E.E.O.C. v. Safeway Stores, Inc.
| Decision Date | 17 November 1980 |
| Docket Number | No. 7,No. 1,No. 452,79-1190,No. 634,Nos. 79-1189,I,No. 86,L,No. 219,AFL-CI,No. 435,No. 537,7,634,1,435,537,452,219,86,s. 79-1189 |
| Parties | 24 Fair Empl.Prac.Cas. 714, 24 Empl. Prac. Dec. P 31,356 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. SAFEWAY STORES, INCORPORATED, Defendant-Appellee and Cross-Appellant, and Retail Clerks Union, Local; Butcher Workmen of North America,ocal; The International Union of Operating Engineers, Local Union; Delivery Drivers, Warehousemen and Helpers, Local Union; Milk Drivers and Dairy Employees Local; Warehouse and Distribution Employees Union, Local; Bakery Wagon Drivers and Salesmens Local Union; and District Lodgenternational Association of Machinists and Aerospace Workers, Rule 19(a)(2) Defendants, and Daniel Crespin, Claimant-Appellant and Cross-Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Gregory A. Eurich and Deborah J. Friedman, of Holland & Hart, Denver, Colo., for defendant-appellee and cross-appellant.
Paul A. Baca, Denver, Colo., for claimant-appellant and cross-appellee.
Before SETH, BARRETT and DOYLE, Circuit Judges.
The above captioned cause is brought on behalf of Daniel Crespin, a Spanish surnamed American citizen. The appeal is from the judgment of the United States District Court for the District of Colorado, The Honorable Sherman G. Finesilver, Judge. Safeway Stores has filed a cross-appeal. The case is an employment discrimination action which arises under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Sec. 2000a et seq. Also involved are the equitable remedies which are available following the report of a special master. As a result of a stipulated submission to the master, two extensive hearings before the special master, followed by a careful review and supplement of the master's reports by the district court, the issue of liability is no longer a question. The question is whether the trial court erred in ruling out the front pay and limiting the back pay which was recommended by the master as a result of the discrimination which was determined to exist.
The evidence established that Crespin was a long time employee of Safeway. His employment dated back to 1962. He was first hired as an order clerk and forklift operator in Safeway's Denver warehouse.
Crespin had had a long time interest in working as a carpenter and as early as 1969 he advised his superintendent of this fact, and told him that this had been his second vocation for a long period of time, and that he wished to transfer to carpentry work in order to obtain a higher paying position. Crespin made his wishes known to several Safeway officials. He was advised by Safeway that a written application was unnecessary, but that he would be considered when the sole carpenter position became vacant. The individual in charge of the carpentry position was Mr. Schlosser, who was the head of the design and construction department. Mr. Schlosser and other Safeway personnel were notified of Crespin being an applicant for the job. Indeed, a memorandum was written on July 18, 1973. In it the employee relations manager advised Schlosser of the fact. Schlosser responded to the memorandum on July 24, 1973. He stated that Crespin would be considered for the position at the end of 1974, when the current occupant was scheduled to retire.
A carpentry job was filled in March, 1974, long before the occupant of the position retired. A second carpenter, a Caucasian, was hired at the express request of Schlosser. Crespin was given no consideration for the job. Schlosser's reason was that Crespin was not a member of the carpenters' union, a fact of which Schlosser had been aware since 1969, when it became a part of the collective bargaining agreement between Safeway and the carpenters' union. The requirement of the agreement was that the members of the union would receive first opportunity to be referred for filling Safeway's requirements for the carpenter opening. 1
On November 29, 1974, Crespin filed a complaint with the Equal Employment Opportunity Commission (EEOC). The complaint alleged discrimination. 2 He also commenced work toward a degree of Associate of Arts in Carpentry at a local college. He received straight A's in carpentry and engineering courses.
On November 5, 1975, while the Crespin complaint was pending with the EEOC, that body brought a class action naming Safeway Stores as a defendant. Later certain labor unions were added as parties defendant (pursuant to Rule 19(a) (2)). Safeway was charged with engaging in unlawful employment practices in its manufacturing, distribution and retail operations in the Denver Metropolitan area. Included in the alleged discriminatory practices were:
Failure to train Spanish surnamed and Black Americans;
Maintaining terms and conditions of employment which had an adverse effect on Spanish surnamed and Black Americans;
Causing the constructive discharge of Spanish surnamed and Black Americans;
Failure to promote Spanish surnamed Americans.
On September 29, 1976, the subject matter or merits of the district court class action was the subject of a consent decree which obviated a trial on most of the issues. 3
In the consent decree, Safeway promised to henceforth refrain from engaging in stipulated discriminatory practices, and Safeway undertook to henceforth enter into a detailed affirmative action program in its recruitment, hiring, training, retail management training, performance evaluation, promotion, transfer, discharge and discipline practices.
The decree also called for the appointment of a special master to hear and determine the charges of all individual complaints.
Each of the individual complainants, including Crespin, was to receive personal notice that each had the opportunity to submit his or her claim to the master for resolution by the special master in accordance with a specified procedure which called for full hearings, findings of fact, conclusions of law by the master pursuant to federal law, and submission of the report of the special master to the district court for approval, modification, or amendment. All of the proceedings looked to the entry following the modification and ultimate approval of the judge of a final appealable judgment. This was all to be subject to the Federal Rules of Civil Procedure.
The consent decree provided further (In Paragraphs G, H and I):
G. With respect to any claim which is sustained by the master, the master shall have the power to order any one or more of the following:
1. To make an award ordering that the charging party be hired or reinstated to the next available job opening in the facility or department from which the charging party was discharged, constructively or otherwise, or to which the charging party was refused hire.
2. To make an award ordering that the charging party's seniority be adjusted to that seniority which the charging party would have had but for the alleged discrimination.
3. To make an award of back pay.
H. All periods of limitation applicable under federal or state law shall be applied by the master, including limitations on back pay specified in Title VII or otherwise.
I. With respect to any charging party who receives a final award of back pay, the master may also award to said charging party reasonable attorneys' fees incurred in the resolution of the claim, if any.
Crespin elected to submit his claim in accordance with the outlined procedure. On February 7, 1977, following a hearing on the merits, the master found, on October 11, 1977, that due to Crespin's continued efforts over five years to communicate his intense interest in the carpenter position,
Schlosser's failure to advise claimant of the necessity of union membership and referral for the job of carpenter under all of the circumstances must be viewed as a willful and deliberate omission of managerial duty. Schlosser represented to claimant that no formal job application or interview was necessary because he would remember claimant's interest and consider him. Schlosser represented to management that claimant would be considered to replace Nobel. But when authorization for hiring was approved a relatively short time thereafter, Schlosser neither advised claimant of the fact nor considered claimant for the job. Schlosser had lulled claimant into inaction and effectively precluded him from competing for the position.
The master's determination was that a violation of Title VII had occurred. His findings were adopted by the district court in its opinion and order granting Crespin relief on his claim. This latter is dated November 16, 1977. The judge added: "Because of Safeway's failure to inform plaintiff of transfer/promotion requirements, he was precluded from consideration for the transfer/promotion." The master was ordered to conduct a further hearing to determine an appropriate remedy.
Prior to this, in June of 1977, Safeway found it necessary to employ a second carpenter. It posted a notice informing its employees of the opening and its requirements, which included not only union membership, but fifteen years experience. Crespin joined the carpenters' union and applied for the job, but was rejected. After that, on March 31, 1978, a second hearing was held before the master. Evidence of the June, 1977 opening was then presented to the master. He issued his report on August 13, 1978. This was filed on August 21, 1978. He found that the person who was responsible for filling the June, 1977 opening was Schlosser, "the same person who had earlier practiced discrimination against claimant and he was subsequently responsible for establishing the requirement of 15 years' experience for the carpenter position." He further found the job was filled by a non-employee, even though the company had a policy of promotion from within. Also, he...
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