Mozee v. American Commercial Marine Service Co.
| Decision Date | 14 August 1991 |
| Docket Number | No. 90-2660,90-2660 |
| Citation | 940 F.2d 1036 |
| Parties | 56 Fair Empl.Prac.Cas. 1155, 57 Empl. Prac. Dec. P 40,929, 60 USLW 2207 William O. MOZEE, Gregory L. Rankin, Frederick Williams, et al., Plaintiffs-Appellees, v. AMERICAN COMMERCIAL MARINE SERVICE COMPANY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Ronald E. Elberger, Mark R. Waterfill, Bose, McKinney & Evans, Mark W. Ford (argued), Johnson, Smith, Densborn, Wright & Heath, Indianapolis, Ind., Samuel G. Hayward, Levin & Hayward, Louisville, Ky., Jerry Ulrich, New Albany, Ind., for plaintiffs-appellees.
James S. Whitehead (argued), Sidley & Austin, Chicago, Ill., John K. Gordinier Michael W. Lowe, Frank G. Simpson, III, Pedley, Ross, Zielke, Gordinier & Porter, Louisville, Ky., Lisa L. Fleming, American Commercial Marine Service Co., Jeffersonville, Ind., for defendant-appellant.
Before WOOD, Jr., CUDAHY and FLAUM, Circuit Judges.
Defendant American Commercial Marine Service Company, Jeffboat Division (Jeffboat), brought this interlocutory appeal to contest the finding of liability against it in this civil rights suit. Plaintiffs are five African-American former employees of Jeffboat, and they sue in both their individual capacity and as class representatives. The district court found defendants liable for violating various provisions of Title VII and section 1981. We affirm in part, reverse in part and vacate and remand in part.
This opinion marks our second encounter with this litigation, and it may not be our last. Filed in 1977, the case was originally tried before the late Judge Holder, who found for the defendant on all counts. We reversed that decision on appeal, however, holding that "the findings of fact made after trial by the district court [were] insufficient to permit meaningful appellate review." 746 F.2d 365, 367 (7th Cir.1984). We instructed the district court on retrial that it should not feel bound by the law of the case or by any similar analytical constraint. After remand, the case was retried before Judge Parsons. 1 The district court issued several thorough opinions on liability, which, on balance, favored the plaintiffs. Among these opinions was an order reaffirming the court's judgment in light of the intervening Supreme Court decisions in Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 109 S.Ct. 2115, 104 L.Ed.2d 733 (1989) and Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989). 2 The district court then granted defendant's request to seek interlocutory appeal. Our order allowing the appeal was issued on July 12, 1990.
This case well illustrates the substantial difficulties in maintaining and in defending a statistics-based class-action discrimination suit. We are grateful to the district court for its comprehensive scrutiny of the arguments of both parties. With this more complete treatment of the evidence by the district court, we believe we may take a fresh look at the facts (rather than merely rehash our earlier opinion).
Jeffboat has operated its immense shipbuilding facility on the banks of the Ohio River in southern Indiana since 1938; maritime construction on the property dates at least as far back as 1876. Through the 1950s, Jeffboat operated its facility with an all-white work force. But societal and governmental pressures associated with the civil rights movement brought changes, and by 1970 minorities represented 14.1% of the company's new hires.
As a government contractor, Jeffboat was required by federal law to engage in affirmative-action programs focusing on improving both its hiring and on-site training programs. The first such plan was adopted in 1972 and back-dated so as to run from 1971 to 1973. A second federal affirmative-action plan was later adopted, though not until 1977. In the interim, Jeffboat was obligated by a consent agreement with the Indiana Civil Rights Commission to follow an affirmative-action program in its hiring and promotion practices.
Notwithstanding the adjustment of Jeffboat's hiring practices and its submission to these affirmative-action plans, many minority employees believed that discrimination continued to pervade the facility's operations, affecting certain post-hire practices. Following their termination from Jeffboat, four named plaintiffs filed this suit in 1977: William O. Mozee, Gregory L. Rankin, Frederick Williams and Joe L. Malone. An action by a fifth named plaintiff, Harold Barnes, was filed in 1978 and was consolidated with the earlier case for trial. The court granted the plaintiffs class certification on August 17, 1978.
Plaintiffs have charged the defendant with discrimination and with retaliation in violation of sections 703(a) and 704(a) of Title VII, 42 U.S.C. Secs. 2000e-2(a), 2000e-3(a) (1976), 3 as well as with violations of section 1 of the Civil Rights Act of 1866, 42 U.S.C. Sec. 1981 (1976). 4 They hoped to prove their Title VII claims of class-wide discrimination by either the disparate treatment or disparate impact methodology. International Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 1854-55 n. 15, 52 L.Ed.2d 396 (1977) (disparate treatment); Griggs v. Duke Power Co., 401 U.S. 424, 432, 91 S.Ct. 849, 854, 28 L.Ed.2d 158 (1971) (disparate impact). Only proof of disparate treatment would permit an award under section 1981. General Bldg. Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 391, 102 S.Ct. 3141, 3150, 73 L.Ed.2d 835 (1982). The plaintiffs chose several areas of post-hire decision-making at Jeffboat for scrutiny: promotions, bid awards, seniority rights, job assignments and various disciplinary determinations. Complaint--Class Action at 36-37. The evidence marshalled by the plaintiffs can be divided into two categories, individual occurrences and class-wide proof.
The district court found that each of the individual plaintiffs experienced discrimination in one or more areas of treatment at the hands of Jeffboat. Defendant does not appeal the factual determinations leading the district court to find it liable with respect to the individual plaintiffs. 5 Nevertheless, anecdotal evidence of discrimination may be used to supplement a showing of class-wide disparate treatment, Coates v. Johnson & Johnson, 756 F.2d 524, 532 (7th Cir.1985), and the district court relied on such evidence in this case. Because Jeffboat challenges the sufficiency of the evidence supporting the determination of class-wide discrimination, we will summarize the district court's findings of individual discrimination.
William Mozee charged Jeffboat with discrimination in failing to promote him, failing to satisfy his arbitration award and exercising retaliatory or racially motivated discipline and discharge. Mozee was an overhead crane operator at Jeffboat in June 1975, at which time a higher position became available as a gantry crane operator. The position was to be awarded through the bidding system, which selects among equally qualified employees the candidate with the most seniority. Of the five employees submitting bids for the gantry crane position, three were white and two were African-American. Two of the white employees and the other African-American applicant were eliminated from consideration for reasons irrelevant at this point, leaving Mozee and Earl Cartreete. Despite Mozee's greater seniority compared to Cartreete, the white employee received the promotion.
Mozee went to arbitration, where Jeffboat conceded that the two were equally "qualified" but defended its action on the ground that Mozee's poorer attendance record made him less desirable. The arbitrator found that this justification violated the collective bargaining agreement and ordered Jeffboat to award Mozee the job and retroactive compensation. Jeffboat eventually paid Mozee retroactive compensation but the gantry crane position he sought was eliminated before the company could place him there. The district court agreed with Mozee (and the arbitrator) that awarding the position to Cartreete represented an aberrational promotion practice evidencing an intent to discriminate on the basis of race. The court refused to hold Jeffboat responsible for not satisfying the arbitration award, however, finding no failure to comply.
Mozee was one of many employees who took part in a mass protest against Jeffboat for its alleged discriminatory practices. The August 1975 demonstrations, known as the "Black Days" protests, involved speeches, petition signing and a call for negotiations between the Black Workers' Coalition and Jeffboat's administration. After notifying Jeffboat of his intent to miss work, Mozee participated in both the August 11 and August 21-22 protests. Immediately upon his return after each protest, Mozee was disciplined--first with a five-day suspension and then with the stiffest allowable ten-day suspension. The district court found that under Collins v. Illinois, 830 F.2d 692, 702 (7th Cir.1987), Mozee had made out a prima facie case of retaliation and further found that the disruption caused by his absence did not outweigh the value of carrying out Title VII's policies. It went on to discredit Jeffboat's nondiscriminatory justification as pretextual, noting that white employees with similar avoidable absences had in the past faced far less rigorous penalties. Parker v. Secretary, U.S. Dept. of Housing and Urban Dev., 891 F.2d 316 (D.C.Cir.1989).
Finally, Mozee claimed his discharge in August 1976 was racially motivated. After an extended absence from work, excused for medical and other reasons, Mozee returned on August 2, 1976, but experienced a string of tardies for eleven consecutive days. The record that Jeffboat kept of these delinquencies seemed to reflect disproportionate scrutiny; this and other indicia led the district court to question the treatment accorded Mozee. Comparisons to...
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