Patterson v. American Tobacco Co.

• Decision Date: 18 November 1980
• Docket Number: 78-1084,Nos. 78-1083,s. 78-1083
• Citation: 634 F.2d 744
• Parties: 24 Fair Empl.Prac.Cas. 531, 24 Empl. Prac. Dec. P 31,361 John PATTERSON, Marion Moshoe, Edmund Page, James Randolph and Percy Taylor, each Individually and on behalf of all other persons similarly situated and Equal Employment Opportunity Commission, Appellees, v. The AMERICAN TOBACCO COMPANY, a Division of American Brands, Inc., Appellant, and Tobacco Workers' International Union, an unincorporated association, et al., Defendant. John PATTERSON, Marion Moshoe, Edmund Page, James Randolph and Percy Taylor, each Individually and on behalf of all other persons similarly situated and Equal Employment Opportunity Commission, Appellees, v. TOBACCO WORKERS' INTERNATIONAL UNION, an unincorporated association; Local 182, Tobacco Workers' International Union, an unincorporated association, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 744

634 F.2d 744

24 Fair Empl.Prac.Cas. 531,

24 Empl. Prac. Dec. P 31,361

John PATTERSON, Marion Moshoe, Edmund Page, James Randolph

and Percy Taylor, each Individually and on behalf of all

other persons similarly situated and Equal Employment

Opportunity Commission, Appellees, v. The AMERICAN TOBACCO COMPANY, a Division of American Brands, Inc., Appellant, and Tobacco Workers' International Union, an unincorporated

association, et al., Defendant.

John PATTERSON, Marion Moshoe, Edmund Page, James Randolph

and Percy Taylor, each Individually and on behalf of all

other persons similarly situated and Equal Employment

Opportunity Commission, Appellees, v. TOBACCO WORKERS' INTERNATIONAL UNION, an unincorporated

association; Local 182, Tobacco Workers'

International Union, an unincorporated

association, Appellant.

Nos. 78-1083, 78-1084.

United States Court of Appeals,

Fourth Circuit.

Argued June 5, 1979.

Decided Nov. 18, 1980.

Henry T. Wickham, Richmond, Va. (John F. Kay, Jr., Stephen A. Northup, Mays, Valentine, Davenport & Moore, Richmond, Va., Paul G. Pennoyer, Jr., Arnold Henson, Bernard W. McCarthy, Chadbourne, Parke, Whiteside & Wolff, New York City, on brief), for the American Tobacco Company, A Division of American Brands, Inc.

Jay J. Levit, Richmond, Va. (James F. Carroll, New York City, on brief), for Tobacco Workers' Intern. Union and Local 182, Tobacco Workers' Intern. Union.

Henry L. Marsh, III, Richmond, Va. (S. W. Tucker, Randall G. Johnson, John W. Scott, Jr., Hill, Tucker & Marsh, Richmond, Va., Jack Greenberg, Barry L. Goldstein, O. Peter Sherwood, New York City, on brief), for John Patterson, et al.

Ramon V. Gomez, Equal Employment Opportunity Commission, Washington, D. C. (Abner W. Sibal, Gen. Counsel, Joseph T. Eddins, Associate Gen. Counsel, Beatrice Rosenberg, Asst. Gen. Counsel, Washington, D. C., on brief), for Equal Employment Opportunity Commission.

Before HAYNSWORTH, Chief Judge, and WINTER, BUTZNER, RUSSELL, WIDENER, HALL and PHILLIPS, Circuit Judges, sitting en banc.

JAMES DICKSON PHILLIPS, Circuit Judge:

In these consolidated Title VII actions brought by EEOC and a class of black employees against American Tobacco Company (American) and Tobacco Workers' International Union (Union) alleging race and sex discrimination in hiring, promotion, transfer and other employment practices, the district court found violations and granted sweeping relief which, with modifications, was then approved by this court upon appeal. Patterson v. American Tobacco Co., 535 F.2d 257 (4th Cir.), cert. denied, 429 U.S. 920, 97 S.Ct. 314, 50 L.Ed.2d 286 (1976). Following entry by the district court of a modified judgment in conformity with our mandate upon remand, the Supreme Court decided International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977); United Airlines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977); and Hazelwood School District v. United States, 433 U.S. 299, 97 S.Ct. 2736, 53 L.Ed.2d 768 (1977). Asserting that these decisions constituted significant intervening changes in the law entitling them to equitable relief from the judgment, American and the Union moved under Fed.R.Civ.P. 60(b) for appropriate relief. ¹ The district court denied the motion and this appeal by the defendant-movants followed. It was first heard by a panel of this court which decided that while Evans and Hazelwood did not entitle the movants to any relief from the judgment, Teamsters might, and that remand for further proceedings in light of Teamsters was required. Patterson v. American Tobacco Company, 586 F.2d 300 (4th Cir. 1978).

Upon rehearing by the court en banc, we conclude that the decision in Evans did not entitle the defendants to any relief from the judgment but that the decisions in both Teamsters and Hazelwood may require relief whose specific form can only be determined by further proceedings in the district court. Accordingly we affirm in part and vacate and remand in part for further proceedings.

I

The factual background and protracted procedural history of these cases is adequately set out in our earlier opinion, 535 F.2d 257, and in the panel opinion withdrawn upon our en banc rehearing of the instant appeals, 586 F.2d 300. It need not be repeated in full here; specific details necessary to our discussion will suffice.

By way of general background, the essential features of the modified judgment from which relief by motion is now sought are here summarized. Based upon findings of violations by the defendants in transfer and promotion practices affecting non-supervisory employees and in the procedures by which supervisory employees were appointed, the judgment required American to: (1) post more definite written job descriptions when vacancies occurred; (2) eliminate lines of employment progression in six of nine job categories; (3) permit blacks in the prefabrication department in one branch to transfer to jobs in the fabrication department at another branch without losing seniority despite American's longstanding policy disallowing inter branch transfers with retention of company seniority; (4) make back-pay awards to employees unlawfully denied promotions; and (5) develop and apply objective criteria for appointing supervisory personnel. Reserved for judgment and still pending for determination in the district court were the individual claims for restitutionary back pay awards.

The defendants contend that the cited Supreme Court decisions require relief in various ways from the further enforcement of the judgment. We consider the effect of each decision in order.

II Teamsters

Defendants contend that Teamsters draws in question the continued validity of those portions of the challenged judgment finding American's branch seniority system and its job lines of progression policy violative of § 703(a) of Title VII and granting related relief. The branch seniority system ² was found violative on the basis that by imposing, without justification of business necessity, loss of seniority upon employees transferring from the lower paying prefabrication department of one branch to the higher paying fabrication department of another branch, blacks and women had been effectively locked into the lower paying positions. 535 F.2d at 263-64, 271. The lines of progression policy was found violative of Title VII in respect of six of nine protected job lines because of its demonstrated disparate impact upon protected employees and the failure to show its justification by any business necessity. Id. at 264-65, 271.

The contention is that Teamsters has now revealed that both the branch seniority system and the job lines of progression policy are immunized against challenge by § 703(h) of Title VII because they are, within contemplation of that section, "bona fide" seniority systems. We conclude that under Teamsters the branch seniority system must be held immune if bona fide within the meaning of § 703(h), and that this presents a factual issue requiring reconsideration by the district court. We further conclude that § 703(h) as interpreted in Teamsters has no application to the job lines of progression policy, so that no reconsideration of the finding of violation or of the relief granted in relation to this policy is required by Teamsters. Our reasons follow.

In pertinent part, § 703(h) provides that

(I)t shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority ... system ..., provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(h).

When the original judgment was entered, affirmed on appeal and modified on remand, the view in this and other Circuits was, as expressed in United States v. Chesapeake & Ohio Railway, 471 F.2d 582, 587 (4th Cir. 1972), that, notwithstanding § 703(h), "seniority systems which perpetuate past racial discrimination violate (Title VII)."

Teamsters expressly rejected that view, finding it belied by the legislative history of § 703(h) and holding instead that "an otherwise neutral, legitimate seniority system does not become unlawful under Title VII simply because it may perpetuate pre-Act discrimination," 431 U.S. at 353-54, 97 S.Ct. at 1863-64. In holding the Teamsters seniority system immune under § 703(h), the Court emphasized that by literal terms of the statute a system's immunity depends upon its being "bona fide," and specifically pointed to the statutory requirement that differences in treatment flowing from the system's application not be "the result of an intention to discriminate because of race." Id. at 353, 97 S.Ct. at 1863.

Because the bona fides of the Teamsters system was conceded, the Teamsters Court was not, however, required to give detailed attention to the criteria by which bona fides in a contested situation is now to be determined. The Court did point out that the system before it "did not have its genesis in racial discrimination, and ... was negotiated and (had) been maintained free of any illegal purpose." Id. at 356, 97 S.Ct. at 1865 (emphasis supplied). Also emphasized were the facts that the system was facially neutral, applying alike to all employees, equally discouraging all from making intracompany transfers involving loss of seniority; and finally that the differences in employment conditions imposed by the system had a rational basis in the practices of the affected industry and were consistent with National Labor Board precedents. Id. at 355-56, 97 S.Ct. at 1864-65.

From this it is clear that the modified judgment in this case was entered under a misapprehension on the part of both the district court and this court as to the proper application of § 703(h) to claims of Title VII violation through the operation of seniority...