Harper v. General Grocers Co.

• Decision Date: 05 January 1979
• Docket Number: No. 78-1558,78-1558
• Citation: 590 F.2d 713
• Parties: 18 Fair Empl.Prac.Cas. 1359, 18 Empl. Prac. Dec. P 8776 Walter HARPER, Appellant, v. GENERAL GROCERS COMPANY, a/k/a Topmost General Grocers, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 713

590 F.2d 713

18 Fair Empl.Prac.Cas. 1359, 18 Empl. Prac.

Dec. P 8776

Walter HARPER, Appellant, v. GENERAL GROCERS COMPANY, a/k/a Topmost General Grocers, Appellee.

No. 78-1558.

United States Court of Appeals, Eighth Circuit.

Submitted Dec. 15, 1978.

Decided Jan. 5, 1979.

Doris Gregory Black, St. Louis, Mo., filed brief for appellant.

Stephen M. Hereford, Gentry, Bryant & Hereford, Clayton, Mo., filed brief for appellee.

Before HEANEY and ROSS, Circuit Judges, and TALBOT SMITH, Senior District Judge. ^*

HEANEY, Circuit Judge.

Walter Harper brought this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e Et seq., and 42 U.S.C. § 1981, alleging that the termination of his employment with General Grocers, and its failure to inform him of application procedures necessary for advancement from temporary or "casual" employment status to regular or permanent employment status, were because of his race. The District Court, after a non-jury trial, held that Harper's discharge violated Title VII and § 1981, but that the Company's failure to notify him of advancement procedures did not. Harper v. General Grocer Co., 451 F.Supp. 513 (E.D.Mo.1978). The court ordered that Harper be reinstated as a casual employee, and that he be offered the first regular employment position which became available. Since Harper adduced no evidence at trial of any monetary loss, the court declined to award back pay. Id. at 517-518. Harper appeals, contending that the relief ordered by the District Court is inadequate. ¹ We affirm in part and reverse in part.

We adopt the statement of facts which is set forth in the District Court's memorandum opinion. See id. at 515-517. We will restate only those facts which are pertinent to the issue of the appropriateness of the relief granted.

Harper began his employment with General Grocers in September, 1968. He was hired as a casual employee, and worked only when work was available. No provision for job seniority among casual workers existed until 1973, when a collective bargaining agreement entered into by General Grocers and the employees' union established a seniority system for advancement from casual to regular employment status. Under this agreement, a casual seniority list was maintained by the Company, with places on the list awarded in the order that applications for regular employment were received. Harper submitted his application for regular employment on November 5, 1973, and was placed fourth on the list.

The three employees who were ahead of Harper on the casual seniority list were hired by the Company as permanent employees during the early months of 1974. By the time Harper was discharged on June 24, 1974, he had advanced to the first position on the list, and thus was the next casual employee in line for permanent employment. It appears from the record that on October 7, 1974, some four months after Harper's discharge, the casual employee who had been behind Harper on the casual seniority list was advanced to permanent employment.

Harper first contends that the seniority relief ordered by the District Court, which reinstates Harper as a casual employee and requires that he be offered the first available regular employee position is inadequate in that it does not assure that he will ever be hired on a regular basis. He contends that since he had advanced to the first position on the casual seniority list at the time of his unlawful discharge, and since the casual employee who was next on the list received regular employment on October 7, 1974, he should be entitled to immediate, regular employment, with seniority rights dating from October 7, 1974.

The parties agree that the scope of the relief which may be afforded to Harper in this case is governed by the general principles enunciated by the Supreme Court in Franks v. Bowman Transportation Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed. 444 (1976) and Albemarle Paper Company v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975). One of the central purposes of Title VII is "to make persons whole for injuries suffered on account of unlawful employment discrimination." Albemarle Paper Company v. Moody,supra at 418, 95 S.Ct. at 2372. Accord, Franks v. Bowman Transportation Co., supra 424 U.S. at 763, 96 S.Ct. 1251. "To effectuate this 'make whole' objective, Congress (has) vested broad equitable discretion in the federal courts to 'order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement * * * with or without back pay * * *, or any other equitable relief as the court deems appropriate.' " Id. at 763, 96 S.Ct. at 1264.

An award of retroactive seniority, which places a victim of discrimination in that position in the seniority system that would have been his had the discriminatory act not occurred, is generally appropriate to redress a violation of Title VII. See Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977); Franks v. Bowman Transportation Co., supra, 424 U.S. at 774, 96 S.Ct. 1251. Accordingly, a court must ordinarily award appropriate seniority relief unless there exists reasons for denying relief which, if applied generally, would not frustrate the Act's central purposes of eradicating discrimination and making persons whole for injuries suffered through past discrimination. Teamsters v. United States,supra 431 U.S. at 365, 97 S.Ct. 1843; Franks v. Bowman Transportation Co., supra 424 U.S. at 771, 96 S.Ct. 1251. Denial of seniority relief to a discriminatee who would otherwise appear to be entitled to such relief must be accompanied by a statement of reason therefor. Franks v. Bowman Transportation Co., supra at 774, 96 S.Ct. 1251.

In the instant case, the District Court ordered that Harper be placed first on the casual seniority list, and that he be offered the first permanent position which becomes available. The court made no mention, however, as to what seniority rights Harper would enjoy upon his promotion to permanent employee status. Since no reasons for the denial of retroactive seniority appear in this case, we hold that, upon Harper's appointment to the first available permanent position, he should be awarded retroactive...