Causey v. Ford Motor Company Court Opinion

    41() .')!(; r i :m;uAi- i{ i :im) i{t k k , 2d si;inKS

Juanila C'AIISKV. I’ laiiitifr-A|>|H'llaii(,

V.

FOKI) MOlOK t'OMl’ANV H al., 
DoOndantH-ApiHdIoes.

No. 71-2.373.

United Stato.s (tuiirt of Apjieals,
Fifllt (Jircuil.

•luiy 24, 197.'').

(4vil rif^hls action was filed hy f»‘- 
niale omployic anainsl employee .and un­
ion whofein shi; alleg'ed sex ili.scrimimi- 
lion and .son>rhl injunctive ladief as well 
as hack pay, compensatory st'riiority and 
attorneys’ fees. The United States Dis­
trict Court for the Middle District of 
Florida, at .laeksonville, (tharles K. Scott, 

382 F.Su|)p. 1221, entered judjrment 
for defendants, and plaintiff appealed. 
The Coiirt of Appeals, Hell, Cinaiit 
.Judge, held that plaintiff who was n.‘- 
cruited and hinal for joh as w.arehou.se 
stockhandler through one of employer’s 
allegedly discrimimitory methods could 
not c'hiim indi\ idutd injury from recruit­
ment discrimination; that plaint iff suffi­
ciently estidilished .S(,'xual di.scriminalioti 
with respect to Iut em|)loyment as wate- 
house stockhamller; that twiditice o f­
fered l>y (.'mployer was sufficiimt to r<!- 
hut plaintiff’s primti facie case of dis­
crimination in rehiring; and that plain­
tiff failed to |irove any sexual discrimi­
nation on p;ut of union in the handling 
of h(!r gri(!vances against employer.

Affirrni'd in part; r<;versed anil re­
manded in part its to employer; af­
firmed as to union.

I. Civil KiKids Orj i;i, 14(1)
I’laitdiff had hurden of e.sl ahlishinp 

a prim.a facii' case of disci'imlnal ion in 
civil rip.hls einployment. di.scriminal ion 
c.ase; once prim.a facie I'ase was esl.ah- 
lislu'd, hurden to articulate some legiti­
mate, nondiscriminatory reasons for .ac­
tion shifted to defendants; upon rehut- 
t;d (widence being offered, ullimale hur­
den of [lersuasion hy preponderance of

I'vidence that disimimination had tak»ai 
place fill upon plaintiff. Civil Rights 
Act of Rlfil, 5} 703(a) as amended 42 U.S. 
C.A. § 2(»00e 2(a).

2. Courts '3̂ ='10(!.3(I0)
Under "detirly erroneous” test for 

tipjiellate review of district court find­
ings of fact, a finding is clearly errone­
ous when, idthough tluna‘ is evidence to 
support it. reviewing court on entire evi­
dence is left with definite and firm con­
viction that :i mistake has heen I'ommil- 
ted hy the district court. Fed.Ruli's Civ. 
Proc. rule .̂ >2(a), 28 U.S.C.A.

3. Courts '3^406.3(13)
In civil rights emiiloyment discrimi­

nation cause, !i finding of discrimination 
or nondiscrimiruition was a funding of 
ultimate fiict, and thus Court of Ap|>eals, 
in reviewing district court’s findings, 
would make inde)K“ndent determination 
of apjiellanl’s allegiitions of discrimina­
tion, even though Court was hound hy 
findings of suhsidiary fact which were 
themsc'lves not ckairly erroneous, and 
court also wais reipjirisl to determine 
whether there were reipiisite suhsidi.ary 
facts to undergird the ultimate facts, 
t'ivil Rights Act of l ‘.M>4, § 703(a) :is 
aim-nded 42 C.S.C.A. § 2000e-2(:i); Fed. 
Rules Civ.Proc. rule .'>2(a), 28 U.S.(’.A.

4. Civil Rights <3=!).10
Whatewor nature of present hiring 

prjictices, they neither explain nor justi­
fy, without more, past failure to hire 
minority joh apjilicants. Civil Riglits 
Act of 1904, 703(a, c), 700 ;is amended
42 U.S.C.A. §§ 2000e 2(a, c), 2000e .O.

.O. Civil Riglits c^4J
Fcmi.'ile who was reeruitcsl and hired 

for joh as warehouse stockhandler 
through oni.‘ of (unployer’s allegedly dis­
criminatory methods could not claim in­
dividual in jui y from reel nil meut dis­
ci imiiial ion. t'ivil Righls All of P.lCi-l, 
tj 703(a) :ci amended 42 II.S.ttA. 
ij 2()00e 2(a).

0. Federal Civil PriK-edure C^>I84
Class relief for rei'ruilnient discrimi­

nation automal ically heeame inappropri­
ate where phiinliff was not representing

7. (

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find- 
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riini- 
I'ltion 
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linjjs, 
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nina- 
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facts, 
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Foil. 

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■iiring
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CAUSKY V. FOUl) 
Cil«- as ."iH5 I

a class of discrimiiiatocs. ri\ll ItiKbts 
Act of UMVl, § 70:i(a) as amondcil 12 U.S. 
C.A. § 2000e-2(a).

7. Civil KiRlits o=.9.11
If female applicant for warehouse 

position was not hired before five males 
solely on basis of sex, employer’s later 
job offer could not riRhl the statutory 
wrong that it had earlier committed. 
Civil Rights Act of likU. §!? 70;i(a. c), 7Ut; 
as amended 42 IJ.S.C.A. §§ 20U0e 2(a, c), 
20t)0e r>.

rojiri-
nting

8. Civil Rights fi=9.14
If, because of her sex, femah' appli­

cant for wari'house position was not 
hired before men, ein|)loyer could not 
discount such discrimination by mingling 
female’s suliscipient initial employment 
date with dates two men were hired. 
Civil Rights Act of RkU, §§ 702ta, c), 706 
as amcndeil 42 U.S.C.A. §§ 2000e 2(a, (), 
2000e 5.

9, Civil Rights c=>4Ur))
Female civil rights plaintiff suffi­

ciently established sexual discrimination 
with respect to her employment as ware­
house slockhandler. despiti' employer’s 
contention that previously hired males 
were better ipialified than female pluin- 
l i f f  for job openings at warehouse. Cdvil 
Rights Act of 1961, §§ 7t«(a, c), 7or> as 
amended 42 U.S.tl.A. §§ 2000e ’2(a, c), 
2l)00e f).

10. Civil Rights c=14(r>)
Kvidence offered by employer that 

female warehouse stockhaudler s job |>er- 
formance had been marginal during ini­
tial five days of employment, that she 
had been a disruptive influence on ware­
house operations and that her husband 
had reipiested a transfer at time rehiring 
bi’gan was sufficient to rebut finnale 
employee’s prima facii- case of discrimi­
nation in rehiriiig. Civil Rights Act of 
Itk’U, 70:t(a, c). 70('. as amended 42 
U.S.C A. ’ZOOUe 2(a, c), 2000e 5.

11. Civil Rights rs^lltr.)
Feniak' warehouse stockhaudler 

failed to carry her burden of persuasion 
on claim of sexual discrimination on part 
of emplo.ver in its failure to rehire him

r ?ti ?7

M O  )R C O M l ’ A N V  4 1 7
■.'Jil I I I )  ( I ' .U . ' ) )

siibse.pient to being laid off. Civil 
Rights Act of 1961. §§ 70:t(a, c), 706 as 
amended 42 U S.C.A. §§ ’2000e ‘2(a, e). 
2U0t)e 5.

12. Civil Rights g=44(5)
Kvidi'iice failed to (>stablish claim of 

fimiale warehouse stockhaniller that em­
ployer hail discriminated against her by 
not providing adeipiate restroom 
ties anil supplies at warehouse. Civil 
Rights Act of Hk’vl, §!? 7(l2(a, c), 706 as 
amendeil 42 U.S.C.A. ‘2(MK)e 2(a, c). 
2lK)0e T).

i;i. Civil Rights ©=>44(6)
Female warehouse stockhaniller s 

claim that extra ha/.ing she receivisl 
from her fellow employees was product 
of sex discrimination on part of employ­
er was unsupported. Civil Rights Act of 
Itk’i'l, §§ 70:i(a, c), 706 as amended 42 
U.S.(7A. §§ 2000e 2(a, c), 2000e 5.

14. Civil Rights ©=^41(.6)
Female warehouse stockhaudler, on 

claim that union had discriminated 
against her in processing grievances, had 
luirden of proving by preponderance of 
evidence that union’s alleged actions 
were arbitrary, liiscriminatory or in bad 
faith Civil Rights Act of 1961, § 7(W(c) 
as amendeil 42 U.S.C.A. § 20(K>e 2(a).

1.6. Civil Rights c=>44(5)
Female warehouse stockhaudler 

failed to prove any sexual discrimination 
on iiart of union in the handling of her 
grievances against employer. (7vil 
Rights Act of Itk’vl, § 70:t(c) as amended 
42 U.S.C.A. § ’2000e '2(a).

Reese Marshall. Uarry R. Jackson. Karl 
M. Johnson, Jacksonville, Fla., for plam- 
tiff-ap|iellanl.

(hiry Ik 'I'uHis, Jere D. McWinti, Jack­
sonville, Fla., for Ford Motor Co.

Richard II. Frank, I’ampa. Fla., for 
United Automobile Workers, etc. and
...... 970.

A]i|ieal from 
tiict Couit for 
Florida.

1 Inited 
Middle

States Uis- 
District of



IS'

)KI{AI. mj'OffTKff.  L>(| SKlfllOS

liclorc HKM,, DYKK iiimI SIMPSON 
(■ircilit .IlKijrcs.

HIOI/P, ('im iil ,In(I(>(':
1 Ills ;i|)|)(>:il is taKi ii from a ju(lfr„|,.,,( 

:ulv(>rs.' 1.) appollanl Juanita Causey in 
her employ,n.nt diseriininalion action 
ufrainst I'ord Motor Comjjany, I In.- Unit­
ed Autoniohile, Aeros|,ace, and Aj^ricul- 
lural Implement VVorkei’s of Ameiica 
(U AW ) an.l its Local <I70. Suit was 
I'rouKht unde,- Title VII of ||„. Civil 
Ilifthts Act of [JO li.S.ttA
§§ 200ne 2(a) (Fo,-d), 2IK)l)e 2(c) (the Un­
ion)), aj.pellant alle>rintr di.sc-iniinatio,, 
I'lisod on .sox in Ko,-d’s |,i,-inK and e,n- 
ployment practices, and in tlu- union’s 
e,„ployee re|>,-e.sentation.' T|,o district 
com-t ml,si that appellant ha,l failed to 
estahlish hy a p,'epo„derance of the evi­
dence her clainis afrainst either Fo,-d 
the union. Cau.sey v. Ford Motor (7, 
M.D.Fla., It,71. 3H2 F.Supp. 1221. We 
affirn, in |,;,rt and ,eve,-.se in |>art as to 
l-'onl, hut affirn, as to the uni,,,,.

I he I'o,-d parts distrihution wa,-ehou.s<' 
in Ja.-ksonville, Flo,-ida, r<'K„larly e,n- 
i)loys between sixty and sixty-five per­
sons. The wa,-eh(,use taps th,-ee basic 
sou,-ce.s lor new employees: ,-efer,-als
froni |„-e.sent employees, refcrals of mi- 
no,-,ty frroup me,nbe,-s f,-<„n the National 
Alliance of Husinessme,,, and unsolicited, 
“ walk-in” applications. Prior i,, the date 
of a|)pellanfs a(>plication. a won,an had 
never b,'en |,i,-(sl at the wan-house, ;d- 
Ihoufrh four wonien had applied. FonI 
did not have a ,-ecruit ment pidfr,-am 
aimed at hirinjr women.

A[)l)ellanl expeiiencsl th|-ee employ, 
ment phases with FonI. .She was fi,-'st 
lure,I on July 2<J, 1971. and worked for 
one week before bein r̂ |ai,| ,,ff hocau.se 
of a nsluclion i„ Fonl's work foioe. A,,, 
pellant vvas rohn-ed in (h-loho,- ipyi hut 
was l.iiil o ff a .se,-oi„| |i„„,

ll'n-.l ,.,.,-io.| of ...nploy,,,,,,,!

I. In s . r i i o n  70li „( ||„.

|iloviiic,it ( )p|.nriiimly Ac, of 1U72 |12 U s

• tiled chaozi'.s with
11,C l,,n|>lny„„.„| 0|,|,oiluMiiv Commis

"""■ "■ I o'm

on Mm-eh «. 1972. an.l laste.i for 
nearly two years (throuKhout most of 
'b<‘ period o| the suit). She was laid off 
for Ihe  ̂thinl a,„| h,st time on January

On Januai-y I8, 1971, ap,K.|lanl file.l an 
application for emi,loym<-nt with Ford 
haviuKr iK-en referred by her husband.’ 
who was, at the time, also employed at 
the warehouse. Although FonI offo,-ed 
her a job as a stoekhandlcr on July 29, it 
hire,I five n.ales for the same position ' 
<iur,ng tin- interim, all of who,,, had ap- 
plie.l for jobs after a|)i>e|lant. The 
warehouse supervisor in chai-Ke of hiiin.r 
test,fie.l that he ,li,| not .-ompai-e appli­
cants for job oixminirs, but chose sia-cific 
persons ba.se.l ujxm his “subjective ap- 
Iiraisal” of their (lualifications for the 
• lesire.l positions.

Of the five males hii-e.l .luring the 
Janna,-y-July intei-im, the first, who was 
hire,! on Ap,il 13, ha,I i„-evious experi­
ence at another warehouse; anotlu-r was 
an NAP ,ni„„rity jrrouj, referral; a thii-d 
was a “ walk-in” ap))lica„t with experi­
ence at a FonI parts ,l,-p„t; two others 
were sons o," wai-ehou.se employe s.

In May 1971, appellant went to the 
wan-house to diseuss po.ssible job open­
ings with the warehouse supervisor and 
111,- local union president. The latter 
toM her that her emjiloymcnt ,-hances 
vvouhl I,.- pn-ater were sl„- to picket the 
warehoii.se. As a con.s,.<)uer,e(-, aiipellant 
|»ck,-t,-.l FonI for thre.- .lays .luring 
May. 7 he warehouse sup.-rvi.so,- losU- 
fled that appellant’s pick.-tinj was an 
indication of |„-r .serious ,lesii-e to work 
for FonI. an.l she was hire.l two months 
Inter. It is nn.hsputed that no mah- aj,- 
plicant w:is r.-.,ui,-e,l to picket in onler to 
show niten-st in, jrain employment 
with, Foril.

Ibniiifjf ;ipp,.II,ant's initial 
'■ni|.loymeni, sh.- was subj,-,-|, 
by h,-i- li-ll.iw ,-mp|oy,.,.s, 
e \ p ,- r i,r , i| -  ni-w wiukeis.

W.'i 'k-lo ll fr  

d lo ha/iiif, 
ensi omai-y 
( alli-d I Ili­

um,.11 w ill, \„ i,,n „„s  fni,. \ It ,,| 
egh is  A . ,  of On A,,n| W 12. ,|,e

l . < ) (  .•ulvi,.,.,) ■,p|„.||a„| lo
uniins, l■o,,| IIAW, „n,l .su,,

r. IiImI ||,„,v ,-,ill,-r.

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c a u s e y  V. FORI)
{‘il«> MS ."iin

“ box treatmoni;’ this lui/.ing involved 
the throwing of an inordinate number of 
used boxes into the aisles that appelbrnt 
was cleaning for her to iliseard. Appel­
lant also testified that the women’s rest­
room w-as not ajipropriately marked, and 
that both janitorial supplies and union 
literature were stored therein.

On August 5, appellant w-as laid off 
due to a reduction in work force, and not 
rehired until October 1, 1971. Ford
hired five male stockhandlers, a 1 of 
whom had applied for jobs after .July -.», 
prior to rehirintt appellant. Under provi­
sions of the collective barKainmn agree­
ment between Fonl and the union, ap­
pellant, as a probationary imiployee. had 
no riKht to be recalled by Ford.  ̂ I'or.l 
has allegeil, moreover, and the district 
court found, inter a//a, that there wi.'re 
palpable reasons for not immcsliately re­
hiring appellant: (1) her job |.erlonn-
ance had lieen marginal, if not siibst.ind-

2 Article VIM, Section 4 of tlie collective liai- 
gaVning agreement tietween Icrcl and UAW  

provides;

(a) Acquiring Seniority 
New employes and rehired employes 
regarded as probationary employes and shall 
establish seniority after the first ttiree (.i) 
months of continuous employment with the 
Company, and if retained tliereafter shall lie 
placed upon the seniority list in the senionty 
group in tlie Unit or plant where ttiey are thcai 
working with seniority as of Ihe date ol hiiiiig. 
In order to tiecome a seniority employe, a pro­
bationary employe must have been employed 
for a total of three (3) months withn. the year 
following the date he was hired or last rehned 
whichever is the later. For the purposes ot 
this Section, periods during whicli Ihe employe 
was laid off, or on leave of absence for any 
reason, or employed on an exc hided classilica- 
lion, shall nol be considered as peinals ot ein- 

ploymenl.
Following completion of Itis probatimiai y peri 

the employe shall lie given seiiioiiiv as ol
.late he was lute......  hel lelllied. wlll. ll

cvei is the l.ilei. as set loill, in the In .1 p.n.i 
graph of this Snlisectioii

MOTOIf ( ’()> ANY
■,2.i .1111 (iii7:>)

ard; (2) sdic bad ba<l a distuitlivc itiflu- 
cnco on Ibc warcbotisc uiMtraliotis; and 
(If) her litisbiind bail rc'|Ucsfod a transfer 
subsciiuent to tbe July 21) biy-off.

Ncvcrtbeless, appellant was rebired on 
October 4 and worked until October ‘29, 
when site w:is laid o ff <iuring anotber 
work force rmluction. It was not until 
March 6, 1972 tbiit site was rebired for 
tbe second time, but thereafter, she 
worked tit the warebou.se until January 
18, 1974.

(c) Proliationary lanployes—1 .ayolI and Kei .ill 
When possible, the < omisniv di.dl .idheie to a 
policy of laving oil and relniing, i>i obat lonai y 
employes, within an occiipation.il gtonp, oi 
within the Labor I’ool. m accordance wilb

This action wits commenced on May 
16, 1972.’ Appellant charged tluit Ford’s 
(1) recruitment itrocedtires, (2) ftulure 
initially to hire her prior to hiring male 
applicants for tbe stiine |>o.sition, (8) fail­
ure to rebire her during tbe July-Octolier 
1971 interim prior to hiring mtiles for 
the siime position, (4) ftiilure to jirovidc 
adequate restroom facilities, tmtl (6) con­
donation of employee htizing, were viola­
tions of 42 U.S.C.A. § 2000e ‘2(a).^

their date of liire, provided that the Company 
shall retain the sole discretion as to Ihe laying 
off  transferring and rehiring of probationary 
employes, except in t .ises of c laimed discrtmi- 

nation

.3, The action was origin.dly bled by appellant 
"on her behalf and on behall of other persons 
similarly situated who have been denied or 
l,een dismissed from employment by the Ford 
Motor Company at its plants and/or other fa. 
cilities located in the .Stale of Florida, and in 
Olid around the City of .lacksonville." <>n Feb­
ruary 26, M174. the district court disallowed 
class action status for lack of mmierosity and 
adequaev of representation by aiipellant. This 
order has not been challenged on appeal.

■I 42 U.S.C.A. S 2l)l)Ue ’2(a) stales that it shall 
be an tinlawlul employment practice for an

(1) to tail or refuse to hire or to di.se haige any 
mdividiial. or olheiwise to discriminate against 
..„V individual with inspect t.l his compensa 
, i„o  leims, .■onditions, oi piivileges ol cm- 
,,|os'ineiil. because ol sneb individnal s race,
io lo l  lellgion, s e x , ...... alloll.d oligin; oi 12) to
liilill,' segiegale. ni , lassily bis ...... . ol

,„ ants loi en.ploynieni in any way will h
would dep.ive or ................ ,iny mdividu
,, cniplovinent oppoi tiiiiit les or olberwise 
a.lveiselv alic.t bis .stains as all ein|.loyee, be 
cause ol such individual s la.'e, lo lo i ,  ndigion, 

sr\. or «»i

,iO



120 r>ir> FEDIOltAL KEI'OIM'EK, 2<\ SEHIKS

5 * 
41
‘i ! 1

ii 4
15 ■

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f i 4
-1.

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4 l(
.»’ :Z T

M.* h
91

AppHlanls rlaims ap.amst tl)<- iiniffii 
stem rroiii Die laUcr’.s allcpcd cutuldna- 
lion of tanployoc liazinjr (i. o,, tlio Iio.n 
troal riK'til disoussod siiprii ), and its al- 
logod failuro sufficiently to pursue the 
H r̂icvanccs filed l>y her against Ford.

These f,n'i‘ 'vanees bewail in Oeloher 
1!)71 wluni ap|K!llant jrrieved that she 
liad been denied a forklift operator’s 
license. She testified at trial that she 
hail voluntarily abandoned this frrievance 
and did not fault the union therefor.

On March 2\, 1!)72, appellant f,>rieved 
that the two lay-offs that stie had expe 
rienced were the result of .sexual dis­
crimination. 'I’liis grievance was prejiar- 
ed l)y the union president, presented to 
Ford’s warehouse foreman, and denied 
hj him two days hiU'r. A union commit­
tee later agreed that this Kfievance was 
without merit.

A third Krievanee was filed in early 
•luiR' i;i7t:. Appellant had been promot­
ed fr-onr stockhandler to “ war-ehotrse- 
r7ian in May, hut was demoted on .tune 
2. She complained to the irnion ami a 
^rii.’v.tnce wa.s filed, ’i'he pr'oci'ssirrjĵ  of 
the f^rievanee eiilminateil in an arbitra­
tion award frranting- ajrpidlant the 
claimed |)osition. (This grievance was 
concerned with an event which look 
place after the filing of suit birt was 
included as an issue by pre-trial stiprrla- 
tion )

|l| Appellant .sought injirncti\c relief 
agiunst both Fonl and tire union, as well 
as back pay, com])ensatory .seniority, and 
itltorneys’ fees. The district <■01111 de­
nied all i-elief, holding that appellant had 
failed to establish di.scrimination by a 
preponderance of thi' evidence on any 
ground alleged.'’

.t. I l v  p i e  l n : i l  s i  i p i i l . i l  II III II l ) e r : i i i i e  i li .11 ||,.,|

l l i e  l l . l l l o l i i i t  l i i i i i u i  w i e .  I l l  l l l g  i l i  i i p c i l  l l i i i i i i p l i  
r i l e  i l l l e p e i l  e i i i l i t i u l  ii| ||i e l o i . i t  W e  l e l e l  I n  
l i o l l l  I IS  I t l e  " i i i i i o i i " .

r». As lo eacli .illegcil aet ol itisi 1 iininal 11111. ap 
peltaiil tlait Itie tninlcn ot estatilistliiig a pijiiia 
facie ease ol disciiiiiiiuujon Mi IJonnell Doug 
las Coip. V . (iici'ii. |<)73. 411 tt.S. 7112. S02. Iti 
.SCI. 1817. .id I.,t;d.2d (i(i8. d77. Once a puma 
tacii' case was esialilislied, Itie Imnleu - lo .11

liy way of a preliminary summation, 
we find error only in the holding of non- 
disci'iniination in the original hiring of 
appellant. 'J'he district court will U? af- 
liiineil in all other ix’speets.

II.

121 At the out.set, it is important to 
delineaU' our stanilard of review for a.s- 
sessing the correctness of the district 
court’s nomiiscrimination findings. Rule 
f)2(a), F.R.Civ.I’., lays down the “clearly 
<■rl•oneous’’ test for appellate review of 
district court findings of fact. Under 
Ihr.s lest,j i  finiliiij^ is  clearly eri-oneous 
w Iren although there is evidence to su^ 

[joi t it, the reviewing court on the entire 
'<l<-nce is I.Tt with the definite and 

fTmTconvictionTliat a mistake ha.s" lR7Ti
committed” by th^TdiStnlT court.— Dnit- 
ed̂ 7?raT.es v. United States U.ypsum 0>., 

;?;w U.S. 89.5, 68 S.Ct. 525, 542̂  
92 li.Fd. 746, 766. Soc also Chaney v. 
Uily of Calveston, 5 Cir., 1966, 8(W F 2d 
771, 776.

I here exists, however, a significant 
ilislinction for the pui-|K).se of applying 
till’ clearly erroneous test liQ'tween find­
ings of subsidiary fact and "fin<|in(fa o7~ 
iilli'iniite fact. See Galena OaK.s Corji. V. 
ScofidTlTTrUIr., 1954, 218 F.2<l 217, 219 - 

Finding a subsidiary fact involves 
the iletermination of an evidentiary oc 
priiiTaiy fact; fimlii^r an u kbm ^^
Oil Lllc~7)tlier hand, “ niay iiivailveTtuTviê / 
basis oiiTvhich judgment of fallible evi- 

iiT'ttr-tie^^^ile.’’ Hjiumgartner v. 
United States, 1944, 322 U.S. 665, 671, 64 
S.Ct. 12-10, 1211, 88 L.hkl. 1.625, 1529. 
Thus, for example, a finding of infringe­
ment of a patent is a finiling of ultimate 
fai-t, .see Industrial Instrument Corp. v. 
Foxboro Go., 5 Fir., 1962, 807 F.2d 7̂ 8, 
7,86 n. 2; as is a finding that a gain

I I I  I I I . l i e  s o m e  .................... , l i o n  , l l s l ■ l l m i l l . , | „ , v
lc.lM,M•■ loi Oh II .11 lion sliiln-il lo Oic iip|)<-| 
I ' '- .  h i .  I l l  D . s  ,ii 802, lilt .S n  I II IH2I. 3li 
t i l l  -’ ll III Ii7s .See .lis t) I’oiiil V Hriinilt Air- 
wiivs. liK ., .'t ( II , 11171, riOO t 2d ICl. 167. 
Upon ictinlliil cvidciit (> liciiig nffi icd. ih ’. ,,10 
iniile tinnlcii ol pcrsniision hy ii prcpondi-rancc 
ot llic l■vi(lcnc(■ iliiii disciiniiniilion had taken 
l>liir-c tell upon iippcllunt's .slioiildcrs. C l.  Bit- 
lin V Ail Ciniiidii, h C ir. 197,̂ 1. 612 f  2d 582 
.5s:< s:i.



>n,

in-

of
if-

to
:is-
■ict
ule
rly
of
ier
ous
U[>-

l i re

ind
c;on

nit-
th.,
-.42,

V.

’ .2(1

i
- i
I

CAIISI‘]Y V.  r o u l )
< 'itc MS r)l() I '

should 1)0 troaU‘d as (*a[utul raLhor than 
ordinary for income tax (.iirposes. Sea 
Gamble’ V. O.mmissioner, 5 Cir., 1957, 
242 F.2<i 5H6, 590. Willi ii ’spect to iilU- 
mato findbigH (if fact, furthermore, wo 
noted in Industrial j nstruinont Gprji. v. 
FoxBoro tl<7., siifiru, 307 l*.2d at 7S(> n. 2.

We may reverse f ree of the cleaily 
erroneous rule whore the is-
sue" revolves around an uTtunatc fact 
question asTTistinj^uished from sulisidi- 
af3T fact Tfuesti oils

See~3f5tr'GaI^a Oaks Gorp. v. Scofield, 
supra, 218 F.2d at 219.

[3] Although discrimination vrl non 
is essentially a question of fact it is, at 
the same time, the ultimate issue for 
resolution in this case, being expressly 
proscribed by 42 Ll.S.t .A. § 2000e 2(a). 
As such, a finding of discrimination or 
nondiscrimination is a finding of ulti­
mate fact. See Hester v. Southern Rail­
way Co., 5 Cir., 1974, 497 F.2d 1374, 
1381; United States v. .lacksonville Ter­
minal Co., 5 Cir., 1971, 451 F.2d 418, 
423-24. In reviewing the district courts 
findings, therefore, we will proceed to 
make an independent determination of 
appellant’s allegations of discrimination, 
though bound by findings of subsidiary 
fact which are themselves not clearly er­
roneous. Also, as in llumpbieji v. 
Southwestern F’ortland Cement Co., 5 
Cir., 1974, 488 F.2d 691, 694, we must 
determine’ whether there are iv<iuisite 
subsidiary facts to undergird the ulti­
mate facts.

7  ̂ Xestimony was adtliicial at liial that l.ctwccn 
July 1971 and March 1974, appm.xiinatcly sev­
en women were hired by lord, rttsnUing in <i 
ten percent female workforce at the waie 
house. It is well-set tieil, however, that 
“ [w’Jhatever the nature of present hiritij; prac 
tices, they neither explain nor justify, without 
more, the jiast failure to hiie minoiity 
Ijol) applicatilsj.' ' Hodiiitiie/ v. l-.ast Ii-xas 
Motor I ren’.ht. .5 ( it.. 1974. 9tl.9 t.7d III, 94.
.S’ec also ( ianihle V. Iliu iiini’hairi .9 l( K ( 'o , !>
Cir 1!I79, .914 I' 7d h.S, Powe v (in ie ia l Mo 
tors Coip.. .9 Cir.. 197'.', 497 t .191 94H, :t99, 
Jenkins v. United (ias Coi|i., 9 ( ir., I9lis, 40(1 
F.2d 28, :S3.

8. A  similar result obtained in Del unis v. (ide 
gaard, 1974, 41(i U .S. .'112, 94 S< I. 17(|4. 411

M O T O  C O M P A N Y  4 2 1
'.L’ ll lilt ( 9|

1. Ford’s RecruiUnent Methods

|4| Apiicllant contends Unit the dis­
trict court erred in finding h’ord’s rc- 
cruitment methods to be nondiscriminal- 
ory. It is agreed that Ford hires new 
warehouse employees from three 
sources: walk-ins, employee referrals,
and NAB minority group referrals. Pri­
or to appellant, four women had sought 
employment at the warehouse, all with­
out success.’'

(5,6) Review of the merits of appel­
lant’s contention on this point has be­
come unnecessary, however, because ol 
the coalescence of two factors. First, 
appellant herself w;is recruited and hired 
through one of the allegedly discrimina­
tory methods: her husband, a Ford em- 
[iloyee, referred her for the job. 'rhus, 
she cannot claim individu.il injury from 
recruitment discrimination." Second, ap­
pellant is not representing a class of dis- 
criminatees. See note 3 supra. Conse­
quently, class relief for recruitment dis­
crimination automatically becomes inap­
propriate within the cont.i’xt of this dis­
pute."

2. Ford's Initinl Hiring o f Ai>pellunl 
Appellant’s claim of discrimination in 

Ford’s origiiiid decision to hire her rests 
upon a more solid foundation. The dis­
trict court concluded that the three 
mides hired in April :uid Mtiy 1971 be­
fore apjiellant was hired in July “ were 
hired solely on their (iiialifications to 
jierform the work at the wtire.house fa-

I. 1.(1.2(1 1114 I bcK', priil iom i siicil the ic- 
spoiuleiit law school lor alleged rcvorsti racial 
discrimination. No class relict was sought, 
and petitioner's individual claim was found to 
be moot. In effect, petitioner had no case 
against the law school because he had suffered 
lua real injury, htiving been admitted and al­
lowed to comiilete his course o f study there 

9. W heie  coiiils have loimil recuilment inelh 
ods to he in violation of 42 tl .S ( '.A. § 2(l(l(le 
2(a), ihe leliel p.ianied h.e. nsually been In 
lesponse to cl.e,'. di:a liiiiination ;if:pei Is ol the 
respeelivi' eat.es .See. e )•, I’el lway v. Aineii 
e;ni Cast Iron I'ljie ('o., .9 ( it., 19/4, 494 l',2ii 
211, 244 45; United .Stales v. Georgia Powei 
Co.. 5 (  ir , 1973, 474 r.2d 90(1, 925 2(1; I’ .ir 
ham V. Soutliwesleiii Hell telephone C o ,  H 
Cir., 1970, 433 I 2d 421, 429 28.