Parson v. Kaiser Aluminum & Chemical Corp.

Decision Date10 July 1978
Docket NumberD,CL,AFL-CI,No. 74-3468,74-3468
CourtU.S. Court of Appeals — Fifth Circuit
Parties17 Fair Empl.Prac.Cas. 1272, 17 Empl. Prac. Dec. P 8427 Harris A. PARSON, Plaintiff-Appellant, v. KAISER ALUMINUM & CHEMICAL CORP., and Local 13000, United Steelworkers of America,efendants-Appellees.

Nils R. Douglas, New Orleans, La., Richard B. Sobol, Anne P. Buxton, Washington, D. C., for plaintiff-appellant.

Carl J. Schumacher, Jr., Donald R. Mintz, New Orleans, La., Alfred D. Trehene, Washington, D. C., John C. Falkenberry, Birmingham, Ala., Burk & Burk, New Orleans, La., Michael H. Gottesman, Washington, D. C., for defendants-appellees.

Robert J. Allen, Jr., Oakland, Cal., for Kaiser Aluminum, Etc.

Jerry L. Gardner, Jr., New Orleans, La., for Local 225.

D'Amico & Curet, Baton Rouge, La., for United Machine Workers of America, Int'l Union 50.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before BROWN, Chief Judge, THORNBERRY, Circuit Judge and MILLER *, Associate Judge.

JOHN R. BROWN, Chief Judge:

Plaintiff, a black employee at the Chalmette, Louisiana plant of Kaiser Aluminum and Chemical Corporation (Kaiser), appeals from a judgment dismissing his individual and class claims of racial discrimination in employment. Finding errors of both fact and law in the dismissal at the close of the plaintiff's case, we reverse and remand.

I.

In July 1966, the named plaintiff, Harris Parson, filed a charge with the Equal Employment Opportunity Commission (EEOC) under section 706(e) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(e), claiming that Kaiser discriminated against him on the basis of his race in refusing to promote him to the position of foreman. Parson also alleged that Kaiser maintained racially segregated facilities and that, with the cooperation of the employees' bargaining representative, Local 225 of the Aluminum Workers International Union (Local 225), 1 denied black employees equal opportunities for advancement. The EEOC found reasonable cause to believe that Kaiser and Local 225 engaged in discriminatory practices and, after attempting a cure by conciliation, issued Parson a right to sue notice in August 1967.

Parson brought suit in September 1967, seeking relief against Kaiser under the Civil Rights Act of 1866, 42 U.S.C. § 1981, 2 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., 3 and against the Union for violations of Title VII and of the duty of fair representation imposed by 29 U.S.C. §§ 151 et seq. Another black employee, Arcell Williams, joined Parson in the suit, claiming that he had been discriminatorily discharged. Parson and Williams subsequently amended their complaint to include allegations of discriminatory employment practices against a class of black hourly employees. 4 After extensive and prolonged pretrial proceedings, the case came to trial in 1973. At the conclusion of the plaintiffs' case, the defendants moved under F.R.Civ.P. 41(b) for an involuntary dismissal on the ground that "plaintiffs have shown no right to relief" on either their individual or class claims. The District Court recessed the trial, dismissed Williams' claim and, in May 1974, some fourteen months later, dismissed Parson's individual suit and the class action. 5 In its findings of fact and conclusions of law issued under F.R.Civ.P. 52(b), the District Court held that no discrimination was present in any of the actions or practices asserted by the plaintiffs. Parson appeals on behalf of himself and the class he represents from the judgment in favor of the defendants.

Although the complaint alleged a variety of discriminatory practices, 6 the appeal is limited to the following findings and conclusions: defendant Kaiser did not discriminate against Parson by refusing to award him the promotion he sought; Kaiser did not discriminate against the class in making promotions to supervisory positions; Kaiser did not discriminate in providing training and opportunities for entry to craft positions; and Kaiser and the Union did not discriminate in the contractual procedures governing bidding and transfers.

We hold that as to each of these issues, the District Court erred in holding that no discrimination was evidenced and in dismissing the suit. We reverse and remand for further proceedings consistent with the standards developed in this Circuit and the Supreme Court for judging claims of racial discrimination in employment.

II. The Challenged Employment Practices

Kaiser is engaged in the production of aluminum from powered alumina at the Chalmette facilities. At the time of trial, the plant employed over 2,400 people, of whom approximately 20 percent were black. Kaiser has operated the Chalmette plant since 1951. At that time, blacks were hired only as laborers and the physical facilities of the plant were rigidly segregated. 7 Plaintiff's essential claim at trial and on this appeal is that insufficient progress has been made since then to satisfy the requirements of the civil rights statutes. 8

A. Promotions to the Position of Foreman

The plaintiff presented evidence tracing the evolution of the procedures for selecting foremen from the hourly employees. 9 Until April 1966, Kaiser had no written procedures or standards governing such promotions. At that time, Kaiser adopted a system requiring each shift foreman to evaluate the hourly employees under his supervision every six months and report the names of likely candidates. Those listed would be further screened by the general foremen and departmental superintendents, and if approved, would be administered two personnel tests, the Wonderlic Test and the How to Supervise Test. The candidates achieving sufficiently high scores would then be classified as "trainee foremen," a status that allowed them to replace absent permanent foremen and, depending on their success, to advance to a permanent position as openings occurred. Parson's application for promotion was considered one month after this procedure had been adopted.

This system for considering applicants was modified in June of 1967 to ameliorate the requirement that an hourly employee could not become a candidate for a supervisory position without his immediate foreman's recommendation. The revised procedure required each foreman to submit the names of those employees who had indicated a wish to be promoted, "but whom the Foreman believes do not have the qualifications." An applicant not approved by either his shift foreman or the department superintendent was further reviewed by a committee authorized to reverse the previous decisions and allow the employee to take the personnel tests.

The following year, Kaiser's program was revised, apparently to reflect and anticipate changes in the law of employment discrimination. The use of the Wonderlic Test for identifying qualified condidates was eliminated after a validation study designed to relate the tests to the demands of the job failed. 10 In 1970, Kaiser further revised the selection methods by instituting a procedure for selecting permanent foremen. This procedure was based on annual evaluations and recommendations from immediate supervisors subject to review by general foremen and department superintendents. When vacancies occurred, the department superintendent and personnel relations superintendent would select candidates from the group judged qualified in the annual screening. These prospects were interviewed and a choice recommended for the final approval of the plant works manager.

The last revision in the selection procedure relevant to this litigation occurred in April 1972. For the first time, vacancies in shift foremen positions were posted on a central bulletin board. An hourly employee interested in the position requested an application form, and the applications, together with the written evaluation of the applicant's foreman, were screened by a committee that interviewed the leading candidates and made a final recommendation. The committee, which consisted of five persons, had a frequently changing membership, and in at least one instance documented in the record, the membership included blacks. In making its selections, the committee used a written list of criteria and standards. This list represents the first written standards guiding the selection of supervisors used at the Chalmette plant.

The plaintiff's brief paints the following statistical picture of Kaiser's foreman population. 11 In July 1965, when Title VII became effective, there were 209 supervisors employed at the Chalmette plant, all of whom were white. Of these, over 150 served as shift foremen, the position to which Parson aspired. In July of 1965, Kaiser employed 1,873 hourly production workers, of whom 15 percent were black. In September 1971, when Kaiser filed its last responses to discovery motions, 164 shift foremen served at the plant, of whom 8, or less than 5 percent, were black. 12 At that time, more than 21 percent of Kaiser's hourly employees, and 29 percent of the hourly production workers, were black. Between July 1965 and September 1971, 9 blacks were promoted to shift foreman jobs. Between September 1971 and the time of trial, April 1973, 4 additional blacks were promoted. 13 All but one of this last group was selected under the 1972 selection procedure.

B. Interdepartmental Transfers

A Kaiser employee who desires to transfer to a position in another department must follow the procedures established by the contractual agreement between Kaiser and the Union. The Supplement Seniority Agreement (sic) of February 1, 1972, in effect at the time of trial, requires that vacancies for permanent jobs (except those openings subject to "departmental job bids," discussed below) are to be posted at centrally located bulletin boards and that employees are to use a formal bidding system to apply for the openings. Success in transfer is determined by either plant...

To continue reading

Request your trial
73 cases
  • Connecticut Judicial Branch v. Gilbert
    • United States
    • Connecticut Supreme Court
    • April 26, 2022
    ..."rightful place," is the preferred means of vindicating that policy. (Internal quotation marks omitted.) Parson v. Kaiser Aluminum & Chemical Corp. , 575 F.2d 1374, 1391 (5th Cir. 1978), cert. denied sub nom. Local 13000, United Steelworkers of America, AFL-CIO-CLC v. Parson , 441 U.S. 968,......
  • Jackson v. Seaboard Coast Line R. Co.
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • June 17, 1982
    ...& Gamble Mfg. Co., 613 F.2d 527 (1980), cert. denied, 449 U.S. 1115, 101 S.Ct. 929, 66 L.Ed.2d 845 (1981); Parson v. Kaiser Aluminum & Chemical Corp., 575 F.2d 1374 (5th Cir. 1978), cert. denied, 441 U.S. 968, 99 S.Ct. 2417, 60 L.Ed.2d 1073 (1979). The essential difference between these tes......
  • Contreras v. City of Los Angeles
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • September 14, 1981
    ...823 (1963); United States v. Gypsum Co., 333 U.S. 364, 394, 68 S.Ct. 525, 541, 92 L.Ed. 746 (1948); Parson v. Kaiser Aluminum & Chemical Corp., 575 F.2d 1374, 1382 (5th Cir. 1978), cert. denied, 441 U.S. 968, 99 S.Ct. 2417, 60 L.Ed.2d 1073 (1979); James v. Stockham Vales & Fittings Co., 559......
  • United Steelworkers of America v. Weber Kaiser Aluminum Chemical Corporation v. Weber United States v. Weber
    • United States
    • U.S. Supreme Court
    • June 27, 1979
    ...was not sufficiently job related to justify under Title VII any discriminatory impact it may have had. See Parson v. Kaiser Aluminum & Chemical Corp., 575 F.2d 1374, 1389 (CA5 1978), cert. denied, sub nom. Steelworkers v. Parson, 441 U.S. 968, 99 S.Ct. 2417, 60 L.Ed.2d 1073 (1979). The part......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT