Domingo v. New England Fish Co.

Decision Date13 March 1984
Docket NumberNos. 81-3702,82-3026,82-3027 and 82-3035,s. 81-3702
Citation727 F.2d 1429
Parties34 Fair Empl.Prac.Cas. 584, 33 Empl. Prac. Dec. P 34,253 Nemesio D. DOMINGO, Jr.; Samuel Cabansag, Jr.; Joseph C. Ancheta; Thomas G. Carpenter and Terri Jane Mast, as administrator of the estate of Silme G. Domingo; Nellie Kookesh; Audrey A. Merculief; Frank Paul; Mary Paul; Tony Evon, Sr.; and Samuel Strauss, Plaintiffs-Appellants/Cross-Appellees, v. NEW ENGLAND FISH COMPANY, and Nefco Fidalgo Packing Co., Defendants- Appellees/Cross-Appellants.
CourtU.S. Court of Appeals — Ninth Circuit

Abraham A. Arditi, Northwest Labor & Employment Law Office, Seattle, Wash., Craig Tillery, Alaska Legal Service Corp., Anchorage, Alaska, for plaintiffs-appellants/cross-appellees.

Michael Dundy, Bogle & Gates, Anchorage, Alaska, for defendants-appellees/cross-appellants.

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

Before CHOY and FLETCHER, Circuit Judges, and MacBRIDE, * District Judge.


Nemesio Domingo, a Filipino, is a named plaintiff in a class action suit against his former employer, New England Fish Co. ("Nefco"). Domingo charged Nefco with employment discrimination on the basis of race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq., and the Civil Rights Act of 1866, 42 U.S.C. Sec. 1981. Following a bifurcated trial, the district court found for plaintiffs and awarded classwide and individual damages. We affirm in part and reverse in part.

I. Background

As the facts of this case are reported more fully in the district court opinion, Domingo v. New England Fish Co., 445 F.Supp. 421 (W.D.Wash.1977), they only will be summarized here. Nefco operates salmon canneries located in remote, widely separated areas of Alaska. The facilities operate for only a limited period each year--typically less than 2 months--and lie vacant for the remainder of the year. Nefco hires employees from various areas of Alaska and from Washington, Oregon, and northern California. It transports the employees to the canneries and houses and feeds them throughout the canning season. Employees are hired in a number of capacities, ranging from cannery workers and general maintenance personnel to administrators and engineers.

A. Statistics and Hiring Policies

According to statistics compiled by Domingo and not challenged by Nefco, Nefco's work force was 47% nonwhite overall. However, nearly half of Nefco's hirings by job titles were racially segregated; in certain jobs 90% or more of the employees were white, while in others 90% or more were nonwhite. Many of the higher-paying job classifications were predominantly white, including jobs in the administrative department (100%), the tender department (96%), the quality control department (93%), and the machinist department (90%). The largest and lowest paying department, the cannery department, was 76% nonwhite.

The district court found that several company records labeled work crews by race. Time sheets contained job titles such as "Fil. [ipino] Crew--1st Foreman," "Fil. Crew--Inspector," "Native Cannery Foreman," or "White Bull Cook." Racial labels were also found in computer ledgers at Nefco's home office, on internal memoranda, and on budget forms prepared by cannery superintendents.

Nefco hired employees for each job department through separate channels. For the lower-paying cannery worker jobs, for example, Nefco recruited workers from native villages in Alaska and through a primarily Filipino ILWU local in Seattle. The resulting work force in the cannery department was almost entirely Alaska Native and Filipino. In contrast, the machinists and beach gangs were recruited by word of mouth. Friends and relatives of employees in those departments were thus the first to receive word about vacancies in the department. As the people in those departments were mostly white and the foremen who did the recruiting were white, most of the employees recruited were also white.

In addition, Nefco gave preference in hiring to relatives of company employees and business associates. This pervasive nepotism policy did help both whites and nonwhites obtain employment, but whites controlled the best jobs, and in those jobs the nepotism favored whites.

Finally, Nefco's criteria for employment were almost entirely subjective. The only criteria were: (1) job-related experience, (2) reputation for being a good worker, and (3) compatibility; even these criteria were not always adhered to. Each hiring decision was made by a cannery superintendent or a foreman on the basis of his personal judgment. Almost without exception, the hiring foremen and superintendents were white.

In order to justify its hiring decisions, Nefco introduced written job descriptions which purported to describe the necessary qualifications for many of its skilled jobs. However, the district court found that these job descriptions were largely pretextual since a number of Nefco's skilled employees could not meet the qualifications listed in the job descriptions as of the time they were hired.

B. Housing and Mess Halls

Although Nefco claimed that housing was assigned on the basis of crew and date of arrival at the cannery, employees found themselves in buildings that were either largely or entirely segregated. Even when integrated crews were assigned to the same bunkhouse, the floors of the bunkhouse were segregated by race. The best housing was assigned first and the worst assigned last, but the machinist, tender, carpenter, and other crews in which whites predominated were generally brought to the facilities first. The cannery crew (76% nonwhite) was generally the last to arrive.

Domingo also alleged that Nefco maintained segregated eating facilities at its canneries. However, Nefco did not assign seating in mess halls. In some of the mess halls, signs proclaimed that there were no seating restrictions. Generally, two types of food were served in the mess halls: American and Oriental. The Oriental food was provided at the request of Local 37, a Filipino union. At some of the canneries, the American and Oriental messes were in two different buildings. The Oriental mess was frequented mainly by Filipinos, and was known as the "Filipino mess." However, any employee could eat in either mess hall if he notified the cook in advance and if there was enough food and space to accommodate him. At other canneries, American and Oriental food was served in the same building. Employees usually sat at segregated tables because crews that worked and slept together generally ate together as well.

C. Procedural History

In this lawsuit, the district court certified Domingo's class as that of all nonwhites employed or deterred from employment at any one of five Nefco facilities at any time from January 30, 1971 to November 8, 1976. The court then bifurcated the trial, intending to determine liability on a classwide basis and damages individually. The liability phase of the trial occurred in November 1976, lasting 1 1/2 days. Most of the evidence presented during this phase was in written form.

In the court's reported opinion on liability, the district court found that plaintiffs had established an unrebutted prima facie case of discriminatory employment practices in job allocation and in housing, and that plaintiffs had failed to establish a prima facie case of discrimination in messing.

Following the entry of the liability opinion, 1 individual notice and a claim form were mailed to 780 individuals. Notice was also published in a number of newspapers in Alaska, Washington, and California, and radio broadcasts in English and Yupik were made to native villages in Alaska. In the interim between the liability and the damages phases of the suit, however, the district court placed several restrictions on communications between class members and Domingo and his counsel. The notices did not include the name, address, or telephone number of Domingo's counsel. The court offered claimants the services of four magistrates to assist in filing claims, and it permitted Domingo and his counsel to assist class members in filing claims only when the class members initiated the contact. During some portion of the time before the damages hearings, the district court prohibited Domingo's counsel from interviewing claimants without giving Nefco's counsel the opportunity to attend and ask questions.

Claim forms were received from 205 individuals. Twelve were not members of the class. The district court dismissed the claims of 19 others before counsel had any contact with them. Thirty-one withdrew their claims.

Ultimately, 124 claims were heard by the district court. The court in November 1981 awarded individual damages to eight of the 124 claimants, and in addition made a lump-sum award of $55,000 in back pay to compensate for disparities in housing quality. 2

II. Liability for Discrimination in Hiring and Promotion

The courts have devised two different models to analyze claims of employment discrimination under Title VII. The disparate impact model is used where the plaintiff claims that some facially neutral employment practice has a significantly disproportionate impact on a group protected by Title VII. Moore v. Hughes Helicopters, Inc., 708 F.2d 475, 481 (9th Cir.1983); Heagney v. University of Washington, 642 F.2d 1157, 1163 (9th Cir.1981). Once the plaintiff has made a prima facie showing of the existence and impact of such a practice, the burden shifts to the employer to justify the practice as having a manifest relationship to the employment. Connecticut v. Teal, 457 U.S. 440, 446, 102 S.Ct. 2525, 2530, 73 L.Ed.2d 130 (1982); Griggs v. Duke Power Co., 401 U.S. 424, 432, 91 S.Ct. 849, 854, 28 L.Ed.2d 158 (1971). If the defendant meets this burden, the plaintiff must respond by showing that a less...

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