625 F.2d 918 (10th Cir. 1979), 78-1096, United States v. Lee Way Motor Freight, Inc.

Docket Nº:78-1096, 78-1097 and 78-1098.
Citation:625 F.2d 918
Party Name:UNITED STATES of America and Equal Employment Opportunity Commission, Appellees and Cross-Appellants, v. LEE WAY MOTOR FREIGHT, INC., Appellant and Cross-Appellee, and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Appellee and Cross-Appellant.
Case Date:September 21, 1979
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 918

625 F.2d 918 (10th Cir. 1979)

UNITED STATES of America and Equal Employment Opportunity

Commission, Appellees and Cross-Appellants,

v.

LEE WAY MOTOR FREIGHT, INC., Appellant and Cross-Appellee,

and

International Brotherhood of Teamsters, Chauffeurs,

Warehousemen and Helpers of America, Appellee and

Cross-Appellant.

Nos. 78-1096, 78-1097 and 78-1098.

United States Court of Appeals, Tenth Circuit

September 21, 1979

Argued May 17, 1979.

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Richard J. Ritter, Dept. of Justice, Washington, D. C. (Beatrice Rosenberg, John D. Schmelzer and William Ng, Equal Employment Opportunity Commission, and David L. Rose and William B. Fenton, Dept. of Justice, Washington, D. C., on the brief), for appellees and cross-appellants.

Paul Scott Kelly, Jr. of Gage & Tucker, Kansas City, Mo. (R. F. Beagle Jr., Michael J. Gallagher and John J. Yates of Gage & Tucker, Kansas City, Mo., and of counsel, Peter B. Bradford of McAfee, Taft, Mark, Bond, Rucks & Woodruff, Oklahoma City, Okl., on the brief), for appellant and cross-appellee.

L. N. D. Wells, Jr. of Mullinax, Wells, Baab, Cloutman & Chapman, P. C., Dallas, Tex., for appellee and cross-appellant.

Robert E. Williams and Douglas S. McDowell of McGuiness & Williams, Washington, D. C., for amicus curiae Equal Employment Advisory Council.

Before McWILLIAMS, BARRETT and DOYLE, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

This action arises under Title VII of the Civil Rights Act of 1964, § 707, 42 U.S.C. § 2000e-6, and is against Lee Way Motor Freight, Inc. and the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. The plaintiffs are the United States of America through the Attorney General of the United States and the Equal Employment Opportunity Commission, which was added in 1974 as a coplaintiff in accordance with § 707(c) of Title VII.

PRELIMINARY PROCEEDINGS

A closely analogous cause has been before this court previously. See Jones v. Lee Way Motor Freight, Inc., 431 F.2d 245 (10th Cir. 1970), cert. denied, 401 U.S. 954, 91 S.Ct. 972, 28 L.Ed.2d 237 (1971). That case, instituted by black truck drivers, alleged that Lee Way's refusal to grant requested transfers from the position of city driver to line or over-the-road driver constituted an unlawful employment practice in violation of the 1964 Civil Rights Act. The trial court rendered judgment for the defendant. This court held that the statistical evidence presented established that during the years 1964 through 1968, the company did not employ a single black line driver notwithstanding that there were between 353 and 542 men engaged in working in that category. The court's opinion also pointed out that the line driver group was substantially larger than the city driver group, and that approximately 80 percent of the white drivers were in the line category and that there were no Negro line drivers. This court said: "In short, there were no Negro line drivers; most whites were line drivers; and all Negroes were city drivers." 431 F.2d at 247. The magnitude of the statistics established a prima facie case that during this period race was a factor in staffing the two driver categories. At no time prior to the institution of the action did the company employ a Negro line driver. Two black line drivers were hired in August 1968. It was concluded that in the light of the pre-Act discriminatory hiring practices the no-transfer policy constituted a violation of § 2000e-2(a). 1

Even though the defendant did not adopt the policy with specific intent to discriminate, we held "that the practice was followed deliberately not accidentally." The conclusion of the court, through Judge Breitenstein, was as follows:

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To summarize, we hold that the no-transfer policy, as applied to plaintiffs, is an unlawful employment practice within the meaning of § 2000e-2(a) because it perpetuates past discrimination, by preventing them from now having jobs which were formerly denied to them because of their race, and because it does not satisfy the business necessity test. Although the company did not adopt the policy with the intention of discriminating, the practice was followed deliberately not accidently. We conclude that the company "is intentionally engaging in an unlawful employment practice" within the meaning of § 2000e-5(g). * * * This conclusion is not at odds with the provision of § 2000e-2(j) that the Act shall not be interpreted to require preferential treatment. In our opinion the present correction of past discrimination is not preferential treatment. * * *

431 F.2d at 250.

From 1969 through June 1972, a relatively small number of black over-the-road drivers were hired. Thus in Oklahoma City out of a total of 754 such drivers, 741 were white and 11 or 1.5 percent were black. One was Hispanic. In Los Angeles, there was only one black and one Spanish surnamed American hired among 119 drivers. In Phoenix, Arizona, where 37 were hired, neither a black nor a Spanish surnamed American was hired. In El Paso, Texas, out of 35 hired, there was no black and only one Spanish surnamed American. In San Antonio, Texas, out of 11 hired, there was neither a black nor a Spanish surnamed American. There was evidence that prior to mid-1968, no black had ever been employed in the Oklahoma City terminal in any job other than the lowest paid jobs of janitor and porter. Even after Lee Way employed a few blacks in other jobs starting in 1968, it continued to follow an all-white hiring pattern for most of these positions. Out of 22 new mechanics and apprentices hired in the Oklahoma City terminal, all were white. Lee Way did not employ a black supervisor at the Oklahoma City terminal until May 1971. The first black ever employed in the management training program was not hired until February 1972. Its first black clerical employee in Oklahoma City was hired in 1968. Another black was not hired for a clerical position until November 1971, despite the fact that there were numerous hiring opportunities during this period. This pattern was present not only in Oklahoma City, but it pervaded the entire system.

Following the pretrial conference in this case, an order was entered on May 15, 1973. In it the government was required to identify each of the persons for whom it was seeking individual relief. The government was allowed to seek out potential victims of discrimination in preparation of its case. After the initial phase of the trial, the court, on December 27, 1973, entered its findings of fact and conclusions of law in which it found that Lee Way had engaged in system-wide patterns and practices of employment discrimination against blacks, which had continued up to the date that the government had filed its complaint. This was a conclusion which determined the merits of the case against Lee Way. At the same time it found that Lee Way had not discriminated against Spanish surnamed Americans.

On April 10, 1974, the court appointed Dr. Richard E. Coulson, Professor of Law at Oklahoma City University College of Law, as a Special Master, and subsequent hearings were held before Dr. Coulson. These were for the purpose of ascertaining the damages suffered by the individual aggrieved persons. Finally, however, by stipulation, testimony as to these individual claims was dispensed with and affidavits and written statements were presented in lieu thereof. The Master's report was filed on February 22, 1977, and objections were heard by the court on May 23 and 25, 1977, and June 9, 1977.

Decisions of the Supreme Court announced at the latter part of the 1977 term caused the trial court to remand the report back to the Special Master for reconsideration in light of those decisions. There were revisions by the Master in the report as a result of this.

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Objections to the report on remand were heard by the court on September 12, 1977. Final judgment was entered on October 11, 1977, and the appeals and the cross-appeals were filed.

CONTENTIONS BY LEE WAY ON APPEAL

Lee Way maintains, generally, that the court erred in the following respects:

1. In its finding and conclusion that Lee Way was engaged in a pattern and practice of employment discrimination.

2. In its finding that Lee Way used hiring standards to engage in this discrimination.

3. In finding that the awards of back pay should terminate as of April 1974, when the district court entered its preliminary injunction and interim transfer orders; that economic losses subsequent thereto could be attributable to a failure on the part of the employees to mitigate damages; that the failure of the trial court to uphold this finding was clearly erroneous.

4. In adopting the Master's report with respect to back pay awards in the following particulars:

(1) In holding that the filing of a charge with the E.E.O.C. by Marcus Jones on August 11, 1966, based on the no-transfer rule, tolled the statute of limitations for all claimants.

(2) In refusing to reduce back pay awards by the amount of necessary business expenses which the claimants would have incurred had they held line driver jobs.

(3) In awarding more vacancies in the shop than were available and in attributing 100 percent of those vacancies to blacks rather than using the percentage of blacks in the relevant hiring area.

(4) In imposing the burden of persuasion on the issue of vacancies on the company.

(5) In concluding that the company's no-transfer rule perpetuated pre-Act discrimination.

(6) In...

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