Reed v. Arlington Hotel Company, Inc.

• Decision Date: 21 March 1973
• Docket Number: No. 71-1726.,71-1726.
• Citation: 476 F.2d 721
• Parties: Johnnie A. REED, Appellant, v. ARLINGTON HOTEL COMPANY, INC., Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

476 F.2d 721 (1973)

Johnnie A. REED, Appellant, v. ARLINGTON HOTEL COMPANY, INC., Appellee.

No. 71-1726.

United States Court of Appeals, Eighth Circuit.

Submitted October 16, 1972.

Decided March 21, 1973.

Rehearing and Rehearing Denied April 26, 1973.

Richard L. Mays, Little Rock, Ark., for appellant.

Philip K. Lyon, Little Rock, Ark., for appellee.

Before HEANEY and STEPHENSON, Circuit Judges, and BOGUE,^* District Judge.

Rehearing and Rehearing En Banc Denied April 26, 1973.

HEANEY, Circuit Judge.

Johnnie A. Reed, a black, brought this suit on behalf of himself and blacks as a class, contending that the defendant, Arlington Hotel, Inc., of Hot Springs, Arkansas, has violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a) (1), through racially discriminatory employment practices.

Reed worked as a bellman at the Arlington Hotel. On February 17, 1969, the chief bellman ordered him and two other black bellmen to help unload a truck. All three refused on the grounds that such a task was not included as part of a bellman's duties. Reed and the others were immediately discharged.

On March 7, 1969, Reed filed a charge with the Equal Employment Opportunity Commission alleging a violation of Title VII. On November 19, 1970, Reed received from the E.E.O.C. notice of his right to sue. On December 18, 1970, he filed this action.

During the course of the trial, the hotel entered into a settlement agreement with the E.E.O.C. Two of those employees discharged in the February, 1969, incident accepted the settlement. Reed rejected it because it included no provision for back pay.

While the defendant's discharge of Reed provided the impetus for the present action, the additional allegations that the hotel has discriminated against all blacks in employment rested upon the hotel's record of maintaining segregated job categories and discriminatory recruitment policies.

After a trial, the court dismissed both Reed's individual action for back pay and injunctive relief and the class action.

I. REED'S ACTION

The trial court held that Reed was fired for insubordination. There is substantial evidence to support that conclusion. When Reed protested the order on the grounds that the unloading was not the work of a bellman, he was told he would be fired if he persisted in his refusal. Moreover, it is clear that the assignment was not a racially discriminatory one. The record shows that the unloading was carried out by whomever was available, whether black or white. There is no evidence to support Reed's contention that he was singled out to do the job because he was black. Employees in all departments did the job from time-to-time, and Reed was in no position to claim special privilege.

II. CLASS ACTION

Before trial, the defendant took the position that the plaintiff, as an employee discharged before the action was commenced, had no standing to raise the issue of discrimination against blacks generally. The defendant relied on two District Court decisions—Burney v. North American Rockwell Corporation, 302 F.Supp. 86 (C.D.Cal.1969), and Hyatt v. United Aircraft Corp., Sikorsky Aircraft Div., 50 F.R.D. 242 (D.Conn. June 11, 1970).¹ The trial court reserved its ruling on the question until after trial, at which time it held that it was proper for the plaintiff to represent blacks as a class. The court stated:

"* * * Recently the courts have held * * * that even an employee who has been discharged, * * * and recognizing that he would not ever go back to work, still has a standing to bring a class action for all those in the same situation * * *. And I think the courts have appropriately pointed out that if this kind of an individual would be prevented from bringing class actions as the rules permit, there would be a windfall for the employer, and when any such matter was coming up, all they would have to do is discharge the employee * * *. That reasoning is logical. So this Court follows the rule that has been more recently established, that a discharged employee does have standing to bring class action where all of the other criteria of the rules have been met. * * *"

The trial court's holding on standing is correct. We have stated that:

"* * * a single charge of employment discrimination under Title VII found by the EEOC to rest upon reasonable grounds may serve to launch a full scale inquiry into the alleged unlawful motivation in employment practices. * * *"

Parham v. Southwestern Bell Telephone Co., 433 F.2d 421, 425 (8th Cir. 1970). In Parham, we allowed an individual who claimed that he had not been hired because of racial discrimination to bring a class action, attacking employment discrimination generally. It requires no extension of Parham to give a discharged employee the same privilege. As a black and a former employee, the plaintiff was subject to the same racially discriminatory policies as other members of the class. "The very nature of a Title VII violation rests upon discrimination against a class characteristic, * * *." Parham v. Southwestern Bell Telephone Co., supra at 428.

The trial court's holding is also in accord with decisions of those Courts of Appeals which have ruled on the matter. Tipler v. E. I. duPont deNemours and Co., 443 F.2d 125, 130 (6th Cir. 1971); Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122, 1124 (5th Cir. 1969). See, Brown v. Gaston County Dyeing Machine Company, 457 F.2d 1377, 1387, n.8 (4th Cir. 1971) (J. Dupree, concurring), cert. denied, 409 U.S. 982, 93 S.Ct. 319, 34 L.Ed.2d 246 (1972); Cf., Graniteville Co. (Sibley Div.) v. Equal Employ. Op. Com'n, 438 F.2d 32, 35 (4th Cir. 1971).

We next consider, on the merits, the trial court's dismissal of the class action. The court held, in substance, that while the statistics showed that discrimination had taken place, dismissal was appropriate because the defendant's current hiring practices sufficiently complied with Title VII. We disagree.

The statistics which show segregated departments and job classifications establish a violation of Title VII. Under these circumstances, outright dismissal is inappropriate. See, Parham v. Southwestern Bell Telephone Co., supra 433 F.2d at 426.

Thirteen percent of Hot Springs' population was black in 1970. Yet, at the time that suit was filed, five of the hotel's eleven departments, providing approximately fifty-eight jobs, were all white and had traditionally been so. Only two department heads were black. The all-white departments included the higher paying job categories found in the front office, accounting and maintenance departments. One department was all black. Another department had seventeen blacks and three whites. While porters and bellmen performed substantially the same duties, they were divided into two separate departments —each one racially segregated. While turnover in some of these segregated departments was relatively low; in others, it was higher. That some departments were integrated does not change the facts that blacks have been substantially deprived of their Title VII rights.

There was testimony which indicated that even in those departments which were not completely segregated, specific positions were limited to persons of one race. For instance, while the maids in the housekeeping department have usually been black, those persons who work in the linen room have always been white. In the food department, the waiters were all black while the food checkers and cashiers were all white.

In addition, the defendant's recruitment practices at the time suit was brought were racially discriminatory in view of its history of racial segregation. See, Brown v. Gaston County Dyeing Machine Company, supra; Parham v. Southwestern Bell Telephone Co., supra.

The evidence shows that the hotel had not established uniform recruiting procedures. Sometimes the state employment service was used, but more often recruiting was done by word of mouth. The hotel had also failed to establish objective criteria for evaluating applicants. Recruitment was left to the individual department heads who decided how to publicize a specific job opening and who subjectively determined an applicant's qualifications for employment. Such unstandardized and subjective procedures lend themselves to arbitrary and discriminatory hiring. See, Brown v. Gaston County Dyeing Machine Company, supra 457 F.2d at 1382, 1383.

The evidence also shows that the defendant did not post notices of job openings in the hotel, and news of them was instead passed along by word of mouth. Under the circumstances, this constituted a discriminatory employment practice. A department head may easily discriminate against black employees by failing to notify them of the opportunities for transfer and promotion in the segregated departments. Furthermore, delays in notification may occur which will effectively preclude the black employees from being considered for a job vacancy. See, Brown v. Gaston County Dyeing Machine Company, supra at 1382, 1383.

It has been suggested that dismissal was appropriate because the defendant hired a few blacks in previously all-white positions during the course of the trial or shortly before it. We reject this contention. The number of blacks hired was insubstantial. Recruiting procedures continued to violate Title VII. Further, even if substantial changes had occurred in the hotel's hiring policies, outright dismissal would have been inappropriate because such change "`in the face of litigation is equivocal in purpose, motive and performance.' Jenkins v. United Gas Corporation, 400 F.2d 28, 33 (5th Cir. 1968)." Parham v. Southwestern Bell Telephone Co., supra 433 F.2d at 426.

On appeal, it was also suggested that the settlement agreement between the E.E.O.C. and the defendant has mooted this action even though the plaintiff has rejected it. We also reject this contention. Cox v. United States Gypsum Company, 409 F.2d 289, 291 (7th Cir. 1969); Williams v. New Orleans...