502 F.2d 34 (5th Cir. 1974), 73-3138, Long v. Sapp

Docket Nº:73-3138.
Citation:502 F.2d 34
Party Name:Dec. P 9712 Pearl G. LONG, Plaintiff-Appellant, v. C.B.SAPP, Jr., et al., etc., Defendants-Appellees.
Case Date:October 04, 1974
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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502 F.2d 34 (5th Cir. 1974)

Dec. P 9712

Pearl G. LONG, Plaintiff-Appellant,

v.

C.B.SAPP, Jr., et al., etc., Defendants-Appellees.

No. 73-3138.

United States Court of Appeals, Fifth Circuit

October 4, 1974

Page 35

Kent Spriggs, Tallahassee, Fla., for plaintiff-appellant.

J. Fraser Himes, Tampa, Fla., for defendants-appellees.

Before WISDOM and CLARK, Circuit Judges, and GROOMS, District Judge.

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CLARK, Circuit Judge:

Following her dismissal from the position of certification clerk for the Jackson County, Florida, Commodity Distribution Program, plaintiff Long filed this action against the five county commissioners and the director of the program alleging employment discrimination against herself and blacks as a class. Claiming violations of sections 1981, 1983, and 1985 of Title 42, the Civil Rights Act of 1871, and the Thirteenth and Fourteenth Amendments to the United States Constitution, plaintiff sought injunctive relief from further racial discrimination in employment practices, reinstatement in her original job, back wages for the period during which she had been unemployed, costs and attorneys' fees. After a hearing in which plaintiff offered evidence to demonstrate sex as well as racial discrimination, 1 the court below held that Mrs. Long had failed to support her individual claim on either basis and that she could not pursue the class action because she had not shown herself to be a member of the class she purported to represent. We affirm the denial of her individual claim of racial discrimination, vacate and remand the denial of her claim of sex discrimination, and vacate and remand the dismissal of the class action.

Mrs. Long's employment experience with the Jackson County Board of Commissioners began in June 1968, when the Board was designated a 'recipient agency' in the Commodity Distribution Program of the United States Department of Agriculture. In consideration of being supplied with certain commodities the Board agreed to supervise and control the certification of eligible recipients and the transportation, handling, warehousing and distribution of all donated commodities. The program was initially staffed by defendant Hester as supervisor, plaintiff Long and another woman as the two full-time certification clerks, and other part-time staff as needed to handle the commodities. A changeover in September 1971 to a 'satellite' operation involving multiple distribution points required the hiring of additional part-time personnel to meet the increased logistical problems. The Program was discontinued in February 1972 to be replaced by a state-run Food Stamp Program.

Mrs. Long's duties entailed the certification of eligible recipients and the recertification of recipients whose status had lapsed. By November of 1968 the task of certification had diminished sufficiently to permit elimination of one of the two full-time clerk positions and replacement by a part-time certification clerk, part-time records clerk. Because Mrs. Long was the more qualified of the two, she was retained and the other clerk, a white woman, was released. The two part-time positions were eventually filed by a Mrs. Register, also a white woman.

By 1971, the workload amounted to an average of less than one certification and two recertifications each day, requiring a total of only ninety minutes. An audit by the United States Department of Agriculture resulted in a recommendation by that agency that the fulltime certification clerk position be eliminated and that a new position of 'warehouseman' be created to increase inventory supervision. The new position was expected to take on added importance when the satellite program began operation. Upon being advised that her employment was to be terminated, Mrs. Long requested consideration for the job of warehouseman. Hester advised her that because of the physical labor required she would not be considered for the job. Mrs. Long also claims, but Hester denies, that she asked to be considered for any part-time work that might be available. In any event, there were no immediate job openings; and it is undisputed that plaintiff did not apply for any of the eleven positions that

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were filled during the remainder of the program.

Mrs. Long discerns racial discrimination in every aspect of her termination and inability to gain reemployment with the defendants. Her argument boils down to a contention that the selection of her for termination rather than Mrs. Register and the refusal to rehire her makes so little sense that the only credible basis for the action must have been racial. In support of her claim, she notes that the asserted reason for elimination of the certification clerk job, the decline in workload, actually occurred two years prior to the decision to terminate, and thus, she suggests, was not the real basis for the decision. Moreover, as the senior, best educated and most experienced employee in the program, she should have been the logical choice to remain. She points to the failure to consider alternatives to her release, such as the creation of two part-time positions to enable both clerks to remain, as further indication that the decision had a racial basis. She also claims racial discrimination in defendants' failure to consider her for the vacancies that occurred after her termination. She bolstered her claims with statistical evidence of the county's employment record, which, she says, make out a prima facie case of a discriminatory practice sufficient to shift the burden of going forward with clear and convincing evidence to disprove discrimination to the defendants. Cooper v. Allen, 467 F.2d 836 (5th Cir. 1971).

INDIVIDUAL CLAIMS

a. Race

In evaluating the evidence on her individual claim the court below first rejected reliance on the statistical history. Acknowledging that in an appropriate case a statistical employee analysis could suffice to establish unlawful employment practices, the court nevertheless found the minimal statistics available here inapplicable to prove Mrs. Long's personal claim of discrimination in termination and failure to rehire. The court went on, however, to state that even if the statistics were held probative, the defendants had carried their burden of showing that her termination was not predicated upon reasons involving race. The court found 'no evidence, except for the plaintiff's suspicions, of a conspiracy to discriminate against the plaintiff or of any discrimination whatsoever against plaintiff herself.' Similarly, the court found no evidence of racial discrimination in the failure to offer Mrs. Long the warehouseman position. Finally, the court dismissed her claim that failure to offer other clerical work was discriminatory with the observation that it knew of no legal requirement that an employer offer a new job to a terminated employee merely because of her former status.

Our review of the record confirms that the district court's determination that the decision to terminate Mrs. Long's position was governed by business rather than racial considerations is well supported by the evidence. The testimony is clear and undisputed that the duties of the...

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