Merriweather v. Hercules, Inc., 79-1554

• Decision Date: 01 December 1980
• Docket Number: No. 79-1554,79-1554
• Citation: 631 F.2d 1161
• Parties: 26 Fair Empl.Prac.Cas. 733, 24 Empl. Prac. Dec. P 31,389 Clarence MERRIWEATHER et al., Plaintiffs, Charles H. Hood and Vallie J. Cunningham, Plaintiffs-Appellees Cross- Appellants, v. HERCULES, INCORPORATED, et al., Defendants, Hercules, Incorporated, Defendant-Appellant Cross-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1161

631 F.2d 1161

26 Fair Empl.Prac.Cas. 733,

24 Empl. Prac. Dec. P 31,389

Clarence MERRIWEATHER et al., Plaintiffs, Charles H. Hood and Vallie J. Cunningham, Plaintiffs-Appellees Cross- Appellants, v. HERCULES, INCORPORATED, et al., Defendants, Hercules, Incorporated, Defendant-Appellant Cross-Appellee.

No. 79-1554.

United States Court of Appeals, Fifth Circuit.

Dec. 1, 1980.

C. V. Stelzenmuller, D. Frank Davis, Birmingham, Ala., for defendant-appellant cross-appellee.

Adams & Clemon, O. Williams Adams, III, Oscar W. Adams, Jr., Birmingham, Ala., for plaintiffs-appellees cross-appellants.

Appeals from the United States District Court for the Northern District of Alabama.

Before VANCE and GARZA, Circuit Judges and ALLGOOD, ^* District Judge.

GARZA, Circuit Judge:

In 1974, seventeen black employees of Hercules, Inc. sought a class action against the company under Title VII of the Civil Rights Act of 1964. In 1976, a consent decree was signed by the district court resolving the dispute between the class and the company. The consent decree included a provision, however, which allowed four individuals to submit their cases to a special master. A fifth employee who was not a named plaintiff was added to this group when he objected to the proposed consent decree. He later withdrew his objection when the parties agreed to allow him to have his case heard by the special master.

All five of the individuals who were allowed to submit their cases to the special master did so. The special master conducted extensive hearings and submitted an Opinion and Findings resolving all the claims before him. The special master determined that three of the employees had failed to carry their burden of demonstrating that their discharges were based upon racial discrimination. The special master also found that two of the plaintiffs Charles Hood and Vallie Cunningham, had been victims of racial discrimination. The special master concluded that Hood should receive seniority and partial back pay and that Cunningham should receive seniority and full back pay.

The district court adopted the special master's opinion and received evidence regarding back pay and attorneys fees. After making certain deductions, the district court awarded both Hood and Cunningham back pay and ordered Hercules to pay $15,000 in attorneys' fees. Hercules now appeals the district court's decision as it affects Hood and Cunningham. Hood and Cunningham cross-appeal on the issues of back pay and attorneys' fees. Finding no error in the special master's opinion and the district court's adoption of that opinion and subsequent orders and finding more than substantial evidence to support the findings, we affirm.

Charles Hood was an employee of Hercules from April, 1965, until April 1974. Hood was employed for most of that time as a tube machine operator. Until 1970 or 1971, he was considered a good employee. At that time, he began having difficulties with his health. Although he was meeting his production, he appeared very tired. Between 1971 and April, 1974, Hood missed fifty-six days due to sickness. Nonetheless, in his entire tenure at Hercules, a period of approximately nine years, he received only one reprimand.

On the basis of his seniority, Hood submitted a bid for the higher paying job of slurry operator. He was told by his superior that in his present condition, his chances were slim of receiving the job. He was told to see the company physician, Dr. Robert T. Cale. In April 1974, Hood visited Dr. Cale. Dr. Cale discovered that Hood had an active duodenal ulcer. Dr. Cale recommended that Hood not work for a short while, put him on a special diet and told him to quit smoking. Although Hood apparently adhered to the diet, he continued to smoke.

Dr. Cale continued to postpone the date on which Hood could return to work. In September of that year, Dr. Cale informed Hercules that Hood could perform light work but that no such work was available at Hercules. In November, 1974, Hood was admitted to a hospital under the care of Dr. Carl Robinson. He was shortly discharged after having been given medication and placed on a diet. In 1975, Hood's condition improved, and in July of that year Dr. Robinson stated that Hood could return to work. Dr. Robinson also stated that he had advised an x-ray of Hood's stomach, but that it had not been done because Hood could not afford it.

In August of 1975, Dr. Cale examined Hood at the request of Hercules but he did not order an x-ray. Shortly thereafter, Hercules informed Hood that he was being removed from the employment rolls because the doctor had informed the company that Hood was unable to return to work. Hood subsequently filed a grievance against Hercules. A short time later, Hood underwent an x-ray examination, which was paid by his union. The report of the radiologist stated that no ulceration was demonstrated at that time. A few days later, Hercules offered to reinstate Hood on the condition that he be placed on a sixty-day probationary period, at the conclusion of which his seniority would be returned to him. Hercules also required that Hood withdraw his claim asserted in the present action. Because Hood feared that under such an agreement he could lose both his seniority and his rights with the EEOC, he refused the offer.

The special master found that Hood had presented insufficient evidence to prove that Dr. Cale had not been acting in good faith in refusing to allow Hood to return to work during 1974. The special master concluded, however, that Dr. Cale's failure to order an x-ray in 1975 after Dr. Robinson's examination and Hercules' failure to re-employ Hood without imposing conditions on his seniority were discriminatory and required reinstatement, full seniority and back pay beginning after August 12, 1975, the date of Dr. Cale's examination of Hood.

Vallie Cunningham had worked for Hercules approximately one year when he was laid off for lack of work. During this period, he cut the fourth and fifth fingers of his left hand while going through a window of his brother's house, which had caught fire. He was called back in February of 1973, and underwent a physical examination in order to return to work. Dr. Cale determined that Cunningham could not return to work because of his injury. Cunningham demonstrated at the hearing that he could open and close his hand and stated that he felt he could do the work required of him at Hercules. Cunningham also testified that his left hand was in the same condition during the hearing as it had been at the time of Dr. Cale's examination. The company never allowed Cunningham to attempt to perform the work to see if he could do it adequately. At about the same time, Cunningham was examined by two doctors who were of the belief that Cunningham could return to work. Cunningham also contended that white employees at Hercules suffered similar accidents and continued their employment. One witness in particular received a similar injury but was retained by Hercules without being required to submit to an examination by a physician. After examining the above factors, the special master found that Cunningham had been the victim of racial discrimination and stated that he was entitled to seniority and back pay.

Hercules now raises a number of issues on appeal. Hood and Cunningham raise two additional issues in their cross-appeals. Hercules' first contention is that an incorrect legal standard was used in finding a violation of Title VII. In order to prove a violation of Title VII, the plaintiff is required to shoulder the initial burden of establishing a prima facie case of discrimination. Once this has been accomplished, the burden then shifts to the employer to clearly express by a preponderance of the evidence some legitimate, nondiscriminatory reason for the employer's actions. If the employer meets his burden of proof, thereby rebutting the plaintiff's prima facie showing, the plaintiff is then given an opportunity to demonstrate by a preponderance of the evidence that the employer's stated reasons for his actions were in fact a pretext. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973); Whiting v. Jackson State University, 616 F.2d 116, 120-21 (5th Cir.1980); Turner v. Texas Instruments, Inc., 555 F.2d 1251, 1254-55 (5th Cir.1977).

In his opinion and findings, the special master stated that "the pertinent inquiry ... is whether the employees' separation or discharge was the result of an even-handed policy applied to both white and black employees alike, or was discriminatory." Hercules attacks this statement as being an erroneous interpretation of the McDonnell Douglas test. Hercules contends that such a ruling does not encompass the three steps required by McDonnell Douglas to show discriminatory employment practices. Hercules' entire argument on this point, however, is based on a narrow and strict reading of the special master's opinion. The statement of the special master quoted above was nothing more then a paraphrase from another Supreme Court case which clarified the McDonnell Douglas test. See Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978), quoting in part from Teamsters v. United States, 431 U.S. 324, 335 n.15, 97 S.Ct. 1843, 1854, 52 L.Ed.2d 396 (1977), in which the Court stated that "the central focus of the inquiry (in a Title VII case) is always whether the employer is treating 'some people less favorably than others because of their race, color, religion, sex, or national origin.' "

It is quite clear that the special master was aware of and understood the requirements of McDonnell Douglas. Under the heading of "Discussion of Applicable Legal Principles," the special master referred specifically to the McDonnell Douglas case and quoted from a portion of that opinion, which portion directly dealt with a plaintiff's prima facie case and a...