Massey v. Thiokol Chemical Corporation

• Decision Date: 21 December 1973
• Docket Number: Civ. A. No. 1161.
• Citation: 368 F. Supp. 668
• Parties: Flossie Marie MASSEY et al., Plaintiffs, v. THIOKOL CHEMICAL CORPORATION and United States of America, Defendants.
• Court: U.S. District Court — Southern District of Georgia

368 F. Supp. 668

Flossie Marie MASSEY et al., Plaintiffs, v. THIOKOL CHEMICAL CORPORATION and United States of America, Defendants.

Civ. A. No. 1161.

United States District Court, S. D. Georgia, Brunswick Division.

December 21, 1973.

Joseph Jones, Jr., Hill, Jones & Farrington, Atlanta, Ga., and Savannah, Ga., for plaintiffs.

Edward E. Dorsey, Daryll N. Love, Powell, Goldstein, Frazer & Murphy, Atlanta, Ga. Wallace E. Harrell, Bennet, Gilbert, Gilbert, Whittle, Harrell & Gayner, Brunswick, Ga., for Thiokol.

Wayne P. Yancey, Deputy Asst. Atty. Gen., on brief as amicus curiae, for State of Ga.

LAWRENCE, Chief Judge.

ORDER ON THIOKOL'S MOTION FOR SUMMARY JUDGMENT

I History of Litigation

This action seeking damages totalling $550,000,000 has been brought by plaintiffs against the United States and Thiokol Chemical Corporation. All plaintiffs are black. The basis of jurisdiction as to Thiokol is diversity of citizenship. The litigation grows out of an explosion that occurred on February 3, 1971, at the plant of Thiokol in Camden County, Georgia, in which twenty-eight employees were killed. Thiokol was engaged in manufacturing surface trip flares alleged to be "highly explosive, flammable and inherently dangerous products". It is sued as a joint tort feasor along with the United States. Liability of the Government is based on the Federal Tort Claims Act. 28 U.S.C.A. § 2671 et seq.

All of the plaintiffs are employees of Thiokol or dependents or next of kin of employees. The defendant in question has moved for summary judgment. It asserts that the claim of each of the plaintiffs is barred under the Workmen's Compensation Act of Georgia. The affidavit and the exhibits accompanying the motion establish that Thiokol was covered by the Act; that no employee who is a plaintiff or for whose death claim is made in this action rejected coverage and that workmen's compensation benefits have been paid to and accepted by each injured plaintiff or by the personal representative, dependent or next of kin of deceased employees.¹

Shortly before the argument last July of Thiokol's motion, counsel for plaintiffs filed a brief in which was raised the issue of the constitutionality of the Georgia Workmen's Compensation statute. Plaintiffs contend that various sections thereof violate the Fifth and Fourteenth Amendments, namely, the provisions of the Act using average weekly earnings in the formula for determining compensation. The claim of invalidity is couched in broad and conclusory terms. This Court directed that the complaint be amended so that the constitutional infirmities of the legislation are specifically set out. The amendment filed merely repeats what was previously alleged: the sections of the Act in question are violative of the Fifth and Fourteenth Amendments and the statute "both on its face and in its application . . . is arbitrary and unreasonable with no discernible standard and discriminates against low income employees, the poor white, the young and and the black."

Taken by itself, the complaint possibly falls short of the specificity demanded where a law is challenged as violative of the federal Constitution. Conclusory allegations as to unconstitutionality are not enough to support such a claim. Campbell v. Supreme Court of Florida, 428 F.2d 449 (5th Cir.). However, I think the constitutional attack here is sufficiently explicit. This is especially so in the light of the oral argument last July and the request then made by plaintiffs' counsel for opportunity to present certain statistics from the records of the Workmen's Compensation Board. Such data was to be used to support the claim of discriminatory effect on plaintiffs and other groups of the earnings approach to computing compensation for death or injury. I granted two months therefor and subsequently extended the time to December 3rd. A statistical analysis has been filed by plaintiffs. I will recur to it after summarizing the contentions of plaintiffs as gathered from their reply brief.

II Contentions of Plaintiffs

The argument of counsel for plaintiffs boils down to something like this:

The black employees of Thiokol injured or killed in the explosion were unskilled laborers receiving the minimum hourly wage. Their low earning capacity is the consequence of the long history of socio-economic discrimination by the State of Georgia under which blacks are relegated to lower-paying jobs.² The formula for fixing compensation under the Workmen's Compensation Act discriminates against blacks, women, the young and the marginally-educated white employees. There is no rational basis for compensating employees who are members of these black and minority groups differently for the same injury or disability as are employees with higher earnings. As a result of systematic discrimination in employment and pay, which has been "sanctioned" by the State, awards of compensation to blacks and poor whites are proportionately lower for death and the same injury. Statistics compiled from a random sampling of the records of the Board of Workmen's Compensation establishes a discernible difference and disparity in benefits paid to whites and blacks for the same job injuries.

In enacting the legislation and adopting the average earnings formula, the General Assembly failed to consider and take into account the historical discriminatory economic factors. They render what is equal on its face unequal in its racial impact. The Workmen's Compensation Act is facially and operatively arbitrary and unreasonable, say plaintiffs, in the effect of the earnings formula of compensation. If the rate of compensation fixed is unreasonable, the Act prescribing same is invalid. The statutory compensation deprives plaintiffs and black employees generally of Equal Protection under the Fourteenth Amendment.

The fact that the State of Georgia has long practiced a policy does not place same beyond attack on ground of discrimination. Legislation that has outlived its usefulness and which eventually defeats its original purpose must be changed.

So runs the argument of plaintiffs as to the constitutional issue.

III Comparison of Death and Disability Benefits Paid to Whites and Blacks under the Georgia Workmen's Compensation Act

A. The Georgia State Board of Workmen's Compensation commendably cooperated with the Court and plaintiffs' counsel in supplying data from its files during the period 1970-1973. A random sampling of 100 death cases of males was furnished. Seventy-eight employees were white, fifteen black and seven unknown. A similar sampling was furnished as to compensation paid in 200 bodily member cases. Such claims involved 113 white males, 48 black males, 11 white females and 3 black females. Based thereon, a data analysis was made by Dr. Donna R. Brogan, Associate Professor Biometry & Statistics, Emory University. Her report is attached as an exhibit to plaintiffs' reply brief and has been made part of the record in this case.

In respect to death claims the study reflects that the deceased white employees had a median weekly salary of $147 compared to $102 for blacks. However, the average compensation differed but slightly, $15,955 to whites and $15,927 for blacks. The close correlation is attributed to the fact that the maximum death benefits payable during most of the period covered by the study was $17,000.³ Two-thirds of the black and three-fourths of the white dependents received the maximum.

As to specific member injuries the analysis revealed the following median wages and compensation between whites and blacks:

4th finger: the median compensation paid to 9 black males was $1,076 and to 21 whites, $1,250. The median weekly wages of the whites was $99 and the blacks $71.

3rd finger: the median compensation paid to 5 black males and 14 white males was approximately the same, being close to the statutory maximum of $1,500.

2nd finger: the median compensation paid to 7 black males was $1,515 compared to $1,724 for 16 whites.

1st finger: the median compensation paid to 17 black males was $1,965 as compared to $1,976 to 33 white males.

thumb: the median compensation paid to 2 black males was $2,645 and $2,944 to 8 white males.

eye: the median compensation paid to 4 black males was $5,340 and to 9 white was $5,947. The median weekly earnings were $72 and $104, respectively.

The number of white and black females as to whom data was available is too small for meaningful analysis. However, there was a significant difference, according to Dr. Brogan, in compensation paid for first finger loss to white males and white females: $1,746 for 6 females compared to $1,976 for 33 males.

Dr. Brogan summarized her study as follows:

"A random sample of 93 male death cases indicated that blacks and whites received about the same compensation for death, primarily because 2/3 to ¾ of each group received the maximum compensation of $17,000.

"A random sample of 200 injury cases, where the injury was for total loss of use or dismemberment of limb or member, suggested strongly that blacks received less compensation than whites for equivalent injuries. However, the number of females in the sample was too small to draw any conclusions about whether females received less compensation than males for equivalent injuries."

B. Thiokol has filed a response to the findings of Dr. Brogan in the form of an analysis by Dr. Albert H. Clark, Professor of Finance, and Dr. Merwyn L. Elliott, Associate Professor of Quantitative Methods, Georgia State University. They find that in the 100 death cases there was no evidence of discrimination between blacks and whites. Indeed, there is even a possibility of the reverse. Reviewing the claims in which less than the maximum benefit was paid in the case of a deceased employee, Dr. Clark and Dr. Elliott report that blacks in the group who had an average weekly wage of $90.77 received an average of $14,325 in benefits while white persons with an average...