756 F.2d 524 (7th Cir. 1985), 82-2328, Coates v. Johnson & Johnson

Docket Nº:82-2328, 82-2329.
Citation:756 F.2d 524
Party Name:1 Fed.R.Serv.3d 678, Wesley COATES, individually and on behalf of all others similarly situated, Plaintiff-Appellant, and Equal Employment Opportunity Commission, Intervening-Plaintiff-Appellant, v. JOHNSON & JOHNSON, et al., Defendants-Appellees.
Case Date:March 04, 1985
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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756 F.2d 524 (7th Cir. 1985)

1 Fed.R.Serv.3d 678,

Wesley COATES, individually and on behalf of all others

similarly situated, Plaintiff-Appellant,


Equal Employment Opportunity Commission,



JOHNSON & JOHNSON, et al., Defendants-Appellees.

Nos. 82-2328, 82-2329.

United States Court of Appeals, Seventh Circuit

March 4, 1985

Argued Nov. 7, 1983.

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Bridget Arimond and Judson H. Miner, Davis, Miner, Barnhill & Calland, Chicago, Ill., for plaintiff-appellant.

Michael G. Cleveland, Vedder, Price, Kaufman, Kammholz, Chicago, Ill., for defendants-appellees.

Judy T. Ellis, E.E.O.C., Gen. Counsel Appellate Section, Washington, D.C., for intervening-plaintiff-appellant.

Before WOOD and CUDAHY, Circuit Judges, and CAMPBELL, Senior District Judge. [*]

HARLINGTON WOOD, Jr., Circuit Judge.

This appeal arises out of an individual and class action brought under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Secs. 2000e et seq. (1976 & Supp. V 1981), and the Civil Rights Act of 1866, 42 U.S.C. Sec. 1981 (1976), charging racial discrimination in the pattern and practice of employee discharges between 1974 and 1981 at defendants-appellees' Midwest Diaper Plant formerly in Park Forest South, Illinois. Plaintiffs-appellants are Wesley Coates, a black employee who commenced this litigation individually after the defendants fired him in April, 1975, members of a class certified as all blacks discharged from the plant from 1974 until the plant closed in 1981, and intervenor Equal Employment Opportunity Commission (EEOC). Plaintiffs appeal from the decision of the trial court finding that defendants did not engage in a pattern or practice of discrimination against blacks in discharging members of the certified class or the class representative, Wesley Coates. Coates v. Johnson & Johnson, 28 Empl.Prac.Dec. (CCH) p 32,664 (N.D.Ill.1982). 1 Plaintiffs allege that

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the district court erred in its consideration of plaintiffs' statistical and nonstatistical evidence and various other issues.



Defendants constructed the plant in 1973 and operated it until March, 1981 when it was closed for financial reasons. The location for the plant had been selected because the company sought an experienced and racially-integrated work force. As a result of an affirmative action plan developed with the general contractor building the plant, approximately 25% of the work was subcontracted to minority-controlled firms. Although the construction trades were not known at that time for their enthusiasm for an integrated work force, the company managed to obtain a construction work force that was 25% to 30% black. After construction, the total work force at the plant ranged from a low of 437 employees in 1973 to a high of 784 in 1980. The percentage of blacks in the work force ranged from a low of 19.4% in 1973 when the plant opened, to a high of 27% in 1979. The management of the plant consisted of first-line supervisors, department managers, production managers and superintendents, and a plant manager. Over the approximately eight-year life of the plant, a very significant percentage of supervisors and upper-level managers were black, generally increasing each year until just before closing, when the high was reached of 41% black managers and 8% black supervisors. One of the production managers, Ather Williams, Jr., a black, was promoted in 1976 to plant manager, replacing a prior white plant manager, and in 1980 Williams was promoted to director of operations, although he was not replaced as plant manager.

There were two general categories of employees: salaried employees (professional/technical, clerical) and wage employees (production workers). The conditions of employment of the wage employees were governed by successive union bargaining agreements, but wage employees were not covered by the grievance procedures of the collective bargaining agreement until after a sixty-day probationary period. In 1976, the plant management adopted progressive disciplinary and discharge procedures for all nonprobationary wage and salaried employees. Severity of the discipline increased with the severity of the offense. The more severe category (Group I) included offenses such as insubordination, sleeping on the job, fighting and safety violations; a Group I violation could result in immediate suspension and later discharge. The less severe offenses (Group II) included absenteeism, poor performance and minor safety violations. A Group II violation could result in counseling, reprimand, or suspension and even discharge if repeated. See Coates (FOF 128-45).

First-line supervisors had direct responsibility for the administration of discipline. Discipline matters could proceed through the grievance procedures to the plant manager, who could uphold or reverse the disciplinary action. If the union was not satisfied, it could proceed to binding arbitration. The successive collective bargaining agreements all contained provisions for a grievance based on any company action perceived to be racially discriminatory. Salaried employees not covered by the grievance procedure had a different appeal route through department managers and division heads to the employee relations managers. These procedures, as detailed as they were, necessarily allowed a measure of discretion and judgment to those involved in the process.



On April 23, 1975, the company discharged plaintiff Wesley Coates, a wage employee who had survived his probationary period by two months, for sleeping on the job. This incident occurred one day after Coates had been reinstated from a suspension for damaging company property while driving a forklift truck. The company

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decided not to lessen the punishment because an undercover investigative agent working inside the plant reported that Coates was selling drugs on company property.

Coates filed a charge with the EEOC and about three years later brought this suit. The complaint was amended to allege Title VII class discrimination and to add a count alleging individual and class discrimination under 42 U.S.C. Sec. 1981 (1976). 2 Coates contended that he and more than 200 other blacks were discharged "as a consequence of a uniform policy and practice to reduce black employment and discriminatorily discharge black employees at defendants' plant." He alleged that defendants maintained a continuing policy and practice of discriminatorily discharging black employees through (1) an articulated plan to reduce the representation of blacks at the plant and (2) a highly discretionary discipline-discharge-reinstatement system under which blacks were treated less favorably than whites. The district court certified the class on May 29, 1981 3 and Coates, a somewhat less than exemplary employee, became the named class representative.

After extensive discovery and a thirteen-day bench trial, the district court ruled for defendants on both the class and individual claims. The court found that plaintiffs' statistical and nonstatistical evidence was adequately rebutted by defendants, and that plaintiffs failed to meet their burden of persuasion. It is from this ruling that plaintiff Coates, individually and on behalf of the class, and the EEOC appeal. Although there are some questionable and close aspects, they do not, in the context of this case, result in reversible error. We affirm.



Plaintiffs' initial objection to the district court's decision is that the court analyzed the class action claim according to an "incorrect legal framework" for Title VII class cases. Plaintiffs contend that the district court erred by confusing the kind of evidence required to rebut a private, nonclass disparate treatment prima facie case with that sufficient to rebut a government or class pattern or practice disparate treatment prima facie case. 4

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In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the Supreme Court provided an analytical framework "intended progressively to sharpen the inquiry into the elusive factual question of intentional discrimination" in private, nonclass Title VII cases. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 255 n. 8, 101 S.Ct. 1089, 1094 n. 8, 67 L.Ed.2d 207 (1981). Under this McDonnell Douglas-Burdine framework, the plaintiff is required to establish a prima facie case by producing facts that "eliminate[ ] the most common nondiscriminatory reasons" for the defendant's alleged action, for example, by showing that he or she is a member of a protected group and is otherwise basically similarly situated to members of the unprotected group. Burdine, 450 U.S. at 254, 101 S.Ct. at 1094. It then becomes a reasonable assumption that any differential treatment by the employer was due to discrimination. The facts the plaintiff must show to be entitled to the inference of discrimination will vary according to the type of employment practice involved. McDonnell Douglas, 411 U.S. at 802 n. 13, 93 S.Ct. at 1824 n. 13; Burdine, 450 U.S. at 253 n. 6, 101 S.Ct. at 1093 n. 6. A plaintiff's prima facie case creates a rebuttable presumption that the defendant unlawfully discriminated against the plaintiff and compels the trier of fact to award judgment for the plaintiff unless the defendant offers evidence that "raises a genuine issue of fact as to whether [the defendant] discriminated against the plaintiff." Burdine, 450 U.S. at 254-55, 101 S.Ct. at 1094.

The defendant's burden may be met by...

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