
    A. C. SHERRILL, Plaintiff, and Robert H. Costner et al., Plaintiff-Intervenors, v. J. P. STEVENS AND COMPANY, INC., Defendant.
    Civ. A. No. C-C-73-12.
    United States District Court, W. D. North Carolina, Charlotte Division.
    Nov. 11, 1975.
    
      J. LeVonne Chambers, Charlotte, N. C. (Chambers, Stein, Ferguson & Becton, Charlotte, N. C.), for plaintiff and plaintiff-intervenors.
    Brown Hill Boswell, Charlotte, N. C. (Blakeney, Alexander & Machen, Charlotte, N. C.), for defendant J. P. Stevens and Co., Inc.
   FINDINGS OF FACT AND CONCLUSIONS OF LAW

McMILLAN, District Judge.

This proceeding was filed on January 29, 1973, by plaintiff A. C. Sherrill, who alleged that J. P. Stevens and Company, Inc., at its Stanley, North Carolina facility, (hereinafter referred to as “the Company”), as followed and is presently following patterns and practices of discrimination against black employees because of race in initial hiring, job assignments, promotions, wages and other terms and conditions of employment. The plaintiff further alleged that the Company had limited him in job assignments, had denied him promotion in supervisory positions because of his race and had harassed, intimidated and forced him to leave his employment because of his efforts to challenge the Company’s racially discriminatory practices. Jurisdiction of the Court was invoked pursuant to 28 U.S.C. § 1343, Title VII of the Civil Rights Act of 1964 as amended 42 U.S.C. §§ 2000e et seq. and 42 U.S.C. § 1981.

Robert H. Costner, Robert Lee Brooks and Paul McLean, employees and former black employees, were allowed to intervene as plaintiffs on October 1, 1973. Costner, Brooks and McLean alleged that they had similarly been affected by the Company’s racially discriminatory practices.

The plaintiff prayed leave to maintain the action as a class action pursuant to Rule 23(a), (b)(2) of the Federal Rules of Civil Procedure. The Court has certified the action as a class action, consisting of all black applicants for employment, black employees and former black employees who, since July 2, 1965, have been and who continue to be affected by the Company’s racially discriminatory employment practices. The class was further subdivided into (a) black employees hired before July 2, 1965, who continued in employment subsequent to July 2, 1965; (b) black employees hired subsequent to July 2, 1965, who have continued to be assigned to job positions in the warehouse or shipping department; (c) black employees, initially assigned to the warehouse, who have been permitted to transfer to production jobs but were required to start a new seniority date; and (d) black employees who were initially assigned to production jobs at any time subsequent to July 2, 1965, who have been or may be affected by defendant’s racially discriminatory employment practices.

The Company has denied the material allegations of the complaint. The Court conducted hearings in this matter, without a jury, on August 28-30, 1974. The Court left the record open for receipt of such additional information as the parties desired to present. By Order of December 19, 1974, the parties were directed to complete discovery and to file all briefs and additional evidence which they thought appropriate by February 18, 1975. The Court has now received the oral testimony, depositions and exhibits of the parties as well as briefs in support of their various positions. On the basis of the foregoing, the Court makes the following findings of fact and conclusions of law.

FINDINGS OF FACT

I. Organization of the Company.

1. The Company manufactures synthetic yarn at its Stanley facilities. The operation is divided into three plants, a shop or maintenance department, office and clerical personnel, and warehouse facilities or shipping and receiving.

2. Plants 1 (sometimes referred to as Spin 1) and 2 (or Spin 2) manufacture synthetic yarn and limited natural yarn. The third plant (Turbo) manufactures orlon yarn exclusively. Each plant is divided into four departments: carding,' drawing and roving, winding and spinning. The production job positions with the highest potential pay are winding and spinning doffers and roving tenders.

3. As of the date of the trial, the Company had approximately 500 employees m production, maintenance and shipping, approximately 35 or 40 of whom were black. The Company has approximately 65 supervisors in production, including the plant manager, the plant supervisor, overseers, foremen and section-men. All of the supervisors, except the assistant supervisor, John Jeffers, in the warehouse, are white. Jeffers was made an assistant supervisor in the warehouse in 1967.

4. The Stanley facilities are part of the southern-based operations of the Company which has its principal offices in New York. Regional offices are also maintained in Greensboro, North Carolina and Greenville, South Carolina to service the Stanley plants.

II. Historical hiring and promotional practices of the Company.

5. Prior to the effective date of the Civil Rights Act of 1964, July 2, 1965, basically all black employees at the Stanley facilities were hired into the warehouse as either laborers, lift truck operators, or switchers. All white employees were hired into the plant, the shop, the office or clerical positions. As of July 2, 1965, two black employees, Thomas McCorkle and Miles Lucky, had been transferred from1 the warehouse into the plant in the carding room; one or two black employees had been assigned to janitorial positions in the plant. All other black employees where in the warehouse.

6. After July 2, 1965, the Company hired the first black females. Maggie Brown and Daisy Floyd, both hired on December 13, 1965, were assigned positions in the winding department in Plant 1. Subsequently, 6 or 7 other black males were transferred from the warehouse into production jobs. The majority of the black employees in any department or plant, as of the date of trial, were still assigned as laborers in the warehouse.

7. Employees are assigned seniority or length of service dates from the date of entry into particular departments. The Company also utilizes company or total seniority for insurance purposes and certain other fringe benefits. Departmental seniority or departmental length of service is used for purposes of promotions (see paragraphs 11 — 13 infra), layoffs and bidding on shifts. Thus, an employee with the greatest length of departmental service will have preference over other employees for promotions within the departments and for bidding on shift preference.

8. Employees who transfer between departments are not permitted to carry over their seniority from one department to another. Separate seniority rosters are accordingly maintained for Plants 1, 2 and Turbo; warehouse or shipping and receiving; and shop or maintenance.

9. Seniority is not a factor among the salaried and supervisory personnel, except as it may be considered by the Company in promotions.

10. The black employees who were allowed to transfer from the warehouse to production or other positions in the plant or shop were required to start new seniority dates in their new departments and lost, for promotion and shift bidding purposes, all seniority accrued prior to the date of transfer.

11. Lines of progression are not maintained for production jobs. Employees have been allowed to move from one job position to another and new employees are hired into the various jobs with no prior training or experience. For promotions to supervisory positions, however, the Company does consider the prior work experience of employees. The Company maintains that employees are promoted to supervisory positions or are assigned to various supervisory jobs based on qualifications and seniority. Employees are first considered for promotion to higher paying positions based on seniority. If the most senior employee does not desire the position or if he is determined by the Company to be unqualified, the position is assigned to the next most senior employee who is determined by the Company to be qualified. If no qualified employee desires the position, the Company hires new employees.

12. Prior to 1970, the Company posted job vacancies but has now discontinued the practice.

13. In determining qualifications, the Company looks at the work experience of employees in the particular department. No tests or other objective factors are used. The Company relies instead on the opinions and discretion of supervisory personnel and production records. Generally in promotions to supervisory positions the Company considers employees who have worked on various machines, such as spinning doffers, card and roving tenders, oil and tape men, over-haulers, fixers, shop and maintenance men. There are no objective factors in job experience for determining who is more qualified. This is simply left to the opinion of management. Women are not considered for promotion to supervisory positions because the Company feels that the various lifting requirements of the job would be too much for women. No objective evaluations have been made of the positions, however, to determine that all women or substantially all women should be excluded. At least, the Company has not submitted any evidence of such studies or evaluations.

14. Management at Stanley has also selected some employees for training for supervisory positions. This procedure is in addition to the trainee program administered by the Greensboro regional office for prospective supervisory personnel. In selecting supervisory people, the Company also considers training courses or schools which employees might attend. For this purpose, the Company offers a supplement or refund to employees who attend certain schools or who take certain designated courses.

15. With the exception of the black assistant supervisor promoted in 1967, the Company has never hired or promoted a black to a supervisory position, nor has a black been selected to participate in the supervisory trainee program administered by the Greensboro regional office, or the selective program provided for some employees by management at Stanley. Two blacks, William and Miles Lucky, were offered supervisory positions in 1971, after plaintiff Sherrill had complained about the Company’s racially discriminatory practices and had filed a charge with the Equal Employment Opportunity Commission (EEOC) because he had been denied a supervisory job. Troy Gardner and Thomas McCorkle, both black, were also offered supervisory positions In 1973 after this proceeding was filed. Subsequent offers were also made to William and Miles Lucky. Both rejected the offers because they did not desire a cut in salary and because they did not feel educationally qualified. Gardner rejected the offer for the same reasons. McCorkle had been denied the position while working with the Company. He was offered the position after assuming employment with another company.

16. No black employee has ever been hired or promoted to án office or salaried position.

17. The first black was transferred to a maintenance position in 1974, after this action was filed.

18. With black employees still concentrated primarily in the warehouse, the Company continues its practices of departmental seniority. Black employees who desire a better job position must relinquish all accrued departmental seniority and start a new seniority date in the production departments or in the shop or maintenance departments.

19. The Company provides no security, for example, “red circling”, in salary for employees who transfer to positions which pay less than what the employee earned in the old department.

20. Transferring employees are - required to begin, because of the lack of seniority in the new department, on the least desirable shift.

21. Because the Company no longer posts vacancies, employees are unable to learn of new or open positions except through friends. This poses an extremely difficult problem for black employees who generally are assigned to nonproduction jobs and do not learn of the vacancies until the positions are filled.

22. As of February 25, 1974, the work force by race, plant and department date, was as shown on Plaintiffs’ Exhibit 14 which is attached hereto and incorporated herein.

III. The Plaintiffs.

23. A. Plaintiff Sherrill was initially hired by the Company in 1967 as a spinning doffer. He worked for approximately six (6) months, left the Company and returned in 1968. He was again assigned to the position of spinning doffer. Beginning in 1969, he sought advancement, initially to a supervisory section-man’s position, and later as an oil and tape man, in order that he might get more experience for promotion to a section position. He again sought a section position in 1971. White employees were assigned to the section and oil and tape man positions he sought. By letter dated July 19, 1971, Sherrill wrote the Company and complained that he was being passed over for the section position because of his race. This was the first complaint by a black employee of race discrimination by the Company. Several conferences were held with Sherrill by management. Additionally, Sherrill was intimidated and threatened by white employees. He eventually left his employment with the Company because of these incidents. He filed charges with EEOC on July 22, 1971, September 23, 1971, and January 25, 1972, alleging race discrimination and reprisals. By letter dated November 27, 1972, he was authorized to institute a proceeding in the United States District Court. This proceeding followed on January 29, 1973.

B. Plaintiff Costner was initially hired by the Company in 1949, and assigned to the warehouse as a laborer. He progressed in the warehouse to a lift truck operator and subsequently to a switcher. He transferred to a production job in 1967. He thereby lost the seniority he had accumulated in the warehouse and had to start a new seniority date. He was assigned to a third shift because of the lack of seniority in production and went back to the warehouse because he did not like the shift. His motion to intervene in this proceeding was allowed on October 1, 1973. Costner’s employment was terminated July 29, 1974. The circumstances leading to his discharge are described in paragraphs 43-50, infra.

C. Plaintiff Brooks was initially hired by the Company in 1967. He was assigned a production job in carding. He sought several positions for advancement in production but was denied the positions. He transferred to the warehouse and left the Company in 1973 because of his inability to advance. He was allowed to intervene on October 1, 1974.

D. Plaintiff McLean was hired by the Company in 1969. He was assigned as a laborer in the warehouse and continued working with the Company until 1973. He was allowed to intervene on October 1, 1974.

IV. The Class.

24. A. Prior to July 2, 1965, black employees were hired only in the warehouse or shipping and receiving department. Except for McCorkle, who transferred to a production job in 1963, and one or two black employees in janitorial positions, all black employees were in the warehouse on the effective date of Title VII. Loss of seniority in transferring deterred black employees from seeking better paying positions in production. They were not selected for supervisory or trainee positions or positions in the office or as clerical or shop or maintenance employees. As indicated below, paragraphs 39-42, infra, black earnings in the warehouse were substantially lower than those of comparably situated white employees with comparable seniority dates. Black employees thus limited in employment opportunities and who continued employment in the warehouse as of the date of the beginning of this action are:

B. The Company continued to assign black employees to warehouse positions after July 2, 1965. These employees are also subject to the same restrictions in transferring to better jobs in production. These employees are as follows:

C. Black employees who were allowed to transfer to production jobs started new seniority dates for purposes of promotion and shift preferences. These employees, their dates of hire and current department date are:

D. The first black women were hired by the Company in 1965. They, as well as other black employees who have been hired or permitted to transfer into production jobs, have been denied consideration for supervisory positions because of the Company’s belief that the work is too difficult. The Company has taken no steps to determine the validity of its practices in excluding women who can perform the duties of supervisors. The black women thus affected and also affected by the earlier practices of the Company in excluding them from employment are:

E. The above listing of class members does not include all former black employees, employees employed between July 2, 1965, and the date of this hearing, or employees hired before July 2, 1965, whose employment was terminated before the date of trial of this action. Employees who might fall into one or more of the sub-classes described above, were similarly affected by the practices of the Company as described herein.

V. The Claims of the Named Plaintiffs.

25. Plaintiff Sherrill initially sought promotion to a supervisory position in 1969. He made inquiry of his superiors as to the procedure he should follow and the qualifications required for promotion. He initially sought a section job and later an oil and tape position in 1969 in order to gain more exposure to the various machines for promotion. White employees, in several instances with less seniority, were promoted over him.

26. The Company has no objective standards for determining qualifications for promotion to supervisory positions. Some junior employees were promoted over their seniors on the subjective opinion of superiors, irrespective of the limited experience that the junior employees might have had on particular machines, The subjective standards for determining qualifications provided a ready means for discrimination against plaintiff Sherrill and other black employees and ex-eluded them from supervisory positions,

27. Plaintiff Sherrill was not considered for promotion to a supervisory position in 1969, 1970 and 1971. In fact, the supervisory position that was discussed in July, 1971, was filled without any evaluation of plaintiff by management. After the plaintiff’s letter of July 19, 1971, the Company attempted post-evaluation of the plaintiff’s qualifications as compared with the qualifications of Forrest Rogers who was assigned the position. The plaintiff was not considered for the section positions filled by Jay Rushing on July 19, 1971, or Terry Summey on July 23, 1971.

28. The evidence establishes that the plaintiff was qualified and had the potential which warranted his consideration for a supervisory position. The plaintiff, however, was never offered a supervisory position, nor offered or advised of the training program which would allow him to move into a supervisory position on future vacancies.

29. After the plaintiff complained by letter in July, 1971, he was called into a meeting with management. At this meeting, he was advised that he did not need any special schooling to promote to a supervisory position, although he had been previously advised to the contrary. The plaintiff stated at the meeting that he had been seeking a supervisory position or positions which would allow him to gain experience for promotion to a supervisory job since 1969. Following this meeting, the plaintiff was called into another meeting by his sectionman and foreman and former supervisors and criticized because he had stated' that he had requested promotions in 1969. This meeting ended in a heated discussion.

30. The plaintiff was criticized by his fellow employees and in one or two instances threatened with bodily harm. In August, 1971, a white employee, whose employment was subsequently terminated by the Company, placed some trash in the plaintiff’s car in order to intimidate and harass the plaintiff. He was dismissed when he refused to remove the trash.

31. In November, 1971, the plaintiff requested leave in order to take a tractor-trailer driving course for subsequent employment as an over-the-road driver for the Company. He also advised his supervisors that he wanted to take a vacation because of the pressure he was enduring following his efforts to advance to a section position. The plaintiff requested a six (6) month leave. He was denied leave although the Company had granted extended leave to white employees on previous occasions.

32. The plaintiff was called into another session with management on December 10, 1971, and questioned extensively about the harassment he had suffered. He was the only black present during this conference with the Plant Manager, the Plant Superintendent and several other supervisory personnel. He was told that management did not believe he was harassed. He became frightened and left the conference and his employment. The evidence is disputed as to the tone of the conference, and whether the plaintiff was threatened or actually forced to leave. However, no other employee had been subjected to such practices; fellow white employees had previously threatened and intimidated the plaintiff; and management took no steps by notice or otherwise to insure that the plaintiff would be free of harassment until the events mentioned in Paragraph 30, above. The plaintiff felt threatened and forced to leave and management never offered him a training position which would allow him to promote to a supervisory position with the next vacancy. See Commonwealth v. Local 542, International Union of Operating Engineers, 347 F.Supp. 268 (E.D.Pa.1972).

33. Sherrill was the first black employee other than Jeffers to run the gauntlet of seeking a supervisory position. The Company had never promoted a black to the position. The Company admits that the plaintiff was qualified to fill a section position. He had a good work record. He had not previously been considered and yet no steps were taken to insure that he would be fairly and objectively considered for the next vacancy. The plaintiff was criticized by his superiors and intimidated by fellow white employees. Even with its post-evaluation efforts, the Company has not offered any objective criteria which would establish that the plaintiff was less qualified than white employees promoted to section positions in 1969, 1970, or 1971.

34. The plaintiff has expressed a desire to return to his employment with the Company and his continuing desire for a supervisory position. The Company has not offered such opportunities to the plaintiff even with the vacancies in 1972, 1973 and 1974.

35. Plaintiff Costner was assigned, as other black employees, to the warehouse when initially hired. He was denied a production position until 1967 when he transferred into the Card Room. He was not allowed to transfer his seniority in order to bid on a first shift and was assigned to the third shift although he had more than eighteen (18) years service with the Company. Junior white employees were allowed to bid over him for the preferable first shift. Because he could not obtain a first shift position he transferred back to the warehouse and had to start a new seniority date in 1967.

36. Plaintiff Brooks was initially hired in a production job but was denied promotion to better paying positions. Junior white employees were promoted over him or initially assigned to better positions. He left the Company in 1973 but would like to return if permitted assignment to the higher paying production jobs.

37. Paul McLean was initially assigned to the warehouse. He was subjected to the same restrictions as described above in transferring to better job positions in production. He left the Company in 1973 but would like to return if afforded employment opportunities in the better paying production jobs.

VI. Economic Losses Sustained by the Plaintiffs and Class Members.

38. Blacks constitute approximately 15% of the available job market at the Stanley facilities. Blacks constitute approximately nine or ten percent of the company employees.

39. During 1972 the average white annual income for employees below the supervisory levels was $5,712.00. The average black income was $5,021.00, or a difference of $691.00. During 1973 the average white income below the supervisory level was $7,092.00. The average black income was $5,448.48, or a difference of $1,644.00.

40. The average hourly rates of black and white employees by length of service for 1972 and 1973 are as follows:

For 1972 employees the figures were as follows:
(a) Average hourly rate for all white employees — $2.55;
Average length of company service —11 years;
Average hourly rate for all black employees — $2.43;
Average length of Company service —6 years;
(b) Average hourly rate for white in-plant employees — $2.56;
Average length of Company service —11 years;
Average hourly rate for black in-plant employees — $2.57;
Average length of Company service —11 years;
(c) The average rate for blacks in the handling and storage (warehouse) was $2.17. For whites it was $2.12.
For 1973 employees the figures are as follows:
(a) Average hourly rate for all white employees — $2.73;
Average length of Company service —12 years;
Average hourly rate for all black employees — $2.57;
Average length of Company service —7 years;
(b) Average hourly rate for white in-plant employees — $2.74;
Average length of Company service —12 years; <
Average hourly rate for black in-plant employees — $2.71;
Average length of Company service —12 years;
(c) The average rate for blacks in the handling and storage (warehouse) was $2.33. For whites it was $2.30.

41. The hourly earnings of section men for the period 1966 — 74 were as follows:

6- 6-66 $2.10
9- 4-67 2.30
7-15-68 2.44
7- 7-69 2.60
11- 30-70 2.76
12- 13-71 2.91
12-11-72 3.07
9-10-73 3.27
5-13-74 3.60

42. At the time of the termination of his employment, plaintiff Sherrill was making $6,865.30 per year. He obtained employment in 1972 and had earnings of $7,227.72; $6,096.08 in 1973; and $3,526.28 in 1974. He has been unemployed since September 15, 1974.

VII. The July 29, 1974 incident.

43. For several years, black employees in the warehouse have complained about the inordinate duties imposed on them. These are the least desirable, lowest paying positions of the Company. Warehouse employees are required to lift and load or unload raw and finished products, machinery and equipment. For extremely heavy objects a lift truck is used. Laborers in the department generally lift by hand. Lift truck operators generally work in pairs with one operating the truck and the other tagging the merchandise or recording what is brought in or shipped. Switchers move the trailers back and forth from the yard to the dock and assist the laborers in loading or unloading by hand.

44. After the summer students left the Company in July, 1974, to prepare for return to school, switchers were ordered to drive the lift truck, a separate job, in addition to their regular duties. The black employees complained to management during the third week of July about the extra duties and low pay. Plaintiff Costner and Albert McDowell, who were the only switchers, also complained about the additional duties of driving the lift truck and advised management that they would do either the switcher’s job or the lift truck job.

45. On July 29, 1974, plaintiff Costner and Albert McDowell were ordered to drive the lift truck in addition to their switching duties. They complained that they would not be able to do both jobs. They were called in conference and offered the choice of doing both jobs or leaving. They refused to do both and left for management to reconsider. Their employment was terminated effective July 29, 1974.

46. Black employees, having been relegated principally to the warehouse, have also been assigned inordinate duties with limited pay. The Company has no written job duties. It is clear, however, that the two jobs of switcher and lift truck operator have been considered two separate and distinct jobs with separate rates of pay. Additionally, Costner has intervened in this proceeding to challenge the racially discriminatory practices of the Company. Albert McDowell was subpoenaed to testify.

47. No employee in the plant or shop has been required to assume two or more jobs; nor are similar duties imposed on salaried or supervisory employees.

48. The Company contends that these duties have been imposed on switchers for several years. With the department being racially segregated or identifiable, it is no solace that black employees have been given burdensome and discriminatory duties for extended periods. The plaintiffs now seek relief against reprisals by the Company because of their efforts to enforce their rights to equal employment opportunities.

49. Neither plaintiff Costner nor Albert McDowell was offered the opportunity to transfer into the plant with seniority and with less onerous duties. Rather, they were immediately terminated.

50. Ray McDowell and William Jefferies were also dismissed on this occasion because they left with Costner and Albert McDowell. Ray McDowell also testified previously in depositions in support of the plaintiffs. The Company denies that they were granted permission to leave. Other employees, however, have been permitted to leave during the day, with or without excuses, and continued in employment. The Company has offered no explanation of why different standards should be applied with respect to these class members who have also joined in protest against the racially discriminatory practices of the Company.

CONCLUSIONS OF LAW

1. The Court has jurisdiction under Section 706(f) of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e-5(f) and 42 U.S.C. § 1981.

2. This is an appropriate class action under Rule 23(a), (b)(2) FRCP. The class is too numerous to bring all parties before the Court. There are common questions of law and fact applicable to the class. The claims of the named plaintiffs are typical of the claims of the class members. The named plaintiffs have and will fairly and adequately represent the interests of the class. Defendant has engaged in racially discriminatory conduct and practices generally applicable to black employees. The class is defined as all black employees of Stevens at its Stanley, North Carolina facilities who were hired before July 2, 1965, and who continued in employment with Stanley subsequent to July 2, 1965, and all black employees hired subsequent to July 2, 1965, dr who may be employed in the future, who have been or may be affected by the defendant’s racially discriminatory employment practices. The class also includes the following subclasses of persons who have been or may be affected by defendant’s racially discriminatory employment practices: (a) black employees hired before July 2, 1965, who were initially assigned to warehouse or janitorial positions and who continued in employment subsequent to July 2, 1965; (b) black employees hired subsequent to July 2, 1965, who were initially assigned to warehouse or janitorial positions; (c) black employees who were initially assigned to the warehouse and who were permitted to transfer to a production job with loss of seniority; and (d) black employees who were initially assigned to production jobs at any time subsequent to July 2, 1965.

3. The defendant J. P. Stevens and Company, Inc., is an employer within the meaning of 42 U.S.C. Section 2000e(b), is engaged in an industry affecting commerce within the meaning of 42 U.S.C. Section 2000e(h), and is subject to the provisions of 42 U.S.C. § 1981.

4. Plaintiff Sherrill has complied with the procedural requirements of Section 706(e) and (f) of Title VII, 42 U.S.C. Sections 2000e-5(e) and (f). Intervenors Costner, Brooks and McLean have properly moved and been allowed to intervene.

5. The relevant time period for determining defendant’s liability for back pay is July 22, 1969, two years prior to the filing by plaintiff Sherrill of his charge with EEOC, 42 U.S.C. § 2000e-5(g).

6. Statistical evidence may establish a prima facie case of discrimination under Title VII, 42 U.S.C. §§ 2000e et seq., and 42 U.S.C. § 1981. United States v. Chesapeake & Ohio Ry. Co., 471 F.2d 582, 586 (4th Cir. 1972) cert. denied, 411 U.S. 939, 93 S.Ct. 1893, 36 L.Ed.2d 401 (1973).

7. Statistics in this case which reflect that black employees have been assigned to and are still basically in warehouse and janitorial positions establish a prima facie showing that the defendant has discriminated and is presently discriminating against black employees because of race and color. United States v. Chesapeake & Ohio Ry. Co., supra.

8. The evidence clearly establishes that black employees were totally excluded from production jobs until 1963, shop or maintenance jobs until 1974, and are still excluded from office, clerical and supervisory positions. Although 4 blacks, since plaintiff Sherrill’s efforts, have been offered supervisory positions, this does not diminish the pervasive showing that no black other than Jeffers, was even considered for a supervisor’s position until 1971, or even selected to this date to participate in the training program in order to advance to a supervisory position. Moreover, the first black was only advanced to the shop after the trial of this action and no black has been offered or assigned an office or clerical position. Black employees are still assigned and concentrated principally in the warehouse. Black women were not hired until 1965 and have not been considered for advancement to supervisory positions. Defendant has presented no evidence of validation of the exclusionary practices which would permit the exclusion of women from section or other supervisory jobs. See Robinson v. Lorillard, 444 F.2d 791 (4th Cir. 1971) cert. dism., 404 U.S. 1006, 92 S.Ct. 573, 30 L.Ed.2d 655.

9. The discriminatory practices of the defendant are further confirmed by the following:

(a) In addition to concentrating' black employees in the warehouse, defendant has imposed departmental or plant seniority which requires that they relinquish any accumulated seniority in order to transfer to better paying production jobs.

(b) No wage protection is insured for black employees who desire a chance for better paying jobs and who transfer to a position which pays less than they are presently earning.

(c) Defendant limits consideration for promotion to employees on certain production jobs from which the plaintiffs and class members have historically been excluded. Even with limited opportunities after 1965, plaintiffs are still denied promotion to supervisory, shop and office positions.

(d) No objective criteria have been established for promotion to supervisory or better paying job positions, thus perpetuating the opportunity and practice of continued discrimination because of race against the plaintiffs and class members.

(e) Black employees are still denied the opportunity to participate in training programs which would permit them to promote into supervisory and office positions.

(f) Black women were previously systematically excluded from employment and are now denied any chance for promotions to supervisory positions pursuant to policies which have not been properly validated.

(g) Black employees in warehouse positions have been assigned inordinate and onerous duties.

(h) Black employees who seek to assert their rights under Title VII and 42 U.S.C. § 1981 have been subjected to intimidations and reprisals.

10. Title VII was designed “to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of . employees over other employees. Under the Act, practices, procedures, or [policies] neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to ‘freeze’ the status quo of prior discriminatory employment practices.” Griggs v. Duke Power Co., 401 U.S. 424, 429-30, 91 S.Ct. 849, 853, 28 L.Ed.2d 158, 163 (1971).

11. Where, as here, black employees have been limited to certain job positions and departments, the defendants continued reliance on department seniority or length of service which gives the white employees a competitive advantage over black employees for promotion to better jobs and shifts, perpetuates the effects of past discrimination and constitutes a present pattern and practice of discrimination against black employees, depriving them of employment opportunities and adversely affecting their status as employees because of race, within the meaning of 42 U.S.C. § 2000e-2(a), Robinson v. Lorillard Corp., supra; Rock v. Norfolk & Western Ry. Co., 473 F.2d 1344 (4th Cir.) cert. denied, 412 U.S. 933, 93 S.Ct. 2754, 37 L.Ed.2d 161 (1973).

12. Where, as here, blacks have been excluded from certain jobs and departments, the defendant’s continued enforcement of departmental or plant seniority which requires that black employees who desire to transfer to better job positions relinquish their accumulated seniority and start a new seniority date for purposes of promotion, shift bids and lay offs, perpetuates the effects of past discrimination. It also constitutes a present pattern or practice of discrimination within the meaning of 42 U.S.C. § 2000e-2(a). Local 189, United Papermakers & Paperworkers v. United States, 416 F.2d 980 (5th Cir. 1969), cert. denied, 397 U.S. 919, 90 S.Ct. 926, 25 L.Ed.2d 100 (1970).

13. Where black employees have been subjected to discrimination because of race in employment opportunities and have sustained loss of earnings, as here, because of such practices, individually named plaintiffs may be awarded injunctive relief, including back pay, for themselves and the class of black employees affected. Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280, 43 U.S.L.W. 4880 (1975).

14. Plaintiff Sherrill, although initially hired in a production job, was denied consideration for promotion to a supervisory position. He was subjected to subjective standards which permitted continued discrimination against him because of race. He was denied an opportunity to be placed in the supervisory trainee position because of race. The Company’s practices with respect to plaintiff Sherrill constitute a violation of 42 U.S.C. § 2000e-2(a). Brown v. Gaston County Dyeing Machine Co., 457 F.2d. 1377, 1382-1383 (4th Cir.) cert. denied, 409 U.S. 982, 93 S.Ct. 319, 34 L.Ed.2d 246 (1972) (“Elusive, purely subjective standards must give way to objectivity if statistical indicia of discrimination are to be refuted”); Young v. Edgcomb Steel Co., 499 F.2d 97, 98 (4th Cir. 1974).

15. Plaintiff Sherrill complained to management about the Company’s racially discriminatory policies. He was called into conferences, subjected to threats and harassment by white employees, and forced to leave his employment because of continued intimidations. He sought a 6-month leave to study for a better job with the Company and to seek some reprieve from the pressures caused by his efforts to advance. He was denied leave although the Company had extended comparable leave to other employees. The reprisals against plaintiff Sherrill which resulted in the termination of his employment constitute a violation of Section 704(a) of Title VII, 42 U.S.C. § 2000e-3(a). Pettway v. American Cast Iron Pipe Co., 411 F.2d 998 (5th Cir. 1969), reh. den., 415 F.2d 1376 (5th Cir. 1969). The plaintiff is entitled to an order requiring his reinstatement with back pay.

16. Plaintiffs Costner, Brooks and McLean have similarly been subjected to employment discrimination because of race, by the Company practices described above. They are also entitled to injunctive relief and back pay for themselves and the class.

17. The additional duties imposed on warehouse employees, the black department, were onerous and discriminatory. Employees in other departments, clearly identifiable as white, were not required to perform two or more jobs. The discharge of plaintiff Costner and Albert McDowell on July 29, 1974, because they objected to these discriminatory practices and because they had joined in this proceeding or had testified in support of the plaintiffs, constitutes a violation of Sections 703(a) and 704(a) of Title VII, 42 U.S.C. § 2000e-2(a) and § 2000e-3(a). Cf. Pettway v. American Cast Iron Pipe Co., supra; Commonwealth v. Local 542, International Union of Operating Engineers, supra.

18. Ray McDowell and William Jefferies were discharged because they left the Company with Costner and Albert McDowell. The evidence is clear that such conduct had previously been condoned by management and was used here only after these parties became interested witnesses in this proceeding. Their discharge, under the circumstances, violates Section 704(a), 42 U.S.C. § 2000e-3(a). Francis v. American Tel. & Tel. Co., 55 F.R.D. 202 (D.D.C.1972).

19. Where an employer has engaged in practices and policies of discrimination based on race, affirmative and mandatory relief is required in order to insure full enjoyment of the right to equal employment opportunities. In ordering relief, a court should not merely parrot the Act, but should order affirmative relief which is appropriate to insure the full enjoyment of employment rights. United States v. Dillon Supply Co., 429 F.2d 800 (4th Cir. 1970).

20. In such cases the Court has not merely the power but the duty to render a decree which will as far as possible eliminate the discriminatory effects as well as bar like discrimination in the future. Rosen v. Public Service Elec. & Gas Co., 477 F.2d 90 (3rd Cir. 1973); Cf. Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971).

21. In order to remedy the continuing discrimination based on race and to remedy the competitive seniority disadvantage to the plaintiffs stemming from defendant’s pre-1965 practices of maintaining segregated jobs and departments, there must be some modification of defendant’s reliance on departmental seniority in promotions, shift bids and lay-offs.

22. Defendant will be enjoined to eliminate all employment practices based on race and color.

23. Defendant will be enjoined to offer opportunities to all black warehouse employees to transfer to production and shop or maintenance jobs and permit these employees to transfer their total company service or seniority for bidding on vacancies and shifts. These employees shall also be permitted to use their total company service for lay-offs. Robinson v. Lorillard Corp., supra.

24. Defendant will be required to “red circle” the pay rates of any black employee who is transferred to a production position paying less than he is presently earning until such employee can promote to a higher paying position. Robinson v. Lorillard Corp., supra.

25. Defendant will be enjoined to post in conspicuous places throughout the Stanley facilities notice of all vacancies and rosters showing the revised seniority or company length of service as directed in paragraph 23. Young v. Edgcomb Steel Co., 363 F.Supp. 961, 972 (M.D.N.C.1973), reversed on other grounds, 499 F.2d 97 (4th Cir. 1974).

26. Defendant will be enjoined to offer black employees placement in the supervisory trainee programs and, subject to the availability of black employees or applicants, to promote or hire one black employee in supervisory, shop or maintenance, office and clerical positions for every one other employee hired for such positions. Such obligations shall continue until such time as blacks constitute at least fifteen (15) percent of the total number of employees in these positions. United States v. Central Motor Lines, 338 F.Supp. 532, 561 (W.D.N.C.1971).

27. Defendant shall be enjoined to modify the seniority of all black employees who have transferred from the warehouse into a production job and accord them seniority from the date of initial hiring by the Company for promotion, lay off, and shift bid purposes. Local 189, United Papermakers and Paperworkers v. United States, supra; Robinson v. Lorillard Corp., supra.

28. Defendant will be required to reinstate plaintiff Sherrill and to offer him a position as sectionman. Plaintiff Sherrill shall also be allowed to promote to other supervisory positions without consideration of race and shall be paid loss of earnings. Williams v. Albemarle City Board of Education, 485 F.2d 232 (4th Cir. 1973).

29. Defendant shall be enjoined to reinstate plaintiff Costner and Albert McDowell and to pay them loss of earnings.

30. Defendant shall be required to reinstate Ray McDowell and William Jefferies and to pay them loss of earnings.

31. Defendant shall be required to offer black female employees an opportunity to advance into supervisory positions and shall be enjoined from excluding black women from consideration for promotion to such position until the defendant shall establish, if it can, properly validated, bona fide occupational criteria to show that women cannot perform the job. Black female employees shall be allowed loss of earnings because of their exclusion from supervisory positions.

32. Defendant shall be required to pay back pay to the class of black employees as defined in paragraph 2 from July 22, 1968, until the date of the final order of this action.

33. Defendant shall be required to pay plaintiffs’ costs, expenses and reasonable attorney fees.

34. The Court will retain jurisdiction of this action for such further orders as may be appropriate.

JUDGMENT

This action having come on for trial before the Court, sitting without a jury, and the issues having been duly tried, and Findings of Fact and Conclusions of Law having been entered on November 10, 1975, it is,

HEREBY ORDERED, ADJUDGED AND DECREED:

1. The defendant J. P. Stevens and Company, Inc. (sometimes referred to hereinafter as “Stevens”), its officers, agents, employees, successors, servants and all persons in active concert or participation with them shall be and are hereby permanently enjoined and restrained from discriminating against the plaintiff, plaintiff-intervenors and their class as herein described, because of race and color 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, at Stevens’ facilities located in Stanley, North Carolina.

2. This is an appropriate class action brought pursuant to Rule 23(a), (b)(2) of the Federal Rules of Civil Procedure. The class consists of all black employees of Stevens at its Stanley, North Carolina facilities who were hired before July 2, 1965, and who continued in employment with Stanley subsequent to July 2, 1965, and all black employees hired subsequent to July 2, 1965, or who may be employed in the future, who have been or may be affected by the defendant’s racially discriminatory employment practices. The class also includes the following subclasses of persons who have been or may be affected by defendant’s racially discriminatory employment practices: (a) black employees hired before July 2, 1965, who were initially assigned to warehouse or janitorial positions and who continued in employment subsequent to July 2, 1965; (b) black employees hired subsequent to July 2, 1965, who were initially assigned to warehouse or janitorial positions; (c) black employees who were initially assigned to the warehouse and who were permitted to transfer to a production job with loss of seniority; and (d) black employees who were initially assigned to production jobs at any time subsequent to July 2, 1965.

3. The defendant is permanently enjoined from implementing, maintaining or giving effect to any seniority system, policy or practice, including reliance on departmental or plant seniority, which is designed to or has the effect of discriminating against black persons because of their race and color.

4. The defendant shall be and is hereby enjoined to institute for the plaintiff, plaintiff-intervenors, and all black employees at the Stanley facilities who are or were initially assigned to positions in the warehouse or who are or were initially assigned to positions of sweeper or janitor, company-wide or date of employment seniority for the Stanley facilities for all purposes, including bidding on job vacancies, lay-offs, and shift preferences.

5. The defendant shall be and is hereby enjoined to offer opportunities to all black employees, who were initially assigned to positions in the warehouse or as sweepers or janitors, to transfer to any production job in either plant or to any job in the maintenance department upon any vacancy, and shall select any such employees for such vacant positions upon the basis of their total or company-wide seniority. Any employee who elects to transfer to a production or maintenance position pursuant to the provisions of this order shall be permitted to transfer or “carry over” his total or company-wide seniority for future bidding purposes on job vacancies, shift bids or lay-offs. All such employees who are covered by the provisions of this order shall be allowed at least three such opportunities to transfer to a production or maintenance position. If any employee elects to transfer and for any reason, permitted by the terms of this order, is unable to assume or to perform the job to which he or she is transferred, the employee shall, for a period of 90 days, be permitted to return to the position he or she formerly occupied and shall be permitted to bid at least on two other occasions on vacancies which may occur in production or maintenance jobs, and shall be selected for such positions based on his or her company-wide seniority or date of hire. For purposes of determining an employee’s ability to perform a production or maintenance job, the defendant is enjoined to submit to the Court, with copies being served upon counsel for the plaintiff and plaintiff-intervenors, within 30 days from the date of this order, a proposal setting forth objective standards to determine any such employee’s ability to perform jobs in production or maintenance.

6. The defendant shall be and is enjoined to “red circle” the salary of any employee who elects to transfer to a job in production or maintenance as provided under the terms of this order, in order to insure that the employee will continue to receive as much as the salary he or she was receiving immediately prior to the transfer. The salary shall continue until the employee promotes to a job paying the same or a higher salary or hourly rate of pay.

7. The defendant shall be and is enjoined to post notices of future job vacancies in production, maintenance, office or clerical and supervisory positions, on bulletin boards in each plant, in maintenance, in the warehouse, and in the office, along with a copy of this decree. Where the Company has received notice that a vacancy will arise, it shall post notice of the vacancy and not permanently fill the job until four working days after posting. In cases where the Company receives no advance notice of a vacancy on a job which needs to be filled immediately to avoid production losses, the Company shall be required to post for two working days prior to permanently filling the job. Vacancies for purposes of this order shall mean any job or work assignment which is expected to exceed two (2) or more weeks duration, including but not limited to work assignment resulting from disability, a scheduled vacation, a leave of absence or a loan or temporary transfer of a regularly assigned job holder.

8. The defendant shall be and is enjoined to modify the seniority or date of hire of all black employees, formerly assigned to the warehouse or janitorial positions, who have elected to transfer to a production job or to a job in maintenance, to show the seniority date for such employees for purposes of promotion, lay-off and shift preferences to be the date of initial hire by Stevens at Stanley.

9. The defendant shall be and is enjoined to offer black employees placement in supervisory positions and in the supervisory trainee programs and, subject to the availability of qualified black employees or applicants, to promote or hire one black employee in a supervisory, shop or maintenance, office and clerical position for every other employee hired for or offered such position, until blacks constitute approximately fifteen (15) percent of the total number of employees in these positions.

10. The defendant shall be and is enjoined to reinstate plaintiff Sherrill as an employee and to assign him to a sectionman position immediately. The defendant may provide a reasonable training period for plaintiff Sherrill, not to exceed two (2) months, before permitting the plaintiff to assume the section-man’s duties. During the training period and thereafter the plaintiff shall be paid the same salary as other sectionmen and shall be allowed to promote to other supervisory positions, based on total or company-wide seniority without consideration of race. In determining the plaintiff’s seniority, the defendant shall count the date of his initial employment with the Company and shall include the total time he has been away from Stevens from December 10, 1971, until the date of his reinstatement. The plaintiff shall also be paid all loss of earnings, less any earnings he had in the interim, and all expenses he may have incurred in attempting to obtain other employment. He shall also be paid expenses he may have incurred in assuming other employment in order to reduce his losses. For purposes of determining loss of earnings, plaintiff Sherrill shall be compensated at the rate of a sectionman in production from June 11, 1971, until he is assigned to a sectionman position, together with interest at the rate of 6 percent per annum with appropriate adjustments for his fringe benefits.

11. The defendant shall be and is hereby enjoined to reinstate plaintiffs Robert Costner, Albert McDowell, Ray McDowell and William Jefferies. These employees shall also be offered positions in production, maintenance and office as provided in paragraphs 3, 4, 5, 6, 7 and 8 and shall be awarded their losses of earnings and expenses less any interim earnings, from the date of their discharge on July 29, 1974, until reinstated. Plaintiffs Costner, Albert and Ray McDowell and Jefferies shall also be awarded back pay as provided in paragraph thirteen (13) of this Order.

12. The defendant shall be and is hereby enjoined to pay back pay to all class members who have been employed at the Stanley facilities at any time subsequent to July 22, 1969 (two (2) years prior to the filing of plaintiff Sherrill’s first charge of discrimination with the EEOC), who have received less benefits and compensation because of racially discriminatory employment practices of defendant. The determination of back pay for the plaintiff, plaintiff-intervenors and members of the class will be referred to a Master with special instructions for determining back pay by subsequent orders.

13. The defendant, its officers, agents, employees, successors, servants and all persons in active concert or participation with them shall be and are hereby permanently enjoined and restrained from harassing, intimidating, threatening, or taking reprisals against the plaintiff, plaintiff-intervenors or members of their class because of their efforts to exercise their rights as provided by Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. and 42 U.S.C. § 1981, and from pursuing any acts or endorsing, authorizing, or sanctioning any practices which violate § 704(a) of the Act, 42 U.S.C. § 2000e-3(a).

14. The defendant shall maintain appropriate records of all actions taken pursuant to this order and shall allow counsel for the plaintiffs to inspect these records after fifteen (15) days notice.

15. The defendant shall make semiannual reports to the Court, with copies being served upon counsel for the plaintiffs, the first report being due on January 1, 1976, and each six (6) months thereafter for a period of two (2) years. The reports shall contain:

a. A listing of all black employees who have been permitted to transfer to a production or maintenance job, with the date of such transfer, the seniority date of the employee and the rate of pay in the new position.
b. A listing of all supervisory, clerical, office and maintenance vacancies, by title and department, which have occurred since the last report; the name, sex and original hire date of the person or employee selected for each such vacancy; current roster showing name, sex, job title, original hire date and department for supervisory, clerical and maintenance personnel at the Stanley facilities; and the name, sex, job title, department and original hire date of each supervisor, clerical, office and maintenance employee terminated, demoted or transferred from the Stanley plants.
c. A listing of new employees hired since the last report with their race, sex, original hire date, plant shift and job position to which assigned.
d. The racial composition of the production and warehouse employees by plant and department with their seniority dates.

16. The defendant shall give notice of this order to all of its employees at the Stanley facilities by posting copies of this order on bulletin boards in conspicuous places throughout the facilities for a period of ninety (90) days immediately following the entry of this order.

17. The plaintiffs shall be and are hereby awarded their costs in this action, including their expenses and reasonable counsel fees. Counsel for the parties are directed to meet and confer within thirty (30) days from the date of this order for the purpose of agreeing upon costs, reasonable attorneys fees and expenses. Absent such an agreement, counsel for the plaintiffs is directed to file with the Court a statement of time for which counsel fees are claimed and an itemization of costs and expenses. Defendant is directed to file a statement with the Court, with copies being served upon counsel for the plaintiffs, setting forth the basis by which the defendant has compensated its counsel and the dollar amount it has paid or expects to pay its counsel in fees with a separate statement of expenses. If the parties are unable to agree on costs, counsel fees and expenses the respective statements required herein shall be filed with the Court within forty-five (45) days of the entry of this order.

18. The Court shall retain jurisdiction of this matter to issue such other orders and to conduct such other proceedings as may be necessary to effectuate this order.  