Letter from Grace Richardson to Peter Judd RE: Edwina Richardson, LSCRRC Intern

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No. 74-1630

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if* y
FOR THE SIXTH CIRCUIT

JW

R obert H. R ice ,
Plaintiff-Appellant,

Careton M. Glenn,
Plaintiff-Intervenor,

v.
T h e  Gates Rubber Company,

Defendant-Appellee^

On Appea l  from the 
United States District 
Court for the Middle 
District of Tennessee, 
Nashville Division.

Decided and Filed August 25, 1975.

Before: Celebrezze, McCree, and L ively, Circuit Judges.

McCree, Circuit, Judge. This appeal from the dismissal, 
after trial without a jury, of a complaint alleging racial dis­
crimination in employment practices presents two issues for 
our consideration:1 (1) whether the district couit erred in 
determining that appellant Rice’s discharge from employment 
was based on cause and not on his race, which is Negro; and 
(2) whether the district court employed an erroneous legal 
standard in its determination that appellee, Gates Rubber 
Company, did not, after the effective date of Title VII of the 
Civil Rights Act of 19C4, 42 U.S.C. § 2000e et seq., discriminate 
against Negroes in job placement, transfer, promotion, demo-

l We do "not consider the dismissal of the individual complaint of 
nlaintifl-intervenor Carleton M. Glenn who alleged that his dis­
charge wfs based on his race, because he did not pursue an ap- 
peal to this court of the district court s order.



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2 Rice, et a l  v. The Gates Rubber Company No. 74-1630

tion and discharge.2 We affirm that part of the district court’s 
judgment dismissing appellant’s complaint in his own behalf 
but hold that it did not apply the correct legal standard in 
arriving at its determination in the class aspect of the action 
that appellee did not discriminate on the basis of race in its 
employment practices.

Robert II. Rice, the appellant, was employed in a classifica­
tion described as a banner operator by the Gates Rubber 
Company (Gates) on November 9, 1967, and was discharged 
on December 15, 1967. Shortly after his discharge, Rice filed a 
complaint with the Equal Employment Opportunity Commis­
sion and received a “right, to sue” letter on September 17, 1971. 
He then filed a timely complaint in federal district court on 
October 15, 1971, alleging that lie had been discharged by 
Gates because of his race and that the company discriminated 
against Negroes as a class in job placement, promotion, trans­
fer, demotion and discharge. He sought back pay for himself 
and equitable and other appropriate relief on behalf of the 
class. 42 U.S.C. § 2000e-5(g), (k).

In support of his personal claim Rice testified that he had 
been given inadequate training for the job of banner operator 
and that he had been accorded a shorter probationary period in 
which to qualify for that classification than that granted to 
white employees. The collective bargaining agreement in effect 
at the time of Rice’s employment between the Gates Rubbei 
Company and the United Rubber, Cork, Linoleum, and Plastic 
Workers of America, permited Gates to hire an employee for 
a sixty day probationary period before it was required to de­
cide whether the employee was satisfactory. If, at the end of 
the sixty day period, the employee had qualified, lie was made

2 In a memoriam opinion accompanying its order issued on May 
25 1972 the district court determined that [p]lamtifT may only rep­
resent black applicants and prospective black applicants who are 
subjected to discriminatory practices relating to pronmtions, trans­
fers and job placements subsequent to their initial hiring,^and those 
employees who are discharged because of their race. Neithei 
party challenges the appropriateness of this class.



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No. 74-1630 Rice, et al. v. The Gales Rubber Company 3

a permanent employee entitled to all the protections of the 
collective bargaining agreement. Rice, who was discharged 
before the expiration of the probationary period for the stated 
reasons that he could not make production and that there was 
little hope he would be able to do so at the end of sixty days, 
complained that other employees, who were white and who 
had also been unable to meet production quotas, had been 
afforded the full sixty day period in which to do so.

The district court, which refused to credit Rice’s testimony in 
several respects, found that most employees met the produc­
tion quota after three weeks of training; that Rice’s trainers had 
been capable and experienced persons; that Rice had not com­
plained of inadequate supervision until the day of his dis­
charge; and that the two white employees who had taken long­
er than five weeks to qualify had either been assigned to work 
with an equally inexperienced employee on the machines, or 
had been assigned to work on a more difficult “one-man” ma­
chine. It concluded that P,ice had been discharged not be­
cause of his race but because lie was unable to perform satis­
factorily. In making this judgment the district court also 
considered Rice’s poor employment record both before and 
after his brief association with Gates.

After a careful examination of the record, we conclude that 
the district court’s determination that Rice was fired for fail in ao
to meet production quotas, and not because of his race, has 
ample evidentiary support. The record reflects that Gates Rub­
ber Company had adopted a rule that in order to qualify as a 
banner operator, a relatively simple task, an employee’s produc­
tion had to be “a hundred percent twenty-four out of forty 
hours in a given week.” Rice’s production was 38 percent the 
first week, 52 percent the second, 54 percent the third, 59 
percent the fourth and 74 percent the fifth week or an average 
of 55.4 percent during the five week period. In contrast, eleven 
other banner operators had achieved production rates of over 
one hundred percent during their probationary periods and had 
achieved an average of 92.45 percent during that time. Ac-

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4 Rice, ei al. v. The Gates Rubber Company No. 74-1630

cordingly, we bold that the district court did not err in dis­
missing Rice’s personal claim.

In support of the class action aspect of the complaint that 
Gates discriminated against Negroes in job placement, transfer, 
promotion, demotion and discharge, Rice, relying on the oft- 
quoted maxim that “figures speak, and when they do, Courts 
listen,” introduced primarily statistical evidence. Brooks v. 
Beto, 366 F.2d 1, 9 (5th Cir. 1966), carl, denied, 386 U.S. 975 
(1967). This evidence showed that Gates Rubber Company 
which had a manufacturing plant in Nashville, Tennessee, a 
city having an employable population that is 16 percent Negro, 
did not hire a single Negro until 1966. In 1966, however, 
Negroes filled 13 of the 467 positions available; in 1967, 11 oiu 
of 429; in 1968, 27 out of 552; in 1969, 36 out of 575; in 1970, 
30 out’of 55; and in 1971, 36 out of 612. Moreover, until Sep­
tember 1968, Negroes were always placed in the lowest paying 
job classification within one of the several seniority depart­
ments. From 1968 until Rice filed his complaint in this action 
in the district court, all Negro employees but one occupied 
positions in the lowest job classification within a single depart­
ment.

In 1971 the Gates Rubber Company instituted an affirmative 
action program. The parties agree that its implementation 
has been successful particularly during the years 19(2 and 
1973 after Rice had filed his complaint in federal district court.

The district court in arriving at its determination that Gates 
did not discriminate against Negroes as a class in job place­
ment, promotion, transfer, demotion and discharge focused on 
the company’s ultimate performance at the end of the period 
from 1967 through 1973.3 On appeal, Gates urges us to

3 1n1wT7omplaint Rice also charged that the departmental seni- 
ority system employed by Gates, although facially neutral, had 
the effect of perpetuating past discrimination against J^egro em­
ployees. Transfer within Gates Rubber Company s iNashville plant 
is accomplished by three different procedures. First, Gates reserves 
the right to transfer employees by promotion or demotion, beconci, 
an employee mav “bid” for a iob in his own depaitment, and 
the vacancy is filled on the basis of seniority. Third, if an em-



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No. 74-1630 Rice, el a l  v. The Gates Rubber Company 5

restrict our examination of tlie charge of class-based disciimina- 
tion in a similar fashion. This standard is, however, erroneous. 
As the court stated in Parham v. Southwestern Bell Telephone 
Co., 433 F.2d 421, 425 (8th Cir. 1970),

[t]he crucial issue in a lawsuit of this kind is whether the 
plaintiff establishes . . . .  bias at the time of his . . . em­
ployment and subsequent complaint to the EEOC, not the 
employment practices utilized two years later.

See also United States v. International Brotherhood of Elec­
trical 'Workers, Local No. 38, 428 1.2d 144, 149-ol (6th Cir.), 
cert, denied, 400 U.S. 943 (1970). The record before us 
discloses that the employment practices of Gates were radically 
different at the time when Rice was an employee from those 
at the time when this case went to trial. Accordingly, the case 
must be remanded to permit the district court to determine 
whether Rice established a prima facie case that at the time he 
was employed by Gates, the company discriminated against 
Negroes as a class in job placement, promotion, transfci, de­
motion and discharge. If the court should determine that Rice 
did establish a prima facie case, it should consider whether 
Gates rebutted it. See McDonnell Douglas Corp. v. Green, 411 
792 (1973). The belated actions of Gates Rubber Company, 
although commendable, are not sufficient to rebut a prima 
facie case of discrimination at an earlier time, if one should be 
established. Its affirmative action program may be relevant, 
however, in formulating appropriate relief.

plovee desires to transfer to a position in one of the other seniori­
ty departments, he applies for a “self-requested” transfer. Because 
of Gates’ departmental seniority system, a person hired to work 
in the department in which a vacancy occurs and who has only 
one day of seniority is able to “outbid” an employee from another 
department who has ten years of seniority. Should the district 
court, on remand, determine that Gates was guilty of class-based 
discrimination, it may wish to consider the effect of the facially 
neutral departmental seniority system. See, e.g., Griggs v. IJukc 
Power Co., 401 U.S. 424 (1971), Pettway v. American Cast Iron 
Pipe Co., 494 F.2d 211 (5th Cir. 1974), Head v. Timken Roller 
Hearing Co., 486 F.2d 870 (6th Cir. 1973).

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6 Rice, cl al. v. The Gates Rubber Company No. 74-1630

We affirm that portion of the judgment of the district court 
dismissing the personal complaint of Rice but reverse that 
part dismissing the class action and remand the case for 
further proceedings with respect to it. See Parham 
v. Southwestern Bell Telephone Co., supra, United 
States v. International Brotherhood of Electrical Work­
ers, Local No. 38, supra. Should the court find, employing the 
correct legal standard, that Gates Rubber Company did dis­
criminate against Negroes before 1970, it may consider the 
affirmative action program instituted by Gates in 1971 in de­
vising its remedy.4 And, even though Rice has failed to prove 
his individual claim, if the court determines that his class 
action is well-taken, it may, in its discretion, award an at­
torney’s fee. 42 U.S.C. §2000e-5(k). See Newman v. Biggie 
Park Enterprises, 390 U.S. 400 (1968), Parham v. Southwestern 
Bell Telephone Co., supra.jl ivnv wo.j unyyiit-.

Affirmed in part and reversed in part and remanded for 
further proceedings consistent with this opinion.

4 After trial but while the case was pending before the district 
court, Gates Rubber Company sold its Nashville manufacturing plant. 
Because of the court’s determination that Gates had net discriminated 
against Negroes, it did not consider what effect this sale should 
have on the formulation of appropriate relief on behalf of appel­
lant. Should the district court on remand make the contrary de­
termination, it should consider the effect of the sale in formulating 
appropriate relief.

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