Cox v. American Cast Iron Pipe Co., Civ. A. No. 74-AR-0469-S.

Citation585 F. Supp. 1143
Decision Date30 April 1984
Docket NumberCiv. A. No. 74-AR-0469-S.
PartiesAnnette COX, et al., Plaintiffs, v. AMERICAN CAST IRON PIPE COMPANY, Defendant.
CourtU.S. District Court — Northern District of Alabama

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J. Scott Vowell, Richard Meelheim, Beddow, Fullan & Vowell, P.A., Birmingham, Ala., for plaintiffs.

J. Fredric Ingram, J. Patrick Logan, F.A. Flowers, III, Carol H. Wolfe, Thomas, Taliaferro, Forman, Burr & Murray, Birmingham, Ala., for defendant.

MEMORANDUM OPINION

ACKER, District Judge.

After decertifying the class, the Court allowed 23 individual plaintiffs to offer evidence against defendant, American Cast Iron Pipe Company (ACIPCO), in support of separate claims. On December 30, 1983, after all plaintiffs had rested, the Court granted motions under Rule 41(b), F.R. Civ.P., against 2 plaintiffs, expressed doubts as to the sufficiency of the proof offered by the 21 remaining plaintiffs but required ACIPCO to proceed with its defense as to the claims of the remaining plaintiffs.

Before looking at the proof peculiar to particular cases, the Court will shorten its opinion by pointing out those contentions and facts which are common to the 21 cases. For the reasons previously stated, these common features do not militate against the earlier decertification of the class.

COMMON FEATURES

1. All plaintiffs are females and thus members of a group protected from acts of employment discrimination by Title VII. Plaintiffs Cox, Morgan and Pandellis, the only plaintiffs who bring claims under the Equal Pay Act, are in a group protected by that Act.

2. The Court has allowed plaintiffs to be imprecise in pleading their individual complaints. No plaintiff has been required in her pleading to spell out the acts of discriminatory conduct of which she, in particular, complains. Generally the claims were predicted to include the following types of alleged acts of discrimination:

A. Discrimination in initial job assignments;
B. Discrimination in job training;
C. Discrimination in compensation;
D. Discrimination in job transfer;
E. Discrimination in advancement opportunities;
F. Discrimination in bonuses;
G. Discrimination in pensions;
H. Discrimination in maternity leave and medical benefits;
I. Discrimination in other fringe benefits;
J. Sexual harassment.

3. All plaintiffs concede that their claims are disparate treatment claims and are not disparate impact claims. Thus, the Court is not here dealing with an alleged pattern of conduct by ACIPCO which, although facially neutral, impacts adversely on its female employees. Each of the 21 plaintiffs, in order to recover, must present proof of an action or actions by ACIPCO directed toward her, and which discriminated against her because of her sex.

4. The fact that historically and presently certain job classifications at ACIPCO have a much higher percentage of females in them and certain job classifications have a much higher percentage of males in them does not, in and of itself, prove individual disparate treatment cases for these plaintiffs under Title VII. This fact, however, does suggest that the Court should examine the conflicting evidence as to particular incidents in the light of historic practice and attitude.

5. ACIPCO does not attempt here to articulate, or to interpose as a reason for any particular treatment by ACIPCO of any plaintiff, some business necessity which purports to recognize some difference in the physical abilities of males and females. Instead, ACIPCO's defense to each of the claims is that ACIPCO did not intentionally treat any plaintiff differently from the way it treated any other employee, and that any difference in treatment is either imagined by the particular plaintiff or is based on an honest (sometimes objective, but most times subjective) evaluation of the plaintiff by ACIPCO in comparison with her employee competitors, both male and female.

6. Each claim, particularly those of the two black plaintiffs, are potentially impacted by the final consent decree in Pettway, et al. v. ACIPCO, 332 F.Supp. 811, in the United States District Court for the Northern District of Alabama. The problem of reconciling these 21 cases with Pettway will be explored briefly, infra.

FINDINGS AS TO CERTAIN TYPES OF CLAIMS

Before discussing each individual case, the Court repeats and makes final its tentative finding contained in its order of December 30, 1983, to the effect that there was no convincing proof by any plaintiff of any disparate treatment in discipline, no convincing proof of a violation of Title VII in pregnancy and maternity benefits, and no convincing proof of any sexual harassment as a policy acquiesced in or promoted by ACIPCO. See Corne v. Bausch & Lomb, Inc., 390 F.Supp. 161 (D.Ariz.1975); Walker v. Ford Motor Co., 684 F.2d 1355 (11th Cir.1982). Furthermore, a renewed scouring of the record reveals no convincing proof of any disparate treatment, as to any plaintiff, with respect to bonuses, pensions, initial job assignments, fringe benefits, or training opportunities. Having found against plaintiffs, and each of them, as to all issues catalogued in this paragraph, there remains for consideration the various allegations of discrimination in compensation, job transfer and advancement.

A NON-ISSUE

Another idea merits discussion, although it is a non-issue. From an analysis of the testimony of several plaintiffs, a part of what they seem to resent is that ACIPCO has no affirmative action program to prefer nor give a "leg up" to females in various aspects of employment for the purpose of achieving eventual sexual parity. Not only does the original complaint itself not make this claim, but such a complaint, if made, could not rise to the level of legitimacy under Title VII. The Eleventh Circuit recently put such an idea to rest in Ferguson v. Veterans Administration, 723 F.2d 871 (11th Cir.1984), where it said:

Title VII addresses discrimination. Plaintiff contends that her employer's failure to implement its own affirmative action plan, designed for the benefit of women and minorities, translates into a Title VII cause of action by which she is entitled to relief. We hold, however, that absent a showing of discrimination, there is no Title VII cause of action for the failure to implement or utilize an affirmative action program. (emphasis the Eleventh Circuit's.)

723 F.2d at 872.

THE EFFECT, IF ANY, OF PETTWAY

In Pettway, et al. v. ACIPCO, supra, which is a long pending case in this Court involving alleged racial discrimination by ACIPCO, and which has taken several appellate trips, this Court, speaking through the Hon. Seybourn H. Lynne, in a consent decree signed on July 14, 1980, said, inter alia:

... Defendant American ACIPCO, its officers, agents, employees, and successors and all persons in concert or participation with it be, and hereby they are, enjoined and restrained from engaging in any acts or practices which have the purpose or effect of discriminating against any individual because of race, religion, sex, or national origin ... (emphasis supplied).
* * * * * *
American ACIPCO shall, consistent with the terms of this Decree, maintain and conduct all policies and practices of promotion, transfer, lay-off, recall, and other conditions of employment in a manner which complies with its obligation under Title VII under the Civil Rights Act of 1964.
* * * * * *
Any black employee of American ACIPCO, who was employed between April 1, 1971 and June 12, 1975, and had completed his probationary period as of June 12, 1975, shall be granted the special privileges provided for in Paragraph 13 of this Decree and shall be considered a member of the affected class as defined in Paragraph 12 of this Decree, if, and only if, it is determined by agreement of the parties or by the Court that he was discriminated against by American ACIPCO because of his race.

This decree in Pettway proceeded to deal in some detail with the following sometimes difficult and esoteric subjects unique to the situation at ACIPCO, particularly the fact that some employees are salaried and some are hourly:

1. The distinction between seniority rights within departments and seniority rights plant wide;

2. Lines of progression;

3. Excluded jobs;

4. Transfers between departments;

5. Pre-entry and advance entry jobs;

6. Special transfer and promotional rights of affected class members;

7. Promotional and seniority rights of non-affected class members;

8. A grievance procedure for monitoring compliance;

9. An implementation committee.

This Court will not attempt to comment on the potential impact of all aspects of Pettway but takes judicial knowledge of the comprehensive and complex decree. Perhaps it would have been better judicial administration for the instant case to have been handled by the judge of this Court to which Pettway was and is assigned, but the instant case was routinely assigned to the undersigned just as was Pettway to Judge Lynne, and therefore the undersigned undertakes, after consultation with Judge Lynne, to do his best to reconcile his conclusions in this case with the holdings enunciated in Pettway.

Two of the female plaintiffs in this case, Waldrop and Terry, are black. This fact immediately raises the question as to whether or not either Waldrop or Terry has received all relief to which she is entitled as a victim of any discriminatory practices which violate Title VII. Both are members of the affected class in Pettway, and therefore both have received relief. If in one case a black female who has been denied a promotion complains about the denial because she is black, and complains in another case because she is a female, and the issue of a discriminatory denial is finally adjudicated in the first case, can she proceed in the other case? This question becomes even more complicated where one case is a class action and the other is not. Also, the affirmative...

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4 cases
  • Valdez v. Church's Fried Chicken, Inc.
    • United States
    • U.S. District Court — Western District of Texas
    • 30 mars 1988
    ...for its failure to rehire because such criteria does not allow a reasonable opportunity for rebuttal"); Cox v. American Cast Iron Pipe Co., 585 F.Supp. 1143 (N.D.Ala.1984), revd. in part, 784 F.2d 1546 (11th Cir.1986), cert. denied, ___ U.S. ___, 107 S.Ct. 274, 93 L.Ed.2d 250 (employer fail......
  • Cox v. American Cast Iron Pipe Co.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 26 mars 1986
    ...that question, and then to the merits of each claim. The facts relevant to our exercise of jurisdiction are as follows. On April 30, 1984, 585 F.Supp. 1143 (N.D.Ala.), the district court entered judgment in favor of three and against 18 of the 21 plaintiffs in the Title VII suit that gives ......
  • Cox v. American Cast Iron Pipe Co.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 16 juin 1988
    ...Iron Pipe Company (ACIPCO) for sex discrimination under Title VII. Following an adverse ruling in 1984, see Cox v. American Cast Iron Pipe Co., 585 F.Supp. 1143 (N.D.Ala.1984), rev'd in part and vacated in part, 784 F.2d 1546 (11th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 274, 93 L.Ed.......
  • Beavers v. American Cast Iron Pipe Co.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 15 août 1988
    ...plaintiffs and class representatives. The case was assigned to the same district judge before whom was pending Cox v. American Cast Iron Pipe Co., 585 F.Supp. 1143 (N.D.Ala.1984), rev'd in part and vacated in part, 784 F.2d 1546 (11th Cir.), cert. denied, 479 U.S. 883, 107 S.Ct. 274, 93 L.E......

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