Blount v. Xerox Corporation, C-74-1794 WHO.

• Citation: 405 F. Supp. 849
• Decision Date: 30 September 1975
• Docket Number: No. C-74-1794 WHO.,C-74-1794 WHO.
• Court: U.S. District Court — Northern District of California
• Parties: Jesse BLOUNT, Jr., Plaintiff, v. XEROX CORPORATION, Defendant.

405 F. Supp. 849

Jesse BLOUNT, Jr., Plaintiff, v. XEROX CORPORATION, Defendant.

No. C-74-1794 WHO.

United States District Court, N. D. California.

September 30, 1975.

James H. Niven, Bennett, Hughes, Kane & Niven, San Mateo, Cal., for plaintiff.

Richard Haas, Brobeck, Phleger & Harrison, San Francisco, Cal., for defendant.

MEMORANDUM OPINION

ORRICK, District Judge.

Plaintiff, a black, middle-level executive, formerly employed by defendant, Xerox Corporation ("Xerox"), charges Xerox with discriminating against him because of his race in violation of the rights guaranteed to him by the Thirteenth Amendment and 42 U.S.C. § 1981. Plaintiff's main contention is that Xerox failed to accord him the preferential treatment in training and advancement called for under the affirmative action program that it had voluntarily adopted. He claims that Xerox's failure to train him adequately resulted in racial discrimination in employment. At the conclusion of the plaintiff's case-in-chief, in the course of which 202 exhibits were introduced and 5 witnesses, including the plaintiff himself, testified, defendant moved for dismissal under Rule 41(b) of the Federal Rules of Civil Procedure.¹ For the reasons hereinafter stated, the motion is granted.

Preliminarily, it should be noted that in this circuit in ruling upon a Rule 41(b) motion the Court is not bound to consider the evidence in the light most favorable to the plaintiff. It may weigh the evidence, evaluating the veracity, honesty, and sincerity of the witnesses and adjudicate the case on the merits at the conclusion of the plaintiff's case by determining whether the plaintiff's case is sufficient to support a judgment in plaintiff's favor. 5 J. Moore, Federal Practice ¶ 41.13 (2d ed. 1974).

I.

Plaintiff, who has a degree in chemical engineering from the Case Institute of Technology and an M.B.A. degree from City College of New York, is currently employed by Stanford Research Institute as an industrial economist earning $28,000 a year. In September, 1971, after working for Mobil Oil's chemical division, Memorex, and the Celanese Corporation, he was hired by Xerox. Xerox had voluntarily adopted an affirmative action program called "Fast Track", the purpose of which was to place more minority representatives in middle-management positions. Plaintiff was enrolled in this program with the expectation that he would be considered for the position of branch manager.

The basic operating unit of the Information System Group, the division of Xerox involved in this litigation, is the branch which is headed by a branch manager. Each branch manager has 6 or more sales managers reporting to him, and each sales manager has 6 or more sales representatives plus a number of area sales representatives reporting to him.

After 4 months of training consisting, among other things, of visiting and observing the work performed in various Xerox installations around the country, plaintiff was assigned, effective January 13, 1972, to the San Francisco Branch as Branch Sales Planning Manager, a staff position. Plaintiff's immediate superior, the branch manager, was a white employee named Ben Hurley. During the month plaintiff and Hurley worked together, Hurley devoted much time to the training and supervision of plaintiff and gave him substantial responsibility.

Hurley was replaced as San Francisco Branch Manager by Dave Myerscough. Plaintiff testified that Myerscough indicated to him that he did not care for the affirmative action program and that he resented persons brought in from outside the corporation and advanced rapidly in preference to long-time employees. In response to a question by the Court, plaintiff said that Myerscough wanted all Xerox personnel to be treated equally. Plaintiff's position is that as a black he was entitled to special and preferential treatment not extended to the white employees of Xerox. At no time did plaintiff complain to Xerox officials that Myerscough discriminated against him. However, Myerscough did take away certain of plaintiff's responsibilities, and he failed, according to plaintiff, to spend enough time trying to train him. Plaintiff became dissatisfied and requested a transfer. On August 25, 1972, he was given a choice of several positions and chose to become a Sales Manager in the Oakland Branch where he began work on October 1, 1972. He performed satisfactorily for a time, but on January 7, 1974, he was placed on "formal warning" for inadequate performance. It was company policy to place on probation sales employees who failed to meet performance standards, and on February 4, 1974, plaintiff was placed on probation for a 60-day period for inadequate performance. This probationary period was extended on March 13, 1974, to April 30, 1974.

On March 19, 1974, plaintiff, together with a white subordinate employee, was suspended from his duties because of his involvement in the submission of an order on which the purported customer's signature had been forged. In most cases employees were not suspended for such actions because it was known to be common practice in the corporation. However, in this instance, plaintiff's superior, the branch manager, was new to the branch and did not know if it was common practice and so, in accordance with company policy, he suspended plaintiff and the white subordinate employee. On March 27, 1974, the suspension was lifted for plaintiff and his subordinate. Plaintiff, however, did not return to work until April 1, 1974, because he wished to consult an attorney.

On April 4, 1974, plaintiff was advised that his period of probation would not be extended beyond April 30, 1974. At that time, plaintiff requested that he be permitted to step down from his position and that he be given other opportunities to work for Xerox. On April 5, 1974, plaintiff announced to his subordinates that he was stepping down from his position as Sales Manager, and on April 26, 1974, plaintiff was offered two other positions, namely, Sales Representative at defendant's Oakland Branch or Sales Representative at defendant's Fresno Branch. Plaintiff refused to accept either position and during that month left defendant's employ. Plaintiff was paid by Xerox through April 30, 1974, and was given two weeks' vacation pay upon his separation from Xerox. In May, 1974, plaintiff became an employee of Stanford Research Institute where he has been continuously employed to date.

Throughout his employment by Xerox, plaintiff had and exercised the same rights as any white employee of the defendant in entering into and continuing an employment relationship with the defendant. There were no other black middle-management trainees in the affirmative action program in either the San Francisco Branch or the Oakland Branch. The standards against which plaintiff's performance was measured were no more stringent than those applicable to white employees of the defendant. There was no evidence that any employee of the defendant discriminated against the plaintiff in any way, nor is there any evidence that plaintiff suffered any damages as a result of any act or omission of Xerox or any of its employees.

II.

This action alleging racial discrimination in employment was brought under 42 U.S.C. § 1981 which reads as follows:

"All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other."

First adopted as part of the Civil Rights Act of 1866, this section was intended, by authority of the enforcement clause of the Thirteenth Amendment to the United States Constitution, to correct the abuses of slavery and to eradicate its badges and incidents. Resurrected by Justice Stewart in his opinion in Jones v. Alfred H. Mayer Co.,² 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968), the section has been applied by the Supreme Court to private discrimination. Tillman v. Wheaton-Haven Recreation Ass'n, Inc., 410 U.S. 431, 439-440, 93 S.Ct. 1090, 35 L.Ed.2d 403 (1973). The Fifth and Sixth Circuits have specifically held it applicable to instances of private racial discrimination in employment (Belt v. Johnson Motor Lines, Inc., 458 F.2d 443 (5th Cir. 1972); Long v. Ford Motor Company, 496 F.2d 500 (6th Cir. 1974)) and the Ninth Circuit has indicated its agreement. See, Griffin v. Pacific Maritime Association, 478 F.2d 1118 (9th Cir. 1973) (dictum), cert. denied, 414 U.S. 859, 49 S.Ct. 69, 38 L.Ed.2d 109 (1973).

Long is a case very similar on its facts to the case at bar. There the plaintiff was a black, middle-management executive who claimed discrimination on...