Lilly v. Harris-Teeter Supermarket
| Decision Date | 14 October 1983 |
| Docket Number | HARRIS-TEETER,No. 82-1831,82-1831 |
| Citation | 720 F.2d 326 |
| Parties | 33 Fair Empl.Prac.Cas. 195, 32 Empl. Prac. Dec. P 33,856 Paul LILLY, individually and on behalf of all others similarly situated, Christopher McKinney, John LeGrand, Ken Bailey, Frank Sullivan, James Mobley, Jerome Gary, Curtis Jones, Roy Torrence, John Johnson, Willie Hunt, Roosevelt Patterson, Willie Covington, Michael McVay, Richard Gregory, individually and on behalf of all others similarly situated, Edward Porter, individually and on behalf of all others similarly situated, Appellees, and Phillip Reed, Shirley Gatewood, Woodrow McManus, Hazel Fisher, William Carrothers, Tresevant Goodwin, Richard Burch, Mack Ervin, Barbara Anderson, Austin Pharr, Therrell McMoore, Plaintiffs, v.SUPERMARKET, a corporation, Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
John O. Pollard, Charlotte, N.C. (Richard F. Kane, Blakeney, Alexander & Machen, Charlotte, N.C., on brief), for appellant.
Michael A. Sheely, Charlotte, N.C. (Sheely & Blum, Charlotte, N.C., on brief), for appellees.
Before WINTER, Chief Judge, SPROUSE, Circuit Judge, and KELLAM, * District Judge.
In this class action charging racial discrimination in employment, Harris-Teeter Super Markets, Inc., (Harris-Teeter) appeals from a judgment of the district court entered upon findings that it had engaged in a pattern or practice of racial discrimination in terminations and promotions at its Mecklenburg County, North Carolina warehouse and retail stores, and that it had been guilty of specific instances of racial discrimination against thirteen of the named individual employees. We conclude that the suit was properly certified as a class action with respect to both promotions and terminations, and that various individual plaintiffs were properly permitted to intervene. We affirm the finding of a pattern or practice of racial discrimination in terminations, but reverse the finding of a pattern or practice of discrimination in promotions. We affirm the judgments of discrimination as to three named plaintiffs, but remand for further proceedings as to the individual plaintiffs alleging discrimination in promotions.
Harris-Teeter is a retail grocery chain with offices, retail stores, and a warehouse located in Mecklenburg County. In January 1975, Harris-Teeter discharged Paul Lilly, a black warehouse employee. Lilly filed a charge with the Equal Employment Opportunity Commission (EEOC) alleging that he had been discharged for protesting racially discriminatory treatment on the job and that Harris-Teeter was engaged in systematic discrimination against blacks in its termination practices. Lilly later amended his EEOC charge to include allegations of systematic discrimination against blacks in hiring, promotions, personnel procedures, terminations, and supervisory practices. Lilly was subsequently issued a right-to-sue letter by EEOC and, in June 1976, he commenced the present action.
Lilly's complaint, brought under both 42 U.S.C. Secs. 1981 and 2000e et seq., alleged that he had been terminated because of his race and in retaliation for protesting racial discrimination. He also claimed to represent a class of black Harris-Teeter employees who, from July 1974 on, had suffered racial discrimination in hiring, promotions, interviewing, terminations, supervision, and discipline. In support of his subsequent motion for class certification, Lilly presented statistical evidence purporting to show disparities in job classification and cited specific examples of alleged discrimination in promotions and terminations. The district court thereupon tentatively certified the class as requested.
In April 1979, twenty black Harris-Teeter employees filed a joint motion for permission to intervene as plaintiffs, in order to present their individual claims of racial discrimination. The claims of these individuals encompassed alleged discrimination in terminations, promotions, job placement, pay, and transfers. Although none of these individuals had exhausted their administrative (EEOC) remedies, the district court granted the motion for joint intervention. In addition, the district court consolidated the case with those of two other black Harris-Teeter employees, Gregory and Porter, who were alleging racial discrimination in demotions and hiring, respectively. Gregory and Porter had exhausted their EEOC remedies prior to filing their individual suits. Subsequently, the district court certified all twenty intervenors and Gregory as class representatives.
A bench trial was held from January through March, 1980. In August, 1980, the district court, 503 F.Supp. 29, filed a "Memorandum of Decision," in which the court found a generalized pattern of racial discrimination in hiring, promotions, and terminations. As practices that effectuated this discrimination, the court found that there were no written job descriptions, promotion criteria, job evaluations, or list of employees wanting to change jobs, that job openings were not posted, that the company rule that limited eligibility for promotions to employees in the same department and shift as the opening was strictly enforced as to blacks but not as to whites, that refusals by blacks to take on jobs were carefully remembered, although they were never asked if they had changed their minds, and that claimed previous job experience of blacks was either forgotten or disbelieved, while that of whites was credited and utilized. The district court also found that the statistical evidence broadly supported the court's conclusion from the individualized testimony that blacks had less chance of getting good jobs and promotions than did whites. The district court, in addition, found that individual instances of discrimination had been demonstrated as to fourteen of the named plaintiffs, but not as to the other ten. Finally, the district court instructed plaintiffs' counsel to prepare proposed findings of fact and conclusions of law as to the class-wide issues and as to the prevailing individuals; defense counsel were instructed to do likewise for those individuals found not to be entitled to relief. 1
Plaintiffs' counsel subsequently submitted lengthy proposed findings of fact and conclusions of law; the district court requested that they be condensed and invited defense counsel to comment on the proposed opinion. Defendant chose not to do so. Plaintiffs then submitted a revised draft. The district court returned this draft to plaintiffs in marked-up form, instructing them to incorporate various editorial changes and to reverse the previous finding of discrimination as to one of the intervenors. Although this was the only major substantive change, notations on the marked-up draft show that the district court checked the proposed findings of fact against the testimony in the record and approved each paragraph individually. The district court, in returning the draft, again requested that defendant submit any comments on or objections to the proposed opinion. Defendant once again chose not to do so. The proposed opinion, as amended, was then adopted by the district court, 545 F.Supp. 686.
In that final opinion, the district court first made permanent its class certification order. It found that the claims of persons alleging discrimination in promotions and terminations were sufficiently similar to justify single-class treatment. 2 The district court excluded from the certified class, however, employees at the company's offices and employees alleging discrimination in hiring for lack of proper class representatives. As to the merits of the terminations claim, the court found that the supervisory force was overwhelmingly white and exercised virtually unlimited discretion, in that the only written statement of Harris-Teeter's termination policy was a list of "don'ts" whose violation might or might not be grounds for an indeterminate amount of discipline. The district court then found that both the statistical data, which showed that the actual number of blacks involuntarily terminated for cause from 1974 through 1978 was almost ten standard deviations above what would be expected from their proportion of the workforce, and the testimony at trial, which revealed several instances in which blacks had been terminated while equally or even more serious misbehavior by whites had been tolerated, demonstrated that this unlimited discretion had been exercised in a racially discriminatory manner. Finding no satisfactory explanation from Harris-Teeter for the statistical disparities and crediting the direct evidence of discriminatory treatment, the district court concluded that Harris-Teeter had engaged in a pattern or practice of racial discrimination in its terminations policy.
As to the merits of the promotions claim, the district court again found that the overwhelmingly white supervisory force had wielded unlimited discretion, in that there were no written job descriptions or regular system of job performance evaluation, job posting was begun only in 1979, and the promotions criteria (such as "attitude" and "initiative") were vague and subjective. The district court then found that both the statistical evidence, which showed that the black promotion rate was less than 70 percent of the white promotion rate, and the direct testimony revealed that this discretion was discriminatorily exercised. The court rejected Harris-Teeter's explanations, ruling that the company's "same department/same shift" policy had been applied only to blacks, that only the refusal by blacks to take certain jobs was remembered and held against them, although they were never asked if they had changed their minds, and that previous job experience of blacks was ignored or disbelieved while that of whites was utilized. In addition, the district court found, on the basis of statistical data, that the number of blacks hired by...
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