Logan v. General Fireproofing Co.

• Decision Date: 23 July 1971
• Docket Number: No. 15272,15272
• Citation: 3 F.E.P. Cases 854,521 F.2d 881
• Parties: 3 Fair Empl.Prac.Cas. 854, 3 Empl. Prac. Dec. P 8288 Netti Mae LOGAN, Appellant, v. The GENERAL FIREPROOFING COMPANY, a corporation, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 881

521 F.2d 881

3 Fair Empl.Prac.Cas. 854, 3 Empl. Prac. Dec. P 8288

Netti Mae LOGAN, Appellant, v. The GENERAL FIREPROOFING COMPANY, a corporation, Appellee.

No. 15272.

United States Court of Appeals, Fourth Circuit.

Argued May 3, 1971.

Decided July 23, 1971.

Robert Belton, Charlotte, N. C. (J. LeVonne Chambers, Adam Stein, Charlotte, N. C., Conrad O. Pearson, Durham, N. C., William L. Robinson, Sylvia Drew, Jack Greenberg, New York City, and

Chambers, Stein, Ferguson & Lanning, Charlotte, N. C., on brief) and David Copus, Atty., E. E. O. C. (Stanley P. Hebert, Gen. Counsel, David W. Zugschwerdt, Acting Chief, Trial Section, and Marian Halley, Atty., E. E. O. C., on brief), for appellant.

Jesse S. Hogg, Coral Gables, Fla. (J. Toliver Davis, Asheville, N. C., and Greene, Hogg & Allen, Coral Gables, Fla., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, and CRAVEN and RUSSELL, Circuit Judges.

DONALD RUSSELL, Circuit Judge:

Asserting a denial of employment on account of "race and color", the plaintiff filed this individual and class action against the defendant under Sections 2000e and 1981, 42 U.S.C. The appeal is from an order of the District Court granting defendant's motion for summary judgment. We reverse.

The defendant is a furniture manufacturer, with plants in various parts of the United States. Its business is plainly within the scope of Section 2000e of the Civil Rights Act of 1964. In 1963 or 1964, it began operating a plant in Forest City, North Carolina. This plant normally employed about 450 persons. Its employees were hired, as the occasion arose, on a "walk-in" basis and lived in areas within commuting distance of the plant. The plaintiff herself lives at Bostic, North Carolina, about 5 or 6 miles from Forest City. She is a Negro, married, with 9 children, three of pre-school age. On March 16, 1966, she applied in person to the defendant for employment. According to her testimony, she did so in response to a radio advertisement for employees. The defendant denied any such advertisement. At any rate, the defendant offered her no employment at the time. She again applied in person unsuccessfully for employment in June, 1966. At some time either during or between these two visits, it would appear from the affidavits filed by the defendant, the plaintiff inquired of the defendant's personnel manager about her application for employment and was given to understand that her large family and her "overweight" disqualified her for employment. The plaintiff, also, claimed in her deposition that at some time during this same period, she telephoned the defendant about her request for employment and was told by the person answering the telephone that the defendant had job openings for men but not for women. Following the denial of her personal application in June, 1966, the plaintiff filed a charge of discrimination in denial of employment because, as she alleged in her original charge, she was a "Negro woman". ¹ One year later the Commission found reasonable cause to sustain the charge of discrimination and, within 30 days of receiving advice to such effect, the plaintiff filed this action.

In her complaint, the plaintiff charged that the defendant had engaged in discrimination in its employment practices by:

1. Discriminating against Negro applicants for employment on the grounds of race or color;

2. Limiting Negroes to lower paying jobs;

3. Paying Negroes lower wages than whites for the same work; and

4. Failing to post Equal Employment Opportunity Commission posters in its plant.

In support of these claims, she alleged specifically that, of defendant's 440 employees, only 30, including 3 women, were Negroes. She sought both injunctive and declaratory relief, as well as the award of a job, with back pay, and attorney's fees.

After certain preliminary motions, the defendant answered. Interrogatories were exchanged and answered. The plaintiff was deposed by the defendant. On the record thus made and certain supporting affidavits, defendant at this point moved for summary judgment in its favor. In reply, the plaintiff submitted her own affidavit. The motion came on for disposition before the District Court, which, after hearing arguments, granted the motion and this appeal followed.

If the issues involved were confined strictly to racial discrimination, a majority of the panel would be inclined to affirm, even though ordinarily summary disposition of Title VII cases is not favored, especially on a "potentially inadequate factual presentation". Williams v. Howard Johnsons's Inc. of Washington (4th Cir. 1963) 323 F.2d 102, 105; see, however, Grimm v. Westinghouse Electric Corporation (D.C.Cal.1969) 300 F.Supp. 984, 991, note 4. The record contains no evidence that the defendant paid lower wages to Negroes than to whites for the same work. ² In fact, the evidence seemed positive to the contrary. There is some dispute in the record whether there were any Negro supervisors before plaintiff filed her charge with the Commission but there was no evidence in the record that any qualified Negro had been passed over for promotion or that Negroes had been confined to lower paying jobs. ³ It is true no Negroes were employed in the executive department and only one in the clerical department. The defendant stated in its affidavits that it had been unable to secure any qualified Negroes (other than the one employed in the clerical department) for employment in these two departments. This was not disputed or controverted by the plaintiff in her showing on the motion. It seems, also, to have been recognized that the defendant had erected the Commission's posters. It accordingly seems fair to assume, as the District Court did, that plaintiff's claim of racial discrimination was at this stage confined to the defendant's hiring practices. On this issue, the record includes no direct evidence that would identify any Negro who had been specifically denied employment because of his or her race or color.

The plaintiff submits, however, that, on the basis of statistical material in the record, an inference of racial discrimination was warranted and that such inference precluded the grant of summary judgment. The use of statistical material such as that involved here has been frequently approved as an acceptable method of evaluating compliance with the requirements of Title VII. United States v. Dillon Supply Company (4th Cir. 1970) 429 F.2d 800, 802; Cypress v. Newport News General & Nonsectarian Hosp. Ass'n. (4th Cir. 1967) 375 F.2d 648, 654; Jones v. Lee Way Motor Freight, Inc. (10th Cir. 1970) 431 F.2d 245, 247, cert. den. 401 U.S. 954, 91 S.Ct. 972, 28 L.Ed.2d 237. As the Court put it in Jones, "In racial discrimination cases, statistics often demonstrate more than the testimony of many witnesses, and they should be given proper effect by the courts." When properly weighed and considered, "Courts listen" to such evidence. State of Alabama v. United States (5th Cir. 1962) 304 F.2d 583, 586, aff. 371 U.S. 37, 83 S.Ct. 145, 9 L.Ed.2d 112; Parham v. Southwestern Bell Telephone Co. (8th Cir. 1970) 433 F.2d 421, 426. But statistics must not be accepted uncritically, without careful consideration of all relevant factors. Especially where such statistics are "based on community racial proportions," which is the situation in this case, they are often "ambiguous" and "ought to be listened to with a critical ear." Note, Employment Discrimination and Title VII of the Civil Rights Act of 1964, 84 Har.L.Rev. 1109, 1154 (1971). As already stated, a majority of the panel, after giving careful consideration to the statistical material would be inclined to affirm the conclusion of the District Court that, on the basis of the record before it, there was insufficient evidence to justify an inference of racial discrimination. But this conclusion does not dispose of plainti...