Causey v. Ford Motor Co., 74-2373

• Citation: 516 F.2d 416
• Decision Date: 24 July 1975
• Docket Number: No. 74-2373,74-2373
• Parties: 10 Fair Empl.Prac.Cas. 1493, 10 Empl. Prac. Dec. P 10,321 Juanita CAUSEY, Plaintiff-Appellant, v. FORD MOTOR COMPANY et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 416

516 F.2d 416

10 Fair Empl.Prac.Cas. 1493,

10 Empl. Prac. Dec. P 10,321

Juanita CAUSEY, Plaintiff-Appellant, v. FORD MOTOR COMPANY et al., Defendants-Appellees.

No. 74-2373.

United States Court of Appeals, Fifth Circuit.

July 24, 1975.

Reese Marshall, Larry R. Jackson, Earl M. Johnson, Jacksonville, Fla., for plaintiff-appellant.

Gary B. Tullis, Jere D. McWinn, Jacksonville, Fla., for Ford Motor Co.

Richard H. Frank, Tampa, Fla., for United Automobile Workers, etc. and Local 970.

Appeal from the United States District Court for the Middle District of Florida.

Before BELL, DYER and SIMPSON, Circuit Judges.

BELL, Circuit Judge:

This appeal is taken from a judgment adverse to appellant Juanita Causey in her employment discrimination action against Ford Motor Company, the United Automobile, Aerospace, and Agricultural Implement Workers of America (UAW) and its Local 970. Suit was brought under Title VII of the Civil Rights Act of 1964 (42 U.S.C.A. §§ 2000e-2(a) (Ford), 2000e-2(c) (the Union)), appellant alleging discrimination based on sex in Ford's hiring and employment practices, and in the union's employee representation. ¹ The district court ruled that appellant had failed to establish by a preponderance of the evidence her claims against either Ford or the union. Causey v. Ford Motor Co., M.D.Fla., 1974, 382 F.Supp. 1221. We affirm in part and reverse in part as to Ford, but affirm as to the union.

I.

The Ford parts distribution warehouse in Jacksonville, Florida, regularly employs between sixty and sixty-five persons. The warehouse taps three basic sources for new employees: referrals from present employees, referrals of minority group members from the National Alliance of Businessmen, and unsolicited, "walk-in" applications. Prior to the date of appellant's application, a woman had never been hired at the warehouse, although four women had applied. Ford did not have a recruitment program aimed at hiring women.

Appellant experienced three employment phases with Ford. She was first hired on July 29, 1971, and worked for one week before being laid off because of a reduction in Ford's work force. Appellant was rehired in October 1971, but was laid off a second time the same month. Her third period of employment began on March 6, 1972, and lasted for nearly two years (throughout most of the period of the suit). She was laid off for the third and last time on January 18, 1974.

On January 18, 1971, appellant filed an application for employment with Ford, having been referred by her husband, who was, at the time, also employed at the warehouse. Although Ford offered her a job as a stockhandler on July 29, it hired five males for the same position during the interim, all of whom had applied for jobs after appellant. The warehouse supervisor in charge of hiring testified that he did not compare applicants for job openings, but chose specific persons based upon his "subjective appraisal" of their qualifications for the desired positions.

Of the five males hired during the January-July interim, the first, who was hired on April 13, had previous experience at another warehouse; another was an NAB minority group referral; a third was a "walk-in" applicant with experience at a Ford parts depot; two others were sons of warehouse employees.

In May 1971, appellant went to the warehouse to discuss possible job openings with the warehouse supervisor and the local union president. The latter told her that her employment chances would be greater were she to picket the warehouse. As a consequence, appellant picketed Ford for three days during May. The warehouse supervisor testified that appellant's picketing was an indication of her serious desire to work for Ford, and she was hired two months later. It is undisputed that no male applicant was required to picket in order to show interest in, or gain employment with, Ford.

During appellant's initial week-long employment, she was subjected to hazing by her fellow employees, a customary experience for new workers. Called the "box treatment," this hazing involved the throwing of an inordinate number of used boxes into the aisles that appellant was cleaning for her to discard. Appellant also testified that the women's restroom was not appropriately marked, and that both janitorial supplies and union literature were stored therein.

On August 5, appellant was laid off due to a reduction in work force, and not rehired until October 4, 1971. Ford hired five male stockhandlers, all of whom had applied for jobs after July 29, prior to rehiring appellant. Under provisions of the collective bargaining agreement between Ford and the union, appellant, as a probationary employee, had no right to be recalled by Ford. ² Ford has alleged, moreover, and the district court found, inter alia, that there were palpable reasons for not immediately rehiring appellant: (1) her job performance had been marginal, if not substandard; (2) she had had a disruptive influence on the warehouse operations; and (3) her husband had requested a transfer subsequent to the July 29 lay-off.

Nevertheless, appellant was rehired on October 4 and worked until October 29, when she was laid off during another work force reduction. It was not until March 6, 1972 that she was rehired for the second time, but thereafter, she worked at the warehouse until January 18, 1974.

This action was commenced on May 16, 1972. ³ Appellant charged that Ford's (1) recruitment procedures, (2) failure initially to hire her prior to hiring male applicants for the same position, (3) failure to rehire her during the July-October 1971 interim prior to hiring males for the same position, (4) failure to provide adequate restroom facilities, and (5) condonation of employee hazing, were violations of 42 U.S.C.A. § 2000e-2(a). ⁴

Appellant's claims against the union ⁵ stem from the latter's alleged condonation of employee hazing (i. e., the box treatment discussed supra ), and its alleged failure sufficiently to pursue the grievances filed by her against Ford.

These grievances began in October 1971 when appellant grieved that she had been denied a forklift operator's license. She testified at trial that she had voluntarily abandoned this grievance and did not fault the union therefor.

On March 21, 1972, appellant grieved that the two lay-offs that she had experienced were the result of sexual discrimination. This grievance was prepared by the union president, presented to Ford's warehouse foreman, and denied by him two days later. A union committee later agreed that this grievance was without merit.

A third grievance was filed in early June 1972. Appellant had been promoted from stockhandler to "warehouseman" in May, but was demoted on June 2. She complained to the union and a grievance was filed. The processing of the grievance culminated in an arbitration award granting appellant the claimed position. (This grievance was concerned with an event which took place after the filing of suit but was included as an issue by pre-trial stipulation.)

Appellant sought injunctive relief against both Ford and the union, as well as back pay, compensatory seniority, and attorneys' fees. The district court denied all relief, holding that appellant had failed to establish discrimination by a preponderance of the evidence on any ground alleged. ⁶

By way of a preliminary summation, we find error only in the holding of nondiscrimination in the original hiring of appellant. The district court will be affirmed in all other respects.

II.

At the outset, it is important to delineate our standard of review for assessing the correctness of the district court's nondiscrimination findings. Rule 52(a), F.R.Civ.P., lays down the "clearly erroneous" test for appellate review of district court findings of fact. Under this test, a finding is clearly erroneous "when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed" by the district court. United States v. United States Gypsum Co., 1948, 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746, 766. See also Chaney v. City of Galveston, 5 Cir., 1966, 368 F.2d 774, 776.

There exists, however, a significant distinction for the purpose of applying the clearly erroneous test between findings of subsidiary fact and findings of ultimate fact. See Galena Oaks Corp. v. Scofield, 5 Cir., 1954, 218 F.2d 217, 219-20. Finding a subsidiary fact involves the determination of an evidentiary or primary fact; finding an ultimate fact, on the other hand, "may involve the very basis on which judgment of fallible evidence is to be made." Baumgartner v. United States, 1944, 322 U.S. 665, 671, 64 S.Ct. 1240, 1244, 88 L.Ed. 1525, 1529. Thus, for example, a finding of infringement of a patent is a finding of ultimate fact, see Industrial Instrument Corp. v. Foxboro Co., 5 Cir., 1962, 307 F.2d 783, 786 n. 2; as is a finding that a gain should be treated as capital rather than ordinary for income tax purposes. See Gamble v. Commissioner, 5 Cir., 1957, 242 F.2d 586, 590. With respect to ultimate findings of fact, furthermore, we noted in Industrial Instrument Corp. v. Foxboro Co., supra, 307 F.2d at 786 n. 2:

We may reverse free of the clearly erroneous rule where . . . the issue revolves around an ultimate fact question as distinguished from subsidiary fact questions . . . .

See also Galena Oaks Corp. v. Scofield, supra, 218 F.2d at 219.

Although discrimination vel non is essentially a question of fact it is, at the same time, the ultimate issue for resolution in this case, being expressly proscribed by 42 U.S.C.A. § 2000e-2(a). As such, a finding of discrimination or nondiscrimination is a finding of ultimate fact. See Hester v. Southern Railway Co., 5 Cir., 1974, 497 F.2d 1374, 1381; United States v. Jacksonville Terminal Co., 5 Cir., 1971, 451 F.2d 418, 423-24. In reviewing the district court's findings,...