P. Margerum (Tr. 237a to 241a)
This employee was demoted because he was an "unsafe, reckless and inefficient crane operator." (Tr. 239a) Gilbert G. Pugh, General Foreman of the Slab Yard in the 80 Inch Hot Strip Mill, United States Steel, testified that after having given Margerum a "fair trial" in the crane, he felt that Margerum was not operating the crane safely. (Tr. 891a)
P. Borden (Tr. 242a to 252a)
This employee received a written reprimand for failing to follow directions properly. He was subsequently demoted. The demotion was necessary because Borden's foremen felt that he was not capable of mastering the required techniques for operating the crane properly. Seven memoranda were produced at trial from foremen indicating Borden's inability properly to operate the crane. This demotion was not in the nature of a disciplinary action, but rather an accumulation of unsatisfactory performance. Pugh testified that after observing Borden over a period of time, he felt he could not run the crane safely. (Tr. 891a, 892a)
C. Bianco (Tr. 262a to 267a)
This employee departed the cab of his crane when the crane was not properly disconnected and the crane started to move. Bianco was subsequently demoted.
E. Yankoski (Tr. 259a to 261a)
Yankoski twice operated the crane so as to break a top work roll. The second time he did this, he was demoted. It is important to note that his demotion came after no other crane collisions.
5. Worthy was properly removed from his duties as a crane operator. His conduct was a threat to the safety of fellow workers. His safety record was sufficient reason, in itself, for the company to have removed him from the crane.
6. Plaintiff directs the Court's attention to the discipline meted out to white employees whom he contends had similar infraction records but were not disciplined as severely as Worthy. However, each of the four employees cited Guye D. Craig, William Foldes, George L. Hozdulick and G. L. Teenie had only one crane collision as compared to Worthy's three collisions. In addition, an examination of the discipline given to Craig, Hozdulick and Teenie regarding their crane collisions shows that Worthy was, in fact, not disciplined after his first collision as severely as they were: Craig was given a three day suspension for his crane collision, Hozdulick was given a two day suspension for his crane collision, Teenie was given a five day suspension for his crane collision. Worthy was given only a written warning for his first crane collision. In fact, Worthy was disciplined less severely for his second crane collision, being given only a one day suspension, than Craig, Hozdulick or Teenie were for their separate crane collisions. Plaintiff has also failed to produce any evidence of any craneman who was responsible for a dropped block. Thus, Worthy's safety record was both qualitatively as well as quantitatively inferior to the records of white cranemen.
7. Intent is seldom capable of direct proof, and often a determination of the reasons underlying an action requires inference based in large part on common sense and intuition. The Court finds as a fact that Worthy was demoted because while he was operating a crane he was a threat to his co-workers' safety, that his race was not a cause of his demotion.
Conclusions of Law
The Court's original finding of no liability was based on two facts which remain true: (1) Worthy deserved to be removed from the crane, and (2) some white crane operators (who were arguably similarly situated) had been demoted for similar infractions. Upon the direction of the Court of Appeals, the Court has examined the testimony regarding the "comparable" white cranemen who were not demoted. Having done so, a third factual finding is established: (3) the white crane operators who were not demoted had safety records that were distinguishable from Worthy's by virtue of the severity of the safety infractions reported.
The Court is extremely reluctant to substitute its own judgment regarding safety matters for the judgment of Worthy's employers, supervisors, and co-workers. However, when the inquiry is directed toward the intent of the employer, as it is here, the Court must indeed delve into the bonafides of the employer's decision. In doing so, the Court must consider the reasonableness of the categories of safety infractions, and the regularity with which the employer imposes penalties for infractions. Indeed, even if Worthy was demoted, both because he was black and because he was a dangerous worker, there would be impermissible discrimination. For that last reason, the Court examined carefully the allegedly comparable safety records of the white crane operators who were not demoted. The Court found that those safety records were not actually comparable.
The Court notes that in comparing the records of the various cranemen with safety infractions, that precise equivalents, McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 283 n.11, 96 S. Ct. 2574, 2580 n.11, 49 L. Ed. 2d 493 (1976), would be well nigh impossible to ascertain. In the area of safety regulations, there must be some ordering of severity rather than a mere addition of incidents. The record shows that cranemen who committed infractions that were considered less serious and dangerous were not demoted. Cranemen who committed infractions that were considered more serious and dangerous, such as crane collisions, were demoted. Of all the cranemen, though, Worthy was the only one who dropped a block on the work floor. That infraction stands out as excessively dangerous and, in and of itself, differentiates Worthy from the cranemen who were not demoted.
In light of the above finding, it is clear to this Court the defendant's reason for demoting Worthy cannot be labeled "pretextual." Had Curtis Worthy been a white crane operator, he would have been demoted. That being the case, the Court cannot find that defendant treated Worthy less favorably as to the "terms, conditions, or privileges in employment, because of (his) race." 42 U.S.C. § 2000e-2(a)(1).