Employment Practices Decisions Archive: 1937 - 1995, EMPLOYMENT-PRACTICES 8 EPD ¶9523, Richard D. Culp, Plaintiff v. General American Transportation Corporation, Defendant., (May 23, 1974), (May 23, 1974)
Richard D. Culp, Plaintiff v. General American Transportation Corporation, Defendant.
United States District Court, Northern District of Ohio, Eastern Division. No. C 72-101 Y, May 23, 1974
Title VII--Civil Rights Act of 1964
Racial Discrimination--Layoffs--Negro Foreman--Release for Lack of Work--Improper and Inadequate Standards--Remedy.
--Layoff of a Negro foreman for lack of work was found to be racially motivated where the foreman made a prima facie showing of racial discrimination which was not rebutted by proof of non-discriminatory reasons for the employer’s action. A system of determining layoffs based on a subjective test without definitive guidelines was found to use improper and inadequate standards and to be racially discriminatory in effect. Evidence also showed that the practice of submitting proposed layoffs to a general group of supervisors to review the recommendations was racially motivated as applied to the Negro foreman. The foreman was to be awarded lost wages, medical expenses and attorney fees incurred as the result of his improper layoff. 42 U.S.C. Sec. 2000e .
Back reference.-- ¶1230.
Memorandum Opinion and Order
CONTIE, JR., D.J.: The complaint indicates that plaintiff is a Negro citizen of the United States. He was first employed by the defendant company in 1962, and in 1966 was appointed a foreman for said company. On March 31, 1971, the plaintiff was laid off due to alleged reductions of work force. Plaintiff was subsequently offered employment with the defendant as a laborer, on May 21, 1971, which job he did not accept.
The plaintiff alleges that discriminatory practices were exercised by the defendant company in releasing him from work, and further alleges that individuals of less ability and seniority who were laid off as foremen were offered comparable employment with the defendant company, and said individuals were Caucasians. Plaintiff prays for injunctive relief enjoining the discriminatory practices by the defendant and prays that he be granted back pay and other expenses incurred and be awarded punitive damages and reasonable attorney fees.
The following shall constitute this Court’s findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.
Jurisdiction
The within action is instituted pursuant to Title VII, the Act of Congress known as the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq.
The Court finds that the plaintiff has complied with the jurisdictional requirements in that within 210 days of the occurrences alleged in the complaint the plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission, and that on December 16, 1971, the Equal Employment Opportunity Commission served notice on the plaintiff that he had the right to institute an action in the United States District Court within 30 days of the receipt of said notification, and the plaintiff commenced his action accordingly. The Court, therefore, finds that it has jurisdiction of the within action.
Review of the Evidence
The evidence indicated that the defendant company had a plant facility located at Masury, Ohio, which currently employs 1200 individuals. The maximum employment over the period of years has been 1800 to 1900 individuals, and the minimum employment has been 700 to 800 individuals. The Masury Plant manufactures tank cars for railroads and is located in the Shenango Valley, of which the black citizens comprise approximately 6% of the population.
The evidence indicates that plaintiff attempted to obtain employment with the defendant company prior to 1962, but the defendant company herein would not give him an application to complete. Plaintiff reported said fact to the Equal Employment Opportunity Commission. He was informed to return to the defendant company and that an application would be offered to him. He subsequently returned to the defendant company and an application was offered and he was employed in 1962. Evidence indicates that at the time of his employment there were only two black employees working for the company, and that at the time he was hired five or six other black employees were also hired.
Plaintiff indicated that he was employed as a laborer and that he subsequently worked on drill press and later became a foam equipment operator.
He was appointed a foreman in the Finishing Department in 1966. It was indicated that there were five steps to processing an applicant to become a foreman and said steps were as follows:
1. An employee had to be recommended by his immediate superior;
2. The employee was interviewed by the general shop supervisor;
3. A written test was completed;
4. The employee was then interviewed by the general staff;
5. The employee then entered into a general training program.
Mr. Culp indicated that he went through this process to become a foreman. After he became a foreman he received several awards, including an award in 1967 as Cowinner of the Bond Drive, an award in 1969 as an Improvement Methods Winner, and a Supervisor’s Award in 1969.
The testimony indicated that plaintiff’s immediate superiors were Sam Rado, who was the General Foreman of the Department, and Mr. Bauer, who was the Night Supervisor. It was indicated that plaintiff worked most of the time on the night shift, which shift commenced in the late afternoon. It was a more difficult shift because engineering personnel were not on duty to assist in the event that technical problems arose during the course of the shift.
In 1970 defendant found itself in a position where it had to lay off personnel in the Finishing Department. The foremen in the Finishing Shop were relieved of their duties in the sequence indicated below, with their overall seniority date and date that said individuals became foremen as indicated:
Date Date Overall |
In 1970 it was reported there were two black foremen working for the defendant company--one was a Bayard Arkard, and the other plaintiff Richard D. Culp.
[Black Hat Incident]
The evidence reveals that in 1970 the Superintendent of another department painted a hard hat “black” and required the foreman of the department whose housekeeping standards were the poorest in the previous 30-day period to wear the hat for the next 30 days. It was indicated that other black employees became offended and reported the same to Mr. Culp who in turn spoke to Mr. Homer who was Manager of Industrial Relations about the policy. Mr. Culp complained that the color of the helmet indicated an inferior status, and reflected upon the status of black people. It was further indicated that Mr. Culp was a member of the Civil Rights Committee together with Mr. Homer and Mr. Torre. The facts indicate that under normal circumstances Supervisors wear white hats.
After plaintiff became a foreman he was evaluated by the company’s Merit Rating and Evaluation System which is and was in 1970 conducted by the company relative to supervisory personnel. Under this system there is an attempt to complete said reports at least every six months. The rating officer of Mr. Culp was Sam Rado, General Foreman.
In the year of 1970, the foremen were informed to look more closely at the ratings given to foremen as it was reported by the company that the Masury Plant had higher ratings for foremen than other General American Transportation Corporation plants. Evidence indicated that in December 1970 Mr. Culp was rated a “0”, whereas his former rating had been a “+3”.
Sam Rado testified that plaintiff would have been rated higher in the 1970 report if it had not been for the “black hat incident”. However, he indicated that the rating would not exceed one point and further indicated that he may have scored plaintiff lower on judgment, attitude and emotional stability as a result of the “black hat incident”.
It was indicated by Mr. Culp that Mr. Homer had informed him that he was acting “too black” over the black hat incident. Mr. Homer, however, stated that he has no recollection of making the statement. However, Sam Rado indicates that he advised Mr. Culp that he was making a mountain out of a molehill, and that when plaintiff had complaints that he should go through channels and should not approach Mr. Homer directly.
Plaintiff indicated that he observed a difference in the attitude of his superiors toward him after the black hat incident. His superiors indicated that the plaintiff’s performance had been going downhill for the last several years.
[Other Incidents of Alleged Bias]
Plaintiff testified to other incidents which he felt illustrated that defendant was discriminating against him. After the black hat incident, plaintiff was stopped by the Plant Guards when he attempted to park in the foremen’s parking lot without the required green sticker on his automobile, which sticker was a permit to park in said lot. He indicated that he had recently purchased a new automobile and that his new car did not have a green sticker thereon. After he was stopped by the guards, he proceeded to park in the non-reserved parking lot. Following this incident and on the same day, he observed the guards at the parking lot and indicated that said guards did not stop five or six other vehicles that did not have the green sticker thereon, including the automobile of Sam Rado. Plaintiff reported this matter to the Assistant Superintendent Mr. Puskar.
Other incidents arose in regards to payment of employees under plaintiff and their parking privileges. Plaintiff indicated that his employees were only paid for one set-up on certain jobs where the other employees were paid for two set-ups in the same jobs and that his employees complained of this. Further, plaintiff was notified that his employees were not to leave during the course of their lunch hour to move their automobiles to points closer to the entrance and exit of the plant parking lot. When plaintiff informed the employees that he had received said instructions, the employees complained that employees of other departments were permitted to move their vehicles on their lunch recess. Plaintiff called this fact to the attention of supervisor, and thereafter other department employees were told that they were required to comply in the same manner in which plaintiff’s employees were ordered to comply.
Plaintiff was informed by Mr. Rado in December of 1970 that he was not being recommended for a pay increase and that there was a possibility that he was devoting too much time to outside activities. The plaintiff then resigned from the Civil Rights Group and resigned all other outside activities except the Hickory Township Committee of which he was Chairman. Plaintiff asserted that Mr. Rado had informed him that people would be checking on him. Mr. Rado denied any such statement.
It was indicated that plaintiff took a sick leave on January 4 of 1971. He became ill and had to be hospitalized for ulcers. He returned to the company on March 28, 1971, and was subsequently laid off due to lack of work. Plaintiff indicated that at first he was denied State Unemployment Compensation, but subsequently was granted such compensation.
The evidence illustrates that plaintiff was senior in total employment and date of appointment as a foreman to Mr. Shemancik, who was not laid off at the time Mr. Culp was laid off and who was still maintained as a foreman. Plaintiff asserts he was more qualified than the remaining foremen who were maintained on the job, with the exception of Dominic Leone.
Sam Rado indicated that the decision to release any foremen, due to lack of work, was made by a group consisting of the Manager of Operations; Mr. Connelly, the General Superintendent and General Foreman of the plant; and some Assistant General Foremen. The procedure was normally that the General Foreman of the Department would make a recommendation and the group would discuss the recommendation and then make its decision. This procedure was followed relative to the layoff of plaintiff. Mr. Rado further indicated that at the meeting that ratings were not available. However, the general employment record was available and Mr. Rado reviewed the merit ratings of plaintiff before attending the meeting. It was indicated by the defendant that in all cases overall plant seniority and ability were the factors taken into consideration in any layoff due to lack of work.
The overall plant seniority of the foremen in the Finish Department is as indicated on page 4 of the within opinion. Various witnesses testified as to the ability of the various foremen as compared to plaintiff. It was indicated by W. C. Weaver, Manager of Operations, that Mr. Shemancik was a superior employee by way of qualifications to plaintiff. Mr. Rado stated that Mr. Shemancik was a more qualified employee than plaintiff and that Mr. Shemancik had a strong desire to learn more about the operation of the company. Mr. Rado further indicated that Mr. Tiza was a superior foreman and was possessed of superior qualifications to plaintiff and that he had a greater knowledge of painting. Mr. Rado further indicated that Mr. Kedrick had superior ability to plaintiff in that he had 20 years experience in welding, and that Mr. Kedrick was the most prepared of all foremen in the Finish Department and was always ready to take on work. Mr. Rado further indicated that Mr. Leone was a superior employee to plaintiff and had an excellent manner of handling people and knowledge of materials and knowledge of shipping. Mr. Rado indicated that Mr. Chomar was a more qualified employee than plaintiff and had extensive knowledge of handling materials and handling people. Further, Mr. Rado indicated that Mr. Joseph was superior to plaintiff in ability and other qualifications, and that plaintiff’s race played no part in his being laid off due to lack of work. Mr. Connelly further testified in behalf of the company that Mr. Shemancik was a superior employee to plaintiff, and Mr. Puskar indicated that Mr. Shemancik, Mr. Joseph, Mr. Chomar, Mr. Leone, Mr. Tiza and Mr. Kedrick had superior ability and qualifications as foremen as compared to plaintiff. Mr. Bauer was consulted in some degree on the Merit Rating of plaintiff, and Mr. Puskar was consulted relative to sequence of layoff.
Testimony indicated that in the six or eight months prior to the layoff plaintiff’s attitude changed and he became more lax relative to safety factors such as not wearing safety shoes and safety glasses. These violations of the company’s safety rules were called to the attention of plaintiff.
Following the layoff, plaintiff was offered a job as a laborer on May 21, 1971, which offer he did not accept. The plaintiff stated as his reason for rejecting the job that he didn’t consider it suitable work”. (T. 217).
It was indicated that the insurance and hospitalization was maintained on plaintiff until December 31, 1971. Plaintiff, following his layoff, went to live with relatives in the Toledo area and went to work as a delivery employee for Christian Brothers in Toledo, and subsequently assumed a position with Inmont Company, Toledo, as a laborer. He indicated that he was employed by Christian Brothers from April of 1972 to September of 1972, and accepted a job as a laborer with Inmont in September of 1972.
Plaintiff indicated that he incurred certain medical expenses as a result of not being covered by hospitalization insurance. He had to borrow money from his sister in order to maintain his family. Plaintiff related he was paid over $2500.00 in unemployment compensation.
It is indicated that in June of 1973, plaintiff was offered a job as a foreman with the defendant company and was told that he had to accept the job by June 20, 1973. The evidence reveals that he did not return to the defendant company as a foreman in response to that offer.
[Testing]
Mr. Wexley, Assistant Professor, University of Akron, a psychology industrial consultant, evaluated the tests used by the defendant company relative to the merit ratings. He indicated that the merit ratings contained several strong points, and that the test uses terms that were defined for the testing person; also the test had bench marks which had been established in the system. However, he indicated that the test had weak points in that the test gave a “halo” effect. Such an effect results in a central tendency error factor because the rater had a tendency to give an average rating to everyone. A further weakness is that all ten dimensions were given equal weight. Even though the test contains bench marks, said bench marks were not sufficiently defined and the graders lacked proper training to evaluate said marks.
Findings of Fact
The parties entered into certain stipulations which are as follows:
1. The date of hire of the plaintiff was May 16, 1962.
2. The date of promotion to foreman was May 2, 1966.
3. The date of his layoff due to lack of work was March 31, 1971;
4. The date the plaintiff refused recall as a laborer and the date his seniority terminated was May 29, 1971.
5. At the time of his release due to lack of work on March 31, 1971, Mr. Culp was a foreman in the Finish Shop.
6. The date of overall seniority--the dates of becoming a foreman and the date of layoff is indicated on plaintiff’s Exhibit No. 18.
At the time of the employment of plaintiff there were several blacks employed by the defendant company, and at the time plaintiff was hired five or six other black employees were also hired.
The Masury Plant of General American Transportation Company was engaged in the business of manufacturing and repairing tank cars. In 1970 the Superintendent of another department, other than the Finish Shop, instituted a policy wherein the foreman of his department whose housekeeping standings were the poorest in the previous 30 days would be compelled to wear a hard hat which was painted black for the ensuing month. Plaintiff complained to Mr. Homer about such a practice, indicating that under the circumstances black was being used as a symbol of inferiority, and indicated that he and other employees did not favor and were offended by the use of such a system.
The evidence illustrates that plaintiff was denied access to the foremen’s parking lot when he did not comply with the company rules relative to having the appropriate sticker in the windshield of his car to gain admittance. At the same time, other foremen without such a sticker were permitted to enter and use said parking lot.
Mr. Sam Rado, the General Foreman, rated plaintiff in the Merit Evaluation in December of 1970 at a lower rating than plaintiff had previously attained. Plaintiff’s performance was inferior to what it had been before, in that he did not wear safety shoes at all times and failed to wear safety glasses at times when so required. Mr. Rado further indicated, and the Court so finds, that the black hat incident affected the Merit ratings received by plaintiff in December of 1970. The specific areas so affected were Judgment, Attitude, and Emotional Stability.
The Court finds the company followed the policy of taking into consideration overall plant seniority and ability in the layoffs of foremen. The Court finds that even though the general foreman, Mr. Rado, consulted with other plant supervisory personnel in determining the order of the release of foremen, he was the dominant deciding factor in said layoff sequence.
The Court further finds that the merit test is a subjective test without definitive guidelines. Although the merit testing standards have some strong points, such standards are defective in that some of the bench marks, even though established, are not sufficiently defined.
The Court finds that the Merit rating system was relied upon in the release of plaintiff, and that plaintiff’s Merit rating was affected by the black hat incident. The Merit rating of plaintiff was affected by his attitudes toward his race and the Court concludes that his termination of employment was effected because of his race and color.
The Court finds the order of layoff and seniority of foremen of the Finish Department is as set forth on page 4 of the Opinion.
The Court specifically finds that Mr. Shemancik had less plant and department seniority and was laid off after plaintiff; that Mr. Joseph had more plant seniority and less department seniority and was laid off after plaintiff; that Mr. Chomar was laid off May 1, 1972 and had more plant seniority and less department seniority; and that Mr. Leone was laid off May 31, 1972 and had more seniority in both department and overall plant. Plaintiff admitted that Mr. Chomar was of equal ability and that Mr. Leone was superior in ability to himself.
Plaintiff commenced work for Christian Brothers in Toledo in April 1972, the month when a foreman of superior plant seniority and of equal ability (Mr. Chomar) was released (April 30, 1972) and the month when a foreman of superior ability and superior seniority (Mr. Leone) was laid off.
The Court finds that in May 1971, plaintiff rejected a job as a laborer because he “didn’t consider it suitable work” (T. 217). Plaintiff’s testimony indicated that he would have rejected any subsequent labor job for the same reason.
The Court finds that the wages that would have been earned by plaintiff had he continued to maintain employment as a foreman with the defendant company would have been at the rate of $175.00 a week from March 31, 1971 to November 14, 1971, and $192.50 per week from November 14, 1971 to May 1972.
The Court further finds that there is no showing that in April 1972 and immediately before the release of Mr. Chomar that other comparable employment would have been available for the plaintiff, considering his ability and aptitudes.
Plaintiff’s hospitalization insurance was maintained until December 31, 1971, and some of the hospital expenses incurred by the plaintiff would have been reimbursed by the hospitalization insurance coverage had he been employed by the defendant at said times. The Court finds the medical damages attributable to the release from employment and the termination of hospital and medical benefits to be $750.00.
The Court finds that the collection of unemployment compensation in the sum in excess of $2500.00 is from a collateral source. Further, the Court finds that loans and travel expenses are not proper items of damage.
Conclusions of Law
The Court is of the opinion that statistics play a role in determining whether or not a racial discrimination exists. Mabe v. Lear Siegler, Inc., [4 EPD ¶7741 ] 457 F.2d 806; Jones v. Leeway Motor Freight Co., [2 EPD ¶10,283 ] 431 F.2d 245. However, they are only one of the factors to be taken into consideration in determining the issues before this Court. Furthermore, the Court is of the opinion that testing devices and systems must be scrutinized to determine whether or not they are improperly designed to bring about discrimination.
In the case of Willie S. Griggs v. Duke Power Co., [3 EPD ¶8137 ] 401 U.S. 425, the Supreme Court stated:
“Nothing in the Act precludes the use of testing or measuring procedures; obviously they are useful. What Congress has forbidden is giving these devices and mechanisms controlling force unless they are demonstrably a reasonable measure of job performance. Congress has not commanded that the less qualified be preferred over the better qualified simply because of minority origins. Far from disparaging job qualifications as such, Congress has made such qualifications the controlling factor, so that race, religion, nationality, and sex become irrelevant. What Congress has commanded that [sic] any test used must measure the person for the job and not the person in the abstract.”
The question is whether or not the employer in any manner discriminated.
“It is clearly not enough under Title VII that procedures utilized by employers are fair in form. These procedures must in fact be fair in operation.” Rowe v. General Motors Corp., [4 EPD ¶7689 ] 457 F.2d 348. In said case the court went on to say:
“But the problem is not whether the employer has willingly--yea even enthusiastically--taken steps to eliminate what it recognizes to be traces or consequences of its prior pre-Act segregation practices. Rather, the question is whether on this record--and despite the efforts towards conscious fulfillment--the employer has practices which violate the act. In this sense, the question is whether the employer has done enough.” Rowe v. General Motors Corp., supra.
The testing criteria to determine discrimination are settled. In establishing guidelines, the Supreme Court has stated:
“The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination. This may be done by showing (1) that he belongs to a racial minority; (2) that he applied and was qualified for a job for which the employer was seeking applicants; (3) that despite his qualifications, he was rejected; and (4) that after his rejection the position remained open and the employer continued to seek applicants from persons of the complainant’s qualifications.” McDonnell Douglas Corp. v. Green, [5 EPD ¶8607 ] 93 S.Ct. 1817 (1973).
The Supreme Court further stated in the McDonnell case that once a prima facie case has been made by an employee, the burden then shifts to the employer to come forth with proof of non-discriminatory reasons for his actions, and if the employer has met the burden, the employee is then to be given the opportunity to come forth with reasons to prove his claim that his release was discriminatory.
Attorney fees for expenses are within the discretion of the court. Rowe v. General Motors, [4 EPD ¶7689 ] 457 F.2d 348 (5th Cir. 1972); Lea v. Cone Mills Corp., [3 EPD ¶8102 ] 438 F.2d 86 (4th Cir. 1971); Ridinger v. General Motors, [3 EPD ¶8175 ] 325 F.Supp. 1089 (S.D. Ohio 1971).
It is the finding of this Court that the plaintiff has met the test of the McDonnell case and has met his burden of proof and has, therefore, established that the defendant did in fact discriminate against him.
Conclusion
The Court finds that the release of the plaintiff due to lack of work was racially motivated, and that the defendant used improper and inadequate standards to determine the release of foremen. The system of layoffs had a discriminatory effect, and the system of determining layoffs and submitting the same to a general group of supervisors to review the recommendation of the departmental foreman was racially motivated as applied to the plaintiff.
The Court finds that the plaintiff is entitled to wages from March 31, 1971 to April 30, 1972. The Court further finds that after April 30, 1972, the date on which Mr. Chomar was laid off, there is no showing that a job that plaintiff was qualified to perform would be available.
The Court, therefore, renders judgment in favor of the plaintiff and against the defendant for the sum of $10,220.00 for loss of wages; $750.00 for medical expenses; $3,000.00 as attorney fees. Costs are assessed against the defendant.