Hester v. SOUTHERN RAILWAY COMPANY

Decision Date01 November 1972
Docket NumberCiv. A. No. 14130.
Citation349 F. Supp. 812
PartiesDollie W. HESTER v. SOUTHERN RAILWAY COMPANY.
CourtU.S. District Court — Northern District of Georgia

Louise T. Hornsby, Atlanta, Ga., for plaintiff.

Sutherland, Asbill & Brennan, Atlanta, Ga., Ellsworth Hall, Jr., Macon, Ga., for defendant.

OPINION

EDENFIELD, District Judge.

Plaintiff commenced this class action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (1970), which applies to defendant, alleging that she was aggrieved of certain unlawful employment practices maintained by defendant. She complained generally that defendant discriminates in its hiring processes against blacks and females. More specifically, she alleged that defendant has a policy at its Atlanta general office of granting employment for the position Data Typist/1050 Operator "Data Typist" to white females who have children while denying such employment to black females who have children. Plaintiff alleged that she, a black female who had a child, applied for the position of Data Typist at the Atlanta general office but was denied employment. The complaint sought injunctive and declaratory relief on behalf of the class and reinstatement, back pay, damages and attorney's fees on behalf of plaintiff. The case was tried to the court sitting without a jury.

The Data Typist position involved in this suit was created by defendant at the Atlanta general office in October 1964 and hiring for that position began in December 1964. A Data Typist mechanically operates a computer input typing machine which produces statistical data about the composition and movement of railroad cars. The work is routine and very repetitious, and defendant has experienced a relatively high turnover rate for this position.

While it is apparent that defendant employed Data Typists in Atlanta from the end of 1964 through 1967, no evidence was introduced as to their exact racial or sexual composition. The only remotely relevant evidence introduced by plaintiff concerning this period establishes that as of February 1966 defendant reported to the Equal Employment Opportunity Commission that it employed as "office and clerical" help 248 white males, 60 white females, 11 black males, and 1 black female. Although it was not shown whether Data Typists were considered "office and clerical" employees by defendant at that time, defendant reported no other non-laborer female employees at that time, black or white, and only 27 other non-laborer and non-managerial male employees, all white. The court deduces from this evidence that as of February 1966 defendant employed quite a few white Data Typists but few, if any, black Data Typists at the Atlanta office.

During the year 1968 defendant hired 51 females as Data Typists and Data Typist Trainees in the Atlanta office. Of this number 38 were white and 13 (25%) were black. Eighteen of the whites and nine of the blacks hired had children at the time of their employment.

From January 1, 1969 through August 31, 1969, defendant hired 22 Data Typists and Data Typist Trainees in the Atlanta office, 21 of whom were females. Of the females, 17 were white and 4 (19%) were black. There was no evidence as to how many of these females had children.

During the entire year of 1969 defendant hired 42 females as Data Typists and Data Typist Trainees in the Atlanta office. Of this number 32 were white and 10 (24%) were black. Thirteen of the whites and three of the blacks hired had children at the time of their employment.

Plaintiff introduced no evidence us to the total number of people who applied for the position of Data Typist at the Atlanta office in 1968 or 1969, nor did she introduce any evidence as to the total male:female or black:white ratio of the applicants. There was some testimony, however, that in 1969 approximately 35%-40% of those who responded to defendant's advertisements for the Data Typist position were black. As of October 2, 1969, defendant employed a total of 110 Data Typists and Data Typist Trainees. Of this number, 92 were white and 18 (17%) were black. According to the 1970 Census of Population, blacks constitute over 50% of the population of Atlanta, and black females constitute over 50% of the female population of Atlanta.

During the period June 30, 1969 through July 12, 1969, the employment department of defendant's Atlanta general office placed an advertisement in the classified section of a newspaper of general circulation indicating that defendant had immediate openings for typists willing to work at night and on weekends and able to type 60 words per minute. The purpose of this advertisement was to attract applicants for the position of Data Typist at the Atlanta office. A total of 40 persons, including plaintiff, responded to the advertisement. Of the 40, 14 were white females, 19 were black females, 5 were white males, and 2 were black males.

The 40 applicants appeared at the Atlanta office and completed application forms. Among other things, the instructions on the forms asked applicants to check whether they were willing to work any day of the week, any shift, and overtime. Plaintiff left this portion of the form blank when she applied. After the forms were completed, the group was addressed by James L. Melton, a white male, defendant's only personnel officer in Atlanta at the time. Melton explained the Data Typist position to the group and pointed out that the working hours would be from 11:00 P.M. to 7:00 A.M. After that the members of the group were given a battery of four tests:

(1) Science Research Association "SRA" verbal test;
(2) SRA non-verbal test;
(3) J. P. Cleaver Institute's self-description test; and
(4) SRA typing test.

None of these tests has ever been professionally validated for accuracy or relevancy, although there was some testimony that defendant is now engaged in validation studies.

According to Melton, the single most important skill for the Data Typist position is good typing, and defendant required that all successful applicants be able to achieve a score of 60 corrected words per minute on the SRA typing test. Plaintiff achieved a score of 53 the first time she took the typing test, but she was permitted to take it a second time and passed with a score of 68. It appears that plaintiff also successfully completed the three other tests.

All those who passed the four tests, including plaintiff, were interviewed by Melton, the only representative of defendant who conducted screening interviews at that time. No applicant who was rejected by Melton at that time was considered any further by defendant for employment while approximately 95% of the applicants recommended by Melton were hired. According to Melton, the purpose of the interview was to gather information about the applicant's background, family situation, access to transportation, work habits, and personality. Melton was interested in hiring uncomplicated people who would be able to adequately perform rather dull work. It does not appear from the evidence that Melton had any written or formal guidelines from defendant as to how to conduct or score the interview, and the court deduces that this stage of the hiring process was entirely subjective.

Plaintiff testified that at her interview she told Melton she was willing to work at any time, day or night, that she and her husband had their own cars, and that her husband's grandmother would care for her 22-month-old child while plaintiff worked. Melton testified that he did not recall his interview with plaintiff nor any of the conversations he had with her. However, under examination by plaintiff's counsel, Melton identified his handwritten notes on plaintiff's application and said they were comments made in an interview. The notes said:

"21 years old, married 2 years, 1 child. Home town Atlanta, also husband works at Lockheed—has been here 4 years. H.S. Education, very prim and proper air. Parents here, mother seamstress, step father works at Scripto. Types all day now but didn't seem to like it. Has never worked nights, husband works days. Might be problem with that. Like her except for no night work experience. A big IF sic. Reject for this reason."

Despite the fact that these notes would indicate that Melton rejected plaintiff solely because she had no night work experience, Melton did not so testify. The pertinent testimony is as follows:

"Q Plaintiff's Counsel Then you personally rejected Mrs. Hester?
A Mr. Melton Yes, ma'am, I did.
Q Why did you reject her?
A I am judging strictly from my application, —
Q All right.
A —and it's really hard for me to single out any one factor. There are several factors and I threw these out—
* * * * * *
THE COURT: What he read from the application says he's rejecting her because she's had no night work.
THE WITNESS: These comments that we write here, let me explain why we use them.
They're not intended to be a permanent record other than they're just something to jog my memory. If something had come up on this day, one or two, three months, we possibly could have, I would have remembered it, perhaps.
I don't know how long it was before this was finally jogged to my mind.
BY PLAINTIFF'S COUNSEL:
Q These comments were what you were thinking at the time you interviewed her, is that right?
A Yes ma'am. But not necessarily spelling out all the strengths or all of the weaknesses or all of the factors behind my decision to hire or not hire, or to recommend hire or not hire.
Q Well, judging from that, what do you think, why wasn't she hired?
A Judging from this I would say I didn't feel that her overall background and work experience and general personality fit what I felt would be an acceptable pattern for a data typist—and I'm just guessing, but looking at her application, her work experience, though it has been in repetitive type, I have a statement here she didn't seem to like typing all day, she has never done
...

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