Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 72-C-2305-Richard B. Austin, Judge.
Fairchild, Chief Judge, Pell, Circuit Judge, and Christensen, Senior District Judge.*fn*
Plaintiffs are eight black bricklayers who allegedly sought employment on a firebrick job, relining a blast furnace, performed by defendant Furnco. Furnco declined to consider applications, following its policy, but hired principally from an existing list containing names of white bricklayers, supplementing the list by names of a few black bricklayers, obtained from other sources. The principal issue is whether, because of the denial of access to the employment process, plaintiffs proved a cause of action under 42 U.S.C. § 1981 or Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq.
Plaintiffs appeal from a judgment for defendant, entered upon adverse findings after a bench trial.
Furnco is a mason contractor, doing business over a large area of the country. In August, 1971 it contracted with Interlake Steel Corporation to reline with firebrick a blast furnace and related facilities in Chicago.
Furnco selected Joseph Dacies as brick superintendent for the Interlake job. Bricklayers were not hired at the gate, nor were applications taken from those who came to the gate. Instead, in accordance with past practice, Dacies was expected to hire bricklayers in whom he had confidence, and he had a list of bricklayers with whom he had worked on previous jobs. The bricklayers whose names he had from this source were all white, although he had occasionally worked with black bricklayers.
Because of past charges of discrimination on jobs in Cook County, Illinois, Furnco had decided to have "a minimum, if at all possible, of 16 per cent of the bricklaying force black." It applies this policy in Cook County only. Mr. Wright, general manager of Furnco, directed Dacies to follow this policy, and Dacies obtained names of black bricklayers by inquiry of other superintendents, and the like.
Dacies hired his first bricklayer on August 26, 1971. Several plaintiffs had been at the job site before that. He hired the second August 27, the third September 7, and the fourth September 8. All were white. The first black bricklayer was hired September 9. Of the next eight bricklayers, hired by September 13, one was black. Of the next seven, hired by September 17, one was black. Of the next seventeen, hired by September 23, one was black. Up to October 10, 41 had been hired, four of whom were black.
Laying firebrick on this type of job is considered lucrative, and the earlier a bricklayer was hired, the longer he had an opportunity to work. The first hired worked 76 days. The first black person hired worked 56 days. A bricklayer hired September 27 worked 38 days.
Prior to, and during the early part of the Interlake job, Furnco was engaged in settlement negotiations with black bricklayers concerning claims of discrimination on an earlier job.*fn1 When these negotiations broke off in late September, Wright suggested to Dacies that he consider hiring those who were plaintiffs in the earlier case. On October 12 to 18, Dacies hired six of them, the only bricklayers hired from September 25 to October 21. Of these six, Hawkins, Smith, Pearson, and Williams are present plaintiffs. Smith, conceded by all to be qualified, worked a total of 20 days, Wilson 9, Williams 12, and the other three, Hawkins, Pearson, and Pendarvis were fired in two or three days.
Since the situations of the plaintiffs vary, we consider them as follows:
1. Gilmore. Plaintiff Gilmore had never worked in firebrick. He testified that he went to the Interlake job site the last week in August. His testimony was markedly inconsistent with his answers on deposition and in interrogatories. The court evidently did not believe his testimony, or the testimony of others who said they saw him at the job site. The court found no credible evidence that he attempted to apply for work on the Interlake job. The question is one of credibility, it is difficult to understand ...