Petition for Writ of Certiorari — Miles v. General Motors Corp.

(\) Supreme Court, U.S.

g 4 9 1 9 5 ee Be

No.

JUN 28 1988

JOSEPH F. SPANIOL, JR.

CLERK

IN THE

Supreme Court of the United States

October Term, 1987

gtk. MILES, JR., III,

egg _

GENERAL MOTORS CORPORATION,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

For the Sixth Circuit

HARLAND M. BritTz

Counsel of Record

BRITZ AND ZEMMELMAN

414 N. Erie Street

Suite 100

Toledo, Ohio 43624

(419) 242-7415

Attorney for Petitioner

THE GATES LEGAL PUBLISHING CO., CLEVELAND, OHIO—TEL. (216) 621-5647

4

I.

QUESTIONS PRESENTED

I. Where a District Judge has made a factual finding

of racial discrimination in employment, can the Court of

Appeals reverse this finding as ‘‘clearly erroneous’”’

where the District Court believes that the decision

makers were prejudiced against the employee in making

their employment decision and there are numerous facts

upon which he relies in making this decision?

II. Should the rule of United States v. United

States Gypsum Co., 333 U.S. 364, 395 (1948) authorizing

a reversal where “the reviewing court on the entire

evidence is left with the definite and firm conviction that

a mistake has been committed” be construed so as to

prohibit the weighing of the evidence by appellate

courts?

II.

TABLE OF CONTENTS

Questions Presented ;.... 0... ccc cess csc ccecce I

Tobin of AgMONIOR.. ..o6 occ ste sthenne acess beeen III

Gplahate Be sos oss ki dies ce eusdgaasves eet

A Perr r eee Pere re Te ee

Statutory Provisions Involved...................

Shabemses of eb Gees os 6c. 58s ba eee

co -, OO WH WW

Reasons for Granting the Writ ..................

a ree ey ree ee ee ea 14

Appendix: .

Opinion of the United States Court of Appeals for

the Sixth Circuit (March 31, 1988)............ Al

Opinion and Order of the United States District

Court (January 15, ROD < x scsccdvicedurusaees All

Final Judgment Entry of the United States

District Court (September 13, 1985)........... A22

Oe pe

TABLE OF AUTHORITIES

Cases

Anderson v. City of Bessemer City, 470 US.

FRE errr re eer eT ree eT eee eee eee 9,10,11,13

Batts v. NLT Corp., 844 F.2d 331 (April 12,

EE ere 9,10,11,13

McDonnell Douglas Corp. v. Green, 411 U.S. 792

ee es es euadelbeaicees 12

Pullman-Standard v. Swint, 456 U.S. 273 (1982).... 9

United States v. United States Gypsum Co., 333

EE Ee 13

Wainwright v. Sykes, 433 U.S. 72 (1977).......... 12,13

Statutes

U.S.C., Title 42, Section 2000e-2(a)(1)............. 3,4

ES 4

Rule

ee ons oretles 560% 6d cr nbeceesee 3,13

No.

IN THE

Supreme Court of the United States

October Term, 1987

WILLIAM C. MILES, JR.., III,

Petitioner,

vs.

GENERAL MOTORS CORPORATION,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

For the Sixth Circuit

The petitioner William C. Miles, Jr., III respectfully

prays that a writ of certiorari issue to review the

judgment and opinion of the United States Court of

Appeals for the Sixth Circuit.

2

OPINION BELOW

The opinion of the Court of Appeals appears in the

appendix. It is not reported and that fact is reflected in

843 F.2d 1391. The opinion of the District Court for the

Northern District of Ohio is unreported and appears in

the Appendix hereto.

JURISDICTION

The judgment of the Court of Appeals for the Sixth

Circuit was entered on March 31, 1988, and this petition

was filed within ninety (90) days of that date. This

Court's jurisdiction is invoked under 28 U.S.C. Section

1254(1).

STATUTORY PROVISIONS INVOLVED

Rule 52(a) Federal Rules of Civil Procedure:

which constitute the grounds of its action. Requests

for findings are not necessary

credibility of the witnesses.

:

conclusions of law are

motions under Rules 12 or 56 or any other motion

except as provided in Rule 41(b).

United States Code, Title 42; Section 2000e-2(a)(1):

conditions, or privi of employment, because of

such individual's race, color, religion, sex, or

national origin; or . . .

4

STATEMENT OF THE CASE

After having exhausted his administrative remedies,

petitioner brought suit against respondent General

Motors Corporation pursuant to 28 U.S.C. 2000e-5(f)3 for

a violation of 28 U.S.C. 2000e-2(a)(1).

Petitioner, a black male, just shy of a bachelor’s

degree in college, obtained a position with respondent

through a minority recruiter, Ludot (T.12). After a

training program, which included a period of work in the

foundry, petitioner became a foundry supervisor for

respondent at its Central Foundry facility at Defiance,

Ohio.

Although he began working as a foreman on

December 3, 1973 petitioner was reduced to the hourly

ranks once due to layoffs. But he served primarily as a

foreman until he was demoted to the hourly ranks in

June of 1977. This demotion formed the basis of this

suit.

When petitioner was foreman there was only one

other black foreman in a work force of 5000. There was

only one black above supervision, a certain Terry Lee

from “the office’ (T.97).

The Company claimed that petitioner failed to

require his workers to comply with safety and

quality/production rules; that he had excessive down

time and performed ‘“‘work’’ of hourly employees in

violation of the collective bargaining agreement. But the

procedures which the respondent described as ‘‘auditing”’

his operations to assist him to improve were in fact very

disruptive to the efficient functioning of his production

line and actually, in his case, were a form of racial

harassment (T.4-5). As petitioner testified:

5

A. Tom McLenon would come around in my

area during work and he would stand there. Quite

naturally my employees is going to look at him. So

when the line employees noticed him he was

jumping me because they were looking up from the

job, which is the normal reaction.

Q. Did you notice whether he was doing that to

the white foremen.

A. He noticed my people pouring iron; it was

only me getting the criticism. He noticed the other

shifts, too, but I got the criticism.

Q. And the foremen on the other shifts were

white?

A. Yes.

Later, he noted that there was a quality audit.

Supervision was supposed to come by once a day. For

petitioner they did it two to three times a day ‘‘to make

sure they got it’’ (T.25).

Q. After auditing you three times maybe one

(of) them would be a bad audit?

A. Yes.

Q. Did they do that on the other shifts?

A. I was the only one receiving that kind of

treatment (T.25).

Earl Jones, who had poured iron for five years, had

earlier testified that petitioner compared favorably with

other foremen for whom he had worked (T.6-7). Further,

he was not aware that there were any greater number of

line breakdowns under petitioner than under other

foremen (T.7).

Petitioner also contended that supervision

undermined his discipline over his workers while at the

same time criticized him for inadequate discipline.

6

Q. Did you ever discipline any men under you

for not wearing goggles?

A. Yes.

Q. What would happen then?

A. I would send a person out for so many days

and McLenon would pay him for the time he was

out. What is the good of sending him out; it was

nothing but a vacation.

Q. Did that happen on more than one occasion?

A. In just about every case. I can’t remember

one that I put out that didn’t get paid.

There was testimony that petitioner's immediate

supervisor, Thomas McLenon, told petitioner that he

intended to make him quit (T.26).

Why don’t you quit? If you don’t, eventually you

will be put back.

On one occasion after another black foreman, John

Harris, was demoted, McLenon said to petitioner ‘“There

is one more to go.” (T.40). This was not denied by

McLenon. On cross-examination, McLenon admitted

telling petitioner on three or four occasions that he

should quit being a foreman (T.102). This was

purportedly done ‘‘to motivate him”’ (T.102).

Witness Jones had also testified that iron pouring was

done in extremely hot conditions making people irritable

and causing absentee problems (T.5). He noted that as

the result of this petitioner sometimes ‘‘worked’”’,

meaning did some work that only hourly employees were

supposed to do. However, he testified that all foremen do

this on occasion (T.6). Every other witness, who testified

on this point, including respondent’s own supervision,

concurred with this statement. Yet, one of the criticisms

of petitioner was that he “‘worked”’.

7

Witness Files also testified that petitioner supervised

in a difficult area (T.61) but that he ran the department

as well as could be expected (T.61). He also said, when

asked if McLenon treated petitioner any differently than

he treated other foremen, that

he put a lot of pressure on Miles, I would say this

would be quite noticeable (T.63).

Petitioner testified that he was demoted shortly after

he posted an invitation on the Company’s bulletin board

to a fish fry to which all employees were welcome.

I believe this kind of rushed things on me; it

happened the same week.

Petitioner, a large man who played college football,

was also known as “Big Daddy” (Exhibit 1) (T.44).

The District Judge noted that in the conservative

and lily-white environment of Defiance, “such activities

were not viewed with pleasure by those in position of

authority.”’

The petitioner testified that he broke all kinds of

production records as foreman (T.29). Management tried

to rebut this but their records were no longer available.

Although there was considerable testimony

concerning safety laxity, petitioner testified that there

were no lost time accidents under his supervision (T.32).

He also noted that he once ran 100% production on

one line but a different person got credit in the house

organ (T.29). When this was called to management’s

attention, petitioner was told that they ‘“‘forgot’’ (T.30).

He never got the recognition he deserved. When

management testified on this, it was blamed on

“inadvertence” (T.105).

8

Finally, despite efforts by management to show the

contrary, petitioner indicated from personal knowledge

that his replacement was white—one Isaac Sheldon

(T.159). (The Court of Appeals disregarded this

testimony, making its own finding that he was replaced

by another black [Opinion p. A3)).

The District Judge ruled that the demotion to the

hourly ranks was racially motivated and granted relief on

January 13, 1985. On March 31, 1988 the Court of

Appeals reversed, found the decision ‘clearly erroneous’’

and ordered final judgment to be entered for respondent.

9

REASONS FOR GRANTING THE WRIT

The decision below is one of two decisions within a

two-week period wherein the Sixth Circuit found District

Court decisions of racial discrimination ‘‘clearly

erroneous ...”. In both cases, there was ample evidence

to justify the District Judges’ findings of racial

discrimination.

In addition to the case at bar, decided March 31,

1988, the Sixth Circuit decided Batts v. NLT Corp. on

April 12, 1988. That case can be found at 844 F.2d 331.

Petitioner is not unmindful of the reluctance of the

Court to review cases having little significance to the

public at large but primarily to the litigants. Perhaps the

fact the two lower court decisions finding racial

discrimination were reversed as clearly erroneous within

a two-week period will prompt this Court to examine

whether the Sixth Circuit is following precedent in this

area.

The leading case in this area is Pullman-Standard v.

Swint, 456 U.S. 273, 290 (1982):

a court of appeals may only reverse a district court’s

finding on discriminatory intent if it concludes that

the finding is clearly erroneous under Rule 52(a).

Later, in Anderson v. City of Bessemer City, 470 U.S.

564, this Court ruled at page 573 that:

This standard plainly does not entitle a reviewing

court to reverse the finding of the trier of fact

simply because it is convinced that it would have

decided the case differently. The reviewing court

oversteps the bounds of its duty under Rule 52 if it

undertakes to duplicate the role of the lower court.

“In applying the clearly erroneous standard to the

findings of a district court sitting without a jury,

appellate courts must constantly have in mind that

their function is not to decide factual issues de

novo.”

aii |

10

Petitioner believes that in both the case at bar and in

Batts, the Sixth Circuit substituted its judgment for

that of District Court and that this trend justifies this

Court’s intervention. Since in most situations the Courts

of Appeal are the courts of last resort, it is critical that

these courts be reminded that they must resist the

impulse of becoming the ultimate fact finder.

This is particularly critical in an area where a court

infers intent. Intent being within the mind can be

exposed in a variety of ways. One of these ways is in the

manner of giving testimony. In addressing this, this

Court stated in Anderson, supra, at page 580:

In so holding, we do not assert that our

knowledge of what happened 10 years ago in

Bessemer City is superior to that of the Court of

Appeals; nor do we claim to have greater insight

than the Court of Appeals into the state of mind of

the men on the selection committee who rejected

petitioner for the position of Recreation Director.

Even the trial judge, who has heard the witnesses

directly and who is more closely in touch than the

appeals court with the milieu out of which the

controversy before him arises, cannot always be

confident that he ‘“‘knows’’ what happened. Often, he

can only determine whether the plaintiff has

succeeded in presenting an account of the facts that

is more likely to be true than not. Our task—and the

task of appellate tribunals generally—is more limited

still: we must determine whether the trial judge’s

conclusions are clearly erroneous.

In both Batts and the case at bar, there were some

facts which the District Judge could consider in

concluding that there was discriminatory intent.

Furthermore, both District Judges saw and heard all the

witnesses and were in the singular position of being able

to weigh the sincerity of their views. As stated in

Anderson, supra, at p. 575:

11

for only the trial judge can be aware of the varieties

in demeanor and tone of voice that bear so heavily

on the listener’s understanding of and belief in what

is said.

The opinions in the case at bar and in Batts resemble

district court decisions weighing evidence, forming

conclusions, accepting and rejecting arguments. They

reveal a court more interested in the trial court’s

function than in the appellate function. The statement in

Batts that “these incidents cannot possibly support a

charge of intentional discrimination” (p. 334) is clear

evidence of the appellate judges’ substituting their

judgment for that of the district judge. In Batts a

Nashville judge heard Nashville witnesses and

presumedly was well acquainted with the atmosphere in

Nashville. In the case at bar the trial judge, from rural

Huron County, Ohio, in Northwest Ohio, sitting in

Toledo, in Northwest Ohio, and hearing witnesses from

rural Defiance, Ohio, presumedly was well acquainted

with the atmosphere in his own area.

The appellate court challenged the district judge's

finding that Defiance was a “lily white environment.”

Counsel did not request the district judge to make this

finding and, accordingly, did not employ Fed. R. Evid.

201(e) relating to notice. Rule 201(c) permits the trial

judge to take judicial notice ‘“‘whether requested or not’”’.

Whether or not this remark falls into the category of

‘judicial notice’’, the district judge was evincing his own

knowledge of his own district. This is one of the reasons

why deference is given to the findings of fact by federal

trial judges. Perhaps this is the kind of “expertise”

alluded to by the Court in Anderson, supra, at p. 574.

In the case at bar the trial judge believed that

petitioner’s demotion to the ranks was racially

motivated. It is clear from the district court’s opinion

12

that the judge believed petitioner had satisfied the test

to prove a prima facie case of discrimination as set forth

in McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973). As applied to the case at bar the petitioner was

qualified, black, was demoted, and was replaced by a

white. The burden would then shift to respondent to

establish non-discriminatory reasons for its actions. It is

clear that the trial judge believed the reasons stated by

the respondent were, indeed, pretextual. But the

appellate court felt they were not. This is an example of

how the appellate court substituted its judgment for that

of the petitioner.

Furthermore, there was direct evidence of

discrimination. In particular there is the undenied

statement by the supervisor that there was one more to

go, meaning petitioner, after another black foreman

suffered a nervous breakdown.

The supervisor to whom these remarks were

attributed was alleged to have harassed and undermined

petitioner. Petitioner asked to be transferred to another

department but was refused.

Once, when the foundry had an _ exceptionally

productive period, respondent issued a_ bulletin

congratulating its supervisors by name. Petitioner's

name was omitted and when he complained, nothing was

done to correct this.

There was ample evidence upon which a trier of fact

could base a finding of discrimination. Likewise, another

finder of fact might have come to a different conclusion.

A reading of the appellate decision reflects that the panel

was unconvinced that there was discrimination. But this

is not its function. As reflected in Wainwright v. Sykes,

emma,

13

433 U.S. 72, 90 (1977) the trial on the merits was the

main event, rather than a tryout on the road. And as

stated in Anderson, supra, at p. 575:

the parties to a case on appeal have already been

forced to concentrate their energies and resources on

persuading the trial judge that their account of the

facts is the correct one; requiring them to persuade

three more judges at the appellate level is requiring

too much.

Likewise, in Batts, the court of appeals reversed a

carefully thought out 93-page memorandum and order of

the district court, after a twelve (12) day trial. In Batts

the district judge found for some plaintiffs and against

others. Yet the court of appeals found error for the trial

court to find a discriminatory animus from the facts.

Instead it attributed the actions to the ‘‘normal frictions

that occur in any employment relationship’ Counsel does

not represent the losing plaintiffs in Batts and there is

no appeal pending from that case. Yet these two

decisions, handed down back-to-back within two weeks

of each other, cause concern to practitioners in the Sixth

Circuit who handle these kinds of cases.

In both cases, the appeals court relies upon this

court’s language in United States v. United States

Gypsum Co., 333 U.S. 364, 395 (1948) relating to a

reversal where “the reviewing court on the entire

evidence is left with the definite and firm conviction that

a mistake has been committed’’. This language has been

translated in these two cases into a license to weigh

evidence rather than to apply the classic language of

Rule 52(a)—the clearly erroneous test.

This language is subjective in nature and is being

used by the appellate court to substitute its judgment

for that of the trial court. To the extent that this is

being done, the rule should be construed so as to prohibit

such weighing of evidence by appellate courts.

14

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the judgment and opinion of the Sixth Circuit.

Respectfully submitted,

HARLAND M. BRITzZz

Counsel of Record

BRITZ AND ZEMMELMAN

414 N. Erie Street

Suite 100

Toledo, Ohio 43624

(419) 242-7415

Attorney for Petitioner

Date: June, 1988

Al

_ APPENDIX

OPINION OF THE UNITED STATES COURT

OF APPEALS FOR THE SIXTH CIRCUIT

(Filed March 31, 1988)

[NOT RECOMMENDED FOR FULL-TEXT

PUBLICATION]

Case No. 85-3856

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

WILLIAM C. MILES, JR.., III,

Plaintiff-Appellee,

vs.

GENERAL MOTORS CORPORATION,

Defendant-Appellant.

On APPEAL FROM THE UNITED STATES DISTRICT

CouRT FOR NORTHERN DISTRICT OF OHIO

Before: MILBURN and BocGs, Circuit Judges, and

HARVEY,* Senior District Judge.

Per Curiam. William C. Miles, Jr., III, is a black man

who was employed by the General Motors Corporation

(GM) at its Defiance, Ohio, foundry beginning in March

1973. For much of his employment there he worked as a

* The Honorable James Harvey, United States District Senior Judge

for the Eastern District of Michigan, sitting by designation.

A2

foreman, although he also worked as a production worker,

or was laid off entirely. In June 1977, after serving as a

foreman for the preceding twenty-one months, Miles was

demoted to hourly production worker. Miles sued GM

under VII of the Civil Rights Act of 1964, 42 U.S.C.

§2000e et seq., contending that this demotion was based

on his race. GM contends that the demotion was

entirely proper, based on his working record, and that

Miles was in no way treated differently because of his

race.

After a one-day bench trial in September 1980, the

case was taken under advisement. In January 1985, the

district court found in favor of Miles, resting its opinion

on a number of specific factual findings as to practices at

the Defiance foundry and events involving Miles. In the

district court’s view, these findings discounted GM's

stated reasons for demoting Miles.

Upon careful consideration of the record, we find a

number of important instances where the district court's

findings are directly contradicted by the record,

unsupported by the record, or otherwise clearly erroneous.

In the absence of these erroneous findings, plaintiff has

not sustained his burden of showing that the defendant's

reasons for the demotion are pretextual and that he

suffered from disparate treatment on account of his race,

in violation of Title VII. We therefore reverse the

judgment of the district court.

Miles was first hired at the Defiance foundry in

March 1973. After four months of training in a pre-

management program, he served as foreman from

December 1973 until February 1974, when he was laid

off for five months because of business conditions. In

July 1974, he was recalled as a foreman and worked in

A3

that position for six months. From January to

September 1975, he worked as an hourly production

worker because of a reduction in work force. In

September 1975, Miles was again made a foreman and

worked in that position until his demotion in June 1977.

During that time Miles’s work performance, as

reflected by contemporaneous job evaluations from two

supervisors, was consistently marginal. On _ three

performance evaluations from 1975 to 1977, out of forty-

nine rating areas, forty-one were below average. Direct

testimony from supervisors and from company records

indicated: (1) that the shift which Miles supervised had

twice as much “‘down time’”’ as a comparable shift which

he did not supervise; (2) that he received twenty-six

grievances from employees during a period when a

comparable supervisor received three grievances; and (3)

that during his period of employment as supervisor from

1975 to 1977 his shift had sixty-two injuries compared to

twenty injuries on the comparable shift. Further,

supervisors repeatedly observed substantial violations of

safety and work practices on Miles’s shift beyond those

which occurred on other shifts.

The record shows, and the judge made no finding or

indication to the contrary, that Miles was replaced by a

Mr. Jordan, a black man.

None of the above matters was contradicted, or

found not credible by any of the district court’s findings.

Rather, the district court discounted this evidence

based on a series of findings disparaging the general

management and atmosphere of the plant, and the

specific actions of Miles’s final supervisor, Thomas

McClennan. This included such determinations as:

1. That the Defiance plant was a ‘“lily-white

environment’”’;

A4

2. That plaintiff “drove sporty cars” and “played

hard,"’ which was “not viewed with pleasure by those in

positions of authority;”

3. That defendant's arguments based on Miles’s

work performance were unsupportable because ‘‘such

things should be shown by [work] records, and no such

records were provided,”’ so that it must be taken that

“the records would ... refute the claims of the

defendant;”

4. That the shift preceding Miles’s ‘‘usually did not

clean up the pouring line and the ladles before they left,”’

adding to the difficulties of Miles’s shift;

5. That a fellow foreman, Mr. Files, the ‘‘only ...

witness who can be considered as being disinterested,”

had been treated differently than Miles and that Files

thought Miles “‘did exceptionally well at [his work]’’;

6. That McClennan, plaintiff's last supervisor, had

made derogatory remarks after the resignation of

another black foreman, “who was subjected to the same

treatment as plaintiff.”

However, upon our consideration of the record, each

of these items is not supported by the record and is

clearly erroneous.

There was no evidence that the Defiance foundry

was a “‘lily-white environment.’ The evidence instead

supports GM's contention that there not only were there

many black employees, but a significant number of black

foremen were employed. McClennan testified, without

contradiction, that three of six foremen under his

supervision were black. The judge made no specific

findings to support his general assertion. Plaintiff

A5

contends on appeal that his finding could have been

supported based on judicial notice. However, judicial

notice only applies to facts ‘not subject to reasonable

dispute,’’ Fed. R. Evid. 201(b), and only applies where

the opposing party has notice that judicial notice is

being taken. Fed R. Evid. 201(e).

There was absolutely no _ evidence indicating

displeasure by the company at the fact that Miles drove

a Cadillac, a GM product.

Further, the uncontradicted testimony in the record

was that detailed production records are routinely

destroyed after one year. No request was made by the

plaintiff for the preservation or production of the

records. Heretofore, the so-called “missing documents

rule’’ cannot be applied against GM in this situation.

Before the missing document rule will be applied the

missing document must be within the power of the party

to produce, and a demand for the document must have

been made. 2 J. Wigmore, Evidence, $291, at 226 (1979).

See also Layne v. Vinzant, 657 F.2d 468 (1st Cir. 1981).

Therefore the district court erroneously used this rule to

determine conclusively the issue of Miles’s work

performance.

A thorough search of the record has revealed only

one piece of evidence in the entire record regarding any

exacerbation of Miles’s difficulties by sloppiness of the

first shift. In response to a different question, Miles

added that there was a time when “my equipment was in

a big mess and it had to be cleaned up in order to pour

good iron and there was down time, which should have

been charged to the first shift.’ There was no

elaboration, or any intimation that it ever happened

again. There is simply no support in the record for the

district court's finding that the first shift “usually did

not clean up.”

A6

It is particularly strange that the district court

makes no reference to the fact that Mr. Files, its

exemplar of a disinterested witness and of a foreman

who was treated properly and in a fashion disparate from

that of Miles, is black. Thus, the distinction between

Miles and Files was not that one was black and one was

white, but that one was doing an acceptable job and the

other was not.

Ill

The district court correctly set out the analysis

established in McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973), in which a plaintiff must first produce a

prima facie case of discrimination, after which the

employer bears the burden of producing a legitimate non-

discriminatory reason for its action, after which

defendant must establish that defendant’s articulated

reason is pretextual. Jd. at 802-805. Accord, Williams v.

Hevi-Duty Electric Co., 819 F.2d 620, 629 (6th Cir. 1987);

Grubb v. W.A. Foote Memorial Hospital Inc., 791 F.2d

1486, 1492-93 (6th Cir. 1984). However, rather than

conducting this analysis, the court noted that since it

had “heard all the evidence, it would address the

ultimate factual issue, rather than engaging in the

foregoing three-tiered evidentiary analysis.’’ The court

thus did not directly examine the question of whether

management’s reasons were in fact pretext. The court

appeared to rest on a general feeling that Miles had been

treated shabbily, rather than on any evidence that would

justify the conclusion that management’s stated reasons

were non-existent or pretextual. As set forth above, the

court’s specific statements on most of the important

issues go well beyond the record.

The district court did not distinguish its findings of

facts from conclusions of law. It specifically noted that it

would “not make any minute analysis of the evidence

A7

offered, but will resolve the dispute of fact by stating its

ultimate factual conclusion.’”’ However, we have set out

above the major factual statements the judge made in

support of his conclusion that Miles’s demotion had been

based on racial discrimination. After our careful

consideration of the record supporting the above

findings, this court is confident that those findings do

not meet the standard of United States v. United States

Gypsum Co., 333 U.S. 364 (1948). The Supreme Court

there stated that ‘‘[a] finding is ‘clearly erroneous’ when

although there is evidence to support it, the reviewing

court on the entire evidence is left with the definite and

firm conviction that a mistake has been committed.”’ Id.

at 395.

Nor are the district court’s findings insulated from

review by its statement that its findings rested on

‘those little subtleties and variations in the manner and

appearance of the witnesses on the stand, and the way in

which they spoke and responded to questions ...’’ As

' the Supreme Court recently emphasized in Anderson v.

City of Bessemer City, 470 U.S. 564, 575 (1985),

“It]his is not to suggest that the trial judge may

insulate his findings from review by denominating

them credibility determinations, for factors others

than demeanor and inflection go into the decision

whether or not to believe a witness. Documents or

objective evidence may contradict the witness’

story; or the story itself may be so internally

inconsistent or implausible on its face that a

reasonable fact finder would not credit it. Where

such factors are present, the court of appeals may

find clear error even in a finding purportedly based

on a credibility determination.”

In this case the district court did not rely on

believing Miles as opposed to other witnesses in direct

contradictions, as, for example, whether a particular

A8

remark was made to Miles. Miles’s testimony conceded

that he had made nospecific complaints of discrimination,

and he was unable to relate any specific incidents

purporting to display racial animus, with the exception

of one incident.

That incident related to Miles’s hearsay narrative of

a black foreman who apparently left because of mental

difficulties (‘there was one guy who was talking to an

apple’). Miles stated that McClennan had said “‘there is

one more to go,” which Miles apparently understood to

mean one more black foreman who should be disposed of.

However, Miles did not hear the remark himself, gave no

indication that anyone else had made the same

interpretation of the remark, and gave no indication that

he had conveyed his interpretation to anyone else. We

note that it is uncontradicted that there were three black

foremen who worked for McClennan at this time. There

was no evidence whatsoever concerning the relations

between the unnamed foreman and McClennan, so the

court is clearly erroneous in finding that the foreman was

treated the same as Miles, or, indeed, in any particular

manner.

There is no credibility determination involved in the

consideration of Miles’s performance appraisals, which

were uniformly below standards, or the grievance or

injury reports. In particular, despite Miles’s repeated

assertions that he had a “perfect safety record,”’

management could legitimately be concerned about a

significantly higher injury rate as an indication of poor

supervision. Management particularly testified to his

failure to ensure that his workers wore their goggles as

an example of failure to supervise those items that were

most easily supervised. The court also misstates the

record in finding that Mr. Files had testified that Miles

le aor a maha cali De

A9

ran his unit “exceptionally well.’’ The actual statement

in the record is that Miles ran it ‘‘as well as could be

expected,’’ hardly a ringing endorsement.

In short, the district court’s findings display a

consistent overstating of the record to present items

favorable to Miles, with no clear consideration of the key

issue of whether the management concerns were in fact

pretextual. Although GM’s relation to Miles may not

stand as a monument of enlightened employee relations,

the record as a whole simply will not bear the

interpretation that the district court placed on it.

It is possible for there to be racial animus against

one worker even though none is displayed against other

comparably situated workers of that worker’s group.

However, the claim that its actions were based on a

competency determination, and were not a pretext for

discrimination, is certainly buttressed by the fact that

Mr. Files, the court’s star witness, and Mr. Jordan, who

at the time of trial had held Mr. Miles’s job for several

years, are both black.

In this case there is some evidence, which the court

could have credited, that McClennan did not particularly

like Miles and that management was not always

responsive to Miles’s concerns. The court found it

significant that Miles’s name had been left off a

recognition list when the plant had good production.

Despite a protest, no correction was published. However,

after examining all of the evidence, including Miles’s

ratings over a period of time including ratings*not by

McClennan, the consistent pattern of the problems with

his performance, the documentation of greater injuries

and grievances on his shift, and the clear evidence of

appropriate recognition of other black foremen such as

Al0

Files and Jordan, we are left with the definite and firm

conviction that the court erred in finding that racial

discrimination was responsible for Miles’s demotion.

In the absence of the factual findings which have

been found above to be clearly erroneous, there is

insufficient evidence to sustain plaintiff's burden of

showing that his demotion was not based on performance

but rather was a pretext for racial discrimination.

Therefore, judgment of the district court is REVERSED

and REMANDED with instructions to dismiss the

complaint.

All

OPINION AND ORDER OF THE UNITED

STATES DISTRICT COURT

(Filed January 18, 1985)

Case No. C 78-116

IN THE UNITED STATES DISTRICT COURT

FoR THE NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

WILLIAM C. MILES, JR.., III,

Plaintiff,

vs.

GENERAL MOTORS CORPORATION,

Defendant.

OPINION AND ORDER

YOUNG, J:

This is an action under Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. $2000e et seg.,

alleging racial discrimination in employment. The

plaintiff took the necessary steps to bring the matter

before the Equal Employment Opportunities

Commission, which issued a “right to sue’’ letter, after

which a complaint was filed in this Court. The defendant

answered in the form of a general denial. This Court has

jurisdiction pursuant to 42 U.S.C. §2000e-5{f).

The case was tried to the Court sitting without a

jury, and was submitted to the Court upon oral

argument. The trial commenced on September 24, 1980,

and concluded on the same day. This Opinion will serve

as the Court’s findings of fact and conclusions of law.

Fed.R.Civ.P. 52(a).

Al2

The major factual matters are not disputed, but the

conclusions to be drawn from them are very much in

dispute. Basically, the case falls into the so-called

‘disparate treatment” category. While this allegation

has been described as “‘the most easily understood type

of discrimination [because] [t]he employer simply treats

some people less favorably than others because of their

race, color, religion, sex or national origin,” International

Bhd. of Teamsters v. United States, 431 U.S. 324, 335

n.15 (1977), the plaintiff also has the burden of

establishing intentional discrimination by the defendant.

See, e.g., United States Postal Serv. Bd. of Governors v.

Aikens, 460 U.S. 711, 715 (1983), quoting Texas Dept. of

Community Affairs v. Burdine, 450 U.S. 248, 253 (1981);

Teamsters, 431 U.S. at 335 n.15; Field v. Bolger, 723

F.2d 1216, 1219 (6th Cir. 1984).

In order to prevail on his claim, plaintiff first must

establish a prima facie case of discrimination. The Court

may then infer that the discrimination was intentional.

Burdine, 450 U.S. at 254, quoting Furnco Constr. Co. v.

Waters, 438 U.S. 567, 577 (1978) (“the prima facie case

‘raises an inference of discrimination only because we

presume these acts if otherwise unexplained, are more

likely than not based on the consideration of

impermissible factors’”’). Once the prima facie case is

established, the burden shifts to the employer to

“articulate some legitimate, nondiscriminatory reason”

for the alleged disparate treatment. Burdine, 450 U.S.

at 253; McDonnell-Douglas Corp. v. Green, 411 U.S. 792,

802 (1973); Fields, 723 F.2d at 1219. If the defendant

meets this burden of production, the plaintiff then must

be given the opportunity to establish that defendant’s

articulated reason is pretextual. Burdine, 450 U.S. at

253-56; Green, 411 U.S. at 804; Fields, 723 F.2d at 1219.

na an San ashe re -

Al3

Since the Court has heard all the evidence, it will

now address the ultimate factual issue, rather than

engaging in the foregoing three-tiered evidentiary

analysis. See Aikens, 460 U.S. at 715; Fields, 723 F.2d at

1219; Talley v. United States Postal Service, 720 F.2d

505 (8th Cir. 1983), cert. denied, 104 S.Ct. 2155 (1984);

Jones v. International Paper Co., 720 F.2d 496 (8th Cir.

1983). Additionally, in setting forth its findings of fact,

the Court will not make any minute analysis of the

evidence offered, but will resolve the dispute of fact by

stating its ultimate factual conclusions.

The plaintiff at the time of trial was an unmarried

black male of the age of thirty-two years. He had

completed most of the course work for the college degree

of Bachelor of Arts, with a major in Physical Education

and Recreation. He had attended college on a football

scholarship.

The defendant operates a large foundry at Defiance,

Ohio, which at the times involved, employed

approximately five thousand people.

After leaving college in 1972, plaintiff worked for a

short time for a loan company, and then went to an

employment agency, which soon referred him to the

defendant. He was immediately engaged by the

defendant. :

On March 15, 1973, plaintiff began working for

defendant at the Defiance Foundry as an hourly worker.

On August 6, 1973, he was entered into a pre-

management training program. In the course of this

program he worked in several departments at various

locations. On December 3, 1973, he became a foreman at

Defiance. In February, 1974, because of economic

conditions, plaintiff was reduced to an hourly worker,

and remained in that status, with some lay-offs, until

Al4

September 13, 1975. He then returned to his position as

foreman, which he retained until June, 1977, when he

was discharged as a foreman and returned to the position

of an hourly worker, in which he continued until the time

of trial.

The defendant contends that plaintiff never

performed adequately as a foreman, and built a file

documenting the deficiencies in his performance, and

defendant’s efforts to get him to improve. Basically, the

defendant’s evidence charges the plaintiff with inability

to require the workers under him to comply with rules

designed to prevent injuries and insure efficient and

quality production. Plaintiff is also accused of having

excessive amounts of down time in his production line,

and of doing the work of hourly employees very

frequently, in violation of the union contract.

The plaintiff points out that in spite of its large

numbers of employees, the defendant has almost no

blacks in supervisory positions in its Defiance Foundry;

that the procedures which the defendant describes as

“auditing” his operations to assist him to improve them

were in fact very disruptive to the efficient functioning

of his production line and actually, in his case, were a

form of racial harassment; that white foremen were not

subject to such treatment; that his immediate

supervisor, Thomas McLennon, told him he intended to

make him quit; and that when another black foreman,

who was subjected to the same treatment as plaintiff,

suffered a nervous breakdown and was forced to resign,

McLennon said that was another one down, but there

was still another to go, meaning the plaintiff. As to these

last two matters, McLennon didn’t deny the ‘’still one to

go’’ statement, and admitted that several times he told

plaintiff he should quit as foreman, in order, he said, to

“motivate” him to improve his performance.

naan Sk a

Al5

As is always the case in employment discrimination

cases, it is difficult in this case to weigh the testimony of

the parties, who are highly interested, and unconsciously

shade their testimony to make themselves appear in the

best light. Usually there are few really disinterested

witnesses who can throw light on the situation, and the

circumstantial evidence is often ambiguous.

However, by taking all of these matters into

consideration, and recalling those little subtleties and

variations in the manner and appearance of the witnesses

on the stand, and the way in which they spoke and

responded to questioning, it is possible to reach

conclusions.

The picture that the totality of the evidence in this

case shows is that the plaintiff, during the times in

question, was young and exuberant. He worked hard,

and he played hard. He drove sporty cars, and he gave

parties to which all of defendant’s employees were

invited. In such a conservative and _lily-white

environment as Defiance, such activities were not viewed

with pleasure by those in positions of authority.

An iron foundry is a very hard and dangerous place

to work. The defendant’s Defiance plant cast engine

blocks for automobiles. This requires pouring molten iron

out of ladles which are so heavy they must be moved by

cranes. The molten iron must be poured accurately into

openings in the molds which are called ‘’sprue cups.” The

quality of the casting is affected by the manner in which

the metal is poured; including the height from which it is

poured. It is extremely hot, often above one hundred

degrees Fahrenheit in the foundry, and molten iron is

dangerous if it is spilled, as well as being expensive if it

is wasted, either by spillage or defective castings.

Al6

The plaintiff was foreman on the second shift,

working under these hard conditions. All newly employed

iron-pourers started on his shift, and he had to train

them, a process requiring some three weeks time. In

addition, he had to take over after the first shift, which

usually did not clean up the pouring line and the ladles

before they left, leaving those chores to the plaintiff and

his crew. When the plaintiff did discipline his men, his

actions were not always upheld by bis superiors.

The result of this was that riaintiff's line sometimes

had more down time, when it was not moving, than it

should have had. These factors also required the plaintiff

to take a hand at doing the work of hourly workers more

frequently than some other foremen did. Although

section 215 of the union contract forbade foremen from

doing hourly workers’ tasks, and grievances sometimes

resulted from violations, the evidence leaves no doubt

that it was something that very commonly happened.

Every foreman did it, and was grieved of because of it.

While the work rules required iron pourers to keep

their eyes fixed on the sprue cup at all times while

pouring, in fact it is difficult to do so, and not entirely

necessary.

Although the defendant contends that there were

deficiencies in the quantity and quality of the production

on the plaintiff's lines, such things should be shown by

the defendant’s records, and no such records were

produced. Since the plaintiff testified that both in quality

and in quantity, especially the latter, his lines’

production was higher than others, the failure of the

defendant to produce its records must be taken to show

that if produced, the records would support the

testimony of the plaintiff, and refute the claims of the

defendant.

Al7

On the matter of production, one very significant

point was shown in the evidence. On one particular

occasion, the foundry had had an_ exceptionally

productive period. The defendant issued a bulletin

congratulating its supervisors by name. The plaintiff's

name was not listed. Naturally, he was hurt by this, and

complained to defendant’s management. The top

manager told plaintiff he was sorry that his name had

been omitted, but he did nothing to correct the record.

While the defendant's rules provided that a foreman who

could not perform adequately in a particular department

had the right, before demotion, to be transferred to other

areas, the plaintiff's request for such a transfer was

ignored. He was demoted without being given a chance

in a different department.

There was only one witness who can be considered as

being disinterested, William Files, Jr., a foreman in

defendant’s foundry for many years. Mr. Files was

acquainted with plaintiff and his work, and testified that

he did exceptionally well at it. He also knew that there

were difficulties between plaintiff and Mr. McLennon.

The latter put a lot of pressure on the plaintiff and

treated the plaintiff differently than he did the witness

Files.

Files also testified that while foremen were not

supposed to do line employees’ work, it sometimes is

necessary on the spur of the moment to go in and do it.

He had done so, and grievances had been filed against

him because of it.

After considering the evidence as a whole, the Court

is left with no doubt that the plaintiff's demotion was

the result of intentional racial discrimination against him

by defendant's employees, for which the defendant is

responsible.

ie

Al8

The remaining problems in the case concern the relief

to be granted.

A successful Title VII plaintiff generally is entitled

to reinstatement and an award of back pay. The statute,

however, does not countenance the award of legal

damages such as compensatory or punitive damages. See

Harrington v. Vandalia-Butler Bd. of Education, 585

F.2d 192 (6th Cir. 1978), cert. denied, 441 U.S. 932

(1979); Adler v. John Carroll University, 543 F.Supp. 652

(N.D. Ohio 1982); Elis v. Logan, 543 F.Supp. 586 (W.D.

Ky. 1982).

With respect to reinstatement, it seems clear that

once a finding of discrimination has been made,

reinstatement should be granted as a matter of course.

See, e.g., George v. Farmers Elec. Coop, Inc., 715 F.2d

175, 178 (5th Cir. 1983) (after finding of discrimination,

“reinstatement should be granted in all but unusual

cases”). See also Sorrells v. Veterans Admin., 576

F.Supp. 1254, 1265 (S.D. Ohio 1983) (court ordered

reinstatement as an appropriate remedy under Title VII).

The Court finds, therefore, that plaintiff is entitled to be

reinstated to his former position as a foreman.

As to an award of back pay, the law in Title VII

employment discrimination cases now is fairly settled in

this circuit. A back pay award should put the

discriminatee in the same position he would have been in

but for the unlawful discrimination and, absent

<xceptional circumstances, always should be awarded if a

Title VII violation is found. Rasimus v. Michigan Dept.

of Mental Health, 714 F.2d 614 (6th Cir. 1983), cert.

denied, 104 S.Ct. 2151 (1984). A successful Title VII

plaintiff is entitled to receive his salary, including raises,

he would have received absent the discrimination.

Rasimus, 714 F.2d at 626. Further, sick pay, vacation

Al9

pay, pension and other fringe benefits which would have

been received by the plaintiff were it not for

discrimination also should be included in the back pay

award. Jd. Income taxes and social security taxes which

would have been deducted from the wages the plaintiff

would have received absent discrimination should not

serve to reduce any back pay award. Id. at 627.

While it is true that back pay awards are the rule,

not the exception, once there has been a finding of

discrimination, the twin purposes of Title VII should

never be lost on the Court. In the words of the Supreme

Court,

[Given a finding of unlawful discrimination, back

pay should be denied only for reasons which, if

applied generally, would not frustrate the central

statutory purpose of eradicating discrimination

throughout the economy and making persons whole

for injuries suffered for past discrimination.

Rasimus, 714 F.2d at 626 (quoting Albemarle Paper Co.

v. Moody, 422 U.S. 405, 421 (1975)). See also Ford Motor

Co. v. EEOC, 458 U.S. 219 (1982).

Further, Title VII claimants are required to mitigate

their damages by the express language of §706(g), which

provides in pertinent part that:

[interim earnings or amounts earnable with

reasonable diligence by the person .. . discriminated

against shall operate to reduce the back pay

otherwise allowable.

42 U.S.C. $2000e-5(g). This duty to minimize damages is

“rooted in an ancient principle of law,’’ Ford Motor Co.,

458 U.S. at 231; Rasimus, 714 F.2d at 623, and operates

to reduce proper back pay awards otherwise allowable.

Rasimus, 714 F.2d at 623.

A20

In light of the foregoing principles, the Court must

examine the evidence presented to determine whether or

not plaintiff suffered any loss of earnings as a result of

his demotion from foreman to hourly worker. The loss of

earnings in this cause encompass two different areas,

actual wages and salary paid and fringe benefits.

As to the matter of fringe benefits, the only one to

which any reference was made in the evidence is the

right to purchase General Motors automobiles at a

discount. However, no evidence was offered as to the

plaintiff's automobile purchases or what the discount

upon them would have amounted to in money. Hence no

money damages may be awarded for loss of fringe

benefits.

On the matter of wage and salary loss, defendant’s

exhibits U and Y show that plaintiff's earnings as a

salaried worker for June 20, 1977 to June 6, 1980 were

$61,984.73. Had he continued to work as a foreman on

salary, his earnings would have been $60,784.25. Thus

plaintiff suffered no loss of earnings during the period.

Projecting the figures from June 6, 1980 to September

24, 1980, the date of trial, would not change this

situation. The Court thus concludes that the plaintiff had

shown no loss of earnings as the result of the

discrimination practices by the defendant.

In Title VII cases, money damages are limited to the

plaintiff's actual loss of earnings. See Harrington, 585

F.2d at 197. However, since the Court has ordered

plaintiff's reinstatement, if the actual wages he earned

for the entire period from June 7, 1977 to the date of his

reinstatement are less than the salary he would have

earned as a foreman over that period, he is entitled to

judgment for the difference. The parties shall attempt to

agree on the amount to be awarded, if any, and to

A21

stipulate to the amount, employing the standards

enunciated by the Sixth Circuit in Rasimus. The parties

are to bear in mind that any doubts about the amount a

successful plaintiff would have received had there been

no discrimination should be resolved against the

discriminators. Rasimus, 714 F.2d at 628.

As the prevailing party, the plaintiff is entitled to

recover his attorney’s fees and expenses in the case. The

law is now clear as to the method of calculating attorney

fees, and that counsel are expected to work this out

without the necessity of hearing by the Court. The Court

therefore will leave the matter of the amount of

attorney’s fees to be fixed by the parties. However,

should counsel be unable to do so, they should inform

the Court, and the matter of attorney’s fees will be set

for hearing.

Finally, counsel for the plaintiff shall, pursuant to

Local Civil Rule 5.02, prepare and submit a draft of an

order cf judgment expressive of the Court’s findings and

conclusions in this Opinion and Order.

IT IS SO ORDERED.

Don J. YOUNG

Sr. United States District Judge

Toledo, Ohio

A22

FINAL JUDGMENT ENTRY OF THE UNITED

STATES DISTRICT COURT

(Filed September 13, 1985)

Case No. C 78-116

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

WILLIAM C. MILES, JR., III,

Plaintiff

Wa

GENERAL MOTORS CORP.,

Defendant.

FINAL JUDGMENT ENTRY

On January 18, 1985, this court issued its opinion

and order finding for the plaintiff and against the

defendant on the issue of liability, which finding is

hereby confirmed.

The parties have agreed on calculations of damages

with the defendant reserving its exceptions to the court’s

determination of liability. The parties have agreed that

back pay through April 7, 1985 is in the amount of

seventy-nine thousand thirty-eight dollars and 14/100

($79,038.14).

The parties have agreed that there are no damages

for health insurance.

A23

The parties have agreed that the plaintiff is to

receive life insurance benefits equal to twice his annual

base, the same as all salaried employees.

The parties have agreed that the plaintiff has waived

his claim for any damages for company contribution to

the stock purchase plan.

The parties have agreed that interest on the back

pay is in the amount of twenty-four thousand three

hundred seventy-eight dollars and 25/100 ($24,378.25)

through April 7, 1985.

The parties have agreed that the attorney fees and

expenses are five thousand three hundred twenty-eight

dollars and 30/100 ($5,328.30) together with sixty dollars

($60.00) in court costs.

The parties have agreed that an order of

reinstatement shall issue together with an order that

back pay will be added from April 7, 1985 through the

date of reinstatement, which sum is to be calculated at a

later date.

It is therefore, ORDERED, ADJUDGED AND

DECREED, that plaintiff should be and he hereby is

granted a judgment against the defendant in the sum of

one hundred eight thousand eight hundred four dollars

and 69/100 ($108,804.69).

It is FURTHER ORDERED that the plaintiff shall

be reinstated to his former position of foreman and shall

be awarded further back pay from April 7, 1985 through

the date of reinstatement.

It is FURTHER ORDERED that the plaintiff is to

receive life insurance benefits equal to twice his annual

base, the same as all salaried employees.

To all of which the defendant specifically excepts.

/s) Don J. YOUNG

Senior U.S. District Judge