Winfrey v. Metropolitan Utilities Dist.

• Decision Date: 06 March 1979
• Docket Number: No. CIV. 77-0-225.,CIV. 77-0-225.
• Citation: 467 F. Supp. 56
• Parties: Johnny WINFREY, plaintiff, v. METROPOLITAN UTILITIES DISTRICT, a Municipal Corporation, Defendant.
• Court: U.S. District Court — District of Nebraska

467 F. Supp. 56

Johnny WINFREY, plaintiff, v. METROPOLITAN UTILITIES DISTRICT, a Municipal Corporation, Defendant.

No. CIV. 77-0-225.

United States District Court, D. Nebraska.

March 6, 1979.

Benjamin Wall, Mary Kay Green, Omaha, Neb., for plaintiff.

C. S. Brubaker, W. L. Strong, Merlin E. Remmenga, Omaha, Neb., for defendant.

MEMORANDUM OPINION

SCHATZ, District Judge.

This civil rights action alleges that the defendant, Metropolitan Utilities District, Omaha, Nebraska (hereinafter MUD), discriminated against the plaintiff, Johnny E. Winfrey, a black man. This matter is brought pursuant to Title VII, Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and 42 U.S.C. § 1981, and the Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. The case was filed on July 18, 1977, and the matter was tried to the Court without a jury. The following represents the Court's findings of fact and conclusions of law in accordance with Rule 52(a) of the Federal Rules of Civil Procedure.

Plaintiff has alleged that MUD discriminated against him as a meter reader in the following manner:

1) By consistently assigning the plaintiff to routes that whites are not assigned to, requiring more work and involving greater hardship than other routes, which has detrimentally affected his health.

2) By refusing to promote plaintiff to the position of re-read at a higher salary to which he is entitled by seniority.

3) By defendant allowing plaintiff's supervisor to harass the plaintiff with derogatory racial epithets.

4) By refusing to process his vouchers and papers to take advanced education.

The plaintiff filed several complaints with the Human Relations Board of Omaha, the Nebraska Equal Opportunities Commission, and the Equal Employment Opportunity Commission. A right-to-sue letter was issued on June 17, 1977. This suit was brought within ninety (90) days on July 18, 1977. Mr. Winfrey prays for relief, exemplary and compensatory damages, back pay and promotion in addition to costs and attorney fees.

The facts are these. MUD is a municipal corporation serving the metropolitan area of Omaha and environs with natural gas and water. Consumption of gas and water is measured by meters at the location of all customers. MUD has divided the metropolitan area of the city into seven hundred walking meter reading routes. These are grouped into twenty-one meter reading districts. Each route is designed to be read in one day and contains approximately three hundred thirty meters. There are, however, significant variations in the actual number of meters per route, depending on such facts as the distance between meters and whether meters can be read without entering the building or home. A meter reader will read approximately two hundred forty-three routes per year.

MUD tallies the number of reading errors and the number of "skips" made by each meter reader. Errors occur when a meter is read incorrectly. A "skip" arises when a meter is not read at all. There can be several reasons for a skip: if the customer is not home or does not admit the meter reader, the location will be skipped; if the meter reader does not make sufficient effort to gain a response from the customer and is not allowed to enter the house; if the meter reader intentionally bypasses a home or building; or if physical obstacles prevent access to the meters. If the meters are on the outside of the house, as is often the case with newer homes and buildings, meter readers normally have very few skips.

The routes in the near north side of Omaha (approximately the area between Cuming and Fort Street, and from Sixteenth to Thirtieth Street) present difficulties for meter readers. The homes in this area are older, some having unfinished dirt cellars with poor or non-existent lighting. In addition, such neighborhoods are populated by poorer families wherein both spouses are wage earners and, consequently, not at home during the day to allow a meter reader to enter the home. Plaintiff read the following number of routes in the near north side: in 1969 (only four months) — forty routes; 1970 — one hundred sixty-six routes; 1971 — one hundred twenty-seven routes; 1972 — one hundred thirty-five routes; 1973 — eighty-five routes; 1974 — thirty-nine routes; 1975 — twenty-four routes; 1976 — twenty-three routes; 1977 — twenty-four routes. When these figures are compared with the total number of routes that could be read in a year, two hundred forty-three routes, it is clear that prior to 1973, plaintiff was assigned to the near north side routes over one-half of the time. In addition, the evidence in the case established that other black meter readers had equally high percentages of routes in the near north side at that time. There is no evidence indicating how the remaining routes in the near north side were divided among white meter readers.

In September, 1973, plaintiff, along with two other black meter readers, Arnold Ewing and Hobart Johnson, met with three MUD supervisors, Curtis Jensen, general supervisor, Earl Larson, supervisor of meter reading, and Harold Higgins, field foreman, to complain about route assignments. The black meter readers felt that they were being assigned a disproportionate number of routes in the near north side, a practice which was unfair since the near north side routes were less desirable and more difficult than routes in other areas of the city. They proposed that meter readers be assigned routes in all areas of the district in equal proportions. The MUD supervisors did not agree that the near north side routes were more difficult and less desirable, but agreed nevertheless to redistribute routes in the manner proposed by the black meter readers. MUD began to implement the policy on October 3, 1973. Due to the large number of routes and MUD's practice of reassigning routes to new readers each six months, the changeover could not be effected over night. Nevertheless, the evidence is clear that by early 1974, the routes had been redistributed.

In 1974, plaintiff, Arnold Ewing and a Nebraska state senator, Ernest Chambers, met with MUD supervisory personnel to discuss MUD employment practices and in particular, the promotion of black employees within the company. Shortly after this meeting, Arnold Ewing was promoted to the collection department.

Plaintiff argued that MUD's policy of assigning him as a black meter reader to the north side has detrimentally affected his chances for promotion and pay increases and has affected his health. Plaintiff contended that the near north side routes necessarily resulted in a higher skip percentage and error rate for readers with those routes: there are a higher proportion of vacant homes or homes where both spouses are working during the day precluding meter readers from entering homes, thereby resulting in a "skip;" the homes in the near north side are older and often have unfinished dirt cellars and poor lighting, making it difficult to see and causing reading errors. Plaintiff argued that his error rate and skip percentage was higher because of his near north side routes and consequently, he had been denied promotion and salary increases.

Plaintiff was denied salary increases on two occasions during his employment with MUD. On both occasions, each occurring in 1970, he was denied a raise because of his excessive skip percentage and reading errors. On these occasions, plaintiff's skip percentage was not only higher than the average skip percentage for all meter readers, but was higher than the average skip percentage for black meter readers who also read routes predominantly in the near north side. If the skip percentage was a result of the nature of the near north side routes, plaintiff's skip percentage should not have been higher than the skip percentages of the other meter readers in the near north side. The MUD records introduced by the plaintiff indicate that plaintiff's error rate during this period was highly erratic, ranging from two hundred thirty-nine meters read per error for one month, to eight hundred four meters read per error for another month.

Also in evidence are charts comparing average annual skip percentages and error rates from 1970 to 1977 for plaintiff, the division as a whole, all black meter readers and all white meter readers. Plaintiff's skip percentage increased over the years: his skip percentage was lower during the years when he had a high proportion of routes on the near north side than during the time when he had an equal distribution of routes throughout the city. The chart indicates that all skip percentages increased from 1970 to 1977, but plaintiff's...