Humphrey v. Southwestern Portland Cement Company

• Decision Date: 12 April 1973
• Docket Number: No. MO-71-CA-89.,MO-71-CA-89.
• Citation: 369 F. Supp. 832
• Parties: Luther HUMPHREY v. SOUTHWESTERN PORTLAND CEMENT COMPANY.
• Court: U.S. District Court — Western District of Texas

369 F. Supp. 832

Luther HUMPHREY v. SOUTHWESTERN PORTLAND CEMENT COMPANY.

No. MO-71-CA-89.

United States District Court, W. D. Texas, Midland-Odessa Division.

February 1, 1973.

Motion to Amend and Order Denying Motion April 12, 1973.

Robert E. Hoblit, Warren Burnett Associated, Odessa, Tex., for plaintiff.

W. A. Thurmond, Scott, Hulse, Marshall & Feuille, El Paso, Tex., for defendant.

MEMORANDUM OPINION OVERRULING DEFENDANT'S MOTION TO STRIKE

SUTTLE, District Judge.

This case is based on the Civil Rights Act of 1964. It arises from a decision by the defendant to promote a white employee to a maintenance job instead of promoting a black.

After a non-jury trial had been held, on the 3rd day of January, 1973 a motion was filed to strike a part of the plaintiff's second amended complaint. In addition to this request to strike, the motion set forth the opposition of the defendant to an Order of the Court which sua sponte, reopened the trial. Although the procedural setting of this motion is somewhat confusing, it substantively questions the plaintiff's claim for relief. Therefore, the Court will treat the motion separately, apart from the findings of fact and conclusions of law required by Rule 52(a) F.R.Civ.P., and will set forth its ruling in full.

The question raised concerns the type of injuries that are compensable in private Civil Rights Act suits. On November 17, 1971, the plaintiff filed a complaint based on an act of racial discrimination. Thereafter, in an amended complaint filed in April of 1972, he sought to recover damages for mental distress. The defendant objected to any recognition of these injuries and both sides were ordered to brief the question. But they were unable to establish, with any assurance, the type of injuries which could properly be included in a case brought under the Act.

In this posture, on June 13, 1972, the case proceeded to trial. Evidence of mental distress was received. That distress is not unknown when discrimination has occurred. See, for example, Chance v. Frank's Beauty Salon, 35 A. D.2d 304, 316 N.Y.S.2d 236 (1970) noted in 35 Albany L.Rev. 782 (1970); Massachusetts Commission Against Discrimination v. Franzaroli, 357 Mass. 112, 256 N.E.2d 311 (1970) noted in 49 N.C.L. Rev. 221 (1970), and Commission on Human Rights v. Knox Realty Co., 56 Misc.2d 806, 290 N.Y.S.2d 633 (1968). But as the trial progressed it became more apparent that the psychic harm which might accompany an act of discrimination might be greater than would first appear. For the loss of a job because of discrimination means more than the loss of just a wage. It means the loss of a sense of achievement and the loss of a chance to learn. Discrimination is a vicious act. It may destroy hope and any trace of self-respect. That, and not the loss of pay, is perhaps the injury which is felt the most and the one which is the greatest.

Although these injuries cannot be seen, they nevertheless may be real. See generally, Duda, Damages for Mental Suffering in Discrimination Cases, 15 Clev.Mar.L.Rev. 1 (1966). Whether they may be recovered under the Civil Rights Act, however, raises a different question entirely. Before that question could be reached in this particular case, justice required that the facts be fully established. For the trial left the Court with only a suggestion of the damage that had occurred. Therefore, after the trial had ended, the Court, sua sponte, ordered the case reopened to record additional evidence. The plaintiff then amended his complaint a second time to encompass the questions raised, while the defendant moved with the instant motion to strike that amendment and to lodge its opposition.

A trial is, of course, a search for truth. And it is the trial judge who is responsible for its success. Here, if the injuries occurred which seemed apparent and if recovery was not foreclosed, the plaintiff would be entitled to recover damages for all of the injuries which he sustained. See Rule 15(b) F.R.C.P. In this unsettled area, justice required then that the trial Court itself reopen the case to allow the plaintiff a chance to prove all of the damage that had occurred. The opposition of the defendant was therefore overruled and a hearing was held where additional evidence was received. Based on that evidence, the question of whether psychic injuries are compensable is ripe for a decision.

A foundation upon which to base that decision, however, is almost nonexistent. The language of the Act is not controlling. It provides that:

If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include reinstatement or hiring of employees, with or without back pay . . . . (emphasis added) 42 U.S.C. § 2000e-5(g)¹ While in other contexts this language has been broadly construed, see for example, Local 53 of Int. Ass'n of Heat & Frost I & A Wkrs. v. Vogler, 407 F.2d 1047, 1052 (5th Cir. 1969), no case has been cited or found which focuses squarely on this issue. In addition, a review of the legislative history and the thoughts of the drafters leaves the question in doubt. See 1964 U.S. Code Cong. & Admin.News, p. 2355 et seq.

The defendant relies on Tooles v. Kellogg, 336 F.Supp. 14 (D.Neb.1972) and an excellent article, Developments in the Law — Employment Discrimination and Title VII of the Civil Rights Act of 1964. 84 Harv.L.Rev. 1109 (1971) to support its position that psychic injuries are not compensable. The plaintiff relies on the facts. The Court concludes that the purpose of the Act will best be served if all of the injuries which are caused by discrimination are entitled to recognition.

The purpose of the Act obviously is to end discrimination. See Griggs v. Duke Power Co., 401 U.S. 424, 429-430, 91 S. Ct. 849, 28 L.Ed.2d 158 (1970). To achieve that goal, Congress granted individuals who have been harmed by discrimination the right to seek redress by bringing civil suits. First, because individuals adorn the "mantel of the sovereign" to prosecute illegality when they institute such suits. See Jenkins v. United Gas Corporation, 400 F.2d 28, 32 (5th Cir. 1968). And second, because such suits provide those who have been injured with the chance to be made whole. See Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (7th Cir. 1969).

These reasons will be better served if all the injuries which have been inflicted may form the basis for private suits. In cases such as the instant one, where an increase in pay is slight but the damage may be real, such a recognition would encourage "prosecutions" which might have been forgotten. The effectiveness of private litigants would thereby be increased. Moreover, if a reason for private civil suits is the desire to make those injured whole, it is foolish to ignore the injuries which have actually been inflicted. The fact that discrimination has caused an injury makes the suffering no less real.

Accordingly, the Court finds that psychic injuries are proper in Civil Rights Act suits. Difficulties of proof are readily apparent but they arise only after discrimination has been shown. They do not create the wrong which forms the basis for the suit. Once that wrong has been established, the remedies available to a plaintiff should be effective and complete. In addition, it is now well settled that a cause of action based on racial discrimination may be brought under either 42 U.S.C. § 1981 or 42 U.S.C. § 2000e, or it may be brought under both. Sanders v. Dobbs Houses, Inc., 431 F.2d 1097 (5th Cir. 1970), cert. denied, 401 U.S. 948, 91 S.Ct. 935, 28 L. Ed.2d 231 (1971). The remedies available under the former statute include compensatory damages. See Sullivan v. Little Hunting Park, 396 U.S. 229, 90 S.Ct. 400, 24 L.Ed.2d 386 (1969). And the fact that a plaintiff has based his claim only on the latter, and has sought conciliation, should not result in the punishment inflicted when damages are ignored.

For these reasons, the motion of the defendant to strike the pleadings, must be, and the same is hereby, denied.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This case has been brought to recover damages for an act of racial discrimination. The plaintiff, Luther Humphrey, contends that he was denied a promotion by the defendant because he is a negro. The defendant disclaims that the race of the plaintiff played a role in the award. It contends that another employee received the promotion because of his qualifications.

On November 13 and 14, 1972, a trial was held before the Court. Thereafter, on January 2, 1973, the trial was reopened to record additional evidence.² As in most trials, the testimony was conflicting. But in this case, after observing their demeanor, the Court found the credibility of the various witnesses to be diverse. Therefore, after judging that credibility and the testimony and evidence produced by the parties, the Court, pursuant to Rule 52(a) F.R.C.P., now finds and rules as follows:

FACTS

1. The defendant, Southwestern Portland Cement Company, is a manufacturer of portland cement. From its principal office in California, it operates several cement plants throughout the United States, including one in Odessa, Texas.

2. In 1968, the plaintiff was employed at this Odessa plant along with approximately 70 others. He had been hired by the defendant in 1964 and, during the period of his employment, he had worked in the plant as a packer.

3. A packer, using a machine, fills sacks with dry cement. He must often lift or move the sacks after they have been filled and thus, it is often heavy and difficult work. Because of this, and his advancing middle age, the plaintiff sought to be promoted to a physically less demanding job.

4. On May 14, 1968, an opening arose in such a job as a special...