Marshall v. Goodyear Tire & Rubber Co.

• Citation: 554 F.2d 730
• Decision Date: 24 June 1977
• Docket Number: No. 75-3217,75-3217
• Parties: 15 Fair Empl.Prac.Cas. 139, 14 Empl. Prac. Dec. P 7655 F. Ray MARSHALL, Secretary of Labor, United States Department of Labor, Plaintiff-Appellee, v. The GOODYEAR TIRE & RUBBER COMPANY, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 730

554 F.2d 730

15 Fair Empl.Prac.Cas. 139, 14 Empl. Prac.

Dec. P 7655

F. Ray MARSHALL, Secretary of Labor, United States Department of Labor, Plaintiff-Appellee, v. The GOODYEAR TIRE & RUBBER COMPANY, Defendant-Appellant.

No. 75-3217.

United States Court of Appeals Fifth Circuit.

June 24, 1977.

Wayne Thomas, Marvin E. Barkin, Tampa, Fla., for defendant-appellant.

John L. Briggs, U. S. Atty., Jacksonville, Fla., Beverley R. Worrell, Regional Director, U. S. Dept. of Labor, Atlanta, Ga., Donald S. Shire, Wm. J. Kilberg, Solicitor of Labor, Carin Ann Clauss, Assoc. Sol., Jacob I. Karro, Paul D. Brenner, Attys., Bobbye D. Spears, Reg. Sol., Dept. of Labor, Washington, D. C., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before GEWIN, RONEY and HILL, Circuit Judges.

GEWIN, Circuit Judge:

After unsuccessful informal attempts to resolve the dispute, the Secretary of Labor sued appellant Goodyear Tire & Rubber Company ("Goodyear" or "the Company") alleging a violation of the Age Discrimination in Employment Act of 1967 ("ADEA"). ¹ The allegation concerned the discharge of William G. Reed, Jr., and appellee sought to enjoin further violations and to recover Reed's lost wages. The district court found the violation alleged and granted the requested relief, including a nationwide injunction against further violations. The Company appeals. We affirm in part, vacate in part and remand.

Goodyear is engaged in the operation of retail service stores, including one in Auburndale, Florida. Alonzo Turner, manager of the Auburndale service store, on June 12, 1973 hired Reed (age 57) to do sales and collection work. Turner testified that he hired Reed specifically because of his age, as he felt Reed would be a more mature, stable individual than the younger people who usually applied for the position. Within two weeks, according to Turner, he determined that Reed was unable to do the job. He did not replace him immediately, however, because of a shortage of employees.

Turner went on a vacation during the last week of July, 1973, during which time Glenn Coleman acted as store manager. Coleman became the Auburndale manager on August 1, Turner becoming manager of the Haines City store on August 6. Thus Coleman and Turner worked together at Auburndale during the interim period in early August. Turner testified that before his vacation and during the interim he discussed Reed's shortcomings with Coleman.

Coleman discharged Reed on August 11, 1973, telling him either that he did not fit Coleman's plans or that his performance was not up to Coleman's expectations. Shortly thereafter Coleman placed an employment advertisement in a local newspaper requesting sales applicants between the ages of 19 and 26. Reed's position ultimately was filled by Terry Gray, age 19.

The Secretary's investigation also uncovered evidence that age preferences were stated in Goodyear job orders placed with a local employment agency, and substantial evidence was introduced on the matter. Ms. Shirley Riggs, manager of AAA Employment Service ("Triple A"), testified that a compliance officer of the Department of Labor reviewed Triple A's job orders, which are forms containing information about jobs given by employers over the telephone. The officer, Stanton Morgan, found that some of the orders included age preferences, and he discussed with Riggs some of the legal limits on age discrimination. Morgan transcribed the job orders he reviewed. After he left the agency's office, Riggs wrote "corrected" orders ² or wrote job-related information over the offending age preferences.

On July 31, 1973, Coleman placed a job order with Triple A for a sales trainee. The sheet containing that order was one of those corrected by Riggs. It was introduced as an exhibit and, as a consequence of the correction, does not contain an age preference. Riggs testified that this Goodyear order was one in which a change was made and that she believed the original contained an age preference. Compliance Officer Morgan, although his transcriptions of the originals were not admitted into evidence, could testify from independent recollection that the original July 31 Goodyear order contained an age preference. Coleman testified that he placed a job order with Triple A, but he did not remember a reference to age. Riggs stated, however, that the orders contained age preferences only when that factor was mentioned by employers.

The Secretary also sought to establish the placement of a job order with an age preference by another Goodyear store, in Lakeland, Florida. The original of that order does exist, is dated August 23, 1973, and was admitted into evidence. It is apparent that a phrase like "Prefer Some Sales (Experience or Background)" is written over some other words, but it is difficult to decipher what the original words are. Officer Morgan did not testify about his recollection of the August 23 order. Although Riggs' testimony as to that order is somewhat contradictory, she did state that she had written the additional language over what she "imagined" was an age preference.

The district judge made no express findings as to the job order incidents. He did find, however, that Reed was discharged in violation of 29 U.S.C. § 623(a) (1), ADEA § 4(a)(1), ³ based on his conclusion that the Secretary established a prima facie case and that the Company "failed to carry its burden of showing that said discharge was within the exception of 'good cause.' " The court then permanently enjoined Goodyear from violating section 4(a) of the ADEA, and enjoined it from withholding lost wages due Reed in the total amount of $2,963.63 plus interest.

Appellant primarily complains of the scope of the injunction. The court found a single violation Reed's discharge involving only the actions of the Auburndale store manager. This limited finding does not warrant such broad injunctive relief. Issuance of an injunction rests primarily in the informed discretion of the district court. Hodgson v. First Federal Savings & Loan Association, 455 F.2d 818, 825 (5th Cir. 1972). Yet injunctive relief is a drastic remedy, not to be applied as a matter of course. NLRB v. Express Publishing Co., 312 U.S. 426, 433, 435-36, 61 S.Ct. 693, 698, 699, 85 L.Ed. 930, 935, 937 (1941); Hodgson v. American Can Co., 440 F.2d 916, 920 (8th Cir. 1971) (Fair Labor Standards Act).

In determining the limitations on a district court's discretion to issue an injunction, it is appropriate to look to the ADEA, to Fair Labor Standards Act cases, since the ADEA can be enforced through FLSA provisions, and to cases involving other federal statutes regulating employment discrimination. ADEA § 7(b), 29 U.S.C. § 626(b), states that "(i)n any action brought to enforce this chapter the court shall have jurisdiction to grant such legal or equitable relief as may be appropriate to effectuate the purposes of this chapter . . . ." (emphasis added). The ADEA substantially parallels Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and a similar general restriction on the district court's power is evident. Under Title VII injunctive relief is appropriate to remedy continuing wrongs and must be tailored to achieve that purpose. Myers v. Gilman Paper Corporation, 544 F.2d 837, 854, 855 (5th Cir. 1977); Stevenson v. International Paper Company, 516 F.2d 103, 118 (5th Cir. 1975).

Equal Pay Act, ⁴ FLSA, and ADEA cases all establish that a nationwide or companywide injunction is appropriate only when the facts indicate a company policy or practice in violation of the statute. For example, in the leading ADEA case of Hodgson v. First Federal, supra at 825-26, we held that the evidence entitled the Secretary to a broader injunction than that issued by the district court. The employer had a main office and five branches, all in one county. Evidence indicated that the hiring was done centrally by one personnel officer and that he had rejected several applicants for tellers' positions because of their age. The district court enjoined future violations of the ADEA "with regard to the hiring of tellers." On appeal this court concluded that the Secretary's evidence indicated the existence of a discriminatory hiring policy by the employer. One of the applicants, for example, was rejected for any job, not just for a teller's position. Moreover, the employer had also placed a newspaper advertisement seeking a " young man" for the position of financial advertising assistant. Inasmuch as the proof showed a company policy of hiring discrimination extending beyond the category of tellers' positions, a broad injunction against the employer's future discriminatory hiring based on age was appropriate.

This approach is also seen in Brennan v. J. M. Fields, Inc., 488 F.2d 443, 449-50 (5th Cir.), cert. denied, 419 U.S. 881, 95 S.Ct. 146, 42 L.Ed.2d 121 (1974). There this court affirmed the district court's issuance of an injunction against the employer's entire operations, which included more than sixty retail outlets, on the basis of violations of the Equal Pay Act at three of them. The Secretary defended the injunction on the ground that the New York office's close centralized supervision of wage scales and pay policies indicated a company policy with regard to the pay differential. This court agreed with that contention. ⁵ Conversely, the Second Circuit has held that "absent a showing of a policy of discrimination which extends beyond the plants at issue . . ., there is no basis for a nationwide injunction." Hodgson v. Corning Glass Works, 474 F.2d 226, 236 (2d Cir. 1973) (Friendly, C. J.), aff'd on other grounds, 417 U.S. 188, 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974). Accordingly, the court limited the injunction's effect to the three plants in Corning, New York, where violations were shown, lifting its effect from the 26 other branch plants. ⁶

The Secretary contends that in the instant...