Boykin v. Georgia-Pacific Corp.

• Decision Date: 16 June 1983
• Docket Number: GEORGIA-PACIFIC,No. 81-4521,81-4521
• Citation: 706 F.2d 1384
• Parties: 32 Fair Empl.Prac.Cas. 25, 32 Empl. Prac. Dec. P 33,709 Robert BOYKIN, et al., Plaintiffs-Appellants Cross-Appellees, v.CORPORATION, Defendant-Appellee Cross-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1384

706 F.2d 1384

32 Fair Empl.Prac.Cas. 25, 32 Empl. Prac.

Dec. P 33,709

Robert BOYKIN, et al., Plaintiffs-Appellants Cross-Appellees, v. GEORGIA-PACIFIC CORPORATION, Defendant-Appellee Cross-Appellant.

No. 81-4521.

United States Court of Appeals Fifth Circuit.

June 16, 1983.

Danny E. Cupit, Jackson, Miss., James E. Youngdahl, Little Rock, Ark., Richard B. Sobol, Washington, D.C., for plaintiffs-appellants cross-appellees.

Peyton S. Irby, Jr., L. Arnold Pyle, William A. Pyle, Jackson, Miss., for defendant-appellee cross-appellants.

Appeals from the United States District Court for the Southern District of Mississippi.

Before GARZA, POLITZ and JOHNSON, Circuit Judges.

GARZA, Circuit Judge:

The only thing more shocking than the racial discrimination practiced by defendant Georgia-Pacific Corporation is the unconscionable delay by the magistrate of more than five years in rendering a decision in this action. It is all too obvious that but for the plaintiffs' filing of a motion directing the magistrate to issue a decision within forty-five days, we would not yet have this case before us. Five days prior to a hearing on said motion, the magistrate finally issued his recommendation, which was adverse to plaintiffs in all respects. That opinion was adopted by the district court. For the reasons stated herein, we reverse that opinion and remand the case to the district court where it hopefully will receive more expeditious treatment than it has heretofore.

FACTS

This class action was brought under Title VII, 42 U.S.C. Sec. 2000e et seq. and 42 U.S.C. Sec. 1981 to challenge alleged racial discrimination in the initial assignment and promotion of blacks at the Georgia-Pacific chip-n-saw mill in rural Goss, Mississippi. ¹ A chip-n-saw mill is a modern facility designed to produce finished lumber from raw timber. This plant opened in 1970 and, depending on whether it operated on one or two shifts a day, employed either between sixty to seventy persons or 100 to 110 persons.

The EEOC charge in this case was filed in July of 1972 by the International Woodworkers of America (IWA). A right to sue letter was issued to the IWA in July of the following year and the complaint was filed shortly thereafter. At the time the lawsuit was filed, the IWA was certified by the National Labor Relations Board as the exclusive bargaining agent for the plant employees. The individual plaintiffs did not file EEOC charges, but instead relied on that filed by the union.

The EEOC charge was filed by the union during the pendency of a strike called to protest the inability of the union to secure a collective bargaining agreement with the defendant. The union was never successful in this regard. In 1974, it withdrew its representational status but has not ceased, in the magistrate's words, "to vigorously pursue this particular lawsuit." Record on Appeal, vol. 5 at 656.

The named plaintiffs in this action are two black men who were employed at the chip-n-saw mill until mid-1972. It is clear that defendant was willing to hire blacks at its plant; although the area labor force was approximately thirty percent black, often fifty percent of the plant's work force was black. What is at issue, however, is the quality of the jobs which these individuals were allowed to fill. The chip-n-saw mill is organized into five departments--Log Yard Department, Sawmill Department, Rough Lumber Manufacturing Department, Planer Mill Department and Shipping Department. Within each department, there are various job classifications. The bottom rung of the employment ladder is a classification called "utility," which is where most blacks, including the named plaintiffs, both began and ended their employment.

Plaintiff Robert Boykin was assigned to utility despite the fact that he had a great deal of relevant prior experience. He had previously worked in a plant that manufactured wood products and had received vocational training as a diesel mechanic. After his initial assignment, he repeatedly requested promotions from his supervisor, but his appeals were to no avail. In January of The initial assignment of new employees at the plant was made by the plant manager or plant superintendent. Promotion decisions, on the other hand, were delegated to the foreman of the department that experienced a vacancy, but the plant superintendent retained veto power over the foreman's choice. The management did not post notices of vacancies within departments. Neither did it have any written procedures regarding the filling of vacancies until long after this action was filed. Plaintiffs contend that racial discrimination prevented blacks from initially receiving or indeed ever receiving the good jobs at the plant.

1972, a white employee who had just completed probation was given the position (forklift operator) that Boykin had been seeking. Plaintiff Thomas Powell also completed his two years of work at the plant as a utility. He had fifteen years of prior experience at a furniture plant but was still unable to secure a promotion.

In order to prove their contentions, plaintiffs presented a battery of statistical evidence designed to show racial discrimination from the disparities between percentages of blacks and whites who received favorable initial assignments and promotions. In addition, plaintiffs bolstered their statistical case by presenting evidence concerning individual employment decisions, both (1) evidence from black witnesses about their inability to secure preferable assignments, and (2) evidence of the preferences shown to white employees, notably preferences given to whites who were family or friends of the upper level plant personnel.

CLASS CERTIFICATION

The first prong of plaintiffs' attack upon the lower court judgment is aimed at the denial of class certification. The action was tentatively certified as a class action in 1974, with a final decision reserved until after trial. When the magistrate finally issued his recommendations in 1981, he denied class certification for two reasons. First, he held that the number of persons involved was not great enough to meet the numerosity requirement of Fed.Rule Civ.Pro. 23(a). ² Second, he held that the claims of the individual plaintiffs were stale since they had not been involved with the Georgia-Pacific plant since 1972.

In order to determine whether the numerosity requirement was indeed met, we must examine the exact boundaries of the class. At the time of tentative class certification, the class was identified as all past, present and prospective black employees and all unsuccessful applicants for employment at the sawmill. Since the hiring claim has not been pursued upon appeal, that portion of the class must be eliminated. The claims of present and past black employees are raised in this appeal. Therefore, a class of 317 individuals remains. Certainly, a class of this magnitude is large enough to meet the numerosity requirement.

Defendant claims that the class includes fewer than twenty individuals. This number was calculated by determining the number of promotions which could have occurred during the relevant period (69) and then assuming that blacks were hired at a rate equal to their participation in the labor force (approximately 30%). The total number of jobs at issue is only approximately twenty, a number much too small to meet the numerosity requirement. However, this argument ignores the fact that the contours of this class encompass all present and past black employees. This is a case where employees were not promoted. All 317 individuals have a stake in that claim.

There is no way to limit the action to twenty persons, as defendant suggests, because it is impossible to identify those persons who would have been hired but for the discrimination which occurred.

The magistrate also denied class certification because, in his words, "none of the individual plaintiffs have had any contact with the defendant plant since August of 1972." Record on Appeal, vol. 5 at 679. The relevant consideration for purposes of Rule 23, however, is not length of absence from the plant but willingness and ability to litigate the issues on behalf of the class. The plaintiffs shall not be penalized for the five year delay of the magistrate in deciding this case which makes the time span between employment and final resolution so large.

The magistrate's recommendation also refers to East Texas Motor Freight v. Rodriguez, 431 U.S. 395, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977), as support for its holding that the individual plaintiffs are not proper class representatives. Reliance upon that case is misplaced. In Rodriguez, the plaintiffs were judged improper class representatives because there were objective qualifications standards that they did not meet. Since prior qualifications are irrelevant in this case, the two cases are not analogous.

VALIDITY OF THE STATISTICAL EVIDENCE

The validity of statistical proof as a means of proving a prima facie Title VII case has long met with acceptance in the courts. E.g., Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977); Mayor of Philadelphia v. Educational Equality League, 415 U.S. 605, 94 S.Ct. 1323, 39 L.Ed.2d 630 (1974); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Johnson v. Uncle Ben's, Inc., 628 F.2d 419 (1980), vacated on other grounds, 451 U.S. 902, 101 S.Ct. 1967, 68 L.Ed.2d 290 (1981); Fisher v. Procter & Gamble Mfg. Co., 613 F.2d 527 (5th Cir.1980), cert. denied, 449 U.S. 1115, 101 S.Ct. 929, 66 L.Ed.2d 845 (1981); Parson v. Kaiser Aluminum & Chemical Corp., 575 F.2d 1374 (5th Cir.1978), cert. denied, 441 U.S. 968, 99 S.Ct. 2417, 60 L.Ed.2d 1073 (1979).

This class action was brought to remedy "pervasive resistance to the principles of equality of treatment and opportunity in the workplace articulated in Title VII." Rivera v. City of Wichita Falls, 665 F.2d 531, 534 (5th Cir.1982). The...