Roman v. ESB, Inc.
| Decision Date | 28 December 1976 |
| Docket Number | No. 73-2423,73-2423 |
| Citation | 550 F.2d 1343 |
| Parties | 14 Fair Empl.Prac.Cas. 235, 13 Empl. Prac. Dec. P 11,285 Miriam Conyers ROMAN et al., Appellants, v. ESB, INCORPORATED, Appellee. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Ruth Weyand, Washington, D.C., Margaret C. Poles, Alexandria, Va. (Winn Newman, Washington, D.C., on brief), for appellants.
J. Hamilton Stewart, III (Homer L. Deakins, Jr., Thompson, Ogletree & Deakins, Washington, D.C., on brief), for appellee.
William A. Carey, Gen. Counsel, Joseph T. Eddins, Jr., Associate Gen. Counsel, Beatrice Rosenberg, Charles L. Reischel, Caliph Johnson, Attys., E.E.O.C., Washington, D.C., on brief for amicus curiae for Equal Employment Opportunity Commission.
Before HAYNSWORTH, Chief Judge, BOREMAN, Senior Circuit Judge, WINTER, CRAVEN, BUTZNER, RUSSELL, Circuit Judges, FIELD, Senior Circuit Judge, and WIDENER, Circuit Judge.
This is an action brought by 44 1 plaintiffs, black former employees of appellee ESB, Incorporated. The case arises under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The district court, following trial on the merits, dismissed the action and entered judgment for the defendant ESB. We affirm.
The action was brought initially under the Civil Rights Act of 1866, 42 U.S.C. § 1981. A second action was filed under both § 1981 and Title VII. The district court, without prejudice, consolidated the cases and dismissed the § 1981 claims and struck references to them from the complaint.
The plaintiffs, who allege racial discrimination by ESB, sought to bring this case as a class action representing all black applicants for employment with ESB and all present and former black employees of ESB. This class was limited to the Sumter facility of the defendant by stipulation and court order. The plaintiffs alleged discrimination by ESB in hiring, layoffs and discharges, and in pay, promotion and other employment practices.
Shortly after the first complaint was filed, ESB served a set of written interrogatories on each of the named individual plaintiffs and also sought to take depositions of such plaintiffs. Due to the failure of 16 of the plaintiffs to comply with the discovery requirements, the district court found them in default and dismissed them as parties, with prejudice. Such dismissal came only after the district court granted them a second chance to obey an order of the court that they comply with discovery procedures.
The plaintiffs proceeded with the class action under a conditional order of the court pursuant to Rule 23(c)(1), in which the court reserved the right to alter or amend its order after discovery had been taken and evidence introduced. The motion to dismiss the class action was renewed at the conclusion of all testimony and was granted by the court.
The district court stated that, while there had been testimony as to alleged racial discrimination in several areas, the main thrust of the action and the primary complaint of virtually every plaintiff was that the layoff by ESB of 30 whites and 53 blacks in July 1970 was discriminatory in nature, as was the failure of the defendant to rehire the laid-off black employees. Of the 44 original plaintiffs, 42 were laid off on July 24, 1970, one prior to that date, and one several months later.
The court held that the class consisted of the 53 blacks who were laid off, and ruled that the class was not so numerous that joinder of all its members was impracticable. The court also questioned the ability of the plaintiffs to fairly and adequately represent and protect the interest of the class.
The district court, as to the merits of the action, found that the plaintiffs failed to prove any racial discrimination against them by the defendant and accordingly dismissed the action.
The factual setting of this case should be noted in some detail. ESB opened its Sumter plant in August 1965, but it was never a profitable operation. The principal product of the plant was the nickel-iron battery, an expensive, long-term energy cell produced for industrial consumption. Sales of these batteries were in large part to railroads, with the Penn Central Railroad being the largest of its customers. Sales dropped through the late 1960's, and in 1970 its sales to Penn Central declined sharply. By early 1970, the Sumter plant was losing approximately $120,000 per month, with future sales projected to decline even further. The Sumter plant had developed problems in quality control, lack of efficiency, high labor costs, and engineering and inventory problems.
In an effort to cure these problems and to make the Sumter operation profitable, ESB employed one Peter May, a trouble-shooter in manufacturing problems. May arrived at ESB in March 1970 and began his investigation. He found a 50% defective rate in the production of the tubes made by ESB for their nickel-iron batteries. ESB at that time had over one million defective tubes on hand. Changes in production techniques introduced by May reduced the sub-quality tubes to almost zero. May also decided that the labor force was too large to work efficiently and for the plant to operate profitably. The management of ESB, in June, 1970, approved his suggested reduction of the work force. May suggested what job areas in the plant needed to be reduced, but had nothing to do with the selection of the actual employees to be laid off.
On July 24, 1970, the layoff was effected and involved 83 workers, 53 of whom were black. Prior to that time, there were 365 hourly employees in the Sumter plant, of which 197 or 54% were non-white. Of those laid off, 63% were non-white. Following the layoff, the hourly work force was 53% non-white and at the time of the trial 57% were non-white. According to the 1970 census, Sumter County had a non-white population of 41% and the City of Sumter was 35% non-white.
The layoff was carried out in compliance with the policy set forth by defendant ESB in its employee handbook, which policy had been in use for a considerable period of time. Under that policy, the reduction in the work force was made by reducing the numbers in various departments, as required, on the basis of plantwide seniority within each job classification of each department. Employees in a higher job classification, who had been previously assigned to a lower job classification within the department, were given the opportunity to move back to the lower classification so long as it was consistent with the layoff policy. Permanent job classifications were used throughout, including situations in which an employee might be working at a temporary job at the time of the layoff.
Under ESB employment policy, employees with less than five years' service (all persons involved in the layoffs had less than five years' service) retained rights of recall to work for a period of six months. No new employees were hired within this six-month period. The employees were advised at that time that the layoff was permanent.
Once recall rights had expired, former employees were required to reapply for employment and were treated on reapplication as new applicants for employment. ESB had two other applicable rules that are pertinent here. The first was that job applications would be considered active for only 30 days. If no job became available during this 30-day period, the application was destroyed and a new application required. Notice of this rule was posted in a conspicuous place in the room where persons filled out job applications. The second rule was a policy that former employees would not be rehired to jobs of a lower classification than the job held at the time the employee was laid off or terminated. This was based on prior experience of ESB that former employees who were rehired at a lower grade usually became unhappy or discontent and did not make good employees. The district court found both of these rules to be of long standing and that they did not result in racial discrimination nor were they added due to any racial discrimination.
In March 1971, ESB began to hire again. Eleven 1a of the original 44 plaintiffs in this action came to the plant and filled out applications after that time. Of these, three were offered jobs and two accepted and were rehired. One was offered a job and refused it. The remaining eight, the district court found, were not rehired due to either an absence of available jobs or due to work problems encountered during prior employment, i. e., absenteeism and transportation difficulties.
The plaintiffs at trial focused on the period of March, April and May 1971, in which 29 employees were hired, only one of whom was black. The trial court found that while this might appear to be racially discriminatory, it actually was not. The court compared the hiring during this isolated period with overall plant figures, which showed that ESB had a far higher percentage of black employees than the percentage of blacks present in the community. The district court also found that 10 of the 28 whites hired during this isolated period were temporary employees, and that three blacks were reinstated during this period from temporary layoffs and maternity leave. Another three blacks were offered employment during this three-month period but refused it.
Appellants challenge the district court's dismissal of the class action aspect of this suit, arguing that there was sufficient statistical evidence of racial discrimination for the class action to be properly maintained. 2
As noted already, the district court delayed ruling on the motion to dismiss the class action and allowed the trial on the merits to proceed on a conditional order pursuant to FRCP Rule 23(c)(1), 3 reserving the right of the court to alter or amend its order with respect to the class action.
At trial, the court received the evidence of the plaintiffs in accord with its broad conditional class action...
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