Petition for Writ of Certiorari — Hill v. Mississippi State Employment Service

Supreme Court brief1991

Ask Donna

What actually matters in this document.

Text

% l @ k v4 } Supreme Court, is |

FILED

JUL 2 g 499}

No. ai

In The OFFICE GF THE CLERK

Supreme Court of the United States

October Term, 1991

HAZEL HILL,

Petitioner,

MISSISSIPPI STATE EMPLOYMENT SERVICE; MISSIS-

SIPPI EMPLOYMENT SECURITY COMMISSION; O.H.

SIMMONS, HUGH GIBSON, WILLIAM G. LEONARD,

AND MARY BRYANT, COMMISSIONERS,

Respondents.

Petition For Writ Of Certiorari To The

United States Court Of Appeals For The

Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

e —

DonaALD B. VERRILLI, JR.*

JENNER & BLOcK

21 Dupont Circle, N.W.

Washington, D.C. 20036

(202) 223-4400

Sam H. BUCHANAN, Jr.

JOHN C. JoPLING

SOUTHEAST MississiPPi

LEGAL SERVICES

111 East Front Street

P.O. Drawer 1728

Hattiesburg, Mississippi 39403

(601) 545-2950

Counsel for Petitioner

*Counsel of Record

July 29, 1991

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Whether, in a case arising under Title VII of the Civil

Rights Act of 1964, a defendant’s assertion of pervasive

incompetence constitutes a legitimate nondiscriminatory

reason sufficient to rebut the mandatory inference of

discrimination arising from a plaintiff’s prima facie case

of disparate treatment?

2. Whether, in conflict with this Court’s ruling in

Bazemore v. Friday as well as the Second, Ninth and Dis-

trict of Columbia Circuits, the Fifth Circuit erroneously

held that a Title VII defendant can rebut a statistically

significant showing of racial disparity by merely alleging,

without any supporting evidence, that the plaintiff’s sta-

tistics failed to account for potentially relevant factors

that might explain the disparity?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED POET TEE Tee Co ee i

og Ee errr errr rrr rer rrr | 1

FETTER os 6.5 cent onsheedeureeseneneeaee 1

STATUTORY PROVISIONS INVOLVED............. 1

STATEMENT OF THE CASE..............5--s0000- 2

A. FOCRRl BCS 6 ks oss 5 eke eecesuese ares 2

B. District Court Proceedings................... 6

C. The Court of Appeals Proceeding............ 10

REASONS FOR GRANTING- THE WRIT ........... 12

I. THIS COURT SHOULD GRANT CERTIORARI

TO DECIDE WHETHER AN EMPLOYER'S

ASSERTION OF PERVASIVE INCOMPETENCE

CAN CONSTITUTE A LEGITIMATE BUSINESS

JUSTIFICATION SUFFICIENT TO REBUT THE

LEGALLY MANDATORY INFERENCE OF DIS-

CRIMINATION ARISING FROM A PLAINTIFF’S

PRIMA FACIE CASE OF DISPARATE TREAT-

|. | rrr rr me Sn Sor he 12

Il. THIS COURT SHOULD GRANT CERTIORARI TO

CLARIFY ITS HOLDING IN BAZEMORE V. FRI-

DAY AND TO RESOLVE THE CONFLICT IN THE

CIRCUITS RESPECTING WHAT A TITLE VII

DEFENDANT MUST SHOW TO REBUT A STATIS-

TICALLY SIGNIFICANT SHOWING OF RACIAL

LMOMNE Tt ican iedacdespaene a el 21

CE IIVRAFIENS on vee ide ene ne ow nielpee Sere en 24

TABLE OF AUTHORITIES

Page

Cases

Albemarle Paper Co. v. Moody, 422 U.S. 405

ee 2A bddn ge oy 5 aly eds ev nreeeeees 16, 17

Bazemore v. Friday, 478 U.S. 385 (1986) ........ 9, 21, 22

Castenada v. Partida, 430 U.S. 482 (1977).............. 9

Catlett v. Missouri Highway and Transp. Comm'n,

828 F.2d 1260 (8th Cir. 1987), cert. denied, 108 S.

eae as by skh soc cnaveeewercce: 23

DeMedina v. Reinhardt, 686 F.2d 997 (D.C. Cir.

ES ar rn 22

Dothard v. Rawlinson, 433 U.S. 321 (1977)............ 14

Easley v. Anheuser-Busch, Inc., 572 F. Supp. 402

(E.D. Mo. 1983), aff'd in relevant part, 758 F.2d

re 18, 20

E.E.0.C. v. General Telephone Co. of Northwest, Inc.,

OE es S| 22, 3

E.E.O.C. v. Sears, Roebuck & Co., 839 F.2d 302 (7th

Tn ne 23

Furnco Construction Corp. v. Waters, 438 U.S. 567

EO IS ee 13

Griggs v. Duke Power Co., 401 U.S. 423 (1971)........ 16

Hazelwood School District v. United States, 433 U.S.

Eee pelea shes ssc ches ns eerr eves 20

Impact v. Firestone, 893 F.2d 1189 (11th Cir. 1990).... 20

Jones v. International Paper Co., 720 F.2d 496 (8th

ee eee Gk seeds ones cee saved ss 14

Lanphear v. Prokop, 703 F.2d 1311 (D.C. Cir. 1983).... 19

TABLE OF AUTHORITIES - Continued

Page

McDonnell Douglas Corp. v. Green, 411 U.S. 792

Ss ooh wal Ae a ae eee a ean acon es passim

Nanty v. Barrows, 660 F.2d 1327 (9th Cir. 1981)...... 20

Palmer v. Schultz, 815 F.2d 84 (D.C.Cir. 1987)...... 9, 22

Parsons v. County of Del Norte, 728 F.2d 1234 (9th

Oe Perr eee Tre re rere rere Cree ere 14

Paxton v. Union National Bank, 688 F.2d 552 (8th

Oe | eer rer rer. Pry te rer rr errr 20

Pegues v. Mississippi State Employment Service, 699

Foe Fae es cea kako a ieanear her eesxs oe

Pouncy v. Prudential Ins. Co. of America, 668 F.2d

Fe a ees en enens hea reer eas 14

Price Waterhouse v. Hopkins, 109 S. Ct. 1775

5 SR renee ry ere eee: 12, 14, 15, 16, 17, 19

Segar v. Smith, 738 F.2d 1249 (D.C. Cir. 1984)........ 22

Sobel v. Yeshiva Univ., 839 F.2d 18 (2d Cir. 1988)..... 23

Texas Department of Community Affairs v. Burdine,

eS | eee ee er passim

Wards Cove Packing Co., Inc. v. Atonio, 109 S. Ct.

er ee rr rer een errs 16

OTHER AUTHORITIES

Se Mey SPE cos ewe dc es eee MWee nen Ree eens 6

ee Se es v4 os Re ewhe ka ease csi ab arseeeee ss 1

Title VII of the Civil Rights Act of 1964, 42 U.S.C.

Ferrer C ery Cre rrr ee Perr errr passim

Wagner-Peyser Act, 29 U.S.C. § 49.................8. 3

TABLE OF AUTHORITIES —- Continued

Page

MISCELLANEOUS

B. Schlei & P. Grossman, Employment Discrimina-

Siem GOee WSIS COR OU. TIGR). ove ok ck cewensieess 14, 20

Beard, Title VII and Rule 301: An Analysis of the

Wards Cove and Atonio Decisions, 23 Akron L. Rev.

ME Wak oa Nebel taUs a4 the Fo ERR ay oa 13

D. Baldus & J. Cole, Statistical Proof of Discrimina-

me i | | errr Serer rr err rrr er er 9

OPINIONS BELOW

The December 13, 1990 opinion of the United States

Court of Appeals for the Fifth Circuit is reported at 918

F.2d 1233 (5th Cir. 1990) and is reprinted in the Appendix

to this Petition (“App.”) at la. The May 1, 1989 memoran-

dum opinion of the district court (per Magistrate Britt R.

Singletary) is unreported and is reprinted in the Appen-

dix to this Petition at 29a.

JURISDICTION

The Fifth Circuit entered an order denying rehearing

on April 15, 1991. App. 65a. On July 8, 1991, Justice

O’Connor extended the time for filing the Petition for

Certiorari in this case to July 29, 1991. Jurisdiction is

conferred on this Court by 28 U.S.C. § 1254.

STATUTORY PROVISIONS INVOLVED

Title VII of the Civil Rights Act of 1964, 42 U.5.C.

§ 2000e-2, which provides in relevant part:

(a) It shall be an unlawful employment prac-

tice for an employer -

(1) to fail or refuse to hire or discharge any

individual, or otherwise to discriminate

against any individual with respect to his

compensation, terms, conditions, or privi-

leges of employment, because of such indi-

vidual’s race, color, religion, sex, or national

origin; or

(2) to limit, segregate, or classify his

employees or applicants for employment in

any way which would deprive or tend to

deprive any individual of employment

opportunities or otherwise adversely affect

his status as an employee, because of such

individual’s race, color, religion, sex or

national origin.

(b) It shall be an unlawful employment prac-

tice for an employment agency to fail or refuse

to refer for employment, or otherwise to dis-

criminate against, any individual because of his

race, color, religion, sex or national origin, or to

classify or refer for employment any individual

on the basis of his race, color, religion, sex or

national origin.

STATEMENT OF THE CASE

Petitioner Hazel Hill is a black woman seeking

redress under Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e et seqg., for racial discrimination by the

Mississippi State Employment Service (MSES). Although

this case arises in the context of discriminatory employ-

ment referrals, it raises important questions about the

order and nature of proof in virtually all cases brought

under Title VII and other anti-discrimination statutes.

A. Factual Background

In the hope of bettering her life by obtaining a job as

a cashier, waitress, or cocktail waitress, Petitioner Hill

registered in April 1982 with the local office of the MSES.

MSES is a state-run “labor exchange” that matches quali-

fied applicants with available jobs. On an initial visit, Hill

completed an application indicating her work experience

and occupational preferences. This inforfation was sub-

sequently recorded on MSES Form 511, which translated

the jobs for which Hill was considered qualified into

9-digit Dictionary of Occupational Titles (DOT) codes.

When an applicant such as Hill requests a referral, MSES

searches the job orders within the applicant’s code. When

an employer places a job order seeking referrals, MSES

searches the relevant codes for qualified candidates.? Hill

v. Mississippi State Employment Service, 918 F.2d 1233,

1234-35 (Sth Cir. 1990); App. 3a.

Not infrequently an employer requests several candi-

dates to interview for a single opening. Often, there are

more than enough qualified candidates for a given job

vacancy, leaving MSES workers broad discretion to select

which applicants to refer. MSES would, however, often

“short” the order by sending fewer than the requested

number of applicants. Additionally, MSES would often

refer candidates “out of code” — those whose qualifica-

tions or preferences did not match the job order. 918 F.2d

at 1235; App. 4a.

' Hill was classified for cashier, 211-492-014, and waitress,

311-477-030, positions.

* These procedures were set out in the Employment Service

Manual (ESMI]I), a publication of the U.S. Department of Labor.

MSES is a division of the Mississippi Employment Security

Commission, which itself is a member of a network of state

employment services created by the Wagner-Peyser Act, 29

U.S.C. § 49. Under the Act, in order to receive federal funds,

member agencies must comply with the policies established by

the United States Employment Service.

During the period from April 1, 1982 to April 14,

1983, when Hill sought referrals, MSES referred scores of

white job seekers to numerous positions for which Hill

qualified. From January 12 until March 18, 1983, for

example, a job order was placed by a department store

for cashiers — a position for which Hill was qualified and

for which she had consistently expressed a preference.

Hill visited the MSES offices to request referrals no fewer

than 3] times during the period the order was open. 918

F.2d at 1235 n.5; App. 6a. The job opportunity was well

known in the MSES office, and MSES interviewers with

whom Hill met during the period were aware of the

opening. See Trial Transcript at 635-36. Neither Hill nor

any other of the 163 black candidates coded as cashiers

were referred. Instead, 22 whites were referred for the

job, 10 of them out of code. Several of the white candi-

dates did not satisfy — as Hill undeniably did - the

employer’s education and experience requirements.*

In another instance, Hill was sent to a Ramada Inn

for a chambermaid position, only to learn upon arriving

that the Inn had also placed with the MSES a job order for

a waitress, for which Hill was not referred. In yet another

instance, on March 10, 1983, a day on which Hill sought

and was denied other waitress referrals, Shirley Garris, a

white woman employed by Hill’s trial counsel,4 sought

> According to the Magistrate, 3 of these referred white

candidates lacked even the minimal experience required and 5

lacked the educational minima. App. 36a.

4 Two days earlier Hill had filed a complaint with the

E.E.O.C. alleging the racially discriminatory referrals.

and received from the same MSES office two waitress

referrals, one of which had been open for 25 days and the

other for more than a week. Neither job order requested

special skills or experience of any kind.° 918 F.2d at

1235-36 & n.5; App. 6a-7a; see also App. 36a-40a (district

court findings of fact)

On a number of occasions, job orders were “shorted,”

while Hill and other qualified black applicants were

ignored. For example, a December 1982 order for bank

tellers requested six referrals. Five white women were

referred, all out of code and all lacking the requisite

experience. Hill, experienced as a bookkeeper and coded

for the position, was not referred.® Similar results fol-

lowed a February 1983 job order for a cashier in a local

convenience store. Despite the employer’s request for ten

referrals, MSES sent only five candidates, four of them

white. Hill, who was qualified, was not referred. When a

position opened for an emergency room technician, Hill’s

experience working in a hospital and the employer’s

request for five referrals were disregarded. MSES sent a

single white woman - again out of code. App. 36a-40a.

> In another instance, occurring after April 14, 1983, Hill

specifically requested a referral from the MSES as a cashier at

the County Market grocery. She was told no openings existed,

but visited the store on her own initiative. There she was

informed that an opening did exist, but that she would need an

MSES referral. While Hill was still inside the store, a white

applicant appeared with an MSES referral and was hired on

the spot.

6 The MSES interviewer who referred Hill to positions as a

chambermaid and counter attendant conceded that she knew

of the teller position and had referred other candidates

The few referrals Hill received from MSES were for jobs

stereotypical for black women in the Deep South —- making

beds and serving fried chicken. She received two referrals as

a hotel chambermaid, as well as referrals as a “counter

attendant” in a fried chicken restaurant, and as a “cashier” at

Kentucky Fried Chicken. The latter was her only “cashier”

referral (it was already filled when she arrived for her

interview); she received no waitress referrals.

B. District Court Proceedings.

After exhausting administrative remedies, Hill filed suit

in the United States District Court for the Southern District

of Mississippi on September 2, 1983. She alleged disparate

treatment and disparate impact violations of Title VII, 42

U.S.C. § 2000e et seq. The district court had jurisdiction

pursuant to 42 U.S.C. § 2000e-5. By consent of the parties and

pursuant to 28 U.S.C. § 636(c), the case was tried before a

magistrate with direct appeal to the Court of Appeals.

In addition to evidence of the specific instances of

disparate treatment described above, Hill introduced sub-

stantial statistical and quantitative evidence. During the

period when Hill sought referrals, MSES processed 191

————job orders within Hill’s preferred occupational codes: 6

for cocktail waitress, 39 for waitress, and 146 for cashiers.

Each of the 21 candidates referred to cocktail waitress

jobs for which Hill was qualified was white, as were 71%

of the waitress referees, and 68.8% of the cashier referees.

During this time, the pool of applicants was, on average,

58.2% white. Using all information availabie from MSES

records, Hill’s statistical expert demonstrated through

multivariate regression analysis that the referral patterns

for the jobs which Hill was seeking would have been

extremely unlikely to have occurred in the absence of

racial discrimination.’ Hill’s expert in personnel manage-

ment further demonstrated that MSES processed 87 job

orders within Hill’s preferred codes to which no black

applicants were referred and that 25 of these job orders

contained referrals of white candidates whose qualifica-

tions were manifestly inferior to those of Hill. Memoran-

dum Opinion, App. 29a, 40a-45a (summarizing evidence).

Based on particular incidents of discrimination docu-

mented by Hill — but not on Hill's statistical showing -

the presiding magistrate found that Hill had established a

prima facie case of disparate treatment as defined by

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and

Texas Department of Community Affairs v. Burdine, 450 U.S.

248 (1981), and as adapted to employment agency refer-

rals by the Fifth Circuit in Pegues v. Mississippi State

Employment Service, 699 F.2d 760 (5th Cir. 1983), cert.

denied, 464 U.S. 991 (1984). See App. 54a-55a.

MSES conceded that the particular instances of dispa-

rate treatment documented by Hill had occurred. MSES

? Dr. Jerry Himmelstein, Hill’s expert, found standard

deviations of 4.83, 8.78, and 3.41 for cocktail waitress, waitress,

and cashier, respectively. Statistical tables indicate that the

probability of a disparity measuring 8.78 standard deviations

from the racially neutral norm being attributable to random

chance is less than one in one billion.

8 In Pegues, the Court held that a prima facie case is made

out in an individual disparate treatment case when a plaintiff

proves, by a preponderance of the evidence, that the plaintiff

(1) is a member of a protected group (2) has applied for and

been coded for occupations for which the office is making

teferrals (3) has failed to secure a referral and (4) a non-

member of the protected group is referred.

argued, however, that these instances were somehow

attributable to the “inherent” or “general inefficiency” of

MSES’s “system.” In essence, MSES pled incompetence.

Calling the question “clouded” by the fact that “MSES

d{id] not point to a particular reason justifying a dis-

parity,” the magistrate noted that MSES had claimed it

was hampered by “(1) employee error or oversight,

(2) inefficient communication among staff members about

active job orders, (3) inability to contact applicants,

(4) applicant’s preferences, and (5) other racially neutral

problems.” Id. MSES made no effort to demonstrate that

those “inherent defects” contributed to the particular

instances of disparate treatment detailed by Hill.? App.

55a. Based on this showing, the magistrate concluded that

MSES had met its rebuttal burden of articulating a “legiti-

mate nondiscriminatory reason” for the disparate treat-

ment of Hill. App. 55a-56a. See Burdine, 450 U.S. at 253-54.

The magistrate then found that Hill had not carried

her burden of proving that MSES’s explanation was pre-

textual. To evaluate Hill’s “pretext case,” the magistrate

looked only to the statistical evidence. That evidence was

found to be “flawed and insufficient to prove pretext,” on

the ground that it omitted two factors that the court

deemed to be of critical importance to referral decisions -

applicants’ experience and education.'° App. 57a-58a.

? The record forecloses such a showing in any event. Hl

was in frequent contact with the office, and the MSES

employees with whom she dealt had specific knowledge of

jobs for which she was qualified, but not referred.

10 The defendants could not plausibly claim, as the courts

oelow erroneously seem to have concluded, that work

(Continued on following page)

5 ne

In reaching this result, the magistrate took no note of

MSES’s explicit concession that Hill’s analysis would

have shown statistically significant levels of discrimina- _—

tion even if the omitted variables were included —- the

omissions affected only the magnitude of the disparity."!

Nor did the magistrate evaluate the entirety of Hill’s

evidence in determining whether pretext was shown.

The magistrate also ruled that Hill’s disparate impact

challenge to the MSES referral system had to be rejected

(Continued from previous page)

experience was omitted from Hill’s statistical analysis. See

Pegues v. Mississippi State Employment Service, 699 F.2d at 764

(“Experience was a primary consideration in the [MSES] cod-

ing procedures”).

'! MSES readily conceded that plaintiff's expert’s analysis

was the best possible given the available data ~ all of which

was in MSES’ control. Apparently the magistrate did not grasp

the meaning of statistical significance. If a regression analysis

is found to be statistically significant, that finding necessarily

implies that the odds that the observed discrimination was

produced by random or chance factors are so low that the

possibility can be discounted. See Castenada v. Partida, 430 U.S.

482, 496-97 n.17 (1977); Pegues, 699 F.2d at 768 n.9.

MSES made no attempt to introduce any regression data of

its own, nor did it attempt to introduce any evidence whatever

to support its implicit claim that the white workers being

referred to cocktail waitress and cashier jobs were in fact more

highly educated or experienced. Circuit Courts and leading

commentators have interpreted this Court’s decision in

Bazemore v. Friday, 478 U.S. 385 (1986), as holding this sort of

“mere conjecture or assertion” in the face of statistical evidence

is legally insufficient to undermine an inference of discrimina-

tion. Palmer v. Schultz, 815 F.2d 84, 101, 106 (D.C. Cir. 1987). See

also D. Baldus & J. Cole, Statistical Proof of Discrimination vii

(1986 Supp.).

because of the purported flaws in Hill’s statistical anal-

ysis. App. 58a.

C. The Court of Appeals Proceeding

The Fifth Circuit affirmed the district court’s ruling,

with Judge Rubin dissenting. The majority held that an

employer’s assertion of pervasive incompetence could

serve as a “legitimate nondiscriminatory explanation”

sufficient to rebut a prima facie case of disparate treat-

ment. The panel majority was “trouble[d]” by the “likely”

prospect that “general inefficiency” would become a

“shield for almost any employer —- including a discrimi-

nating one,” and by the quality of the “evidentiary sup-

port” for “MSES’s systemic problems.” 918 F.2d at 1239;

App. 14a. The majority nonetheless concluded that

“MSES does not offer . . . an utter lack of specifics” and

that it would be “the height of unfairness to infer

... discriminatory animus” from “an employer’s detailed

and documented inefficiency.” 918 F.2d at 1239; App.

15a.12

12 In dissent, Judge Rubin took the majority to task for

“not even attempting to define what is meant by a ‘legitimate

nondiscriminatory reason,’ ” insisting that those words must

take their meaning from the purposes of the Fair Employment

Practices Act. Noting that this Court has consistently embraced

the premise that “efficient workmanship” and “neutral

employment and personnel decisions” go hand in hand, Judge

Rubin maintained that a “legitimate reason” must be more

than “non-criminal”; that it must be “justifiable.” MSES claims

of “neutral inefficiency were belied by the “evidence [showing]

that MSES system is inefficient only when it fails to refer black

employees.” App. 20a-25a.

The Court of Appeals went onto hold that Hill’s

Statistics failed to demonstrate that MSES’s “incompe-

tence” defense was pretextual. The court acknowledged

that, as MSES conceded, Hill’s statistical analysis was the

“best possible” given the available data. 918 F.2d at 1237

n.9; App. 9a. The court also acknowledged MSES’s con-

cession that Hill’s regression analyses would show statis-

tically significant levels of race-based disparity even if

the omitted variables were included in the analysis. Id. at

1237; App. 10a-1la. The court nonetheless concluded that

the omission of the variables destroyed the probative

worth of the analyses. Id. at 1240; App. 17a-18a. The

unspoken premise of the court’s ruling was that the omit-

ted qualifications were less likely to be present in black

than in white applicants - an assumption without any

support in the record.

The appellate court also summarily rejected Hill’s

disparate impact allegations. Because Hill's statistical evi-

dence did not demonstrate pretext, the court concluded,

that evidence could not support a disparate impact case.

918 F.2d at 1240; App. 18a.

Judge-Rubin dissented. He would have held that

pervasive incompetence cannot be considered a legiti-

mate nondiscriminatory explanation under McDonnell

Douglas and Burdine. Judge Rubin also rejected the

“incompetence” defense as applied because MSES had

“not shown a single instance. . . in which the failure to

refer employees to jobs resulted from difficulty in reach-

ing Hill — or from overwork - or red tape.” 918 F.2d at

1243; App. 25a. Pointing out that “inefficiency is racially

neutral [and] cannot in itself account for racial discrimi-

nation,” he also would have held that Hill’s statistically

significant showing of discrimination proved pretext. Id.

at 1241; App. 20a.

REASONS FOR GRANTING THE WRIT

I. THIS COURT SHOULD GRANT CERTIORARI TO

DECIDE WHETHER AN EMPLOYER’S ASSERTION

OF PERVASIVE INCOMPETENCE CAN CONSTI-

TUTE A LEGITIMATE BUSINESS JUSTIFICATION

SUFFICIENT TO REBUT THE LEGALLY MANDA-

TORY INFERENCE OF DISCRIMINATION ARIS-

ING FROM A PLAINTIFF’S PRIMA FACIE CASE

OF DISPARATE TREATMENT.

This case presents-an important question of Title VII

law that has not been, but should be, decided by this

Court: whether a defendant’s assertion of pervasive

incompetence constitutes a legitimate nondiscriminatory

business justification sufficient to defeat the legally man-

datory inference of discrimination arising from a plain-

tiff’s prima facie showing of disparate treatment.

In McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973), and Texas Department of Community Affairs v. Bur-

dine, 450 U.S. 248 (1981), this Court established a “careful

framework” for adjudicating claims of disparate treat-

ment under Title VII. See Price Waterhouse v. Hopkins, 109

S. Ct. 1775, 1796 (1989) (O’Connor, J., concurring in the

judgment). A plaintiff establishes a prima facie case by

showing that: (i) she is a member of a group protected by

Title VII; (ii) she is qualified for the position she seeks;

(iii) she has failed to secure the position; and (iv) the

position was given to someone not a member of a pro-

tected group. This showing creates a “legally mandatory

inference of discrimination” unless rebutted by the defen-

dant. Burdine, 450 U.S. at 255 n.10. To rebut a prima facie

case, the defendant must “articulate some legitimate non-

discriminatory reason” for the apparent discrimination.

McDonnell Douglas, 411 U.S. at 802. The plaintiff then has

the opportunity to demonstrate that the defendant’s prof-

fered reasons were “pretextual.” Id.

Since McDonnell Douglas, this Court has been stead-

fast in defining “legitimate nondiscriminatory reasons”

as “rational and neutral business justification[s].” 411 U.S.

at 806 n.21 (emphasis added). Noting that “efficient

workmanship” through fair employment practices is an

important goal of Title VII, the McDonnell Douglas Court

required the defendant to articulate a reason “which could

fairly be recognized as a reasonable basis for its refusal to

hire.” 411 U.S. at 802-03 (emphasis added).'* Thus, even

as the Court held in McDonnell Douglas that the

employer’s proffered reason — the plaintiff’s participation

in illegal and disruptive activities directed at the

employer’s business — was legally sufficient, it was

unwilling to declare that a plaintiff's criminal record

would always constitute a “rational and neutral business

justification” sufficient to count as a “legitimate reason”

for disparate treatment. /d. at 806 n.21 (emphasis added).

Similarly, a unanimous Court in Furnco Construction

Corp. v. Waters, 438 U.S. 567 (1978), while holding that an

employer has no duty under Title VII to maximize the

number of minority applicants, reiterated that the firm’s

13 See also Beard, Title VII and Rule 301: An Analysis of the

Wards Cove and Atonio Decisions, 23 Akron. L. Rev. 105 (1989).

asserted hiring practices must “be reasonably related to the

achievement of some legitimate goal.” 438 U.S. at 578

(emphasis added). In Dothard v. Rawlinson, then-Justice

Rehnquist explained that McDonnell Douglas imposes a

“burden to articulate job-related reasons” to rebut a prima

facie case. 433 U.S. 321, 331 (1977) (Rehnquist, J., concur-

ring). Cf. also Price Waterhouse v. Hopkins, 109 S. Ct. at 1804

(O’Connor, J., concurring in the judgment) (to rebut

showing of discrimination, defendant must demonstrate

“sufficient business reasons” (emphasis added)).

Prior to this case, the courts of appeals had likewise

uniformly understood that legitimate nondiscriminatory

reasons in the disparate treatment context should be job-

related reasons. See, e.g., Pouncy v. Prudential Ins. Co. of

America, 668 F.2d 795, 799 (5th Cir. 1982); Jones v. Interna-

tional Paper Co., 720 F.2d 496 (8th Cir. 1983); Parsons v.

County of Del Norte, 728 F.2d 1234 (9th Cir.), cert. denied,

469 U.S. 846 (1984); see generally B. Schlei & P. Grossman,

Employment Discrimination Law 1312 (2d ed. 1983); id. at

480-81 (5-year Cumulative Supp. 1989).

The Fifth Circuit’s ruling in the present case deviates

sharply from this well-established principle. For the first

time, a Circuit has held that a Title VII defendant can

rebut the legally mandatory inference of discrimination

arising froma prima facie case by advancing a reason for

a disparate treatment wholly unrelated to the defendant’s

business interests or needs. Plenary review of this deci-

sion is urgently needed for several reasons.

First, the novel “incompetence” defense recognized

by the Fifth Circuit will re-order outcomes in Title VII

cases in a manner flatly inconsistent with the intent of

Congress. As even the “troubled” majority of the divided

Fifth Circuit panel acknowledged, the “incompetence”

defense can look forward to a flourishing career as

“shield for almost any employer — including a discrimi-

nating one.” 918 F.2d at 1239; App. 14a. In effect, the

Court of Appeals has imposed an unattainable standard

for proving discriminatory intent. Discriminating

employers can, at the negligible cost of “articulating”

pervasive incompetence, impose burdens on discrimina-

tion’s victims so prohibitive as to preclude victory for

even plaintiffs who most merit recovery. '4

The Fifth Circuit’s recognition of an “incompetence”

defense also flies in the face of the bedrock congressional

judgment that Title VII should eradicate all “artificial,

arbitrary and unnecessary barriers to employment.”

McDonnell Douglas, 411 U.S. at 806 (quotations omitted).

As this Court has repeatedly reaffirmed, “Congress

addressed the thrust of the Act to the consequences of

'4 Hill, an individual plaintiff with no resources and repre-

sented by a legal services organization, was told — after pre-

senting testimony by three expert witnesses and using all the

data the defendant could provide - that MSES’ attestations of

racially neutral inefficiency could be rebutted by “properly

analyzed and compiled statistics.” 918 F.2d at 1239 n.11; App.

14a.

employment practices, not simply the motivation.” Griggs

v. Duke Power Co., 401 U.S. 424, 432 (1971).'5

The Fifth Circuit’s “incompetence” defense immu-

nizes precisely the kind of “artificial, arbitrary, and

unnecessary” bariier that Congress enacted Title VII to

eradicate.'© An obvious tension exists between the legal

rule established by the Fifth Circuit in this case and the

general principles governing disparate impact cases

under Title VII. Ata minimum, this tension demonstrates

the need for clarification as to the legitimacy of the

“incompetence” defense in disparate treatment cases, and

'S In the disparate impact context, this Court has recently

made clear that

[t]he touchstone of this inquiry is a reasoned review

of the employer’s justification. ... A mere insubstan-

tial justification in this regard will not suffice,

because such a low standard of review would permit

discrimination to be practiced through the use of

spurious, seemingly neutral employment practices.

Wards Cove Packing Co., Inc. v. Atonio, 109 S. Ct. 2115, 2126

(1989). Were an employer to raise “incompetence” as a defense

to a prima facie case of disparate impact, Wards Cove would

plainly dictate a judgment for the plaintiff as a matter of law.

That a defendant in a disparate treatment action can, at least in

the Fifth Circuit, avoid liability by an identical defense is

incongruous.

'6 Recognition of the incompetence defense removes the

“ “spur or catalyst which causes employers and unions to self-

examine and self-evaluate their employment practices,’ ” and

thereby undermines the basic deterrent purposes of Title VII.

See Price Waterhouse v. Hopkins, 109 S. Ct. at 1798 (O’Connor, J.

concurring) (quoting Albemarle Paper Co. v. Moody, 422 U.S. 405,

417-18 (1975)).

the proper relation between the disparate treatment and

disparate impact analytical frameworks generally.!7

Second, permitting an “incompetence” defense jeop-

ardizes the orderly, efficient adjudication of Title VII

cases. See generally Price Waterhouse v. Hopkins, 109 S. Ct.

at 1798 (O’Connor, J. concurring). As Justice O’Connor

has explained, “the entire purpose of the McDonnell

Douglas prima facie case is to compensate for the fact that

direct evidence of intentional discrimination is hard to

come by.” Price Waterhouse v. Hopkins, 109 S. Ct. at 1801

(O’Connor, J., concurring in the judgment) (emphasis

added). Because direct evidence is typically not available

to Title VII plaintiffs, an individual plaintiff is entitled to

a “legally mandatory inference of discrimination” upon

proving that the most obvious nondiscriminatory

17 In setting forth the basic definition of the defendant's

rebuttal case in the disparate impact context, the Court specifi-

cally incorporated the McDonnell Douglas definition of the

employer’s burden in the disparate treatment context. See

Albermarle Paper Co. v. Moody, 422 U.S. at 425 (quoting McDon

nell Douglas, 411 U.S. at 801).

Some lower courts have held that a defendant's proffered

explanation for disparate treatment is insufficient as a matter

of law if that explanation would fail as a defense to a disparate

impact action. For example, in Easley v. Anheuser-Busch, Inc.,

572 F. Supp. 402, 414 (E.D. Mo. 1983), aff'd in relevant part, 758

F.2d 251 (8th Cir. 1985), the court rejected the defendant's

proffered disparate treatment rebuttal argument that the plain-

tiff was not hired because she failed an employment test. The

court held that the proffered explanation was insufficient as a

matter of law because the test would not have survived scru-

tiny under disparate impact analysis.

explanations do not account for the disparate treatment at

issue. See Burdine, 450 U.S. at 255 n.10.

The Fifth Circuit’s incompetence defense vitiates the

crucial policy judgment underlying the McDonnell Dou-

glas/Burdine analytical framework. It allows the defendant

to rebut a prima facie case by mere articulation of the

argument that the plaintiff was the unintended victim of

an arbitrary or artificial barrier. This defense effectively

annihilates the presumption. Every defendant will be able

to argue that disparate treatment of a plaintiff was simply

a mistake. If that “explanation” defeats the inference of

discrimination arising from a prima facie case, plaintiffs

will effectively bear all the risk of erroneous litigation

outcomes caused by plaintiffs’ general inability to obtain

direct evidence of discrimination.

The ruling below also threatens to revolutionize the

second stage of the McDonnell Douglas/Burdine order of

proof, in which the defendant must articulate a legitimate

nondiscriminatory explanation in order to “sharpen{] the

inquiry” into the real reason for disparate treatment of

the plaintiff and to afford the plaintiff “a full and fair

opportunity to show pretext.” Burdine, 450 U.S. at 255.

Instead of focusing the inquiry narrowly on whether

disparate treatment resulted from the particular qualifica-

tions of the individual employee or the particular needs

of the employer, the incompetence defense forces the

individual employee at the pretext stage to undertake

what amounts to a full-blown statistical disparate impact

analysis of the employer’s practices to show that the

alleged “incompetence” - which should disadvantage

whites and blacks equally — is in fact producing racially

discriminatory results. Because, as the majority below

acknowledged, the incompetence defense is readily avail-

able to all employers, its recognition threatens to turn

most straightforward individual disparate treatment

cases into the functional equivalent of broad class-action

challenges to systemwide employment practices.

Without direct evidence of discrimination, moreover,

even such a showing may not suffice because the plaintiff

will be hard put to prove that overall incompetence did

not cause the particular adverse employment decision at

issue. At a minimum, the extensive additional burdens

imposed on individual plaintiffs may weil preclude the

vindication of meritorious claims as a result of the diffi-

culty and expense of proving pretext. See Lanphear v

Prokop, 703 F.2d 1311, 1316 (D.C. Cir. 1983) (purpose of

Title VII proof sequence “is defeated if the defendant is

allowed to present a moving target or conceal the

target altogether”); see generally Price Waterhouse v. Hop

kins, 109 S. Ct. at 1801 (O’Connor, J., concurring in the

judgment)

Third, the Fifth Circuit’s endorsement of a general

“incompetence” defense conflicts in principle with the

uniform law of other Circuits requiring a specific link

between the plaintiff’s allegations of discriminatory acts

and the defendant’s legitimate nondiscriminatory expla

nation. Burdine has been consistently interpreted to

require that a defendant’s explanation specifically

address the particular instances of alleged discrimination

raised by the plaintiff. Thus, when a qualified applicant is

rejected or a competent employee is dismissed from a job,

a Title VII defendant does not meet its responsibility .o

“explain” its decision by showing that “the odds were

against” a candidate’s being chosen or by “articulating”

the economic reasons why a reduction in force was neces-

sary. See Easley v. Anheuser-Bush, 758 F.2d 251, 259-61 (8th

Cir. 1985) (that many applicants applied for job is not a

legitimate nondiscriminatory reason for individual! plain-

tiff’s rejection); Impact v. Firestone, 893 F.2d 1189 (11th

Cir.) (holding that defendant's burden is satisfied oniy by

accounting for each act of disparate treatment), cert.

denied, 111 S. Ct. 133 (1990); Paxton v. Union National Bank,

688 F.2d 552, 566 (8th Cir. 1982) (holding that defendant

must offer specific reasons for each failure to promote

individual black employees, and finding that defendant

had, by introducing employment records, articulated a

reason for every employee's discharge), cert. denied, 460

U.S. 1083 (1983); Cf. Nanty v. Barrows, 660 F.2d 1327 (9th

Cir. 1981) (holding that defendant fails to satisfy its bur-

den unless it articulates a reason which might explain the

plaintiff’s actual rejection). See generally B. Schlei & P.

Grossman, supra, at 1312.

As these decisions recognize, once an individual

plaintiff has made a prima facie showing of disparate

treatment, that the defendant is generally or “officially”

fair-minded, let alone pervasively incompetent, is almost

entirely beside the point. See generally Hazelwood School

District v. United States, 433 U.S. 299 (1977) (holding that

evidence of official policy of nondiscrimination was

insufficient to carry defendant’s production burden). The

Fifth Circuit’s ruling in the present case is squarely at

odds with the animating principles, if not the holdings, of

these decisions.

For these three reasons, this Court should review the

Fifth Circuit’s recognition of the “incomptence” defense.

—

Il. THIS COURT SHOULD GRANT CERTIORARI TO

CLARIFY ITS HOLDING IN BAZEMORE V. FRI-

DAY AND TO RESOLVE THE CONFLICT IN THE

CIRCUITS RESPECTING WHAT A TITLE VII

DEFENDANT MUST SHOW TO REBUT A STATIS-

TICALLY SIGNIFICANT SHOWING OF RACIAL

DISPARITY.

In Bazemore v. Friday, this Court held that “a regres-

sion analysis that includes less that ‘all measurable vari-

ables’ may serve to prove a plaintiff’s case.” 478 U.S. at

400. The crucial question, the Court made clear, was

whether when omitted “factors were properly organized

and accounted for there was no significant disparity

between... blacks and whites.” Id. at 403 n.14. The Court

overturned the Fourth Circuit’s ruling that a statistical

analysis in a Title VII case could not constitute probative

evidence of discrimination merely because some vari-

ables had been omitted from the analysis. Id. at 399-400.

In the wake of Bazemore, the Courts of Appeals

remain confused as to what a defendant must show to

rebut a statistically significant showing of race-based dis-

parity in a Title VII case. Without mentioning Bazemore,

the Fifth Circuit in this case denied any probative force to

Hiil’s statistical analyses because they purportedly omit-

ted variables - experience and education - that might

explain the observed disparities between black and white

job seekers. MSES offered no alternative statistical analy-

ses showing that inclusion of the omitted variables would

eliminate the observed racial disparities. Nor did MSES

introduce any evidence tending to show that whites were

likely to possess the omitted traits in greater measure

than were blacks. To the contrary, MSES conceded that

Hill’s regression analysis showing discrimination

retained its statistical significance even if the omitted

variables were included. 918 F.2d at 1237; App. 10a-11a.

The Fifth Circuit’s holding conflicts directly with

well-established law of the District of Columbia Circuit,

as well as recent decisions of the Ninth and Second

Circuits - all of which have concluded that Bazemore

imposes at least a burden of production on Title VII

defendants to show that the omission of particular factors

would be likely to alter the race or gender-based dis-

parities shown by a plaintiff’s statistical analysis.

In the District of Columbia Circuit, a Title VII defen-

dant cannot defeat a statistically significant showing of

race-based disparity merely by alleging the plaintiff's

Statistical analysis omitted relevant considerations. Inter-

preting Bazemore, the D.C. Circuit has rejected “mere

conjecture or assertion on the defendant’s part that some

missing factor would explain the existing disparities.”

Palmer v. Schultz, 815 F.2d 84, 101 (D.C. Cir. 1987). Rather,

the D.C. Circuit applies a “rebuttable presumption of

equal distribution of the relevant . . . skills.” DeMedina v.

Reinhardt, 686 F.2d 997, 1008 (D.C. Cir. 1982); accord Segar

v. Smith, 738 F.2d 1249 (D.C. Cir. 1984). To overcome that

presumption, the defendant must, at a minimum, articu-

late a “basis for the assumption that such skills are in fact

unevenly distributed.” 686 F.2d at 1008.

The Ninth Circuit has similarly interpreted Bazemore

to hold that a Title VII “defendant cannot rebut an infer-

ence of discrimination by merely pointing to flaws in the

plaintiff’s statistics.” E.E.O.C. v. General Telephone Co. of

Northwest, Inc., 885 F.2d 575, 581 (9th Cir. 1989). Rather,

the Ninth Circuit held in General Telephone, the defendant

cane

must “produce credible evidence that curing the alleged

flaws would also cure the statistical disparity.” 885 F.2d at

583.

The Second Circuit reached the same result in Sobel v.

Yeshiva Univ., 839 F.2d 18 (2d Cir. 1988). In that case, the

plaintiff had used regression analyses to demonstrate

gender-based wage discrimination. The court rejected the

defendant’s unsubstantiated allegation that factors omit-

ted from analysis explained the observed disparities. /d.

at 34 (“no reason, in evidence or analysis, for concluding

that [omitted factors] correlated with sex and were there-

fore likely to affect the sex coefficient”).

This conflict is illustrative of a broader, continuing

uncertainty as to the factual showing a Title VII defen-

dant must make to rebut a statistically significant show-

ing of race-based disparity. Compare Catlett v. Missouri

Highway and Transp. Comm'n, 828 F.2d 1260 (8th Cir. 1987),

cert. denied, 108 S. Ct. 1574 (1988) (defendant must pro-

duce evidence in rebuttal), with E.E.0.C. v. Sears, Roebuck

& Co., 839 F.2d 302 (7th Cir. 1988) (no evidence required).

This Court should grant certiorari to resolve the conflict

and clarify the nature of the defendant’s burden in

response to statistically significant showings of racial dis-

parity in Title VII cases.

CONCLUSION

For all the foregoing reasons, the petition for cer

tiorari should be granted.

Respectfully submitted,

DonaLp B. Verrit, JR.*

JENNER & Biock

21 Dupont Circle, N.W.

Washington, D.C. 20036

(202) 223-4400

Sam H. BucHANAN, Jr.

Joun C. JoPLING

SOUTHEAST MississiPP!

LEGAL SERVICES

111 East Front Street

P.O. Drawer 1728

Hattiesburg, Mississippi 39403

(601i) 545-2950

July 29, 1991 Counsel for Petitioner

*Counsel of Record

———— ee

APPENDIX

TABLE OF CONTENTS

Page

Opinion of the U.S. Court of Appeals for the Fifth

ew a la

District Court Opinion........... 29a

Order on Rehearing...

Hazel HILL, Plaintiff-Appellant,

MISSISSIPPI STATE EMPLOYMENT SERVICE, et al.,

Defendants-Appellees.

No. 89-4438.

United States Court of Appeals,

Fifth Circuit.

Dec. 13, 1990.

Black woman who sought job referrals through State

Employment Service brought action against Service alleg-

ing racial discrimination. The United States District Court

for the Southern District of Mississippi, Britt R. Single-

tary, United States Magistrate, rendered judgment for

Service and applicant appealed. The Court of Appeals

held that applicant failed to prove discrimination either

under disparate treatment or disparate impact analysis.

Affirmed.

Alvin B. Rubin, Circuit Judge, filed dissenting opin-

ion.

Sam H. Buchanan, Jr., Sam H. Buchanan, Jr., [sic]

Southeast Miss. Legal Services, Hattiesburg, Miss., for

plaintiff-appellant.

Richard D. Mitchell, Jackson, Miss., for defendants-

appellees.

Appeal from the United States District Court for the

Southern District of Mississippi.

Before GEE, RUBIN, and DAVIS, Circuit Judges.

PER CURIAM:

esis

Applying both discrimination moe s {isparate

treatment and disparate impact “ " hat a black

female seeking job referrals from a ‘arge Dut under-

manned state employment agency fatied to prove a case

of discrimination under Title VII. Specific problems with

the referral system, established in the record, rebutted

any presumption of discrimination, and her statistical

analysis critically neglected qualifications and job prefer-

ences.

Background

Hazel Hill, a black female, sued the Mississippi State

Employment Service (MSES) on her own behalf, alleging

that MSES intentionally or recklessly discriminated in its

referrals on the basis of race. Her suit stemmed from her

dissatisfaction with the treatment which she received

when seeking job referrals to prospective positions as a

cashier, waitress, or cocktail waitress at MSES’s Hat-

tiesburg Office from April 1982 to April 1983, and fol-

lowed the right to sue letter issued to her by the Equal

Employment Opportunity Commission (EEOC) upon the

basis of its finding no reasonable cause to pursue the

complaint which she had filed against both MSES and the

Mississippi Employment Security Commission (MESC).!

MSES’s job referral procedures lie at the heart of this

case, and we therefore outline them. In almost all

' MESC belongs to the national network of state employ-

ment services established and funded by the Wagner-Peyser

Act, as amended, 29 U.S.C. §§ 49-49k. MSES is a division of

MESC and constitutes an employment agency as defined in

§ 701(c), 42 U.S.C. § 2000e(c).

respects, MSES complies with the operational guidelines

established in the Employment Service Manual (ESMII).?

Operating through numerous local offices throughout

Mississippi, MSES refers qualified applicants to area job

openings listed with MSES by area employers, but does

not guarantee employment. The listing employers indi-

cate the number of applicants sought and the qualifica-

tions required, and MSES’s clerks process the listings and

notify qualified applicants.

To matc » applicants to jobs, MSES assigns applicants

and job orders a nine-digit Dictionary of Occupational

Titles Code (Dot Code).* The code’s first three digits

2 The district court found that MSES’‘s [sic] did not comply

with EMSII [sic] in one respect. EMSII [sic] § 1294, which bars

MSES’s processing of job orders containing discriminatory

preferences, also authorizes MSES to conduct two inquiries:

first, random investigations of employers to whom MSES

referred applicants if MSES receives, from any source, informa-

tion that the employer was discriminating; and second,

monthly random reviews. Despite testifying in a Title VII class

action against a local employer, the Director of MSES for 13

years prior to this suit testified that MSES conducted no such

inquiries during his tenure. We agree with the district court

that the one isolated incident neither shows that employers

filling positions through MSES widely discriminated nor

proves that MSES condoned such practices. Absent any evi-

dence as to the number of complaints, if any, lodged with

MSES about local employers, we, like the district court, must

decline to draw a pattern of historically condoned discrimina-

tion by MSES from the lack of random reviews by MSES.

3 First, referral applicants, with the assistance of an MSES

interviewer, pencil in a MSES 511 form that records their

education, training, work experience, job preference and any

other relevant information, and the assisting interviewer deter-

mines appropriate DOT Code(s). A UC-502 identification card

(Continued on following page)

identify a particular occupational group, the middle three

the worker function ratings, and the final three the alpha-

betical order of the titles within the six digit code.

Referrals occur in two ways: In one, upon an appli-

cant’s request MSES clerks search job orders for vacancies

that match the applicant’s DOT code and, locating an

open order with a corresponding code, refer the applicant

if the applicant meets the listed qualifications; In the

other, to fill orders, pursuant to ESMII § 1470, MSES

clerks search the active files of applicants with a match-

ing occupational title and, if that yields an insufficient

number of applicants, search inactive files with matching

codes and active files of related occupational qualifica-

tions. Ultimately, to match job orders with the most quali-

fied applicant as per ESMII guidelines, MSES clerks

primarily rely on the DOT Codes, the type of job, and the

applicant’s experience and job preference, but as well

draw from personal knowledge acquired through prior

(Continued from previous page)

contains the applicant’s name, social security number, and

DOT Code/codes. MSES files the 511 forms alphabetically

under the appropriate three digit occupational group code.

Second, MSES interviewers code the employer job orders

that identify the available job, the number of vacancies, the

number of applicants sought, and job qualifications (i.e.: edu-

cation, experience). Before coding, Interviewers evaluate

whether the educational and experimental criteria provided by

the employer relate sufficiently to the open job, and if not,

whether MSES will require additional investigation prior to

processing the suspect order. Under MSES policy, interviewers

should dissuade employers from imposing arbitrary hiring

requirements and refuse to service discriminating job orders.

ESMII § 1294.

referral matching, such knowledge including subjective

judgments (e.g.: an applicant’s attitude, appearance, per

sonality, employment history).

An EEOC officer regularly reviews MSES’s referral

and other services, assessing compliance with federal and

state civil rights laws. Documentation drawn from all

codes and applicants, but not from actual interviews,

furnishes all supporting information for these reviews.

Noting that the reviews to the date of trial highlighted

problem areas, the conducting officer rated MSES satis

factory overall.4

Coded for cashier-checker positions (211-492-014)

and for waitress positions (311-477-080), Hill alleges dis

criminatory referral practices and retaliatory practices. At

trial, she pointed to several occasions when MSES failed

to refer her to open iob orders for which she was coded

4 The evidence includes three such reviews. First, the

March 1979 review showed all services satisfactory for all but

black females, with job development and placement constant

for this group. Second, the February 1981 review posted job

development contacts for black females at 5% below the

benchmark and lacking in quantity, and demonstrated as well a

low quantity level of service for blacks. The February review

recommended referral to non-traditional jobs for minorities

and females reflect a racial and sexual mixture. Third, the

April, 1983 review noted that job development contact and

placement service for black females, actual referral for white

males, and placement after counseling for white males and

females fell below the benchmark. The April review suggested

that orders indicate a ractal/sexual mix of applicants, provided

MSES’‘s files included such applicants who would meet the

employer’s requirements, and that orders exclude non-bona

fide occupational qualifications (e.g.: “must be neat, clean &

attractive”).

and qualified (qualified, that is, at least to an extent equal

to any referred white applicant).° MSES, for its part,

5 First, to one job order for a cashier, MSES referred 22

whites (5 were hired) and no blacks, 10 of the 22 whites were

out of code and 3 did not meet the minimal experience criteria

established by this order. Two had no experience and 5 lacked

the requisite education. While the order remained open, Hill,

who admittedly would have qualified for the job, sought refer-

rals, though not specifically asking for this position. MSES did

not refer Hill. Rather, the records, as stipulated, indicate that

during the period in which the order remained open and Hill

sought referrals, MSES referred Hill to alternate positions (to

Carriage Inn as housekeeper, to Church’s as counter attendant,

to Gold Post Restaurant as counter helper, and to Kentucky

Fried Chicken as cashier).

Second, the order for cashiers requesting ten referrals

remained open for 5 weeks; MSES referred only 5 applicants,

four whites and one black. Qualified blacks on file had the

appropriate DOT Code. Hill was not referred to this job order.

Third, a job order for emergency room technicians, also

open while Hill sought referrals, requested five applicants,

MSES referred only one white woman out of code. Hill, who

previously worked at a hospital, was not referred.

Fourth, one day after filing her EEOC charge, Hill sought a

waitress referral but was advised no such orders were avail-

able. Instead, MSES referred her to the Ramada Inn as a house-

keeper. Upon arrival, Hill testified she discovered an open

waitress position that had been filed with MSES. That same

day, at the direction of Hill's attorney, a white female employee

of a legal service organization, sought referrals for waitress

jobs with MSES, and the clerk, different than the clerk with

whom Hill spoke, provided her two waitress referrals.

Fifth, seeking referral to County Market General Store, Hill

was told there were no openings; she personally went to the

store and discovered an open position, and told a MSES clerk

(Continued on following page)

~ 7a

pointed to a record of MSES referrals received by Hill and

to Hill’s work history, showing ten positions held by Hill

prior to the period in question, with the length of each

generally fluctuating between a few weeks and a few

months.® All MSES employees with whom Hill had con-

tact specifically denied racial considerations in referral

selections, attributing referral problems, such as those

reflected in Hill’s evidence, to employee error.

Respecting the total number of MSES referrals during

the relevant period, Hill and MSES stipulated to white/

non-white ratios of applicants in the active file, overall an

(Continued from previous page)

that a white woman had been hired for the position. Hill

lacked one year’s experience in grocery checking as required

by the job order. The clerk gave her a referral to County

Market and Burgertown as a cashier.

and June 1983, two as a housekeeper, five as a counter atten-

dant, four as a cashier, and five as a waitress. Ten occurred

after April 14, 1983 and all cashier referrals occurred after this

date. The Court specifically found all referrals occurred during

the relevant period. As pointed out, this finding is internally

inconsistent with declaring the relevant period to end on April

14, 1983.

Additionally, Hill was registered as a work incentive par-

ticipant in February 1983 and trained as a cashier-checker from

April to May 1983. Since April 1982, Hill worked as follows:

maid for three days, cashier for two weeks, attendant for 10

months, waitress for 7 months, and waitress.

average of 58.2% white, 41.7% non-white.” As well, both

stipulated: MSES referred 473 applicants to orders classi-

fied in the 311 DOT Code (255 or 53.9% white and 218 or

46% black) from April 1982 to February 1983, and of the

78 referrals, 233 were referred out of their primary DOT

Code (120 or 51.5% white and 118 or 48.4% black.) Addi-

tionally, 41 of the 95 iob orders processed had more than

one referral, 31 of the 41 orders having both black and

white applicants, and of the 373 applicants referred to

these 31 job orders, 184 were white (49.3%) and 189 black

(50.6%).

TOTAL ACTIVE FILE WHITE NON-WHITE

April 1982 2518 1316 (52.2%) 1202 (47.7%)

May 1982 2593 1384 (53.3%) 1214 (46.8%)

June 1982 2940 ~=1608 (54.6%) 1332 (45.3%)

July 1982 3470 =: 1949 (56.1%) 1521 (43.8%)

Aug. 1982 3683 2124 (57.6%) 1559 (42.3%)

Sept. 1982 3243 = 1894 (58.4%) 1349 (41.5%)

Oct. 1982 3707 =. 2227 (60.0%) 1480 (39.9%)

Nov. 1982 3855 = 2312 (59.9%) 1543 (40.0%)

Dec. 1982 3517 2126 (60.4%) 1391 (39.5%)

Jan. 1983 3463 = 2100 (60.6%) 1363 (39.3%)

Feb. 1. ‘83 3775 = 2259 (59.8%) 1516 (40.1%)

Feb. 28. ’83 4107 2519 (61.3%) 1588 (38.6%)

OVERALL

AVERAGE 3405 1984 (58.2%) 1421 (41.7%)

TOTAL BLACK/WHITE DOT CODE 311

REFERRALS APRIL 1982-

FEBRUARY 1983 WHITE BLACK

473 255 (53.9%) 218 (46%)

* Hill denied that all 311 referrals above were waiter/ waitress.

Without accounting for employer qualifications,

which may have rendered some applicants unacceptable

for referral, MSES filled relevant job orders from April

1982 to February 1983 as follows: processing six cocktail

waitress orders, shorting four, and referring in total 21

whites and no blacks; processing 39 waitress orders,

shorting 14 (11 of which referred no blacks), and referring

in total 113 whites and 46 blacks (but referring no blacks

to 24 of the 39 orders); and processing 146 cashier job

orders and referring in total 998 whites and 457 blacks

(but in 57 of the 146, referring only white applicants).®

Himmelstein, Hill’s statistics expert, analyzed the

actual referral pool derived from the stipulations above

and the unreferred pool as manifested in data generated

by a computer program developed to reflect referrals in

the 211 and 311 codes on the basis of race. MSES con-

trolled and supplied all information used to develop the

program and Hill’s computer expert ran the program on

MSES’s computers.’ The program searched MSES’s rele-

vant files to show an applicant's DOT Code on a given

date, and the data generated reflects black and white

unreferred applicants with either a 211 or 311 code dur-

ing the relevant time period. Looking for a pattern of

referral based on race and not attributable to chance,

% By “shorting,” we mean referring a number of applicants

less than that requested by the employer.

* The MSES systems analyst for 19 years, who assisted in

formulating the program, called it the best possible, but none-

theless inaccurate, because it drew data from the limited

ESARS system developed by the Department of Labor to report

record placement transactions. The ESARS system does not

account for applicants’ experience

10a

Himmelstein factored the data, generated by running the

program with the three digit numbers of the occupational

codes, into a formula to determine the number of stan-

dard deviations. For cocktail waitress, waitress, and cash-

ier positions, respectively, he calculated standard

deviations 4.88, 8.78, and 3.41, all of which are considered

statistically significant. Applying the formula to data gen-

erated from the entire nine-digit code, Himmelstein cal-

culated a standard deviation of 2.58 for the 211 Job

Orders and 1.92 for the 311 Job Orders. Few applicants or

referrals matched the nine digit code.

MSES’s statistical expert, Piette, considered the unre-

ferred pool generated by the program inaccurate,

whether generated from the nine or the three digit codes

Piette identified several additional problems in the pro-

gram: inability to distinguish part time from full time jobs

and an applicant’s preference; inability to assign value to

important factors such as education or experience; and

inability to consider difficulties or inabilities in contact-

ing particular applicants to apprise them of referrals.!°

Piette, however, admitted that changes in the program

'0 Hill provided some evidence regarding qualifications. A

vocational expert, Semko, reviewed the qualifications of the

269 whites referred in 87 job orders. MSES referred white

applicants equally or less qualified than Hill to 39 of the 87

orders, the referred white applicants’ qualifications falling

clearly below Hill’s in 25 of the 39, 66 of the 269 whites

referred had qualifications equal to or less than Hill’s, with 37

of the 66 clearly less qualified. Significantly, Semko excluded

from consideration the remaining 203, all being more qualified

than Hill.

lla

would only reduce the standard deviations calculated by

Himmelstein.

Examining the racial composition of the referred

applicant pool, Piette concluded MSES’s referrals and

referral procedures to be neutral. Based upon the print-

outs generated by Hill’s program. Piette found 65.9% of

all applicants (referred or unreferred) to be non-biack

compared to 34.1% black in the 211 code, and 50.1% non

black compared to 49.9 black in the 311 code. Only 13.5%

of the total 211 coded applicants (69.2% non-black, 30.8%

black) and 31.5% of the total 311 coded applicants (54.5%

white, 45.5% black) received MSES referrals. Analyzed by

racial composition, referrals neariy equalled the racial

composition of the applicant pool. The proportions of

out-of-code referrals by race among total referrals for the

211 code were 70.4% black and 64.3% white; for the 311

code, 78.9% black and 73.9% white. For out-of-code refer

rals to 211 positions, 32.8% were black and 67.2% white;

for 311, 47.1% black and 52.9% white

Racial Discrimination Claim

To locate our review today in the proper legal con

text, we briefly condense the Supreme Court’s methodol-

ogy for analyzing Title VII actions. The Court probes Title

VII actions under two well-established models for fer

reting out unlawful discrimination: disparate treatment

and disparate impact analysis. The first concentrates on

discriminatory motive, the second on discriminatory

effect. On the issue of discrimination, in either case, the

plaintiff bears the ultimate burden of persuasion; but the

onus of producing sufficient evidence for us to assess

12a

whether the plaintiff met this burden shifts. Wards Cove

Packing Co., Inc. v. Antonio, 490 U.S. 642, 109 S.Ct. 2115,

2120, 104 L.Ed.2d 788 (1989). Hill asks that her case be

analyzed under both models, and we do so.

Pinpointing both overt and covert discrimination,

disparate treatment analysis reveals differential treatment

of similarly situated persons on the basis of impermiss-

ible factors such as race or sex. Dislodging the status quo

of prior discrimination, disparate impact analysis dis-

closes the disproportionate impact of a facially neutral

but non-job-related policy upon a protected group such

as blacks or women. Griggs v. Duke Power Co., 401 U.S.

424, 429-30, 91 S.Ct. 849, 852-53, 28 L.Ed.2d 158 (1971).

Either model is applicable to employment practices that

utilize discretionary and subjective criteria. Watson v. Fort

Worth Bank & Trust, 487 U.S. 977, 108 S.Ct. 2777, 101

L.Ed.2d 827 (1988).

Only the disparate treatment model requires proof of

discriminatory animus, and it requires such proof

whether a given action alleges individual or class-wide

(pattern and practice) discrimination. Although, for indi-

vidual allegations, a single proven instance of unlawful

disparate treatment suffices, showing class-wide dispa-

rate treatment requires more than isolated or exceptional

instances of differential treatment. Hill does not assert

class-wide disparate treatment. In either case, the neces-

Sary animus may be shown directly or inferred from

circumstantial evidence.

Statistics play an important evidentiary role; circum-

stantial evidence of disparate treatment often includes

13a

(but need not) statistica) evidence, and a finding of dispa-

rate impact requires statistically significant disparities.

Statistics are not irrefutable; as the Supreme Court cau-

tioned, “they come in infinite variety.” Teamsters v. United

States, 431 U.S. 324, 340, 97 S.Ct. 1843, 1856, 52 L.Ed.2d

396 (1977). Indeed, we ourselves have noted that soundly

compiling and assessing statistics is “a task both complex

and arduous.” Wilkins v. University of Houston, 654 F.2d

388, 410 (5th Cir. 1981). Particularly in a case such as

Hill’s, alleging discriminatory referrals, we must care-

fully balance the danger of prejuuice to a defendant

posed by drawing inferences of discrimination from a

handful of referral decisions and the unfairness to the

Title VII claimant of imposing unattainable standards for

proof of discriminatory intent. Pegues v. Mississippi State

Employment Services, 699 F.2d 760, 769 (5th Cir. 1983).

Hence, we must be acutely aware that spotting mistaken

understandings or mischaracterizations of numerical data

either to suggest or to camouflage discrimination calls for

a finely tuned quantitative and qualitative eye.

With the proper methodology in mind, we turn to

Hill’s evidence. The case requires from us two standards

of review. Whether MSES unlawfully discriminated

against Hill constitutes the ultimate fact at issue in this

Title VII action, and consequently we address this issue

de novo. Even so, unless clearly erroneous, the trial

court’s findings of subsidiary fact bind us. Wilkins v

University of Houston, 654 F.2d 388, 390 (5th Cir. 1981)

A. Disparate Treatment

The district court properly divided its factual inquiry

into three stages: (1) Hill’s prima facie case; (2) MSES’s

14a

rebuttal; and (3) Hill’s showing of pretext. We follow suit.

First, we find no flaw in the prima facie test set forth by

us under similar facts and applied here by the District

Court. See Pegues at 774. Second, with reservations noted

below we accept MSES’s proffered rebuttal. Third, we

find that Hill failed to show pretext.

Following our lead, to establish her prima facie case

the court required Hill to prove by a preponderance of

the evidence (1) her membership in a protected group, (2)

her application and coding for an occupation for which

MSES was making referrals, (3) her failure to secure a

referral, and (4) MSES’s later referral of non-members of

the protected group. We agree that the specific incidents

of non-referral (supra, n. 5) establish Hill’s prima facie

case and engender a presumption of discrimination.

MSES countered, attributing its practices to ineffi-

ciencies inherent in a large, heavily-utilized, bureaucratic,

and undermanned system with limited resources. Specifi-

cally, MSES cited employee error or oversight, inefficient

communication between staff members, inability to con-

tact applicants, and applicants’ preferences. These, MSES

contends and the district court found, satisfy MSES’s

burden of producing a legitimate non-discriminatory rea-

son for its practices. Although we note our reservations

below, we must agree.

Accepting general inefficiency as a legitimate busi-

ness reason troubles us, for it seems a likely candidate for

use as a Shield for almost any employer - including a

discriminating one — to raise.'' As the Supreme Court

'! As the dissent aptly points out, on the average even

specifically demonstrated inefficiencies should weigh against

(Continued on following page)

15a

emphasizes, the desire to home in on the critical and

telling evidence schools our tripartite analysis. Texas

Department of Community Affairs v. Burdine, 450 U.S. 248,

256-57, 101 S.Ct. 1089, 1095-96, 67 L.Ed.2d 207 (1981). An

employer’s mere affirmations of good faith in individual

selections add no factual assistance and cannot ade-

quately rebut a prima facie showing of racial discrimina-

tion. International Bhd. of Teamsters v. United States, 431

U.S. 324, 342, n. 24, 97 S.Ct. 1843, 1858, n. 24, 52 L.Ed.2d

896 (1977); Pegues v. Mississippi State Employment Service,

699 F.2d 760, 766 (5th Cir. 1983).

Likewise, an utter lack of specifics on an employer’s

part does little to sharpen the fact-finder’s inquiry and is

equally unacceptable. Here, however, MSES does not

offer us an “utter lack of specifics,” but rather details the

numerous problems that produce its general inefficiency

- the district court finding sufficient evidence of each

problem and of efforts by MSES to combat it. Naturally,

the systematic problems proved to exist more credibly

spawn disparities in cases such as MSES’s, which involve

scores of different referrals to scores of different

employers, than in cases concerning the hiring practices

of a single employer for a single position. MSES need not

prove that the proffered reasons actually motivated it.

Burdine, 248 U.S. at 254, 101 S.Ct. at 1094. Proving that

(Continued from previous page)

blacks and whites equally. Because any given, individual prima

facie case of apparent disparate treatment may be explained on

such grounds of inefficiency, we should not presume slanted

effects. To show pretext, the plaintiff may demonstrate, with

properly compiled and analyzed statistics, a significant slant-

ing.

l6a

they did not is a task for Hill, as the plaintiff, in connec-

tion with the pretext issue. To overturn a finding as

clearly erroneous, the entire evidence must leave us with

a “definite and firm conviction that a mistake has been

committed”. Anderson v. Bessemer City, 470 U.S. 564, 105

S.Ct. 1504, 84 L.Ed.2d 518 (1985); United States v. Gypsum

Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746 (1918) [sic].

While we would have preferred even greater evidentiary

support for MSES’s systematic problems, we cannot say

that court’s subsidiary findings were unsupported or

clearly erroneous; therefore, we must accept them.

If in truth an agency’s or an employer’s verified,

detailed and documented inefficiency, absent any dis-

criminatory animus, accounts for results that nonetheless

appear at first glance to be the product of discrimination,

it would be the height of unfairness to infer fallaciously

such a discriminatory animus. We do not mean to con-

done inefficiency; we simply cannot punish it under Title

VII. With solace, we note: the phrase “to raise a shield of

inefficiency,” no matter how well factored and docu-

mented, does not translate automatically as “to fend off a

claim of discrimination;” a claimant may show pretext.

To show pretext, Hill relied upon the statistical evi-

dence, but the lack of an experience component and a job

preference component render the statistics fatally defec-

tive. Pegues at 7/0. Lest we forget that MSES’s stated goal,

imposed by EMSII, is to match open jobs with the most

qualified applicants, corresponding referral decisions

turn heavily upon experience and education. Failure to

include these factors would render some applicants inel-

igible for referral, decreasing the size of the applicant

17a

pool upon which the statistical analysis rests and pro-

ducing misleading numbers.

It is true, as MSES’s expert testified, that incorporat-

ing these components would only lower the standard

deviations presented to us, but by how much we do not

know and the evidence does not tell us, particularly

given the components’ critical nature. Statistically

accounting for qualifications might explain the disturbing

number of short referrals, specifically those in which

MSES referred only whites (supra, p. 1237); but absent

such particularized accounting, we cannot distill discrim-

inatory animus from the practice. In her brief, pointing

out that the same DOT Codes include traditionally minor-

ity jobs (e.g., counter attendant) and traditionally white

jobs (e.g., waitresses), Hill accuses MSES of steering.

Again, we lack any concrete evidence upon which to base

such a conclusion. The Title VII plaintiff must ultimately

prove discrimination by a preponderance of the evidence;

and, accordingly, such evidentiary gaps weigh against

Hill.

The gaps in Hill’s statistics do not stand as the sole

barrier to her attempt to show pretext. MSES’s system,

though inefficient, appears facially to be neutral.

The percentages of referred and unreferred applicants

equalled the overall racial percentages in the 211 and 311

pool: The same is true for out-of-code referral (which

Slightly favored black applicants). Of course, facial neu-

trality at the bottom line cannot immunize an agency or

employer from proved acts of discrimination against an

individual; but, at the same time, we cannot infer dis-

crimination against an individual! from statistics display-

ing neutrality toward the group. Furnco Constr. Corp. v

18a

Waters, 438 U.S. 567, 579-80, 98 S.Ct. 2943, 2950-51, 57

L.Ed.2d 957 (1978) (“Proof that [a] work force was racially

balanced or that it contained a disproportionately high

percentage of minority employees is not wholly irrelevant

on the issue of intent when that issue is yet to be

decided”); cf. Connecticut v. Teal, 457 U.S. 440, 454, 102

S.Ct. 2525, 2534, 73 L.Ed.2d 130 (Racially balanced pro-

motions at the bottomline did not relieve an employer

from the requirement that it show that a written screen-

ing test, determining the eligible candidates for promo-

tion and disproportionately disqualifying blacks, was

sufficiently job-related).

B. Disparate Impact

Hill suitably identified the specific employment prac-

tice challenged - a referral system utilizing subjective

traits and out-of-code referrals — but again, her statistical

analysis failed her. Wards Cove at 109 S.Ct. 2124, citing

Watson. The figures — the same asserted to demonstrate

pretext under the disparate treatment model - do not

offer sufficient proof that the challenged practice dispro-

portionately affected a protected group (here, blacks)

because, again, these figures neglected the education and

experience factors critical to referral decisions. Since the

district court considered all the evidence, both statistical

and non-statistical, in reaching its conclusion of no dis-

crimination under the disparate impact model, we decline

Hill’s invitation to remand for any further findings.

Having reached the ultimate issue of discrimination,

and having found none, we need go no further. Yet, we

cannot permit future Title VII analysis to be tainted by

19a

the district court’s casual acceptance of the following

fallacy: both black and white MSES clerks serviced Hill;

therefore, she was not the victim of discrimination, (that

is, “Blacks never discriminate against other blacks.”) To

the argument’s self-evident overbreadth, we add that the

Supreme Court has rejected it. Castenada v. Partida, 430

U.S. 482, 513, 97 S.Ct. 1272, 1289, 51 L.Ed.2d 498 (1977). !?

We recognize the court’s blameless intent simply to

explain what inferences may be drawn from an

employer’s use of subjective criteria (which does not

“necessarily” indicate discriminatory animus or impact,

regardless of the determining individual’s color); but we

must be sure that the court’s dubious explanatory lan-

guage does not generate a later, ill-conceived concurrence

with the fallacy.

Retaliation Claim

To prevail on a retaliation claim, Hill must prove that

she engaged in a protected activity, that an adverse

employment action occurred, and that a causal connec-

tion between the two existed. McMillan v. Rust College,

Inc., 710 F.2d 1112 (5th Cir. 1983). Hill contends that her

EEOC complaint prompted MSES employees to harass

her. Specifically, the employees allegedly stared at her,

followed her, prolonged the time she spend waiting for a

clerk, relegated her file to black referral clerks, destroyed

her identification card, deleted experience data from her

511 form, and criticized her claim of discrimination to a

Work Incentive class. All of this, according to Hill, caused

12 Similarly, we reaffirm that adequately servicing Hill in

some areas (e.g. training) would not have excused discriminat-

ing against her in other areas. Pegues at 775

20a

here to be hospitalized and to miss referrals. The fact that

Hill received numerous referrals and continued services

after filing the EEOC complaint did not escape the dis-

trict court’s attention. In short, the magistrate sitting at

trial and observing the witnesses judged as more credible

the employees’ testimony denying Hill’s allegations:

MSES replaced rather than simply destroyed Hill's identi-

fication card; whether MSES employees actually men-

tioned Hiil’s claim to the Work Incentive class or, if they

did, what exactly they said, is unclear; and no testimony

indicated that MSES employees made any statements in

retaliation for Hill’s EEOC complaint. The above findings

not being clearly erroneous, we affirm the court's judg-

ment in MSES’s favor.

AFFIRMED.

ALVIN B. RUBIN, Circuit Judge, dissenting:

Inefficiency is racially neutral. It cannot of itself

account for racial discrimination. When a person estab-

lishes a prima facie case that a state agency has discrimi-

nated against her because of her race, | would not accept

as a “legitimate nondiscriminatory” reason for the

agency’s admitted difference in treatment between her

and the members of another race that the ineptness of its

employees, the inadequacy of its budget, the size of its

system, or the bureaucratic nature of the machinery it has

devised suffice to negate the discriminatory animus man-

ifested by the decisions, at least partially subjective, that

its own employees have made.

The Mississippi State Employment Service is not a

disembodied entity on high that functions independently

of its employees. It is itself the deus ex machina that puts

2la

the actors on the stage and directs them. The allegedly

inefficient, regulation-hamstrung, overworked employees

whom it has hired and through whom it functions are the

MSES. It may not wash its hands of the spots, whether

damned or merely discriminatory, by which their actions

have stained the MSES. Indeed were its employees

merely inefficient, their actions would not have resulted

in racial discrimination, for inefficiency would function

as much to hamper white as minority applicants in seek-

ing jobs. Yet MSES’s actions is fact put stumbling blocks

in Ms. Hill’s path that were not placed before the paths of

white job applicants.

In addition to my inability to accept the proffered

excuses as legitimate reasons for the nonreferral of black

applicants, | would find the magistrate’s findings of sub-

sidiary fact as to pretext clearly erroneous, and | would

find that Hill has established a violation of Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Fair

Employment Practices Act, by disparate treatment. |

therefore respectfully dissent from the majority opinion

without reaching the disparate impact or retaliation

claims.

|. Disparate Treatment

The Act forbids racial, religious, and sexual discrimi-

nation in employment. In McDonnell Douglas Corp. v.

Green’ the Supreme Court set forth the basic allocation of

burdens and order of presentation of proof in a Title VII

case alleging discriminatory treatment. First, the plaintiff

' 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

22a

has the burden of proving by the preponderance of the

evidence a prima facie case of discrimination. Second, if

the plaintiff succeeds in proving the prima facie case, the

burden shifts to the defendant “to articulate some legiti-

mate, nondiscriminatory reason for the employee’s rejec-

tion.”? Third, should the defendant carry this burden, the

plaintiff must then have an opportunity to prove by a

preponderance of the evidence that the legitimate reasons

offered by the defendant were not its true reasons, but

were a pretext for discrimination.*® To fulfill its duty of

articulating a legitimate non-discriminatory reason, the

defendant must clearly set forth, through the introduc-

tion of admissible evidence, the reasons for the plaintiff's

rejection. The explanation provided must be legally suffi-

cient to justify a judgment for the defendant.4

The magistrate found, and the majority opinion

affirms, that Hill established a prima facie case of racial

discrimination. The evidence of such discrimination was

not merely statistical. From April 1982 to April 1983, the

period in which Hill contends she was a victim of dis-

crimination, she sought employment as a waitress or a

cashier partially because she could earn more than the

minimum wage usually paid fast-food restaurant counter

attendants (who, because they not only accept and

deliver orders but receive payment are sometimes

denominated “cashiers”). As the majority opinion indi-

cates in a footnote,° on several occasions during the

2 Id., at 802, 93 S.Ct. at 1824.

3 Id., at 804, 93 S.Ct. at 1825.

4 Texas, Dept. of Community Affairs v. Burdine, 450 U.S. 248,

253, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981).

* Majority opinion, fn 5.

23a

period when Hill sought employment as a cashier or

waitress MSES demonstrated an unusual pattern of refer-

rals of applicants for the position of cashier.

Case 1. MSES referred 22 whites for interviews for

employment as cashier, of whom 5 were hired. It did not

refer a single black applicant. Ten of the 22 whites were

“out of code,

mary prior occupation and three did not even meet the

minimal experience criterion established by the job order.

Mf /

meaning that “cashier” was not their pri-

Two had no experience and five lacked the requisite

education. “While the order remained open, Hill, who

admittedly would have qualified for the job,” the major-

ity opinion condedes, “sought referrals, though not spe

cifically asking for this position,”® as indeed she could

hardly have done unless she had specific knowledge of

the job order. Instead, “during the period that this order

remained open and Hill sought referrals,” the MSES did

‘

refer her to what it calls “alternate positions,”7 all of them

stereotypical for black persons in the deep south: to a

motel as a “housekeeper,” an euphemism for a maid; to

two fast-food chains, Church’s and Kentucky Fried

Chicken as a “cashier”, and to another as a counter

helper. These were in effect jobs making beds or serving

fried chicken. It scarcely bears mention that MSES does

not contend that Hill was unqualified in any way for the

job to which only whites were referred.

Case 2. An order for cashiers requesting ten referrals

remained open for five weeks. MSES referred only five

6 Id

7 Id

24a

applicants, four of whom were white. Neither Hill nor

any other putatively qualified black was referred for the

remaining five interview slots.

Case 3. “[A] job order for emergency room techni-

cians, also open while Hill sought referrals, requested

five applicants. MSES referred only one white woman,

out of code. Hill, who previously worked at a hospital,

was not referred.”* MSES does not contend that Hill’s

prior hospital experience did not qualify her for at least

an interview with the employer, who requested four more

persons for interviews than the number actually referred.

Case 4. One day after she had filed her EEOC com-

plaint, Hill again sought a job referral as a waitress.

Instead she was referred to a Ramada Inn as a “house-

keeper.” Upon arrival she found that the Inn had filed a

request for a waitress with the MSES. “That same day, at

the direction of Hill’s attorney, a white female employee

of a legal services organization sought referrals for wait-

ress jobs with MSES, and the clerk, different than [sic] the

clerk with whom Hill spoke [sic], provided her two wait-

ress referrals.”?

We, as well as other courts, have recognized that

subjective selection processes tend to facilitate the consid-

eration of discriminatory criteria.'!? While the MSES

8 Id.

9 Id.

10 Roberts v. Gadsden Memorial Hospital, 835 F.2d 793, 798

(11th Cir. 1988); Payne v. Travenol Laboratories, Inc., 673 F.2d 798,

827 (Sth Cir. 1982); Cox v. American Cast Iron Pipe Co., 784 F.2d

1546, 1560 (11th Cir.), cert. denied, 479 U.S. 883, 107 S.Ct. 274, 93

L.Ed.2d 250 (1986).

25a

admits that the employees with whom Hill had spoken

did use subjective criteria as well as job codes in making

referrals, the job referrers denied racial considerations in

referral selection. Instead, the MSES and its employees

presented a united front: the problems merely reflected

employee error. The coincidence of such employee error

consistently operating to the detriment of Hill strains

credulity. A cashier may sometimes be “short,” that is,

she may sometimes turn in less cash than her register

records, but if this is due to error, then she ought also, at

lease on some occasions, to be “over,” having more cash

than the register records. There is reason to suspect the

employee who is always short and never over. Moreover,

Hiil’s statistical expert testified to a significant statisfical

deviation in referring blacks. Even the MSES’s statistical]

expert conceded that Hill’s data demonstrated that the

MSES system has a statistically significant disparate

effect on black applicants, although he rejected the mag-

nitude of the measure.

The majority refers to the MSES “system” as racially

neutra!. But verbal neutrality does not suffice to explain

discrimination in application. The MSES has not shown a

single instance in which its inefficient system favored

black employees or in which the failure to refer

employees to jobs resulted from difficulty in reaching Hill

- or from overwork - or from red tape. Presumably so

inefficient a system would sometimes result in the neglect

or oversight of white applicants. The evidence shows that

the MSES systems is inefficient only when it fails to refer

black employees.

26a

Il.

The majority opinion does not even attempt to define

what is meant by a legitimate nondiscriminatory reason.

It contents itself with the conclusion that an employer’s

inefficiency limited budget, self-manufactured red tape,

and the excessive work load it places on its own

employees, suffice. I submit that none of these alone nor

all together constitute legitimate reasons for discrimina-

tion. Surely the word “legitimate” must mean more than

simply non-criminal or not forbidden by law, for we

would not as a matter of course accept either a criminal

act or one otherwise forbidden by law as sufficient to

justify discrimination. Instead, a “legitimate” reason must

be one that is justifiable in view of the purposes of the

Fair Employment Practices Act.

The Supreme Court has given support to this inter-

pretation, stating that “[t]he broad overriding interest,

shared by employer, employee, and consumer, is efficient

and trustworthy workmanship assured through fair

and ... neutral employment and personnel decisions.”"!

A legitimate reason must be in some degree related to job

efficiency, the employer’s needs, or the applicant’s quali-

fications. That, to me, is implicit, though never expressed,

in Texas Department of Community Affairs v. Burdine.'?

Oversight of an applicant is not a legitimate reason, for,

like inefficiency, it does not serve any justifiable employ-

ment purpose. Thus, in Roberts v. Gadsden Memorial Hospi-

tal’? the employer responded to a prima facie case of

11 McDonnell Douglas, 411 U.S. at 801, 93 S.Ct. at 1823.

12 450 U.S. at 248, 101 S.Ct. at 1089.

13 835 F.2d at 793.

27a

disparate treatment by claiming that he had simply never

considered Roberts for the available position and there-

fore could not have been guilty of discriminatory intent.

Instead, he had hired someone with whom he was

friendly on a social basis. The court held that the

employer’s failure to consider Roberts was itself dispa-

rate treatment and therefore could not constitute a

defense:

where . .. an employer has reason to know that

an employee is qualified for a position and that

the employee might desire to be considered for

that position, the employer’s failure to consider

the employee for promotion is not a legitimate,

nondiscriminatory reason sufficient to rebut an

inference of intentional disparate treatment.!4

Cant by an employer and homilies against discrimi-

nation delivered to its employees do not suffice to explain

the discriminatory effect of its employees’ practices. If its

employees’ actions result in racial discrimination, their

malfeasance is not sufficient to rebut the inference of

racial discrimination already demonstrated by the plain-

tiff in establishing her prima facie case. The MSES is itself

responsible for its employees’ actions.

The need for efficiency constitutes a defense in dispa-

rate-treatment cases. It would be ironic if the employer’s

claim of its own inefficiency also served as a defense.

This ought to dispose of the defense to the disparate-

treatment case. Even if it does not, I submit that the

14 Id. at 798. But see Gaballah v. Johnson, 629 F.2d 1191 (7th

Cir. 1980).

28a

magistrate was clearly erroneous in concluding that the

reasons advanced by MSES were not a pretext. The MSES,

acting through its employees — the only way in which it

could act — intentionally discriminated against Hill.

For these reasons, I would reverse the judgment,

render judgment in Hill’s favor on her discrimination

claims and remand the case to the district court to deter-

mine the appropriate remedy.

29a

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPP!

SOUTHERN DIVISION

HAZEL HILL PLAINTIFF

VERSUS CIVIL ACTION NO. H83-0281(W)

MISSISSIPPI STATE EMPLOYMENT SERVICE,

HATTIESBURG DIVISION; MISSISSIPPI

EMPLOYMENT SECURITY COMMISSION;

O.H. SIMMONS, EXECUTIVE DIRECTOR;

HUGH GIBSON, WILLIAM G. LEONARD,

and MARY BRYANT, COMMISSIONERS

DEFENDANTS

MEMORANDUM OPINION

FILED

MAY 01 1989

This cause came on for trial on December 12, 1988 in

the United States District Court for the Southern District

of Mississippi, the Honorable Britt Singletary presiding

and this Court, having heard and considered all testi

mony and having thoroughly reviewed all the evidence,

enters the following opinion:

I. PROCEDURAL HISTORY

Plaintiff, Hazel Hill (“Hill”) is an adult black female

resident of Forrest County, Mississippi. Defendant, Mis-

Sissippi State Employment Service (“MSES”) is a division

of Defendant Mississippi Employment Security Commis-

sion (“MESC”) which is a member of the national net-

work of state employment services established and

funded by the Wagner-Peyser Act, as amended, 29 U.S.C

sna eaeameeaa

30a

§ 49 through 49(k). MSES is an employment agency as

defined in § 701(c), 42 U.S.C. § 2000(e)(c).

The relevant time period in the present case is April

1, 1982 to April 14, 1983. During this period, Hill sought

job referrals as a cashier, waitress and cocktail waitress

from MSES’s local office in Hattiesburg, Mississippi. On

March 8, 1983, Hill filed a complaint with the Equal

Employment Opportunity Commission (“EEOC”) against

MSES and MESC alleging racial discrimination against

each for failing to refer Hill to jobs for which she was

qualified. The EEOC found no reasonable cause to pursue

Plaintiff’s allegations but issued a right to sue letter on

July 5, 1983.

On September 2, 1983, Hill filed the present com-

plaint! alleging that MSES intentionally and/or recklessly

discriminated against her based on race in their job refer-

ral practices. Her claims are based on Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000(e), et seg. The suit is

an individual claim of discrimination as Hill seeks declar-

atory and injunctive relief and backpay as remedies for

the alleged discriminatory acts and practices.

II. MSES’S REFERRAL PROCEDURES

MSES operates numerous local offices throughout the

State of Mississippi which provide job referrals to appli-

cants. MSES does not guarantee employment but only

1 For purposes of this opinion, it is only necessary to

outline the claims which were tried before the court. Any

remaining claims were either voluntarily dismissed by Hill or

dismissed by action of the District Court.

31a

refers qualified applicants to jobs in the area. Area

employers place job orders with MSES expressing both

the number of applicants sought and the qualifications

required of each applicant. MSES’s clerks process each

job order and notify the qualified applicants of the job

opening

MSES’s job referral service is accomplished by utiliz-

ing a nine digit Dictionary of Occupational Titles Code

(hereinafter referred to as “DOT Code”). Each applicant

seeking a job referral from MSES is interviewed and

provided a MSES 511 form. The interviewer records the

applicant’s education, training, work experience, job pref-

erences and other relevant information on the 511 form.

Based on this information, each applicant is assigned a

corresponding DOT Code.

The first three digits of the DOT Code identify a

particular occupational group, 1.e., 311 = waiter/waitress

and related food services. The middle three digits iden-

tify worker function ratings. The final three digits indi-

cate the alphabetical order of the titles within the six digit

code.

The 511 form is recorded in pencil to permit updating

and is filed alphabetically under the appropriate three

digit occupational group code. Applicants also fill out a

UC-502-identification card which contains their name,

social security number and DOT Code or Codes.

MSES’s interviewers process employer job orders

Employer orders inciude information concerning the job,

the number of vacancies, number of applicants sought

32a

and job qualifications, including education and experi-

ence requirements imposed by the employer. Inter-

viewers were authorized to evaluate whether educational

and experiential criterion were sufficiently job-related

and if not, whether additional investigation was required

prior to processing any suspect job order. MSES’s policy

encouraged interviewers to dissuade employers from

imposing arbitrary hiring requirements. Discriminating

job orders were not serviced pursuant to the guidelines

established in the Employment Service Manual II, § 1294

(hereinafter “ESMII”). ESMII provided operational guide-

lines, with which MSES was required to comply.

Once the necessary information concerning the job

order was gathered, interviewers coded each job vacancy

in the order according to the DOT Code classification

used for applicants.

Once an applicant requested a referral, the inter-

viewer or clerk would search the job orders for vacancies

matching the applicant’s 511 form. If the search produced

a matching order which was open and which the appli-

cant was qualified for referral, the clerk would refer the

applicant.

Pursuant to ESMII, § 1470, interviewers were to first

search active files of applicants with a matching occupa-

tional title and code to the employer order. If the search

failed to produce sufficient applicants, interviewers were

directed to search inactive files with matching codes and

active files of related occupational qualifications, namely,

those files with a matching first three digit group.

The primary factors considered were the DOT Codes,

the type of job and the applicant’s experience and job

33a

preference. Interviewers also relied on personal judgment

and experience in matching referrals and such decisions

included subjective factors including the applicant's atti-

tude, appearance, personality, employment history and

other relevant job-related factors. Pursuant to the guide-

lines established in the ESMII, MSES attempted to match

job orders with the most qualified applicant.

The Court’s finding on these matters is based on the

testimony of Jimmie Poole, the placement supervisor at

the Hattiesburg office during the relevant period and the

testimony of Betty Pace and Larry Hurt, referral clerks in

the Hattiesburg office during the relevant period.

Additionally, certain applicants were classified as

either Extended Benefit Applicants or Federal Supple-

mental Compensation Claimants. Federal and state stat-

utes require that such applicants be referred to any job

for which they are qualified provided such positions pay

minimum wage. They were not priority referrals and

separate files reflecting these applicants were not kept by

MSES.

During the period of April 1, 1982 through April 4,

1983, Hill was coded for cashier-checker (211-462-014)

and waitress (311-477-030). Her primary claims concern

alleged discriminatory acts and practices in making such

referrals as well as claims of retaliation as a result of her

filing an EEOC charge.

Il. EVIDENTIARY FINDINGS

At trial, Hill offered historical, circumstantial, direct

and statistical evidence to establish her prima facie case.

34a

MSES offered statistical and other evidence in rebuttal.

Upon review of all the evidence, this Court finds:

A. Historical Evidence

Pursuant to ESMII § 1294, MSES’s employees are

required to refuse to process job orders where an

employer has stated discriminatory preference. Section

1294 also authorizes random investigations of employers

who received referrals where the office had information,

regardless of the source, that the employer was discrimi-

nating. Random referral reviews of one month were also

authorized.

Based on the testimony of Herman Teal, the Director

of MSES for 13 years prior to the filing of the present suit,

this Court finds no such investigations were conducted

during a 13-year period prior to the institution of this

suit. The Court further finds that this evidence alone is

insufficient to establish a pattern of historically condoned

discrimination by MSES. There is no evidence as to the

number of complaints, if any, lodged with MSES about

local employers.?

B. Circumstantial Evidence

MSES was subject to yearly Equal Employment

Opportunity Compliance reviews wherein their referral

* Although Teal testified in a Title VII class action against

a local employer, Neco, an isolated incident does not constitute

wide-spread employer discrimination or MSES condonation of

such practices.

35a

and other services were evaluated with regard to federal

and state civil rights laws.

A review dated March 2, 1979 found “the level of

service” satisfactory for all groups except black females.

Job developments and placements were constant for this

group. A review dated February 25, 1981 found Job

Development contacts for black females five percent

below bench mark and lacking in quantity. The quantity

level of service for blacks was reported as low.

The same review recommended a sexual and racial

mixture be reflected in referrals to non-traditional jobs for

minorities and females. The recommendation noted

active applicants from each group when job orders were

received.

An EEOC compliance review dated April 21, 1983

recommended job orders should include a mixture of

applicants based on race and sex provided such appli-

cants were in the file and met the employer’s require-

ments. Additionally, the review recommended that non-

bona fide occupational qualification statements (i.e.,

“Applicant must be neat, clean and attractive”) should be

avoided on orders. The review also found black females

below bench mark for job development contact and place-

ment after job development. White males were below

bench mark in actual job referrals, while males and

females were below bench mark in applicants placed after

counseling.

The EEOC reviews discussed above were conducted

and authored by Mr. Lewis Beverly, a black male EEOC

officer in charge of training MSES’s staff with regard to

applicable EEOC regulations and civil rights laws. As is

36a

evidenced by the reports, MSES’s Hattiesburg office per-

formance was rated satisfactory overall. Mr. Beverly testi-

fied the reviews highlighted problem areas which needed

improvement. He further testified his recommendations

were based solely on documentation rather than actual

interviews with the applicants. Further, the figures

reflected in the reviews were based on all codes and

applicants. He stated it was impossible to refer every

applicant to a particular job and noted that MSES’s per-

sonnel worked to improve the areas noted in the reviews.

Herman Teal testified measures were instituted in an

effort to improve areas reported in the EEOC reviews.

Such measures involved adding more blacks to the staff,

creation of the affirmative action compliance plans and

minority forums.

C. Direct Evidence

Additionally, Hill pointed to specific incidents of

alleged discrimination in job referrals. The first incident

involved referrals of cashiers to Hudson’s, a department

store in Hattiesburg, Mississippi. Lewis Beverly testified

that upon reviewing this job order, he noted that 22 white

applicants were referred, 5 of whom were hired. No black

applicants were referred. Beverly stated Hill was quali-

fied for this job. He also noted that 10 of 22 whites

referred to this order were referred out of code and 3 did

not meet the minimal experience criteria established by

the employer. Two of the 22 referrals had no experience

required by the job order and 5 of the 22 referrals lacked

the educational requirements.

37a

Marie Edwards and Kay Hildebrand, MSES’s clerks,

each admitted Hill was qualified but was not referred.

The records of referrals indicate Hill had been referred to

the Hattiesburg Ramada Inn on January 10, 1983. Beverly

opined that Hill may have been considered inactive and

therefore not referred to the Hudson’s opening. However,

Beverly noted that the Hudson’s job order was opened

January 12, 1983 and was not closed until March 18, 1983

and that Hill sought-referrals in February and March

MSES conceded the referrals to Hudson’s did not

meet the ESMII standards. However, the Hudson’s job

order was 1 of 142 orders processed by MSES which was

subject to review. Additionally, the records, as stipulated,

indicate Hill received the follOwing referrals:

(1) February 11, 1983 - referred to Carriage Inn

as housekeeper;

(2) February 11, 1983 — referred to Church’s as

counter attendant;

(3) February 23, 1983 — referred to Gold Post

Restaurant as counter helper; and

(4) March 2, 1983 - referred to Kentucky Fried

Chicken as a cashier (position filled how-

ever).

A second incident involved referral for cashiers at a

local convenience store which opened February 1, 1983

and closed March 7, 1983. According to Beverly, the job

order requested ten referrals but only five applicants

were referred by MSES. Four of the applicants were white

and one was black. Hill was not referred to this job order

Beverly stated short referrals were areas of concern which

were discussed with local managers. He added qualified

blacks on file had the appropriate DOT Code.

38a

A third order of concern to Beverly involved referral

of applicants as an emergency room technician which

opened March 2, 1983. Five referrals were sought but

only one white female was referred. Additionally, the

referral was out of code. Beverly noted that Hill had

previous work experience at a hospital but was not

referred.

On March 10, 1983, one day after Hill filed her EEOC

charge, she sought a waitress referral from MSES but was

advised no such orders were available. She was referred

tc Ramada Inn as a housekeeper but testified that upon

arrival she discovered a waitress job was available and on

file with MSES. On the same date, Shirley Herrin Garri-

son, a white female employee of the Southwestern Missis-

sippi Legal Services, sought referrals for waitress jobs

with MSES upon the direction of Jeremy Eisler, Hill’s

attorney. Marie Edwards, a black MSES clerk, gave her

two waitress referrals to Chez Paul and Pier 49. Edwards

testified that Hill sought referrals from Kay Hildebrand

and that Hildebrand might not have been aware of the

job orders from Chez Paui or Pier 49. She added it was

common for interviewers’ awareness of specific job

orders to be staggered. She testified one interviewer may

receive the order and begin filling it before the other

interviewers learned it had come into the office.

In May 1983, Hill testified she requested a cashier

referral to County Market grocery store but was told no

openings were available. However, she later went to the

store and learned such a position was open. Larry Hurt, a

black male MSES employee, recalled the incident and

stated Hill saw him that morning and requested such a

referral. However, he testified he was not aware of sucha

39a

position. Hill called again that afternoon stating a white

woman had been hired for the position. Although Hill

lacked one year’s experience in grocery checking as was

required by the job order, Hurt testified he gave her a

referral to County Market and Burgertown as a cashier.

His failure to locate the initial order was explained as an

oversight on his part.

MSES offered evidence of Hill’s prior work history

which showed Plaintiff held ten different positions prior

to the period in question. The length of each job fluctu-

ated between a few weeks and a few months. Her longest

period of employment was from September 1979 through

April 1982. From February 1979 through August 1979,

Hill held two jobs at the same time.

MSES also offered evidence which showed Hill

received 16 referrals between January and June 1983. Of

these referrals, two were as a housekeeper, five were

referrals as a counter attendant, four were referrals as a

cashier and five were referrals as a waitress. Ten of the

referrals occurred after April 14, 1983 and all cashier

referrals occurred after this date. Although there is some

dispute as to the date of referrals referred to above, the

Court finds they all occurred during the relevant period

Hill was also registered as a work incentive partici

pant in February 1983 and was trained as a cashier-

checker from April 1 through May 3, 1983. Since April

1982, Hill has been employed as follows

40a

(1) Maid —- Ramada Inn - January 23-25, 1983;

(2) Cashier - Krystal Restaurant - June 15-July

1, 1983;

(3) Attendant — Hattiesburg Convalescent Cen-

ter — June 1983-March 30, 1984;

(4) Waitress - Days Inn Hattiesburg - February

30-O* ober 1, 1988;

(5) Waitress - Days Inn Meridian - November

1, 1988-present.

Additionally, MSES offered evidence to show Hill

had personal contact with six MSES employees. Four of

the employees were black, Marie Edwards and Larry

Hurt, both black employees, testified race played no fac-

tor in their decisions to refer Hill to any particular job.

Each denied any personality conflicts with Hill and stated

referral problems such as those reflected in the Hudson’s

job order were isolated incidents caused by employee

error as opposed to condoned or wide-spread practices

by MSES. All MSES employees denied racial consider-

ations in referral selections.

E. Statistical Evidence

Either by way of expert witnesses or through stipula-

tions, each party offered statistical evidence reflecting the

total number of referrals, referrals of 311 DOT Codes, and

other such evidence in support of their cases. This evi-

dence can be summarized as follows:

4la

TOTAL ACTIVE FILE WHITE NON-WHITE

April 1982 2518 1316 (52.2%) 1202 (47.7%)

May 1982 2593 1384 (53.3%) 1214 (46.8%)

June 1982 2940 1608 (54.6%) 1332 (45.3%)

July 1982 3470 1949 (56.1%) 1521 (43.8%)

August 1982 3683 2124 (57.6%) 1559 (42.3%)

September

1982 3243 1894 (58.4%) 1349 (41.5%)

October 1982 3707 2227 (60.0%) 1480 (39.9%)

November

1982 3855 2312 (59.9%) 1543 (40.0%)

December

1982 3517 2126 (60.4%) 1391 (39.5%)

January 1983 3463 2100 (60.6%) 1363 (39.3%)

February 1,

1983 3775 2259 (59.8%) 1516 (40.1%)

February 28,

1983 4107 2519 (61.3%) 1588 (38.6%)

OVERALL

AVERAGE 3405 1984 (58.2%) 1421 (41.7%)

TOTAL BLACK/WHITE DOT CODE 311

REFERRALS APRIL 1982-FEBRUARY 1983

WHITE BLACK

473 218 (46%)

* Hill denied that all 311 referrals were waiter/waitress

42a

The above totals reflect 95 job orders processed by MSES.

Forty-one orders had more than one referral and 31 of

these referrals had both black and white applicants. A

total of 373 applicants were referred to these 31 job

orders, 184 white (49.3%) and 189 black (50.6%). Of the

entire 473 referrals in the 311 DOT Code, 233 applicants

were referred out of their primary DOT Code. Of these

referrals, 120 (51.5%) were white and 113 (48.4%) were

black.

During April 1982 through February 1983, MSES pro-

cessed six identifiable cocktail waitress job orders refer-

ring 21 whites and no blacks. Four job orders referred less

applicants than requested. See Pretrial Order (“PTO”)

Section 8, No. 40, page 28. Thirty-nine job orders for

waitress were processed during this same period and 113

whites and 46 blacks were referred. Twenty-four of those

orders referred no blacks and 14 orders referred less than

the number of applicants requested. Eleven of the short

referrals referred only white applicants. See PTO Section

8, No. 41, pages 28-29. One hundred forty-six cashier job

orders were processed with 998 whites referred and 457

blacks. In 57 of the 146 job orders, MSES referred only

white applicants. The total percentages of these job

orders are as follows:

3 The information and figures discussed above were stipu-

lations entered by the parties and made part of the pretrial

order in Section 8, pages 26-28.

43a

BLACK REFERRALS WHITE REFERRALS

6 cocktail jobs 0% 100%

39 waitress jobs 28.5% 71.1%

146 cashier jobs 31.4% 68.6%

See Plaintiff’s Exhibit 10.4

In addition, Hill offered testimony from Mike

Rodgers, a computer programming expert. Rodgers was

hired to develop a computer program which reflected

referrals in 211 and 311 codes on the basis of race. All

information used to develop the program was controlled

and supplied by MSES and the program was run on

MSES’s computers. Rodgers submitted the program to

MSES for objections or suggestions for the program in

order that the data compiled would reflect an accurate

reference pool from which a statistical analysis could be

calculated.° The data generated by the Rodgers program

was submitted to Dr. Jerry Himmelstein, an expert in

statistics.

Dr. Himmelstein testified he based his statistical

analysis on two sources: (1) the actual referral pool

derived from the stipulations entered by the parties and

contained in the pretrial order and (2) the unreferred pool

as generated by the Rodgers program. The analysis was

4 The totals cited above reflect total job referrals in those

categories for the period April 1982 through February 1983.

They do not take into account employer qualifications which

may have rendered some applicants unacceptable for referral.

> Rodgers’ program searched MSES’s relevant files in

order to show an applicant’s DOT Code on a given date. The

data generated reflects black and white unreferred applicants

with either a 211 or 311 code during the relevant time period.

44a

designed to determine whether there was a pattern of

referral based on race and whether that pattern was

attributable to discriminatory or non-discriminatory prac-

tice or whether the result was created by chance. Initially,

Himmelstein ran the program with the entire nine digit

number but it had to be inaccurate because few appli-

cants or referrals matched the nine digit code. Instead,

the program was run and data obtained based on the

three digit numbers of the occupational codes. The results

were factored into a formula to determine the number of

standard deviations. Standard deviations determined

whether the results showed a significant statistical dis-

parity between observed referrals and expected referrals.

The following indicate the results of Himmelstein’s

statistical analysis of black referrals to cocktail job orders,

waitress job orders and cashier job orders serviced during

the applicable period as calculated using the Rodgers

three digit program:®

JOB ORDER STANDARD DEVIATIONS

(1) Cocktail waitress 4.83 7

(2) Waitress 8.78

(3) Cashier 3.41

(All standard deviations considered statistically signifi-

cant.) See Plaintiff's Exhibit 10.

®’ The formula used to calculate the standard deviations

was approved by the Fifth Circuit in Pegues v. Mississippi State

Employment Services, 699 F.2d 760 (5th Cir. 1983).

Finally, Himmelstein applied the formula to the

Rodgers program which used the entire nine digit code

and calculated the following standard deviations

DOT CODE STANDARD DEVIATIONS

211 Job orders 2.58 -

311 Job orders 1.92

See Plaintiff's Exhibit 33

Himmelstein concluded these figures resulted in

Statistically significant disparity in racial referrals. Both

he and Rodgers felt the program developed by Rodgers

provided an accurate pool from which a reliable statisti

cal analysis could be conducted and Himmelste‘» opined

that a pattern of racial disparity in referrals which disad

vantaged blacks occurred during the period in question

MSES challenged the statistical findings through tes

timony from Linda Monk and Dr. Mike Piette. Monk was

a systems analyst employed by MSES for 19 years. She

worked on the ESARS system developed by the Depart

ment of Labor to report and record placement transac

tions. She assisted Rodgers in formulating his program

but stated MSES had never attempted to develop such a

pool. She also felt Rodgers formulated the best possible

program but the results did not reflect an accurate pool

Specific objections to Rodgers program interposed by

MSES were: (1) applicants could change from active to

inactive within one day; (2) applicant could terminate or

change offices on a particular day; and (3) duplicate

social security numbers would produce an inaccurate

pool. Both Rodgers and Himmelstein stated these objec

tions were of little consequence as they focused on active

46a

transactions on a particular date in an effort to create an

accurate referral pool.

Dr. Piette, an expert in labor economics and applied

Statistics, also testified the Rodgers pool was inaccurate

regardless of whether the nine or three digit run was

utilized to generate the pool. Of the two runs, Piette

noted the nine digit run was more precise, thereby

reflecting the better pool. Using Plaintiff’s printouts,

Piette found that 65.9% of all total applicants (referred or

unreferred) in the 211 DOT Code were non-black and

34.1% were black. For the 311 code, the percentages were

50.1% non-black and 49.9% black. Only 13.5% of the 211

applicants received referrals while 31.5% of the 311 appli-

cants received referrals. Of those in the 211 code, 69.2%

were non-black and 30.8% were black. In the 311 code,

54.5% of referred applicants were white and 45.5% were

black. The referrals by racial composition were about

equal to the applicant’s pool racial composition. See

Defendant’s Exhibit 6, pages 1-4. Other relevant findings

showed that more blacks were classified as 211 and 311 in

Forrest County than white applicants. The percentages of

out-of-code referrals in the 211 and 311 DOT Codes were

as follows:

CODE BLACK WHITE

211 32.8% 67.2%

311 47.1% 52.9%

The proportion of out-of-code referrals by race among the

total referrals were as follows:

iti eenemeeeieieneemdnieiamemniimiel

47a

CODE BLACK WHITE

211 70.4% 64.3%

311 78.9% 73.9%

Based on these figures, Piette opined the procedures

employed as well as the actual referrals made were neu-

tral.

Additional problems with the Rodgers program as

identified by Piette included an inability to distinguish

between part-time and full-time jobs and an applicant’s

preference for one or the other, an inability to assign

value to important factors such as education or experi-

ence and an inability to consider difficulties or inabilities

to contact a particular applicant in order to apprise them

of the referral. However, Piette admitted that changes in

the program would only reduce the standard deviations

calculated by Himmelstein and further conceded that

with a .05 significance level of disparity, a standard devi-

ation of 1.96 would be statistically significant.

Finally, Dr. Elizabeth Semko, a vocational expert,

reviewed the qualifications of the 269 whites referred in

87 job orders. Of this number, she found that 39 of the job

orders had white applicants referred with qualifications

equal to or less than Hill. Twenty-five of the 39 job orders

and white applicants referred with qualifications clearly

below or less than Hill. Of the 269 applicants referred, 66

had qualifications equal to or less than Hill and 37 of

those had qualifications less than Hill’s. The results were

based on the applicant’s 511 forms and DOT Codes

assigned each. Two hundred three applicants were better

48a

qualified than Hill and were excluded from consider-

ation. In Dr. Semko’s opinion, these figures were statis-

tically significant indicating a disparity in referrals.

F. Evidence of Retaliation

Hill also alleged that MSES retaliated against her for

the March 8, 1983 filing of an EEOC complaint. In support

of this claim, Hill offered proof that on March 10, 1983,

she sought a waitress referral but was only referred as a

maid. On that same date, Shirley Herrin, a white female,

received two waitress referrals.

Additionally, Hill testified Marie Edwards tore up

her identification card. Edwards recalled the incident but

stated the card was destroyed and replaced with an

updated card. Hill claimed she was followed and stared

at by Betty Pace on April 18, 1983. Pace had no recollec-

tion of the incident but stated she had followed appli-

cants out of the building before either unintentionally or

because she needed something from the applicant.

On April 28, 1983, Hill stated she came to MSES’s

office at 8:00 a.m. to seek a referral to County Market

grocery store but was kept waiting for over an hour and

did not receive the referral until she demanded it later

that afternoon.

All MSES employees denied knowledge of the inci-

dent and stated it was unusual for applicants to be kept

waiting. Larry Hurt recalled the County Market referral

but explained his failure to refer Hill was the result of

oversight on his part rather than a retaliatory action

against Hill.

49a

Marie Edwards admitted that MSES employees were

told Hill had filed a complaint but denied that it played

any factor in referrals. Larry Hurt testified he was

unaware of the EEOC charge at the time of the County

Market incident. Charles Brown, a Work Incentive

(“WIN”) counselor, admitted knowledge of the suit but

stated all WIN participants were treated the same and

required strict compliance with the rules of the program

for all participants. He denied referring to Hill's lawsuit

in front of the entire WIN class. Jacqueline Jones, Hill's

WIN supervisor, denied making statements about the

suit. Laura Payton, a WIN participant, testified Charles

Brown did comment on the suit to the class. However,

Brown stated Payton asked about Hill’s suit and he

changed the subject.

The evidence shows that Hill received 11 referrals

after she filed her EEOC complaint, including 3 cashier

referrals other than the County Market incident and 3

waitress referrals. See PTO, Section 8, paragraph 1, pages

19-20. Hill was also registered in the WIN program dur-

ing this period and receive cashier-checker training. See

PTO, Section 8, paragraph 2, pages 20-21. In 1986, Hill

received 21 referrals for MSES (16 waitress, 1 cashier)

Her 511 form was altered to show added occupational

codes for assembly, harness maker and sewing machine

operator.

IV. APPLICATION AND CONCLUSIONS OF LAW

Under Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000(e) et seq., an individual plaintiff may seek

recovery for alleged discriminatory acts or practices

50a

under either the disparate treatment theory or disparate

impact theory. Watson v. Fort Worth Bank & Trust, ___ U.S.

__, 108 S.Ct. 2777, 101 L.Ed.2d 827 (1988). Although

either theory is applicable to any given set of facts, the

proof under each theory differs somewhat. Under the

disparate treatment theory, a Title VII plaintiff must

establish discriminatory animus or intent with either

direct or circumstantial evidence in order to prevail on

the claim. Texas Dept. of Community Affairs v. Burdine, 450

U.S. 248, 253 (1980). A Title VII plaintiff seeking recovery

under the disparate impact theory must simply show that

an employer has utilized a facially neutral practice which

impacts more severely on one group than another. Inter-

national Brotherhood of Teamsters v. United States, 433 U.S.

321 (1977).

In an effort to facilitate an orderly presentation of

proof and allocate intermediate evidentiary burdens in

Title VII cases, the United States Supreme Court has

established certain models of analysis to be used by

courts under each theory. See McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1972) (treatment); Griggs v. Duke

Power Company, 401 U.S. 424 (1971) (impact). Under the

disparate treatment theory, the plaintiff must first prove

by a preponderance of the evidence a prima facie case of

discrimination. Such a prima facie case is established by

proof that: (1) plaintiff was a member of a protected class;

(2) plaintiff was qualified for an employment position

sought by the defendant employer; (3) plaintiff was

rejected despite his qualifications; and (4) a member of a

non-protected group subsequently secured the position.

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1972).

Plaintiff’s burden is not onerous and, if he succeeds, a

5la

presumption of unlawful discrimination results. Texas

Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1980).

Once plaintiff meets his burden, the defendant must

rebut the presumption by articulating a legitimate non-

discriminatory reason for his action. However, he need

not persuade the court that the proffered reason actually

motivated his decision. Id. at 254. If defendant succeeds,

plaintiff must then establish that defendant’s proffered

reason is a mere pretext for discrimination. Id. at 256.

Although this analysis entails shifting burdens, the ulti-

mate burden of persuading the court that the plaintiff

was a victim of intentional discriminations always rests

with the plaintiff. [d. at 256.

In order to establish his prima facie case, a Title VII

plaintiff must prove discriminatory intent by either direct

or circumstantial evidence. Watson v. Fort Worth Bank &

Trust, 798 F.2d 791, 797 n.11 (5th Cir. 1987), rev'd on other

grounds, ___~—U.S. __, 108 S.Ct. 2777, 101 L.Ed.2d 827

(1988). Statistical proof is relevant in establishing plain

tiff’s initial prima facie case but is of greater significance in

the third stage of a case where the Title VII plaintiff

attempts to establish pretext. /d. at 798. However, statisti-

cal evidence must be regarded with a substantial degree

of caution. Pegues v Mississippi State Employment Services,

699 F.2d 760, 766 (5th Cir. 1983):

Although competent to prove employment dis-

crimination, ‘statistics are irrefutable; they come

in infinite variety and, like any other kind of

evidence, they may be rebutted. In short, their

usefulness depends on all the surrounding facts

and circumstances.’

Pegues, 699 F.2d at 766 (citations omitted)

52a

In evaluating statistical evidence in disparate treat-

ment cases, courts must carefully balance the danger of

prejudice to a defendant posed by drawing inferences of

discrimination from a handful of selection (referral) deci

sions with the unfairness to the Title Vil claimant of

imposing unattainable standards for proof of discrimina-

tory intent. Pegues, 699 F.2d at 769. Nevertheless, such

proof is valuable to the Title VII plaintiff and the defen-

dant must offer rebuttal evidence either discrediting

plaintiff's statistical evidence or establishing a non-dis-

criminatory rationale for what appears to be discrimina-

tory conduct. Id. at 766.

In contrast, disparate impact claims must be analyzed

pursuant to the three-prong test established in Griggs v

Duke Power Co., 401 U.S. 424 and its progeny. See Connecti

cut v. Teal, 457 U.S. 440, 444-447 (1981) (citing Griggs,

Albermarle Paper Co. v. Moody, 422 U.S. 405 (1975) and

Dothard v. Rawlinson, 433 U.S. 321 (1977)) (three cases

developing disparate impact model). Under this test, the

plaintiff must first establish a prima facie case of discrimi-

nation by showing the employer has utilized a facially

neutral employment practice which has a significant dis-

criminatory impact on a protected group. Teal, 457 U.S. at

446. Such a showing requires the Title VII plaintiff to first

identify the specific employment practice challenged and

second “offer statistical evidence of a kind and degree

sufficient to show that the practice in question has caused

the exclusions of applicants from jobs, promotions or

[referrals] because of their membership in a protected

group. Watson v. Fort Worth Bank & Trust, U.S. _, 108

S.Ct. 2777, 2789, 101 L.Ed.2d 827 (1988). Statistical dis-

parities must be sufficiently substantial such that they

53a

raise an inference of causation. Griggs v. Duke Power Co.,

401 U.S. 424, 426 (1971). No showing of discriminatory

animus is required. Pegues v. Mississippi State Employment

Services, 699 F.2d 760, 763 (5th Cir. 1983).

If the plaintiff successfully establishes his prima facie

case, the defendant must show that the practice in ques

tion is a business necessity or based on a legitimate

business reason. Watson v. Fort Worth Bank & Trust,

U.S 108 S.Ct. 2777, 2792, 101 L.Ed.2d 827, (1988)

If the defendant is successful, the Title VII plaintiff may

still prevail upon a showing that the practice is a mere

pretext for discrimination by showing other practices or

selections devices, which do not have a similar undesir

able racial effect, are available to the employer and would

serve the employer’s legitimate interest. Albermarle Pape:

Co. v. Moody, 422 U.S. 405, 425 (1975). The ultimate bur

den of proving discrimination against a protected group

caused by a specific employment practice always remains

with the Title VII plaintiff. Watson v. Fort Worth Bank &

Trust, U.S , 108 S.Ct. 2777, 101 L.Ed.2d 827 (1988)

In the present case, Hill has brought her claims pur

suant to both theories thereby requiring this Court to

analyze the claim under each of the aforementioned

models.” Under the disparate treatment model, Hill must

Previous decisions from the United States Court of

Appeals for the Fifth Circuit have held that employment pra¢

tices relying on subjective criteria were only appropriate for

analysis under the disparate treatment theory. See Watson

Fort Worth Bank & Trust, 798 F.2d 791 (5th Cir. 1981); Pegues ¢

Mississippi State Employment Services, 699 F.2d 760, 766 (5th Cir

1983); Payne v. Travenol Laboratories, Inc., 673 F.2d 798 (5th Cir

(Continued on following page)

54a

establish: (1) membership in a protected group; (2) appli-

cation and coding of an occupation for which the Hat-

tiesburg office was making referrals; (3) failure to secure

a referral; and (4) later referral of a non-member of the

protected group. See Pegues v. Mississippi State Employ-

ment Services, 699 F.2d 760, 774 (5th Cir. 1983). The Court

finds that Hill has successfully met her initial burden. In

so finding, the Court relies on the evidence presented

concerning the Hudson’s cashier job order. All witnesses

testifying stated Hill was at least minimally qualified and

was appropriate for referral to this position. The job order

was open during a period when Hill sought referrals as a

cashier. MSES referred 22 white applicants to this job

order and of those 22 referrals, 12 lacked either the mini-

mal educational or experiential requirements. Such a glar-

ing omission sufficiently satisfies the initial requirements

established by McDonnell Douglas and gives rise to the

inference of discrimination.

The Court’s finding is bolstered by Hill’s evidence of

a second cashier referral order opened February 2, 1983,

for which she was not referred. The job order in question

sought ten referrals but only received five of which four

were white. Again, Hill was coded for and sought cashier

(Continued from previous page)

1982); Pouneu v. Prudential Ins. Co. of America, 668 F.2d 795

(1982). However, it is now clear that employment practices

employing discretionary or subjective criteria may be properly

analyzed under the disparate impact model. See Watson v. Fort

Worth Bank & Trust, __ U.S. __, 108 S.Ct. 2777, 101 L.Ed.2d

827 (1988). Hill’s individual claim challenges MSES referral

practices which utilizes some subjective factors. Thus, analysis

under both models is required.

55a

referrals during the life of this job order but was not

referred. White applicants were subsequently referred

and hired. Further, this job order set no minimal experi-

ence requirement and only required a 12th grade educa-

tional level. Obviously, Hill met or exceeded the minimal

qualifications. Taken together both instances referred to

above clearly establish a prima facie case as defined by

McDonnell Douglas.

Satisfied that Hill has overcome her initial hurdle,

this Court must direct its focus toward MSES’s proffered

non-discriminatory reason for its failure to refer Hill to

the jobs in question. This inquiry is somewhat clouded as

MSES does not point to a particular reason justifying the

disparity. Rather, MSES contends that its referral system,

while not totally perfect, is in fact racially neutral and

that incidents such as those relied on by Hill are isolated

occurrences resulting from numerous non-racial prob-

lems inherent in the system. Among the problems cited

by MSES are: (1) employee error or oversight; (2) ineffi-

cient communication between staff members regarding

active job orders and referrals made or requested; (3)

inability to contact applicants; (4) applicant’s preferences,

including desire to work part-time or full-time; and (5)

other racially neutral problems. MSES argues that the

percentages of referrals compared with the racial compo-

site of the applicant pool for each of the suspect DOT

Codes show an equal referral/non-referral rate based on

race. In short, they urge that the percentages prove the

system to be racially neutral.

Reviewing the evidence, this Court finds MSES has

satisfied its burden. The percentages of referred and

56a

unreferred applicants is equal to the overall racial per-

centages found in the 211 and 311 pool. This was equally

true for out-of-code referrals in both codes. Total out-of-

code referrals slightly favored black applicants. Although

the system was affe ed by the problems cited by MSES, it

is apparent to this Court that the system appears facially

to be racially neutral.

Moreover, MSES’S complaints about inherent, non-

racial problems affecting the referral system are legiti-

mate, non-discriminatory reasons in the context of

McDonnell Douglas. MSES serves a large number of appli-

cants and employers in any given period. The testimony

reflects the office is often crowded with applicants seek-

ing employment referrals. The size of the staff, on the

other hand, is relatively small when compared to the

applicants. Problems cited by MSES are inevitable in any

sort of business organization. This would be especially

true where the operation is undermanned. While these

problems obviously affect referrals and ultimately lead to

some disparities in referrals, they are not necessarily

discriminatory acts. Finally, they are legitimate problems

encountered in the daily operations of MSES. Thus, MSES

has sufficiently articulated a legitimate non-discrimina-

tory reason for the acts.

The burden of proof now shifts back to Hill to offer

proof that the reasons advanced by MSES are merely a

pretext to discrimination. In so doing, Hill has offered

statistical evidence utilizing a standard deviation to show

that the referral of less blacks was not attributable to

57a

chance but rather the produce of discrimination. The

statistical proof offered is questionable. As noted, two

critical factors, educational level and experience, could

not be factored into the programs. Both of these factors

are vital to any job order and will drastically affect any

given applicant’s eligibility for any referral. Additional

factors not included are the applicant’s preference for full

or part-time work, his or her preference for day or night-

time work, and other job preference factors. Similar prob-

lems were encountered in Pegues v. Mississippi State

Employment Services, 699 F.2d 760 (5th Cir. 1983). In

Pegues, the United States Court of Appeals for the Fifth

Circuit rejected statistical proof offered by plaintiff in a

Title VII case alleging racial bias in referrals because no

consideration was given the experiential component of

the referral decision. Pegues, 699 F.2d at 770. Guided by

this decision, this Court finds Hill's statistical proof to be

flawed and insufficient to prove pretext.

The testimony of MSES’s officials and employers

reflects that experience, education and applicant’s job

preference are critical factors relied on in any referral

decision. Because these factors are so crucial to any refer-

ral decision, statistics reflecting disparity in referrals

which do not or cannot consider these factors are suspect.

Obviously, consideration of these factors would render

some applicants ineligible for referrals. This would affect

the size of the applicant pool on which the statistical

8 Although Hill offered statistical proof at both stages of

the case, it was unnecessary to consider that proof in the prima

facie case, as the direct incidents referred to proved sufficient to

overcome the initial burden.

58a

analysis was based and would affect the calculations of

the standard deviations. Were this court to rely on such

Statistics, a finding of racial bias in referral would prove

tainted as due consideration could not be given to those

critical factors. The numbers would be misleading and

reliance thereon would prove prejudicial and unfair.

Therefore, this Court finds the statistical proof offered by

Hill to be so flawed that any suggestion of statistical

significance in referrals based on race is insufficient to

support Hill’s claim of racial discrimination. As such, the

Court finds that Hill has failed to establish a violation of

Title VII on the theory of disparate treatment.

Finding no disparate treatment, this Court must now

consider Hill’s claim of disparate impact. Hill has identi-

fied the specific employment practice challenged as being

a referral system where subjective traits and out-of-code

referrals are used in referrals. She thus has succeeded in

the first step of establishing her prima facie case. Hill is

now required to offer statistical proof to support her

claim that the practice in question has a significant

impact on a protected group. She relies on the same

figures asserted to overcome pretext in her claim of dis-

parate treatment.

Evaluating the proof in question, this Court is again

led to conclude that Hill has failed to offer sufficient

proof to overcome this burden. The statistical proof is

clearly flawed based on its inability to consider educa-

tional and experiential factors critical to a referral deci-

sion. Racial disparity reflected by these figures is suspect,

unreliable and insufficient as proof a racial disparity nec-

essary to overcome the initial burden under the disparate

impact mode. Accordingly, the Court finds .hat Hill has

59a

failed to establish a violation of Title VII under either

theory and, therefore, is not entitled to relief on her

claims.

Although no Title VII violation has been substanti-

ated, this Court is inclined to voice its observation about

the referral system employed by MSES. The aforemen-

tioned problems obviously result in some disparity in

referrals. Inadequate communication between MSES’s

staff members ultimately cause some qualified applicants

to slip through the cracks and miss employment oppor-

tunities. Inability to communicate with qualified appli-

cants often results in referrals going either to walk-in

applicants readily available or out-of-code applicants

who satisfy the job requirements. Such practices ulti-

mately result in unfair referrals though not necessarily

racially biased referrals. Of course, these areas of concern

are tempered by other considerations such as MSES’s

inability to refer every eligible applicant to a particular

job order. Consideration of the applicant’s job preference

obviously factors into any referral decision. Nevertheless,

additional measures could be taken to open better lines of

communication between staff members to ensure that

qualified applicants in the appropriate DOT Code

received preference over all other applicants.

This does not imply that MSES has failed to recog-

nize these problems and take steps to correct them. The

staff has been enlarged in correlation to the demand for

services. Efforts have been undertaken to provide a

racially equal staff to help applicants. Staff meetings

focusing on these problems inform staff members of the

problems and provide avenues for suggestions toward

improvement. Such measures are not only needed but

60a

must be routinely employed to avoid disparity in refer-

rals. Additional measures might also be instituted. How-

ever, it is unnecessary for this Court to speculate as to

what type of measures should be employed.? In short, the

system employed is flawed and measures should be taken

to alleviate the problem inherent in the system. However,

Title VII does not require employment agencies to pro-

vide perfect referral systems, only systems which do not

discriminate. The evidence here fails to establish either

discriminatory treatment or impact.

One final point need be discussed. Much of Hill’s

complaint centered around MSES’s referral clerk’s use of

subjective factors in referral decisions. Subjective or dis-

cretionary factors are normally associated with business

operations regarding referral, hiring or promotional deci-

sions. Obviously, they play important roles in business

decisions as management seeks to hire or promote the

best qualified personnel. Use of subjective criteria is not

prohibited per se by Title VII. Title VII is only violated

when an employer or employment agency utilizes subjec-

tive criteria as a vehicle for discrimination. In the present

case, Hill received referrals from both black and white

employees of MSES. Although each stated they utilized

personal judgment when referring an applicant, all

denied race as a factor considered in the referral decision.

The racial composition of MSES’s referral staff diminishes

any inference, expectation or presumption that the use of

9 Interestingly, Hill offered no proof as to an alternative

system available which would be better with regard to refer

rals or that would provide a more equal rate of referrals.

6la

subjective criteria is necessarily indicative of discrimina-

tory animus or impact. Again, the Court does not wish to

imply that it recommends and approves the use of such

criteria. On the contrary, the referral decision should be

based primarily on objective factors. Subjective factors

may be considered but strict reliance on them should be

avoided. Under the circumstances of this case, this Court

is unwilling to find that the use of subjective criteria by

MSES’s employees was a mask for discriminatory treat-

ment of Hill.

Finally, the Court must examine Hill’s claim of retal-

iation. In order to prevail on such a claim, Plaintiff must

prove: (1) she engaged in an activity protected by Title

VII; (2) an adverse employment action occurred; (3) there

was causal connection between protected activity and an

adverse employment decision. McMillan v. Rust College,

Inc., 710 F.2d 112 (5th Cir. 1983). In this case, Hill claims

her filing of the EEOC complaint resulted in harassment

by MSES employees in the following torms: (1) staring

and following by MSES employees; (2) inefficient service

by being made to wait for long periods of time before

securing a referral clerk; (3) being required to use only

black referral clerks; (4) destruction of identification card;

(5) deletion of pertinent experience data from 511 form;

and (6) criticism of the claim to a WIN class. As a result of

these acts, Hill contends she was hospitalized and ulti-

mately missed some referrals.

Based on the evidence presented at trial, the Court

finds this claim lacks merit. MSES employees denied

staring, following or making the Plaintiff wait inordinate

periods of time for service. This testimony is credible and

only contradicted by Hill’s bare allegations. There is no

62a

evidence, other than Hill’s statement, that important data

was deleted from the 511 form. The destruction of the

identification card was the result of replacement rather

than retaliation. A new identification card was provided.

Regarding the alleged statements criticizing Hill’s suit

which were allegedly made to a class of WIN students,

the testimony is unclear as to whether the statements

actually occurred or the nature of these statements if in

fact they occurred. Regardless, there is no testimony to

indicate any statements were made in retaliation to Hill’s

filing of the Complaint. In fact, it appears that Hill

received numerous referrals and continued services after

the complaint was filed. Accordingly, the Court finds Hill

is not entitled to relief on this claim.

V. CONCLUSION

Based on the evidence adduced at trial, this Court is

of the opinion that Plaintiff Hill has failed to present

sufficient evidence in support of her claims for relief. The

system used by MSES is racially neutral but not immune

from disparity. Problems inherent in the system create

some disparities in referrals. These disparities are not

products of intentional discrimination nor discrimination

resulting from a neutral process operated in a discrimina-

tory fashion. Thus, no violation of Title VII has occurred

and it is the decision of this Court that Plaintiff’s claims

should be dismissed with prejudice. A judgment consis-

tent with this opinion shall be submitted to the Court

63a

within ten (10) days of the entry of this Memorandum

Opinion.

THIS, the 28th day of April, 1989.

/s/ Britt Singletary

UNITED STATES

MAGISTRATE

64a

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

SOUTHERN DIVISION

HAZEL HILL PLAINTIFF

VS. C.A. NO. H83-0281(W)

MISSISSIPPI STATE EMPLOYMENT

SERVICE, HATTIESBURG DIVISION;

MISSISSIPPI EMPLOYMENT SECURITY

COMMISSION; O.H. SIMMONS, EXECUTIVE

DIRECTOR; HUGH GIBSON, WILLIAM

G. LEONARD, AND MARY BRYANT,

COMMISSIONERS DEFENDANTS

FINAL JUDGMENT

(Filed May 11, 1989)

In accordance with the Memorandum Opinion of the

Court filed in this case on May 1, 1989, it is ORDERED;

1. Judgment is hereby entered in favor of the defen-

dants and against the plaintiff on all claims of discrimina-

tion alleged by the plaintiff in the Third Amended

Complaint. Such claims are accordingly dismissed with

prejudice.

2. Costs are to be paid by plaintiff.

ORDERED, ADJUDGED, AND DECREED:

DATED: May 10th, 1989.

/s/ Britt Singletary

UNITED STATES

MAGISTRATE

65a

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 89-4438

HAZEL HILL,

Plaintiff-Appellant,

VERSUS

MISSISSIPPI STATE EMPLOYMENT SERVICE, ET AL.,

Defendants-Appellees.

Appeal from the United States District Court

For the Southern District of Mississippi

(April 15, 1991)

ON PETITION FOR REHEARING AND SUGGESTION

FOR REHEARING EN BANC

Before RUBIN and DAVIS, Circuit Judges.

Judge Rubin would grant the petition; Judge Davis

would deny the petition. Because the panel is equally

divided, the petition is DENIED and no member of this

panel nor Judge in regular active service on the Court

having requested that the Court be polled on rehearing

en banc, (Federal Rules of Appellate Procedure and Local

Rule 35) the Suggestion for Rehearing En Banc is

DENIED.

1 Judge Thomas Gibbs Gee was a member of the original

panel but resigned from the Court on February 1, 1991.

66a

ENTERED FOR THE COURT:

/s/ W. EUGENE DAVIS CLERK’S NOTE:

United States SEE FRAP AND LOCAL

Circuit Judge RULES 41 FOR STAY

OF THE MANDATE.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.