EEOC v. Jordan Graphics, Inc., No. C-C-89-137-P.

• Court: United States District Courts. 4th Circuit. Western District of North Carolina
• Writing for the Court: David L. Terry, Richard F. Kane, Charlotte, N.C., for defendant
• Citation: 769 F. Supp. 1357
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. JORDAN GRAPHICS, INC., Defendant.
• Docket Number: No. C-C-89-137-P.
• Decision Date: 12 August 1991

769 F. Supp. 1357

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v.
JORDAN GRAPHICS, INC., Defendant.

No. C-C-89-137-P.

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

August 12, 1991.

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769 F. Supp. 1359

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John H. Edmonds, Rickye McKoy-Mitchell, Humphrey S. Cummings and Julie H. Foshbinder, E.E.O.C., Charlotte Dist. Office, Charlotte, N.C., for plaintiff

David L. Terry, Richard F. Kane, Charlotte, N.C., for defendant.

MEMORANDUM OF DECISION AND ORDER

ROBERT D. POTTER, District Judge.

THIS MATTER was tried before the undersigned from May 14, 1991 through May 17, 1991 without a jury in Charlotte, North Carolina. The complaint alleges that Defendant engaged in unlawful employment practices at its Mecklenburg County, North Carolina facility by failing to hire Claimant Andria Tribble and other blacks on account of their race. See Plaintiff's Complaint, filed March 21, 1991, at par. 7. Plaintiff was represented at trial by John H. Edmonds, Rickye McKoy-Mitchell, Humphrey S. Cummings, and Julie H. Foshbinder, all from the Charlotte Regional Office of the Equal Employment Opportunity Commission. Defendant was represented at trial by Richard F. Kane and David L. Terry, both from the Charlotte law firm of Blakeney, Alexander & Machen.

Following the close of Plaintiff's evidence, Defendant moved for a directed verdict pursuant to Rule 50 of the Federal Rules of Civil Procedure. The Court deferred ruling on the motion. After Defendant had presented its evidence, Defendant renewed its motion. The Court once again deferred ruling on the motion. Based on the Order of the Court herein, the Court now believes Defendant's motion for a directed verdict is moot, and should therefore be dismissed as such.

Having heard the witnesses, weighed the evidence, and considered the arguments made by counsel, the Court enters the following Findings of Fact and Conclusions of Law.

I. FINDINGS OF FACT.

A. Jurisdictional Requirements.

(1) This Court has jurisdiction of this case pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343 and 1345. The action is brought pursuant to Section 706(f)(1) of Title VII of the Civil Rights Act of 1964, codified at 42 U.S.C. § 2000e-5(f). That statute authorizes Plaintiff to bring actions on behalf of persons that have been subjected to employment discrimination based on their race.

(2) Plaintiff is the agency of the Government of the United States which is statutorily charged with the duty to administer, interpret and enforce Title VII of the Civil Rights Act of 1964, codified at 42 U.S.C. § 2000e et seq.

(3) Defendant is in the business of producing business forms and other graphic

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materials. Plaintiff's Trial Exhibit 9.¹ It maintains a facility on the western edge of Mecklenburg County, bordering Gaston County. Trial Testimony of Catherine Thompson at 186²; Defendant's Ex. 30. At all times relevant to this litigation, Defendant employed in excess of 15 employees and is an "employer" as defined by § 701(b) of Title VII, 42 U.S.C. § 2000e(b). Plaintiff's Ex. 9 at par. 3

(4) The subject matter of this action resulted in a charge of discrimination that was timely filed by Claimant Andria Tribble on August 18, 1986. Plaintiff's Ex. 1. Claimant Tribble alleged in that charge that she was denied employment opportunities with Defendant because of her race. Id. Moreover, Claimant Tribble alleged that Defendant was discriminating against blacks as a class.

(5) Thereafter, Plaintiff began an investigation of the charge. Plaintiff's Ex. 2, 17, and 154-157. The investigation resulted in a letter of determination being issued on January 22, 1988. Plaintiff's Ex. 3. That letter states that Plaintiff believed reasonable cause existed to conclude that Claimant Tribble's race was a factor in Defendant's failure to hire. Id. at 2. The letter further states that Defendant's practice of utilizing word-of-mouth advertising to fill job vacancies had an adverse impact on blacks as a class. Id. at 3. Finally, the letter invited Defendant to enter into discussion with Plaintiff to bring about a just resolution of the matter. Id. at 4.

(6) A conciliation agreement was prepared by Plaintiff and submitted to Defendant. Defendant's Ex. 23. The proposed conciliation agreement provided that Defendant was to eliminate word-of-mouth advertising and advertise all vacant jobs in the Charlotte Observer, Charlotte Post, and Gastonia Gazette. Id. at 4. Moreover, the agreement required Defendant to offer Claimant Tribble a position and back pay. Id. at 3. As to the class of blacks, the agreement required Defendant to offer three additional Claimants positions and back pay. Id. at 4.

(7) Defendant has claimed that Plaintiff failed to offer to conciliate regarding the class of blacks that were allegedly subjected to disparate treatment. However, nowhere in the agreement is it stated that the three (3) additional Claimants are the only members of the affected class.

(8) Plaintiff was only required to provide Defendant with reasonable notice of the general type of discrimination alleged and to provide Defendant with an opportunity to remedy the problems out of court. See EEOC v. American National Bank, 652 F.2d 1176, 1186 (4th Cir.), rehearing denied, 680 F.2d 965 (4th Cir.1981), cert. denied, 459 U.S. 923, 103 S.Ct. 235, 74 L.Ed.2d 186 (1982). The emphasis of the conciliation provision of Title VII is not to provide a rigid pleading requirement on the EEOC in enunciating the reasonable cause determination, but instead to provide employers with the opportunity to resolve disputes with the EEOC before a lawsuit is filed. See EEOC v. General Electric Company, 532 F.2d 359, 371 (4th Cir.1976) ("As a practical matter, it would seem the defendant was thus given by the EEOC its right of comment and merely because it came during conciliation rather than before the reasonable cause determination would appear immaterial"). It is immaterial that the EEOC did not specifically state in the determination letter all of the alleged discriminatory practices and all of the class members. See EEOC v. Reichhold Chemicals, Inc., 700 F.Supp. 524, 527 (N.D.Fla. 1988) (finding that where EEOC in course of investigating a charge of discrimination develops facts which lead it to believe that a separate, uncharged incident or form of discrimination has occurred may attempt to conciliate the finding of the uncharged discrimination, and if conciliation fails, suit may be filed). What is material is whether Defendant was provided with an opportunity to conciliate. See EEOC v. Sears, Roebuck and Co., 650 F.2d 14, 19 (2d Cir.1981).

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The Court finds as a matter of fact that Plaintiff provided Defendant an opportunity to conciliate. Defendant was aware of the uncharged discriminatory practices and class members alleged by Plaintiff. Moreover, Plaintiff was willing to meet and discuss conciliation regarding these practices and class members with Defendant. Defendant, however, was not amenable to conciliation. Plaintiff's Ex. 4. Therefore, the Court finds that Plaintiff complied with the requirement that it "... endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation and persuasion". See 42 U.S.C. § 2000e-5(b).

(9) All conditions precedent to the institution of this lawsuit have thus been fulfilled.

B. Scope of the Action.

(10) The relevant class period of this action is February 18, 1986 through May 9, 1989. Plaintiff's Supplemental Proposed Findings of Fact, filed July 5, 1991 at par. 15 on page 4; Defendant's Supplemental Proposed Findings of Fact, filed July 5, 1991 at par. 2 on page 8.

(11) The class members are those persons that applied for entry level positions during the relevant class period. Through running advertisements in local newspapers, Plaintiff initially identified approximately 50 possible class members. After review of the claims of these persons, Plaintiff reduced the applicable class to 24 members. Defendant's Ex. 48. Before the trial of this matter, Plaintiff failed to timely respond to Defendant's Second Requests for Admissions. See Order of this Court, filed March 8, 1991, at 6 (deeming admitted Defendant's Second Requests for Admissions).³ The effect of these admissions was to reduce the class to only 14 members. On the eve of trial, Plaintiff reduced

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the class to 9 members. See Plaintiff's Trial Brief, filed May 7, 1991 at Attachment A. At the trial of this matter, only 6 of the class members appeared and presented testimony. See generally Trial Tr. at 18-176. A seventh class member was hospitalized during the trial. The Court found her to be an unavailable witness and admitted her deposition testimony in lieu of live testimony. Trial Tr. at 665-666

For these reasons, the Court finds that evidence of seven (7) class members was presented at trial. Those persons are as follows: Andria Marie Tribble, Janet Lynn McCorkle, James Howard Allen, Jerry Burch, Patricia Ann Gillespie, Troy Damon Darby, and Johnny Xavier Fewell.

(12) It is undisputed that during the relevant class period, Defendant filled 77 vacant entry level positions. Defendant's Ex. 52. Of the 77 persons hired for these positions, 9 hirees were black. Id.

(13) This action is limited to alleged discrimination in Defendant filling entry level positions. The following positions were the only entry level positions at Defendant's facility during the class period. The number of persons hired for the positions is also provided: assistant truck driver (2); material handler (14); warehouse helper (4); jogger/bindery (10); janitor (6); baler operator (4); label inspector (19); knife operator (1); press trainee (1); bindery (1); collator helper (2); press jogger (10); and general bindery (3). Plaintiff's Supplemental Proposed Findings of Fact, filed...