Marsh v. Eaton Corp.

CORNELIA G. KENNEDY, Circuit Judge,

dissenting.

I respectfully dissent from that portion of the Court’s Opinion reversing in part the judgment of the District Court and would affirm its judgment in its entirety.

The District Court held that the plaintiff class had failed to carry its burden of establishing a prima facie case of discrimination in initial job placement during the relevant period. It found that the statistical variance in initial placement between inexperienced male and inexperienced female hires was insignificant. I would hold that the finding is not clearly erroneous.

The only credible evidence that supports plaintiff’s case is a single statistic. That statistic is the failure to place inexperienced women and the placement of inexperienced men in two laborer positions, four material handler positions, one slotter-trimmer position, and one wheelabrator position; a total of eight positions filled over four years. The Supreme Court has recognized that it may be error for a court to ignore the smallness of a sample in considering statistics. Mayor v. Educational Equality League, 415 U.S. 605, 621 , 94 S.Ct. 1323, 1333 , 39 L.Ed.2d 630 (1973) (The Supreme Court reversed the court of appeals for ignoring the district court’s “well founded” concern for the validity of a thirteen person sample). See also, Eubanks v. Pickens-Bond Construction Co., 24 F.E.P. cases 897, 900-904 (8th Cir. 1980).

Moreover, statistics do not exist in a vacuum. “[Tjheir [statistics’] usefulness depends on all of the surrounding facts and circumstances.” Teamsters v. United States, 431 U.S. 324, 340 , 97 S.Ct. 1843, 1856-57 , 52 L.Ed.2d 396 (1976). There were significant other circumstances here which the District Court could properly consider in determining that this small number of placements did not make out a prima facie case. Under the bid procedures at Eaton each of these eight jobs were open to the members of plaintiff class, which consisted of present and former employees. No positions were filled by new hires unless the present employees failed to bid. The slotter-trimmer position as well as some of the laborer and material handler positions were in the same departments in which substantial number of females were employed so that they could bid on these jobs without losing seniority. They chose not to do so for reasons plaintiff has not explained.

Perhaps most important, there was no evidence and indeed no claim that any woman was ever refused employment as a laborer, material handler, slotter-trimmer, or wheelabrator. Nor was there a claim or evidence that any member of the class now or at any time wished to fill one of these *331 jobs. Although plaintiff class complained of the initial job placement of inexperienced female employees as junior inspectors or machine tenders, it does not appear that it was complaining of the failure to place inexperienced females as material handlers or laborers. In the absence of a class member who now seeks or has ever sought to be a laborer or material handler or was prevented or discouraged from applying for such a job, what relief would the court afford? Would it order a female employee to transfer to one of these positions, something female employees could have done at the time the position was filled?

Moreover, there is at least some evidence that between 10/1/76 and 11/30/77 some laborer jobs and wheelabrator and degreaser jobs paid less than some machine tender or junior inspector positions (the jobs in which plaintiff class were employed); e. g., machine tender — $5.98; junior inspector— $5.89; general laborer — $4.88; wheelabrate and degrease — $5.00 (Defendant’s Exhibit C). However, at an earlier date (sometime in 1975 or 1976 (Defendant’s Exhibit N)) laborer’s jobs paid 11 cents an hour more than machine tender and junior inspector. Thus, there is a question whether plaintiff class suffered any financial harm during the relevant period by occupying the machine tender and junior inspector positions. The appendix does not even resolve that question.

The Court is concerned that “[sjtatistical use of the small sample in the manner of the District Court would preclude a smaller employer from being liable for unlawful channeling because only the most egregious and flagrant violations would be reflected through analysis.” However, an employee may establish a prima facie case without statistics. An employee, or applicant, need only prove that he or she belongs to a minority group, was qualified and did not receive a position which was open. McDonnell Douglas Corp. v. Green, 411 U.S. 792 , 93 S.Ct. 1817 , 36 L.Ed.2d 668 (1973). Had there been a class member who was refused one of these eight positions here she could have readily made a prima facie case. Nor is Eaton a small employer. The total number of employees in the instant case was sufficient to be statistically significant. It is only the failure to place women in the job of material handler and laborer which the District Court found not to be statistically significant.

In summary, there is no named or unnamed member of the class who seeks or has sought placement in one of these eight entry level positions and no evidence or claim that any class member was prevented from doing so. Indeed, there is no evidence at all relating to the qualifications or makeup of the pool of applicants when any of these positions were open. There is evidence that class members were given the opportunity to fill these positions by the bidding system but chose not to. In support of plaintiff’s case there is only the naked statistic that no woman was hired to two positions as laborer, four positions as material handler, one position as slottertrimmer and one position as wheelabrator in a four year period (an average of two positions per year). Thus, I would affirm the District Court’s holding that the statistical evidence failed to make a prima facie case of discrimination in that respect. Compare Franks v. Bowman Transportation Co., 424 U.S. 747, 755-756 , 96 S.Ct. 1251, 1259-60 , 47 L.Ed.2d 444 (1976).