LAY, Circuit Judge.
This is a fair employment practice case arising under Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e et seq. After trial to the district court, judgment was entered for the defendant and the action dismissed, 313 F.Supp. 1404. Plaintiff appeals. We reverse and remand to the district court for reconsideration in light of this opinion.
The plaintiff Martin Marquez is of Mexican descent. He has worked for the Omaha, Nebraska, District Sales Office of the Ford Motor Company since December 1, 1949. He complains that he has not been promoted by the defendant because of his national background, although qualified for promotion, over a period of the last fifteen years. On January 3, 1967, the company promoted another employee to manager of his department who allegedly possessed less experience than plaintiff.
Marquez urges that the defendant violated the Civil Rights Act of 1964 in failing to promote him because of his national origin. On January 27, 1967, Marquez filed a complaint before the United States Equal Employment Opportunity
The trial court determined that plaintiff had fully exhausted his administrative remedies and that the court had jurisdiction to determine the merits. This jurisdictional basis is challenged by the defendant on appeal. We are satisfied that jurisdiction exists.
We hold that the district court erred in finding (1) that the plaintiff was not entitled to rely on any past discrimination which may have presently precluded him from being eligible for promotion and (2) that the record was void of any evidence of discrimination past or present on the part of Ford Motor Company.
In its memorandum opinion the district court found that Ford Motor Company's policy required prior training in Class 7 or 8 field experience to advance an employee to one of its Class 9 managerial positions. The evidence is undisputed that Ford's nationwide policy is that an advancement is never made from a Class 6 to a Class 9. Based on this evidence the district court viewed the company's failure to advance Marquez solely as one of "business necessity" and without discrimination. We accept this evidentiary premise and view this promotional policy as neutral on its face and nondiscriminatory. However, we hold that the trial court's conclusion that Marquez was therefore not discriminated against in the application of that policy does not necessarily follow. United States v. Sheet Metal Workers, infra, 416 F.2d 123 at 131-132.
It is true that the Civil Rights Act of 1964 is not violated where an employer's present system of promotion excludes consideration of an employee because he is deemed not qualified solely by reason of lack of ability or experience. However, where an employer's present advancement policy serves to
Marquez was hired by defendant's Omaha District Office in 1949 in a "Steno A" position. He advanced to a Sales Planning Analyst by 1956.
The testimony is undisputed that on three occasions he was the only eligible employee denied the opportunity to attend company training programs, while other men similarly situated were sent. The record is further undisputed that Marquez's failure to advance and receive the field experience in Class 7 or Class 8 essential to further advancement was caused by his nonpromotional status. If his nonpromotional "frozen" status was caused in part by racial discrimination, the company's policy in refusing to consider him for any promotion is inherently invalid and discriminatory to him.
The trial judge found that there was no evidence to establish any past or present discrimination practiced by Ford Motor Company. For the reasons discussed we hold this conclusion fails to give proper weight to relevant factors which establish a prima facie case of racial discrimination.
While this case was not tried as a typical pattern discrimination case, the past record of Ford Motor Company's actual experience in hiring members of a minority race in both the Omaha district and the region of which this district is a part may be considered in evaluating plaintiff's claim of discrimination as to him. Until the filing of the present complaint Marquez was the only noncaucasian of the defendant's 55 employees in Omaha.
Since Marquez's early days with the company, his work performance has been continually appraised by various supervisory personnel. These appraisals contain no disparaging remarks or data concerning his ability to advance or to perform his various assignments. On the contrary, each evaluation was very favorable. Typical of these documentary reports is the one written in October 1960 in which a merit raise was recommended because of the excellence of his performance:
On February 14, 1961, Marquez was placed on a list as being eligible for promotion. However, by April 1963 he had not been offered a promotion and was then removed without stated cause or reason to a nonpromotional status. Between 1960 and 1963 company reports continued to reflect praise of him for excellence in work performance and ability. Marquez's personnel file is completely silent as to the reasons for his
The undisputed and documented proof relating to Marquez's outstanding job characteristics, the record of no promotion for Marquez since 1956, the undisputed evidence that several men of equal caliber had received promotions and been assigned additional job training programs throughout these years, the unexplained removal of Marquez from a promotional status in 1963, the absence of any rational reason for this removal and for his nonpromotion,
The district court found that the refusal to advance the plaintiff to a Class 9 was based upon a "business necessity" and not racial discrimination. On this record it is established that an employee cannot properly serve in a Class 9 position without prior field experience in a Class 7 or 8 position. To advance a person beyond his present capacity and training to specialized work, particularly in a managerial capacity, would not only be detrimental to the company but to the individual's future employment opportunities as well. In addition, there is strong evidence in the instant case to suggest that even if plaintiff possessed the necessary field experience it is only speculative whether he would have been chosen as a Class 9 general manager from the number of men who shared the same experience and had the same opportunity to advance. As defendant's manager fittingly described, "the pyramid narrows, the competition becomes intense." We recognize that there are many subtleties involved in the assessment of personal characteristics entering into a company's advancement of individuals to leadership and executive positions. These decisions turn on many relevant considerations, with prior experience constituting merely one factor. We also recognize that the Civil Rights Act of 1964 is not designed
Contrary to the defendant's reasoning, however, the above considerations do not, ipso facto, preclude Marquez from obtaining any relief. The district court may fashion the remedy to fit the circumstances. Parham v. Southwestern Bell Telephone Co., supra. Equitable considerations should be applied to correct any harm caused. Cf. Smith v. Board of Education of Morrilton Sch. Dist. No. 32, 365 F.2d 770, 783 (8 Cir. 1966). On the present record there is substantial undisputed evidence to justify plaintiff's advancement to a Class 7 field manager or to Class 8 as an administrative assistant. The fact that the plaintiff did not pray for this relief is not controlling. The record shows Marquez had satisfactorily carried out a field manager's job in the early 1950's without any difficulty. The record further demonstrates that a minimum of two to four years field experience are necessary to advance to Class 9. We may safely assume that a field manager in a larger area or an administrative assistant in Class 8 would probably require less experience. The fact that plaintiff was previously considered eligible for administrative assistant in 1963, then a Class 8 position, is persuasive here. We feel justice will be better served for the district court to reconsider the entire record in view of the principles herein discussed. In fashioning a remedy the district court is at liberty to consider additional evidence as to whether opportunities for advancement in Class 7 or Class 8 have arisen in the intervening years since the passage of the Civil Rights Act. Any award for back pay should not, however, antedate the filing of the complaint.
For the reasons discussed we find there exists sufficient evidence to establish a prima facie case which was not given proper weight in assessing plaintiff's claim of racial discrimination. Under these circumstances we reverse and remand for further proceedings consistent with this opinion.
Judgment reversed and remanded for further proceedings.
MATTHES, Chief Judge.
I concur in the result.