Grigsby v. North Mississippi Medical Center Appellants' Brief
Public Court Documents
January 1, 1976

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Brief Collection, LDF Court Filings. Grigsby v. North Mississippi Medical Center Appellants' Brief, 1976. 6046bacb-b49a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/4086b714-f523-4429-aa66-1d5409bc3ff2/grigsby-v-north-mississippi-medical-center-appellants-brief. Accessed April 29, 2025.
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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT NO. 76-2207 OTHA GRIGSBY, et al., Plaintiffs-Appellants, -v- NORTH MISSISSIPPI MEDICAL CENTER Defendant-Appellees On Appeal from the United States District Court for the Northern District of Mississippi APPELLANTS' BRIEF JACK GREENBERG MELVYN R. LEVENTHAL 10 Columbus Circle New York, New York 10019 KENNETH MAYFIELD 303 1/2 West Main Street Tupelo, MS 38801 Attorneys for Appellants TABLE OF CONTENTSi 1 -.i.1 .11■M:j Page Table of Cases...................................... i Rule 13 Certificate............................... 2 Statement of the C a s e ............................. 4 Statement of the Facts . . . . . ................... 7 1. G e n e r a l ............................. 7 2. Statistical and Other Evidence of Employment Discrimination ......... 8 3. Statistical Evidence Relating to Racially Discriminatory Discharges........................... 13 4. Named Plaintiffs ..................... 14 \ Argument .......................................... 21 Conclusion.......................................... 31 Exhibit A .......................................... 32 Exhibit B .......................................... 34 TABLE OF CASES Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975)................................. 27 Baxter v. Savannah Sugar Ref. Corp., 495 F.2d 437 (5th Cir. 1974)....................... 25 Brown V. Gaston County Dyeing Machine Co., 457 F.2d 1377 (4th Cir. 1972)....................... 25 Burns v. Thiokol Chemical Corp., 483 F.2d 300 (5th Cir. 1973)....................... 30 East v. Romine Inc., 518 *F.2d 332 (5th Cir. 1975)....................... 27 Local 189, United Paperwork v. U.S., 416 F.2d 980 (5th Cir. 1969)....................... 27 Rodriguez v. East Texas Motor Freight, 505 F .2d 40 (5th Cir. 1974)......................... 29 Rowe v. General Motors 457 F .2d 348 (5th Cir. 1972)....................... 25 Sagers v. Yellow Freight Systems, Inc., 529 F .2d 721 (5th Cir. 1976)....................... 21 United States v. Hayes International, 456 F.2d 112 (5th Cir. 1972)....................... 21 United States v. N.L. Industries, Inc., 479 F .2d 354 (8th Cir. 1973)....................... 25 Watkins v. Scott Paper Co., 530 F.2d 1159 (5th Cir. 1976) ..................... 25 - i - IN THE ■i j i -i I ’ \ ] UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT NO. 76-2207 OTHA GRIGSBY, et al., Plaintiffs-Appellants, -v- NORTH MISSISSIPPI MEDICAL CENTER Defendant-Appellees CERTIFICATE REQUIRED BY LOCAL RULE 13 (a) The undersigned counsel for plaintiffs-appellants Otha Grigsby, et al., in conformance with local Rule 13(a), certifies that the following listed parties have an interest in the outcome of this case. These representations are made in order that judges of this Court may evaluate possible disqualification or recusal: 1. Otha Grigsby, Eddie Black, and Essie Sneed, named plaintiffs and intervenors. 2. The class of present, past or future black employees of the North Mississippi Medical Center, Inc. represented by named plaintiffs. 2 |\»»~| .VV 3. The North Mississippi Medical Center, Inc., defendant. - 3 - !rr-" ” ’TfrTi-y-; r 1'•-i•4I;4.4r IN TH E UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT NO. 76-2207 OTHA GRIGSBY, et al., P iaintiffs-AppeIlants, -v- NORTH MISSISSIPPI MEDICAL CENTER Defendant-Appe1lees On Appeal from the United States District Court for the Northern District of Mississippi APPELLANTS' BRIEF STATEMENT OF THE CASE I On August 20, 1974, plaintiff Otha Grigsby filed a complaint as a class action against the North Mississippi Medical Center (hereinafter called the "Medical Center") in Tupelo, Mississippi charging racial discrimination in employment in violation of 42 U.S.C. 1981. Plaintiff charged individually that - 4 - < he was terminated because of his race. (O.R. 1) January 14-, 1975, the District Court entered an Order granting plaintiffs' October 29, 1974 motion for leave to add plaintiffs-intervenors and to amend his Complaint (O.R. 52, 65). Specifically, Betty Sullivan intervened alleging that she had been harassed by defendant because of her race and Eular Young intervened alleging that she had been constructively discharged because of race. May 12, 1975, the District Court entered an Order granting plaintiffs' February 27, 1975 motion for leave to add plaintiffs-intervenors and to amend Complaint a second time. (O.R. 94, 97) This time, Eddie Black, Doris Collier, and Essie Sneed intervened alleging that they were, either actually or constructively, discharged by defendant because of race; in addition, Eddie Black alleged that he had been denied a promotion because of race. Intervenor Black had filed a complaint of discrimination with the Equal Employment Opportunities Commission (which resulted in a finding of discrimination), had received a "Right to Sue" letter and, accordingly, jurisdiction then vested in the district court under 42 U.S.C. §2000e, et seq. January 12, 1976, plaintiffs filed a Motion for Class Action Certification. (O.R. 108) The motion was referred to the U.S. Magistrate for a report and recommendations. On February 11, 1976, the magistrate filed his report and recommended that a class action, defined as follows, be approved: - 5 i.iuij: - ‘T T T r-T-rr-rec i Ju uS kU k̂ ĵ ik l̂ im̂ LU h'„̂ iiL V». .». .l it i M. .^ L .u ^ . . *, . . jMii-»̂i.M»r̂r-fe*yfcâ ^̂jr;ai‘î-»iii.JT«,tii~A.ftf̂aat'TTMi&̂aiaiiiitfla>fcTii -Mfat-'.iii!tai<a»̂ĵ. , -A. r\jMr̂>TTfW«'. n,î -̂j-J..1, -.*.-r. . 1 . ■» "&11 present, discharged, laid off, and future black employees of defendant who have been or may in the future be affected by any policy or practice of defendant of racial discrimination in the areas of initial job assignment, promotions, job classification, employee disciplinary actions and termination of employment." (O.R. 114) February 23, 1976, the Court entered an Order certifying the case as a class action, exactly as suggested by the magistrate. (O.R. 146) Plaintiffs filed three sets of interrogatories. The second set sought to discover information relating to all of defendant's complexes, units, divisions and departments. (O.R. 31) The defendant filed a motion for a protective order and refused to answer most of the interrogatories. (O.R. 54) January 24, 1976, after a hearing, the District Court granted defendant's motion for a protective order and required the plaintiffs to submit a third set of interrogatories relating only to post hiring employment practices at the Mental Health Complex and at the Baldwyn Satellite Unit, two divisions of the hospital only employing approximately 100 persons. (O.R. 84) Prior to trial Doris Collier moved to be dismissed and was dismissed as a plaintiff. Betty Sullivan was dismissed from the employment of defendant shortly before trial, m s . Sullivan i moved for leave to amend her complaint to include her dismissal and after that was denied by the Court, she withdrew her original complaint. (O.R. 147) - 6 - The case was tried on the claims of Otha Grigsby, Eular Young, Essie Sneed and Eddie Black and the defined class on February 23, 1976. February 27, 1976, after four days of trial, the District Court made a bench ruling (Tr. Tr. 895-916) and entered its Final Judgment for defendant on all issues. (O.R. 149) A notice of Appeal and Motion to Proceed in Forma Pauperis was filed by plaintiffs March 26, 1976 (O.R. 151, 153) and granted by the District Court on April 26, 1976. (O.R. 163) Plaintiff intervenor Eular Young on October 20, 1976, filed a Motion to dismiss her appeal. This appeal, then is advanced by Otha Grigsby, Essie Sneed, Eddie Black and the defined class of blacks. - 6a - Statement of Facts General The defendajit-appellee, North Mississippi Medical Center, Inc.^ operates three interdependent health facilities: (a) a 467 bed hospital in Tupelo which has between 18-20 different departments (e.g. housekeeping, dietary, nursing); (b) a separate 50 bed "satellite unit," itself a small hospital. *in Baldwyn; (c) a Mental Health Complex,, physically located within the * MjJJU hospital in Tupelo but operating a mental health program in a ten county area. (O.R. 116, T.Tr. 15-16) Defendant employs a hospital administrator who is responsible for all three facets. Authority for all relevant employment decisions, at the Baldwyn unit and the Mental Health Complex, lies in department heads who report to and work for superior department heads operating in the main hospital facility. (T. Tr. 17-18) Thre are no standards of any kind controlling any supervisor in his or her hiring, promotion and dismissal decisions. (T. Tr. 17, 20, 37, Ans. to Interrogatories, 40-41) Each department head is, and always has been, white. . In addition to the department heads the Medical Center has between six and nine other persons in general administrative positions at the Medical Center all of whom are and always have been white. (Exh. 135-138) No black employee has ever supervised any white employee in defendant's entire history. (P.Exh.64, Interrogatory 43). - 7 - The satellite unit and mental health complex employ approximately 100 persons, 27 percent of whom are black. As of November 30, 1975, defendant had a total of 1,120 employees, 814 (73%) of whom were white and 306 (27%) of whom were black. The Medical Center is located in an area that is 21 percent 1/ black. (Tr.Tr. 93) Statistical and Other Evidence of Employment Discrimination The Medical Center's work force can be conveniently divided into five (5) categories: (1) officials and managers; (2) professionals; (3) housekeeping; (4) dietary; and (5) business office and clerical personnel. At the Mental Health Complex and Baldwyn Satellite Unit the above categories are and have been, with few exceptions for the last five years, one hundred percent (100%) either black or 2/ white (Exhibit "A" hereto) All professional employees (excluding nurses) are and have been white, with the exception of Otha Grigsby 1/ During discovery plaintiffs attempted to discover information from the Medical Center relative to its employment practices in all of its departments over a 15 year period. However, the District Court, on Motion of the Medical Center for a Protective Order, ruled that plaintiffs could discover only employment practices relative to the Mental Health Complex and the Baldwyn Satellite Unit — the units where then named plaintiffs, Otha Grigsby, Betty Sullivan, and Eular Young were either employed or had been employed. Moreover, discovery was limited to the post-hiring practices of the Medical Center after January 1, 1970. (Tr.Tr.84) Most of the statistical data presented by plaintiffs therefore relates directly to the Mental Health Complex and Baldwyn Satellite Unit and only by inference to the remainder of the Medical Center. 2/ see on the following page - 8 - (the lead plaintiff), and three other blacks who were at best, "paraprofessionals" holding positions which do not require any training or even a high school diploma (O.R.323). Moreover, the "paraprofessionals" were hired as a part of a specially funded alcoholism program which has been discontinued; and currently there are no black professionals or "paraprofessionals." (O.R.31D-2/ In housekeeping, one of the least desirable and lowest paid categories, defendant, from January 1, 1971 to May of 1974, employed seven or eight blacks and no whites. (Exhibit "A" hereto) On May 27, 1974, a white (Polly Nelson) was transferred from the dietary department to housekeeping and (O.R.696) immediately made supervisor over all the blacks in the department. Ms. Nelson has only a ninth (9th) grade education, (O.R.697) has been employed by the defendant since February 2, 1970 (P. Exh., 64, p,12e) and has never worked in the housekeeping department. (O.R.695) Compare Ms. Nelson's qualifications to those of blacks; Irene Copeland has an eleventh (11th) grade education, has been employed by the defendant since July 28, 1969, and has always worked in the housekeeping department. (P. Exh. 64, p.l2m); Annie Richardson has been employed by the defendant since May 1, 1967, has always been employed in the housekeeping department and had an eight (8th) grade education? (P. Exh. 64, p.l2p) Helen Beene has been employed 2/ The only category on which plaintiffs have data covering the entire Medical Center (see f.n.l above) is officials and managers. No black has ever been so employed at the Medical Center although up to 59 whites have been so employed at a given time. (P. Exh.135) 3/ In January, 1975, there were 19 persons employed as professionals or "paraprofessionals," 2 persons (10%) of whom were black. - 9 - by the defendant since February 3, 1968, has always worked in the housekeeping department and has an eight (8th) grade education. (P. Exh. 64, p.l2m) Indeed, Ms. Nelson testified that Ms. Beene supervises in her absence: Helen Beene has been with the Medical Center for nine years and on the days that I am off she relieves me. If anything comes up Helen is in charge to see that things are done. (Testimony of Ms. Nelson, O.R.708) The defendant offered no explanation for its failure to promote any of the named black employees to the supervisory position nor did it explain why the housekeeping department has remained all black for at least the last five years, except for the white supervisor. The following is an excerpt taken from the testimony of the hospital administrator (Dan Wilford): BY THE COURT: Q. I think his question was if you had an explanation as to why during all these years, '71, '12, '12, '74 and '75 all the people that worked in the housekeeping department were black, with the exception of this one supervisor. A. No sir, I have no explanation (O.R.29) On January 1, 1971, eleven (11) persons were employed in the dietary department, eight (73%) of whom were white. From January, 1972 to May, 1974 there were ten persons who were working in the dietary department, seven (70%) of whom were black. From May, 1974 up to the date of trial there were nine persons working 10 in the dietary department, seven (78%) of whom were black. (Exhibit "A" hereto). Of the three whites employed, one (Ozelle McCarthy) is head supervisor, Nora Lovell is an assistant supervisor (O.R.34) and the thrid white (Polly Nelson) was promoted to supervisor after working for the defendant on a part time basis for only two months. (O.R.696) The white supervisors are no more qualified than the blacks whom they supervise. The head supervisor has an 11th grade education and has been employed by the defendants since May of 1969. Ms. Lovell has a grade school education and has been employed by the Medical Center since May 29, 1969, and Ms. Nelson, as noted above, has a ninth (9th) grade education, and has been employed by the defendant since February of 1970. (O.R.696) Again, compare these whites to black employees: Rosi Mae Richardson, whose educational background is unknown, has been employed by the defendant since October of 1967 (P. Exh. 64, p,12m) Ms Richardson was used by defendant to instruct Ms. Nelson in her responsibilities; coincidental to Ms. Nelson's promotion Ms. Richardson was made a "first line supervisor," (the first black to hold that position in defendant's history) but she still occupies a position inferior to that of Ms. Nelson; (Tr.Tr. 710-714) Rosie Lee Richardson has a ninth grade education and has been employed in the dietary department since September of 1968 ; (p. Exh. 64, p.l2m) Eulene Scales has a 12th grade education and has been employed in the dietary department since July of 1969. (P. Exh. 64, p.l2m) The testimony of the hospital administrator is representative of the explanation offerred by defendant for this discriminatory pattern: - 11 - ■i .: a .-. u.v a?r jx u n ,ii -■ »v> . u — ., ■ •' -- - Q. Do you have any explanation as to why from 1971 to 1975 the only whites that you had in the dietary department were supervisors or assistant supervisors? A. No sir. Q. Do you have any explanation as to why all of the workers in those departments from 1971 to 1975 were blacks? A. No sir. I assume that those were the jobs that they applied for or they were placed in after making application for employment. (O.R.39, 40) In January, 1971 and 1972 there were 11 persons employed in the business office and as clerical personnel none of whom was black. (Exhibit "A" hereto) In January, 1973, a black woman was employed but only under the same specially funded alcoholic program as the "paraprofessionals" referred to above. In addition, she was not working at the main unit or even at a branch unit of the hospital? rather she worked at the New Life Center, a walk-in center for alcoholics located in the black neighborhood in Tupelo. (Tr. Tr.469) In January, 1974, no black was employed as secretary. In January, 1975, there were 17 persons listed in the category of business office and clerical personnel, one of whom was black. (Exhibit "A" hereto) But she was employed after this lawsuit was filed and replaced another black that had been employed a few months earlier during an EEOC investigation into defendant's practices. (Exh.64, p.35x) Turning to job classifications, the Medical Center admits that 14 are, and for the last five years have been, occupied solely by whites. The classifications are: (1) Registered Nurse, (2) Head Supervisor, (3) Supervisor-Housekeeping, (4) Business Office Personnel, (5) Maintenance worker, (6) Medical Technologist, (7) Radiological 12 T■i'I Technologist, (8) Psychiatric Social Worker, (9) Recreational • ] Therapist, (10) Recreational Assistant, (11) Social Worker, (12) Coordinator-counselor, (13) Therapist and (14) Mental Health Worker. (P.Exh. 64, Interrogatory 13) amJ-i "• ;ili»i•«:''̂ L*.rTr4V>,ih ■ »~*Kfcr ~ i «Vi-V*C» « .** -•_■■ ■■«-»-., » _ T.— * \ -. .^u. .- ......r ■ -1 • j---__i. ̂JLi "-.v - , , - ,: ■ ; -- - - »■ - ,____ w i»-:. V.H i 1' A1 .11\i j The Equal Employment Opportunity Commission investigated a charge of racial discrimination filed by Eddie Black individually and on behalf of a class of black employees segregated to the lower job classifications. The EEOC found on the basis on the records at the Medical Center that there was probable cause to believe that the jobs were segregated according to race. The following excerpt is •j taken from the determination:J,.J "While only four persons at the Mental Health Complex serve in the capacities of Director, Supervisor, or Manager, and all are white, the North Mississippi Medical ■j Center, as of April 26, 1974, employs 26 officials and Managers and all are white. While 161, or 75 percent of .] its black employees are employed in the lowest category, j that of service worker, only 221, or 31 percent, of its white employees are employed in this category." (P.Exh.90) The Medical Center has absolutely no explanatory evidence to rebut those statistics. STATISTICAL EVIDENCE RELATING TO V RACIALLY DISCRIMINATORY DISCHARGES Whereas, the black employees at the hospital comprise only 27 percent, the percentage of blacks discharged for cause is 44 percent. No evidence was presented by the hospital to explain why the discharge for cause rate for black employees is 17 percent higher than the percentage of blacks employed by the hospital. The following excerpt is taken from Mr. Wright's (the Personnel Manager) testimony: - 13 - •IT - 3? V" >-■ •>. vi. ~ • ■ ^ ■ ■ n / . . r v ; . r ^ ' »-■ ••• - ---- :. ■•.rr v- - -•■— - — -.---- >,-•. - - i. -I )] 3 ii ■1 •j • \ Q. How do you explain the fact that 27 percent of your employees are black and yet 44 percent of those dismissed for cause are black? That is about a 17 percent differential. A. I don't know that I can realistically tell you the reason why. I guess my off-the-head comment would be that people who are terminated for cause are newer employees, probably in less highly skilled areas, prone to terminate because of the type of work that is being done. It is a more transient group of employees, I would imagine. (O.R.836) NAMED PLAINTIFFS Otha Grigsby, the lead plaintiff, holds a B.S. Degree from Alcorn A&M University and a M.S., from the University of Mississippi. (O.R.534) He was employed by the Medical Center in the Mental Health Complex as an Occupational Health Special ist on August 23, 1973 (P.Exh.64, p.120). Before being em ployed by the Medical Center, Grigsby had years of experience in industry at both the production and supervisory levels. (O.R.552) He was terminated one year after being employed, in August, 1974, by Duncan Clark, the Director of the Mental Health Complex (P.ExH.31) I-1j Grigshy was the first and last truly professional black to be employed by the Medical Center in the Mental Health Com plex or Baldwyn Satellite Unit. He was hired as part of a specially funded Mississippi Occupational Health Program, established to assist employers with troubled employees, e.g., those with alcohol problems, and administered through Mental Health Complexes throughout the State; the Mental Health Com plex of the defendant Medical Center was responsible for the program in Lee and ten surrounding counties. Grigsby's 14 r tn r t^ H i’a * - '-' ’ ■ -- responsibility was to solicit participation in the program. (Tr. Tr. 16, 356, 357) Grigsby's initial tasks included compiling information on the various industries and businesses in his 11 county area, preparing an Industrial Health Program, and obtaining signed contracts from businesses confirming their participation in the program. (O.R. 536) It took Grigsby approximately two months to gather statistical and other data on the businesses in his area. (O.R. 555) During this time Duncan Clark set up two industrial luncheons. After Grigsby gathered his information and the luncheons were held, he attempted to obtain signed contracts, but faced the following obstacles: (1) the program was new and had to be explained in detail to each business; (2) the program was in "contract" form; (3) there was a fee provision in the contract; (4) Grigsby was not allowed to demonstrate how the program worked; (5) some of the businesses were waiting to see how-the program worked at other companies; and (6) Grigsby was black and all of the businesses were managed by whites. Because of the aforementioned obstacles, the program was not accepted initially by the businesses. However, the program was not being accepted well in other regions of the State of Mississippi. (Tr. Tr. 580) Around April, 1974, the program was revised with the burdensome "contract" and the fee provisions deleted. (O.R. 540) Grigsby again diligently sought industry - 15 - participation. (Tr.Tr.542) He obtained his first signed agree ment in June, 1974, and his second, third, fourth and fifth between June and August, 1974. In January, 1974, Clark had told Grigsby to get four signed contracts within his first year, and this requirement had been exceeded. Nevertheless, Grigsby was terminated on August 14, 1976, through a letter praising him for his initiative, enthusiasm, cooperativeness and responsibility. He was told that the program would take a clinical approach for which he was not qualified. (Exhibit "B" hereto) Grigsby was replaced with a white, Douglas Von Horn, who also had a Bachelor's and a Master's Degree. He was fresh out of school and had no supervisory experience in industry. (O.R. 738, 739) Compare the experience of Grigsby with that of Eldridge Flemings, a white man hired in June, 1969, as Director of Education and Alcoholism Programs. His first assignment was to develop an "Industrial Alcoholic Rehabilitation Program," (O.R. 202) remarkably similar but narrower in scope to Grigsby's "Occupa tional Health Program." (O.R.210) After six months, Flemings was not able to obtain one signed agreement. (Tr.Tr.192,1202) However, Flemings was not terminated; his title was merely changed from "Director of Education and Aicohol Programs" to "Director of Alcohol Programs^" (Tr. Tr. 186) Eddie Black, a black intervenor, holds a Bachelor's Degree in Social Science. (P.Exh.87) He, with Alvin Thomas, 16 ■ m -mt-hmfivu' ~ m V ■■'T'N j also black, was hired in July, 1972, as a Manager-Counselor of a New Life Center, a walk-in facility for alcoholics, located in the black community of Tupelo, Mississippi and a facet of the alcoholics program of the Mental Health Complex. Three other black employees were also employed in the program, all in inferior positions. (Tr.Tr.468-69, Def.Exh.25) Supervising this program were two white men: Buddy Ramage, the Coordinator of Counsellors and Eldridge Flemings, the Director of the Alcoholism Program, both sta tioned in the Mental Health Complex in Tupelo. Intervenor Black contends that upon Ramage1s resignation he, and other black employees, were denied the Coordinator of Counsellors position because of their race. assigned to the Mental Health Complex and for six weeks per formed most of the duties formerly assigned to Ramage. (Tr.Tr.473, P.Exh.110) Thereafter, Black attended Atlanta University where he earned a Diploma in the Alcoholism Counselor Program which qualified him "to work with individuals, groups, and and communities on the problem of alcoholism." (P.Exh;86) This background, and the guidelines of the program and regu lations of the Medical Center affording incumbents a prefer ence for all promotions and vacancies, (P.Exh.105 and 32) suggested that plaintiff intervenor or Mr. Thomas should have received the vacant Coordinator of Counsellors position. Upon Ramage’s departure, Black and Thomas were -1 17 y The Coordinator position was filled on July 2, 1973,j with a new employee, Kelly Ferguson, a white male. He had only 5 a Bachelor's Degree and had no counselling experience except for that obtained while working in a half-way house in the Army. (P.Exh.64, p.35r, Tr.Tr.458) Thereafter, Black and Thomas com plained to the EEO officer of "LIFT" (the funding source for the 5 program), (Tr.Tr.886), which resulted in Flemings compiling a statement of why none of his black employees was promoted. ‘.I (D.Exh.25) Flemings then called a meeting of such employees . and advised them of his disposition. (Tr.Tr.475) Thomas resigned in frustration. Black filed a charge of racial discrimi nation with the EEOC and also resigned somewhat later. Plaintiff's claim of unlawful discrimination was upheld by the EEOC in a compelling determination: "In summary, the evidence indicates that Charging Party's original application indicated that he desired the position of Coordinator of Counselors, that at the time this position was filled he and another black employee were carrying out most of the duties of this position, and Charging Party's performance had been highly rated by his super visor just a few months prior to this position being filled. Further^the record shows that while the staff was told that the position would not be filled, the Director of the Program pro ceeded to fill the position without internal announcement of the vacancy to the staff, which employees, without exception, said had been done in the past. Finally, while all the decision makers regarding this position were white, the two staff members, both black, who, by virtue of having been carrying out the functions of the job, would have to be considered leading con tenders for it, were not even told that a vacancy existed and thus given an opportunity to apply and be interviewed for the position." (P.Exh.90, p.5) - 18 - -f h . ~ r ' V , ; ‘ J- - ' . * ■ * ■ ' ,« !» * --a* ii V v.. ---:• ~^--- - ru-ĝ -v̂ -v-:.- ,-%_w--- -- Essie Sneed, a black, was employed by the North Mississippi Medical Center on December 17, 1975, as a nurse's aide. Sneed has an 11th grade education, has six children and had previous work experience mostly as a housemaid. The job as nurse's aide entailed serving breakfast, taking temperatures, and assisting the nurses in other various duties. (R.vol.IV,pp.622,623) After working at the Medical Center for a few weeks, Sneed injured her back while lifting a patient in bed. She was immediately sent to the emergency room where she was treated by Dr. Harris (an employee of the Medical Center) who advised her to remain off work and attend therapy sessions. Sneed returned to work a few weeks later and had a re-occurrence of back problem. Sneed obtained medical treatment while she continued to perform her duties. Defendant terminated plaintiff on March 5, 1974, while she was hospitalized for her on-the-job injury. (R.vol.IV, pp.624,625,627) The Medical Center has a 90-day probationary period during which an employee can be fired for any reason. Plaintiff was within the 90-day period when she was fired for absenteeism. However, it is also the policy and practice of the hospital not to fire a person for absenteeism if the employee is hurt on the job: BY THE COURT: Q. Is there any exception to that rule where an employee is hurt on the job? Do you mean you have a rule there that during the j& a ta e a a u a fa < a M h -VV . period [of probation] if the employee suffers an injury on the job, that to take sick leave or be away from work on account of injury would for feit her right to complete her employment? A. No sir, that is not what I meant to say. Our sick leave policy for employees injured on the job differs from our policy that deals with em ployees who become ill on their own. If an employee were hurt on the job we would certainly extend the probation ary period to make sure that we had a full three months to look at them and have a full three months to look at us. (R.vol.IV,p.826, testimony of Barry Wright, Personnel Manager). It is undisputed that (1) the policy of the hospital is to not fire a probationary employee for absenteeism if related to on-the-job injury; (2) Sneed was injured on the job and indeed was hospitalized as a result ,at the time of her dis charge; (R.vol.II, pp.77,80) (3) the treatment accorded Sneed was different from that accorded white employees under similar circumstances; (R.vol.IV, pp.628,637) (4) the Medical Center provided no explanation for its treatment of Sneed, nor could it name any whites who had been similarly treated. 20 ARGUMENT ONE Plaintiffs Established a Priraa Facie Case of Class Discrimination. The district court's bench opinion at first addressed only the named plaintiffs' individual claims of discrimination. After specific inquiry from plaintiffs' trial counsel, the court provided the following - and only the following - explanation of its decision as to the class: Although the Court is of the opinion that the named plaintiffs and plaintiff intervenors made out a prima facie case on their individual claims, the Court believes that the proof was wholly insufficient to make out a prima facie case against the defendant as to the plaintiff class. Accordingly, the burden of proof never shifted to the defendant on the class issue. (Tr.Tr. 914-915) A prima facie case of racial discrimination, under Title VII, is established by statistics alone. "The inference [of discrimination] arises from the statistics themselves and no other evidence is required to support the inference." United States v. Hayes International, 456 F.2d 112, 120 (5th Cir. 1972). Sagers v. Yellow Freight Systems, Inc., 529 F.2d 721, 729 (5th Cir. 1976) (and see lengthy citation td additional authorities in Sagers, 529 F.2d at 729, n. 16). The district court erred in not finding for appellants in light of the compelling statistical case and additional evidence of class discrimination. With reference to the administrative personnel at the Medical Center, there were 59 officers and managers as of 1972, none of whom was black. From 1973 to 1975 there were at all times either 25 or 26 officers and managers, (it appears that 32 or 33 of the employees previously classified as officers and managers were reclassified) none of whom was black. The Medical Center has never employed a black in an administrative * -»r capacity, even though 27 percent of its work force is black and even though it is located in an area that is 21 percent black geographically. Furthermore, in 1975, of the 25 whites serving as officials and managers, five had only a high school diploma. In the business office - clerical personnel category, racial discrimination is also demonstrated by statistics. From 4/ 1971 through 1974, defendant's staff was entirely white; in 1974 the first black secretary was hired. The exclusion of blacks from such positions through 1974 and the subsequent employment of only one such person, is a facet of a prima facie case of unlawful discrimination. In Housekeeping, from 1971-74, appellee employed seven or eight blacks and no whites. In May, 1975, one white (Ms. Nelson) was transferred from Dietary to Housekeeping and immediately made supervisory over the seven more qualified blacks. 4/ In 1973, defendant employed a black secretary to work at the New Life Center which was located in the black community of Tupelo and part of a specially and separately funded program; she answered to Thomas and Black, two black employees of the same program. 22 In 1971, appellee's Dietary Department consisted of 11 persons, eight of whom were black. From 1972 to 1974 it consisted of ten persons, seven of whom were black. In 1975 it consisted of nine persons, seven of whom were black. From 1971 through 1975 every white employee of the Dietary Department was a supervisor. t1 . Although plaintiffs were not permitted discovery on the termination practices of the whole hospital, appellee demon strated that although blacks comprise only 27 percent of the work force, they are 44 percent of those discharged. Although plaintiffs could have successfully relied upon the foregoing proof for their priraa facie case, they went much further. They particularized the pattern revealed by the statistics with proof of discrimination against individual employees. Thus, it was demonstrated that defendant has employed a total of four blacks as "paraprofessionals;" two (Prude and Coleman) were discharged (not transferred) when funding for the special alcoholism project was reduced; the remaining two (Black and Thomas) were forced to resign when they were passed over for a critical promotion awarded to a white man recruited from without the agency. Predict ably, the position in question. Coordinator of Counselors, had always been restricted to whites. Plaintiffs also demonstrated that Ms. Nelson, made supervisor over all blacks in the Housekeeping Department, had never before worked in that department and was taught her responsibilities by the black employees in her charge. - 23 - .^■'.■■•^...^wi>,«■; , Aggravating matters, Ms. Nelson had previously been made . supervisor in the Dietary Department after working there part-time for two months. Under well established indistinguishable precedent plaintiffs made out a prima facie case of racial discrimination against the defined classes. The district court erred in holding otherwise. 24 'l l— L.. I— - .V, ~_a s-l. s--~ ..-■:. ,- . -< - ARGUMENT TWO Employment decisions based entirely upon the subjective judgment of an all-white supervisory staff which result in the promotion of only whites, or the employment of only whites for positions of responsibility, or which result in disproportionate discharges of blacks, are violative of Title VII. And defendant's discharge of plaintiffs Grigsby and Sneed and its failure to promote intervenor Black and similar situated class members violated Title VII. ii “ In Watkins v« Scott Paper Co., 530 F.2d 1159, 1193 (5th Cir. 1976), the Court found the following facts combined to render defendant's promotion decisions violative of Title VII: (1) the supervisor's recommendation for a promotion was critical; (2) supervisors were not given written instructions controlling their decisions? (3) standards in existence were "vague and subjective;" (4) incumbent employees were not notified of vacancies or the necessary qualifications; (5) there were no _4/ "safeguards" to avert discriminatory practices. J1 -4/ Watkins is merely recent authority for a principle now entrenched. Rowe v. General Motors, 457 F.2d 348 (5th Cir. 1972) ; Baxter v. Savannah Sugar Ref. Corp. 495 F.2d 437, 442 (5th Cir. 1974) United States v. N.L. Industries, Inc.. 479 F.2d 354, 367-68 (8th Cir. 1973). Brown v. Gaston County Dyeing Machine Co^ 457 F.2d 1377 (4th Cir. 1972). 25 All of the deficiencies enumerated in Watkins are present in the case sub judice; T. Tr. 37-41, Pi. Exhibit 64, Interrogatories, 40-41. It is clear, too, that these deficien cies have resulted in blacks being passed over for all meaningful promotions, since defendant freely admits that not one of its black employees "in the ordinary course of his duties...exercises general supervisory authority over any white person or persons." (P. Exhibit 64, Interrogatory 43). The trial court erred in not directing modifications to defendant's employment practices required by Watkins. The district court, perhaps in light of Watkins, found that named plaintiffs had established a prima facie case of unlawful discrimination. However, it found that prima facie case rebutted by proof that defendant's decisions were made in "good faith" and were not "illegally motivated:" While it is no doubt true that Mr. Grigsby holds a bachelor's and a master's degree as does- his successor, Mr. Van Horn, the Court does not intend at this point to pass upon the question of whether Mr. Grigsby possesses the necessary qualifications for the job from which he was dis charged or whether Mr. Van Horn possesses qualifications superior to those of Mr. Grigsby. The only question which is now before the Court and which the Court will address is whether Mr. Grigsby's discharge was prompted by illegal motivation, that of race. In the Court's mind, the evidence shows that it was not.... More specifical ly, the Court finds that Mr. Clark, acting in good faith, discharged Mr. Grigsby because he, Mr. Clark, felt that Mr. Grigsby was not per forming adequately. Whether Mr. Grigsby's performance was adequate or inadequate is not for the Court to decide. (Tr. Tr. 902-903) (emphasis added). - 26 - .M S; i. _.r Grigsby proved by a preponderance of the evidence that he performed satisfactorily, that he possessed the necessary qualifications for the position and that the white who replaced him was not more qualified. The district court required that Grigsby prove more- that he was intentionally and in bad faith victimized. Title VII requires no such proof. Local 189, United Paperwork v. United States. 416 F.2d 980, 996 (5th Cir. 1969). Albemarle Paper Go., v. Moody. 422 U.S. 405, 422-23, 45 L. Ed. 2d. 280, 299 (1975). In ad dition, the district court's refusal to compare the qualifications of named plaintiffs with those of the whites who obtained the positions sought or held by named plaintiffs, was clearly improper under controlling principles. East v. Romine Inc.. 518 F.2d 332, 340 (5th Cir. 1975). - 27 - ARGUMENT THREE Plaintiff Sneed's Prima Facie Case Was Not Rebutted. It was established that Essie Sneed was employed by the Medical Center in December, 1973 as a nurse's aide and that she was injured while performing that job. It was further established that she was fired for absenteeism necessitated by this injury in the face of a Medical Center policy not to fire a person for absenteeism if it resulted from an on the job injury; supra. pp. 19-20. The District Court found that Sneed established a prima facie case and required defendant to come forward with rebuttal evidence. (T. Tr. 911) The one witness presented by the Medical Center testified that it was not the hospital's policy to fire an employee for absenteeism related to an on-the-job injury. No other proof relating to the merits was advanced. Defendant apparently relies entirely upon the fact this plaintiff, at her deposition, stated that she did not think that her race was a factor in her treatment. This "admission," explained and withdrawn by the plaintiff at trial, is the sum and substance of defendant's defense. (T. Tr. 634-646) We know of no Title VII requirement that a named plaintiff be able to define racial discrimination or know that she was so victimized. Judges and lawyers expert on Title VII often erroneously find no discrimination. - 28 - K- 'i C? .. :; :' .- - v. A . : . AA A. ., I. '- . . ■i .-L -.. : .1 . :-- --- --- A t'- .-. ,-- --- --- --- --i __ ■„ .. __ __ - J — And this kind of admission by a plaintiff has been held irrelevant to a Title VII claim. Rodricruez v. East Texas Motor Freight. 505 F.2d 40, 59 (5th Cir. 1974). Ms. Sneed filed this lawsuit claiming racial discrimination; from that point forward the issue was not whether she knew she was victimized but rather whether she was in fact victimized. ARGUMENT FOUR The District court Improperly Limited Discovery. October 29, 1974, plaintiffs propounded a second set of interrogatories against which defendant sought a protective order. The district court, on January 2, 1975, entered an order sustaining defendant's objections and limiting discovery to the Mental Health Complex and the Baldwyn unit. (O.R. 85-86, 89-90). January 2, 1976, plaintiffs filed a motion for class action certification. (O.R. 108) February 23, 1976, the district court, on the basis of a lengthy and cogent recommendation from the Magistrate, (O.R. 114-46), granted class certification for all facets of defendant's operations. Trial began on the very day this certification was granted. And so plaintiffs faced the burden of proving across the board unlawful discrimination at all of defendant's facilities while under a January 2, 1975 order limiting discovery to only two facets of defendant's operation. - 29 - ' . ...... ■-:v...l-1~± -;ai'..,_■ , . " • - '- -’------- ■ ~£ -» ■ .' - ■ --■_ : : ,'.■ Of course, the district court on January 2, 1975 did not anticipate the later broad class certification. But no matter the explanation, plaintiffs could not possibly adequately present proof of class discrimination in all facets of the hospital without the discovery foreclosed by the Court on January 2, 1975. And on remand plaintiffs should be permitted to advance a more complete statistical case. Burns v. Thiokol Chemical Corp. 483 F.2d 300, 306 (5th Cir. 1973). - 30 - >r * u (■min ♦ ■■-nr , 1l ■4j;j j CONCLUSION For the foregoing reasons the following district court determinations must be reversed: that no prima facie case of class discrimination was established; that defendant did not engage in any policy or practice violative of Title VII; that defendant's successfully rebutted named plaintiffs' prima facie cases; limiting discovery to two facets of defendant's operation while certifying the case as a class action for all facets. And the case should be remanded for the entry of appropriate relief for the class and named plaintiffs. Respectfully submitted, 10 Columbus Circle New York, New York 10019 KENNETH MAYFIELD 303 1/2 West Main Street Tupelo, MS 38801 Attorneys for Appellants EXHIBIT A Mental Health Complex and Baldwyn Satellite Unit EMPLOYEES BY RACE HOUSEKEEPING DEPT. Black White Total Percentage Black Jan. 1, 1971 7 0 7 100% Jan. 1, 1972 7 0 7 100% Jan. 1, 1973 7 0 7 100% Jan. 1, 1974 7 0 */ 7 100% Jan. 1, 1975 7 1 8 87.5% */ The one white in the department is the supervisor. She was transferred from the dietary department in May, 1974.(Tr.Tr.28) DIETARY DEPT. Black White */ Total Percentage Black Jan. 1, 1971 8 3 */ 11 73% Jan. 1, 1972 7 3 */ 10 70% Jan. 1, 1973 7 3 */ 10 70% Jan. 1, 1974 7 3 */ 10 70% Jan. 1, 1975 7 2 9 78% *_/ All the whites employed in the dietary department are supervisors. (Tr. Tr. 32-35) - 32 - i3 :I■A ■ k ■•— a w / t -- ■ ■ » T ~ i '^ r j - v A . /> ¥ S u ' , - . U . ■-- « . , ^ ■ ',. f Y ^ Exhibit A page 2 BUSINESS OFFICE & CLERICAL PERSONNEL Percentage Black White Total Black Jan. 1, 1971 0 11 11 0 Jan. 1, 1972 0 */ 12 12 0 Jan. 1, 1973 1 10 11 10 Jan. 1, 1974 0 15 15 0 Jan. 1, 1975 1 16 17 .06 V' This one black secretary was hired on a specially funded Alcoholism Program. She was not working at the Main facility of the hospital but was working at the New Life Center which is located in a black neighborhood in Tupelo. PROFESSIONALS (Excluding nurses) Black Jan. 1, 1971 ~*7 1 Jan. 1, 1972 */ 2 Jan. 1, 1973 */ 4 Jan. 1, 1974 *,/ 3 Jan. 1, 1975 */ 2 Percentage White Total Black 9 10 10 11 13 15 10 14 29 14 17 18 17 19 10 */ All the blacks except one were employed in an al coholism program which was specially funded project and is not currently in effect. Moreover, by admission of defendants all of the blacks are "paraprofessionals" in that their jobs do not even require a high school education. The one black not included in the alcoholism program was Otha Grigsby and he was discharged and is a party to this lawsuit. - 33 - T.w’;■ 1 *t;̂:rr7r!:"-Pyf- 1- u te a itk C>oynpLex. | | *30 * SERVING. BENTON. CHICKASAW. ITAWAMBA. ' LEE. MONROE PONTOTOC AND UNION COUNTIES 1<■ COUNTT OFFICES BENTON COUNTY Benton County Clinic Building Ashland. Miuiuippi J8402 Phone 224-8883 CHICKASAW COUNTT 223 Eaat Washington Houston, Mississippi 38SS1 Phone 453-4239 ITAWAMBA COUNTY Crane Office Building Bo* 87 Fulton. Mississippi 38843 Phone 852-9898 ------ MONROE COUNTY ^ East Comma re# Street Box 18 Aberdeen, Miseiseippi 39738 Phone 449-2922 PONTOTOC COUNTY Boone Building Box 263 Pontotoc, Mississippi 38883 Phone 489-8141 UNION COUNTY Room 11, Houston Buildins Bankhead Street New Albany. Mississippi 38882 Phono 534-5009 ■1 - * I. GLOSTER STREET • PHONE 801-848.3032 (EXT. 384) TUPELO. MISSISSIPPI 38801 August 14, 1974 Mr. Otha Grigsby Occupational Health Specialist * Mental Health Complex North Mississippi Medical Center Tupelo, Mississippi 38801 Dear Otha, Because of the limited response of industry to the Occu pational Health Program, it will be necessary for your employ- ment as Occupational Health Specialist to terminate on August 30, 1974 with two weeks additional pay in lieu of your annual vacation. You are being 'laid off" rather than discharged. (See page 8 of Employee's Handbook"). The reason is non-disciplinary be cause of such "limited results on the^part of industry, as you and I first discussed on May 8, 1974, and at which time.you were issued a warning notice. This termination notice is in agreement w'ith our • conversation <Jn June 28, 1974_at which time you were given two weeks' notice and guaranteed a job-until July 12, at which time you would go on a week to week" basis until a satisfactory replacement could be secured. This is also wri-tteTi confirmation of our conversation on August 12, 1974 at which time you were told that a satisfactory replacement has been secured and that your last working day will be August 30, 1974. The program will take another approach which will require a specialist with clinical skills to provide clinical consultation to personnel directors about their problem employees. I deeply regret- that your training as a Sociologist does not include such a clinical orientation. However, your initiative in this new program has provided a use-- .ful experience for the Mental Health Complex and the entire staff is grateful for your initiative.- This means that if you care to use the Mental Health Complex as a reference in seeking employment, you will be given a positive f t - % % ✓f \\ i£ EXHIBIT B -1̂ ji u t. i, :.. -i ,.' ... y . t - p ' ia Exhibit B -2- page 2 recommendation based on your enthusiasm, cooperativeness, and responsibility. Sincerely, Duncan As Clark . Center Director Mental Health Complex - £ L , < l - r Elizabeth Ford \ Assistant Administrator North Mississippi Medical Center DAC/pp