Washington v. Kroger Co. (671 F.2d 1072, 1982)

ARNOLD, Circuit Judge.

Plaintiff Lois M. Washington brought this suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., against the Kroger Company, alleging discrimination based on race and sex in the payment of wages, reduction in work hours, denial of training and, finally, in termination of her employment. Mrs. Washington also brought suit against the Retail Store Employees Union, Local 782, AFL-CIO, claiming discrimination based on race in the union’s processing of her grievance. The District Court found that Kroger’s testing requirement for plaintiff’s entry into a training course for a checker/clerk position was a mere pretext for a legally impermissible motive. The Court then held that Kroger had discriminated against Washington because of her race and sex and awarded back pay and attorneys’ fees. The complaint against the union was dismissed.

Mrs. Washington appeals the lower court’s award of damages and attorneys’ fees as inadequate. Kroger, on the other hand, appeals the District Court’s ultimate finding of racial and sex discrimination. After a careful review of the entire transcript of the trial and the documentary exhibits received into evidence, we vacate and remand for further proceedings.

I.

On September 12, 1969, Mrs. Washington filed an application for employment with the Missouri Division of Employment Security. Plaintiff, a'black woman, was certified by the Division as eligible to participate in a program sponsored by the United States Department of Labor by which the economically disadvantaged were helped to get jobs. Under the program, employers who entered into a contract with the government received a subsidy which partially reimbursed the employer for the cost of the employee’s salary. The subsidy normally was paid only during the employee’s first year of employment.

The state employment agency referred plaintiff to the employment office of the Kroger Company, where she filled out an application and took a test entitled “Test for Retail Store Aptitude-Form W (for women).” Job applicants were initially given only the mathematics section of the aptitude test, and the other parts of the test would not be given unless the applicant made a satisfactory score on the mathematics section. Mrs. Washington achieved a score of 17 out of a possible 40 on that portion of the test. Kroger considered 27 to be the minimum score for attaining a “satisfactory” rating.

Although plaintiff did not meet Kroger’s minimum requirements for employment, she was nevertheless hired for a position classified as checker/clerk as part of Kroger’s participation in the federally subsidized employment program. Kroger had agreed to employ certain disadvantaged persons, such as plaintiff, who could not otherwise meet its minimum employment requirements.

Plaintiff began working for Kroger on October 13, 1969, at its Truman Road store in Kansas City, Missouri. She was the store’s only black employee, and only four per cent, of Kroger’s employees in the Kansas City area were black. Though hired as a checker/clerk, plaintiff spent all of her tenure with Kroger in either the produce department or the health and beauty aid department performing work generally classified as “stocker” work. Kroger assertedly had a policy of not permitting any employee to work as a checker/clerk unless that person had successfully completed a “checker training” course given by Kroger. To be eligible for checker training, however, an employee had to achieve a minimum score of 27 on the “math” section of the retail aptitude test. The score Mrs. Washington received when she originally sought employment with Kroger did not qualify her for the course. She retook the test on at least one other occasion but did not achieve a score that Kroger determined to be passing.

During her first year of employment with Kroger, Mrs. Washington worked a full forty-hour work week. After Kroger’s contract with the Department of Labor ended in October, 1970, plaintiff’s hours of work were reduced by sixteen hours, approximately the number of hours that had been subsidized by the government. Thereafter, her hours were periodically further reduced, so that she was working approximately twelve hours a week at the time of her termination in June, 1971.

In June, 1971, Mrs. Washington began having unexcused absences from work and was tardy on more than one occasion. She was reprimanded at least twice by the store manager for absenteeism and tardiness. When plaintiff failed to report to work on June 21, Kroger terminated her employ■'ment with the company effective June 24, 1971. Tr. 137-38.

While she was still employed with Kroger, plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) on October 22, 1970. In the charge, she alleged that her wages were not equal to those of male employees doing the same work and that the store was discriminating against her because of her sex. On February 9, 1971, after her work hours had been substantially reduced, she filed a complaint of discrimination with the Kansas City, Missouri, Department of Human Relations, claiming that, because of her race, she was being treated differently from other employees. Two years after her termination from employment with Kroger, plaintiff filed a second charge of discrimination against Kroger with the EEOC, repeating some of the allegations contained in the complaint lodged with the city agency. She included the additional claim that Kroger had denied her checker training and discharged her because of her race.

The EEOC issued plaintiff a “right-to-sue” notice on January 18,1977. She subsequently brought suit in the District Court.

The District Court found that by participating in the federally subsidized employment-assistance program, Kroger in effect agreed to waive its minimum score requirement on the retail store aptitude test and train Mrs. Washington as a checker. It also found that plaintiff had established a prima facie case of racial discrimination against Kroger in the denial of checker training, job assignments, pay, and employment hours, and in her involuntary dismissal. The court did determine that Kroger rebutted plaintiff’s prima facie showing of discrimination, but concluded that Kroger’s stated reasons for its actions were pretextual.

On appeal, Kroger argues that the District Court committed error in making the above findings and in denying Kroger’s motion to dismiss on the ground that the court lacked jurisdiction over the cause of action.

II.

Kroger initially contends that the District Court did not have jurisdiction over the claims raised in plaintiff’s second charge of discrimination filed with the EEOC on July 6, 1973. Section 706(e) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5(e), requires that an aggrieved person file a charge of discrimination with the EEOC within 180 days of the alleged unlawful employment practice. The period is extended to 300 days if the person aggrieved has first instituted proceedings with a state or local antidiscrimination agency. Here, plaintiff’s second charge of discrimination, which alleged, among other things, discrimination in her dismissal from Kroger’s employ, was not filed until more than two years after she was terminated.

The District Court held that plaintiff’s charge of July 6, 1973, was an amendment to the discrimination charge filed by Washington on October 22, 1970, and related back to the earlier filing date. The Court relied on EEOC regulations in effect at the time plaintiff filed her second discrimination charge with the EEOC, which provided:

A charge may be amended to cure technical defects or omissions, including failure to swear to the charge, or to clarify and amplify allegations made therein, and such amendments alleging additional acts which constitute unlawful employment practices directly related to or growing out of the subject matter of the original charge will relate back to the original filing date.

Washington v. Kroger Co., 506 F.Supp. 1158, 1162 (W.D.Mo.1981) (citing 29 C.F.R. § 1601.11(b) (1973)) (emphasis supplied by the District Court).

The District Court rejected Kroger’s assertion that the unlawful employment practices alleged in the second charge did not “directly relate to or grow out of” the subject matter of the original charge. It is true that the nature of the discrimination alleged in Washington’s first charge and the basis for it differ somewhat from the discrimination and motive alleged in her second charge. But plaintiff’s claim of denial of opportunity to perform “checker” duties appears in her original charge filed with the EEOC, reappears in the complaint filed three and a half months later with the Missouri Department of Human Relations, and is also contained in the second charge of discrimination filed with the EEOC on July 6, 1973. This claim alleges facts that suggest a violation of Title VII continuing at least until the date plaintiff filed her complaint with the Department of Human Relations.

The fact that the second complaint filed with the EEOC alleges a basis for discrimination different from that alleged in the first EEOC charge is not dispositive here, where the aggrieved person is a non-lawyer who may be unaware of the true basis for the allegedly discriminatory acts until an investigation has been made. We agree with the District Court that procedural requirements should not be applied with an unrealistic or technical stringency to proceedings initiated by uncounselled complainants. See Love v. Pullman, 404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972); Huston v. General Motors Corp., 477 F.2d 1003 (8th Cir. 1973).

When plaintiff did file a second charge of discrimination with the EEOC, it was properly treated by the District Court as an amendment of the first charge. The second charge reiterated the claim of denial of opportunity to perform “checker” duties and also alleged discrimination in discharge which arguably grew out of Kroger’s refusal to assign plaintiff to a checker/clerk position. Had the EEOC investigated plaintiff’s first charge, it is reasonable to suppose that it would have uncovered the related incidents that underlay the second charge.

The District Court properly held that it had jurisdiction over plaintiff’s cause of action.

III.

The District Court found that the reason given by Kroger for not training plaintiff as a checker — her failure to attain a grade of 27 on the “math” test — was merely a pretext. This finding is the crux of the case, so far as the question of liability is concerned. We have no doubt that plaintiff made out a prima facie case, and that Kroger articulated a legitimate, nondiscriminatory reason for its actions. The only element of a prima facie case that might be questioned is whether plaintiff was qualified to be a checker/clerk, but that question resolves itself into her asserted failure to pass the test, since but for that defect she was clearly qualified and, indeed, was actually hired as a checker, though she never performed the duties of that position. Plaintiff’s complaints of lack of training, reduction in hours, and unequal pay are all related to Kroger’s insistence that successful completion of the test was an invariable condition precedent to training for the checker’s job. Even her discharge, though the immediate occasion for it was undoubted instances of absenteeism, stemmed in the end from her exclusion from checker training classes. If plaintiff had been given the training she claims she was entitled to, the reduction in hours that ultimately led to her termination might never have occurred. If the failure to train plaintiff was unlawful, and if that failure was the cause of plaintiff’s ultimate termination, the whole case must stand or fall on whether the reason given by the company for not training plaintiff was the real reason.

We start with the proposition that on the issue of pretext, as on the whole case, the plaintiff has the burden of persuading the trier of fact by the preponderanee of the evidence. We are mindful also that the trier of fact is peculiarly better suited than we are to make judgments about motive and intent, which are the ultimate issues in this kind of case. In this spirit we approach the record in this case, mindful also of our duty to test the District Court’s findings against the written record and to reverse any judgment that depends on findings that are clearly erroneous.

Kroger focuses its attack on the District Court’s conclusion of law that “in employing plaintiff for the position of checker pursuant to the federally subsidized employment program, Kroger effectively waived its requirement that plaintiff attain a minimum score of twenty-seven (27) in order to qualify for checker training.” 506 F.Supp. at 1168. We have diligently searched the record and can find no evidence that Kroger ever allowed anyone to be trained as a checker, much less act as one, who had not passed at least the third portion of the test. Nor is there any evidence that the government contract itself (now lost) provided that Kroger would have to give checker training despite failure to pass the test. The District Court thought it significant that the test was not shown by Kroger to be job-related; that is, there was no proof that the attainment of a score of 27, or any other particular score, had any relationship to efficient performance as a checker. The problem with this analysis is two-fold: first, the test was not shown by plaintiff to have had a disparate impact on any class of persons; and second, the ability to add, subtract, multiply, and divide is, as a matter of common sense, necessarily related to the ability to run a manual cash register. The machines used by Kroger’s checkers in 1970 and 1971 were not so fully automated and computerized as the machines that grocery shoppers are accustomed to seeing today. Checkers had to figure prices for items that were, say, three for ll