General Motors Corp. v. Fair Employment Practices Division of Council on Human Relations of City of St. Louis, 60141

• Decision Date: 18 December 1978
• Docket Number: No. 60141,60141
• Citation: 574 S.W.2d 394
• Parties: 54 Fair Empl.Prac.Cas. (BNA) 1730, 18 Empl. Prac. Dec. P 8908 GENERAL MOTORS CORPORATION, Respondent, v. FAIR EMPLOYMENT PRACTICES DIVISION OF the COUNCIL ON HUMAN RELATIONS of the CITY OF ST. LOUIS et al., Appellants.
• Court: Missouri Supreme Court

Page 394

574 S.W.2d 394

54 Fair Empl.Prac.Cas. (BNA) 1730, 18 Empl.

Prac. Dec. P 8908

GENERAL MOTORS CORPORATION, Respondent, v. FAIR EMPLOYMENT PRACTICES DIVISION OF the COUNCIL ON HUMAN RELATIONS of the CITY OF ST. LOUIS et al., Appellants.

No. 60141.

Supreme Court of Missouri, En Banc.

Dec. 18, 1978.

Jack L. Koehr, Charles W. Kundered, Judith A. Ronzio, St. Louis, for appellants.

James E. McDaniel, James C. Brandenburg, St. Louis, Otis M. Smith, General Motors Corp., Detroit, for respondent.

RENDLEN, Judge.

The Fair Employment Practices Division of the Council on Human Relations of the City of St. Louis (Division) and its individual members appeal from a judgment of the circuit court of St. Louis City reversing the Division's order finding General Motors Corporation (General Motors) guilty of discriminatory employment practices under St. Louis City Ordinance 51512.

Forrest Syms, a probationary employee of General Motors, filed a complaint with the Division, charging racial discrimination in General Motors' termination of his employment. Complainant had previously worked at the respondent's Chevrolet Shell Plant from 1967 until 1969. On December 18, 1970, he had been hired at respondent's St. Louis Fisher Body Plant as a probationary employee. He claims that during the first day on the job he became dizzy and fell. Complainant went to the plant nurse where his request to see a doctor was refused by the nurse who told him to return to work. He did so, but later returned claiming that the nature of the work caused him to become dizzy. The nurse again denied his request to see a doctor, ordering him to return to the assembly line; instead, claimant went to the Labor Relations Office repeating his assertion of dizziness and again requesting to see a doctor. Once again his request was denied and he was told to return to work. The Division found that his performance on the job was thereafter

monitored by management, who found it defective, and at the same time complainant's prior work record at the Chevrolet Shell Plant was reviewed. Within about five hours of complainant's commencement of work for respondent on December 18, 1970, respondent terminated him as a probationary employee on the grounds that his work record and performance indicated unsuitability. We expressly find that the nurse's conclusion that complainant was feigning dizziness was a significant factor entering into this management decision.

General Motors' review of Syms' prior work record revealed several disciplinary suspensions for violation of company rules and frequent leaves of absence for such stated reasons as "exhaustion." The observation of Syms' work on the day in question disclosed that approximately fifty percent of the work performed was improperly done causing problems down the assembly line. Syms was informed that his termination was based upon three factors, (1) he had been assigned an easy job, given more than ample break-in time, but continued to perform in an improper manner, (2) the medical department could find no substantiation for his claim of dizziness, and (3) if, indeed, he were dizzy, a moving assembly line was no place for him to be working.

The Division, by its two to one decision, determined General Motors had unlawfully discriminated against complainant and ordered his reinstatement with back pay from the date of termination. From that order, General Motors petitioned for judicial review. The circuit court in the proceedings there, sustained General Motors' motion for summary judgment and found the Division's order "is invalid, illegal, not authorized by law, and is unsupported by competent and substantial evidence, is arbitrary and capricious, and the same is hereby reversed." This appeal followed.

We first consider respondent's contention that "appellants have no proper jurisdictional basis to be before this court." Respondent argues that (1) the questions of constitutional construction and validity of the ordinance were not raised at the earliest opportunity and (2) the trial court made no ruling with respect to such issues, concluding that the cause is not within the ambit of this Court's jurisdiction under Mo.Const. art. V, § 3. Respondent cites Kelch v. Kelch, 450 S.W.2d 202 (Mo.1970), Transferred 462 S.W.2d 161 (Mo.App.1970), and also Kansas City v. Graybar Electric Co., 454 S.W.2d 23 (Mo.1970), wherein it is stated:

(I)n order for this court to have appellate jurisdiction based upon the existence of a constitutional question, it must appear that the trial court considered and passed on the same. . . . "It is only when a constitutional question has been properly raised, and passed upon by the trial court, and ruled adversely to the party appealing, that this court acquires jurisdiction upon account of such constitutional question being involved." 454 S.W.2d at 25 (citations omitted).

The contention that appellants failed to raise their constitutional arguments before the trial court is without merit. From the record it appears the Division sustained the original complaint and in so doing must necessarily have considered the ordinance valid. Only when General Motors made its challenge to the ordinance's validity in the circuit court proceeding was it incumbent upon appellants to assert the constitutionality of the ordinance and the city's authority to enact the same under art. VI, § 19(a) of the Missouri Constitution. ¹ This they did by their memorandum filed in response to General Motors' motion for summary judgment, thereby raising with particularity the issues involving construction of art. VI, § 19(a), and the authority of that section as justification for the ordinance's adoption and application.

Respondent's next contention that "the trial court made no ruling with respect to the constitutional issue appellants raise before this court" is also not well taken. The circuit court, in its extensive, well-reasoned memorandum opinion filed in connection with its judgment order, dealt with the issues presented and sustained respondent's constitutional challenge to the ordinance. Implicit in the trial court's ruling of unconstitutionality is a rejection of the Division's art. VI, § 19(a) defense, thus providing a basis for our consideration of the cause under art. V, § 3. State ex rel. State Highway Commission v. Wiggins, 454 S.W.2d 899 (Mo. banc 1970).

Turning now to the principal issue at bar, we conclude there was no substantial evidence to support the Division's determination and accordingly we affirm the circuit court's order of reversal. Assuming arguendo the Division was correct in adopting, as it did, the standards of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), ² we find that complainant failed to prove an essential element of his employment discrimination case. Under Green, a non-class action under Title VII must show the following elements to shift to the employer the burden of justifying its refusal to hire the minority applicant: (1) plaintiff belongs to a minority; (2) plaintiff applied and was qualified for a job for which applications were sought; (3) despite these qualifications, plaintiff was rejected; and (4) the position remained open and applicants were sought after plaintiff's rejection. 411 U.S. at 802, 93 S.Ct. 1817. The Division decided these requirements were satisfied by certain evidence which it summarized as follows:

The uncontested facts reveal that complainant, a Black man, possessed two years of recent automobile assembly work experience prior to making application at the Fisher assembly facility; that he made such application at a time when there were several assembly positions available; that within hours of commencing the (up to) 30-day process by which he might have obtained regular status at respondent's plant, he was terminated; and that, subsequent to such termination, assembly positions remained available.

It is apparent that the Division determined the second of the elements described in Green was met by resort to complainant's previous work experience. The Division nowhere indicates whether this previous experience reflected competence to handle the job complainant applied for here. Assuming it did and that a prima facie case was made, General Motors clearly overcame that prima facie showing with evidence of complainant's unfitness for the position. At the Division hearing, General Motors presented unrefuted evidence from several witnesses that the job to which complainant was assigned required no more than forty-five minutes to one hour of training and supervision. Complainant worked at the job for five hours. For a brief time his work was satisfactory, but his performance soon deteriorated and was so inferior that it was necessary to withdraw fifty percent or more of the pieces he installed further down the line. When the foreman attempted to point out the inadequacy of complainant's performance, his response was, "Quit bugging me." Complainant offered no evidence to refute that of General Motors concerning the training time necessary for the job. There was no evidence before the Division to support its conclusion that complainant was not "accorded an adequate opportunity to demonstrate whether or not he was an appropriate candidate for regular employment." ³ The substantial evidence in the record was to the contrary.

Although afforded ample opportunity so to do, complainant offered no evidence that other probationary employees, black or white, who were terminated on the stated ground of improper job performance, had been given more training or more time to demonstrate ability. Thus the Division's conclusions that General Motors' conduct towards complainant was callous, arbitrary, or indicative of discrimination, is not supported by the record. Accordingly, any inference of discrimination arising from the statistical showing that more black than white probationary employees had been terminated during a...