Woods v. North American Rockwell Corporation, No. 72-1064.

• Decision Date: 25 June 1973
• Docket Number: No. 72-1064.
• Citation: 480 F.2d 644
• Parties: Samuel L. WOODS, Plaintiff-Appellant, v. NORTH AMERICAN ROCKWELL CORPORATION, a corporation, and Local 952, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

480 F.2d 644 (1973)

Samuel L. WOODS, Plaintiff-Appellant, v. NORTH AMERICAN ROCKWELL CORPORATION, a corporation, and Local 952, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), Defendants-Appellees.

No. 72-1064.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted September 23, 1972.

Decided June 25, 1973.

Brenda M. Robinson, Tulsa, Okl. (Goodwin & Goodwin, Tulsa, Okl., on the brief), for plaintiff-appellant.

Charles C. Ivie, Los Angeles, Cal. (Stephen E. Tallent, Los Angeles, Cal., James O. Ellison, of Boone, Ellison & Smith, Tulsa, Okl., and Gibson, Dunn & Crutcher, Los Angeles, Cal., of counsel, on the brief), for defendant-appellee, North American Rockwell Corp.

James E. Youngdahl, Little Rock, Ark. (Youngdahl, Sizemore, Brewer, Forster & Uhlig, Little Rock, Ark., on the brief), for defendant-appellee, International Union.

Before BARNES,^* HOLLOWAY and McWILLIAMS, Circuit Judges.

HOLLOWAY, Circuit Judge.

Plaintiff-appellant Woods, a black worker, brought suit under Title VII of the 1964 Civil Rights Act, 42 U.S.C.A. § 2000e-5, for alleged racial discrimination practiced against him in his employment. The complaint sought damages against the employer, appellee North American Rockwell Corporation (the company) and Local 952, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, U.A.W. (the Union). Equitable relief was also sought for reinstatement of Woods, retroactively at a promotion level, among other things. The complaint alleged that Woods had been denied promotion, had been harassed and mistreated and eventually discharged by the company, all on account of his race. It averred that Woods had requested the union to obtain his reinstatement and charged the union with wrongful discrimination by failing to do so.

The case was tried to the court. At the close of the plaintiff's proof both defendants moved for dismissal of the action under Rule 41(b) F.R.Civ.P. Both motions were granted. An opinion was subsequently filed finding that no racial or other discrimination was shown and an order of dismissal was entered under Rule 41. We conclude that the findings are supported by the record and properly premised the judgment of dismissal, and affirm.

On appeal Woods essentially contends that he sustained his burden of showing discrimination by introducing a test he was made to take. He says that even though he was top man on the seniority list a white man with less seniority was promoted. Woods also argues that he sustained his burden of proof by introducing evidence of incidents of harassment by the company, culminating in his dismissal. In support of his claims against the company Woods relies mainly on Griggs v. Duke Power Co., 401 U. S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158. And he contends that he sustained his burden of proof of discrimination against the union by showing that it failed to process his grievance in accordance with the collective bargaining agreement.

At the outset we must focus on the effect of the trial court's dismissal under Rule 41(b). Woods argues that the dismissal was improper because a prima facie case had been made.¹ However, the ruling was not one granting a directed verdict. In a case tried without a jury, the trial court is not required to consider the evidence in the light most favorable to the plaintiff in determining whether to grant a motion to dismiss under Rule 41 made at the completion of the plaintiff's case. Emerson Electric Co. v. Farmer, 427 F.2d 1082 (5th Cir.); Ellis v. Carter, 328 F.2d 573 (9th Cir.); O'Brien v. Westinghouse Electric Corp., 293 F.2d 1 (3d Cir.); Penn-Texas Corp. v. Morse, 242 F.2d 243 (7th Cir.). In this case the court rendered judgment against the plaintiff at that point and later entered findings as provided in Rule 52(a), as required by Rule 41(b). In such circumstances we must view the findings in the same way as those entered at the close of all the evidence, determining only whether they are clearly erroneous. Simpson v. United States, 454 F.2d 691 (6th Cir.); Weissinger v. United States, 423 F.2d 795, 798 (5th Cir.); B's Co., Inc. v. B. P. Barber & Associates, Inc., 391 F.2d 130 (4th Cir.); Penn-Texas v. Morse, supra.

On the merits we turn first to Woods' argument based on Griggs v. Duke Power Co. There the Supreme Court stated the issue before it thusly, 401 U.S. at 425-426, 91 S.Ct. at 851:

"Whether an employer is prohibited by the Civil Rights Act of 1964, Title VII, from requiring a high school education or passing of a standardized general intelligence test as a condition of employment in or transfer to jobs when (a) neither standard is shown to be significantly related to successful job performance, (b) both requirements operate to disqualify Negroes at a substantially higher rate than white applicants, and (c) the jobs in question formerly had been filled only by white employees as part of a longstanding practice of giving preference to whites."

The Supreme Court concluded that the employer's practice on educational and test requirements was unlawful. The requirement imposed by the statute was stated clearly by the Court, 401 U.S. at 431, 91 S.Ct. at 853:

"What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification."

We are satisfied that the record supports the trial court's findings that no discrimination was shown. The record does show without dispute that a departmental promotion test was given to Woods. And, of course, since the motions to dismiss were granted no showing was undertaken by the defendants that the test was in any way related to the job to which Woods sought promotion. The company admitted in answering interrogatories that none of the questions on the test related to the duties of "Burr Machine Lead Man" which was the position in question. As to seniority, Woods testified that the white employee promoted to the lead man job was employed about a week after Woods was hired, and in the pretrial order it had been stipulated that the white employee had one day less of seniority than Woods.

However there was no proof by Woods that the test given was the basis of his being denied the promotion or his subsequent discharge. And of critical importance under the Civil Rights Act, there was no substantial proof that the test was intended to be used for racial discrimination, nor that it produced such a discriminatory result.² See Griggs, supra at 432, 91 S.Ct. 424. This court has dealt with the burden resting on the plaintiff in Spurlock v. United Airlines, Inc., 475 F.2d 216, 218 (10th Cir.):

"Thus, when a plaintiff is claiming that the criteria used by a company in screening job applicants discriminate against a minority group, he need only establish that the use of such criteria has a discriminatory result. Griggs v. Duke Power Co., supra. It is not necessary to prove a discriminatory intent but only that the discriminatory criteria were used deliberately, not accidentally. Jones v. Lee Way Motor Freight, Inc., 10 Cir., 431 F.2d 245, cert. denied, 401 U.S. 954, 91 S.Ct. 972, 28 L.Ed.2d 237."

See also Cooper v. Allen, 467 F.2d 836, 838 (5th Cir.); Stevenson v. International Paper Company, 352 F.Supp. 230, 249 (S.D.Ala.); cf. Jones v. Lee Way Motor Freight, Inc., 431 F.2d 245, 249 (10th Cir.), cert. denied, 401 U.S. 954, 91 S.Ct. 972, 28 L.Ed.2d 237.

Under these standards the record supports the trial court's finding. Woods' proof did not show that the test operated discriminatorily on the basis of race or color. See Griggs, supra, 401 U.S. at 429, 431, 91 S.Ct. 424. No prima facie case of such discrimination was established as in Spurlock v. United Airlines, Inc., 475 F.2d supra at 218.³ Therefore the company was not called on to show that the test fulfilled a genuine business need and was permissible under § 703(h) of the Act, 42 U.S.C.A. § 2000e-2(h). See Griggs, supra, 401 U.S. at 432, 91 S.Ct. 424. The record amply supports the court's finding that the plaintiff failed to establish that the company engaged in any racially discriminatory employment practice.

Woods also argues that his proof shows that the company failed to maintain an environment free of racial discrimination. He says that the termination of his employment was in reprisal for his having filed a grievance against the company when he was denied the promotion to lead man, and that the company permitted him to be subjected to continuous harassment and discriminatory treatment by his white supervisor.

Woods points to his evidence that he was not given the promotion to lead man, although he had one day more of seniority than the white man who was promoted; that he was fired after he refused several times to sign a lost time card; that he had been given 25 penalty points although he took no longer than others who had done the same job, which points were later admitted to be unjustified and removed; and that he was timed for breaks taken.

Nevertheless Woods' proof established no racial connection with any of the matters complained of. His testimony showed he was fired after refusing to sign the lost time card, following requests to do so on three consecutive days. In his testimony he admitted failing to appear for work for the overtime in question, although he had agreed to do so. And another black witness for Woods testified that he was asked to take...