673 F.2d 798 (5th Cir. 1982), 80-3764, Payne v. Travenol Laboratories, Inc.

Docket Nº:80-3764.
Citation:673 F.2d 798
Party Name:Willie Mae PAYNE, et al., etc., Plaintiffs-Appellees Cross-Appellants, v. TRAVENOL LABORATORIES, INC. and Baxter Laboratories, Inc., Defendants- Appellants Cross-Appellees.
Case Date:April 22, 1982
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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673 F.2d 798 (5th Cir. 1982)

Willie Mae PAYNE, et al., etc., Plaintiffs-Appellees Cross-Appellants,

v.

TRAVENOL LABORATORIES, INC. and Baxter Laboratories, Inc.,

Defendants- Appellants Cross-Appellees.

No. 80-3764.

United States Court of Appeals, Fifth Circuit

April 22, 1982

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James L. Robertson, Oxford, Miss., Stephen N. Shulman, Mark C. Ellenberg, Arnold B. Podgorsky, Washington, D. C., for defendants-appellants cross-appellees.

Nausead Stewart, Jackson, Miss., Richard T. Seymour, Washington, D. C., for plaintiffs-appellees cross-appellants.

Appeals from the United States District Court for the Northern District of Mississippi.

Before CLARK, Chief Judge, GOLDBERG and WILLIAMS, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

For the second time, we are asked to resolve some of the issues arising in this protracted employment discrimination class action between Willie Mae Payne and Travenol Laboratories, Inc. The district court issued a decree on August 18, 1980. The

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decree, while leaving unfinished the back pay segment of this case, largely concludes the formulation of injunctive relief. Both parties have appealed urging numerous errors, major and minor. 1 Having journeyed deep into the record of this case to assess the merits of both parties' objections, we conclude that the bulk of the decree of the district court should be affirmed. We disagree with certain aspects of the decree, however, and therefore remand the case for further proceedings.

I. BACKGROUND

Nearly a decade old at the time of this appeal, this case began on March 2, 1972 when Willie Mae Payne, a black female, and several other named plaintiffs obtained right-to-sue letters and filed suit under Title VII, 42 U.S.C. § 2000e et seq. and also filed claims under 42 U.S.C. § 1981 against Travenol Laboratories. Payne attacked a battery of Travenol's employment practices at its Cleveland, Mississippi, pharmaceutical plant as being racially discriminatory. The complaint was later amended to include charges of sex discrimination as well.

Travenol, the largest employer in Cleveland, Mississippi, manufactures and packages drugs, particularly intravenous solutions, for distribution to medical facilities. The solutions are packaged on an assembly line by employees called "operatives". Two types of employees work on the assembly line: assemblers, who fill, cap, and inspect the bottles, and material handlers, who orchestrate and guide the flow of materials through the assembly process. Material handlers are compensated considerably better than assemblers, whose hourly pay is only slightly above the janitorial or custodial staff. The assembler and material handler positions require no special skills or experience.

Travenol employed no blacks at its plant until prodded by the affirmative action office of the Navy in 1964 or 1965. At that point, Travenol began to hire blacks. Simultaneously, Travenol required all applicants to be screened and referred by the Mississippi State Employment Service (MSES) and imposed a requirement that all applicants have a tenth-grade education or General Equivalency Diploma. Travenol then interviewed referred candidates and hired upon subjective appraisals of their alertness, comprehension, and cleanliness. Until 1968, Travenol had MSES refer only males for the material handler position and females for the assembler position. Travenol discontinued its reliance on MSES in 1971, but retained the tenth-grade requirement. Travenol also employs clerks, technicians, and managers. These positions have been filled both by promotions and by outside hiring. Travenol required a twelfth-grade education or General Equivalency Diploma for some of these positions and a college degree for others. Travenol's staff above the operative level was almost exclusively white until 1974.

In 1975 the case was tried on the issue of liability, Payne representing a class of black females. The district court rendered its decision in 1976, finding that Travenol had discriminated on the basis of race and sex. 2 The court enjoined certain employment practices and directed the parties to submit suggestions on further relief, including constructive seniority and backpay.

On appeal, we vacated two aspects of the injunction and affirmed two others. 3 First, we held that the district court's blanket injunction against Travenol not to discriminate on the basis of race or gender in its employment practices was not specific enough to satisfy Federal Rule of Civil Procedure 65(d). Second, we held that no named plaintiff had standing to challenge

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Travenol's requirement of a tenth grade education for its entry-level assembly-line positions and vacated the district court's conclusion that the tenth-grade requirement violated Title VII. Third, we affirmed the district court's injunction against Travenol's use of a twelfth-grade requirement for certain positions above entry-level. Fourth, we affirmed the injunction against Travenol's college degree requirement for other, higher-level positions. 4

After our decision in Payne I, the district court directed that a magistrate hear the parties' suggestions for further relief and devise a recommended order. After ruling on numerous discovery skirmishes, the magistrate prepared a report and a proposed decree which the district court adopted in full. The decree is interlocutory in that it does not provide for a back-pay award.

The decree is tailored to provide injunctive relief for the discrimination that the district court had found in its 1976 decision, taking into account our decision in 1978 and hearings held before the magistrate in 1980. Paragraph one provides that the district court will retain jurisdiction for two years to supervise the decree, provided that back-pay litigation is concluded by that date. Paragraph two reaffirms the district court's earlier grant of injunctive relief against Travenol's use of twelfth-grade and college-degree requirements for certain positions above entry level. Paragraph three prohibits Travenol from discriminating subjectively on the basis of race or sex in violation of Title VII or § 1981 in its hiring and promotions decisions.

Paragraphs four, five, six, seven, and nine spell out more specific actions that Travenol must take to remedy its discriminatory hiring and promotion practices. Paragraph four, for example, prohibits Travenol from establishing new facially-neutral job prerequisites except in accord with guidelines promulgated by the Equal Employment Opportunity Commission. Paragraph seven requires Travenol to post notice of job vacancies, with details about salary, shift, and other matters.

Paragraph eight provides that Travenol must write to all unhired applicant class members who had applied by February 19, 1976, and invite them to reapply for work at Travenol. Those class members who respond are to be given priority over other applicants until they have refused an offer, accepted an offer, or been rejected on legitimate grounds. Travenol is also required to sort out those applicants who were qualified for clerical work and who indicated an interest in it, and invite them to apply for clerical jobs, giving them priority over other applicants.

Paragraph ten provides for granting constructive seniority to applicant class members who were rejected for discriminatory reasons, and employee class members whose date of hire was delayed by discrimination. Paragraph eleven provides for the use of an employee class member's constructive seniority date in recalling employees from layoff. The remaining paragraphs provide the details for administering the decree.

Both parties object to portions of the decree. First, Payne argues that the decree denies her relief because the district court erroneously excluded black males from the class she represents and also because it erroneously established March 3, 1970 as the opening date of the class. She requests that we include black males in the class and move the opening date of the class back to the period of limitations for Title VII and for § 1981. Second, Travenol argues that the plaintiffs failed to prove discrimination in hiring or promotions, and asks us to reverse any relief in the decree on these issues. Payne argues that she proved discrimination in areas in which the district court erroneously denied her relief, and asks us to broaden the decree accordingly. Third, both parties lodge various objections to the form of the decree. Travenol claims that the decree affords too much relief, if discrimination was properly found. Payne

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argues that the decree affords too little relief. Our appellate jurisdiction to review this interlocutory decree rests on 28 U.S.C. § 1292(a) (1). We address each issue in turn.

II. LIMITATIONS ON THE CLASS CERTIFIED BY THE DISTRICT COURT

The district court certified a class in 1972 to include all black female employees and applicants at Travenol's plant, but limited the class to exclude all applicants who applied before March 3, 1970, and did not reapply thereafter. As initially certified, the class also included black male employees and applicants, but in 1974 the court granted the defendant's motion to exclude black males from the class. The court made its class certification final in December, 1976, and authorized an interlocutory appeal of this order under 28 U.S.C.A. § 1292(b), but we declined to accept the appeal. The grant of injunctive relief that we review today, therefore, awards relief only to those members of the class finally certified by order of the district court in December, 1976. 5

Payne argues that the district court denied injunctive relief to two groups of persons...

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