Marquez v. Omaha District Sales Office, Ford Division

• Decision Date: 31 March 1971
• Docket Number: No. 20524.,20524.
• Parties: Martin MARQUEZ, Plaintiff-Appellant, v. OMAHA DISTRICT SALES OFFICE, FORD DIVISION OF FORD MOTOR COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

440 F.2d 1157 (1971)

Martin MARQUEZ, Plaintiff-Appellant, v. OMAHA DISTRICT SALES OFFICE, FORD DIVISION OF FORD MOTOR COMPANY, Defendant-Appellee.

No. 20524.

United States Court of Appeals, Eighth Circuit.

March 31, 1971.

Seb Caporale, Omaha, Neb., Shrout, Lindquist, Caporale, Brodkey & Nestle, Omaha, Neb., for plaintiff and appellant.

Joseph R. Moore, Omaha, Neb., of Gaines, Spittler, Neely, Otis & Moore, Omaha, Neb., for defendant-appellee.

Before MATTHES, Chief Judge, LAY and BRIGHT, Circuit Judges.

LAY, Circuit Judge.

This is a fair employment practice case arising under Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e et seq. After trial to the district court, judgment was entered for the defendant and the action dismissed, 313 F.Supp. 1404. Plaintiff appeals. We reverse and remand to the district court for reconsideration in light of this opinion.

The plaintiff Martin Marquez is of Mexican descent. He has worked for the Omaha, Nebraska, District Sales Office of the Ford Motor Company since December 1, 1949. He complains that he has not been promoted by the defendant because of his national background, although qualified for promotion, over a period of the last fifteen years. On January 3, 1967, the company promoted another employee to manager of his department who allegedly possessed less experience than plaintiff.

Marquez urges that the defendant violated the Civil Rights Act of 1964 in failing to promote him because of his national origin. On January 27, 1967, Marquez filed a complaint before the United States Equal Employment Opportunity Commission. Upon investigation the EEOC determined there was "reasonable cause" to believe that the company had illegally discriminated against the plaintiff. Notice was given plaintiff by EEOC of its attempt to eliminate the discriminatory practice by conciliation. Plaintiff alleges that defendant failed to voluntarily comply with the conciliation efforts of the EEOC.¹ Plaintiff received the 30 day statutory notice and brought suit. Plaintiff specifically seeks back pay from the date of the Civil Rights Act of 1964, promotion to department head (Class 9) and attorneys fees pursuant to § 2000e-5(k).

The trial court determined that plaintiff had fully exhausted his administrative remedies and that the court had jurisdiction to determine the merits. This jurisdictional basis is challenged by the defendant on appeal. We are satisfied that jurisdiction exists.² The trial court further ruled that the plaintiff failed to establish any evidence of racial discrimination by the defendant and denied relief.

We hold that the district court erred in finding (1) that the plaintiff was not entitled to rely on any past discrimination which may have presently precluded him from being eligible for promotion and (2) that the record was void of any evidence of discrimination past or present on the part of Ford Motor Company.³

In its memorandum opinion the district court found that Ford Motor Company's policy required prior training in Class 7 or 8 field experience to advance an employee to one of its Class 9 managerial positions. The evidence is undisputed that Ford's nationwide policy is that an advancement is never made from a Class 6 to a Class 9. Based on this evidence the district court viewed the company's failure to advance Marquez solely as one of "business necessity" and without discrimination. We accept this evidentiary premise and view this promotional policy as neutral on its face and nondiscriminatory. However, we hold that the trial court's conclusion that Marquez was therefore not discriminated against in the application of that policy does not necessarily follow. United States v. Sheet Metal Workers, infra, 416 F.2d 123 at 131-132.

It is true that the Civil Rights Act of 1964 is not violated where an employer's present system of promotion excludes consideration of an employee because he is deemed not qualified solely by reason of lack of ability or experience. However, where an employer's present advancement policy serves to perpetuate the effects of past discrimination, although neutral on its face, it rejuvenates the past discrimination in both fact and law regardless of present good faith. While it is true, as the trial court pointed out, that the Act was intended to have prospective application only, relief may nevertheless be granted to remedy present and continuing effects of past discrimination. United States v. Dillon Supply Co., 429 F.2d 800 (4 Cir. 1970), Griggs v. Duke Power Co., 420 F.2d 1225 (4 Cir. 1970), reversed on other grounds 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971); United States v. Sheet Metal Workers International Assn, Local 36, 416 F.2d 123 (8 Cir. 1969); Quarles v. Philip Morris, Inc., 279 F.Supp. 505 (E.D.Va.1968).⁴

Marquez was hired by defendant's Omaha District Office in 1949 in a "Steno A" position. He advanced to a Sales Planning Analyst by 1956.⁵ It is after this point that plaintiff asserts that the company wrongfully withheld his advancement in violation of the Act. Since 1956 Marquez has not advanced beyond this position. He has remained in a Class 6 status for the past 15 years. Prior to the complaint filed in 1967 with the EEOC, Marquez's job performance ratings by his company supervisors had been excellent. These reports praised his initiative, personality, cooperation, analytical mind, and knowledge of the job. In 1961, his superior rated him as promotable to Administrative Assistant, and in 1962 he was adjudged to be promotable to Field Manager. Nevertheless, he was kept at his same position of a Sales Planning Analyst and in April 1963, for no reason which appears on the record or in his employment files, he was taken off the promotable list so that he was no longer eligible to advance to a higher classification.

The testimony is undisputed that on three occasions he was the only eligible employee denied the opportunity to attend company training programs, while other men similarly situated were sent. The record is further undisputed that Marquez's failure to advance and receive the field experience in Class 7 or Class 8 essential to further advancement was caused by his nonpromotional status. If his nonpromotional "frozen" status was caused in part by racial discrimination, the company's policy in refusing to consider him for any promotion is inherently invalid and discriminatory to him.

The trial judge found that there was no evidence to establish any past or present discrimination practiced by Ford Motor Company. For the reasons discussed we hold this conclusion fails to give proper weight to relevant factors which establish a prima facie case of racial discrimination.

While this case was not tried as a typical pattern discrimination case, the past record of Ford Motor Company's actual experience in hiring members of a minority race in both the Omaha district and the region of which this district is a part may be considered in evaluating plaintiff's claim of discrimination as to him. Until the filing of the present complaint Marquez was the only noncaucasian of the defendant's 55 employees in Omaha.⁶ The greater Omaha area approaches one-half million people, over ten percent of which are Negroes, Indians and Mexicans. The evidence shows that during the same period (1950-1967) Ford has hired only two Negroes in its entire sales region. One Negro was hired in St. Louis and another employed in Denver, both within the same sales region as Omaha. On this record it is not necessary to determine whether "pattern discrimination" per se has been established.⁷ Nevertheless, these facts do serve as evidentiary support for plaintiff's claim of racial discrimination in the instant case. Allegation of class injury is not necessary to show violation of the statute. The statute makes unlawful an employer's discrimination "* * * against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin * * *." 42 U.S.C.A. § 2000e-2(a) (1). (Emphasis ours.) The fact that Ford Motor Company has undertaken a nationwide campaign to improve its minority ratio in employment practices is to be commended. However, present good faith compliance is no defense as to past practices which have resulted in present damage.

"The Company\'s lack of discriminatory intent is suggested by special efforts to help the undereducated employees * * *. But Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation." Griggs v. Duke Power Co., 401 U.S. 424, 91 S. Ct. 849, 854, 28 L.Ed.2d 158 (1971). (Emphasis in original.)

Cf. Jones v. Lee Way Motor Freight, Inc., 431 F.2d 245 (10 Cir. 1970); Parham v. Southwestern Bell Telephone Co., 433 F.2d 421 (8 Cir. 1970).

Since Marquez's early days with the company, his work performance has been continually appraised by various supervisory personnel. These appraisals contain no disparaging remarks or data concerning his ability to advance or to perform his various assignments. On the contrary, each evaluation was very favorable. Typical of these documentary reports is the one written in October 1960 in which a merit raise was recommended because of the excellence of his performance:

"Mr. Marquez has performed his assignments as Sales Planning analyst in an excellent manner. He has displayed ability to handle a maximum workload with minimum errors. Mr. Marquez assists the District Planning Manager in developing the monthly Car and Truck Programs and consistently displays sound judgment in using available statistical information. He has an excellent analytical mind and has demonstrated a thoroughness in all analytical assignments. He maintains an excellent follow-up on reports which are consistently submitted on time. New employees assigned to the department are placed under Mr. Marquez\'s supervision for departmental training.

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