Rogers v. International Paper Co.

• Decision Date: 14 February 1975
• Docket Number: 74--1087,74--1101 and 74--1115,Nos. 74--1086,s. 74--1086
• Citation: 510 F.2d 1340
• Parties: 10 Fair Empl.Prac.Cas. 404, 9 Empl. Prac. Dec. P 9865 Henry Lee ROGERS et al., Appellants-Cross-Appellees, v. INTERNATIONAL PAPER COMPANY et al., Appellees-Cross-Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1340

510 F.2d 1340

10 Fair Empl.Prac.Cas. 404, 9 Empl. Prac.

Dec. P 9865

Henry Lee ROGERS et al., Appellants-Cross-Appellees, v. INTERNATIONAL PAPER COMPANY et al., Appellees-Cross-Appellants.

Nos. 74--1086, 74--1087, 74--1101 and 74--1115.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 14, 1974.

Decided Jan. 7, 1975.

Rehearings Denied Feb. 14, 18, 1975.

Rehearing En Banc Denied Feb. 14, 1975.

Philip E. Kaplan, Little Rock, Ark., and Deborah M. Greenberg, New York City, made argument for Rogers, and others.

Thompson Powers and James D. Hutchinson, Washington, D.C., made argument for Int. Paper Co.

William L. Massey, Youngdahl & Larrison, Little Rock, Ark., made argument for Paperworkers.

Eugene R. Warren, Little Rock, Ark., made argument for Local 2033.

Before HEANEY, BRIGHT and ROSS, Circuit Judges.

ROSS, Circuit Judge.

Henry Rogers, Lee Smith and N. A. Thompson, on behalf of themselves and other blacks similarly situated, brought this action against International Paper Company (hereinafter I.P.) and I.P. unions under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e--5(e), 42 U.S.C. § 1981, and 29 U.S.C. §§ 151 et seq. The complaint alleges racially discriminatory employment policies were practiced by I.P. at its Pine Bluff Mill in four general employment classifications: production departments, maintenance craft jobs, office and clerical jobs, and supervisory positions.

After a lengthy trial and upon detailed factual evidence, the district court concluded, with respect to production jobs, that although I.P. had clearly discriminated in past job assignments and although its seniority system had perpetuated the effects of that past discrimination, I.P.'s Memorandum of Understanding

negotiated between I.P. and the Office of Federal Contract Compliance under Executive Order 11,246 substantially eliminated the effects of the former discriminatory policy. Respecting maintenance craft jobs the court concluded there was no overt discrimination against blacks and the tests administered as a prerequisite to employment for those jobs were not shown to have a racially disparate impact, nor, in any event, to be unrelated to job performance. Third, the district court noted there had been no hiring for office and clerical positions for a significant period of time and concluded that I.P. had undertaken effective measures to remedy any discrimination in office and clerical employee selection by establishing a list of qualified black clerical applicants. The district court did not address the question of discrimination in supervisory employee selection. Upon those bases, the court denied injunctive relief. For the reasons hereinafter set forth, we reverse and remand.

I. INTERNAL STRUCTURE.

The Pine Bluff Mill, located in Jefferson County, Arkansas, is one of a number of such facilities maintained by I.P. for treatment and conversion of wood into paper. It commenced production in 1958 and, at the time of trial, employed 1443 employees, of which 118 were black. The population of Jefferson County is 30% black. The mill consists primarily of production departments which process wood into paper and maintenance craft departments which are responsible for repairing and maintaining the machinery used at the mill. Also employed at Pine Bluff are supervisory personnel and office and clerical personnel. ¹ Of the 160 supervisory personnel, one accountant hired in 1969 is black.

Production workers are organized into ten departments ² which, in turn, are subdivided into various lines of progression (LOP) based either upon the type of job performed or geographic proximity to other jobs in a particular LOP. As a worker ascends in the LOP his pay rate increases. Associated with many of these departments are labor pools into which employees are hired by I.P. and from which laborers are assigned to various entry level jobs in a LOP as temporary or permanent vacancies therein occur. Also in the production area, but not associated with any specific department or LOP, are various miscellaneous hourly jobs. Under the collective bargaining agreements in effect at Pine Bluff, promotion, demotion, layoff and recall are determined on the basis of seniority of which there are three types: company or mill seniority, department seniority, and job seniority. ³

Prior to 1962 all of the production jobs were segregated on the basis of race. The Wood Yard Department was the only production department permitting blacks. Various miscellaneous jobs were designated black jobs and the General Yard Crew was a black labor pool. The black jobs were generally less desirable, lower paying, and more physically demanding. Subsequent to 1962 this situation changed as will be hereafter discussed.

The maintenance crafts jobs are organized into three departments ⁴ and are represented by various skilled crafts, ⁵ both journeyman and apprentice status. These are the highest paying hourly positions at I.P. The company, based upon

test results achieved on a battery of tests, effectuates hiring of these employees into the apprenticeship programs. Applicants therefor must be under 25 years of age, or 29 if the applicant is an I.P. incumbent employee. Job training and union membership follow. Until 1962 the bargaining representatives for these crafts were segregated white unions. Thus the maintenance crafts at Pine Bluff were all white. At the time of trial, two black apprentices had been hired into the 255 skilled craft positions at the Pine Bluff Mill.

II. SUPERVISORY PERSONNEL.

In a recent class action challenge alleging employment discrimination we have noted that employment policies affecting supervisory and managerial positions are not insulated from the reaches of Title VII enforcement. Gilmore v. Kansas City Terminal Ry., 509 F.2d 48 (8th Cir., 1975). In that case we held that statistical data may establish a prima facie case of employment discrimination, specifically in the context of supervisory personnel, and that such a showing shifts the burden to the employer to rebut the inference that racial considerations have dictated employment choices. Id. at 52. When a defense of lack of minority qualification is interposed by the employer, we there held that an employer may rebut the prima facie case of discrimination upon a showing that the required qualifications have a manifest relationship to the employment in question. Gilmore v. Kansas City Terminal Ry., supra, at 52. Thereafter, it is open to plaintiffs to demonstrate a violation of Title VII on either of two independent bases: 'that the employment policies reflect present discriminatory conduct or that current policies, though neutral on their face, carry forward vestiges of past discrimination.' Id.

Here, by means of the statistic that only one black has been hired for a supervisory position, the plaintiffs have made a prima facie showing of racial discrimination by I.P. in its employee selection policies for supervisory personnel. ⁶ The record does not demonstrate that I.P. interposed any defense to this aspect of the class action complaint. Because the trial court, in defining the class, excluded supervisory employees, and since I.P. did not present evidence to rebut the prima facie statistical showing of racial discrimination, we remand this aspect of the case to the trial court for further hearings and a determination as to whether or not there has been racial discrimination in the hiring of supervisory employees by I.P. If the trial court determines there has been such discrimination it shall then fashion an appropriate remedy. In resolving this issue the district court should apply the following standards.

A. Current Discrimination.

Proof of intent. Notwithstanding the provision in Title VII allowing injunctive relief and back pay only where the respondent has intentionally engaged in unlawful practice, 42 U.S.C. § 2000e--5(g), courts have established that proof of discrimination does not require proof of intent to discriminate. All that is required is that the employment practice not be accidental. See, e.g., Local 189, United Papermakers & Paperworkers v. United States, 416 F.2d 980, 996 (5th Cir. 1969), cert. denied, 397 U.S. 919, 90 S.Ct. 926, 25 L.Ed.2d 100 (1970). The Supreme Court has adopted this interpretation. In Griggs v. Duke Power Co., 401 U.S. 424, 432, 91 S.Ct. 849, 854, 28 L.Ed.2d 158 (1971), the Court stated that, 'Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation.'

See also United States v. N.L. Industries, 479 F.2d 354, 361 (8th Cir. 1973) (and cases cited therein).

Overt discrimination. Overt discrimination may be demonstrated by the production of qualified minority applicants for past vacancies who were rejected for a less qualified white person. If such employer conduct is established, a deliberate purpose to discriminate may be inferred and close judicial scrutiny of employment practices is warranted. In Brown v. Gaston County Dyeing Machine Co., 457 F.2d 1377, 1382 (4th Cir. 1972), the court observed:

Courts have often observed that proof of overt racial discrimination in employment is seldom direct. Recognizing this, we have found 'error in limiting Title VII to present specific acts of racial discrimination,' and it is now well established that courts must also examine statistics, patterns, practices and general policies to ascertain whether racial discrimination exists. (Citations omitted.)

Recruitment. Evidence of discrimination by design might also be based upon a history of minimal recruitment efforts in publicizing vacancies and openings in supervisory and management positions. The passive nature of past recruitment together with the failure to undertake affirmative recruitment efforts after the passage of Title VII may justify a finding of discriminatory conduct. United States v. N.L. Industries, supra, 479 F.2d at 368; Parham v. Southwestern Bell Telephone Co....