BURNS v. THIOKOL CHEMICAL CORPORATION

Rehearing and Rehearing En Banc Denied October 26, 1973.

JOHN R. BROWN, Chief Judge:

This case demonstrates once again that "the shortest way around is often the longest way through." Webb v. Standard Oil Co., 5 Cir., 1971, 451 F.2d 284, 285.

Suit was filed by the appellant Burns under Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e et seq. and 42 U.S.C.A. § 1981,1 against his former employer, the Thiokol Chemical Corporation, both in an individual capacity and as a "private attorney-general" representing a class of aggrieved Blacks. The complaint sought appropriate declaratory and injunctive relief against Thiokol because of its alleged discriminatory promotion policies against the class and specific relief on behalf of Burns in this regard. It also sought damages for the Company's alleged failure to grant medical treatment to Burns after he sustained minor injuries during the course of his employment, and, finally, reinstatement with back pay due to the Company's reprisal discharge of Burns.

After trial on the merits, the District Court entered findings of fact and conclusions of law holding against Burns in every respect. On appeal, Burns asserts that the trial court erred in (i) sustaining Thiokol's objections to certain F.R. Civ.P. 33 pre-trial interrogatories, (ii) holding that the evidence would not support a finding of class discrimination, and (iii) holding that Burns' discharge was for poor work rather than in reprisal for his registering of complaints against the Company's alleged discriminatory practices.

Finding Burns' first contention to be exceedingly meritorious, we reverse and remand the case for a new trial.

A Gadfly In The Porridge

Neither party challenges the factual accuracy of the statement that over the course of his fourteen years in the employ of Thiokol, Claxton Burns developed "bad chemistry" with management. Indeed, both parties seek to use this fact to their advantage. Thiokol expends a considerable amount of space in its brief urging that not only did Burns develop such caustic personality and attitudinal traits that he became incapable of adequately performing his job, but also that he was a bellicose maverick without sufficient rapport with his fellow Black workers to represent them as a class.

The District Court found that Burns' attitude and his actions were anathema to the management of Thiokol. The Court also held that Burns was discharged, not because of his race, but because he spread false rumors around the business community about Thiokol's alleged failure to render medical aid to him after he collapsed as a result of working with some chemicals on November 21, 1968 in violation of a Company rule.2 Normally, this finding would be entitled to the protection of the "buckler and shield" of F.R.Civ.P. 52(a). Because we hold here, however, that the Court's view of the context of the case was necessarily circumscribed by its own restrictive policy towards Burns' discovery efforts, the issue must be tried again. See note 10, infra.

Discovery

In an effort to amass statistical evidence and define the contours of his case, Burns propounded interrogatories to Thiokol under F.R.Civ.P. 333 on May 14, 1970. Among other things, the interrogatories sought information regarding the name, age, sex, educational background, and employment history of all white employees at Thiokol's Huntsville plant dating from January 1, 1960;4 a list of both permanent5 and temporary6 job vacancies within the Huntsville plant and background information on both those applicants who competed for the jobs and those who were selected; and a job description of each non-bargaining unit job at the Huntsville plant.7 The Company filed timely objection to these interrogatories contending, inter alia,8 that they sought irrelevant information and that they would be unduly burdensome to answer. Because the District Court sustained these objections in an oral, unrecorded order, we are unable to determine which — if either — of these grounds for objection was the basis for its decision. But it matters not, for neither will suffice on this record.

The discovery provisions of the Federal Rules of Civil Procedure allow the parties to develop fully and crystalize concise factual issues for trial. Properly used, they prevent prejudicial surprises and conserve precious judicial energies. The United States Supreme Court has said that they are to be broadly and liberally construed. Hickman v. Taylor, 1947, 329 U.S. 495, 507, 67 S.Ct. 385, 391, 91 L.Ed. 451, 460; Schlagenhauf v. Holder, 1964, 379 U.S. 104, 114-115, 85 S.Ct. 234, 240, 13 L. Ed.2d 152, 161-162.

Because discovery matters are committed almost exclusively to the sound discretion of the trial Judge, appellate rulings delineating the bounds of discovery under the Rules are rare. But the Judge's discovery rulings, like his other procedural determinations, are not entirely sacrosanct. If he fails to adhere to the liberal spirit of the Rules, we must reverse. See Wallin v. Fuller and Nationwide Mutual Insurance Co., 5 Cir. 1973, 476 F.2d 1204 [1973]. And this is especially true in Title VII cases where courts have refused to allow procedural technicalities to impede the full vindication of guaranteed rights. Sanchez v. Standard Brands, Inc., 5 Cir. 1970, 431 F.2d 455, 461.

The only pertinent discovery-type appellate decisions which we have found in the Title VII area are those in which an appellate tribunal has been called upon to consider the propriety of a District Court's order either granting or denying the enforcement of an EEOC Demand for Access to Evidence. See e. g. Georgia Power Co. v. EEOC, 5 Cir., 1969, 412 F.2d 462; Local No. 104, Sheet Metal Workers International Association v. EEOC, 9 Cir., 1971, 439 F.2d 237; Graniteville Co. v. EEOC, 4 Cir., 1971, 438 F.2d 32; Blue Bell Boots, Inc. v. EEOC, 6 Cir., 1969, 418 F.2d 355. All have uniformly upheld EEOC's right of access to the requested information. Any information relevant — in a discovery sense — to an EEOC investigation is likewise relevant to the private attorney-general, either in his individual role or in his capacity as the claimed representative of a class. H. Kessler and Co. v. EEOC, 5 Cir., 1973, 472 F.2d 1147 [1972] (En Banc).9

Relevancy

"In the problem of racial discrimination, statistics often tell much, and Courts listen." Alabama v. United States, 5 Cir., 1962, 304 F.2d 583, 586, aff'd, 1962, 371 U.S. 37, 83 S.Ct. 145, 9 L.Ed.2d 112. Our wide experience with cases involving racial discrimination in education, employment, and other segments of society have led us to rely heavily in Title VII cases on the empirical data which show an employer's overall pattern of conduct in determining whether he has discriminated against particular individuals or a class as a whole. See generally Griggs v. Duke Power Co., 1971, 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158; Rowe v. General Motors Corp., 5 Cir., 1972, 457 F.2d 348; United States v. Hayes International Corp., 5 Cir., 1969, 415 F.2d 1038; Bing v. Roadway Express, Inc., 5 Cir., 1971, 444 F.2d 687; United States v. Georgia Power Co., 5 Cir., 1973, 474 F.2d 906 [1973].

One of the first legal questions precipitated by the passage of the Civil Rights Act of 1964 in this regard was the extent to which pre-Act discriminatory conduct was to be taken into account in evaluating post-Act charges. There can no longer be any quarrel that pre-Act conduct is relevant to the extent that it sets in motion a chain of consequences which effects the status of the Black employee in the post-Act period, for "Congress did not intend to freeze an entire generation of Negro employees into discriminatory patterns that existed before the act." Quarles v. Philip Morris, Inc., E.D.Va., 1968, 279 F.Supp. 505, 516.

In United States v. Jacksonville Terminal Co., 5 Cir. 1971, 451 F.2d 418, we held that although evidence of pre-Act discrimination did not establish a per se violation in the post-Act era, the history did bear directly on the probability that similar conduct would continue.

Jacksonville Terminal, supra, 451 F.2d at 441 (emphasis added). Cf. United States v. West Peachtree Tenth Corp., 5 Cir., 1971, 437 F.2d 221. We then proceeded to make an exhaustive analysis and comparison of the employment statistics regarding both Blacks and Whites. Only by this juxtaposition of factors could the Court effectively determine whether the employer had preferred one class of employees over another. "Discrimination on the basis of race or sex is class discrimination," Georgia Power Co. v. EEOC, 5 Cir., 1969, 412 F.2d 462, 468, although the manifestations may frequently be individualized. Flax v. Potts, 5 Cir., 1963, 313 F.2d 284, 289.

The importance of obtaining an overall statistical picture of an employer's practices with regard to both Black and White employees does not depend on the presence of an alleged "pattern or practice" or a valid charge of class discrimination or class action. We categorically rejected this notion in Georgia Power v. EEOC, supra. There the EEOC sought historical, statistical information regarding both Black and White employees of Georgia Power. The company objected to EECO's Demand for Access to this evidence contending that because EEOC was only investigating the charge of an individual party that he was refused employment solely because of his race that the only relevant evidence was that relating to the filling of that particular vacancy. Disagreeing, we said:

Georgia Power Co. v. EEOC, supra, 412 F.2d at 468. Even though a suit seeks only individual relief for an individual instance of discrimination, and is not a "pattern or practice" suit by the government or a class action, the past history of both Black and White employees is surely relevant information. Id.; Marquez v. Omaha District Sales Office, 8 Cir., 1971, 440 F.2d 1157, 1160; Graniteville Co. v. EEOC, 4 Cir., 1971, 438 F.2d 32, 42; Blue Bell Boots, Inc. v. EEOC, 6 Cir., 1969, 418 F.2d 355, 358. It is therefore discoverable.

Without making any pretense of exhaustively cataloguing possible uses of this information to Burns we note that one of Thiokol's chief witnesses was the personnel manager of its Huntsville Plant, Charles G. Babcock. Mr. Babcock testified at length about the employment practices of Thiokol during his fourteen year association with the Company. He undertook to give certain data relating to the size of the Thiokol work force during various periods of time, and the general manner in which vacancies were filled. On cross-examination of Babcock, Burns' counsel was obviously unable to ask intelligent, informed questions relating to any specifics. Perhaps the information sought by their interrogatories would have served to bolster Babcock's exculpatory testimony in behalf of the Company. Then again, it might have allowed plaintiff's counsel to pin the witness down to some unexplainable particulars. We do not know. The point is that open disclosure of all potentially relevant information is the keynote of the Federal Discovery Rules. In this case, that focal point has been ignored.

In Jacksonville Terminal, supra, we said that "deprived of an historical overview in these situations, Justice would surely be blind," 451 F.2d at 441. Were Justice to be deprived of an historical overview of the industrial context in which Claxton Burns was discharged, she could not — as she must — be color blind.

The Burden

Thiokol argues that even if the information sought by Burns' interrogatories is somewhat relevant to his claim, that the onerous burden of compiling, assimilating, and synthesizing voluminous employment records into cogent, responsive answers to the interrogatories outweighs the utility of the information. We disagree.

Of course, the extensive listing of information required to fully answer the interrogatories is somewhat cumbersome. But, as the Ninth Circuit has pointed out, the fact that an interrogatory calls for a list does not make it improper:

Local No. 104, Sheet Metal Workers International Association v. EEOC, 9 Cir., 1971, 439 F.2d 237, 243. The law requires a company to provide a prospective union with a list of employees in the unit. Excelsior Underwear, Inc., 1966, 156 N.L.R.B. 1236; NLRB v. Wyman Gordon, 1969, 394 U.S. 759, 89 S.Ct. 1426, 22 L.Ed.2d 709. Similarly, it requires a company to furnish shareholder lists in a proxy context, Studebaker Corp. v. Gittlin, 2 Cir., 1966, 360 F.2d 692, 698. And the law can compel an employer who is a defendant in a Title VII suit to furnish lists of employees, Georgia Power Co. v. EEOC, 5 Cir., 1969, 412 F.2d 462; Local No. 104, supra.

Of course the particular details of the discovery process are committed to the sound discretion of the trial court. Knowing, by virtue of our mandate, that the information is relevant, and therefore, discoverable, the judge may wish to require full answers to the interrogatories. But that is not his only option.

Since his initial ruling in this case, a new rule, F.R.Civ.P. 33(c) has been promulgated. It gives Thiokol the option to "specify the records from which the answer may be derived or ascertained and to afford to the party serving the interrogatory reasonable opportunity to examine, audit or inspect such records and to make copies, compilations, abstracts or summaries."10

The judge may also exercise the full extent of his discretionary powers under F.R.Civ.P. 26(c) with appropriate protective orders as to time, place, manner, etc., in which the interrogatories will be answered.

Finally, our determination of the relevancy of this information does not irrevocably commit the judge and the parties to the process of discovery by interrogatories under Rule 33. If the judge determines that this particular manner of disseminating the information is in fact unduly burdensome on Thiokol, he may direct that alternative means be employed. Our paramount concern is that the information be available to the plaintiff.

Reversed and remanded for a new trial.11