Sears v. Bennett, s. 78-1995
| Decision Date | 11 March 1981 |
| Docket Number | 78-1997 and 78-1998,Nos. 78-1995,s. 78-1995 |
| Parties | 25 Fair Empl.Prac.Cas. 337, 25 Empl. Prac. Dec. P 31,621 Joe Vernon SEARS, an individual, in person and for all other persons similarly situated, Plaintiffs-Appellees and Cross-Appellants, v. Albert L. BENNETT, C. J. Skelton, Archie N. Jones, Forest D. Tollett, John W. Landrum, Lawson C. Spencer, Thomas H. White, Earlie Nash, Aubrey A. Robinson, Edward Rawlins, John W. Cole, Charles Majors, Jr., Jesse J. Smith, Paul H. Stewart, Jimmy E. Brown, Carl E. Chester, Ray E. Landrum, Raymond Wiley, Elgie Crow and Ellis Johnson; Criscel Kemp, A. M. Bennett, A. L. Woolfolk, T. C. Luckey and W. W. Seymour, Intervenors-Plaintiffs-Appellees and Cross-Appellants, The BROTHERHOOD OF SLEEPING CAR PORTERS, Plaintiff-Appellee and Cross-Appellant, v. The ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, and United Transportation Union, successor to Brotherhood of Railway Trainmen, a labor organization, Defendants-Appellants and Cross-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Terry G. Paup, and Lee H. Woodard of Woodard, Blaylock, Hernandez, Pilgreen & Roth, Wichita, Kan. (Chester I. Lewis of Lewis, Davis & Mitchell, Wichita, Kan., with them, on brief), for plaintiffs-appellees and cross-appellants Joe Vernon Sears, et al.
Charles R. Judge, St. Louis, Mo. (William B. Smith of Dubail, Judge, Kilker, O'Leary & Smith, St. Louis, Mo., and E. Lee Kinch of Ratner, Mattox, Ratner, Ratner & Barnes, Wichita, Kan., with him, on brief), for defendant-appellant and cross-appellee United Transportation Union.
Shelley J. Venick, Chicago, Ill. (Ronald A. Lane, Chicago, Ill., J. B. Reeves, Roth A. Gatewood and Thomas R. Conklin, Topeka, Kan., with her, on brief), for defendant-appellant and cross-appellee Atchison, Topeka & Santa Fe Railway Co.
William H. Ng, E.E.O.C., Washington, D. C. (Issie L. Jenkins, Acting Gen. Counsel, Joseph T. Eddins, Associate Gen. Counsel, and Beatrice Rosenberg, Asst. Gen. Counsel, Washington, D. C., with him, on brief), for amicus curiae Equal Employment Opportunity Commission.
Before SETH, Chief Judge, and HOLLOWAY and LOGAN, Circuit Judges.
The Atchison, Topeka & Santa Fe Railway Company (Santa Fe) and the United Transportation Union (UTU) 1 appeal from a judgment holding that they violated the Civil Rights Act of 1964 (Title VII or the Act), 42 U.S.C. § 2000e et seq., by perpetuating the effects of prior discrimination in a nonbona fide seniority system. Plaintiffs black train porters, chair car attendants and their union cross-appeal regarding elements of the back pay formula and showings required of individual class members by the court. The Equal Employment Opportunity Commission (EEOC) appeared as amicus on plaintiffs' behalf.
Plaintiff Joe Vernon Sears filed complaints against Santa Fe and UTU with the Kansas Commission on Civil Rights and the EEOC on March 8, 1966, and October 4, 1966, respectively, alleging that Santa Fe and the UTU had denied and were continuing to deny him and other black employees their rights under Title VII because of their race. On October 7, 1972, the EEOC notified Sears of his right to sue defendants; he filed suit in district court the following month on behalf of himself and others similarly situated. The district court certified the suit under Fed.R.Civ.P. 23(b)(2) and (c) as a class action on behalf of Sears and all other black train porters employed by Santa Fe in any capacity from July 2, 1965 to the time of class certification. The Brotherhood of Sleeping Car Porters (BSCP) 2 was also admitted as a plaintiff. Santa Fe settled all claims for damages, back pay, and attorneys' fees with plaintiffs before trial, but remained a party in the suit for purposes of injunctive relief and seniority considerations.
With the parties' agreement, the court tried the case in phases and reported its findings in two decisions, one regarding liability, reported at 454 F.Supp. 158 (D.Kan.1978), and the other dealing with damages (unpublished). The liability phase was tried by means of a joint presentation of stipulated facts, subject to objections of relevancy and materiality. The parties submitted briefs on the issue of damages, after which the court determined a method of arriving at back pay and seniority rights accruing to each member of the subclasses. It did not make individual awards, but retained jurisdiction to do so, finding it unnecessary to appoint a special master for the computation of back pay awards.
The issues on appeal are (1) whether the seniority system was bona fide within § 703(h) of the Act; (2) whether liability may be imposed on UTU for the impact created by the seniority system agreed to by UTU and Santa Fe; and (3) whether the court abused its discretion in its formulation of damages.
Some general background facts are in order. Train runs on the Santa Fe traditionally included passenger trains, through freights, local freights, and mixed passenger and freight trains. The train crews on local and through freight trains consisted of a conductor, head-end brakeman, rear-end brakeman, engineer and fireman. Santa Fe created the position of train porter in 1899. Train porters performed the duties of head-end brakemen on passenger trains and also attended to passengers and took care of the interior condition of passenger cars in their custody. Porters and head-end and rear-end brakemen on passenger trains received the same mileage rate or hourly rate from 1918 until termination of the job of train porter in 1975. However, brakemen received additional compensation not paid to train porters, such as pay for delays. Thus, the total wages paid to a passenger brakeman were higher than those paid to a train porter. Most passenger trains also carried chair car attendants, non-operational personnel who attended to passengers' needs and cleaned the interior of the cars. They performed no braking duties. Train porters and chair car attendants were always black males. Between 1918 and 1959, the entry level job with the Santa Fe for a black man was the position of chair car attendant. Chair car attendants could qualify for the position of a train porter by taking a rules examination, passing a physical examination, and completing student trips on passenger trains. The newly qualified train porter would continue to work as a chair car attendant and would work as a porter when called from the extra board, a list of qualified porters who were not assigned to a regular run. With sufficient seniority, he could obtain a regular job as a porter.
The entry level for a nonblack man was the brakeman position. A white man could qualify for the brakeman position by taking a rules examination, passing a physical examination, and completing student trips on local freight trains. The rules examination for a brakeman applicant and the administration thereof were the same as for train porters. Before 1960, a new hire started as an extra on all of the types of trains run by Santa Fe. After accumulating sufficient seniority, a brakeman could obtain a regular freight braking job. Generally a brakeman needed substantial seniority to obtain a regular braking job on passenger trains. Some brakemen never sought passenger work. A brakeman on a passenger train could return to freight service by exercising his seniority rights.
The Santa Fe has always maintained and published seniority rosters for each craft for each district or geographic area. An individual's seniority date is the earliest date of continuous service in a particular craft within a particular district. An employee's seniority date determines promotion opportunities as well as his right to protect work within his craft and district. Seniority is not transferable from one district to another or from one craft to another. The first known contract containing seniority provisions was in 1892 agreement between Santa Fe and predecessors to UTU. In 1960, the seniority rosters of brakemen and yardmen were combined, giving them dual rights. After that date, a new hire was given a seniority date applicable to yard and road service.
A UTU predecessor, the Brotherhood of Railroad Trainmen (BRT), made several attempts to transfer braking duties from black train porters to white brakemen. BRT protested that the use of porters on passenger trains to perform the duties of head-end brakemen violated the contracts between the BRT and Santa Fe providing for the seniority rights and duties of brakemen. In 1959, the National Railroad Adjustment Board issued Award 19324, holding that only train porters holding a seniority date prior to April 20, 1942, could perform head-end braking duties. All train porters with a later seniority date were demoted to chair car attendants and could no longer perform braking duties.
In the instant case, the district court divided the plaintiff class into two subclasses: (1) those who were serving as train porters in 1965 when Title VII became effective and (2) those who had been reclassified as chair car attendants under Award 19324 and were serving in that capacity on July 2, 1965. The first group is composed of employees who had a seniority date earlier than April 20, 1942, and thus were allowed to continue in the porter position after Award 19324. Those in the second group once served as porters but had a seniority date after April 20, 1942, and thus were precluded from serving as train porters after 1959.
The district court held that both Santa Fe and the UTU engaged in a pre-Act systemwide policy and pattern of discrimination against black employees, that this discrimination was perpetuated by the seniority system agreed to by both defendants, and that disparate impact created by the seniority system was not immunized by the § 703(h) exemption for bona fide seniority systems. The court also found that Santa Fe violated the...
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