Sabala v. Western Gillette, Inc.

• Decision Date: 04 August 1975
• Docket Number: No. 74-2711,74-2711
• Citation: 516 F.2d 1251
• Parties: 11 Fair Empl.Prac.Cas. 98, 10 Empl. Prac. Dec. P 10,360 Oliver I. SABALA, Individually and on behalf of all others similarly situated, Plaintiff-Appellee-Cross-Appellant, v. WESTERN GILLETTE, INC., et al., Defendants-Appellants-Cross-Appellees. Leonard M. RAMIREZ, Plaintiff-Appellee, v. WESTERN GILLETTE, INC., et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1251

516 F.2d 1251

11 Fair Empl.Prac.Cas. 98, 10 Empl. Prac.

Dec. P 10,360

Oliver I. SABALA, Individually and on behalf of all others

similarly situated, Plaintiff-Appellee-Cross-Appellant, v. WESTERN GILLETTE, INC., et al.,

Defendants-Appellants-Cross-Appellees.

Leonard M. RAMIREZ, Plaintiff-Appellee, v. WESTERN GILLETTE, INC., et al., Defendants-Appellants.

No. 74-2711.

United States Court of Appeals Fifth Circuit.

Aug. 4, 1975.

G. William Baab, Dallas, Tex., for Southern Conference of Teamsters.

A. J. Harper, II, Houston, Tex., Theodore W. Russell, Los Angeles, Cal., for Western Gillette.

James P. Wolf, Houston, Tex., for Local Union 988.

Henry M. Rosenblum, Houston, Tex., for Oliver I. Sabala.

Sidney Ravkind, Houston, Tex., for Leonard M. Ramirez.

Appeals from the United States District Court for the Southern District of Texas.

Before WISDOM, SIMPSON and RONEY, Circuit Judges.

WISDOM, Circuit Judge:

This Title VII Section 1981 ¹ employment discrimination class action ² involves facially neutral seniority systems in a trucking company employing city drivers and road drivers.

Western Gillette, Inc., a nation-wide trucking company, employs Oliver Sabala, a Mexican-American, as a city driver at its Houston terminal. Sabala brings this action on behalf of all Mexican-Americans and blacks employed as city drivers at the Houston terminal. He attacks the separate seniority systems established for city and road drivers under the Company's collective bargaining agreement. Sabala contends that the facially neutral practices of maintaining separate lines of progression for road and city drivers, and of requiring city drivers to forfeit their job seniority to transfer from city to road jobs, effectively lock minority employees into the lower-paying city jobs. These practices, Sabala contends, perpetuate the effects of past racial discrimination in that they prevent minority drivers, historically relegated to the less desirable city jobs, from moving to the road. We have previously considered the discriminatory effect of these "ubiquitous practices in the trucking industry" in the Rodriguez trilogy. ³ See Rodriguez v. East Texas Motor Freight, 5 Cir. 1974, 505 F.2d 40; Herrera v. Yellow Freight System, Inc., 5 Cir. 1974, 505 F.2d 66; Resendis v. Lee Way Motor Freight, Inc., 5 Cir. 1974, 505 F.2d 69.

Sabala also contends that the Company has discouraged transfers, and thus prejudiced the plaintiff class, by overt acts of discrimination. Sabala alleges that he applied for a road job with Western Gillette in 1967 and was denied such employment because of his race. He was then offered the position of city driver, which he accepted. He has since made numerous unsuccessful attempts to transfer to the road. His complaint alleges that the Company's operations manager told him that he could not "hire your people for the road". Other class members testified that they had not been permitted to apply for road jobs.

The district judge, the Honorable John V. Singleton, Jr., found that the employment practices at the heart of this litigation were discriminatory and perpetuate the effects of past discrimination in violation of Title VII and Section 1981. He enjoined the defendants from continuing discriminatory practices, ordered changes in the seniority system, and awarded back pay and rightful place seniority relief to the individual discriminatees. The court also ordered that the defendants pay the plaintiffs' costs and attorney's fees. The defendants and the class plaintiffs appeal.

The judgment of the district court is affirmed in part, reversed in part, and remanded.

I.

Sabala's suit against Western Gillette rests on Title VII and Section 1981; his suit against the three union defendants rests on Section 1981 exclusively. ⁴ He contends that the collective bargaining agreements creating separate seniority systems for road and city drivers together with the conditions imposed on transfer are so onerous as to make transfer virtually impossible. Although facially neutral, these practices discriminate in their purpose and effect.

Title VII requires that charging parties exhaust their administrative remedies before they sue in federal court. Although their right to sue is not conditioned on the EEOC's finding of reasonable cause to believe that discrimination has occurred, they may not circumvent the agency's processes. "(I)f charges of employment discrimination have not been filed against the unions, the appellants' right to file suit has not ripened." Miller v. International Paper Company, 5 Cir. 1969, 408 F.2d 283, 291. See also McDonnell Douglas Corp. v. Green, 1973, 411 U.S. 792, 798-99, 93 S.Ct. 1817, 36 L.Ed.2d 668. In their EEOC charges, the plaintiffs alleged only that Western Gillette was guilty of employment discrimination; they made no allegation of discrimination by the union. Following Miller, the district court found that it had jurisdiction over the Company, under 42 U.S.C. § 2000e, but that it did not have jurisdiction over the union defendants under that section.

The claim under Section 1981, on the other hand, is an independent cause of action. The Supreme Court has noted that "Title VII was designed to supplement, rather than supplant, existing laws and institutions relating to employment discrimination." Alexander v. Gardner-Denver Company, 1974, 415 U.S 36, 48-49, 94 S.Ct. 1011, 1020, 39 L.Ed.2d 147. The filing of EEOC charges is not a condition precedent to suit under Section 1981. See Alpha Portland Cement Company v. Reese, 5 Cir. 1975, 507 F.2d 607, 610. "Section 1981 and Title VII . . . provide for such radically different schemes of enforcement and differ so widely in their substantive scopes that using the policies behind the latter to create procedural barriers to actions under the former would stretch to the breaking point courts' customary duty to accommodate allegedly conflicting legislation." Macklin v. Spector Freight Systems, Inc., 1973, 156 U.S.App.D.C. 69, 478 F.2d 979, 996. The district court properly found that it had jurisdiction over the employer and the union defendants under Section 1981.

The trial of this cause was conducted in a bifurcated proceeding. The first part of the trial, which considered the issues of jurisdiction and liability, took place in October and November of 1972. Sabala v. Western Gillette, Inc., S.D.Tex.1973, 362 F.Supp. 1142. After the court found jurisdiction and liability, the trial court conducted a second hearing in November 1973 on issues pertinent to fashioning a remedy. Sabala v. Western Gillette, Inc., S.D.Tex.1974, 371 F.Supp. 385. The bifurcation of the cause anticipated the procedures recently suggested by this Court in Baxter v. Savannah Sugar Refining Corporation, 5 Cir. 1974, 495 F.2d 437. ⁵

On the basis of testimonial and statistical evidence, the trial court concluded that the employer had discriminated in the past against the plaintiff class and that the present dual seniority system, as applied, perpetuates past discrimination by deterring minority employees from transferring to the road because of the necessary loss of their job seniority. The district court then considered whether the Company's present dual seniority system is justified by any business necessity. "When an employer or union has discriminated in the past and when its present policies renew or exaggerate discrminatory effects, those policies must yield, unless there is an overriding legitimate, nonracial business purpose." Local 189, United Papermakers and Paperworkers v. United States, 5 Cir. 1969, 416 F.2d 980, 989. See also Carey v. Greyhound Bus Co., 5 Cir. 1974, 500 F.2d 1372, 1376. The district court found no evidence in the record to suggest any legitimate nonracial business purpose that would justify the continued maintenance of dual seniority systems for road and city drivers at the Houston Terminal. ⁶ Moreover, it found that both Western Gillette and the defendant unions were responsible for this discrimination.

In fashioning a remedy the district court declined to require a complete merger of the two seniority systems on the ground that the relief would inequitably affect the seniority of various groups of Western Gillette employees. "There are established ways to eliminate the lock-in effect of separate seniority rosters without merging rosters and jeopardizing the seniority rights of those city drivers who remain in their positions." Rodriguez v. East Texas Motor Freight, 5 Cir. 1974, 505 F.2d 40, 61. The trial judge noted that such a complete merger of the seniority lines would have various shortcomings. "It would prejudice recently hired or transferred road drivers including minority drivers because they could be bumped off their job by city drivers with lower seniority on the city roster. Further, city employees who during the early years of their employment have enjoyed a weekly guarantee and consequent higher pay as compared to similarly situated road drivers would be permitted to move to the road with a resulting freeze of lower seniority men in the least attractive low-paying road jobs." Sabala v. Western Gillette, Inc., S.D.Tex.1974, 371 F.Supp. 385, 388. The trial judge ordered that all class members be afforded an opportunity to transfer to the road positions that had been denied them, either by outright discrimination or by virtue of having been locked into their city jobs because of the collective bargaining agreement. The court determined that relief should be sufficiently broad to insure that a transferring discriminatee would be able to keep his road job once he obtains it. The trial court ordered, therefore, that transferring discriminatees be given their "rightful place" seniority dates to facilitate the maintenance of their new positions. "A complete decree must give enough relief to insure that the transferred discriminatees are able to maintain their rightful place. Thus the rightful place theory dictates that we give...