Clark v. American Marine Corporation, Civ. A. No. 16315.

• Decision Date: 15 September 1969
• Docket Number: Civ. A. No. 16315.
• Citation: 304 F. Supp. 603
• Parties: Alex CLARK, John T. Magee and Robert Turner, Plaintiffs, v. AMERICAN MARINE CORPORATION, a Louisiana corporation, Defendants.
• Court: U.S. District Court — Eastern District of Louisiana

304 F. Supp. 603

Alex CLARK, John T. Magee and Robert Turner, Plaintiffs, v. AMERICAN MARINE CORPORATION, a Louisiana corporation, Defendants.

Civ. A. No. 16315.

United States District Court E. D. Louisiana, New Orleans Division.

September 15, 1969.

Franklin E. White, New York City, for plaintiffs.

Lolis E. Elie, New Orleans, La., for plaintiffs.

A. M. Trudeau, Jr., New Orleans, La., for plaintiffs.

Richard C. Keenan, New Orleans, La., for defendants.

RUBIN, District Judge:

This class action is brought by three individuals who allege that they were discharged in violation of Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq., and the Civil Rights Act of 1870, 42 U.S.C. § 1981. They seek both personal redress for themselves and class relief for the other Negroes who allegedly have suffered discrimination in employment at the hands of the defendant.¹ In separate findings of fact, the court has found that the evidence shows a pattern of discrimination by the defendant against Negroes in hiring and in opportunities for promotion. Since the employer is clearly subject to the Equal Employment Opportunity requirements of the 1964 Civil Rights Act,² we turn to a discussion of the other findings and conclusions. The issues with respect to the rights of the individual plaintiffs are dealt with separately.

I. FACT FINDINGS WITH RESPECT TO THE INDIVIDUAL PLAINTIFFS

A. Robert Turner and John T. Magee

The testimony of Robert Turner and John T. Magee was credible, consistent and uncontradicted. Turner was hired in 1957. Magee was employed intermittently from 1959 on. Both were laid off on February 5, 1965. Classified initially as laborers, Turner and Magee were assigned to work in the carpentry shop. By February 1965, after Turner had worked in the carpentry shop about four years and Magee about two and one-half years, both of them were transferred from the carpentry shop to the "yard" to do general labor. Shortly thereafter they were discharged.

They were replaced in the carpentry shop by two white men who had just been hired. On August 17, 1965, after the effective date of Title VII of the 1964 Civil Rights Act,³ they applied for re-employment but were told the company was not doing any hiring.

The company did not attempt to offer any explanation for the discharge of Turner and Magee. Charles White, the company's General Superintendent, testified that Turner and Magee were moved from the carpentry shop to the "yard"; he did not personally know whether or not white employees replaced them, but, if so, it was "without his knowledge" and he was "not going to condone it."

The evidence is persuasive that Turner and Magee were replaced in the carpentry shop because of their race, and that this replacement resulted in their discharge shortly thereafter. This however occurred before the effective date of Title VII, July 2, 1965, although the refusal to re-employ them came after Title VII had become applicable. Their rights will be discussed below after a consideration of the scope of Title VII.

B. Alex Clark

By contrast with the evidence concerning the other individual plaintiffs, Alex Clark's testimony was uncorroborated, unconvincing, and denied by other credible witnesses. He testified that one day in August, 1965, his supervisor, Lawrence Rouse, told him to get a shovel and clean off "the barge on the dock." There were two barges on the dock, he said, and one was an oil barge. So he assumed he was to shovel shells off the other, which was a shell barge. He began doing so. Later Rouse returned, called him a "black stupid son of a bitch" for working on the wrong barge and, after the ensuing conversation, took him to the personnel manager who fired him. He testified he protested his discharge to the company's president (Durant), but his request for re-employment went unheeded.

Rouse, on the other hand, testified there was no oil barge at the dock. There were two barges, one carrying limestone and the other loaded with shell. He sent Clark to shovel shell, but found him shoveling limestone instead. Rouse told Clark that he was on the wrong barge. Clark then protested because Rouse was always moving him around, an argument ensued, and Clark demanded his pay check. Durant denied that Clark had ever spoken to him.

At the conclusion of the trial, when the impressions formed from the testimony and demeanor of the witnesses were fresh, the court observed, "My present impression is Mr. Clark has not borne the burden of proof in his individual case." That conclusion has not been altered, and Clark's individual claim will be denied.

II. THE CLASS ACTION

A. Fact Findings⁴

The defendant stresses certain factual aspects of the case well supported by the evidence: it desegregated such facilities as wash rooms and rest rooms before or contemporaneously with the passage of the Civil Rights Act; it has not been shown to have refused initial employment to any qualified Negro because of race; it has not been shown to have refused to promote any qualified Negro or to have denied employment to any skilled Negro.

But serious discrimination against Negroes nonetheless exists. It is subtle but not unwitting. Three employment practices with discriminatory effects are deliberately pursued.

1. Racial Discrimination in Initial Classification

Upon hiring, unskilled Negroes are generally classified as laborers and whites are classified as helpers. Two "lines" of progression are formed in the company's unskilled ranks, each leading in a different direction. Laborers progress only to sandblasting, hooking, and painting. Whites, on the other hand, hired as "helpers", are assigned to assist semi-skilled and skilled employees. They are paid the same wage as laborers, but they are afforded the opportunity to learn better paying, more interesting jobs. The company generally fills its craft positions from within its own ranks, and only helpers acquire the skills to advance to these jobs.

"Even if this be so," the defendant contends, "there is no way of knowing the extent to which Negro employees would have advanced. * * * Certainly every Negro helper would not have advanced to top grade." That is obvious. But the discrimination lies in barring the way to all Negroes: those who could have advanced and those who could not. Not all white employees reach the top of the industrial ladder; but each has a chance to do so on his individual merit, without racial discrimination, and also without competition from his black fellow workers.

2. Hiring Practices

Hiring is "at the gate"; no advertisements or public announcements are made when jobs become available. The word of mouth message that vacancies exist in better paying jobs therefore usually goes only to whites. See Lea v. Cone Mills, N.D.N.C.1969, 301 F. Supp. 97, holding similar practices discriminatory.

3. Instructional Opportunities

Finally, only whites were offered company sponsored instruction in tacking, a semi-skilled position, roughly equivalent to third-grade welding, that presents an excellent opportunity to learn skilled jobs such as welding. One of the white senior welders instructed white employees in tacking during their lunch hour, with company encouragement, using company equipment and supplies. He was paid for time thus spent, but taught no Negroes.⁵

While there is no affirmative evidence that any Negro requested admission to the class and was refused, the evidence points irresistibly to the conclusion that racial exclusion was intentional. The instructor taught whom he chose. He chose only white employees. All tackers and welders in the company's employ were white. Negroes working at a plant that had so clearly demonstrated a racial bar to the classification of Negroes could not be expected to jeopardize their jobs by seeking to cross the barrier so evident to them.

B. Class Relief

Title VII of the 1964 Civil Rights Act was a recognition by Congress of widespread racial discrimination in employment that might affect any or all of the twenty-odd million Negroes in these United States, and an attempt to provide a remedy. See Hearings on S. 773 and S. 1937 Before the Subcomm. on Employment and Manpower of the Senate Comm. on Labor and Welfare, 88th Cong., 1st Sess., pp. 2-3; 72-74 (1963).

Here we have a clear demonstration of the condition that the Act was designed to eliminate. The defendant has pursued policies that discriminate against Negroes in initial hiring as well as in opportunity for advancement.

Title VII, 42 U.S.C. § 2000e-2, declares:

"It shall be an unlawful employment practice for an employer —

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin."

The company's conduct violates both subparagraphs. Its actions have not even been veiled with a gauze of objectivity by employment tests or other standards. Its employment policies have violated not only the express statutory language of the Act and the congressional policy embodied in it, but the truth, proclaimed to be self-evident by those who declared America's independence, that "all men are created equal."

No working man should be deprived of the right to earn his industrial way on free and equal terms. In Judge Gewin's words, "The ethic which permeates the American dream is that a person may advance as far as his talents and his merit will carry him." Miller v. International Paper Co., 5 Cir. 1969, 408 F.2d 283, 294.

Under Section 706(g) of Title VII, 42 U.S.C. § 2000e-5(g), the court is...