Parham v. Southwestern Bell Telephone Co.

Decision Date28 October 1970
Docket NumberNo. 19969.,19969.
Citation433 F.2d 421
PartiesArthur Ray PARHAM, Appellant, v. SOUTHWESTERN BELL TELEPHONE CO., Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

Gabrielle K. McDonald, Houston, Tex., for appellant.

Donald K. King, Little Rock, Ark., for appellee.

Before VOGEL, LAY and BRIGHT, Circuit Judges.

BRIGHT, Circuit Judge.

Following rejection of his application for employment and exhaustion of administrative remedies, Arthur Ray Parham commenced this suit under Title VII of the Civil Rights Act of 1964, 42 U.S. C.A. § 2000e, et seq., against Southwestern Bell Telephone Company (the Company) seeking relief individually and on behalf of blacks as a class from the defendant's alleged racially discriminatory employment practices in Arkansas, particularly in the City of Little Rock.1 The district court, in a comprehensive unreported opinion, rejected Parham's claims for a money judgment on his own behalf and injunctive relief for the class as authorized by 42 U.S.C.A. § 2000e-5(g). Parham appeals from a judgment of dismissal.

The record shows little dispute upon the essential facts. On February 8, 1967, Parham, an eighteen-year-old black youth, applied for employment with the Company as a stockman. The record discloses that Parham favorably impressed the Company's employment manager upon his initial personal interview. The employment manager informed Parham that no openings existed for stockmen, but that the Company needed linemen. Parham expressed an interest in the position and underwent certain preemployment testing. He passed the Company's aptitude tests as well as a physical examination.

In checking with Parham's previous employers, however, the Company learned that Arkansas Baptist Hospital in Little Rock had discharged Parham as an orderly after working from August 8, 1966, until November 21, 1966. An employee in the Baptist Hospital personnel section characterized Parham's conduct as insubordinate, neglectful of duty, frequently absent without reason or notice and requiring constant supervision. An inquiry with the Chicago Magnet Wire Corporation in Chicago, Illinois, revealed that Parham's employment there in the summer of 1966 had been terminated when he failed to report for work after two weeks on the job. The Company also learned, in checking the applicant's record at Central High School in Little Rock, that he had graduated in June, 1966, in the lowest one-fifth of his class. Following receipt of this adverse information, the Company by letter dated February 17, 1967, rejected Parham's application, saying: "After investigating your school record and your work history, we feel that you do not have the qualifications needed for employment."

Parham, on April 6, 1967, filed a complaint with the Equal Employment Opportunity Commission (EEOC), pursuant to 42 U.S.C.A. § 2000e-5, charging the Company with racial discrimination in refusing him employment. Upon investigation, the EEOC found reasonable cause to believe that the Company had been guilty of a discriminatory employment practice.2 The EEOC then attempted to resolve the dispute through conciliation pursuant to 42 U.S.C.A. § 2000e-5(a), and requested the Company to sign a conciliation agreement. On November 7, 1967, the Company offered Parham a position as a lineman. Parham, then a college student, declined. The Company, thereafter, refused to execute any conciliation agreement with the EEOC, contending that Parham's refusal to accept the offer of employment rendered the dispute moot, leaving nothing to conciliate. The EEOC then notified Parham of his privilege to prosecute an action in the federal district court, 42 U.S.C.A. § 2000e-5(e). Plaintiff Parham filed his complaint on April 25, 1968.

On this appeal, Parham raises four contentions, each of which was rejected by the trial court: (1) the Company's employment practices have discriminated against blacks generally and Parham in particular in violation of Title VII of the Civil Rights Act of 1964; (2) the Company's policy and practices of securing new employees through recommendation and recruitment by existing workers and acceptance of walk-in applicants have discriminated against blacks; (3) the Company's specific requirement that applicants for employment, except common laborers, possess a high school diploma or its equivalent has discriminated against blacks; and (4) the facts presented to the trial court entitled Parham to damages for lost wages as a lineman and injunctive relief for blacks as a class.

Although appellee's rejection of Parham's application for employment served as the basis for instituting this lawsuit, the allegations that the Company discriminated in employment against all blacks rested upon the Company's record of having hired relatively few blacks, and those as janitors or common laborers. Section 703(a) of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e-2(a), prohibits employers subject to Title VII from discriminating against employees and applicants for employment on the basis of "race, color, religion, sex or national origin." With this background, we turn to a review of the Company's recent history of employing blacks in Arkansas.

In April of 1964, appellee's management issued a statement of policy repudiating race, creed, color or nationality as a factor in employment, proclaiming that "all applicants for employment are considered and hired only on the basis of merit * * *." The Company's Arkansas employment statistics on September 30 of that year showed only 51 black employees, most with lengthy tenure, out of a total work force of 2,736 persons. Forty-six of those black employees worked in "house service" as janitors, cleaning ladies or laborers, with the remaining five employed in the "operatives" category as coin collectors or stockmen. At that time, no blacks worked in the other four employee categories of sales, technicians (drafts-women), office and clerical (including telephone operators), or skilled craftsmen. These statistics serve only as a basis for comparison since Title VII did not take effect until July 2, 1965. Neither the announcement of the Company's equal-employment-opportunity policy nor the enactment of Title VII served to produce any noticeable increase in the number of blacks employed from April, 1964, to December 31, 1966. As of June 30, 1966, the Company had employed only three more blacks than those employed two years earlier, although the Company's total work force had grown to 3,163. In fact, the proportion of non-white employees had decreased from 1.86 per cent in September, 1964, to 1.71 per cent in June of 1966. Of these 54 black employees, six women had obtained positions in the office and clerical section, four of them becoming telephone operators. Most of the blacks, however, remained in the house service category (42), with the remaining six working as operatives. By December 31, 1966, just five weeks prior to Parham's application for employment, the Company's total number of employees had dropped to 3,074, with blacks now numbering 56, or 1.82 per cent of the work force. No blacks worked as craftsmen, draftswomen, or in sales.

Parham introduced these employment statistics at trial in support of his allegations of racial discrimination by the Company. He also introduced testimony from several black individuals, male and female, who had unsuccessfully sought employment as skilled workers with the Company. Further evidence established that at the time appellant sought employment, the Company secured most of its employees through recruitment and recommendation by those persons then employed with the appellee. The procedure for gaining employment with the Company required, then as now, that applicants, except common laborers, possess a high school diploma or its equivalent.3 The applicants then took certain standardized tests which measured their aptitudes and educational levels. Following successful completion of these tests and a physical examination, the Company investigated the applicant's references and work history.

The Company's successful defense at trial consisted primarily of rebuttal evidence showing that it had adopted an affirmative action program in late 1968, which resulted in increased hiring of blacks. This program called for active recruitment of minority group members through employment agencies, civil rights organizations and educational institutions. In addition, the program sought to achieve complete integration of the Company's work force in all departments as well as the plant work, rest and recreational areas. The plan included the establishment of job training and community training courses to elevate the skill level of some minority group individuals. At the trial, the Company emphasized a comparison of more recent employment statistics with those of earlier years which reflected the success of this program. The number of black employees over a two-year period had increased from 54 as of June 30, 1966, to 144 (approximately 4.5 per cent of the total) on June 30, 1968. In 1967, 6.1 per cent of the Company's new employees were blacks. This figure increased markedly to 17.6 per cent, or 135 blacks of 766 new employees, in 1968. The statistics as of June 30, 1968, also demonstrated that blacks had penetrated the more skilled employee categories; ten persons serving as clerks or stenographers; 61 telephone operators; one service representative; 29 skilled craftsmen; seven operatives; and 36 remained in house service,

As additional evidence of its good faith efforts to provide equal employment opportunities, the appellee established that in 1967 and 1968 it enrolled black high school graduates in a special training program to enable them to qualify for more jobs in the skilled categories. Of the ten trainees enrolled in this program in 1967, the Company offered five of them jobs and one accepted. The Company offered jobs to eight of the eleven trainees in 1968; four...

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