Cheatwood v. South Central Bell Telephone & Tel. Co.

• Decision Date: 31 July 1969
• Docket Number: Civ. A. No. 2796-N.
• Citation: 303 F. Supp. 754
• Parties: Claudine B. CHEATWOOD, Plaintiff, v. SOUTH CENTRAL BELL TELEPHONE AND TELEGRAPH COMPANY, Defendant.
• Court: U.S. District Court — Middle District of Alabama

303 F. Supp. 754

Claudine B. CHEATWOOD, Plaintiff, v. SOUTH CENTRAL BELL TELEPHONE AND TELEGRAPH COMPANY, Defendant.

Civ. A. No. 2796-N.

United States District Court M. D. Alabama, N. D.

February 12, 1969.

Order and Judgment July 31, 1969.

J. R. Goldthwaite and Patrick M. Scanlon, of Adair, Goldthwaite, Stanford & Daniel, Atlanta, Ga., for plaintiff.

Walter R. Byars, of Steiner, Crum & Baker, Montgomery, Ala., and Atley Kitchings, Jr., Birmingham, Ala., of South Central Bell Tel. & Tel. Co., for defendant.

FRANK M. JOHNSON, Jr., Chief Judge.

On Motion to Strike Demand for Jury

This cause is now submitted on plaintiff's motion to strike defendant's timely filed demand for a jury trial.

In determining the issues thus raised, this Court must turn first to the complaint to determine the relief requested. The prayer is as follows:

"1. For monetary damages in the sum of $12,000 to make her whole for the discrimination in employment which she has suffered;

"2. For Court order directing defendant to assign plaintiff to employment as Commercial Representative;

"3. For an injunction against the defendant's further discriminating against female employees by refusing to consider their applications for vacancies in the job classifications of Commercial Representative and other similar classifications;

"4. For the assessment of a reasonable attorney's fee to be awarded to plaintiff for payment for the services rendered by her attorney in connection with this action."

South Central Bell argues that the Seventh Amendment, Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959), and Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962), require a jury trial on the issue of plaintiff's prayer for back pay. There is no doubt that the other remedies sought are equitable; the only question now presented by this motion is whether the claim for back pay raises a legal issue.

Certainly the statutory language seems to treat the back pay issue as one for the trial judge rather than a jury. 42 U.S.C. § 2000e-5(g) provides:

"If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include reinstatement or hiring of employees, with or without back pay (payable by the employer, employment agency, or labor organization, as the case may be, responsible for the unlawful employment practice)." (Emphasis added.)

This was the interpretation given the language in a rather similar context. Swofford v. B & W, Inc., 336 F.2d 406, 411-412 (5th Cir. 1964).

The only authority squarely on point denied a jury trial in a Title VII back pay case. See Hayes v. Seaboard Coast Line R. R. Co., 46 F.R.D. 49, S.D.Ga., Dec. 9, 1968, and cases there cited. The Supreme Court has held that there is no right to a jury trial on an award of back pay under § 10(c) of the National Labor Relations Act. NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 48-49, 57 S.Ct. 615, 629, 81 L.Ed. 893 (1937). The Court there stated:

"The instant case is not a suit at common law or in the nature of such a suit. The proceeding is one unknown to the common law. It is a statutory proceeding. Reinstatement of the employee and payment for time lost are requirements imposed for violation of the statute and are remedies appropriate to its enforcement. The contention under the Seventh Amendment is without merit."

Defendant relies heavily on Harkless v. Sweeny Independent School District, 278 F.Supp. 632 (S.D.Tex. 1968), in which the Court granted a jury trial on the issue of back pay in an action under 42 U.S.C. § 1983 seeking reinstatement as teachers after a discharge allegedly based on racial discrimination. Section 1983, unlike Title VII, speaks directly on an "action at law." To the extent that Harkless is inconsistent with Hayes, however, this Court chooses to follow Hayes. Harkless seems to depend on what this Court views as the mistaken proposition that Dairy Queen v. Wood, supra, overruled sub silentio NLRB v. Jones & Laughlin Steel Corp., supra. As indicated above, the latter case did not rely on the characterization of a back pay award "as merely incidental to the equitable remedy," condemned in Dairy Queen, but rather held that the back pay award was not in the nature of a suit at common law.

Accordingly, it is ordered that plaintiff's motion to strike defendant's demand for a jury trial be and the same is hereby granted.

ORDER AND JUDGMENT

In this action Mrs. Claudine B. Cheatwood charges her employer, South Central Bell Telephone & Telegraph Company, with discrimination on the basis of sex in filling a vacancy for the job classification of commercial representative in Montgomery, Alabama, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.

It is admitted that the plaintiff and two other female employees submitted timely bids for the vacancy, that Employer declined to consider the bids of the female employees without considering their individual qualifications, and that the job was awarded to the only male applicant.

It is also undisputed that on or about May 12, 1967, within 90 days following Employer's failure to consider her application, plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission. The charge was amended on or about July 20, 1967, and was served upon the Southern Bell Telephone & Telegraph Company (Employer's corporate predecessor) on or about July 24, 1967. On July 26, 1968, the Commission issued its decision finding that reasonable cause existed to believe that Employer had committed an unlawful employment practice in violation of Title VII. On October 29, 1968, the Commission issued a letter to plaintiff advising that its efforts to conciliate plaintiff's charge of discrimination had failed to achieve voluntary compliance and notifying her that she could institute a civil action within 30 days.

Employer has, in effect, admitted a prima facie violation of § 703(a) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a) which provides in pertinent part:

"Employer Practices

(a) It shall be an unlawful employment practice for an employer — (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's * * * sex * * *; or

(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's * * * sex * * *".

Employer has consistently contended, however, that the position of commercial representative fits within the exception to the general prohibition of discrimination against women set forth in § 703(e) (1), 42 U.S.C. § 2000e-2(e) (1) which provides in pertinent part:

"(e) Notwithstanding any other provision of this subchapter, (1) it shall not be an unlawful employment practice for an employer to hire and employ employees, * * * on the basis of his * * * sex, * * * in those certain instances where * * sex, * * * is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise, * * *" (Emphasis added.)

In a recent case quite similar to the one sub judice, the Court of Appeals for the Fifth Circuit made clear that the burden of proof is on the employer to demonstrate that a given position fits within the bona fide occupational qualification exception. Weeks v. Southern Bell Telephone & Telegraph Co., 408 F. 2d 228 (5th Cir. 1969). The court in Weeks went on to explain the extent of the showing required to satisfy that burden:

"In order to rely on the bona fide occupational qualification exception, an employer has the burden of proving that he had reasonable cause to believe, that is, a factual basis for believing, that all or substantially all women would be unable to perform safely and efficiently the duties of the job involved."

The only issues in this case, then, are determining the duties of a commercial representative and determining whether or not all or substantially all women would be unable to perform those duties safely and efficiently.

The official job description in effect at the time this dispute arose provides:

"COMMERCIAL REPRESENTATIVE — (9/49) Handles commercial matters primarily outside the Company's office, such as visits to customers' premises in connection with criticisms, facilities, securing signed applications where required, credit information, deposits, advance payments, coin telephone inspections, and visits in connection with live and final account treatment work. May also be assigned to work inside the office pertaining to service and collections."

The testimony at trial produced more specific descriptions of these duties and revealed certain additional duties that go with the job in Montgomery, Alabama:

1. Rural canvassing for new customers and mileage checks for billing purposes.

2. Relief of the coin telephone collector on an average of about two days per week.

3. Destroying certain of employer's records on a monthly and annual basis.

4. Handling current records of billing stubs and handling supply requisitions in the office.

5. Performing the biennial furniture inventory.

Defendant contends that several features of these duties make them inappropriate for performance by women. With respect to the rural canvassing, it suggests the...