706 F.2d 608 (5th Cir. 1983), 81-2206, Carpenter v. Stephen F. Austin State University

Docket Nº:81-2206.
Citation:706 F.2d 608
Party Name:Annie Mae CARPENTER, et al., Plaintiffs-Appellees, Cross-Appellants, v. STEPHEN F. AUSTIN STATE UNIVERSITY, et al., Defendants-Appellants, Cross-Appellees.
Case Date:June 06, 1983
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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706 F.2d 608 (5th Cir. 1983)

Annie Mae CARPENTER, et al., Plaintiffs-Appellees, Cross-Appellants,

v.

STEPHEN F. AUSTIN STATE UNIVERSITY, et al.,

Defendants-Appellants, Cross-Appellees.

No. 81-2206.

United States Court of Appeals, Fifth Circuit

June 6, 1983

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Mark White, Atty. Gen., Laura S. Martin, Asst. Atty. Gen., Austin, Tex., for defendants-appellants.

Larry R. Daves, Tyler, Tex., for plaintiffs-appellees.

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Appeals from the United States District Court for the Eastern District of Texas.

Before WISDOM, RUBIN and TATE, Circuit Judges.

TATE, Circuit Judge:

A class of black and female service/maintenance and clerical employees of the defendant Stephen F. Austin State University (the University) brought suit against their employer, contending that the University engaged in race and sex discrimination in violation of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. (Title VII) and the fourteenth amendment to the Constitution. 1 On appeal, both parties contest the findings of and relief granted by the district court. The University contends that the lower court should not have certified such a broad class nor granted injunctive relief to mitigate the effects of the channeling of black and female employees into the lower paid clerical and custodial positions. The plaintiff class asserts that the district court should have awarded back pay, front pay, and interim attorneys' fees in addition to injunctive relief and that the court erred in finding no discrimination in terminations of blacks and females and in the administration of the University's retirement system.

We affirm the lower court's judgment with respect to the issues of channeling, termination, and retirement, but we remand for findings on the discriminatory intent and for monetary relief and interim attorneys' fees determinations, if Title VII relief is to be afforded.

Procedural History

The named plaintiffs are two black females, Carpenter and Hunt, terminated from University employment, and a black male, Williams, retired in 1978, all of whom were former hourly employees of the University in its service/maintenance department. They exhausted all administrative prerequisites to filing a lawsuit under the Equal Employment Opportunity Act (the Act or Title VII). 2 The defendant University, 3 as a state government agency which "affects commerce" within the meaning of 42 U.S.C. Sec. 2000e(b), is an employer subject to coverage of the Act from March 24, 1972.

On September 2, 1976, the district court certified a class of all "past, present, and prospective black and female employees of the University who have been denied or will be denied employment with the University since November 11, 1971." On review of a motion for decertification prior to trial, the court limited the membership of the class to "wage and hourly employees" of the University. This characterization excluded salaried clerical and secretarial employees, about whom evidence relating to sex discrimination was adduced at the liability phase of the trial. After hearing this evidence, the court redefined the class as "all past, present, and prospective black and female

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employees who would be subject to job descriptions in Plaintiffs' Exhibits 29 and 30 [service/maintenance and clerical employees] and/or subject to the Classified Pay Plan of said University who have been or will be denied employment or benefits with the University since November 11, 1971."

The class claims, contained in the original and three amended complaints, encompassed an across-the-board attack on the University's alleged racially and sexually discriminatory employment policies and practices. The named plaintiffs claimed that the University unlawfully "channelled" blacks and women to lower paying positions through its hiring and initial assignment procedures, and thereafter maintained discriminatory promotion, transfer, pay, termination and retirement programs. In the liability phase of the trial the plaintiffs introduced statistical data of the high percentages of blacks and women in the lower paying service/maintenance and clerical positions, the absence of these protected groups in higher levels, and the lack of transfer between job ranks and classifications. The plaintiffs presented anecdotal evidence of specific instances of discriminatory policies and practices. The plaintiffs also showed the non-coverage of hourly employees in the University-supported Teachers Retirement System until November 1972, the subsequent exclusion of these classified employees from an Optional Retirement Plan also maintained by the University, and the retirement system's rules that were alleged to have a disparate impact on the protected classes.

The district court entered judgment for the employer University on the retirement, equal pay, and termination issues and granted judgment to the plaintiffs on the channeling and promotion issues. It found that the University workforce was racially stratified and sexually stereotyped, that the higher level and paid employees are predominantly white males, and that there were "dramatic overutilizations" of women and blacks in the lower paying, lower skilled jobs. The court found that several distinct employment practices had a disparate impact on blacks and women: (1) the development, use and subjective implementation of job qualifications for which the University made no showing of job-relatedness; (2) the development and use of a classified pay plan for hourly employees in which blacks and women were in lower-paying job classifications, creating wage differentials for which the University offered no justification; and (3) subjectivity in implementation of job qualifications for hiring and promotion and for placement of classes of employees on the compensation scale.

The court then indicated its preference for non-monetary institutional responses to the findings of liability and instructed the parties to make good faith efforts to achieve conciliation. The voluntary attempts to devise relief failed. Following a remedy hearing, the district court entered an order appointing a master to oversee the implementation of injunctive relief that had the goal of changing institutional practices and policies. The court ordered the University to validate and reform job qualification descriptions, placement, and compensation; to implement a preference system for currently-employed class members, advancing them into higher level positions for which they qualify; and to institute appropriate written guidelines and record-keeping procedures for supervisors and others who make hiring and promotional decisions. The court, however, refused to award back or front pay relief, or interim attorneys' fees, as requested by the class.

Employment Practices at the University

Stephen F. Austin State University, located in Nacogdoches, Texas, a town with a population of approximately thirty thousand, has a student enrollment of approximately eleven thousand. Personnel are hired by the University in three general categories: academic faculty, administrative executives, and the classified staff. No complaint is made of discriminatory employment practices relating to the academic faculty. The plaintiffs' complaints relate to the University's practices regarding the administrative and the classified employees.

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With regard to the latter two categories, the facts as of 1979 show:

There were fewer than 100 employees (two blacks and twenty-one white females) in the administrative category, which includes the President of the University, all department heads, and most of the supervisory positions.

The more than 800 classified employees are employed in both salaried and hourly positions. Within the classified ranks a majority of the hourly employees are black and female and are assigned to service/maintenance positions, while a majority of salaried employees are white. Black and female employees each constituted slightly less than one-half the classified staff in 1979, which included both salaried and hourly. However, blacks held 77.7% of the hourly non-supervisory positions and 50% of the hourly supervisory positions, while women held 60.9% of the hourly non-supervisory positions and 53.1% of the hourly non-supervisory positions and 53.1% of the hourly supervisory positions. In the salaried non-supervisor area, 13.2% were black employees and 75% were female; for salaried supervisor slots, blacks constituted 6.8% and women constituted 38.6%. These percentages had not changed significantly since 1970.

The service/maintenance category--food service, custodial, garbage crew, grounds workers, and supervisors--which includes over one-half of the classified positions, is predominantly black (337 of 405 positions in 1979 or 83.2%, decreasing from 87.8% in 1972) and female (257 of 405 positions in 1979). In 1979, nine of the ten supervisors were white, and eight of them were male. The clerical categories are composed almost exclusively of women; in categorizations encompassing nonsupervisory clerks, secretaries and library workers, women held 156 out of 166 jobs in 1979. The separate job classifications are predominantly segregated according to race and sex, but became decreasingly so during the 1970's. In 1970, 70 job classifications were all white, 5 all black, and 14 mixed; in 1979, 89 were all white, 5 all black, and 31 mixed. In 1970, 38 job classifications were all male, 37 all female, and 14 mixed; in 1979, 52 were all male, 39 all female, and 39 mixed.

This racially and sexually stratified composition of the classified employees in lower paid positions is alleged to result from institutional employment practices...

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