Cuthbertson v. Biggers Bros., Inc.

• Decision Date: 09 March 1983
• Docket Number: No. 81-2044,81-2044
• Citation: 702 F.2d 454
• Parties: 32 Fair Empl.Prac.Cas. 1592, 31 Empl. Prac. Dec. P 33,439 Carl L. CUTHBERTSON, Brown T. Worthy, Fred Johnson, Jr., Calvin Gregory, Appellees, and James H. Little, John Clay, James W. Baldwin, Bobby Campbell, Jimmie Anderson, Eddie Hicks, James Gill, Truemain Mainor, Charles Neal, Hendrick Robinson, Willie Frazier, Jr., Plaintiffs, v. BIGGERS BROTHERS, INC., Appellant, Calvin Gregory, Intervenor.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 454

702 F.2d 454

32 Fair Empl.Prac.Cas. 1592,

31 Empl. Prac. Dec. P 33,439

Carl L. CUTHBERTSON, Brown T. Worthy, Fred Johnson, Jr. Calvin Gregory, Appellees and James H. Little, John Clay, James W. Baldwin, Bobby Campbell, Jimmie Anderson, Eddie Hicks, James Gill, Truemain Mainor, Charles Neal Hendrick Robinson, Willie Frazier, Jr., Plaintiffs, v. BIGGERS BROTHERS, INC., Appellant Calvin Gregory, Intervenor.

No. 81-2044.

United States Court of Appeals, Fourth Circuit.

Argued July 20, 1982.

Decided March 9, 1983.

J.W. Alexander, Jr., Charlotte, N.C. (Blakeney, Alexander & Machen, Charlotte, N.C., on brief), for appellant.

J. Levonne Chambers, Charlotte, N.C. (Junathan Wallas, Chambers, Ferguson, Watt, Wallas, Adkins & Fuller, Linwood O. Foust, Charlotte, N.C., on brief), for appellees.

Before RUSSELL, WIDENER and HALL, Circuit Judges.

WIDENER, Circuit Judge:

Biggers Brothers, Inc. appeals from a judgment entered after a bench trial, in which it was found to have discriminated against four black employees in violation of 42 U.S.C. Secs. 1981, 2000e et seq., and which awarded relief. We reverse in part and remand in part for further proceedings.

I.

The defendant, Biggers Brothers, Inc., operates a distribution center in Charlotte, North Carolina, where it receives and stores various food products for delivery to its customers. The defendant's principal business is selling foodstuffs to institutional buyers, such as restaurants, hotels, and hospitals for their in-house preparation.

The defendant's workforce comprises, from time to time as pertinent here, some 350-500 employees who were assigned to some thirty different jobs in separate departments, including the warehouse, transportation, maintenance, and sales departments. Given the nature of the defendant's enterprise, its sales department is the heart of the business. Salesmen work within various assigned territories in North Carolina and surrounding States. Salesmen are expected to enlist customers and solicit orders. They must become familiar with the defendant's extensive line of products, and they must help customers select products of the appropriate quality in light of the customer's desires and resources, and what the customer's competitors are offering. Salesmen also help customers calculate overhead and profit, and advise customers on economies in purchasing.

In the course of their duties, salesmen must place customers' orders with the defendant's order department, using a hand-held data-processing computer. They investigate their customers' credit-worthiness and recommend to the accounting department whether the customer should receive credit. Although the defendant's management decides finally whether to allow a customer to purchase on credit, a salesman's faulty recommendation may redound to both his and the company's detriment. The salesmen collect accounts. If the salesman cannot later collect from the customer, he is penalized for the delinquency. With at least a part of the cash and checks that he collects, the salesman must open and maintain bank accounts in the defendant's name. The salesmen must fully record and account for their collections, which in Cuthbertson's case exceeded a million dollars a year. In connection with their job-required responsibilities, salesmen must be proficient in and carry on correspondence with customers and the various departments of the defendant. The job, as described by the plaintiff Cuthbertson, is a profession or career, not merely soliciting orders. He freely admitted he was not qualified for the job without his college education.

The position of salesman for the defendant is quite desirable. Established salesmen are paid on a commission basis; there are in fact one or more salesmen who have cultivated many customers and who earn more than $70,000 a year. Only members of defendant's top management earn more than the top salesmen. Until November 1976, no black employee worked for the defendant as a salesman. The transportation department employees were predominately black. Other than sales, transportation is the highest paid department of the defendant.

On July 21, 1977, Cuthbertson, Worthy, and Johnson, along with eleven other plaintiffs, filed suit in the district court, alleging causes of action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq., and under 42 U.S.C. Sec. 1981. The plaintiffs alleged that the defendant, their employer, had discriminated against them and a class of black present and former employees. According to the complaint, the defendant had followed a pattern and practice of racial discrimination, had limited the opportunities of black employees to be promoted to sales positions, and had used subjective discriminatory criteria to prevent blacks from advancing into the higher paying hourly-paid and management positions. The defendant answered, denying all plaintiffs' material allegations.

The district court conditionally certified a class of all present and former black employees of the defendant, and a trial was had to the court. The plaintiffs' principal contentions were that they had sought sales positions and that the required qualifications were applied pretextually to exclude them. At the conclusion of the trial, the court filed a Memorandum of Decision, finding that the defendant had discriminated in its hiring of salesmen by denying or delaying the promotion of three of the plaintiffs and one other class member. The court in that document directed plaintiffs' counsel to prepare "appropriate findings of fact, conclusions of law and a judgment." It gave the defendant 30 days following service of plaintiffs' proposals to except or submit alternate proposals. The twenty-four pages of the findings of fact and conclusions of law prepared by plaintiffs' attorneys were adopted verbatim except for inconsequential changes in three pages which the court termed "relatively immaterial." ¹ The district court then entered judgment, decertifying the class, enjoining the defendant from practicing racial discrimination against the four named employees, and awarding back pay in amounts to be determined in later proceedings before a master, as well as incidental relief. The court also awarded fees, costs, and expenses to plaintiffs' counsel. The balance of the plaintiffs' claims were dismissed. Defendant's principal claim on appeal is that the finding of racial discrimination by exclusion of the four black employees from sales positions was clearly erroneous.

II.

In establishing a prima facie case of racially discriminatory treatment in violation of Title VII, a plaintiff must show by a preponderance of the evidence that he applied for an open position for which he was qualified, but was rejected under circumstances that give rise to an inference of unlawful discrimination. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1980); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). Once a plaintiff makes out his prima facie case, the burden of production, not the burden of persuasion, shifts to the defendant "to articulate some legitimate, non-discriminatory reason for the employee's rejection." McDonnell Douglas Corp., 411 U.S. at 802, 93 S.Ct. at 1824. If the employer satisfied its burden of production, the plaintiff must have the opportunity to show that the proffered reason is merely a pretext to mask intentional discrimination. A plaintiff retains the burden of persuasion to show that the employer was more likely motivated by an illicit discriminatory reason than the one proffered or that the proffered explanation is unworthy of credence. Burdine, 450 U.S. at 256, 101 S.Ct. at 1095; McDonnell Douglas Corp., 411 U.S. at 804-05, 93 S.Ct. at 1825-26.

At trial, the plaintiffs contended that they were qualified for sales positions by their training and work as truck drivers and in the warehouse. The defendant challenged this contention. It claimed that at least since 1967, informally, and since 1976, formally, it had required for salesmen two years of sales experience, or two years of managing a food related business, or two years of college. In addition, the defendant sought persons who were neat in appearance, personable, and articulate, although these attributes are not at issue in the case. The defendant did not conduct a study to see whether these criteria were necessary for a prospective salesman's future success; nevertheless, because of the specialized selling involved, the defendant believed that these criteria would help it select successful salesmen who had the requisite math and verbal skills and who would responsibly carry out their selling duties.

The plaintiffs attacked defendant's insistence on these qualifications as a pretext. They claimed that many of defendant's salesmen did not meet the qualifications for the job. The district court agreed. It found that white employees and applicants had been selected as salesmen with no prior sales experience or education beyond high school. It further found that the most useful sales experience was working in the warehouse and order departments, and driving trucks, in which jobs it said an employee could learn the defendant's product line and the means of processing orders, and become familiar with the defendant's customers. Accordingly, the court concluded that four of the claimants established prima facie cases of unlawful discrimination. Having found that the defendant's standards were not followed for hiring white salesmen, the district court concluded that the defendant offered no acceptable explanation for its failure to employ the plaintiffs in sales, and gave judgment for three plaintiffs and one purported class member.

III.

We have previously condemned the practice of adopting the prevailing party's proposed findings of facts and conclusions of law, and we repeat that admonition...