522 F.2d 333 (10th Cir. 1975), 74-1541, Rich v. Martin Marietta Corp.

Docket Nº:74-1541.
Citation:522 F.2d 333
Party Name:Jewel C. RICH et al., Plaintiffs-Appellants, v. MARTIN MARIETTA CORPORATION, a Maryland Corporation, Defendant-Appellee, Equal Employment Opportunity Commission, Amicus Curiae.
Case Date:August 01, 1975
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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522 F.2d 333 (10th Cir. 1975)

Jewel C. RICH et al., Plaintiffs-Appellants,




Equal Employment Opportunity Commission, Amicus Curiae.

No. 74-1541.

United States Court of Appeals, Tenth Circuit

August 1, 1975

Argued April 30, 1975.

Rehearing Denied Oct. 14, 1975.

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[Copyrighted Material Omitted]

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George M. Allen, Sheldon, Bayer, McLean & Glasman, Denver, Colo. (Lawrence A. Wright, Jr., Snead, Wright & Babbs, Denver, Colo., on the brief), for plaintiffs-appellants.

Richard L. Schrepferman, Holme Roberts & Owen, Denver, Colo., for defendant-appellee.

Charles T. Reischel, Washington, D. C. (William A. Carey, Joseph T. Eddins, Jr., Beatrice Rosenberg, Margaret C. Poles, Washington, D. C., on the brief), for amicus curiae.

Before SETH, McWILLIAMS and DOYLE, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

The above named seven plaintiffs originally brought this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and pursuant also to 42 U.S.C. § 1981 on behalf of themselves and on behalf of the entire affected class. The trial court, after hearing all of the evidence, dismissed the cause for failure, as the court viewed it, of plaintiffs to prove a prima facie case.

Martin Marietta, the defendant-appellee, is a national corporation which operates primarily as a manufacturer on behalf of the United States Government in the aerospace industry. The plaintiffs were employed at defendant's Waterton, Colorado facility during the following periods:

Jewel Rich, from 1957 until she voluntarily terminated in March 1970. She was an engineer.

Thomas Franklin, from 1959 until the present, originally as an Accountant B on an hourly basis. At the time he filed the charges leading to this complaint he was an Associate Analyst, and subsequent to that he was promoted to a higher grade.

Lawrence Collier and John Craig, from 1961 until the present, first as janitors and later as Millwright B's, but just prior to trial they were promoted to Millwright A.

Jose Tafoya, hired in 1957 as an electrical mechanic. As of the time of the filing of charges he was a Developer, but prior to trial he was promoted to a salaried position, Associate Analyst. Later

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he was demoted to Developer due to layoffs.

John Langley, hired in 1958 as an E & E Fabricator; promoted to electrical mechanic and then to Developer. In 1972 he was promoted to a salaried position, Manufacturing Engineer. He was laid off, however, prior to trial.

Bobby Chappell was hired in 1957 as a janitor. From 1960 to 1971, except for a five-month period, he was an Electrician B. In 1971 he was promoted to Electrician A and continued in that position until the time of trial.

With the exception of Jose Tafoya, all of the plaintiffs are black. With the exception of Jewel Rich, all are male. All plaintiffs initially filed charges with the EEOC alleging discrimination in promotions. Additionally, Rich filed a charge of discriminatory firing; Tafoya also claimed harassment.

The plaintiffs, with the exception of Chappell, initially filed charges with the Colorado Civil Rights Commission. They thereafter filed their EEOC charges on the following dates: Rich October 31, 1969; Franklin August 27, 1969; Tafoya December 3, 1969; Langley October 27, 1969; Collier and Craig August 23, 1969; Chappell November 4, 1969.

The class in the original complaint included all females, Blacks and Hispano-Americans employed at the time or who might in the future be employed by Martin, but in the amended complaint the class was limited to all females, Blacks and Hispano-Americans who are presently employed by Martin. The district court (not the judge who tried the case) defined the classes within the narrowest possible limits. It carved out four sub-groups as follows: Female or Black engineers; Black Class B Millwrights; Black accountants; and Hispano electrical employees. As a result of this restricted approach, the class action went away. The Total membership in the four sub-groups was limited to but 40. Notices were sent to these 40, nevertheless, allowing them to opt out. Twenty-two persons requested to be excluded. Plaintiffs then conceded that the class as defined was not sufficient to satisfy the numerosity requirement and, therefore, the class action aspect was stricken or dismissed.

Plaintiffs had also originally sought to bring the action as a Rule 23(b)(2) class action, but the trial court held on November 9, 1972 that it could not be prosecuted as a (b)(2) class action since damages (back pay) were sought for the class. In the amended complaint filed November 20, 1972, plaintiffs sought to maintain the action as a Rule 23(b)(3) class action, but since the class was not sufficiently numerous the court, on December 7, 1972, declassified the action for failure to meet the requirements of Rule 23.

Plaintiffs had sought to obtain information applicable to the entire plant including the company's hiring practices throughout, the number of promotions in each department, broken down into categories by race and sex, together with detailed information about the departments in which the individual plaintiffs worked. Following the court's definition of the four sub-groups which have been mentioned, defendant-appellee objected to the scope of the interrogatories as no longer being relevant and also as being burdensome and expensive. This objection was sustained without stating a reason.

The cause proceeded to trial on December 10, 1973 on the individual claims of the plaintiffs. There was some evidence at the trial concerning the defendant's plant-wide activities, but this was largely offered by defendant. For the most part, the testimony at the trial pertained to the individual qualifications and work experience of the several plaintiffs.

The Martin plant was first opened in Denver in 1957. It does not appear nor is it contended that Martin had an express policy of segregation of its employees by either race or sex. The total employment during the years 1966 to 1972 ranged between 5,300 and 7,300 employees.

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About one-half of its employees are professionals; 10% Are classified as officials and managers. These two categories are the salaried employees. The black, Spanish-American and female employees are for the most part concentrated in the lower categories.

Martin is divided into functional departments such as administration, engineering, manufacturing and finance. There are three main groups, the salaried employees, the hourly in-unit employees who are subject to a collective bargaining agreement, and hourly out-of-unit employees. Salaried employees are promoted strictly on the basis of merit, as are hourly employees promoted to a salary level. The system of promotion applicable to the hourly in-unit employees calls for the promotion being offered first to the most senior qualified employee within the job family group and the other most senior qualified employee within the seniority unit. Finally, the job is offered to an outsider.

For out-of-unit employees, excluding key punch, the company policy was to promote qualified employees, taking into account seniority. In the key punch area the most senior employee in the next lower classification was promoted.

There is a system of periodic evaluation by supervisors. These evaluations are discussed with the employees. In some of the departments, including engineering, there is a device called a "totem pole" for determining promotions, demotions and layoffs. Each employee who is salaried is ranked in order of merit in his particular unit or section. In the engineering department the unit head meets with the group engineers to discuss and rate the engineers within the salary unit.

The defendant offered evidence (Exhibit K) that from 1966 to 1972, a greater percentage of minority employees received merit salary increases and promotions than did non-minority employees. It is noteworthy, however, that minorities also experienced more demotions and layoffs proportionally than did non-minorities. See Chart I-A (Appendix B). The statistics on behalf of the defendant-appellee are not entirely responsive to plaintiffs' evidence in that the categories of minorities are different. The company was allowed to include Orientals and American Indians as minorities and to exclude white women. Charts I-A and B (Appendix B) show that the exclusion of non-black and non-Spanish-American employees from the category may produce a substantial change in the statistics.

Martin's statistics sought to show with respect to promotions from hourly rating to salary that black and Spanish-American employees received more such promotions in relation to their population in the plant than did non-minorities. This may, however, be incomplete. As shown by Chart II, the blacks and Chicanos received substantially less promotions in relation to their population within the hourly work force.

Generally, the statistics presented in this record show blacks and Spanish-Americans to be concentrated in the lower categories, where they tend not to be promoted from the hourly ranks to the salary ranks; that the total percentage of blacks and Spanish-Americans employed by defendant remains pretty much the same between 1966 and 1972.


It is unnecessary to burden the body of this opinion with details of the testimony of the several plaintiffs since the support for allegations that they were the victims of discrimination is largely circumstantial evidence, and the somewhat lengthy facts can be better presented in an appendix to this opinion. See...

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