27 Fair Empl.prac.cas. 10, 27 Empl. Prac.dec. P 32,202united States Equal Employment Opportunity Commission,plaintiff-appellant, v. T. I. M. E.-d. C. Freight, Inc., and the Internationalbrotherhood of Teamsters, Warehousemen Andchauffers, Defendants-appellees, 659 F.2d 690 (5th Cir. 1965)

On remand from the Supreme Court, International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S. Ct. 1843, 52 L. Ed. 2d 396 (1977), the district court heard evidence and entered a "final order" determining the rights of individual class members to relief. The EEOC appeals, challenging the district court's denial of relief to five class members and attacking a purported finding of fact. We affirm in part and reverse and remand in part.

The district court determined that four former "city drivers" at T.I.M.E.-D.C.'s Memphis terminal Charles E. Taylor, Charles D. Glover, Gerald Jacques, and Herbert Gene Kelly (the "claimants") were not entitled to relief. Taylor and Glover are black; Jacques and Kelly are white. In 1969, all four men transferred from "city" to "line" jobs.¹  The district court expressly found that all four had made application for such transfer "as of July 2, 1965, prior to that time, and subsequent to that time." It is undisputed that it was the company's policy, from 1958 until 1969, not to allow transfer from city to line jobs. It was the EEOC's theory at trial that this policy had a discriminatory purpose: to prevent blacks (who held only city jobs) from becoming line drivers.² 

The district court did not make a finding expressly stating that it adopted the EEOC's theory. Such a finding is necessarily implied, however, by its grant of relief to Julius Glasper, a class member whose situation was similar to the four claimants in every way but one: when the company discontinued the "no-transfer" policy in 1969, Glasper declined the opportunity to transfer from his city job to a line job.³  The district court denied relief to the other four claimants solely because they took the opportunity to transfer, stating: "Ordinarily relief would have been given to these men but, at the time of transfer to line, each agreed with T.I.M.E., as evidenced by waiver-letters in their personnel files, that their seniority date on the line roster would be as of the date of their transfer ...." (emphasis added). We think that denying relief on this ground was error.

The so-called "waiver-letters" signed by each of the four claimants provided in full: "TO WHOM IT MAY CONCERN: This is to certify I hereby understand and agree my seniority date with T.I.M.E.-D.C., Inc., as a line driver is (the date of my transfer)" (emphasis added). This statement signifies nothing more than that the employee "understood" and "agreed" that, under the applicable collective bargaining agreement, any employee who transferred from one line of work to another had seniority in that new line only as of the date of his transfer. The letter does not purport to act as a waiver or a settlement of any pre-existing claim, Title VII or otherwise, against the company. Moreover, the defendants did not take the position nor introduce any evidence at trial that the parties understood or intended the letter to operate as a waiver or settlement of any such claim.⁴ 

It would be ironic indeed to hold that these four drivers are barred from relief simply because the company finally gave them what they were long entitled to by removing an illegally-motivated barrier to their transfer.⁵  It would be equally ironic to put these four in a worse position than Glasper because they lent credence to their allegations that they requested transfer between 1965 and 1969 by actually transferring as soon as they were given the opportunity. The district court has held, in effect, that by taking the incentive to better their positions in 1969, rather than waiting twelve years for the EEOC to vindicate their claims, they have surrendered their right to relief. In the absence of any evidence that they knew they were doing so, we cannot uphold this conclusion.

The document at issue would not suffice as proof of settlement of any claim; it follows a fortiori that it cannot suffice as proof of settlement or waiver of a Title VII claim. This court has been so rigorous in requiring a "voluntary and knowing"⁶  waiver of Title VII rights that it has required proof that claimants "comprehended the rights that they were relinquishing" when they signed a "conciliation agreement" expressly waiving all Title VII rights. Cox v. Allied Chemical Corp., 538 F.2d 1094, 1098 (5th Cir. 1976). Since the document in question here cannot pass as a "waiver," it certainly cannot pass as a "voluntary and knowing" one.⁷ 

Title VII rights can be waived and Title VII claims can be settled. But there must be some evidence of waiver or settlement. There is none here.

In so holding, we express no criticism of the court below. That court's handling of this lengthy, massive, important case has been outstanding. We simply hold that of the hundreds of claims for relief in this case, four were denied on an improper ground.

We remand these four claims for a determination of the proper seniority dates of the claimants.

It is difficult to understand the EEOC's position concerning Virgil Hardin. Hardin was granted retroactive seniority by the district court's original decree in 1973. He held a position as a line driver in the Los Angeles terminal through 1977. In 1975, he was laid off. In 1977, Hardin was terminated, pursuant to the collective bargaining agreement, because he failed to accept any of three opportunities to return from lay-off. Thus, the EEOC cannot be complaining that Hardin was never given the relief to which he was entitled; it must be complaining that his termination was a violation of Title VII.

We doubt very much that this claim has anything to do with the "pattern and practice" of discrimination in "hiring, assignment, and promotion policies" established by the government in the liability phase of this case, see Teamsters, 431 U.S. at 329, 334-43, 97 S. Ct. at 1851, 1854-58. Even if Hardin's claim were a proper part of this case, we think that he would have the initial burden of establishing a prima facie case that he was terminated because of his race, a burden which he and the EEOC did not even attempt to satisfy at trial. But even giving Hardin, as the district court did, the benefit of the presumption of discrimination established in the pattern and practice suit,⁸  the company unquestionably demonstrated a legitimate, non-discriminatory reason for his discharge: it proved that it sent him three recall letters and he failed to accept the positions offered. There was no evidence that this reason was a pretext for discrimination.⁹  See Texas Department of Community Affairs v. Burdine, --- U.S. ----, 101 S. Ct. 1089, 1093-95, 67 L. Ed. 2d 207 (1981) (burdens of proof).

Thus, we affirm the district court's denial of relief to Hardin.

Finally, the EEOC objects to the following paragraph in the district court's "final order":

There has been no criticism by this court, or any of the appellate courts reviewing the case, as to the good faith efforts of T.I.M.E.-D.C. to remedy the effects of past discrimination in its hiring and initial assignment practices since the original court orders in this case. The Consent Decree provided that T.I.M.E.-D.C. agreed to hire in the "ratio of at least one black or one Spanish surnamed American for each white hired or transferred," Sec. 13(b), (and) the reports on file with this court indicate that this provision of the Consent Decree has been complied with and honored.

The EEOC attacks the final portion of this statement as a "finding" that T.I.M.E.-D.C. has complied with the consent decree, a "finding" which, it says, is not supported by the evidence. We need not concern ourselves with the evidence, however, because the statement neither is nor purports to be a "finding." The company's compliance was not an issue before the district court, and this statement forms no part of the relief ordered by the court. The statement would not preclude any person who might otherwise have the right to challenge the company's compliance from doing so.

The paragraph is simply one of many preceding the decretal paragraphs of the court's order. The paragraphs that precede and follow it discuss the history of the litigation and the general equitable principles the court has followed in framing its relief. Taken in context, the paragraph is merely a commendation of the efforts T.I.M.E.-D.C. has made to remedy the effects of its past practices. We similarly commended the company in our prior opinion in this case. United States v. T.I.M.E.-D.C., 517 F.2d 299, 316 (5th Cir. 1975), vacated and remanded, 431 U.S. 324, 97 S. Ct. 1843, 52 L. Ed. 2d 396 (1977).

AFFIRMED IN PART, REVERSED AND REMANDED IN PART.