Daniel Anderson, Jr. v. Douglas & Lomason Co., Inc., Douglas & Lomason Co., Inc.

JOHNSON, Circuit Judge,

dissenting in part:

The facts here clearly show that there have been scores of individuals who have endured racial discrimination at the behest of Douglas and Lomason (“D & L”). Many of these individuals have been pressured by the president of the company to drop this cause of action “for the good of the company.” Instead of bowing to the company president’s threats of closing the plant and laying off hundreds of people because of this lawsuit, the plaintiffs have stood up for what they believed to be their rights to equal employment. Despite a plethora of evidence which seems to overwhelmingly support the Plaintiffs contentions, the district court found that no racial discrimination occurred. The majority affirms. After carefully reviewing the record, this writer is constrained to dissent.

A. Disparate Impact in Hiring

1. The Law

The most appropriate place to begin an analysis of disparate impact claims is the law. The seminal disparate impact case, Griggs v. Duke Power Co., explained that Congress’ objective in enacting Title VII was to “achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees.” 401 U.S. 424, 429-30 (1971). The Court went on to determine that “practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to ‘freeze’ the status quo of prior discriminatory employment practices.” 401 U.S. at 429-30 , 91 S.Ct. 849, 853 , 28 L.Ed.2d 158 . According to the Court, “good intent or 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 capability.” Id. at 432 , 91 S.Ct. at 854 .

The Court elucidated the proof requirements for disparate impact cases in Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642 , 109 S.Ct. 2115 , 104 L.Ed.2d 733 (1989). It ruled that for a Title VII plaintiff to successfully present a disparate impact claim, he or she must point to a particular employment practice that has created such disparate impact. Id. at 657 , 109 S.Ct. at 2124-25 . The plaintiffs in Wards Cove alleged that the practices in question were, inter alia, nepotism, the creation of separate hiring channels, the practice of preferential treatment in rehiring, and the use of subjective decision making. Id. The Supreme Court concluded that the plaintiffs had properly presented a disparate impact claim by pointing to such practices which, if proved, would support a finding of racial discrimination. Id.

2. Alleged Discriminatory Employment Practices

In the instant case, the district court concluded that Plaintiffs had failed to identify which of D&L’s employment practices adversely impacted African Americans. The majority asserts that the Plaintiffs did, in fact, identify an employment practice — namely, D&L’s policy which requires applicants to complete applications at the plant. However, the majority asserts that such a practice could not justify resort to the disparate impact theory. Maj. op. at 1284.

The record belies the conclusions of both the majority and the district court. The pretrial order, signed by the district court, agreed to by counsel for each party, and filed just over one month prior to the trial, states plainly, “Plaintiffs allege that the defendant company has discriminated against blacks in hiring, both by restricting access to applica *1303 tion forms and by failing and refusing to hire those blacks who are permitted to fill out application forms on the same basis as whites who fill out application forms.” R. at 2590. Restricting access to application forms and using different hiring standards for blacks, as opposed to whites, are both employment “practices” which justify the application of the disparate impact theory to the facts of this case.

3. Anecdotal Evidence

The majority “found” that the “record contains no evidence indicating that D&L’s application procedures affected potential black applicants any differently than potential white applicants.” Maj. op. at 1285-86. Reading the record reveals otherwise. The record quite readily shows that D&L’s application procedures almost exclusively affected blacks. D&L’s expert, Dr. Joan Haworth, testified that the hiring practices initiated by Patty Háynes — specifically the restriction of application forms — caused “wild fluctuations” in the percent of black applicants who were hired. 1 The defense “hung its hat” on this explanation. In its argument to the district court during its Rule 41 motion, D&L’s attorney contended that Patty Haynes’ change in the hiring procedures alone was enough to cause the change in the proportion of black hires from the pre-Grizzard era.

D&L’s — and Plaintiffs’ — contention that Ms. Haynes practice of restricting access to application forms caused the changes in black hires at the Cleveland plant is completely substantiated by the record. 2 D&L and Plaintiffs introduced into evidence dozens of depositions of black individuals who had attempted to obtain, but who were refused, applications from D&L when the company was hiring. Many of the deponents identified black friends and/or family members who were also denied the opportunity to file applications. 3 In all, Plaintiffs identified more than fifty blacks to whom D&L refused applications. The vast majority of these people attempted to obtain applications numerous times. Many of them asserted that they became discouraged and stopped trying to obtain applications. Further, there is no dispute that a great number of them sought to apply for jobs at D&L when the company was hiring. Reviewing this evidence, the majority properly claims that “the black individuals turned away at the gate by D&L guards never saw D&L give any applications to whites seeking employment.” Maj. op. at 1285-86 (emphasis added). However, that finding probably provides little comfort to the blacks who testified that they not only saw whites obtaining applications, but also saw whites being hired at the same time that blacks were being turned away in the personnel office — as opposed to the pate. 4

*1304 One would think — and the law certainly requires — that the restriction of applications would impact on whites equally. However, such is far from the case here. As compared to the two and one-half score blacks who were refused applications, D&L presented the resounding number of three whites who had been refused applications. Although dozens of blacks sought to obtain applications while the company was hiring, not one of the white potential applicants sought an application during such periods.

4. Statistical Evidence

a. The Law

The disparate impact model usually focuses on statistical analysis. Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 987 , 108 S.Ct. 2777, 2784-85 , 101 L.Ed.2d 827 (1988). Statistical data is probative, however, only if it properly compares relevant elements. See Hazelwood School District v. United States, 433 U.S. 299 , 97 S.Ct. 2736 , 53 L.Ed.2d 768 (1977). The “proper comparison [is] between the racial composition of [the at-issue jobs] and the racial composition of the qualified ... population in the relevant labor market.” Wards Cove, 490 U.S. at 651 , 109 S.Ct. at 2121 (quoting Hazelwood, 433 U.S. at 308 , 97 S.Ct. at 2741-42 ). However, where labor market statistics are impossible to ascertain, the Supreme Court has recognized that “certain other statistics — such as measures indicating the racial composition of ‘otherwise-qualified applicants’ for at-issue jobs — are equally probative for this purpose.” Id.

b. The Facts

All agree that the best comparison in this case would be the racial composition of the applicant flow into D&L for general factory jobs as compared with the racial composition of the general factory hires. The district court found that such a comparison is possible. The majority found no clear error in that finding. Both are wrong.

Fewer than two years after the filing of this lawsuit, Patty Haynes testified during a deposition that she started to retain all of the applications after she learned that some employees filed EEOC charges in October of 1984. She explained that she threw away a number of applications just prior to that time, and she was not sure whether she also threw away some of the applications which were filed during the five months preceding the filing of the EEOC charges.

Statistics, which D&L did not dispute, confirm that Ms. Haynes failed to retain all of the applications. Ms. Haynes testified, and the district court found, that she, as a general rule, would accept twelve to fifteen applications per seven hires. This was a fairly constant practice, and once she adopted this practice, she did not deviate therefrom throughout her tenure as personnel manager. The application data which exists after the EEOC charges were filed (October 17, 1984) are consistent with Ms. Haynes’ explanation of her practice: Of the applications on hand, almost forty percent came from unhired applicants. Hence, for every six hires, Ms. Haynes was able to consider ten applicants. The application information for the period prior to the filing of the EEOC charges presents a vastly different picture. Of the applications on hand which were filed prior to October 17, 1984, only twenty-two percent were filed by unhired applicants. Contrary to Ms. Haynes’ explication of her practice of accepting twelve to fifteen applications per seven hires, and contrary to the district court’s acceptance of that explanation, Ms. Haynes would have been required to hire four people out of every five applicants throughout that period.

The difference in the applications is not only substantial, but it is also statistically significant. Dr. Charles Mann, a statistician, testified — and D&L did not dispute — that all things being equal — and according to Ms. Haynes, all things were equal — there were only four chances in one thousand that all of the applications existed. 5 Dr. Mann’s calculation reveals that Ms. Haynes’ uncertainty *1305 about her retention of all of the applications was well-founded. 6

Even if all of the applications were available — and they elearly are not — reliance on the applications would be inappropriate in light of the fact that the company disproportionately restricted black potential applicants’ access to the forms. Barriers and/or practices which deter qualified minorities from applying for jobs impermissibly taints any analysis which employs the use of actual applicant-flow data. Dothard v. Rawlinson, 433 U.S. 321, 330 , 97 S.Ct. 2720, 2727 , 53 L.Ed.2d 786 (1977) (“The application process might itself not adequately reflect the actual potential applicant pool, since otherwise qualified people might be discouraged from applying” because of the alleged discriminatory practices); see Wards Cove, 490 U.S. at 653 , 109 S.Ct. at 2122-23 (“As long as there are no barriers or practices deterring qualified nonwhites from applying ... if the percentage of selected applicants who are nonwhite is not significantly less than the percentage of qualified applicants who'are nonwhite, the employer’s selection mechanism probably does not operate with a disparate impact on minorities.” (emphasis added)). In light of D&L’s restrictions on blacks’ attempts to obtain applications, the true applicant-flow information cannot form the basis of the statistical analysis in this case. 7 Hence, the *1306 district court should have resorted to appropriate proxy information, which the Supreme Court has declared to be “equally probative.” Wards Cove, 490 U.S. at 651 , 109 S.Ct. at 2121-22 .

Plaintiffs proffered seven different standards of availability which served as a proxy for the actual applicant-flow information. Four of those standards were particularly persuasive: 1) the Mississippi State Employment System (“MSES”) referrals to D&L for 1985, 2) the fully registered persons with MSES, 8 3) the number of general factory hires during the four and three-quarter years preceding Mr. Grizzard’s arrival, and 4) the number of people in Bolivar County who are were employed as operators, fabricators, and laborers in factories other than D&L, as shown by the 1980 census. 9

The first standard contains all of the application forms of all interested D&L applicants during the time period in issue which were on file with MSES. This standard is untainted by unfair restrictions on blacks’ ability to obtain such applications. 10 The district court rejected this standard because it was “an extremely small sample.” Interestingly enough, however, the court credited Dr. Ha-worth’s statistical analysis of her “pools” of applications, and each such pool was smaller than the pool in this first standard. 11 The district court’s rejection of this standard is directly antithetical to its acceptance of Dr. Haworth’s pools. In this writer’s view, it is clearly erroneous. Furthermore, this standard provides a rehable barometer of the general D&L applicant flow during the periods in question. Indeed, Dr. Haworth, herself, testified that this standard, though not perfect, was valid. 12 The proportion of black applicants in this standard was 65.6%. When compared with the actual number of blacks hired, the standard showed statistical significance at 8.8 standard deviations. 13

The district court rejected the second standard, claiming that this standard is “heavily weighted” in favor of blacks because of their over-utilization of MSES. Dr. Haworth testified that a national study indicated that blacks in large urban areas generally are more likely to use public employment services than whites. She tempered her testimony with the caveat that she did not know whether this study was applicable to Bolivar County, which is small and rural. Dr. Haworth *1307 never claimed that the difference in the usage of public employment services between blacks and whites was statistically significant or even substantial. She did, on the other hand, testify that there might be only a trivial difference, or even no difference, in the usage of MSES by blacks and whites in Bolivar County.

Dr. Mark Bendick, Plaintiff’s labor economist, testified that a study on the usage of public employment agencies in southern, rural areas — including Sunflower County, Mississippi, a rural county which is adjacent to Bolivar County — revealed that the public employment service usage in southern, rural areas is quite different from such usage in large urban areas. While the study did not compare blacks’ and whites’ usage of employment services in rural areas, Dr. Bendick testified that no study shows that rural blacks use unemployment services at a disproportionately higher rate than rural whites. The district court had no evidence contrary to Dr. Bendick’s testimony on this subject, for the company did not even attempt to dispute the testimony. ■ The district court’s conclusion that the second standard is “heavily weighted” in favor of blacks due to their “over-utilization” of MSES is therefore highly speculative and is not supported by the record. In light of the Supreme Court’s disapproval of a court’s supply of explanations of statistical information which is not supported by the record, 14 this Court should not countenance the judicial activism by the district court. No sufficient reason exists in the record — or otherwise, for that matter— for rejecting the overall MSES registrant information. This, the second standard of availability, reveals that 65% of the MSES registrants who were over eighteen and had none of the earlier-described characteristics were black — just six-tenths of one percent smaller than the proportion of blacks in the first standard. This standard demonstrates statistical significance at 8.5 standard deviations.

The district court ruled that in the third relevant standard of availability, Plaintiffs failed “to take into account the distinct possibility that the hiring rate prior to the period beginning October, 1982, may indeed have been discriminatory in favor of black applicants.” Op. at 18 (emphasis added). Again, the district court improperly supplied reasons for ignoring Plaintiffs’ statistical analysis which no party espoused at any time throughout the trial or during depositions. See supra note 13.

The court further explained that the differences in Patty Haynes’ employment procedures perhaps accounted for the change in employment rates of blacks. The district court’s statement of the obvious is actually a recitation of the disparate impact theory. Its attempt to explain away Plaintiffs’ reliance upon standard three in fact embraces Plaintiffs’ Title VII claim. There is no valid reason for disregarding this standard. Indeed, in light of the district court’s back-door recognition that Ms. Haynes’ practices may have caused the hiring disparities, there is every reason to consider this standard as a valid *1308 reference for a statistical analysis of the disparate impact claim. This third standard, which shows that 64.6% of the hires were black, is just four-tenths of one percent lower than the second standard and equates to 8.3 standard deviations. The consistency of the first three standards is amazing and, in this writer’s view, lends greatly to their credibility and probative value.

The final standard, though rejected by the district court, is much more precise than standards accepted by the Supreme Court in Dothard v. Rawlinson and International Brotherhood of Teamsters v. United States. Those cases compared the make-up of defendants’ employees to the minority presence in the general population. In Dothard , the Supreme Court reviewed Alabama’s penitentiary system for sex discrimination in hiring. The Court upheld the district court’s reliance upon generalized, national statistics which demonstrated that Alabama’s hiring system discriminated against women. Dothard, 433 U.S. at 329-331 , 97 S.Ct. at 2726-28 . Similarly, the Teamsters Court compared the proportion of minority employees with the proportion of minorities in the general, area-wide population. Teamsters, 431 U.S. 324 , 337 n. 17, 97 S.Ct. at 1855 n. 17. The Court in Hazelwood School District v. United States explained that the Teamsters Court’s use of general population figures was “highly probative” because the jobs in question were low-skill jobs, which almost everyone in the population could acquire. 433 U.S. at 308 n. 13, 97 S.Ct. at 2741-42 n. 13. The Wards Cove Court further explicated that “where figures for the general population might ... accurately reflect the pool of qualified job applicants, ... we have ... permitted plaintiffs to rest their prima facie cases on such statistics as well.” 490 U.S. at 651 n. 6, 109 S.Ct. at 2121 n. 6.

The final statistical standard in this case is much more probative than general population statistics, 15 for it hones that number down to the actual number of blacks who are not only in the general population, who are not only in the civilian labor market, but who also are qualified and have shown interest in the general factory-type work at issue in this case. 16 The district court’s basis for rejecting this standard finds no support in the record. The court first spurned this standard because it claimed that a comparison between hired people and unhired people was inherently unreliable. While such a comparison certainly is not perfect, the facts of this ease clearly prove that such a comparison greatly favors D&L, not the Plaintiffs, for the unemployment rate among blacks in Bolivar County at all relevant times has far exceeded the unemployment rates of whites in the county. 17 Hence, the proportion of black-unemployed job-seekers would obviously exceed the proportion of black general factory workers.

The District Court also rejected this last standard because not all D&L applicants have prior production-worker experience. 18 The court noted that many applicants have employment backgrounds in the service or manufacturing industries. While the court’s observation is entirely true, it is, at the same time, completely irrelevant to the issue at *1309 hand — what proportion of applicants at D&L were black, and hence what is a proper standard of availability for this case. Each applicant, regardless of his or her work experience, displayed interest in general factory work, just as those working in production-type jobs displayed such interest. While a comparison of the number of production workers with the number of applicants to service industry or manufacturing jobs would be unpersuasive — since those interested in the latter jobs might have no interest in the former job — the standard here focuses upon the interest which each person, whether worker or applicant, has shown in general factory work, the work at issue in this case. The district court’s rationale for rejecting the final standard entirely misses the boat.

The last standard, which to me is completely valid, shows that 70.1% of the employees in general factory-type jobs in Bolivar County, excluding D&L employees, are black. Statistical significance, at 11.3 standard deviations, plainly shows that, like the other standards, the hiring results during the Grizzard years did not happen by chance. 19 Under any of these standards, it seems abundantly clear that Plaintiffs have successfully made out a prima facie case of race discrimination in D&L’s hiring practices, 20 and the district court so found during trial.

5. Conclusion

D&L, in essence, conceded Plaintiffs’ disparate impact 21 case in hiring by agreeing that the changes Patty Haynes made in her hiring practices — namely, her restriction of application forms — resulted in the significant change in the proportion of blacks hired. Even without such a concession, all credible evidence demonstrates that D&L’s hiring during the Grizzard era was discriminatory with respect to race. This Court should therefore reverse on this issue and remand for the district court to decide damages.

*1310 B. Promotions

1. Proper Labor Pool

Like the district court’s analysis and the majority’s review of the hiring data, this writer finds that the analysis and review of the promotion statistics are greatly misleading. The majority, quoting Lewis v. National Labor Relations Board, correctly sets forth the proper statistical framework upon which claims of promotion discrimination claims must be based: “In establishing an inference of discrimination from statistical evidence, the ‘required comparison [is] to a qualified pool of employees presumptively eligible for promotion.’ ” Maj. op. at 1290 (quoting Lewis, 750 F.2d 1266, 1275 (5th Cir.1985) (emphasis in original)).

Unlike this case, in both Lewis , which this writer authored, and Pouncy v. Prudential Insurance Company of America, to which the majority refers, there were minimum objective qualifications for promotions which precluded comparison of the proportion of minorities promoted to the proportion of minorities in the overall work force. The promotion pool was smaller than the entire work force. In Pouncy, only those employed at level eleven could be promoted to level twenty. Pouncy, 499 F.Supp. 427, 454 (S.D.Tex.1980), affd, 668 F.2d 795 (5th Cir.1982). Similarly, in Lewis , only employees who had reached the GS-12 field examiner level or the GS-13 field attorney level were “presumptively eligible” for promotion. Lewis, 750 F.2d at 1275 . Comparison with the entire work force in those cases was improper, since not all of the employees had reached the required employment level for promotion.

This case is quite different. Here, every production worker is “presumptively eligible” for promotion to the leader positions in question, and every leader is “presumptively eligible” for promotion to the foreman positions in question. There is no educational, skill, or other objective requirement for promotion to those positions at D&L. 22 With the exception of the attendance record, 23 all of the “qualifications” which the D&L supervisors thought were important were entirely subjective. 24 An unsupported claim that blacks *1311 possess these subjective characteristics at a substantially lower proportion than whites is, in itself, a discriminatory claim in which the district court apparently finds solace.

D&L’s entire work force, which was approximately 70% black, is the proper pool to which the promotions should be compared, 25 for that is the pool from which promotions came. 26 At no time have promotions approximated 70%. Interestingly enough, however, prior to Mr. Grizzard’s arrival at D&L, 63.8% of the promotions went to blacks. That number plummeted to 22.7% 27 during his tenure as plant manager and returned to 63.7% after Plaintiffs filed this lawsuit. When asked why the number of black promotions had declined so drastically, neither Mr. Griz-zard nor any supervisor so questioned could offer an explanation.

Contrary to the majority’s reliance on the fact that a number of blacks had turned down promotions, Byron Kyle, supervisor over one half of the plant, Howard Watson, production manager for the Cleveland plant, and Charlie Lofton, supervisor over the press area in the plant, all testified that prior to Mr. Grizzard’s arrival, blacks and whites turned down promotions. They asserted that the number of people who turned down such promotions did not change during Mr. Grizzard’s tenure or after his departure. In fact, a substantial number of blacks who turned down promotions during the Grizzard years had also turned down promotions during the pre-Grizzard years. These employees were repeatedly offered promotions. 28 Based upon such testimony, blacks’ rejection of promotions could not be the reason for the stark decline in black promotions. Indeed, no supervisor ever even intimated that such was the case.

2. Comparison With Supervisors in Bolivar County

Dr. Haworth and the district court agree that a comparison of the promotions at D&L with the percentage of blacks in supervisory positions in Bolivar County is more relevant than a comparison of the promotions to the *1312 applicable labor pool. Such a comparison is highly questionable.

According to Dr. Haworth, most of the supervisory positions to which she compared D&L’s promotions were precision craft positions. The “bulk” of those positions were held by craftsmen and craftswomen. Dr. Haworth testified that blacks held only 33.4% of the precision craft jobs in Bolivar County. On the contrary, 70.1% of the general factory jobs belonged to blacks. To therefore compare the leader and foreman positions to precision craft, as opposed to the general factory pool from which the promotions in question came is like comparing apples to watermelons. The comparison is simply irrelevant. 29

3. Conclusion

A proper analysis of this issue reveals that D&L improperly considered race in its promotion practices. D&L did not provide a race neutral reason why, when 70% of the promotion pool is made up of presumptively qualified blacks, only 22.7% of the leader/foreman promotions went to blacks during Mr. Grizzard’s tenure — a number which had dropped from 64.8%. It appears that the company tried to make the promotion disparity disappear. Because there is no legitimate explanation for the decrease in minority promotions, Plaintiffs must prevail. This Court should reverse and remand for' a trial on the damage issue here.

C. Temporary Upgrades to Rack/General Maintenance 30

1. Qualified Employees

The majority’s review of the temporary upgrade evidence is also questionable. The majority’s contention that welding experience was needed for both general maintenance and rack maintenance positions is completely refuted by Wallace Bailey, the assistant supervisor over the maintenance department. Bailey testified at trial that one who sought a temporary upgrade needed to have a mechanical background, have a familiarity with electrical equipment, have the ability to understand written and verbal instructions, and for rack, as opposed to general, maintenance positions, possess welding experience. Bailey averred that one would not be disqualified if he did not possess all of these qualities. In fact, he asserted that he would not even exclude a person simply because that person could not weld. Nevertheless, the majority contends that no blacks were qualified for the general maintenance or rack maintenance positions. The evidence appears to be to the contrary. ■

Tommy Hardy: Contrary to the majority’s recitation of the facts, Tommy Hardy did not have “limited” welding experience. To the contrary, Hardy testified that he ran a body shop in which he welded auto parts. He started the body shop in 1976 or 1976, and it was still in operation at the time of trial. Hardy’s welding experience was therefore very extensive. Hardy averred that the type of welding done at D&L was the same type of welding which he performed in his body shop/ His work in his body shop also revealed that he had mechanical ability. Hardy testified that he informed Lamar Hays and Terry Lamb, supervisors in the maintenance shop, of his interest in temporary upgrades numerous times.

Daniel Anderson: Anderson testified that he had limited welding experience. Howev *1313 er, he asserted that he had substantial mechanical ability. He had taken mechanics classes throughout his four years in high school and had weekly repaired his or other employees’ machines when D&L’s maintenance personnel were unavailable. Wallace Bailey testified that he would be interested in a production worker who could take apart machines, as Anderson could.

Alfred Kemp, Sr.: Wallace Bailey testified during trial that Alfred Kemp, Sr., had an excellent background in maintenance. In fact, prior to James Grizzard’s arrival at the plant, Kemp received both rack and general maintenance upgrades. The district court found that Howard Watson blocked every temporary upgrade which Kemp could have received during the years in question. That finding is unsupported by the record. While Watson testified that he would prohibit Kemp from receiving temporary upgrades if Kemp were needed for his general factory work, Watson conceded that he did not know whether he had blocked any such upgrades during the years in question. Wallace Bailey asserted that he knew of no reason why Kemp was not given a single upgrade from August 1982 to August 1985.

Arthur Perry: According to Wallace Bailey, Arthur Perry was qualified for general maintenance work. However, Bailey could not state a reason why Perry had not been given upgrades prior to the filing of this lawsuit.

2. Statistical Analysis

Absent some other explanation — which the company did not give — D&L’s temporary upgrades reveal grave racial disparities. The majority correctly sets forth the temporary upgrade information in footnote 36. Were the temporary upgrade hours insubstantial, the percentages set forth by the majority in that footnote might not seem consequential. However, the number of hours involved in both the general and rack maintenance upgrades is considerable. During the Grizzard years, white employees were given 1199.4 hours of upgrades in general maintenance. Blacks received just ninety-seven.

In the rack maintenance area, Edward Otto Wolfe, a white employee, received 745 hours of upgrades during the Grizzard pre-suit period. No blacks were awarded such an upgrade during this period. The majority places some import — import which appears to be unsupported by the record — on the fact that Mr. Wolfe was the only person who received rack maintenance upgrades during the Grizzard era. James Grizzard testified in deposition that the maintenance department should not have solely awarded the upgrades to Mr. Wolfe. Likewise, Wallace Bailey asserted that he did not know why Mr. Wolfe was awarded all of the rack maintenance upgrades. The majority’s supply of a reason, albeit an irrelevant and unfounded reason, would appear to be improper. See supra note 13.

3. Conclusion

Why whites received 1199.4 hours of general maintenance upgrades and 745 hours of rack maintenance upgrades when blacks received just ninety-seven hours of general maintenance and no hours of rack maintenance upgrades will likely never be known by this or any other court. In one of his depositions, Mr. Grizzard unequivocally refused to explicate why the company failed to provide everyone the opportunity to compete for temporary upgrades. He refused to provide an explanation even when instructed to give one by D&L’s attorney.

The numbers — and the named Plaintiffs’ protests — speak loudly enough for themselves in the temporary upgrade claim. Only silence comes from D&L. Therefore, this Court should reverse and remand for trial on damages.

D. Conclusion

For the reasons heretofore stated, this writer would reverse and remand.

I dissent.

. Prior to James Grizzard's arrival at the Cleveland plant, 64.6% of those hired for general factory jobs at D&L were black. When Mr. Grizzard became plant manager, that number dropped to 46.5%. After Mr. Grizzard left, the black hires rose to 61.1%.

. Even the district court recognized that Patty Haynes' employment practices may have adversely affected blacks. In discussing the fact that the percentage of black hires dropped significantly during the Grizzard years, as compared with the pre-Grizzard years, the court concluded, "Finally, plaintiffs' analysis in this instance fails to take into consideration the difference in the practices and procedures initiated by Ms. Haynes which were in effect during the Grizzard years and differed substantially from what was done by her predecessor." Op. at 18-19.

. The district court correctly recognized that these statements are hearsay in nature. However, it neglected to recognize that D&L never objected to the introduction of the depositions on that basis or on any basis.

.For example, J.C. Evans, a black man, stated that he followed Bobby Jolly, a white school mate, into the personnel office. He saw Patty Haynes talking to Jolly and a group of approximately ten other white individuals. Mr. Evans could not hear what Ms. Haynes told the white applicants. However, as Jolly started to leave the area, he passed Evans and informed Evans that he, Jolly, had been hired. Patty Haynes told Evans to come back the next day. He left without an application, and when he returned the following day pursuant to Ms. Haynes' instructions, he was told that the company was not hiring.

Likewise, Ms. Lizzie White, a black woman, explained in an affidavit that she visited the personnel office at the same time that Teresa Boswell, an acquaintance who was white, visited the office. Ms. Boswell not only obtained an application, but she was also hired the same day. Ms. White was turned away without an application.

. Notably, when she testified in a sex discrimination case prior to the trial of this case, Dr. Haworth performed a similar analysis which determined the existence of all applications for a certain period of time.

. Dr. Haworth, who had no personal knowledge of the retention of the applications, was the only witness to claim that all of the applications existed. However, she spoke with great diffidence. See, e.g., Trans. Vol. 22 at 1714-15 (“For that period of time [of May 4, 1984 through January, 1985] I have the applications of the nonhired people and the applications of the hired people, as far as I can tell to the extent that they exist.” (emphasis added)); Id. at 1718 (”[T]hese are the pools for which I believe I have the nonhired applications to the extent that they’re available." (emphasis added)).

. Dr. Haworth's statistical analysis is infirm for a number of other reasons, as well. First, when cross-examined by Plaintiffs’ counsel, she admitted that she excluded 11 applications which were undated. (Failing to date an application was not fatal. Patty Haynes hired several people who forgot to place the date on their application.) Nine of those applications came from blacks. Additionally, Dr. Haworth included the application of a white person who sought a general maintenance mechanic position, not a general factory position — the position at issue here. Finally, in her statistical analysis of D&L’s hiring practices for 1984, Dr. Haworth excluded the October-November hiring period. She claimed that the white applicants in that period had greater blue collar and/or manufacturing experience than the black applicants. Patty Haynes, however, testified that prior plant production experience — which none of the white applicants possessed — not blue collar or manufacturing experience, was beneficial for applicants seeking general factory work at D&L. The district court did not adopt this rationale. It was correct in so doing.

The district court erred, however, in substituting its own rationale for the exclusion of the October-November applications. The court reasoned that because blacks began to file EEOC charges of racial discrimination in October 1984, the black community conspired to flood D&L with applications of black individuals so as to increase the black proportion of the applicant flow. The court's reasoning has no basis in logic or in the record.

Initially and importantly, the Supreme Court has discommended courts’ supply of explanations for statistical disparities when those explanations neither have support in the record nor constitute valid judicial presumptions. See infra note 13; see also Castaneda v. Partida, 430 U.S. 482, 500 , 97 S.Ct. 1272 , 51 L.Ed.2d 498 (1977). Speculative inferences and suppositions proffered by courts, as opposed to parties, are improper and impermissible. Mayor of Philadelphia v. Educational Equality League, 415 U.S. 605, 619, 621 , 94 S.Ct. 1323, 1332-33, 1333-34 , 39 L.Ed.2d 630 (1974).

In this case, the court’s explication of its rejection of the October-November data finds absolutely no support in the record. There is no testimony, no suggestion, no intimation in the record which remotely implies that numerous blacks applied for jobs at D&L to affect applicant-flow data. There is not even a suggestion that a greater proportion of blacks than normal applied for general factory positions in October 1984. In fact, when specifically informed about the number of applications filed by blacks and whites in October 1984 and her selection rate of those applicants, Ms. Haynes testified during her 1987 deposition that she knew no reason other than race for the disparity in hiring. Mr. Griz-zard similarly testified in his deposition that he knew of no reason why the hiring rates for October 1984 were so favorable toward whites. Dr. Haworth testified that the EEOC investigation of D&L did not make the October 1984 applicant-flow data unreliable. She specifically stated that those numbers should not be discarded because the EEOC had been brought into D&L hiring matters. Finally, Dr. Haworth testified that the applicant-flow data did not "fluctuate wildly” in 1984. The availability of blacks, according to Dr. Haworth, was constant.

The district court's explication for his rejection of the October 1984 applications — that once *1306 blacks heard of the charges of discrimination at D&L, they flocked to apply for positions with the company' — is also illogical. Among other things the district court’s explanation assumes that the black applicants' — people who applied for jobs which did not even require a high school education — understood that in proffering statistical proof in a disparate impact case, plaintiffs would want to have a greater minority presence in the applicant flow. According to the district court, Oliver Robinson, a man whom both parties stipulated was a paranoid schizophrenic, encouraged blacks to apply so as to skew the applicant flow. These unsupported suppositions assume way too much, and in my view constitute clear, indeed patent, error.

. This standard excluded any individuals who were younger than 18 years old and who had any one of seven characteristics which might imply that they were not genuinely interested in employment. Individuals were excluded if they received welfare benefits or Food Stamps, if they were applying for Food Stamps, if they were in the WIN Project or the Summer Youth program, if they were migrant workers or had previously been coded as a migrant worker, or if they were receiving unemployment insurance.

. My first and second relevant standards correspond to the Plaintiffs’ and the district court’s second and third standards of availability. My third and fourth standards correlate to their sixth and seventh standards.

. According to some hlack deponents, MSES would not permit them to file D&L applications. However, the MSES restrictions, though apparently only affecting blacks, are, in no way, as pervasive as D&L’s restrictions.

. MSES referred 92 applicants to D&L. However, the largest application pool which Dr. Ha-worth analyzed contained 80 applicants. The second largest pool contained just 57 applicants. The other pools, in descending order contained 48, 43, 42, and 18 applicants.

. Although she had trouble including certain MSES referrals ("OJT’s”) in the pool, Dr. Ha-worth testified that she was not recommending that the OJT referrals be excluded from this standard.

. The Supreme Court has reiterated numerous times that standard deviations greater than two or three suggest suspect activity. See Castaneda v. Partida, 430 U.S. 482 , 496 n. 17, 97 S.Ct. 1272 , 1281 n. 17, 51 L.Ed.2d 498 (1977); Hazelwood, 433 U.S. 299 , 312 n. 17, 97 S.Ct. 2736 , 2743-44 n. 17, 53 L.Ed.2d 768 (1977).

. In Title VII cases, the Supreme Court has consistently required parties, district courts, and circuit courts to base their decisions upon credible evidence or arguments which exist in the record. See, e.g., Mayor of Philadelphia, 415 U.S. at 619, 621 , 94 S.Ct. at 1332-33, 1333-34 (noting that the circuit court’s explanations constituted “supposition” and "speculative inference” which could not support a serious charge); Albemarle Paper Co. v. Moody, 422 U.S. 405 , 438 n. 23, 95 S.Ct. 2362 , 2382 n. 23, 45 L.Ed.2d 280 (1975) (asserting that a defendant’s job relatedness claim "cannot be proved through vague and unsubstantiated hearsay”).

In Castaneda, the Texas Court of Criminal Appeals proffered a theory which explained away a criminal defendant’s charge of discrimination in grand jury selection practices. The Supreme Court rejected the State court's theory, deciding that even though the theory was generally applicable, the record was inadequate to support the use of the theory. The Court concluded that "under the facts presented in this case, the ... theory is not developed fully enough to satisfy the State's burden of rebuttal.” The Court chose to rely on the record. Castaneda, 430 U.S. at 500 , 97 S.Ct. at 1283 .

Consistent with these cases, then Justice Rehnquist elucidated in his concurrence in Dothard v. Rawlinson that the employer in that case may have had a justifiable reason for employing the alleged discriminatory hiring practice. However, Justice Rehnquist explained that once the burden shifts to the employer, the employer — not the court — must articulate that reason. Dothard, 433 U.S. at 340 , 97 S.Ct. at 2732 . In this case, the district court has downplayed Plaintiffs' case with reasons not proffered by the defense.

. A comparison of the number of black hires at D&L during the Grizzard years with the general Bolivar County population of people who are 16 years and older also reveals statistically significant disparities in the hiring. The analysis reveals a difference which constitutes 4.5 standard deviations.

. It is patently obvious — and even Dr. Haworth acknowledged — that because the black labor force in Bolivar County is heavily weighted in the low-skills jobs and has little presence in the "top rungs” of the employment ladder, the number of blacks eligible for production-worker jobs is much greater than the number of blacks in the Bolivar County civilian labor market. However, even comparison with just the black labor market reveals that there is just a little more than one chance in a thousand that D&L’s hiring during the Grizzard years happened by chance— 2.4 standard deviations. Dr. Haworth found that a comparison between the labor market and D&L's hiring was probative.

. In 1982, 4.3% of the white work force was unemployed. The black unemployment rate approached five times that number: 20.7% of blacks in the county were unemployed. Likewise, in 1984 unemployment rates showed that 4% of the whites were unemployed while 19.9% of the blacks were unemployed.

. The court disregarded any comparison with the blue collar and manufacturing work force for the similar reason that not all applicants possessed blue collar or manufacturing experience.

. Comparison with Bolivar County's civilian labor force (2.4 standard deviations), manufacturing labor force (5.2 standard deviations), and blue collar labor force (6.4 standard deviations) likewise demonstrates statistically significant hiring disparities. Dr. Haworth found such comparisons to be valid.

. Basing her conclusion upon the actual number of remaining applications, Dr. Haworth contended that only 45.5% to 46.7% of the D&L applications came from blacks. The district court accepted these numbers, which should be rejected, not only because the applicant-flow data is incomplete and irrevocably tainted, as earlier discussed, but because the numbers are thoroughly illogical in light of the demographics in Bolivar County.

Although the majority of people in the civilian labor force, the manufacturing labor force, and the blue collar labor force in Bolivar County is black — 51.9%, 58.2%, and 60.7% respectively— and only 3% of the professionals and managers in the county are black, the 45.5% to 46.7% range implies that the black labor force in the rural Mississippi Delta County of Bolivar is weighted more heavily at the "top rungs" of the employment ladder than at the bottom rungs. Logic, census data, and even Dr. Haworth, see supra n. 16, all agree that the opposite is true.

Dr. Haworth’s numbers are not only “out of touch” with the demographics of Bolivar County, but they are vastly different from the applicant-flow data of factories which are in close proximity to D&L. Of the people MSES referred to Colortile for general factory jobs, 68.7% were black. Additionally, 84.4% of the applicants for general factory work in Baxter Travenol, which is located directly across the street from D&L, were black.

Dr. Haworth's data is also inconsistent with Patty Haynes' experience. For example, Haynes testified that on one occasion, she invited everyone to apply for general factory jobs at a mass application distribution. Three to four hundred people stood in the snow on that February 1983 morning to apply for a job. Haynes testified that there were many more blacks than whites; many more than 51% of the applicants were black.

All in all, any comparison between the standard of availability which Dr. Haworth generated and any valid, reliable indicator of the proportion of blacks who showed interest in the production worker jobs at D&L confirm that Dr. Ha-worth's numbers are wrong. Her analysis should be rejected as fallacious and contrived.

.The majority rebuffed Plaintiffs’ disparate treatment claim, finding basically no use of racial epithets. Notably, however, the record shows that epithets were, in fact, used by certain management personnel. James Grizzard testified in a deposition, which neither the district court nor the majority read, that he regularly called black employees "boy.” Grizzard believed the term to be a friendly one. Patty Haynes testified that she heard blacks complain that Tom Gamer, the plant production manager during the Grizzard years, called them "boy.” Further, one of D&L’s black supervisors testified that he had a foreman who, during the Grizzard years, told racist jokes. The district court and majority apparently ignored this testimony.

. In fact, James Grizzard — plant manager of the .Cleveland plant from 1982 to 1986 and executive manager over two plants at the time of trial— dropped out of high school after the tenth grade and attained a GED thereafter. He did not possess any type of college degree. Indeed, he never even attended college.

. Although attendance was a good reason for rejecting blacks for promotion, it apparently was not a sufficient reason for rejecting whites. For example, Plaintiff Richard Grant was purportedly a good worker whom James Grizzard recommended for promotion. According to Robert Goodman, a plant supervisor, Grant had a good attendance record. However, a promotion for which Grant was considered went to Jerry Swin-ford, a white employee. Swinford had worked at D&L for just 14.6 months at the time of his promotion. During those 14 months, Swinford reported off for sickness 11 times, reported off for personal business six times, came to work late three times, left early twice, and was AWOL once.

Another example is James Bowen, who was hired as a foreman after meeting Mr. Grizzard in the all-white VFW Club. During his first eighteen months on the job, Bowen left early or left and returned 19 times and came to work late eight times.

. D&L supervisors testified that plant experience and seniority were important considerations for promotion. James Grizzard testified in a deposition that plant experience was a big consideration. Even so, nine people with fewer than five months' experience were promoted to leader during the Grizzard years. Four of the nine had worked at the plant fewer than two months. All nine were white.

Howard Watson and E.W. Tolbert, both supervisors, testified that prior to James Grizzard's arrival, they had never seen such inexperienced people promoted. Wallace Bailey, the assistant supervisor over the maintenance department, testified that he did not know anyone in the pre-Grizzard period who was promoted without having "some years' " experience as a production worker.

The lack of experience of the leaders and foremen in the plant hurt the productivity of the plant. Soon after James Grizzard arrived, Harry Lomason, president of D&L, wrote Mr. Grizzard to inform him that the quality and manufacturing systems were out of control. In August of 1983, Ford Motor Company informed D&L that it had serious concerns about the quality of work coming from the Cleveland plant. One of the D&L vice presidents wrote D&L plant managers in February 1985 to give them guidance on fixing the on-going quality problems. One of the causes of the plants’ problems was "insufficient training or personnel (production and supervision).'' Mr. Grizzard testified in his deposition that he did nothing different after receiving this letter. Eight months later, Harry Lomason wrote Mr. Grizzard and three other individuals *1311 that D&L’s standing and reputation with Ford was “at an all-time low." Mr. Grizzard affirmed that Mr. Lomason's statement was directly applicable to the Cleveland plant. 'Tis notable, indeed, that soon after this letter was written, the supervisors at the Cleveland plant began to promote more experienced workers.

Finally, this writer notes that in computing the number of months’ experience of those promoted during the Grizzard years, the majority apparently included the demotion of Larry Vardaman, who had been at the plant for 194.8 months before he was demoted from the position of foreman. Vardaman had twice been promoted to foreman prior to Grizzard's arrival. The majority's inclusion of Vardaman in its calculation is erroneous. Absent Vardaman's demotion, the evidence shows that the whites who were promoted during Mr. Grizzard's tenure, indeed possessed an average of approximately 15 months' experience at the time of their promotion.

.The proportion of blacks at the production-worker level exceeds the proportion of blacks hired in that position. Dr. Haworth and Dr. Bendick explained that a much greater number of whites voluntarily quit their employment with D&L than blacks. Ms. Haynes confirmed this, testifying that many whites quit soon after they are hired. On average, blacks are employed at D&L twice as long as whites. Over time, the longevity difference has resulted in a much higher percentage of blacks in the company than whites.

. The district court stated that such a comparison disregarded the company's practice of hiring individuals from outside the plant. However, the district court disregarded Mr. Grizzard’s deposition testimony that D&L's practice was to promote from within the company.

. The district court included salaried supervisors in its review of Plaintiffs’ promotion claims. Such inclusion of supervisors is clearly erroneous. Plaintiffs have never claimed that D&L discriminated on the basis of race in promoting supervisors.

. Hence, rejection of a promotion clearly did not disqualify an employee from future promotions. In fact, Howard Watson, production manager of the entire plant, testified that after he was first promoted to leader, he requested that he be returned to the production-worker level because he did not think that he could handle the job. He was later promoted again. Possessing one of the highest jobs in the Cleveland plant, Mr. Watson, himself, demonstrated that his rejection of a promotion was not fatal to his promotion opportunities. It should not have been fatal for Earnest Hall’s or Richard Grant's promotion opportunities either. Indeed, Mr. Griz-zard asserted in his deposition that after Richard Grant turned down the promotion to which the district court refers, Grant informed Grizzard that he, Grant, was again interested in being promoted.

. The district court's finding that blacks were treated favorably during the pre-Grizzard years is likewise unfounded. The promotions in the pre-Grizzard years roughly reflects the pool of presumptively eligible employees.

. Both the district court and majority included all craft positions in their analysis, as opposed to the general and rack maintenance positions which are at issue here. They also analyzed promotions for all craft positions, instead of the maintenance positions in question. When James Grizzard came to the Cleveland plant, 66.7% of these maintenance positions were held by blacks. That number decreased during his tenure to 54.1% black. Also, there were only three promotions in the maintenance positions during the Grizzard years. The proper comparison is therefore the 33.3% promotions which went to blacks as compared with the 54.1% of the blacks who were presumptively eligible for promotion. Although the majority's analysis is flawed, this writer agrees that Plaintiffs did not prove whether the promotion disparity in the maintenance positions was statistically significant or that race discrimination played a part in the promotion decisions for rack and general maintenance.