Muller v. U.S. Steel Corp.

Citation509 F.2d 923
Decision Date05 February 1975
Docket NumberNo. 74--1161,74--1161
Parties10 Fair Empl.Prac.Cas. 323, 9 Empl. Prac. Dec. P 9901 Paul MULLER, Plaintiff-Appellee, v. UNITED STATES STEEL CORPORATION, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

James B. Lee and Daniel M. Allred, Parsons, Behle & Latimer, Salt Lake City, Utah, for defendant-appellant.

Stephen G. Morgan, Morgan, Scalley, Lunt & Kesler, Salt Lake City, Utah, for plaintiff-appellee.

Before SETH, BARRETT, and DOYLE, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

United States Steel seeks reversal of a judgment rendered by the United States District Court for the District of Utah in favor of the plaintiff Muller. The court adjudged that the Steel Company had discriminated against Muller in its promotion policies in violation of Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e--2(a).

The main contention of United States Steel is that the evidence at trial was legally insufficient to establish that the plaintiff was a victim of discriminatory employment practices toward plaintiff. So, our primary inquiry is whether appellant company discriminated and whether appellee was shown to have been discriminated against. There are other contentions which will be enumerated and discussed.

The plaintiff is of Spanish-American origin. He commenced working for United States Steel in 1955 and continued until August 6, 1969. At present he lives and works in Albuquerque, New Mexico. He has not sought reinstatement.

Plaintiff was employed at the Geneva Plant of United States Steel near Orem, Utah. His employment was in the large diameter pipe mill. It was the admitted failure of the company to promote plaintiff to a supervisory position which led to the filing of this case.

The lowest supervisory position in the mill is the turn foreman. If such a foreman is replaced by a production employee on a temporary basis, he is given the position of spell foreman but is still paid by the hour. Generally speaking, in order for a production employee to become a turn foreman he must have previously served as a spell foreman. The spell foreman is selected from the shift in which a vacancy occurs in a particular area of the mill. There are three such areas in the large diameter mill--the O.D. or hot line area, the I.D. area and the finishing area. Muller's main qualifications, according to his testimony, were in the O.D. or hot line area.

The selection of a spell foreman is made by the general foreman, whose decisions are for practical purposes final, although not necessarily so, for there exist no definite recognized criteria which govern the selection of a spell foreman. The general foreman consults the area foremen who review the names on the crew schedule. The general foreman in making the selection considered the recommendation of the area foreman, the ability of the individual to perform his work, his ability to get along with people, leadership ability, promptness, attitude toward the work and, finally, experience. Such jobs are not published and thus the qualifications are not set forth in writing. Complaint is made that the vagueness of the criteria lends itself to discriminatory practices.

The population of the county from which the company draws its labor force was 137,776 in 1970 of which 2,596, or about 1.88%, were, according to the Census Bureau, Spanish language or origin persons. However, the percentage of persons of Spanish origin who are employed in the whole facility is far lower than the county-wide percentage. This is apparent from the columnar analysis which is shown below. 1

From these figures it is also possible to infer for the purposes of the pipe mill, at least, that the Spanish origin people are not to any marked degree under-employed. It is somewhat different, however, when promotions are considered. Mr. Muller, for example, though employed in the pipe mill for fourteen years, was never chosen as a spell foreman and no other Spanish-American person had been chosen since at least 1963. Muller has testified that he was in some cases assigned to the I.D. area instead of the O.D. area or hot line area and that militated against his being eligible for spell foreman in the hot line area. In any event, during 1968 and 1969 the evidence showed that about 20--25 employees were selected as spell foremen, and in every instance these were persons of Anglo origin. Fifteen of this number had more seniority than Muller. There were 20 other employees who had more seniority than Muller who, like Muller, were never selected as spell foremen.

The evidence further showed that Muller had five years of welding experience prior to going to work for the defendant. He completed his high school education and a course in welding during his employ. He also was shown to have undertaken leadership responsibilities in the community.

The instant charges were filed with the Utah Anti-Discrimination Department on December 29, 1968 and January 28, 1969. No action was taken. In July 1969 the large diameter mill shut down and Muller worked as a laborer. Just prior to the shutdown he worked as an arc welder. On August 6, 1969, he terminated his employment and moved to Albuquerque. His testimony was that the cause of this was the unfair and discriminatory treatment he received at the plant.

Trial was had starting February 8, 1974. The district court found that the promotional system violated Title VII in that it lent itself to discrimination and was not shown to have been the product of business necessity. The court went further. It found that Muller in addition had been constructively discharged from his job in that Muller's resignation was not a matter of free choice; that it resulted from discrimination. An award of $26,624.35 in back pay was made plus $14,000 in attorneys' fees. Injunctive relief was also granted, notwithstanding that this was not a class action. Defendant was ordered to take affirmative steps to adopt a non-discriminatory promotional system together with meaningful standards.

The Steel Company's main contentions are, first, that the court erred in granting judgment for the plaintiff because of the absence of a finding that plaintiff himself was discriminated against. Second, the court's judgment is based on, so it is argued, the theory that opportunity to discriminate constitutes a violation of Title VII. Third, it is contended that the evidence is insufficient to establish discrimination against the plaintiff. Complaint is also made about the holding that there was a constructive discharge, and at last it is argued that the damages are excessive and that the court erred in issuing general injunctive relief since it was not a class action. Most but not all of the points urged will be reviewed.

I.

WHETHER THE EVIDENCE ESTABLISHED THAT PLAINTIFF WAS

DISCRIMINATED AGAINST ONTHE BASIS OF HIS ETHNIC ORIGIN

Plaintiff-appellee's complaint is that the failure to appoint him as spell foreman constituted a violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e--2. 2 The Steel Company maintains that the statistics are inconsequential pointing out that the number of Spanish origin persons in the community is small and that it employs a representative percentage. However, the cases hold that this is not sufficient to disprove discrimination; that deprivation of employment opportunities can also exist as a result of failure to promote. 3

The use of statistics capable of raising inferences of employment discrimination is now a well recognized aid in proof in cases of this type. One of the early definitive decisions in this field is that of our court in Jones v. Lee Way Motor Freight, Inc., 431 F.2d 245 (10th Cir.), cert. denied, 401 U.S. 954, 91 S.Ct. 972, 28 L.Ed.2d 237 (1970) applied in Spurlock v. United Airlines, 475 F.2d 216 (10th Cir. 1972). There the employer had two categories of truck drivers. There were line or over the road and, secondly, city drivers. The line driver positions were superior in that they paid higher wages and had other benefits as well. The two categories were treated in separate union contracts and there was a non-transfer policy from city driver to line driver. The plaintiffs in Jones were black persons and city drivers who had sought and been denied transfer. The allegation of the complaint was that the application of the rule, although on its face it appeared as a neutral non-transfer policy, in practice discriminated against them. The decision was that the evidence sufficiently established that the effect of the policy was discrimination since no Negro had been appointed as a line driver between 1964 and 1968. All black drivers were city drivers and, although there were some white drivers in the city category, the vast majority of the total white drivers were in the line category. 4

In reversing the judgment of the district court the opinion of this court recognized that the existence of a superficially neutral policy did not serve as a sufficient explanation; that it had an inherently discriminatory effect. It was recognized in the court's opinion authored by Judge Breitenstein that the statistics constituted a prima facie case which required the employer to affirmatively show that business necessity required continuation of the policy. 5 The showing of the company was held to be insufficient.

The standards employed in Jones were fully recognized in our subsequent decision, Spurlock v. United Airlines, supra. In addition, it was there pointed out that specific intent to discriminate was not necessary; that it was sufficient if discriminatory criteria were employed deliberately and not accidentally.

In the case at bar the statistics are less dramatic than were those in Jones particularly as to discrimination in the hiring of Spanish-Americans. However, we view the methods employed in promotions as sufficient to establish a prima facie...

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