Petition for Writ of Certiorari — Pizzaco of Nebraska, Inc. v. Bradley

CG Syprema Court, us |

sd J i t L k D

91°640

| QCT 26 1999

No. |

OFFICE OF THE CLERK

In The ss

Supreme Court of the United States

October Term, 1991

¢

PIZZACO OF NEBRASKA, INC., d/b/a DOMINOS

PIZZA AND DOMINOS PIZZA, INC.,

Petitioners,

LANGSTON BRADLEY AND EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION,

Respondents.

¢

Petition For A Writ Of Certiorari To The United States

Court Of Appeals For The Eighth Circuit

¢

PETITION FOR A WRIT OF CERTIORARI

+

SOREN S. JENSEN

10330 Regency Parkway Drive

Omaha, Nebraska 68114

(402) 397-2200

Counsel of Record

October 15, 1991

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

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

Whether a prima facie case of disparate impact in

Title VII cases may be established without any show-

ing that the challenged practice had any adverse

impact on employment opportunities for those in a

protected category?

Whether the existence of an employer’s no-beard pol-

icy for food delivery persons constitutes a violation of

Title VII based upon a disparate impact theory absent

a showing that at least one employee in a protected

category has been adversely affected in the employ-

ment relationship?

Whether a prima facie case of disparate treatment

under Title VII can be made solely on a presumption

of adverse effect?

ia i

ii

———

LIST OF PARTIES |

The parties to the proceedings below were the peti-

tioners Pizzaco of Nebraska, Inc.,! d/b/a Domino’s Pizza

and Dominos Pizza, Inc.,2 and the respondents, Equal

Employment Opportunity Commission and Langston

Bradley.

1 Petitioner Pizzaco of Nebraska, Inc. has no parent corpo-

ration or subsidiaries.

2 Petitioner Domino’s Pizza, Inc. has no parent corpora-

tion or subsidiaries.

iil

TABLE OF CONTENTS

Page

ESS ELE IS SRSA EE RE Ta i

ee sins yi sy eigen Chive ed eee beads ii

a a eee iv

OS OS ee ee 1

EA a 2

lel oS dies g wa cee 6 40a 4 ba 0 a ate ors 3

i i Pe SO apace reteset eenveveeveses 3

mensons tor Granting the Writ................se0.: 5

THE CIRCUIT COURT OF APPEALS DECISION IS

IN DIRECT CONFLICT WITH THE DECISION OF

THIS COURT IN WARDS COVE PACKING CO.,

INC. V. ANTONIO, 490 U.S. 642 (1989)........... 5

ite platen SUPT Rapti eke am rae Se AR Eee 12

Appendix

1. Opinion of Circuit Court of Appeals dated Feb-

8d 5 oo 50's se Kae hes CHAN es oo ne ae al

2. Order of Circuit Court of Appeals denying

ee a ne a7

3. Opinion of Circuit Court of Appeals dated July

RW Ee ek ols dk cea eae aN en co oes a8

4. Findings of Fact of U.S. District Court....... al6

5. Judgment of U.S. District Court.............. a29

SS i a30

iv

TABLE OF AUTHORITIES

Page

CasES

Connecticut v. Teal, 457 U.S. 440 (1982) ............ 6, 10

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

Hazelwood School District v. U.S., 433 U.S. 299

Og 2 RT AG Airs er ary | ey mg crags Pee een 11

Wards Cove Packing Co., Inc. v. Antonio, 490 U.S.

Pe RO eevee hoteles et arstcunts Cetanase ss passim

Watson v. Fort Worth Bank & Trust, 487 U.S. 977

SN eg re te a eS eh ee ne eames 6, 8

STATUTE

de cian Walsh ww ik as 3

No.

.

In The

Supreme Court of the United States

October Term, 1991

°

PIZZACO OF NEBRASKA, INC., d/b/a DOMINOS

PIZZA AND DOMINOS PIZZA, INC.,

Petitioners,

LANGSTON BRADLEY AND EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION,

Respondents.

¢

Petition For A Writ Of Certiorari To The United States

Court Of Appeals For The Eighth Circuit

7

PETITION FOR A WRIT OF CERTIORARI

¢

The petitioners, Pizzaco of Nebraska, Inc. and Dom-

ino’s Pizza, Inc. respectfully pray that a Writ of Certiorari

issue to review the judgment and opinion of the United

States Court of Appeals for the Eighth Circuit, entered in

the above entitled proceeding on July 25, 1991.

¢

OPINIONS BELOW

The Opinions of the Court of Appeals for the Eighth

Circuit have not been reported. They are printed in the

appendix hereto, p.la, infra.

The Findings of Fact and Judgment of the United

States District Court for the District of Nebraska (Cam-

bridge, J.) have not been reported. They are reprinted in

the appendix hereto, p. al6, infra.

¢

JURISDICTION

Invoking federal jurisdiction under 42 U.S.C.

§ 2000(e)-5(f), and 28 U.S.C. 1343(3) and (4), respondent,

Langston Bradley brought this action in the United States

District Court for the District of Nebraska, and the

respondent Equal Employment Opportunity Commission

intervened. On May 26, 1989, the District Court

announced its findings of fact and on May 31, 1989,

judgment dismissing the action with prejudice was

entered. See page al6, infra.

On respondent's appeals, the Eighth Circuit entered

an opinion affirming the dismissal of Bradley’s complaint

and reversing the District Court’s judgment as to EEOC’s

complaint and remanding the matter to District Court on

February 21, 1991. Petitioner’s timely petition for rehear-

ing was denied but a substitute opinion was entered by

the Circuit Court on July 25, 1991.

The jurisdiction of this Court to review the judgment

of the Eighth Circuit is invoked under 28 U.S.C. 1254(1).

¢

STATUTE INVOLVED

42 U.S.C. 2000(e)-2(a) provides:

a. It shall be an unlawful employment practice

for an employer -

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

individual or otherwise to discriminate

against any individual with respect to his

compensation, terms, conditions, or privi-

lege 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 of an employee, because of such

individual’s race, color, religion, sex, or

national origin.

42 U.S.C. 2000(e)-2 is printed in full at page a30,

infra.

STATEMENT OF THE CASE

Respondent Langston Bradley is a black male who

was employed by Petitioner Pizzaco of Nebraska, Inc., as

a part-time delivery person on September 4, 1984. He was

terminated on September 17, 1984 for failure to comply

with the no-beard policy of the employer. Bradley con-

tends that he suffers from a condition known as pseudo-

folliculitis barbae (commonly referred to as PFB) which is

a chronic skin disorder resulting from sharp tips of

recently shaved facial hair penetrating the skin and caus-

ing an inflammatory reaction which can result in scarring

and other disfigurement. The condition is claimed to

affect black males predominantly and not to affect whites

in any significant degree. Bradley claimed that the main-

tenance of the no-beard policy by his employer Cconstitu-

ted an employment practice which resulted in a disparate

impact upon black males and was therefore discrimina-

tory. ©

No evidence was introduced to show the make-up of

petitioners work force, or the characteristics of the quali-

fied persons in the labor market. The respondent offered

some evidence, consisting of studies conducted of certain

groups of military personnel and of patients in one

expert’s private practice during a period of 10 weeks. The

District Court refused to admit this evidence for the

reason that no adequate foundation had been laid and

that the samples were extremely small.

No evidence that petitioner had ever denied employ-

ment to any black person was offered. No evidence that

any one other than respondent Bradley had ever been

discharged for refusal to comply with the no-beard policy

was offered. The evidence did show that respondent

Bradley could and did present a clean shaven appearance

for an extended period without aggravating his condi-

tion.

The District Court dismissed respondents case at the

conclusion of a 3-'/2 day trial.

On appeal, in a decision filed on February 21, 1991,

the Circuit Court held that statistical evidence was not

necessary to establish a prima facie disparate impact case

under Title VII; that medical testimony and studies, and

expert medical testimony was sufficient when the dis-

parity under attack has its roots in a medical condition

peculiar to a protected group.

The respondent’s experts had testified that as many

as 45 percent of black males have PFB and approximately

25 percent cannot shave because of PFB. The expert testi-

fied that his opinions extended to the entire national

population of black males.

The Circuit Court then determined that the evidence

before the District Court was sufficient to establish a

prima facie case for the respondent E.E.O.C., remanded

the matter for the business justification phase of the case

and affirmed the District Court’s dissmissal of respon-

dent Bradley’s complaint.

Respondent petitioned for Rehearing En Banc which

was denied on July 24, 1991, however the Circuit Court of

Appeals filed a substituted decision on July 25, 1991. it is

from the second decision that the Respondent petitions

for Certiorari.

+

REASONS FOR GRANTING THE WRIT

THE CIRCUIT COURT OF APPEALS DECISION IS

IN DIRECT CONFLICT WITH THE DECISION OF

THIS COURT IN WARDS COVE PACKING CO., INC. V.

ANTONIO, 490 U.S. 642 (1989).

This case presents an important question of law in an

area in which this Court has rendered opinions, which

taken together, have developed the appropriate rules in

cases where employment discrimination resulting from

disparate impact is alleged. Connecticut v. Teal, 457 U.S.

440 (1982); Watson v. Fort Worth Bank & Trust, 487 U.S. 977

(1988); Wards Cove Packing Co., Inc. v. Antonio, 490 U.S.

642 (1989). The Circuit Court, however, has not followed

these developments and appears to have reached a deci-

sion in direct conflict with Wards Cove.

The Employers do not contest the Circuit Court’s

findings that pseudofolliculitis barbae is a skin condition

which makes it difficult for the person who has it to

appear clean shaven and that the condition primarily

affects black males while white males are generally

unaffected by it. It is conceded that in some circum-

stances it is conceivable that the no-beard policy could

result in a black male either being denied employment or

being discharged because of his inability to maintain a

clean shaven appearance. There is, however, nothing in

the record of this case to show that, in fact, any such

circumstances have occurred or such a result has taken

place.

The plaintiff employee does suffer from PFB, but not

to the extent that he cannot maintain a clean shaven

appearance.

Intervenor EEOC stands in even worse condition

regarding the making of a prima facie case.

The record in this case shows that Domino’s Pizza

had more than 100,000 driver/delivery employees deliv-

ering ; '7Za to customers at home locations. Other than

the named plaintiff, whose case was dismissed, there is

no indication that any delivery driver of the Domino’s

corporation was ever refused employment or discharged

from employment because of the no-beard rule.

The burden is upon the plaintiff to make a prima

facie case of employment discrimination. Plaintiff and

EEOC contend that the no-beard rule has a disparate

impact upon black males. They failed, however, to show

any such impact or effect upon the employer’s work

force. In order for them to be successful, it would seem to

be necessary to show, at the least, a disproportion of

black males in Dominos work force as compared to the

proportion of black males in the labor market. There is no

showing of either. There is not even a showing of the

make up of the relevant labor market.

The Circuit Court’s reliance upon Dothard v. Rawlin-

son, 433 U.S. 321 (1977) is misplaced. In that case, the

make up of the work force was known, the make up of

the national population was known, in this case, there is

no indication of the number, if any, of black males who

have PFB working for Dominos, or how many, if any, of

them can comply with the no-beard rule. In that case, it

was known that at least one female had suffered adverse

action because of the rule. In this case, oniy the plaintiff

Bradley claims to have been affected and the trail court

found that although he did have PFB, he could have

appeared clean shaven, but elected not to do so. The

adverse action as to his employment was not a result of

his condition, but was solely the result of his choice not to

shave.

If there was, in fact, disparate impact, plaintiff EEOC

could have made the necessary showings.

‘i

As realistically pointed out in Wards Cove,

liberal civil discovery rules give plaintiffs broad access to

employers’ records in order to document their claims.”

Wards Cove v. Antonio, 490 U.S. at 657. Nevertheless, no

evidence was introduced by the EEOC to show any indi-

vidual with PFB affected by the rule.

Putting it quite simply, there can be no disparate

impact without a showing of some disparate impact.

There is nothing in the record to indicate that there

has been any “disparate impact” in the sense that any

individual in a protected minority category has suffered

any employment harm. Nor unlike the situation in Dot-

hard are we certain that any persons exist in the work

force who have PFB.

As a result, and notwithstanding the Circuit Court's

reference to Dothard, we suggest that the ruling of Wards

Cove requires much more to make a prima facie case.

As stated in Wards Cove, even though a petitioner,

.. can show that nonwhites are under repre-

sented in the at issue jobs... this alone will not

suffice to make out a prima facie case of dispa-

rate impact. Respondents will also have to dem-

onstrate that the disparity they complain of is

the result of one or more of the employment

practices that they are attacking here, speci-

fically showing that each challenged practice

has a significantly disparate impact on employ-

ment opportunities for whites and nonwhites.

The opinion states that:

To hold otherwise would result in employers

being potentially liable for “the myriad of inno-

cent causes which may lead to the statistical

imbalances in the composition of their work

forces.” Watson v. Fort Worth Bank & Trust, [487

U.S. 977, 108 S.Ct. at 2787.]

490 U.S. at 657.

This clearly states the problem with the panel's deci-

sion.

One lesson of Wards Cove as applied to this case is

that plaintiff must show that general population statistics

are representative. The holding of the panel requires the

defendant/employer to show the statistics are not repre-

sentative.

The Court has remanded this case to the district court

for the determination of business justification under the

guidelines established in Wards Cove. As was stated in

Wards Cove, in order for a petitioner to establish a prima

facie case, it is necessary to demonstrate that “specific

elements of the petitioner’s hiring process have a signifi-

cantly disparate impact on nonwhites.” All that has been

established here is that black males have the skin condi-

tion of PFB and for the most part, white males do not. As

indicated previously, the individual plaintiff here had

PFB but was able to appear clean shaven and comply

with the rule of the employer.

Nor is there any concept of “chilling” in the record.

(Chilling being the term used to indicate that an

employer’s policy is well-known to persons in a pro-

tected category so that those persons do not bother to

apply for work.) Only Bradley was brought to the atten-

tion of the court even though a national and broad reach-

ing injunction was sought by the EEOC which would

affect more than 100,000 employees of Domino’s. As men-

tioned previously in Wards Cove, this court held that

“liberal civil discovery rules give plaintiffs broad access

to employers’ records in an effort to document their

claims.” (490 U.S. at 657). This clearly indicates the

10

requirement that plaintiffs show a causal relationship of

the rule of practice to a disparity in the work force.

Not only was no evidence of any chilling effect

offered, no evidence that any black employees lost their

jobs — other than Bradley — because of the fact that they

were required by their physical skin condition to grow

beards was proffered.

It is not enough to assert that bottom line racial

balance is not a defense under Title VII and thus no such

statistical analysis or showing is or should be required.

Connecticut v. Teal, 457 U.S. 440 (1982).

As pointed out in footnote 8 of Wards Cove,

. even if petitioners could show that the

percentage of selected applicants who are non-

white is not significantly less than the percent-

age of qualified applicants who are nonwhite,

respondents would still have a case under Title

VII, if they could prove that some particular

hiring practice has a disparate impact on minor-

ities, notwithstanding the bottom line racial bal-

ance in petitioners workforce.”

as

It is clear that there must be some proof that the

employer’s particular practice has a disparate impact on

minorities. In this case, the only practice or policy of the

employer that was attacked or examined was the no-

beard policy. The only evidence of its impact consisted of

expert opinions to the effect that as many as 45 percent of

black males suffer from PFB while virtually no white

males are so affected. Further, the evidence indicated that

only half of the people suffering from PFB are or might be

unable to maintain a clean shaven appearance. Implicit in

that assertion and analysis is an assumption that black

11

males can be properly considered to be a minority group.

Such assumption virtually requires that only males be

considered eligible or qualified for employment as deliv-

ery drivers. Of course, such an assumption could result in

unlawful discrimination against females.

In the case now before the Court, nothing is known

about the population of the employer with reference to

any kind of adverse impact that the company’s rule may

have had now or at any time previous and, therefore, it is

clear under the rule of Wards Cove that much more is

needed to make a prima facie case.

Also, the Circuit Court in suggesting that Dothard

had application to this case, failed to consider the lessons

of Hazelwood School District v. U.S., 433 U.S. 299 (1977), as

referred by this Court in Wards Cove at 490 U.S. 650-51 as

follows:

“There can be no doubt,” as there was when a

similar mistaken analysis had been undertaken

by the courts below in Hazelwood, supra, at 308,

97 S.Ct., at 2741, “that the... comparison .. .

fundamentally misconceived the role of statis-

tics in employment discrimination cases.” The

“proper comparison [is] between the racial com-

position of [the at-issue jobs] and the racial com-

position of the qualified . . . population in the

relevant labor market.” [bid. It is such a compar-

ison — between the racial composition of the

qualified persons in the labor market and the

persons holding at-issue jobs — that generally

forms the proper basis for the initial inquiry ina

disparate-impact case. Alternatively, in cases

where such labor market statistics will be diffi-

cult if not impossible to ascertain, we have rec-

ognized that certain other statistics — such as

12

measures indicating the racial composition of

“otherwise-qualified applicants” for at-issue

jobs - are equally probative for this purpose.

Also in Wards Cove, this Court indicated 490 U.S. at

652, that it would not be proper to have any employer

who had some segment of his work force racially imbal-

anced to be brought into court for the purpose of defend-

ing so-called business necessity. In the case of Domino’s,

this is one step further back in that there is no showing of

racial imbalance.

CONCLUSION

This Court, in a series of decisions has laid down the

standards and guide lines for the proper analysis and

evaluation of the sufficiency of a prima facie showing of

discrimination based upon the disparate impact of a

facially neutral employment policy or practice. The Cir-

cuit Court has failed to apply or has misunderstood those

precedents. It is necessary that the remaining uncertainty

be resolved by this Court. The writ of certiorari should

issue.

Respectfully submitted,

Soren S. JENSEN #12039

10330 Regency Parkway Drive

Omaha, Nebraska 68114

(402) 397-2200

Counsel of Record

APPENDIX

al

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 89-2271NE

Langston Bradley, :

Appellant,

Equal Employment Opportunity *

Commission (Intervenor Below), *

V.

Pizzaco of Nebraska, Inc. d/b/a _ +

Domino’s Pizza, and Domino’s *

Pizza, Inc., *

Appellees. ~

si Appeals from the

United States

No. 89-2272NE District Court for

the District of

Nebraska.

Langston Bradley,

Equal Employment-Opportunity +

Commission (Intervenor Below), +*

Appellant,

V. *

Pizzaco of Nebraska, Inc. d/b/a ”*

Domino’s Pizza, and Domino’s

Pizza, Inc.,

Appellees. ,

a2

Submitted: March 13, 1990

Filed: February 21, 1991

Before FAGG, WOLLMAN, and MAGILL, Circuit Judges.

FAGG, Circuit Judge.

Langston Bradley brought this disparate impact case

against Domino’s Pizza, Inc. and Pizzaco of Nebraska,

Inc. (collectively Domino’s) claiming his discharge for

failure to comply with Domino’s no-beard policy violates

Title VII because the policy discriminates against black

males. 42 U.S.C. § 2000e-2(a) (1988). The Equal Employ-

ment Opportunity Commission (EEOC) intervened seek-

ing injunctive relief on behalf of other black males

adversely affected by Domino’s no-beard policy. 42 U.S.C.

§ 2000e-4(g)(6). The district court concluded Bradley and

the EEOC failed to establish a prima facie case of dispa-

rate impact and dismissed their complaints. The district

court also found Bradley could comply with Domino’s

no-beard policy. Bradley and the EEOC appeal. We affirm

in part, reverse in part, and remand for further proceed-

ings.

The controlling facts are not complicated. Domino’s

grooming policy prohibits store employees from wearing

beards. Pizzaco, a Domino’s franchisee, hired Bradley as

a pizza deliverer, but fired him within two weeks because

he would not remove his beard. Pizzaco’s owner

a3

explained, “[Y]ou must be cleanshaven to work for Dom-

ino’s.” Bradley is a black man who suffers from pseu-

dofolliculitis barbae (PFB), a genetic skin disorder

affecting almost half of all black males. Approximately

half of these PFB sufferers have sufficiently severe cases

that they must abstain from shaving. The district court,

however, found Bradley could shave without complica-

tions.

Bradley and the EEOC contend the district court

committed error in ruling their evidence was insufficient

to prove Domino’s no-beard policy has a disparate impact

on black males. We agree. To establish a prima facie case

of discrimination under the disparate impact theory,

Bradley and the EEOC must show a specific employment

practice has caused a significantly disparate impact on

black males. See Wards Cove Packing Co. v. Atonio, 109 S.

Ct. 2115, 2124-25 (1989); Watson v. Fort Worth Bank &

Trust, 487 U.S. 977, 994 (1988). Bradley and the EEOC may

prove causation with statistical evidence showing Dom-

ino’s across-the-board no-beard policy excludes black

males as a class from employment with Domino’s at a

substantially higher rate than white males. See Watson,

487 U.S. at 994-95; Green v. Missouri Pac. R.R., 523 F.2d

1290, 1293 (8th Cir. 1975); EEOC v. Trailways, Inc., 530 F.

Supp. 54, 59 (D.C. Colo. 1981) (PFB case).

We believe Bradley and the EEOC presented a prima

facie case of disparate impact. The record shows PFB

almost exclusively affects black males. White males, how-

ever, rarely suffer from PFB or other skin disorders that

make shaving difficult. Medical witnesses for both sides

testified that as many as forty-five percent of black males

have PFB. A dermatologist called by Bradley and the

ieee scenic

a4

EEOC testified that a study he conducted on males in the

military showed half of the black males with PFB could

not shave. This dermatologist described other studies

that produced substantially similar results.

The district court, believing the samples in the der-

matologist’s study groups were too small, refused to

accept Bradley’s and the EEOC’s statistical evidence.

Contrary to the district court’s view, however, “[t]here is

no minimum sample size prescribed either in federal law

or in statistical theory.” MacDissi v. Valmont Indus., 856

F.2d 1054, 1058 (8th Cir. 1988). As we view the record, the

district court overlooked the dermatologist’s unrebutted

testimony, admitted without objection, equating his mili-

tary study group with the black male population at large.

Additionally, one of Domino’s medical witnesses corrobo-

rated the dermatologist’s testimony that military sam-

plings of black males fairly represent the general black

male population. Thus, Bradley and the EEOC presented

statistical studies representative of the general black male

population, and their reliance on these statistics to prove

a prima facie case of disparate impact was not misplaced.

See Dothard v. Rawlinson, 433 U.S. 321, 330 (1977); EEOC v.

Rath Packing Co., 787 F.2d 318, 336 (8th Cir.), cert. denied,

479 U.S. 910 (1986). General population statistics are

highly significant where there is no reason to believe the

disqualifying characteristic potential job applicants pos-

sess differs markedly from the national population.

Bradley’s and the EEOC’s evidence shows Domino’s

no-beard policy “has created the disparate impact under

attack.” Wards Cove, 109 S. Ct. at 2124. Their evidence

a5

shows PFB effectively excludes almost twenty-five per-

cent of the potential black male work force from employ-

ment with Domino’s, and the white male work force is

not similarly excluded. This evidence clearly permits the

inference “that some black males would be eligible for

... positions [with Domino’s] if they did not suffer from

PFB,” and “proportionately fewer blacks than whites

were eligible for [these] positions” because of Domino’s

no-beard policy. EEOC v. Greyhound Lines, Inc., 635 F.2d

188, 194 (3d Cir. 1980). Having concluded the district

court erroneously discounted Bradley’s and the EEOC’s

statistical proof, we must reverse the district court’s hold-

ing that a prima facie showing of disparate impact was

not made in this case.

Bradley also contends the district court’s finding that

he can shave is clearly erroneous. We disagree. The testi-

mony was contradictory about the severity of Bradley’s

PFB and his ability to shave. Nevertheless, the record

shows that almost half of the black males with PFB can

shave, that Bradley has a mild case of PFB, and thai at his

next job, Bradley always appeared cleanshaven. Although

there is evidence to the contrary, we believe the record

supports the district court’s finding. See Anderson v.

Bessemer City, 470 U.S. 564, 575 (1985).

Finally, Bradley contends he is disabled under the

Nebraska Fair Employment Practice Act. See Neb. Rev.

Stat. § 48-1102(8) (Supp. 1989). The district court found

Bradley was not disabled by his PFB condition under the

terms of the Nebraska statute. Unless the district court’s

analysis is fundamentally deficient or otherwise lacking

in reasoned authority, we defer to the district court on an

issue of state law not yet decided by the state courts. See

a6

Pershern v. Fiatallis N. Am., Inc., 834 F.2d 136, 138 (8th Cir.

1987). After careful consideration, we accept the district

court’s application of Nebraska law.

Accordingly, we affirm in part, reverse in part, and

remand to the district court to proceed with the business

justification stage of this disparate impact case. See Wards

Cove, 109 S. Ct. at 2125-27.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS,

EIGHTH CIRCUIT.

a7

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 89-2271NE

No. 89-2272NE

Langston Bradley,

Appellant,

Equal Employment

Opportunity Commission

(Intervenor below),

Appeal from the United

States District Court for

VS. the District of Nebraska.

Pizzaco of Nebraska, Inc.

d/b/a Domino’s Pizza,

and Domino’s Pizza, Inc.,

(Filed July 24, 1991)

oe ae oe oe ae a ee oe ee a ee a

Appellees.

Appellees’ petition for rehearing with suggestion for

rehearing en banc has been considered by the court and is

denied by reason of the lack of a majority of the active

judges voting to rehear the case en banc. Judge Beam did

not participate.

Rehearing by the panel is also denied.

July 24, 1991

Order Entered at the Direction of the Court:

/s/ Michael E. Gans

Clerk, U.S. Court of Appeals, Eighth Circuit

a8

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

@

No. 89-2271NE

Langston Bradley,

Appellant,

Equal Employment Opportunity

Commission (Intervenor Below),

Vv.

Pizzaco of Nebraska, Inc. d/b/a

Domino’s Pizza, and Domino’s

Pizza, Inc.,

Appellees.

o* @ S 2. Oe 4M 2S Se SE 6S

Appeals from the

United States

No. 89-2272NE District Court for

the District of

Nebraska.

Langston Bradley,

Equal Employment Opportunity

Commission (Intervenor Below),

Appellant,

v.

Pizzaco of Nebraska, Inc. d/b/a

Domino’s Pizza, and Domino’s

Pizza, Inc.,

16 * & «2 4 @ 6° @& sh & oS

Appellees.

a9

Submitted: March 13, 1990

Filed: July 25, 1991

Before FAGG, WOLLMAN, and MAGILL, Circuit Judges.

FAGG, Circuit Judge.

Langston Bradley brought this disparate impact case

against Domino’s Pizza, Inc. and Pizzaco of Nebraska,

Inc. (collectively Domino’s) claiming his discharge for

failure to comply with Domino’s no-beard policy violates

Title VII because the policy discriminates against black

males. See 42 U.S.C. § 2000e-2(a) (1988). The Equal

Employment Opportunity Commission (EEOC) inter-

vened on behalf of Bradley and other black males adver-

sely affected by Domino’s no-beard policy. See 42 U.S.C.

§ 2000e-4(g)(6). The EEOC seeks an injunction requiring

Domino’s to recognize an exception to the policy for

black men who medically are unable to shave, but does

not dispute that Domino’s is otherwise free to enforce its

policy. The district court concluded “the EEOC .. . failed

to establish [Domino’s policy has] a disparate impact on

black males” and dismissed its complaint. The district

court also found Bradley could comply with Domino’s

no-beard policy and dismissed his complaint. The EEOC

and Bradley appeal. We reverse in part, affirm in part,

and remand for further proceedings.

The controlling facts are not complicated. Domino’s

grooming policy prohibits company employees from

wearing beards. Pizzaco, a Domino’s franchisee, hired

al10

Bradley to deliver pizzas, but fired him within two weeks

because he would not remove his beard. Bradley is a

black man who suffers from pseudofolliculitis barbae

(PFB), a skin disorder affecting almost half of all black

males. The symptoms of PFB - skin irritation and scarring

- are brought on by shaving, and in severe cases PFB

sufferers must abstain from shaving altogether. Domino’s

policy, however, provides for no exceptions. As Pizzaco’s

owner explained, “[Y]ou must be clean-shaven to work

for Domino’s.” Although Bradley contended otherwise,

the district court found he could shave without complica-

tions.

This case, then, is about a facially neutral employ-

ment policy that discriminates against black males when

applied. Title VII forbids employment policies with a

disparate impact unless the policy is justified by legiti-

mate employment goals. Griggs v. Duke Power Co., 401

U.S. 424, 429-31 (1971). To make a prima facie case of

disparate impact, the EEOC must identify a specific

employment practice that has a significantly disparate

impact on black males. Wards Cove Packing Co. v. Atonio,

490 U.S. 642, 656-58 (1989). The EEOC contends the dis-

trict court committed error in holding the EEOC failed to

satisfy these requirements. We agree. Through expert

medical testimony and studies, the EEOC demonstrated

Domino’s policy necessarily excludes black males from

the company’s work force at a substantially higher rate

than white males. In so doing, the EEOC has shown

Domino’s facially neutral grooming requirement operates

as a “built-in headwind” for black males. Griggs, 401 U.S.

at 432.

all

The record shows PFB almost exclusively affects

black males and white males rarely suffer from PFB or

comparable skin disorders that may prevent a man from

appearing clean-shaven. Dermatologists for both sides

testified that as many as forty-five percent of black males

have PFB. The EEOC’s dermatologist offered his opinion

that approximately twenty-five percent of all black males

cannot shave because of PFB. The district court, however,

rejected the offer of this opinion on the ground the der-

matologist was not qualified to testify about PFB’s impact

on the black male population’s ability to shave. The dis-

trict court committed error. When the disparity under

attack has its roots in a medical condition peculiar to a

protected racial group, the disqualifying racial condition

and its prevalence may be established by expert medical

testimony. The record and the dermatologist’s resume

show he has extensive experience in the field of der-

matology, and has conducted studies, written articles,

and lectured on the topic of PFB. By holding this medical

expert could not testify about the prevalence of a medical

condition within his area of expertise, despite his wealth

of relevant training, study, and experience, the district

court clearly abused its discretion. See Fox v. Dannenberg,

906 F.2d 1253, 1256-57 (8th Cir. 1990). Thus, this expert’s

opinion must be considered as part of the EEOC’s prima

facie case.

The EEOC’s dermatologist also described results

from military studies that were in keeping with his opin-

ion that significant numbers of black males with PFB

cannot shave. These military studies showed that

upwards of fifty percent of black males who shave have

PFB and of those twenty percent could not shave. The

al2

district court, believing the number of black males in the

military studies was too small for a statistical analysis,

refused to consider the studies’ results. The EEOC’s case,

however, rests on medical rather than statistical evidence.

The dermatologists for the EEOC and Domino’s made

clear the medical significance of the military samplings:

PFB study results drawn from small military samplings of

black men are representative of PFB’s prevalence in, and

impact on, the general black male population.

In our view, the EEOC was entitled to rely on the

military studies and the opinions of the dermatologists

equating the studies’ results to the black male population

to establish a prima facie case of disparate impact. This is

particularly true because the disqualifying racial condi-

tion affects the black males without regard to geographi-

cal, cultural, educational, or socioeconomic consider-

ations. See Dothard v. Rawlinson, 433 U.S. 321, 330 (1977)

(reliance on general population data is not misplaced

when there is no reason to believe the disqualifying racial

characteristic of the sampled group differs markedly from

the group’s counterpart in the national population). If

Domino’s believed the military studies’ results were

skewed, or disagreed with the dermatologists’ views that

the results of military studies of PFB mirror the black

male population as a whole, it was “free to adduce coun-

tervailing evidence of [its] own.” Id. at 331. Domino’s did

not do so. “We will not second-guess the significance of a

small sample size where [the employer] has failed to

present any evidence of its lack of reliability.” McAlester

v. United Air Lines, 851 F.2d 1249, 1258 (10th Cir. 1988).

The district court also held the EEOC failed to estab-

lish a prima facie case of disparate impact because it did

al3

not produce statistical evidence comparing “the racial

composition of [Domino’s] labor market [with] the racial

composition of [Domino’s work force].” Disparate impact

claims under Title VII, however, do not require a showing

of racial disparity at the bottom line of the employer’s

work force. Connecticut v. Teal, 457 U.S. 440, 450-51 (1982).

Contrary to the district court’s view, a case can be made

under Title VII by proving a specific hiring practice has a

disparate impact, “notwithstanding the bottom-line racial

balance in [the employer’s] workforce.” Wards Cove, 490

U.S. at 653 n.8.

Nevertheless, Domino’s contends we must affirm the

district court because the EEOC failed to show black

males with PFB who could not shave were turned away

or were fired for failing to comply with Domino’s no-

beard policy. We disagree. There is no requirement that

disparate impact claims must always include evidence

that actual job applicants were turned down for employ-

ment because of the challenged discriminatory policy.

Dothard, 433 U.S. at 330. The reason is self-evident: a

discriminatory work policy might distort the job appli-

cant pool by discouraging otherwise qualified workers

from applying. Id. Thus, a prima facie case can be made

on general population figures when the data “conspicu-

ously demonstrates [the] job requirement’s grossly dis-

criminatory impact.” Id. at 331; see also Wards Cove, 490

U.S. at 651 n.6.

The EEOC’s evidence makes clear that Domino's

strictly-enforced no-beard policy has a discriminatory

impact on black males. PFB prevents a sizable segment of

the black male population from appearing clean-shaven,

al4

but does not similarly affect white males. Domino’s pol-

icy — which makes no exceptions for black males who

medically are unable to shave because of a skin disorder

peculiar to their race — effectively operates to exclude

these black males from employment with Domino’s.

Thus, having concluded the EEOC has shown Domino’s

grooming policy falls more harshly on blacks than it does

not whites, we must reverse the district court’s holding

that the EEOC failed to make a prima facie showing of

disparate impact.

For his part, Bradley contends the district court’s

finding that he can shave is clearly erroneous. We cannot

agree. The testimony was contradictory about the sever-

ity of Bradley’s PFB and his ability to shave. Neverthe-

less, the record shows that almost half of the black males

with PFB can shave, that Bradley has a mild case of PFB,

and that at his next job, Bradley always appeared clean-

shaven. Based on this record, we cannot say the district

court’s finding is clearly erroneous. See Anderson v.

Bessemer City, 470 U.S. 564, 575 (1985).

Bradley also contends he is disabled under the

Nebraska Fair Employment Practice Act. See Neb. Rev.

Stat. §§ 48-1101 to -1126 (1988 & Supp. 1990). The district

court decided Bradley is not disabled by his PFB condi-

tion under the terms of the Nebraska statute. See id.

§ 48-1102(8). Having reviewed de novo the district court’s

interpretation of this state law question, Salve Regina Col-

lege v. Russell, 111 S. Ct. 1217, 1221 (1991), we conclude

the district court properly held Bradley is not disabled

under the Nebraska statute.

al5

Accordingly, we reverse in part, affirm in part, and

remand to the district court to proceed with the business

justification stage of this disparate impact case. See Wards

Cove, 490 U.S. at 658-61.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

al6

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF NEBRASKA

LANGSTON BRADLEY, CV 86-0-753

Plaintiff,

and

. FINDINGS

L

EQUAL EMPLOYMENT OF FACT

)

)

)

)

)

OPPORTUNITY COMMISSION,

Plaintiff Intervenor, )

”

)

)

)

)

)

PIZZACO OF NEBRASKA, INC.,

d/b/a DOMINO’S PIZZA and

COMINO’S [sic] PIZZA, INC.,

Defendants.

OFFICIAL

TRANSCRIPT OF PROCEEDINGS

BEFORE: THE HONORABLE WILLIAM G. CAMBRIDGE,

District Judge,

Omaha, Nebraska,

May 26, 1989

APPEARANCES:

ROBERT V. BROOM

MARY P. CLARKSON for the Plaintiff

Langston Bradley

GLENN F. YOUNGER

J. BENEDICT GARCIA for the

Plaintiff Intervenor

SOREN S. JENSEN

J. RUSSELL DERR for the Defendants

al7

(p. 1) May 26, 1989

3:48 p.m.

(IN OPEN COURT)

THE COURT: Please be seated. The Court now

makes the following findings in this case:

1. The Plaintiff Langston Bradley is a black male

who resides in the City of Omaha, Douglas County,

Nebraska.

2. The Plaintiff Langston Bradley suffers from pseu-

dofolliculitis barbae, hereinafter referred to as PFB.

3. PFB is a medically established chronic facial skin

disorder which is caused by sharp tips of recently shaved

facial hair penetrating the skin and causing an inflamma-

tory reaction such as painful papules, pustules, keloids

and lesions which can result in scarring and other facial

disfigurement. This condition is a condition which affects

black males.

4. Defendant Pizzaco of Nebraska doing business as

Domino’s Pizza, hereinafter called Pizzaco, is a Nebraska

corporation and at all pertinent times hereto operated a

pizza bakery and carry-out business under the trade

name Domino’s Pizza, pursuant to the terms of a fran-

chise agreement with Defendant Domino’s Pizza, Inc.,

hereinafter referred to as Domino’s. Domino’s is a Michi-

gan corporation doing business in Nebraska.

5. This Court’s jurisdiction is invoked pursuant to

28 USC 1343(3) and (4), that is arabic three and four, and

(p. 2) 42 U.S.C. 2000(e)-5(f) and the pendant jurisdiction

al8

of this Court regarding state claims. This action is autho-

rized pursuant to Title VII (42 U.S.C. 2000(e)) and pur-

suant to Nebraska Revised Statutes Section 20-148 and

48-1101 et seq. of the Nebraska Revised Statutes.

6. There is independent jurisdiction to maintain an

action against Defendant Domino’s Pizza, Inc. First, I find

that there is a substantial identity of interest between the

two defendants Pizzaco and Domino’s. The no beard

policy by Pizzaco was in fact the policy of Domino’s

Pizza which Pizzaco was required to adopt under the

terms of the franchise agreement with Domino’s. Sec-

ondly, Domino’s Pizza had actual notice of the charge of

discrimination and actively participated in the legal pro-

ceedings.

7. Plaintiff Intervenor Equal Employment Oppor-

tunity Commission moved to intervene in this action on

September 8, 1987, and this Court granted said motion on

October 9, 1987. The EEOC is seeking to enjoin further

implementation of the no beard policy nationally unless

an exception is provided for medical reasons.

8. Defendant Pizzco [sic] was required by its fran-

chise agreement to establish a no beard policy which was

in effect on September 17, 1984. This policy was in effect

for all employees of Pizzaco and of Domino’s regardless

of race. There is no evidence that this policy was applied

in any way (p. 3) but an equal manner among all

employees and applicants.

9. On or about September 4, 1984, Pizzaco hired

Bradley, the Plaintiff, as a delivery person at its location

at 29th and St. Mary’s Avenue, Omaha, Nebraska, at the

rate of $3.50 per hour plus tips and delivery charges

al9

resulting in an anticipated gross income of $6.00 to $10.00

per hour.

10. Subsequent to his employment, Bradley was

informed by agents and representatives of Pizzaco that he

was required to conform with the no beard policy of

Pizzaco.

11. Plaintiff Bradley advised the Defendant Pizzaco

that he could not shave due to the fact tht [sic] he had

PFB, and that he would supply to the Defendant Pizzaco

medical verification of his condition.

12. Bradley was terminated from his employment

with Pizzaco on or about September 17, 1984 for failure to

comply with the no beard policy of Pizzaco. The groom-

ing policy of Pizzaco was enacted pusuant [sic] to the

required terms and conditions of the franchise agreement

with Defendant Domino’s, and said required terms and

conditions of the franchise agreement are included in all

franchise agreements between Domino’s and its fran-

chisees throughout the United States.

13. On February 5, 1985, Bradley filed a timely

charge with the Omaha Human Relations Department

and the Equal Employment Opportunity Commission

against Pizzaco. No (p. 4) such filing was made against

Defendant Domino’s, but due to the prior holding or

finding of the Court with respect to the matter of the

identity of the interests, the fact that no such filing was

made is of no consequence. This action was commenced

on September 4, 1986 pursuant to notification of the

Plaintiff by the EEOC issued on or about June 6, 1986 that

Bradley had a right to institute a civil action in the United

States District Court. This action was timely filed as to

a20

Pizzaco within 90 days of the receipt of said notice as

provided by Title VII of the Civil Rights Act of 1964.

14. Bradley has appeared clean shaven on

numerous occasions since the filing of this action. The

evidence indicates that Bradley was clean shaven

throughout his employment at First Data Resources.

Therefore despite the fact that Bradley suffers from PFB,

it appears that he can appear clean shaven.

15. Despite evidence that PFB afflicts a number of

black males, the Court is persuaded by the expert testi-

mony that sufferers of PFB may induce remission by

growing a beard one quarter inch in length, by using a

depilatory, by using special shaving instruments and

other beard therapy which will control if not cure the

problem for sufferers. The Court finds that a person may

deliberately induce the condition by resuming shaving in

a standard manner. The Court finds that there are alterna-

tive methods available and there were (p. 5) alternative

methods available to the Plaintiff to appear clean shaven.

16. Since the Court finds that Bradley is able to

shave, the Court also finds that he is not disabled as

defined by Nebraska Revised Statute 48-1102 (a). The

Court further determines that since Bradley is not dis-

abled within the meaning of the statute, no discrimina-

tory acts were taken against him on the basis of his

alleged disability.

17. There is no evidence before the Court that any

other black male employees of either Pizzaco or of Dom-

ino’s or any black male applicants for employment at

either Pizzaco or Domino’s were denied employment or

a2]

terminated employment on the basis of the no beard

policy.

18. Plaintiff Bradley and the EEOC have failed to

establish that there is a disparate impact on black males

due to the no beard policy of Pizzaco and Domino’s.

It was incumbent upon the Plaintiff and the Inter-

venor to show that the no beard rule, which is a facially

neutral rule, disproportionately excluded from employ-

ment members of the Plaintiff's group, and it was incum-

bent upon them not only to show that disproportionate

impact but it was also incumbent upon them to show that

it is an unjustified disproportionate impact.

The only statistics presented to the Court with

respect to the sample with respect to those suffering from

PFB (p. 6) were the studies referred to by Dr. Alexander,

and the Court finds that those samples are small enough

in character that the Court cannot rely upon them. The

Court does find that they establish that blacks do suffer

from PFB in a greater proportion than whites do, but |

don’t feel that you can rely upon them to establish the

percentages contended for by the Plaintiff and the Inter-

venor.

It was incumbent upon the Plaintiff and the Inter-

venor in this case in order to make a prima facie case to

define the labor market involved in this dispute to

include only persons with undisputed qualifications for

the job and also to define that labor market with respect

to the geographical area surrounding the place of

employment. That was done with respect to the labor

market in the Omaha metropciitan area, Douglas County

a22

and Sarpy County, but no labor market was defined with

respect to any of the other operations of Domino’s Pizza.

The testimony that was offered through the Plain-

tiff’s and Intervenor’s witness Bloch was in effect testi-

mony that based upon the studies, the Alexander studies,

he could then give an opinion as to the effect the percent-

ages as determined by those studies, would have upon

the employment of blacks for Domino’s Pizza, and |

didn’t allow that testimony and I specifically didn’t allow

it for the reason that I didn’t feel that there had been

sufficient foundation to support such an opinion. It

would have presumed that the same - and does (p. 7)

presume, if you equate it in that manner, that the same

number of blacks and whites that were involved in the

study are going to exist in the labor markets of Domino’s

Pizza, and I don’t feel that simply because Domino’s

Pizza does business throughout the nation that you can

therefore simply take national statistics and say, “Well,

these apply to Domino’s Pizza.” I think that the labor

market of Domino’s Pizza, in order for anyone to prove

disparate impact in a case such as this, that labor or those

labor markets must be defined.

I didn’t allow Mr. Bloch to render his opinion with

respect to the impact that the Alexander studies would

have on the employment of blacks for Domino’s Pizza, as

I have indicated, on the basis that when asked what

information he relied upon in making the analysis to that

effect, he stated in effect, number one, that he had

assumed and relied upon information from Mr. Black’s

deposition that there were some 100,000 drivers

employed by Domino’s nationally; and two, he relied

upon an EEO-1 form of Domino’s, which I can’t tell from

a23

the record applies to what operations of Domino’s. It

obviously doesn’t apply to all operations of Domino’s

because the figures are not consistent with the evidence

as to the total amount of employees of Domino’s. They

are significantly smaller on the EEO-1 form, and may be

representative of a particular location of Ann Arbor,

Michigan, but certainly don’t apply throughout their sys-

tem, throughout the nation.

(p. 8) Then his further assumption was, the number

three assumption was that in effect that 22 per cent of the

blacks with PFB are required to wear beards. I have

already commented on the fact that I think the sample

which was offered in proof of that is too small, and of

course there is evidence to the effect that those blacks

who are required to wear beards are not required to wear

them all the time.

He further stated that in connection with his analysis,

he asked how many blacks would he expect Domino’s to

employ if Domino’s had no beard restriction and what

would be the variations of that in terms of statistical

deviation. Then the next question he said that he

analyzed was how many black [sic] would he expect

Domino’s to employ with the beard restriction, and in

support of his opinion then, which I didn’t allow, he went

on to base that opinion on the number of people in the U.

S. who would be interested in jobs with Domino’s, what

percentage of those would be black, which he referred to

as “the availability percentage,” and what he came up

with then for his assumption to arrive at the opinion

which he was not allowed to give was that based upon

the U. S. Census, five to six per cent of driver sales

persons or workers were black, and in the civilian labor

a24

force ten to eleven per cent were black, and I find that

those types of statistics are not sufficient to prove a case

of (p. 9) disparate impact under the facts that circum-

stances of this case, that is to say that to jump from the

surveys that were run by Dr. Alexander or made by him

and transpose those figures to the national scene without

taking into account the labor market of Domino’s simply

would not be fair and is not authorized by law.

My understanding of the law is that, as I said, the

labor market must be defined to include only those per-

sons with undisputed qualifications for the job and must

further be defined to include only those persons in the

geographical area surrounding the place of employment.

Moreover, after the racial composition of the labor

market has been determined, it must then be compared

with the racial composition of those actually hired or

within the employ of the employer, in this case Domino’s,

and that comparison between the racial composition of

the labor market and the racial composition of those

hired should be accomplished by proper statistical

methods, and I find that those methods were not pre-

sented to this Court in this case.

I rely upon the case of Hazelwood School District

versus the United States, 433 US 299, a 1977 case, for the

statistical methods required.

It is my understanding that Hazelwood was a case

involving disparate treatment, but it is my understanding

that the same basic requirements with respect to statisti-

cal (p. 10) evidence are the same for the disparate impact

cases. The labor market for the jobs at issue must be

defined. Then the proportion of a particular group among

a25

those in the labor market and the proportion among those

who possess the disputed qualification must be estab-

lished. Next, the two proportions must be compared by

statistical means to determine the probability that any

difference between them resulted solely by chance, and

finally, any statistical significant difference must be exam-

ined to determine whether it is large enough to be prac-

tically significant.

19. As a result of the foregoing, I find that the

termination of Plaintiff by Pizzaco on or about September

17, 1984, was not the result of discrimination against the

Plaintiff based on his race. | further find that the Plaintiff

has not been discriminated against on the basis of his

race in violation of Title VI!, that is, 42 U.S.C.2000 (e)-2.

I further find that the Defendants Pizzaco and Dom-

ino’s have not engaged in a discriminatory act in viola-

tion of the Civil Rights Act of 1986, that is, 42 U.S.C. 1981.

I further find that the Defendants have not deprived

the Plaintiff of rights, privileges and immunities guaran-

teed and protected by the laws of the State of Nebraska.

I further find that the Defendants have not deprived

the Plaintiff based on his race of his rights as secured by

21-148 Nebraska Revised Statutes as Amended.

(p. 11) I further find that the Defendants have not

deprived Plaintiff of rights, privileges and immunities

and protected by the laws of the State of Nebraska,

special [sic] the Nebraska Fair Employment Practices Act.

I further find that this Court therefore should not

issue a nation-wide or local permanent injunction,

restraining and enjoining the defendants from enforcing

a26

or otherwise utilizing in their employment decisions the

no beard policy as a basis for refusal to hire or employ

black males who suffer from the condition of PFB.

I further find that the Plaintiff has not been damaged

by the Defendants.

I might on the record state that this does not mean

that I don’t have sympathy with the Plaintiff and with

those that suffer from this condition. I do have that

sympathy, but the law is the law and I have to be gov-

erned by the law.

! therefore have no alternative but to find and order

that the Complaint of the Plaintiff Langston Bradley and

the Petition of Intervention of the Equal Employment

Opportunity Commission should be and are therefore

dismissed, and the Clerk is instructed to enter a judgment

accordingly with the costs taxed to the Plaintiff and Inter-

venor.

I want to further state that I reserve the right to

supplement my findings in this case in the event there is

(p. 12) an appeal, and now I would like to ask counsel for

any suggestions they might have with respect to the

findings that I have just made, not with respect, of

course, to taking issue with them, but any suggestions

they might have with respect to supplementation of those

findings or modification of them.

And as I have said, I am not asking you to agree with

them. I know that Plaintiff and Intervenor obviously

won't agree with them, and I am sure that I have made

certain findings here that the Defendants won’t agree

with, but I am not asking you whether or not you agree

a27

with them at this time now, I am simply asking for any

clarifications, in effect, that you might suggest with

respect to the findings that I have just made.

Does the Plaintiff have any such suggestions?

MR. BROOM: None, your Honor.

THE COURT: Intervenor?

MR. YOUNGER: None.

THE COURT: The Defendants?

MR. JENSEN: Not at this time, your Honor. If

we would review our notes and think of something in the

near future we would mail them to you and send copies

to the other parties.

THE COURT: All right. Is there anything fur-

ther that should come before the Court in connection

with this matter?

(p. 13) MR. BROOM: Not a thing, your Honor.

On behalf of both the Plaintiff-Intervenor and the Plain-

tiff, we would like to have leave of Court, if we could, to

substitute slides 1 through 23 of Exhibit 16 so that the

originals would be returned to Dr. Alexander. It is my

understanding that Defendant Counsel has no objection.

Sub-part Bradley 1, 2, 3 and 4 would be actual slides that

were introduced, and we would ask leave to substitute

slides 1 through 23, copies for the originals.

THE COURT: And you have no objection to

that?

MR. JENSEN: No objection, your Honor.

a28

THE COURT: All right, leave is granted for

such substitution.

Is there anything further?

MR. BROOM: Nothing further.

MR. JENSEN: Thank you, your Honor.

THE COURT: Court is adjourned.

(COURT ADJOURNED.)

4:24 p.m.

(p. 14) REPORTER’S CERTIFICATE

I, Peggy Casper, Certified Shorthand Reporter and an

Official Court Reporter for the United States District

Court for the District of Nebraska, appointed pursuant to

the provisions of Title 28, United States Code, Section

653, do hereby certify that the foregoing is a full, true and

correct transcript of the Court’s ruling and findings of

fact in the within-entitled and numbered cause on May

26, 1989, and I do further certify that the foregoing tran-

script has been prepared by me or under my direction.

Dated this 12th day of June, 1989.

PEGGY CASPER, C.S.R.

a29

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

LANGSTON BRADLEY and

PIZZACO OF NEBRASKA, INC,

d/b/a DOMINO’S PIZZA and

DOMINO’S PIZZA, INC.

Defendants

)

Plaintiff ee

EQUAL EMPLOYMENT )

OPPORTUNITY COMMISSION, )

)

Intervenor JUDGMENT

VS. ) (Filed May 31,

) 1989)

)

)

)

)

This action came on for trial before the Court, Honor-

able William G. Cambridge, Judge, presiding.

IT IS ORDERED AND ADJUDGED that pursuant to the

Court’s ruling read into the record at the close of the case;

Judgment is hereby entered in favor of the defendants, PIZ-

ZACO OF NEBRASKA, INC., d/b/a DOMINO'S PIZZA and

DOMINO’s PIZZA, INC., that the case is dismissed on the

merits with prejudice, and that the defendants recover from

the Plaintiff Intervenor, EQUAL EMPLOYMENT OPPOR-

TUNITY COMMISSION, taxable costs of this action.

Dated at Omaha, Nebraska this 3lst day of May,

1989.

WILLIAM L. OLSON

CLERK OF THE COURT

By Gary D. McFarland

GARY D. MCFARLAND

DEPUTY CLERK

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42 USC 2000e-2 provides:

§ 2000e-2. Unlawful employment practices

Employer practices

(a) It shall be an unlawful employment practice for

an employer -

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

any individual, or otherwise to discriminate

against any individual with respect to his com-

pensation, terms, conditions, or privileges of

employment, because of such individual’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.

Employment agency practices

(b) It shall be an unlawful employment practice for

an employment agency to fail or refuse to refer for

employment, or otherwise to discriminate 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.

Labor organization practices

(c) It shall be an unlawful employment practice for

a labor organization -

(1) to exclude or to expel from its member-

ship, or otherwise to discriminate against, any

individual because of his race, color, religion,

sex, or national origin;

(2) to limit, segregate, or classify its mem-

bership or applicants for membership, or to clas-

sify or fail or refuse to refer for employment any

individual, in any way which would deprive or

tend to deprive any individual of employment

opportunities, or would limit such employment

opportunities or otherwise adversely affect his

status as an employee or as an applicant for

employment, because of such individual’s race,

color, religion, sex, or national origin; or

(3) to cause or attempt to cause an

employer to discriminate against an individual

in violation of this section.

Training programs

(d) It shall be an unlawful employment practice for

any employer, labor organization, or joint labor-manage-

ment committee controlling apprenticeship or other train-

ing or retraining, including on-the-job training programs

to discriminate against any individual because of his race,

color, religion, sex, or national origin in admission to, or

employment in, any program established to provide

apprenticeship or other training.

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Businesses or enterprises with personnel qualified on

basis of religion, sex, or national origin; educational

institutions with personnel of particular religion

(e) Notwithstanding any other provision of this

subchapter, (1) it shall not be an unlawful employment

practice for an employer to hire and employ employees,

for an employment agency to classify, or refer for

employment any individual, for a labor organization to

classify its membership or to classify or refer for employ-

ment any individual, or for an employer, labor organiza-

tion, or joint labor-management committee controlling

apprenticeship or other training or retraining programs

to admit or employ any individual in any such program,

on the basis of his religion, sex, or national origin in those

certain instances where religion, sex, or national origin is

a bona fide occupational qualification reasonably neces-

sary to the normal operation of that particular business or

enterprise, and (2) it shall not be an unlawful employ-

ment practice for a school, college, university, or other

educational institution or institution of learning to hire

and employ employees of a particular religion if such

school, college, university, or other educational institu-

tion or institution of learning is, in whole or in substan-

tial part, owned, supported, controlled, or managed by a

particular religion or by a particular religious corpora-

tion, association, or society, or if the curriculum of such

school, college, university, or other educational institu-

tion or institution of learning is directed toward the prop-

agation of a particular religion.

Members of Communist Party or Communist-action

or Communist-front organizations

(f) As used in this subchapter, the phrase “unlawful

employment practice” shall not be deemed to include any

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action or measure taken by an employer, labor organiza-

tion, joint labor-management committee, or employment

agency with respect to an individual who is a member of

the Communist Party of the United States or of any other

organization required to register as a Communist-action

or Communist-front organization by final order of the

Subversive Activities Control Board pursuant to the Sub-

versive Activities Control Act of 1950.

National security

(g) Notwithstanding any other provision of this

subchapter, it shall not be an unlawful employment prac-

tice for an employer to fail or refuse to hire and employ

any individual for any position, for an employer to dis-

charge any individual from any position, or for an

employment agency to fail or refuse to refer any individ-

ual for employment in any position, or for a labor organi-

zation to fail or refuse to refer any individual for

employment in any position, if -

(1) the occupancy of such position, or

access to the premises in or upon which any

part of the duties of such position is performed

or is to be performed, is subject to any require-

ment imposed in the interest of the national

security of the United States under any security

program in effect pursuant to or administered

under any statute of the United States or any

Executive order of the President; and

(2) such individual has not fulfilled or has

ceased to fulfill that requirement.

bicameral

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Seniority or merit system; quantity or quality of

production; ability tests; compensation based on sex

and authorized by minimum wage provisions

(h) Notwithstanding any other provision of this

subchapter, it shall not be an unlawful employment prac-

tice for an employer to apply different standards of com-

pensation, or different terms, conditions, or privileges of

employment pursuant to a bona fide seniority or merit

system, or a system which measures earnings by quantity

or quality of production or to employees who work in

different locations, provided that such differences are not

the result of an intention to discriminate because of race,

color, religion, sex, or national origin, nor shall it be an

unlawful employment practice for an employer to give

and to act upon the results of any professionally devel-

oped ability test provided that such test, its administra-

tion or action upon the results is not designed, intended

or used to discriminate because of race, color, religion,

sex or national origin. It shall not be an unlawful employ-

ment practice under this subchapter for any employer to

differentiate upon the basis of sex in determining the

amount of the wages or compensation paid or to be paid

to employees of such employer if such differentiation is

authorized by the provisions of section 206(d) of Title 29.

Businesses or enterprises extending

preferential treatment to Indians

(i) Nothing contained in this subchapter shall apply

to any business or enterprise on or near an Indian reser-

vation with respect to any publicly announced employ-

ment practice of such business or enterprise under which

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a preferential treatment is given to any individual

because he is an Indian living on or near a reservation.

Preferential treatment not to be granted on account

of existing number or percentage imbalance

(j) Nothing contained in this subchapter shall be

interpreted to require any employer, employment agency,

labor organization, or joint labor-management committee

subject to this subchapter to grant preferential treatment

to any individual or to any group because of the race,

color, religion, sex, or national origin of such individual

or group on account of an imbalance which may exist

with respect to the total number or percentage of persons

of any race, color, religion, sex, or national origin

employed by any employer, referred or classified for

employment by any employment agency or labor organi-

zation, admitted to membership or classified by any labor

organization, or admitted to, or employed in, any appren-

ticeship or other training program, in comparison with

the total number or percentage of persons of such race,

color, religion, sex, or national origin in any community,

State, section, or other area, or in the available work force

in any community, State, section, or other area.

Pub.L. 88-352, Title VII, § 703, July 2, 1964, 78 Stat. 255;

Pub.L. 92-261, § 8(a), (b), Mar. 24, 1972, 86 Stat. 109.