Fisher v. Procter & Gamble Mfg. Co.
| Decision Date | 12 March 1980 |
| Docket Number | 77-2205 and 77-2474,Nos. 77-2204,s. 77-2204 |
| Citation | 613 F.2d 527 |
| Parties | 22 Fair Empl.Prac.Cas. 356, 22 Empl. Prac. Dec. P 30,757 Dennis FISHER, Plaintiff-Appellee, v. PROCTER & GAMBLE MANUFACTURING COMPANY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Gregory L. Hellrung, Harold S. Freeman, Cincinnati, Ohio, Royal H. Brin, Jr., Dallas, Tex., for defendant-appellant.
Linda N. Coffee, Dallas, Tex., for plaintiff-appellee.
Douglas S. McDowell, Washington, D.C., Robert E. Williams, Kenneth C. McGuiness, Washington, D.C., for Equal Employment Advisory Council, amicus curiae.
Appeals from the United States District Court for the Northern District of Texas.
Before THORNBERRY, GEE and HATCHETT, Circuit Judges:
In this Title VII class action, 1 brought on behalf of black employees at the Dallas plant of the Procter & Gamble Manufacturing Company (Company), we review a district court order finding discrimination in promotion practices, hiring, and job assignments. The order was entered prior to recent Supreme Court pronouncements directly bearing on the issues raised. While certain conclusions of the district court are inconsistent with present case law, we find other legally sufficient grounds to support its judgment in all but one respect. Accordingly, we affirm in part and vacate and remand in part.
The Company is a corporation organized and existing under the laws of the State of Ohio, doing business in Dallas, Texas. At its Dallas plant, the Company engages in the manufacture and distribution of food, soap, and synthetic detergents. The Dallas plant has operated since 1921 and has a current work force of more than 500 employees. Dennis Fisher, began employment at the Dallas facility as a hydrolizer attendant in 1967 and has been employed by the Company since that time. On March 10, 1971, Fisher filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) alleging racial discrimination against black and Spanish-American employees at the Dallas plant. 2 An EEOC right to sue letter was issued on May 24, 1974 and Fisher instituted this Title VII action on July 15, 1974.
Fisher brought the action "on his own behalf and on behalf of other persons similarly situated pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure." The district court certified the case as a class action on behalf of all blacks employed by the Company since March 10, 1971, and all
future black applicants at the Dallas plant. In his complaint, Fisher charged the Company with the following conduct:
1. The establishment of a promotion system which intentionally preserves the Company practice and policy of "limiting employment and promotional opportunities of black employees."
2. The classification of all management positions as "white only," and the attempt to exclude black employees from these positions.
3. The classification of security guard positions as "white only."
4. Discrimination "against black employees in the area of job assignments."
5. Discrimination "against black employees in terms of compensation."
6. The failure to prohibit racial slurs against black employees by white employees.
7. The utilization of non-professionally developed ability tests "to deprive blacks of job opportunities."
8. The failure to take affirmative action to remove the present effect of past discrimination against black persons.
Fisher further charged that he was denied promotion to a lab position in March, 1971, solely because of his failure to score well on an ability test which bore no relationship to the skills required of the job.
After a non-jury trial on the class liability issues, the district court found Company discrimination in hiring, promotions, and job assignments.
In July, 1972, the Company instituted an affirmative action program designed to make "equal opportunity . . . meaningful" at the Dallas facility. In the written plan, the purposes for the affirmative action program were outlined by the president of the Procter & Gamble Company:
It will remain the policy of Procter & Gamble to seek out and employ members of racial or ethnic minorities. We will make special effort to employ not only the qualified but the qualifiable. We will educate our incumbent managers on the aims and the proper execution of this program. We will maintain working conditions where minority employees will find peace, dignity, challenge and equal opportunity for advancement.
Local plant managers assumed responsibility for the effective implementation of the plan. The plan included numerical hiring and promotion "goals" for each job classification, and stressed the need for stronger efforts in specified employment categories where minorities were significantly underrepresented. 3 The designated categories of significant underrepresentation included management, professional, technical, skilled, clerical, and semi-skilled positions.
Other affirmative actions outlined in the plan included:
1. active involvement in local minority organizations;
2. periodic audit of training, hiring, and promotion programs to remove impediments to the attainment of goals;
3. regular discussions with local managers, supervisors, and employees to insure compliance with company policies; and,
4. review of the qualifications of all employees "to insure minorities and women are given full opportunities for transfers and promotions."
Supervisors were responsible to prevent harassment of minorities and were advised that their equal employment efforts would be measured in evaluating their work performance. Racial Awareness Seminars were instituted to correct work force attitudes hindering EEOC efforts. The program has been updated each year since 1972 to reaffirm policies and revise goals.
The impact of Company efforts is reflected in the increase in minority employment at the plant from 1966 to 1977. As depicted in the chart below, the percentage
of black employees at the Dallas plant increased from .5% Of the Company's total work force in 1966 to 14.7% Of the total work force in 1977.
Minority Employment Figures
---------------------------
Black Total
Dates Employees Work Force
----- --------- ----------
1966 3 549
1967 8 545
1968 19 565
1969 29 545
1970 41 545
1971 38 490
1972 46 505
1973 61 531
1974 61 516
1975, January 64 508
1975, July 69 515
1977, January 74 505
The plaintiff does not rely on these overall employment figures to substantiate his claim of unlawful discrimination under Title VII. According to Fisher, only when we examine the promotional progress of black employees, can we discern whether the Company has engaged in discriminatory acts prohibited by law.
BLACKS IN LOWER ECHELONS OF EMPLOYEE HIERARCHY
Although the overall percentage of black employees at the Dallas plant has increased substantially during the ten year period preceding the institution of this action, blacks have remained concentrated in lower level non-management positions.
Management.
As of January 1, 1977, blacks constituted fourteen and seven tenths percent (14.7%) of the Company's total work force. In the same year, thirty-five and five tenths percent (35.5%) of the non-management employees having seniority dates after July 1, 1966 were black. As noted by the district court, the Company employed its first black manager in 1970. On March 1, 1971, one of the Company's seventy-seven management employees was black. At the time this action was filed, one of sixty-three management positions was held by a black. At the same time, blacks comprised eleven and eight tenths percent (11.8%) of the Company's total work force. From September 11, 1970, to the time the suit was instituted there were seventeen new managers, one of whom was black. The district court found that although the position of supervisor or line manager was of critical importance in matters of promotion, discipline, and employee relations, no black person had ever been a supervisor as of the time the action was brought. No black has ever held any operations manager position.
Non-Management.
As the district court recognized, the mechanic and lab analyst positions are critical non-management jobs and highly attractive to employees. 4
At the time judgment was entered in this case, one of seventy-six mechanic jobs at the plant was held by a black. Between December, 1967, and January, 1977, three of forty-four mechanic openings were filled by blacks. At the time of judgment, blacks held none of the twenty-two lab analyst jobs. Of the twenty-four lab analyst job openings between December, 1967, and January, 1977, one was filled by a black. Blacks were underrepresented in other important job categories including manufacturing clerical, 5 and security guard positions. 6 In contrast, the district court found Blacks are significantly underrepresented in key upper level positions in a Company whose total work force fairly represents the racial make-up of the standard metropolitan area in which it is located. 8 This incongruity draws into question the design and operation of the system employed to select applicants and promotees for these higher level positions.
overrepresentation of blacks in the "slide handler" position, which is considered "one of the least desirable jobs" at the plant. 7
It is the Company's policy and practice to hire persons into various entry level positions and to provide them with on-the-job training and experience. 9 Higher level openings are most often filled by current low or entry level employees demonstrating capability for promotion or transfer. Accordingly, class members claiming underrepresentation in higher level...
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