There is simply no way to accept Barbour's testimony that McDowell was paid more than any other foreman because he worked harder and had more responsibilities. In point of fact, McDowell was paid substantially the same as Magee.
It appears in fact the Company was favoring Magee as far as salaries were concerned, especially in 1983 when he received an increase of $ 1,750 whereas McDowell received only $ 1,000. Accordingly, if McDowell was performing the additional work for which he was supposed to receive substantially more compensation than other foreman, the Company's true feelings became apparent as early as 1983. From the very testimony of management, it appears that the Company has demonstrated it was favoring the white foreman, Magee, over its black foreman, McDowell, while acknowledging McDowell was doing much more work than Magee.
The Company also offers statistical data which are supposed to demonstrate a racially balanced workforce and therefore support its position that the termination of McDowell was not race related. At the time McDowell was fired, however, there was only one black assistant foreman, Calvin L. Pretlow. Pretlow's salary history demonstrates he was a warehouseman from July 17, 1974 to November 14, 1982; a forklift operator from November 15, 1982 to January 16, 1985; an assistant foreman from January 17, 1985 to about May, 1985; and from May, 1985 to date, a foreman. Accordingly, Pretlow was not in fact a full foreman at the time McDowell was terminated.
EEOC has demonstrated by overwhelming evidence that McDowell performed on an exemplary basis during his tenure with the Company. If anything, this fact is supported by evidence advanced by the Company, including the document which McCusker testified about, as described above. It was only in 1983, when McDowell's salary increase was half of Magee's, that there was a suggestion the Company might be dissatisfied with McDowell. Even in January, 1984, however, it was indicated to McDowell that ninety-five percent of what he did for the Company was satisfactory.
Under scrutiny, the statistics and other data which the Company has advanced in fact support McDowell's position that he was not treated as the other foremen were treated. Beyond the salary context, his treatment with regard to the violation of Company work rules by the Seven Warehouse Employees is simply inexplicable.
Sepcsik was in charge of the warehouse facilities at Union and Woodbridge, New Jersey, as well as in Louisiana. He was responsible for what occurred at the plants generally and for work production. Sepcsik was senior to McDowell and McDowell reported to him. It is unclear why the Company did not hold Sepscik responsible for the conduct of the various workmen. Similarly, the record does not reveal why the other foreman for whom these warehousemen were working were not held accountable. Absolutely nothing was offered to establish that McDowell witnessed any, much less all, of the Seven Warehouse Employees breaking company rules.
The Company stated its legitimate, nondiscriminatory reason for terminating McDowell was his failure to fulfill his required duties. In support of this, the Company has merely offered the nine reports prepared by Stancil (and testimony of its management employees about the reports) to support its justification for discharging McDowell. It is stressed these reports were not offered to prove the truth of the substance of the reports, but merely to show that the Company was on notice that certain infractions were occurring. In any event, the reports do not state that McDowell was personally aware of any misconduct.
A review of several of these reports seriously undermines the asserted non-discriminatory use of these reports with regard to McDowell. The reports indicated that other foremen, Karalewich and McCusker, were themselves violating Company rules. However, it appears no action, not even the mildest reprimand, was taken with regard to these men, both of whom are white. In addition, there is no indication in the reports (or in the other evidence submitted) that the employees who were violating Company rules were under the supervision of McDowell at that time.
The Company attempts to maneuver around this obvious proof problem by stating that McDowell always had direct supervisory responsibility over the employees when they were not assigned to other foremen. However, the evidence does not indicate, as mentioned, under whose watch the infractions occurred. In fact, on at least one occasion, the reports relied upon by the Company demonstrate that McCusker was in charge of some of the men when infractions had occurred. In addition, it seems he punched the time cards for several of people for whom he was responsible, a clear violation of Company work rules.
Report number 1, covering the period from January 28 to February 3, indicates that on January 31, 1985:
Agent advises that the majority of his fellow employees appear to be hiding throughout the day to avoid work. Agent also advises employee's Charlie "Googy", Johnny McDowell were drinking beer throughout the day in lunchroom, AKA "The Shack".
D-12, Thursday, January 31, 1985. This report is significant because it indicates a majority of the employees were hiding throughout the day and drinking beer in the lunchroom/shack. The first questions the Company should have asked upon receipt of this report are: To whom were these men assigned? How could they have hidden from all of the foremen throughout the day? What work was completed during the day? Apparently, the Company did not care about these issues. Instead, the Company simply attributed the entire responsibility to McDowell, absolving actual supervisors to whom the rule violating workers were assigned for the day.
On Friday, February 1, 1985, it was reported that there was a discussion of drugs and an attempt to sell drugs to Stancil. This occurred at approximately 12:30, the lunch hour. It was suggested by the Company at trial that McDowell had responsibility for the men during lunch hour because he rarely left the plant premises at that time, whereas Magee always left the premises at the beginning and returned at the end of the lunch period. However, nothing was established to show that McDowell was required to stay on the premises during the lunch period. This appears to be a manufactured reason to hold McDowell accountable for what the men did during their lunch time, albeit on Company premises. Again, no explanation was offered as to why the other supervisors were not held responsible.
On Friday, February 1, 1985, Stancil reported that he observed a non-employee drove onto the Company premises to distribute cocaine. No evidence was offered to suggest, or in any way imply, that McDowell had awareness of this cocaine transaction. It appears the Company did not make even an inquiry of McDowell, or the other supervisors, about this activity.
In report number 2, Stancil stated that on Thursday, February 5, 1985:
At approximately 2:00 p.m., Agent observed employees Richard Williams, an unidentified temporary, Clarence Jackson, aka "Snake", and Lonnie Murphy drinking beer and smoking marijuana in the lunchroom. Agent advises beer is always stored in the refrigerator in the lunchroom.