Kendrick v. Commission of Zoological Subdistrict, s. 76-2120

• Decision Date: 14 November 1977
• Docket Number: Nos. 76-2120,77-1011,s. 76-2120
• Parties: 16 Fair Empl.Prac.Cas. 656, 16 Empl. Prac. Dec. P 8112 Robert B. KENDRICK, Jr., Appellant, v. COMMISSION OF ZOOLOGICAL SUBDISTRICT et al., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 524

565 F.2d 524

16 Fair Empl.Prac.Cas. 656, 16 Empl. Prac.

Dec. P 8112

Robert B. KENDRICK, Jr., Appellant, v. COMMISSION OF ZOOLOGICAL SUBDISTRICT et al., Appellees.

Nos. 76-2120, 77-1011.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 14, 1977.

Decided Nov. 14, 1977.

Michael W. Forster, St. Louis, Mo., on brief for appellant.

D. J. Sullivan, St. Louis, Mo. for appellees; Timothy L. Stalnaker, St. Louis, Mo., on brief.

Before VAN OOSTERHOUT, Senior Circuit Judge, STEPHENSON, Circuit Judge, and MARKEY, Chief Judge. ^*

VAN OOSTERHOUT, Senior Circuit Judge.

This is a timely appeal by the plaintiff, in forma pauperis, from final judgment dismissing his complaint brought under 42 U.S.C. § 2000e et seq. and § 1983 alleging plaintiff was discharged as a zoo employee because of his race. The trial court filed a memorandum opinion, reported at 427 F.Supp. 497 (E.D.Mo.1976), setting forth the basis for the dismissal and pursuant thereto entered an order dismissing the complaint, each party bearing its own costs.

Defendants filed a cross appeal on the basis that the order of dismissal providing that each party bear its own costs in effect denied defendants' prayer that they be awarded a reasonable attorney fee.

The defendants in this action are the Commission of Zoological Subdivision (hereinafter referred to as the Zoo), a municipal board established for the administration of the St. Louis Zoological Park pursuant to Missouri law, Thomas McGuire, chairman of the Commission, and Robert T. Briggs, director of the Zoo.

Plaintiff is a black male employed by the Zoo on April 15, 1973. His employment terminated on October 24, 1973, by letter from defendant Briggs which reads:

This is to inform you that your employment at the Zoo has been terminated effective at the end of your period of suspension. I must note that your action in admitting strangers to the elephant house kitchen for purposes of intimidating or injuring fellow employees is intolerable. You will be paid for all accrued compensatory time and vacation time.

The employment termination was based on an attack made by plaintiff's cousin Brittney, accompanied by three other blacks, upon plaintiff's fellow employee Tim Cooney which occurred in the elephant house kitchen on October 21, 1973. Plaintiff led this group into the kitchen. The kitchen was not open to the public. The record discloses that visitors did occasionally enter the kitchen.

Brittney, in plaintiff's presence, severely beat and kicked Cooney numerous times. Cooney was taken to the hospital for treatment of his injuries. The Zoo officials were notified and the police were called and conducted an investigation.

Plaintiff was called before director Briggs on the morning of October 22. Employees who had witnessed the encounter were examined in plaintiff's presence. Plaintiff was given a full opportunity to explain his position. Immediately after the hearing, plaintiff was suspended. After further investigation the termination letter, supra, was mailed to him.

Plaintiff filed a claim with the Equal Employment Opportunity Commission (EEOC) alleging that he was discharged because of his race. The EEOC investigator who investigated the charge determined:

There is no evidence to imply or give probable cause to Charging Party's allegation that he was discharged because of his race. Even Charging Party, in his affidavit, fails to mention or indicate race as a factor in his discharge or in the series of events leading to his discharge.

There is no precedent for comparative data. Also, there is no evidence to support the charge that race was a factor in Charging Party's discharge, nor is any violation of Title VII in evidence.

The Department of Justice issued a "Notice of Right to Sue" on March 5, 1976. On June 4, plaintiff filed the right to sue letter with the court. Leave to file in forma pauperis was granted and the complaint was filed on July 7, 1976.

This case was tried to the court without a jury. The trial court in its reported opinion made detailed findings of fact, which include the following:

On October 20, 1973, plaintiff and another Zoo employee, Tim Cooney, had a disagreement over the sale of an automobile by Cooney to plaintiff. On October 21, 1973, plaintiff related the details of this disagreement to his wife, in the presence of plaintiff's cousin, Robert Brittney. Later that afternoon, Brittney and several of his friends went to the Zoo, specifically the Elephant House where both plaintiff and Cooney worked. Brittney and his friends entered the Elephant House kitchen, an area which is restricted to Zoo employees, with plaintiff. Although plaintiff was told by Rick Gaida, a co-employee, that Brittney and his friends were not supposed to be in the kitchen area, plaintiff did not attempt to get them to leave. Brittney and his friends immediately began to fight with Cooney, which fight included punches and kicks. Plaintiff did not actually participate in the fighting but the Court finds plaintiff was responsible for the presence of Brittney and his friends at the Zoo and knew that problems, although not necessarily a beating, would result.

On October 24, 1973, plaintiff was terminated. This decision was made by defendant Briggs alone. The Court finds that this decision was not based, in whole or in part, upon plaintiff's race but rather the decision to discharge plaintiff was made because Briggs determined that plaintiff was involved in bringing outsiders into a restricted area of the Zoo for the purposes of intimidating or injuring Zoo employees.

The evidence established that other white employees had let visitors into restricted areas and that other white employees had been involved in fights with co-employees. There had not been, however, any prior incidents in which Zoo employees acted in the manner in which plaintiff acted herein.

As of March 31, 1974, the Zoo employed 126 white individuals and 23 black individuals or 15.4% black employees. The evidence established that the Zoo drew most of its employees from St. Louis City and St. Louis County. The racial statistics for those areas, as reported by the United States Department of Commerce, Bureau of Census for 1970 indicate that the racial composition of the City of St. Louis and St. Louis County was 19% black.

427 F.Supp. at 498-99.

Upon the basis of such findings, the court determined:

The Court has found that plaintiff was not discharged, in whole or in part, because of his race but that the decision was based on plaintiff's involvement in the fight between his cousin and another Zoo employee. Under these circumstances, plaintiff's claim must fail. Cf., Christian v. General Motors Corporation, 341 F.Supp. 1207 (E.D.Mo.1972), aff'd, 475 F.2d 1407 (8th Cir. 1973).

The statistical evidence adduced does not warrant a different conclusion. At the outset, the Court notes that the employment statistics for blacks at the Zoo does not vary that much from the general population statistics. Moreover, the number of employees at the Zoo is small and statistical evidence under such circumstances is of little value. Harper v. Trans World Airlines, Inc., 525 F.2d 409 (8th Cir. 1975).

Id. at 499-500.

Findings of fact made by a trial court in a case submitted to the court without a jury shall not be set aside unless clearly erroneous, and due regard shall be given to...