Spencer v. McCarley Moving & Storage Co., Inc.

• Decision Date: 10 April 1985
• Docket Number: No. 69548,69548
• Citation: 174 Ga.App. 525,330 S.E.2d 753
• Court: Georgia Court of Appeals
• Parties: SPENCER et al. v. McCARLEY MOVING & STORAGE COMPANY, INC. et al.

Page 753

330 S.E.2d 753

174 Ga.App. 525

SPENCER et al. v. McCARLEY MOVING & STORAGE COMPANY, INC. et al.

No. 69548.

Court of Appeals of Georgia.

April 10, 1985.

John D. Allen, Columbus, for appellants.

Forrest L. Champion, Jr., Columbus, for appellees.

BEASLEY, Judge.

This is an appeal from the grants of summary judgment to defendants in a suit charging racial discrimination in employment practices.

On July 21, 1983, the plaintiffs, eight black males, filed suit for injunctive relief and damages against United Van Lines ("United"), McCarley Moving & Storage Co., Inc., ("McCarley, Inc.") and Price McCarley as its president and principal officer, alleging, inter alia, that white drivers employed with McCarley Moving & Storage Co., Inc. were placed in higher paying driving jobs, that the company paid overtime selectively to whites, and in other ways, gave more favorable work conditions to white drivers, in violation of the Constitutions of the United States and of our State and of 42 USC § 1981, which provides for equal rights under the law. In addition, appellant plaintiffs alleged that the appellee defendants deprived them of overtime pay and wilfully and maliciously converted these funds to their own use. During the course of proceedings in the trial court, appellants abandoned any initial effort to have the action certified as a class suit.

The defendants filed motions for summary judgment. After hearing and the filing of supplemental affidavits and briefs by the parties, the trial court granted summary judgment to each defendant. Plaintiffs appeal. Held:

1. Appellants' three enumerations of error collectively contend that the trial court erred in the grants of summary judgment as to all defendants.

The third enumeration alleges that the court erroneously granted summary judgment to McCarley, Inc. The question is whether the allegations of the pleadings have been pierced so that no genuine issue of material fact remains. Dunbar v. Green, 229 Ga. 829, 830, 194 S.E.2d 435 (1972), appeal after remand, 232 Ga. 188, 205 S.E.2d 854 (1974). No material issue of fact remains as to any actionable tortious conduct by the company by virtue of a violation of 42 USC § 1981; the pleadings have been pierced.

The gravamen of appellants' argument is that because of race they were denied employment as "long-haul" or permanent lease commission drivers for the company and instead were hired as "short-haul" drivers, that they endured less favorable work conditions, including lower pay and salaried income rather than pay by commission. Also, appellants claim they were never considered for the position of warehouse manager.

An individual invoking 42 USC § 1981 who claims he is the victim of a racially discriminatory hiring decision must show (1) that he belongs to a racial minority; (2) that he applied and was qualified for a job for which the employer was seeking applicants; (3) that despite his qualifications he was rejected; and (4) that after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973); Scarlett v. Seaboard Coast Line R. Co., 676 F.2d 1043, 1052 (1982).

The company demonstrated through deposition and affidavits that no issue of material fact remained as to these elements.

In his deposition taken on September 30, 1983, Price McCarley was asked whether or not any blacks had applied to his company for the status of long-haul driver in the last five years. McCarley responded that Early Dunklin was the only black person who had so applied ¹. Of the eight named plaintiffs, only Rutledge, Spencer, Moultrie, Brown, and Hollis filed initial affidavits in opposition to the motions. Nowhere in these affidavits do the parties state that McCarley's company had been seeking applicants for the position of long-haul or commissioned drivers, that they had applied for such openings, that they were qualified for the vacancies, that their applications had been rejected, that the positions sought remained open, and that the company continued to seek applicants from persons with their qualifications.

In his supplementary affidavit of May 23, 1984, McCarley averred, among other things, that plaintiff Brown never applied to take the test to become a long-distance driver and that he lacked the necessary background to be a long-haul driver; that plaintiff Eddie Ford never applied to take the necessary test, had no experience in driving tractor trailers, and had indicated to McCarley on numerous occasions that he did not desire to be away from home for the extended time required of long-distance drivers; that plaintiff Hollis lacked the required experience to drive a tractor trailer and had never applied to take the necessary tests; that plaintiff Spencer likewise lacked required experience and never applied to take the test; that plaintiff Moultrie never applied to become a long-distance driver; that plaintiff Lewis had no drivers' license and had never applied to become a driver; that plaintiff Rutledge had no driver's license and had not applied for the position of driver; and that plaintiff Robert Lee Ford also was without a driver's license and had not applied for the subject position of driver. The affidavit continued that "the employment of one to become a long-distance tractor-trailer driver taking long-distance dispatch orders from United under contract is entirely different from a short-haul driver driving a 4-wheel van taking short-haul dispatch orders from McCarley, Inc. It is not a matter of promotion of employees similarly situated within a class; but, instead is a matter of advancement to a different class of employees."

In a later supplemental affidavit, McCarley reiterated the lack of qualifications of Spencer, Moultrie, and Hollis and discussed the requirements for long-distance drivers, stating: "After a person becomes a short-haul driver, in order to become a permanent lease driver, he must attend a van operator's workshop that is required by United, in order to become qualified to be recommended as a permanent lease long distance over the road driver." Only Moultrie, Hollis, and Spencer filed supplemental affidavits, which stated in effect that they had requested the position of long-distance driver, were qualified and had been denied the position. They never stated that they had applied for any actual vacancies or that they had attempted to qualify for the desired position by applying to take the "van operator's workshop" sworn by McCarley to be a mandatory qualification for the position.

Furthermore, none of the plaintiffs pled the elements necessary for a cause of action under 42 USC § 1981 in regard to the position of warehouse manager. See McDonnell Douglas Corp. v. Green and Scarlett v. Seaboard Coast Line R. Co., supra.

If a prima facie showing is made that the moving party in summary judgment is entitled to judgment as a matter of law, the opposing party must come forward with rebuttal evidence at that time or suffer judgment against him. Meade v. Heimanson, 239 Ga. 177, 236 S.E.2d 357 (1977). The plaintiffs did not rebut the showing that as to McCarley Moving & Storage Co., Inc., there was no actionable tort based on a violation of 42 USC § 1981.

Appellants also argue that the company was guilty of tortious conduct by violating the equal protection provisions of the State and Federal Constitutions.

Whereas no state action is required to invoke the protections of 42 USC § 1981 (see, e.g., Gonzales v. Fairfax-Brewster School, 363 F.Supp. 1200 (1973), aff'd. in part and rev'd. in part on other grounds 515 F.2d 1082 (1975), aff'd. 427 U.S. 160, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976), such is not the case in an equal protection claim under either the State or Federal Constitutions. In the past, our State Constitution's "equal protection" provisions, though employing different phraseology than the fourteenth amendment of the United States Constitution, have been held to be substantially equivalent to the equal protection of the laws under the Constitution of the United States. McDaniel v. Thomas, 248 Ga. 632, 285 S.E.2d 156 (1981). The fourteenth amendment applies only when there is state action (Graves v. Walton County Bd. of Education, 300 F.Supp. 188 (1968), aff'd., 410 F.2d 1152, 1153 (1969); Jewell v. City of Covington, 425 F.2d 459 (1970), cert. denied, 400 U.S. 929, 91 S.Ct. 195, 27 L.Ed.2d 189 (1970), and protects individuals against state action, not against wrongs done by individuals. United States v. Sutherland, 37 F.Supp. 344 (1940); United States v. Guest, 383 U.S. 745, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966). There can be instances when the private citizen's conduct may be attributable to the state where the government affirmatively facilitates, encourages, or authorizes the objectionable practice. The relevant inquiry is whether there is a sufficiently close nexus between the state and the challenged action of the private entity so that the action of the latter may be fairly treated as that of the state itself. Jeffries v. Ga. Residential Fin. Auth., 678 F.2d 919 (1982), cert. denied, 459 U.S. 971, 103 S.Ct. 302, 74 L.Ed.2d 283 (1982).

Here, appellants appear to be arguing that McCarley, Inc.'s governmental ties come by virtue of federal contracts through United. It will be unnecessary for this court to determine whether such federal contracts are sufficient governmental nexus so as to constitute state action and invoke the equal protection provisions of the State and Federal Constitutions, for, assuming arguendo the presence of state action in this case, the defendant company successfully hurdled appellants' pleadings as to equal protection claims.

An equal protection claim arises when an individual contends that he is receiving different treatment from that received by other individuals similarly...