Taylor v. Jones

• Decision Date: 30 June 1981
• Docket Number: Nos. 80-1378,80-1825,s. 80-1378
• Parties: 28 Fair Empl.Prac.Cas. 1024, 26 Empl. Prac. Dec. P 31,923 Corenna TAYLOR, Appellee, v. General Jimmie "Red" JONES, Appellant. United States of America, Intervenor. Corenna TAYLOR, Appellee, v. General Jimmie "Red" JONES, United States of America, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1193

653 F.2d 1193

28 Fair Empl.Prac.Cas. 1024,

26 Empl. Prac. Dec. P 31,923

Corenna TAYLOR, Appellee, v. General Jimmie "Red" JONES, Appellant.

United States of America, Intervenor.

Corenna TAYLOR, Appellee, v. General Jimmie "Red" JONES, United States of America, Appellant.

Nos. 80-1378, 80-1825.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 11, 1980.

Decided June 30, 1981.

John W. Walker, P.A., Richard Quiggle, argued, Little Rock, Ark., for appellee.

Steve Clark, Atty. Gen., David L. Williams, Asst. Atty. Gen., argued, Little Rock, Ark., for appellant General Jimmie "Red" Jones.

George W. Proctor, U. S. Atty., A. Doug Chavis, Asst. U. S. Atty., Little Rock, Ark., Robert A. DeMetz, argued, Michael J. Wentink, Peter B. Lowenberg, Dept. of the Army, Washington, D. C., for intervenor-appellant.

Before GIBSON, Senior Circuit Judge, and HEANEY and ROSS, Circuit Judges.

HEANEY, Circuit Judge.

James H. Jones, Adjutant General of the Arkansas National Guard, and the United States appeal from a judgment of the district court finding that appellee Corenna Taylor had been discriminated against on the basis of her race, in violation of 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. We affirm the liability finding and the injunctive relief ordered, and remand the back pay award.

I BACKGROUND

Corenna Taylor was employed by the Arkansas Army National Guard from March 1, 1974, to October 2, 1974. She served as a Taylor filed suit on March 12, 1976, alleging that the Arkansas National Guard discriminates against black members and employees of the Guard, and against blacks eligible for such positions. She charged that she had been underclassified and underpaid when employed by the Guard as a mail room clerk, that she had been subjected to racial epithets and slurs and that she had been denied transfer or promotion despite repeated requests. She sought wide-ranging relief, including affirmative efforts by the defendants to recruit black Guard members and employees.

recruiter from March 1, 1974, until June 30, 1974. Thereafter, she worked as a mail room clerk. Through this period, Taylor was a member of the National Guard, drilling one weekend per month and for a two-week training period in the summer.

On February 20-21, 1980, the case was tried before the Honorable Richard S. Arnold. ¹ At the conclusion of trial, that court held that the defendant ² had intentionally discriminated against the plaintiff on account of her race, in violation of Title VII and 42 U.S.C. § 1983. It found that Taylor's demotion from recruiter to mail room clerk was racially motivated, and that her resignation from the latter position was forced by the noxious racial atmosphere existing in the Arkansas Military Department. The defendant was ordered to reinstate the plaintiff, with back pay, to her recruiter position or a comparable one. The court enjoined the defendant from hiring any new employees. The injunction was later modified to permit the defendant to fill any openings as long as one-half of those persons hired were black. ³ Taylor v. Jones, 489 F.Supp. 498 (E.D.Ark.1980).

The defendant subsequently filed a motion for a new trial, claiming, inter alia, that he had been unfairly surprised by the introduction of the recruiter position into the trial as a basis for liability. The court granted this motion. The new trial was limited by the court to two issues: (1) "whether plaintiff's nonrenewal as a recruiter was racially motivated," and (2) "what permanent equitable relief should be granted." The United States successfully moved to intervene and participated in the limited retrial.

On August 8, 1980, the district court entered its opinion and final judgment. The court did not disturb its earlier finding that the plaintiff had been constructively discharged from her position as mail room clerk because of her race, in violation of Title VII of the Civil Rights Act of 1964. ⁴ It reiterated its finding that the defendant had deliberately discriminated against the plaintiff on account of her race by failing to renew plaintiff's appointment as a recruiter. It found, however, that liability for this unlawful act was appropriately based on 42 U.S.C. § 1981. It again ordered that the plaintiff be reinstated as a recruiter or given a comparable position, with back pay, and awarded plaintiff attorney's fees. The injunction pendente lite was dissolved, and the defendant was directed to hire at least one black person for every two white persons hired until the level of black employees of the Guard reaches sixteen percent. Taylor v. Jones, 495 F.Supp. 1285 (E.D.Ark.1980).

Defendant Jones appeals from the district court's order, contending that there was no jurisdictional or factual basis for the court's finding of liability and that the relief afforded the plaintiff was improper.

The United States also appeals. It contends that the plaintiff lacked standing, that it was denied an adequate opportunity to defend its interests and that the doctrine of sovereign immunity bars the relief ordered. We find the appellants' arguments to be without merit and affirm the judgment of the district court except with respect to the back pay awarded.

II FINDINGS OF DISCRIMINATION

The Arkansas Army National Guard is staffed by both military and civilian personnel. The military personnel include all "members" of the National Guard, most of whom are actively associated with the Guard only on weekends and during a two-week training period each summer. Some military personnel are on full-time military duty.

The Guard employs two types of civilian personnel: federal technicians and state employees. The federal technicians must be, with a few exceptions, members of the National Guard. As civilian federal employees, they are subject to civil service regulations and are paid with federal funds. Many of the approximately 986 federal technician positions are jobs of a technical nature or involve specialized skills.

The state employees, of which there are approximately 115, are not required to be members of the National Guard. They fill positions created by the State of Arkansas and may be paid with either state or federal funds. Federal funds used to pay state employees' salaries are placed in the State Treasury and are disbursed in accordance with appropriations bills passed by the state's General Assembly. Most of the state employees are clerical workers or lower-level administrative personnel.

The military head of the Arkansas National Guard is the Adjutant General, an officer appointed by the Governor of Arkansas. The Adjutant General supervises and has appointing authority over all personnel of the Guard, including military members and federal and state employees.

The lower court found, and it is not disputed, that Corenna Taylor was a state employee when she worked in the mail room and was, therefore, protected by Title VII. The court held that the plaintiff had been constructively discharged from the mail room in violation of the Act. After the limited retrial, the court concluded that Taylor's tenure as a recruiter was full-time military duty. The court held that the deliberate racial discrimination Taylor suffered while on military duty was actionable under 42 U.S.C. § 1981. The latter ruling is challenged on appeal and will be discussed in detail below.

A. Taylor's Resignation from Mail Room Clerk Position.

The defendant does not contend that the district court erred in holding him liable under Title VII for the constructive discharge of Corenna Taylor from her mail room position; it would be futile to do so. We, nevertheless, recite some of the overwhelming evidence relating to the "dismal" racial atmosphere at the Arkansas Military Department to serve as a backdrop for this opinion.

The record clearly supports the district court's finding that Taylor's resignation "was forced by the racial atmosphere existing in this Department; that she stayed as long as any self-respecting black person could have been expected to stay; and specifically that a white woman in her position would not have been treated in the same fashion."

A number of black employees of the Guard, whose testimony was specifically credited by the district court, recounted numerous instances in which they had been subjected to racial slurs, epithets and jokes. Marcellus Person, an EEOC counselor with the Guard, described the racial atmosphere at Camp Robinson as "degrading." On frequent occasions, the terms "niggers" and "spooks" were used in his presence. He was told by co-workers that he was a "token" and was called that by some. John Watson, who in 1971 became the first black The pervasive atmosphere of prejudice in the National Guard was exacerbated for the plaintiff by the nature of her position. Taylor testified that the mail room job involved a great deal of heavy lifting, an aspect of the job that had not been explained to her before she took it. She felt that this physically demanding work was assigned to her because she was black. This assertion was buttressed by subsequent testimony: Corenna's two predecessors in the mail room, and the man hired to take her place were all black. Colonel Burdell, Director of Personnel and Administration for the Adjutant General, could think of no other job at Camp Robinson, except perhaps in the security guard force, that has had such a high percentage of black participation. There was also evidence that this traditionally "black job" was under-classified.

ever employed by the Guard, testified that his supervisor had physically threatened him, supposedly in jest, and consistently harassed him. Larry Hale, hired to replace Corenna Taylor in the mail room, was frequently called an "uppity nigger" or "smart nigger." He stated that he and other black males were called "boy;" the white males were not so addressed. Hale also described a racially-charged incident that occurred while h...