McMILLAN, District Judge.
This case was tried to the court sitting without a jury. The court issued a memorandum of decision finding in favor of certain plaintiffs and against certain plaintiffs on the merits. Lilly v. Harris-Teeter Supermarket, 503 F.Supp. 29 (W.D.N.C.1980). Detailed findings of fact, conclusions of law and a final judgment were filed on July 13, 1982. 545 F.Supp. 686 (W.D.N.C.1982). Defendant appealed, and the decision of this court was affirmed in part and reversed in part in an opinion which appears at 720 F.2d 326 (4th Cir.1982).
The Court of Appeals:
1. Affirmed the decision of this court in favor of the plaintiffs Lilly, Gregory and Porter;
2. Affirmed the action of this court in denying relief to all plaintiffs as to whom this court denied relief;
3. Remanded the case for reconsideration of the decisions which this court had made in the claims of the following persons for denial of promotion upon racial grounds: James Mobley; Philip Reed; Jerome Gary; Christopher McKinney; Roy Torrence; Roosevelt Patterson; Curtis Jones; Frank Sullivan; Ken Bailey and John LeGrand; and
4. Remanded the case for reconsideration of attorney fees.
The court has re-examined the claims of the ten persons who were found to have been denied promotion upon racial grounds.
The findings of this court on the promotion claims did not rely and do not rely upon the probative effect of the statistical analyses, regression or otherwise, of the experts who testified. The decision as to each employee is based upon
(a) The specific practices of the defendant, shown abundantly by the evidence, which are set out on page 30 of the original memorandum of decision, 503 F.Supp. 29 (W.D.N.C.1980), as follows:
The particular practices which effectuated discrimination against black employees are the following:
1. Jobs were not posted.
2. Written job descriptions were not available.
3. There was no written promotion system.
4. There were no written promotion criteria.
5. There was no requirement nor suggestion that an employee ask for a particular job in order to be considered for it.
6. There were no written job evaluations for warehouse workers.
7. No written list was maintained of employees wanting to change to other or better jobs; only a "mental" list was kept by foremen and supervisors of persons who may have shown interest in a particular job.
8. Requirements for "lead" jobs included the following:
(a) Correct "attitude";
(b) Initiative; an employee must not only excel in his job but say he wanted to get ahead (this requirement of "speaking up" was never publicized).
9. Promotions were available only within the same shift (with exceptions for various whites).
10. Promotions were available only within the same department (with exceptions for various whites).
11. Refusals by blacks to take jobs on particular occasions, regardless of circumstances, were carefully remembered, but such blacks were never asked whether they had changed their minds.
12. Previous job experience was not systematically recorded. Relevant job experience of blacks not noted on the application form was deemed not to exist; however, word of mouth information about the job experience of whites was remembered.
As usual, statisticians testified on both sides of the case. Statisticians for the plaintiffs selected data and made comparisons which generally support the plaintiffs' contentions, and statisticians for the defendant testified generally about other figures and opinions which support the position of the defendant. To a tremendous extent the opinions were determined by the choices of samples and the elements of the labor market and the employer's work force which were compared with each other. The statistical evidence generally shows about what the raw data shows—that blacks had less chance of getting good jobs than whites and less chance of getting promotions than whites.
(b) The detailed evidence about the treatment of each individual plaintiff, as summarized in the original memorandum of decision and in the findings of fact and conclusions of law in 545 F.Supp. 686, at 691-698 (W.D.N.C.1982).
No presumption, statistical or otherwise, was entertained that plaintiffs who sought promotions would probably win. Three persons who sought promotions (plaintiff Mack Ervin, plaintiff Woodrow McManus and plaintiff Richard Burch) were denied promotion even though they had prima facie proof, for the reason that the court was not persuaded that race played a moving part in the employment decisions affecting them. The "ADDITIONAL FINDINGS OF FACT AND CONCLUSIONS OF LAW" dated June 17, 1981 (document number 23), contain the following specific findings as to Mack Ervin, Woodrow McManus and Richard Burch:
III. Mack Ervin.
Mack Ervin claimed that he was paid less than a white employee performing the same job as he. His testimony in support of his claim was inconsistent with his own exhibits consisting of extracts from personnel files.
Although Ervin claimed that a white employee, Strann, received five cents more per hour than Ervin received when raises were given on May 3, 1976, the personnel files showed that Ervin was classified as a picker on May 3, 1976 rather than as a lift operator. Strann's personnel file shows that Strann had been classified as a lift operator since November 11, 1974. The documents are more credible evidence than Ervin's unsupported assertions. Ervin did not show that he was performing the same duties as Strann.
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VIII. Woodrow McManus.
McManus was hired in September 1974, as an order puller (selector) in the warehouse. During the course of his employment McManus took courses in computer programming at Central Piedmont Community College. McManus testified that prior to the completion of his studies, he saw a notice on the employee bulletin board of an opening for an RPG Programmer within the defendant's computer department. He said that he applied for the position of RPG Programmer but was advised he would not be selected because he had no experience.
Documentary evidence showed that there were three programmers in the computer department in mid-1975. The first available opening for a programmer came in October 1976, and it was filled from within by promoting a black computer operator into the position. There were no openings for a programmer at the time McManus said he applied. The company had never used the computer language referred to in the "RPG" designation and had never advertised such a position. McManus failed to establish a prima facie case, and, even if he did, defendant's evidence provided ample rebuttal.
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X. Richard Burch.
Burch was hired on February 9, 1976, as a wash man. He is still employed by the company.
Burch claimed that he was not permitted to enroll in a truck driver training program because of his race.
Some time after August 1976, Burch requested that he be placed in the training program. He was placed on a list of individuals to be trained. In November 1976, Burch joined a strike against the company and did not return until August 29, 1977.
In 1976, as a result of a grievance filed on his behalf by the union, Burch was given a driver road test to determine whether he was qualified to operate a tractor-trailer unit. The test was administered by Marshall Little, a black supervisor in charge of driver training. Little determined that Burch was not qualified.
Prior to the strike by employees in November, 1976, the company did have a driver training program which was suspended during the course of the strike. At the time of trial, the program had not been reinstated, but a proposal for its reinstatement had been submitted to the union pursuant to the company's collective bargaining obligation.
Burch failed to establish that between the time of his request and the beginning of the strike any white employees were accepted for the training program who were less qualified than Burch. Burch's race did not play a part in his inability to obtain a position within the training program.
The other seven plaintiffs (Hazel Fisher, Shirley Gatewood, William Carrothers, Barbara Anderson, Austin Pharr, Tresevant Goodwin and Therrell McMoore) (asserting claims other than promotion) were expressly found by the court, on conflicting evidence, not to be entitled to recover on matters like discharge, maternity leave, unequal pay, denial of re-hire and discharge for errors in production.
If the court had been proceeding in fact upon a presumption based upon statistics, it might well have found in favor of those seven plaintiffs.
In the cases of every one of the ten plaintiffs whose promotion claims were allowed, it was the finding of this court that, on the facts of each individual case, the plaintiffs were entitled to recover. The court was satisfied from the ad hoc evidence as to each particular plaintiff that the reasons stated by the defendant were pretextual.
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