Humphrey v. Southwestern Portland Cement Company

• Decision Date: 22 February 1974
• Docket Number: No. 73-2278.,73-2278.
• Citation: 488 F.2d 691
• Parties: Luther HUMPHREY, Plaintiff-Appellee, v. SOUTHWESTERN PORTLAND CEMENT COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

488 F.2d 691 (1974)

Luther HUMPHREY, Plaintiff-Appellee, v. SOUTHWESTERN PORTLAND CEMENT COMPANY, Defendant-Appellant.

No. 73-2278.

United States Court of Appeals, Fifth Circuit.

January 21, 1974.

Rehearing and Rehearing Denied February 22, 1974.

W. A. Thurmond, El Paso, Tex., for defendant-appellant.

James P. Scanlan, Appellate Division, E. E. O. C., Washington, D. C., amicus curiae.

Bob Hoblit, Odessa, Tex., for plaintiff-appellee.

Before BELL, DYER and CLARK, Circuit Judges.

Rehearing and Rehearing En Banc Denied February 22, 1974.

BELL, Circuit Judge:

Plaintiff filed suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. A. § 2000e et seq., seeking injunctive relief and assorted damages on the claim of discriminatory conduct in the award of a job by defendant. The district court found discrimination and awarded damages. 42 U.S.C.A. § 2000e-5(g). There was no award of the position in question, plaintiff having become disabled in the meantime. This appeal followed. We reverse.

The operative facts ended in 1968 with the award of the job. They were that plaintiff, a black employee, bid on the position of special utilityman (mechanical) in defendant's Odessa, Texas cement plant. He had seniority dating back to 1964. A white employee also bid on the position. He had seniority of only five months. There were no other bidders. It was undisputed that seniority governed in the award of positions only when qualifications were approximately equal, otherwise the position was to go to the most qualified bidder.

The procedure used for bidding on vacant positions in defendant's plant was to post the job vacancy with the request that bid forms be completed by those interested in bidding. This procedure will be seen in the following exhibit which was actually posted in this case:

To: ALL EMPLOYEES

From: G. F. SEIBERT

Subject: Position Opening

Date: May 14, 1968

SPECIAL UTILITY MAN (MECH)

QUALIFICATIONS

High School education or equivalent. Capable of performing inspections, lubrication, and minor repairs of equipment related to cement plant operation. Able to read and interpret simple mechanical drawings, blue-prints, sketches, and manufacturers\' specifications.

Able to use measuring devices such as feeler gauges, micrometer, and calipers.

DUTIES

Responsible to Maintenance Foreman. Lubricate and make general inspections, simple installations, minor repairs (including dust collector repairs), and adjustments to mechanical equipment. Assist maintenance men on major work. Perform such general housekeeping necessary to keep tools, equipment and working areas safe, clean and orderly. May at times work with a helper. Perform any other duties as assigned by the Maintenance Foreman.

HOURS

Normally day work; 5 days per week; 8 hours per day.

RATE

$3.29/hour after completion of a satisfactory probation period.

IF NO QUALIFIED BIDS ARE RECEIVED, A BREAK-IN POSITION WILL BE AWARDED, REQUIRING THE ABOVE QUALIFICATIONS TO BE MET WITHIN A REASONABLE PERIOD OF TIME. BIDS WILL BE ACCEPTED UNTIL 4:00 PM, FRIDAY, MAY 17, 1968.

NOTE: For the present, this man will be used for baghouse work.

/s/ G. F. SEIBERT /s/ BY DKH

The required procedure was that the bid forms be completed and deposited in a mailbox in the First Aid room of the plant. Plaintiff's bid was as follows:

Odessa Plant Date: 5/17/68 Bid for job of — special utility man (Mech.) Employment Date — June 1, 1964 AGE — 36 Job Preference * ______________________ Education (location, number years graduation date; field of greatest interest; special courses) High School — Completed 11th grade College — Technical — Correspondence — Other

Specific Experience and Qualifications (as applied to this particular job) — Have worked and assisted at this job from time to time since being employed here.

General Plant Experience — capable of operating all yard equipment at this Plant.

Remarks: — Am familiar with Dust Collection systems.

/s/ LUTHER HUMPHREY

The bid of employee Dennis was as follows:

Odessa Plant Date 5/16/68 Bid for job of — Special Utility man (Mech) Employment Date — 1/5/68 AGE — 27 Job Preference * ____________________ Education (location, number years graduation date; field of greatest interest; special courses) High School — G.E.D College — Technical — Electronics, Welding. Correspondence — Electronics Other —

Specific Experience and Qualifications (as applied to this particular job) —

Automobile mechanics, Discel Mechanics, Hydraulic repair (Backholes) Welding, and Equipment operation.

General Plant Experience — Baghouse work, Knile. Bricking, belt roller replacement, Packhouse loading, Equipment operations, and general clean up.

Remarks: — Have read Blue-prints, Mechanical Drawings. Have used feeler gauges micrometers and calipers. Have done some mechanical drawing in the past.

/s/ HOWARD H. DENNIS JR.

After receiving the two bids, the plant manager, personnel officer, and foreman met, considered the bids, and awarded the job to Dennis on the grounds that he was better qualified even though plaintiff was the senior employee.

Thereafter plaintiff complained to one of defendant's officers from California of the failure to keep a company promise that a written test would be given to bidders before awarding jobs. Within a few days thereafter plaintiff and Dennis were given written tests. Plaintiff scored 12 on the test while Dennis scored 50. The validity of the test is not in issue. The score made by Dennis was not acceptable in that 70 was considered a passing grade but he was allowed to stay on the job pending the taking of another test.

Plaintiff testified that he became upset over Dennis's having been allowed to stay on the job and because he was given extra time for taking the second test. One difficulty with plaintiff's position, however, is that the job was awarded to Dennis, as between plaintiff and Dennis, before or not later than the first test.

All of the evidence adduced upon the trial was to the effect that Dennis was the better qualified of the two employees. In addition, plaintiff's counsel stipulated that Dennis was qualified for the position.

There were only two circumstances which militated against defendant at all during the trial from the standpoint of plaintiff carrying the burden of establishing racial discrimination in the award of the job. The first was the disclosure that the bid form submitted by Dennis was completed in two colors of ink. Some of the insertions by Dennis were in blue ink while others were in black ink. Dennis testified that he ran out of ink while completing the form but that he deposited the bid in the mailbox in precisely the same condition as it appeared on the trial. The other circumstance was...