Calcote v. Texas Educ. Foundation, Inc., 76-3223

• Decision Date: 09 August 1978
• Docket Number: No. 76-3223,76-3223
• Citation: 578 F.2d 95
• Parties: 20 Fair Empl.Prac.Cas. 1685, 17 Empl. Prac. Dec. P 8524 Herman E. CALCOTE, Plaintiff-Appellee, v. TEXAS EDUCATIONAL FOUNDATION, INC., a non-profit corporation, d/b/a Gary Job Corps Center, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 95

578 F.2d 95

20 Fair Empl.Prac.Cas. 1685, 17 Empl. Prac.

Dec. P 8524

Herman E. CALCOTE, Plaintiff-Appellee, v. TEXAS EDUCATIONAL FOUNDATION, INC., a non-profit corporation, d/b/a Gary Job Corps Center Defendant-Appellant.

No. 76-3223.

United States Court of Appeals Fifth Circuit.

Aug. 9, 1978.

Morgan Hunter, Beverly Brook Brown, Austin, Tex., for defendant-appellant.

Luis M. Segura, San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before GODBOLD, SIMPSON and MORGAN, Circuit Judges.

GODBOLD, Circuit Judge:

Plaintiff Calcote, a white, sued his former employer, Texas Educational Foundation, Inc., charging racial discrimination in violation of Tit. VII. ¹ The foundation is a non-profit corporation which under contract with the federal government operates "Job Corps" centers at which underprivileged and minority youths are given vocational and academic training. The district court found that the Foundation had discriminated against Calcote because of his race, in his starting salary and in his merit pay increase, and that Calcote, who resigned, had been constructively discharged. The court granted back pay and attorney fees.

We affirm on the opinion of the district court, as supplemented and amended by this opinion. The underlying findings of fact are set out at length in the opinion of the district court. On this appeal the Foundation does not to any substantial extent question the underlying findings of fact but rather attacks the court's conclusions drawn from them. Plainly Calcote made out a prima facie case of racial discrimination, and the burden shifted to the Foundation to refute it by a preponderance of evidence showing legitimate, non-discriminatory reasons. Turner v. Texas Instruments, 555 F.2d 1251, 1256 (C.A.5, 1977). The facts adequately support the inferences drawn by the trial court that the Foundation was racially motivated in setting Calcote's original salary and in setting the amount of his merit pay increase and that Calcote's working conditions were made intolerable by these discriminations in pay and the harassment inflicted upon him by supervisor Dancy on racial grounds, so that Calcote was constructively discharged.

With respect to the issue of discrimination against Calcote in starting salary, under the undisputed testimony of defendant's personnel manager McClure, initial hiring classifications were based upon the applicant's training and experience. Under these standards Calcote, hired as a residential counselor at $900 per month, ² was entitled to a higher classification than Archie David, a black, who was employed shortly before Calcote and given the higher classification of vocational counselor at $950 per month. McClure attempted to explain the differences in classification and salary on the ground that David was hired earlier and when Calcote was hired no position as vocational counselor was open. The difficulty with this is that a few days after Calcote complained to EEOC of racial discrimination in the setting of his salary David's salary was reduced to approximately that of Calcote, and the explanation given for this is that there had been a "regrettable error" in setting David's salary when he was employed. In these circumstances the district court was entitled to, and impliedly did, reject time of employment and availability of positions as valid explanations for the disparities between Calcote and David and to infer that the disparities were racially motivated.

Other evidence supports the court's conclusion of racial motivation in treatment accorded Calcote in the terms of his hire. Approximately three months after Calcote was employed as a residential counselor at $900 per month, the Foundation hired a black, DeShay, also as residential counselor, at $1,025 per month. His training and experience were less than Calcote's.

Ten months after Calcote was hired the Foundation eliminated the two job classifications of vocational and residential counselor and merged them into a single classification called simply "counselor" and assigned to this new position the salary schedule previously followed for residential counselors. The revamping was arguably neutral to this point, although the Foundation acknowledges that the dual classification previously employed may have been illogical and unwise, but, as part of the revamping those persons formerly vocational counselors, including David, were permitted to retain their salary schedules, which were higher because of their previous classifications as vocational counselors. In short, Calcote and other residential counselors were frozen into their lower pay scale while the vocational counselors, including David and other blacks, kept their higher scale. The only purported explanation for this disparity is testimony that upon reclassification everyone was permitted to keep his prior salary level so long as he was making the minimum for the new job classification. This was merely a restatement of what occurred and not an explanation of the reason.

With respect to disparate treatment in merit pay increase, no explanation was given of why Calcote, who received a higher performance rating than David, was given a smaller pay increase, or of why, in Calcote's case and contrary to usual practice, the recommendation of his supervisor was overridden at a higher level. The written recommendation of Calcote's supervisor had been changed, and the change bore the initials of a white personnel officer, but the evidence is silent on the personnel officer's reasons for departing from usual practice.

Calcote's claim of constructive...