Brown v. Eckerd Drugs, Inc.

Decision Date21 October 1981
Docket NumberNo. 79-1821,79-1821
Citation663 F.2d 1268
Parties27 Fair Empl.Prac.Cas. 137, 27 Empl. Prac. Dec. P 32,200, 27 Empl. Prac. Dec. P 32,312 Shirley BROWN and Dorothy Black and Almetta Ivey, individually and on behalf of all others similarly situated, Appellees, v. ECKERD DRUGS, INC., a corporation now merged with Jack Eckerd Corporation, a corporation and Eckerd's Providence, Inc. (Store # 4), a wholly-owned subsidiary of Eckerd Drugs, Inc., now merged with Jack Eckerd Corporation, Appellants.
CourtU.S. Court of Appeals — Fourth Circuit

John O. Pollard, Charlotte, N. C. (Blakeney, Alexander & Machen, Charlotte, N. C., on brief), for appellants.

Michael A. Sheely, Charlotte, N. C. (Joyce M. Brooks, Shelley Blum, Charlotte, N. C., on brief), for appellees.

Before BUTZNER, RUSSELL and MURNAGHAN, Circuit Judges.

MURNAGHAN, Circuit Judge:

The present appeal stems from a class action suit filed in May, 1976, by plaintiffs Shirley Brown and Dorothy Black against Eckerd Drugs, Inc., charging discrimination in hiring, firing, promotion, job assignment, and geographical assignment at its Mecklenburg County facilities, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and 42 U.S.C. § 1981. Brown and Black complained, in addition to their class allegations, that each had been discriminatorily terminated. Although the class initially included rejected applicants for employment, as well as past and present employees, the district court, after our decision in Hill v. Western Electric Co., Inc., 596 F.2d 99 (4th Cir. 1979), cert. denied, 444 U.S. 929, 100 S.Ct. 271, 62 L.Ed.2d 186 (1979), excluded applicants from the class. After trial, Almetta Ivey, a member of the original class who had testified at trial that she was discriminatorily demoted from a supervisory position, was permitted to intervene as a named plaintiff. After further modification, the class ultimately was defined as past and present employees who claimed that the defendant discriminated on the basis of race in connection with promotion or transfer to management and supervisory positions in the defendant's Mecklenburg facilities.

On the merits, the lower court found that the Company discriminated against the plaintiffs and their class. In addition, Brown and Ivey prevailed on their individual claims. Plaintiff Black, however, failed. 1 Accordingly, the court granted reinstatement Eckerd Drugs, Inc. and its successors ("Eckerd") have operated several retail stores and a warehouse from corporate offices in Mecklenburg County, North Carolina. The main office employs clerical, professional and management workers. The retail stores are run by a store manager and assistant manager, pharmacist, fountain manager, fountain personnel and sales personnel. The store managers report to district managers who are responsible for various stores. The work force at the warehouse, located in the same facility as the main office, includes stockers, receiving and shipping clerks, checkers, and forklift and truck drivers.

and backpay to Brown and Ivey and enjoined those promotion and transfer practices found to discriminate against minorities. On appeal, the defendant contends that the original plaintiffs had no "standing" to represent a class concerning claims other than discriminatory discharge; that the district court erroneously permitted class member Ivey to intervene as a named plaintiff a year after trial; and that the individual and class claims of discrimination were not proved. On each issue we affirm the judgment of the district court.

The district court found that Eckerd's promotion and transfer policies, utilized at all facilities, were few: Eckerd maintained no job descriptions for supervisory positions, nor had it posted notices of managerial vacancies until 1978. There were no formal lines of progression into management or supervisory jobs. No written criteria have been utilized to determine the qualifications of a person to fill supervisory vacancies and the management representatives responsible for filling such positions, nearly all of whom are white, have had virtually complete discretion to fill the spots. Employees were evaluated only irregularly and evaluation has been undertaken from memory without benefit of written criteria. A "word of mouth" system has been employed to notify employees of supervisory vacancies in other facilities. Before 1976, most supervisory personnel were white, 2 despite an employee work force composed of 14% blacks (34% blacks in the retail stores).

In September, 1974, plaintiff Shirley Brown was employed as a keypunch operator in the main office. In June, 1975, she left her job after several incidents evidencing racial bias. Plaintiff Dorothy Black, hired to work in a retail store, and subsequently promoted to fountain manager, was fired in 1975. Intervenor Ivey was hired in 1969 to work in the main office. From 1975 until 1977 she supervised the third party receivables department. In June of 1977, she was demoted after training a white supervisor to take her place.

I.

Eckerd first contends that Brown failed to prove that she was discriminatorily discharged, and that Ivey did not show that she was discriminatorily demoted from a supervisory role. We have carefully examined the factual findings of the district court with respect to Brown and Ivey. Had we been sitting as the trial court, we might well have been inclined to find that Brown and Ivey did not sustain their burden of persuasion. On appeal, however, our function is the very restricted one of determining whether the district court's determination was clearly erroneous. Where there are conflicts in the testimony, we have kept in mind that the district court is in the best position to evaluate the witnesses' credibility and resolve the conflicts. Upon examination of the evidence as a whole 3 and of The proper approach was outlined by the Supreme Court in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Burdine reaffirmed the doctrine that when a Title VII plaintiff has established a prima facie case, the burden of production, but not persuasion, shifts to the employer, who must show some legitimate, nondiscriminatory reason for the employment decision. Should the employer make that showing, the plaintiff, in order to prevail, has the burden of persuading the trier of fact that the employer's proffered reason was pretextual. The Court further stated that, once the employer has successfully rebutted the plaintiff's prima facie case, the evidence previously introduced by the plaintiff can be considered by the trier of fact on the issue of whether the employer's explanation is pretextual. In fact, "there may be some cases where the plaintiff's initial evidence, combined with effective cross-examination of the defendant, will suffice to discredit the defendant's explanation." Id., at 255 n.10, 101 S.Ct. at 1095 n.10.

the district court's findings of fact and law, we are not "left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum, 333 U.S. 364, 395, 68 S.Ct. 525, 541, 92 L.Ed. 746 (1948). We therefore affirm the judgments as to the individual claims.

Having set forth briefly the applicable law, we now discuss in turn the Ivey and Brown claims.

A. Ivey Claim

Ms. Ivey was first hired by the defendant in 1969 as an accounts payable clerk in its main office. At that time she was the only black employee in a supervisory position. In April, 1976, she was appointed supervisor of a new department, third party receivables. Both the plaintiff's prima facie case and the defendant's rebuttal rely on the details of her occupation of that position until she was replaced by a white woman in June, 1977.

Ms. Ivey's performance was neither outstanding nor inadequate. On several occasions, as late as May, 1977, her supervisor, Mr. Dale Whitworth, told her that she was doing a good job, and that he felt she could run the department. He also told her, however, on two occasions that he was not sufficiently satisfied with her performance to give her a pay raise. His specific criticisms were threefold.

First, Mr. Whitworth had received complaints that too much noise was coming from the department. Ms. Ivey told him that one employee in particular was responsible for the noise, and that the employee, who was the sister-in-law of Mr. Whitworth's secretary, refused to listen to Ms. Ivey. Mr. Whitworth neither fired the employee nor gave Ms. Ivey the authority to fire her. Rather, he said he would talk to her, and told Ms. Ivey that she was responsible for controlling her employees. His lack of effective support contrasts sharply with a similar situation involving a white supervisor of the other plaintiff, Brown, in which management provided strong support for the supervisor. See pp. ---- - ---- infra.

Second, on one occasion when Ms. Ivey was absent from the office, Mr. Whitworth found in her desk unfinished work, including checks which had not been deposited. When she returned to work, Mr. Whitworth asked her about the unfinished matters, and she responded that her department was overworked and understaffed. During the time Ms. Ivey ran the department there were never more than three employees, as compared with the five or six Mr. Whitworth promised when he offered her the supervisory position.

Finally, Ms. Ivey was unable to prepare the "outstanding balance reports" which she was supposed to file each month. Again, she attributed the failure to lack of staff, and Mr. Whitworth was sufficiently persuaded by her explanation to agree in May, 1977 that he would meet with her in July to review her performance, and that she should prepare an outstanding balance Against that background, two weeks after he expressed confidence in Ms. Ivey, and well before the July, 1977 deadline for an outstanding...

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