Full opinion text
FINDINGS OF FACT AND CONCLUSIONS OF LAW McMILLAN, District Judge. Decided: August 15, 1980 by Memorandum of Decision on file. 503 F.Supp. 29. June 25, 1982 by Supplemental Memorandum of Decision This is an action brought pursuant to 42 U.S.C. § 1981 and 2000e et seq. Mr. Lilly filed his Complaint on June 18, 1976. Subsequent to Motion by plaintiff and the August 3, 1979 Order of the Court, the intervention of Christopher McKinney, Philip Reed, John LeGrand, Ken Bailey, Frank Sullivan, James Mobley, Shirley Gatewood, Jerome Gary, Curtis Jones, Woodrow McManus, Roy Torrence, Hazel Fisher, John Johnson, Willie Hunt, Michael McVay, Roosevelt Patterson, Willie Covington, William Carrothers, Trevesant Goodwin, and Richard Burch was allowed in Case Number 76-191. Edward Porter filed his Complaint (Case Number C-C-79-137) on April 27, 1979. Richard Gregory filed his Complaint (Case Number C-C-79-130) on April 25, 1979. Gregory, pursuant to his Motion and Order of the Court, was allowed to intervene in Lilly. All of these cases were consolidated for trial. Plaintiffs sought in-junctive relief to remedy allegedly unlawful employment practices and to provide specific relief for each individual who suffered from these practices. Based upon the evidence and exhibits, and after hearing and weighing the evidence, deciding on the credibility of the witnesses, viewing the demeanor of witnesses, considering the interests of witnesses, and the arguments of counsel, the Court, pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, makes the following: FINDINGS OF FACT I. JURISDICTION 1. This Court has jurisdiction pursuant to 28 U.S.C. § 1343 and 42 U.S.C. § 2000e-5(f). 2. The plaintiffs have complied with the procedui’al requirements of Title VII (42 U.S.C. § 2000e et seq.) (Trial Transcript (hereinafter Tr. _) 161, 162, 688-690; Plaintiff Trial Exhibits (hereinafter P. E. _) 17, 27, 28). II. PARTIES 3. Plaintiffs Paul Lilly, Christopher McKinney, Philip Reed, John LeGrand, Ken Bailey, Frank Sullivan, James Mobley, Shirley Gatewood, Jerome Gary, Curtis Jones, Woodrow McManus, Roy Torrence, Hazel Fisher, John Johnson, Willie Hunt, Michael McVay, Roosevelt Patterson, Willie Coving-ton, William Carrothers, Trevesant Goodwin, Richard Burch, Richard Gregory, and Edward Porter are black adult residents of the counties of Orange (Lilly), Lincoln (Reed), Gaston (Porter), and Mecklenburg (remainder), North Carolina. 4. Defendant Harris-Teeter (the “Company” or “defendant”): (a) is a corporation which transacts business in North Carolina; (b) is involved in the retail grocery business; (c) is a person within the meaning of 42 U.S.C. § 1981, and an employer within the meaning of 42 U.S.C. § 2000e(b). (Tr. 688-690). III. INTERVENTION 5. Plaintiffs Christopher McKinney, Philip Reed, John LeGrand, Ken Bailey, Frank Sullivan, James Mobley, Shirley Gatewood, Jerome Gary, Curtis Jones, Woodrow McManus, Roy Torrence, Hazel Fisher, John Johnson, Willie Hunt, Michael McVay, Roosevelt Patterson, Willie Coving-ton, William Carrothers, Trevesant Goodwin, and Richard Burch filed a Motion to Intervene on April 24,1979 in Case Number 76-191. Intervenor Richard Gregory filed a separate action (C-C-79-130) and a Motion to Intervene in C-C-76-191. 6. At the time said plaintiffs filed their Motion to Intervene, they were members of the class certified by the July 22, 1977 Order of the Court. 7. At the time intervention was sought, and as borne out by the evidence at the trial: (a) The persons listed in paragraph 5 claimed an interest in the transaction is the subject of Lilly v. Harris-Teeter, Number C-C-76-191. (b) Disposition of the case may, as a practical matter, impede or impair their ability to protect their interests. (c) The claims of the applicants have common questions of law and fact with the claims in the existing case. (d) The allowance of the motions did not unduly delay or prejudice the adjudication of the rights of the original parties. 8. Intervention was sought to state claims under both 42 U.S.C. § 1981, § 2000e et seq. IV. EMPLOYMENT PRACTICES 9. Harris-Teeter operates its main office, distribution center (warehouse), and some fourteen retail grocery stores in Meck-lenburg County. 10. Between August, 1976, and the trial of this action the defendant’s employment practices included: No notices of vacant jobs were posted at any of the locations before 1979; there were no educational requirements for job positions; there were no written job descriptions; regular written job performance evaluations were limited to office employees, merchandisers, and store managers; there were no criteria as to what factors were to be considered in promotion; and, an employee did not have to ask in order to be considered for promotion at any of the locations. (Tr. 540-543, 689-690; Deposition of C. L. Teeter, 27, 33, 36-38). 11. The distribution center (warehouse) has four departments: grocery, meat, frozen food-produce, and transportation. Each department had two shifts. The starting times of various employees on the same shifts are staggered. Both receiving and shipping functions are carried out at the warehouse. Order puller, order selector, order picker, and picker are synonymous terms for the same position. (Tr. 698-702; Defendant’s Trial Exhibit (hereinafter D. E.) 71). 12. A warehouse leadman is a working supervisor who assigns duties and performs the same duties as his subordinates (e.g. a leadman over pickers will assign duties but he has primary duties of a picker). (Tr. 712). 13. The factors utilized in promotion at the warehouse were “character,” “integrity,” “good sound morale,” “correct attitude,” and “initiative.” These criteria had no written definitions and in each case were defined by the particular management personnel involved in a promotion decision. Those criteria were capable of different definitions. (Tr. 736-41, 918, 987-993; D.E. 75). 14. Mr. Ralph Wilson, a white manager of Distribution Operations, kept a mental list of employees who wanted jobs. Mr. Penney, a white warehouse manager, maintained a written list of warehouse employees who wanted transfers between December, 1977 and January, 1979. (Tr. 711, 736-741, 1177-1180; D.E. 112). 15. The posting of warehouse jobs started in January, 1979. Leadman jobs were posted in the summer of 1979. (Tr. 711, 736-41). 16. The defendant contended that, in order to be promoted to a warehouse lead-man, an employee had to be on the same shift and in the same department as the opening. The defense to the warehouse plaintiffs’ promotion claims was grounded on this “same shift/same department” policy/practice. Whether this policy/practice existed during the time periods in question is in dispute. The policy was unwritten (Tr. 928, 990). If the policy existed, it was discriminatorily applied in that: (i) there was no showing that any white person was denied a leadman position because of the practice; (ii) from the record evidence, only blacks were denied promotions because of the practice; (iii) the policy/practice was used to justify the denial of particular job assignments (Tr. 952); (iv) white employees were promoted or transferred across shift and/or departmental lines to leadman or foreman trainee positions (Weaver, Fowlkes, Givens); (v) more experienced black employees, (Mobley, McKinney, Bailey) all of whom met the same shift/same department requirement, were denied lead-man positions some of which were filled by whites who crossed shift and/or departmental lines to fill those positions (Tr. 928, 988-990; Findings 25, 27, 34 infra.) 17. The promotion claims of plaintiffs Mobley, Patterson, Johnson, Sullivan, and LeGrand were defended on the basis of the same shift/same department policy. The Court finds that this policy was not the reason those plaintiffs were denied promotions (Tr. 110-112, 351-352, 384-385, 520, 917, 918, 928, 933-941, 952-995, 1071; D.E. 81). 18. Refusals by blacks to take jobs on particular occasions, regardless of circumstances, were carefully remembered, but the blacks were never asked whether they had changed their minds or whether their circumstances had changed. See Findings concerning Sullivan (32) and Patterson (29). 19. The defendant contended that some of the whites selected for promotion were better qualified because of their previous job experience (e.g. Allen, Hanson). Previous job experience was not systematically recorded. Relevant job experience of qualified blacks, whether listed on an application form or communicated orally, was often ignored or disbelieved (Reed, McKinney, Patterson, LeGrand, Torrence). The previous job experience of white promotees was typically remembered, explored, and utilized (e.g. Hanson). Information concerning prior experience, job performance, etc., was conveyed by word of mouth from one level of supervision to another. In cases where black and white applicants described their previous job experience in a substantially identical fashion, the white applicant’s experience was used as a basis for promotion, while the black applicant’s experience was ignored. (Tr. 194-195, 513-514, 247-248, 263, 741, 752, 848, 859-862, 864, 868, 752, 1013; D.E. 75, 79, 92). 20. Personnel practices at the retail stores included: Store supervisors (managers) made promotion recommendations by the store supervisor. Promotions were limited to persons recommended by the store managers. The district manager agreed with the store manager’s recommendations 90-95 percent of the time. The district manager ultimately decided who would be promoted, transferred, demoted, hired, or terminated for all positions up to the department-head level. Job vacancies were not posted. Employees transferred from one store to another. In the stores managed by Mr. Higgins (white) (nine stores in Mecklenburg County) there were no black store managers between 1974 and 1977. Between 1974 and 1977, there was no written promotion system, no written description of factors to be considered in promotion decisions, and no regular system of job performance evaluation. (Tr. 784, 838, 853-856, 860). V. CLAIMS OF PLAINTIFFS 21. Edward Porter, in response to a newspaper advertisement, applied for a tractor trailer driver position at Harris-Teeter on March 31,1975. Porter’s application listed 22 months of prior experience as a road driver. Porter’s other truck experience (ten years) was not listed because he had used up all available space on his application. Porter was neither interviewed nor contacted by Harris-Teeter. Porter was qualified for the driver position. In June, 1975, Porter saw an identical advertisement for tractor trailer drivers. Eight persons were hired as truck drivers between 5/7/75 and 7/24/75, all of whom are white. The first person hired after Porter applied (K. Mills, white) quit on 5/16/75. Harris-Teeter stated it would not rehire Mills. The defendant contends that Porter was not hired because no openings existed when he applied. However, within 120 days of Porter’s application, nine whites were hired as truck drivers. Two of the hirees had less driving experience than Porter listed on his application. All of the white hirees had less driving experience than Porter. The percentage of black drivers decreased from 50.7% in 1975 to 27.6% in 1977. Porter was not hired because of his race. He is entitled to appropriate relief in Stage 2 proceedings (Tr. 6-14; P.E. 27; D.E. 17, 19, 22, 24). 22. Philip Reed presented two promotion claims and a discharge claim. Reed was hired as a produce clerk in 6/76. He had applied for a management position. He had three years of grocery store management experience, including six months in produce management. Reed worked at two stores between 6/76 and 4/77. On several occasions Reed asked the District Manager (Higgins, white) and the store manager (Foye, white) about a promotion to vacant produce manager positions. The first vacancy was filled on 10/8/76 by A. Wilson, white. Wilson, a produce clerk, had 18 months experience with Harris-Teeter. Wilson, who had no management experience, was replaced by W. Allen, white, on 11/8/76. Allen was selected on the basis of his Harris-Teeter experience as a produce clerk and an assistant produce manager of six months. Reed was not considered for either vacancy. He was more qualified than either of the promotees. Reed received a warning on 12/5/76. It played no part in his non-selection. The Court gives no credence to the reasons advanced by Harris-Teeter for failing to promote Reed. In 1975-76, whites received 96.3% of the promotions in supervisory/management jobs at the stores, and constituted 95% of the officials and managers at the stores. Reed was denied a promotion because of his race. He is entitled to appropriate relief in Stage 2 proceedings. Reed was not discharged because of his race. (Tr. 20-30, 774, 776, 780, 857-859, 861-863, 869; P.E. 5, 23, 26; D.E. 55, 79). 23. Paul Lilly was employed at the warehouse between 7/7/74 and 1/10/75. Within 90 days of his hire, Lilly received two pay raises. Lilly’s supervisors were all white. Lilly heard Watson (supervisor) talk about “how he used to kick niggers’ asses at the Armour plant before he came to work at Harris-Teeter.” Watson denied this (Tr. p. 1107). On 1/8/75, Lilly went to C. L. Teeter, personnel director, and complained that blacks were being terminated for being late while whites laid out and were not terminated. Teeter denied the complaint. Both of these conflicts in the testimony are resolved in the favor of Lilly. On 1/10/75, Lilly was terminated by John Watson for allegedly miscounting beef. Lilly had been given the checking duties as a part of inventory control. After Lilly took over the checking duties, there was a noticeable improvement in inventory control. Errors in the counting of the beef had been made at the stores. Watson did not check with the stores to see if any errors had been made there. Miscounting the meat was not the reason for Lilly’s discharge. Lilly was discharged because of his race and his opposition to racial discrimination. Lilly is entitled to appropriate relief during Stage 2 proceedings. (Tr. 44-59, 67, 70, 71, 73, 87, 88, 1107, 1113, 1114, 1165-66). 24. Richard Gregory worked for Harris-Teeter between 7/7/72 and 5/29/75. Gregory had nine years of previous grocery store experience. Gregory worked as a stock clerk in store number 2 until he was promoted to grocery manager on 5/27/74. As a grocery manager, Gregory’s duties were to order merchandise, take inventory, check for shortages, overages, and damage in the merchandise, make sure that the work area was clean, and keep the shelves stocked. He supervised seven employees. He was not warned about his job performance as a grocery manager. He was informed by his supervisors that he was doing a good job. Gregory terminated a white stock clerk who told Gregory that he was not going to work for a nigger when Gregory instructed him to help unload a truck. The white store manager reinstated the clerk. (A Harris-Teeter witness obliquely denied this. Tr. 809-10) Gregory’s testimony was corroborated (Tr. 181). The Court resolves the credibility issue in favor of Gregory. On 1/20/75 Gregory was demoted to a stock clerk at another store. Mr. Higgins (white, territory manager) was present when Gregory was told by Mr. Crowell (black, co-manager) that he was being demoted because the storeroom was unclean. Higgins made the decision that Gregory would be demoted. Gregory was sent to store number 9 as a stock clerk. Gregory left store number 9 as a stock clerk because of the demotion and harassment (e.g. (i) being written up for going to the doctor, (ii) being given more difficult aisles to stock (corroborated by another witness (Tr. 824)), and (iii) being kept later to perform job duties after other clerks went home) (denied by a Harris-Teeter witness (Tr. 833)). This issue of credibility is resolved in Gregory’s favor. Gregory was replaced as grocery manager by Donnie Brock, white. After Brock became grocery manager, he was not given aisles to stock. Gregory, as grocery manager, had been assigned aisles to stock. Race was the reason for Gregory’s demotion. Gregory was constructively discharged. He is entitled to appropriate relief in the Stage 2 proceedings. (Tr. 153-168, 181, 183-186, 807; P.E. 26). A white meat manager was “written up” 10 times between Mareh-October of 1976, and was allowed to resign (Tr. 816-822; P.E. 26). The Court specifically credits the testimony of Howard and Pitts (Tr. 176-184) that Gregory performed his job as a grocery manager in a satisfactory manner. 25. James Mobley has been employed by Harris-Teeter since 4/14/74 at the warehouse in the meat department. Milk, dairy products, and meat are in the same department. Mobley’s job duties prior to 4/78 included milk picking, unloading, and forklift driving. In the spring of 1976, a foreman (Crowley, white) told Mobley that he was “up” for promotion to leadman in the meat department. Terry Givens (white) received the job on 6/7/76. Givens was initially hired on 1/11/74, resigned 2/5/74 and was rehired 11/3/74. Mobley had more company and departmental experience than Givens. Givens’ prior duties were solely picking meat; Mobley’s duties involved more products. Mobley had also supervised Givens when Mobley served as a* “fill-in” (temporary) leadman prior to Givens’ promotion. Mobley’s job performance had been praised by his supervisors. Mobley was never considered for Givens’ job. Mitchell, a Harris-Teeter witness, made a comparison between Mobley and Givens (Tr. 926-927). This comparison has little, if any, weight since it was not made at the time of Givens’ promotion. Mitchell’s assertion that Givens had broader departmental experience is invalid since Mobley acted as Givens’ leadman when he was a “fill-in” leadman. On 5/16/77, David Allison, white, was promoted to the meat department vacancy created by Givens’ transfer to lead-man in the produce department. Allison was hired on 5/18/76 as a picker without forklift duties. Mobley had both greater company and departmental experience, including that of “fill-in” leadman. Mobley was not considered for the job Allison was promoted to. Jeff Fowlkes, white, was rehired by Harris-Teeter in the warehouse in 5/76. Prior to then, Mr. Fowlkes has worked in various stores. In September or October, 1976, Fowlkes became the “defac-to” leadman on the night shift in the produce department; he got the job title on 11/22/76. (Tr. 351-52, 384-85, 520, 933-41, 952-995, 1071; P.E. 26). Harris-Teeter stated that it did not promote Mobley to the Allison position because Mobley was on strike. This reason is not valid since Mob-ley informed Harris-Teeter he was available for work eight to ten weeks before the Allison promotion. Harris-Teeter stated that it did not promote Mobley to the Fowlkes’ position because Mobley was on a different shift in another department and because Mobley was on strike after 11/16/76. Mobley was present when Fowlkes started his “defacto” leadman duties. Mobley was denied these three promotions because of his race. He is entitled to appropriate relief in Stage 2 proceedings. In April, 1978, Mobley became a meat department leadman. (Tr. 97-116, 125, 384-385, 520, 926-27, 933-41, 995, 996, 998,1163; P.E. 26; D.E. 81). 26. Je’rome Gary was employed as a warehouseman between 9/18/74 and 6/23/78. Gary initially applied for a mechanic’s position. He was promised a transfer to the garage as a mechanic when there was a vacancy. Gary was qualified to be a mechanic because of his prior experience and education. Gary made several requests for a mechanic’s job between September, 1974 and the middle of 1975. Two white employees (H. Burris, S. Richards) transferred from the warehouse to mechanics’ jobs during the 1975 period of Gary’s requests. In 1975, four white and one black mechanics were hired. In 1976, fifteen white and one black mechanics were hired (P.E. 2). In 1975, four whites and one black were promoted or transferred to a mechanic position. (P.E. 3). In 1976, five whites and one bláck were promoted or transferred to a mechanic position. In the summer of 1975, Gary asked to be transferred from a standup (Raymond) lift to a sitdown lift. Mitchell denied that Gary made this request. This credibility issue is resolved in favor of Gary. Gary was qualified to operate a sit-down lift. Two junior whites were transferred from standup to sitdown lifts shortly after Gary’s request. The sitdown lift pay was higher. Gary was denied a mechanic’s job and a transfer to the sitdown forklift because of his race. He is entitled to appropriate relief at the Stage 2 proceedings. (Tr. 129-152, 968, 969; P.E. 26). 27. Christopher McKinney has been employed by Harris-Teeter since 6/18/75 at the warehouse in the dry grocery department. McKinney has been a forklift driver. When he expressed an interest in promotion, McKinney informed Harris-Teeter management of his 2V2 years experience supervising six employees. He was on strike from 11/16/76 to 2/27/77 when he informed Harris-Teeter that he was available for work. McKinney performed his job well. In April, 1977, a junior white employee, Jeff Fowlkes, was promoted from produce leadman to foreman trainee in the grocery department. Foreman trainee is basically the same job as leadman (Tr. 1017). McKinney was not considered for the foreman trainee job. Mitchell testified that McKinney was not qualified because of a poor work record. When asked to examine McKinney’s personnel file, Mitchell could not find any record of a warning due to poor job performance. Warnings were given to some employees for poor job performance. McKinney had more warehouse and departmental experience than Fowlkes. McKinney was qualified for the trainee job because of his experience. Michael Weaver (white, hired 11/24/76) was promoted on 5/30/77 from day shift picker to night shift dry grocery leadman. McKinney was not fairly considered for this job even though he was on the same shift and in the same department. McKinney was qualified for this job because of his prior experience. McKinney was denied the foreman trainee job and the leadman job because of his race. He is entitled to appropriate relief in Stage 2 proceedings. (Tr. 189-206, 1017, 1020, 1088-90, 1075-1078; P.E. 26; D.E. 81). 28. Roy Torrence was hired by Harris-Teeter at its warehouse on 9/18/74 as a maintenance (sanitation) employee. His duties included forklift driving, sorting damaged food, and rebuilding pallets. His prior work experience included supervisory duties and self-employment. Torrence trained a white employee of Harris-Teeter (Neal Mitchell, hired 5/12/75) who was promoted to foreman of the maintenance (sanitation) department on 6/16/75. Before Mitchell was hired, Torrence asked Dick Jackson (sanitation department supervisor) for the foreman job to which Mitchell was promoted. Jackson told Torrence that he would never be a foreman or leadman as long as Jackson was there. Jackson denied this. (Tr. 1124, 1126). The Court resolves this credibility issue in favor of Torrence. On 8/15/78 a junior white employee (Earl Hanson, hired 11/16/77) was promoted to a sanitation leadman for the same shift and in the same department that Torrence worked. Torrence was never considered for the job that Mitchell got. Torrence was described by his supervisors (Mitchell, Jackson) as having “excellent attendance” and “excellent performance” five times between 9/24/74 and 6/16/75. (Tr. 1016,1126,1132-33). These ratings conflict with the testimony of defendant’s witnesses (Tr. 1122-23, 955). The Court resolves the conflict in favor of Torrence and finds that he was a good employee. Torrence filed a grievance for not being promoted to the position Hanson received. The criteria used in comparing Torrence and Hanson were subjective. Torrence was denied these jobs because of his race. He is entitled to appropriate relief in Stage 2 proceedings. (Tr. 244-60, 1016, 1124, 1126, 1132, 1133; P.E. 26; D.E. 75, 91, 92). 29. Roosevelt Patterson worked for Harris-Teeter during parts of 1972 and 1973. He has been employed continuously at the warehouse since 10/12/73. His prior work experience included assistant gas station manager and assistant warehouse manager positions. Since he was rehired in 10/73, Patterson’s classifications include night shift meat picker and day and night shift forklift driver, all of which were in the meat department. In 9/77 Patterson was in “receiving” temporarily. He was the only person performing the receiving duties. Two persons normally performed the receiving duties. Patterson asked for assistance and did not get any. Patterson asked to return to his lift job because of the failure to provide help. When whites worked as receivers, there were two of them except for one instance where a white employee performed the job alone. Patterson was on strike from 11/17/76 until 2/27/77 when he informed Harris-Teeter that he was available for work. He returned to work on 3/3/77 as a lift driver in the freezer department. Patterson asked for leadman jobs. He was told that since he had left the receiver’s job, he would not become a leadman. Patterson had worked in various departments as a receiver, picker, and a lift driver. His work performance was praised by warehouse management. The following junior whites were promoted: (a) Jeff Fowlkes was hired May, 1976 as a produce picker. He was made a de facto produce leadman in September or October, 1976, and given the title of leadman on 11/22/76. He was made a foreman trainee in 4/77 (grocery) and a foreman in the grocery department on 9/22/77. (b) Terry Givens was hired as a picker on 11/3/74. He was promoted to meat lead-man on 6/7/76, and to foreman on 8/27/77. (c) David Allison was hired on 5/19/76 as a meat picker and was promoted to meat leadman on 5/16/77 and to foreman on 6/25/78. (d) Clyde Kiker was hired on 11/23/76 as a produce picker. He was promoted to a produce leadman on 8/7/77, nine days after a warning on 7/29/77 that he had been tardy six times between 6/5/77 and 7/29/77. He was made a foreman on 6/25/78. (e) Neal Mitchell was hired on 5/12/75. He was promoted on 6/16/75 to foreman (sanitation). In 9/75, he was transferred to the night shift (sanitation) as a foreman. (Tr. 277-8). Mr. Patterson was qualified for those jobs because of his experience and his job performance. Harris-Teeter contends that Patterson was not eligible for any of the promotions since Patterson was either in a different department or on a different shift. (Tr. 999-1001). This reason is not given credence. See Finding 16, supra. He was not considered for any of these positions. Patterson was denied promotion because of his race. He is entitled to appropriate relief in Stage 2 proceedings. (Tr. 262-302, 928, 999-1003; P. E. 26; D. E. 81). 30. Curtís Jones was hired by Harris-Teeter in 7/74. His prior work experience included loading and unloading freight. In 7/78, Jones became a dry grocery picker. He was then transferred to the “salvage” dock, where he unloads pallets weighing 30 to 40 pounds. In the spring and fall of 1976, Jones asked for a job as a rail unload-er. This job involves the unloading of cases with an average weight of 30 to 40 pounds, and an upper limit of 60 to 70 pounds. The defendant contended that Jones was not promoted because he had back problems. Jones was never asked by the supervisor of the rail dock about his back. His medical problems were minor. Two whites (James Lamb, Eddie Kistler) were hired as rail dock unloaders after Jones asked about the job. Jones was qualified for this job because of his prior work experience. The statistics show that Harris-Teeter hired seven whites and no blacks as unloaders. Jones was denied this job because of his race. He is entitled to appropriate relief in Stage 2 proceedings. (Tr. 303-311, 1108, 1112; P.E. 2, 26). 31. John Thomas Johnson: Johnson was employed in February of 1975 as a picker and lift operator in the meat department and later in the produce department. He was qualified and available for the lead job and for the foreman job to which Jeff Fowlkes was promoted. Fowlkes was slotted into the lead man’s job in October of 1976, and received the actual job title in November, 1976. Johnson’s complaint as to Fowlkes (and as to David Allison and Clyde Kiker) relates to promotions which occurred in April, 1977 (Fowlkes); May, 1977 (Allison); and August, 1977 (Kiker). Although Johnson was available and qualified from the time he abandoned the strike in February of 1977, he did in fact turn down a night job at $4.80 so that he could stay in a day job at $3.90 and look after his children. (His actual testimony on this issue was evasive, and it was only after some prodding from the Court that he ever gave a clear answer about the “family reasons” which moved him to reject the higher paying job). Defendant says that his turning down the night shift work was the reason he was not considered for promotion. I am not sure that I ought to take that reason at face value, but I am unable to conclude that it was solely pretext. Relief will not be ordered for John Thomas Johnson. 32. Frank Sullivan was hired by Harris-Teeter at its warehouse in 7/69 as a milk picker. Between February and June, 1972, Sullivan was involved in foreman training. Sullivan also worked as a receiver and as a “slot master.” In the summer of 1973, Sullivan was informed by management personnel that he was a leadman. Mitchell announced this to the entire department. Sullivan was a leadman between 7/73 and 2/74. In 2/74, Mitchell told Sullivan that he was a slot master and not a leadman because Sullivan had left the foreman trainee program earlier. Sullivan was on strike from 11/17/76 until 2/27/77, when he informed Harris-Teeter that he was available for immediate employment. Sullivan returned to work as a meat picker in 6/77. He subsequently became a dry grocery picker, frozen food lift driver and a grocery slot master. Sullivan, assigned to the meat department, worked in all of the departments because of his duties. Sullivan was informed by management personnel that his job performance was good. Junior white employees were promoted to leadman positions as follows: (a) Curtis George Hamilton, hired 9/22/70, was promoted to leadman on 10/25/76 and foreman on 11/15/76. Sullivan worked on the same shift and in the same department. Hamilton became Sullivan’s leadman as a result of the promotion. (b) Clyde Kiker, hired 11/23/76, was promoted to leadman on 8/7/77 and foreman on 6/25/78. Harris-Teeter advanced two reasons for Hamilton’s promotion. The first was that Hamilton “had much more experience in receiving.” The evidence reveals that, prior to Hamilton’s promotion, Sullivan and Hamilton had the same amount of experience. Furthermore, Sullivan had experience as a leadman and had performed a broader range of job duties than either of the promotees. The second reason was that four years earlier, in 1972, Sullivan had requested to leave a night shift foreman trainee position in 1972. This was the same reason used to remove Sullivan as a lead-man in 1974. Those reasons are not persuasive. As to Kiker, the defendant contended that Sullivan was not considered for Kiker’s job because he was in a different department. This is not a valid reason. See Finding 16, supra. Sullivan was qualified to perform these jobs because of his job performance and his experience at Harris-Teeter. Sullivan had more company and departmental experience than Hamilton. Sullivan was denied the Kiker and Allison positions because of his race. He is entitled to appropriate relief in Stage 2 proceedings. (Tr. 377-400, 944-951, 1006, 1161; P.E. 26; D.E. 81). 33. Kenneth Bailey was hired by Harris-Teeter as a stocker at its warehouse on 4/17/74. His next position was that of loader. He was classified as a forklift driver on 8/4/75. He was on strike between 11/17/76 and 2/27/77 when he informed Harris-Teeter that he was available for employment. He returned on 7/18/77 as a picker. On 8/29/77, Bailey was classified as a lift driver. Bailey worked only in the dry grocery department. Two junior whites were promoted to leadman in the dry grocery department on the same shift that Bailey worked. (a) Wade Carpenter, hired on 6/8/76 as a picker, was promoted to leadman on 7/10/78. Carpenter regularly performed the duties of a picker prior to his promotion to leadman. He supervised pickers, loaders, and forklift drivers as a leadman. Bailey had performed all of these duties at various times. Carpenter went on strike when Bailey did. (b) Richard McClain, hired as a picker in 12/75, was promoted to leadman on 6/4/79. As a picker, he was the “shortman.” This meant that he did not assemble full orders. McClain replaced Carpenter as the leadman. Bailey performed a broader range of duties than McClain. Bailey was not considered for either position even though he was in the same department. Bailey was qualified for said positions since he performed all of the departmental duties, and had more departmental experience than either promo-tee. Bailey was denied promotion because of his race. He is entitled to appropriate relief in the Stage 2 proceedings. (Tr. 462-509, 1185; P.E. 26; D.E. 81). 34. John LeGrand was hired by Harris-Teeter on 7/8/74 as a frozen food picker. His next position was frozen food loader. LeGrand was trained to act as a “fill-in” leadman, and in fact did “fill in” as a lead-man until Randy Avery (white) was hired. LeGrand trained Avery in the duties of a “fill-in” leadman. Avery then assumed Le-Grand’s place as “fill-in” leadman. Avery was offered a full-time leadman’s position, which he refused. LeGrand was never offered this job. LeGrand informed Harris-Teeter management of his prior experience as a leadman at a textile mill. LeGrand was on strike from 11/17/76 until 2/27/77 when he informed Harris-Teeter that he was available for employment. He returned in 8/77 as a picker. He was classified as a forklift driver in 7/77. Junior whites were promoted to leadman positions as follows: (a) Doug Dover, hired on 10/31/74 as a picker, was promoted to night shift lead-man in the produce department on 1/26/76. In this job Dover set up the trucks for the produce department and put together the orders. LeGrand performed these same duties in the freezer department. On 8/30/76, Dover left this position. (b) Terry Givens was rehired on 11/3/74, after previous employment of three weeks early in 1974. On 6/7/76, he was promoted to leadman in the meat department on the night shift. (c) Jeff Fowlkes was hired 5/16/76, as a produce picker. On 11/22/76, he was formally given the job title of leadman in the produce department. He replaced Dover. Fowlkes was the “de facto” leadman in that he performed the duties of a leadman in September and October, 1976. Fowlkes supervised the loading duties in September and October, 1976. LeGrand had more experience in loading. LeGrand was considered ineligible for the loading duties that Fowlkes got because he was in a different department. LeGrand was qualified to perform the leadman duties because of his prior job performance and his experience, including supervision. LeGrand was considered ineligible for the leadman positions because he was on a different shift and/or department. LeGrand was denied promotion because of his race. He is entitled to appropriate relief during Stage 2 proceedings. (Tr. 510-539, 951-953, 1010, 1039, 1040; D.E. 81; P.E. 26). VI. MAINTENANCE OF CLASS ACTION 35. Plaintiff Lilly moved for class certification on or about 5/20/77. Defendant opposed said motion. By Order dated 7/22/77, this Court certified a class consisting of the following: Plaintiff, and all blacks currently employed by defendant Harris-Teeter in its Mecklenburg County facilities; all blacks employed by Harris-Teeter in its Meck-lenburg County facilities at any time since 7/20/74, who are not currently employed, and any blacks who are hired in the future, all of whom have been or will be subject to racial discrimination by Harris-Teeter in its employment policies of hiring, hiring into certain jobs, racially segregated job classifications, promotions, interviewing, termination, and discipline. 36. Intervenors McKinney, Reed, Le-Grand, Bailey, Sullivan, Mobley, Gatewood, Gary, Jones, McManus, Torrence, Fisher, Johnson, Hunt, McVay, Patterson, Coving-ton, Carrothers, Goodwin, Burch, and Gregory were certified as class representatives on August 3, 1979. 37. The initial class certification included the stores, main office, and warehouse located in Mecklenburg County. 38. No plaintiff worked at the main office. McManus, a warehouseman, sought a job at the main office. The jobs at the main office include clerical, middle management, and upper management jobs. (P.E. 1, 2). The class finally certified should be defined to exclude the main office. 39. At the time the original class was certified, the definition of the class included unsuccessful applicants for initial employment. The only claimant who presented an initial hiring claim was Porter. Porter never sought to be certified as a class representative. 40. There is no evidence in the record as to the number of unsuccessful black job applicants. 41. There is no class representative applicant for initial employment to protect the interests of applicants for employment. 42. All claimants (except Porter) were employed by Harris-Teeter at either retail stores or the warehouse. Their claims include discharge and job placement (demotion, transfer, promotion). Defendant has no written job descriptions, and presented little evidence concerning job duties. The evidence of job duties indicates that they are not difficult. (Tr. 22, 48, 49, 100-102, 135, 155, 157, 245, 378-79, 515, 864, 1108; P.E. 26-A). The overwhelming majority of jobs at the warehouse and stores have skills which are held by or are readily available to the general public. For example: (a) At the warehouse, when one excludes supervisory and skilled jobs, the following proportions of the work force remain (P.E. 1): 1977: 86.1 (347/4os); 1976: 89.9 (525/584); 1975: 90.8 {mAi¿). In 1975 and 1977 the excluded jobs included leadman positions (described as a working supervisor, Tr. 712), safety technician, battery repair, all mechanic jobs, garage superintendent, all foreman jobs, supervisors, servicemen, electricians, and refrigeration jobs. In 1976 the same jobs are excluded with the addition of foreman, trainee/leadman. (b) Stores: If one excludes the management and skilled jobs, (e.g. managers, manager trainees, head cashiers, meat cutters) the following proportions of the entire work force remain (P.E. 1): 1977, 86.4% (68%7i; 1976, 91.9% 1198/i303); 1975, 90.5% (1I67/i29o). 43. Plaintiffs Reed and Gregory worked at store numbers 2, 9, 83, and 22. Each store has the same basic range of jobs. Each store performs the same function — retail sale of food and other items commonly found in the supermarket. Defendant presented no evidence showing there was a difference in employment conditions among the various stores. The stores were under the direction of a territorial supervisor who had unilateral authority to hire, fire, and demote from the department head level and down. During the years in question, one territorial supervisor (Higgins) supervised nine of the fourteen stores in Mecklenburg County. 44. The size of the annual work force of Harris-Teeter at the stores and warehouse is approximately 1500-2000 persons (P.E. 1; D.E. 16-25). The overwhelming majority of jobs are basically those which have skill requirements which are held or readily obtainable by the general population. Employment conditions are generally the same. Employees are transferred and promoted between the stores and warehouse departments. Warehouse employees went into store management (e.g. Fowlkes, P.E. 26) and were offered store management trainee programs (e.g. Allison, P.E. 26). 45. Common features of the promotion and termination practices at the stores and warehouse are: a basically all-white supervisory work force; unfettered discretion as to whom to promote or terminate; unwritten subjective criteria for promotion and termination; no written job descriptions; no written regular job performance evaluations; and, the necessity of the recommendation of the immediate supervisor for promotion. Defendant did not present any evidence to show that the conditions of employment were significantly different between the stores and warehouse. The certified representatives have the same claims (promotion, discharge) as the members of the defined class. 46. Based upon the record in this case, the class to be certified should exclude the main office and be limited to the practices of termination and promotion. The final class should be defined as follows. Plaintiffs Lilly, Gregory, Reed, Mobley, Gary, McKinney, Torrence, Patterson, Jones, Johnson, Gatewood, Sullivan, Bailey, and LeGrand, and all blacks currently employed by Harris-Teeter at its warehouse and store numbers 1,2, 5, 8, 9, 22, 39, 52, 53, 55, 59, 62, 66, and 83 located in Mecklenburg County; and all blacks employed by Harris-Teeter (at said warehouse and stores) at any time since 7/20/74, who are not currently employed, all of whom may have been or may be subjected to racial discrimination by Harris-Teeter in its employment policies and practices in reference to terminations and promotions. VII. ISSUES OF CLASS DISCRIMINATION Terminations 47. The only written policy for terminations is set forth at P.E. 14, p. 210. This consists of a series of “DON’TS” which may result in discipline and/or discharge. The system of discipline varied from one supervisor to another. An employee could be terminated with or without prior warnings. The supervisory work force was overwhelmingly white. (Tr. 1030; P.E. 5). 48. The statistical evidence shows that: (a) The following number of persons were terminated for the stated reasons: Mecklenburg 1974-1978 TYPE W w% B B% TOTAL All 2786 81.9 616 18.1 3402 Cause Involuntary 586 71.9 229 28.1 815 Black for cause - 37.2% 229 Black total terminations 616 White for cause = 21.0% 586 White total terminations 2786 The proportion of terminations for cause for blacks (37.2%) was much larger than the corresponding white figure (21%) (Tr. 576-78, 603-606,1238,1253; P.E. 34 (mistakenly referred to as 31 during the trial); D.E. 36). (b) The pattern for 1974-1978 in Finding 48(a) is the same when individual years are examined. (P.E. 4, pp. 53-65). Percentage of Involuntary (Cause) Terminations of Total Terminations by Race_ YEAR w B 1974 24.2 (214/877) 39 (138/354) 1975 29.0 (225/774) 52 ( 74/142) 1976 22.3 (170/761) 38.5 ( 37/96) (e) The percentage of the black workforce subjected to involuntary (cause) terminations was much higher than the corresponding percentage of whites. Percentage of Work Force Involuntarily _Terminated (For Cause)_ YEAR W% B% 1975 14 (225/1869) 25 (74/300) 1976 9 (170/1794) . 13 (37/294) P.E. 4 at pp, 63-65 (d) Between 1974 and 1978, blacks represented 28.1% of all involuntary (cause) terminations while they represented the following annual percentage of Harris-Teeter’s Mecklenburg County workforce. (Tr. 1253; P.E. 34; D.E. 16-25): 24.5% (1974); 16.8% (1975); 13.9% (1976); 11.7% (1977-78). (e) The foregoing data can be statistically tested. The test is the application of a well-defined Court-approved mathematical formula to data already found to be substantially reliable. This test was described by the United States Supreme Court in Hazelwood School District v. U. S., 433 U.S. 299, 311-312, n.17, 97 S.Ct. 2736, 2743-44, n.17, 53 L.Ed.2d 768 (1977); and Castaneda v. Partida, 430 U.S. 482, 496-97, n.17, 97 S.Ct. 1272, 1281-82, n.17, 51 L.Ed.2d 498 (1977). A number of standard deviations of more than two or three beyond the expected supports a finding of discrimination undercutting a hypothesis that race was not a factor. EEOC v. United Virginia Bank, 615 F.2d 147, 151 (4th Cir. 1980), the Court, in discussing its application of the test, “recalculated” various factors. In Garrett v. R. J. Reynolds, 81 F.R.D. 25, 32-37 (M.D.N.C., 1978) the Court applied the same test to the statistical data presented by the parties. In the following tests the sample of total involuntary termination (815) and observed number of black involuntary terminations (229) remain the same. The only difference is the black percentage of the Harris-Teeter work force which is used. (1) 1974-1978: The sample is 815 (Finding 48(a), supra); the black percentage of the Harris-Teeter work force is 15.4% (median annual percentage of work force between 1974-78 as set forth in Finding 48(d)); the observed number is 229; the expected number (total sample X black percentage of Harris-Teeter work force) equals 125.5; the difference (observed minus expected) is 103.5, the standard deviation (square root of sample X black percentage X white percentage) equals 10.304; and, the number of standard deviations beyond the expected equals 10.045 (difference divided by standard deviation). (2) If the same test is used with a slightly different black percentage of the Harris-Teeter work force between 1974 and 1978: (15.7% computed by the addition of the annual black percentages as set forth above in Finding 48(d), and dividing the total by five years to obtain an annual average), the result is 9.725 standard deviations beyond the expected. If the same test is used with another slightly different black percentage of the Harris-Teeter work force between 1974-1978: (15.3%: 9715 whites, 1767 blacks, 11,482 total persons, D.E. 16-20, 21-25), the result is 10.149 standard deviations beyond the expected. (f) 1975: The black percentage of the Harris-Teeter work force is 16.1% B (P.E. 4, p. 64); the sample has 299 total involuntary terminations (P.E. 4, p. 64); the observed number is 74 (P.E. 4, p. 64); the expected number is 48; the difference is 26; the standard deviation equals 6.356; and the number of standard deviations from the expected is 4.09. 49. In addition to the statistics, there are specific examples of the unequal operation of the termination policy. Lilly gave examples in his testimony of whites “laying out” who were not terminated, while blacks (who were tardy) were terminated. (Tr. 56, 69-71, 87-88). Another example involves Richard Gregory who was demoted without any record of prior written warnings, while Boyce Mullís was allowed to hold onto his job in spite of numerous written warnings and finally given an opportunity to resign after those warnings. See Finding 24, supra. 50. The foregoing statistics support an inference that the application of the termination practice had a greater impact upon blacks. Defendant offered no explanation for the statistical difference. The evidence reveals that the criteria utilized in the termination system were within the unfettered discretion of the supervisors. The criteria were not in written form. The application of such a practice, as shown by the foregoing statistics, can and does have an adverse impact on blacks. There are specific examples of whites receiving warnings only after extensive absences or tardiness, or receiving no warning at all: (a) Steven Dutch: Dutch was tardy 16 times in 2 months before receiving a written warning. P.E. 26 at 104-105; (b) Michael Frick: Frick missed 38.4% of the hours between 2/13/78 and 4/7/78. He had ten unexcused absences between 4/4/78 and 6/19/78. He had no warnings. (P.E. 26 at 113-116); (c) Clyde Kiker: Kiker was counseled on 7/29/77 about being tardy six times between 6/5/77 and 7/29/77. He was promoted to leadman on 8/7/77. (P.E. 26 at pp. 132-133). Promotions 52(a) The promotion practice has the features set forth in Findings 10-20 supra. (b) The recommendations of the supervisor (foreman) was necessary for promotion both at the stores and warehouse. The supervisory work force at the stores and warehouse was overwhelmingly white. At the stores in 1975 and 1976, the supervisory force was at least 95% white, and it was at least 91% white at the warehouse (P.E. 5). There have been no black supervisors at the warehouse. (See Findings 18-21, supra; Tr. 468, 470). In 1975, 11 of 13 stores had an all-white supervisory work force; in 1976,10 of 13 stores had an all-white supervisory work force. 53. The statistical evidence shows that: (a) In 1976, blacks represented 5.8% of 137 store promotions and 9.0% the store workforce. Sixty whites (93.8%) and four blacks were promoted to store management jobs (assistant produce manager, produce manager, assistant market manager, market manager, grocery manager, acting grocery manager, grocery manager trainee, relief grocery manager, deli manager, relief assistant manager, assistant manager, head cashier, assistant head cashier). (P.E. 1, 23). In non-management store jobs, there were 69 whites (94.5%) and four blacks (5.5%) promoted. (b) In the warehouse, there were nine whites and two blacks promoted to lead-man/foreman jobs in 1976. (P.E. 3). These 1976 promotions kept the official/managers jobs basically all white. In 1975, 94.6% of officials/managers were white and in 1976 it was 94.7%. (P.E. 5, p. 69). (c) In 1975, at the stores, blacks represented 3.6% of 110 store promotions, and 8% of the store work force. Forty-four whites (100%) and no blacks were promoted into management jobs (assistant market manager, market manager, produce manager, assistant produce manager, relief produce manager, grocery manager, relief grocery manager, relief head cashier, assistant store manager, deli manager, assistant head cashier, head cashier, assistant manager, store manager, relief assistant manager, management trainee). (P.E. 23). Sixty-two whites (93.9%) and four blacks (6.1%) were promoted into non-management store jobs. (P.E. 1, 3, 30, 21, 23). (d) A comparison of the white and black selection rates shows: Total Pro B Rate Unit Year W B W B W Rate B Rate W Rate Warehouse/ 1976 1603 284 171 21 10.66% 7.39% 69.3% Store Stores 1975 1191 99 104 6 8.73% 6.1% 69.8% Stores 1976 1192 111 129 8 10.8% 7.2% 66.7% (P.E. 2, 5, 23). (e) At the stores/warehouse in 1975, 70.5% of the whites (124/i76) who changed job titles received pay increases, while the corresponding percentage for the blacks is 56.8% p/u). (P.E. 3). VIII. OTHER FINDINGS Hiring 54. In reference to hiring, the evidence shows that: (a) (1) In 1976, the store jobs of bagger, stock clerk, produce clerk, and deli bakery clerks accounted for 531 hires or 82.5% of all hires (531/644). (P.E. 2). In 1975, these same jobs accounted for 82.4% of all hires (540/655). (P.E. 2). In 1976, two persons, both white, were hired into managerial jobs (grocery manager, assistant market manager). This is 0.3% of the total hires. (P. E. 2). In 1975, one person (W) was hired into a management position (assistant market manager). This is 0.2% of the total hires. (P.E. 2). (2) In 1976, in the warehouse jobs of picker, driver, stocker and forklift driver, there were 255 hires or 76.1% of all hires (255/335). (P. E. 2). In 1975, these same jobs accounted for 74.5% of all hires (143/192). (P. E. 2). (b) (1) Defendant has no written job descriptions. The overwhelming majority of jobs at the warehouse (e.g. picker, driver, stocker, and forklift driver) and at the stores (e.g. bagger, cashier, stock clerk, produce clerk, deli bakery clerk) have skill requirements which are held by or readily available to the general public. See Finding 42, supra; P. E. 26-A. (2) Defendant has no educational requirements for its jobs. (3) Defendant did not present any evidence showing the degree of skill required in any job. 55. The appropriate labor markets show the following black availability. (P. E. 8). (a) Mecklenburg County labor force: 1. 1973 21.2%B 2. 1976 21.8%B (b) Charlotte Standard Metropolitan Statistical Area (SMSA) Experienced Civilian Labor Force: 1970 20.4%B Total w B 1975 Stores 655 613 42 Warehouse 192 122 70 Total 847 735 112 1976 Stores 644 596 48 Warehouse 335 267 68 Total 979 863 116 57. The plaintiffs' statistical expert conducted a statistical analysis of the data set forth in P. E. 8. He used the “Z test for significance of difference between proportions” and a “T test.” These standard tests are accepted by statisticians. The test results were: (a) Hires in all Mecklenburg County facilities. Year_Labor Market_Test Results 1975 Mecklenburg Labor Pool 0.001 1976 Charlotte SMSA Labor Pool 0.001 The test results mean that there was one chance in one thousand that the lower percentages of black hires at Harris-Teeter could have occurred randomly (disassociated with race) when compared with the labor market availability of blacks. (b) Hires at stores: Year Labor Market Test Results 1975 Mecklenburg County Labor Pool 0.001 1976 Charlotte SMSA Labor Pool 0.001 The test results mean that there was one chance in one thousand that the lower percentages of black hires at Harris-Teeter stores could have occurred randomly (disassociated with race) when compared to the labor market availability of blacks. (c) Combined Hires 1974-1976: Unit of Hires Labor Market Test Results All Mecklenburg Labor Pool 0.001 Charlotte SMSA Labor Pool 0.001 Stores Mecklenburg Labor Pool 0.001 Charlotte SMSA 0.001 The test results mean that there was one chance in one thousand that the lower percentage of black hires at Harris-Teeter could have occurred randomly (disassociated with race) when compared to the labor market availability of blacks. All test results were statistically significant. (Tr. 652-658). 58. Utilizing the test set forth in Finding 48(e), supra, and the hiring data set forth in Finding 56, and the labor markets set forth in Finding 55, supra, the following results are obtained: TOTAL BLACK EXPECTED YEAR HIRED AVAILABILITY NUMBER OBSERVED NUMBER STD. DEV. NO. OF STD. DEV. FROM THE EXPECTED 1975 847 21.2% (Co. Labor Force, 1973) 179.56 112 11.895 5.680 20.4% (Charlotte SMSA Experienced Labor Force) 172.8 112 11.728 5.184 1976 979 21.8 (Co. Labor Force, 1976) 213.4 116 12.919 7.539 20.4 (Charlotte SMSA Labor Force) 199.7 116 12.608 6.638 If one utilizes the same test and excludes persons hired into management or skilled jobs, the results are as follows: 1975 838 20.4 (Charlotte SMSA) 171 110 11.665 5.221 21.2 (Co., 1973) 177.7 110 11.831 5.722 1976 947 20.4 (Charlotte SMSA) 193.2 115 12.401 6.305 21.8 (Co., 1976) 206.5 115 12.706 7.201 For the store hires in 1976, the excluded jobs are grocery manager, assistant market manager, produce manager trainee, meat-cutter, grocery manager trainee, and deli manager trainee. This would make the hiring breakdown 583 whites and 48 blacks. In 1976, for warehouse hires, the excluded jobs would be mechanic III, refrigeration mechanic, forklift mechanic, electricians, and maintenance mechanic. This would make a hiring breakdown of 249 whites and 67 blacks. In 1975 at the stores the excluded jobs would be meatcutter and assistant market manager. This would make the breakdown 611 whites and 41 blacks. In 1975 at the warehouse the excluded jobs would be forklift mechanic, mechanics and leadman. This would make the breakdown 117 whites and 69 blacks. (P.E. 2). Decrease in Black Work Force; Increase in White Work Force 59. There was a considerable decline in the number of black employees between 1974 and 1978. There was a considerable increase in the number of white employees. (a) Year W B Source 1974 1546 527 D.E. 5,14,16,20,25 1975 1507 321 D.E. 4,12,13,19, 24 1976 1887 309 D.E. 3,10,11,18,23 1977 1872 267 D.E. 2,8,9,17,22 1978 2372 322 D.E. 1,6, 7,16,21 (b) The differences between 1974 and 1978 are 826 additional whites and 205 fewer blacks. The black work force decreased by 38.9% (205/527), while the white work force increased 53.4% (826/1546). The defendant did not offer any explanation as to why there was a large decrease in the black work force and a large increase in the white work force. 60. Employment practices by the defendant as a company, statistical evidence, and individual cases of discrimination support the findings of discrimination set forth in paragraphs 22-58. 61. Plaintiffs’ attorneys have provided valuable services. 62. Dr. Michalowski is an expert in statistics, and performed valuable services. 63. The discrimination against Messrs. Porter, Lilly, Reed, Gregory, Gary, Mobley, McKinney, Torrence, Patterson, Jones, Sullivan, Bailey, and LeGrand was because of the employees’ race or because they filed EEOC charges, or both. 64. Plaintiff Trial Exhibits 1-9, 11-25, 26 (except page 58), and 26A-34 are admitted into evidence and are specifically found to be accurate. (Tr. 692-94,1254) (At trial, plaintiff’s exhibits 31-34 were mistakenly referred to as plaintiff's exhibits 28-31.) 65. The claims of Fisher, Gatewood, Er-vin, Carrothers, Anderson, Pharr, Goodwin, McManus, McMoore, Burch, and Reed (termination) were dismissed by Order (filed 6/7/81). CONCLUSIONS OF LAW 1. The Court has subject matter jurisdiction under 28 U.S.C. § 1343(4) and 42 U.S.C. §§ 2000e-5(f)(l) and 2000e-5(f)(3) (§§ 706(f)(1), 706(f)(3) of the Act.) 2. The defendant is an employer within the meaning of 42 U.S.C. § 2000e(b) and a person within the meaning of 42 U.S.C. § 1981. 3. All procedural requirements of Title VII have been met, 42 U.S.C. § 2000e-5(f)(1). 4. Intervenors Reed and Gatewood worked in a store, as did plaintiff Gregory. The remaining intervenors worked in the same warehouse as did plaintiff Lilly. Both Lilly and Gregory filed timely charges with the Equal Employment Opportunity Commission (EEOC). The claims of the interve-nors involved racial discrimination at Harris-Teeter’s warehouse and stores. The claims of Lilly and Gregory involved racial discrimination by Harris-Teeter at the warehouse and stores. The motion was timely. The claims of the intervenors were identified in plaintiffs’ answers to defendant’s interrogatories prior to the motions to intervene. The fact that none of the inter-venors (other than Gregory) has exhausted his administrative remedies does not prohibit intervention. Lilly exhausted his prejudicial administrative remedies. His amended charge alleged class discrimination in discharge and promotion (P.E. 17). The claims of each intervenor were within the scope of Lilly’s charge. The intervention did not unduly delay or prejudice the adjudication of the rights of the parties. Federal Rules of Civil Procedure, Rule 23(d) contemplates intervention. See Advisory Committee’s Notes on Rule 23(b)(2), 39 F.R.D. 69, 102. The intervenors alleged a general policy of discrimination in termination and promotion as did Lilly in his EEOC charge and judicial complaint. Within the discretion of the Court, the intervention of Reed, Mob-ley, Gary, Gregory, McKinney, Torrence, Patterson, Jones, Johnson, Sullivan, Le-Grand, Bailey, McManus, Fisher, Hunt, McVay, Covington, Carrothers, Goodwin, Burch, and Gatewood is proper. See e.g. United Airlines, Inc. v. McDonald, 432 U.S. 385, 97 S.Ct. 2464, 53 L.Ed.2d 423 (1977); Muskelly v. Warner & Swasey Co., 653 F.2d 112 (4th Cir. 1981); Wheeler v. American Home Products, 563 F.2d 1233 (5th Cir. 1977); and Oatis v. Crown Zellerbach, 398 F.2d 496 (5th Cir. 1968). 5. In reference to the claims of interve-nors Reed, Mobley, Gary, McKinney, Tor-rence, Patterson, Jones, Johnson, Sullivan, LeGrand, and Bailey, the defendant has raised the defense of the Statute of Limitations. (a) Those intervenors have stated claims under 42 U.S.C. § 1981. The Statute of Limitations for § 1981 is the most analogous Statute of Limitations of the state where the deprivation occurred. In this state the most analogous Statute of Limitations is either N.C.G.S. §§ 1-52(1) or 1-52(2). See Chisholm v. U. S. Postal Service, 516 F.Supp. 810, 871 (W.D.N.C.1980) and Pittman v. Anaconda Wire and