Patterson v. American Tobacco Co.

• Decision Date: 23 October 1978
• Docket Number: Nos. 78-1083,78-1084,s. 78-1083
• Parties: 18 Fair Empl.Prac.Cas. 378, 18 Empl. Prac. Dec. P 8691 John PATTERSON, Marion Moshoe, Edmund Page, James Randolph and Percy Taylor, each individually and on behalf of all other persons similarly situated, and Equal Employment Opportunity Commission, Appellees, v. The AMERICAN TOBACCO COMPANY, a Division of American Brands, Inc., Appellant, and Tobacco Workers' International Union, an unincorporated association, et al., Defendants. John PATTERSON, Marion Moshoe, Edmund Page, James Randolph and Percy Taylor, each individually and on behalf of all other persons similarly situated, andEqual Employment Opportunity Commission, Appellees, v. TOBACCO WORKERS' INTERNATIONAL UNION, an unincorporated association, Local 182, Tobacco Workers' International Union, an unincorporated association, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 300

586 F.2d 300

18 Fair Empl.Prac.Cas. 378, 18 Empl. Prac.

Dec. P 8691

John PATTERSON, Marion Moshoe, Edmund Page, James Randolph

and Percy Taylor, each individually and on behalf of all

other persons similarly situated, and Equal Employment

Opportunity Commission, Appellees, v. The AMERICAN TOBACCO COMPANY, a Division of American Brands, Inc., Appellant, and Tobacco Workers' International Union, an unincorporated

association, et al., Defendants.

John PATTERSON, Marion Moshoe, Edmund Page, James Randolph

and Percy Taylor, each individually and on behalf of all

other persons similarly situated, andEqual Employment

Opportunity Commission, Appellees, v. TOBACCO WORKERS' INTERNATIONAL UNION, an unincorporated

association, Local 182, Tobacco Workers'

International Union, an unincorporated

association, Appellant.

Nos. 78-1083, 78-1084.

United States Court of Appeals Fourth Circuit.

Argued April 6, 1978.

Decided Oct. 23, 1978.

Henry T. Wickham, Richmond, Va. (John F. Kay, Jr., Stephen A. Northrup, Mays, Valentine, Davenport & Moore, Richmond, Va., on brief); Jay J. Levit, Richmond, Va. (Paul G. Pennoyer, Jr., Arnold Henson, Bernard W. McCarthy, Chadbourne, Parke, Whiteside & Wolff, New York City, on brief), (James F. Carroll, New York City, on brief), for appellants.

Henry L. Marsh, III, Richmond, Va. (S. W. Tucker, Randall G. Johnson, Richmond, Va., John W. Scott, Jr., Chapel Hill, N. C., Hill, Tucker & Marsh, Richmond, Va., on brief); Ramon V. Gomez, Atty., E. E. O. C., Washington, D. C. (Abner W. Sibal, Gen. Counsel, Joseph T. Eddins, Associate Gen. Counsel, Beatrice Rosenberg, Asst. Gen. Counsel, E. E. O. C., Washington, D. C., on brief), (Jack Greenberg, Barry L. Goldstein and O. Peter Sherwood, New York City, on brief), for appellees.

Before WINTER, BUTZNER and WIDENER, Circuit Judges.

WINTER, Circuit Judge:

These appeals by American Tobacco Company (American) and Tobacco Workers' International Union (Union) from the district court's denial on the merits of their motion under F.R.Civ.P. 60(b) require us to decide whether our decision in Patterson v. American Tobacco Co., 535 F.2d 257 (4 Cir.), Cert. denied, 429 U.S. 920, 97 S.Ct. 314, 50 L.Ed.2d 286 (1976), and the order of the district court implementing our views, must be modified to conform to the later decisions of the Supreme Court in International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977); United Airlines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977); and Hazelwood School District v. United States, 433 U.S. 299, 97 S.Ct. 2736, 53 L.Ed.2d 768 (1977). The district court thought not, but we think that Teamsters requires further proceedings. We therefore affirm in part and vacate and remand in part.

I.

Briefly stated, the instant case is a consolidation of an action by EEOC and a class action by black employees to redress race and sex discrimination in working conditions at three facilities operated by American in Richmond, Virginia. The district court found that, before 1963, racial discrimination in hiring, promotion and working conditions was overt. The district court found no discrimination in American's hiring practices after 1965, but it did find that, while promotional policies after 1968 were "facially fair and neutral," they were discriminatory in operation because they served to perpetuate the effects of past discrimination. The district court granted sweeping relief; but, as modified by us, the relief granted was limited to (1) requiring American to post more definite written job descriptions when vacancies occurred; (2) requiring American to eliminate lines of progression in six of nine job groups; (3) requiring American to permit blacks in the prefabrication department in one branch to transfer to a job in the fabrication department at another branch without losing company seniority despite American's long-standing policy disallowing interbranch transfers with retention of company seniority; (4) granting back pay to employees unlawfully denied promotion; and (5) requiring American to develop and apply objective criteria for appointing supervisory personnel. A fuller description of the facts, the district court's decision and our views appears from our opinion in Patterson v. American Tobacco Co., supra. As needed, we will amplify our description of them elsewhere in this opinion.

We turn to a consideration of the effect of each of the subsequently decided Supreme Court cases.

II.

So far as pertinent here, Teamsters concerned an employer who was a common carrier of motor freight with nationwide operations. The employer had been found to have engaged in a pattern and practice of employment discrimination against Negroes and Spanish-surnamed Americans in hiring line drivers. The members of these minority groups had been hired only in lower paying, less desirable jobs as servicemen or local city drivers. Thereafter they were discriminated against with respect to promotions and transfers because of the seniority system established by the collective bargaining agreements between the employer and the union. That system provided that a line driver's seniority for competitive purposes, such as the order in which he may bid for particular jobs, is laid off or is recalled from layoff, dated from the date he became a line driver and not the date that he was initially employed if he had been employed originally as a city driver or serviceman.

The Court had no difficulty in concluding that the vice of this seniority arrangement was that it "locked" minority workers into inferior jobs and perpetuated prior discrimination by discouraging transfers to jobs as line drivers, and the Court concluded that under Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), the seniority system would be invalid, unless § 703(h) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(h) required a different conclusion. ¹ From its review of the language of § 703(h) and its legislative history, the Court said that with respect to pre-Act discrimination "the unmistakable purpose of § 703(h) was to make clear that the routine application of a bona fide seniority system would not be unlawful under Title VII." 431 U.S. at 352, 97 S.Ct. at 1863. Stressing the language of § 703(h), however, the Court also held that the statute "does not immunize All seniority systems. It refers only to 'bona fide' systems, and a proviso requires that any differences in treatment not be 'the result of an intention to discriminate because of race . . . or national origin. . . .' " (Emphasis added.) 431 U.S. at 353, 97 S.Ct. at 1863. The overall holding of the Court was that "an otherwise neutral, legitimate seniority system does not become unlawful under Title VII simply because it may perpetuate pre-Act discrimination." 431 U.S. at 353-54, 97 S.Ct. at 1864.

As construed by the Court in Teamsters, § 703(h) carves out an exception to the holding of Griggs that an otherwise neutral practice which perpetuates the effects of past employment discrimination is violative of Title VII. As we read Teamsters, this is a narrow exception, concerning only practices directly linked to "a bona fide seniority system." Section 703(h) does not insulate an entire promotional system even if such system is facially neutral. At most, it insulates only the seniority aspects of the promotional system. Consequently, Teamsters requires no modification of the relief we approved with regard to job descriptions, lines of progression, back pay (except such awards as may have been founded upon American's seniority system) or supervisory appointments. Only our decision to allow black employees to make interbranch transfers with the retention of company seniority impinges upon American's Seniority system. It is, therefore, only this aspect of the relief granted in Patterson that is called into question by Teamsters.

In conforming our decision to Teamsters, we recognize the limitation of its holding that under § 703(h) only "bona fide" seniority systems insulate the present effects of pre-Act discrimination. ² In the instant case, the district court was equally aware of this limitation. It concluded, however, that American's seniority system was not bona fide (1) "because this system operated right up to the day of trial in a discriminatory manner," and (2) because "(t)his seniority system had a discriminatory genesis . . . (t)he background of labor relations of (American) and the seniority system clearly shows this to be true . . . (t)he record in this case clearly supports this finding."

While we agree with the district court that American's seniority system would not be bona fide if it either currently served a racially discriminatory purpose or was originally instituted to serve a racially discriminatory purpose, we cannot sustain the district court's ultimate findings in this regard. The district court made no subsidiary findings, either in its initial decision or in its ruling on the Rule 60(b) motions, to support its ultimate conclusions. It is thus impossible for us to tell upon what underlying facts the district court relied and whether proper statutory standards were observed. See Kelley v. Everglades Drainage District, 319 U.S. 415, 422, 63 S.Ct. 1141, 87 L.Ed. 1485 (1943); Schneiderman v. United States, 320 U.S. 118, 130, 63 S.Ct. 1333, 87 L.Ed. 1796 (1943); O'Neill v. United States, 411 F.2d 139, 145-46 (3 Cir. 1969); Woods Construction Co. v. Pool Construction Co., 314 F.2d 405, 406-07 (10 Cir. 1963); Knapp v. Imperial Oil & Gas Products Co., 130 F.2d 1, 3-4 (4 Cir. 1942).

It is not surprising that the district court's findings in its original decision did not completely assay the field since Teamsters had not yet been decided. While ordinarily we would not think that F.R.Civ.P. 52 requires the same degree of specificity in findings of fact when a Rule 60(b) motion is denied on the merits...