Carey v. Greyhound Bus Co., Inc., 73-3133

• Decision Date: 26 September 1974
• Docket Number: No. 73-3133,73-3133
• Citation: 500 F.2d 1372
• Parties: 8 Fair Empl.Prac.Cas. 1184, 8 Empl. Prac. Dec. P 9698 James S. CAREY, Plaintiff-Appellee-Cross Appellant, v. GREYHOUND BUS CO., INC., et al., Defendants-Appellants-Cross Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1372

500 F.2d 1372

8 Fair Empl.Prac.Cas. 1184, 8 Empl. Prac.

Dec. P 9698

James S. CAREY, Plaintiff-Appellee-Cross Appellant, v. GREYHOUND BUS CO., INC., et al., Defendants-Appellants-Cross

Appellees.

No. 73-3133.

United States Court of Appeals, Fifth Circuit.

Sept. 26, 1974.

C. Paul Barker, New Orleans, La., for Amalgamated Transit.

Martin F. Burns, Chicago, Ill., Wm. F. Kirsch, Jr., Maurice Wexler, Memphis, Tenn., Breard Snellings, New Orleans, La., for Greyhound Bus.

Steven R. Plotkin, New Orleans, La., for defendants-appellants.

Louis A. Gerdes, Jr., New Orleans, La., for plaintiff-appellee.

Before JONES, THORNBERRY and COLEMAN, Circuit Judges.

COLEMAN, Circuit Judge.

STATEMENT OF FACTS

This suit wsa instituted by James S. Carey, appellee and cross-appellant, both individually and as a representative of a class of all others similarly situated, against Greyhound Lines Inc., Local 1174 Amalgamaged Transit Union, and Local 275 of the New Orleans Building Maintenance Union. The suit was brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, alleging racial discrimination in employment. Carey seeks an injunction preventing defendants from interfering with his rights to equal employment opportunities, a revised seniority system, back pay and attorney's fees.

FACTS

The case was tried solely on stipulation of facts, exhibits, and memoranda.

Appellant Greyhound operates terminals in Mobile, Montgomery, New Orleans, and Baton Rouge, which constitute one seniority district for employment purposes. Within this district, Greyhound's terminal employees are grouped into two classes; class A consists of agents and class B of porters. All Greyhound employees in the district are represented by Local 1174, except that class B employees in New Orleans are represented by Local 275. Prior to 1964 a class B employee was not allowed to bid on a class A vacancy. In November of 1964, however, Greyhound unilaterally Adopted the policy of allowing a class B employee to bid on a class A vacancy if it had not been bid on by a class A employee. Once hired into class A and thus coming within representation by Local 1174, the former class B employee's seniority is determined from the date he was hired into class A-- not from the date he began working for Greyhound as a class B terminal employee. Former New Orleans class B employees who are awarded jobs in class A may retain their seniority in Local 275 for 90 days.

Plaintiff Carey began working for Greyhound in 1957 as a class B porter. For short intervals between 1966 and 1968 he held agent's positions (which are class A jobs), but each time was 'bumped' back to a class B job by a senior Local 1174 member. He has held a class A job from July 3, 1968, to the present, and maintains seniority with Local 1174 from July 3, 1968.

The District Court found that pre-Act discrimination existed, and that 'a causal nexus exists between past discrimination on the part of Grehound and the seniority system clearly prejudicial to plaintiff'. As relief, Judge Boyle enjoined the defendants from denying Carey his seniority computed from the date of his original employment with Greyhound. This resulted in substituting plant seniority for the present system of departmental or union seniority. The District Court also granted attorney's fees and special damages (which had been stipulated to be $8000 and $500 respectively) against the defendants in solido, and denied Carey's request for back pay. The three defendants filed notices of appeal, alleging that they had not violated Title VII. The plaintiff below then cross appealed, seeking a reversal of the District Court's dismissal of the class action and denial of back wages for himself and the class.

ANALYSIS

Appellants Greyhound and Local 1174 appeal the District Court's decision that they are in violation of Title VII of the Civil Rights Act of 1964. Greyhound asserts that they are perfectly willing to recognize the date of employment as the appropriate seniority date but claim they are powerless to unilaterally change the agreements between themselves and two unions, both of which are certified by the National Labor Relations Board. They defend that they have opened bidding on class A vacancies to class B employees, and point out that if plaintiff had not passed up earlier opportunities to go from class B to class A, he would have been receiving the maximum wage in the express agent category by the time he filed his first complaint with EEOC.

(1) Greyhound denies they are in violation of Title VII.

There is no doubt that statistical evidence is accorded great weight in 'practice or pattern' discrimination cases, Ochoa v. Monsanto Co., 5 Cir., 1973, 473 F.2d 318, citing Rowe v. General Motors, 5 Cir., 1972, 457 F.2d 348 and United States v. Jacksonville Terminal Co., 5 Cir., 1971, 451 F.2d 418, cert. denied, 406 U.S. 906, 92 S.Ct. 1607, 31 L.Ed.2d 815 (1972).

In the case at bar, between the year 1936 and the effective date of the Civil Rights Act of 1964, Greyhound in its New Orleans terminal hired whites exclusively into the more favorable class A positions while it hired blacks exclusively into the less favorable class B positions. However, pre-Act racial discrimination without post-Act effects does not establish a per se violation of Title VII, United States v. Jacksonville Terminal Co., supra.

Under the present seniority system, class B employees cannot compete against class A employees for the more favorable class A positions. A class B employee can only get a class A job when no class A employee bids on it. Once a class B employee obtains a class A job, his advancement in class A is impeded in that he loses the seniority acquired with Greyhound while in class B. His seniority runs only from the time he entered class A. When a causal nexus exists between the past discrimination and the challenged present condition of employment (not justified by some 'business necessity' which itself complies with Title VII), the courts have held that the present condition violates Title VII. Peters v. Missouri-Pacific Railroad Co., 5 Cir., 1973, 483 F.2d 490. See also Local 189, infra.

The facts in the case sub judice are similar to those in Local 189, United Papermakers and Paperworkers v. United States, 5 Cir., 1969, 416 F.2d 980, cert. denied, 397 U.S. 919, 90 S.Ct. 926, 25 L.Ed.2d 100 (1970). There, jobs were organized within 'lines of progression', and until May, 1964, the Company segregated these lines of progression by race. Black Local 189-- A had jurisdiction over the less desirable jobs, while white Local 189 had jurisdiction over all others. Promotion within each line was determined by seniority in the job slot below. Time worked in the mill did not count.

The lines of progression were merged in 1966, but the Company continued to award promotions according to job seniority. As a result, blacks had no seniority in bidding for formerly white jobs except as against each other and new white employees. The United States brought suit against the employer and unions to set aside job seniority in any form.

Writing in Local 189, Judge Wisdom held the fact that the present seniority system appears to be neutral did not prevent a finding that the system violates the Civil Rights Act of 1964 if the inevitable effect is to cut into the employee's present right not to be discriminated against. In correcting the seniority system so as to comply with the Civil Rights Act of 1964, the Court construed the Act to prohibit future awarding of vacant jobs on the basis of a seniority system that locks in prior racial classification. White incumbent workers, however, were not to be bumped out of present positions by blacks with greater plant seniority. The fact that the employer persisted in utilizing a seniority system that gave preference to whites (hired before the merger of formerly segregated progression lines) to determine priority for filling vacancies, after its racial implications became known to the employer, indicated to the Court that the practice was intended to deny full exercise of applicable rights and justified the Attorney General's enforcing the Civil Rights Act of 1964. The Court concluded that specific intent need not be proved. Intent can be inferred if the discriminatory practice continues after racial implications have become known. Progression would still be job by job, but seniority would be determined by counting time in the mill rather than time in the job slot below.

See also:

Local 189, United Papermakers & Paperworkers, supra, where present seniority system, which gave priority to worker who had worked the longest in job slot below vacancy and which had been carried over from time when progression lines had been segregated, had effect of presently discriminating against employees on ground of race, present seniority system should be replaced. Under new system, no employee would have right to a job he coulc not perform properly and progression would still be job by job but seniority would be determined by counting time in the mill rather than time in job slot below vacancy.

United States v. Jacksonville Terminal, supra. When seniority systems in use usually began when the employee started work in the craft and class to which he was regularly assigned; prohibited interclass transfers within a single craft; and in a technical sense locked all employees, black and white, into certain categories, the Court described this as an unusually strong nexus between discriminatory pre-Act conduct and racially neutral post-Act activity. The Court ordered that in future bidding on vacant jobs outside the worker's class or craft, terminal (plant-wide) seniority would be used. Once awarded the job, a worker's seniority in the new job will be his oldest seniority date which he holds on any of the terminal's seniority rosters in effect at the time of the District Court's decree.

Rowe v. General Motors, supra....