48 Fair empl.prac.cas. 282, 40 Empl. Prac. Dec. P 36,107 Melba J. Taylor v. Hudson Pulp and Paper Corporation

788 F.2d 1455, 1986 U.S. App. LEXIS 25021, 40 Empl. Prac. Dec. (CCH) 36,107, 48 Fair Empl. Prac. Cas. (BNA) 282

• Court: Court of Appeals for the Eleventh Circuit
• Decided: May 9, 1986
• Docket: 84-3596
• Status: Published

Opinions

HILL, Circuit Judge:

FACTS

This appeal arises from the district court’s grant of appellees’ Fed.R.Civ.P. Rule 41(b) motion to dismiss appellants’ claim on the grounds that they failed to establish a prima facie case of sex discrimination under Title VII, 42 U.S.C. § 2000e et seq. The appellants, Melba Taylor Knowles, Jessie Mathews, Vivian Earls, Gertrude Burroughs, Delphine Carter, and Carrie Branham, are six female former and present employees of the Hudson Pulp and Paper Corporation’s [hereinafter “Hudson”] Palatka, Florida converting plant who allege they have been denied promotions and transfers within the plant because of their sex. Appellees, Hudson and various employee unions, deny that any employment discrimination has taken place within the actionable period and instead contend that they have attempted to remedy the effects of any previous discrimination by actively encouraging females to enter jobs traditionally held by males.

Because of the nature of this case, some elaboration on the organization of the mill is necessary. The facility, which employs approximately 1500 people, is divided into various departments. Within these departments jobs are often organized in lines of progression, such that there is a designated sequence of related jobs arranged in ascending order of skills. When a vacancy occurs at a given level in a line of progression, the employee in the same line of progression with the highest job seniority in the level below the vacancy qualifies for the opening.

At the time of the suit giving rise to this appeal, only two departments in the plant, the grocery bag department and the tissue converting department, had a significant number of women employees. There also existed uneven distribution of men and women among the separate lines of progression within these two departments. Of particular importance in this case, the catcher quality line of progression within the grocery bag department had no men and 117 women while the machine line of progression in that department had 36 men and no women.¹ Although the entry level jobs in the catcher quality and machine lines paid approximately the same, there was much greater potential to advance to a higher paying job in the machine line.

All six appellants worked in the multi-wall department until 1970. In mid-1970, all the employees in the multi-wall department were laid off and given the option of applying for temporary and permanent assignments in other areas of the mill. Under the transfer procedure set forth under the collective bargaining agreement in effect at the time of the multi-wall department closing, as well as during the actionable period, an employee seeking transfer to another department submitted a written request to the personnel department. It was not required that a vacancy in the job desired exist at the time of the request. When a vacancy occurred, the employee who had submitted a transfer request, was minimally qualified, and had the greatest mill seniority was offered the position. Appellants contend that they and other women were told at the time of the multi-wall layoffs that their only options of transfer were the grocery bag department and the tissue converting department. In any event, each appellant requested and was granted a transfer to the position of bag catcher in the grocery bag department pursuant to the transfer procedure outlined above.

Effective June 1, 1974, a collective bargaining agreement was entered into which merged the two lines of progression in the grocery bag department and made all job titles gender neutral. This agreement was the one in effect during the charge-filing period. As a result of the merger, bag catchers could either (1) move up through the catcher quality line; or (2) transfer to the machine line above the position of chute loader. Thus, women employees could move up through the latter line of progression without having to work at the entry level position of chute loader. This action apparently was an effort to remove any barrier that the entry level position of chute loader, with its possibly prohibitive physical demands, created to women desiring to move into the machine line of progression.

In 1975 and early 1976, Hudson and the various employee unions negotiated two major changes in the 1974-77 collective bargaining agreement. The first, tentatively agreed to on January 23, 1976 and known as the “Amended Seniority Agreement,” applied to all employees and served to abolish departmental seniority, leaving only job and mill seniority, rearrange lines of progression, and establish a transfer system whereby vacancies were posted and bid for at the time they occurred. The second agreement, known as “Special Seniority Procedures,” was tentatively agreed to on March 25, 1976 and revised on April 22, 1976. It afforded significant preferential rights to black and female employees (labelled “designates”) hired prior to the effective date of Title VII. Among these preferential rights were (1) the right to pre-bid for an entry level job when it was first posted within a department rather than waiting on the job to be posted mill-wide; (2) the right to transfer their mill seniority with them to their new positions, so that incumbent employees could not invoke their greater job seniority against these designates with respect to future transfers, advancements, recalls, etc.; and (3) the ability to retain their same rates of pay if they transferred to lower paying jobs until they were promoted within their new departments or lines of progression to higher paying jobs. Both agreements were signed on July 20, 1976 and became effective as of October 18, 1976. Hudson and the various unions began briefing designates as to their rights on or about September 7, 1976.

On September 30, 1976, appellants filed substantially similar charges with the EEOC asserting they were denied promotions within the grocery bag department and transfers to other departments because of their sex. As only claims arising within 180 days prior to filing of charges with the EEOC are actionable, United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977), the applicable charge-filing period within which appellants had to show acts of discrimination which injured them extended from April 3, 1976 to September 30, 1976. Specifically, each appellant alleged that she was allowed to transfer in 1970 only to a traditionally female job in the grocery bag department or tissue converting department and that because of the loss of her multi-wall seniority she was frequently laid off instead of male employees who had greater department seniority but less mill seniority. Five appellants also complained that there were specified jobs in the pulp mill which they could perform but that they could not take such jobs without losing their departmental seniority and risking unacceptable layoffs and that they were discouraged from moving up the line of progression to machine operator and above in the grocery bag department because they first had to work as a chute loader, a position which required the lifting of bales that were too heavy for most women to lift.

The EEOC processed appellants’ charges and issued right to sue letters on May 13, 1977. Appellants then filed a class action complaint on behalf of all past, present, and future employees of Hudson on June 24, 1977. On May 2, 1979, after repeated changes of counsel, appellants filed their motion to certify the class, which was denied as untimely on December 16, 1983. The case was tried without a jury. At the conclusion of appellants’ evidence, appel-lees moved to dismiss the action pursuant to Fed.R.Civ.P. 41(b), contending that appellants failed to establish a prima facie case of sex discrimination. The district court granted the motion. This appeal arises from that action by the district court.

DISCUSSION

We examine initially appellants’ contention that the district court erroneously ruled that appellants failed to establish a prima facie case of Title VII sex discrimination. In order to establish such discrimination, a plaintiff must demonstrate: (1) that she belongs to a protected minority; (2) that she applied for and was qualified for a job for which the employer was seeking applicants; (3) that she was rejected; and (4) that the employer continued to seek applications from persons with similar qualifications. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973); Perryman v. Johnson Products Co., Inc., 698 F.2d 1138, 1141 (11th Cir.1983). The district court determined that the appellants failed to prove that they applied and were rejected for vacancies for which they were qualified, that such vacancies existed, and assuming such vacancies existed that they were given to less qualified persons of the opposite sex. As such, the district court held that the appellants failed to establish a prima facie case. A district court’s finding of fact will be reversed only if it is clearly erroneous, leaving the reviewing court with the definite and firm conviction that a mistake has been committed. Maddox v. Clayton, 764 F.2d 1539, 1545 (11th Cir.1985). After a thorough examination of the record, we cannot conclude that the district court’s finding is clearly erroneous.

We note initially that none of the appellants requested a transfer and was rejected during the 180 day charge-filing period established by the district court as extending from April 3, 1976 to September 30, 1976. Appellants assert that this is not fatal to their prima facie case as they refrained from applying for such transfers because of a justifiable belief that such requests would have been futile in light of Hudson’s past discriminatory practices. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 368-71, 97 S.Ct. 1843, 1871-72, 52 L.Ed.2d 396 (1977); James v. Stockham Valves & Fittings Co., 559 F.2d 310, 334 (5th Cir.1977), cert. denied, 434 U.S. 1034, 98 S.Ct. 767, 54 L.Ed.2d 781 (1978). Considerable evidence exists, however, that by the onset of the actionable period Hudson had abandoned any alleged discriminatory practices, was undertaking to remedy the effects of past practices, and that appellants were aware Hudson was in fact actively encouraging women to apply for positions which had previously been occupied exclusively by men.

The seniority agreements signed in July of 1976 afforded substantial preferential rights to blacks and women and involved extensive negotiations encompassing 1975 and early 1976. It is a reasonable inference that prolonged negotiations on such a sensitive issue would have created considerable controversy among the predominately male work force. In fact, the affidavit of appellant Knowles acknowledged that widespread hostility existed during the period the designate seniority was discussed and negotiated. Further, appellants were quite active in the union and attended numerous union meetings during the period the negotiations took place and at which these negotiations were discussed. Additionally, it is quite possible that appellants delayed requesting the transfer not because of any alleged past discriminatory practices on the part of Hudson, but rather so that they could take advantage of preferential seniority benefits afforded them pursuant to the seniority agreements of 1976. Sufficient evidence exists to create a credibility issue as to appellant’s assertion that they were unaware of the seniority provisions until these provisions were discussed with the employees in September of 1976.

Other evidence further discounts the futility defense. In January of 1974, the company published in its monthly company newspaper an article entitled “Hey Lady, Wanna Be a Welder” which strongly encouraged women to transfer to jobs previously held by men.² Though appellants all denied that they had read or even heard of the article, four appellants did admit to having either received regularly, read, or seen other issues of the newspaper, and Mary Hilton, a witness for appellants at trial and one of their fellow coworkers, testified on direct that she not only read the article but that it left a definite impression upon her. The June 1974 collective bargaining agreement rendered all job titles gender neutral as well as merged the lines of progression in the grocery bag department so that women employees could enter and advance in the machine line yet avoid what had previously been the physically prohibitive entry level position of chute loader. Between 1974 and shortly after commencement of the charge-filing period at least five women requested and received transfers to jobs traditionally held by men.³ Evidence was introduced that one or more of the appellants knew each of the women. One of the women, Arta Mae Choate, had worked with appellants in the grocery bag department while another of the transferring women, Diane Suckow, was the step-daughter of appellant Knowles. Knowles’ husband worked as an instrument mechanic in the mill, a position which enabled him to witness job changes throughout the plant and thus may have afforded him an opportunity to see one or more of these transfers. Moreover, it is reasonable to infer that had the cloud of discriminatory practices hung as heavily over the Hudson facility as appellants allege, any transfer of a female into a traditionally male position would have invoked considerable notoriety.

Also, it is also not entirely clear that appellants would have been willing to give up their departmental seniority and risk possible layoffs for the new positions. The known prospect of discriminatory rejection shows only that employees who wanted particular jobs may have been deterred from applying for them. It does not show which of the applicants actually wanted such jobs. International Brotherhood of Teamsters v. United States, 431 U.S. at 369, 97 S.Ct. at 1871. Appellants have not identified jobs which they actually wanted or expressed an interest in during the charge-filing period. Rather, they ask the court to assume they would have requested and received the jobs for which they subsequently pre-bid when Hudson implemented the preferential special seniority procedures. A nonapplicant’s willingness to transfer into a position does not confirm her past desire for the job. Until the 1976 agreements an employee transferring to a different line would have been forced to forfeit her departmental seniority, so that she would be placed at the bottom of the seniority ladder with respect to the new line. This policy applied equally to men and women. Appellants asserted in their EEOC charges that they could not transfer to other jobs because such transfers would entail a loss of departmental seniority and the risk of unacceptable layoffs. Evidence thus exists that appellants delayed any contemplated requests for transfers not because of the prospect of discriminatory rejections, but rather because of the unattractive policy of loss of departmental seniority upon transfers to another line.

Regarding alleged denial of promotions within the grocery bag department, appellants introduced evidence that their failures to apply for such promotions when positions became available are irrelevant as the promotional procedures established by the collective bargaining agreement and company practice provided that upon the occurrence of such a vacancy the employee with the highest job seniority in that line of progression was offered the position and in fact was required to sign a waiver if she did not want the promotion. Thus, rather than the employee approaching the employer, as was the case with the transfer procedure, in the promotional context the employer approached the employee. Even were we to find this the case, appellants still failed to establish a prima facie case of sex discrimination as substantial evidence exists that within the department no vacancy occurred for which any appellants were the most qualified. Although appellants allege that seventeen males junior to them in seniority were promoted to baler positions in the grocery bag department during the charge-filing period, it appears each of these males in fact had occupied a baler job on a temporary basis since 1975. As those with temporary status were pursuant to the collective bargaining agreement entitled to the first permanent opening, no promotion vacancies in fact occurred for which appellants were most qualified. We recognize that appellants point to evidence indicating that two of the seventeen males had temporary status in positions other than baler. They in turn contend that this supported their allegation that promotional vacancies occurred which were filled by males less qualified than appellants. Taking the evidence regarding this issue on the whole, the district court’s finding on this issue was not clearly erroneous.

We are not unaware of evidence presented at trial indicating that Hudson continued its discriminatory practices through the actionable period or that even were such practices discontinued, appellants retained a justified belief that such practices remained in effect. Howell Gordon, a shift supervisor in the grocery bag department from 1962 until late December 1976, testified that irrespective of the 1974 collective bargaining agreement merging the lines of progression in the grocery bag department the practice of assigning only women to the catcher quality line and only men to the machine line continued. Further, jobs continued to be posted under the heading “women’s work schedule” and “men’s work schedule.” Appellants introduced at trial a statistical analysis of the company’s work force as of 1980 indicating that 13 production and maintenance departments still had exclusively male permanent employees. Of the 1,073 permanent hourly employees in all departments, over 80 percent were men. An expert witness testified that the probability of the observed distribution of men and women by department occurring at random was only one chance in 10,000.

However, upon a thorough examination of the record and review of the testimony, we cannot conclude that the district court’s findings were clearly erroneous. Much of the evidence upon which appellants relied pertained to conduct occurring prior to the actionable period or was merely the effects of discrimination practiced before the actionable period and which Hudson was actively attempting to correct. Regarding the statistical evidence introduced at trial and the expert testimony regarding that evidence, it is important to note that this statistical evidence represents merely a snapshot of the work force as it existed in 1980, and ignores the effect that the decrease in the total work force due to economic conditions had upon Hudson’s ability to intergrate women into positions previously traditionally male. In other words, as the total work force was decreasing, vacancies which could be filled by women seldom became available. Considerable evidence has been presented both that Hudson had abandoned any alleged discriminatory practices long before the onset of the actionable period and that appellants were not deterred from seeking transfers or promotions by the threat of discriminatory rejection. As to any conflicting evidence and testimony, where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous. Anderson v. Bessemer City, — U.S.-, 105 S.Ct. 1504, 1512, 84 L.Ed.2d 518 (1985).

While it may be and is clear that a nonapplicant may establish a prima facie case by showing that due to the employer’s discriminatory practices the application would have been a futile gesture, the evidence presented in this case fully authorized the district judge to find that no such futility existed here. Indeed, the evidence is overwhelming that an application for transfer would not have been futile; such applications for transfer were actively solicited by the appellees and, when received, were granted.

Title VII states an important public policy of this nation. Where practices of employer units have not been in accordance with that policy, it is in the public interest that the former practice be speedily corrected. Discrimination in employment denies the members of a class their employment and promotional opportunities, providing only the opportunity to the class members and their counsel to sue. Compliance with the law expressed in Title VII and the national policy there represented affords all employees proper employment and advancement opportunities while eliminating such opportunities as may be represented by the rights of class members and their attorneys to sue. The federal courts do not have such affection for litigation that we ought to chill bona fide and constructive measures on the part of employers to abide the national policy lest their employees be thereby denied the opportunity to litigate and the courts be denied the opportunity to adjudicate. If the appellants in this action perceive litigation as a great benefit, the evidence supports the district judge’s finding that, by the time they proceeded, the appellees had substituted the benefits of fair nondiscriminatory practices for what once may have been the benefit of a lawsuit. For these reasons we affirm the ruling of the district court that appellants failed to establish a prima facie case of sex discrimination.

Appellants raise a number of other contentions of error in their appeal. However, due to the disposition of the previous issue, it is unnecessary for us to examine these other alleged errors. Therefore, the decision of the district court is

AFFIRMED.

Appellants have also submitted a motion requesting that they be allowed to supplement the record on appeal. As this new material concerns an issue which we need not address in light of our disposition of the case, the motion is

DENIED.

1 . Employees in the catcher quality line of progression advanced from bag catcher to either machine inspector relief or sample maker. Employees in the machine line of progression advanced from chute man to baler, to machine operator, and then to other jobs such as printer, molder, and oiler. The 1973 wage for Bag Catcher was $3.75 an hour for the first year and $3,755 thereafter. The rate for Sample Maker and Machine Inspector Relief was $3,955 an hour. The rate for Chuteman and Clean-up Man was the same as the rate for Bag Catcher, and the rate for Brokeman and for Baler during the first five weeks was the same as for Bag Catchers after one year. After five weeks, Balers received $3.93 an hour, and after four years they received $3,985 an hour. Balers could be promoted to Machine Operator ($4.20 to $4.33 an hour) or to Pasteman ($4.18 to $4.49 an hour). Machine Operators could be promoted to Oiler ($4.39 an hour), to Head Baler ($4.54 an hour), to the Printer-Molder line ($4.38 to $5.18 an hour), or to the Adjuster line ($4.38 to $5.69 an hour).

2 . The article provided in part:

[W]hat about discrimination because of sex? If a woman wants to be a welder, or wants to work on the craft paper machines or wants to try the tow-motor and load boxcars in one of the Shipping Departments, can she do it? Absolutely! All she has to do is put in a trans-fer____ After all, women proved they could weld during World War II right here close at home at the shipyards in Jacksonville. Similarly, if a woman is capable and willing to start out on the broke meters she then has the opportunity to work toward a machine tender. If she is willing to work in the lime kilns she can then be on the road to becoming a digester cook. This is the same route that the men take.

So what about it ladies? You know a gal doesn’t have to be a bra-burning women’s libber in order to want to do something beside catch bags or napkins or pound a typewriter for eight hours. She just might be able to load that box car as good as any man; after all the tow-motor does most of the work. And if this is what she wants and if she can do the job, why shouldn’t she be given the opportunity?

3 . In May, 1974, Phyllis Smith transferred from tissue converting to the laboratory as a craft pulp tester, receiving temporary seniority. She became permanent in May of 1975. In October, 1974, Arta Mae Choate transferred from the grocery bag department, in which appellants were then working, to the position of store issues clerk on a temporary seniority basis. She became permanent prior to July 20, 1976. On August 25, 1975, Virginia Shepherd transferred to store issues clerk on a temporary basis and became permanent in 1979. On April 12, 1976, Diane Suckow, appellant Knowles’ step-daughter, transferred to the wood receiving department as a wood checker. On April 19, 1976, Mary May transferred to the laboratory as a craft pulp tester.