Carter v. Shop Rite Foods, Inc.

• Decision Date: 17 May 1979
• Docket Number: Civ. A. No. CA-3-74-0620-G.
• Citation: 470 F. Supp. 1150
• Parties: Patricia CARTER v. SHOP RITE FOODS, INC.
• Court: U.S. District Court — Northern District of Texas

470 F. Supp. 1150

Patricia CARTER v. SHOP RITE FOODS, INC.

Civ. A. No. CA-3-74-0620-G.

United States District Court, N. D. Texas, Dallas Division.

May 17, 1979.

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John A. Martin, Carrington, Coleman, Sloman, Johnson & Blumenthal, Dallas, Tex., for special master.

Linda N. Coffee, Palmer, Palmer & Coffee, Dallas, Tex., Sue B. Goolsby, Dallas, Tex., for plaintiff, Patricia Carter.

Durwood D. Crawford and Deborah A. McCann, Seay, Gwinn, Crawford, Mebus & Blakeney, Dallas, Tex., for defendant, Shop Rite Foods, Inc.

MEMORANDUM OPINION AND ORDER

PATRICK E. HIGGINBOTHAM, District Judge.

Plaintiff, a female former employee of Shop Rite Foods, Inc., filed this class action in July, 1974, alleging the company discriminated against women in promotions. The certified class included "those female persons who are presently employed or have been employed since June 6, 1973, at one or more of the Defendant's `Piggly Wiggly' Supermarkets that comprise the Dallas District." This court, after the November, 1976 trial on liability, found that the defendant engaged in a class-wide pattern of discrimination against its female employees. After notice to the class, 24 members filed Proof of Claim forms, seeking individual back pay awards.¹ On November 20, 1978, the trial on remedy began.

Before the appropriate awards for the individual claimants may be determined, the court must resolve certain complex issues of law and fact. First, taking into consideration the peculiar nature of defendant's promotional system, the court must determine the burden the claimants must meet to establish a prima facie case, and the standard defendant must satisfy to overcome each claimant's showing. Second, the court must select the appropriate formula for reconstructing the positions the claimants would have held absent discrimination. Finally, the question of the appropriate date(s) for the termination of back pay must be answered. This opinion will resolve these issues, will determine which claimants are entitled to back pay, and will appoint a Special Master to perform the actual back pay calculations in Phase III of this proceeding.

Burden of Proof

It is well established that after liability has been found in a Title VII proceeding, a presumption arises that the class members are entitled to back pay. Pettway v. American Cast Iron Pipe Company, 494 F.2d 211, 259, (5 Cir. 1974). In order to avail herself of this presumption, however, each claimant must establish a prima facie case of individual discrimination. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 358, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). The Supreme Court in Teamsters emphasized that the nature of this showing is not inflexible. "The facts necessarily will vary in Title VII cases, and the specification . . . of the prima facie proof required from a claimant is not necessarily applicable in every respect to differing factual situations." Id. at 358, 97 S.Ct. at 1866, quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, n. 13, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

A court in determining the appropriate standard must not require a quantum of proof so rigid as to defeat the purposes of the Act. The objectives of Title VII are to achieve equal employment opportunities and to remove those barriers by which employers favor white male employees over other employees. Griggs v. Duke Power Co., 401 U.S. 424, 429-30, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). Persons who have suffered discrimination are to be made whole. To effect these purposes, Congress has vested in district courts broad equitable powers to fashion decrees which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future. Albermarle Paper Co. v. Moody, 422 U.S. 405, 418, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975).

The Supreme Court in Teamsters held that the purposes of the Act are best fulfilled by requiring a claimant to demonstrate either that he applied unsuccessfully for a position or that, even though he did not apply, "he was a potential victim of unlawful discrimination." 431 U.S. at 367, 97 S.Ct. at 1871. Justice Stewart, writing for the majority, required claimants who failed to apply to meet "the not always easy burden" of proving that, had it not been for the discriminatory practices, they would have applied for the job.

In applying this standard to the facts before it, the court is mindful of the significant factual distinction between Teamsters and this case. In Teamsters there existed application procedures which were available to any class member, and everyone who was hired submitted an application. Shop Rite, however, had no established procedure whereby an employee could make a formal application for promotion. The female employees were not notified of the existence of vacancies and thus had no opportunity to request promotion to a particular position. The male employees who received promotions were sought out by the management and did not have to apply. The lack of a formal application procedure was thus itself a tool of discrimination. Absent discrimination, the claimants would have been afforded a means of applying for a management position.

To satisfy the Teamsters' standard under the facts of this case, each claimant must show that she wanted to be promoted and would have accepted a promotion if offered. This question is a factual one for the trial court's determination. Id. at 371, n. 58, 97 S.Ct. at 1873 n. 58. While evidence of an employee's informal inquiry or expression of interest goes far toward establishing a claimant's prima facie case, "an unexpressed desire credible and convincing" may suffice. Id. at 369, n. 53, 97 S.Ct. at 1873. Teamsters requires that the employee also come forward with basic information about her qualifications. Id.

After a claimant has made this threshold showing, the burden shifts to the defendant to show that the employee was denied a promotion for lawful reasons. Id. at 362, 97 S.Ct. 1843. Franks v. Bowman Transportation Co., 424 U.S. 747, 773, n. 32, 96 S.Ct. 1251, 47 L.Ed.2d 444. The burden that Shop Rite logically must overcome is not that a particular claimant should not have been promoted. Rather, the defendant must prove that given the actual criteria according to which a decision to promote was made and absent sex discrimination, a claimant would in fact not have been promoted. The defendant must prove its case with clear and convincing evidence. Pettway v. American Cast Iron Pipe Co., supra, at 259; Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364 (5th Cir. 1974).

Reconstruction of Work History

There is no way of determining with precision which jobs the claimants in any given class would have held absent discrimination. Thus, the method by which a court reconstructs claimants' work history and awards back pay should not be rigid. Pettway v. American Cast Iron Pipe Co., supra, at 260. Courts have recognized that while the mechanics of reconstructing work history are difficult and the results imprecise, "whatever difficulty of ascertainment exists is due to the discriminatory wage structure maintained by the defendant . . It suffices for the trial court to determine the amount of back wages `as a matter of just and reasonable inference'. . . . Difficulty of ascertainment is no longer confused with right of recovery." Id. at 260, quoting Brennan v. City Stores, Inc., 479 F.2d 235, 242 (5th Cir. 1973).

The Fifth Circuit has evolved two principles to guide trial courts in reconstructing work history. First, unrealistic exactitude is not required, and second, uncertainties should be resolved against the discriminating employer. Id. at 260-61.

Shop Rite first contends that regardless of the formula the court uses to reconstruct work histories, this hypothetical reconstruction period cannot begin until back pay liability commences. It thus argues that in determining what position the employees would have been in absent discrimination, the court may not consider any discrimination that occurred before the cutoff date for awarding back pay. Under 42 U.S.C. § 2000e-5(g), back pay liability begins no earlier than two years before the plaintiff files his EEOC charge. Neither the caselaw nor the purposes of the Act support Shop Rite's position. Miller v. Miami Prefabricators, Inc., 438 F.Supp. 176 (S.D.Fla.1977), held that although the plaintiff filed charges in 1973, the court could consider his employment history and the available vacancies beginning in 1965 for purposes of determining back pay relief. Id. at 178, 181-82. The court reasoned that Congress added § 2000e-5(g) in 1972 solely to limit the amount that a plaintiff could recover from employers who would otherwise be liable for back pay beginning in 1965. The court instructed that this two year cutoff should only be applied after each employee's "rightful place" has been determined. Id. The section thus in no way limited the time period for reconstructing work history.

Language in Albermarle Paper Co. v. Moody, supra, supports the district court's view in Miller. Implying that violations occurring before the two-year back pay period should be considered, the Supreme Court stated, "Under Title VII backpay liability exists only for practices occurring after the effective date of the Act, July 2, 1965, and accrues only from a date two years prior to the filing of a charge with the EEOC." 422 U.S. at 410, n. 3, 95 S.Ct. at 2368.

A hypothetical reconstruction period commencing with the passage of the Act furthers a primary purpose of Title VII — to "make whole" the victims of discrimination. See Pettway v. American Cast Iron Pipe Co., supra, 494 F.2d at 252. Further, the Act should be enforced in such a way that it deters discrimination. See Albermarle Paper Co. v. Moody, supra. A two year back pay period would have only a slight...