Appendix — Ross v. Buckeye Cellulose Corp.

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9319038 May -6 199

NO.

~ UFFICE-OF-THE CLERK

In The

Supreme Court of the United States

October Term, 1993

ISSIAH ROSS, JR., TABITHA HERRING, JAMES

C. HOMER, JOHNNIE LEE PALMS, GERRY PLANT,

WILLIAM MORGAN PORTER, VERNON ALEXANDER

PUTMAN, GEORGE RUMPH, FRANKLIN ROOSEVELT

SCOTT, EDDIE SLAUGHTER, JOHN wW. TAYLOR,

NANNETTE TYSON and HOSEY J. WHITE, JR.

Petitioners,

Vv.

BUCKEYE CELLULOSE CORPORATION,

Respondent.

Volume II of II

APPENDIX to Petition for writ of

Certiorari to the United States

Court of Appeals for the Eleventh Circuit

APPENDIX: LOWER COURT OPINIONS

Mr. Robert H. Revell, Jr.

COUNSEL OF RECORD FOR PETITIONERS

P. O. Box 829

Albany, Georgia 31702

(912) 434-0360

James Finkelstein

Attorney for Petitioners

Suite 114 Albany Towers

235 Roosevelt Avenue

Albany, Georgia 31701

(912) 436-7824

TABLE OF CONTENTS OF APPENDIX TO PETITION

FOR WRIT OF CERTIORARI

Page

APPENDIX A: DECISION TO REVIEW

United States Court of Appeals decision

gs ee ef Pe er ee 1

APPENDIX B (BUCKEYE I) District Court

Opinion dated August 11, 1989........... 52

APPENDIX C (BUCKEYE II) District Court

Opinion dated April 2, 1990) ......... 117

APPENDIX D (BUCKEYE III) District Court

opinion dated June 4, 1991 ............ 173

APPENDIX E: DENIAL OF MOTION FOR REHEAR-

ING AND MOTION FOR REHEARING EN BANC

Fee Op APO Scene ee Kae e es bakes cake a37

APPENDIX F April 20, 1994 decision of the

United States Court of Appeals for the

Eleventh Circuit in Tyson et al. v.

Procter and Gamble Cellulose

CD oa ea as os eds wa baw a wick eek 239

APPENDIX C (BUCKEYE II)

ISSIAH ROSS, JR., WILLIAM MORGAN

PORTER, JOHNNIE LEE PALMS, JAMES C. HOMER,

JOHN W. TAYLOR, VERNON ALEXANDER PUTMAN,

HOSEY J. WHITE, JR., FRANKLIN ROOSEVELT

SCOTT, GERRY PLANT, TABITHA HERRING, EDDIE

SLAUGHTER, Plaintiffs,

vs.

BUCKEYE CELLULOSE CORP., Defendant

Civ. No. 86-048-ALB/AMER(DF)

UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF GEORGIA,

ALBANY/AMERICUS DIVISION

733 F. Supp. 363

April 2, 1990, Decided

COUNSEL

James Finkelstein, Albany, Georgia,

for Plaintiffs.

Mr. John G. Skinner, Smith, Currie

& Hancock, Atlanta, Georgia, for

Defendant.

App. 118

JUDGES

Duross Fitzpatrick, United States

District Judae.

AUTHOR: FITZPATRICK

OPINION

DUROSS FITZPATRICK, UNITED STATES

DISTRICT JUDGE

In an order issued by the court in

the above styled case on August 11, 1989,

(herein referred to as Buckeye I), the

court concluded that defendant’s Pay and

Progression System was a discriminatory

employment practice that had a disparate

impact on blacks employed at Buckeye

Cellulose Corporation (Buckeye). The court

will now supplement Buckeye I with the

following individual findings of facts and

conclusions of law concerning defendant’s

liability to the individual plaintiffs

arising from their disparate impact clain.

To the extent that any of the following

findings of fact constitute conclusions of

law, they are so adopted.

I. FINDINGS OF FACT

App. 119

JOHN TAYLOR

John Taylor was hired by Buckeye on

September 8, 1980, and initially assigned

to work in the purchase chip area. The

duties Taylor performed while working in

the purchase chip area included unloading

trucks and rail cars; weighing rail cars;

and switching boxcars and chemical cars

between the various units and buildings.

In 1981 Taylor met with Buckeye

management to put together his career

plan. Taylor requested a career plan in

the areas of E & I (electrical and

instrumentation), chip storage, chip prep,

or waste and water. Taylor received a

career plan that had chip unloading-

proficient, waste fuel-basic, and

electrical-basic 50%. He was placed on a

curve two pay schedule. Taylor’s career

plan would remained unchanged until 1985.

In 1982, Taylor went through the

qualification process in the purchase chip

and waste fuel areas. Taylor got a fifty

percent (50%) proficiency rating in the

waste fuel area and a one hundred percent

(100%) proficiency rating in the purchase

chip area. Five years later, in 1987,

Taylor became qualified in the waste fuel

App. 120

area.

Buckeye’s treatment of other

technicians at the plant indicates that

when assigning skill areas, Buckeye

generally took advantage of the experience

a prospective employee brought with him or

her to the company. Ray Harth, a white

technician at Buckeye, is an example of an

employee who received credit for his

previous work experience. Harth came to

Buckeye with ten years of experience as a

mechanic and was assigned to the

mechanical maintenance area and placed on

a curve five pay schedule.

Taylor, on the other hand, was not

afforded the opportunity to take advantage

of the skills he brought to Buckeye.

Relying on his strong background as an

electrician, Taylor made numerous requests

to cross train or transfer into an area

that would allow him to take advantage of

his past electrical experience. However,

he never had E & I placed in his career

plan nor was he ever given the chance to

formally cross train in E & I while at

Buckeye. Don Kersey, a white employee who

worked in the woodyard with Taylor, was

allowed to shift over to E & I. At the

time Kersey changed positions, Taylor had

App. 121

over ten years of electrical experience

and a state electricians license; Kersey

had very little electrical experience and

no experience in industrial and commercial

electrical work.

An employee who started off at

Buckeye in a similar position as Taylor

was one Alvin Wellons, a white male.

Wellons and Taylor both began in the

purchase chip area with purchase chip in

their initial career plan. Wellons, who

was given the chance to cross train, had

maintenance and waste and water skill

areas added to his career plan. He was

placed on a curve four pay level. Taylor

was not allowed to cross train and wound

up being placed on a curve two pay level.

Although Buckeye never did make

formal arrangements for Taylor to cross

train in E & I, the company did place

electrical basic 50% in Taylor’s career

plan and gave him the chance _ to

occasionally work in the electrical area

and to assist E & I technicians at various

times during shutdowns. Buckeye contends

that by giving Taylor these opportunities

to pick up training, Taylor suffered no

harm by not being able to formally cross

train in the E & I area. The court

App. 122

concludes that the informal cross training

is but one example of Buckeye’s true

assessment of Taylor as a valuable

employee who had skills in the E & I area

which Buckeye took advantage of without

Simultaneously reflecting that fact in

Taylor’s career plan.

On an employee record sheet dated

11/20/80 (def. ex. 99 at 4), Buckeye

management personnel Tony Brightman and

Charlie Wisekal state that they have

reviewed Taylor’s career plan and

discussed ways that they might take

advantage of his past electrical

employment experience. They agreed that

Taylor should spend time training with the

E & I group. Upon being allowed to work in

E & I, Taylor was specifically cited for

doing a good job in E & I and providing

valuable assistance to the team. After

making the assessment that Taylor had the

skills that would make him a valuable

asset to the E & I team and that he should

spend time training in E & I, Taylor

received a career plan that did not

include E & I nor was he ever allowed to

formally cross train in E & I. He was

given the skill of electrical, but only at

a qualification level of 50% basic.

App. 123

The evidence indicates that Taylor

had the ability and the qualifications to

work in E & I or at the very least

deserved to have the skill added to his

career plan as a cross skill. It is

claimed by Buckeye that they ceased cross

training in E & I, yet other technicians

had it in their career plans and Buckeye

admits Taylor informally cross trained in

E & I. Buckeye appreciated Taylor’s

electrical experience and profited from it

without compensating Taylor to the same

extent as other white Buckeye technicians

with comparable skills. It was through the

use of Buckeye’s discriminatory pay and

progression system that they were able to

do so.

The many talents Taylor had that

Buckeye took advantage of do not coincide

with Buckeye’s placement of Taylor on a

level two pay curve. The court has noted

above Taylor’s valuable electrical

experience and Buckeye’s use of it. The

court also notes that Buckeye thought

enough of Taylor to make him a shift team

coordinator, although, it did later remove

him from the position before shift team

coordinator ever appeared in his career

plan. Taylor assumed his role as shift

team coordinator in 1981, around the same

time one Sonny Ard, a white male

technician on a pay curve 5 level, also

ascended to the position of shift team

coordinator. Buckeye generally assigned

the shift team coordinator position to

technicians who were on a pay curve of at

least three or better and only to

exceptional technicians who could lead

other team members. During the tenure of

Taylor as shift team coordinator and that

of his successor, Johnnie Lee Palms, shift

team coordinators, other than Taylor and

Palms, were the highest paid persons in

their skill area.

In Taylor’s case, Buckeye’s own

rating of Taylor’s performance lends

support to a finding that there was no

legitimate business reason for Taylor not

to be placed on a higher pay scale than

curve two and consequently pay him more

money. During the first few years of

Taylor’s employment at Buckeye, he

received the type of appraisals that

resulted in other technicians being placed

on a pay curve higher than two. Taylor had

a nine month appraisal in September of

1980 in which he was assessed as

performing slightly above average. (Def.

ex. 99 at 37). In August of 1982 Taylor

received a performance appraisal

indicating he was doing an outstanding

Som. (Deft. ex. 99 at 31). On that

particular appraisal sheet Taylor received

an above average rating in every one of

the appraisal areas. In February of 1983

Taylor again received an assessment that

indicated he was performing his job in an

above average manner. (Def. ex. 99 at 30).

The court makes every attempt not

to second guess the business decisions of

the defendant. However, when defendant’s

own appraisals, compared to the appraisals

of other similarly situated white

technicians, indicates that based on the

criteria it established, Taylor should

have received a more valuable career plan

and been placed on a higher curve; the

court cannot help but reach the conclusion

that Taylor has been treated unfairly.

Taylor has demonstrated that he has

extensive electrical experience, which

Buckeye does value, and that ' he had the

qualifications and ability to be paid on a

pay curve higher than two. On the other

hand, Buckeye has not shown that it had a

legitimate business reason for not placing

Taylor on a higher pay curve. The court

concludes that the only logical

explanation as to why Taylor was not

App. 126

allowed to cross train nor given a higher

curve rating was because he was a victim

of Buckeye’s discriminatory Pay and

Progression System.

TABITHA HERRING

Tabitha Herring, who was a member

of the first hire group, began working at

Buckeye on June 9, 1980. Herring started

out with Buckeye in the waste and water

treatment area. Herring was first trained

in the water area which took approximately

six months. Around ten months to a year

after she had completed water training,

Herring started her waste area treatment

training. At her first qualification board

meeting in 1982, Herring received a 50%

proficiency rating in water and a 25%

proficiency rating in waste. The actual

qualification process that Herring went

through amounted to her being asked a

number of questions for a period that

lasted approximately one hour and twenty

minutes.

In 1984 Herring took another

qualification test in which she received a

100% proficiency in water and a 75%

proficiency in waste. Herring failed to

get a 100% rating in waste despite having

POM. + SA eee RNR career sh 8

App. 127

worked in the area for four years without

any incidents concerning environmental or

turbidity problems. After each of

Herring’s qualification tests she was not

told about any errors she made, no one

went over any of her answers with her, and

nobody explained to her why she had

qualified at the rate and level she was

assigned. Herring did not get another

opportunity to take a qualification exam

until 1987.

Although Herring did not officially

cross train in mechanical maintenance,

around the beginning of 1982, she took all

the required courses in mechanical

maintenance and passed every one of them.

The classes she passed had to be

successfully completed before a technician

would be allowed to cross train in

mechanical maintenance. Before being

allowed to formally cross train however,

Herring was informed that she would need

to qualify 100% proficient in both waste

and water before she could go on to

maintenance. In 1987, Herring qualified as

100% proficient in both areas.

Unlike Herring, there were persons,

both black and white, in the waste and

water area who were permitted to formally

App. 128

cross train before they got 100%

proficient in both areas.

Only two other waste and water

treatment technicians besides Herring had

mechanical maintenance in their career

plans; and of those two only Charlie Kare,

a white male, was allowed to cross train

while the other two individuals, Herring

and Harold Hankerson, both black, never

got the opportunity to cross train.

Herring argues that she was injured

by defendant’s discriminatory Pay and

Progression System because she should have

been paid a higher wage. According to

Herring, one of the ways she was injured

by the System was the unjustified removal

of mechanical maintenance from her career

plan.

Herring was originally placed on a

curve three and given a career plan that

included mechanical maintenance, which had

one of the highest point values offered.

In December of 1982, Herring had

mechanical maintenance removed from her

career plan which caused her to drop from

a curve three pay level to a curve two.

Defendant did not replace mechanical

maintenance in Herring’s career plan with

sccm 2 GS an ae aaa aaceen ena a

TREO HS* Ih GO

App. 129

a skill of similar value.

Defendant produced a great deal of

job performance evidence in hopes of

demonstrating that it had a legitimate

business reason for removing mechanical

maintenance from Herring’s career plan and

placing her on pay level two. Much of that

evidence was not considered because the

court found it to be after the fact

justification which did not affect

defendant’s decision to remove mechanical

maintenance from Herring’s plan and to

place her on pay curve two. Defendant does

concede that a change in the Pay and

Progression System in 1982 was partially

responsible for removing maintenance from

technicians’ career plans. It goes on to

argue, however, that the removal of

mechanical maintenance from Herring’s plan

was predicated on her slow progress in

technical growth in her primary areas and

lack of contribution. The court heard

conflicting testimony concerning those

allegations and finds that Herring’s

technical ability and contributions were

no different than other similarly situated

technicians who did not likewise have

skills removed from their plans.

Another asserted reason for the

App. 130

removal of mechanical maintenance from

Herring’s plan was defendant’s assessment

that Herring did not possess nor develop

the technical skills necessary to

adequately perform in the mechanical

maintenance skill area. The court notes,

however, that Herring took and passed all

the courses in mechanical maintenance a

technician was required to take and pass

before being allowed to cross train in

mechanical maintenance. Herring

demonstrated that she has the ability and

qualifications to train in mechanical

maintenance.

The court is not convinced by the

defendant’s assertions that it had a

legitimate business reason for removing

mechanical maintenance from Herring’s

plan. Rather, the court finds that it was

the effects of defendant’s discriminatory

Pay and Progression System that caused the

removal and Herring’s subsequent reduction

in pay.

JOHNNIE LEE PALMS

Buckeye hired Palms on September 8,

1980, as a member of the last hire group

-and assigned him to work in the woodyard.

During his orientation, Palms expressed a

:

:

App. 131

preference to work in the woodyard unit.

He was given an initial career plan in

1981 that included the skill areas of

longwood, shortwood, and waste fuel. Palms

began working primarily in the shortwood

area but later requested a transfer from

the shortwood area to waste and water

treatment, which he felt was more in line

with his educational and work experience.

When Palms found out he could not transfer

to waste and water because there were no

openings in that area at the time, he

requested the cross skill of mobile

maintenance.

Palms never formally transferred

from the shortwood area. However, he did

get the chance to work in the waste and

water treatment area. Palms was introduced

to the waste and water treatment area in

the latter part of 1981 where he picked up

some training in waste treatment. He first

went down to the waste and water treatment

area for his cross skill training during

the first quarter of 1984 before his 1984

qualification examination.

Palms began training in water

treatment in February of 1986 and finished

the training in January of 1988 when he

was declared proficient in the area. On

App. 132

his proficiency examination in 1988, Palms

was assessed as 100% proficient in waste

treatment and 100% proficient in water

treatment. Before Palms received his

proficiency, he was doing roughly the same

job as technicians who were already

proficient, such as white technicians

Willard Parker, A.J. Niette, Lynn Barry,

Jerry Barry, and a black technician named

Tommy McCuller, who were all being paid

more money than Palms.

A review of Palms’ initial career

plan shows that it called for him to

become proficient in longwood- and

shortwood and to become basic in waste

fuel and basic in waste treatment.

Approximately a month after he received

his career plan, Palms had shift team

coordinator added to his career plan in

October of 1981. The opening was created

when John Taylor was removed from the

position. Palms duties as shift team

coordinator included: bringing the team

together to initiate team meetings; lead

discussions concerning performance results

and maintenance problems; deciding on run

strategies; and reporting to management

the results of the team meeting and any

other factors that had a possible impact

on the operation of the woodyard.

App. 133

As a shift team coordinator, in

terms of the way Buckeye rated a

technicians skills, Palms had a career

plan equal to that of Sonny Ard and Joseph

Willard Parker; and a higher rated plan

than Alvin Wellons. However, Ard, Parker,

and Wellons, all white technicians at

Buckeye, were paid a higher salary than

Palms. During the tenure of Palms as shift

team coordinator and that of his

predecessor, John Taylor, shift team

coordinators, other than Palms and Taylor,

were the highest paid persons in their

skill area. Based on the evidence

presented, the court concludes that there

is no legitimate business reason that

explains why Palms was not compensated

Similarly to the other shift team

coordinators.

Buckeye clearly considered the

shift team coordinator one of its top

positions for technicians, evidenced by

the fact that the position carried one of

the highest point totals given for a

support skill. The court concludes that

Palms failure to receive a salary equal to

that of the other shift team coordinators,

Ard, Parker, and Wellons, can be

attributed to defendant’s discriminatory

App. 134

Pay and Progression System which

arbitrarily doled out career skills and

allowed Buckeye management to have Palms

perform on the same skill level as other

Similarly situated white technicians, but

pay Palms le for doing it.

Palms asserts that there are other

instances of his suffering injury because

of defendant’s discriminatory Pay and

Progression System which occurred after he

stepped down as shift team coordinator.

When Palms gave up the shift team

coordinator position in March of 1983,

based on his belief that he was not being

paid as much as the other shift team

coordinators, he was told that his

resignation from the shift team

coordinator position would move him back a

curve. Fifteen months later his pay curve

was reduced from pay curve three to pay

curve two. Palms said he contends that

even without shift team coordinator in his

career plan, his skills warranted

placement on at least a pay curve three

when you compared him to other equally

qualified white Buckeye technicians.

Upon completion of his 1984

qualification examination, Palms received

a rating of 100% proficient in longwood

App. 135

and 75% proficient in shortwood. Palms,

nevertheless, remained on a curve two pay

level. Other white Buckeye technicians

with lower qualification scores such as

Tolbert Owens, who qualified at 50%

proficient in longwood and 100% basic in

wastefuel, and Harris Miller, who

qualified at 50% proficient in longwood

and 25% proficient in shortwood, were

placed on a curve three pay level and paid

more money than Palms.

Defendant has failed to convince

the court that it had a legitimate

business reason for not paying Palms on a

pay curve three or better. Defendant’s own

proficiency scores of Palms, along with

other evidence presented in this case,

shows Palms to be a highly competent hard

working technician who had the ability and

qualifications to be a top performer in

the longwood/shortwood area, although he

was not paid as such. The court concludes

that, even after Palms gave up his shift

team coordinator position, the defendant

has not produced a legitimate business

reason for compensating Palms at a pay

curve level lower than pay curve three.

The fact that Palms was placed on a pay

curve lower than three can be attributed

to Buckeye’s discriminatory Pay and

App. 136

Progression System.

JAMES C. HOMER

James Homer was hired by Buckeye on

July 7, 1980, and assigned to work in the

pulping unit as a mechanical maintenance

technician. In 1981, he received his

initial career plan from Darrell Hart. The

career plan Homer received listed only a

basic in mechanical maintenance and had

his pay curve level set at curve three.

Homer took his first qualification

board examination in 1982 and was

qualified as 100% basic in mechanical

maintenance. When the new written

qualification examinations were instituted

at Buckeye, Homer obtained a qualification

level in mechanical maintenance of 100%

proficient unit wide and 100% proficient

plant wide.

When he became 100% basic in

mechanical maintenance following his 1982

qualification board examination, Homer

still did not have any other skill areas

added to his career plan. Homer

specifically asked Buckeye management to

add any type of cross training skill to

his career plan. Homer’s requests were

App. 137

turned down despite the fact that there

were other mechanical maintenance

technicians in the same unit as Homer who

had training skills in their plans, but

were not actually undergoing the training.

In his position as a mechanical

maintenance technician, Homer worked with

and performed essentially the same tasks

as white Buckeye technicians Herman

Williams, Donald Ritch, Freddy Hogg, Joe

Rogers, Haywood Jerkins, Tim Phelps,

Charles Willis, Mickey Taylor, and Glenn

Hair. However, Homer’s pay was less than

every one of those Buckeye technicians

despite the fact that they all had the

same job classification.

Defendant contends that Homer was

paid less because he was not as skilled as

the white technicians who received more

money than Homer. Defendant’s measure of

Homer’s skill level waS primarily

established through subjective

qualification review boards, which were a

component part of Buckeye’s discriminatory

Pay and Progression System. Defendant

produced evidence which it asserted

demonstrates that, it had a legitimate

business reason for not including more

skill areas in Homer’s career plan and

App. 138

placing him on a higher pay curve. The

court finds that almost all of that

evidence was after-the-fact justification

which did not actually affect those

decisions made by the defendant. The court

further finds, after analyzing all

reliable and credible evidence, that Homer

had the qualifications to have additional

skills placed in his career plan and to be

placed on a higher pay curve; defendant

did not have a legitimate reason for not

doing so.

It is uncontested that the Pay and

Progression System rewarded technicians

according to the skills contained in their

career plans. Buckeye technicians

Williams, Ritch, Hogg, Rogers, Jerkins,

Phelps, Willis, Taylor, and Hair received

a higher wage than Homer because they had

numerous skills placed in their career

plans, unlike Homer whose original career

plan only listed a basic in mechanical

maintenance. Homer was told by his manager

Hart that the reason he was being paid

less than some of the other white

maintenance technicians was due to his

career plan.

Based on Homer’s qualifications and

defendant’s failure to produce a

legitimate business reason for not putting

additional skills in Homer’s career plan

and correspondingly placing him on a

higher curve level, the court finds that,

if not for the discriminatory Pay and

Progression System, specifically the

subjective manner in which Homer had

skills placed in his career plan, Homer

would have received a higher salary.

FRANKLIN SCOTT

Franklin Scott was hired by Buckeye

On September 27, 1981, aS a process

technician in the pulping unit. Scott was

in a hire group that began work at Buckeye

approximately fourteen months after the

majority of Buckeye technicians were

hired. Scott expressed a preference to

work in the power house unit or in

process. He was told not to put down a

preference in a particular skill area

because that would be arranged for him

once he arrived in the unit.

After being assigned to the pulping

unit and going through about a week of

orientation in the pulping unit, Scott was

asked to indicate the areas in which he

desired to work. Scott responded by

listing digesting as his first choice.

App. 140

Scott was eventually assigned to the O-2

(oxygen generation) area where he would

work aS an O-2 operator in the pulping

unit. Scott’s career plan issued in 1982

listed the O-2 skill area at a proficient

level and his pay level was set at curve

two.

Scott took his first qualification

board examination in 1982 and received a

25% basic in O-2. Scott disputed the score

he was given and on or around December 28,

1982, formally appealed the results

reached by the qualification board.

Scott’s complaint was that the test was

not standardized but rather a subjective

test that one could not prepare for. It

was subjective in Scott’s opinion because

there were methods and practices

concerning the O-2 process that were still

in the developing stage that had not yet

been proven to work. Scott’s appeal to

change his score was not granted by the

defendant.

In attempting to prove that he was

injured by defendant’s discriminatory Pay

and Progression System, Scott compares

himself to white technicians from his hire

group and other O-2 technicians who Scott

asserts he was just as qualified as

App. 141

despite their being paid more than hin.

Scott has failed to convince the court

that he possesses skills comparable to

that group. Defendant presents convincing

evidence that it had a legitimate business

reason for paying Scott less than members

of his hire group and the other 0-2

technicians.

The court proceeds very carefully

when examining evidence of Scott’s job

performance to determine whether it

represents after-the-fact justification

which actually failed to affect the

critical decisions that resulted in Scott

receiving less pay than members of his

hire group and other O-2 technicians. In

the case of Scott, there is uncontroverted

evidence that he had problems performing

his job in a satisfactory manner.

Defendant could have, and evidently did,

reach a decision very early in Scott’s

career with the company that he would at

best be an average employee in whom the

company should not invest a great deal of

time and energy attempting to train in

other skill areas. Scott contends that

defendant’s discriminatory Pay and

Progression System caused him to be paid

less than other similarly qualified white

technicians because of his race. The court

App. 142

finds that it was Scott’s job performance

that resulted in his lower salary.

HOSEY WHITE, JR.

Buckeye hired Hosey White, Jr. on

July 7, 1980. White expressed a preference

to work in unit one as his first choice

and listed power house (unit four) as his

second choice. White was given the

position of mechanical maintenance

technician and assigned to work in unit

four. The specific area in unit four that

White was to work in was the power blower

area where he would be responsible for the

air system and scoot blower. There were

two other technicians, Mike Hutchings and

Olin Hicks, initially assigned to the same

area as White.

White attended training classes

that lasted approximately three months.

The classes covered a wide variety of

areas and included hands on training.

After the three month training period

concluded, White was assigned to C team

along with Clifton Locke, Loyce Clark and

Olin Hicks. White started off working

primarily with Loyce Clark until the two

developed a strained relationship. White

shortly thereafter requested a transfer

App. 143

and was reassigned to A team where he was

matched up with Jimmy Harrison.

White’s first career plan gave him

a basic in mechanical maintenance and

placed him on a curve two pay scale where

he currently remains. Before the career

plan was issued by Chip Akin, White

expressed his preference to Akin that he

be assigned to the maintenance area and be

allowed to get training in E & I, process,

bark boiler, and power boiler. White and

Akin discussed the degree of proficiency

that White would attain in mechanical

maintenance; after which White made the

choice that his career plan should reflect

only a basic in mechanical maintenance.

White objected to having mechanical-

proficient in his plan because he did not

think he would be able to acquire that

level while in unit four. After further

discussions concerning White’s career

plan, White and Akin agreed that the E & I

skill area in his plan would be too

difficult for White to attain, so White

agreed to a career plan that called for

mechanical maintenance and bark boiler.

White never did cross train in bark boiler

and his career plan summary does not

indicate that it was part of his career

plan. White asked Akin if he could cross

App. 144

train in welding and was turned down,

although, Akin sent four white mechanical

maintenance technicians, Loyce Clark,

Terrell Edalgo, John Mays, and Calvin

Benny Moore, to train in welding.

white has failed to convince the

court that he was paid less than any

Similarly qualified white Buckeye

technician on account of defendant’s

discriminatory Pay and Progression System.

Defendant had a legitimate business

reason for fashioning White’s career plan

the way it did and for paying him on a

curve two level. Early in his career,

White exhibited difficulty performing the

technical assignments mechanical

maintenance technicians often encountered.

He, along with fellow mechanical

maintenance technicians John Mays and

Benny Moore, was one of the worst

offenders when it came to completing work

schedules. It was White himself who rated

his skill level at basic rather than

proficient. He has not demonstrated that

he was qualified to be paid on a pay curve

higher than two. The court has found no

evidence to show that, absent the

discriminatory Pay and Progression System,

White would have received any different

compensation nor that, while the System

App. 145

was in place, he was held back or paid

less than white technician with skills

comparable to his.

VERNON ALEXANDER PUTMAN

Buckeye hired Vernon Alexander

Putman on July 7, 1980, as part of its

July hire group. Putman indicated to

Buckeye, when asked, that he would prefer

working in the powerhouse unit. Putman was

assigned to the powerhouse unit to work as

a mechanical maintenance technician. He

first began working with B team which was

comprised of himself and Barbara Key. In

the latter part of 1982 Putman was

reassigned to A team where he worked with

Jonn Mays.

In early 1982 Putman had his

initial qualification board examination.

Putman’s examination was given orally. He

was not told what he would be tested on

before hand nor were any of his answers

discussed with him after the test was

completed. Putman originally received a

50% basic that was changed the next day to

a 75% basic, after Putman spoke with his

manager Steve Pender. Putman did

eventually qualify 100% basic in 1983.

Putman is now rated at 50% proficient but

App. 146

has not yet qualified under the new system

that replaced the old Pay and Progression

System.

Putman’s first career plan had him

listed as having a basic in mechanical

maintenance. He was placed on a curve two

pay level where he currently remains,

although a Buckeye manager, Frank Dennis

Hooper, did wonder why Putman was not

ranked on curve three. Putman’s second

career plan had a basic in either recovery

boiler or evaporators. Putman never did

cross train in either of those, or any

other areas. Some of his fellow white

mechanical maintenance technicians did

have the opportunity to cross train; Jimmy

Harrison cross trained in calcining, Olin

Hicks cross trained on the bark boiler,

Terrell Edalgo cross trained on

evaporators, and John Mays had the

opportunity to cross train in calcining.

Bennie Moore, Loyce Clark, John Mays, and

Terrell Edalgo all had the opportunity to

go to the welding area.

Putman had the same career plan as

Randall Washington, a white mechanical

maintenance technician, but Putman was

ranked on a curve two while Washington had

a curve three ranking. Putman believes he

App. 147

has been treated unfairly when compared to

Randall Washington and also when compared

to Patty Mason and Terrell Edaigo. The

court has determined from the evidence

that Putman was not as qualified as those

individuals. Putman was a hard working

competent mechanic. However, much like

Hosey White, his mechanical maintenance

skills were not comparable to most of the

other Buckeye mechanical maintenance

technicians both black and white. Putman

performed his job at a basic level and as

such defendant has demonstrated that it

had a legitimate reason for paying Putman

on pay curve level two. Putman suffered no

adverse effect because of Buckeye’s

discriminatory Pay and Progression System.

The court is conv_nced that no matter

what kind of employee advancement system

was incorporated at Buckeye, Putman’s

salary and position would not have

changed.

GERRY PLANT

Gerry Plant was hired by Buckeye on

June 9, 1980. At the time he was hired,

Plant expressed a preference to work in

maintenance and did in fact receive an

| assignment to work as a mechanical

maintenance technician in the woodyard. He

aici

App. 148

was placed on a curve three pay scale.

Plant’s original career plan listed

mechanical maintenance at a proficiency

level. In 1984 Plant was issued a new

career plan that had mechanical

maintenance-proficient and administrative

coordinator. Plant had asked to have

machinist, unit five building maintenance,

welding, and process skill areas included

in his career plan, but did not get any of

those skill areas placed in his plan.

Other Buckeye mechanical maintenance

technicians, including Allen Massey, Ray

Harth, Roy Petersen, Doug Johnson, Debbie

Hearn, Chuck Whaley, Bill Chester, Wayne

Tharpe, and Robert White, had cross skills

placed in their career plans in 1981.

Plant was concerned that when he

first began with Buckeye he was not

receiving the job assignments’ that

required the application of technical

mechanical skills. He also talked to

management about what he perceived to be a

Situation where blacks in his unit were

not being allowed to cross train and were

being kept on the lower pay curves by not

having cross skills put into their career

plans. The evidence presented in this case

indicates that very few, if any, blacks in

App. 149

unit one mechanical maintenance had cross

skills placed in their career plans prior

to 1984.

As time went by, Plant developed an

expertise in working on the sludge press,

the chipper, the fulghum cranes, the bark

hog, the chip hog, the stacker, and the

reclaimer. He gained a reputation as being

one of Buckeye’s better employees who was

an excellent mechanic on the chipper.

By June 6, 1983, Plant had moved up

the pay steps on pay curve three to the

point that he had gotten all the pay

raises that one could get while on curve

three. At that point, the only way Plant

could have received a pay raise would have

been for him to have items added to his

career plan so that he would move up to a

new pay curve. Many white employees had

likewise topped out on their particular

curve level. Near the end of 1984,

Buckeye’s Pay and Progression System was

put on hold and there were no more curve

changes. Employees were allowed, however,

to continue advancing within their curve

level.

The qualification examinations,

career plans, and the resulting curve

App. 150

level assignments, all component parts of

defendant’s Pay and Progression Systen,

clearly had a negative impact on Plant.

Plant was recognized as one of the better

maintenance technicians. However, on his

first qualification board examination in

1982, he received a score that at first

appeared to be a 25% proficient, but ended

up being written on his qualification form

as 100% basic. On the mechanical

maintenance qualification board

examinations administered by Buckeye in

1982, Plant and all other black mechanical

maintenance technicians failed to get a

rating higher than basic; the white

mechanical maintenance technicians

originally assigned to the same group as

Plant received ratings no lower than

proficient. In 1987, after the old Pay and

Progression System had been replaced,

Plant achieved a 100% proficiency rating

in mechanical maintenance.

The evidence presented by Plant

demonstrates that his mechanical

maintenance ability was equal to or better

than similarly situated white mechanical

maintenance technicians who were placed on

a higher pay curve than Plant. Examples

include the placement of Chuck Whaley, a

white technician given only a 50%

App. 151

proficiency in woodyard maintenance, on

curve four pay level; the placement of

Bill Chester, a white technician given

only a 25% proficiency in woodyard

maintenance, on a curve four; and the

placement of Deborah Hearn, a white

technician given only a 100% basic score,

on a curve four. Their placement on curve

four occurred at a time when Plant had

qualified as 75% proficient in woodyard

mechanical maintenance and was being paid

on a curve three pay level.

Although defendant produced

evidence which it asserted demonstrated

that it had a legitimate business reason

for paying Plant the salary he was paid,

the court finds that much of that evidence

was after-the-fact justification which did

not affect defendant’s decision to place

Plant on a curve level three. The

remaining evidence amounted to nominal

criticism which fails to provide a clear

explanation for Plant’s failure to be

placed on a curve higher than three.

Accordingly, the court finds that

defendant did not have a _ legitimate

business reason for not placing Plant on a

pay curve higher than three. Furthermore,

the failure of Plant to be placed on a

App. 152

curve higher than three occurred as a

result of Buckeye’s discriminatory Pay and

Progression System.

WILLIAM PORTER

William Porter started working for

Buckeye on December a4 1979, as a

technical trainer in the Woodyard. His job

entailed developing training programs in

the longwood and shortwood area for the

incoming technicians. Porter had hoped he

would be assigned a mechanical maintenance

position. However, despite years of prior

experience as a mechanic, Buckeye chose

not to make Porter a mechanical

maintenance technician. Instead, Buckeye

made a legitimate business decision tht,

with his three years prior experience in

the logging business, Porter would be of

more value to the company working in the

longwood/shortwood area.

On his career plan dated November,

1982, Porter was assigned the skills of

longwood-proficient, shortwood-proficient,

and water-proficient. Porter’s second

career plan contained longwood-proficient,

shortwood-proficient, water-basic, mobile

maintenance-basic, and placed Porter on a

Curve three pay level.

After Porter completed an initial

six week period of training technicians,

he performed follow-up training, updated

training programs, and trained technicians

on new equipment. Porter carried out his

duties primarily in the longwood and

shortwood area of the woodyard, although

he did do some work in water treatment and

worked in mobile maintenance

multiskilling.

In the early part of 1981 Porter

took his first qualification board

examination. Porter’s qualification board

examination coverea longwood and

shortwood. The result of Porter’s

examination was that he received a 100%

proficient in longwood and shortwood.

Sometime in 1983, Porter took another

qualification board exam in water

treatment. On his water treatment

qualification Porter-.was rated at 50%

proficient.

On December 16, 1985, Porter

received a rating of 100% basic in mobile

maintenance. He did not go before a

qualification board to receive the mobile

maintenance rating, but rather answered

some questions posed by the maintenance

App. 154

manager George Palms, who decided Porter

should get the 100% basic rating. Despite

being given only a basic in mechanical

maintenance, Porter wrote the preventative

maintenance plan for the Terex, a large

bulldozer, which other P.M. formats were

modeled after.

Porter’s work in the shortwood and

longwood areas caused him to be exposed to

poison ivy and poison oak which triggered

an allergic reaction in him. Porter had

medication he would take, however, the

company did not want him to take the

medication while he was at work because it

caused him to get drowsy and become unable

to perform his job safely. Porter asked

that this problem be solved by allowing

him to work in the water treatment areas

and mobile maintenance. Buckeye made an

effort to accommodate Porter’s request by

assigning him, as much as possible, to

those areas during the summer months when

the poison ivy and poison oak were most

prevalent. In another attempt to solve

Porter’s allergy problem, Buckeye offered

to transfer Porter to the waste and water

treatment area or certain other units.

Porter declined the invitation, expressing

his desire not to leave the woodyard unit

nor work exclusively in waste and water.

The area Porter wanted to work in

was mechanical maintenance. He made

repeated requests to transfer into that

area. Although his requests to transfer

were turned down, Porter did spend about a

year in mobile maintenance cross training

and approximately six months in waste and

water working in water treatment. Other

unit one white technicians, Lynn West

Barry, Charlie Kare, and Randy Lawhorn,

were allowed to transfer into mechanical

maintenance. Willie Keen, 4 black

technician, who worked in the waste fuel

area was also allowed to transfer into

maintenance on a full time basis.

Porter had outstanding technical

skills and encountered few problems

actually performing his assigned tasks.

However, Porter had a serious attendance

problem that ultimately cost him his job

with Buckeye. It was a problem that

extended throughout Porter’s employment at

Buckeye. The evidence presented

demonstrates countless incidents of

Porter’s unauthorized tardiness or

absences from work.

Porter was made aware of the fact

that his chronic absenteeism had an effect

App. 156

on his job rating. Porter received a three

day suspension in August of 1983 because

of what his manager, George Palms,

described as dishonesty and inadequate

communication regarding tardiness from

work. In a note to the file prepared by

Palms on Porter’s return to work, Porter

was reminded that he stood a good chance

of being fired if he was involved in any

further unacceptable work standards

violations.

After another unauthorized absence

from work, Palms, in a memorandum dated

February 20, 1984, again informed Porter

that he continued to seriously jeopardize

his employment due to excessive lost work

time. On May 10, 1984, Porter called his

manager Bryant Orr, and told him he would

not be able to report to work that night

because he would be in too rough a shape

from being intoxicated. The next day

Porter checked himself into the Houston

County Detoxification Ward and stayed

there for a total of twenty eight days.

Porter returned to work on June 12, 1984,

at which time he was told that if he did

not correct his work attendance problem

his employment with Buckeye would be

terminated. On July 3, 1986, Buckeye firec

Porter because of his frequent absences

and for failing to return to work after

recovering from injuries Porter suffered

in a non-work related accident that

occurred in December of 1985.

Porter asserts that because of

defendant’s discriminatory Pay and

Progression System he was unable to

transfer to the maintenance area and also

failed to get a career plan that had any

real value to it; thereby causing him to

be unfairly compensated. The court finds

that decisions made by Buckeye concerning

Porter’s career plan and salary were not

based on discrimination, but rather

legitimate business considerations

predicated on Porter’s unfavorable work

record. Porter suffered no injury as a

result of Buckeye’s discriminatory Pay and

Progression System.

ISSIAH ROSS, JR.

Issiah Ross, Jr. was hired by

Buckeye on June 9, 1980. Ross, who did not

express a preference to work in any

particular area, was made a waste and

water treatment technician and assigned to

work in the woodyard unit. Ross was placed

on B team along with Harold Hankerson and

Willard Parker. As a waste and water

App. 158

treatment technician, Ross basically did

the same job as Willard Parker, Lynn

Barry, and Jerry Barry.

Ross’ original career plan called

for a basic in water treatment and a basic

in waste treatment. His pay curve was set

at curve two where it remained until he

was fired by Buckeye. Ross’ next career

plan had waste treatment-proficient, water

treatment-proficient, and chip unloading-

basic placed in it.

Ross stayed in waste and water

treatment during his entire career at

Buckeye. In fact, none of the black

technicians in waste and water were ever

transferred to another technical area

while Ross worked at Buckeye. In Ross’

case he never did apply for a transfer,

although he asserts he would have had he

known that E & I technicians and

mechanical maintenance technicians were on

a higher pay curve than waste and water

treatment technicians.

On June 7, 1984, Ross took a

qualification examination in waste and

water which resulted in his being rated

100% proficient in water and 50%

proficient in waste. Ross had another

EEE

App. 159

qualification in waste on December 7,

1984, and was told he received a rating of

75% proficient. A sheet indicating the

results of that December V4 1984,

qualification examination shows that a 75%

was originally written down as the result

of his qualification and then scratched

over and replaced with the notation of not

proficient. (Def. ex. 2 at 63).

ROSS was put on an improvement plan

prior to his 1984 qualification board. He

was asked to write up the improvement plan

but did not do so. One was written up for

him by Lisa Routh. Ross’ improvement plan

primarily listed projects that Ross should

concentrate on completing. Ross was the

only cne in his area put on an improvement

plan. After the plan was drafted and

reviewed with Ross, he was asked and

agreed to present documentation which

would demonstrate his improvement

according to the plan. Ross did not

produce any written documents to show that

he was making progress towards completing

his improvement plan.

Ross became disenchanted and

frustrated with the Pay and Progression

System because of what he perceived to be

its discriminatory effect. His

App. 160

relationship with his fellow employees and

managers began to suffer as a result. Ross

did express some of his concerns to

Buckeye management personnel. On February

20, 1984, Ross met with Hooper and asked

why black maintenance technicians were not

allowed to cross train in the process

area. ,

In 1984 Ross had numerous notes

placed in his file indicating that his

managers were not totally pleased with his

dedication to his job and questioned

whether Ross was performing up to the

fullest extent of his ability. On July 2,

1984, Ross was informed by Buckeye

management that they considered his

contribution level unacceptable. He was

told that if he did not achieve

proficiency in both waste and water

treatment and improve his overall

performance and application of skills, he

would not remain employed by Buckeye. Ross

took a qualification in April of 1985 and

was told that he did not get a 100%

proficiency. Shortly thereafter, Ross was

fired from his job at Buckeye.

During the early years of Ross’

employment at Buckeye, when Ross and other

technicians received their career plan,

OER BAS LORD

SoA RNR OA NT

App. 161

cross training assignments, and were

placed on their respective pay curve

levels, Ross was considered a valuable

employee whose skills were comparable to

Lynn Barry, Jerry Barry, and other white

Buckeye waste and water treatment

technicians who wound up with initial

placements on a curve three pay level or

higher. There is testimony indicating that

Ross was able to carry on day-to-day

operation of the waste and water

treatment area with acceptable results. [In

running the day-to-day operations, Ross

performed the same job that other pay

curve three white waste and water

technicians were doing, although he was

only being paid on a curve two pay level.

A telling indication of Ross’

qualifications and ability to perform his

job as well as the curve three waste and

water treatment technicians was the fact

that his manager chose him, and not one of

the curve three technicians, to train

technicians who were cross training in

water treatment. Ross carried out the task

of training these technicians, despite

the fact that he was not rated as

proficient in water treatment at the time.

In an effort to establish that it

had a legitimate business reason for

App. 162

placing Ross on pay curve two, Defendant

presented evidence which indicated that

there were times when Ross had problems

performing his job. The court finds,

however, that almost all of that evidence

was after-the-fact justification which

could not have affected defendant’s

decision to place Ross on a curve two pay

level. Furthermore, in balancing the

evidence, the court finds that in his

early years with Buckeye, Ross did not

encounter any greater performance problems

than the other white technicians who were

paid on curve three.

Buckeye’s Pay and _ Progression

System caused almost every white

technician who started out in waste and

water treatment to be initially placed on

curve three and almost every black waste

and water technician to be placed on curve

two. That same system injured Ross by

causing him to be placed on curve two

instead of curve three, where, based on

his qualifications, he deserved to be.

Buckeye has failed to convince the court

that it had a legitimate business reason

for placing Ross on curve two when

Similarly situated and equally talented

white waste and water treatment

technicians were placed on curve three.

App. 163

EDDIE SLAUGHTER

Eddie Slaughter was hired by

Buckeye on September 28, 1981. Slaughter

was assigned to work in the woodyard unit

in the chip unloading area. Slaughter’s

June, 1984 career plan summary shows that

he had a career plan that called for chip

unloading at a proficient qualification

level. That same career plan summary

listed a total new career plan that

included chip unloading-proficient, waste

fuel-proficient, and longwood-proficient.

In 1983 Slaughter had a proficiency

rating of 100% basic in chip unloading and

100% basic in waste fuel. In 1984 his

proficiency rating was 100% proficient in

waste fuel and 100% proficient in chip

unloading.

Slaughter was initially placed on a

curve two pay plan and was still on curve

two when his June 1984 career plan was

prepared.

Slaughter asserts that he was

injured by Buckeye’s Pay and Progression

System because its use resulted in him

being paid less money for doing the same

App. 164

work as equally qualified white Buckeye

technicians. Despite his charges, however,

Slaughter failed to appear at the trial

and present any testimony to substantiate

his claim. Nevertheless, Slaughter’s

attorney attempted to prove his case, but

he was unable to demonstrate that

Slaughter was personally discriminated

against. In Slaughter’s case, the court

was left with insufficient evidence to

reach the conclusion that Slaughter

suffered any injuries because of Buckeye’s

discriminatory Pay and Progression System.

II. CONCLUSIONS OF LAW

Plaintiffs in the above styled case

contend that defendant had a facially

neutral employment practice which had a

disp rate impact on plaintiffs in

violation of Title VII of the Civil Rights

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

et seq. In Buckeye I, the court set out to

determine the validity of the plaintiffs’

claim through application of the Wards

Cove test. ni The court initially found

that defendant’s Pay and Progression

System, which utilized career plans, skill

points, rankings, qualification review

boards, and pay curves, was an integral

part of the plant’s function and was a

App. i165

definite policy/practice of the company.

Next, after an exhaustive study of

the relevant statistical evidence, the

court found that plaintiffs had

established the existence of racial

disparity in regard to the salaries paid

to similarly situated n2 black and white

technicians at Buckeye. The court then

ruled that the Pay and Progression System

was the primary, if not sole, method of

determining a technicians salary and that

a causal connection existed between the

exhibited racial disparity and the Pay and

Progression System. Having found that

plaintiffs met their burden of

establishing a prima facie case under the

disparate impact theory of recovery, the

defendant inherited the burden of

producing evidence which showed that the

Pay and Progression System furthered

legitimate employment goals. n3

Defendant’ met its burden of

production and the court found that the

Pay and Progression System had a

legitimate business goal. However, the

court went on to rule that an alternative

employment practice that did not have an

undesirable racial effect similar to that

which the Pay and Progression System had

App. 166

was available to Buckeye. The court’s

ruling established that the goals involved

in the Pay and Progression System

represented a legitimate business

justification for the Pay and Progression

System; but the actual mechanics of

defendant’s Pay and Progression System,

implemented in an attempt to reach those

goals, did not pass the second stage of

the business justification test because an

alternative practice was available to

achieve those goals with less racial

impact. Thus evolved Buckeye I’s holding

that defendant’s Pay and Progression

Systen, now abandoned, was a

discriminatory practice which had a

disparate impact on black technicians

employed at Buckeye. Having made the above

conclusions of law in Buckeye I, the

purpose of this opinion is to now examine

the claim of each plaintiff and determine

if he or she was individually injured by

defendant’s Pay and Progression System.

Under the disparate impact theory

of recovery, the plaintiff must prove

individual harm. See Stephen v. PGA

Sheraton Resort, Ltd., 873 F.2d 276, 279

(11th Cir. 1989). In order to demonstrate

individual harm, the individual plaintiff

must show that application of the specific

App. 167

discriminatory practice has caused him or

her to suffer a significant adverse

effect. Hill v. Seaboard Coast Line R.

Co., 885 F.2d 804, 811 (11th Cir. 1989).

Defendant can rebut a plaintiff’s claim of

individual injury by demonstrating that

the adverse effect he or she complains of

was dictated by a legitimate non-

discriminatory reason. Stephens, 873 F.2d

at 279. Lack of ability or inferior

qualifications are considered by this

court to be legitimate non-discriminatory

reasons upon which an employer can base

its employment decisions. See Stephen, 873

F.2d at 280. The court will not, however,

rely on "“after-the-fact justification" nor

"general non-time specific testimony

concerning employees’ inefficiency. .. ."

Crawford v. Western Elec. Co. Inc., 745

F.2d 1373 (11th Cir. 1984).

In the case at bar, the parties

dispute the basis upon which the court can

determine whether or not an individual

plaintiff had the requisite ability or

qualifications. Defendant asserts that in

a situation in which an employee is

claiming disparate impact, the employee is

required to show that he met all of the

emplcyer’s criteria, both objective and

subjective, to establish that he was

App. 168

qualified. Plaintiffs argue that the court

should only consider objective criteria.

The court concludes that it may consider

both objective and subjective criteria in

the case sub judice. "It [is] within the

district court’s role and capabilities to

assess whether the subjective employment

qualification was bona fide and whether an

employer’s testimony that the plaintiff

did not possess the qualification was

credible." Seaboard Coast Line R. Co., 885

F.2d at 809.

rhe court will proceed very

carefully in evaluating the subjective

standards and qualifications used by

defendant in implementing its Pay and

Progression System. The court is mindful

of the fact that in reaching its finding

in Buckeye I that the Pay and Progression

System was a discriminatory employment

practice, the court concluded that

defendant’s lower level management had

practically autonomous subjective

authority given to them to carry out the

System and that the ranking system was

almost totally a subjective program with

few, if any, standards to guide the

managers. Furthermore, the qualification

examinations and career plans developed

under the Pay and Progression System were

App. 169

primarily the result of lower level

management exercising its subjective

decision making authority. In instances

where defendant’s assessments, standards,

and qualifications concerning individual

plaintiffs are wholly subjective, the

court will not consider such evidence. n4

To allow defendant to use such evidence it

created under a system found to be

discriminatory, when the very effect of

the discriminatory system complained of

was the failure of the defendant to

accurately assess and establish the

qualifications of the individual

plaintiffs, would be grossly unfair to the

plaintiffs in this case.

Having previously found in

I that the defendant’s Pay and Progression

System, with its many component parts, was

a discriminatory employment practice that

had a disparate impact on black employees

at the Buckeye plant, the court now turns

its attention to determining whether the

individual plaintiffs in the instant case

have carried their burden of establishing

that they individually suffered injury as

a result of defendant’s discriminatory Pay

and Progression System. Based on the above

findings of fact, and the findings of fact

and conclusions of law made in Buckeye I,.

App. 170

the court rules that plaintiffs Taylor,

Herring, Palms, Homer, Plant, and Ross

have demonstrated that they suffered

individual injury as a result of

deiendant’s discriminatory Pay and

Progression System. Accordingly, the court

holds that the defendant is liable to

plaintiffs Taylor, Herring, Palms, Homer,

Plant, and Ross for damages incurred by

these plaintiffs as a result of their

injuries. Plaintiffs Scott, White, Putman,

Porter and Slaughter did not prove that

they suffered individual injury as a

result of defendant’s discriminatory Pay

and Progression System and thereby failed

to establish liability on the part of

defendant towards them. As expressed in

Buckeye I, the court seeks only to settle

the liability issue at this stage and will

address remedies at a later date.

SO ORDERED, this 2 day of April,

1990

OPINION FOOTNOTES

nl In a suit brought under the

disparate impact theory the plaintiff must

first establish a prima facie case by: (1)

articulating a specific employment

practice; (2) showing a racial disparity;

and (3) demonstrating a causal connection

between the specified employment practice

and the racial disparity. Wards Cove

Packing Co. v. Atonio, 490 U.S. 642, 109

S. ©&. 23135,..104 Ls. Ba. 20.733. (1989).

n2 In Buckeye I, the court found

that the function, operation, and manner

in which Buckeye set up the technicians

system resulted in the technicians being

Similarly situated.

n3 Upon a prima facie showing of

discrimination based on a disparate impact

theory of recovery, the case moves into

the secondary evidentiary stage known as

the Business Justification Stage. Wards

Cove, 109 8S. Ct..at 2125. The @eventuai

question in this examination concerns the

extent that the challenged practice

furthers the employers legitimate

employment goals. Id. This stage contains

two alternative aspects: (1) the proffered

business justification; and (2) available

alternative practices. Id. If a plaintiff

can persuade the court on either of these

aspects of this stage of the case, then he

or she can recover.

n4 See Crawford v. Western Elec.

Co. iné., 745 F.2G@ 1373, 12385 (i2tan. Cie.

App. 172

1984), where the court held that "an

employer may not utilize wholly subjective

standards to judge its employees’

and then plead lack of

qualifications

its promotion process

qualifications when

is challenged as discriminatory."

APPENDIX D (BUCKEYE IIT)

ISSIAH ROSS, JR., WILLIAM MORGAN

PORTER, JOHNNIE LEE PALMS, JAMES C. HOMER,

JCHN W. TAYLOR, VERNON ALEXANDER PUTMAN,

HOSEY J. WHITE, JR., FRANKLIN ROOSEVELT

SCOTT, GERRY PLANT, TABITHA HERRING, EDDIE

SLAUGHTER, Plaintiffs,

vs.

BUCKEYE CELLULOSE CORP., Defendant

CIV. No. 86-048-ALB/AMER (DF)

UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF GEORGIA,

ALBANY/AMERICUS DIVISION

764 F. Supp. 1543

June 4, 1991, Decided

COUNSEL

James Finkelstein, Albany, Georgia, for

Plaintiffs.

John G. Skinner, Robert N. Godfrey,

SMITH, CURRIE & HANCOCK, Atlanta, Georgia,

for Defendant.

App. 174

JUDGES

Duross Fitzpatrick, United States District

Judge.

AUTHOR: FITZPATRICK

OPINION

DUROSS FITZPATRICK, UNITED STATES DISTRICT

JUDGE

In an order issued by the court in

the above styled case on August 11, 1989,

733 F. Supp. 344 (hereinafter referred to

as Buckeye I), the court determined that

defendant’s Pay and Progression System was

a discriminatory employment practice that

had a ongoing disparate impact on blacks

employed at Buckeye Cellulose Corporation

(Buckeye). On April 2, 1990, 733 F. Supp.

363, the court concluded the second phase

of this case, (hereinafter referred to as

Buckeye II), by rendering its individual

findings of facts and conclusions of law

concerning defendant’s liability to the

individual plaintiffs arising from their

disparate impact claim. The court will now

complete the final phase of this action by

determining herein the damage award each

prevailing plaintiff in this case is

App. 175

entitled to receive and by ruling on

plaintiffs’ request for attorney’s fees.

Defendant would also have the court

revisit the issue of whether or not

plaintiffs’ filed their charges against

the defendant in a timely manner. The

court, however, will not reexamine that

issue and instead stands by its earlier

ruling rendered in Buckeye I.

I. DAMAGES

In awarding damages to the

prevailing plaintiffs (hereinafter

plaintiffs), the court must attempt to

place each one in the position he or she

would have been in absent defendant’s

discriminatory practices. Albemarle Paper

Co. VW. Hoody, 422 U.S. - 465, 3% 3... °C:

2362, 45 L. Ed. 2d 280 (1975). The means

of accomplishing that goal in this case is

to award back pay and other equitable

relief, which the plaintiffs in this case

are entitled to receive based on the

court’s finding that they are victims of

defendant’s discriminatory Pay and

Progression System. Id. at 418-19, 95 S.

Ct. at 2372. Interest, overtime, shift

differentials, and fringe benefits such as

vacation pay, sick pay and profit sharing

are all components of back pay that are to

App. 176

be included in the computation of such an

award, if applicable. See Cox v. American

Cast Iron Pipe Co., 784 F.2d 1546, 1562

(11th Cir. 1986). The back pay awarded

should equal the amount the party would

have received had there been no

discrimination less the pay he or she

actually collected as a result of the

defendant’s discriminatory actions. Moody,

422 U.S. at 418-19, 95 S. Ct. at 2372.

An award of back pay damages also

entitled the recipient to receive

prejudgment interest on the damage award

computed in accordance with the prevailing

IRS prime rates. See EEOC v. Guardian

Pools, Inc., 828 F.2d 1507, 1512 (11th

Cir. 1987); Smith v. American Service Co.

of Atlanta, Inc., 796 F.2d 1430, 1432

(11th Cir. 1986). All plaintiffs receiving

back pay damages in this action will

therefore be granted prejudgment interest

on the amount of back pay awarded each

year as computed by the clerk of court

based on the prevailing IRS prime rates.

Further equitable relief appropriate in

this case is the placement of plaintiffs

currently employed at Buckeye on the same

pay scale they would have been on but for

the discriminatory practices of Buckeye.

See International Brotherhood of Teamsters

#4

ieee tactile

v. United States, 431 U.S. 324, 364, 97 S.

Ct. 1843, 1869, 52 L. Ed. 2d 396 (1977).

Determining the amount of back pay

that should be awarded to the plaintiffs

in this case will require the court to

"recreate the employment history of the

individual victims and hypothesize the

time and place of each employee’s

advancement absent the unlawful practice."

Myers v. Gilman Paper Co., 527 F. Supp.

647, 649-50 (S.D. Ga. 1981) (citing

International Brotherhood of Teamsters,

431 U.S. at 372, 97 8S. Ct. at 1873). in

doing so, “unrealistic exactitude is not

required, [and] uncertainties in

determining what an employee would have

earned but for the discrimination, should

be resolved against the discriminating

employer." Pettway v. American Cast Iron

Pipe Co., 494 F.2d 211, 260-61 (5th Cir.

1974). The court will engage in an

imprecise process that will necessarily

require a certain amount of estimation.

International Brotherhood of Teamsters,

433 UsS. GG Bias BF Be Cee QE Ares &

process made even more difficult by the

fact that the very nature of defendant’s

discriminatory practice was the

systematic, ongoing failure of Buckeye to

fairly appraise, examine, qualify, and

App. 178

reward the plaintiffs. The calculation of

back pay damages in this case, however, is

by no means an impossible task that will

force the court to engage in mere

speculation.

The court heard months of testimony

in this case which has allowed it to piece

together an accurate picture of the

competence, intelligence, and skill of

each of the plaintiffs in comparison with

their fellow workers and to determine how

those attributes would have resulted in

their advancement in a work place such as

Buckeye’s absent discriminatory practices.

Mindful of those findings and aided by

thousands of pages of records,

transcripts, and exhibits, the court will

determine the damages each plaintiff is

entitled to receive based on its finding

that they were injured by Buckeye’s

discriminatory Pay and Progression Systen.

In computing back pay damages in

this case, the court first determined each

plaintiff’s actual average annual hourly

rate and the actual hours that plaintiff

worked each year. The court then

determined the average annual hourly pay

rate of a similarly situated white

technician. Using that data, the court

projected the annual salary plaintiff

would have earned absent defendant’s

discriminatory practices by multiplying

the average annual hourly pay rate of the

Similarly situated white technician times

the actual hours the plaintiff worked each

year. The resulting figure, minus the

plaintiff’s actual annual salary, equals

the amount of back pay damages awarded.

The period of the comparisons used

to determine the extent of each

plaintiff’s injury began on the date two

years prior to the filing of the

particular plaintiff’s EEOC complaint and

ended when either he or she _ began

receiving the same compensation as the

person he or she is being compared with or

when the particular plaintiff resigned or

was terminated; whichever came first. In

the case of plaintiffs Taylor and Palms,

the period began on the date two years

prior to the filing of their EEOC

complains and continued to the present

since both are still employed by Buckeye

but have never reached the top wage rate

comparable white technicians were paid.

Once the additional back pay amount

was established, the court had the

defendant determine the additional

App. 180

benefits each plaintiff would have been

entitled to receive as a result of the

increased salary each would have earned

under the courts calculations.

JOHN TAYLOR

| The court’s findings of fact

demonstrate that plaintiff John Taylor had

numerous talents that Buckeye took

advantage of which made him one of their

most valued employees. The skills Taylor

possessed and the manner in which he

carried out his job earned similarly

Situated white employees at Buckeye the

highest ratings and largest salaries paid

by Buckeye. This employee, who Buckeye

thought enough of to make a shift team

coordinator, would have advanced rapidly

at the company if not for its

discriminatory Pay and Progression System.

The court therefore finds that in order to

place Taylor in the position he would have

been in absent defendant’s discriminatory

practices, his compensation should be

computed in accordance with what the

highest paid technicians at Buckeye were

paid.

| One of the higher paid white

technicians who Taylor compares most

App. 181

favorably to is Walter "Sonny" Ard.

Consequently, the most reliable means of

determining the damages Taylor is entitled

to receive is to compare his wage rate to

that of Walter Ard and award him such

damages as would result in him earning the

same compensation Buckeye paid Walter Ard

when Ard was considered one of their top

technicians. Such a comparison reveals

that Taylor is entitled to a back pay

damages award of $ 57,963.00 nl plus

prejudgment interest and profit sharing

benefits totaling 126.498 shares of

Buckeye common stock, 3.572 shares of

preferred stock, and $ 150.23 in cash. See

Defendant’s Supplemental Memorandum

Regarding Damages, exh. C and exh. A-l.

Those compensation computations which have

been verified and are hereby adopted by

the court, as is the case with all the

compensation figures used in this order,

were computed by the defendant in strict

accordance with the court’s instructions

for compiling damages detailed earlier in

this opinion. See appendix for a complete

breakdown of all the compensation

computations. In order to place Taylor in

the position he would have heen in absent

defendant’s discriminatory practices,

Buckeye is also ORDERED to immediately

begin paying Taylor at a wage rate

App. 182

comparable to a curve 5 pay rate and to

maintain him on that wage rate as long as

he satisfactorily performs his job.

TABITHA HERRING

A recreation of plaintiff Tabitha

Herring’s employment history indicates

that she would not have advanced as

quickly or as far as plaintiff Taylor but,

nevertheless, would have received greater

compensation than she actually obtained if

not for Buckeye’s unlawful practices. The

court noted in its findings of fact that

Herring was unjustly injured when she had

mechanical maintenance removed from her

career plan and was continually denied the

opportunity for meaningful advancement as

a result of Buckeye’s discriminatory Pay

and Progression System. In attempting to

discern how and when plaintiff Herring

would have advanced absent the

discrimination at Buckeye, the court finds

that the careers of similarly situated

white technicians Jerry Barry and Lynn

West Barry provide a good example of how

Herring’s career would have progressed had

she not been discriminated against. Those

technicians, like Herring, were not

considered, nor compensated as, top of the

line employees. They were, however,

r;

%

App. 183

competent employees who could be relied

upon to perform their jobs .

Satisfactory manner. A comparison of the

compensation Jerry Barry received and that

of plaintiff Herring indicates that in

Order to make her whole again she is

entitled to a damage award of $ 17,510.00

n2 in back pay plus prejudgment interest

and profit sharing benefits totaling

47.146 shares of Buckeye common stock and

$ 24.15 in cash. See Defendant’s

Supplemental Memorandum Regarding Damages,

exh. A and exh. A-1.

JOHNNIE LEE PALMS

The skills and training plaintiff

Johnnie Lee Palms brought to Buckeye made

within the company. It is clear from the

court’s findings that Buckeye recognized

the accomplishments and talent of Palms by

making him a shift team coordinator; one

of its top positions for technicians.

Palms performed tasks on the same skill

level as Buckeye’s higher rated white

technicians. As a result of the

discriminatory Pay and Progression System,

however, Palms was not compensated or

promoted similar to white technicians who

were deemed superior technicians. Absent

App. 184

the discriminatory practices of Buckeye,

Palms would have not only been utilized as

one of Buckeye’s top technicians; he also

would have been compensated 1ike one.

Above average white technicians at

Buckeye who had similar skills and

training as Palms, such as Joseph Willard

Parker, provide the appropriate model for

determining the extent of Palms damages.

Comparing Palms compensation with that of

Parker indicates that in order to place

Palms in the position he would have been

in had he not been discriminated against,

Palms is entitled to receive a back pay

award of $ 31,982.00 n3 plus prejudgment

interest and profit sharing benefits

totaling 66.396 shares of Buckeye common

stock, 1.388 shares of preferred stock,

and $ 68.85 in cash. See Defendant’s

Supplemental Memorandum Regarding Damages,

exh. D revised and exh. A-1. In order to

place Palms in the position he would have

been in absent defendant’s discriminatory

practices, Buckeye is also ORDERED to

immediately begin paying Palms at a wage

rate comparable to a curve 4 pay rate and

to maintain him on that wage rate as long

as he satisfactorily performs his job.

JAMES C. HOMER

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App. 185

Plaintiff James Homer was a hard

working mechanical maintenance technician

who eagerly sought to gain training skills

in any area Buckeye would allow in order

to enhance his value to the company.

Because of Buckeye’s discriminatory Pay

and Progression System, however, Homer was

consistently denied the opportunity to

have cross skills added to his career plan

and thereby increase his salary. He worked

beside comparably skilled white

technicians who were paid a higher salary

than he was despite the fact that they all

had the same job classification. Homer had

the qualifications to have additional

skills added to his career plan and to be

compensated at rate equal to similarly

Situated white technicians such as William

"Freddy" Hogg, Jr., and David "Tim"

Phelps; and would have been so compensated

absent Buckeye’s discriminatory practices.

Therefore, in order to make Homer whole

again, he must be awarded compensation

equal to that of Phelps’ and Hogg’s which

amounts to damages of $ 13,759.00 n4 in

back pay plus prejudgment interest and

profit sharing benefits totaling 37.149

shares of Buckeye common stock and $ 19.09

in cash. See Defendant’s Supplemental

Memorandum Regarding Damages, exh. B and

App. 186

exh. A-1l.

GERRY PLANT

Plaintiff Gerry Plant exhibited a

conscientious desire to excel in all

phases of his job with Buckeye. Plant

gained a reputation as being one of

Buckeye’s best technicians with

unparalleled mechanical skills on some of

the companies specialized equipment.

Throughout his career at Buckeye he was a

highly competent hard working technician

who had the ability and qualifications to

be a top technician. The evidence in the

case indicates that absent Buckeye’s

discriminatory practices he would have

been compensated as such.

Allen Massey, Ray Harth, and Roy

Peterson are white technicians at Buckeye

who had similar skills as Plant and

demonstrate the promotions and

compensation Plant would have received at

Buckeye had he not been the victim of

Buckeye’s discriminatory practices.

Comparing Ray Peterson’s compensation to

the compensation Plant earned indicates

that Plant’s damages as a result of

Buckeye’s discriminatory Pay and

Progression System are $ 23,760.00 n5 in

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back pay (which represents $ 33,760.00

computed as back pay owing minus the $

10,000.00 damage award he received under

his Section 1981 claim) plus prejudgment

interest and profit sharing benefits

totaling 85.100 shares of Buckeye common

stock, 0.769 shares of preferred stock,

and $ 63.37 in cash less a $ 1,000.00

deduction which must be made from Plant’s

profit sharing benefits since Plant

received a previous jury award of $

1,000.00 as compensation for lost

benefits. See Defendant’s Supplemental

Memorandum Regarding Damages, exh. E and

exh. A-1.

ISSIAH ROSS, JR.

Plaintiff Issiah Ross, Jr., was a

solid employee who was able to carry on

the day-to-day operation of the areas he

was assigned to work in an acceptable

manner. In performing his job, however, he

was paid less than other similarly

situated white technicians who were

performing the same tasks with relatively

the same results. An indication of Ross’

qualifications and ability to perform his

jok as well as his’ higher paid

counterparts is demonstrated by the fact

that Buckeye chose him, and not his higher

App. 188

paid and rated fellow employees, to train

technicians who were cross training in the

area in which Ross worked. The court’s

findings demonstrate that Ross-~ was

initially placed on a lower pay scale than

he deserved to be on and was kept there as

a direct result of Buckeye’s

discriminatory Pay and Progression System.

Had there been no discrimination at

Buckeye, Ross undoubtedly would have

received compensation commensurate with

that received by Jerry Barry; a white

technician at Buckeye of equal standing

with Ross. A comparison between the

compensation of Jerry Barry and Ross

indicates that Ross suffered damages

because of Buckeye’s discriminatory

practices in the amount of $ 21,971.00 n6

in back pay plus prejudgment interest and

profit sharing benefits totaling 54.410

shares of Buckeye common stock and $ 27.88

in cash. See Defendant’s Supplemental

Memorandum Reaarding Damages, exh. F and

exh. A-1.

II. ATTORNEY’S FEES

The final matter pending before the

court in this case is the plaintiffs’

motion for attorney’s fees. The

established procedure for resolving such

an issue is for the court to determine the

number of hours plaintiffs’ attorney

reasonably expended on “he litigation and

multiply that figure by a reasonable

hourly rate. Hensley v. Eckerhart, 461

U.S. 424, 434, 103 S. Ct. 1933, 1939, 76

L. Ed. 2a 40 (1983). The resulting yield

is commonly known as the "lodestar," which

the court may then adjust up or down in

its a@iscretion depending on various

considerations involved in the case.

The court’s fireat step in

determining the proper attorney’s fees in

this case will be to ascertain the

appropriate reasonable hourly rate. "A

reasonable hourly rate is the prevailing

market rate in the relevant legal

community for similar services by lawyers

of reasonably comparable skills,

experience, and reputation.” Norman v.

Housing Authority of Montgomery, 836 F.2d

1292 (llth Cir. 1988)(citing Blum v.

Stenson, 465 U.S. 886, 895-96 n. 11, 104

S. Ct. 1541, 1547 n. 11, 79 L. Ed. 2d 891

(1984)). The relevant legal community in

this case is the area in which this court

sits and the service provided was the

litigation of a complex employment

discrimination suit by an experienced

attorney who demonstrated a considerable

App. 190

amount of skill in organizing and

advocating plaintiffs’ case. A review of

the evidence the parties have submitted

regarding a reasonable hourly rate in such

an area for such services indicates that

the prevailing rate a reasonably

comparable attorney would receive is §

135.00 per hour. Plaintiffs’ attorney in

the instant case, therefore, is entitled

to compensation at the rate of §$ 135.00

per hour.

The next step in deciding the

appropriate attorney’s fees award is to

ascertain the number of hours reasonably

expended by plaintiffs’ attorney. In

determining that figure, "’excessive,

redundant or otherwise unnecessary’ hours

should be excluded from the amount

Claimed." Norman, 836 F.2d at 1301 (citing

Hensley, 461 U.S. at 434, 103 S. Ct. at

1939-40). A careful review of the 2242.50

hours submitted by plaintiffs’ attorney

does not reveal the presence of any

excessive, redundant or otherwise

unnecessary hours which should be excluded

from the amount he has claimed.

Plaintiffs’ attorney has used good

"billing judgment" by submitting only

hours which it would not be unreasonable

to expect him to present to one of his

App. 19]

paying client.

Having determined the reasonable

hourly rate ($ 135.00 per hour) and the

hours reasonably expended (2242.50), the

ourt is able to calculate that the

lodestar amount in this case is S

302,737.50 (2242.50 hours @ $ 135.00 per

hour). Establishing the appropriate amount

of attorney’s fees to be awarded does not

however, end with the computation of the

lodestar. The next step the court must

undertake is to make any necessary

adjustments to the lodestar based upon the

results obtained by plaintiffs’ attorney.

—

Norman, 836 F.2d at 1302. The court’s

assessment of the results obtained in a

case such as this, where the theories of

the consolidated cases ljerive from

common core of operative facts should

focus on the overall outcome fo If that

outcome, however

in comparison

litigation as a r

for the court to reduce the lodesta

figure. Id. "In doing so, the court may

attempt to identify s nt

in unsuccessful claims

reduce the award by some proportion." I

Plaintiffs’ atto

ry

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App. 192

case realized significant results. The

results were, however, limited when one

notes that the litigation as a whole

involved separate claims for relief by

thirteen individual plaintiff of which six

ultimately received a damages award. The

court, therefore, finds it necessary to

proportionately reduce the lodestar amount

of $ 302,737.50 by twenty-five percent

(25%) thereby arriving at an attorney’s

fees award of $ 227,053.12.

The court’s reduction is not based

on a Simple ratio of successful plaintiffs

to the total number of plaintiffs involved

nor prevailing issues opposed to issues

presented. See Hensley, 461 U.S. at 435 n.

11, 303 SS. Ct. 1940, 76 L. EG. 2€2 40 fn.

11. Rather, the court took into account

the fact that some of the plaintiffs’

attorney’s efforts were dedicated solely

to advancing the cause of unsuccessful

plaintiffs although a vast majority of his

time was used to analyze, organize, and

present evidence that was germane to all

the cases. See id. at 435, 461 U.S. at

435, 103 S&S. Ct. at 1940.

Another issue the court must

address is whether the attorney’s fees

award should be enhanced. An enhancement

EE eT Me eee |

App. 193

is in order "if the results obtained were

exceptional." Norman, 836 F.2d at 1302. A

review of the outcome of this case based

on that criteria indicates that an

enhancement of the attorney’s fees award

is unwarranted. Plaintiffs’ attorney

obtained important results that will

undoubtedly guide future actions and

decisions of Buckeye. The outcome cannot

be classified as exceptional, however,

since it was not an unexpected result in

light of the prevailing law which clearly

outlaws the type of discrimination

defendant imposed upon the plaintiffs. See

Id.

Enhancement of an attorney’s fees

award may also be appropriate when the

attorney’s fee was set up on a contingency

basis, as was the situation in this case.

Pennsylvania v. Delaware Valley Citizens’

Council for Clean Air, 483 U.S. 711, 730,

107 8. Ct. 3078, 3089, 97 L. EG. 20 585

(1987) (Delaware Valley Citizens’ Council

II). That type of enhancement is to be

awarded, however, only when it is

demonstrated that it is necessary as the

only means of insuring the availability of

attorneys. Id. at 731, 107 S. Ct. at 3089

(O'Connor, J., concurring) ; Perkins v.

Mobile Housing Board, 847 F.2d 735, 738-39

App. 194

(llth Cir. 1988). There has not been an

adequate showing that attorneys were not,

and are not, available in this court’s

district to take on the type of case now

before the court. The court, therefore,

declines to enhance the attorney’s fees

awarded in this case based on the

existence of a contingency fee

arrangement.

The final basis considered by the

court upon which enhancement may be

warranted is if there is a delay in the

prevailing counsel’s receipt of payment.

Norman, 836 F.2d at 1302. If the court

determines that there is a delay, it may

"award compensation at current rates

rather than at historic rates." Id.

Plaintiffs’ attorney began work on this

case in 1985 and has yet to receive final

compensation which leads this court to

conclude that there has been a delay in

his receipt of payment. The court,

therefore, finds that the hourly rate

applicable in this case should be computed

in accordance with current rates and the

court has done just that in arriving at

the reasonable hourly rate of $ 135.00

afforded the plaintiffs’ attorney.

As part of his attorneys’ fees,

plaintiffs’ attorney has also requested

reimbursement for mileage expenses

totaling $ 2,009.41. Reasonable expenses

are considered a component of reasonable

attorney’ fees in this circuit. Dowdell v.

Apopka, 698 F.2d 1181 (11th Cir. 19823)

The court therefore GRANTS the request for

mileage expenses totaling $ 2,009.41 since

it considers the amount to be a reasonable

expense; especially since this was an

Albany Division case tried in the Macon

Division.

Along with their request’ for

attorney’s fees, plaintiffs have also

asked the court to award expert witness’

fees and support staff costs. The expert

witness’ fees requested by the plaintiffs

totals $ 85,992.50 for services rendered

by Mr. Jimmy Ramsey. Recent case law

indicates, however, that the court cannot

award plaintiffs the expert witness’ fees

that they have requested.

In the case of International

Woodworkers of America v. Champion

International Corp., 790 F.2d 1174 (5th

Cir. 1986), the Fifth Circuit Court of

Appeal thoroughly analyzed the issue of

whether the prevailing party in a Title

VII and 42 U.S.C. 1981 employment

App. 196

discrimination suit was entitled to expert

witness’ fees. In resolving that issue,

the court first noted that American courts

have traditionally been denied the right

to tax expert witness’ fees beyond those

specifically authorized by statute. It was

only through creative interpretation of

Senate reports read to indicate

Congressional intent to apply different

rules in civil rights cases that courts

were able to award any expert witness’

fees beyond those provided for in 28

u, 8.8. 1821. n7 See Jones v. Diamond,

636 F.2d 1364 (5th Cir. 1981)(en banc),

cert. dismissed, 453 U.S. 950, 69 L. Ed.

2d 1033, 102 S. Ct. 27 (1981), overruled

by International Woodworkers of America,

790 F.2d at 1180. In overruling all

previous decision it rendered based on

such an interpretation, the court in

International Woodworkers went on to note

that a true reading of those reports fails

to establish any judicial authority to

award a prevailing party expert witness’

fees. It concluded that:

Given Congress’ ability to provide

explicitly for the taxing of excess expert

Witness’ fees as costs, we should not

infer congressional intent to award such

costs in the absence of an express statute

“ —— se

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:

so providing. Moreover, a statute which

provides only for an award of "costs" or

"“attorneys’ fees" but which fails to

address expert witness’ fees will not be

construed to authorize the taxing of

expert witness’ fees in excess of the

1821 amount.

International Woodworkers, 790 F.2d at

1179-80. Based on that conclusion and its

finding that 42 U.S.C. 1988 and 2000e-

5(k) make no provisions for an award of

excess expert witness’ fees, the court

held that the prevailing plaintiff was not

entitled to receive any expert witness’

fees other than those specified in 28

U.S.C. 1821. Id. at 1181.

The plaintiff in International

Woodworkers appealed the decision of the

Fifth Circuit and his’ petition for

certiorari was granted by the Supreme

Court of the United States. International

Woodworkers of America, 790 F.2d 1174,

cert. granted sub nom. Crawford Fitting

Sa, Wa wanes Ganeone, iInc., 482 U.S. 437,

107 S. Ct. 2494, 96 L. Ed. 2d 385 (1987).

The Supreme Court reviewed the analysis

employed by the Fifth Circuit in reaching

it decision and stated "we agree and hold

that when ae prevailing party seeks

App. 198

reimbursement for fees paid to its own

expert witnesses, a federal court is bound

by the limit of 1821(b), absent contract

or explicit statutory authority to the

contrary." Crawford Fitting Co., 482 U.S.

at 439, 107 S. Ct. at 2496. Accordingly,

this court holds that plaintiffs in the

instant case are not entitled to receive

any expert witness’ fees other than those

specified in 28 U.S.C. 1821. Those

expenses plaintiffs’ are entitled to

receive as expert witness’ fees under

1821(b) will be taxed as costs’ which

plaintiffs can recover by submitting a

bill of costs to the clerk of court.

In line with the reasoning adopted

in Crawford Fitting Co., the court is also

precluded from reimbursing plaintiffs for

the cost of services provided by Terri C.

Long. There is no indication from the

evidence that Ms. Long, a former manager

at MacGregor Golf Co., performed any legal

work which can be properly billed under

the heading of reasonable attorney’s fees.

See Amendment To Motion For Attorney Fees

And Costs For Plaintiffs Gerry Plant And

Issiah Ross, exh. K. Ms. Long’s expenses

are more properly considered overhead

which is covered under the hourly rate

plaintiffs’ attorney charges. Therefore,

App. 199

in accordance with the applicable law,

plaintiffs’ request for $ 1,875.00 as

reimbursement for the services of Terri C.

Long is DENIED.

Plaintiffs’ request for payment for

the services provided by two law students,

Ray Brooks and Thomas Bond, and Cathy

Hires, a paralegal, constitute a component

of reasonable attorney’s fees which a

prevailing plaintiff is entitled to

receive. Missouri v. Jenkins, 491 U.S.

274, 109 S&S. Ct. 2463, 105 L. EG. 24 229

(1989}; Riverside v. Rivera, 477 U.S. 561,

106 S. Ct. 2686, 91 L. Ed. 2d 466 (1986).

A review of the hours submitted by each of

those legal support staff individuals

reveals reasonable hourly rates in line

with the prevailing market rate in this

area for comparable services. Law student

Ray Brooks logged 292.75 hours at a rate

of $ 25.00 per hour. Affidavit of Raymond

Thomas Brooks In Support Plaintiffs’

Motion For Attorney’s Fees. Law student

Thomas Bond logged 35 hours at a rate of $

25.00 per hour. Amendment To Motion For

Attorney Fees And Costs For Plaintiffs

Gerry Plant And Issiah Ross, exh. M.

Paralegal Cathy Hires logged 75 hours at a

rate of $ 50.00 per hour. Id., exh. L. The

hours presented also all represent hours

App. 200

reasonably expended without the inclusion

of any excessive, redundant or otherwise

unnecessary hours in the amount claimed.

The lodestar computations for the legal

Support staff, therefore, yields the

amounts of: §$ ,318.75 (292.75 hours @ §$

25.00 per hour) for the services of law

student Ray Brooks; $ 875.00 (35 hours @ §$

25.00 per hour) for the services of law

student Thomas Bond; and $ 3,750.00 (75

hours @ $ 50.00 per hour) for the services

of paralegal Cathy Hires.

The legal support staff’s hours are

also subject to the same twenty-five

percent (25%) lodestar reduction applied

to plaintiffs’ attorney’s hours since the

legal staff similarly worked on the

successful, as well as the unsuccessful,

Claims. Accordingly, plaintiffs are

entitled to receive the following amount

as compensation for legal support staff

fees: $ 5,489.06 for the services of law

student Ray Brooks; $ 656.25 for the

services of law student Thomas Bond; and $

2,812.50 for the services of paralegal

Cathy Hires.

III. CONCLUSION

Based on the findings of fact and

App. 201

conclusions of law made in Buckeye I and

Buckeye II, the court hereby ORDEi.S that

in accordance with the above stated

rulings defendant pay damages to the

prevailing plaintiffs totaling: $

57,963.00 plus prejudgment interest and

profit sharing benefits totaling 126.498

shares of Buckeye common stock, 3.572

shares of preferred stock, and $ 150.23 in

cash to plaintiff Taylor; $ 17,510.00 in

back pay plus prejudgment interest and

profit sharing benefits totaling 47.146

shares of Buckeye common stock and $ 24.15

in cash to plaintiff Herring; $ 31,982.00

in back pay plus prejudgment interest and

profit sharing benefits totaling 66.896

shares of Buckeye common stock, 1.3838

shares of preferred stock, and $ 68.35 in

cash to plaintiff Palms; $ 13,759.00 in

back pay plus prejudgment interest and

profit sharing benefits totaling 37.143

shares of Buckeye common stock and $ 19.09

in cash to plaintiff Homer; $ 23,760.00 in

back pay plus prejudgment interest and

profit sharing benefits totaling 85.100

shares of Buckeye common stock, 0.769

shares of preferred stock, and $ 63.37 in

cash to plaintiff Plant (less a $ 1,000.00

deduction from Plant’s profit sharing

benefits); and $ 21,971.00 in back pay

plus prejudgment interest and profit

App. 202

sharing benefits totaling 54.410 shares of

Buckeye common stock and $ 27.88 in cash

to plaintiff Ross.

Defendant Buckeye is also ORDERED

to pay a totai. cf § 175,794.10. in

attorney’s fees. n8

Lastly, the court RULES that all

outstanding motions not addressed herein

are made moot by this order and hereby

DISMISSED WITHOUT PREJUDICE.

SO ORDERED, this 4 day of June,

i991.

App. 203

APPENDIX

EXHIBIT A

TABITHA HERRING’S HISTORY OF WAGE RATES (actual)

ACTUAL

PERSONAL

ADJUSTMENTS EFFECTIVE DATES OF GENERAL ADJUSTMENTS TO

WAGE RATES

EFFECTIVE

DATE PAY LEVEL 1980 10/6/80 6/15/81 6/7/82 6/13/%

6/9/80 Hire Rate 6.50

9/15/80 T-103 7.00 7.20

12/8/80 T-106 7.8

T-109

T-112

T-118

T-124

3/9/81 T-20 8.50

T-212

T-218

T-224

6/13/83 1-230 *1.5

6/8/81 T-312 9.05 9.85

Ms. Herring went fram her pay point on

Curve 3 to 3 pay point on Curve 2 that was

higher in cents/ho

12/7/81 7-318 10.60 11.30

T-324

T-330

6/5/89 1-336

ACTUAL

PERSONAL

ADJUSTMENTS EFFECTIVE DATES OF GENERAL ADJUSTMENTS TO

WAGE RATES

EFFECTIVE

DATE PAY LEVEL 1980 6/5/& 9/29/85 8/1/8B 7/31/8 7/2/%

6/9/80 Hire Rate 6.50

9/15/80 T-103 7.00

12/8/80 T-106

T-109

T-112

T-118

T-124

3/9/81 T-209

T-212

a ee ee

‘ . *

1983

11.30

11.30

11.30

11.30

11.30

11.55

11.55

11.55

11.55

11.55

11.55

11.55

11.45

$ 29,260 $ 29,540 $ 31,436 $ 32,242 $ 26,899

355

1988

12.50

12.50

12.50

12.50

12.50

12.50

12.50

12.81

12.81

12.81

12.81

12.81

12.63

12.20

19%

11.55

11.55

11.55

11.55

11.55

11.55

12.20

12.20

12.20

12.20

12.20

12.20

11.88

2487

1989

12.81

12.81

12.81

12.81

12.81

144.19

14.19

4.59

4.59

14.59

4.59

4.59

13.78

12.50

1985

12.20

12.20

12.20

12.20

12.20

12.20

12.20

12.20

12.20

12.20

12.20

12.20

12.20

377

1990

14.59

4.59

4.59

4.59

14.59

4.59

18.17

15.17

18.17

15.17

18.17

18.17

16.8

12.81

4.19

1986

12.20

12.20

12.20

12.20

12.20

12.20

12.20

12.20

12.20

12.50

12.50

12.50

12.28

2626

191

1$.17

18.17

15.17

18.17

18.17

12.50

12.50

12.50

12.50

12.50

12.50

12.50

12.50

12.50

12.50

12.50

12.50

12.50

2152

W-2 $6,267 $30,165 $39,821 $12,931

Earnings

Equiv. 655 2189 2676 852

Pd. Hrs.

FDH (herring3) 5/8/91

TABITHA HERRING’S "WHAT IF?" WAGE RATES (had she received care ar

rates as Jerry Barry)

PERSONAL Jerry Barry's history of wage rates:

ADJUSTMENTS EFFECTIVE DATES OF GENERAL ADJUSTMENTS TO

; WAGE RATES

a EFFECTIVE

5 DATE PAY LEVEL 1D 10/6/8) 6/15/81 46/7/82 6/13/83

a

; 6/9/80 Hire Rate 6.50

: 9/15/80 1-103 7.0 7.2

: 12/8/8 T-106 7.85

5 T-199

: 1-112

: T-118

T-124

3/9/81 1-29 8.50

T-212

7-218

1-224

1-230

4/8/81 7-312 9.65 7.25

12/7/28) 7-318 0.40

6/7/22 7-326 0.5 65

12/6/82 7-330 12.00

6/6/83 1-336 12.15 2.20

PERSONAL Jerry Barry’s history of wage rates:

ADJUSTMENTS EFFECTIVE DATES OF GENERAL ADJUSTMENTS TO

WAGE RATES

EFFECTIVE

DATE PAY LEVEL 1980 6/B/% 9/29/85 8/1/88 7/31/89 7/2/90

6/9/80 Hire Rate 6.50

9/15/80 7-1 7.0

12/8/80 T-106

T-109

T-112

T-118

T-126

3/9/81 7-209

App. 206

T-212

T-218

T-226

T-2350

6/8/81 T-312

12/7/81 T-318

6/7/82 T-324

12/6/82 T-330

6/6/83 7-336 13.55 13.8 14.19 14.59

TABITHA HERRING’S 'WHAT IF?" WAGE RATES (had she received sare

rates as Jerry Barry)

Jerry Barry’s history of wage rates (Curve 3)

193 1984 1985 1986 1987

January 12.00 12.80 13.55 13.55 13.8

February 12.00 12.80 13.55 13.55 13.8

March 12.00 12.80 13.55 13.55 13.8

April 12.00 12.80 13.55 13.55 13.8

May 12.00 12.80 13.55 13.55 13.85

Jure 12.80 12.80 13.55 13.55 13.85

July 12.80 13.55 13.55 13.55 13.85

August 12.80 13.55 13.55 13.55 13.8

September 12.80 13.55 13.55 13.55 13.8

October 12.80 13.55 13.55 13.85 13.8

Noverber 12.80 13.55 13.55 13.8 13.8

December 12.80 13.55 13.55 13.85 13.8

Barry's

Average

Rate 12.47 13.18 13.55 13.63 13.8

Herrings’s

Equiv.

Pd. 355 2487 277 2626 2152

Herring’s

‘What

1f? $ 31,861 $ 32,7799 $ %,918 $ 35,792 $ 29,805

Herring’s

Actual $ 29,260 $ 29,540 $ 31,436 $ 32,242 $ 26,899

Difference $2,601 $3,239 $3,482 $3,550 $2,%6

Jerry Barry’s history of wage rates (Curve 3)

15.17

App. 207

1988 1989 1990 1991

January 13.8 14.19 14.59 15.17

February 13.8 14.19 14.59 15.17

March 13.8 14.19 14.59 15.17

April 13.85 14.19 14.59 15.17

May 13.8 14.19 14.59

Jure 13.8 14.19 14.59

July 13.85 14.19 15.17

August 14.19 14.59 15.17

September 13.85 14.19 Pets

October 13.85 14.19 S17

November 13.85 14.19 itt

December 13.8 14.19 15.17

Barry's

Average

Rate

3.9 4.3% 14.8 15.17

Herring’s

Equiv.

Pd. 655 2189 2676 8&2

Herring’s

'Mhat

1f?" $9,163 $31,434 $ 39,821 $ 12,931

Herring's

Actual

Difference $8 $1,208 $0 $0

FDH (herring3) 5/8/91

EXHIBIT B

JAMES HOMER'S HISTORY OF WAGE RATES (actual)

ACTUAL |

PERSONAL /

ADJUSTMENTS EFFECTIVE DATES OF GENERAL ADJUSTMENTS TO

WAGE RATES

EFFECTIVE

DATE PAY LEVEL 1980 10/6/80 6/15/81 6/7/82 6/13/88

7/7/80 Hire Rate 6.50 6.50

10/13/80 T-103 7.20

1/5/81 T-106 7.8

T-109

T-112

T-118

T-124

App. 208

4/6/81 1-209 8.50 9.5

T-212

T-218

1-224

1-20

7/6/81 T-312 9.8

1/4/82 T-318 10.60 11.30

7/5/82 T-324 11.65

1/3/83 1-330 12.00 12.60

7/5/83 1-336 12.80

1-424

T-430

1-436

*4/4/88 T-442 *Actual aialification ad pranotion dete.

ACTUAL

PERSONAL

ADJUSTMENTS EFFECTIVE DATES OF GENERAL ADJUSTMENTS TO

WAGE RATES

EFFECTIVE

DATE PAY LEVEL 1980 6/25/84 -9/29/8% 8/1/88 7/31/89 7/2/W

7/7/80 Hire Rate

10/13/80 7-103

1/5/81 T-106

T-109

T-112

T-118

T-124

4/6/81 T-209

T-212

T-218

T-224

T-230

7/6/81 T-312

1/4/82 7-318

7/5/82 7-324

1/3/83 T-330

7/5/83 1-336 13.55 13.8

7-424

T-430

1-436

*4/4/88 T-442 14.90 15.27 15.7 16.3

Actual Wage Rates (James Hamer)

1983 198% 1985 1986 1987

App. 209

January 12.00 12.80 13.55 13.55 13.8

February 12.00 12.80 13.55 13.55 13.8

March 12.00 12.80 13.55 13.55 13.8

April 12.00 12.80 13.55 13.55 13.8

May 12.00 12.80 13.55 13.55 13.8

Juve 12.60 12.80 13.55 13.55 13.8

July 12.20 13.55 13.55 13.55 13.8

August 12.80 13.55 13.55 13.55 13.8

Septenber 12.80 13.55 13.55 13.55 13.85

October 12.80 13.55 13.55 13.85 13.8

Noverber 12.80 13.55 13.55 “3.85 13.8

December 12.80 13.55 13.55 13.8 13.8

Average 12.45 13.18 13.55 13.63 13.8

Actual

W-2 $ 32,138 $35,5% $ 36,597 $ 37,679 $ 39,18

Earnings

Equiv. ;

Pd. 2581 2701 2701 2764 2829 y

Hrs. ;

1988 1989 1990 1991

January 13.8 15.27 15.7 16.33

February 13.8 118.27 15.7% 16.33

March 13.85 15.27 18.7% 16.33 :

Apri 14.90 15.27 15.7% 16.33 ;

May 14.90 15.27 15.70 ‘

Jume 14.90 15.27 15.70 ;

July 14.90 15.27 16.33

August 15.27 15.70 16.33

Septerber 15.27 15.70 16.33

October 15.27 15.70 16.33 7

Noverber 15.27 18.70 16.33

December 15.27. 15.70 16.33

4

Average 14.79 158.45 16.02 16.33 |

Actual

W-2 $35,677 $36,823 $40,609 $14,404

Earnings |

Equiv.

Pd. 2412 B83 235 882 |

Hrs

App. 210

JAMES HOMER'S ‘SHAT IF?" WAGE RATES (had he received same wage

rates as Willian Hogg and David Phelps)

PERSONAL Hogg’s and Phelp’s history of wage rates:

ADJUSTMENTS EFFECTIVE DATES OF GENERAL ADJUSTMENTS 70

WAGE RATES

EFFECTIVE

DATE PAY LEVEL 1980 10/6/80 6/95/81 6/7/82 6/13/83

6/9/80 Hire Rate 6.50

9/15/80 T- 103 7.00 7.20

12/8/80 T-106 7.8

T-109

T-112

T-118

T-124

3/9/81 T-209 8.50

7-212

T-218

T-224

T-230

6/8/81 T-312 9.05 9.85

12/7/81 T-318 10.60

T-324

T-330

T-336

6/7/82 T-424 11.40 12.15

12/6/82 T-430 12.75 13.40

9/5/83 T-436 13.70

3/5/& T-442 13.85

PERSONAL Hogg’s and Phelp’s history of wage rates:

ADJUSTMENTS EFFECTIVE DATES OF GENERAL ADJUSTMENTS TO

WAGE RATES

EFFECTIVE

DATE PAY LEVEL 1980 6/25/84 9/29/8% 8/1/88 7/31/89 7/2/W

6/9/80 Hire Rate 6.50

9/15/80 T-103 7.00

12/8/80 T-106

T-109

T-112

T-118

T-124

3/9/81 T-209

T-212

T-218

T-224

T

6/8/81 T-312

intensive iat: a Geka

YAR Ae Has.

9

¥

z

¥

1-318

1-324

1-330

1-336

6/7/82 1-424

12/6/82 1-430

9/5/83 1-436

3/5/84 1-442 4.8

JAMES HOMER'S "WHAT |F" WAGE RATES (had he

Willian Hogg ard David Phelps)

Hogg’s and Phelps’ history

of wage rate (Curve 4)

193 19% 1965 1% 1987

January 12.7 13.70 144.0 14.80 14.9

February 12.45 13.™ 14.80 14.60 144.W

March 12.75 13.8 14.60 14.0 4.9

April 12.45 13.8 14.60 14.60 4.9

May 12.5 13.8 14.60 14.0 4.9

June 13.40 13.8 14.00 14.00 4.W

July 13.40 14.60 14.620 14.8 14.9

August 13.40 14.60 14.60 14.60 4.KH

September 13.70 14.60 14.6£0 14.60 14.

October 13.70 14.8 146.8 4D 14.0

Noverber 13.70 14.4 14.40 4. 14.9

Decerber 13.70 14.60 14.80 4.H 14.9

Average 13.3 14.20 14.60 4.68 4.P

Equiv.

Pd. 281 2701 2701 2764 2229

Hrs.

What

1?" $34,147 $38,354 $ 39,435 $ 40,576 42,152

Earnings

Actual

W-2 $ 32,138 $35,5% $ 3%,597 $ 37,679 $ 39,18

Earnings

Difference $ 2,09 $2,760 $2,838 $2,897 $2,%6

=

2

rece) ved

5.27

ae wage rates as

.

o

LN

App. 212

RA ‘ORD 1990 1991

Janupry 14.90 18.27 18.7 146.33

Febourry 14.9 18.27 18.7 16.33

March 14.90 18.27 5.7 16.33

Nyy 4.9 18.27 18.70 14.33

May 4.9) 18.27 18.

jure 14.90 18.27 8.7m

luly 14.9 18.27 16.33

Aust 18.27 18.7% 16.33

Sept enber 18.27 S.A 16.33

Octaber 1§.27 18.70 16.33

Noverbhe 18.27 18.70 16.33

Decerher 18.27 18.7 16.33

Average 18.6 98.45 16.02 16.33

Equev

Pd. 2412 2383 2535 SA2

Wr<.

"What

1" $36,301 $36,823 $ 40,609 $ 14,4%

Eam ngs

Actual

W-2 $35,677 $36,823 $ 40,609 $ 14,40

Ea™mings

Difference $626 $0 $0 $0

EXHIBIT C

JOHN TAYLOR'S HISTORY OF WAGE RATES (actual)

ACTUAL

PERSONAL

ADJUSTMENTS EFFECTIVE DATES OF GENERAL ADJUSTMENTS TO

WAGE RATES

EFFECTIVE

DATE PAY LEVEL 1980 10/6/80 6/15/81 6/7/82 6/13/88

9/8/80 Hire Rate 6.50 6.50

12/8/80 7-103 7.20

3/2/81 T-106 7.8

1-109

1-112

1-448

7-126

4/8/8) 1-29 8.59 9.4

9/7/81 T-212 9.9

3/8/82 T-218 9.5 10.50

9/6/82 1-224 190.90

3/7/83 1-29 11.0

T-312

1-318

1-324

5°)

D/PR/R7 5%

4,24,

1-49)

T-L4%

5/7/PD 1-442

JORN TAYLOR'S HISTORY OF WAGE RATES (arctinmi)

ACTUAL

PERSONAL

ADJUSTMENTS EFFECTIVE DATES OF GENERAL

WAGE RATES

EFFECTIVE

DATE PAY LEVEL \FD 4/B/% 9/2/76 3/1/73

9/2/90 Hire Rate 4.56

12/8/80 7-133

3/2/86) T- 10

7-10)

1-412

1-118

7-124

4/2/81 7-29

9/7/8' T-212

3/2/82 7-218

9/6/82 1-226

3/7/33 7-25 12.20 12.50

7-312

T-318

7-326

T-330

9/28/87 7-33 13.8 16.19

T-424

T-430

7-43

5/7/% T-44

44 ec

a

ADJUSTMENTS TO

7/3/89 7/2/H

1988

13.8

13.8

13.8

13.8

13.8

13.8

13.8

14.19

14.19

14.19

14.19

14.19

13.9

214

2532

4.3%

yo

+ ah —D

32MIN

iN

»

a al al

BRRRRYXRRBSY

<=>

&

32,356 $

2652

14.59

14.59

18.70

15.70

16.33

16.33

16.33

16.33

16.33

16.33

18.65

1986

12.20

12.20

12.20

12.20

12.

12.20

12.20

12.20

12.20

12.50

12.50

12.50

12.28

33,777 $

2751

16.33

$36,282 $38,167 $ 40,740 $ 15,471

OF

2658

K7

e772

FDH (taylor3) 5/8/71

App. 215

JOM TAYLOR'S "SHAT IF?" WAGE RATES (hard he received same wage rates

as Sorry Art -ard stayed cn Gurve 5)

PERSONAL

ADJUSTMENTS

EFFECTIVE

DATE

9/8/)

12/8/80

3/2/81

6/15/81

W/5/3B

6/15/81

PAY LEVEL

Hire Rate

ee

PAY LEVEL

Hire Rate

7-10

T-106

T-1099

T-112

7-118

T-1246

7-209

Sorry Ard’s »istory of wage rates:

EFFECTIVE DATES OF GENERAL ADJUSTMENTS TO

WACE RATES

1D 8 10/6/] 6/°5/%" 4/7/72 6/°3/%

5. 9.B

9.85

10.60 11.30

. .

i es

AA

alt ah a

wes

Sorry Ard’s history of wage rates:

EFFECTIVE DATES OF GENERAL ADJUSTMENTS TO

WAGE RATES

0 S/S 9/2/%KE—/1/8BOC7/31/89 7/2/K

6.30

App. 216

T-212

T-218

T-226

1-230

9/7/81 T-312

3/8/82 7-318

7-324

1-330

1-336

9/6/82 T-426

3/7/83 7-430

9/5/8 T-586

3/5/& T-S42 15.30

9/3/84 7-548 5.7 16.06 16.45 16.91 17.59

JOHN TAYLOR’S "WHAT IF?" WAGE RATES (had he received sare wage rates

as Sonny Ard--and stayed on Curve 5)

Sonny Ard’s

history of

wage rates

(Curve 5) 1983 1984 1985 1986 1987

January 12.15 14.00 15.7 15.7 16.0

February 12.15 14.00 15.7 15.75 16.0

March 12.7 14.55 15.7 15.75 16.05

April 12.75 14.55 15.5 15.75 16.06

May 12.75 14.55 15.5 15.75 16.06

June 13.40 14.55 15.5 15.75 16.0

July 13.40 15.30 15.7 15.7 16.06

August 13.40 15.30 15.7 15.7 16.06

September 14.00 15.75 15.75 15.7 16.06

October 14.00 15.7 15.7 16.6 16.06

Noverber 14.00 15.7 55.5 16.6 16.6

December 14.00 15.75 15.5 16.06 16.06

Ard’s

Average

Rate 13.3 14.98 15.75 15.8 16.05

Taylor’s

Equiv

Pd. Hr 2992 2532 2652 2751 2772

Taylor’s

"What

1fo™ $ 39,5&% $ 37,929 $ 41,79 $ 43,548 $44,491

App. 217

Actual $ 33,777 $ 30,084 $ 32,356 $ 33,777 $ 35,587

Difference $5,807 $7,845 $9,413 $9,771 $8,906

1B 19 19 1791

Jaruary 6.05 16.45 16.91 7.59

February 6.9 16.45 6.91 7.59

March 6.0 16.45 16.91 17.59

Apr il 6.0 16.45 16.91 7.59

May 16.065 16.45 16.91

June 16.06 16.45 16.91

July 16.05 16.45 17.59

August 16.45 16.91 17.59

September 16.45 16.91 17.59

October 16.45 16.91 17.59

November 16.45 16.91 17.59

December 16.45 16.91 17.59

Ard’s

Average

Rate 16.22 16.64 17.5 17.59

Taylor’s

Equiv.

Pd. Hr 2593 2658 2603 7

Taylor’s

"What

fo $ $42,058 $44,229 44,02 $ 16,658

Taylor’s

Actual $36,282 $38, 167 $ 40,740 $ 15,471

Difference $5, 776 $6,062 $4,162 $ 1,187

FDH (taylor3) 5/8/91

EXHIBIT D Revised

JOHNNIE PALMS’ HISTORY OF WAGE RATES (actual)

ACTUAL

PERSONAL

ADJUSTMENTS EFFECTIVE DATES OF GENERAL ADJUSTMENTS TO

WAGE RATES

EFFECTIVE

DATE PAY LEVEL 1980 10/6/80 6/15/81 6/7/82 6/13/%

9/8/80 Hire Rate 6.50 6.50

12/8/80 T-103 7.20

3/2/81

Asani

ACTUAL

PERSONAL

ADJUSTMENTS

EFFECTIVE

>

SURILAS

™m * @wr

3 gue E

App. 218

7.6

y >)

on" a *4 4

11.65

12.00 12.

12.80

EFFECTIVE DATES OF GENERAL ADJUSTMENTS TO

WAGE RATES

180 6/B/BA 9/29/86 8/1/88 7/31/89 7/2/20

*13.10 13.41

%.19 4.59 15.17

* Mr. Palms had been “on hold’; his next

pay increase would have been when the tap

pay point an Curve 2 exceded $ 12.8).

However, since the plant was abavt to

ackpt 2 new progression system, we chose

to give the save $ .30/hr. increase as

others received.

Actual Wage Rates (Joyinie Pains)

Average

Actual W-2

Earnings

Equiv.

Pd. rs.

FDM (pelm3) 5/28/91

173

11.6

11.65

12.0

12.0

12.0

» of of ob of of

meh hw we A

&

.

dant

oO oOo OVO UO OC

»

~

&

. . oe of of of of of

Www ww Ww Ww we & & wo Ww

>

’

= «=f «=f at = ©

é

219

.

+

FRFRFFRFARQKQKAAG

SSSSS5 2333 ==>

=

»

*

o

i» «OO

Ss

28

:_— . . > .

mre mw me PS fy fe fY

RRSRRSRS

.

e 8

8 8

S

.

oovoeo oO oO

‘

r‘ewrewwawF ww

_—

“NNN

* > —_ >_—_ .

VivViwvwuvwwuvk sé

_-_

aN ™N

16 17

12.8 13.10

12.8 13.10

12 i

12.8 31

2 3.10

12 9 3 4

12.80 13.1

12.80 13.70

12.80 13.10

13.10 13.10

13.10 13.10

13.10 13.10

2.8 3.10

1 $ 34,261 $ 37,856

2659 CE)

1991

«c >

/

«c +

aif

ec >

+c od

a«

$31,167 834,065 S$ % 265 $ 14,432

2357

2x3

° |

App. 220

JOHNNIE PALMS’ "WHAT IF?" WAGE RATES (had he received same wage rates

as Joseph Willard Parker)

PERSONAL

ADJUSTMENTS

EFFECTIVE

DATE

1/14/80

3/24/80

4/14/80

10/20/80

7/13/81

1/11/82

7/12/82

1/10/83

7/11/83

PERSONAL

ADJUSTMENTS

EFFECTIVE

DATE

1/14/80

3/24/80

4/14/80

10/20/80

;

PAY LEVEL

Hire Rate

T-103

PN &

SRR

HHH HH HH HHH HHH HHH

yp do dk i ys OX a oe OS Oe aoe a ee ae

>

Bs

PAY LEVEL 1960

Hire Rate 6

T-10 A

8

SRR

Joseph Willard Parker’s history of wage

rates:

EFFECTIVE DATES OF GENERAL ADJUSTMENTS TO

WAGE RATES

10/6/80 6/15/81 6/7/82 6/13/83

8.05

9.10 9.8

10.60

11.40 12.15

12.7%

13.05 13.70

13.8

Joseph Willard Parker’s history of wage

rates:

EFFECTIVE DATES OF GENERAL ADJUSTMENTS TO

WAGE RATES

6/3/81 9/29/85 8/1/78 7/31/89

7/2/9

App. 221

T-224

T-230

T-312

7/13/81 T-318

1-324

T-330

1-336

1/11/82 T-424

7/12/82 T-430

1/10/88 T-436

7/11/83 T-442 14.00 144.0 5.8 15.70

JOHNNIE PALMS’ "WHAT IF?" WAGE RATES (had he received same wage rates as

Joseph Willard Parker)

J. Willard Parker’s history

of wage rates

(Curve 4)

1983 194 1985 1986 1987

Jaruary 13.06 13.8 14.60 14.60 14.9

February 13.6 13.8 14.60 14.60 14.9

March 13.06 13.8 14.60 14.60 14.90

April 13.05 13.8 14.60 14.60 14.9

May 13.06 13.8 14.60 14.60 14.0

Jure 13.70 13.8 14.60 14.60 14.0

July 13.85 14.60 14.60 14.60 144.AH

August 13.8 14.0€0 14.60 14.60 14.K

September 13.8 14.60 14.60 14.60 14.0

October 13.8 14.60 14.60 14.90 14.91

November 13.85 14.60 14.60 14.9 14.0

December 13.85 14.80 14.60 14.9 14.90

Parker’s

Average

Rate 13.50 4.34 14.60 14.68 14.90

Palms’

Equiv.

Pd. Hrs. 2540 2586 2659 2659 2890

Palms’

What

1f? S$ 34,290 $ 36,799 $ 38,821 $ 39,0% $ 43,061

Palms’

Actual $ 31,385 $ 33,107 $ %,031 $ %,241 $ 37,356

Difference $2,005 $3,692 $4,700 $4,733 $5,265

App. 222

1988 1989 1990 191

Jaruary 4.9 5.86 15.7% 16.33

February 4.9 115.86 15.7 16.3

March 14.90 15.3 15.70 16.3

April 14.90 18.3 15.70 16.33

May 14.90 15.3 15.70

June 14.90 15.3 15.70

July 14.90 15.3 16.33

August 15.3 15.70 16.33

September 15.3 15.70 16.33

October 15.3 15.70 16.33

Noverber 15.3 15.70 16.33

December 15.3 15.70 16.33

Parker's

Average

Rate 15.05 15.55 16.02 16.33

Palms’

Equiv

Pd. Hrs. 2357 2405 2303 F1

Palms’

What

1f?" $35,473 $37.133 $ 36,8% $ 15,530

Palms’

Actual $31,187 $34,065 $ %,265 $ 14,432

Difference %,286 «$3,008 $2,629 $ 1,08

FDH (palms3) 5/28/91

Exhibit €

GERRY PLANT’S HISTORY OF WAGE RATES (actual)

ACTUAL

PERSONAL

ADJUSTMENTS EFFECTIVE DATES OF GENERAL ADJUSTMENTS TO

WAGE RATES

EFFECTIVE

DATE PAY LEVEL 1980 10/6/8 6/15/81 6/7/82 6/13/88

6/9/80 Hire Rate 6.50

9/15/90 T-103 7.00 7.20

12/8/80 T-106 7.8

T-1099

T-112

T-118

1-124

3/9/81 T-209 8.50

SIAN LTR

T-230

6/8/81 T-312

12/7/81 T-318

6/7/82 T-324

12/6/82 T-330

6/6/83 T-336

T-424

T-430

T-436

11/9/87 T-442

ACTUAL

PERSONAL

ADJUSTMENTS

EFFECTIVE

DATE PAY LEVEL

6/9/80 Hire Rate

9/15/90 T-103

12/8/80 T-106

T-109

T-112

T-118

T-124

3/9/81 T-209

T-212

T-218

T-224

T-230

6/8/81 T-312

12/7/81 T-318

6/7/82 T-324

12/6/82 T-330

6/6/83 T-336

T-424

T-430

T-436

11/9/87 T-442

*terminated 11/21/89

App. 223

9.05 9.8

10.60

10.6% 11.65

12.00

12.15 12.80

EFFECTIVE DATES OF GENERAL ADJUSTMENTS TO

WAGE RATES

1980 86/8/84 9/29/8% + 8/1/88 7/31/89

6.50

7.00

13.55 13.8

14.90 15.27 15.70"

App. 224

Actual Wage Rates (Gerry Plant)

1983 1984 1985 1986 1987

January 12.00 12.80 13.55 13.55 13.8

February 12.00 12.80 13.55 13.55 13.8

March 12.00 12.80 13.55 13.55 13.8

April ZG& ZVd bs 23 bs

May 12.00 12.80 13.55 13.55 13.8

June 12.80 12.80 13.55 13.55 13.6

July 2e Gs ts ta tts

August Be ts 82 C2 Tae

September 12.80 13.55 13.55 13.55 13.8

October 12.80 13.55 13.55 13.8 13.8

Noverber 12.80 13.55 13.55 13.8 14.9

December 12.80 13.55 13.55 13.8 14.90

Average 12.47 13.18 13.55 13.43 14.03

Actual

W-2

Earnings $ 33,826 $ 36,057 $ 40,077 $ 39,853 $ 43,640

Equiv.

Pd. Hrs. 2713 2736 2458 2924 3110

FDH (plant3) 5/8/91

Actual Wage Rates (Gerry Plant)

1988 1989

January 14.9 15.27

February 14.9 D.2r

March 14.90 15.27

April 14.9 15.27

May 12.00 14.90 15.27

June 14.9 15.27

July 14.90 15.27

August 15.27 15.70

September 15.27 15.70

October 15.27 15.70

Noverber 15.27 15.70

December 15.27

Average 15.05 15.43

Actual

W-2

Earnings $ 38,699 $ 28,618

ee

Equiv.

Pd. Hrs.

FDH (plant3) 5/8/91

PERSONAL

ADJUSTMENTS

EFFECTIVE

DATE

12/3/79

3/3/80

3/24/80

4/8/80

6/1/81

11/30/81

5/2" /82

11/29/82

5/30/83

11/22/83

PERSONAL

ADJUSTMENTS

EFFECTIY-

DATE

12/3/79

3/3/80

3/24/80

9/8/80

ce

3s

EX EREeHE

App. 225

1855

GERRY PLANT’S "WHAT IF?" WAGE RATES (had he received same wage rates

as Roy Peterson)

Roy Petersan’s history of wage rates:

EFFECTIVE DATES OF GENERAL ADJUSTMENTS TO

WAGE RATES

10/6/80 6/15/81 6/7/82 6/13/&

9.10

12.75

13.35

13.90 14.55

15.00

Roy Petersan’s history of wage rates:

EFFECTIVE DATES OF GENERAL ADJUSTMENTS TO

WAGE RATES

6/B/% 9/29/8% 8/1/8B 7/31/89

App. 226

6/1/81

ee ee

. 2 On oS. Soe oe ee

8

+

11/30/81

5/31/82

11/29/82

5/30/83

11/28/83 548 18.75 16.05 16.45 16.91

GERRY PLANT’S "SHAT IF?" WAGE RATES (had he received same wage rates

as Roy Peterson)

Roy Peterson’s history

of wage rates

(Qurve 5) 1983 1984 1985 1986 1987

Jaruary 13.35 15.00 15.75 15.75 16.05

February 13.35 15.00 15.7 15.75 16.05

March 13.35 15.00 15.75 15.75 16.05

Apri | 13.35 15.00 15.75 15.75 16.065

May 13.35 15.00 15.75 15.7 16.05

June 14.55 15.00 15.75 15.75 16.05

July 14.55 15.75 15.75 15.7 16.05

August 14.55 15.7 18.75 15.7 16.06

September 14.55 15.75 15.7 15.75 16.06

October 14.55 15.75 15.75 16.06 16.05

November 14.55 15.7 15.7 16.05 16.05

December 15.00 15.75 15.75 16.05 16.06

Average 14.09 15.38 15.74 15.8 16.065

Equiv.

Pd. Hrs. 2713 273% 2458 2924 3110

“hhat 1f?"

Earnings $ 38,226 $ 42,080 $ 46,589 $ 46,287 $ 49,916

Actual

W-2

Earnings $ 33,826 $ 36,057 $ 40,077 $ 39,853 $ 43,640

Difference $4,400 $6,023 $6,512 $6,4% $6,276

eee

App. 227

FDH (plant3) 5/8/91

Roy Peterson’s history

of wage rates

(Curve 5) 1988 1989

January 16.6 16.45

February 16.05 16.45

March 16.05 16.45

April 16.05 16.45

May 16.05 16.45

Jure 16.05 16.45

July 16.05 16.45

August 16.45 16.91

September 16.45 16.91

October 16.45 16.91

Noverber 16.45 16.91

December 16.45

Average 16.22 16.62

Equiv.

Pd. Hrs. 2571 1055

"hat 1f?"

Earnings $ 41,702 $ 30,830

Actual

W-2

Eamings $ 38,699 $ 28,618

Difference $3,083 $2,212

FDH (plant3) 5/8/91

Exhibit F

IKE ROSS’ WAGE RATES (had he remained employed on Oirve 2 until

resignation)

PERSONAL

ADJUSTMENTS EFFECTIVE DATES OF GENERAL ADJUSTMENTS TO

WAGE RATES

EFFECTIVE

DATE PAY LEVEL 1980 10/6/80 6/15/81 6/7/82 6/13/88

6/9/80 Hire Rate 6.50

10/6/80 T-10 7.00 7.2

12/8/80 T-106 7.8

3/9/81 T-109

T-112

T-118

T-124

6/8/81 T-209

9/7/81 T-212

3/8/82 T-218

9/6/82 1-224

3/7/83 1-230

PERSONAL

ADJUSTMENTS

EFFECTIVE

DATE PAY LEVEL

6/9/80 Hire Rate

10/6/80 T-103

12/8/80 T-106

3/9/81 T-109

T-112

T-118

T-124

6/8/81 T-209

9/7/81 T-212

3/8/82 T-218

9/6/82 T-224

3/7/88 T-230

*resigned 7/31/

IKE ROSS’ WAGE RATES (had he remained employed o Curve 2 until

resignation)

App. 228

1980

6.50

7.00

1983

8.05

8.50

12.20

1984

11.55

11.55

11.55

11.55

11.55

12.20

12.20

12.20

12.20

12.20

12.20

12.20

11.9

RYO

12.50

1985

12.20

12.20

12.20

12.20

12.20

12.20

12.20

12.20

12.20

12.20

12.20

12.20

12.20

10.50

10.80

11.00

6/25/84 9/29/86 2/1/88

*12.81

1986

12.20

12.20

12.20

12.20

12.20

12.20

12.20

12.20

12.20

12.50

12.50

12.50

12.28

11.55

EFFECTIVE DATES OF GENERAL ADJUSTMENTS TO

WAGE RATES

1987

12.50

12.50

12.50

12.50

12.50

12.50

12.50

12.50

12.50

12.50

12.50

12.50

12.50

Actual W-2

Earnings $2,461 $ 2,84

Equiv.

Pd. Hrs. 209 201

(NOTE: This informatian taken from secord page--to calculate "Barry Equiv.

Pd. Hrs.")

Earnings $ 44H $ %,5S $ 37,4632

Rate 13.55 13.45 13.8

Pd. Hrs. 2073 2680 2717

Earnings (if

Emp! oyed) $ 32,859 $ 32,007 $ 33,9

FDH (ross3) 5/8/91

19B 1989

Jaruary 12.50 12.81

February 12.50 12.81

March 12.50 12.81

Apr i| 12.50 12.81

Mary 12.50 12.81

jure 12.50 12.81 rehired 6/16/89

July 12.50 12.81 rehired 7/31/89

August 12.50

Septearber 12.50

October 12.50

Noverber 12.50

Decenber 12.50

Average 12.43 12.81

(NOTE: This information taken fran second page--to calculate "Barry Equiv.

Pd. Hrs.")

Earnings $ 36,550 $21,199 $ 21,199 <--($36,361)(7/12)

Rate 13.7 14.19

Pd. Hrs. 2613 146%

App. 230

Earnings (if

Emp! oyed) $ 32,97 $ 19,137

FOH (ross3) 5/8/91

IKE ROSS’ "S.MAT IF?" WAGE RATES (had he received same wor rates =

PERSONAL Jerry Barry's history of wage rates:

AD JUSTMENTS EFFECTIVE DATES OF GENERAL ADJUSTMENTS TO

WAGE RATES

EFFECTIVE

DATE PAY LEVEL 1980 10/6/80 6/15/81 6/7/82 6/13/88

6/9/80 Hire Rate 6.50

9/15/80 T-103 7.00 7.20

12/8/80 T-106 7.8

r-100

7 12

r-148

T- 124

3/9/81 T-209 8.50

T-212

218

T-224

7-230

6/8/8' T-312 9.06 9.8

12/7/81 7-318 10.60

6/7/82 T-324 10.6 11.65

12/6/82 7-330 12.00

6/6/83 7-336 12.15 12.80

PERSONAL Jerry Barry’s history of wage rates:

ADJUSTMENTS EFFECTIVE DATES OF GENERAL ADJUSTMENTS TO

WAGE RATES

EFFECTIVE

DATE PAY LEVEL 1980 §86 6/3/84: 9/29/85 _ 8/1788 3977/31/89

7/2/90

6/9/80 Hire Rate 6.50

9/15/80 T-103 7.00

12/8/80 T-106

T-109

T-112

T-118

T-124

3/9/81 T-2099

T-212

T-218

1-230

6/8/81 1-312

12/7/81 1-318

6/7/82 1-324

12/6/82 1-330

4/B/RS 1-3%

231

IKE ROSS’ "WHAT IF?" WAGE RATES (had he received same wage rates as

Jerry Barry)

Jerry Barry’s history of

wage rates

(Curve 3)

12.47

301

1%5 1%

13.55 13.55

13.55 13.55

13.55 13.55

13.55 13.55

13.55 13.55

aa wae

3.55 13.55

G2 G2

6.35 G3

13.55 13.8

3.55 13.8

G.55 13.8

3.55 13.6

13.85

a

Gl Gi Gi i Gs

RRR RRAR

—_

-_

-

t®

$45 $ 5 $ 37,43

$ 32,5% $ 32,563 $ 36,45 $ 3,53 $ 37,452

$ 29,461 $ 29,834 $ 32,859 $ 32,K07 $ 33,

$3,073 $3,129 $3,656 $3,618 $3,568

App. 232

Jerry Barry’s history of

wage rates

(Gurve 3)

1988 1989

Jartary 13.6 4.19

February 13.8 14.19

March 13.8 14.19

hor) | 13.85 14.19

May 13.8 14.19

Jue 13.8 14.19

July 13.8 14.19

August 4.19

Septerber 4.19

October 14.19

Novertber 4.19

December 144.19

Barry’s

Average

Rate 3.9 14.19

Barry’s

W-2

Earnings $ 3,550 $ 21,19 <--($36.3%41(7/12)

Ross’

Equiv

Pd. Hrs

Ross’

“hat

if? $ %,550 $ 21,1F

Actual

(if

empl oyed) $ 32,97 $ 19, 137

Difference $3,553 $ 2,062

FDH (ross3) 5/8/91

EXHIBIT A-1

DOLLAR DIFFERENCES BETWEEN ACTUAL EARNINGS

AND "SHAT IF" EARNINGS

HERRING TAYLOR PLANT ROSS PALMS

33-02-4219 24-66-6537 27-13-8776 24-86-10 29-66-8356!

KE 9

PLAN YEAR CE 6/9/80 O0CE 9/8/80 cE 6/9/80 cE 6/9/80 /8/80

1983 $64.5 $1,354.77 $872.79 $ 620.62 $ 823.61

19% 2,868.48 5,657.76 4,756.35 2,711.92 2,533.02

1985 3,105.26 8,149.82 5,553.48 3,232.0 4,239.52

1986 3,167.40 8,612.88 5,415.72 3,191.2 4,201.68

25-76-7673

* >on

Saks

-NNNN}

Bey

See

SSE8SNaHERE

233

5,419.46 3,062.84

3,575.72 3,091.92

2,471.07 3,021.64

1,010.76 0.00

0.00 0.00

-

“

. .

SHeHE

Nowwsr

BeBe

—_

EEE EEE EEE EEE EEE EE EEE EEE tt tt tt te tt te te th te te te te te te te te

Balance

5/15/91

Cash

Common

Stock

Preferred

Stock

Sib Total

Valuation

Deduction

Total

Balace

5/15/91

Stock

ADDITIONAL CONTRIBUTIONS WHICH WOULD HAVE BEEN MADE

BASED ON ADDITIONAL "WHAT IF" EARNINGS

$24.15 $ 50.3

47.146 126.498

0.000 3.572

$ 3,005.21 $ 10,857.59

$ 3,905.21 $ 10,857.59

$19.0

37.149

$ 63.37 $ 27.8

&5.100 54.410

0.789 0.000

$ 7,132.11 $ 4,506.91

-1,000.00

$ 6,132.11 $ 4,506.91

$ 68.8

66.8%

1.388

$5,6.9

$5,0.9

App. 234

Preferred

Stock 0.000

Sub-Total

Valuation $ 3,077.20

Deductions

Total $ 3,077.20

OPINION FOOTNOTES

ni

YEAR BACK PAY AWARD

193 $ 4,843

1s 7,845

2S 9,413

6 9,771

‘a7 8,904

1388 5,776

1939 6,062

1990 4,162

1991 1, 187

Subtotal $ 57,93

Deduction 0-

Total Back Pay Award $ 57,963

r2

YEAR BACK PAY AWARD

133 $ 2,168

1984 3,29

1985 3,482 !

1986 3,550

‘7 2,96

1B a6 |

“oR9 1,28

1990 -0-

1991 -0-

Subtotal $ 17,510

Deduction -0-

F

Total Back Pay Award $ 17,510

App. 235

rs

YEAR BACK PAY AWARD

1983 $ 2,421

198% 3,82

1985 4,790

1986 4,793

1987 5,205

1988 4, 286

1989 3,068

1990 2,629

1991 1,098

Subtotal $ 31,92

Deduction -0-

Total Back Pay Award $ 31,982

m%

YEAR BACK PAY AWARD

1983 $ 1,674

1984 2,760

1985 2,838

1986 2,897

1987 2,%6

1988 624

1989 -0-

1999 -0-

1991 -0-

Subtotal $ 13,759

Deduct ian -0-

Total Back Pay Award $ 13,759

r6

YEAR BACK PAY AWARD

1983 $ 3,300

1984 6,023

1985 6,512

1986 6,434

1987 6,276

1988 3,003

1989 2,212

1990 0-

Total Back Pay Award

ré

Total Back Pay Award

n7 Sectian 1821 provides in relevant part:

Subtotal

Deduction

1986

19B7

1988

1989

1990

1991

Subtotal

Deduction

236

$ 21,971

AWARD

(b) A witness shall be paid an attendance fee of $ 30 per day for each

day’s attendance. A witness shall also be paid the attendance fee for the

time necessarily occupied in going to ad retuming fram the place of

attendance at the begiming ad erd of such attercirce or at ay tine

during such attendarce.

r8

TOTAL ATTORNEY'S FEES

Attorney’s fees and reasonable expenses:

Legal support staff fees and reasonable expenses:

SUBTOTAL :

Less previously awarded interim attorney's fees:

TOTAL

APPENDIX E: DENIAL OF MOTION FOR

REHEARING AND MOTION FOR REHEARING EN BANC

(FILED U.S. COURT OF APPEALS ELEVENTH

CIRCUIT FEB 8, 1994, MIGUEL J. CORTEZ

CLERK)

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 89-8378, et al.

ISSIAH ROSS, JR., et al.,

Plaintiffs-Appellants,

versus

BUCKEYE CELLULOSE CORPORATION,

Defendant-—Appellee.

On Appeal from the United States

District Court for the Middle District of

Georgia

App. 238

ON PETITION(S) FOR REHEARING AND

SUGGESTION(S) OF REHEARING EN BANC

Before: ANDERSON, Circuit Judge, HILL AND

ESCHBACK*, Senior Circuit Judges.

PER CURTAM:

(x) The Petition(s) for Rehearing are

DENIED and no member of this panel nor

other Judge in regular active service on

the Court having requested that the Court

be polled on rehearing en banc (Rule 35,

Federal Rules of Appellate Procedure;

Eleventh Circuit Rule 35-5), the

Suggestion(s) of Rehearing En Banc are

DENIED.

ENTERED FOR THE COURT:

/s/ R. LANIER ANDERSON

*Hon. Jesse E. Eschbach, Senior U.S.

Circuit Judge for the Seventh Circuit,

sitting by designation.

APPENDIX F

DO NOT PUBLISH

(FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

APRIL 20,1994

MIGUEL J. CORTEZ

CLERK)

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

NO. 93-8136

D.C. Docket No. CIV89-240-3-MAC

NANNETTE HILL TYSON; GEORGE EARNEST RUMPH,

Plaintiffs-Appellants,

versus

PROCTER AND GAMBLE CELLULOSE CORPORATION,

Defendant-Appellee.

App 240

Appeal from the United States District

Court for the Middle District of Georgia

(April 20, 1994)

Before KRAVITCH and BLACK, Circuit Judges,

and DYER, Senior Circuit Judge.

PER CURIAM:

Appellants Tyson and Rumph, employees of

Procter & Gamble, contend that certain of

appellee Procter & Gamble’s wage practices

constitute wage discrimination violative

of Title VII of the Civil Rights Act of

1964, as amended,42 U.S.C. Section 2000 et

seq. For the reasons below, and based on

our disposition of identical allegations

in Ross _v. Buckeye Cellulose Corp., 980

F.2d. 648 (11th Cir. 1993), we AFFIRM the

district court’s holding that appellants’

claims are time-barred.

Procter & Gamble Cellulose Corporation,

formerly known as Buckeye Cellulose

Corporation, is an Ohio corporation

licensed to do business in the state of

Georgia. Both appellants are black

App 241

Georgia residents employed at a paper-

processing plant in Macon County, Georgia,

owned by Procter & Gamble. For a complete

description of this plant’s operations,

see Ross v. Buckeye Cellulose Corp., 733

F. Supp. 344, 347-48 (M.D. Ga. 1989),

aff’d in part, 980 F.2d 649 (11th Cir.

1993).

Appellants contend that Procter &

Gamble’s method of setting wages at the

plant, known as the "Pay and Progression

System" (P & P ‘System"), is racially

discriminatory under Title VII. The sole

issue on appeal is whether appellants’

Title VII disparate impact claims are

time-barred based on 42 U.S.C. Section

2000e-5(e)-1+ and this court’s analysis in

Ross, 980 F.2d at 660 (rejecting as time-

barred identical Title VII disparate

impact claims brought by appellants’ co-

workers).

II.

In Ross, thirteen employees, including

Tyson and Rumph, brought suit against

Procter and Gamble alleging, inter alia,

that the P & P System was operated in a

racially discriminatory fashion. Tyson

and Rumph pursued their claims in Ross

App 242

only under Section 1981, because they had

not received the EEOC right to sue letter

that is a prerequisite to bringing a Title

VII claim.? Other plaintiffs in Ross,

however, advanced claims pursuant to both

42 U.S.C. Section 1981 and Title VII.

This court held in Ross that the

employees’ Title VII disparate impact

challenges to the P & P System were time-

barred, because they were not brought

within the 180 limitations period codified

at 42 U.S.C. Section 2000e-5(e). 980 F2d

at 660. In doing so, we held that the

limitations period for such an action

began to run in October 1984, the date on

which the P & P System was frozen and thus

the last possible date of wage

discrimination under the System. Id.

In the present case, it is undisputed

that appellants filed their charges with

the EEOC more thani8s0 days after the P & P

System’s wage freeze in October 1984. See

Order of District court at 9 (Jan. 22,

1993). The district court therefore held

that appellants’ Title VII claims were

time-barred under 42 U.S.C. Section 2000e-

5(e)-1 and the analysis in Ross.

Appellants ask this court to reconsider

epee iD te Pah bet he ee

App 243

our holding in Ross, insofar as Ross set

October 1984 as the date activating the

180 days limitations period in which

Claimants Lane file EECC charges

challenging the Systen. Appellants

contend that Ross is in conflict with

Bazemore v. Friday, 478 U.S. 185 (1986).

We squarely rejected an identical

argument in Ross. See 980 F.2d at 659

n.17. The doctrine of stare decisis binds

us to our decision in Ross, "absent a

countervailing decision by the Supreme

Court or by this Court sitting en banc."

Ransom _v. S_ & S Food Center, Inc. of

Florida, 700 f.2a 670, 674 (11th Cir.

1983). Because it is undisputed that

appellants filed their EEOC charges

beyond the 180 days limitations period,

the district court’s grant of summary

judgment to Procter & Gamble is AFFIRMED.

NOTES:

“Title 42 U.S.C. Section 2000e-5(e)-1

requires an employee to file

discrimination charges with the FEoC

"within one hundred and eighty days after

the alleged unlawful employment practice

occurred." Disposition of such charges by

the EEOC is a prerequisite to a Title VII

App 244

action.

2appellants eventually received their EEOC

right to sue letters on April 25, 1989.

The letters dismissed appellants’ charges

of discrimination based on lack of

jurisdiction and noted that appellants had

"filed a private lawsuit." As to

appellants’ Section i981 claims, a jury

returned a verdict for the defendant.

3Wwe note that insofar as the complaint

alleges Title VII violations arising out

of distinct acts committed in 1989 and

1991 (see complaint pars. 18-20, 24-26),

such claims are time-barred, no EEOC

charges having been filed as to those

asserted violations.