Lilly v. Harris-Teeter Supermarket, C-C-76-191

• Citation: 545 F. Supp. 686
• Decision Date: 13 July 1982
• Docket Number: No. C-C-76-191,C-C-79-130 and C-C-79-137.,C-C-76-191
• Court: U.S. District Court — Western District of North Carolina
• Parties: Paul LILLY, individually and on behalf of all others similarly situated, Plaintiff, and Christopher McKinney, et al., Plaintiffs-Intervenors, v. HARRIS-TEETER SUPERMARKET, a corporation, Defendant. Richard GREGORY, individually and on behalf of all others similarly situated, Plaintiff, v. HARRIS-TEETER, a corporation, Defendant. Edward PORTER, individually and on behalf of all others similarly situated, Plaintiff, v. HARRIS-TEETER, a corporation, Defendant.

545 F. Supp. 686

Paul LILLY, individually and on behalf of all others similarly situated, Plaintiff, and Christopher McKinney, et al., Plaintiffs-Intervenors, v. HARRIS-TEETER SUPERMARKET, a corporation, Defendant.

Richard GREGORY, individually and on behalf of all others similarly situated, Plaintiff, v. HARRIS-TEETER, a corporation, Defendant.

Edward PORTER, individually and on behalf of all others similarly situated, Plaintiff, v. HARRIS-TEETER, a corporation, Defendant.

Nos. C-C-76-191, C-C-79-130 and C-C-79-137.

United States District Court, W. D. North Carolina, Charlotte Division.

July 13, 1982.

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Michael A. Sheely and Joyce M. Brooks, Sheely & Brooks, Charlotte, N. C., and Shelley Blum, Raleigh, N. C., for plaintiffs.

John O. Pollard and Richard Kane, Blakeney, Alexander & Machen, Charlotte, N. C., for defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

McMILLAN, District Judge.

Decided: August 15, 1980 by Memorandum of Decision on file. 503 F.Supp. 29.

June 25, 1982 by Supplemental Memorandum of Decision

This is an action brought pursuant to 42 U.S.C. § 1981 and 2000e et seq. Mr. Lilly filed his Complaint on June 18, 1976. Subsequent to Motion by plaintiff and the August 3, 1979 Order of the Court, the intervention of Christopher McKinney, Philip Reed, John LeGrand, Ken Bailey, Frank Sullivan, James Mobley, Shirley Gatewood, Jerome Gary, Curtis Jones, Woodrow McManus, Roy Torrence, Hazel Fisher, John Johnson, Willie Hunt, Michael McVay, Roosevelt Patterson, Willie Covington, William Carrothers, Trevesant Goodwin, and Richard Burch was allowed in Case Number 76-191. Edward Porter filed his Complaint (Case Number C-C-79-137) on April 27, 1979. Richard Gregory filed his Complaint (Case Number C-C-79-130) on April 25, 1979. Gregory, pursuant to his Motion and Order of the Court, was allowed to intervene in Lilly. All of these cases were consolidated for trial. Plaintiffs sought injunctive relief to remedy allegedly unlawful employment practices and to provide specific relief for each individual who suffered from these practices. Based upon the evidence and exhibits, and after hearing and weighing the evidence, deciding on the credibility of the witnesses, viewing the demeanor of witnesses, considering the interests of witnesses, and the arguments of counsel, the Court, pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, makes the following:

FINDINGS OF FACT

I. JURISDICTION

1. This Court has jurisdiction pursuant to 28 U.S.C. § 1343 and 42 U.S.C. § 2000e-5(f).

2. The plaintiffs have complied with the procedural requirements of Title VII (42 U.S.C. § 2000e et seq.) (Trial Transcript (hereinafter Tr. ____) 161, 162, 688-690; Plaintiff Trial Exhibits (hereinafter P. E. ____) 17, 27, 28).

II. PARTIES

3. Plaintiffs Paul Lilly, Christopher McKinney, Philip Reed, John LeGrand, Ken Bailey, Frank Sullivan, James Mobley, Shirley Gatewood, Jerome Gary, Curtis Jones, Woodrow McManus, Roy Torrence, Hazel Fisher, John Johnson, Willie Hunt, Michael McVay, Roosevelt Patterson, Willie Covington, William Carrothers, Trevesant Goodwin, Richard Burch, Richard Gregory, and Edward Porter are black adult residents of the counties of Orange (Lilly), Lincoln (Reed), Gaston (Porter), and Mecklenburg (remainder), North Carolina.

4. Defendant Harris-Teeter (the "Company" or "defendant"):

(a) is a corporation which transacts business in North Carolina;

(b) is involved in the retail grocery business (c) is a person within the meaning of 42 U.S.C. § 1981, and an employer within the meaning of 42 U.S.C. § 2000e(b). (Tr. 688-690).

III. INTERVENTION

5. Plaintiffs Christopher McKinney, Philip Reed, John LeGrand, Ken Bailey, Frank Sullivan, James Mobley, Shirley Gatewood, Jerome Gary, Curtis Jones, Woodrow McManus, Roy Torrence, Hazel Fisher, John Johnson, Willie Hunt, Michael McVay, Roosevelt Patterson, Willie Covington, William Carrothers, Trevesant Goodwin, and Richard Burch filed a Motion to Intervene on April 24, 1979 in Case Number 76-191. Intervenor Richard Gregory filed a separate action (C-C-79-130) and a Motion to Intervene in C-C-76-191.

6. At the time said plaintiffs filed their Motion to Intervene, they were members of the class certified by the July 22, 1977 Order of the Court.

7. At the time intervention was sought, and as borne out by the evidence at the trial:

(a) The persons listed in paragraph 5 claimed an interest in the transaction is the subject of Lilly v. Harris-Teeter, Number C-C-76-191.

(b) Disposition of the case may, as a practical matter, impede or impair their ability to protect their interests.

(c) The claims of the applicants have common questions of law and fact with the claims in the existing case.

(d) The allowance of the motions did not unduly delay or prejudice the adjudication of the rights of the original parties.

8. Intervention was sought to state claims under both 42 U.S.C. § 1981, § 2000e et seq.

IV. EMPLOYMENT PRACTICES

9. Harris-Teeter operates its main office, distribution center (warehouse), and some fourteen retail grocery stores in Mecklenburg County.

10. Between August, 1976, and the trial of this action the defendant's employment practices included: No notices of vacant jobs were posted at any of the locations before 1979; there were no educational requirements for job positions; there were no written job descriptions; regular written job performance evaluations were limited to office employees, merchandisers, and store managers; there were no criteria as to what factors were to be considered in promotion; and, an employee did not have to ask in order to be considered for promotion at any of the locations. (Tr. 540-543, 689-690; Deposition of C. L. Teeter, 27, 33, 36-38).

11. The distribution center (warehouse) has four departments: grocery, meat, frozen food-produce, and transportation. Each department had two shifts. The starting times of various employees on the same shifts are staggered. Both receiving and shipping functions are carried out at the warehouse. Order puller, order selector, order picker, and picker are synonymous terms for the same position. (Tr. 698-702; Defendant's Trial Exhibit (hereinafter D. E.) 71).

12. A warehouse leadman is a working supervisor who assigns duties and performs the same duties as his subordinates (e.g. a leadman over pickers will assign duties but he has primary duties of a picker). (Tr. 712).

13. The factors utilized in promotion at the warehouse were "character," "integrity," "good sound morale," "correct attitude," and "initiative." These criteria had no written definitions and in each case were defined by the particular management personnel involved in a promotion decision. Those criteria were capable of different definitions. (Tr. 736-41, 918, 987-993; D.E. 75).

14. Mr. Ralph Wilson, a white manager of Distribution Operations, kept a mental list of employees who wanted jobs. Mr. Penney, a white warehouse manager, maintained a written list of warehouse employees who wanted transfers between December, 1977 and January, 1979. (Tr. 711, 736-741, 1177-1180; D.E. 112).

15. The posting of warehouse jobs started in January, 1979. Leadman jobs were posted in the summer of 1979. (Tr. 711, 736-41).

16. The defendant contended that, in order to be promoted to a warehouse leadman, an employee had to be on the same shift and in the same department as the opening. The defense to the warehouse plaintiffs' promotion claims was grounded on this "same shift/same department" policy/practice. Whether this policy/practice existed during the time periods in question is in dispute. The policy was unwritten (Tr. 928, 990). If the policy existed, it was discriminatorily applied in that: (i) there was no showing that any white person was denied a leadman position because of the practice; (ii) from the record evidence, only blacks were denied promotions because of the practice; (iii) the policy/practice was used to justify the denial of particular job assignments (Tr. 952); (iv) white employees were promoted or transferred across shift and/or departmental lines to leadman or foreman trainee positions (Weaver, Fowlkes, Givens); (v) more experienced black employees, (Mobley, McKinney, Bailey) all of whom met the same shift/same department requirement, were denied leadman positions some of which were filled by whites who crossed shift and/or departmental lines to fill those positions (Tr. 928, 988-990; Findings 25, 27, 34 infra.)

17. The promotion claims of plaintiffs Mobley, Patterson, Johnson, Sullivan, and LeGrand were defended on the basis of the same shift/same department policy. The Court finds that this policy was not the reason those plaintiffs were denied promotions (Tr. 110-112, 351-352, 384-385, 520, 917, 918, 928, 933-941, 952-995, 1071; D.E. 81).

18. Refusals by blacks to take jobs on particular occasions, regardless of circumstances, were carefully remembered, but the blacks were never asked whether they had changed their minds or whether their circumstances had changed. See Findings concerning Sullivan (32) and Patterson (29).

19. The defendant contended that some of the whites selected for promotion were better qualified because of their previous job experience (e.g. Allen, Hanson). Previous job experience was not systematically recorded. Relevant job experience of qualified blacks, whether listed on an application form or communicated orally, was often ignored or disbelieved (Reed, McKinney, Patterson, LeGrand, Torrence). The previous job experience of white promotees was typically remembered, explored, and utilized (e.g. Hanson). Information concerning prior experience, job performance, etc., was conveyed by word of mouth from one level of supervision to another. In cases where black and white applicants described their previous job experience in a substantially identical fashion, the white applicant's experience was used as a basis for promotion, while...