Lilly v. Harris-Teeter Supermarket

• Decision Date: 29 March 1988
• Docket Number: HARRIS-TEETER,No. 86-3157,86-3157
• Citation: 842 F.2d 1496
• Parties: 46 Fair Empl.Prac.Cas. 610, 47 Empl. Prac. Dec. P 38,126 Paul LILLY, individually and on behalf of all others similarly situated; Christopher McKinney; Phillip Reed; John Legrand; Ken Bailey; Frank Sullivan; James Mobley; Shirley Gatewood; Jerome Gary; Curtis Jones; Woodrow McManus; Roy Torrence; Hazel Fisher; John Johnson; Willie Hunt; Roosevelt Patterson; Willie Covington; William Carrothers; Tresevant Goodwin; Richard Gregory, individually and on behalf of all others similarly situated; Edward Porter; Michael McVay; Richard Burch, individually and on behalf of all others similarly situated, Plaintiffs-Appellees, v.SUPERMARKET, A Corporation, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1496

842 F.2d 1496

46 Fair Empl.Prac.Cas. 610,

47 Empl. Prac. Dec. P 38,126

Paul LILLY, individually and on behalf of all others similarly situated; Christopher McKinney; Phillip Reed John Legrand; Ken Bailey; Frank Sullivan; James Mobley Shirley Gatewood; Jerome Gary; Curtis Jones; Woodrow McManus; Roy Torrence; Hazel Fisher; John Johnson Willie Hunt; Roosevelt Patterson; Willie Covington William Carrothers; Tresevant Goodwin; Richard Gregory, individually and on behalf of all others similarly situated; Edward Porter; Michael McVay; Richard Burch, individually and on behalf of all others similarly situated, Plaintiffs-Appellees, v. HARRIS-TEETER SUPERMARKET, A Corporation, Defendant-Appellant.

No. 86-3157.

United States Court of Appeals, Fourth Circuit.

Argued Dec. 2, 1987.

Decided March 29, 1988.

John Oliver Pollard (Blakeney, Alexander & Machen, Charlotte, N.C., on brief), for defendant-appellant.

Michael Anthony Sheely (Russell & Sheely, Concord, N.C., on brief), for plaintiffs-appellees.

Before WINTER, Chief Judge, SPROUSE, Circuit Judge, and HAYNSWORTH, Senior Circuit Judge.

SPROUSE, Circuit Judge:

Harris-Teeter Super Markets, Inc., appeals from the district court's decision that it discriminated against ten black employees in numerous promotion decisions, in violation of 42 U.S.C. Sec. 1981, and 42 U.S.C. Sec. 2000e et seq. (Title VII of the Civil Rights Act of 1964). This is the second time the district court has rendered judgment on the employees' claims; the district court's decision on appeal here came after our remand of the district court's first judgment. Lilly v. Harris-Teeter Supermarket, 545 F.Supp. 686 (W.D.N.C.1982), aff'd in part, rev'd in part, and remanded, Lilly v. Harris-Teeter Supermarket, 720 F.2d 326 (4th Cir.1983), cert. denied, 466 U.S. 951, 104 S.Ct. 2154, 80 L.Ed.2d 539 (1984), judgment on remand, Lilly v. Harris-Teeter Supermarket, 645 F.Supp. 1381 (W.D.N.C.1986). We now affirm in part and reverse in part on the individual claims of discrimination. We vacate the trial court's interim award of attorneys' fees to the plaintiffs and remand for a redetermination in light of today's decision.

I. Procedural Background

The history of this lengthy litigation has been thoroughly discussed in our previous opinion, 720 F.2d at 329-31, and we limit ourselves to a brief review.

Harris-Teeter is a North Carolina-based retail grocery chain with offices, retail stores, and a warehouse. Harris-Teeter discharged Paul Lilly, a black employee, in 1975. Lilly complained to the Equal Employment Opportunity Commission (EEOC), and he eventually alleged that Harris-Teeter engaged in classwide discrimination against blacks in hiring, promotions, terminations, and other employment practices. The EEOC issued a right-to-sue letter, and Lilly commenced the present action in June 1976.

In 1979, twenty other black employees intervened as named plaintiffs in Lilly's class action, and the case was also consolidated with that of two other black Harris-Teeter employees who were alleging racial discrimination. A bench trial was held in 1980, and the district court issued a decision outlining its preliminary findings. Lilly v. Harris-Teeter Supermarket, 503 F.Supp. 29 (W.D.N.C.1980).

After requesting proposed findings of fact and conclusions of law from the parties, the court entered a more detailed decision in 1982. Lilly, 545 F.Supp. at 686. The court denied certification for the claim of class-wide discrimination in hiring. It concluded, however, that Harris-Teeter engaged in a class-wide pattern of racial discrimination in both its promotions policy and its terminations policy.

The court also found that racial bias motivated Harris-Teeter's refusal to promote each of the ten employees who are parties to the present appeal. It ordered Harris-Teeter to undertake remedial steps and pay damages. The court subsequently entered an award of approximately $86,000 in interim attorneys' fees.

On the initial appeal, this court upheld the finding of a class-wide pattern of discrimination in Harris-Teeter's terminations policy regarding black employees. Lilly, 720 F.2d at 337. The proof of class-wide discrimination in promotions, however, was found insufficient. The evidence revealed an insignificant statistical disparity between the rate of black and white promotions in Harris-Teeter's work force during the relevant times. Id. at 338. Further, the plaintiffs had presented almost no direct evidence of racial discrimination. In light of these evidentiary inadequacies, we held that it was improper for the district court to infer class-wide discrimination in promotions merely from Harris-Teeter's use of subjective and vague criteria in its promotion decisions. Id.

This court then addressed the district court's individualized findings of discrimination in promotions against the ten plaintiffs in the case sub judice. Lilly, 720 F.2d at 338-39. We remanded these findings, in part because it appeared that the district court had relied on its earlier conclusion that the promotion system was, as a whole, discriminatorily applied as to blacks. This was a conclusion we had rejected. Since the district court had not indicated whether its class-wide conclusion "was a necessary, or merely a cumulative, piece of evidence" in deciding the individual claims, we requested the court on remand to determine "whether any or all of the individual claims are made out in the absence of proof of class-wide discrimination." Lilly, 720 F.2d at 338.

The remand was also necessary to permit the court to make "case-by-case findings as to the 'subjective' criteria advanced by Harris-Teeter as the basis for its promotion decisions." Id. In this regard, we stated that:

the premise that [Harris-Teeter's] subjective criteria were mere pretexts for racial discrimination cannot stand as an across the board conclusion where, as here, the existence of class-wide discrimination is not demonstrated. Rather, the district court must, on a case-by-case basis, determine whether the subjective criteria advanced by Harris-Teeter were in fact utilized in making the individual decision, or whether the individual decision was based upon unlawful discrimination.

720 F.2d at 339.

The district court responded to our remand in its judgment of October 10, 1986. Lilly v. Harris-Teeter Supermarket, 645 F.Supp. 1381 (W.D.N.C.1986). It again held that Harris-Teeter discriminated against the ten plaintiffs on account of their race in all of the thirty-odd promotion decisions they had challenged. Instead of undertaking a particularized reconsideration of the evidence, however, the court merely reproduced the findings and conclusions it had entered in its earlier opinions in the case. The court stated that the individualized review we requested "has already been done" and indicated that its earlier finding of class-wide discrimination in promotions "was a cumulative but not a necessary part of the original determination." Id. at 1388. The present appeal followed.

After a careful and individualized review of the record, we now affirm the district court's findings relating to most of the individual claims of nine of the ten plaintiffs. The findings as to these claims are sufficiently particularized, and they are supported by an adequate evidentiary basis. We reverse, however, the trial court's rulings as to the remaining claims of these nine plaintiffs, and as to all of the claims of plaintiff John LeGrand.

II. Factual Background

A. The Warehouse Environment

Nine of the ten plaintiffs in this case held rank-and-file manual labor positions at Harris-Teeter's warehouse between 1974 and 1978. ¹ The warehouse served as Harris-Teeter's interim storage depot for food shipments arriving by truck or rail from the producers or manufacturers. At the time, Harris-Teeter operated fourteen retail supermarkets. The retail stores placed their food orders through the warehouse. The nine plaintiffs worked at various jobs in the receiving, order-filling, and shipping process. Harris-Teeter employed approximately two hundred workers at the warehouse.

Insofar as is pertinent here, labor at the warehouse was partitioned among five separate departments, each of which operated a night shift and a day shift. The five departments were "Grocery," "Produce," "Meat," "Frozen Foods," and "Buildings and Grounds." Each department occupied a separate location in the warehouse building. Pay scales for shift employees differed among the departments even though the workers' job titles were in many cases the same.

Teams of employees with varying job titles manned each shift in the five departments. With the exception of "Buildings and Grounds" personnel, the departmental shifts were generally composed of workers who either loaded or unloaded trucks and railroad cars (loaders and receivers), selected orders from the warehouse's stock (pickers), or operated forklifts moving food shipments to and from the loading docks (forklift drivers). ² Depending on their individual departments, job titles, and levels of seniority, Harris-Teeter paid these workers hourly wages ranging between three and six dollars per hour.

The job title of "leadman" occupied the next rung on the warehouse employment hierarchy above most of these shift positions. Like their subordinates, leadmen were assigned on a departmental and shift basis. They had supervisory responsibility over shift personnel, but were also expected to perform general shift duties. They received hourly wages. The evidence indicates that Harris-Teeter employed a leadman to work in each of the five departments on the night shifts and in some of the departments on day shifts. Shift personnel promoted to leadmen positions received pay increases ranging from fifteen cents to one dollar per hour.

Beyond leadman, the next step in the job hierarchy was foreman, the first-level management position. ³ Although foremen were classified within the same...