Griggs v. Duke Power Company

• Decision Date: 30 September 1968
• Docket Number: No. C-210-G-66.,C-210-G-66.
• Citation: 292 F. Supp. 243
• Court: U.S. District Court — Middle District of North Carolina
• Parties: Willie S. GRIGGS et al., Plaintiffs, v. DUKE POWER COMPANY, a Corporation, Defendant.

292 F. Supp. 243

Willie S. GRIGGS et al., Plaintiffs, v. DUKE POWER COMPANY, a Corporation, Defendant.

No. C-210-G-66.

United States District Court M. D. North Carolina, Greensboro Division.

September 30, 1968.

J. Levonne Chambers, Charlotte, N. C., Conrad O. Pearson, Durham, N. C., Sammie Chess, Jr., High Point, N. C., for plaintiffs.

George W. Ferguson, Jr., William I. Ward, Jr., and Carl Horn, Jr., Charlotte, N. C., for defendant.

MEMORANDUM OPINION

GORDON, District Judge.

Duke Power Company, the defendant in this action, is a corporation engaged in the generation, transmission, and distribution of electric power to the general public in North Carolina and South Carolina. The thirteen named plaintiffs are all Negroes and contend that the defendant has engaged in employment practices prohibited by Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq. at its Dan River Station located in Draper, North Carolina (recently consolidated with the Towns of Leaksville and Spray and named Eden) and ask that such discriminatory practices be enjoined.

An order was entered on June 19, 1967, allowing the action to be maintained as a class action under Rule 23 of the Federal Rules of Civil Procedure. The class was defined as those Negroes presently employed, and who subsequently may be employed, at the Dan River Steam Station and all Negroes who may hereafter seek employment at the Station. The Court has found no reason to alter the June 19 Order.

The evidence in this case establishes that due to the requirements for initial employment, Negroes who may subsequently be employed by defendant would not be subject to the restrictions on promotions which the named plaintiffs contend are violative of the Act. A high school education and satisfactory test scores are required for initial employment in all departments except labor. Plaintiffs certainly cannot contend that employees without those requisites who are hired for the labor department subsequent to the implementation of the requisites should be allowed to transfer into other departments when they could not have been initially employed in those departments. This would be to deny the defendant the right to establish different standards for different types of employment. Further, the plaintiffs do not contend that the defendant's requirements for initial employment are discriminatory. Only fourteen Negroes are presently employed by the defendant, thirteen of whom are named plaintiffs.

The work force at Dan River is divided for operational purposes into the following departments: (1) Operations; (2) Maintenance; (3) Laboratory and Test; (4) Coal Handling; and (5) Labor. The jobs of watchman, clerk, and storekeeper are in a miscellaneous category.

Within each department specialized job classifications exist.¹ These classifications constitute a line of progression for purposes of employee advancement. The term "line of progression" is then synonymous with "department."

Approximately ten years ago,² the defendant initiated a policy making a high school education or its equivalent a prerequisite for employment in all departments except the labor department. The effect of the policy was that no new employees would be hired without a high school education (except in the labor department) and no old employees without a high school education could transfer to a department other than the labor department. The high school requirement was made applicable on a departmental level only, and was not made the basis for firing or demoting a person employed prior to its implementation.

In July of 1965 the defendant instituted a new policy for initial employment at the Dan River Station. A satisfactory score on the Revised Beta Test was the only requirement for initial employment in the labor department. In all other departments and classifications, applicants were required to have a high school education and make satisfactory scores on two tests, the E. F. Wonderlic Personnel Test and the Bennett Mechanical Comprehension Test, Form AA. The company's promotional policy was unchanged and a high school education remained the only prerequisite to a departmental transfer.

In September, 1965, at the instigation of employees in the coal-handling department, the defendant promulgated a policy by which employees in the coal-handling and labor departments and the watchman classification without a high school education could become eligible for consideration for transfer to another department by attaining a satisfactory score on the two tests previously mentioned. This procedure was made available only to persons employed prior to September 1, 1965.

Applicable Provisions of the Act

Sections 703(a) (1) and (2) of Title VII of the 1964 Civil Rights Act provide:

"Section 703(a), 42 U.S.C. § 2000e-2(a):

"It shall be an unlawful employment practice for an employer—

"(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or

"(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin."

The mandate of those two sections is qualified by the following sections of the Act:

"Section 703(h), 42 U.S.C. § 2000e-2(h):

"Notwithstanding any other provision of this title, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system, or a system which measures earnings by quantity or quality of production or to employees who work in different locations, provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin, nor shall it be an unlawful employment practice for an employer to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race, color, religion, sex or national origin. It shall not be an unlawful employment practice under this title for any employer to differentiate upon the basis of sex in determining the amount of the wages or compensation paid or to be paid to employees of such employer if such differentiation is authorized by the provisions of section 6(d) of the Fair Labor Standards Act of 1938, as amended 29 U.S.C. § 206(d))."

"Section 703(j), 42 U.S.C. § 2000e-2(j):

"Nothing contained in this title shall be interpreted to require any employer, employment agency, labor organization, or joint labor-management committee subject to this title to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed by any employer, referred or classified for employment by an employment agency or labor organization, admitted to membership or classified by any labor organization, or admitted to, or employed in, any apprenticeship or other training program, in comparison with the total number or percentage of persons of such race, color, religion, sex, or national origin in any community, State, section, or other area, or in the available work force in any community, State, section, or other area."

Congress intended the Act to be given prospective application only. Any discriminatory employment practices occurring before the effective date of the Act, July 2, 1965, are not remedial under the Act.³

The plaintiffs first contend that they are restricted to the menial and low-paying jobs and are effectively denied an equal opportunity to advance to the more remunerative positions because of their race.

The evidence shows that there are approximately 95 employees at the Dan River Station, 14 of whom are Negroes. As of July 2, 1965, the 14 Negroes held jobs in the labor department which has a lower pay scale than any other department. On August 8, 1966, three months prior to the institution of this suit, Jesse Martin, the senior Negro laborer with a high school education was promoted to learner in the coal handling department. The 13 Negroes remaining in the labor department are the plaintiffs in this action. One of those, R. A. Jumper, the next senior Negro laborer with a high school education has since been promoted to the watchman position. Only one other Negro has a high school education. Actually, the high school and testing requirements which plaintiffs allege are violative of the Act affect only those plaintiffs without a high school education.

The evidence shows that only three of the nine white employees in the coal handling department have a high school education; only eight of the seventeen white employees in the maintenance department have a high school education; two white shift supervisors in the power plant have less than a high school education; the two coal handling foremen have less than a high school education; and the labor foreman has less than a high school education.

Although company officials testified that there has never been a company policy of hiring only Negroes in the labor department and only whites in the other departments, the evidence is sufficient to conclude that at some time prior to July 2, 1965, Negroes were relegated to the labor department and prevented access to other departments by reason of their race.

The plaintiffs contend that upon their initial employment they were placed in...