Brown v. Eckerd Drugs, Inc.

663 F.2d 1268, 27 Fair Empl. Prac. Cas. (BNA) 137, 33 Fed. R. Serv. 2d 181, 1981 U.S. App. LEXIS 16686, 27 Empl. Prac. Dec. (CCH) 32,200
CourtCourt of Appeals for the Fourth Circuit
DecidedOctober 21, 1981
DocketNo. 79-1821
StatusPublished
Cited by29 cases

This text of 663 F.2d 1268 (Brown v. Eckerd Drugs, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. Eckerd Drugs, Inc., 663 F.2d 1268, 27 Fair Empl. Prac. Cas. (BNA) 137, 33 Fed. R. Serv. 2d 181, 1981 U.S. App. LEXIS 16686, 27 Empl. Prac. Dec. (CCH) 32,200 (4th Cir. 1981).

Opinions

MURNAGHAN, Circuit Judge:

The present appeal stems from a class action suit filed in May, 1976, by plaintiffs Shirley Brown and Dorothy Black against Eekerd Drugs, Inc., charging discrimination in hiring, firing, promotion, job assignment, and geographical assignment at its Mecklenburg County facilities, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and 42 U.S.C. § 1981. Brown and Black complained, in addition to their class allegations, that each had been discriminatorily terminated. Although the class initially included rejected applicants for employment, as well as past and present employees, the district court, after our decision in Hill v. Western Electric Co., Inc., 596 F.2d 99 (4th Cir. 1979), cert. denied, 444 U.S. 929, 100 S.Ct. 271, 62 L.Ed.2d 186 (1979), excluded applicants from the class. After trial, Almetta Ivey, a member of the original class who had testified at trial that she was discriminatorily demoted from a supervisory position, was permitted to intervene as a named plaintiff. After further modification, the class ultimately was defined as past and present employees who claimed that the defendant discriminated on the basis of race in connection with promotion or transfer to management and supervisory positions in the defendant’s Mecklenburg facilities.

On the merits, the lower court found that the Company discriminated against the plaintiffs and their class. In addition, Brown and Ivey prevailed on their individual claims. Plaintiff Black, however, failed.1 Accordingly, the court granted reinstate[1270]*1270ment and backpay to Brown and Ivey and enjoined those promotion and transfer practices found to discriminate against minorities. On appeal, the defendant contends that the original plaintiffs had no “standing” to represent a class concerning claims other than discriminatory discharge; that the district court erroneously permitted class member Ivey to intervene as a named plaintiff a year after trial; and that the individual and class claims of discrimination were not proved. On each issue we affirm the judgment of the district court.

Eckerd Drugs, Inc. and its successors (“Eckerd”) have operated several retail stores and a warehouse from corporate offices in Mecklenburg County, North Carolina. The main office employs clerical, professional and management workers. The retail stores are run by a store manager and assistant manager, pharmacist, fountain manager, fountain personnel and sales personnel. The store managers report to district managers who are responsible for various stores. The work force at the warehouse, located in the same facility as the main office, includes stockers, receiving and shipping clerks, checkers, and forklift and truck drivers.

The district court found that Eckerd’s promotion and transfer policies, utilized at all facilities, were few: Eckerd maintained no job descriptions for supervisory positions, nor had it posted notices of managerial vacancies until 1978. There were no formal lines of progression into management or supervisory jobs. No written criteria have been utilized to determine the qualifications of a person to fill supervisory vacancies and the management representatives responsible for filling such positions, nearly all of whom are white, have had virtually complete discretion to fill the spots. Employees were evaluated only irregularly arid evaluation has been undertaken from memory without benefit of written criteria. A “word of mouth” system has been employed to notify employees of supervisory vacancies in other facilities. Before 1976, most supervisory personnel were white,2 despite an employee work force composed of 14% blacks (34% blacks in the retail stores).

In September, 1974, plaintiff Shirley Brown was employed as a keypunch operator in the main office. In June, 1975, she left her job after several incidents evidencing racial bias. Plaintiff Dorothy Black, hired to work in a retail store, and subsequently promoted to fountain manager, was fired in 1975. Intervenor Ivey was hired in 1969 to work in the main office. From 1975 until 1977 she supervised the third party receivables department. In June of 1977, she was demoted after training a white supervisor to take her place.

I.

Eckerd first contends that Brown failed to prove that she was discriminatorily discharged, and that Ivey did not show that she was discriminatorily demoted from a supervisory role. We have carefully examined the factual findings of the district court with respect to Brown and Ivey. Had we been sitting as the trial court, we might well have been inclined to find that Brown and Ivey did not sustain their burden of persuasion. On appeal, however, our function is the very restricted one of determining whether the district court’s determination was clearly erroneous. Where there are conflicts in the testimony, we have kept in mind that the district court is in the best position to evaluate the witnesses’ credibility and resolve the conflicts. Upon examination of the evidence as a whole3 and of [1271]*1271the district court’s findings of fact and law, we are not “left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum, 333 U.S. 364, 395, 68 S.Ct. 525, 541, 92 L.Ed. 746 (1948). We therefore affirm the judgments as to the individual claims.

The proper approach was outlined by the Supreme Court in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Burdine reaffirmed the doctrine that when a Title VII plaintiff has established a prima facie case, the burden of production, but not persuasion, shifts to the employer, who must show some legitimate, nondiscriminatory reason for the employment decision. Should the employer make that showing, the plaintiff, in order to prevail, has the burden of persuading the trier of fact that the employer’s proffered reason was pretextual. The Court further stated that, once the employer has successfully rebutted the plaintiff’s prima facie case, the evidence previously introduced by the plaintiff can be considered by the trier of fact on the issue of whether the employer’s explanation is pretextual. In fact, “there may be some cases where the plaintiff’s initial evidence, combined with effective cross-examination of the defendant, will suffice to discredit the defendant’s explanation.” Id., at 255 n.10, 101 S.Ct. at 1095 n.10.

Having set forth briefly the applicable law, we now discuss in turn the Ivey and Brown claims.

A. Ivey Claim

Ms. Ivey was first hired by the defendant in 1969 as an accounts payable clerk in its main office. At that time she was the only black employee in a supervisory position. In April, 1976, she was appointed supervisor of a new department, third party receivables. Both the plaintiff’s prima facie case and the defendant’s rebuttal rely on the details of her occupation of that position until she was replaced by a white woman in June, 1977.

Ms.

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663 F.2d 1268, 27 Fair Empl. Prac. Cas. (BNA) 137, 33 Fed. R. Serv. 2d 181, 1981 U.S. App. LEXIS 16686, 27 Empl. Prac. Dec. (CCH) 32,200, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-eckerd-drugs-inc-ca4-1981.