Hester v. Southern Railway Company

• Decision Date: 16 October 1974
• Docket Number: No. 73-1099.,73-1099.
• Citation: 497 F.2d 1374
• Parties: Dollie W. HESTER, Plaintiff-Appellee, v. SOUTHERN RAILWAY COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

497 F.2d 1374 (1974)

Dollie W. HESTER, Plaintiff-Appellee, v. SOUTHERN RAILWAY COMPANY, Defendant-Appellant.

No. 73-1099.

United States Court of Appeals, Fifth Circuit.

August 2, 1974.

Rehearing and Rehearing Denied October 16, 1974.

D. R. Cumming, Jr., Carey P. DeDeyn, Atlanta, Ga., Ellsworth Hall, Jr., Macon, Ga., William P. Stallsmith, Jr., Washington, D.C., for defendant-appellant.

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

Before THORNBERRY, SIMPSON and CLARK, Circuit Judges.

Rehearing and Rehearing En Banc Denied October 16, 1974.

SIMPSON, Circuit Judge:

Under this appeal we review a district court order based upon a finding that the appellant Southern Railway ("Southern" or "Railway") discriminated against blacks in hiring for the Data Typist/1050 position at Southern's Atlanta general office. The suit was brought as a class action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. (1970). The district court order enjoined the use of certain tests and interviews employed by Southern in selecting its Data Typists. The court also awarded the individual plaintiff differential back pay and attorneys' fees and ruled that the plaintiff should be awarded seniority from the date of her original application should she subsequently apply for and be hired by Southern for the Data Typist position. D.C., 349 F.Supp. 812.

The origin of the law suit was a classified advertisement placed by Southern in the Atlanta Constitution, an Atlanta, Georgia daily newspaper. The want ad sought applicants for the Data Typist position who "should be able to type 60 wpm words per minute and be willing to work night shift and weekends." It continued that Southern was an "Equal Opportunity Employer."

Appellee resonded to an advertisement which ran from June 30 to July 12, 1969. Ms. Hester was one of forty individuals who responded. She went to the Southern Railway office and completed an application form, and was then required to take an SRA (Science Research Associates) typing test in order to demonstrate her ability to type a minimum of sixty words per minute. In addition, she was required to take SRA verbal and non-verbal tests, and the J. P. Cleaver self-description test. She passed the typing test on her second attempt. According to testimony, applicants were not given pass/fail grades on the three other tests. Rather, these tests were used as informational inputs in evaluation of the applicants. After finishing the testing phase of the application process, Ms. Hester was interviewed by Southern Personnel Officer James Melton. She was later notified by mail that Southern had no position for her at that time.

About two weeks later, Ms. Hester noticed the same want ad for typists in the Atlanta newspaper. She called Mr. Melton to inquire about the availability of a position at that time. Mr. Melton responded that she did "not fit into the picture." Ms. Hester and her husband tried to see Melton at his office, but he did not respond to messages to call her.

Ms. Hester at about this time filed a complaint with the Equal Employment Opportunity Commission (EEOC) alleging discrimination against her by Southern on the basis of race. An EEOC investigator examined Southern's record of those hired for the Data Typist/1050 position¹ between June and October 1969 and also of those "in training" for the position as of October 2, 1969. The investigator concluded that Southern was discriminating, not against blacks generally, but against black women with children.² Southern declined an EEOC offer to conciliate on Ms. Hester's charge of discrimination, asserting that it was not practicing any discrimination. The EEOC notified Ms. Hester by letter of her right to sue in federal court within 30 days, and she timely filed her suit in the court below in August, 1970.

I

The complaint stated that Southern had violated the provisions of Title VII of the Civil Rights Act of 1964, Title 42 U.S.C. Sec. 2000e et seq., by refusing, on grounds of race and sex, to hire the plaintiff for the position of Data Typist/1050 operator. Plaintiff was alleged to represent a class composed of black women with children who had not been hired by the defendant because of sex and race. Southern denied engaging in racially discriminatory hiring and submitted affidavits of four black women with children at the time that they were hired by Southern and who were working as Data typist/1050 operators at the time of Ms. Hester's application. Southern also presented employment figures showing that, for the period January 1, 1969, through June 1, 1971, 20.5% of all the data typists hired were non-white and of these, 50% had children at the time they were employed. These affidavits and figures were the basis for Southern's Motion for Summary Judgment, which the district court denied. The case was set for non-jury trial.

Evidence was taken on April 10-11, 1972. The proof submitted was primarily: (i) testimony of Southern Personnel Officer Melton as to his reasons for not offering Ms. Hester employment at the time of her application;³ (ii) statistics, introduced in the main by Southern, showing that its hirees for the Data Typist position for the years 1968-69 were 24-25% non-white. Melton also testified without producing actual figures that about 35% to 40% of the persons responding to the newspaper ad for Data Typists were black.

The court ruled the plaintiff had failed to make an affirmative showing during trial that the requirements of Rule 23, F.R.Civ.P. were met and held that the case was not a valid class action, citing Oatis v. Crown-Zellerbach Corporation, 5 Cir. 1968, 398 F.2d 496. The judge then evaluated the evidence in the light of the plaintiff's claim of discrimination in hiring. Respecting the plaintiff's claims of discrimination based on sex or on race combined with status as parent, the court failed to find any discrimination demonstrated:

It is clear from the evidence that defendant has not discriminated against black females for the Data Typist position on the basis of sex. Practically all, if not all, Data Typists hired by defendant have been females. It is also clear that defendant has not discriminated against black females who have children as against black females without children or white females with or without children. The evidence shows that for the years 1968-1969 12 of the 23 (52%) female blacks hired as Data Typists had children while 31 of the 70 female whites hired (44%) had children. This evidence utterly refutes plaintiff\'s claim that defendant does not hire black females with children for the position of Data Typist. 349 F.Supp. at 816-817.

Proceeding then to the question of discrimination based on race, the court found: (i) that the testing procedure employed by Southern was not validated (i. e., proven to be job-related and nonracially biased) at the time of Ms. Hester's application; and (ii) the interviewing procedure employed by Mr. Melton was "purely subjective" and based upon "no formal guidelines, standards, or instructions . . . ." Id. at 817. The question at this stage was whether over all the hiring procedure employed by the Railway was discriminatory in its operation. The court in its summary of the evidence stated:

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 Typists 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 as 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.

349 F.Supp. at 813-814.

Upon this showing, the court found the following facts and reached its conclusion of law:

To be sure, the statistical evidence adduced by plaintiff is weak and in some respects

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