Locke v. Kansas City Power and Light Co.
| Decision Date | 28 September 1981 |
| Docket Number | No. 80-1402,80-1402 |
| Citation | 660 F.2d 359 |
| Parties | 26 Fair Empl.Prac.Cas. 1549, 27 Empl. Prac. Dec. P 32,151 Julius B. LOCKE, Appellee, v. KANSAS CITY POWER AND LIGHT COMPANY, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Samuel I. McHenry, Kansas City, Mo., for appellee.
Michael F. Delaney, Terry L. Karnaze, Kansas City, Mo., for appellant Kansas City Power & Light Co.
Before BRIGHT, STEPHENSON and McMILLIAN, Circuit Judges.
Kansas City Power & Light Co. (KCP&L) appeals from a judgment entered in the District Court 1 for the Western District of Missouri finding that KCP&L unlawfully discriminated against appellee Julius B. Locke on the basis of his race. The district court found that KCP&L had denied appellee employment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and awarded appellee backpay, reinstatement and attorney's fees.
For reversal appellant argues that the district court erred in (1) requiring appellant to show by a "preponderance of evidence" a legitimate, nondiscriminatory reason for refusing Locke's bid for employment; (2) finding the reason given by KCP&L for refusing Locke's bid to be a pretext; (3) ordering appellee reinstated to a higher position than that for which he had applied, with backpay computed, in part, at a rate commensurate with that higher position; and (4) eliminating the probationary period applied to all other employees.
For the reasons discussed below, we affirm in part and reverse in part and remand the case to the district court for further consideration of the remedy issue.
On November 3, 1976, KCP&L hired Locke, a black male, as a "Temporary Plant Helper" at KCP&L's Hawthorn generating facility to work for a period of sixty days. Locke worked the full sixty-day term which ended on December 30, 1976. Shortly thereafter, on January 26, 1977, KCP&L rehired Locke, again as a "Temporary Plant Helper," this time for a period of ninety days. Locke completed this term of employment on April 27, 1977.
Temporary employees are hired by KCP&L for a specified period of time at the end of which the company automatically lays off the temporary employee unless he or she is transferred to a permanent position. (By contrast, in a permanent position at KCP&L after a probationary period the employee attains full permanent status, under which the employee automatically stays on unless appropriate steps are taken to end employment.) 2 While employed as a temporary plant helper at KCP&L, Locke applied to fill openings in three permanent job positions one in November, 1976, for a janitor, and two in March, 1977, for plant helpers. Each time KCP&L returned the application to Locke, indicating that it would not be considered because a company policy prohibited accepting applications from temporary employees until the end of their temporary stints. Concerning the November, 1976, application, the company explained it had been filed after the closing date on the job announcement for accepting applications and that Locke was not eligible to apply until his temporary job ended. Concerning the March, 1977, applications, KCP&L explained only that Locke was not eligible to apply until his temporary job ended. 3 The company personnel department returned each application to Locke with an explanatory note dated the same day the application was submitted.
KCP&L continued to seek applicants for the available positions and ultimately filled them. Acting contrary to company policy as it was represented to Locke, KCP&L hired three white male temporary employees for the permanent positions which Locke also had sought. The applications of these temporary employees were considered even before their projects had been substantially completed.
Locke's second period of temporary employment ended April 27, 1977, and he was not rehired by the company. On May 9, 1977, Locke filed a charge of discrimination with the Equal Employment Opportunity Commission, alleging generally that the company had discriminated against him on the basis of race and specifically that a "probationary period" was used as a pretext to discharge him. The EEOC processed this charge and found no reasonable cause to believe that Locke's allegations were true and on June 7, 1978, notified Locke of his right to sue. Locke commenced this proceeding on August 29, 1978, complaining that KCP&L had discriminatorily failed to hire him into a permanent position and discharged him from temporary employment on the basis of race, all in violation of Title VII of the Civil Rights Act of 1964 and of 42 U.S.C. § 1981. 4
At trial it was stipulated that KCP&L had hired into the permanent plant helper positions in question three white males who had, like Locke, been temporary employees at the time of their applications and, like Locke, had not yet completed their temporary stints. KCP&L did not, however, attempt to justify its failure to hire Locke on the basis of the supposed policy against accepting applications from temporary workers before their jobs ended. 5 Instead, the company offered a new justification that it had actually given consideration to appellant's application and decided to reject him because of poor work performance. In particular KCP&L relied upon testimony by Glendon Paul Curry, the maintenance supervisor at the plant where Locke worked, that Curry had decided not to accept Locke's bid on the permanent plant helper jobs because of Locke's poor performance as a temporary employee. Curry testified that he had reports from foremen that Locke had been away from his work station, had argued with them, and had refused work assignments from more senior employees authorized by the foremen to direct him. The company also presented testimony of foremen and workers as direct evidence of Locke's poor performance.
The district court, however, determined this explanation was a pretext for a number of reasons which the court specified in an oral decision delivered from the bench. 6 The company had obtained written reports from foremen on Locke's supposedly poor performance after Locke's employment ended; the timing, of course, casts some doubt on whether those reports were actually considered in deciding not to give a permanent position to Locke. Moreover, KCP&L witnesses could not name any other employee who had been the subject of such post-termination reports. Locke's supposedly poor performance had not been grounds for failing to rehire him for a second period of temporary employment or for dismissing him. In the district court's view Locke's supposed absence from his work station and failure to follow orders from senior nonsupervisory workers would not be unusual in a job like plant helper where new workers were shuffled between various tasks, some requiring movement around various areas of the plant. It was not clear from the record which KCP&L official was responsible for the decisions about Locke's future employment or what standards or considerations were normally applied in making the decision. 7 Finally, KCP&L's proffered justification for the failure to hire Locke was entirely different from what Locke was told when his application was returned to him.
The district court concluded that Locke had established a prima facie case of racial discrimination under the test of McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) (McDonnell Douglas), and that the reasons proffered by KCP&L for denying him a permanent position were pretextual. In its memorandum the court specified also that the "claim that (Locke) was less than a perfect employee fails to rebut (Locke's) prima facie case as it isn't necessary for (Locke) to 'show perfect performance or even average performance,' " Locke v. Kansas City Power & Light Co., No. 78-0636-CV-W-1 (W.D.Mo. Apr. 19, 1980), slip op. at 3, citing Flowers v. Crouch-Walker Corp., 552 F.2d 1277 (7th Cir. 1977), and that KCP&L's "claim that (Locke) was not entitled to further employment because of an alleged failure to get along with his co-workers fails to rebut (Locke's) prima facie case as (Locke) is not required to have a 'pleasing personality' in order to be entitled to further employment." Locke v. Kansas City Power & Light Co., supra, slip op. at 3, citing Kyriazi v. Western Electric Co., 461 F.Supp. 894 (D.N.J.1978). The district court also concluded that KCP&L had "failed to show by a 'preponderance of the evidence' that (the) failure to accept plaintiff's bid for regular employment was for a legitimate nondiscriminatory reason." Locke v. Kansas City Power & Light Co., supra, slip op. at 4, citing Vanguard Justice Society v. Hughes, 471 F.Supp. 670 (D.Md.1979).
Accordingly, the district court found that KCP&L had violated Title VII by denying Locke a permanent plant helper position as of April, 1977, because of his race. In fashioning a remedy the court sought to put Locke in the position he would have occupied but for the discrimination against him. As the white temporary employees hired in place of Locke had all been promoted from plant helper to relief man positions at KCP&L, the district court ruled that Locke also was entitled to a relief man position. The court also held that Locke would not be required to undergo the normal six-month probationary period for new permanent employees. Finally, the court awarded backpay from April 27, 1977, the date KCP&L filled the permanent plant helper position sought by Locke. Backpay was computed at the rate for a plant helper until January 18, 1978 (the date found by the court to be the "average date" for promotion to relief man of the three white plant helpers hired in April, 1977, ahead of Locke), and after January 18, 1978, at the rate for a relief man. 8
The district court found that KCP&L's failure to hire Locke was racially discriminatory under a theory of...
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