EEOC v. ANDERSON'S RESTAURANT OF CHARLOTTE, C-C-86-002-P.

• Court: United States District Courts. 4th Circuit. Western District of North Carolina
• Writing for the Court: Philip M. Van Hoy, Mullins and Van Hoy, Joseph C. Travis, Charlotte, N.C., for defendant
• Citation: 666 F. Supp. 821
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. ANDERSON'S RESTAURANT OF CHARLOTTE, INC., Defendant.
• Docket Number: No. C-C-86-002-P.,C-C-86-002-P.
• Decision Date: 03 August 1987

666 F. Supp. 821

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v.
ANDERSON'S RESTAURANT OF CHARLOTTE, INC., Defendant.

No. C-C-86-002-P.

United States District Court, W.D. North Carolina, Charlotte Division.

August 3, 1987.

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D. Marvin Jones, E.E.O.C., Charlotte, N.C., for plaintiff

Philip M. Van Hoy, Mullins and Van Hoy, Joseph C. Travis, Charlotte, N.C., for defendant.

MEMORANDUM OF DECISION

ROBERT D. POTTER, Chief Judge.

THIS MATTER is before the Court upon a Complaint filed by Plaintiff, Equal Employment Opportunity Commission ("EEOC"), against Defendant, Anderson's Restaurant of Charlotte, Inc. ("Anderson's"), in which the EEOC alleges that Anderson's has engaged in racially discriminatory employment practices in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended ("Title VII"), and seeks relief for a class of black applicants for the position of waitress and cashier.

The trial of this case was heard before the undersigned without a jury from May 11 through May 13, 1987, in Charlotte, North Carolina. The EEOC was represented during these proceedings by Attorneys Donald M. Jones, Reuben Daniels, Ronald Arrington, Michael McGee, John Edmonds, and Humphrey Cummings, of the Legal Unit of the EEOC's Charlotte District Office. Anderson's was represented by Attorney Philip M. Van Hoy.

FINDINGS OF FACT

(1) The Court has jurisdiction of this case pursuant to 28 U.S.C. §§ 451, 1331, and 1337, 1343 and 1345. This action is authorized and instituted pursuant to Section 706(f)(1) and (3) of Title VII; all jurisdictional prerequisites to suit have been satisfied.

(2) The EEOC is an agency of the United States of America charged with the administration, interpretation, and enforcement of Title VII and is expressly authorized to bring this action by Section 706(f)(1), 42 U.S.C. § 2000e-5(f)(1).

(3) Anderson's is a North Carolina corporation and since 1946 has operated as a family-owned restaurant located on Elizabeth Avenue in Charlotte, North Carolina. Anderson's has at all times pertinent to this action employed more than 15 persons and, under Section 701(b), (g), and (h) of Title VII, 42 U.S.C. § 2000e(b), (g), and (h), is an employer engaged in an industry affecting commerce.

(4) The EEOC contends that Anderson's has since January, 1979 maintained an illegal pattern and practice of failing or refusing to hire blacks as waitresses or cashiers, that Anderson's did so on the basis of race thereby depriving certain black applicants the equal employment opportunities guaranteed under Title VII. The EEOC also contends that Anderson's has unlawfully failed to post proper equal employment opportunity posters. Based on its most recent Claimant's List, filed June 25, 1987, the EEOC seeks relief for the following seven claimants whom it contends were denied employment by Anderson's as either waitresses or cashiers because of their race: Joyce Mitchell, Renee Jeffries, Penelope Pendergrass, Cynthia Lincoln, Janice Clyburn, Diana Hill Sanders, and Regina Linsay. (The Court will make specific factual findings concerning each of these individual claimants further in its discussion.) The EEOC seeks instatement to positions of waitress and cashier for all the applicants, and back pay for Mitchell, Jeffries, Pendergrass, and Lincoln. The EEOC, in addition, seeks an injunction and monetary penalty against Anderson's for its failure to post equal employment opportunity posters.

(5) This action arose out of a charge filed by Edna Harrison, black, on April 29, 1983,

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alleging that she was discharged on account of race and that Anderson's, among other things, discriminated against blacks by refusing to hire them in positions of cashier and waitress. (EEOC Ex. 1, Charge of Discrimination.) Although the EEOC found that no reasonable grounds existed to believe Harrison was discharged on account of her race and although Harrison is not a party or claimant to this lawsuit, the EEOC determined that Anderson's maintained since January, 1979, a pattern and practice of failing or refusing to hire blacks as waitresses and cashiers on the basis of race in violation of Title VII, in particular, a class of black applicants who unsuccessfully sought employment with Anderson's

(6) After efforts of conciliation failed, the EEOC instituted this action on January 3, 1986.

(7) Anderson's at all material times has maintained the following non-salaried job categories: waitress, cashier, bus help and cook.

STATISTICAL SHOWING

(8) Anderson's hired 44 waitresses in 1979, six in 1980, 16 in 1981, (EEOC Ex. 71), at least seven in 1982, and 14 from January to September, 1983. (Plaintiff's Ex. 22, Interrogatory Response No. 6.) Anderson's hired eight persons as cashier from February 1982 until December 1983. Id.

(9) EEOC Investigator Bill Convey testified that he was able to identify 29 persons who applied for the position of waitress from January 1, 1982 through October 24, 1983. Of these unsuccessful applicants, Convey determined that nine were black, seven were white, and for 13, race could not be determined. (Tr. 103.) Presumably, three of the nine blacks are claimants in this action.

(10) Convey also testified that he identified 48 persons who applied for the position of cashier from January 1, 1982 through October 24, 1983. Of these unsuccessful applicants, Convey determined that 10 were black, 15 were white, and for 23, race could not be determined. (Tr. 103-04.) Presumably, five of the ten blacks are claimants in this action.

(11) Anderson's hired no blacks as cashier prior to 1984. (EEOC Ex. 23, Admission No. 21.) Nor did Anderson's hire any blacks as waitress from 1979 through April 30, 1983. (Tr. 498-500; EEOC Ex. 22, Response to EEOC Interrogatory No. 6; G. Anderson Dep. p. 49.) During her deposition Betty Ann Lawton, in her 10 years experience as a waitress at Anderson's, was unable to name any black waitress prior to 1983. (EEOC Ex. 45, Dep. Betty Lawton, p. 17.) Further, from February 1982 through April 1983, Anderson's hired only blacks as cooks or bus help (EEOC Ex. 22; Tr. 498-500.) Anderson's has hired at least one black waitress immediately before the time period during which the claimants applied in May, 1983, but after Edna Harrison's initial charge of discrimination; and Anderson's has hired other black waitresses since. (Tr. 430, 518; EEOC Exhibit 22.)

(12) The Court took judicial notice that blacks supply 20 percent of the general labor force in Charlotte, North Carolina. (Tr. 362, EEOC Ex. 90.) Further, EEOC's Exhibit 90 shows that, in 1980, the United States Department of Commerce, Bureau of Statistics, determined that the total work force of waiters and waitresses in the Charlotte area included 2,806 persons, 366 males, and 2,440 females. Of those persons, 412 were black; and of all the blacks, 315 were female. Thus, the EEOC's evidence shows that black female waitresses contribute approximately 11.2 percent of the total waiter/waitress labor force and 12.9 percent of the total waitress labor force.

(13) The Court granted Anderson's Motion in limine to exclude expert testimony because of the EEOC's continued refusal to disclose its anticipated expert's identity until shortly before trial, in direct defiance of an Order of this Court. Thus, the EEOC presented no expert testimony establishing a statistical analysis of Anderson's hiring practices nor did the EEOC make any presentation of the statistical significance of the Anderson's hiring practices between

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1979 and 1983. The EEOC contended that, for the time period in question, statistics are unnecessary because Anderson's hired zero blacks into positions of waitress and cashier. The EEOC, therefore, argues that since Anderson's was shown to have hired waitresses and cashiers during this time period, and since the EEOC has established that blacks were available, then a prima facie case of discrimination exists. This contention is based upon the testimony of Hood and Convey, and is opposite the testimony of Gary Anderson that he was certain that he knew of no blacks that applied for waitress or cashier from the time he went to work full-time in 1979 until shortly after the filing of the Edna Harrison charge in late April, 1983. (Tr. 465-66, 482-83.)

(14) During the 15-month period immediately preceding the original charge of discrimination, from February 1982 through April 1983, Anderson's hired 46 people: 14 were white, 32 were black. (EEOC Ex. 22, Interrogatory Response No. 6.) All of the cooks or buspersons hired were blacks, and all of the waitresses and cashiers hired were white. The putative class members applied from June 30 through September 30, 1983.

(15) The statistical composition of Anderson's work force as of July 6, 1983, showed that Anderson's employed:

(a) seven cashiers, all white;

(b) 12 waitresses, all white;

(c) 14 cooks, all black;

(d) 10 buspersons, all black, except for one white dishwasher.

(EEOC Ex. 23, Ex. G.; Anderson's List of Current Employees as of July 6, 1983.)

(16) Gary Anderson, however, credibly testified that Anderson's has employed, prior to the filing of the EEOC charge, at least four white cooks and at least three white buspersons. (Tr. 389, 428-29), thus rebutting the EEOC's contention that Anderson's has systematically engaged in racial job segregation. There was ample testimony that black employees had constant contact with customers, also disproving the EEOC's contention of systematic job segregation to reserve customer contact jobs for white waitresses and cashiers. (Tr. 413-14.) Barbara Price, a witness for the EEOC, testified that as a busperson she frequently came into contact with customers while carrying out such duties as setting up tables while customers sat at tables, and...