at

the trial:

(a) The persons listed in paragraph

Ss claimed an interest in the transaction is |

_ the subject of Lilly v. Harris-Teeter, Num-

der C-C-76-191. | |

562.

(b) Disposition of the case may, as

a practical matter, impede or impair their

ability to protect their interests.

common questions of law and fact with the

Claims in the existing case.

(d) The allowance of the motions did

not unduly delay or prejudice the adjudica-

tion of the rights of the original parties.

8. Intervention was sought to state

Claims under both 42 U.S.C. §1981, §2000e

et seq.

| IV. EMPLOYMENT PRACTICES

9. Harris-Teeter operates its main

office, distribution center (warehouse), |

and sone fourteen retail grocery stores in

_ Mecklenburg County. | 4

4 10. Between August, 1976, and the trial!

ot this action the defendant's employment —

_ practices inciuded: Wo notices of vacant

ea os 83 Pras ee 2 2 * ae =

‘ hicks cL. Ld ee 1 se

-63-

before 1979; there were no educational

requirements for job positions; there were

no written job descriptions; regular written

job performance evaluations were limited to

office employees, merchandisers, and store

managers; there were no criteria as to what

factors were to be considered in promotion;

and, an employee did not have to ask in order

to be considered for promotion at any of the

locations (Tr. 540-543, 689-690; Deposition

of C. L. Teeter, 27, 33, 36-38).

11. The distribution center (ware-

house) has four departments: grocery, meat,

frozen food - produce, and transportation.

Bach department had two shifts. The starting

times of various employees on the same shifts

are staggered. Both receiving and shipping 3

functions are carried out at the warehouse. 3

order puller, order selector, order picker, 4

and picker are synonynous terms for the sane

aft.

position. (Tr. 698-702; Defendant's Trial

Exhibit (hereinafter D.B.) 71).

| 12. A warehouse leadman is a working

| supervisor who assigns duties and performs

; the same duties as his subordinates (e.g. a 4

! leadman over pickers will assign duties but

he has primary duties of a picker). (Tr. q

712).

13. The factors utilized in promotion

at the warehouse were "character," integ-

6 rity," "good sound morale," correct atti-

8 tude," and initiative.“ These criteria had

no written definitions and in each case were

defined by the particular management person-

nel involved in a promotion decision. Those

criteria were capable of different defini-

tions. (Tr. 736-41, 918, 987-993; D. B. 75).

# 14. Mr. Ralph Wilson, a white manager —

of Distribution Operations, kept «

net of employees who wanted

. 4

668.

Mr. Penney, a white warehouse manager, main-

* ined a written list of warehouse employees

who wanted transfers between December, 1977

and January, 1979. (Tr. 711, 736-741, 1177-

1180; D.B. 112).

15. The posting of warehouse jobs

started in January, 1979. Leadman jobs were

posted in the summer of 1979. (Tr. 711,

736-41).

16. The defendant contended that, in

order to be promoted to a warehouse leadman,

an employee had to be on the same shift and

in the same department as the opening. The

defense to the warehouse plaintiffs' promo-

tion claims was grounded on this "same

shift/same department" policy/practice.

_ Whether this policy/practice existed during

_ the time periods in question is in dispute. —

position because of the practice; (ii) from

the record evidence, only blacks were denied

| promotions because of the practice; (iii)

the pol icy/ practice was used to justify the

denial of particular job assignments (Tr.

952); (iv) white employees were promoted or

| transfered across shift and/or departmental

lines to leadman or foreman trainee posi-

tions (Weaver, Fowlkes, Givens); (v) more

| experienced black employees, (Mobley,

denied leadman positions some of which were

filled by whites who crossed shift and/or

departmental lines to fill those positions

(rr. 928, 988-990; Findings 25, 27, 34

infra.)

17. The promotion claims of plaintiffs

fobley, Patterson, Johnson, Sullivan, and

Grand, were defended on the basis of the

" ad Athos’ 2 7 me

, 2

3 a * . e 1 *

8 ; N 4 ~ Ae 3 14

McKinney, Bailey) all of whom met the same

shift/same department requirement, were

-67-

Court finds that this policy was not the

reason those plaintiffs were denied promo-

tions (Tr. 110-112, 351-352, 384-385, 520,

917, 918, 928, 933-941, 952-995, 1071; D.E.

81).

18. Refusals by blacks to take jobs

on particular occasions, regardless of cir-

cumstances, were carefully remembered, but

the blacks were never asked whether they had

changed their minds or whether their circum-

stances had changed. See Findings concern-

ing Sullivan (32) and Patterson (29).

: 19. The defendant contended that some

of the whites selected for promotion were

better qualified because of their previous

. job experience (e.g. Allen, Hanson). Pre- 4

vious job experience was not systenaticallx

recorded, Relevant job experience of quali- —

tied blacks, whether listed on an applica

. form or communicated orally, was oft a

or disbelieved (Reed, McKinney,

„

1 1

K ＋ * ss,

* er. 3 * 4

-68-

Patterson, LeGrand, Torrence). The previous

job experience of white promotees was typi-

cally rememberd, explored, and utilized

(e.g. Hanson). Information concerning prior

experience, job performance, etc., was con-

veyed by word of mouth from one level of

supervision to another. In cases where black

and white applicants described their pre-

vious job experience in a substantially

identical fashion, the white applicant's

experience was used as a basis for promotion,

while the black applicant's experience was

ignored. (Tr. 194-195, 513-514, 247-248,

263, 741, 752, 848, 859-862, 864, 868, 752,

1013; D. B. 75, 79, 92).

20. Personnel practices at the retail

stores included: Store supervisors (mana- —

gers) made promotion recommendations by the

store manager's recommendations 90-95 per-

cent of the time. The district manager

ultimately decided who would be promoted,

transferred, demoted, hired, or terminated

for all positions up to the department-head

level. Job vacancies were not posted.

Employees transferred from one store to

another. In the stores managed by Mr.

Higgins (white) (nine stores in Mecklenburg

County) there were no black store managers ~~

between 1974 and 1977. Between 1974 and

1977, there was no written promotion system,

no written description of factors to be 4

considered in promotion decisions, and no

regular system of job performance evalua- 1

tion. (Tr. 784, 838, 853-856, 860).

V._ CLAIMS OF PLAINTIFFS

. 21. Bdvard Porter, in response to 6

epaper advertisement, applied for a

* trailer driver position at Harris a

Teeter on March 31, 1975. Porter’

—

* *

1 *

one S * r

ad 7 iy . * * 1 J : “4

-70-

application listed 22 months of prior experi-

ence as a road driver. Porter's other truck

experience (ten years) was not listed

because he had used up all available space

on his application. Porter was neither

interviewed nor contacted by Harris-Teeter.

Porter was qualified for the driver posi-

tion. In June, 1975, Porter saw an identical

j advertisement for tractor trailer drivers.

Eight persons were hired as truck drivers

between 5/7/75 and 7/24/75, all of whom are

whité. The first person hired after Porter

applied (k. Mills, white) quit on 5/16/75.

q Harris-Teeter stated it would not rehire 4

Mills. The defendant contends that Porter

was not hired because no openings existed

when he applied. However, within 120 days —

of Porter's application, nine whites were

0 hired as truck drivers. Two of the hirees

hed less driving experience than v3

Listed on his application. All of the white

1 Cy.

* ö P 7 « : * ar. *

by 7 * ts ’ * * * dos — 0

85 : 5

* ei

* ‘ *

«Fi.

hirees had less driving experience than

Porter. The percentage of black drivers

decreased from 50.7% in 1975 to 27.6% in

1977. Porter was not hired because of his

race. He is entitled to appropriate relief

in Stage 2 proceedings (Tr. 6-14; P.E. 27;

D. B. 17, 19, 22, 24).

22. Philip Reed presented tvo pr ono-

reren

tion claims and a discharge claim. Reed was

hired as a produce clerk in 6/76. He had

applied for a management position. He had

three years of grocery store management

experience, including six months in produce

enen

management. Reed worked at two stores

between 6/76 and 4/77. On several occasions

Reed asked the District Manager (Higgins,

white) and the store manager (Foye, white)

about a promotion to vacant produce manger

positions. The first vacancy was filled on 3

10/8/76 by A. Wilson, white. Wilson, a

produce clerk, had 18 months experience with

# . ;

9 . = i _

a -

72.

Harris-Teeter. Wilson, who had no manage-

5 140 is

ae. ae SO

ment experience, was replaced by W. Allen,

white, on 11/8/76. Allen was selected on

the basis of his Harris-Teeter experience

a ih —— ae

as a produce clerk and an assistant produce

manager of six months. Reed was not consi-

dered for either vacancy. He was more quali- E

fied than either of the promotees. Reed .

received a warning on 12/5/76. It played

no part in his nonselection. The Court gives

no credence to the reasons advanced by

Harris-Teeter for failing to promote Reed. ‘

In 1975-76, whites received 96.3% of the

promotions in supervisory/management jobs

at the stores, and constituted 95% of the

officials and managers at the stores. Reed

was denied a promotion because of his race.

he is entitled to appropriate relief in Stage

2 proceedings. Reed was not discharged a

because of his race. (Tr. 20-30, 774, 776, —6

„

780, 857-859, 861-863, 869; P. B. 5, 23, 26;

D. B. 55, 79).

23. Paul Lilly was employed at the

warehouse between 7/7/74 and 1/10/75. With-

in 90 days of his hire, Lilly received two

pay raises. Lilly's supervisors were all

white. Lilly heard Watson (supervisor) talk

about “how he used to kick niggers' asses

at the Armour plant before he came to work

at Harris-Teeter." Watson denied this (Tr.

p. 1107). On 1/8/75, Lilly went to C. L.

Teeter, personnel director, and complained

that blacks were being terminated for being

late while whites laid out and were not

terminated. Teeter denied the complaint.

Both of these conflicts in the testimony are

resolved in the favor of Lilly. On 1/10/75,

Lilly was terminated by John Watson for

allegedly miscounting becf. Lilly had been

given the checking duties as a part of inven- |

tory control. After Lilly took over the a

checking duties, there was a noticeable

improvement in inventory control. Errors

in the counting of the beef had been made

at the stores. Watson did not check with

the stores to see if any errors had been

made there. Miscounting the meat was not

the reason for Lilly's discharge. Lilly was

discharged because of his race and his oppo-

sition to racial discrimination. Lilly is

entitled to appropriate relief during Stage

2 proceedings. (Tr. 44-59, 67, 70, 71, 73,

87, 88, 1107, 1113, 1114, 1165-66).

24. Richard Gregory worked for Harris-

Teeter between 7/7/72 and 5/29/75. Gregory

had nine years of previous grocery store

experience. Gregory worked as a stock clerk

in store number 2 until he was promoted to

grocery manager on 5/27/74. As a grocery

manager, Gregory's duties were to order nor-

cChandise, take inventory, check for short-

<<,

: ages, overages, and damage in the 4

“= Le : 2s ae .

-75-

merchandise, make sure that the work area

was clean, and keep the shelves stocked. He

supervised seven employees. He was not

warned about his job performance as a grocery

manager. He was informed by his supervisors

that he was doing a good job. Gregory

terminated a white stock clerk who told

Gregory that he was not going to work for a

nigger when Gregory instructed him to help

unload a truck. The white store manager

reinstated the cag (A Harris-Teeter wit-

ness obliquely denied this. (Tr. 809-10))

Gregory's testimony was corroborated (Tr.

1861). The Court resolves the credibility

issue in favor of Gregory. On 1/20/75 Gre-

gory was demoted to a stock clerk at another

store. Mr. Higgins (white, territory mana-

ger) was present when Gregory was told by

Mr. Crowell (black, co-manager) thet he es

being demoted because the stererees was

—

-76-

Gregory would be demoted. Gregory was sent |

to store number 9 as a stock clerk. Gregory :

left store number 9 as a stock clerk because

of the demotion and harassment (e.g. (i)

being written up for going to the doctor,

(ii) being given mere difficult aisles to

stock (corroborated by another witness (Tr.

824)), and (iii) being kept later to perform

job duties after other clerks went home)

(denied by a Harris-Teeter witness (Tr.

833)). This issue of credibility is resolved

in Gregory's favor. Gregory was replaced

as grocery manager by Donnie Brock, white.

After Brock became grocery manager, he was

not given aisles to stock. Gregory, as

grocery manager, had been asigned aisles to

stock. Race was the reason for Gregory's

demotion. Gregory was constructively dis-

charged. He is entitled to appropriate

relief in the Stage 2 proceedings. (te,

A white meat manager was written up“ 10

times between March-October of 1976, and was

allowed to resign (Tr. 816-822; P.E. 26).

The Court specifically credits the testimony

of Howard and Pitts (Tr. 176-184) that Gre-

gory performed his job as a grocery manager

in a satisfactory manner.

2 Janes Mobley has been enployed by

Harris-Teeter since 4/14/74 at the warehouse

in the meat department. Milk, dairy pro-

ducts, and meat are in the same department.

Mobley's job duties prior to 4/78 included

milk picking, unloading, and forklift driv-

ing. In the spring of 1976, a foreman

(Crowley, white) told Mobley that he was

"up" for promotion to leadman in the meat

department. Terry Givens (white) received

the job on 6/7/76. Givens was initially 4

hired on 1/11/74, resigned 2/5/74 and was

_ rehired 11/3/74. Mobley had more company _

3 and departmental experience than Givens.

| 76-

Givens prior duties were solely picking

meat; Mobley's duties involved more pro-

ducts. Mobley had also supervised Givens

: N tet N

eee eee

when Mobley served as a "fill-in" (tempo-

rary) leadman prior to Givens promotion.

Mobley's job performance had been praised

by his supervisors. Mobley was never con-

sidered for Givens' job. Mitchell, a Harris-

N enen

Teeter witness, made a comparison between

Mobley and Givens (Tr. 926-927). This com-

parison has little, if any, weight since it

was not made at the time of Givens' promo-

tion. Mitchell's assertion that Givens had

broader departmental experience is invalid

since Mobley acted as Givens' leadman when

he was a "fill-in" leadman. On 5/16/77,

David Allison, white, was promoted to the

meat department vacancy created by Givens'

transfer to leadman in the produce depart-

nent. Allison was hired on 5/18/76 as a 3

4 picker without forklift duties. Mobley 2 a

70.

both greater company and departmental expe-

rience, including that of "fill-in" leadman. —

Mobley was not considered for the job Allison

was promoted to. Jeff Fowlkes, white, was

rehired by Harris-Teeter in the warehouse

in 5/76. Prior to then, Mr. Fowlkes has

bert in various stores. In September or

October, 1976, Fowlkes became the "defacto"

leadman on the night shift in the produce

department; he got the job title on 11/22/76.

(Tr. 351-52, 384-85, 520, 933-41, 952-995,

1071; P. B. 26). Harris-Teeter stated that

it did not promote Mobley to the Allison

position because Mobley was on strike. This

reason is not valid since Mobley informed

Harris-Teeter he was available for work

eight to ten weeks before the Allison promo-

tion. Harris-Teeter stated that it did not

promote Mobley to the Fowlkes' position 4

_ because Mobley was on a different shift in f

9 another department and because Mobley was

fae 9

on strike after 11/16/76. Mobley was present

when Fowlkes started his "defacto" leadman

duties. Mobley was denied these three promo-

tions because of his race. He is entitled

to appropriate relief in Stage 2 proceed-

ings. In April, 1978, Mobley became a meat

department leadman. (Tr. 97-116, 125, 384-

385, 520, 926-27, 933-41, 995, 996, 998,

1163; P. B. 26; D. B. 81).

26. Jerome Gary vas employed as a

warehouseman between 9/18/74 and 6/23/78.

Gary initially applied for a mechanic's posi-

tion. He was promised a transfer to the

garage as a mechanic when there was a vacan-

cy. Gary was qualified to be a mechanic

because of his prior experience and educa-

tion. Gary made several requests for a

mechanic's job between September, 1974 and

the middle of 1975. Two. white employees —

1 (H. Burris, 8. Richards) transferred from a

th the warehouse to mechanics' jobs during t the 3

ak ee

2 Piety ADT

“Rit ae ee 3

n 2

-81-

1975 period of Gary's requests. In 1975,

four white and one black mechanics were

hired. In 1976, fifteen white and one black

mechanics were hired (P. B. 2). In 1975,

- four whites and one black were promoted or

transferred to a mechanic position. (P. B.

3). In 1976, five whites and one black were

promoted or transferred to a mechanic posi-

tion. In the summer of 1975, Gary asked to

be transferred from a standup (Raymond) lift

to a sitdown lift. Mitchell denied that

Gary made this request. This credibility

issue is resolved in favor of Gary. Gary

was qualified to operate a sitdown lift.

Two junior whites were transferred from

standup to sitdown lifts shortly after

Gary's request. The sitdown lift pay was

higher. Gary was denied a mechanic's job

and a transfer to the sitdown forklift

because of his race. He is éntitled to

8 wre ey * . 7 8 .

nr Las Shee ees ee le —

pl ae

1 »

ail

-82-

appropriate relief at the Stage 2 pro-

proceedings. (Tr. 129-152, 968, 969; p. B.

26).

27. Christopher McKinney has been

employed by Harris-Teeter since 6/18/75 at

the warehouse in the dry grocery department.

McKinney has been a forklift driver. When

he expressed an interest in promotion,

McKinney informed Harris-Teeter management

of his 2-1/2 years experience supervising

six employees. He was on strike from

11/16/76 to 2/27/77 when he informed Harris-

= ee oe

Teeter that he was available for work.

McKinney performed his job well. In April,

ee)

1977, a junior white employee, Jeff Fowlkes,

wa promoted from produce leadman to foreman

; trainee in the grocery department. Foreman

: trainee is basically the same job as leadman

(Tr. 1017). McKinney was not considered for 7

the foreman trainee job. Mitchel} testified — i

4 that McKinney was not qualified because of

-83-

a poor work record. When asked to examine

McKinney's personnel file, Mitchell could

not find any record of a warning due to poor

job performance. Warnings were given to

some employees for poor job performance.

McKinney had more warehouse and departmental

experience than Fowlkes. McKinney was quali-

fied for the trainee job because of his

experience. Michael Weaver (white, hired

11/24/76) was promoted on 5/30/77 from day

shift picker to night shift dry grocery

leadman. McKinney was not fairly considered

for this job even though he was on the same

shift and in the same department. McKinney

was qualified for this job because of his

prior experience. McKinney was denied the

foreman trainee job and the leadman job

because of his race. He is entitled to

appropriate relief in Stage 2 proceedings.

(Tr. 189-206, 1017, 1020, 1088-90, 1075- ¥

1078; P. B. 26; D. B. 81).

* °

-84-

28. Roy Torrence was hited by Harris-

Teeter at its warehouse on 9/18/74 as a

maintenance (sanitation) employee. His

duties included forklift driving, sorting

ages food, and rebuilding pallets. His

prior work experience included supervisory

duties and self-employment. Torrence

trained a white employee of Harris-Teeter

(Neal Mitchell, hired 5/12/75) who was pro-

moted to foreman of the maintenance (sanita-

tion) department on 6/16/75. Before

Mitchell was hired, Torrence asked Dick Jack-

son (sanitation department supervisor) for

the foreman job to which Mitchell was pro-

moted. Jackson told Torrence that he would

never be foreman or leadman as long as

Jackson was there. Jackson denied this.

(Tr. 1124, 1126). The Court resolves this

credibility issue in favor of Torrence. on

8/15/78 4 junior white employee (Berl Han-

a hired 11/16/77) was promoted to a

~ i<1> + . : nae

Cte oy 5 Ay * 3 . 1 * 1 aca) 2

rn . ‘ . ee n *

ery — er a tae ee AP i Pu | ow ee se ee a oe of 4 *

-85-

sanitation leadman for the same shift and

in the same department that Torrence worked.

Torrence was never considered for the job

that Mitchell got. Torrence was described

by his supervisors (Mitchell, Jackson) as

having “excellent attendance" and "excel-

lent performance" five times between 9/24/74

and 6/16/75. (Tr. 1016, 1126, 1132-33).

These tos bnge conflict with the testimony

of defendant's witnesses (Tr. 1122-23, 955).

The Court resolves the conflict in favor of

Torrence and finds that he was a good employ-

ee. Torrence filed a grievance for not being

promoted to the position Hanson received.

The criteria used in comparing Torrence and

Hanson were subjective. Torrence was denied

these jobs because of his race. He is

entitled to appropriate relief in Stage 2

proceedings. (Tr. 244-60, 1016, 1124, 1126,

1132, 1133; P. B. 26; D. B. 75, 91, 92).

-86-

29. Roosevelt Patterson worked for

Harris-Teeter during parts of 1972 and 1973.

He has been employed continuously at the

warehouse since 10/12/73. His prior work

experience included assistant gas station

manager and assistant warehouse manager

positions. Since he was rehired in 10/73,

Patterson's classifications include night

shift meat picker and day and night shift

forklift driver, all of which were in the

meat department. In 9/77 Patterson was in

"receiving" temporarily. He was the only

person performing the receiving duties. Two

persons normally performed the receiving

duties. Patterson asked for assistance and

did not get any. Patterson asked to return

to his lift job because of the failure to

provide help. When whites worked as receiv- .

ers, there were two of them except for one

q instance where a white employee performed

. the job alone. Patterson was on strike from A

-87-

11/17/76 until 2/27/77 when he informed

Harris-Teeter that he was avaiable for work.

He returned to work on 3/3/77 as a lift

driver in the freezer department. Patterson

asked for leadman jobs. He was told that

since he id left the receiver's job, he

would not become a leadman. Patterson had

worked in various departments as a receiver,

picker, anda lift driver. His work perform-

ance was praised by warehouse management.

The following junior whites were promoted:

(a) Jeff Fowlkes was hired May, 1976

as a produce picker. He was made a de facto

produce leadman in September or October,

1976, and given the title of leadman on

11/22/76. He was made a foreman trainee in

4/77 (grocery) and a foreman in the grocery

department on 9/22/77.

(b) Terry Givens was hired as a picker

on 11/3/74. He was promoted to meat leadman *

on 6/7/76, and to foreman on 8/22/77. 4

as a meat picker and was promoted to meat

leadman on 5/16/77 and to foreman on 6/25/78.

(d) Clyde Kiker was hired on 11/23/76

as a produce picker. He was promoted to a

produce leadman on 8/7/77, nine days after

a warning on 7/29/77 that he had been tardy

six times between 6/5/77 and 7/29/77. He

was made a foreman on 6/25/78.

(e) Neal Mitchell was hired on 5/12/75.

He was promoted on 6/16/75 to foreman (sani-

tation). In 9/75, he was transferred to the

night shift (sanitation) as a foreman. (Tr.

277-8).

Mr. Patterson wa qualified for those

jobs because of his experience and his job

performance. Harris-Teeter contends that

Patterson was not eligible for any of the

promotions since Patterson was either in a

different department or on a different

shift. (Tr. 999-1001). This reason is not

; * 1 10

5 4 - 4 - * ¥

et? a Ee oe le % eee ee

-89-

given credence. See Finding 16, supra. He

was not considered for any of these posi-

tions. Patterson was denied promotion

because of his race. He is entitled to

appropriate relief in Stage 2 proceedings.

(Tr. 262-302, 928, 999-1003; P. B. 26; D. E.

81).

30. Curtis Jones was hired by Harris-

Teeter in 7/74. His prior work experience

included loading and unloading freight. In

7/78, Jones became a dry grocery picker. He

was then transferred to the "salvage" dock,

where he unloads pallets weighing 30 to 40

pounds. In the spring and fall of 1976,

Jones asked for a job as a rail unloader.

This job involves the unloading of cases

with an average weight of 30 to 40 pounds,

and an upper limit of 60 to 70 pounds. The

defendant contended that Jones was not pro-

noted because he had back problems. Jones

vas never asked by the supervisor of the

-90-

rail dock about his back. His medical pro-

blems were minor. Two whites (James Lamb,

Eddie Kistler} were hired as rail dock

unloaders after Jones asked about the job.

Jones vas qualified for this job because of

his prior work experience. The statistics

show that Harris-Teeter hired seven whites

and no blacks as unloaders. Jones was denied

this job because of his race. He is entitled

to appropriate relief in Stage 2 proceed-

ings. (Tr. 303-311, 1108, 1112; P. B. 2, 26).

31. John Thomas Johnson: Johnson was

employec in February of 1975 as a picker and

lift operator in the meat department and

later in the produce department. He was

qualified and available for the lead job and

for the foreman job to which Jeff Fowlkes

was promoted. Fowlkes was slotted into the

lead man's job in October of 1976, and

received the actual job title in November,

1976. Johnson's complaint as to Fowlkes Bi:

(and as to David Allison and Clyde Kiker)

relates to promotions which occurred in

April, 1977 (Fowlkes); May, 1977 (Allison);

and August, 1977 (Kiker). Although Johnson

was available and qualified from the time

he abandoned the strike in February of 1977,

he did in fact turn down a night job at $4.80

so that he could stay in a day job at $3.90

and look after his children. (His actual

testimony on this issue was evasive, and it

was only after some prodding from the Court

that he ever gave a clear answer about the

"family reasons" which moved him to reject

the higher paying job). Defendant says that

his turning down the night shift work was

the reason he was not considered for promo-

tion. I am not sure that I ought to take

that reason at face value, but I am unable

to conclude that it was solely pretext.

Relief will not be ordered for John Thomas

2 1

Wa * . . 4 „„ le hs

-92- |

32. Frank Sullivan was hired by Harris-

Teeter at its warehouse in 7/69 asea milk

picker. Between February and June, 1972,

Sullivan was involved in foreman training.

Sullivan also worked as a receiver and as a

“slot master." In the summer of 1973, Sulli-

van was informed by management personnel

that he was a leadman. Mitchell announced

this to the entire department. Sullivan was

a leadman between 7/73 and 2/74. In 2/74,

Mitchell told Sullivan that he was a slot

master and not a leadman because Sullivan

had left the foreman trainee program

earlier. Sullivan was on strike from

11/17/76 until 2/27/77, when he informed

Harris-Teeter that he was available for imme-

diate employment. Sullivan returned to work 2

as a meat picker in 6/77. He subsequently a

became a dry grocery picker, frozen food |

lift driver and a grocery slot master, Sulli-

4 van, assigned to the meat departuent, worked 2

-93-

in all of the departments because of his

duties. Sullivan was informed by management

personnel that his job performance was good.

Junior white employees were promoted to lead-

man positions as follows:

(a) Curtis George Hamilton, hired

9/22/70, was promoted to leadman on 10/25/76

and foreman on 11/15/76. Sullivan worked

on the same shift and in the same dopartacnt:

Hamilton became Sullivan's leadman as a

result of the promotion.

(b) Clyde Kiker, hired 11/23/76, was

promoted to leadman on 8/7/77 and €oreman

on 6/25/78. |

Harris-Teeter advanced two reasons for

Hamilton's promotion. The first was that

Hamilton "had much more experience in receiv- 3

vey

ing." The evidence reveals that, prior to 3

Hamilton's promotion, Sullivan and Hamilton

_ had the same amount of experience. Further- ss

hte

_ more, Sullivan had experience as a leadnan a

f |

„

re N 4

ay la ee Sw re ‘ « x

‘4 Na .

5 8 . ers 13 118 iy * 8 28 rey

-94-

and had performed a broader range of job

duties than either of the promotees. The

second reason was that four years earlier,

in 1972, Sullivan had requested to leave a

night shift foreman trainee position in

1972. This was the same reason used to

remove Sullivan as a leadman in 1974. Those

reasons are not persuasive. As to Kiker,

the defendant cont ended that Sullivan was

not considered for Kiker's job because he

was in a different department. This is not

a valid reason. See Finding 16, supra.

Sullivan was qualified to perform these jobs

__ because of his job performance and his

experience at Harris-Teeter. Sullivan had

more company and departmental experience

than Hamilton. Sullivan was denied the Kiker :

and Allison positions because of his race.

_ He is entitled to appropriate relief in Stage

2 proceedings. (Tr. 377-400, 944-951, 1006,

1161; P.B. 26; D. B. 81).

| -95-

33. Kenneth Bailey was hired by Harris-

Teeter as a stocker at its warehouse on

4/17/74. His next position was that of

loader. He was classified as a forklift

driver on 8/4/75. He was on strike between

11/17/76 and 2/27/77 when he informed Harris-

Teeter that he was available for employment.

He returned on 7/18/77 as a picker. On

8/29/77, Bailey was classified as a lift

driver. Bailey worked only in the dry gro-

cery department. Two junior whites were

promoted to leadman in the ‘dry grocery

department on the same shift that Bailey

worked.

(a) Wade Carpenter, hired on 6/8/76

as a picker, was promoted to leadman on

7/10/78. Carpenter regularly performed the

duties of a picker prior to his promotion

to leadman. He supervised pickers, loaders, | 5

3 and forklift drivers as a leadman. Bailey 8

. had performed all of these duties at various a

times. Carpenter went on strike when Bailey

did.

| (b) Richard McClain, hired as a picker

in 12/75, was promoted to leadman on 6/4/79.

As a picker, he was the “"shortman."” This

meant that he did not assemble full orders.

McClain replaced Carpenter as the leadman.

Bailey performed a broader range of duties

than McClain. Bailey was not considered for

either position even though he was in the

same department. Bailey was qualified for

said positions since he performed all of the

departmental duties, and had more depart-

A all

| mental experience than either promotee.

Bailey was denied promotion because of his

race. He is entitled to appropriate relief

in the Stage 2 proceedings. (Tr. 462-509, a

1185; P. B. 26, D. B. 81). ‘a

: 34. John LeGrand was hired by Harris

"Teeter on 7/8/74 as a frozen food picker. ~~

* * rr

nis next pos it ion was frozen food loader.

. . g N

-97-

LeGrand was trained to act as a "fill-in"

leadman, and in fact did "fill in“ as a

leadman until Randy Avery (white) was hired.

LeGrand trained Avery in the duties of a

"fill-in" leadman. Avery then assumed

LeGrand's place as "fill-in" leadman. Avery

was offered a full-time leadman's position,

which he refused. LeGrand was never offered

this job. LeGrand informed Harris-Teeter

management of his prior experience as a

leadman at a textile mill. LeGrand was on

strike from 11/17/76 until 2/27/77 when he

informed Harris-Teeter that he was available

for employment. He returned in 8/77 as a

picker. He was classified as a forklift

driver in 7/77. Junior whites were promoted

to leadman positions as follows:

(a) Doug Dover, hired on 10/31/74 as

a picker, was promoted to night shift leadman

in the produce department on 1/26/76. In

this job Dover set up the trucks for the a

-98-

produce department and put together the

orders. LeGrand performed these same duties

in the kreerer department. On 8/30/76, Dover

left this position.

(b) Terry Givens was rehired on

11/3/74, after previous employment of three

weeks early in 1974. On 6/7/76, he was

promoted to leadman in the meat department

on the night shift. |

as a produce picker. On 11/22/76, he was

formally given the job title of leadman in

the produce department. He replaced Dover.

Fowlkes was the "de facto" leadman in that

he performed the duties of a leadman in

September and October, 1976. Fowlkes super-

‘vised the loading duties in September and

October, 1976. LeGrand had more experience

in loading. LeGrand was considered ineligi-

ble for the loading duties that Fowlkes got

because he was in a different department.

: + ea

— a

1 7

N i >

; ar.

- _ iz

* - a

ren <<

uJ 2

2 .

= : . , 5

a 2 en 0. 1 _— > wr te Re Ate. hava (+ — e

wee

LeGrand was qualified to perform the leadman

duties because of his prior job performance

and his experience, including supervision.

LeGrand ws considered ineligible for the

leadman positions because he was on a differ-

ent shift and/or department. LeGrand was

denied promotion because of his race. He

is entitled to appropriate relief during

Stage 2 proceedings. (Tr. 510-539, 951-953,

1010, 1039, 1040; D. B. 81; P. B. 26).

VI. MAINTENANCE OF CLASS ACTION

35. Plaintiff Lilly moved for class

certification on or about 5/20/77. Defen-

dant opposed said motion. By Order dated

7/22/77, this Court certified a class con-

‘sisting of the following:

Plaintiff, and all blacks current-

ly employed by defendant Harris-

Teeter in its Mecklenburg County

facilities; all blacks employed

-100-

by Harris-Teeter in its Mecklen-

burg County facilities at any time

since 7/20/74, who are not

currently employed, and any

blacks who are hired in the

future, all of whom have been or

will be subject to racial discrin-

ination by Harris-Teeter in its

employment policies of hiring,

hiring into certain jobs, racial-

ly segregated job classifica-

tions, promotions, interviewing,

termination, and discipline.

36. Intervenors McKinney, Reed, Le-

Grand, Bailey, Sullivan, Mobley, Gatewood,

Gary, Jones, McManus, Torrence, Fisher,

Johnson, Hunt, McVay, Patterson, Covington,

Carrothers, Goodwin, Burch, and Gregory were

certified as class representatives on August

3, 1979.

-101-

37. The initial class certification

included the stores, main office, and ware-

house located in Mecklenburg County.

38. No plaintiff worked at the main

office. McManus, a warehouseman, sought a

job at the main office. The jobs at the

main office include clerical, middle manage-

ment, and upper management jobs. (P. B. 1,

2). The class finally certified should be

defined to exclude the main office.

39. At the time the original class was

certified, the definition of the class

included unsuccessful applicants for ini-

tial employment. The only claimant who

presented an initial hiring claim was

Porter. Porter never sought to be certified

as a Class representative.

40. There is no evidence in the record

as to the number of unsuccessful black job

applicants.

-102-

41. There is no class representative

applicant for initial employment to protect

the interests of applicants for employment.

42. All claimants (except Porter) were

employed by Harris-Teeter at either retail

stores or the warehouse. Their claims

include discharge and job placement (demo-

tion, transfer, promotion). Defendant has

no written job descriptions, and presented

little evidence concerning job duties. The

evidence of job duties indicates that they

are not difficult. (Tr. 22, 48, 49, 100-

102, 135, 155, 157, 245, 378-79, 515, 864,

1108; P. B. 26-A). The overwhelming majority

of jobs at the warehouse and stores have

skills which are held by or are readily

available to the general public. For exam-

ple:

(a) At the warehouse, when one excludes

supervisory and skilled jobs, the following

a proportions of the work force remain

-103-

(P. B. 1): 1977: 86.1 (347/403); 1976: 89.9

(525/584); 1975: 90.8 (377/415). In 1975

and 1977 the excluded jobs included leadman

positions (described as a working supervi-

sor, Tr. 712), safety technician, battery

repair, all mechanic jobs, garage superin-

tendent, all foreman jobs, supervisors, ser-

viceman, electricians, and refrigeration

jobs. In 1976 the same jobs are excluded

with the addition of foreman, trainee/lead-

man.

(b) Stores: If one excludes the manage-

ment and skilled jobs, (e.g. managers, mana-

ger trainees, head cashiers, meat cutters)

the following proportions of the entire work

force remain (P. B. 1): 1977, 86.4% (580/671;

1976, 91.9% 1198/1303); 1975, 90,58

(1167/1290). |

43. Plaintiffs Reed and Gregory worked

at store numbers 2, 9, 83, and 22. Bach

store has the same basic range of jobs. Bach a

7 * pe eek aX)

-104-

store performs the same function--retail

sale of food and other items commonly found

in the supermarket. Defendant presented no

evidence showing there was a difference in

employment conditions among the various

stores. The stores were under the direction

of a territorial supervisor who had unilater-

al authority to hire, fire, and demote from

the department head level and down. During

the years in question, one territorial super-

visor (Higgins) supervised nine of the four-

teen stores in Mecklenburg County.

44. The size of the annual work force

of Harris-Teeter at the stores and warehouse

is approximately 1500-2000 persons (P. B. 1;

D. B. 16-25). The overwhelming majority of

jobs are basically those which 1 skill

requirements which are held or readily

obtainable by the general population.

_ Employment conditions are generally the

same. Employees are transferred and

-105S-

promoted between the stores and warehouse

departments. Warehouse employees went into

store management (e.g. Fowlkes, P. B. 26) and

were offered store management trainee pro-

grams (e.g. Allison, P. B. 26).

45. Common features of the promotion

and termination practices at the stores and

warehouse are: a basically all-white super-

visory work force; unfettered discretion as

to whom to promote or terminate; unwritten

subjective criteria for promotion and ter-

mination; no written job descriptions; no

written regular job performance evalua-

tions; and, the necessity of the recommenda-

tion of the immediate supervisor for promo-

tion. Defendant did not present any evidence

to show that the conditions of employment

were significantly different between the

stores and warehouse. The certified repre-

sentatives have the same claims (promotion,

-106-

discharge) as the members of the defined

class.

46. Based upon the record in this case,

the class to be certified should exclude the

main office and be limited to the practices

of temrination and promotion. The final

class should be defined as follows:

Plaintiffs Lilly, Gregory, Reed, Mob-

ley, Gary, McKinney, Torrence, Patterson,

Jones, Johnson, Gatewood, Sullivan, Bailey,

and LeGrand, and all blacks currently

employed by Harris-Teeter at its warehouse

and store numbers 1, 2, 5, 8, 9, 22, 39, 52,

53, 55, 59, 62, 66, and 83 located in Mecklen-

burg County; and all blacks employed by

Harris-Teeter (at said warehouse and stores)

at any time since 7/20/74, who are not

currently employed, all of whom may have

been or may be subjected to racial discrim-

ination by Harris-Teeter in its employment

* * 1

4 eee ey 8 “ae

107

policies and practices in reference to ter-

minat ions and promotions.

VII. ISSUES OF CLASS DISCRIMINATION

Terminations

47. The only written policy for ter-

minations is set forth at P. B. 14, p. 210.

This consists of a series of "DON'TS" which

may result in discipline and/or discharge.

The system of discipline varied from one

supervisor to another. An employee could

be terminated with or without prior warn-

ings. The supervisory work force was over-

whelmingly white. (Tr. 1030; P. B. 5).

48. The statistical evidence shows

that:

Ca) The following number of persons

were terminated for the stated reasons:

-108-

Mecklenburg 1974-1978

TYPE * 18 BS TOTAL

All 2786 81.9 616 18.1 3402

Cause

Involuntary 586 71.9 229 28.1 815

Black for cause = 37.2% 229

Black total terminations 616

White for cause = 21.0% 586

White total terminations 7786

The proportion of terminations for cause for

blacks (37.2%) was much larger than the

corresponding white figure (21%) (Tr. 576-

78, 603-606, 1238, 1253; P.B. 34 (mistakenly

referred to as 31 during the trial); b. B.

36).

(b) The pattern for 1974-1978 in Find-

ing 48(a) is the same when individual years

are examined. (P. B. 4, pp 53-65)

-109-

Percentage of Involuntary

(Cause) Terminations of

Total Terminations by Race

YEAR 1 B

1974 24.2 (214/877) 39 (138/354)

1975 29.0 (225/774) 52 ( 74/142)

1976 22.3 (170/761) 38.5 ( 37/96)

force subjected to involuntary (cause) ter-

minations was much higher than the corres-

ponding percentage of whites.

Percentage of Work Force Involuntarily

Terminated (For Cause)

YEAR Ws Bt

1975 14 (225/1869) 25 2 7 —4

1976 9 (170/1794) 13 (37/294

p. B. 4 at pp 63-65

(d) Between 1974 and 1978, blacks

represented 28.1% of all involuntary (cause)

terminations while they represented the

following annual percentage of Harris-

Teeter's Mecklenburg County workforce. 2

. 3 a ee * 1 8

erer ct

-110-

(Tr. 1253; P. B. 34; D. B. 16-25): 24.5%

(1974); 16.8% (1975); 13.9% (1976); 11.7%

(1977-78).

(e) The foregoing data can be statisti-

cally tested. The test is the application

of a well-defined Court-approved mathemati-

cal formula to data already found to be

substantially reliable. This test was de-

scribed by the United States Supreme Court

in Hazelwood School District v. U.S., 433

U.S. 299, 311-312, n. 17 (1977); and Casta-

neda v. Partida, 430 U.S. 482, 496-97, n.

17 (1977). A number of standard deviations

of more than two or three beyond the expected

supports a finding of discrimination under-

cutting a hypothesis that race was not a

factor. EEOC X. United Virginia Bank, 615

FP. 2d 147, 151 (4th Cir. 1980), the Court,

in discussing its application of the test,

_ "recalculated" various factors. In Garrett

81 F.R.D. 25, 32-37

-111-

(M.D.N.C., 1978) the Court applied the same

test to the statistical data presented by

the parties. In the following tests the

sample of total involuntary termination

(815) and observed number of black involun-

tary terminations (229) remain the same.

The only difference is the black percentage

of the Harris-Teeter work force which is

used.

(1) 1974-1978: The sample is 815

(Finding 48(a), supra); the black percentage

of the Harris-Teeter work force is 15.4%

(median annual percentage of work force be-

tween 1974-78 as.set forth in Finding 48(d));

the observed number is 229; the expected

number (total sample x black percentage of

Harris-Teeter work force) equals 125.5; the

difference (observed minus expected) is

103.5, the standard deviation (square root

4 of sample x black percentage x white percent-.

age) equals 10.304; and, the number of

Ov’ tut

8 A 5 N

E 1 — / . AES *

rate

R :

3 te 8

-112-

standard deviations beyond the expected

equals 10.045 (difference divided by stand-

ard deviation).

(2) If the same test is used with a

slightly different black percentage of the

Harris-Teeter work force between 1974 and

1978: (15.7% computed by the addition of the

annual black percentages as set forth above

in Finding 48(d), and dividing the total by

five years to obtain an annual average), the

result is 9.725 standard deviations beyond

the expected. If the same test is used with

another slightly different black percentage

of the Harris-Teeter work force between 1974-

1978: (15.3%: 9715 whites, 1767 blacks,

11,482 total persons, D. B. 16-20, 21-25),

the result is 10.149 standard deviations

beyond the expected.

(f) 1975: The black percentage of the

Harris-Teeter work force is 16.1% (P. B. 4,

p. 64); the sample has 299 total involuntary

19 (ay Sete

ee SS a ae Pe ee? eee ye

1 -113-

terminations (P. B. 4, p. 64); the observed

number is 74 (P. B. 4, p. 64); the expected

nunber is 48; the difference is 26; the

standard deviation equals 6.356; and the

number of standard deviations from the

expected is 4.09.

49. In addition to the statistics,

: there are specific examples of the unequal

. operation of the termination policy. Lilly

gave examples in his testimony of whites

“laying out“ who were not terminated, while

blacks (who were tardy) were terminated.

(Tr. 56, 69-71, 87-88). Another example

involves Richard Gregory who was demoted

without any record of prior written warn-

ings, while Boyce Mullis was allowed to hold

onto his job in spite of numerous written

warnings and finally given an opportunity

to resign after those warnings. See Finding

24, supra.

. . (Continued in Appendix, Volume 11)

-114-

50. The foregoing statistics support

an inference that the application of the

termination practice had a greater impact

upon blacks. Defendant offered no explana-

tion for the statistical difference. The

evidence reveals that the criteria utilized

in the termination system were within the

unfettered discretion of the supervisors.

The criteria wore ‘ant in written form. The

application of such a practice, as shown by

the foregoing statistics, can and does have

an adverse impact on blacks. There are

specific examples of whites receiving warn-

ings only after extensive absences or tardi-

ness, or receiving no warning at all:

(a) Steven Dutch: Dutch was tardy 16

times in 2 months before receiving a written

warning. P.E. 26 at 104-105;

(b) Michael Frick: Frick missed 38.4%

3 of the hours between 2/13/78 and 4/7/78. He

nad ten unexcused absences between 4/4/78 *

-115-

and 6/19/78. He had no warnings. (P.E. 26

at 113-116); |

on 7/29/77 about being tardy six times

between 6/5/77 and 7/29/77. He was promoted

to leadman on 8/7/77. (P.E. 26 at pp 132-

133).

Promotions

52(a) The promotion practice has the

features set forth in Findings 10-20, supra.

(b) The recommendations of the super-

visor (foreman) was necessary for promotion

both at the stores and warehouse. The super-

visory work force at the stores and warehouse

was overwhelmingly white. At the int aie in

1975 and 1976, the supervisory force was at

least 95% white, and it was at least 91%

white at the warehouse (P.E. 5). There have

been no black supervisors at the warehouse.

(See Findings 18-21, supra; Tr. 468, 470).

In 1975, 11 of 13 stores had an all-white

-116-

supervisory work force; in 1976, 10 of 13

stores had an all-white supervisory work

force.

53. The statistical evidence shows

that:

(a) In 1976, blacks represented 5.8%

of 137 store promotions and 9.0% the store

workforce. Sixty whites (93.8%) and four

blacks were promoted to store management

jobs (assistant produce manager, produce

Manager, assistant market manager, market

manager, grocery manager, acting grocery

: manager, grocery manager trainee, relief

grocery manager, deli manager, relief

assistant manager, assistant manager, head

cashier, assistant head cashier). (P. B. 1,

: 23). In non-management store jobs, there

were 69 whites (94.5%) and four blacks (5.5%)

promoted.

(b) In the warehouse, there were nine

2 whites and two blacks promoted to Ss

-117-

leadman/foreman jobs in 1976. (P.E. 3).

These 1976 promotions kept the

-. official/managers jobs basically all white.

In 1975, 94.6% of officials/managers were

white and in 1976 it was 94.7%. (P.E. 5, p.

69). :

represented 3.6% of 110 store promotions,

and 8% of the store work force. Forty-four

whites (100%) and no blacks were promoted

into management jobs (assistant market mana-

ger, market manager, produce manager, —

assistant produce manager, relief produce

Manager, grocery manager, relief grocery

manager, relief head cashier, assistant

store manager, deli manager, assistant head

cashier, head cashier, assistant manager,

store manager, relief assistant manager,

_ Management trainee). (P. B. 23). Sixty-two

Whites (93.9%) and four blacks (6.1%) were

a lO ee Ce = „ „„ LV ee 7) ae

-118-

promoted into non-management store jobs.

i. 3, 30, 21, 28}.

; (d) A comparison of the white and black 4

selection rates shows:

-120-

(e) At the stores/warehouse in 1975,

70.5% of the whites (124/176) who changed

job titles received pay increases, while the

corresponding percentage for the blacks is

56.8% (25/44). (P. B. 3).

VIII. OTHER FINDINGS

Hiring

54. In reference to hiring, the evi-

dence shows that:

(a)(1) In 1976, the store jobs of

bagger, stock clerk, produce clerk, and deli

bakery clerks account d for 531 hires or

82.5% of all hires (531/644). (P. B. 2). In

1975, these same jobs accounted for 82.4%

of all hires (540/655). (P.B. 2). In 1976,

two persons, both white, were hired into

managerial jobs (grocery manager, assistant

market manager). This is 0.3% of the total

hires. (P.B. 2). In 1975, one person ()

val

-121-

was hired into a management position

(assistant market manager). This is 0.2%

of the total hires. (P.E. 2).

(2) In 1976, in the warehouse jobs

of picker, driver, stocker and forklift

driver, there were 255 hires or 76.1% of all

hires (255/335). (P.E.2). In 1975, these

same jobs accounted for 74.5% of all hires

(143/192). (P. B. 2).

(b)(1) Defendant has no written job

descriptions. The overwhelming majority of

jobs at the warehouse (e.g. picker, driver,

stocker, and forklift driver) and at the

stores (e.g. bagger, cashier, stock clerk,

produce clerk, deli bakery clerk) have skill

requirements which are held by or readily

available to the general public. See Finding

42, supra; P. B. 26-A.

(2) Defendant has no educational

requirements for its jobs.

-122-

(3) Defendant-did not present any

evidence showing the degree of skill

required in any job. O

55. The appropriate labor markets show

the following black availability (P.E. 8).

(a) Mecklenburg County labor force:

1. 1973 21.21

2. 1976 21.81

(b) Charlotte Standard Metropolitan

Statistical Area (SMSA) Experienced Civil -

ian Labor Force: 1970 20.4%B

56. Harris-Teeter hired as follows:

Total * B

1975 Stores 655 613 12

Warehouse 192 122 70

Total N 735 ITZ

1976 Stores 644 596 48

Warehouse 335 267 68

Total 575 863 116

57. The plaintiffs' statistical expert

conducted a statistical analysis of the data

-123-

set forth in P. B. 8. He used the z test

for significance of difference between pro-

portions" and a "T test." These standard

tests are accepted by statisticians. The

test results were:

(a) Hires in all Mecklenburg County

facilities.

Test

Year Labor Market Results

1975 Mecklenburg Labor Pool 0.001

1976 Charlotte SMSA Labor Pool 0.001

The test results mean that there was one

chance in one thousand that the lower per-

centage of black hires at Harris-Teeter

could have occurred randomly (disassociated

with race) when compared with the labor

market availability of blacks.

(b) Hires at stores:

Test

Lear Labor Market Results

1975 Mecklenburg County Labor Pool 0.001

1976 Charlotte Labor Pool 0.001

9 1 8 nes : W 4

JJ ˙ biñu Oe ee ae Pee Ly aes

124

The test results nean that there vas one

chance in one thousand that the lover per-

centages of black hires at Harris-Teeter

stores could have occurred randomly (dis-

associated with race) when compared to the

labor market availability of blacks.

Unit of Test

Hires Labor Market Results

All Mecklenburg Labor Pool 0.001

Charlotte SMSA Labor Pool 0.001

Stores Mecklenburg Labor Pool 0.001

Charlotte SMSA 0.001

The test results mean that there was one

chance in one thousand that the lower per-

at SF TR ee ee

centage of black hires at Harris-Teeter

could have occurred randomly (disassociated

with race) when compared to the labor market

availability of blacks. All test results

were statistically significant. (Tr. 652-

658).

-125-

58. Utilizing the test set forth in

‘Finding 48(e), supra, and the hiring data

set forth in Finding 56, and the labor

markets set forth in Finding 55, supra, the

following results are obtained:

N Wr Win Keren een IN Wb Pa sal A 9

.. 2, 8, 23).

Bee SS oF

Total Pro B Rate

Unit Year a 1 W Rate B Rate ate

Warehouse/ 1976 1603 284 en 10.66% 7.39% 69.3%

Store

Stores 1975 1191 99 104 6 8.73% 6.1% 69.8%

Stores 1976 1192 111 129 8 10.8% 7.2% 66.7%

811

7 2 * , K #3 > —— * an « *

r 3 * 4 > (7 poe ware it: N 2 .

= 2

TOTAL BLACK EXPECTED OBSERVED STD Vo. OF STD. DEV. _

YEAR HIRED AVAILABILITY NUMBER NUMBER DEV. FROM THE EXPECTED

1975 847 21.2% (Co. Labor

Force, 1973) 179.56 112 11,895 5.680

20.4% (Charlotte

SMSA Experienced

Labor Force) 172.8 112 11.728 5.184

1976 979 21.8 (Co. Labor

Force, 1976) 213.4 116 12.919 7.539

20.4 (Charlotte

SMSA Labor Force) 199.7 116 12.608 6.638

-9ZI-

If one utilizes the same test and excludes persons hired into management

or skilled jobs, the results are as follows:

1975 838 20.4 (Charlotte

SNA) 171 110 11.665 5.221

21.2 (co. 1973) 177.7 110 11.831 5.722

5 1976 947 20.4 (Charlotte

. SMSA) 193.2 115 12.401 6.305

21.8 (co., 1976) 206.5 115 12.706. 7.201

+ 15 —

a me eS

-127-

For the store hires in 1976, the excluded

jobs are grocery manager, assistant market

Manager, produce manager trainee, meat

cutter, grocery manager trainee, and deli

manager trainee. This would make the hiring

breakdown 583 whites and 48 blacks. In 1976,

for warehouse hires, the excluded jobs would

be mechanic III, refrigeration mechanic,

forklift mechanic, electricians, and mainte-

nance mechanic. This would make a hiring

breakdown of 249 whites and 67 blacks. In

1975 at the stores the excluded jobs would

be meatcutter and assistant market manager.

This would make the breakdown 611 whites and

41 blacks. In 1975 at the warehouse the

excluded jobs would be forklift mechanic,

mechanics and leadman. This would make the

breakdown 117 whites and 69 blacks. (P. B. 2).

-128-

Decrease in Black Work Force; Increase in

White Work Force

59. There was a considerable decline

in the number of black employees between

1974 and 1978. There was a considerable

increase in the number of white employees.

(a)

Year * B Source

1974 1546 527 D. B. 5, 14, 15, 20, 25

1975 1507 321 D. B. 4, 12, 13, 19, 24

1976 1887 309 D. B. 3, 10, 11, 0,

1977 1872 267 „. 2, , 9, Bis ee

1978 2372 322 D.. 1, 6, 7, ,

(b) The differences between 1974 and

1978 are 826 additional whites and 205 fewer

blacks. The black work force decreased by

38.9% (205/527), while the white work force

increased 53.4% (826/1546). The defendant

did not offer any explanation as to why there

was a large decrease in the black work force

and a large increase in the white work force,

60. Employment practices by the defen-

a dant as a company, statistical evidence, and

-129-

individual cases of discrimination support

the findings of discrimination set forth in

paragraphs 22-58.

61. Plaintiffs' attorneys have pro-

vided valuable services.

62. Dr. Michalowski is an expert in

statistics, and performed valuable

services.

63. The discrimination against

Messrs. Porter, Lilly, Reed, Gregory, Gary,

Mobley, McKinney, Torrence, Patterson,

Jones, Sullivan, Bailey, and LeGrand was

because of the employees' race or because

they filed BEOC charges, or both.

64. Plaintiff Trial Exhibits 1-9, 1l-

25, 26 (except page 58), and 26A-34 are

admitted into evidence and are specifically

found to be accurate. (Tr. 692-94, 1254)

(At trial, plaintiff's exhibits 31-34 were

mistakenly referred to as plaintiff's exhi-

bits 28-31).

-130- +

65. The claims of Fisher, Gatewood,

Ervin, Carrothers, Anderson, Pharr, Good-

win, McManus, McMoore, Burch, and Reed

(termination) were dismissed by Order (filed

6/7/81).

CONCLUSIONS OF LAW

1. The Court has subject matter juris-

diction under 28 U.S.C. §1343(4) and 42

U.S.C. §2000e-5(£)(1) and 2000e-5(£)(3)

(§s706(£)(1), 706 (£)(3) of the Act.)

2. The defendant is an employer within

the meaning of 42 U.S.C. §000e(b) and a

person within the meaning of 42 U.S.C. §1981.

3. All procedural requirements of

Title VII have been met, 42 U.S.C. §2000e-

$(£)(1).

4. Intervenors Reed and Gatewood

worked in a store, as did plaintiff Gregory.

The remaining intervenors worked in the same

warehouse as did plaintiff Lilly. Both Lilly

-131-

Equal Employment Opportunity Commission

(BEOC). The claims of the intervenors

involved racial discrimination at Harris-

Teeter's warehouse and stores. The claims

of Lilly and Gregory involved racial discrim-

ination by Harris-Teeter at the warehouse

and stores. The motion was timely. The

Claims of the intervenors were identified

in plaintiffs' answers to defendant's inter-

rogatories prior to the motions to inter-

vene. The fact that none of the intervenors

(other than Gregory) has exhausted his

administrative remedies does not prohibit

intervention. Lilly exhausted his prejudi-

cial administrative remedies. His amended

charge alleged class discrimination in dis-

charge and promotion (P. B. 17). The claims

of euch intervenor were within the scope of

Lilly's charge. The intervention did not

unduly delay or prejudice the adjudication

of the rights of the parties. Federal Rules

-132-

of Civil Procedure, Rule 23(d) contemplates

intervention. See Advisory Committee's

Notes on Rule 23(b)(2), 39 F.R.D. 69, 102.

The intervenors alleged a general policy of

discrimination in termination and promotion

as did Lilly in his BEOC charge and judicial

complaint. Within the discretion of the

Court, the intervention of Reed, Mobley,

Gary, Gregory, McKinney, Torrence, Patter-

son, Jones, Johnson, Sullivan, LeGrand,

Bailey, McManus, Fisher, Hunt, McVay,

Covington, Carrothers, Goodwin, Burch, and

Gatewood is proper. See e.g. United Air-

lines, Inc. v. McDonald, 432 U.S. 385 (1977);

Muskelley v. Warner § Swasey Co., 653 F.2d

112 (4th Cir. 1981); Wheeler v. American

Home Products, 563 F.2d 1233 (Sth Cir. 1977);

and Oatis v. Crown Zellerbach, 398 F.2d 496

(Sth Cir. 1968).

5. In reference to the claims of

13 ‘i “ 5 8 ; 7 . : 2 de <r hai N *

m err

Intervenors Reed, Mobley, Gary, Mckinney,

-133-

Torrence, Patterson, Jones, Johnson, Sulli-

van, LeGrand, and Bailey, the defendant has

raised the defense of the Statute.of Limita-

tions.

(a) Those intervenors have stated

Claims under 42 U.S.C. §1981. The Statute

of Limitations for §1981 is the most analo-

gous Statute of Limitations of the state

where the deprivation occurred. In this

state the most analogous Statute of Limita-

tions is either N.C.G.S. 881-5201) or 1-

52(2). See Chisholm vs. U.S. Postal Service,

516 F.Supp. 810, 871 (W.D.N.C. 1980) and

Pittman v. Anaconda Wire and Cable Co., 408

F.Supp. 286, 293 (B. D. N. C. 1976). Bach

statute is for 3 years. The, complaint in

_intervention was filed on 8/15/79. The

claims of intervenors Reed, Mobley,

McKinney, Torrence, Patterson, Jones,

Johnson, Bailey, and LeGrand arose within 3

years of the filing of the complaint in

4 intervention. They are therefore timely a

aah : 2 e 3 :

+ yal eee

134

except for the positions noted below: James

Mobley (Terry Givens' promotion of 6/7/76);

Jerome Gary, Roy Torrence (promotion of

Mitchell on June 16, 1975); Roosevelt

Patterson (promotion of Terry Givens on

6/7/76; promotion of Neil Mitchell on

in 5/76); and, John LeGrand (Doug Dover's

promotion of 1/26/76; Terry Given's

promotion of 6/7/76).

(b) A class is limited to those per-

sons who could have filed timely EEOC charges

at the time the class representative filed

his or her charge. Wetzel v. Liberty Mutual

Insurance Company, 508 F.2d 239 (3rd Cir.

1975). The act of filing a class action

Court complaint tolls the Statute of Limita-

tions on the individual claims of members

of the alleged class. Eisen v. Carlisle 8

Jacquelin, 417 U.S. 156, 176 n. 13 (1974);

American Pipe § Construction Co. v. Utah,

8 8

2 N -

7 3 Mi —

1 7

-135-

414 U.S. 538, 554 (1974); Parker v. Crown,

Cork and Seal Company, F.2d , Number

81-1965 (4th Cir. April 23, 1982); and Susman

vy. Lincoln American Corp., 587 F.2d 866, 869

(7th Cir. 1978) cert. denied. 445 U.S. 942

(1980). In the context of 42 U.S.C. §2000e

et seq., this means that the filing of a

Class action complaint tolls the Statute of

Limitations for the claims of individual

members of the class. The tolling date is

180 days prior to the filing of the class

representative's EEOC charge. The earliest

EEOC charge (Lilly) was filed on 1/20/75,

and his judicial complaint was filed on

6/18/76. The beginning date of the class

is 7/24/74. All of the complaints of the

intervenors are based upon actions which

occurred after 7/24/74. They could have

filed BEOC charges at the time Lilly did or

thereafter. The claims of the intervenors

are timely. See e.g. Parker, supra, and

to ee Aah eee) ee ae

-136-

Gill v. Monroe County Dept. of Social Ser-

vices, 79 F.R.D. 316, 331 (WDNY, 1978).

6. By earlier orders of the Court,

these proceedings were conditionally certi-

fied as class actions under Rule 23. Review-

ing this issue at the close of the evidence,

the Court is of the opinion that class certi-

fication should be modified and made perma-

nent. The requirements of Rule 23(a) have

been carefully applied in this action. The

analysis has been rigorous. Because of the

evidentiary record in this case, the careful

application of the requirements of Rule

23(a) and the rigorous analysis the previous-

ly certified class has been modified. There

has been no presumption that any of the

requirements of Rule 23 have been met. Each

requirement has been met because of the

record present in this case. See General

Telephone Company of the Southwest v.

50 U. S. L. v. 4638 (6/14/82), and

Falcon,

-137-

Stastny v. Southern Bell Telephone and

Telegraph Co., 628 F.2d 267 (4th Cir. 1980).

Lilly and Gregory have filed timely charges

and have exhausted the administrative proce-

dures under Title VII. The plaintiffs have

. evidence which supports their

Claims that they were discriminatorily

denied promotions and discharged. They

have, therefore, been subjected co the same 4

practices from which they seek relief on

behalf of the class. Chisholm v. United

States Postal Service, 665 F.2d 482 (4th

Cir. 1981).

(a) During the time relevant to this

ote eh eT

proceeding, defendant employed approximate- .

ly 200 black employees annually. More than *

200 black employees each year, including in .

excess of $0 store employees, and 150 ware-

house employees, have been affected or

potent i115 affected by defendant's employ-

ment practices, The number of bieck

— 1 weet

~ 2 *

-138-

employees affected is too numerous to make

joinder of all class members practical.

(b) The claims of plaintiffs and the

class present common questions of law and

fact. The relief plaintiffs seek is also

typical of the relief sought on behalf of

the class. Plaintiffs have shown that over

an extended period of time defendant has

denied them equal promotional opportuni-

ties, and has discharged them discrimina-

torily. Defendant's promotion policy as

well as the discharge procedure are applica-

ble to all the stores and warehouse. Plain-

tiffs' evidence demonstrates that race has

been the dominant factor which has influ-

enced or determined defendant's personnel

practices complained of. Plaintiffs seek

relief froa defendant's practices, as

authorized by Title VII, for all black

employees who have been adversely affected

dur ing the time relevant to this proceeding.

: - ‘

ure Pe ee eee

6 Laat ete Lari eo en ee

-139-

The evidence at trial demonstrated by means

of statistics, proof of specific, individual

cases, and review of unfairly applied person-

nel practices that black employees have been

victims of these discriminatory practices

and that such practices have classwide scope

and effect.

to typicality is governed by Hill v. Western

Electric, 596 F.2d 99 (4th Cir. 1979). In

reliance upon East Texas Motor Freight v.

Rodriguez, 431 U.S. 395 (1977), the Fourth

Circuit held that persons employed by the

defendant cannot represent a class which

includes applicants for initial employment.

This case has one claimant who had a hiring

claim. All persons certified as class repre-

sentatives have been or are employed by

Harris-Teeter. Applicants for initial

employment are hereby excluded from the

class definition.

-140-

(d) Hill makes it clear that the

typicality requirement is met by plaintiffs

who are seeking to challenge practices at

the same facility. 596 F.2d at 102. This

case meets the Hill test. Two class repre-

sentatives who exhausted the EEOC process

worked at the stores and the warehouse. The

other class representatives worked at either

the stores or the warehouse. All of the

certified representatives have the same

Claims as the class members (either promo-

tion or discharge). Each store presents the

same range of jobs and performs the same

function retail sale of supermarket items.

Nine of the stores were supervised by the

same territorial manager. The warehouse

functions were related to store activities.

Employees were transferred and promoted

among the various warehouse departments and

between and among the warehouse and stores.

2 Warehouse employees were offered positions

ie ti Ae

— er

— 3

class definition.

-141-

in the stores. The stores and warehouse are

al located within the County. Common fea-

tures of the promotion and termination prac-

tices which adversely affected black employ-

ees were present at both the stores and ware-

house. The overwhelming majority of jobs

required skills which are held by or are

readily available to the general public.

The warehouse and stores draw basically from

the same external labor market for their

hires. See e.g. Chisholm v. United States

Postal Service, supra, 665 F.2d 482; and

Patterson v. American Tobacco, 535 F.2d 257

(4th Cir. 1976).

(e) The main office is different.

None of the plaintiffs and intervenors

worked at that office. The jobs at the main

office were specialized management jobs.

The main office is hereby excluded from the

2 —

ty Dee

-142-

(f) Finally, by their conduct in this

case and by presenting solid evidence of

discrimination, plaintiffs and their coun-

sel have adequately represented the

interests of the class. The plaintiffs do

not have interests antagonistic to those of

the class.

(g) Through the implementation. of

personnel practices which have limited the

employment opportunities of plaintiffs and

other black employees, defendant has pursued

practices which have generally affected

black employees in the same way, thereby

making appropriate final injunctive relief.

Additionally, the questions of law and fact

connon to the employees affected predominate

over any questions affecting only individu-

5 als. A class action proceeding will avoid

conflicting results, will expedite final

resolution of the various claims and is 3

superior and preferable to other renedies

: : a

1 wt dha Vip is

29 1 88 1

tutes ro 2

See oS Poy aye

41 > es

4 ow

-143-

which may be available to plaintiffs and

other black employees of defendants.

(h) These proceedings should, there-

fore, be certified as a class action under

Rule 23(a) and (b)(2) with the class defined

as Plaintiffs Lilly, Gregory, Reed, Mobley,

Gary, McKinney, Torrence, Patterson, Jones,

Johnson, Gatewood, Sullivan, Bailey, and

LeGrand; and all blacks currently employed

by Harris-Teeter at its warehouse and store

numbers 1, 2, 5, 8, 9, 22, 39, 52, 55, 59,

62, 66, and 83 located in Mecklenburg County;

and all blacks employed by Harris-Teeter (at

said warehouse and stores) at any time since

July 20, 1974, who are not currently

employed, all of whom may have been or may

be subjected to racial discrimination by

Harris-Teeter in its employment policies and

practices in reference to terminations and a

promotions. See Chisholm v. United States a

Postal Service, supra; Wetzel v. rty

-144-

Mutual Ins. Co., 508 F.2d 239 (3rd Cir.

1975); BBOC v. Printing Industry of Metropo-

litan Washington, 27 EPD paragraph 32221 (D.

DeGe 1981).

7. Plaintiffs may establish liability

against an employer under Title VII by esta-

blishing that an employer has pursued or is

presently pursuing policies and practices

which limited the employment opportunities

of black employees to a statistically signi-

ficant degree. See e.g. Hazelwood School

District v. United States, 433 U.S. 299

(1977); International Brotherhood of Tean-

sters v. United States, 431 U.S. 324 (1977);

EEOC v. Radiator Specialty, 610 F.2d 178

(4th Cir. 1979); BBOC v. American National

Bank, 652 F.2d 1176 (4th Cir. 1981). To

make such a showing, plaintiffs must demon-

strate that through the use of identifiable

employment criteria or procedures black

- employees have suffered disproportionately. 3

-145-

The sample of employees affected must be

otherwise eligible for he job positions or

employment opportunities in question. Where

statistics are used, the number of employees

involvec must be large enough for the Court

to draw reliable conclusions and the dispar-

ate impact of the practices must be statisti-

cally significant (two or more standard

deviations if binomial analyses are used)

so that the observed cannot reliably have

occurred by chance. Hazelwood, supra; Ameri-

can National Bank, supra. If plaintiffs

rely on difference in treatment, they must

demonstrate by the preponderance of the evi-

dence that black employees have been treated

differently in employment opportunities

because of race and that the employer has

acted intentionally or purposefully. Team-

sters, supra. Purpose or intent may be shown

by circumstantial evidence which eliminates

all legitimate, non-racial explanations for 1 9

„

«py ite

2 vas subjected to involuntary terminatioins;

-146-

the employer's practices. Village of Arling-

ton Heights v. Metropolitan Housing Develop-

ment Corp., 429 U.S. 252, 266-268 (1977).

(a) Terminations (Findings 23, 47-

50, supra). The policy is unwritten except

for rules of conduct. A violation of the

rules may or may not result in discipline

or discharge. The system varies from one

supervisor to another. Whites who violated

the rules were not terminated while blacks

were. White employees violated a rule many

times before receiving a nine Such

features, where a statistically significant

imbalance in employment actions has been

shown, are badges of discrimination that

tend to corroborate the racial bias shown

by the statistics. B. B. O. C. v. American

National Bank, supra, 652 F.2d at 1198. The

rau statistical evidence shows that: a much

higher proportion of the black work force

-147-

between 1974-78, the black work force at

Harris-Teeter decreased by 38.9% while the

white work force increased by 53.4%; and,

between 1974-78 blacks represented 28.1% of

all involuntary terminations while repre-

segfing a much smaller proportion of the

work force. The statistical test results

were that the actual number of blacks invol-

untarily terminated ranged from 4.09 to

10.149 deviations above the expected number

of blacks. Those results rule out chance as

a cause. American National Bank, supra, 652

F.2d at 1192. Defendant's only evidence was

a summary of the numbers and reasons why

persons were terminated. Plaintiffs' sta-

tistics alone support the conclusion that

black employees as a class were discrimina-

torily discharged. When considered with the

other evidence of record, that conclusion

md > ie

-148-

supra; Williams v. Trans-World Airlines, 660

F.2d 1267 (8th Cir. 1981); Flowers v. Crouch-

Walker, 552 F.2d 1277 (7th Cir. 1977); Bolton

v. Murray Envelope, 493 F.2d 191 (Sth Cir.

1974); Edwards v. J. C. Penny, 27 BPD para-

graph 32356 (N.D. Ga. 1981); Bledsoe u.

Wilker Brothers, 24 EPD paragraph 31468

(W.D. Tenn. 1980).

(b) Promotions (Findings 10-20, 24,

25-34, 51-57)

There are no writtewn job descriptions, no

written system of promotion or promotion

criteria, and no system of regular job per-

formance evaluation. The promotion criteria

(e.g. attitude,“ "initiative," etc.) were

vague and subjective. Supervisors were not

furnished written instructions specifying

qualifications necessary for promotion. The

supervisor's recommendation was an impor-

tant factor in the promotion process. There

; was no job posting until 1979. The current

re ets. + ive eed

-149-

job posting is limited to the warehouse.

The practice of the "same shift, sane depart-

ment“ was applied unevenly. The only excep-

tion to it in the record are white persons.

The overwhelmingly white management/super-

visory work force of defendant is unfettered

in its discretion to decide whom to promote

and what factors to utilize in any promotion

decision. Employees learned of vacancies

by word of mouth, the appearance of a new

employee, or current employee working a

different job. There was no requirement

that a person ask for a particular job in

order to be considered. Refusals by blacks

to take jobs on particular occasions were

carefully remembered. They were never asked

if they had changed their minds. Relevant

job experiences of blacks was ignored by

management. Relevant job experience of

blacks not noted on the application form was

deemed not to exist; however, word of mouth

4 *

-150-

experience of whites was remembered. These

factors corroborate the racial bias shown

by the statistics. American National Bank,

652 F.2d at 1198. The statistical evidence

shows that: In 1975 and 1976 blacks

represented a much lower percentage of the

store promotions than their percentage in

the store work force; in 1975-76 there were

104 whites and 4 blacks promoted to

management jobs at the stores; and the black

promotion rate was less than 70% of the white

promotion rate. The instances of individual

discrimination show the adverse effect of

the defendant's promotion practices upon

qualified blacks. The defendant's defenses

to the individual claims showed disparate

treatment (e.g. same shift/same department

policy has only white exceptions; relevant

prior experience of blacks either ignored

or forgotten while that of whites carefully

remembered). The defendant's statistical

2 ,

f Food “y *

8 2

— 8

* 3

-151-

defense unnecessarily limited the available

black pool. This defense ignored qualified

blacks and the exclusion of blacks from many

jobs (Tr. Asher 51-52; D. B. 26-35, 123-25;

P. B. 1). The evidence is reflective of both

disparate impact and disparate treatment.

The plaintiffs have proved a pattern and

practice of discrimination on the basis of

race in promotions through the use of statis-

tical evidence and individual instances of

racial discrimination. The examination of

the promotion practice reveals that it was

applied to blacks in an adverse and inequi-

table manner. International Brotherhood of

Teamsters v. United States, 431 U.S. 324;

Griggs v. Duke Power, 401 U.S. 424; Chisholm,

supra; Brown, supra; American National Bank,

supra, 652 F.2d at 1197-1202; Barnett v- X.

T. Grant, 518 F. 2d 543 (4th Cir. 1975); and

Rock X. Norfolk and Western Railway, 473

aaa OF

, 5

1 at 2

F.2d 1344 (4th Cir. 1973). See also %

-152-

C. F. R. §1607.4(d) and Chisholm, supra, 24

EPD paragraph 31326 at p. 18036 (W.D.N.C.

1978).

The hiring evidence, in conjunction with the

promotion evidence, can be examined to deter-

mine whether discrimination is present.

Fisher v. Proctor and Gamble, 613 F. 2d 527,

541 (Sth Cir. 1980). The defendant has no

written job descriptions. The evidence pre-

sented showed that the overwhelmingly major-

ity of jobs had skills that are generally

held by or readily available to the general

public. The defendant never presented any

evidence which justified its limitation of

the available labor force to a special

market. (D.B. 16-25). When, as a matter of

law, there is a question as to whether a

particular job or jobs have skills which

justify the use of a special market, the

defendant has the burden of presenting

-153-

evidence of the skills which require limita-

tion to a special market. EEOC v. Radiator

Specialty, 610 F.2d 178, 185 (4th Cir. 1979).

A statistical analysis of all hires shows

that there was one chance in 1,000 that the

lower percentages of black hires at Wgrris-

Teeter could have occurred by chance. When

the same statistics were tested by the bino-

mial test, the results were that the actual

number of black hires varied from 5 to 7

standard deviations below the expected nun-

ber. After eliminating management and

skilled jobs, the same results were

obtained. These results remove chance as a

cause. American National Bank, supra, 652

F.2d at 1192. The hiring evidence supports

the findings and conclusion of a pattern and

practice of discrimination on the basis of

race in promotions. Fisher, supra.

9. Where, as here, plaintiffs have

succeeded in establishing that an employer

-154-

has discriminately denied black employees

equal promotional opportunities or has dis-

criminated against black employees in dis-

charges, individual claims should be review-

ed with this background. Sledge v. J. P.

Stevens § Co., Inc., 585 F.2d 625, 637-643

(4th Cir. 1978). See also Teamsters, supra.

Bach class member is entitled to a presump-

tion of discrimination. The employer can

overcome this presumption by demonstrating

by a preponderance of the evidence that

factors other than the condemned discrimina-

tion caused the challenged decision. See

also, American National Bank, supra at 1201.

10. This Court has reviewed the indi-

vidual claims under the more restrictive

standards of McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973) as further ampli-

fied by Texas Department of Community

fairs v. Burdine, 450 U.S. 248 (1981).

‘See also, Teamsters, supra, 431 U.S. 326,

-155-

358, n. 44; Brady v. Thurston Motor Lines,

F.2d (Ath Cir. Jan. 11, 1982). Under

this approach, individual claimants have the

burden throughout the liability stage of

establishing that they have suffered inten-

tional discrimination. They may establish

a prima facie case by showing that they:

were qualified for promotion or transfer; a

vacancy existed; they were not selected;

and, a white employee was selected. They

| may also establish that they were treated

differently by their employer in other

employment opportunities than similarly

situated white employees. If plaintiffs

establish a prima facie case, the burden of

producing some evidence, but not the burden

Of persuasion, shifts to defendnt to offer

seme legitimate, non-racial explanation for

ayes Petes 9 ehem

* 1

4 2 a be

;

-156-

evidence, if taken at face value, explains

its allegedly discriminatory action. If the

employer offers a reason for the challenged

action, plaintiffs must then show (with addi-

tional evidence) or demonstrate (based on

evidence already admitted) that the employ- 5

er's explanation is pretextual. The Court

may then review all of the record evidence,

with plaintiffs retaining the burden of per- ,

suasion, to determine whether unlawful dis-

crimination has been established. Tean-

sters, supra; Burdine, supra.

11. The Court will now review the

individual claims of plaintiffs, inter-

venors and class members who testified at

trial under the above standards. All of the

evidence bearing on each claim has been

considered by the Court. The detailed exami-

nat ion included consideration of a prima 4

facie case, articulation by defendant of a :

"legitimate, non-discriminatory explanation —

on ae

—9—

vie yp

-157-

and whether the explanation was pretextual. |

Decisions of credibility have entered into |

the examination. Where the Court concluded

that defendant offered proof of a legiti-

mate, non-discriminatory explanation, that

conclusion has been based upon admissible :

evidence with no burden of persuasion being

placed on defendant. Where the Court con-

cluded that the defendant's explanation was

pretextual, it did so by examining all of

the evidence with the plaintiffs bearing the

burden of proof and persuasion throughout.

Where liability was established, the Court

also found proof of discriminatory purpose

or intent in defendant's actions. Bach

prevailing claimant is entitled to appro-

priate relief in Stage 2 proceedings. a

(a) Bdward Porter established a prima : 3

facie case by showing that he applied for

‘Sa ‘position of truck driver, that he 4s

8 that 3 e at he

-158-

was not hired, and that whites were hired.

' Defendent stated there was no vacancy.

Standing alone, this evidence constituted a

legitimate, non-discriminatory reason. Con-

sidering all of the evidence, defendant's

reason is pretextual. Nine whites were hired

within 120 days of Porter's application.

One white was hired nine months after he

applied. Porter was not hired because of

his race.

(b) Philip Reed established a prima

facie case when he showed that he applied

for the position of produce manager twice,

that he was qualified, that vacancies

existed, and that less qualified whites vere

selected. Defendant's stated reasons were

that the selectees were more qualified and

that there was no vacancy. These reasons,

Standing alone, are legitimate, non-discrim-

‘=

as 1

_ imatory reasons. Considering all of the

ae R 1

* 0 1 " * *

a +

: defendant's reasons are

ts, ; ae 128

1 1 ee a

« ‘hs

eit

Wo)

rar.

-159-

pretextual. There were vacancies. Reed had

more retail grocery management experience

and was more qualified than the promotees.

Harris-Teeter was aware of this experience

but ignored it, just as it did with other

black employees. See Finding 19. Reed was

never considered for either position. The

statistics show that 104 whites and 4 blacks

were promoted to store management positions

in 1975-76. Reed was affected by the discrim-

inatory nature of the promotion system. Reed

was denied the promotions received by Allen

and Wilson because of his race.

racial discrimination at Harris-Teeter on

‘ «1/8/75, and was discharged on 1/10/75. He

3 had performed his job adequately. Lilly has

Paes ee

established a prima facie case. Harris- 3

Teeter stated that it terminated Lilly

_ because of errors. This reason, standing —

A constitutes a ee 4 n=

4 8 + * “yd?

‘ r N

88 N >i ws

-160-

discriminatory reason. Considering all of

the evidence, defendant's reason is pretex-

tual. The Court has made credibility deci-

sions in favor of Lilly. Lilly was assigned

beef-counting duties as part of inventory

control; subsequent thereto there was a

noticeable improvement. Counting erros had

been made at the stores. Watson never

checked to see if the errors allegedly made

by Lilly had been made at the stores. Watson,

who fired Lilly, used racial terms which are

indicative of bias. See Murray v. American

Standard, 373 F.Supp. 716 (B.D. La. 1973)

aff'd 488 F.2d (Sth Cir. 1973). Statistical

evidence shows that blacks were involuntar-

ily terminated at a significantly higher

rate than their presence in the Harris-

Teeter work force. The record shows differ-

ential treatment. See Findings 48-50. In

Covering several acts of tardiness: - 4

4 -161-

promoted. Lilly was terminated because of

his race and his opposition to practices

made illegal by Title VII. See Williams v.

N TransWorld Airlines, supra; Armstrong v.

Index Journal Company, 647 F.2d 441 (4th

Cir. 1981); Bolton v. Murray Envelope,

supra; Brown v. Rollins, 397 F.Supp. 571

(M. D. N. c. 1974).

— re *

(d) Richard Gregory has proved a prima

facie case of discriminatory demotion in

that he was in a supervisory position, but

he was involuntarily removed from said job, |

1 and he was replaced by a white employee.

Jones v. Trailways, 477 F.Supp. 642, 645 (D.

D.C. 1979). Defendant stated it demoted

Gregory because of his poor job performance.

Standing alone, this articulates a legiti-

mate, non-discriminatory reason. Consider-

ing all the evidence, said reason is pretex- *

tosl. The Court resolves issues of count

2 ity in favor of Gregory. Gregory 1

-162-

credible witness. Gregory's work perfor-

_ mance was praised by his subordinates and

superiors. His attempt to terminate a white

employee who called him a nigger was over-

: ruled. As a grocery manager, Gregory had

to stock aisles himself while his white

replacement did not. Gregory's demotion was

. decided by, and carried out in front of, the

; white territorial supervisor. There are

very few blacks in store management posi-

tions. After Gregory was demoted, he was

a 1 * ee A>? >

transferred to another store where he was

3 harassed in various ways. Gregory, after

filing his BEOC charge on 1/25/75, resigned

in 5/75 because of the harassment and demo-

tion. The conditions and treatment were

4 intolerable and illegal. This justified

4 Gregory's resignation. See Calcote v. Texas

3 luc: ona. dund. ic 578 F.2d 95 (Sth

wre

833

Cir. 1978). Gregory ws denoted because of

4 7

i —”

=! wis

4 grate some 8 weeks after Mobley !

-163-

because of his opposition to practices made

illegal by Title VII.

(e) James Mobley has proved a prima

facie case in that he was qualified for

promoticn, there were vacancies, he was not

promoted, and whites were promoted. See

e.g. Higgins v. State of Okla. Ex. Rel. Okl.

Emp. Sec., 642 F.2d 1199, 1201 (10th Cir.

1981). Harris-Teeter stated that the

promotees were more qualified, Mobley was

on strike when Allison was promoted, and

Mobley was in a different department/shift.

Standing alone, each reason is legitimate

and non-discriminato-y. Considering all of

the evidence, said reasons are pretextual.

Mobley was more qualified than the promotees

because of his job experience, including

"fill-in" leadman duties and performance. —

He was never considered for the Allison and oe

Givens leadman openings. Allison Pres be

eats

: 9 7

* ry 7

ns the * * 8 ae vr Rete “yy 2 tee, . 4 a >

— : * /

a ee

-164-

work. The same shift/same department

defense for not promoting Mobley to the

"defacto leadman" position of Jeff Fowlkes

is invalid because of the way the practice

was applied, and the adverse impact of said

application upon blacks. See Finding 16.

Finally, this conclusion is supported by the

nature of the promotion system at Harris-

Teeter and its adverse impact upon blacks.

Mobley was denied promotions received by

Givens, Allison, and Fowlkes because of his

race.

(f) Jerome Gary has proved a prima

facie case by showing that he was neither

promoted nor transferred; he sought the posi-

tions; there were vacancies; he was quali-

fied; and, whites received said positions.

Harris-Teeter's reasons for neither promot-

ing Gary (not qualified) nor transferring

4 4 (never asked) standing alone, are legiti- — 15

te, non-discriminatory. ae mise

2 ae

nrg

a epee. 2. ares le ee” oe, 6 ewe ere Fe,

: > —

165

of the evidence, said reasons are pretex-

tual. The Court resolved the credibility

issue of whether Gary asked for the sitdown

lift in favor of Gary. In reference to the

mechanic's position, Gary was more qualified

than the selectees because of his education

and job training. The statistical evidence

in Finding 26 also supports this conclusion.

Finally, this conclusion is supported by the

nature of the promotion system at Harris-

Teeter and its adverse impact upon blacks.

Gary was denied a transfer to the sitdown

lift and a promotion to mechanic because of

his race.

(g) Christopher McKinney has proved

a prima facie case in that he was qualified

for a promotion, there were vacancies, he

was not promoted, he expressed an interest

uin promotion, and whites were promoted.

4 Betria-Tester stated that it did 18 —.

ie ner My.

" . N

Den

—

F . 1 . n eS

166

he was on strike when the positions were

filled. Standing alone, each reason is

legitimate and non-discriminatory. Consid-

ering all the evidence, said reasons are

pretextual. A Harris-Teeter witness testi-

fied that McKinney was not qualified because

of his poor work record and that persons

received warnings when they had a poor work

record. McKinney did not have any warnings.

McKinney was more qualified than either pro-

motee because of nis greater departmental

and supervisory experience. McKinney

informed Harris-Teeter of his availability

for employment before either position was

filled. McKinney worked in the same depart-

ment and on the same shift as each of the

openings. Bach promotee crossed either a

departmental or shift line to receive the

. promotion. This violated the —

ift / depertsent rule. Finally, this con-

a losen 1s ane * the nature of the a

— eee | gs"

5 — 1

lt Pie as: 2 2

= ora . *

5 roe *

experience. He was never considered for the 1

167

promotion system and its adverse impact on

blacks. McKinney was denied the promotions

received by Fowlkes and Weaver because of

his race.

(h) Roy Torrence has proven a prima

facie case in that he was qualified for

promotion, he expressed interest in promo-

tion, he was not promoted, there were vacan-

cies, and whites were promoted. Harris-

Teeter stated that it did not promote Tor-

rence because he did not ask for a position,

and he was a poor employee. Standing alone,

each reason is legitimate and non-discrin-

inatory. Considering all of the evidence,

said reasons are pretextual. Torrence asked

for a promotion. He was told he would never

be promoted. Torrence was rated as an excel-

lent employee. He had prior supervisory

Hanson). He trained Mitchell. The criteria

utilized in the Hanson promotion were sub-

jective. Finally, the conclusion is support-

ed by the nature of the promotion aysten and

its adverse impact upon blacks. Torrence

was denied promotion to the positions

received by Mitchell and Hanson because of

his race.

(i) Roosevelt Patterson has estab-

lished a prima facie case in that he was

qualified for various promotions, he was not

promoted, he asked to be promoted, there

were vacancies, and whites were promoted.

Harris-Teeter stated that it did not promote

Patterson because he left a position, he was

not in the same department or on the same

shift as the openings, he was not qualified,

and he was on strike when the positions were

filled. Steading slone, each: reason is

4 legitimate and gan- dser lalastory. Consid- —

nn :

oF F: 8

a * * 2

uns KE a rr

by .

169 —

pretextual. Patterson was more qualified

than the promotees. Patterson left the

receiver's job because he was denied assist-

ance. The record evidence shows that gener-

ally 2 whites performed this job and Patter-

son performed it alone. He was never consi-

dered for any of the promotions. The same

shift/same department rule is pretextual.

See Finding 16, supra. Patterson was quali-

fied for said positions because of his expe-

rience and performance. The positions were

filled either before Patterson went on

strike or after he notified the employer he

was available for work. Finally, the nature

of the promotion system and its impact upon

blacks supports this conclusion. Patterson

was denied the positions listed in Finding

29 because of his race.

Ag S

(j) Curtis Jones established a prima

facie case in that he asked for the position

of rail unloader twice, he was qualified,

* > * 4 * * . = ag

F ~~ * - = ~ — ee

-170-

he did not receive said position, there were

vacancies, and whites were hired. Harris-

Teeter stated that it did not promote Jones

because of his back problem. Said reason,

standing alone, is legitimate and non-dis-

criminatory. Considering all of the evi-

dence, the reason is pretextual. His back

problems were minor. The supervisor never

asked him about the problem. He was trans-

ferred to the salvage dock where the items

he moved were similar in size to those moved

by a rail unloader. In 2 Harris-Teeter

“hired seven whites and no blacks in

loader/unloader positions. Jones was more

qualified than the hirees. Finally, this

conclusion is supported by the nature of the

promotion system and its adverse impact on

blacks. Jones was denied the rail unloader

positions because of his race.

(k) John Thomas Johnson -- Johnson

. _ was employed in February of 1975 as a picker

-171-

and lift operator in the meat department and

later in the produce department. He was

qualified and available for the lead job and

for the foreman job to which Jeff Fowlkes

was promoted. Fowlkes was slotted into the

lead man's job in October of 1976, and

received the actual job title in November

1976. Johnson's complaint as to Fowlkes

(and as to David Allison and Clyde Kiker)

relates to promotions which occurred in

April, 1977 (Fowlkes); May, 1977 (Allison);

and August, 1977 (Kiker). Although Johnson

was available and qualified from the time

he abandoned the strike in February of 1977,

he did in fact turn down a night job at $4.80

so that he could stay in a day job at $3.90

and look after his children. (His actual

. testimony on this issue was evasive, and it

was only after some prodding from the court

4 that he ever gave a clear answer about the 3

»asliy reasons" which moved him to reject a

2 me g 2 ee Ss heli ae, 9

Pc c een

-172-

the higher paying job). Defendant says that

his turning down the night shift work was

the reason he was not considered for promo-

tion. I am not sure that I ought to take

that reason at face value, but I am unable

to conclude that it was solely pretext.

Relief will not be ordered for John Thomas

Johnson.

(1) Frank Sullivan proved a prima

facie case by showing that he was qualified

for various promotions, he was not promoted,

there were vacancies, and whites were pro-

moted. Harris-Teeter stated that it did not

. Sullivan because he left the forenan

trainee program, was less qualified than the

promotees, and was on a different shift than

a vacancy. Bach reason, standing alone, is

legitimate and non-discriminatory. Consid-

ering all of the evidence, they are pretex-

tual. Sullivan was more qualified than the

pronotees because of his experience,

-173-

including that of leadman. His leaving the

foreman training program as a defense is

unworthy of credence. The same shift/depart-

ment reason lacks credence. See Finding 16.

Finally, the nature of the promotion system

and its adverse impact on blacks supports

this conclusion. Sullivan was denied the

promotions received by Kiker and Hamilton

because of his race.

(m) Kenneth Bailey established a

prima facie case in that he was qualified

for promotions, there were vacancies, he was

not promoted, and whites were promoted.

Harris-Teeter stated that Bailey was not

promoted because he was not as well qualified

as the promotees. Standing alone, this

reason is legitimate and non-discrimina-

tory. Considering all of the evidence, said

reason is pretextual. Bailey was more quali-

fied than each promotee because he had

greater departmental experience and

-174-

performed a broader range of duties. Final-

ly, this conclusion is supported by the

nature of the promotion system and its

adverse impact on blacks. Bailey was denied

the positions received by McClain and Car-

penter because of his race.

(n) John LeGrand established a prima

fcie case by showing that he was qualified

for several promotions, there were vacan-

cies, he was not promoted, and whites were

promoted. Harris-Teeter stated that it did

not promote LeGrand because he was on strike

when Fowlkes was promoted; in a different

department or shift than the vacancy, and

less qualified than the promotees. Standing

alone, each reason is legitimate and non-

discriminatory. Considering all of the evi-

dence, said reasons are pretextual. LeGrand

was more qualified than the promotees

because of his prior experience. He had

more loading experience than Fowlkes.

-175-

Fowlkes assumed the defacto leadman duties

before the strike. The same shift/depart-

ment reason is invalid for the reasons set

: forth in Finding 16. Finally, this conclu-

sion is supported by the nature of the promo-

tion system and its adverse impact on blacks.

LeGrand was denied the promotions received

by Fowlkes, Dover, and Givens because of his

race.

(o) Harris-Teeter advanced its "same

shift/same department" policy as a reason

for failing to promote various claimants.

Said reason is pretextual. See Finding 16.

It is unworthy of credence. The policy was

applied only to black employees. The testi-

mony as to its scope was conflicting. The

only persons denied promotions because of

„re

its application were blacks. This evidence

showed that the ‘practice had an adverse

impact upon blacks and resulted in differen-

tic” treatment for black employeees (e.g. 3

— —

——

176

blacks could not cross shift / departnent

lines, although whites did).

(p) The employer cannot be required

to show that the selectee was more qualified

than the claimant. Burdine, supra. However,

when the employer chooses as its defense the

allegedly superior qualifications of the

selectee, then that evidence should be sub-

jected to the same treatment as any other

evidence when all of the evidence is examined

to see if pretext is present. Harris-Teeter

utilized the qualifications of various

selectees as a defense. That reason is

pretextual because many of the comparisons

involved claimants who were never considered

at the time of the promotion. The "compari-

sons" were prepared solely for ‘Litigation

and were retrospective in nature. The com-

parisons and the witnesses espousing them

were not credible. Harris-Teeter did not

regularly evaluate the job performance of

-177-

its employees. The criteria utilized in

employment decisions were unwritten and sub-

jective. The claimants were more qualified

when a credible comparison is made.

12. The defendant has intentionally

discriminated against each of the prevailing

plaintiffs because of his race in violation

of 42 U.S.C. §§1981 and 2000e et seq. The

defendant discriminated against the class

on the basis of race in promotions and dis-

charges between 7/24/74, and 2/20/80, in

violation of 42 U.S.C. §2000e et seq. Having

found that some of the plaintiffs and class

members suffered from defendant's unlawful,

racially discriminatory employment prac-

tices, the Court must now devise appropriate

remedies. The remedies should, so far as

possible, place the plaintiffs and class

members in the positions they would have

occupied but for defendant's discriminatory a

practices. The relief should include e

a 2 si 3

-178-

appropriate injunctive relief and back pay.

See Albemarle Paper Co. v. Moody, 422 U. 8.

405, 421, 422 (1975); Franks v. Bowman

Transportation Co., 424 U.S. 747, 763, 771

(1976); Chisholm v. United States Postal

Service, supra.

13. Plaintiffs Porter, Reed, Lilly,

Gregory, Mobley, Gary, McKinney, Torrence,

Patterson, Jones, Sullivan, Bailey and

LeGrand have sustained losses of pay as a

result of defendant's practices. They are

entitled to injunctive relief and back pay.

The Court concludes there is no equitable

or other basis for denying such relief.

Because appropriate vacancies may not be

readily available, the plaintiffs (except

Patterson, Gary, and Reed) and other class

members may also be entitled to front pay

- future pay at the rate of the positions

they were wrongfully denied - until they are

3 placed in a job of equal or higher pay. 1

-179-

Patterson v. American Tobacco Co., 535, F.2d

257, 269 (4th Cir. 1976), cert. den. 429

U.S. 639 (1977); James v. Stockham Valves 8

Fitting Co., 559 F.2d 310, 356-358 (Sth Cir.

1977), cert. den. 434 U.S. 103 (1978); White

v. Carolina Paperboard Co., 564 F.2d 1073,

1091 (4th Cir. 1977). Defendant should be

enjoined to reinstate or place these plain-

tiffs (except for Reed, Patterson, and Gary)

and class members in the job positions they

would now occupy but for the unlawful prac-

tices as found herein.

Plaintiffs and the class are also

entitled to an injunction prohibiting

4 defendant from discriminating against black

: employees in promotion and discharge.

Franks v. Bowman Transportation Co., supra.

Additionally, class members who have

suffered from the above practices are

entitled to be placed in their rightful job

positions, including reinstatement where

cr. . .

— 2 bs

ae; 7

ee N 5 af fe : Mi 2 2 r

F E + > "FR 2 x + r 3

at aes

-180-

appropriate, at the first vacancy. Franks,

supra. "Bumping" or displacement of incum-

bent employees will not be ordered. Patter-

son, supra; Sledge X. J. P. Stevens § Co.,

Inc., supra. Rather, class members will be

awarded front pay until vacancies occur and

they can take their rightful positions.

Creswell v. Western Airlines, Inc., 514

F.Supp. 384, 394 (C.D. Cal. 1981).

14. Pursuant to Rule 53, FRCP, the

Court will appoint a Special Master to

receive evidence from the parties and to

make recommendations regarding the relief

that should be awarded with respect to the

individual claims of

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