Paxton v. Union Nat. Bank

• Decision Date: 26 May 1981
• Docket Number: LR-C-78-330 and LR-C-76-239.,No. LR-76-C-110,LR-76-C-110
• Citation: 519 F. Supp. 136
• Parties: Melvin PAXTON, Jr., Plaintiff, v. UNION NATIONAL BANK, A Corporation, Defendant, Katrina Terry, Phyllis Mosley, Jerry Riley and George Spann, Intervenors. Harold Dominic BROWN, Plaintiff, v. UNION NATIONAL BANK OF LITTLE ROCK, Defendant. Norman WILLIAMS, Plaintiff, v. UNION NATIONAL BANK, A Corporation, Defendant.
• Court: U.S. District Court — Eastern District of Arkansas

519 F. Supp. 136

Melvin PAXTON, Jr., Plaintiff, v. UNION NATIONAL BANK, A Corporation, Defendant, Katrina Terry, Phyllis Mosley, Jerry Riley and George Spann, Intervenors.

Harold Dominic BROWN, Plaintiff, v. UNION NATIONAL BANK OF LITTLE ROCK, Defendant.

Norman WILLIAMS, Plaintiff, v. UNION NATIONAL BANK, A Corporation, Defendant.

Nos. LR-76-C-110, LR-C-78-330 and LR-C-76-239.

United States District Court, E. D. Arkansas, W. D.

May 26, 1981.

John W. Walker, P. A. Hollingsworth, Little Rock, Ark., for plaintiff.

James E. Darr, Jr., Little Rock, Ark., for defendant.

MEMORANDUM OPINION

HENRY WOODS, District Judge.

Melvin Paxton filed an individual and a Rule 23 class action suit against the Union National Bank on April 12, 1976 (LR-76-C-110). Jurisdiction was invoked pursuant to 28 U.S.C. §§ 1343(4), 2201 and 2202 and 42 U.S.C. §§ 1981 and 2000e-5(f). The latter sections are part of Title VII of the Civil Rights Act of 1964. The complaint charged that the bank had discriminated against plaintiff and the class he represents on the basis of race or color in hiring, testing procedures, promotions, raises and job assignments. After some preliminary skirmishing, the bank answered on June 27, 1977 and denied the allegations of the complaint. On June 12, 1979 Katrina Terry and Phyllis Mosley, former bank employees, were permitted to intervene in this cause by order of Chief Judge G. Thomas Eisele and to assert charges of racial discrimination. Katrina Terry alleged that she was denied advancement opportunities and promotions because of her race. Phyllis Mosley made the same allegations and in addition claimed that she was discharged for racial reasons. Jerry Riley, Bobby Scott and George Spann were permitted to intervene in this cause on October 30, 1979. Riley and Scott are present employees of the Bank, and Spann is a former employee. These intervenors alleged racial discrimination on the basis of promotions, raises and work assignments. The bank has denied the allegations of the intervenors. On July 19, 1976 Norman Williams filed a complaint against Union Bank invoking the same code sections as Paxton and making similar allegations (LR-76-C-239). On September 20, 1978 this case was consolidated with the Paxton case (LR-76-C-110). On September 25, 1978 Harold Dominic Brown filed an individual and class action suit against the Union National Bank alleging jurisdiction under 42 U.S.C. § 2000e et seq. and a broad spectrum of discrimination employment practices on the part of defendant bank (LR-C-78-330). On October 16, 1978 the bank filed its answer denying the allegations of the complaint. On August 28, 1979 Chief Judge Eisele ordered a consolidation of the Brown case (LR-C-78-330) with the Paxton case (LR-76-C-110). Bobby Scott, one of the intervenors in the Paxton case, settled his intervention and was dismissed from the litigation by order of Judge Eisele on April 3, 1980. The consolidated cases were set for trial before Chief Judge Eisele on April 7, 1980. At the outset of the trial, the case of Norman Williams v. Union National Bank (LR-C-76-239) was dismissed without objection by Judge Eisele under Rule 41(b) Fed.R.Civ.P. The status of the litigation was then as follows. The case of Harold Dominic Brown v. Union National Bank (LR-C-78-330) had been consolidated with Melvin Paxton, Jr. v. Union National Bank (LR-76-C-110). In the latter case there were four remaining intervenors—Katrina Terry, Phyllis Mosley, Jerry Riley, and George Spann. Judge Eisele decided that he would take testimony in this matter on both the class action and individual claims and issue such further orders as was justified by the evidence. He took testimony on April 7 through April 11, April 14, 15 and 18, August 12, 13, 14, 15, 19, 20 and 21, all in 1980. After these 15 trial days, Chief Judge Eisele recused in this case on August 21, 1980. His reasons for doing so are set forth in a lengthy memorandum dated September 4, 1980 and will not be repeated here. On September 18, 1980 Chief Judge Donald P. Lay of the Court of Appeals of this Circuit assigned the case to me. It was set for a continuation of testimony on April 7, 1981. By letter dated November 12, 1980, I advised counsel of my unwillingness to rehear the evidence heard by Judge Eisele. The parties were directed to furnish me with a complete transcript of the testimony by February 1, 1981. Cost of the transcript was to be shared on the basis of one-half by the bank and one-half by the plaintiffs and intervenors. I reserved the right to tax the entire transcript cost on the losing party. Testimony was begun before me on April 7, 1981 and continued through April 9. It was resumed on April 13 and continued through April 16; resumed on April 20 and concluded on April 23 — a total of eleven days of trial time extended over three weeks. If this time is added to Judge Eisele's trial time of fifteen days, it will be seen that 26 days have been spent in trial time alone. This does not include the time spent in several pre-trial conferences. The case has hardly justified such a large expenditure of judicial time and resources, not to mention the time, trouble and expenditure of the parties and their counsel. After carefully reading the transcript of the testimony taken before Judge Eisele and after hearing eleven days of testimony, during which copious notes were taken, I have some difficulty in understanding the wisdom of filing and proceeding with this lawsuit. There are undoubtedly a number of employers in this district who are discriminating against their employees, but Union National Bank would not seem to be one of them — at least not from the evidence produced by plaintiffs and intervenors in this case.

I find the claims of the plaintiff and the intervenors to be without merit on an individual or class action basis. This bank has aggressively pursued affirmative action during the period in question. The case developed by the plaintiffs and intervenors has a number of fatal flaws. One of the most glaring is that inadequate discovery was undertaken, with the result that the major portion of plaintiffs and intervenors' case consisted of in-court discovery of bank officials. The lengthy examination of these adverse witnesses produced little evidence of value to plaintiffs and intervenors but much evidence that was very harmful to their cause. This trial tactic did result in a great expenditure of trial time. After plaintiffs' counsel had examined Joseph E. Zegler, the bank's personnel director, as an adverse witness for an entire week, Chief Judge Eisele made the following comments, which I consider very apropos:

What I am concerned about is that the questions reveal that discovery that should have been made either wasn't made or is not available to Mr. Walker in many respects because he has asked if the man knows something about it. He finds out that he doesn't. Had he asked during the discovery period he would have found it out and he wouldn't have to take the Court's time to know that. He could have done it by other means. So to a large extent this week has been in essence a discovery of the limits of this man's knowledge, much of which is very limited and which he has demonstrated he would not be the appropriate witness to make the proof that Mr. Walker seeks to make, but which could be made by the proof.

I feel that it has gone on tremendously long in comparison to the meat that has come out of it in terms of the facts. To have the witness state over and over that he doesn't know, that he would have to look at his records, that he doesn't recall when there are other witnesses who obviously would know this information and should be called for that purpose, it seems to be an imposition upon the Court. (T. 918-19)

Even more harmful to the plaintiff and intervenors were some of their own witnesses. Mike Mothershed is a good illustration. Mr. Mothershed, a black, is now the night supervisor of computer operators at the bank. He has two blacks and eight whites under his direction—two lead computer operators, two computer operators, one computer operator trainee, four distributors and balance clerks and one data librarian. He could hardly be insensitive to discrimination against blacks because his sister, Thelma Mothershed, was one of the eight black students who braved an unruly and abusive mob, encouraged by unscrupulous demagogues, to integrate Little Rock Central High School in 1957. Mothershed denied that the bank had been guilty of discriminatory practices toward him or other employees. His own career at this bank substantiates his testimony. Mothershed was hired by Union National Bank after he was discharged by First National Bank for which he candidly admitted was a mistake on his part. He testified that Mr. Zegler at Union Bank had given him another chance when he needed a job. Mothershed was hired as a messenger in the mail room on April 13, 1975 at $380.00 monthly. In the six years of his employment, Mothershed has had six promotions and eleven salary increases (Def. Exh. 80). He is now earning $1,400 a month. Mothershed testified that he had at one time registered a discrimination complaint because he felt that a white employee had been moved ahead of him, but that the bank had established to his satisfaction that its decision had been based on the superior knowledge and experience of the other employee. Testimony had been elicited that Mothershed had been the subject of discrimination because he had not been made a computer programmer. However, Mothershed testified that he had been offered that opportunity but had declined because he was not interested in becoming a computer programmer. He also testified that he had specifically requested the night shift assignment.

Another damaging witness called by the plaintiff and intervenors was Mrs. Mildred Hall, a black supervisor of the collection department at the bank. She had worked in the Treasurer's office at Sears...