Baxter v. Savannah Sugar Refining Corporation

• Decision Date: 09 July 1974
• Docket Number: No. 73-1039.,73-1039.
• Citation: 495 F.2d 437
• Parties: Adam BAXTER, Plaintiff-Appellant, v. SAVANNAH SUGAR REFINING CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

495 F.2d 437 (1974)

Adam BAXTER, Plaintiff-Appellant, v. SAVANNAH SUGAR REFINING CORPORATION, Defendant-Appellee.

No. 73-1039.

United States Court of Appeals, Fifth Circuit.

June 5, 1974.

Rehearing Denied July 9, 1974.

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Fletcher N. Farrington, Bobby L. Hill, Savannah, Ga., Kenneth L. Johnson, Baltimore, Md., Jack Greenberg, Morris J. Baller, New York City, Robert Belton, Charlotte, N. C., for plaintiff-appellant.

John E. Simpson, Savannah, Ga., John L. Sapp, Atlanta, Ga., for defendant-appellee.

Before BROWN, Chief Judge, and GEWIN and GOLDBERG, Circuit Judges.

GEWIN, Circuit Judge:

This appeal emanates from the district court's judgment granting appellant Baxter and the class he represents partial injunctive relief prohibiting Savannah Sugar Refining Corporation's (hereinafter Savannah) discriminatory promotion practices.¹ Baxter based his right to affirmative relief on Title VII of the Civil Rights Act of 1964, 42 U.S. C. § 2000e et seq., and 42 U.S.C. 1981 which forbid private racial discrimination in employment.² In the district court's opinion rendered on October 6, 1972, Baxter was permitted to represent all black employees at Savannah's refinery pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure.

Baxter presents three contentions for our review. First, it is alleged that the district court erred in denying his request for class-wide back pay on the asserted grounds of Savannah's alleged good faith actions taken subsequent to the filing of this lawsuit and additionally because Baxter had failed to prove that an award of back pay was necessary to make whole the class which had been subject to discrimination. Secondly, he contends that the district court erred in holding that he was not the victim of Savannah's discriminatory employment practices. Finally, Baxter asseverates that the lower court unduly limited, without apparent justification, its award of attorney's fees granted to Baxter's counsel. After a review of the facts disclosed by the record and applying the applicable employment discrimination principles to the facts, we conclude that Baxter's first and third contentions are meritorious. Accordingly, we remand this case to the district court for further proceedings consistent with this opinion.

I

Savannah, a New York corporation, refines, distributes and sells cane sugar. It maintains its headquarters in Savannah, Georgia. Baxter and the class he represents are employed at Savannah's principal refinery in Port Wentworth, north of Savannah. Savannah has a history of hiring a large percentage of black employees at its refinery. Indeed, at all times relevant to this case, a majority of the workers at the refinery has been black. Baxter does not complain of the percentage of blacks hired at the refinery, but he does challenge its promotional policies toward black employees subsequent to their employment.

Savannah's refinery is divided into numerous functional departments. In turn, the various departments are further compartmentalized into many job classifications. Even though lines of progression do exist within the departments, transfers freely occur among them. Furthermore, promotions are not based strictly on considerations of seniority but more importantly promotions are granted or denied almost entirely upon a department supervisor's recommendations as to who is "best qualified" among those in the pool of potential promotees for the particular job involved.

The facts fully support Baxter's claim that Savannah has had a history —which has continued to the present time—of confining black employees to lower-paying, less-skilled positions within the refinery. The record demonstrates a classic example of consistent and continuous employment practices that have the impermissible consequence of limited upward mobility of blacks seeking economic advancement through job promotions. In a rather paternalistic manner, Savannah confers, without prior notice, promotions within the refinery. The supervisors, who are almost all white, choose those employees whom they feel have the qualities and backgrounds needed for an open position. There are no objective job descriptions to aid or guide supervisors in their promotion selection. Without notice of job openings and the qualifications desired, blacks are totally dependent upon their white superiors for promotion and economic advancement.³

There is little dispute about the deleterious impact on black employees of Savannah's promotion system prior to the filing of Baxter's lawsuit in 1968. In 1965, Savannah's work force was divided into seventy job classifications of which sixty-seven classifications were segregated by race. During the period 1965 to 1968, blacks continued to be assigned to all black positions and when promoted, were advanced to higher positions traditionally held by blacks. Therefore, at least until 1968, the company made no attempt to remove its discriminatory employment policies and conform to the Act's proscriptions.

In early 1968, Savannah adopted a so-called "affirmative action program" in an apparent effort to alleviate its quondam misdeeds against blacks and possibly to blunt the impact of Baxter's lawsuit. Under this "program", blacks began receiving promotions to historically higher jobs held by blacks. Thus, during the period of 1968 through 1971, Savannah elevated 131 employees to higher positions of which 81 were black. The record establishes however, that most blacks were advanced to positions traditionally held by blacks. Moreover, it was not until 1971 that a black employee was promoted to a supervisory position which entailed direction of white employees. The refinery, on the other hand, did not undertake to improve its promotion practices by providing for objective guidelines and job descriptions which hopefully would have eradicated the subjectivity that had characterized its policies in the past.

The district court seems to have accorded same significance to the fact that the size of the refinery's work force had diminished in analyzing Savannah's promotion system and its impact on black employees.⁴ Such a consideration, while perhaps germane where a discriminatee's challenge is to an employer's hiring practices, is of small relevance where the challenge is to an employer's promotion policies and the observed reduction in the work force occurs primarily in the lower paying black positions as in the instant case.⁵ During a part of the relevant period under review here, the work force actually increased between 1965 through 1968 from 505 employees to 510. Although there was a decrease between 1968 to 1971, the evidence demonstrates that while only four positions held by whites were eliminated from the work force, over 42 positions held by blacks were terminated. Thus the reduction in the size of the work force can not account, in any significant manner, for the black employees' position at the refinery.

The trial court aptly observed the discriminatory consequence of Savannah's promotion policies. It stated:

While black and white employees begin at the same rate of pay, Blacks ultimately fall behind the earning power of their white co-workers. Throughout the years from 1965 to 1971, the income gap between black and white employees at defendant\'s plant has widened. In 1965, the average wage for white employees was $105.86 per week, while Blacks averaged only $92.23 per week. In 1968, white employees of the Company averaged earning $126.60 per week while Blacks averaged only $104.84. In 1971, the defendant\'s white production employees earned an average weekly wage of $156.94 while Blacks earned only $134.13. Black employees in segregated job classifications in 1971 earned $27.05 less on the average than Whites working in all white jobs. In 1965, the gap was $20.20. . . . . These data reflect that while defendant has recently achieved more dispersal of black employees into the higher wage levels, nevertheless the relative position of all black employees . . . has not improved. It is obvious that of the 95 black employees promoted from 1965 until the date of trial, only a few were promoted into formerly all-white or integrated job classifications. The majority of these promotees remained in segregated job classifications.⁶

The district court had no difficulty in discerning the cause of the difficulties of the black employees in the refinery. Savannah did not give notice of vacancies, job descriptions or qualifications desired for a higher position. Employees were selected for promotion by supervisors on the basis of those determined to be "best qualified." Accordingly, the court enjoined the use of supervisory recommendations as the criteria for promotion and required that detailed affirmative steps be taken to eliminate such past abuses.

We completely agree with the district court order requiring that affirmative steps be taken to eliminate Savannah's past discrimination in promotions. The record clearly demonstrates the injurious consequences of the employer's policies on black employees. Only one conclusion can be distilled from the evidence; blacks, as a class, were the victims of discriminatory employment practices forbidden by Title VII and § 1981. An overriding determinant for job advancement at the refinery was the race or color of the employees. With the factual backdrop enunciated, we proceed to discuss Baxter's contentions.

II

The district court explicated two reasons for its denial of class-wide back pay. First, the court was impressed by the fact that Savannah had "acted in good faith and made a positive effort to eliminate pre-Act segregations practices."⁷ Secondly, the court held that Baxter had "failed to adduce satisfactory proof that such relief is needed to make the class whole. There has been no proof of a significant number of members of the group possessing qualifications who have been damaged by discriminatory practices notwithstanding their...