Wells v. Meyer's Bakery
| Decision Date | 15 August 1977 |
| Docket Number | No. 76-1721,76-1721 |
| Citation | 561 F.2d 1268 |
| Parties | 15 Fair Empl.Prac.Cas. 930, 14 Empl. Prac. Dec. P 7651, 15 Empl. Prac. Dec. P 7867 Willie WELLS, Ezell Jackson, William Lewis, Bennie Wells, Louis Rankin and Jessie Clark, Appellants, v. MEYER'S BAKERY, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
John M. Bilheimer, Little Rock, Ark., for appellants; John W. Walker and Philip E. Kaplan, Little Rock, Ark., on brief.
Kathlyn G. Farrar, Little Rock, Ark., for appellee; Robert S. Lindsey, Little Rock, Ark., on briefs.
Before LAY, WEBSTER and HENLEY, Circuit Judges.
Plaintiffs, on behalf of themselves and other black persons similarly situated, brought this action against Meyer's Bakery 1 under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., alleging racially discriminatory employment policies were practiced by Meyer's Bakery. The district court denied relief to the individual plaintiffs on their private claims. However, the district court did find that defendant's recruitment, hiring, transfer and promotion 2 policies and practices were racially discriminatory. The district court granted injunctive relief to prevent future racial discrimination, but declined to award back pay to the class.
On appeal the plaintiffs urge that the district court erred in denying relief to three of the named plaintiffs on their private claims and to a member of the class, Willie Thompson. Plaintiffs also contend that the district court should have awarded back pay to the class and granted overall comprehensive injunctive relief. Meyer's Bakery has not appealed the district court's findings that its employment policies and practices were racially discriminatory.
Factual Background.
Meyer's Bakery is located in Blytheville, Arkansas, and employs approximately 225 persons, 30 per cent of whom are black. The bakery is divided into seven departments: production, sanitation, shipping, maintenance, clerical, sales and transportation. The district court found that, although technically separate, the departments of production, sanitation and shipping were treated as one large department (PSS) by Meyer's Bakery.
The evidence reveals that Meyer's Bakery through its recruitment and hiring practices routinely placed black applicants into PSS without regard for their qualifications, experience or preference for another department. There were no qualifications or requirements for positions in PSS, except being able-bodied, because all necessary skills would be developed on the job. The evidence demonstrates that while 30 per cent of the work force is black, all but three work in PSS. Of the 33 truck drivers all are white and in fact only one black person has ever been a truck driver. No black person has been employed as a salesman and only one of the seven employees in maintenance is black, and he is the first. Of the 10 clerical and office employees only one is black and he was hired after this lawsuit was brought.
Once a black employee was assigned to PSS, he was "locked in" by defendant's transfer and promotion practices. Vacancies in most departments were filled by a bidding system based on seniority. Vacancies in PSS were posted in the employees' lounge, but vacancies in maintenance and transportation were posted only within the respective department areas, which were generally off limits to PSS employees. This system greatly diminished the opportunity of a black employee with seniority assigned to PSS to bid on a vacancy in another department.
The opportunity for black employees in PSS to receive a promotion to a supervisory position was also limited by defendant's promotion practices. All supervisory personnel Based on this evidence the district court found that defendant's recruitment, hiring, transfer and promotion policies and practices were racially discriminatory in violation of Title VII. The district court ordered that all of defendant's employment practices and policies be conducted in a nondiscriminatory manner and required that all supervisory and job placement personnel receive written notification of this change in policy. The district court also required Meyer's Bakery to take affirmative action in encouraging minority applicants and to cease using "word of mouth" recruitment. Meyer's Bakery was also required to adopt written objective criteria for the evaluation of job applicants. However, the district court declined to award back pay to the class.
for PSS were selected by the plant manager without any predetermined standards to guide him or procedure for reviewing his decisions. In PSS there are approximately 12 to 15 supervisory positions, but within the last five years there have been 46 different supervisors due to turnovers. Of these 46 supervisors only four were black and three of them were eventually demoted. During this same period, 13 white supervisors were hired from outside the bakery, despite the company's policy of hiring from within. No black persons were hired from the outside as supervisors.
Back Pay Award.
On appeal plaintiffs urge that the district court erred in declining to award back pay to the class. Plaintiffs assert that an award of back pay is necessary to remedy the discrimination with respect to transfers between departments, promotion to supervisor in PSS, and the disparity in the hourly wage between the PSS and maintenance departments.
Prior to 1972 the top employees in PSS received the same hourly wage as the top employees in maintenance. However, in 1972 the Bakery and Confectionery Workers International Union (hereinafter Union), which represents all of the Bakery's employees, black and white, demanded and received higher wages for maintenance personnel. Plaintiffs claim that this wage increase had a racially disparate effect, since the maintenance department was historically white. The district court found that the wage increase was the result of a bona fide union demand for higher wages for skilled workers versus unskilled workers. The Union was originally joined as a defendant, but the action against it was dismissed and plaintiffs have not appealed that decision. All of the former and present black employees of Meyer's Bakery called as witnesses by plaintiffs testified that they had no complaint against the Union. Under these circumstances we agree with the district court's decision not to award back pay to the class based on the disparate wage claim. However, we find that the district court erred in not awarding back pay to remedy the results of defendant's discriminatory transfer and promotion practices.
The primary objectives of Title VII are to remove discriminatory employment barriers and "to make persons whole for injuries suffered on account of unlawful employment discrimination." Albemarle Paper Co. v. Moody, 422 U.S. 405, 417-18, 95 S.Ct. 2362, 2372, 45 L.Ed.2d 280 (1975). In order to fashion the most complete relief possible, Congress has granted the federal courts comprehensive remedial powers. Back pay is a fundamental remedy and should be denied only in extraordinary circumstances. In this regard the Supreme Court has held:
It follows that, given a finding of unlawful discrimination, backpay should be denied only for reasons which, if applied generally, would not frustrate the central statutory purposes of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination.
Albemarle Paper Co. v. Moody, supra at 421, 95 S.Ct. at 2373 (footnote omitted).
The district court declined to award back pay to remedy defendant's discriminatory transfer and promotion practices without carefully articulating its reasons. We have reviewed the record and find no special factors which would justify the denial.
Neither the absence of any identified or identifiable black person who has been the victim of racial discrimination, nor the difficulty in computing a back pay award are special factors justifying the denial. Stewart v. General Motors Corp., 542 F.2d 445, 451-53 (7th Cir. 1976). Therefore we hold that the district court erred in refusing to grant back pay to remedy the effects of defendant's discriminatory transfer and promotion practices and remand to the district court the task of determining the mechanics of the award consistent with the guidelines set forth in the Seventh Circuit's decision in Stewart v. General Motors Corp., supra.
In order to give emphasis to the flexibility provided the district court under these guidelines we need set forth only the prelude to the Stewart guidelines:
The major difficulty in attempting to compute a backpay award in a case such as this one is that the subjectivity of defendant's method of filling job vacancies renders impossible anything like a precise calculation of the pecuniary effects of discrimination. In light of the uncertainty which clouds the task before us, we must set down three general rules: (1) unrealistic exactitude is not required; (2) ambiguities in what an employee or group of employees would have earned but for discrimination should be resolved against the discriminating employer; (3) the district court, far closer to the facts of the case than we can ever be, must be granted wide discretion in resolving ambiguities.
Injunctive Relief.
Although the district court found defendant's recruitment, hiring, transfer and promotion practices to be in violation of Title VII, the injunctive relief awarded is directed at remedying only the recruitment and hiring practices. Besides the general admonition not to conduct or maintain employment practices and policies in a discriminatory manner, there is no injunctive relief directed at remedying defendant's discriminatory transfer and promotion practices.
To fashion complete relief the district court should, on remand,...
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