Wells v. North Carolina Bd. of Alcoholic Control, 82-1796

• Decision Date: 08 August 1983
• Docket Number: No. 82-1796,82-1796
• Citation: 714 F.2d 340
• Parties: 46 Fair Empl.Prac.Cas. (BNA) 1766, 32 Empl. Prac. Dec. P 33,765 Nathaniel WELLS and Jerry Allen, individually and on behalf of the class of persons, prospective employees and employees of the Alcoholic Beverage Control Stores of the State of North Carolina and Durham County similarly situated, Appellees, v. The NORTH CAROLINA BOARD OF ALCOHOLIC CONTROL; Marvin Speight, Chairman, the North Carolina Board of Alcoholic Control, individually and in his official capacity; Clark S. Brown, and Zeb D. Alley, members, North Carolina Board of Alcoholic Control, individually and in their capacities, Defendants, and The Durham County Board of Alcoholic Control; C.H. Lewis; L.G. Martin; and Ruth Dailey, members, Durham County Board of Alcoholic Control, individually and in their capacities, Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 340

714 F.2d 340

46 Fair Empl.Prac.Cas. (BNA) 1766,

32 Empl. Prac. Dec. P 33,765

Nathaniel WELLS and Jerry Allen, individually and on behalf

of the class of persons, prospective employees and employees

of the Alcoholic Beverage Control Stores of the State of

North Carolina and Durham County similarly situated, Appellees, v. The NORTH CAROLINA BOARD OF ALCOHOLIC CONTROL; Marvin

Speight, Chairman, the North Carolina Board of Alcoholic

Control, individually and in his official capacity; Clark

S. Brown, and Zeb D. Alley, members, North Carolina Board of

Alcoholic Control, individually and in their capacities, Defendants,

and

The Durham County Board of Alcoholic Control; C.H. Lewis;

L.G. Martin; and Ruth Dailey, members, Durham

County Board of Alcoholic Control,

individually and in their

capacities, Appellants.

No. 82-1796.

United States Court of Appeals, Fourth Circuit.

Argued March 11, 1983.

Decided Aug. 8, 1983.

William V. McPherson, Jr., Durham, N.C., for appellants.

Robert S. Mahler, Durham, N.C. (Thomas F. Loflin, III, Loflin & Loflin, Durham, N.C., on brief), for appellees.

Before WIDENER and PHILLIPS, Circuit Judges, and HAYNSWORTH, Senior Circuit Judge.

HAYNSWORTH, Senior Circuit Judge:

In this Title VII case (42 U.S.C.A. § 2000e, et seq.), the district court found that the defendant, Durham County Board of Alcoholic Control (ABC), had violated the Act by failing to promote Nathaniel Wells to a position of "Sales Clerk" because of his race and in discharging him in retaliation for his having filed complaints of racial discrimination with the EEOC. The court awarded Wells the difference in the pay scale for a Sales Clerk and a "Stock Clerk," the position Wells held from August 1974, when promotion was wrongfully denied, to September 1975 when he left his employment with ABC, plus back pay after that date. The defendant was also ordered to hire Wells for the next available Sales Clerk Position.

The ABC now concedes that discrimination was shown in the failure to promote Wells to a Sales Clerk position, but contests the finding that Wells was constructively terminated in retaliation for his complaints. It thus seeks to avoid the obligation to pay Wells back pay after termination of his employment in September 1975 and to reemploy him into a Sales Clerk position.

We affirm the district court's judgment.

I.

The position of Stock Clerk requires bending and strenuous lifting to move cases of liquor. In contrast, Sales Clerks are primarily responsible for operating the cash register.

Wells had been a full time Stock Clerk at ABC since 1969. He was regarded as a good worker, and in June 1974, he requested consideration for promotion to the position of Sales Clerk. Notwithstanding that request, a few weeks later a white man, who had no previous experience working with ABC, was hired into a position of Sales Clerk. Denial of that promotion to Wells is now conceded to have been racially discriminatory.

In September 1974, Wells injured his back. He returned to his job as Stock Clerk after a two-week absence, but he reinjured his back in June 1975. After having been out for some time, he returned to work but requested a light duty assignment. His physician wrote to Mr. Leathers, the ABC general manager, stating that continued heavy lifting threatened further injury to his patient's back. Nevertheless, equipped with a corset and a neck collar, Wells continued in his employment as a Stock Clerk. Wells required further treatment of his back in September 1975, and his physician again wrote to Leathers saying that Wells should not be required to lift more than ten to fifteen pounds. ...