613 F.2d 696 (8th Cir. 1980), 78-1808, Kirby v. Colony Furniture Co., Inc.

Docket Nº:78-1808.
Citation:613 F.2d 696
Party Name:Theresa KIRBY, Special Administratrix, Grathey Nelson and Lemuel Mims, Appellants, v. COLONY FURNITURE COMPANY, INC., Appellee.
Case Date:January 09, 1980
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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613 F.2d 696 (8th Cir. 1980)

Theresa KIRBY, Special Administratrix, Grathey Nelson and

Lemuel Mims, Appellants,



No. 78-1808.

United States Court of Appeals, Eighth Circuit

January 9, 1980

Submitted March 15, 1979.

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[Copyrighted Material Omitted]

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John M. Bilheimer, Kaplan, Brewer, Bilheimer & Marks, Little Rock, Ark., for appellants; John W. Walker, Little Rock, Ark., on brief.

William S. Mitchell, Jr., Mitchell & Lowry, Little Rock, Ark., for appellee.

Before GIBSON, [*] Chief Judge, ROSS and McMILLIAN, Circuit Judges.

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McMILLIAN, Circuit Judge.

Appellants William Kirby, 1 Grathey Nelson and Lemuel Mims, on behalf of themselves and the class they represent, appeal from the judgment of the district court on their Title VII employment discrimination claim. For reversal appellants argue that the trial court erred (1) in refusing to certify the class of black employees at Colony Furniture Co. (Colony) for the purposes of monetary relief as well as injunctive relief and (2) in failing to find classwide racial discrimination in Colony's promotional policies, Colony's use of the "leadman" classification and Colony's layoff policies. Appellants also argue that should classwide relief not be appropriate in any of the above instances, they are entitled to individual monetary relief for the above acts of discrimination they personally have suffered. For the following reasons, we affirm in part and reverse in part.

William Kirby, now deceased, was a black employee at Colony Furniture Company's "top plant" beginning in March, 1967. Kirby filed his complaint on January 30, 1973, seeking to represent "the class of black persons who are employed, have been employed, have sought and might seek employment by the defendant Colony Furniture Company," and alleging companywide racially discriminatory hiring, job assignment, payment and layoff policies. Two additional black employees, Grathey Nelson and Lemuel Mims, were granted leave to intervene as parties plaintiff.

Appellee, Colony Furniture Company, has been in existence since 1953 and employs about 200 persons. It is divided into ten departments, one of which is the "top plant," which manufactures and attaches the tops of furniture. Kirby, Nelson and Mims work at the top plant but their charges of racial discrimination are companywide.

After a two-day bench trial, the district court certified the class as to injunctive relief but not as to monetary relief. The district court awarded classwide injunctive relief on one issue only. Finding that the hiring practices for truck drivers resulted in discrimination in fact, though not in intent, the court ordered appellee to take certain specified steps to end the discrimination. Although the court refused to certify the class as to monetary relief, it awarded the individual plaintiffs, Kirby, Nelson and Mims, monetary relief for Colony's failure to give them the customary ten cent per hour raise at the end of their initial probationary period and for instances when, on the basis of race, specified white employees were promoted and paid more than plaintiffs.

Appellants' first contention of error is well taken; there was no reason for the district court to refuse to certify the class as to monetary relief. The law is well settled that classwide back pay should be denied only in extraordinary circumstances. Albemarle Paper Co. v. Moody, 422 U.S. 405, 421, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975); Wells v. Meyer's Bakery, 561 F.2d 1268, 1272 (8th Cir. 1977); Stewart v. General Motors Corp., 542 F.2d 445, 451-53 (7th Cir. 1976), Cert. denied, 433 U.S. 919, 97 S.Ct. 2995, 53 L.Ed.2d 1105 (1977); Cf. Rogers v. International Paper Co., 526 F.2d 722, 723 (8th Cir. 1975); Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 257 (5th Cir. 1974); Head v. Timken Roller Bearing Co., 486 F.2d 870, 876 (6th Cir. 1973); Robinson v. Lorillard Corp., 444 F.2d 791, 802 (4th Cir.), Cert. dismissed, 404 U.S. 1006, 92 S.Ct. 573, 30 L.Ed.2d 655 (1971). The special factors which justify not giving an award of classwide back pay have been narrowly construed and the fact that computation of the award will be difficult has been specifically rejected as an adequate "special factor." Stewart v. General Motors Corp., supra, 542 F.2d at 451, Citing Albemarle Paper Co. v. Moody, supra, 422 U.S. at 417, 95 S.Ct. 2362; United States v.

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United States Steel Corp., 520 F.2d 1043, 1050 (5th Cir. 1975), Cert. denied, 429 U.S. 817, 97 S.Ct. 61, 50 L.Ed.2d 77 (1976); Cf. Robinson v. Lorillard Corp., supra, 444 F.2d at 802 n.14. Therefore the court's sole rationale, that "the varieties of employees involved and the variety of factual considerations" prohibited classwide back pay, is clearly insufficient and classwide back pay is available as a remedy in this case.

The next question is what discriminatory practices, if any, were conducted on a classwide basis so as to warrant back pay awards for class members.

The district court awarded the named plaintiffs, Kirby, Nelson and Mims, damages for Colony's failure to pay plaintiffs the customary ten cent per hour raise at the end of their ninety-day probationary period. It is unclear whether the district court refused to award other members of the class the same award because the class members did not suffer the same discrimination or because the court assumed classwide monetary relief was inappropriate. We therefore remand for a determination as to whether Colony discriminated on a classwide basis in its payment of the postprobationary period raise. If classwide discrimination did occur, the court should award classwide monetary relief on this basis.

Appellants have argued that there are three additional bases upon which classwide monetary relief should be awarded. According to appellants, appellee's promotional policies, its use of the "leadman" classification and its layoff policies all resulted in racial discrimination. The district court dismissed these allegations of classwide racial discrimination. We find that the district court erred in holding that appellee's promotional policies and use of the leadman classification were not discriminatory on a classwide basis. There is nothing in the record, however, to indicate that appellee's layoff policies were racially discriminatory on a classwide basis.

Appellee's promotional policies appear to have resulted in discrimination against the black employees. The production force at appellee's plant is approximately 80% Black and 20% White. Appellee's preferred policy is to promote its own people from within the plant to supervisory jobs, rather than hire from outside. However, there are 27% Blacks (6 of 22 employees) and 73% Whites in the supervisory positions. 2 In addition, the six blacks who are in supervisory positions have more tenure than the white supervisors 3 and are paid

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less. 4 Statistical evidence such as this constitutes a prima facie case of racial discrimination. E. g., Teamsters v. United States, 431 U.S. 324, 339, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977); Stewart v. General Motors Corp., supra, 542 F.2d at 449; Rowe v. General Motors Corp., 457 F.2d 348, 358 (5th Cir. 1972). Appellee offered very little evidence to rebut this prima facie case. In its brief, appellee merely discussed the interpersonal skills a supervisor must have and pointed to one employee's opinion, given at trial, that there were no blacks in the plant qualified to run the plant. No other significant rebuttal evidence was offered. This scarcely addresses the serious pattern of discrimination indicated by the above statistics.

Moreover, as far as we can determine, the trial court addressed only one of the points made in appellants' argument, the unequal pay problem. The court concluded that there was no proof that blacks were paid less than whites In the same position (emphasis added). Appellants' argument was not, however, that blacks were paid less than whites in the same position, but that blacks were concentrated in the lower paying jobs. Of the six black management employees, only one earned more than $140 per week, which was at the bottom of the management salary scale. Of the sixteen white management employees, eleven earned more than $140 per week.

On the basis of this prima facie case made by appellants and appellee's inadequate rebuttal, we conclude that Colony's promotional policies discriminated against the class represented by appellants. Therefore, the class, including appellants, is entitled to classwide monetary relief for lost promotional opportunities. It also appears that injunctive relief to correct this discrimination is appropriate. However, the record is not sufficient for us to...

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