Smith v. United Brotherhood of Carpenters & Joiners of America

KEITH, Circuit Judge,

concurring specially.

The majority opinion concludes that the judgment of the district court should be reversed and this case remanded for further proceedings. I agree with the majority’s reasons for reversing the judgment of the district court. I cannot agree, however, with the conclusion that, on remand, the district court can consider post-complaint statistics concerning the entrance examination. Accordingly, I write separately to address this issue.

The plaintiffs are a class of unskilled, partially skilled and skilled blacks in the Toledo, Ohio metropolitan area who seek employment as carpenters. On April 28, 1975, the plaintiffs initiated this class action alleging that they were denied entry into the carpenter trade in violation of Title VII, 42 U.S.C. § 2000e et seq. The defendantsappellees are four local carpentry unions, the international union, the collective bargaining agent for the locals, and a joint contractor-union apprenticeship council. See ante at 165-166. At a bench trial, pre-complaint and post-complaint statistics were used by all parties. The district court held, inter alia, that the entrance criteria did not discriminate against the plaintiff class. In so holding, the district court relied heavily on post-complaint statistics concerning the following: 1) the number of minorities referred to various contractors by the Toledo Joint Apprenticeship Council; and 2) the percentage of blacks in the defendant local unions.

*169 The majority opinion addresses the issue of whether the defendants’ entrance tests had a discriminatory impact on the plaintiff class. The opinion notes that “[w]ith respect to the entrance tests, ... the District Court failed to review critically the probative evidence before it.” The court also concludes that the district court “erred when it dismissed all of [the plaintiffs’] examination evidence on the ground that their experts’ sample size was too small.” Thus, I agree that a remand is necessary.

The opinion further concludes that on remand the district court may properly consider post-complaint evidence concerning the entrance examination. The majority states:

Finally we note that the statistical data is fragmented and that both sides have attempted to prove their case by using both pre- and post-complaint figures. Therefore an exception to the general rule excluding post-complaint evidence is warranted, and hence the court may properly consider all valid statistics. Yet this approach must be undertaken with an eye for post-complaint data generated under the pressure of the legal action. See Rice v. Gates Rubber Co., 521 F.2d 782 (6th Cir. 1975).

I cannot agree with Judge Martin’s analysis. It is well settled that a defendant’s affirmative action efforts which occur after the filing of a complaint have no bearing on the question of whether the defendant’s earlier actions and policies violated Title VII. Rice v. Gates Rubber Co., 521 F.2d 782 (6th Cir. 1975); Hameed v. International Association of Bridge Workers, 637 F.2d 506 , 512 n.7 (8th Cir. 1980); Williams v. DeKalb County, 577 F.2d 248 (5th Cir. 1978); Donnell v. General Motors Corp., 576 F.2d 1292 , 1295 n.3 (8th Cir. 1978); Rich v. Martin Marietta Corp., 522 F.2d 333 (10th Cir. 1975); Jones v. Tri-County Electric Cooperative, Inc., 512 F.2d 1 (5th Cir. 1975); Parham v. Southwestern Bell Telephone Co., 433 F.2d 421 (8th Cir. 1970); and United States v. International Brotherhood of Electrical Workers, 428 F.2d 144 (6th Cir.), cert. denied, 400 U.S. 943 , 91 S.Ct. 245 , 27 L.Ed.2d 248 (1970). See International Brotherhood of Teamsters v. United States, 431 U.S. 324, 341-2 , 97 S.Ct. 1843, 1857-58 , 52 L.Ed.2d 396 (1977). See generally B. Schlei and P. Grossman, Employment Discrimination Law at 1181. Therefore, neither parties’ post-complaint statistical evidence is relevant in determining whether the defendants’ policies or conduct prior to the filing of the suit violated Title VII.

Apparently, the court relies heavily upon the fact that both the plaintiff class and the defendants attempted to prove their respective cases with pre-complaint and post-complaint evidence. The Federal Rules of Evidence govern the admissibility of evidence in federal courts. These rules cannot be relaxed by the mutual consent of the litigants. Thus, the fact that a party sought to admit evidence inadmissible under the rules has absolutely no significance in a determination of whether the federal rules permit the court to consider that evidence. For similar reasons, I do not think that any party’s attempt to use post-complaint evidence is probative or relevant to the issue of whether racial discrimination occurred before the complaint was filed.

A more compelling reason exists for prohibiting the district court from considering post-complaint evidence in deciding whether a defendant has violated Title VIL “A principal purpose of Title VII is to induce voluntary race-conscious affirmative action”. Stotts v. Memphis Fire Department, 679 F.2d 541 (6th Cir. 1982). Reliance on evidence of affirmative action policies implemented after the filing of a complaint may frustrate this laudable goal. A fact finder may utilize post-complaint evidence to erroneously establish a Title VII defendant’s pre-complaint liability. In this case, the court below found that the defendants did not violate Title VII. It is equally possible, however, that a fact finder could interpret a defendant’s post-complaint affirmative action efforts as persuasive evidence that the defendant’s pre-complaint actions and policies were in violation of Title VII. Such an interpretation would deter voluntary, albeit belated, affirmative action. Similar considerations underlie the prohibition against ev *170 idence of subsequent remedial measures contained in Fed.R.Evid. 407. 1

Post-complaint evidence of a defendant’s voluntary affirmative action policies or actions may be relevant in fashioning a remedy once Title VII liability has been established. Rice v. Gates Rubber Co., 521 F.2d at 785 ; Williams v. DeKalb County, 577 F.2d at 256 ; Donnell, 576 F.2d at 1298 n.11; Hameed, 637 F.2d at 512 n.7. See generally Employment Discrimination Law, supra at 1181. A court’s reliance on belated affirmative action efforts in fashioning an appropriate remedy will not frustrate the goal of voluntary compliance with Title VII. In deciding what relief is appropriate, the district court may properly consider any existing voluntary affirmative action policies.

The present record appears to be adequate for the district court to determine whether there has been a violation of Title VII. However, assuming arguendo that the present record is inadequate, the district court, on remand, may conduct additional fact finding.

Accordingly, I would allow the district court to consider post-complaint evidence in fashioning an appropriate remedy, but not in determining whether Title VII was violated before the filing of the complaint.

. Fed.R.Evid. 407 provides:

Rule 407. Subsequent Remedial Measures

When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence or subsequent measures when offered for another purpose, such as proving ownership, control or feasibility of precautionary measures, if controverted, or impeachment.

Rule 407 is based on at least two considerations:

“[First,] the conduct is not in fact an admission, since the conduct is equally consistent with injury by mere accident or through contributory negligence. [Second,] the other, and more impressive, ground for exclusion rests on a social policy of encouraging people to take, or at least not discouraging them from taking, steps in furtherance of added safety. Advisory Committee Notes to Fed.R. Evid. 407.