# Dickerson v. United States Steel Corp.

> District Court, E.D. Pennsylvania · August 2, 1978 · 472 F. Supp. 1304

URL: https://www.frixlaw.com/law-library/cases/2124552

## Case

- **Full name:** Moses DICKERSON Et Al. v. UNITED STATES STEEL CORP. Et Al.; Curtis C. WORTHY Et Al. v. UNITED STATES STEEL CORP. Et Al.
- **Court:** District Court, E.D. Pennsylvania
- **Decided:** August 2, 1978
- **Citations:** 472 F. Supp. 1304; 17 Empl. Prac. Dec. (CCH) 8528; 20 Fair Empl. Prac. Cas. (BNA) 371; 1978 U.S. Dist. LEXIS 16225
- **Precedential status:** Published
- **Opinion:** Opinion by Newcomer
- **Judges:** Newcomer
- **Cited by:** 15 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Vacated on other grounds by 22 Fair empl.prac.cas. 102, 22 Empl. Prac. Dec. P 30,705, 616 F.2d 698 (1980).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2124552

## Opinion text

MEMORANDUM AND ORDER
NEWCOMER, District Judge.
After a protracted 85-day trial, this Court has finally reached the conclusion of the liability stage of this employment discrimination case. Plaintiffs, a class of production and maintenance (P & M) workers, are suing their employer, United States Steel (USS) and their unions (Union) for alleged violations of Title VII, 42 U.S.C. §§ 1981 , 1985(3), and 2000e
et seq.
At the close of plaintiffs’ evidence, the Court issued a lengthy opinion dated July 25, 1977.
Dickerson v. United States Steel,
439 F.Supp. 55 (E.D.Pa.1977). In that opinion, the Court dismissed certain class claims and enunciated certain factual and legal conclusions in support. Those dismissals are incorporated by reference into this final opinion. There remain for decision four class claims of discrimination: initial assignment, access to management, access to crafts, and transfer to new facilities. Furthermore, the Court must decide the claims of the two named class representatives, Moses Dickerson and Eddie Williams, as well as the related case of Curtis Worthy.
*1307
Since many of the procedural issues were discussed in July, and no significant new facts or arguments presented, the Court need not reiterate all the cases and legal arguments here. Defendant USS has moved for the fourth time since the class was certified for decertification. The Court will deny this without further discussion other than to refer to its numerous previous opinions.
In the July opinion, the Court also made findings of facts and conclusions of law concerning the issues of jurisdiction and standing to represent the class. The Court has examined the arguments of defendants on these issues and finds no persuasive new argument raised. Therefore, the Court includes the discussion on jurisdiction from that opinion in its final findings and conclusions for purposes of this opinion. However, a recent decision by this circuit’s Court of Appeals has shed further light on these issues. On the issue of standing, the Court notes that the holding of the Court of Appeals in
Hicks v. Abt, Inc.,
572 F.2d 960 (3d Cir. 1978), supports this Court’s earlier conclusion that the individual plaintiffs can represent all the claims presented in the class action. In
Hicks ,
the appellate court ruled that the scope of a Title VII action is controlled not only by the charges actually included in an EEOC charge, but those which could have “reasonably been expected to grow” out of the charges made. Since the charges of Eddie Williams and Moses Dickerson involved a large number of issues, this Court finds that the EEOC could reasonably have been expected to launch a full-scale investigation of all of USS’ employment practices as regards race, as well as the Union’s possible involvement in them. Therefore, even as to areas not the subject of specific charges by Williams and Dickerson, this Court concludes that
Hicks
sanctions the plaintiffs’ role as representatives in this broad-ranging class action. Furthermore,
Hicks
lends support to the Court’s allowance of the equitable tolling concept on jurisdiction.
Hicks
had filed a complaint with another federal agency. The appellate court equated this complaint with a “charge” under § 704(a) of Title VII, which protects an employee from being fired for seeking a remedy for violations of the Act. This Court believes that under
Hicks ,
as read with the cases relied upon earlier, 439 F.Supp. at 68-69 , it has equitable jurisdiction over this case for the period dating from Dickerson’s March, 1970 letter to the Department of Labor.
Finally, the Court incorporates by reference its discussion of the burden of proof in this action. As noted below, in a specific discussion of proof on the testing issue, the Court has carefully considered the arguments presented at this stage by all the parties. In choosing to remain with the July statement of law, the Court specifically rejects USS’ argument that Title VII requires proof of discriminatory intent. In support of this position, the Court cites
Washington v. Davis,
426 U.S. 229 , 96 S.Ct. 2040 , 48 L.Ed.2d 597 (1976);
General Electric v. Gilbert,
429 U.S. 125 , 97 S.Ct. 401 , 50 L.Ed.2d 343 (1976) and Teamsters v.
United States,
431 U.S. 324 , 97 S.Ct. 1843 , 52 L.Ed.2d 396 (1977). Recent decisions of circuit courts also support this conclusion.
Richardson v. Penna. Dept. of Health,
561 F.2d 489 (3d Cir. 1977);
Rule v. Int’l Association of Bridge Workers,
568 F.2d 558 (8th Cir. 1977);
Davis v. County of Los Angeles,
566 F.2d 1334 (9th Cir. 1977);
United States v. City of Chicago,
573 F.2d 416 (7th Cir. 1978);
James v. Stockham Valves,
559 F.2d 310 (5th Cir. 1977). The Court feels that these cases, many of which refer to the Congressional purpose not to require plaintiffs to prove intent, adequately deal with USS’ argument on the legislative history of Title VII in general. Furthermore, they all support the proposition of
Griggs v. Duke Power,
401 U.S. 424 , 91 S.Ct. 849 , 28 L.Ed.2d 158 (1971), that facially neutral practices having a disparate impact are violations of Title VII. The Court has not found a single case holding to the contrary.
Defendant USS, in a last-minute brief, has argued that the recent Supreme Court decisions in
Furnco Construction Corp. v. Waters,
438 U.S. 567 , 98 S.Ct. 2943 , 57 L.Ed.2d 957 (1978) and
University of California Regents v. Bakke,
438 U.S. 265 , 98 S.Ct. 2733 , 57 L.Ed.2d 750 (1976), compel this Court to hold that Title VII requires .a
*1308
showing of intent. This Court cannot find any language in those cases which would lead to such a holding.
Bakke ,
decided under Title VI, did not reach the question of intent on the part of the employer. In
Furnco,
the Supreme Court dealt with the burden of proof in an individual suit under
McDonnell-Douglas Corp. v. Green,
411 U.S. 792 , 93 S.Ct. 1817 , 36 L.Ed.2d 668 (1973). The Court described what is included in a prima facie case. The Supreme Court’s opinion, in fact, supports this Court’s conclusion that the plaintiffs need not prove intent.
“A prima facie case under
McDonnell Douglas
raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors . . . And we are willing to presume this largely because we know from our own experience that more often than not people do not act in a totally arbitrary manner, without any underlying reasons, especially in a business setting. Thus when all legitimate reasons for rejecting an applicant have been eliminated as possible reasons for the employer’s actions, it is more likely than not the employer, whom we generally assume acts only with
some
reason, based his decision on an impermissible consideration such as race.” 438 U.S. at 577-578, 98 S.Ct. at 2949-2950.
Since the prima facie case need only raise an inference of discrimination, which can be rebutted by showing a permissible reason for the employment decision, it is clear that proof of intent need not enter into a Title VII case. The inference of impermissible motive which is shown by a disparity of treatment or impact is clearly enough to prove plaintiffs’ case, if not met by defendants with rebuttal evidence.
The Court will now, in narrative form, present its findings of facts and conclusions of law on the remaining class and individual actions.
INITIAL ASSIGNMENT
The plaintiffs’ first remaining claim is that blacks at Fairless are disproportionately assigned to certain jobs. This is not a claim of absolute segregation, but of stereotypical assignment to certain allegedly unpleasant or undesirable jobs. In the July opinion, the Court opined that, at that point, plaintiffs had established a prima facie case on this issue. Their case is primarily based on státistical analyses, the Matched Pair Study (MPS) and related corroborative and substantive studies. At that time, of course, the defendants had not yet presented any expert testimony attacking the statistics. Plaintiffs have argued that the defendants now have the burden of disproving plaintiffs’ statistics with affirmative evidence, such as complete studies of their own. While doing this certainly would have simplified the Court’s task, as in
Presseisen v. Swarthmore College,
442 F.Supp. 593 (E.D.Pa.1977), the plaintiffs’ statistics need only be shown incompetent and unreliable to defeat them.
Markey v. Tenneco Oil Co.,
439 F.Supp. 219 (E.D.La.1977). Defending statistical proof is part and parcel of plaintiffs’ prima facie case; the burden does not shift to a defendant for affirmative proof if the prima facie case is defeated by defendant’s evidence. The plaintiffs’ case does not become invulnerable after they complete their case-in-chief and survive a motion to dismiss. The Court must reexamine it at the close of all evidence to ascertain if it still meets the prima facie test.
Croker v. The Boeing Co. (Vertol Division),
437 F.Supp. 1138, 1183 (E.D.Pa.1977);
Neloms v. Southwestern Elec. Power Co.,
440 F.Supp. 1353 (W.D.La.1977);
EEOC v. E.I. duPont de Nemours and Co.,
445 F.Supp. 223 (D.Del.1978). This point of view is also supported by the very recent decision of the Fifth Circuit Court of Appeals in
EEOC v. Datapoint Corp.,
570 F.2d 1264 (5th Cir. 1978). There, the EEOC presented a statistical comparison of the defendant’s workforce with that of the surrounding community. That was the only evidence in the prima facie case. The trial judge concluded that the plaintiff had failed to establish a prima facie case. The appellate court upheld this conclusion, saying there was ample evidence to support it. The appellate court stated that the defendant’s statistical expert had “cast grave doubt upon the credibility of the EEOC’s
*1309
statistics.” 570 F.2d at 1270. His criticisms included some of those expressed in this case, such as inaccurate data base and possible distortion of the results by selective use of information. The court concluded that the defense expert’s “general opinion was that the EEOC’s statistician’s conclusions were not justified and were not evidence of good statistical methodology.”
Ibid.
Here, defendants have challenged the accuracy of statistics by presenting similar testimony. Therefore, the Court must now weigh all the evidence, including evidence presented by defendants’ witnesses, to see if plaintiffs’ prima facie statistical case remains intact now that all the proof is in.
The Court must conclude that it does not. As in
Datapoint,
defendants produced highly credible experts who severely criticized both the sampling and analysis of the MPS. Although all experts on both sides were very impressive and helpful witnesses, in addition to being outstanding in their fields, the Court must give greatest weight to the testimony of Dr. Paul Meier, USS’ witness and Chairman of the University of Chicago’s statistical department, and Dr. Samuel Shapiro, the Union’s expert from the math-science department at University of Miami.
1
Although many of their criticisms were theoretical only, having not been affirmatively established by contradictory studies, the Court nevertheless finds that these criticisms mount up into a massive challenge to the study’s credibility that cannot be ignored.
2
In
United States v. International Union of Elevator Constructors,
538 F.2d 1012 (3d Cir. 1976), the Court of Appeals considered challenges to the reliability of statistics as an attack on the prima facie case, rather than as a portion of defendant’s burden. There, the appellate court felt that the statistics’ flaws were not so great as to defeat the initial proof. In the case before this Court however, the attacks on the statistics are so significant that the Court has determined that the statistical evidence is unreliable.
3
As the
*1310
Supreme Court noted in
Teamsters v. United States, supra,
statistics are not irrefutable and must be analyzed as to their methodology’s propriety and accuracy of execution.
Dickerson, supra
at p. 66 .
The defendants’ challenges to the MPS fall into two categories: the sample selection and the methodology of the study’s conclusions. Based on the numerous attacks on the sampling, which determines whether or not a study of part can in fact reflect the reality of the whole, the MPS’ reliability is very questionable. However, when the critiques of methods used for drawing conclusions are added onto the sampling criticisms, it becomes clear that the study must be rejected, and the related studies supported by the MPS then fail as well.
The study was designed by Dr. Peter E. Haimes, who was qualified by the Court to testify as an equal-employment opportunity specialist. However, he did not qualify as a statistician. He was initially assisted by plaintiffs’ counsel, who apparently did not have a statistical background, although she proved to have gained an impressive grasp of this field as the trial progressed. No statistician aided in designing the original MPS sample or directed its implementation. The MPS was a theoretically proper way of studying initial assignments; Dr. Siskin admitted that. However, the improperly drawn sample, designed and executed by non-statisticians, eliminates its ability to establish the probative facts.
The first problem was that the selection rules were changed in the midst of drawing the sample, as of 1968. The study was theoretically designed so that each black had white “matches;” these persons could be compared as to seniority, being hired at about the same time. Since seniority was thus controlled for, the “matches” could be used to see if contemporaneous white and black hires were assigned to jobs on a racial basis. The selection rules first matched up to five whites for each black; halfway through the study, Dr. Haimes lowered this to only two matches per black. This change caused an imbalance which could have built back in the seniority bias. Both Drs. Siskin and Shapiro testified that the disproportion of the whites in the pre- and post-1968 periods
4
placed the weight of the white seniority in the earlier periods. Since the seniority, taken as a whole, seems to shift from one time period to the next, the Court cannot conclude that this variable was properly controlled. Since Dr. Haimes and defendants’ experts all agreed that this variable must be eliminated in a study of initial assignments, and the Court concludes it was not properly controlled here, the MPS cannot be considered probative.
5
Other studies, which were considered because their conclusions closely tracked the MPS results, do not even attempt to control for seniority. The “inactives” study (discussed below), and the Rod and Wire Mill and Pipe Mill studies, and other studies based on the Affirmative Action Program reports (AAP’s) do not control for this factor. Since the MPS fails on this and other grounds, these other studies must also be disregarded as to the initial assignment issue. Plaintiffs argue that the AAP’s roughly approximate where persons were initially assigned. All sides agree that the AAP’s represent only a “snapshot” view of Fairless; they show where each employer was working on a given date, rather than precisely where they were initially assigned. A “rough approximation” is not enough alone to carry plaintiffs’ burden.
To establish that the AAP studies reflected initial assignment, plaintiffs at
*1311
tempted to show that transfers were so rare that most employees stayed in their initial assignments. Plaintiffs introduced Appendix J, by which Dr. Litwin estimated that at most only
2lh%
of the employees transferred each year. Dr. Siskin testified that, based on a USS study, one out of three employees transferred from their departments between 1964 and 1975. After considering both of these analyses, the Court has determined that neither of them are reliable. Dr. Litwin’s “estimate” was just that — a last minute effort made by the statistician to justify the AAP’s.
6
Dr. Sis-kin’s study suffers from an over-inclusive definition of “transfer,” as plaintiffs made clear in cross-examination. The professor testified that he was not sure whether a temporary assignment counted as a “transfer” or not. In fact, Dr. Siskin was not at all sure how the term was defined for purposes of the study. Ruling out both these studies as unreliable, the Court is left only with the uncontrolled AAP’s. Although in the July 25 opinion, the Court accepted the studies as “further evidence of initial assignment discrimination,” the weight given to them and to Dr. Litwin’s “study,” was in large part dictated by the acceptance of the MPS, the results of which they corroborated. Standing alone as they do now, seniority controlled only by the weak proof of Dr. Litwin’s estimate, the Court now feels that they are not competent evidence on the issue of initial assignment.
A second, and perhaps even more damning criticism of the MPS was the failure to sample the entire population, or universe, about which conclusions were drawn. The MPS was drawn from the Master Employee File (MEF) from 1975. The file contained the records of each employee then working at Fairless. Drawing the sample from that source meant, of course, that those employees who had left USS’ employ prior to that date could not be included. While Dr. Haimes, who is not a statistician, seemed unaware of the problem that omission of those former employees presented, Dr. Lit-win recognized it immediately and took steps to remedy it. He sought to study these “inactives” to complete an entire study of the universe.
A sample can only predict for those populations from which it is drawn. This basic statistical principle was explained by Dr. Meier and recognized by Judge Bechtle in
Presseissen, supra.
Since plaintiffs seek to prove that initial assignments are made on a discriminatory basis, they had to sample all initial assignments, not just those of still-employed individuals. The MPS failed to sample the inactives, and thus cannot really instruct the Court on the entire workforce. The “inactives” might possess different demographic characteristics than the MPS sample. For example, if whites and blacks were equally assigned to unpleasant or underpaid jobs, the whites might quit those jobs at a higher rate than blacks, since they might perceive better outside job opportunities than blacks, who might stay with the jobs rather than face unemployment due to discrimination elsewhere. Furthermore, a number of other variables might differentiate the distribution of initial assignments of the actives and inactives. In order to be able to extend the study’s conclusions to the entire population, Dr. Litwin attempted to study the inactives, by drawing a sample from USS’ termination file for the years 1970 through 1975.
This study was shown by the defendants to be improperly devised and insufficient to complete the sample of the universe. The sample was drawn by pulling white and black files from the USS termination files at prescribed intervals.
7
However, in prescribing the intervals, Dr. Litwin apparent
*1312
ly either miscalculated or was not given the accurate total number of files. As a result, the white files were more heavily sampled in the early years, since the sampler went all the way through the file and started over in order to pull 200 whites’ files. The blacks, however, were not entirely sampled, since 200 files were pulled before the end of the file was reached. Based only on Dr. Litwin’s expertise in July, the Court concluded that the validity of the sample was not affected by this “wraparound.” 439 F.Supp. at 79.
8
However, the Court now has the benefit of additional expert testimony, most notably that of Dr. Meier, and has decided that the sampling techniques used to devise Appendix M were improper. Dr. Litwin testified that he was not a specialist in sampling theory; plaintiffs required him to be a multi-purpose statistical witness and his testimony suffers from that pressure. Dr. Meier sharply criticized the over- and under-sampling of the two groups. This was echoed by Dr. Shapiro. He concluded that the 400 files were not a statistically competent sample of the inactives.
Second, Dr. Meier pointed out that Appendix M did not solve the problem of an incomplete sampling of the universe. The file used only contained those inactives whose termination dates were between 1970 and 1975. It did not study all those hired and terminated since 1952, when the plant opened. Therefore, Appendix M and the MPS sampled only two “frames” of the total initial assignments: those of persons still employed in 1975 (from the MEF) and those terminated from 1970 until 1975. It did not even sample the entire universe of initial assignments during the limitations period. Those frames were not tied in any clear way to the population being studied, to show that they all shared the same characteristics. This type of error, according to Dr. Meier is a classic statistical flaw, and accounted for the inaccurate predictions of Thomas Dewey’s victory in 1948. Dr. Meier concluded that since the total number from which the two samples were drawn consisted of only one-half of all initial assignments made, plaintiffs should have made efforts to establish that these frames accurately reflected the entire universe. Any number of factors could cause this partial sample to be biased. For example, a shutdown of one unit might distort the inactives study. Furthermore, as Dr. Shapiro pointed out, the inactive years studied were not randomly selected. Therefore, even though Appendix M sampled a portion of the inactives, it cannot be considered a statistical sample of those years, since the time periods were not chosen randomly. Since plaintiffs failed to justify statistically this partial sampling of inactives, the Court cannot assume that these two frames can serve as a basis for drawing conclusions about the entire number of initial assignments.
Taking all these criticisms together, the Court has decided that Appendix M does not properly complete the study of the population. Plaintiffs argue that these criticisms are merely theoretical and may have only a small impact on the results. As Dr. Meier testified on cross, a theoretical bias might have a negligible effect on measured quantity, but a major impact upon a study’s reliability. The Court concludes that Appendix M cannot be used to rescue the MPS from its fatal flaw of excluding the inactives.
Two other points of some significance should be dealt with on the issue of the reliability of the MPS sample. First, defendants performed an analysis which purported to show that the data base contained a 28.8% error rate in assigning individuals to clusters. On cross-examination, plaintiffs showed that some of the “errors” could be in fact disagreements about interpreta
*1313
tion of the plaintiffs’ data, and the definition of “clusters.”
9
However, plaintiffs did not introduce any rebuttal evidence. At best, therefore, the Court can still find a significant error rate. While Dr. Shapiro agreed that there is no reason to believe that such errors are racially biased, slanting the study toward one direction more than another, the Court still feels that such errors cast further doubt on the reliability of the MPS. This is especially true when, as Dr. Shapiro testified, a small shift in any number would have a magnified effect on the statistical significance analyses. Defendants’ other criticism that merits some discussion is the inclusion of the lower level crafts employees in the data on non-craft workers. Dr. Shapiro testified, as did Dr. Haimes, that the inclusion of crafts employees mixes the possible sources of discrimination of testing and initial assignment. This is because craftsmen have to pass certain tests, such as paper-and-pencil tests for the apprentices, which might in and of themselves be discriminatory. It was for this reason that Dr. Haimes originally decided to eliminate the crafts clusters, so that the issue of initial assignment discrimination would stand alone. However, the lower level crafts employees were not removed from the MPS by the plaintiffs’ staff. Defendants claim that inclusion of this predominantly white group exaggerates the differences between any heavily black clusters and the remaining mass. Although this was proven by defendants to be true, it only changed the individual cluster statistics slightly. It did have greater changes on the overall picture, lessening but not eliminating the disproportions. If none of the other design flaws were present, the Court would not reject the MPS because of the crafts’ inclusion. However, taken with all the other potential sources of distortion, this is simply one more reason to distrust the findings of the MPS.
Even if the Court were to assume that the MPS sample was proper in all respects, the methods used to reach conclusions appear now to be so suspect that the Court must reject them. At the time of the July 25 opinion, the Court was relying only on the plaintiffs’ expertise. Here again, with the testimony of the defendants’ experts to consider, the Court has weighed the evidence and has concluded that the plaintiffs have not carried their burden.
The plaintiffs’ core contention was that blacks were disproportionately concentrated in five job areas — the Blast Furnace, the Open Hearth, Masonry, Janitorial, and Transportation and General Services. These clusters were “undesirable” by plaintiffs’ definition, 439 F.Supp. at 77, n.19. However, they did not rank highest on the plaintiffs’ undesirability ranking. The clusters were picked, by Dr. Haimes and plaintiffs’ counsel, as the Court stated previously because they were large, active in hiring and heavily black. All three of defendants’ experts criticized this selection as “posthoc.” This is a serious flaw in a statistical study, for it hints at data manipulation. This occurs when data is viewed after it is accumulated and further analyzed only as to its unique characteristics. This distorts the differences shown in the data by removing them from a proper statistical context. As Dr. Meier recognized, this was not caused by Dr. Litwin, who was immediately aware of the problem when he came into the study which was almost completed, but by Dr. Haimes, who may not have been sophisticated enough in statistics to understand the implications. The fatal flaw in choosing the five clusters was that they were not picked because they were the most undesirable. Only two of them ranked in the “top” ten by plaintiffs own study (G-10), and of the “top” 20, four were black clusters and four were white clusters. They were picked for a reason internal to
*1314
the data, that is, because they were heavily black. Even a lay person can deduce that if five groups are selected because they are the most heavily concentrated with blacks, they will be those most likely to be disproportionately black.
When Dr. Litwin came into the case, he recognized this problem of post-hoc selection immediately. He therefore devised a study, now called the “14-cluster analysis,” to rebut this argument. He took the 13 clusters with at least 25 assignments made, and grouped the remainder of the 96 original clusters into one “super-cluster.” This was done so that insignificantly small clusters were not weighted evenly with large ones. He then ran statistical significance tests on these clusters. He concluded, based on these tests, that since three of the fourteen clusters were significantly black, to a statistician, and according to chance only one should be, that there was an association between race and initial assignment.
The problem was that plaintiffs could not justify the cut-off point of 25. Defendants established that if smaller clusters were taken out of the “super-cluster” and counted in (with a cut-off of 20 or 15) the occurrences of the significances would have been statistically attributable to chance. Since the cut-off of 25 was arbitrary and cannot be justified by plaintiffs, the Court cannot find that plaintiffs eliminated chance as a factor. Plaintiffs attempted to use USS exhibit 81-25 to bolster their analysis. The Court finds that the exhibits used in cross-examining Dr. Siskin on this exhibit, P-3129 and P-3130 were never properly based on record evidence or authenticated by any witness. This whole examination of Dr. Siskin is thus without any basis that could serve as rebuttal evidence and cannot be considered to bolster the MPS’ conclusions.
Plaintiffs also attempted to rebut this criticism by conducting a second analysis of the MPS data. Dr. Litwin performed a simulation, or “Monte Carlo” technique. Although this might have eliminated the possibility that the post-hoc selection influenced the results, the Court has concluded that the simulation was not done properly. Defendants’ experts testified that the simulation should have been repeated by the computer 1,000 times in order to be reliable; Dr. Litwin stated that much of it was simulated only 100 times. The Court concludes that this seriously hampered its predictive ability. Second, the data underlying the Monte Carlo analysis is not identical with the MPS, in that a different data base, with different cluster and gross totals was used. Therefore, it cannot simulate the MPS, since it is not based on the same facts. Finally, the Court finds that Dr. Litwin’s program was improperly constructed. It was too narrowly defined and eliminated consideration of disparities greater than plaintiffs had originally alleged. Also, it relied on the “super-cluster” as if it were not artificially constructed — which in effect carried over one of the problems from the original 14-cluster analysis.. The Monte Carlo analysis therefore cannot serve to justify the MPS’ conclusions, because it is also not reliable evidence.
The Court has concluded that the MPS and all the related studies, after all the evidence is in, are not competent to raise an inference of discrimination in initial assignment. This conclusion has been reached with some trepidation, since the Court is not highly trained in statistical techniques. What it has attempted to do is to sift through all the expert explanations of the studies and decide which ones seem most credible. Plaintiffs’ experts were unable at times to give convincing reasons for their opinions. Defendants’ experts, while offering little data and mostly criticizing theory, presented fuller explanations of the statistical concepts involved and how they interact. Plaintiffs’ inability to justify what they did in terms of statistical theories that seem proper to the Court caused the whole study to be viewed as unreliable. Taking all the knowledge the Court has acquired of this complex field of statistics and study construction, it has concluded that plaintiffs were unable to present a solid study for the Court’s consideration.
Since the plaintiffs’ statistical proof has failed, there is very little class-wide evidence for the Court to consider on this issue. Plaintiffs contend that defendants used subjective and standardless hiring
*1315
procedures. Even if the Court were to find that this were true, that would be meaningless unless some discriminatory effect were shown. Subjective hiring procedures cannot be considered illegal unless they result in discrimination. 439 F.Supp. at 76. Plaintiffs’ statistics are their only method of showing a disparate effect of these policies on a class-wide basis and the Court has decided that such evidence is not probative. Plaintiffs also point to their historical evidence of discrimination, as reviewed by the Court, 439 F.Supp. at 77. Since this evidence is outside the statute of limitations, it is meaningless unless it bolsters a claim inside it.
United Air Lines v. Evans,
431 U.S. 553 , 97 S.Ct. 1885 , 52 L.Ed.2d 571 (1977). Standing alone as it does, it cannot establish a claim.
Plaintiffs finally point to their “smoking gun,” as the Court had termed it. This is the comment by one of the interviewers that he assigned blacks to “hot” jobs because they could “take the heat.” First, this comment has not been proven to have had its alleged effect, since the failure of the MPS eliminated plaintiffs’ ability to show blacks were disproportionately assigned “hot” jobs. Second, the prime witness who testified to this hearsay comment (the speaker died before trial) seriously was damaged in her credibility by facts brought out in a mid-trial injunction action. She requested that a discipline be enjoined, since she alleged it was for the sole purpose of harassing lier for testifying. After reviewing affidavits, the Court decided that she was not entitled to an injunction because she had not established that her discipline was discriminatory. This incident established her, in the Court’s view, as a person with a grudge against USS and against her personnel department superiors in particular. Her credibility thus called into question, and the relevancy of the “smoking gun” remark now removed by plaintiffs’ failure to otherwise prove their case, the Court cannot find that discriminatory animus was shown.
Plaintiffs therefore have failed to maintain their prima facie showing of discrimination in initial assignment under either Title VII or § 1981 against USS. Since the defendants, in their case, presented credible evidence rebutting the major portions of the plaintiffs’ case-in-chief, plaintiffs have failed to carry their burden by a preponderance of the evidence. Since the evidence as a whole fails to raise an inference of discrimination as to USS’ policies and practices, the vicarious liability case against the Union also must fall.
MANNING NEW FACILITIES
Plaintiffs claim that defendant USS has discriminated in the selection of initial crews for new facilities added to the Fair-less Hills plant in 1968 and 1972. The plaintiffs also claim that the Union is liable for this alleged discrimination because of special memoranda of understanding that were negotiated regarding the manning of these new facilities. Although the Court earlier was impressed with plaintiffs’ evidence as showing a prima facie case of discrimination on this issue, evidence presented by the defendants has altered this opinion. The Basic Labor Agreement (BLA) required that new facilities crews be manned by “qualified employees who apply for such jobs in the. order of length of service . . .” 1965 BLA, § 13-N. That paragraph allowed local parties to agree on the criteria for judging qualifications and length of service. Plaintiffs claim that the BLA’s provisions were diluted at the local level so as to allow unchecked management discretion which resulted in discrimination. Three facilities were placed into operation in the relevant period: Galvanizing, the Rod Mill, and Electric Furnace and Caster. The Union and the company had a memorandum regarding the Galvanizing line, which stated that the first and second crews would be selected on the basis of “work experience and employment records.” Rod Mill crews were selected according to straight seniority
10
except for the first 14
*1316
members of the rolling crew. Management sought and obtained the right to hire those employees from outside sources in an effort to find experienced employees for the high-speed rolling crew. Plaintiffs claim that management used subjective and standard-less criteria in picking the Galvanizing and Rod Mill rolling crews and that the resultant selection of the largely white groups was discriminatory.
The manning of the Galvanizing department and the Rod Mill occurred in late 1967 and 1968. The Court held previously that the Title YII statute of limitations extends only back to October 2, 1969. 439 F.Supp. at 69. Therefore, these incidents can only be considered as possible violations of § 1981.
11
In order to prove a claim of employment discrimination under that statute, illegal motive or intent must be shown.
Croker, supra
at 1181 . The Court of Appeals has chosen not to decide this issue yet.
Richardson v. Penna. Dept. of Health,
561 F.2d 489 , 493 (3d Cir. 1977). It hinted, in
Resident Advisory Board v. Rizzo,
564 F.2d 126 , 140-145 (3d Cir. 1977), that § 1981 proof included evidence of discriminatory intent. This Court will follow its
Croker
holding, on the belief that these opinions and new authority supports this position.
Lewis
v.
Bethlehem Steel,
440 F.Supp. 949 (D.Md.1977);
Milburn v. Girard,
441 F.Supp. 184 (E.D.Pa.1977) (Luongo, J.);
Delgado v. McTighe,
442 F.Supp. 725 (E.D.Pa.1977) (Broderick, J.);
contra, Davis v. County of Los Angeles,
566 F.2d 1334 (9th Cir. 1977).
Section 1981 is not an affirmative action program, as Judge Celebrezze noted in
Long v. Ford Motor Co.,
496 F.2d 500, 505 (6th Cir. 1974). He stated: “It is an equalizing provision, seeking to ensure that rights do not vary according to race. It does not require that persons be accorded preferential treatment because of their race.” In
Lewis v. Bethlehem Steel, supra,
the Maryland district court held that in order to prevail under § 1981, a black em ployee would have to prove either that his treatment was intentionally dissimilar or that the policy’s effect was intentionally dissimilar. Here, the evidence shows similarity of treatment. In the case of the Galvanizing crew, both blacks and whites grieved their exclusion and both races received the same results. The arbitrator decided that none of the employees were entitled to a new facility job under the Basic Labor Agreement, because none of them had the ability to perform the new jobs without training. On the Rod Mill, two whites grieved that less senior employees had been chosen because of other mill experience. Although the whites were offered jobs at the Rod Mill during the fourth step of the grievance processing, they were not allowed to “bump” those employees with less job time but more qualifications. It appears from this evidence that both white and black workers were excluded from first crews because of the application of subjective standards. The Court finds that this evidence defeats any inference of dissimilar treatment. Also, the Court notes that blacks excluded from the first crew were given positions on later crews. This also rebuts an inference of intentional discriminatory treatment.
Plaintiffs allege that the company’s emphasis of ability over length of service and the alleged use of subjective standards for judging ability constitute a policy with an intentionally discriminatory effect. As evidence of the effect, plaintiffs point to the all-white composition of the first crews and the substantially white population of the second Galvanizing crew. When the Court considered this evidence at the close of the plaintiffs’ case, it concluded that disparate effect had been shown. However, defendants have demonstrated that very few blacks applied for the small number of jobs available. On the Galvanizing first crew, 34 employees bid for the first operating crew’s six positions, and two of those were
*1317
black. The Galvanizing maintenance crew, which had two openings, was bid by 18 employees of whom one was black. One black was hired for the second crew. For the Rod Mill first crew, it appears that only one black applied. He was passed over for the first crew and placed on the second crew.
It appears that, although the evidence of all-white first crews might raise an inference of disparity, this is rebutted when the Court looks at the paucity of black applicants. Although plaintiffs’ evidence showed a statistical underrepresentation, this conclusion did not take into consideration the dearth of black applicants. Since the Court concludes that the plaintiffs have failed to show disparate effect, their case must fall.
Furthermore, even if the Court were to find that the composition of the Galvanizing and Rod Mill crews were such as would show a disparate effect, the evidence does not establish that such effect was intentional. In
Croker ,
this Court held that statistical differences alone could demonstrate illegal intent under § 1981.
Accord, Richardson v. Penna. Dept. of Health, supra.
However, in order to prove intent by statistical proof alone,
Croker
held that the differences must be dramatic. Here, where the total numbers are so small — eight for each of the Galvanizing crews and 14 picked for the Rod Mill crew — the Court cannot find that statistics alone could be probative.
Plaintiffs attempted to buttress their statistical case by showing that historically all first crews at Fairless were predominately white. While historical evidence should be considered as part of the context in judging intent,
Croker, supra
at 1181 , these events are significantly removed in time. The plant was first staffed in 1951, with the Blast Furnace, Open Hearth and Pipe Mill opening at about that time. All these first crews were white. The Court does not find this fact to be significant enough to show intentional discrimination. The only other evidence was presented by John Bysek, a former USS manager, who testified that the plant superintendent told him not to hire blacks for the first crew. The superintendent denied any such statement in his testimony and noted USS’ early policies of integration. All the evidence from which the Court might infer intent is so weak that the Court will decline to make that inference.
Finally, the Court also notes that, even assuming the company had intentionally bargained for the right to select the earlier crews in order to discriminate, or that the subjective standards resulted in discrimination, the alleged incidents of discrimination are so sporadic and isolated that they cannot serve as the basis of a class-wide claim.
Cf. Teamsters v. United States, supra.
The last facility to be opened at Fairless is the Electric Furnace and Caster division. The crews were picked in compliance with the seniority system. Plaintiffs apparently do not dispute this. Since the seniority system is the basis for such selections, and there has been no evidence of a lack of its bona fides or of intentional discrimination, the Court concludes that the staffing of this facility does not violate Title VII or § 1981. As noted above, the
Teamsters
case immunizes seniority-based decisions under § 703(h) of Title VII. The Court concludes that plaintiffs have failed to prove a case under § 1981 as to any new facility hiring and under Title VII as to the 1972 hiring.
ACCESS TO MANAGEMENT
Plaintiffs’ third class-wide claim alleges that blacks are disproportionately excluded from the ranks of first-level management at Fairless Hills. During their case-in-chief, plaintiffs substantiated this claim by showing that in 1973 and 1974, blacks were seriously underrepresented in the first-level management positions.
12
As the Court noted in July,
*1318
“This is the type of evidence that constituted a prima facie case in
Croker
[v.
The Boeing Co.
437 F.Supp. 1138 (1977)]. The burden is now upon USS to show an affirmative defense, or to attack the validity of the analysis, both of which were done by Boeing in
Croker .
These statistics present a strong inference of discrimination at present.” 439 F.Supp. at 81.
USS attempted both of these challenges to plaintiffs’ evidence in defendant’s casein-chief. In the plaintiffs’ case, Dr. Litwin based his conclusion that blacks were statistically underrepresented in management on evidence that showed that 75% of all first-level managers are drawn from the Fairless P & M workforce. To rebut this, USS introduced a study that showed that from 1972-1976, only 46.2% of all management employees were originally hourly employees. However, the Court does not find this USS exhibit persuasive, since it fails to limit itself to first-level managers, which is the category in question. Since it includes higher level managers, who may be more probably recruited through management training programs and other outside programs, this exhibit would not be effective rebuttal. Dr. Litwin, however, accepted USS’ argument on rebuttal and assumed that only 50% of first-level managers were drawn from P & M. He still found their underrepresentation to be statistically significant, reinforcing the plaintiffs’ prima facie case.
13
As the Court noted in its earlier opinion, 439 F.Supp. at 80-82, plaintiffs presented other evidence to buttress their statistics: testimonial evidence of a history of discriminatory informal policy, personal instances of exclusion from management jobs, and standardless criteria prone to discriminatory abuse. The evidence is very much the same as that found to uphold a similar claim in
James v. Stockham Valves and Fitting Co.,
559 F.2d 310 (5th Cir. 1977). First, new foremen are selected by incumbents and thus are a self-selected group. Second, the recommendations of the foremen are very discretionary with no built-in protections against bias. Third, as was shown by USS’ own witnesses, there are no written guidelines and the criteria is not officially agreed upon. Fourth, as in
Stockham,
the criteria are quite subjective, even as spelled out in testimony by Fred Lafferty, the former superintendent of personnel. In general, as' the Court noted before, one gets to be a foreman by “doing a good job.” This is as subjective as the
Stockham
“best man” standard.
See also Watkins v. Scott Paper Co.,
530 F.2d 1159, 1193 (5th Cir. 1976). Finally, as the Court also noted before, although there are programs such as the Management Candidate program theoretically designed to bring minorities into management, they are so poorly publicized that most of the black witnesses did not know of them. There is no system for posting management vacancies, a practice which the appellate court disapproved in
Stockham.
The Court has considered this evidence also, and incorporates its earlier discussion of it, together with Dr. Litwin’s rebuttal statistics, in determining that plaintiffs met their initial burden. Therefore, in order to avoid a finding of discrimination on these statistics and the other evidence, USS must show a legitimate business reason for this disparity-
USS first points to evidence presented by Dr. Seymour Wolfbein, a labor market analyst. Dr. Wolfbein’s study showed that all of the experienced black foremen in the Fairless area labor pool were already employed. Therefore, the Court is asked to infer, no more black foremen could be hired. However, as the Court observed in its earlier opinion, an external comparison is not appropriate in a discussion of first-level management, since there is no evidence that USS hires these foremen off the street. Since the evidence shows that 50-75% of the managers are from USS’ own P & M workforce, the proper comparison is inter
*1319
nal. This would determine how many blacks from Pairless should be promoted to management. This is what the plaintiffs did, and the study showed that blacks were in higher proportions in the P & M workforce than in management. Such an internal comparison is proper, since it is keyed to the pool from which such employees are drawn, under
Hazelwood School District v. United States,
433 U.S. 299 , 97 S.Ct. 2736 , 53 L.Ed.2d 768 (1977). The Court incorporates its earlier statements on
Hazelwood
and this study, at 439 F.Supp. 81 -82 and finds Dr. Wolfbein’s analysis irrelevant on this issue.
USS next argued that the comparison of the percentage of black managers to that of black workforce was improper because all members of the workforce were not qualified to become foremen. The most often-quoted figure showed that only 20% of all P & M workers possessed the requisite qualities to become managers. However, in terms of the criteria elicited from USS’ own witnesses, the Court cannot find that blacks overall are less likely to be qualified than whites. Therefore, they should be represented in the same proportions as in the P & M workforce. While USS’ wage regressions raise an inference that Pairless blacks have somewhat less formal education and are older when hired than whites, these are not the qualities that would bar one from management. On-the-job skills and knowledge and good safety and discipline records appear to be most important These qualities appear to be equally shared by blacks and whites. USS has presented no evidence to the contrary. In
Croker ,
defendant showed that because blacks were not hired until the 1960’s they had less time on the job and thus were less likely as a group to have enough tenure to meet Boeing’s criteria for management. Here, USS has not shown by any measurable criteria that blacks as a group lacked any of USS’ subjective qualifications to become first-level managers. The education gap between blacks and whites at Pairless is not such as to cause the whites’ dominance of management positions, since the lower management position require only basic reading and writing skills. No USS official testified that advanced formal education was a first-level management prerequisite.
USS finally argues that it was unable to hire blacks as managers because qualified blacks had turned down offers to move into management. To buttress this, it presented the testimony of four blacks. However, USS did not establish how many other offers were made to blacks and rejected. Nor did it show that whites disproportionately accepted management positions. When this testimony is balanced with the evidence by plaintiffs’ witnesses of their strong but unrequited desire to enter management, the Court is not convinced that the paucity of black managers can be explained by an overall black unwillingness to serve. Nor does the Court find it credible that the blacks who refused were the only ones in the plant qualified to become managers.
This Court must hold, based on this evidence, that USS has not met plaintiffs’ prima facie case with evidence showing that the management disparities are a result of any legitimate business reason. USS has no set tenure or educational criteria for promotion; no job-related tests are presently administered to identify the qualified individuals on an objective basis. Because the criteria are so subjective, this area of employment practices is especially susceptible to discriminatory abuse. As the evidence shows, a “buddy-buddy” system of promotion, unsupervised from above and unstructured in application, has resulted in persons selecting members of their own race in a self-perpetuating elite. Unless and until blacks are admitted to that group in numbers proportionate to their presence in the workforce, this pattern of discrimination will probably continue.
However, the Court cannot find the level of intent required to hold USS liable for discrimination in management selection under § 1981. Although the statistics and testimony establish that blacks were discriminated against in the management selection process involving lower-level managers, the various programs engaged in by USS at a higher level rebut an inference that such discrimination was intentional to
*1320
the extent required under the Civil Rights Statute. Fairless has had a number of formal programs designed to open up its management positions to all, such as the Foreman Candidate Program and the Management Candidate Program. While it is difficult for the Court to square this evidence of good faith attempts to draw in black management by the upper echelons of USS management with the informal practice of excluding blacks'by those lower-level managers (who are responsible for the actual hiring into first-level positions), it is certainly evidence that would mitigate a charge of intentional discrimination by the firm as a whole. To be sure, a company is liable for lower-level practices if known and left unchanged by supervisors.
14
Croker,
437 F.Supp. at 1194 and cases cited therein. However, the Court feels that where a single firm enunciates policies going in one direction while its practices go in another, that firm is liable not for intentional discrimination. under § 1981 but the lower standard allowed under Title VII. This Court has repeatedly held, and reiterates that holding, that intent is not a requisite under 42 U.S.C. § 2000e. As the Court said in
Croker ,
“(G)ood intentions and the existence of affirmative action programs are not defenses to a Title VII action.” 437 F.Supp. at 1182 . In
Croker ,
Boeing demonstrated more than good intentions in its promotions to management. The number of blacks promoted to the Vertol Division’s management was greater than blacks’ proportion of the workforce during the limitations period. Therefore, the Court inferred that Boeing was acting out its stated intentions to cease discrimination in management. USS has not demonstrated that its good intentions have borne fruit, and that blacks are achieving management positions at any greater rate than prior to the promotion programs. Therefore, although these programs are sufficient to negate the § 1981 intent by showing a desire to establish a race-blind policy, their failure to advance more blacks to management merely supports the Court’s conclusions that there has been no effect in fact on hiring practices. Therefore, USS is liable under Title VII for discrimination in elevation to management, but is not liable under § 1981.
Plaintiffs have argued that USS used the position of vicing foremen as a steppingstone to foreman and discriminated against blacks in promotion to this position as well as to a first-level management position. A vicing foreman has a supervisory position, but remains in the P & M bargaining unit. Instead of a salary, he receives his hourly pay plus 10 percent. Plaintiffs assert that these positions were widely sought after, and in fact were more desirable than the first-level management positions because of potential for higher pay.
Plaintiffs have presented very little evidence that such positions were used by USS to. “groom” individuals for later management positions. Furthermore, they have not shown that blacks were under-represented among these “10 percenters.” In fact, they have presented no class-wide proof on this issue. Indeed, the Court had thought at the time of the motion to dismiss, that this issue had been dropped from their case on management. The only evidence that the plaintiffs put forward on this was the testimony of a few individuals, one of whom, Arthur Johnson, has his own case pending before this Court. Since counsel agreed that the defendants need not put in evidence rebutting the individual cases, the Court will decline to comment on the merits of those individual cases at this point. However, in view of the lack of class-wide proof on the issue of vicing, the Court will not extend its holding that USS has discriminated on the basis of race in promotion to first-level management to the position of vicing foreman. Even if the individual cases were found to be valid, they could not sustain a class-wide verdict, for without some proof of a discriminatory policy or. statistical proof of disparate impact, individual cases are no more than isolated incidents of discrimination.
See Teamsters v. United States, supra.
*1321
ACCESS TO CRAFTS
Plaintiffs have asserted a class-wide claim that blacks at Fairless are discriminated against in access to the prestigious and high-paying crafts jobs. This claim is made against the Company and vicariously against the Union. This claim, as it was presented at trial, relates primarily to the barrier allegedly presented by the test battery which an individual must pass in order to become an apprentice. Therefore, although other class-claims were raised earlier on the issue of the crafts jobs,
15
plaintiffs’ case at trial was a “testing” case that has its origins in
Griggs v. Duke Power Co., supra.
The Court should first note that after most of this portion of the opinion was drafted, the Union submitted the results of a final arbitration (cited as “Award,”
infra)
on the USS tests as a supplement to the record. Although this was based on an interpretation of the labor contract rather than the federal law, it still contained relevant information. It is interesting to note that both the arbitrators and the Court agree in the result, that the tests are not “job-related.” The Court will, from time to time, use this award in its discussion of general aspects of USS testing.
A.
Burden of Proof
Before considering the state of the evidence on the issue of testing, it would be helpful for the Court to discuss the legal standards for the type of proof and the respective burdens of proof that are unique to this area. The first major case on testing was
Griggs
v.
Duke Power Co.,
issued by the Supreme Court in 1971. In
Griggs ,
the High Court held that tests which have a disparate effect on minorities must be shown to be “job-related” in order, to be found acceptable under Title VIL A non-job-related test was a discriminatory one if minorities passed it at a rate substantially lower than that of whites. Four years later, in
Albemarle Paper Co. v. Moody,
422 U.S. 405 , 95 S.Ct. 2362 , 45 L.Ed.2d 280 , the Supreme Court discussed in somewhat more detail what it meant by “job-related;” In that case, the defendant had engaged an industrial psychologist to perform a validity study to demonstrate that success on the tests used was related to success on the jobs for which it was a selection device. The
Albemarle Paper
court looked to the guidelines promulgated by the Equal Employment Opportunity Commission (EEOC) as standards for evaluating the propriety of the psychologists’ work.
“The message of these Guidelines is the same as that of the
Griggs
case — that discriminatory tests are impermissible unless shown by professionally acceptable methods, to be ‘predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job or jobs for which candidates are being evaluated.’ ”
Albemarle Paper,
at 431, 95 S.Ct. at 2378 ,
quoting from
29 CFR § 1607.4 (c).
Since these two opinions were handed down, courts have depended more and more on the guidelines of the EEOC and more recently, some new guidelines issued by the Department of Justice. The Court will discuss the meaning of the two sets of guidelines more thoroughly below. However, the lesson of the cases is clearly that in a Title VII testing case, the plaintiffs first must show that the tests have a disparate impact.
*1322
The defendant is then to demonstrate, through the use of professionally developed and acceptable “validation” studies, that the tests bear a statistically and practically significant relationship to the jobs for which they are used as a selector.
The next issue is the question of which party bears the burden of proving each one of these portions of a Title VII testing case. Plaintiffs argue that the burden of persuasion shifts to defendants once plaintiffs demonstrated that the test has a disparate impact on blacks. They claim that defendant then has the burden of persuading the Court, by a preponderance of the evidence, that the test is job-related. Only if that standard is met does the burden of persuasion shift back to the plaintiffs. Since this is a very complex but important issue of law, the Court has decided to discuss this in some depth.
In this Court’s last major Title VII case,
Croker v. The Boeing Co. (Vertol Division), supra,
the issue of burden of proof was discussed in general, rather than in terms specifically applicable to a testing case. Citing
General Electric Co. v. Gilbert,
429 U.S. 125 , 97 S.Ct. 401 , 50 L.Ed.2d 343 (1976), this Court said that “the plaintiffs retain at all times the burden of proving discrimination by a preponderance of the evidence.” 437 F.Supp. at 1183 . Therefore, as in the initial assignment claim
supra,
plaintiffs’ prima facie case of disparate treatment or impact must be reexamined at the close of all evidence. Plaintiffs never lose the burden of proving that a disparity exists. However, under Title VII, the employer may defend not only by directly attacking plaintiffs’ evidence of disparity, but also by raising an affirmative defense. These defenses are the “business necessity” arguments recognized in
Albemarle Paper Co. v. Moody,
422 U.S. 405 , 95 S.Ct. 2362 , 45 L.Ed.2d 280 (1975). That case noted that the employer has the “burden of proving” its affirmative defense. USS has argued that it does not have the burden of persuasion, but only the burden of going forward with the evidence on its affirmative defense. This Court, consistent with the
Croker
decision, does not agree. The Court of Appeals for the Third Circuit has most recently addressed the issue of burden of proof in
Rodriguez v. Taylor,
569 F.2d 1231 (3d Cir. 1977). There, the court cited
Ostapowicz v. Johnson Bronze Co.,
541 F.2d 394 (3d Cir. 1976), and said, “(I)f an employer produces evidence of a non-discriminatory reason for an employment decision, he may bear the burden of proof on that ultimate issue.” 569 F.2d at 1239 . In
Ostapowicz ,
the appellate court was interpreting
McDonnell-Douglas Corp. v. Green,
411 U.S. 792 , 93 S.Ct. 1817 , 36 L.Ed.2d 668 (1973), which outlines the burden of proof rules for a non-class Title VII case. Unequivocally, the
Ostapowicz
court said that the burden shifts to the defendant on a “business necessity” defense. “The defendant must prove its justification by a preponderance of the evidence.” 541 F.2d at 399 . This Court believes that the principles of
Rodriguez
and
Ostapowicz
require USS to prove the affirmative defense by a preponderance of the evidence here.
See also EEOC v. E. I. duPont de Nemours and Co.,
445 F.Supp. 223 (D.Del.1978);
Vulcan Society of New York City Fire Dept. v. Civil Service Comm’n.,
490 F.2d 387 (2d Cir. 1973). In
Croker ,
the Court said that the plaintiffs retained at all times their “traditional civil litigation burden” of proving their cause of action, being that of discrimination. Here, defendant likewise retains its “traditional” civil burden of proving its affirmative defense by a preponderance of the evidence. The requirement that defendant prove a business necessity defense under Title VII is no different than that imposed upon a defendant in a personal injury case to establish assumption of risk or contributory negligence. The Court sees no reason to differentiate between Title VII and other civil cases on the issue of defendants’ burden, since it does not do so regarding plaintiffs’ burden. As outlined above, the Court finds much support for this position both in this Circuit and by the Supreme Court.
Not only does defendant have the burden of proving that its testing procedure is job-related, by conducting validity studies, but that burden is a heavy one. Ever since
Albemarle Paper,
courts have closely scrutinized validity studies to ensure that they
*1323
were conducted properly and fairly in all respects. In
Richardson v. Penna. Dept. of Health,
561 F.2d at 491, this Circuit’s appellate court said: “(S)uch validation requires a
probing judicial review
of the choices made by those responsible for the test.” (Emphasis added.) The Seventh Circuit Court stated that defendant has the burden of showing that the test has a “manifest relation” to the job in question.
United States
v.
City of Chicago,
549 F.2d 415 at 427 , citing
Griggs,
401 U.S. at 432 , 91 S.Ct. 849 . That court required “convincing proof” before accepting a study or expert testimony. 549 F.2d at 432 .
B.
Intent
Defendant USS next argues that plaintiffs must show, as part of their Title VII prima facie case, evidence that the testing procedure is intentionally discriminatory. Certainly, that is true under § 1981, as the Supreme Court held in
Washington v. Davis,
426 U.S. 229 , 96 S.Ct. 2040 , 48 L.Ed.2d 597 (1976). However, the courts have been clear, since
Griggs v. Duke Power Co., supra,
that intent is not an element of a Title VII case, see discussion
infra,
and especially in a testing case. Defendant has put forth a number of arguments as to the issue of intent. Defendant first contends that since both
Griggs
and
Albemarle
involved situations where pre-Act segregation was admitted, that a test or selection procedure must have its “genesis” as a device intended to perpetuate such discrimination in order to invoke the holdings of those cases. In examining the language of
Griggs
itself, it is clear that the High Court did not base its decision on an inference that the tests were merely devices to subtly and legally continue discrimination. In fact, the Court specifically rejected intent as an issue. “(G)ood intent or the absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as ‘built-in headwinds’ for minority groups and are unrelated to measuring job capabilities.” 401 U.S. at 432 , 91 S.Ct. at 854 . In fact, in spite of the power company’s history of blatant discrimination, the Supreme Court felt that the company’s policy of aiding employees to meet the job requirements suggested a lack of intent in instituting the questioned job criteria. “But Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation.”
Ibid.
(Original emphasis). This “no-intent” theme was repeated in
Washington v. Davis,
426 U.S. at 247 , 96 S.Ct. at 2051 , where the Court said:
“Under Title VII Congress provided that when hiring and promotion practices disqualifying substantially disproportionate numbers of blacks are challenged, discriminatory purpose need not be proved
Most recently, in the
Teamsters
case, the Court reaffirmed its decision in
Griggs
that the plaintiff need not show discriminatory motive in such a case. 431 U.S. at 336, n.15, 97 S.Ct. 1843, n.15 .
The Court of Appeals for the Third Circuit has not read the factual limitation into
Griggs
that the defendant urges. In
Richardson v. Penna. Dept. of Health, supra
at 491, the appellate court discussed
Griggs
and said: “A discriminatory intent on the part of the employer need not be proved to show that a testing practice violates Title VII.” Defendant claims that the decision in
General Electric v. Gilbert, supra,
requires that this interpretation of
Griggs
be altered. That argument was rejected quite recently by the Seventh Circuit appellate court in
United States v. City of Chicago,
573 F.2d 416 (7th Cir., 1978). That court said that
Gilbert
held only that the maternity leave rule did not have a discriminatory effect, and that it reaffirmed
Griggs
on the issue of intent.
16
This Court must reject defendant’s argument that the facts of
Griggs
and
Albemarle
require proof of a discriminatory intent or origin.
Defendant USS also claims that the testing procedure at Fairless is part of a “merit system,” protected under § 703(h), 42 U.S.C.
*1324
§ 2000e-2(h) and that therefore, plaintiffs must prove intent. In the
Teamsters
decision, the Supreme Court held that a
bona fide
seniority system could not be attacked for its discriminatory impact because of that section’s protection. The language of that section applies equally to “merit systems.”
17
Section 703(h) is a specific exception to Title VII. As construed by the Supreme Court in
Teamsters ,
it protects certain employment practices from attack even if their effect is to discriminate so long as they are not put into operation with discriminatory intent. In
Teamsters ,
the High Court held that a seniority system which perpetuated the effects of pre-Act discrimination was not a violation of Title VII, where plaintiffs could not show the system was designed to continue such discrimination. In the case at bar, defendant USS points out that Congress included a “merit system” in the same section. USS contends that a “merit system” is one that uses tests to find or advance the qualified applicants. Therefore, the company contends, a merit system which uses tests must be shown to have been intended to discriminate or it is protected by this section. While the Court finds that the defendant may be correct in classifying Fairless’ battery as part of a “merit system” in light of the Act’s legislative history, it does not agree with the defendant’s conclusion that plaintiffs must show that the testing was intended to discriminate. The Court holds that the standard for finding that a “merit system” is not bona fide and thus not protected by § 703(h) is the same as finding that a test is not protected by that section’s testing language under
Griggs .
Section 703(h), as written, was not included in the original Civil Rights Act of 1963. Almost from the beginning of the extremely lengthy debate on the Act, the senators were concerned about the issue of testing. This concern was brought about in large part by a report of a hearing examiner in an Illinois Fair Employment Practices Commission case,
Myart v. Motorola,
(reprinted in full at 110 Cong.Rec. 5662). The examiner recommended that
Motorola
be required to cease using its applicant screening exam. He described it as “outmoded” and said that a test should be substituted “which shall reflect and equate inequalities and environmental factors among the disadvantaged and culturally deprived.”
Ibid.
As the Supreme Court observed in
Griggs ,
as a result of
Myart
“[Congressional] debate revolved around claims that [Title VII] as proposed would prohibit all testing and force employers to hire unqualified persons simply because they were part of a group formerly subject to job discrimination.” 401 U.S. at 434 , 91 S.Ct. at 855 . Although Senators Humphrey of Minnesota, Case of New Jersey and Clark of Pennsylvania sought to reassure their colleagues that Title VII would not limit an employer’s right to test applicants as to ability, the Senate went unpersuaded.
The testing issue was but one of many that formed a barrier to the passage of the Civil Rights Act. Therefore the two party leaders, Senators Mansfield of Montana and Dirksen of Illinois, submitted amendment 1052 (“the Mansfield-Dirksen substitute”). Included in that package was a § 703(h), but only the present first sentence exempting “bona fide seniority and merit systems.” Texas’ Senator Tower, still concerned about the testing issue, pressed for passage of his amendment 652. The amendment would have added a specific exemption for applicant and promotional testing, provided that the “test is designed to determine or predict
*1325
whether such individual is suitable or trainable.” 110 Cong.Rec. 13492 (June 11,1964). Senator Case objected to the broad wording of the amendment. He stated, “Discrimination could actually exist under the guise of compliance with the statute.” 110 Cong. Ree. 13504. (June 11, 1964). At the same time, Senator Humphrey opposed the amendment as redundant of the already-existing language on merit systems. He said, in response to a colleague’s question, that a test covered by the Tower amendment would have to be included as part of a merit system. Therefore, a test which was part of a bona fide merit system was protected by § 703(h) without further amendment, he implied. The Senator said that the § 703(h) language of the Mansfield-Dirksen substitute was added specifically after review of
Myart v. Motorola. Ibid. See also
110 Cong.Rec. 13650-51 (June 12, 1964). Amendment 652 was defeated.
Undaunted, and still concerned about the testing issue, Senator Tower introduced amendment 952, which is the present § 703(h) testing language. He explained that he had redrafted it to be more specific, agreeing that his first attempt had been too loosely drawn. This addition was not opposed. Senator Humphrey urged its adoption, stating that it was “in accord with the intent and purpose of the title.” It was adopted by voice vote.
At first glance, this history might appear to be contradictory. On the one hand is Senator Case objecting to the first Tower amendment as not sufficient, still allowing for discriminatory testing. On the other hand is Senator Humphrey, who was working with Case for passage of the Act, claiming that Tower’s amendment was too sufficient, because tests already were covered by the “merit system” exemption. What makes this history actually consistent is the fact of Senator Humphrey’s support for the second Tower amendment. To the Court, it appears that while Senator Humphrey may have also viewed the second testing section as redundant, he recognized that explicit protection of job-related testing was necessary for eventual passage of the bill. It is this Court’s opinion that Senator Humphrey acquiesced to amendment 952 because he knew that the end result would be the same — that only job-related tests would be allowed under § 703(h).
It is in light of this historical equation of the “merit system” language of § 703(h) and its testing provisions that this Court finds that
Griggs’
standard applies with equal force to all of § 703(h). Both sections were drafted in response to
Myart,
and reflected senatorial concern that valid tests might be outlawed altogether. Both seek to protect the employer’s right to give valid tests. In
Griggs ,
the Supreme Court looked at the statutory language on testing and concluded that non-job-related tests were unfair employment practices. In simple terms, a lack of job-relatedness indicates that the test is one “designed or used to discriminate” and thus not protected under Title VII. This same evidence also removes the label of “bona fide” from a merit system that uses non-job-related tests. Therefore, no matter which section is construed, the result is the same.
18
The
Griggs
legislative history of the testing language confirms this. Testing and merit systems are the same and are protected only if they serve a legitimate employer concern of screening for ability. It is this concern that Congress sought to protect — not just a general right to give tests.
In short, the defendant’s argument that plaintiffs must show that Fairless’ tests had their genesis in discrimination is clearly erroneous. The most recent precedent both in this Circuit and by the Su
*1326
preme Court holds that a plaintiff need not prove a test is intentionally discriminatory in order to shift the burden to defendant. The legislative history of § 703(h) establishes that tests and merit systems having a disparate impact are only protected if they are shown to be job-related. To hold otherwise would be to reverse well-established precedent and to defeat the intent of Congress.
C.
Disparate Impact
Having ruled out any need for the plaintiff to prove intent under Title VII, the Court must still reexamine the plaintiffs’ prima facie case to see if they have met their burden of proof. There is presently remaining in the case direct evidence which plaintiffs contend establishes their prima facie case. First, their experts have analyzed and compared the pass rates for blacks and whites for the various tests used during the limitations period. Second, they have introduced evidence of the number of blacks and whites in the apprentice program in 1968 and 1969, and in the crafts jobs in 1973 and 1975.
19
The Court finds that plaintiffs have produced evidence supporting an inference of discrimination in access to the crafts and Metallurgy and Inspection because of the test battery.
20
Until November 21, 1973, candidates for the apprentice program took a form of the Wonderlic exam, (Form D and F were used until June, 1971, after which the company used forms I and II), the Revised Minnesota Paper Forms Boards test AA and BB (RMPFB), and a form of the Bennett Mechanical Comprehension test (Form AA used until June, 1971, after which Forms S and T were used). The apprentice applicant was judged on his average of the three tests’ scores. After November 21, 1973, the company substituted the Differential Aptitude Test-Numerical Ability (DAT-NA) for the Wonderlic, and required the applicant to pass all three tests.
21
From 1965 to 1970, candidates for Metallurgy and Inspection had to pass the battery.
Plaintiffs showed that prior to 1973, the ratio of whites to blacks passing the battery was four to one. This difference was testified to be statistically significant. Although the scores were considered as a total average for personnel use, the Court finds that the individual breakdown is also significant. This is because a single element may alone be discriminatory. On the Wonderlic, 8.7% blacks scored a passing score or better, while 39.5% of the whites received that score. These are statistically significant and the ratio of these rates is 4.5 to one. On the Minnesota exam, the rate of blacks was 21.8% receiving zero or better compared to 50.1% of the whites, which was a statistically significant differential. The ratio is almost two to one. On the Bennett, 28.3% of the blacks scored zero or better, while 61.7% of the whites did, again making a two to one ratio. This differential is also statistically significant.
After the changes in the battery in 1973, things improved only somewhat. The black-white pass ratio for the battery as a whole is a statistically significant 3.6 to one. Although the ratios are better on each test —1.85 to one on the DAT-NA, 1.6 to one on the RMPFB and 1.5 to one for the Ben
*1327
nett — the differential between the black and white rates is still statistically significant. Forty percent of the blacks passed the DAT-NA, as compared with 74% of the whites. On the Minnesota exam, 43% of the blacks and 69% of the whites passed. More were successful on the Bennett, where 61% of the blacks and 91% of the whites passed. However, to pass the entire battery, an applicant had to have a concurrence of pass rates on all three tests.
To complete their prima facie case, plaintiffs demonstrated that the jobs in question do not have a proportionate number of blacks as compared to the plant as a whole. In the main plant, 2.7% of the crafts employees were black, as compared with a plant black population of 12.2%. In 1975, the figures were 3.6% compared with 12.4%. In the Pipe Mill, the percentage of craftsmen who were black was 1.6% as compared with the plant-wide 13.8% rate. In 1975, the Pipe Mill crafts were 8.1% black and the Mill was 14.5% black. These differences are statistically significant. Dr. Litwin testified that the underrepresentation in the Rod and Wire Mill crafts is also statistically significant. Plaintiffs also’ showed significant underrepresentation in the apprentice program, with 2.1% of the apprentices being black in 1968 and 1.7% in 1969 compared with the plant total of 8.3%. Finally, in Metallurgy and Inspection jobs, for which the battery was a requirement until 1970, the disparities are very great. In 1973, three out of 97 employees were black. By 1975, this had changed to 11 out of 147, still less than the plant-wide percentage.
To attack the prima facie case directly, USS has put forward only a few arguments. First, they presented Dr. Wolfbein, who contended that blacks were actually overrepresented in the crafts as compared with their presence in the outside workforce. As in the case on access to management, the Court finds Dr. Wolfbein’s testimony to be irrelevant. The testing issue here is not whether blacks applying off the street to Fairless get the crafts jobs, but really is whether internal access to these jobs is barred by the requirement of the apprentice battery. Thus, the relevant population to be studied is not the number of blacks already trained and employable on the outside, but the number of potential applicants at Fairless, which is presumed to be the entire P & M workforce. In
James v. Stockham Valves,
559 F.2d at 341 , that Court of Appeals rejected evidence similar to Dr. Wolfbein’s, on a question of black representation in crafts. In
Stockham Valves ,
primary access to these jobs was through the in-house apprentice program, as is true at Fairless. This Court rejects Dr. Wolfbein’s evidence as irrelevant to the plaintiffs’ prima facie case.
Second, defendant has attacked plaintiffs’ statistics as inconclusive. It argues that the statistics are faulty because they do not allow for re-testing, which might distort the figures. Defendant argues that if blacks fail and re-take the test, and whites pass it on the first try, then the black statistics are distorted vis-a-vis the white. The problem with this argument is that it builds in an assumption of adverse impact, in that it assumes that blacks will fail (and fail again) more often than whites. An equal failure rate between the races would not affect the statistics, and the disparities would remain the same. Therefore, the Court either accepts the plaintiffs’ statistics as evidence of disparate impact or accepts defendant’s assumption of differential pass rates, which implies adverse impact. Either way, the burden shifts to the defendant.
Plaintiffs have shown that blacks are Underrepresented to a statistically significant degree both in the apprentice programs and the crafts and other jobs in question. The Court believes that, even without the MPS figures, this fact is an adequate basis for inferring that the selection process, or one part of it, has a disparate impact. Defendant argues that in order to show a disparate impact in selection, plaintiffs cannot show only a disparate population in the crafts, but must show disparate hiring rates, as through the MPS’ study of initial assignments. Although those data would have been preferable, their absence does not defeat plaintiffs’ case. In
Washington
v.
Davis, supra,
the Supreme Court noted that the district could have relied on the under-representation of blacks in the police de
*1328
partment, coupled with the high black failure on the test, as prima facie evidence. In
James v. Stockham Valves,
559 F.2d 310 (5th Cir. 1977), plaintiffs met their burden by showing gross disparity between blacks and whites in jobs requiring high scores on tests along with evidence of disparate pass rates. In an earlier case,
Watkins v. Scott Paper Co.,
530 F.2d 1159, 1185-1186 (5th Cir. 1976) that appellate court found that a very small percentage of blacks were in the crafts. “(A) statistical showing of black exclusion from a particular kind of job establishes a prima facie case of discrimination,” that court held.
Since there is disparity in the craft population as a whole, the Court must examine the portions of the selection process to judge if any of the parts are discriminatory.
Rule v. Int’l Association of Bridge Workers,
568 F.2d at 565, n.10 . “Where the total selection process has an adverse impact upon a substantial racial group in the labor market, the individual components of that process — such as a screening test — are also to be evaluated for adverse impact.”
NAACP, Ensley Branch v. Seibels,
13 EPD ¶ 11,504 (N.D.Ala. Jan. 10, 1977). As the Court noted earlier, a large portion of those in the crafts jobs have come through the apprentice program. Since there is no evidence that the non-apprentice route to crafts jobs is discriminatory, the Court must look to the apprentice program, and the selection process for that program, as the source of a possible discriminatory barrier.
United States v. City of Chicago,
549 F.2d at 429, n.12 . In order to show that the apprentice battery is the discriminatory element, the plaintiffs must show 1) that it is causally linked to the population disparity and 2) that it disparately selects persons for the apprentice program.
In
Neloms v. Southwestern Elec. Power Co., supra,
the court said that there must be a cause and effect relationship between a selection device and the alleged disparity in population. There, the Court found that no employee was denied advancement because of his failure to pass the test. In the instant case, the test battery is the primary, if not the sole, selector. This was recognized by the company in the arbitration over the testing program. Award, at 2. In the studies presented by USS, it was noted that although passage of the battery is not an absolute requirement, it was rare that employees who did not pass them were admitted into the program. In the first study, the Fairless psychologist noted that although an average standard score of zero was needed to pass the battery, a few apprentices in the validation study had scored below that. In the second Fairless study, the author said that the only persons selected for the program who had not passed the new battery were those who had qualified under the pre-1973 battery. The Court can infer from this that the successful applicant who does not pass the battery is the rare exception that makes the rule. Since the test impacts disparately and there is no other significant selection device, the Court finds that the test disparity is causally connected to, and was reflected in the under-representation of blacks in the crafts.
See also Friend v. Leidinger,
446 F.Supp. 361 (E.D.Va.1977).
Second, the Court must consider if the differences in the pass rates are such that would imply an adverse impact. First, the Court observes that the differences are statistically significant, which means they cannot be attributed to chance or randomness. Second, the Court finds that the statistics meet the definition of “adverse impact” under the Department of Justice guidelines (DOJ), which have been accepted by some courts as appropriate criteria for judging such impact. In
Friend ,
the court used 28 CFR § 50.14 not as “a hard and fast rule,” but only as a “rule of thumb.” At 368. In
Seibels,
Judge Pointer also relied on § 4b of the DOJ guidelines, which state:
“A selection ratio for any racial, ethnic or sex group which is less than four-fifths (4/s) (or eighty percent) of the rate for the group with the highest rate will generally be regarded as evidence of adverse impact, while a greater than four-fifths rate will generally not be regarded as evidence of adverse impact.”
The pass rate of blacks on the pre-1973 battery is approximately one-fourth that of
*1329
whites.
22
Post-1973, the rate is 27%.
23
This is clear evidence of severe adverse impact under the DOJ guidelines. Looking at recent cases, the Court finds further support for a conclusion of adverse impact. In
United States v. City of Chicago,
549 F.2d at 428 , the appellate court supported the district court’s conclusion of adverse impact where minorities failed at twice the rate of whites. Here, the differences are almost double that.
Taking this evidence as a whole, the Court concludes that plaintiffs established a prima facie case of discrimination in access to crafts, Metallurgy and Inspection jobs because of the apprentice battery. The burden of proof shifted to defendant USS. To satisfy this burden, it had to show that the tests are job-related, a special version of the “business necessity defense” as first stated in
Griggs .
D.
The Guidelines
To accomplish this, USS placed into evidence three validation tests: the “South Works” study, conducted at the USS plant in Chicago, Illinois, dated May 31,1973; the February 12, 1975 study at Fairless, referred to as “Fairless I,” and the May 1, 1975 Fairless study, known as “Fairless III.” To judge these studies, the Court has relied on the testimony of USS’ experts, Drs. Frank Schmidt and Robert Guión, and plaintiffs’ expert, Dr. James Kirkpatrick. Dr. Kirkpatrick relied on studies performed by plaintiffs’ statistical expert, Dr. Litwin.
In addition to case law, the Court has looked for guidance to the EEOC “guidelines on Employment Testing Procedures,” 29 CFR § 1607
et seq.,
the DOJ guidelines, 28 CFR § 50.14
et seq.,
and the psychological testing industry’s own guidelines, “Standards for Educational and Psychological Tests and Manuals,” published by the American Psychological Association (APA) in 1970 and revised in 1974. There are conflicts among these standards and the two sides have urged the Court to resolve them in different ways.
In
Albemarle Paper v. Moody, supra,
422 U.S. at 431 , 95 S.Ct. at 2378 , the Supreme Court’s test validation decision, the Court looked at the significance of the EEOC guidelines.
“The EEOC Guidelines are not administrative ‘regulations’ promulgated pursuant to formal procedures established by the Congress. But, as this Court has heretofore noted, they do constitute ‘[t]he administrative interpretation of the Act by the enforcing agency,’ and consequently they are ‘entitled to great deference.’
Griggs v. Duke Power Co.,
401 U.S., at 433-434 , 91 S.Ct., at 854 .”
In
Friend ,
Judge Warriner discussed the DOJ guidelines. He observed that they are the product of the Equal Employment Opportunity Coordinating Council (EEOCC), which was established to eliminate inconsistencies among various federal agencies which deal with discrimination legislation. 42 U.S.C. § 2000e-14. However, when the DOJ guidelines were promulgated, the EEOC refused to accept them and continues to use its own guidelines.
“The Court is of the opinion that whatever effect these various guidelines have upon the agencies promulgating them, they are not legally binding upon either the parties to this suit or the Court. The Court can and will use both sets of guidelines as an aid to determining if either party has carried its burden of proof under Title VII, but although these guidelines are of great value as the interpretation of the law by government agencies charged with the duty of enforcing the law, the Court will not be bound by one set of guidelines over another, but only by what the Court deems as reasonable in this case.” 446 F.Supp. at 369 .
The Court finds this approach, of combining and modifying the two sets of guidelines, as the most reasonable.
24
Accord, Detroit Po
*1330
lice Officers Ass’n v. Young,
446 F.Supp. 979 (E.D.Mich.1978). The APA standards, which are incorporated by reference into the EEOC guidelines, 29 CFR § 1607.5 (a), were also acknowledged in
Washington v. Davis, supra,
as the professionally recognized method for validating employment tests.
United States v. City of Chicago,
549 F.2d at 430, n.14 . The Court will look to all these guidelines, the case law and the witnesses’ testimony in attempting to determine whether the batteries are job-related.
In accordance with its general discussion on burden of proof
supra,
the Court holds, based on a reading of
Albemarle Paper
and its progeny, that it is the defendant’s burden to prove that its validity studies are adequate under the law as interpreted by the guidelines or by the courts. In
Albemarle Paper,
the Supreme Court rejected the validation study as “defective” when “measured against” the EEOC guidelines. 422 U.S. at 431 , 95 S.Ct. 2362 . This conclusion is also implied in the Courts of Appeals’ decision in
United States v. City of Chicago,
549 F.2d 415 (7th Cir. 1977) and
Watkins v. Scott Paper Co.,
530 F.2d 1159 (5th Cir. 1976), where those courts found validation studies to be inadequate. Finally, this conclusion is supported by the EEOC guidelines, specifically § 1607.4(b), and the DOJ guidelines generally.
The Court has decided, after reviewing the three studies and the testimony regarding them, that they are not sufficient individually or as a whole to carry defendant’s burden of proving that the batteries are job-related. The defendant has characterized plaintiffs’ criticisms of the studies as “nit-picking,” as indeed some of them are. However, although some flaws found by the Court are individually not such as would defeat the study, taken together they cast such doubt upon the studies’ adequacy that the court cannot rely upon the studies’ results. As the Court found regarding plaintiffs’ initial assignment case, these criticisms, even though simply theoretical in some instances, are sufficient to defeat defendant’s case when it bears the burden of proof.
E.
The Studies Generally
Before going into an analysis of the studies’ shortcomings and case law, the Court first should briefly give the background on the tests and the validity studies. In 1936, USS began a program to train its own crafts workers. In 1940, a young Ph.D., Stanley Seashore, developed the first apprentice battery of three tests. By 1960, the first battery in this case was in use. This consisted of the Wonderlic Personnel Profile, which was intended to test general mental ability; the Bennett Mechanical Comprehension Test, theoretically to measure general mechanical ability; and the Revised Minnesota Paper Forms Board Test (RMPFB), to evaluate ability to visualize and manipulate objects mentally. Dr. Seashore devised a standardization of the three scores, based on a passing level of zero. Each test score was converted and all were summed. Applicants with a total of zero were judged to have passed the battery.
In 1970, the South Works study was undertaken, and the results were published in 1973. David Braithwaite, USS’ director of corporate employment, testified that the validation was begun partially in response to the Union’s pressures for job-related tests, partially in compliance with evolving government regulations and partially in response to the
Griggs
decision, which discussed and condemned the Duke Power Company’s usage of the Wonderlic.
25
The South Works and Fairless I studies were conducted on this 1960 battery.
On November 21, 1973, the battery was changed to reflect the results of the South Works study. The Wonderlic was dropped and was replaced with the Differential Aptitude Test — Numerical Ability (DAT-NA), which was specifically aimed at testing
*1331
mathematical abilities. The Fairless III study was conducted to validate the new battery. In order to pass this test group, an applicant had to receive passing scores on each test individually, rather than the battery as a whole.
All three of the validity studies are “criterion” validity studies. This is one of three methods of test validation recognized by the APA and mentioned in
Washington v. Davis,
426 U.S. at 247, n.13 , 96 S.Ct. 2040, n.13 , 48 L.Ed.2d 597 . A criterion validity study is one using some measure of job performance or success as a standard by which to correlate success on the test. Therefore, if a good test score correlates with success in the job for which the test selects individuals, then the test is valid or “job-related.” In the three studies, the criteria used were grades in classroom apprentice training, and four supervisory ratings of on-the-job training after an average of one year in the apprentice program.
F.
Samples
The three tests were performed on different samples of the apprentices. The South Works sample was the largest, consisting of 142 apprentices (91 white, 42 black, nine Hispanics). Fairless I included 122 whites, five blacks and one Hispanic. Fairless III was the smallest group studied, consisting of 45 whites, two blacks and one Hispanic. All of these were persons who were members of the apprentice program and thus had been selected out by the test battery.
Plaintiffs argue specifically that the South Works sample is unrepresentative because it is a concurrent study, which compares tests given to those already on the job with their performance, as opposed to a predictive study, which compares applicants’ results with their later job performance. In
Albemarle Paper,
the court criticized that validity study since it dealt only with job-experienced workers. However, the Court finds that in the wake of that opinion, the courts have split on the appropriateness of concurrent validity studies. The EEOC guidelines appear to sanction them, as was observed in
League of United Latin American Citizens v. Santa Ana,
11 EPD ¶ 10,818 at 7429. Courts have accepted use of concurrent studies, as in
City of Chicago,
549 F.2d at 433, n.21 , while noting that the predictive model is preferred.
See also
APA Standards at 26. In
Vulcan Society of N. Y. Fire Dept. v. Civil Service Comm’n.,
490 F.2d 387 (2d Cir. 1973), that court hinted that it found predictive studies to be more probative, but refused to limit the trial court to use of one method over another. Even Dr. Kirkpatrick conceded that a concurrent study is professionally acceptable. However, some courts have carried their preference for predictive analysis to rejection of concurrent studies.
United States v. Georgia Power Co.,
474 F.2d 906, 912 (5th Cir. 1974);
Markey v. Tenneco,
439 F.Supp. 219 (E.D.La.1977).
This Court will choose what if sees as the middle ground enunciated in
Santa Ana, supra
at 7428. There, the court relied on plaintiffs’ expert in this case, Dr. Kirkpatrick. The evidence was very different regarding the
Santa Ana
test than has been presented on the USS battery. In
Santa Ana,
Dr. Kirkpatrick testified that many of the test questions were knowledge questions, and that “those people with a year’s experience on the job would as a matter of course be in a better position to answer those forty-five items than unexperienced applicants.” The court there concluded that where a test “placed a premium upon experience,” a sample of experienced employees could not be representative of applicants. This is what this Court believes is the true meaning of the
Albemarle Paper
language.
Here plaintiffs have not presented any such affirmative evidence to show that experience helps an applicant pass the test battery. Dr. Kirkpatrick did not so testify. The South Works study contained a sample of applicants, whose mean scores were lower than those of the apprentices. However, no one testified that these differences were statistically significant. From the lack of any expert testimony on these facts, the Court must assume that the importance of job experience that Dr. Kirkpatrick found in
Santa Ana
was not present here, and that the differences in mean scores were in fact not significant statistically. Therefore,
*1332
on the basis of the use of a concurrent study method, the Court will not hold the South Works sample unrepresentative.
Plaintiffs also argue that the three studies’ samples do not conform with the guidelines’ requirement that the samples studied be racially “representative” of the applicant pool to whom the test will be administered. The Court concludes that under the EEOC or DOJ guidelines the samples were improper on a racial basis. Section 1607.5(b)(1) of the EEOC guidelines requires that the sample be “representative of minority groups currently included in the applicant population,” where the test is given to persons already on the job. This applies to the South Works study, as a concurrent validity study. The sample there was over one-quarter black, but there is no indication that this figure was “representative” of the applicant pool at South Works, where the apprentices were 36% black. The two Pairless studies, which were predictive validity studies, were approximately four percent black. Defendant has no evidence of the number of blacks in the apprentice program at Fairless in 1975, nor of the number in the candidate group. Plaintiffs’ evidence showed that in 1968 and 1969, the apprentice program was 2.3% black. The EEOC section requires that predictive studies have samples representative of the minority population available.
26
Similarly, the DOJ guidelines, § 12(B)(4), state:
“The sample subjects should insofar as feasible be representative of the candidates normally available in the relevant labor market for the job or jobs available, and should insofar as feasible include the racial, ethnic and sex groups normally available in the relevant job market.”
The DOJ guidelines state that it is desirable
27
for the study to describe how the research sample compares with the racial composition of the relevant labor pool. § 13(bX6).
The Court has not been supplied with any information in the studies of the racial composition of the normal applicant pool. If the Court takes the available information on the number of apprentices in the program and assumes that blacks apply to the program in at least the same percentage as they are present in it, the South Works sample is seriously underrepresentative and the Fairless studies are somewhat overrepresentative. However, since this is merely speculative on the Court’s part, it does not decide the question of the racial representativeness of the sample.
The DOJ guidelines specifically do not require an employer to hire or promote persons for the purpose of being able to conduct a study. § 12(B)(1). Certainly, if there were not enough blacks to make a representative sample feasible, thi3 Court would not require it. At South Works, where the appearance of serious underrepresentation is most convincing, blacks were present in the apprentice program in large numbers. Under the EEOC guidelines, § 1607.4(c), it is the responsibility of the person claiming the absence of sufficient minority samples “to positively demonstrate evidence of this absence.” Furthermore, the requirements of a racially representative sample are described as “minimum standards” which “must be met in the research approach and in the presentation of results ...” 29 CFR § 1607.5 (b). In the South Works study, this burden was not met. Furthermore, in the other two stu
*1333
dies, the company did not put forward evidence that the sample was racially representative. Since the evidence upon which the Court might infer that the samples were or were not proper is absent from the record or else greatly removed in time from the two Fairless studies, this casts great doubt on the propriety of the samples.
Looking at the evidence which implies that the South Works sample is racially underrepresentative, and the lack of any contrary information or evidence that it was not technically feasible to have a representative sample, the Court concludes that defendant has not met its burden on that study. Since the only evidence bearing on the propriety of the Fairless samples is from 1968-69 and the studies were performed in 1975, the Court does not find that this evidence alone meets defendant’s burden of proving that it has met the guidelines.
Albemarle Paper,
422 U.S. at 435 , 95 S.Ct. 2362 . Since the Court concludes from the evidence, or lack of it, that the Company has not met the guidelines as a whole on this issue, and it finds that they are reasonable requirements for such studies, it must hold that the samples are not appropriate on a racial basis.
United States v. City of Chicago,
385 F.Supp. 543 (N.D.Ill.1974).
G.
Job Analyses
In order to conduct a proper criterion-related study, there must first be a proper job analysis to determine appropriate measures of job performance. These job analyses are required so that the study’s author may select the most important behaviors or measures of job performance for correlation to the test results. In
United States v. City of Chicago, supra,
the appellate court rejected a study which had no job analyses in it. In
James v. Stockham Valves,
that appellate court sent a study back to the district court for further findings on the adequacy of the job analyses. The EEOC guidelines require “careful job analysis.” 29 CFR § 1607.5 (b)(3).
See also
DOJ guidelines, § 12(B)(2).
In the three studies at bar, USS has not developed any specific job analyses for use in the validation studies. Instead, the authors have adopted existing corporate job descriptions and apprentice training syllabi. The Court finds first that the South Works job analysis is clearly inadequate. It is important to remember that all three of these studies seek to correlate scores on the apprentice test battery with performance at the end of a year of training and classroom instruction, rather than to ultimate performance as a journeyman craftsman. Dr. Ramsay relied on two documents as his job analyses. First, he incorporated the syllabi of the apprentice classroom training. However, these do not contain any description of each course; it is merely a listing of each course to be taken. Apprentices are to take 16 different courses in about 200 hours. There is no designation of the time for each, or the relative weight of each course within those lists. There is also no indication as to whether these hours are all to be completed in the first year of the apprenticeship.
28
The wiremen, along with four other electrical crafts workers, are to take an unknown number of hours of “AC and DC Fundamentals.” That appears to be the only first-year classwork for those crafts. Only the roll-turner courses were broken down individually by hours and year. The Court does not find that these are adequate descriptions of the first-year apprentice course work. Assuming that the Court could ascertain from the course titles what each one covered, the Court is still totally in the dark as to how much is covered the first year and the relative importance of each course.
Even if this coursework analysis were adequate on the South Works study, there is no analysis of the first year on-the-job training. Dr. Ramsay included in the study a copy of the corporate master Job Description and Classification (JDC) manual describing the journeyman position. First, a job “description and classification” is included. This contains a few sentences on: primary function, tools and equipment, ma
*1334
terials, source of supervision, persons supervised, and working procedure. Second, a job “classification” is included. This is a list of 12 categories, ranging from level of training needed for the job to the externalities of the job. These are each assigned a numerical rating, which are totalled to compute the job class, which sets the worker’s pay rate. Neither the descriptions or classifications from the JDC indicate which skills are expected to be mastered by an apprentice by the end of the first year. Indeed, the JDC does not appear to have any relation to an apprentice’s work at all. The Court finds that this information, while it may constitute a superficial description of a journeyman’s work, certainly does not constitute an analysis of a first-year apprentice’s job.
Therefore, it is clear that the South Works study does not contain a “careful job analysis” of the job studied, that of a first-year apprentice. The course outlines are mostly uninformative and there is no information regarding the on-the-job work. Therefore, as in
United States v. City of Chicago,
the Court could reject the South Works study as inadequate on the lack of proper job analyses alone.
For the Fairless studies’ job analyses, Dr. Wolz included not only excerpts from the JDC manual, which are irrelevant to the apprentice program, but also the USS Apprentice Training manual. This is a detailed description of 14 apprenticeship programs.
29
This information is broken down into three areas: trade analysis, job performance and related instruction. Again, the only descriptions of the first two elements is that which an apprentice should know at the end of his full apprentice term of three or four years. These read like a final exam for the apprentice program. To term these listings as job analyses of first-year apprentices is as inappropriate as judging a first-year law student on results of a bar examination, if taken at the end of the first year. Certainly, the law student could use some of his knowledge and skills acquired during his first year, but it would not be an accurate reading of first-year performance, because it would be beyond his training. The Court cannot accept these “final exams” as descriptions or analyses of on-the-job work of the first-year apprenticeships. On the classwork issue, the Court has again been supplied with a bare list of courses taken, with no indication of how much is covered in the first year. Without some indication of the relative importance of each, the Court is not really given an “analysis” of the apprentice classroom work. In
Watkins v. Scott Paper Co.,
job analyses were made by a study’s author by observing the work at the mill. The court of appeals, which did not have the analyses available (they were either lost or destroyed) noted that the district court could have determined from the evidence what “particular skills” were needed. Here, there is no evidence that any participant in drafting the studies has observed first-year apprentices, although apparently the authors did observe crafts workers. Also, there is no basis on which the court may determine any particular skills needed by the apprentices-in-training. Therefore, on the basis of these inappropriate analyses, the Court could also reject the two Fairless studies on this ground alone.
Since the job analyses are either completely deficient or unrelated to the first-year apprentice work, the Court could stop its analysis of the validation studies at this point. However, in order to develop a full record, and to complete its “probing judicial review” of the studies, the Court will continue its findings of facts and conclusions of law.
H.
Pooling the Crafts
Perhaps one reason why the job analyses are inadequate and the authors of the three studies could not write their own is that the samples used contain a large variety of crafts. To the Court’s eye, there is no broad basis of similarity from which a single job analysis could be composed. From bricklayer to electronic repairmen, from welder to rigger, the USS psychologists
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“pooled” the crafts for study. Although defendant’s expert, Dr. Schmidt, opined that this lumping-together of seemingly disparate jobs had no effect on the studies’ outcome, the Court must view this procedure very skeptically.
In other reported cases, such as
Watkins v. Scott Paper, supra,
courts have criticized efforts to generalize all craft skills in a single unit. In
Watkins ,
the defendant relied on an informal, unwritten job analysis by an expert as justification for extending a validation study for three crafts to all maintenance crafts. The court there rejected such attempts, saying “it seems unwise to indulge a presumption, admittedly founded upon expert testimony, that all maintenance crafts require the same job skills and that a test significant or valid for one is valid for another.” 530 F.2d at 1188 .
USS’ “pooling” was also the basis for the arbitrators rejecting the tests as “job-related” under the contract language. They stated:
“(N)o detailed review of the respective 26 separate [crafts] job descriptions is necessary to establish that widely different skills and ability are required among them.” Award, at 32.
They concluded that since the tests were not “developed in light of the specific requirements of [each] given craft,” they could not be job-related to any single craft under the contract’s language.
The EEOC guidelines allow tests validated for one job to be used for another only if there are “no significant differences” between the jobs.
Albemarle Paper Co. v. Moody,
422 U.S. at 432 , 95 S.Ct. 2362 ; 29 CFR § 1607.4 (c)(2). It follows logically that dissimilar jobs cannot be grouped together in a sample for validation. Here, the USS studies include various crafts jobs — 16 in South Works, 12 in Fairless I and eight in Fairless III. Not only are the jobs in each study different among themselves, but the three studies do not all contain the same jobs. Also, there are crafts jobs at Fairless, which were not included in any of the three validation studies.
Proper job analyses are required if a company seeks to use tests for similar jobs hot included in the validation study. In
Albemarle Paper ,
the Supreme Court held that without job analyses, it could not determine whether the jobs were similar. Therefore, the failure of the job analyses undermines any effort to justify this “pooling.” However, even if here the Court were to accept USS’ job analyses as appropriate for apprentices, the conclusion of similarity of apprenticeships in the study is not well-founded. As in
Watkins ,
all the Court really has to support this conclusion is the statements of experts. In each study, the authors made statements that the crafts apprenticeships were similar. However, the evidence cited to support those conclusions reveal mostly dissimilarity.
In the South Works study, Dr. Ramsay did not attempt directly to demonstrate the apprenticeships’ similarities. He simply made a conclusory statement that “based on similarity of first year apprentice instruction” he decided to combine the data. Dr. Ramsay referred to the South Works apprentice classroom outlines as evidence of the alleged similarity. No description was attempted of on-the-job instruction, but he included the Master Job Description and Classification (JDC) ratings for each craft as a journeyman. As the Court held above, these do not inform the Court as to what is included in first-year on-the-job training, which was the subject of the validity studies. Furthermore, since the JDC descriptions are unique for each craft, the Court finds they are no support for Dr. Ramsay’s conclusion of similarity in on-the-job instruction. Therefore, the Court must assume that he based his conclusion of similarity on an analysis of the classroom content. However, after examining each of the course outlines, the Court finds no across-the-board similarities in course content of all the apprenticeships. The apprentice courses break down into two different types: one group requires basic skills in mathematics, print reading and drawing
30
; and the other does not require all
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these skills but requires mastery of fundamentals of electricity.
31
These two different types of apprenticeships requiring different basic knowledge, coupled with the wide variety of other courses offered in the first year, contradict Dr. Ramsay’s conclusory statement of “similarity.”
In the Fairless studies, Dr. William Wolz, the author, stated:
“All apprenticeship programs are similar in the sense that each craft has a period of related technical course instruction, each has a series of job performance requirements that must be performed satisfactorily, and each has a trade analysis requirement which includes knowledge of tools and machines used, materials used and common operations performed.” USS Exhibit 105-2 at 2.
This statement was repeated in Fairless III. To support a conclusion of similarity, the studies referred to the descriptions of course content and on-the-job requirements in the corporate Apprentice Training manual. The Court has performed an analysis of the classroom course content in Table 1 which reveals minimal similarity in content. The 13 different apprenticeships included in the two studies share only two subjects— print reading and practical arithmetic. The differences in basic courses taught far outweigh the similarities. Therefore, the “similarity” is not in the classroom training. Also, the required on-the-job trade knowledge and skills reflected in the Apprentice Training manual vary so widely that the Court cannot even begin to compare them. Dr. Wolz’s conclusion resolves itself to this: all apprentices must have classroom knowledge, on-the-job knowledge and specific trade skills, but the content of these three elements varies significantly.
32
To say that such a statement meets the “similarity” requirement of the guidelines would be to reduce it to a meaningless statement. The Court interprets the guidelines as requiring content or skill similarity in order to combine jobs for validation. Since the various apprentice jobs do not reflect any such singularity or commonality of content, it would appear that “pooling” would not be proper.
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The Board of Arbitration, in considering USS’ testing program also noted the differences between the crafts that militated against “pooling.” The arbitrators observed that some crafts, such as painter, required far less hours of training than others. “At one extreme perhaps, in terms of skill and training requirements, are the Painter and Coremaker jobs while the Electronic Repairmen and Toolmaker jobs are at the other extreme.” Award at 32.
However, Dr. Schmidt presented evidence which indicated that this “pooling” problem was theoretical only. He performed three statistical analyses which he said supported a proposition that the “pooling” did not affect the results of the studies. These three analyses were designed to show that there were not statistical inter-craft differences in validities, and that the results were not inflated or manipulated by this grouping. These analyses were buttressed by two sub-samples in the Fairless I study, in which the test scores of both millwrights and combined electrical crafts correlated to classroom grades and potential performance. These validity similarities indicate that the distinct differences in the crafts’ content may not reflect themselves in varying levels of job-relatedness.
Dr. Wolz, in the Fairless III study, acknowledged that there were differences in the crafts. He said that separate validation studies were then underway for the different apprenticeships. Two years elapsed between that promise and the filing of defendants’ pretrial statement with these “pooled” validations. It appears to the Court that USS could have presented stronger evidence supporting the “pooling,” such as some individual validity studies, than Dr. Schmidt’s theoretical reconstructions. The Court is impressed with his expertise and his analyses. However, the failure to show any similarity of job skills, under the guidelines, is still most troublesome. Therefore, although the Court would not base its ultimate decision as to those crafts included in the study solely on this issue, the Court will consider the “pooling” as a weakness in the validity studies. This doubt might have been conclusively rebutted by post-1975 validations conducted for each craft, but USS chose not to do so. For the Fairless crafts jobs not included in any validation “pool,” the Court holds that the test battery has not been validated. This failure to include those crafts is conclusive against USS, since the Court has rejected the conclusory evidence of all-craft similarity. Furthermore, it is clear that the tests have not been validated as to use in Metallurgy and Inspection. Judgment on those jobs will clearly be for plaintiff.
I.
Transportability
Both guidelines allow for use of studies “borrowed” from another unit, such as the South Works study, under certain conditions. The EEOC guidelines, in § 1607.-4(c)(2), allow one plant to use another’s study where “no significant differences exist between units, jobs and applicant populations.” The DOJ guidelines permit cooperative use of a validation study, under § 6(b), if “the studies pertain to a job which has substantially the same major job duties as shown by appropriate job analyses.” Psychologists call this “transportability.”
Under both guidelines, the inadequacy of the job analyses in the two plants’ studies is a fatal flaw. In
Albemarle Paper ,
the Supreme Court held that the lack of job analyses meant that there was “no basis” for concluding that there were “no significant differences” between jobs under § 1607.-4(c)(2). 422 U.S. at 432 , 95 S.Ct. 2362 . The DOJ guidelines, therefore, explicitly require job analyses to be the bases for determining if jobs in the two plants are similar. Here, where the Court has rejected the job analyses as inadequate, there remains no competent basis for comparing the two studies.
If, however, the Court were to accept the job analyses as adequate, and to assume that the JDC excerpts describe apprentices as well as journeymen crafts workers, there is still a major problem. Although there are variations in the apprentice classroom requirements between the South Works and the Apprentice Training syllabi, the Court is willing to accept the company’s argument that apprentices for each craft at any USS plant are similarly trained. The evidence
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showed that a crafts position is “standard-rated.” Its job description is part of the industry’s Basic Labor Agreement and cannot be altered at the local level. David Braithwaite, USS’

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2124552. Public record. Not legal advice.