Taylor v. Jones, LR-76-C-90.

• Citation: 489 F. Supp. 498
• Decision Date: 08 May 1980
• Docket Number: No. LR-76-C-90.,LR-76-C-90.
• Parties: Corenna TAYLOR v. James H. JONES.
• Court: U.S. District Court — Eastern District of Arkansas

489 F. Supp. 498

Corenna TAYLOR v. James H. JONES.

No. LR-76-C-90.

United States District Court, E. D. Arkansas, W. D.

February 21, 1980.

On Various Motions April 11, 1980.

On Motions to Dissolve Injunction May 8, 1980.

John Walker, Richard Quiggle, Little Rock, Ark., for plaintiff.

David L. Williams, Asst. Atty. Gen. for the State of Arkansas, A. Doug Chavis, Asst. U. S. Atty. for the Eastern District of Arkansas, Little Rock, Ark., Peter B. Loewenberg, Dept. of the Army, Washington, D. C., for defendant.

ARNOLD, Circuit Judge, Sitting by Designation.

Feb. 21, 1980

The Court makes the following findings of fact and conclusions of law.

The Court has jurisdiction of the case under Sections 1331 and 1343 of Title 28 U.S. Code because the claims asserted by the Complaint arise under Title 7 of the Civil Rights Act of 1964, and 42 U.S.C. Section 1983. This is not a class action, as counsel for defendant has pointed out. Although class allegations were contained in the Complaint, no motion for class certification was ever filed. The Court is, therefore, unable to make the findings required by Rule 23. The case has been tried as an individual action, and it is an individual action. A good many of the facts are stipulated, and those that are not stipulated have been presented to the Court in the main with candor on both sides, and the picture that emerges is unusually clear for cases of this kind.

The Court, as indicated at the beginning of the trial, has substituted General Jimmie "Red" Jones as the named defendant. As Adjutant General of the State of Arkansas he has administrative supervision over both Federal and State employees who work in the Arkansas Military Department. He is the appointing authority for both Federal and State employees and, therefore, is ultimately responsible for hiring, firing, and other personnel actions.

The distinction between Federal and State employees, in the Court's judgment, is not relevant for Title VII purposes.

The plaintiff in this case, Mrs. Corenna Taylor, was first employed by the Arkansas National Guard in March of 1974. From March through June 30, she served as a recruiter. At that time she was terminated, that is, at the end of June as a recruiter, her contract expired, her enlistment, if you will, expired, and beginning on July 1, 1974, she began work in the mail room. She worked there until her resignation became effective on October 2, 1974.

She filed a timely charge with the Equal Employment Opportunity Commission and duly received a notice of right to sue. The jurisdictional and administrative prerequisites for the exercise of this Court's powers have, therefore, been fulfilled.

The Court lays to one side the claim that there may be a violation of Title VII on a disparate-impact theory. The Court does not believe that the proof justifies that with respect to this individual plaintiff. That is not to say that there are not other individuals who might have a viable disparate-impact claim, but they are not before the Court. The Court addresses itself exclusively to the disparate-treatment theory, and that theory is based upon discrimination as to race, not as to sex, there having been no claim in the Complaint of sex discrimination.

The first issue that the Court must address is whether or not a prima facie case of disparate treatment was made. In that regard the Court finds that the first black person hired by the defendant was hired in 1971, that up until that time there had been a history of purposeful and deliberate racial discrimination on the part of the State of Arkansas generally as an employer, and specifically on the part of the Military Department.

Since that time the number of blacks employed by the Arkansas National Guard has risen to no more than two per cent, that is, there are about 1100 employees federal and state, and there are no more than about eighteen black employees. This number is contrasted with the number of blacks in the general population in the State, which is no less than sixteen per cent, or was no less than sixteen per cent in 1970, the last census that we had. It also contrasts with the percentage of blacks who are members of the National Guard, and that figure is between twenty and twenty-three per cent.

The blacks that were hired by the Military Department have been in the lower level jobs. No black person, with the exception of one in West Memphis, has ever held a supervisory position. The racial atmosphere at the Arkansas Military Department has been in a word, "dismal".

The Court specifically credits the testimony of the plaintiff, of Mr. Hale, of Mr. Person, of Mr. Watson, and of Colonel Burdell, that the racial atmosphere has left much to be desired. There were slurs, epithets, and jokes. On one occasion an employee who said he was a member of the Ku Klux Klan actually hung up a noose in one of the places of business. The message conveyed or attempted to be conveyed by that action was unmistakable.

The Court agrees that the employer is not automatically responsible for the acts of employees, however reprehensible they may be. The Court also agrees that there is, in some sense, a right to be prejudiced, that is, the law doesn't control people's thoughts and cannot, and the Court knows of no injunction of other legal process that can command people to think differently.

The fact remains, however, that the atmosphere of racial discrimination and of prejudice was so pervasive and so long continuing in this Department of State Government that the employer must have become conscious of it, yet he took no significant action to correct it, even up until the present time.

There was, therefore, a prima facie case of disparate treatment made out.

Under the law the burden shifts to the defendant to articulate some legitimate or nondiscriminatory reason for the treatment of which the plaintiff complains, and the plaintiff in this case complains essentially of two kinds of treatment. She says that she was transferred from the recruiting position to the mail-room position because of her race, and she says that she was, in effect, constructively discharged from the mail-room position because of her race.

With regard to the demotion or the transfer from recruiter to mail-room clerk, no proof whatever has been offered as to the reason for that action.

This is an unusual case, then, in which the plaintiff must prevail upon her disparate treatment-claim with regard to the termination of her recruiting position simply because the burden of producing evidence on the part of the defendant has not been carried.

With regard to her resignation, the Court finds that it was forced by the racial atmosphere existing in this Department; that she stayed as long as any self-respecting black person could have been expected to stay; and, specifically that a white woman in her position would not have been treated in the same fashion.

On the case as a whole of course, the plaintiff has the burden of persuading the trier of fact. She has done so. The Court finds that she was treated as she was because of her race and that this treatment was deliberate and conscious on the part of the defendant that Title VII has been violated, and that 42 U.S.C. Section 1983 has also been violated.

With regard to relief, the plaintiff is entitled to back pay and to reinstatement. The reinstatement should be to a comparable position. The Court assumes that there will be no retaliation or harassment against the plaintiff or any of the witnesses in this case. Whether it is necessary to put that provision in a decree, the Court has not decided as of now.

With respect to back pay she is entitled to the difference between what she actually earned since October 2, 1974, and what she would have earned had she remained in the recruiting, the higher paid position. It may be that Mrs. Dorothy Hanger is an appropriate yardstick for determining what she would have earned, but the Court is not making a specific finding on that point at this time.

There need to be further submissions by the parties on the points of, Number One, what amount of money plaintiff has earned since October 2, 1974; Number Two, what amount she would have earned had she remained in the recruiting position. In that regard, defendants may be able to show that some other employee is a more comparable person for relevant purposes, and may then agree on a comparable position to which she ought to be reinstated. The plaintiff should make a submission on those questions on or before March 3; the defendants should respond on or before March 13. The monetary awards that will be included in the judgment will, of course, be against the Defendant Jones in his official capacity only and not individually.

The final judgment will also contain an injunction forbidding any future violations of Title VII or Section 1983 by the Military Department either with regard to federal or state employees.

The further submissions of the parties should also address the issue of costs and attorney's fees. Under 42 U.S.C. § 1988, the plaintiff is entitled to recover costs and attorney's fees. The Court, in the exercise of discretion, finds that those costs and fees should be awarded. The amount will depend upon the authorities and the factual showings that I am sure counsel are familiar with. The submission made by the plaintiff on March 3 should include the customary showings with regard to time expended and out-of-pocket costs. The defendants are then at liberty to reply and to show, if they can, that the time was unnecessarily expended or the amount of money claimed as an hourly rate is unreasonably high.

As to the question of further equitable relief, the Court is most reluctant to set quotas for this Department or for any other employer, and would like to avoid it. It is not clear that it can be avoided. This may be a case where that remedy is the only practical recourse in view of the history of this Department. The...