Equal Employment Opportunity Commission v. H. S. Camp & Sons, Inc. (542 F. Supp. 411, 1982)

OPINION

CHARLES R. SCOTT, Senior District Judge.

The Equal Employment Opportunity Commission (‘EEOC’) brought this class action against H. S. Camp & Sons, Inc. (‘H.S. Camp’) alleging racial and sexual discrimination in defendant’s employment practices in violation of Section 703(a) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-2(a) (1981) (hereinafter ‘Title VII’). Plaintiff seeks a permanent injunction enjoining defendant from engaging in discriminatory employment practices based upon race and sex, an order requiring defendant to institute an affirmative action program to eradicate the effects of the alleged past unlawful employment practices, and backpay, with interest, for those members of the class adversely affected by the alleged discriminatory practices.

PROCEDURAL HISTORY

On August 27, 1974, Patty Coffie filed a charge of employment discrimination with EEOC against H.S. Camp. (Ex. 16). Ms. Coffie, a black employee, alleged that she was discharged by H.S. Camp because of her race and sex. Following an investigation of the charge, EEOC determined that there was reasonable cause to believe Ms. Coffie’s discharge was racially motivated. (Ex. 1). EEOC further concluded that there was reasonable cause to believe that H. S. Camp engaged in classwide discrimination against black and female employees. (Ex. 1).

H. S. Camp declined EEOC’s invitation to conciliate, and EEOC commenced this action on November 30, 1977. EEOC alleges that since July 2, 1965, H.S. Camp has continuously and intentionally engaged in unlawful employment practices in violation of Section 703(a) of Title VII. Specifically, EEOC claims that such unlawful employment practices include failing to hire black and female applicants because of their race and sex, maintaining segregated departments on the basis of race and sex, assigning black and female employees to jobs on the basis of race and sex, failing to promote black and female employees because of their race and sex, and discharging Patty Coffie because of her race and sex.

During the trial, EEOC moved for permission to file a supplemental complaint including a claim of retaliation, in violation of Section 704(a) of Title VII, by H.S. Camp against a white female employee who had contacted EEOC. The Court denied this motion, although evidence of the alleged retaliation was admitted in support of EEOC’s claims under Section 703(a) of Title VII.

EEOC also filed a motion to amend the complaint to conform to the evidence seeking to include the following claims:

I. That defendant has continuously, from July 2, 1965 up until the present time, failed or refused to post EEOC posters in a conspicuous place on its facility in violation of Section 711(a) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e et seq.

2. That defendant has wilfully failed or refused to post EEOC posters on its facility, after notice, from at least March 1, 1975 to the present time, in violation of Section 711(b) of Title VII.

3. That defendant has continuously, from July 2, 1965, up until the present time, maintained racially segregated restroom facilities in violation of Title VII of the Civil Rights Act of 1964, Section 703(a)(1) thereof.

4. That the defendant has continuously from July 2, 1965 up until the present time, paid less wages to female employees than to male employees on account of their sex for equal or comparable work, in violation of Section 703(a)(1) of Title VII.

5. That defendant has continuously from July 2, 1965 up until the present time, discharged Black employees due to their race, in violation of Section 703(a)(1) of Title VII.

6. That defendant has continuously from July 2, 1965 up until the present time, paid blacks less wages than white employees for the same or comparable work and jobs due to their race, in violation of Section 703(a)(1) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e et seq.

The Court granted plaintiff’s motion to amend the complaint to conform to the evidence with respect to the claim of failing to display EEOC posters but denied the motion with regard to the allegations of classwide discrimination in setting wages and discharging employees since July 2, 1965. The allegation of maintaining racially-segregated restroom facilities had been properly set forth in previous pleadings and, therefore, the motion to amend the complaint to include that claim was stricken.

Upon reconsideration, the Court finds that the claims of discharging black employees because of their race and paying black and female employees lower wages because of their race and sex were litigated with the implied consent of the parties. These allegations were set forth in plaintiff’s trial brief and in the joint amended pretrial stipulation, although they were limited to the time period from August 15, 1974 until the present. Evidence was admitted at trial concerning these claims without objection. Moreover, H.S. Camp introduced evidence on the issue of class-wide discrimination in setting wages and vigorously cross-examined EEOC’s expert statistician with regard to his analysis of H.S. Camp’s discharging practices. Consequently, the order entered on June 9, 1980 will be modified and plaintiff’s motion to amend the complaint to conform to the evidence will be granted pursuant to Rule 15(b) of the Federal Rules of Civil Procedure with respect to EEOC’s classwide claims of discrimination in setting wages and discharging employees for the period from August 15, 1974 until the present.

EEOC filed a second motion to amend the complaint to include a claim of discrimination against black employees because of their race in the terms, conditions and privileges of employment. The Court granted this motion.

This action-was certified as a class action pursuant to Rules 23(a) and (b)(2) of the Federal Rules of Civil Procedure and the trial of the issues of liability and damages was bifurcated. Following completion of the liability proceedings, EEOC moved to decertify the case as a class action. In support of its motion, plaintiff cited General Telephone Co. of the Northwest, Inc. v. Equal Employment Opportunity Commission, 446 U.S. 318, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980), decided during the trial of the issue of liability, in which the Supreme Court held that EEOC is not required to comply with the procedural requirements of Rule 23 when seeking class-wide relief pursuant to its authority under Section 706 of Title VII of the Civil Rights Act of 1964. Concluding that retrospective decertification was not required by General Telephone Co. of the Northwest, Inc. v. Equal Employment Opportunity Commission, supra, this Court denied plaintiff’s motion to decertify the class action with respect to the proceedings on the issue of liability. However, plaintiff’s motion to decertify the class action with regard to all further proceedings was granted.

Having completed the proceedings on the issue of liability, the Court now enters its findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.

FINDINGS OF FACT

Background

H.S. Camp is a family owned corporation which operates a slaughtering and meat-processing plant in Oak, Florida. The company was founded in 1935 and incorporated in 1961. (R. 1364). H.S. Camp employs between 80 and 90 employees including many members of the Camp family. (R. 1364).

The management of H.S. Camp consists of executive managers and department supervisors. (Ex. 14). The executive managers are all members of the Camp family and include: Donald G. Camp, sales and merchandising; Mark D. Camp, manufacturing and maintenance; Dennis D. Camp, personnel administration and shipping; Glenn S. Camp, livestock purchasing; Mark L. Camp, controller and office manager; Randall M. Camp, meat processing and inventories. Each department is managed by a supervisor who reports to the executive managers.

H.S. Camp is comprised of 13 departments which include: slaughtering, meat processing, meat cutting, sausage, smoked meats, packing, shipping, receiving and inventory, delivery, maintenance, custodial, clerical and sales. (Ex. EE). The nature of the work performed and the qualifications required for the positions in each department must be reviewed in order to properly analyze H.S. Camp’s employment practices.

The slaughter department or “kill floor” is where the cows and hogs are slaughtered, skinned, cleaned and prepared for further processing. Although the carcasses are raised by an electric hoist which is attached to an overhead trolley system, employees must push the carcasses which weigh from 150 to 2500 pounds along the trolley track to the different stations within the department. (R. 2323, 2333, 2343). There is a strong, pungent odor in the kill floor area during the slaughtering of the animals and a substantial amount of blood and animal tissue covers the floor. (R. 2326, 2330). The employees are often splattered with blood and fatty tissue from the animals and, therefore, must wear rubber boots and aprons. (R. 2306, 2309, 2318). Most of the knives used in processing the carcasses have a six-inch blade and are kept extremely sharp. (R. 2310). Employees who work in the slaughter department are required to wear hand guards, arm guards and hard hats for protection. (R. 2309).

The employees clean the slaughtering area twice a day. The floors are swept, all blood and animal tissue is removed, and all equipment and machinery is thoroughly cleaned. (R. 2275a). In addition to cleaning the kill floor, the sewage disposal system must be inspected and cleaned periodically. A drainage system connects the kill floor with waste ponds located outside the plant. (R. 2366). The blood from the animals flows through the sewage disposal system into the waste ponds. A settling tank collects the large solid pieces of waste that would clog the drainage system. Employees from the slaughter department are selected by the department supervisor to empty the settling tank with buckets. (R. 2284a). This job is commonly referred to as “dipping the hole” and is normally performed at the end of the day on Friday. (R. 2285a-86a, 2288a). The employees who perform this job generally are allowed to leave work approximately one hour earlier than other slaughter department employees because after “dipping the hole” the employees are unable to work in the slaughtering area unless they have thoroughly cleaned themselves of the waste material. (R. 2288a, 2289a).

The entry level position in the slaughter department requires no particular education, skill or experience. (R. 1537). However, employees in the slaughter department must be able to push the heavy carcasses along the trolley system. (R. 2323, 2333, 2343).

In the meat processing department the carcasses are cut into primal cuts such as loins and rounds and the bones are removed from the boneless cuts. (R. 1475). Each carcass at this stage weighs between 150 and 250 pounds and must be lifted off the trolley system and placed on a cutting table. (R. 2343). The primal cuts weigh between 15 and 30 pounds and are transported in stainless steel barrels to the meat cutting department. (R. 2351). The barrels are on wheels and weigh between 3,000 and 4,000 when full. (R. 2350). Generally, it takes two to three persons to push the barrels. (R. 2350). There are no education, skill or experience requirements for the entry level position in the meat processing department. (R. 1534). However, employees in this department must be able to lift the carcasses and push the barrel containing the primal cuts.

The primal cuts are taken to the meat cutting department where a tenderizing machine punctures the meat with needles. (R. 2354). Individual steaks and roasts are then cut with an electric band saw. (R. 2356). After the meat is trimmed, it is placed in a tenderizing solution. (R. 2357). The individual cuts of meat are then wrapped in cellophane by a meat wrapping machine and labeled. (R. 2359). The entry level job for the meat cutting department requires no particular skill, education or experience, other than the ability to read and write sufficiently to prepare the labels. (R. 1532).

Sausage, weiners and sandwich meat are prepared in the sausage department. (R. 1476). Large chunks of meat are cut and ground by a machine called the chopper. (R. 2367-68). In operating the chopper, chunks of meat are placed in a cone-shaped container that is four to five feet tall and weighs approximately 400 pounds when full. (R. 2369-72). The cone-shaped container is raised by an electric hoist and pushed along a trolley track until it is directly over the chopping machine. The bottom of the cone-shaped container is pulled open and the meat falls into the chopper. (R. 2371). Because there is a substantial amount of pressure on the bottom of the cone-shaped container from the weight of the meat, it takes a considerable amount of strength to open the bottom of the container once the container is over the chopper. (R. 2372). After the meat is chopped and ground, it is placed in a machine called the mixer which mixes the ground meat with seasonings. (R. 2372). The meat is again placed in a large, cone-shaped container, lifted by an electric hoist and pushed along the trolley system over a machine called the stuffer. (R. 2373). The bottom of the container is pulled open and the meat falls into the stuffer. (R. 2374). This container also weighs approximately 400 pounds when full and, therefore, is also very difficult to open when full. (R. 2374). Even when the bottom of the container is open, some of the meat often clings to the side of the container and an employee must shake the container so that all of the meat falls into the stuffer. (R. 2374). The stuffer forces the meat into the sausage and weiner casings while another machine called the frank-omatic cuts and links the sausage or weiners. (R. 2375). The sausage and weiners are then hung on a rack called a “tree”. (R. 2378) . Some of the racks are attached to an overhead trolley system while the older racks have wheels and are rolled along the floor. (R. 2385). When the rack is full it weighs approximately 600 pounds. (R. 2379) . The rack is pushed along the trolley track to the smoked meat department which is a subdivision of the sausage department. (R. 2380). After the sausage and weiners have been smoked, they are placed in a refrigerated room. (R. 2380).

There is no skill, education or experience required for the entry level position in the sausage department. However a considerable amount of physical strength is necessary in order to operate the machines and transport the meat.

The products from the meat cutting and sausage departments are taken to the packing department where they are wrapped, packaged in boxes, and labeled. (R. 1477). The boxes weigh from 80 to 90 pounds and must be transported into the storage rooms. (R. 2549). The positions in the packing department do not require any particular skill, education or experience. However, employees in the packing department must be able to lift the boxes of meat and must possess the ability to read and write sufficiently to prepare the labels.

The receiving and inventory department is where the products purchased from other food processing companies are delivered. (R. 2421-22). The products are in boxes weighing anywhere from five to 2,000 pounds and must be unloaded from the delivery trucks. (R. 2423). The boxes are raised by a hydraulic jack which is on wheels and pushed into the storage rooms. (R. 2424). Each employee in the receiving and inventory department moves approximately 19,330 pounds per day. (R. 2424). Consequently, the positions in this department require a substantial amount of physical strength. Although no skill or experience is required for the entry level position in the receiving and inventory department, a high school education is preferred. (R. 1544).

Employees of the shipping department work at night. They are responsible for loading the items listed on the sales invoices onto the refrigerated trucks. (R. 1478). The boxes that are loaded onto the trucks weigh between 80 and 100 pounds. (R. 2528). Quarters of beef weighing from 100 to 300 pounds are also loaded onto the trucks. (R. 2528). The entry level position in the shipping department requires no particular skill or experience, although a high school education is preferred. (R. 1545). Shipping department employees, however, must be able to lift the heavy boxes and quarters of beef.

The delivery department consists of five truck drivers. (R. 2533). The trucks normally carry from 10,000 to 20,000 pounds and each delivery route is approximately 250 miles round trip. (R. 2533-34, 2537). The truck drivers make the deliveries alone and are required to unload the products which include heavy boxes and quarters of beef. (R. 2539-40). The entry level position in this department requires a chauffeur’s license and some skill in operating a large truck. (R. 1538-39). In addition, the truck drivers must be strong enough to unload the trucks unassisted.

The employees in the sales department take wholesale orders and assist the customers in maintaining an appropriate supply of H.S. Camp products. (R. 1478). The sales personnel must ensure that the products are being displayed properly and that the customers’ inventory of H.S. Camp products is being rotated. (R. 2542). There are six employees in the sales department. (R. 2543). The employees in this department must have a general knowledge of the meat packing business and be able to determine the quality of a piece of meat. (R. 2543— 44). Furthermore, a sales person must have a high school education and be able to drive an automobile. (R. 1543).

The clerical department employees are in charge of customer accounts, invoices, billing, payroll and all personnel records. (R. 1481). The positions in the clerical department include bookkeeper, payroll clerk, receptionist and key punch operator. (R. 1528). Typing skills are required in this department and a high school education is preferred. (R. 1529).

The employees in the maintenance department are responsible for maintaining the building, trucks and equipment. (R. 1479) . There are generally only two maintenance employees, a mechanic and a foreman. (R. 1540). They must be skilled in maintaining electric, hydraulic and refrigeration equipment and machinery. (R. 1541).

The custodial department employees clean those areas of the plant that are not maintained by other departments. (R. 1480) . There is no skill, education or experience required for a custodial position.

Hiring

The parties used two methods of statistical analysis in analyzing the hiring practices of H. S. Camp. Under the applicant flow analysis, the percentage of blacks and women who were hired was compared with the percentage of blacks and women who submitted applications. Because the applications submitted prior to 1978 were not preserved by H. S. Camp, the composition of the applicants during the period from 1965 through 1977 could not be determined. (R. 1437-39). The static analysis method compared the number of blacks and women employed on various randomly-selected dates with the number of blacks and women expected to be employed based upon the percentage of blacks and women in the relevant labor market.

Dr. Howard S. Gitlow, EEOC’s expert statistician, determined that during 1978 and 1979, 360 persons submitted employment applications to H. S. Camp, including 169 whites, 93 blacks and 98 persons whose race could not be determined. (R. 287-88). No evidence was produced concerning the qualifications of these applicants. Dr. Git-low testified that one could reasonably assume that the racially unidentified applicants were of the same racial composition as the group whose race was known. (R. 289-90). Based on this assumption, Dr. Git-low concluded that 35.5 percent of the applicants during those two years were black. (R. 289).

Dr. Gitlow was only able to obtain data on the persons hired by H. S. Camp from 1976 through 1978. During this period, H. S. Camp hired 204 persons, including 172 whites and 32 blacks. Because applicant data was unavailable for 1976 and 1977, it was necessary to assume that the percentage of black applicants in 1976 and 1977 was the same as the percentage of black applicants in 1978 and 1979 to obtain an applicant flow analysis for the period from 1976 through 1978.

Although Dr. Gitlow prepared this applicant flow data, he did not actually conduct an applicant flow analysis. (R. 287-89, Ex. 216). However, counsel for EEOC presented Dr. Gitlow’s data to Dr. Richard L. Seheaffer, H. S. Camp’s expert statistician, in the form of a hypothetical question on cross-examination. (R. 3013-14). Based upon Dr. Gitlow’s figures, Dr. Seheaffer determined the difference between the expected and observed number of black employees to be 39 or approximately 5.78 standard deviations. (R. 3015).

Dr. Gitlow did perform an applicant flow analysis of the hiring of women at H.S. Camp. In 1978 and 1979, 21.4 percent or 77 of the 360 applicants were women. (R. 302). Of the 204 persons hired from 1976 through 1978, 15 were female, 182 were male and the sex of seven persons was not available. (R. 315, Ex. 26). Rather than using the percentage of women hired from 1976 through 1978, Dr. Gitlow utilized the percentage of women employed by H.S. Camp on March 19, 1975, February 1, 1980, and five intermediate randomly-selected dates. (R. 302, 304, Ex. 26). Because applicant data was not available for 1975 through 1977 and 1980, it was necessary for Dr. Gitlow to assume that the percentage of female applicants during those years was equal to the percentage of female applicants in 1978 and 1979. Dr. Gitlow concluded that his analysis demonstrated a “very strong statistical disparity”. (R. 301-03). However, as will be discussed infra, Dr. Gitlow’s determination of the total number of employees employed by H.S. Camp on the randomly-selected dates is inaccurate.

Both EEOC and H.S. Camp conducted static analyses of H.S. Camp’s hiring practices from 1975 through 1980. In applying the static analysis method, the relevant labor pool must be determined. The parties have stipulated that the most appropriate geographical area for determining the labor pool from which H.S. Camp hires its employees is Marion County, Florida where the H.S. Camp plant is located.

Dr. Beth Niemi, EEOC’s expert labor economist, testified that the 1970 United States census Food and Kindred Products subclassification of the Civilian Labor Force of Marion County would be the most accurate measurement of H.S. Camp’s labor pool. (R. 114-21). She further stated that the 1970 census Civilian Labor Force of Marion County would be an appropriate alternative measurement. (R. 87, 91). Based upon the 1970 United States census, 24.8 percent of the persons within the Food and Kindred Products subclassification of the Civilian Labor Force of Marion County were black, while 24 percent of the persons within the Civilian Labor Force of Marion County were black. (R. 87, 91, Ex. 37).

Dr. Stanley K. Smith, H.S. Camp’s expert economist, testified that an extremely high correlation exists between the Civilian Labor Force classification of the 1970 census and the work force population, which includes all persons between the ages of 15 and 64. (R. 2200). He further stated that the percentage of blacks in Marion County has substantially declined since 1970. (R. 2207). Because of the close correlation between the work force population and the Civilian Labor Force classification, Dr. Smith concluded that the most appropriate measurement of H.S. Camp’s labor pool would be the number of persons between 15 and 64 years of age within Marion County during the relevant period of time. (R. 151-55, 2219). From 1974 through 1978, 16 to 17 percent of all persons between 15 and 64 years of age within Marion County were black. (R. 2219, 2244-45).

Although the 1970 census was undoubtedly the most accurate measurement of H.S. Camp’s labor force in 1970, it is to some extent outdated for use from 1975 through 1980 in view of the decline in the percentage of blacks in Marion County since 1970. However, it is also clear that although the work force population from 1974 through 1978 may be a more current measurement of H.S. Camp’s labor pool, it is based upon an estimate rather than an actual count such as the census. The Court finds that neither measurement is clearly superior. However, the Court further finds that both measurements are relevant in determining the racial and sexual composition of H.S. Camp’s labor pool during the period in question. Consequently, the Court will accord equal evidentiary weight to statistical analyses based upon either the 1970 census or the 1974-1978 work force population.

Dr. Gitlow employed the 1970 census Civilian Labor Force of Marion County as the relevant labor pool in his static analysis of H.S. Camp’s hiring practices with respect to blacks. To obtain a sample of employees at H.S. Camp, Dr. Gitlow used the number of employees employed on March 19, 1975, February 1, 1980, and five intermediate randomly-selected dates. (R. 280-85). However, in calculating the total number of employees on each date, Dr. Gitlow used the computerized payroll records which listed the year-to-date earnings of each employee. (R. 285). Because the payroll records listed the year-to-date earnings, employees who had been terminated earlier in the year were listed even though they were no longer working at H.S. Camp. (R. 3143-45). Consequently, in determining the total number of employees on each date, Dr. Git-low included some employees who had been terminated earlier in the year and were no longer employed by H.S. Camp. (R. 380-88).

Dennis Camp, the director of personnel at H.S. Camp, reviewed the personnel files to determine the correct total number of employees and the number of black employees on the dates selected by Dr. Gitlow. (R. 3144 — 45). The following chart indicates the difference between the expected and the observed number of black employees employed at H.S. Camp on the randomly-selected dates, as determined by Dennis Camp, based upon both the Food and Kindred Products subclassification of the 1970 census and the work force population from 1974 through 1978:

Dr. Gitlow also analyzed the hiring of women by means of the static analysis method using the percentage of women employed on the randomly-selected dates. As previously noted, however, Dr. Gitlow’s calculation of the total number of employees employed at H.S. Camp on the randomly-selected dates was inaccurate. Although the total number of employees on the randomly-selected dates was correctly determined by Dennis Camp, there is no evidence to corroborate Dr. Gitlow’s calculation of the number of women employed on those dates.

EEOC also introduced nonstatistical evidence concerning H.S. Camp’s hiring practices. As director of personnel, Dennis Camp reviews the written applications submitted by applicants for a position with H.S. Camp. (R. 3070). After reviewing the applications, Mr. Camp interviews the applicants who appear to be qualified for a position and determines which applicants to hire. (R. 3070). Mr. Camp testified that female applicants often withdraw their applications after learning of the nature of the work at H.S. Camp. (R. 3071, 3075).

In March 1979, Edward Taylor, a black male, applied for a job as a truck driver with H.S. Camp in response to an advertisement in a local newspaper, but was not hired. (R. 18-20). The advertisement described the position as “Delivery worker on meat truck, will train. Chauffeur’s license and 21 years of age required.” (Ex. 36). When Mr. Taylor filed his application he was over 21 years of age, 6'1" tall, weighed 182 pounds, possessed a chauffeur’s license and had completed three years of college. (R. 2124). Mr. Taylor had some experience in the meat packing business and as a truck driver. (R. 25-26).

After Mr. Taylor submitted his written application, he was interviewed by Dennis Camp. Dennis Camp testified that Mr. Taylor read a newspaper during the interview while Mr. Camp was asking him questions. (R. 1722). Mr. Taylor testified that he only briefly referred to the job advertisement in the newspaper when Mr. Camp accepted a telephone call during the interview. (R. 3442). During the interview, Mr. Taylor indicated that he was going to attend night school. (R. 1723). Dennis Camp noted that attending school at night would conflict with the working hours required for the job. (R. 1723). Philip Ward, a white male who had 12 years of shipping and delivery experience, was hired for the position. (R. 1723-24). The Court finds that Dennis Camp did not refuse to hire Mr. Taylor because of his race but rather based his decision on Mr. Taylor’s potential conflict with the working hours at H.S. Camp and Mr. Ward’s superior qualifications.

In 1976, Eddie F. McNeil, a black male, applied for a job at H.S. Camp. (R. 1070-71). Mr. McNeil weighed 195 pounds and was 6'1" tall. (R. 1072). He had completed high school and some college courses at the time of his application. (R. 1067). Mr. McNeil filled out a written application at the H.S. Camp plant and later was told that the company was not hiring at that time. (R. 1071). The Court finds that Mr. McNeil was not hired because no vacancies existed at the time of his application and that his race was not a factor in the decision not to hire him.

Rose P. Powers, a white female applied for a position at H.S. Camp in June, 1979. (R. 60). She was 5'6" tall and weighed 165 pounds at the time of her application. (R. 63). In her prior job she lifted air conditioners with the assistance of other employees. (R. 63). Ms. Powers testified that in September of 1979 a friend who was employed by H.S. Camp informed her that there was a job opening. (R. 61). Ms. Powers further testified that during her interview with Dennis Camp he told her that there was an opening in the sausage department and that she should come back on the following Monday to fill out a W — 2 form. (R. 61). Ms. Powers stated that when she returned to fill out her W — 2 form, Dennis Camp said that a relative had arrived in town and that the job had been filled. (R. 61-62). Dennis Camp denied hiring a relative to fill the position for which Ms. Powers had applied. (R. 1719). Ms. Powers subsequently visited the H.S. Camp plant on numerous occasions seeking employment but was never hired. (R. 62). No evidence was produced with regard to the basis of H.S. Camp’s decision not to hire Ms. Powers.

Candace M. Tharp and Tina L. Cochran, both white females, applied for a job at H.S. Camp in August of 1978. (R. 163-181). Ms. Tharp and Ms. Cochran previously worked for a company cleaning mobile homes and were required to move refrigerators, stoves and furniture. (R. 165-182). Ms. Tharp and Ms. Cochran expressed interest in the meat wrapping and packing positions at H.S. Camp. (R. 164-182). However, at the time of their applications the only position available was in the shipping department. (R. 17-18). Dennis Camp did not hire Ms. Tharp and Ms. Cochran because he did not think that they were strong enough to work in the shipping department. (R. 1718-19). Mr. Camp further stated that if either a meat wrapping or packing position had been available, Ms. Tharp or Ms. Cochran probably would have been hired. (R. 1718). Dennis Camp retained the applications of Ms. Tharp and Ms. Cochran for a year. (R. 1732). The Court finds that Dennis Camp did not refuse to hire Ms. Tharp and Ms. Cochran because of their sex but rather based his decision on the unavailability of a position for which they were qualified.

Job Assignments and Transfers

Most of the black employees at H.S. Camp hold positions in the slaughter, meat processing, meat cutting, sausage, packing, and custodial departments. (R. 2294a, Exs. 26, LL, MM, NN, 00 and PP). Black employees have never been assigned to the clerical or sales departments. (R. 1710-11). From 1975 through 1980 several vacancies existed in those departments in which few, if any, black employees were employed. (Exs. LL, MM, NN, 00 and PP). Dennis Camp testified that H.S. Camp had never received an application from a black person for a position in the sales department. (R. 1711). He further stated that only one black person had applied for a clerical position and that at the time of the application there were no vacancies in the clerical department. (R. 1711).

Dr. Gitlow, EEOC’s expert statistician, determined the number of black employees assigned to each department on March 19, 1975, February 1, 1980, and five intermediate randomly-selected dates. (R. 321). On the dates selected, no black employees were employed in the clerical, delivery, maintenance, sales, receiving or shipping departments. (R. 321).

Dr. Richard Scheaffer, H.S. Camp’s expert statistician, analyzed H.S. Camp’s departmental assignment of black employees in 1975 and 1980 using a confidence interval analysis. (R. 2949-67). Under this method, a confidence interval is constructed based upon the racial composition of the sample of employees in each department. (R. 2955-59). There is a 95 percent chance that the actual percentage of blacks in the relevant labor pool would fall within the confidence interval selected. (R. 2955-59). Consequently, if the percentage of blacks in the relevant labor pool is within the confidence interval selected, it is assumed that the blacks were randomly assigned to the various departments. (R. 2956). Because of the small sample sizes involved, the confidence interval technique is more accurate than the standard deviation analysis in analyzing departmental assignments. (R. 2941-43, 2967-68). Dr. Scheaffer determined confidence intervals for each department in 1975 and 1978 using data that EEOC had obtained from H.S. Camp’s personnel records. (R. 2941, Exs. XX, YY, ZZ and AAA). Based upon a relevant labor pool containing 24 percent blacks, as measured by the 1970 census Civilian Labor Force of Marion County classification, or 17 percent blacks, as measured by the work force population of Marion County from 1974 through 1978, Dr. Scheaffer concluded that H.S. Camp had randomly assigned employees to departments in 1975 and 1978. (R. 2955-56). However, assuming that the relevant labor pool contained 35 percent blacks, as estimated by the applicant flow data for 1978 and 1979, Dr. Scheaffer concluded that it was highly unlikely that the employees were randomly assigned to departments (R. 2958).

Monroe Leahmon, a black employee, worked in the slaughter department for approximately 15 years and retired in 1976. (R. 729-30). While working in the slaughter department, Mr. Leahmon developed a nervous condition. (R. 730). Because of his nervous condition, Mr. Leahmon asked Mark Camp for a transfer from the slaughter department. (R. 730). Mr. Camp replied: “Old Man, you’re going to die on the kill floor.” (R. 731, 2577). Mark Camp testified that he explained to Mr. Leahmon that if he were to transfer to another department, he would receive a cut in pay because he would not be as qualified for a position in another department. (R. 2578). Mark Camp further stated that his response to Mr. Leahmon’s request was merely part of a long-standing joke and that he and Mr. Leahmon understood that Mr. Leahmon did not really want a transfer because it would result in a decrease in pay. (R. 2578-79). No further evidence was introduced concerning the basis for the denial of Mr. Leahmon’s transfer request.

John L. Clark, a black employee, worked for 15 years in the slaughter department holding various jobs including removing internal organs, skinning cows and scalding hogs. (R. 773-74). Mr. Clark testified that he never really wanted to leave the slaughter department because he liked working there. (R. 774). However, he stated that he once asked to be transferred because he did not like Herman Cole, a white male who was the supervisor of the slaughter department. (R. 77A-75). Mr. Clark explained that Mr. Cole would blame him when others were at fault, made it difficult for him to take days off, and often assigned him the job of “dipping the hole”. (R. 775-76). Mr. Clark often drank excessively and sometimes came to work with a hangover. (R. 787, 794, 2837). Mr. Cole once saw Mr. Clark drinking in the restroom at work and sent Mr. Clark home from work one day when he was skinning cows and appeared to be intoxicated. (R. 2838-40).

Ernest Dickerson, a black employee, worked in the slaughter department slaughtering hogs. (R. 191). While working in the slaughter department, Mr. Dickerson developed a blister on his hand which became infected. (R. 191). A physician treated the infection and specified that Mr. Dickerson was not to handle or be near meat or blood. (R. 193, 196, Ex. 10). Mr. Dickerson subsequently requested a transfer to the packing department because of the infection. (R. 191-93). The jobs in the packing department, however, require the handling of meat. (R. 2416-20, 2547-50). Mr. Dickerson was not transferred to the meat packing department but rather was assigned to other jobs on the kill floor which required little, if any, contact with meat or blood. (R. 193). These jobs included stunning cows, scalding hogs and pushing the “gut buggy”. (R. 193). Mr. Dickerson was provided with a rubber glove to protect his hand while working. (R. 2826). After he was assigned to these new positions, Mr. Dickerson did not further pursue his request for a transfer from the slaughter department, but voluntarily terminated his employment within two weeks. (R. 2826-27).

With regard to the specific assignment of jobs, John Clark and Douglas Boynton, both black employees, testified that the dirtiest and most undesirable jobs were usually performed by black employees. (R. 776-77, 1945-46). David Ramsey, a black employee, confirmed this, stating that the most difficult and dangerous jobs were generally performed by black employees. (R. 873, 876). Harold A. Cole, a white employee, testified that he often performed such jobs as “dipping the hole” together with John Clark. (R. 2733, 2746, 2749). Nathaniel Jackson, a black employee, stated that all employees, both black and white, assisted in cleaning the plant. (R. 2721). Mark Camp testified that he has performed every job that exists at the plant. (R. 2366). Herman Cole, supervisor of the slaughter department, stated that he never assigned jobs based upon race and that employees would often volunteer to “dip the hole” so that they could leave work early. (R. 2852-53).

Most female employees are assigned to the clerical, meat cutting, packing, or sausage departments. (R. 321, Ex. 26). Dr. Gitlow determined that on March 19, 1975, February 1, 1980, and five intermediate randomly-selected dates no women were employed in the meat processing, smoked meats, delivery, maintenance, custodial, sales, receiving or shipping departments. (R. 321, Ex. 26). Dr. Scheaffer conducted a confidence interval analysis of the departmental assignments of female employees in 1975 and 1980. (R. 2960-69, Exs. XX, YY, ZZ and AAA). Assuming that the percentage of women in the relevant labor pool is 30.6 percent, as estimated by the 1970 census Food and Kindred Products subclassification of the Civilian Labor Force of Marion County, or 39.8 percent, as measured by the 1970 census Civilian Labor Force of Marion County classification, this analysis indicates that H.S. Camp randomly assigned female employees to departments in 1975 and 1980. (R. 2960-69, Exs. YY and AAA).

EEOC introduced a list prepared by Dennis Camp of jobs requiring heavy lifting which he believed could not be performed by women. (Ex. 23). These jobs include work in the meat processing, shipping, receiving and delivery departments as well as the operation of the grinder, mixer and chopper machines in the sausage department. (Ex. 23). These were not jobs that women were automatically excluded from, but rather jobs that women had tried but generally were unable to perform due to the physical limitations. (R. 1604, 1620). No evidence was introduced of any woman who actually applied for or requested a transfer to one of these positions and who was physically qualified to perform the job.

Promotions

Most department supervisors at H.S. Camp are employees who were promoted to the position of supervisor after working several years at various jobs within the department, although occasionally a person is hired as a supervisor. (R. 1652-54). There are no formal written requirements for a supervisory position. (R. 1529-50, 2628-30). Promotions are generally based upon the subjective evaluation of the department supervisors and executive managers. (R. 1529-50,1652-53). Dennis Camp, the personnel director, testified that in determining whether to promote someone to a supervisory position, qualities such as leadership, resourcefulness, punctuality, workmanship, efficiency and motivation are considered. (R. 1652-53, 3068). H.S. Camp does not post notices announcing job vacancies.

Patricia Dawson, a black female employee, was promoted to supervisor of -the packing department on April 18, 1977. (R. 1368). This promotion was granted after Patty Coffie filed her initial charge of discrimination with EEOC but before EEOC instituted this action against H.S. Camp. (R. 2628). No other black or female employee has been promoted to a supervisory position. (R. 1368).

David Ramsey, a black employee, worked in the slaughter department for 17 years. (R. 821-24). Rudolph Carpenter, Mr. Ramsey’s superior, was scheduled to be transferred and asked Mr. Ramsey if he was interested in being promoted to supervisor of the slaughter department. (R. 832, 2294a). Mr. Ramsey told Mr. Carpenter that he needed time to think about it. (R. 832). After two or three weeks Mr. Ramsey informed Mr. Carpenter that he was interested in the position provided the other supervisors would not be permitted to reassign or demand assistance from his subordinates. (R. 832-33, 837-38). Mark Camp testified that he did not promote Mr. Ramsey because he was told that Mr. Ramsey was concerned that the other black employees would be “jealous of him and would call him an Uncle Tom” and, therefore, did not want the position. (R. 2294a). The Court finds that H.S. Camp produced no evidence of a legitimate nondiscriminatory reason for refusing to promote Mr. Ramsey.

H.S. Camp hired Herbert Miller, a white male, for the position of slaughter department supervisor. (R. 841, 2295a-96a). Mr. Miller held the position of slaughter department supervisor for three to four years and the position became available again in 1977. (R. 2295a-96a). Mr. Ramsey did not apply for the position at that time because of his failure to be promoted earlier. (R. 942).

Monroe Leahmon, a black employee who worked in the slaughter department, complained of not being promoted to department supervisor. However, Mr. Leahmon never applied for the job. (R. 2632). Mr. Leahmon suffered from a speech impediment and a drinking problem. (R. 744-46, 2576, 2228, 2235). H.S. Camp hired Rudolph Rayburg, a white male, to replace Mr. Miller as supervisor of the slaughter department. (R. 2296a).

The position of slaughter department supervisor became vacant once again when Mr. Rayburn left H.S. Camp in 1973. Herman Cole, a white male, who had worked on the kill floor for several years and had a considerable amount of experience in the meat packing business, was promoted to the position at that time. (R. 2289a-90a).

Robert Manns, a black employee, was hired in April 1979 and assigned to the job of cutting hogs with an air-powered saw in the meat processing department. (R. 1813-17). This is one of the most difficult jobs in the meat processing department and requires considerable skill which is obtained through on-the-job training. (R. 1824, 1884-85). After three or four months at this position, Mr. Manns asked his supervisor, Mr. Cole, if he could be promoted or transferred to another position within the meat processing department. (R. 1827). Mr. Cole stated that Mr. Manns had made very good progress but that he had not completely learned how to operate the saw. (R. 2760-61). Mr. Cole further stated that Mr. Manns was not transferred or promoted to another position at that time because most of the other employees in the meat processing department were also trainees. (R. 2760-61). Mr. Cole explained that the saw operator is the key position in the department because it is the beginning of the assembly line and, therefore, regulates the production of the department. (R. 2760-61).

Although Mr. Cole denied Mr. Manns’ request for a transfer or promotion, he indicated that a transfer might be possible after Mr. Manns had completely learned how to operate the saw. (R. 2760). Mr. Manns was late for work several times because of personal problems and trouble with his car. (R. 2758). Mr. Cole did not discipline Mr. Manns for his tardiness and allowed him time off to work out his personal problems. (R. 2758). Mr. Manns voluntarily quit his job three weeks after requesting a transfer or promotion. (R. 2759). The Court finds that the denial of Mr. Manns request for a transfer or promotion was based upon legitimate nondiscriminatory reasons and that race was not a factor in the decision.

Patty J. Coffie, a black employee, worked in the sausage department. (R. 1157). Mark Camp, who was Ms. Coffie’s supervisor, considered Ms. Coffie to be one of the most experienced employees in the sausage department. (R. 2409). Ezra Lee Ferrell, a white male, worked in the sausage department for many years and was promoted to the position of department supervisor when Mark Camp vacated the position. (R. 1357-58). Ms. Coffie was able to perform most of the jobs in the sausage department except operating the chopping machine and the smoke house. (R. 1352-53). Mr. Ferrell testified that Ms. Coffie was able to learn and perform these various jobs effectively. (R. 1352-53). Mr. Ferrell eventually was transferred to another department when he became ill as a result of frequent exposure to the cold temperatures in the refrigerated rooms in the sausage department. (R. 1173). Mr. Ferrell indirectly learned that Ms. Coffie was interested in the position of supervisor of the sausage department. (R. 1172). However, there is no evidence establishing that Ms. Coffie directly applied for or requested a supervisory position. H.S. Camp hired Robert Horn, a white male, to fill the position of supervisor of the sausage department. (R. 1173-74).

Wages

The earnings of employees at H.S. Camp vary primarily according to seniority and the type of job being performed. (R. 3111, Ex. 14). Obviously, certain positions such as department supervisor are more valuable to the company than others and, therefore, the employees who perform those jobs receive a greater amount of compensation. (R. 3111). H.S. Camp has a specific written policy with respect to wages and salaries. (Ex. 14). Employees are generally hired at the minimum wage and are periodically evaluated for pay raises. (Ex. 14).

Dr. Howard S. Gitlow, EEOC’s expert statistician, examined the payroll records of H.S. Camp from May 31, 1975 through November 1, 1978 and determined that the average gross weekly pay was $234.16 for white employees and $132.96 for black employees. (R. 317, Ex. 26). For male employees the average gross weekly pay during this period was $233.66, while the average gross weekly pay for female employees was $134.56. (R. 317). Dr. Gitlow also determined that the average gross weekly pay for newly-hired white employees from 1976 through 1978 was $157.79 compared to $128.51 for newly-hired black employees. (R. 319, Ex. 26). Newly-hired male employees from 1976 through 1978 received an average gross weekly pay of $155.94, while newly-hired female employees received an average gross weekly pay during that period of $110.04. (R. 319, Ex. 26). In conducting his analysis, Dr. Gitlow did not consider seniority or the type of job being performed.

Dr. Richard L. Scheaffer, H.S. Camp’s expert statistician, analyzed the earnings of black and white employees on five randomly-selected dates from October 3, 1975 to September 6, 1978. (R. 2981-82, Exs. LL, MM, NN, 00 and PP). Dr. Scheaffer excluded the earnings of supervisors and the earnings of employees with significantly greater seniority than most employees. (R. 2987-89). He determined that in the general worker category during the week of October 3, 1975, the average hourly wage for white employees was $3.10 while the average hourly wage for black employees was $3.25. (R. 2987-88). During that week, the average hourly wage for male employees in the general worker category was $3.12 compared to an average hourly wage of $3.19 for female employees. (R. 2987). Dr. Scheaffer concluded that these disparities were not statistically significant. (R. 2987-88). In the slaughter department during the week of September 6,1978, the average hourly wage for black employees was $3.06 while the average hourly wage for white employees was $3.48. Dr. Scheaffer concluded that this disparity equaled 1.12 standard deviations and was not statistically significant. (R. 2990-91). Dr. Scheaffer conducted similar analyses of other departments during the five weeks selected and concluded that there were no statistically significant disparities between the wages of black and white employees and male and female employees on those dates. (R. 2991).

Monroe Leahmon, a black employee, testified that he only received four or five raises of 10 to 15 cents each while employed at H. S. Camp. (R. 739). However, he also stated that he started working at H. S. Camp in 1964 earning 85 or 90 cents per hour and was earning $4.15 per hour when he left the company in 1976. (R. 740). Consequently, it is clear that Mr. Leahmon received substantially more or larger raises than he originally stated.

David Ramsey, a black employee, testified that the management of H. S. Camp refused for four years to give him a raise of 25 cents per hour. (R. 829-30). However, payroll records reveal that Mr. Ramsey received 11 pay raises from October 1968 through May 1974 and that when he left the company in May 1974 he was earning $3.50 per hour. (R. 3077-78).

Israel Dempsey, a black employee, testified that he never earned more than $1.40 per hour while working at H. S. Camp. (R. 3415). However, the payroll records show that he actually earned $2.10 per hour in 1971. (R. 3632).

The testimony of other witnesses indicates that both black and female employees received pay raises. Cedrick Brigham, a black employee, received three raises and was earning $3.65 per hour when he was discharged. (R. 1126). Patty Coffie started working at H. S. Camp in 1970 earning $2.50 per hour. (R. 1158). She received pay raises each time she learned a new job skill and was earning $3.25 per hour when she was discharged, making her the third highest paid employee in the sausage department. (R. 1294, 2409).

Terms and Conditions of Employment

EEOC alleges that H. S. Camp discriminated against black employees in the terms and conditions of employment by calling black employees by their nicknames, using racial epithets, requiring black employees to work more hours than white employees, threatening and mistreating black employees, and failing to give telephone messages to black employees. EEOC further alleges that an H. S. Camp supervisor harassed a white female employee in retaliation for contacting EEOC. This latter allegation, however, is not a separate cause of action, although evidence of the alleged retaliation was admitted in support of EEOC’s claims under Section 703(a) of Title VII.

David Ramsey, a black employee, had the nickname “Dagwood” before he started working at H.S. Camp. (R. 931-32). Mr. Ramsey stated that he would rather be called David, although he did not mind being called by his nickname. (R. 1014-17). At work he was called both David and Dagwood. (R. 1014). Both black and white employees referred to Mr. Ramsey as Dagwood, and Mr. Ramsey never objected to being called by his nickname. (R. 2587). Nathaniel Jackson, a black employee was given the nickname “Boobie” by his mother. (R. 2713). Mr. Jackson stated that he would rather be called by his nickname than his real name. (R. 2713).

The management of H.S. Camp has never assigned a nickname to an employee but calls an employee by his or her nickname if he or she happens to have a nickname. (R. 2295). There is no evidence that any employee, black or white, felt demeaned or insulted when they were called by their nickname.

Douglas Boynton testified that Mark Camp once referred to David Ramsey, a black employee, as a “nigger”. (R. 1946-48). Mark Camp testified that he never called a black employee a “nigger” but that he had heard the term “nigger” used by both black and white employees. (R. 2587-88). He further stated that black employees commonly used the term “nigger” referring to another black employee during an argument. (R. 2588-89). The Court finds that the evidence does not establish that racial epithets such as “nigger” were used by the management of H.S. Camp.

David Ramsey testified that in the receiving and shipping departments black employees generally work early in the morning until 7:00 A.M. and that white employees generally work after 7:00 A.M. (R. 870, 1032). He further stated that black employees sometimes were not given telephone messages at work until two or three weeks after the call, while white employees received telephone messages promptly and were even called from their work to accept telephone calls. (R. 845).

Israel Dempsey, a black employee who worked in the slaughter department, had finished working one day and started to leave when his supervisor, Herbert Miller, told him that he would have to stay and help clean the kill floor. (R. 1958-62, 3385). Mr. Dempsey told Mr. Miller that his knees hurt due to arthritis and that he had to go home because he was having difficulty walking. (R. 1958-62, 3385). When he attempted to leave, Mr. Miller stopped him, held a knife to his neck and forced him to stay to clean the kill floor. (R. 1958-62, 3385).

Ulysses Grant, a black employee, testified that he never saw black employees being treated unfairly because of their race. (R. 2861). Mr. Grant further stated that he thought that H.S. Camp had treated him well. (R. 2861).

The facts surrounding the alleged retaliatory conduct are as follows. On September 26, 1979, Eileen Barber, a white female employee at H.S. Camp, contacted EEOC by telephone, in response to a legal notice which appeared in the local newspaper, and stated that H.S. Camp discriminated in paying wages. (R. 1920-31). On October 1, 1979, counsel for EEOC mailed a letter to counsel for defendant listing Ms. Barber as one of the persons who contacted EEOC in response to the legal notice. (Exs. 30, GG). Ms. Barber was subsequently interviewed in Donald Camp’s office by two attorneys representing H.S. Camp. (R. 1920-31). Also present were Donald Camp, Dennis Camp, and Samuel Camp. (R. 1920-31). Willard Ayres introduced himself as being an attorney for H.S. Camp and explained to Ms. Barber that she was not obligated to answer any questions. (R. 1920-31). Ms. Barber testified that she was frightened but did not inform anyone at the interview that she did not want to answer any questions. (R. 1920-31). She further stated that during the interview one of the attorneys for H.S. Camp asked: “Eileen Barber, why have you decided to become a witness against the Camps?” and that Dennis Camp then stated: “If you had any problem with the company, why didn’t you come to us first?” (R. 2109-10).

Ms. Barber stated that following the interview she was “harassed” by Samuel Camp, her supervisor. (R. 1927). However, she later indicated that this harassment began when Samuel Camp became supervisor of the sausage department in August of 1979. (R. 1927). Ms. Barber testified that the harassment by Samuel Camp consisted of strict enforcement of company rules and policies. She further stated that Samuel Camp enforced the rules and policies equally with regard to all employees in the department and that all of the employees in the department thought that Samuel Camp was generally unfair. (R. 2139-42). Samuel Camp refused to let employees take breaks during working hours, assigned employees who had finished a particular job to other work, and required employees to bring a note from their doctor when they were absent due to illness. (R. 2139 — 42).

Samuel Camp testified that the department was inefficient under the previous supervisor and that he had decided to improve the performance of the department by enforcing all company rules and policies. (R. 2777). He further stated that he treated all employees equally and that his treatment of Ms. Barber did not change after she had contacted EEOC. (R. 2779, 2788). The Court finds that there is no evidence that Samuel Camp harassed Ms. Barber in retaliation for complaining to EEOC of alleged discriminatory employment practices.

Segregated Restroom Facilities

Prior to the passage of the Civil Rights Act of 1964, H.S. Camp posted written notices at the entrance to the men’s restroom which stated “Colored” and “White”. (R. 1428-29). These signs were removed during the mid-60’s. (R. 1429). In 1969, a new restroom was constructed with a partition approximately five feet high and 11 feet long which divided the restroom in half with an equal number of sinks, toilets and lockers on each side. (R. 1431, 2570, Ex. 49). There is one door to the new restroom which provides equal access to both sides. (R. 1431, 2570). Lockers were installed in the restroom in a row extending almost the length of the room. (R. 1431, 2570). The partition runs perpendicular to and bisects the row of lockers. (Ex. 49). The lockers are bolted together and to the floor. (R. 2053).

In the old restroom, the lockers were unsupported and were often overturned by vandals. (R. 2568). An engineer hired by H.S. Camp to design the new restroom suggested the placement of the partition to provide a brace for the lockers. (R. 2569). No signs were posted in the new restroom directing black or white employees to either side of the restroom.

Ernest Dickerson, a black employee, testified that although no one told him, he felt that he was expected to use only one side of the restroom. (R. 190, 204). Mr. Dickerson stated that he generally used the shower and toilets on only one side of the restroom but often would go to either side to use a mirror to comb his hair. (R. 204).

Monroe Leahmon, a black employee, testified that all the black employees went to the right side of the new restroom while all the white employees went to the left side. (R. 732-36). Mr. Leahmon stated that it was understood that the black employees were to use the right side of the restroom and that he always used the right side of the restroom. (R. 768-69).

John Clark, a black employee, testified that while he was employed at H.S. Camp from 1960 to 1974, the black employees were expected to and did use only the right side of the restroom while the white employees used only the left side. (R. 782). However, he stated that he never saw a sign indicating that black employees could only use the right side and was never told that he had to use the right side. (R. 807).

David Ramsey, a black employee, testified that no one told him to use only one side of the restroom but that black employees were expected to use the right side and white employees were expected to use the left side. (R. 942). He further stated that generally the black employees used the right side and the white employees used the left side but that black and wh