Appendix — Capaci v. Katz & Besthoff, Inc.
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NO.
DEC 30 1983
ALEXANDER L. STEVAS
In the omc
Supreme Court of the United States
OCTOBER TERM, 1983
ANDRA A. CAPACI,
PETITIONER,
versus
KATZ & BESTHOFF, INC.
RESPONDENT.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
INTERVENOR
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
APPENDIX
Carl J. Schumacher, Jr.
C. David Schumacher
SCHUMACHER
LAW CORPORATION, LTD.
1106 Arabella Street
P.O. Box 15348
New Orleans, LA 70175
(504) 899-8904
Attorneys for Andra A. Capaci
A B Letter Service, Inc., 327 Chartres St., New Orleans, La. (504) 581-5555
i
TABLE OF CONTENTS
Page
APPENDIX A—Opinion of the U.S. District Court
ff. £ we. Bes 2 Se ; eee A-l
APPENDIX B—Opinion of the U.S. District Court
of October 15, 1981 525 F.Supp. 371... ... A-15
APPENDIX C—Final Judgment of the U.S.
District Court of March 19, 1982, entered
GE I a oo wnle sca gies ww ek A-87
APPENDIX D—Opinion of the U.S. Court of
Appeals for the Fifth Circuit of August
ee St eee eer A-90
APPENDIX E—Corrected Judgment of the U.S.
Court of Appeals For the Fifth Circuit On
Petition For Rehearing and Suggestion for
Rehearing En Banc of October 3, 1983... . A-127
APPENDIX F—Exhibit P-I 49 Letter of February 2,
1972 by Sidney Besthoff, III, President, Katz
& Besthoff, Inc. to Donald O. Marshall... A-129
APPENDIX G—42 USC 2000e-3(a)........ .... A-130
APPENDIX H—42 USC 2000e-5ig)ik)........... A-131
APPENDIX I—Exhibit PI 19 Plaintiff's original
affidavit of Jan. 11, 1973 to the EEOC ... A-133
APPENDIX J—Exhibit PI 10 EEOC Determination
of Feb. 28, 1974 (Promotion)............ A-135
APPENDIX K—Exhibit PI 11 EEOC Determination
of Feb. 28, 1974 (Harassment).......... A-138
APPENDIX L—Exhibit PI 12 EEOC Determination
of Feb. 28, 1974 (Retaliation)............ A-140
A-l
APPENDIX “A”
Andra A. CAPACI,
Plaintiff,
v.
KATZ & BESTHOFF, INC.,
Defendant.
Civ. A. No. 74-2743.
United States District Court,
E. D. Louisiana.
July 31, 1976.
Female employee brought action against former
employer on behalf of herself and all other women similarly
situated alleging, inter alia, violations of Civil Rights Act
of 1870, Civil Rights Act of 1964, and state law. The
United States District Court for the Eastern District of
Louisiana, Cassibry, J., held that Civil Rights of 1870 was
inapplicable, that employee could not recover under state
law claim, that proposed class satisfied numerosity require-
ment of Federal Rules of Civil Procedure, that complaint
adequately alleged complaint common to members of class,
that female employee adequately and fairly protected in-
terests of class and her claims were typical of claims of pro-
posed class, even though employee claimed improper sex-
ual advances upon her and even though employee was
employer's chief pharmacist; that employee could repre-
sent former and present employees, but class could not in-
clude females who applied for superviosry positions with
employer but were categorically refused and could not
A-2
include those females allegedly ‘‘chilled’’ from applying for
employment.
Order accordingly.
William F. Bologna, New Orleans, La., for plaintiff.
Daniel Lund, New Orleans, La., for defendant.
CASSIBRY, District Judge.
This is an unemployment discrimination suit
brought pursuant to 28 U.S.C. §1331, 42 U.S.C. § 1981, 42
U.S.C. § 2000e—5(f)(3), and a suit for damages for alleged
breach of employment contract under Article 1934 of the
Louisiana Civil Code. The case is brought under Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et segq.,
by plaintiff, Andra A. Capaci, a former employee of defen-
dant, Katz & Besthoff, Inc., a company which operates a
number of retail drug stores in the New Orleans, Louisiana
area on behalf of herself and all other women similarly
situated.
In her complaint, plaintiff alleges that ‘‘the internal
policies, practices and customs of Katz & Besthoff, Inc.,
are based upon outmoded and unjustifiable sex stereotypes
which created distinct employment opportunity disadvan-
tages for females.’’ Plaintiff seeks injunctive and
declaratory relief as well as back pay for herself and the
members of the proposed class.
This matter is before the Court on cross motions:
I. Defendant’s motion to dismiss:
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1. The class action allegations of the complaint;
2. Plaintiff's claim pursuant to the Civil Rights
Act of 1870, 42 U.S.C. § 1981;
3. Plaintiff's claim under Louisiana Civil Code Ar-
ticle 1934.
II. Plaintiff's motion to determine the propriety of
class action, and to certify the class under Rule 23(c)(1) of
the Federal Rules of Civil Procedure.
FACTS
Andra Capaci was employed by Katz & Besthoff
(hereinafter K & B) as a pharmacist from June 1963, until
her dismissal in March 1975. Plaintiff Capaci alleges that
she was discharged by defendant out of retaliation because
she challenged the sexually discriminatory policies of K &
B by filing several complaints with the Equal Employment
Opportunity Commission. Plaintiff's complaint is a broad
attack on the allegedly discriminatory practices of defen-
dant, as well as an outline of specific grievances and
discriminatory conduct directed against her personally,
allegedly depriving her of intellectual enjoyment of her
employment.
THE 1981 CLAIM
The Civil Rights Act of 1870 is inapplicable to sexual
discrimination in employment. Section 1981 applies to
racial discrimination. Willingham v. Macon Telegraph
Publishing Company, 482 F.2d 535 (5th Cir. 1973), rev'd on
other grounds, 5 Cir., 507 f.2d 1084 (1975); Held v. Missouri
Pacific Railroad Company, 373 F.Supp. 996 (S.C.Tex.1974).
A-4
The defendant’s motion to dismiss the claim made pur-
suant to 42 U.S.C. § 1981 is therefore GRANTED.
THE 1934 CLAIM
Article 1934, Louisiana Civil Code, provides in perti-
nent part:
Where the object of the contract is any thing
but the payment of money, the damages due to
the creditor for its breach are the amount of the
loss he has sustained, and the profit of which he
has been deprived, under the following exceptions
and modifications:
* * * * * *
3. Although the general rule is, that damages
are the amount of the loss the creditor has sus-
tained, or of the gain of which he has been depriv-
ed, yet there are cases in which damages may be
assessed without calculating altogether on the
pecuniary loss, or the privation of pecuniary gain
to the party. Where the contract has for its object
the gratification of some intellectual enjoyment,
whether in religion, morality or taste, or some
convenience or other legal gratification, although
these are not appreciated in money by the parties,
yet damages are due for their breach; a contract
for a religious or charitable foundation, a promise
of marriage, or an engagement for a work of some
of the fine arts, are objects and examples of this
rule.
In the assessment of damages under this rule,
as well as in cases of offenses, quasi offenses,
and quasi contracts, much discretion must be left
to the judge or jury, while in other cases they
have none, but are bound to give such damages
under the above rules as will fully indemnify the
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creditor, whenever the contract has been broken
by the fault, negligence, fraud or bad faith of the
debtor. (Emphasis supplied)
Defendant relies on the case of Carlson v. Ewing, 219
La. 961, 54 So.2d 414 (1951), for its contention that Article
1934 is generally inapplicable to the employer-employee
relationship. The plaintiff contends that certain employ-
ment contracts are specifically within the contemplation of
1934(3). The weakness of plaintiff's position as to her own
contract of employment lies in her failure to demonstrate
how her contract of employment as a pharmacist for a
retail drug chain ‘has for its object the gratification of
some intellectual enjoyment’’ with the contemplation of
the article from the recited examples therein.
The motion to dismiss the 1934 claim is therefore
GRANTED.
PROPOSED CLASS
Plaintiff Capaci seeks to represent a class of plain-
tiffs defined as follows:
(1) All females who have been or are presently
employed by K & B;
(2) All females who have applied for employment as
supervisory personnel and have been categorically
rejected;
(3) All females who would have applied for employ-
ment but have been “‘chilled’’ from doing so by the known
discriminatory practices of K & B.
A-6
DEFENDANT'S OPPOSITION
Defendant denies that it is engaged in any
discriminatory activities. Defendant contends that plain-
tiff's complaints are peculiarly personal and that she
should not be allowed to represent a class because of the
atypical nature of her grievances. Further K & B argues
that plaintiff Capaci will not fairly and adequately protect
the interests of the alleged class.
Limited discovery, by way of interrogatories and
depositions, has been conducted. Both parties submitted
original and supplemental briefs; oral argument has been
heard. From this record there are several salient facts
relating to the class issue before the Court. First, K & B
employs a large female work force; secondly, there are few,
if any, females in the managerial or supervisory positions
within the defendant organization; thirdly, defendant's
statistical information and answers to interrogatories
demonstrate that management positions are held by non-
pharmacist and pharmacist personnel alike.
RULE 23—FEDERAL RULES OF CIVIL PROCEDURE
In order for an action to be maintained as a class ac-
tion under Rule 23, F.R.C.P., each of the requirements of
Rule 23(a) must be satisfied and additionally one of the
three grounds established by Rule 23(b) must be met. Ad-
visory Committee Notes, 30 F.R.D. 69, 104, Long v. Sapp,
502 F.2d 34 (5th Cir. 1974).
Before proceeding with an analysis of the propriety
of the proposed class under Rule 23, it is useful to discuss
briefly the limits of the class inquiry, as well as the peculiar
nature of employment discrimination cases.
A-7
In Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94
S.Ct. 2140, 40 L.Ed.2d 732 (1974) (Eisen IV), the Supreme
Court held that Rule 23 motions should not involve an in-
quiry into the merits of an action. The Court stated:
We find nothing in...Rule 23 that gives a court
any authority to conduct a preliminary inquiry in-
to the merits of a suit in order to determine
whether it may be maintained as a class action....
Nonetheless, the merits are not totally irrelevant to
class determinations. The issues and proof necessary at
trial are important to a determination of whether the
claims are individual or applicable to a class.
The clear and unequivocal purpose of Title VII was
and is to end discrimination in employment. Franks v.
Bowman Transportation Co., 424 U.S. 747, 96 S.Ct. 1251,
47 L.Ed.2d 444 (1976); Griggs v. Duke Power Co., 401 U.S.
424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971); Vogler v. McCar-
ty, Inc., 451 F.2d 1236 (5th Cir. 1971). In Griggs, Chief
Justice Burger found:
What is required by Congress is the removal of ar-
tificial, arbitrary, and unnecessary barriers to
employment when the barriers operate invidious-
ly to discriminate on the basis of racial or other
impermissible classifications.
It is based upon these principles that the Court
makes its analysis and finding.
RULE 23(a)(1)-NUMEROSITY
The proposed class (1) satisfies the numerosity
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requirement of Rule 23(a)(1). Defendant’s statistics clearly
show it employs a large female work force, the joinder of
which would be impractical. The Court finds however that
plaintiff has made no showing to satisfy the requirement of
Rule 23(a)(1) as to proposed class (2).
RULE 23(a)(2)—-COMMONALITY
In order to satisfy Rule 23(a)(2), the plaintiff must
show that ‘‘there are questions of law or fact common to
the class.’’ The Court of Appeals for the Fifth Circuit has
held that the broad public policy embodied by Title VII re-
quires a finding that actions brought thereuner are class
actions which by definition involve class wrongs. Oatis v.
Crown Zellerbach Corp., 398 F.2d 496 (5th Cir. 1968);
Jenkins United Gas Corp., 400 F.2d 28 (5th Cir. 1968);
Johnson v. Georgia Highway Express Inc., 417 F.2d 1122
(5th Cir. 1969). In these employment discrimination cases,
the Fifth Circuit adopted the ‘‘across the board’’ approach,
i.e., the employer's alleged pattern or policy of discrimina-
tion is considered sufficiently common to satisfy the com-
monality requirement. Under this approach the claim of
the nominal plaintiff need not be identical to thosee of the
proposed class; it is the underlying policy of discrimination
that is viewed as common to all class claims and members.
In Johnson, the Court described the question of fact
common to all members of the class as ‘“‘the Damoclean
threat’’ of discriminatory policy hanging over the class.
The Court acknowledged that there were different factual
questions with regard to different employees but held these
could simply be different manifestations of the single
discriminatory policy thereby permitting joinder of all
claims in a class action. See Long v. Sapp, 502 F.2d 34 (5th
Cir. 1974); Jaci v. American Linen Supply Co., 498 F.2d
A-9
122 (5th Cir. 1974); Rodriguez v. East Texas Motor Freight,
515 F.2d 40 (5th Cir. 1974); Carr v. Conoco Plastics, Inc.,
423 F.2d 57 (5th Cir. 1970).
Plaintiff's complaint adequately demonstrates that
her attack is, in fact, against the persunne! policies, prac-
tices and customs of K & B which allegedly create distinct
employment inequities for females. The Court recognizes
plaintiff's suit as one designed to end the alleged sexually
discriminating policies of the defendant and therefore the
requirements of Rule 23(a)(2) are satisfied. The fact com-
mon to all members of the proposed class is the alleged sex
based discrimination.
RULE 23(a)(3)—TYPICALITY
RULE 23(a)(4)-ADEQUACY OF REPRESENTATION
Rule 23(a)(3) and (a)(4) are closely related and in the
context of this case will be discussed together. Rule 23(a)(3)
requires a finding that the claims of the class represen-
tative are typical of the claims of the proposed class. In
Long v. Sapp, 502 F.2d 34 (5th Cir. 1974) the Fifth Circuit
laid down the requirement that there be a ‘‘nexus’’ between
the class representative and the class in order to satisfy
Rule 23(a)(3).
To satisfy Rule 23(a)(4), the representative party
must fairly and adequately protect the interests of the
class. The adequacy requirement involves the qualifica-
tions and ability of plaintiff's counsel, and that the plaintiff
does not have interests antagonistic to the proposed class.
In the case sub judice the plaintiff alleges several
discriminatory policies which ‘‘pervade all aspects of the
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employment practices’’ of the defendant; as a female
allegedly aggrieved by these policies she has demonstrated
the necessary nexus with the proposed class. Wells v. Ram-
say Scarlett & Co., 506 F.2d 436 (5th Cir. 1975). Plaintiff is
represented by competent counsel and her interest as a
female allegedly victimized by discrimination is sufficient
to make her an adequate class representative.
The defendant has concentrated its opposition to the
plaintiff's class representation on these adequacy and
typicality issues. Defendant urges the atypical nature of
plaintiff's claims and the failure of plaintiff to satisfy this
requirement of Rule 23. More specifically, the defendant
points to
(1) The personal nature of plaintiff's grievances
and
(2) The fact that the plaintiff is a professional
employee, registered pharmacist, and not suffi-
ciently representative of the female employees at_
K & B.
The defendant asks this Court to focus upon plain-
tiff’s charges of untoward sexual advances and thereby
find that plaintiff’s claims are personal and not shared by
other members of the purported class. The Court cannot do
this without ignoring the broad class allegations of plain-
tiff’s complaint. Plaintiff's case is not limited to personal
sexual harassment grievances. Further, the inclusion of
these claims does not defeat class treatment of the matter.
Bowe v. Colgate Palmolive Co., 416 F.2d 711 (7th Cir.
1969); Oatis v. Crown Zellerbach Corp., 398 F.2d 496 (5th
Cir. 1968).
A-1l
The charges in plaintiff's complaint are against
“policies, practices and customs’’ of defendant K & B
which allegedly violate the Title VII mandate of equal ac-
cess to employment opportunities for all, regardless of sex.
Therefore, those claims of plaintiff Capaci, directed at sex-
ually discriminatory policies that she alleges pervade all
aspects of the employment policies of K & B, are by their
nature class claims. The plaintiff is a woman and former
employee and she is clearly a member of her proposed class.
In Long v. Sapp, the 5th Circuit stated:
As a person aggrieved, she can represent other
victims of the same (discriminatory) policies,
whether or not all have experienced discrimina-
tion in the same way; Long v. Sapp, 502 F.2d 34,
43 (5th Cir. 1974).
Defendant also contends that plaintiff Capaci is not
an adequate or proper representative of female employees
at K & B because she is a registered pharmacist, a profes-
sional employee, segregated from the large number of other
female employees. It is further noted by defendant that
plaintiff Capaci’s promotion to Chief Pharmacist is unat-
tainable by other less educated female employees and
therefore Capaci is not the proper party to represent these
females at K & B.
The Court finds no merit in this distinction. Plain-
tiff’s complaint is not limited to promotion to Chief Phar-
macist. Among her claims, she attacks what is described in
her complaint as the ‘pattern, practice, and policies’’ of
defendant of not placing any woman in managerial or
supervisory positions. Plaintiff further complains of the
general mistreatment accorded women in all aspects of the
employment relationship. Therefore, the pharmacist
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distinction is a minor one when the complaint is viewed as
a challenge to the alleged underlying policies of sex
discrimination. It should also be noted that the promo-
tional progression within the defendant organization
allows both pharmacists and non-pharmacists to seek and
reach the same management positions, Chief Pharmacist
being the only position unavailable to non-pharmacist
employees. All other management function positions can
be filled by pharmacists and non-pharmacists alike.
Finally, the Court finds that plaintiff's counsel is
able and competent to proceed vigorously with this
litigation.
RULE 23(b)(2)
The plaintiff contends that the present case satisfies
the requirements of Rule 23(b)(2):
The party opposing the class has acted or refused
to act on grounds generally applicable to the
class, thereby making appropriate final injunc-
tive relief or corresponding declaratory relief with
respect to the class as a whole.
The Advisory Note to the Federal Rules states that
Rule 23(b)(2) is particularly suited to civil rights suits. See
Advisory Committee Notes, 39 F.R.D. 69, 102 (1966).
It should be noted that the relief available in this
type class action includes injunctive relief as well as
backpay. Albermarle Paper Company v. Moody, 422 U.S.
405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975).
In Albermarie, a Title VII class action certified
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pursuant to Rule 23(b)(2), the Supreme Court held that the
main goal of Title VII was to end discrimination and
restore losses to persons victimized by past discrimination.
The Court further held that, in unlawful discrimination is
found, back pay should be deemed ‘‘only for reasons which,
if applied generally, would not frustrate’’ the statutory
purposes of the Act. The Court also held the fact that there
was no bad faith does not justify a denial of back pay to the
class. The Court finds this action may be brought pursuant
to Rule 23(b)(2).
CONCLUSION
Therefore, this Court is unable to conclude that
plaintiff's claims are purely personal or that her status as
a pharmacist prevents her from representing other female
employees. More particularly the Court finds plaintiff's
claims to be common and typical of the class she seeks to
represent as defined by this Court.
The broad remedial policy of Title VII requires this
Court to liberally interpret the typicality requirement of
Rule 23 in form of class certification.
CLASS DEFINED
The plaintiff seeks to represent present and former
female employees of defendant, as well as females who were
refused employment or ‘‘chilled’’ from applying for employ-
ment because of discriminatory policies.
It is clear that the plaintiff, a former employee may
represent former and present employees. As stated in
Wetzel v. Liberty Mutual Insurance Company, 3 Cir., 508
F.2d 239, 247 (1975), to hold otherwise would be to
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encourage employers ‘“‘to discharge those employees
suspected as most likely to institute a Title VII suit, in the
expectation that such employees would thereby be reduced
incapable of bringing a suit as a class action.”
The second group of persons sought to be included in
plaintiff's class are females who applied for supervisory
positions with the defendant organization but were
categorically refused. This group may not be included in
plaintiff's class because of plaintiff's failure to satisfy the
numerosity requirement as discussed supra.
The final group of potential class members, i.e., those
“‘chilled”’ from applying for employment is not appropriate.
Such a group is not appropriate. Such a group is in-
definable and unidentifiable.
ORDER
For the reasons herein, it is ordered that the instant
action be certified as a class action. The class shall include
all past and present female employees of defendant.
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APPENDIX “‘B”
Andra A. CAPACI,
Plaintiff,
and
Equal Employment Opportunity Commission,
Plaintiff-Intervenor,
v.
KATZ & BESTHOFF, INC.,
Defendant.
Civ. A. No. 74-2743.
United States District Court,
E. D. Louisiana.
Oct. 15, 1981.
Claimant filed employment discrimination action
alleging that employing drugstore chain had discriminated
against her by refusing to promote her to managerial posi-
tion, subjecting her to disparate terms and conditions of
employment, and retaliating against her after she filed se;
discrimination charge with EEOC through harassmew.,
denial of wage increase, and discharge from employment.
The EEOC intervened. The District Court, Cassibry, J.,
held that: (1) EEOC had not proved by preponderance of
evidence its claim that employing drugstore chain had
policy of excluding females from management positions; (2)
claimant had established prima facie case of discrimination
in drugstore chain's failure to promote her to management
A-16
position; (3) drugstore chain had articulated legitimate,
nondiscriminatory reason for failing to promote claimant,
claimant had failed to show that reason was pretextual,
and thus had failed to discharge her burden of proof to
show that employer discriminated against her on basis of
her gender with regard to management position; (4) clai-
mant had not shown that employer failed to investigate her
complaint of improper sexual advances or that it took inap-
propriate action, and thus sexual harassment claim had to
be denied; (5) building claimant’s personnel file constituted
harassment in retaliation for filing of charges; and (6) clai-
mant had not shown that her discharge was a retaliatory
action.
Judgment accordingly.
Carl J. Schumacher, Jr., New Orleans, La., Dona S.
Kahn, Philadelphia, Pa., for plaintiff.
James E. Miller, Cassandra M. Menoken, and Ethel
M. Mixon, for plaintiff-intervenor.
Daniel Lund, James B. Irwin, New Orleans, La., for
defendant.
CASSIBRY, District Judge:
The plaintiff Andra Capaci filed this employment
discrimination suit on October 8, 1974, alleging that the
defendant Katz & Besthoff, Inc., [K&B] had discriminated
against her by (1) refusing to promtoe her to a managerial
position while it continually promoted less qualified male
employees; (2) subjecting her to disparate terms and condi-
tions of employment; (3) retaliating against her after she
A-17
filed a charge with the Equal Employment Opportunity
Commission [EEOC] through harassment and denial to her
of a standard wage increase~accorded to most other
employees, and, finally, discharging her from her
employment.
The court has jurisdiction of this sex discrimination
case under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq.
The EEOC which had determined as a result of the
charges filed with it by the plaintiff in January, May and
August 1973 that K&B had in fact discriminated against
her, both by refusing to promote her and by retaliating
against her for filing a charge, was permitted to intervene
in the suit on July 19, 1977. Upon motion of the defendant
the previously certified class was decertified on the condi-
tion that the EEOC would be permitted to prosecute the
claims of the class. The EEOC took an active role in the
trial of the case to prove that K&B had a policy and prac-
tice of discrimination against females by excluding them as
a class from management positions. The trial of the case
was limited to the liability issues.
The plaintiff Andra Capaci, a female registered phar-
macist, has been an employee of K&B in the New Orleans,
Louisiana metropolitan area since 1963. K&B is a Loui-
siana Corporation domiciled in the City of New Orleans
which operates a chain of drug stores in Louisiana,
Mississippi and Alabama. The company, including its
predecessor Katz & Besthoff, Ltd., has grown from one
store opened in New Orleans in 1905 to eighty stores in
Prior to her employment as a registered pharmacist, Capaci was
hired by K&B as a part time student pharmacist and received credit for
this work in the Loyola School of Pharmacy where she was a student.
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1979. The K&B organization was relatively small until
1971 when a period of rapid expansion began.
In 1973, the year Capaci filed her charge, the work
force of K&B was largely female, but its managerial force
was predominately male.” Until the time of her charge
there existed basically two lines of progression to store-
wide management positions at K&B. One line was from a
manager trainee position to relief manager and pro-
gressively to assistant manager and manager. The other
line prior to 1968 was from pharmacist to assistant
manager to manager. The position of chief pharmacist was
created in 1967 and thereafter this line was principally
from pharmacist to chief pharmacist, and few pharmacists
were promoted to storewide management positions after
that date. Capaci was never promoted to assistant
manager or chief pharmacist during her 10-year period of
employment with K&B.
THE EEOC CASE
The EEOC relies principally on its statistical
evidence and the testimony of its expert Dr. Joseph L.
Gastwirth to prove its allegation that K&B followed a
policy and pattern of discrimination against females in its
practice of excluding females from promotion to manage-
ment positions after July 1965, the effective date of the
Civil Rights Act of 1964. To buttress its statistical
evidence it produced one present employee and four former
employees who testified that their impression was that
K&B did not treat males and females equally in appoint-
é According to the combined data of the 1973 EEO-1 forms for
headquarters and stores, the sales workers were 92% female, office and
clerical workers—87% female, and service workers—75% femaie, but of
a total of 201 officials and managers, only 3, or 1.49%, were female.
A-19
ments to management positions, and it presented evidence
of advertising practices of K&B to show that it preferred
males over females in its management positions. The
EEOC also urges the court to draw an unfavorable in-
ference from K&B’s failure to keep certain personnel
records since the filing of the charge of discrimination in
this case, allegedly in violation of the requirements of Title
VII, § 709(c), and 29 C.F.R. 1602.14.
STATISTICAL EVIDENCE
The EEOC offered 79 statistical exhibits in three
categories: (1) Referent Exhibits 1-26; (2) Manager Trainee
Exhibits 1-17; and (3) Pharmacy Exhibits 1-36. The
Referent Exhibits were for the most part presentations of
data from the 1970 Census on the civilian labor force in
Louisiana which Dr. Gastwirth considered relevant to the
K&B managerial force. The Manager Trainee exhibits were
directed to proof that K&B excluded females from the
manager trainee position, and the Pharmacy Exhibits dealt
with discrimination in the promotion of female
pharmacists.
Dr. Gastwirth made a variety of comparisons of the
K&B managerial positions in his statistical studies. He
compared the proportion of males and females in K&B’s
managerial force at certain periods of time with the propor-
tion of males and females in various segments of the
civilian labor force in Louisiana in 1970. Theoretically in
these comparisons he used the various labor force seg-
ments as labor force pools of potential applicants for
managerial positions at K&B. For example, he tested the
probability of observing 3 or fewer females out of 201 of-
ficials and managers, assuming they were selected like a
random sample from various labor force manager groups in
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Louisiana, all of which had been weighted according to the
number of stores in the various labor markets served by
K&B, and the lower bound of that weighting was used for
the testing.? The manager groups used by Dr. Gastwirth
for this test, designated by him as ‘‘Referents’’ and their
respective fractions female are as follows:4
feren Fraction Female
All Managers .1607
Retail Trade Managers 1701
Retail General Merchandise
Store Managers .2364
Department and Sales
Managers (Retail Trade) .2207
He found the probability of 3 or fewer females occurring by
chance was less than one in a billion as to each group which
is statistically significant at the accepted .01 level of
significance.”
3° The lower bound was derived by selecting the smallest fraction
female among the weighted areas.
4 Dr. Gastwirth also included the Civilian Labor Force for the
State of Louisiana, having .3431 fraction female, as a referent group in
the test, but he admitted in his testimony that it was not the most ap-
propriate referent group, and he made no effort to sustain it as a source
pool for K&B’s managerial force.
5 This test has value to illustrate the approach of Dr. Gastwirth
in this case, but has little probative value on the issue of gender
discrimination. The test was admitted by Dr. Gastwirth to have been
done only as a preliminary matter, and to be less than definit: ve because
the data used for the test from the 1973 EEO-1 report could not be
regarded as reliable for his purposes and because the data included
employment decisions made pre-Civil Rights Act. K&B brought out on
cross-examination also that by this test he had compared managers,
A-21
Manager Trainees
The only objective qualification for the position of
manager trainee at K&B is a high school education. The
highest annual salary for the period 1966-1973 was
$7,488.00, or more when overtime was involved. The EEOC
relies on three approaches in its statistical proof as to the
manager trainee to prove that K&B discriminated against
females in its hiring for the manager trainee position. First,
it compared the proportion of males and females hired
directly by K&B as manager trainees from July 1965 to
January 1, 1973 with what it considered to be the relevant
civilian labor force data for that position. Second, it com-
pared the proportion of males and females hired as
manager trainees during the years 1976 and 1977 with the
proportion of males and females who applied for the posi-
tion during those years. Third, it compared the distribution
of males and females hired directly by K&B as manager
trainees during the period July 1965 through December
1977.
K&B hired directly, as distinguished from promotion
from within the organization, 265 males and 0 females bet-
ween July 1965 and January 1, 1973. To test the probabili-
ty of this proportion having occurred by chance, Dr.
Gastwirth compared it with data for several groups of
managers in the civilian labor force in Louisiana derived by
weighting the labor market areas served by K&B according
to the number of stores in them. Those groups of managers
(Footnote 5 continued)
assistant managers and chief pharmacists, all of whom are promoted ex-
clusively from within, not with the internal work force, but with external
groups.
A-22
and the respective fractions female are as follows:®
Referent Fraction Female
Managers Earning Less Than
$7,000 (in 1969) 33877
Experienced Wholesale and
Retail Managers Earning
Less than $7,000 (in 1969) .2766
General Merchandise Retail
Store Managers 244
Department and Sales
Managers (Retail Trade) .2809
He was testing the probability that K&B would hire 265
males and 0 females into its manager trainee position bet-
ween July 1965 and January 1, 1973, if persons hired for
the position were selected like a random sample from each
of the above groups. His test results showed that the pro-
bability that 0 females out of 265 hired would occur by
chance as to each group was less than one in a billion.8
© The Civilian Labor Force and All Managers group was included
in this test. Dr. Gastwirth’s discussion of the test shows that he did not
consider that the manager trainee group at K&B should mirror the All
Managers group in Louisiana, and he did not demonstrate how the en-
tire civilian labor force was an appropriate group for comparison with
the manager trainees.
7 The $7,000.00 salary cutoff was chosen because Gastwirth did
not consider, given the salary at K&B. that anyone making more than
$7,000.00 would apply for the manager trainee job.
8 Both sides are in agreement generally that in a case such as this
the hypothesis that a difference in proportions male and female is the
result of chance should be rejected in favor of the conclusion that the dif-
ference occurred for other reasons when the test results indicate that the
of the difference occurring by chance is one in a hundred or
probability
less—.01 level of significance.
A-23
Applicant flow data for the manager trainee position
was available only for the years 1976 and 1977. The data
included both outside applicants and those applying from
within K&B, and showed the number of hires and the
number of applicants for each year and for each sex, and
the totals for both years were calculated.
Males
Percent
Applicants Hires Hired
1976 100 64 64.0
1977 296 84 29.38
Total 396 148 37.37
Females
Percent
Applicants Hires Hired
1976 12 5 41.66
1977 82 10 12.20
Total 94 15 15.96
A chi-square test showed that the difference between the
percentage of male applicants hired (37.37) compared to the
percentage of female applicants hired (15.96) for the posi-
tion of manager trainee during 1976 and 1977 is statistical-
ly significant. The probability of this difference occurring
by chance is one in a thousand according to the test.
During the period July 1965-December 1977, 633
males were appointed as manager trainee, and 20 females
were so appointed. 97.95 percent of the males were hired
directly and 30 percent of the females were hired directly.
The remaining percent for each sex were promoted from
within, of course. The remaining 70 percent female were all
promoted from the position of cashier. A chi-square test,
which tested whether the distribution of male and female
A-24
outside hires was equal, showed that the difference in the
percentage of females (30%) and males (97.95%) is
statistically significant. This difference has a probability of
less than one in a thousand of occurring by chance.
K&B seeks first to discredit the statistical evidence
of the EEOC. It urges the court to reject the EEOC
statistical case because its expert, Dr. Joseph L.
Gastwirth, was a theoretical statistician with little
qualification for the problems of applied statistics in this
case. It emphasizes Dr. Gastwirth’s complicated responses
to some of the questioning, the great difficulty he had in ex-
plaining some of his statistical exhibits, his admitted
failure to familiarize himself with the K&B operation, and
his small expertise as a labor economist. These factors
make the burden of the court more onerous, but they are
not cause of themselves to reject his testimony and his ex-
hibits as having no weight at all.
K&B also urges that much of the evidence of the
EEOC has no relevance to the issue of discrimination in
this case. The statistical proof of the EEOC as to the
manager trainee position deals largely with manager
trainee hires from outside the K&B work force. K&B con-
tends that these statistics are largely irrelevant because
they ignore the established practice of K&B to look first to
its existing work force for new manager trainee candidates
before going outside. The EEOC statistics would be irrele-
vant if the EEOC had combined those hired from outside
and those promoted from within and compared the total to
groups in the Louisiana labor force on the theory that those
groups were the labor source pools. In the recent case,
Johnson v. Uncle Ben's, Inc., 628 F.2d 419 (1980), the Fifth
Circuit Court of Appeals held that the two issues of access
to jobs in an employer’s work force—promotion and lateral
A-25
hiring—should be kept separate in scrutinizing statistical
analyses.
The real issue here is whether the statistics are defi-
cient because no statistical studies were made comparing
those promoted from within to manager trainee with
K&B's internal work force. The Fifth Circuit held in James
v. Stockham Valves & Fittings Co., 559 F.2d 310 (1972),
that for jobs filled by promotion, the relevant comparison
is the company’s internal work force. According to the
Fifth Circuit in Uncle Ben's, supra, this statistical lack is
not necessarily fatal:
The difficulty is that most cases fall between
these extremes of exclusive promotion and of ex-
clusive non-promotion [hires from outside]. As a
general matter, however, cases are dealt with in
terms of the extreme to which they most closely
accord.***628 F.2d at 425.
The extreme to which this case most closely accords
is that the manager trainee position was filled by outside
hires. When questioned about his failure to make studies of
those promoted from within, Dr. Gastwirth testified that
approximately 95% of those appointed to the manager
trainee position were hired from outside the K&B work
force.
The groups selected by Dr. Gastwirth based on
Labor Market data from the 1970 Census are seriously
questioned by K&B as not being appropriate for com-
parison to the manager trainee position or any manage-
ment position at K&B.° Dr. Gastwirth was equivocal at
9 Generally, it is recognized that comparative labor force data or
comparative applicant flow data can be used. The choice depends on
A-26
some points in his testimony as to whether his groups were
source pools for actual applicants or comparison groups for
the manager trainee position, 19 but the explanatory
language in his exhibits and his testimony as a whole in-
dicate that in his studies he regarded the groups as source
pools. K&B argues that these groups are not sufficiently
representative of its source of actual applicants to have any
relevance to its hiring practices. It accuses the EEOC of us-
ing any available data without regard to its relevance to
the K&B work force.
Dr. Gastwirth admitted that his groups include part
time employees and the self employed, some of whom are
not potential applicants for the manager trainee position,
and that no data was available to him to make these
refinements. The potential applicant pool will be further
reduced in proportion female, according to K&B, by the
lack of interest of females in applying for a job having a
manager trainee schedule and work requirements. Dr.
Gastwirth had not informed himself as to the nature of the
job from these particular aspects of it.
The job requires the manager trainee to unload supp-
ly trucks, to put up stock, straighten up the store, and the
(Footnote 9 continued)
the surrounding circumstances as they affect relevance and reliability.
Hazelwood School District v. United States, 433 U.S. 299, 97 S.Ct. 2736,
53 L.Ed.2d 768 (1977); Dothard v. Rawlinson, 433 U.S. 321, 97 S.Ct.
2720, 53 L.Ed.2d 786 (1977). The most appropriate comparison would be
the actual hires to the applicants. Since applicant flow information was
lacking in this case, except for the years 1976-1977, it was acceptable for
the EEOC to look for any relevant labor force data. See Baldus-Coie,
Statistical Proof of Discrimination, p. 103 (1980).
10 4 source group is a pool of all who are potentially qualified and
available for the job under study. A comparison group is a similar work
force or job in a similar industry which, because of its similarity, can be
reliably compared to the work force under study.
A-27
work schedule includes night work, week end and holiday
work. Dr. Charles J. Cranny, testifying for K&B as a labor
economist with some expertise in industrial organizational
psychology (the psychology of people at work), expressed
the opinion that the requirements of the job, including the
schedule, would substantially retard females from applying
as compared to males. He offered no studies to support his
opinion, and admitted that no data was available, but
defended his opinion as being based on a reasonable ex-
planation for the reason that the K&B manager trainee
force had a smaller proportion female than the labor
market groups.
To lend practical support to Dr. Cranny’s opinion
K&B offered two female witnesses who resigned from the
manager trainee position because the schedule was too
rigorous. There was also testimony from a female employee
who had refused to enter the management program when
approached by management, and from another who had
made known to management that she was not interested
because of the heavy manual labor involved and the week
end work. There was additional testimony from males in
management naming female employees who were sought
out for the manager trainee program and who refused to
enter it.
Dr. Gastwirth specifically questioned Dr. Cranny’s
opinion as to the effect of night work in reducing the
number of potential female applicants. He admitted
generally, however, that the data from the 1970 Census ap-
plicable to the managerial groups used as a basis for his
studies was aggregated, that is, it needed refinement that
he could not make, so that none of these groups would be
the most appropriate to compare with any management job
at K&B.
A-28
K&B accuses Dr. Gastwirth of using an inap-
propriate statistical approach in his testing of the data for
manager trainee applicants and hires for the years 1976-77.
Whereas Dr. Gastwirth combined all applicants and all
hires throughout the K&B chain for those two years, K&B
contends that the data should have been broken down and
tested as to each locality where applications were received.
The justification for this is that the applicants for a posi-
tion open at one location, for example, Alexandria, Loui-
siana, cannot logically be regarded as applicants for a posi-
tion at another location, for example, Lake Charles, Loui-
siana, so that the data should not be combined. Dr. Cranny
tested the data as to each location and found a result of
statistical significance at only one—New Orleans.!1
For the sake of argument, Dr. Cranny used five of
Dr. Gastwirth’s groups taken from the 1970 Census data
(and added two groups from EEO-1 summary reports for
the State of Louisiana’ and compared them with the
manager trainee hire and promotion data broken down by
year for the period July 1965 through 1978 to show that
there was no pattern of disparate treatment of females at
K&B.
The Groups:
1. Civilian Labor Force (Percent Female 36.76)
IT pr. Cranny’s approach reduced the possibility of the test
results showing a non-chance reason for the difference in proportion
male and female hires because he reduced the totals used by Dr.
Gastwirth to samples of small size. Dr. Cranny was aware that it is dif-
ficult to get statistically significant results with small samples. It has
been recognized that statistical evidence based on small samples has a
limited value in employment discrimination cases to prove disparate
treatment of a minority group. Hornick v. Duryea, 507 F.Supp. 1091
(M.D.Pa.1980) and cases cited therein; see Thompson v. Leland Police
Department, 633 F.2d 1111 (5th Cir. 1980).
A-29
2. All Managers (Percent Female 16.24)
3. All Retail Trade Managers (Percent Female 18.16)
4. All General Merchandise Retail Store Managers
(Percent Female 24.40)
5. Department and Sales Managers—Retail Trade
(Percent Female 28.09)
6. EEO-1 Report Summary by State: Officials and
Managers, New Orleans SMSA (Percent Female 13.2)
7. EEO-1 Report Summary by State: Officials and
Managers, Louisiana (Percent Female 11.4)
(He considered the EEO-1 groups less inappropriate
than Dr. Gastwirth’s groups for comparison purposes.)
The Hire and Promotion Data:
7-12/65 1966 1967 1968 1969 1970 1971 1972 1973
M 12 20 28 31 32 42 47 «54 = «71
F 0 0 0 0 0 0 0 0 0
1974 1975 1976 1977 1978
M 93 55 67 85 1
F 1 3 5 8 11
Dr. Cranny reported his test results at .01 and .05
probability levels and N.S. (not significant). He found no
pattern of disparate treatment over these years at the .01
level even after correcting several errors in his calculations
which were called to his attention by the EEOC.!2
12 Dr. Cranny reported the results of his statistical tests in the
A-30
Dr. Gastwirth objected to Dr. Cranny’s approach of
testing for each year as being inefficient because it resulted
in reducing the sample size, thus making more difficult a
rejection of the null hypothesis that males and females
were appointed in equal proportions. He was further of the
opinion that it was not proper to separate the data by year
for the period that the percentages were the same (1965-
(Footnote 12 continued)
following chart:
“REFERENT GROUPS”
YEARS! 1 2 3 4 5 6 7
.01* .05*
7-12-1965) .66- N.S. N.S. N.S. | NS | N.S. N.S.
.05*
1966 01 N.S. N.S. 05 O01 N.S. N.S.
.01* .05*
1967 01 05 06 01 01 N.S. N.S.
.05* .05*
1968 01 05 01 01 01 N.S. N.S.
.05* .05*
1969 01 05 01 01 01 N.S. NS
‘ .01* .01*
1970 01 01 01 01 01 06 aca
_1971 01 01 01 01 01 05 05
1972 01 01 01 01 01 01 01
1973 O01 01 01 01 01 01 01
.01* 01* o1*
A-31
1972, 100% males and 0% females were appointed) because
similar data should be pooled for testing. He did not
demonstrate, however, how the lack of pattern would have
changed if Dr. Cranny had pooled the data for those vears
and separated it only for the period 1973-1978. Dr.
Gastwirth also suggested that a pattern may be hidden
because the probabilities were reported at the .01 and .05
levels rather than the exact probabilities.
To the serious and substantial objections K&B has
made to the labor force groups which the EEOC used for
comparison with the manager trainee group, and to the
techniques the EEOC used in presenting its statistical
evidence, the EEOC has made no argument to sustain its
groups as relevant either as source groups or as com-
parison groups, or to sustain its questioned techniques.
Statistics can serve as a useful tool in pattern and
practice suits in the determination of whether defendants
have engaged in employment discrimination. International
Brotherhood of Teamsters v. United States, 431 U.S. 324,
97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). In this case, for exam-
ple, if appropriate data has been collected and properly in-
terpreted, statistics can determine whether disparities in
the form of underrepresentation of females in the K&B
managerial work force can be attributed solely to chance
factors. Where gross statistical disparities can be shown,
statistics alone may in a proper case constitute prima facie
proof of a pattern or practice of discrimination. Hazelwood
School District v. United States, supra note 9; Equal
Er ployment Opportunity Commission v. Datapoint Cor-
poration, 570 F.2d 1264 (5th Cir. 1978); Davis v. Califano,
613 F.2d 957 (D.C.Cir.1979); Markey v. Tenneco Oil Com-
pany, 635 F.2d 497 (5th Cir. 1981); Little v. Master-Bilt
Products, Inc., 506 F.Supp. 319 (N.D.Miss.W.D.1980). To
A-32
have such force the statistics must be relevant, material
and meaningful. Equal Employment Opportunity Commis-
sion v. Datapoint Corporation, supra; Johnson v. Uncle
Ben's, supra.
To be relevant as source groups for comparison with
K&B’s manager trainee force, the labor force groups used
by the EEOC must be the proper population of potential
applicants for the manager trainee job. All of the basic
referent groups are admittedly aggregated, that is, they
contain persons who are not truly potential applicants.
Furthermore, all of the groups are aggregated because of
the female self-selection factor. Dr. Cranny’s opinion on
this factor as affecting the potential applicant pool has a
reasonable basis that would remove it from the realm of
mere surmise or conjecture. The data was aggregated,
therefore, and there is no certainty as to how much it was
aggregated. Dr. Gastwirth admitted that figures were not
available for him to refine the data.!3
As mentioned earlier, Dr. Gastwirth in his testimony
at times appeared to be regarding the manager groups
taken from census data as comparison groups, but he did
not show how they could properly be considered as com-
parison groups, and the EEOC in its arguments does not
indicate that it proposes any of them as comparison
groups. All of the groups included data on businesses not
comparable to the K&B operation, such as boutiques and
'S Dr. Gastwirth’s testimony leaves no doubt that he had the feel-
ing as a statistician that ‘‘out there’’ somewhere was an appropriate
group that, when compared to K&B's manager trainee force, would
show discrimination against females. He calculated that any group hav-
ing more than two percent females would cause a rejection of the
hypothesis that 265 males and 0 females were chosen like a random sam-
ple, and the inferencce that the under representation of females occurred
by chance would also be rejected.
A-33
dress shops. Dr. Cranny indicated that a comparable
management level job in other chain pharmacies, or even in
grocery chains, would provide an appropriate comparison
group, but no data is available for either.
The EEOC does not defend its statistical approach in
testing the data for manager trainee applicants and hirés
for the years 1976-77 against the charge of K&B that the
data combining all applicants and hires for the two years
should have been broken down by locality. There was no
testimony from Dr. Gastwirth explaining how his approach
was preferable to Dr. Cranny’s.
The value of testing the distribution of the percen-
tages of male and female outside hires for the manager
trainee position, as compared to the percentages of males
and females promoted from within, for showing a pattern
and practice of discrimination was never explained in
testimony or otherwise by the EEOC. Statistics should be
meaningful, and not fashioned to obtain a desired conclu-
sion. Equal Employment Opportunity Commission uv.
Datapoint Corporation, supra.
Pharmacists
Statistically, the EEOC analyzed its allegation of
discriminatory promotion practices from the standpoint of
the pharmacist position. The purpose of the analysis was to
test the validity of the hypothesis that male pharmacists
and female pharmacists had an equal chance of being pro-
moted to a management position at K&B. The promotion
practices were surveyed from various viewpoints and for
several periods.
A-34
First, Dr. Gastwirth examined how female phar-
macists fared in promotion to management positions prior
to the effective date of the Civil Rights Act, July 1, 1965.
Second, he examined the relative length of service between
male and female pharmacists prior to promotion. Third, he
compared the proportion of male and female pharmacists
promoted during certain periods with the proportion of
male and female pharmacists hired during the period.
Fourth, he examined as of January 1973 (1) the distribution
of jobs according to the level of desirability of all
employees who at some stage of their employment had
been pharmacists, and (2) the proportion of male and
female pharmacists at K&B in managerial and staff posi-
tions in comparison to the proportion of males and females
in those positions in community pharmacies, hospitals and
nursing homes in Louisiana during 1973.
Dr. Gastwirth tested the probability of equal promo-
tion of male and female pharmacists in the K&B work force
as of July 1965 who were appointed before Capaci was ap-
pointed pharmacist—those appointed between June
194914 and J anuary 1963—-and who were promoted prior
to July 1, 1965, the effective date of the Civil Rights Act.
His data showed that out of 29 males and 6 females, 65.5
percent (19) of the males were promoted and 0 females. The
Fisher exact test gave this comparative rate of promotion
a probability of .0049, or less than one-half of one per-
cent,—statistically significant.
Dr. Gastwirth extended the appointment period—
June 1949 to July 1, 1965—and the data changed. Out of
39 males and 13 females, 51.28 percent (20) of the males
14 This date was selected as a starting date because that was the
earliest date of appointment of a female as a pharmacist who was still
employed in July 1965.
A-35
were promoted and 0 females. The Fisher exact test showed
this difference to be statistically significant with a pro-
bability of less than one in a thousand.
Using the Wilcoxin-Mann-Whitney test Dr. Gast-
wirth determined that there was a statistically significant
difference for males and females in the time from appoint-
ment as pharmacist to promotion (either to chief phar-
macist or a store-wide management position) of the 41
pharmacists promoted during the period July 1, 1965
through January 1973. The two females who were pro-
moted had service times of 229 and 97 months from ap-
pointment to promotion. These were the largest service
time (rank 41) and the third largest (rank 39). The probabili-
ty of this extreme rank order for the females occurring by
chance was less than one-half of one percent—statistically
significant.
When the test was limited to data on time from hire
to promotion to chief pharmacist (females ranked 25 and 24
out of 26 rankings) the results showed that the probability
of observing this difference between males and females in
time to promotion was .0123, and statistically significant
in the opinion of Dr. Gastwirth.
The proportion of male and female pharmacists who
had been hired in the period from July 1, 1965 to January
1, 1973 and who had received a promotion during that
period, was compared. Twenty of the 196 pharmacists
hired during that period were female, but of the 28 pro-
moted during that period 0 were female. Using the Fisher
exact test the probability of observing this difference is
049.
A statistical comparison was made of the proportion
A-36
of male and female pharmacists hired between June 1963,
the date plaintiff was hired and January 1, 1973, just prior
to the charge, who were promoted to chief pharmacist or
store-wide management position during that period. Out of
220 hired (191 males, 29 females) 34 males (17.8%) and 0
females were promoted. The probability of observing so
few females promoted is less than .0082, statistically
significant at the .01 level of significance.
How female pharmacists fared in promotion to assis-
tant manager was tested. From the inception of the Civil
Rights Act, July 1, 1965, to December 31, 1977, 273 males
were hired, 24 of whom were promoted to assistant
manager. Seventy-nine females were hired and none was
promoted. This difference tested at a probability of .0022,
which is statistically significant.
The 145 positions held as of January 1973 by
employees who were pharmacists at some stage of their
employment with K&B were examined on the basis of their
distribution among males and females according to their
wage level of desirability (top level—supervisor, manager,
buyer; middle level—assistant manager, chief pharmacist;
lower level—pharmacist). Twenty-six males and 0 females
held top level positions, twenty-four males and one female,
middle level, and eighty-three males and 11 females, lower
level. The Mann-Whitney-Wilcoxin test rejected the
hypothesis that males and females had the same distribu-
tion of positions at the .05 level of statistical significance,
but not at the .01 level.
A comparison was made of the managerial and staff
positions held by male and female employees as phar-
macists at K&B in January 1973 with those positions held
by active resident pharmacists employed in community
A-37
pharmacies, hospitals and nursing homes in Louisiana dur-
ing 1973. At K&B 1 of 51 managers was female, and 11 of
94 staff pharmacists were female. In the community phar-
macies, hospitals and nursing homes 30 of 430 managers
were female and 96 of 519 staff employees were female. Dr.
Gastwirth combined the probability of observing fewer
females in manager and staff positions at K&B than in the
other places of employment, and the overall probability
was .007, statistically significant at the .01 level.
K&B charges that only by ignoring relevant facts
and juggling dates was the EEOC able to present
statistical evidence against it in its promotion of phar-
macists. Under particular attack is the testing of data for
those pharmacists hired between July 1, 1965 and January
1, 1973 and promoted during the same period. The data
was to the effect that 0 females out of 20 were promoted,
but 28 out of 176 males were promoted. By this juggling
two females who were promoted to the chief pharmacist
position in 1968 were eliminated because both were hired
prior to 1965. These two were among the first six promoted
after the position of chief pharmacist was created. Females
were actually over represented in this instance. Further-
more, in its assistant manager test the EEOC tested data
through 1977, but none of its tests were structured so that
three females promoted to chief pharmacist in 1973 were in-
cluded in the data.
K&B objects to the statistical evidence relating to
time before the Civil Rights Act because K&B is not liable
under the act for preact conduct. Preact conduct can be
useful, however, in an examination of pattern and practice
if the postact conduct is shown to be a continuation of an
employer's preact discriminatory practices.
A-38
Those studies comparing the K&B pharmacists to
those in community pharmacies, hospitals and nursing
homes are questioned as not being relevant because
hospitals and nursing homes inflate the percentage female
since those businesses traditionally attract a greater pro-
portion female and therefore are not similar enough to com-
munity chain pharmacies to be comparable for statistical
analysis. When the data on hospitals and nursing homes
were eliminated, the result was not statistically significant.
Additionally, Dr. Cranny did not agree with Dr.
Gastwirth’s statistical method of combining the probabili-
ty of the managerial group and the staff pharmacist group
and multiplying the two to obtain the overall probability.
which was significant at the .01 level. Dr. Cranny admitted
that it would be statistically correct to multiply the results
for the two groups if they were independent of each other,
and he was not able to explain clearly that they were not
independent. Dr. Gastwirth’s justification for considering
them independent was that one group was not taken from
the other, that is, managers and staff pharmacists were not
taken from the same pool, and Dr. Cranny was not able to
demonstrate a basis for considering them dependent
groups.
K&B argues that Dr. Gastwirth shifted his choice of
level of significance to fit the EEOC position. Dr.
Gastwirth agreed that to avoid the possibility of error in
assuming that a nonchance reason accounted for the dif-
ference in the data on promotion of males and females, the
.01 level of significance was proper. K&B points out that he
departed from this opinion in several of his tests and found
statistical significance even when the test results showed a
probability above the .01 level either by choosing the .05
level or by using such terms as “marginally significant’”’.
A-39
This occurred in his test of job level distribution as of
January 1973 of all employees who had been pharmacists
at some time in their employment at K&B. This test was
also subject to the single date testing objection, and the
further objection that the data included preact employ-
ment decisions.
K&B offered its own statistical evidence for the pur-
pose of showing that statistical evidence does not support
an inference of discrimination against females in its promo-
tion of pharmacists. !5
Dr. Cranny performed a median test to test whether
the median time for promotion to chief pharmacist for
males and females differs in a statistically significant way.
The results showed there was no significant difference in
the distribution of time to promotion in months during the
periods 1965-73, 1973-78, and the combined period
1965-1978 (chi-square tests for the two periods and combin-
ed were, respectively, 1.05, 1.15 and 05)16 By utilizing this
') One of K&B's statistical tests corrected data produced by the
EEOC relating to the proportion of male and female student-graduate
pharmacist hired from July 1965 through December 31, 1977, and tested
the corrected data with a non-significant result. The EEOC does not
mention student-graduate pharmacists in its post-trial brief and ap-
parently does not rely on its student graduate evidence.
16 Combined
1965-1973 1974-1978 1965-1978
Months Female Male Female Male Female Male
*Over 200 2 1 0 3 2 4
190-199 0 1 0 0 0 1
180-189 0 0 0 0 0 0
170-179 0 0 0 1 0 l
160-169 0 0 0 0 0 0
150-159 0 0 0 0 0 0
140-149 0 0 0 0 0 0
130-139 0 0 0 0 0 0
A-40
median test Dr. Cranny explained that he was looking at
the typical time to promotion, whereas Dr. Gastwirth, by
using the Wilcoxin-Mann-Whitney test to test the dif-
ference in the length of time to promotion, was testing the
similarity of the shapes of the two distributions—male and
female—, and statistical significance will be obtained if the
two distributions do not match, regardless of the manner
one distribution does not match the other.
Dr. Cranny questioned the validity of Dr. Gast-
wirth’s reporting of mean or average length of time to pro-
motion for males and females (163 months for females,
29.10 for males), while using the Wilcoxin test, as an incon-
sistency, because the Wilcoxin test makes no assumption
about the symmetry of the distribution, but the average
(Footnote 16 continued)
1
Combined
1965-1973 1974-1978 1965-1978
Months Female Male Female Male Female Male
120-129 0 1 0 1 0 2
110-119 0 0 0 0 0 0
100-109 0 0 0 1 0 1
90- 99 0 0 0 1 0 1
80- 89 0 0 0 0 0 0
70- 79 1 0 0 2 1 2
60- 69 0 4 0 4 0 &
50- 59 0 l 0 2 0 3
40- 49 0 2 0 4 0 6
30- 39 l 4 0 3 1 7
20- 29 1 8 0 5 1 13
10- 19 0 & 2 8 2 16
l- 9 0 aan A _5 eg 1
Totals: 5 32 3 40 8 72
Mdn: 29 31 27
*Over 200 months:
F: 229 & 453 months
M: 280, 285, 483 & 489 months
- A-41
assumes a symmetrical distribution. Dr. Gastwirth denied
that reporting the average time to promotion for male and
female along with the results of the Wilcoxin test is
misleading, but downgraded the average in importance as
being “‘just a summary statistic.”
Dr. Gastwirth agreed that the median test performed
by Dr. Cranny would not result in statistical significance,
but he considered it inappropriate as not being a statistical
test powerful enough to test the hypothesis of equal dis-
tribution of time to promotion between males and females.
K&B introduced the results of several statistical
tests performed by it to show that raw data, produced by
Dr. Gastwirth at his pre-trial deposition, when tested
would produce nonsignificant results.
K&B tested the comparison of males and females
promoted to chief pharmacist from July 1965 through
December 1973 with the total number of each sex employed
by it as pharmacists during that period and the results
were not significant. A total of 215 males and 33 females
were in the K&B pharmacy work force during this period,
and of these, 32 males and 5 females were promoted to chief
pharmacist. Dr. Cranny made a chi-square test of the pro-
portions male and female promoted and the results were
not significant—.05 level. The test differs from the EEOC
evidence testing promotions to chief pharmacist in that it
has no cut-off hire date which would eliminate the females
promoted during the period, and the test period extends to
the end of 1973 rather than January 1973, the date of the
charge. This extension of the test period allowed the three
females promoted after April 1973 to be included in the
data count.
A-42
Raw data provided by Dr. Gastwirth before trial, but
not tested, also prompted K&B to test a comparison of
male and female promotions to chief pharmacist of those
who were hired after the plaintiff Capaci (i.e. after June
1963) and who were pharmacists before January 1973.
Twenty of 179 males hired were promoted compared to 0
females out of 29 hired. Dr. Cranny utilized the chi-square
test and the result, as corrected at trial, was 2.41, not
significant. The EEOC challenged the chi-square test as
the proper one because it is not precise enough in this in-
stance where the testing would show that the number of
females expected to be promoted out of 29 is so few—2.79,
or about three. The challenge was based on the school of
thought that the chi-square test should not be used when
the expected value is less than five. Dr. Gastwirth prefer-
red the Fisher Exact test here, and using a quick approx-
imation of it, he concluded that females had a lower promo-
tion rate than males, but he admitted that Dr. Cranny’s
chi-square result was not a ‘terribly bad’’ approximation.
Dr. Cranny defended his use of the chi-square test,
and was of the opinion that the chi-square test should be re-
jected for the more precise Fisher Exact test only when the
third or fourth decimal place is needed, and in testing for
two decimal places, .01 or .05, the chi-square test is an ade-
quate approximation. Dr. Cranny further explained that
the actual number of females promoted will inevitably be
fewer than the expected number shown in the testing when
the male group from which the selection is made is much
larger than the female group and the selection ratio is
small. This is so because the larger group the more
qualified persons will be found in it, and therefore the
chance of the selection being made from that group, rather
than the smaller one, increases.
A-43
For separate periods—July 1, 1965 through January
1, 1973 and July 1, 1965 through December 31, 1973—Dr.
Cranny tested the comparison between proportions of male
and female pharmacists promoted to a store-wide manage-
ment position. In the first period, according to Dr.
Gastwirth’s data, of 215 males at K&B during the period,
18 were promoted, and of 33 females, 0 were promoted. In
the second period, of 242 males, 18 were promoted, and of
39 females, 0 was promoted. The results of the chi-square
tests were not significant at levels 1.87 and 1.98
respectively.
Since the chief pharmacists and store-wide managers
who are pharmacists are drawn from the same pool—the
pharmacy work force—Dr. Gastwirth disagreed with the
technique of analyzing the promotion to these two
categories separately as Dr. Cranny did. He disagreed
because once a pharmacist is chosen from the pool for pro-
motion to chief pharmacist, that same pool can no longer
serve as the pool for promotion to assistant manager. This
is so because the pharmacist promoted to chief pharmacist
is no longer available for promotion to a store-wide
management position—assistant manager. That promoted
pharmacist is removed from the pool. He disapproved
therefore of comparing separately one promotion
category—store-wide management position—with the total
pharmacy pool.
The proper analysis in his opinion, where two
categories are promoted from the same pool, is a two-step
analysis. The first step is to look at those pharmacists who
are not promoted and those promoted, and the second step
is to look at those who were promoted to ascertain the
category to which they were assigned. By this analysis the
total number of pharmacists is classified into three
A-44
groups—those not promoted, those promoted to chief phar-
macist, and those promoted to assistant manager. The first
question to be answered is, were the promotion rates of
males and females equal, and the second is, of those pro-
moted, were the assignment rates equal? The purpose of
this analysis is to examine the equality of distribution of
assignment of males and females to each of the two
categories, that is, to determine if the distributions are the
same—equal percentage male and female promoted to chief
pharmacist, equal percentage male and female promoted to
store-wide management.
Dr. Gastwirth demonstrated his analysis by the ex-
ample of a total of 100, 70 not promoted, 15 promoted to
chief pharmacist, 15 promoted to assistant manager. If 15
of the males were promoted to assistant manager, 15 of the
females would be expected to be promoted to assistant
manager. If 15 males were promoted to chief pharmacist,
the expectation female would be 15.
He represented that the mathematical equivalent of
this analysis was made by him when he combined those
pharmacists promoted to chief pharmacist and store-wide
management position between June 1963 and January
1973, who were hired during the same period, to compare
statistically the proportion of males and females promoted.
His explanation of this test on his direct examination and
the explanation of the test in the exhibit introduced to
demonstrate the data and test results do not reveal any
such technique was followed. According to him, the second
step of the analysis was eliminated as not being essential
when his data showed 0 females were promoted, thus he
had no distribution of males and females to compare in the
chief pharmacist and store-wide management categories.
He concerned himself only with the first question,
A-45
therefore,—were the promotion rates of male and female
equal?
His criticism of Dr. Cranny’s technique of testing
separately the two categories did not include his own ap-
plication of his preferred technique to data used by Dr.
Cranny to show the statistical result.!7
Dr. Gastwirth further objected to separating the pro-
motion categories, chief pharmacist and _ store-wide
management for testing because separating them reduced
the sample size and made more difficult any meaningful
statistical testing of the issue of whether the female promo-
tion rate was equal to the male.18
To show generally that K&B did not discriminate
against females in its pharmacy work force, Dr. Cranny
compared the proportion female from July 1, 1965 through
January 31, 1973 (of 248 pharmacists, .133% were female)
with three labor force groups:
IT Some apparent inconsistency in the data produced by Dr.
Gastwirth before trial and used by Dr. Cranny in his tests would have
had to be resolved for such testing. Neither side mentioned these
discrepancies at trial or in post-trial brief. In two of Dr. Cranny's
tests—one for chief pharmacist promotion, and one for assistant
manager promotion he used the period July 1965 through December
1973 and the total number of pharmacists in each test was the number
of each sex working for K&B as pharmacists during the period. For the
chief pharmacist test the total is shown to be 215 male, 33 female; for
the store-wide management test the total is shown to be 242 male, 39
female. Another possible complication of the data problem is the total
shown for the shorter period in another of Dr. Cranny's tests—July,
1965 through January 1, 1973—215 male, 33 female, identical numbers
for the totals in the chief pharmacist test.
18 as pointed out previously in a small sample size, a large
discrepancy in the comparison groups may not produce a result of
statistical significance.
ee
A-46
1. Proportion female (.11) of active resident phar-
macists in Louisiana;
2. Proportion female (.09) of pharmacists practic-
ing in community chain’ pharmacies in
Louisiana.
3. Proportion female (.1441), according to the
1970 census of employed pharmacists in the
civilian labor force in markets in Louisiana served
by the defendant.29
K&B has a higher proportion female than the first
two groups, and the result of a statistical test comparing
the proportion female at K&B with the third group is not
significant. The EEOC has not questioned these
comparisons.
The EEOC statistical tests of the data relating to
K&B’s promotion of pharmacists before the passage of the
Civil Rights Act are reliable tests to raise an inference of
pattern and practice discrimination against female phar-
macists. Less reliable are the tests relating to pharmacists’
promotions after the passage of the Act. Particularly
suspect is the EEOC’s juggling of dates to eliminate from
the data in some of its tests female pharmacists who were
promoted after the effective date of the Act and before the
date of the filing of the Capaci charge, so that 0 females
was the consistent data tested.
19 The information for these two groups is from Health, Educa-
tion and Welfare, Division of Manpower Intelligence Report
“Registered Pharmacists in Louisiana 1973). This report did not provide
comparative data on male and female pharmacists in managerial
positions.
20 This group was taken by Dr. Cranny from one of the exhibits
prepared by Dr. Gastwirth in which he weighted the census data in pro-
portion to the number of stores located in a market area.
A-47
All actual promotions of pharmacists after the Civil
Rights Act, particularly those for the period 1965-73, were
relevant to the issue of discrimination in this case. Dr.
Gastwirth was not able to explain to the court the relevan-
cy of the hire date to this issue in several of his studies in
which the hire date had the effect of eliminating data on
female pharmacists who had been promoted after the Act.
The inclusion of pharmacists in hospitals and nursing
homes with the data on community pharmacies makes this
group less appropriate as a comparison group to the K&B
operation than a group limited to chain pharmacies. Further-
more, comparisons of these groups have a limited value
because the tests involve only the year 1973.
NONSTATISTICAL EVIDENCE
To enhance its statistical proof the EEOC relies on the
testimony of several females, some of whom applied for
management positions at K&B and were allegedly rejected
because of their gender, and some of whom were allegedly
discouraged from seeking management positions.
Marsha Lee Abrams applied for a manager trainee job
in Baton Rouge in September 1977.21 She was never inter-
viewed. Her education—she had worked towards her doc-
torate at Columbia University—and her extensive work ex-
perience in the publishing business clearly supports K&B's
contention that she was in fact over qualified for the manager
trainee job for which a high school education was the only
qualification and which involved a substantial amount of
manual labor. Two positions were open in Baton Rouge at the
él Although she testified that she would have considered employ-
ment in New Orleans also, there is no indication that she made this known
to any K&B personnel.
A-48
time Abrams applied. One was filled by a male, and one was
filled by a female salesperson, Madeline Hopwood, who was
promoted to the manager trainee position. Furthermore, ac-
cording to the applicant-hire data which is available in this
case and which includes the period of Abrams application,
of 11 female applicants in Baton Rouge, four were hired.
Patricia McAuley testified that she applied for a
manager trainee job in June or July 1974 and was told by
William Serda, K&B personnel director, that she was not
qualified for the management program and that it was not
then open for women. She had been hired as a drug clerk in
1971 and, after making two more applications to become a
manager trainee, she was appointed to that position in
January 1976.22 The weight of her testimony in recalling
that Serda remarked that the management program was not
open to women is lessened by her further recall that he told
her to try again, and by the fact that a female, Joyce Innerari-
ty was at that time in the program, having been promoted
from a salesperson to manager trainee in February 1974.
Viewing McAuley’s testimony from the standpoint of
her ultimate success in being accepted into the management
program, it can be interpreted as evidence that, if a female
wanted to be in management, and could convincerthe per-
sonnel director that she was qualified, being female would
not exclude her.
Carol Baughman, the head cosmetician in the Boga-
lusa, Louisiana store is an employee allegedly discouraged
from entering management. She made an application at the
insistance of her male assistant manager, Mr. Sheler, for a
£2 She was later promoted to relief manager, but personal and emo-
tional problems caused her work performance to deteriorate and she was
separated from K&B in 1978.
A-49
relief manager opening in that store in 1976. She made the
application on the last day K&B was receiving applica-
tions, and she heard the next day that a male had got the
job.
A relief manager position became available again in
August 1977. This time her manager Mr. Hopper asked her
if she intended to apply again, and in response she asked
Hopper if he thought she would make a good relief
manager.2% He told her he thought she would make a good
one and she made the application.
On the last night that applications were being taken
her assistant manager Mr. Sheler told her he thought she
had the job if she wanted it, and asked her how much did
she want the job. After some conversation she told Sheler
she was withdrawing her application. According to her, she
withdrew her application because she knew she was about
to have surgery and she did not want to inconvenience the
other managers because of it, although she did not disclose
to Sheler any information about her impending surgery.
The EEOC was not making its point for calling this
witness and the Court took over the interrogation to ask
the witness to search her mind for anything discouraging
said to her in the conversation. At this prodding she recall-
ed that Mr. Sheler had told her that, although he was the
one who had talked her into making her first application,
she was a lady and this was not the kind of job he thought
she could handle. The crucial point of whether this remark
was made before she told him to withdraw her application
or afterwards was not established by her testimony. She
3 tn her testimony she admitted to having a “sort of inferiority
complex’ and thinking she was not quite good enough.
A-50
testified that Mr. Sheler never suggested that she should
withdraw her application, that its withdrawal was wholly
voluntary, and that she believed she would have got the job
if she had not withdrawn it. However, if the remark of
Sheler was made before she told him to withdraw her ap-
plication, it could be construed only as encouraging her to
withdraw it. If his remark was made after the withdrawal,
it could be construed as an effort to make her comfortable
with her decision and to indicate that perhaps he had been
wrong to encourage her to apply.
Linda McBride, a former employee of K&B from
1973 to 1976, serving first as cashier and then as drug
clerk, and a former roommate of Patricia McAuley, felt
that she had been discouraged from applying for a manage
ment position because her managers would not give her in-
formation as to what the qualifications were for manager.
and because her roommate Patricia McAuley had so much
trouble entering management. She testified that she
wanted to know if a high school diploma, or a college degree
or managerial experience was required. When she inquired
as to these possible qualifications of one relief manager,
Robert Williams, he did not tell her the qualifications, but
told her instead that she would not be able to unload stock
trucks, catch shoplifters and do other heavy work. She
recalled talking to her manager Tom Gereighty about the
requirements, but she could not recall what he said to her.
She admitted that she never asked her roommate what the
qualifications were, and that she did not apply for a
manager trainee job because she did not want to go
through the “‘hassle’’ of proving herself to the company.
The testimony of Grace Taylor Miller, a pharmacist
who commenced her employment with K&B in 1931 as a
cashier, is relied upon by the EEOC to show that she
A-51
performed the duties of managers but was never officially
promoted. The LEOC does not state the basis for its con-
tention as to lack of official promotion. Miller’s employ-
ment record which is not disputed, shows that she was pro-
moted from pharmacist to assistant manager on November
11, 1955 and that she was promoted from pharmacist to
chief pharmacists on July 1, 1968.24 Miller did not clarify
what she meant when she testified merely that she never
received the official title.
The further contention is made by the EEOC that
Miller was never treated as a manager because, whenever
she attempted to discipline or correct the behavior of a
male subordinate, she was not supported by her male
superiors. Any of her testimony that supports this conten-
tion is not identified or discussed. She testified at length
about an incident in 1978 near the end of her employment
with K&B when she considered that a subordinate phar-
macist was infringing upon her authority when he took
over the ordering for the pharmacy department with an ex-
planation that the store supervisor had so instructed him.
By her own testimony she did not attempt to discipline
him, but instead waited to discuss the matter with the
store supervisor.
When her supervisor told her that the subordinate
was in error as to the instruction, reminded her that she
was supposed to be the chief pharmacist and suggested
that under the circumstances it would be better for her to
get out, she construed the suggestion as termination and
she did not return to work. All efforts by the store opera-
tions manager, Walter Feltman, to convince her that she
“4 She was demoted from assistant manager to relief manager in
1961, and further demoted from relief manager to pharmacist in 1963.
A-52
had misconstrued the conversation and to get her to stay
on were unsuccessful.
On an earlier occasion, when she considered that one
of her subordinates was out of line, she left the store and
went home. K&B transferred the subordinate to another
store.
Her testimony as a whole does not show that she was
not treated as a manager by K&B.
The charge that she did not receive the bonuses that
other K&B managers were paid is not substantiated by any
evidence other than her testimony that she did not receive
bonuses. Chief pharmacists have never been included in the
bonus program, and there is no evidence to show the policy
as to bonuses when she was assistant manager in the
1950's.
K&B undertook to show affirmatively by nonstatis-
tical evidence that it has never either before or after the
Civil Rights Act, discriminatec against females on the
basis of their gender. Sidney J. Besthoff, III, president of
K&B, joined the organization in 1949 when he finished col-
lege. His grandfather was one of the founders of the
original predecessor organization and his father was an
owner of this closely held company. He worked at a number
of positions in the company including assistant manager in
1949 or 1950, personnel manager in the early 1950's, and
later on store operations manager before he became presi-
dent in 1965.
Besthoff regards himself as having been a leader in
efforts to end racial discrimination. In the early 1960's
K&B was the first local chain to integrate voluntarily its
A-53
food service facilities. As a result of this action Besthoff, as
a representative of the chain drug industry, was invited to
attend a conference at the White House while John F. Ken-
nedy was President on the problem of racial discrimination
in transportation and public accommodations. He sup-
ported the civil rights legislation which was later adopted.
Although the “‘early thrust’’ of K&B under Title VII
of the Civil Rights Act was a program directed to end racial
discrimination in employment, Besthoff testified that the
company had no real need for a recruitment program for
females in management because females had been in
management for many years before the Civil Rights Act,
and the need for recruitment of females in management
arose only after the expansion program for the company
began in the early 1970's.
From 1947 through May 1965 nine females were pro-
moted to assistant manager.2° Of these Genevieve Ron-
quette was further promoted to personne! director in 1950,
then made personnel manager in 1959 and retired in 1969;
Lillian Hennessey was further promoted to manager in
1954 and retired in 1973; Blanche Callihan was further pro-
moted to manager, but had an accident which prevented
her from assuming the promotion; and Grace Miller's pro-
gression has been set out at length heretofore. What is
notable about this documentation is that it reveals an alter-
native route to the pharmacy route to management for
females before July 1965. Only one pharmacist, Grace
Miller, is among the nine females promoted to assistant
manager, and the others were all salespersons.
“° The promotions occurred in the following sequence: 1947-1;
1953-2; 1954-2; 1955-1; 1961-1; 1965-2.
A-54
These promotions were made at a time in the com-
pany’s history when store-wide management positions
became available usually only on retirement or death of a
manager. The operation was small in comparison to the ex-
panded operation after 1970 when the company grew from
24 stores to 82 stores at the time of trial, and before the ex-
pansion period the executive level personnel evaluated the
employees from personal knowledge of their performance
and their capabilities. The testimony of Genevieve Ron-
quette, Lillian Hennessey, Blanche Callihan and Inez
Nungesser is to the effect that they had not been treated
differently from males by K&B in promotion to
management.
Inez Nungesser commenced her employment in 1927
as a salesperson in the drug department of a high volume
store on Canal Street in New Orleans. In 1953 the male
assistant manager at her store died. She asked for the job
and got it without experiencing any difficulty. She never
aspired to become manager, even though the male manager
retired before her retirement in 1972, and her testimony
left no doubt that her entire employment at K&B had been
a pleasurable experience.
When the male manager left the store where Lillian
Hennessey was assistant manager in 1954, she became the
manager and remained the manager until her retirement in
1973.
Blanche Callihan was approached on two occasions
to become an assistant manager, and refused both times,
before she finally accepted in 1965 a third offer to her for
this position. She never applied for promotion to manage-
ment and, when she finally consented to take the assistant
manager position, her initial acceptance was only on a trial
A-55
basis. She had the opinion that more women were not in
management because they did not want the responsibility,
and the fact that she was approached to be assistant
manager rather than applying for a management position
convinced her that women were not treated differently
from men in promotion to management.
Genevieve Ronquette replaced a male when she was
further promoted to personnel director in 1950 and she re-
mained in management until her retirement in 1969.
Upon the effective date of the Civil Rights Act seven
of the nine females still held management positions, but by
the time Walter Feltman was hired as store operations
manager in October 1966 two of them had retired and one
had died leaving only four females in management at that
time—Ronquette, Hennessey, Nungesser and Callihan.
From that time until the Capaci charge was filed in 1973
five females were promoted to management, but none to
store-wide positions. Three female salespersons were pro-
moted to cosmetic supervisor, and two female pharmacists
were promoted to chief pharmacist. There is also some
evidence of isolated unsuccessful efforts about 1968 to
recruit female employees into the manager trainee pro-
gram, but no females entered that program until 1974.
William Serda became personnel director in March
1971, and at that time there were still only four females in
management—one manager, one assistant manager, one
chief pharmacist, one cosmetics supervisor. He realized
that this situation made the company vulnerable to
charges of violation of the federal law against discrimi-
nation, and for that reason and the additional reason
that the company had an urgent need for manager trainees
in the expansion program, which was within his area of
A-56
responsibility, he made the recommendation to his superior
Walter Feltman in 1971 or 1972 that females be encourag-
ed to apply for managerial positions. The recommendation
for affirmative action was taken under advisement, but
was ultimately approved.
The promotion record does not indicate that the im-
plementation of Serda’s recommendation was immediate,
and the written affirmative action policy was not published
until 1976. Besthoff agreed that the Capaci charge was the
impetus for the implementation of Serda’s affirmative ac-
tion recommendation. Thereafter the promotion of females
into management has continuously accelerated. Several of
those who were promoted after Serda became personnel
director made clear in their testimony that from their ex-
perience at K&B their impression was that gender was not
a factor in the promotion process at K&B.
The Advertising Evidence
To further bolster its statistical evidence the EEOC
relies on K&B’s manner of advertising for applicants for
job vacancies during the period 1965-1971 as reflecting its
policy of excluding females from managerial positions, and
more particularly its policy of limiting the manager trainee
positions to males. The EEOC researched the ‘Help
Wanted” ads in the Sunday edition of The Times-Picayune,
a New Orleans, Louisiana newspaper, from July 1965-July
1974, in the Morning Advocate, a Baton Rouge, Louisiana
newspaper, at various times from August 1968-November
1974, in the Houma, Louisiana newspaper from October
1968-June 1975, and in the Lake Charles, Louisiana
newspaper in December 1971 and January 1972. From this
research it introduced 36 ads placed by K&B in the Times-
Picayune from August 15, 1965-January 10, 1971 and six
A-57
ads placed in the Morning Advocate in August and
September 1968. To buttress its policy manifestation argu-
ment it contends that these ads violated section 704(b) of
the Civil Rights Act of 1964, as amended, 42 U.S.C. §
2000e-3(b) by indicating a preference for males in the
manager trainee and certain other ads, and by indicating a
preference for females in the cashier, counter personnel and
salesperson ads.26
The Times-Picayune had columns designated ‘‘Help
Wanted—Male’’, ‘‘Help-Wanted—Female”’, and ‘Help
Wanted— Male or Female’”’ which it did not discontinue un-
til 1972. The manager trainee ads appeared in the male col-
umn and the cashier, counter girl, saleslady, sales clerk ads
appeared in the female column.??
#6 It shall be an unlawful employment practice of an employer, ...,
to print or publish or cause to be printed or published any notice or
advertisement relating to employment by such employer ... indicating
any preference, limitation, specification, or discrimination, based on
race, color, religion, sex, or national origin, except that such a notice or
advertisement may indicate a preference, limitation, specification, or
discrimination based on religion, sex, or national origin when religion,
sex, or national origin is a bona fide occupational qualification for
employment.
27 4 sample of ads appearing in each column on July 11, 1965 read
as follows:
MANAGER TRAINEE
20 to 35 with high school education or equivalent to train for store
management in expanding chain. Local references.
$82.50 week
Rapid Advancement. Usual large company benefits include retirement
plan.
Mr. Olsen
KATZ & BESTHOFF
900 Camp St.
A-58
The Morning Advocate had columns designated
‘Male Help Wanted"’, ‘Female Help Wanted”’ and ‘Help
Wanted’’. The manager trainee ads appeared in the male
column and the pharmacist ads appeared in the neutral
“Help Wanted”’ column.
Genevieve Ronquette testified that she composed
the ads for the Times-Picayune until her retirement in
1969, gave the order for the ads by telephone and
designated the column in which they would appear. She
had no instructions as to the column in which the ads
should be placed, and she had a very simple method for
making her placement decision,—she designated the col-
umn according to her experience as to whether males or
females could be expected to apply. Females, not males, ap-
plied for cashier, counter and sales jobs; males, not females,
applied for management jobs. In other words, the ads were
placed to attract applicants and she placed them where she
considered they would get the best results.
Ronquette’s method of column designation was ex-
pressly approved by the EEOC in a guideline issued on
April 22, 1966 to employers in the area of ‘Job Oppor-
tunities Advertising’, and which remained in effect
through January 24, 1969;
Advertisers covered by the Civil Rights Act of
(Footnote 27 continued)
COUNTER GIRL
Soda Department
Permanent Positions
Open in your neighborhood
$48 Week Plus Tips
KATZ & BESTHOFF
900 Camp St.
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1964 may place advertisements for jobs open to
both sexes in columns classified by the publishers
under ‘‘male’’ or ‘‘female"’ headings to indicate
that some occupations are considered more at-
tractive to persons of one sex than the other. In
such cases, the Commission will consider only the
advertising of the covered employer and not the
headings used by publishers.
All of the ads she placed in the Times-Picayune for the
manager trainee position after July 1, 1965 and before her
retirement were neutral in their wording. No sex preference
was indicated.2
All job applicants were interviewed first by
Genevieve Ronquette. She held only a preliminary inter-
view with the applicants for‘manager jobs and sent them
to the personnel director Mr. Fred Olsen for further inter-
view. She had no instructions that hires for any one job
would be limited to those of a particular sex. In her 20
years in personnel management at K&B she testified that
she never knew of anything that she did to discriminate
against women.
The ad for personnel director that appeared in the
Times-Picayune on January 10, 1971 was not neutral in its
wording.29 It was composed and placed with the news-
“8 An ad with neutral wording placed in a female column was
found not to be a violation by the EEOC itself in its agency decision on
May 18, 1969 in case number 68-10-479E.
29 PERSONNEL DIRECTOR
Charge of complete Personnel Department and program
K&B
Exceptional opportunity to join leading local group of retail stores now
expanding. We are seeking a vital aggressive man who is ready to realize
his potential.
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paper by Walter Feltman, and he readily admitted that the
wording indicating a preference for a male was wrong, and
it was his mistake. He would have hired a qualified female,
according to his testimony. .
K&B admits that its series ofjads in connection with
the opening of three new stores in Baton Rouge in the sum-
mer of 1968 contain language indicating a preference for
“young men” as manager trainees. To lessen the impact of
these ads as indicating any company policy, it introduced
a copy of an ad appearing in the same Baton Rouge news-
paper a few months later on January 26, 1969 in a neutral
advertising column with neutral wording, and similar ads
which appeared on February 8, 1970, June 1, 1970, March
21, 1971 and October 29, 1973. It also directs the court’s
attention to the testimony of John Irwin, an assistant
manager of a store in New Orleans in 1968, relating to his
efforts in that year to encourage a female employee to app-
ly for a manager trainee position.
The evidence as a whole on the advertising issue
causes the K&B ads selected by the EEOC to be less than
persuasive as reflecting a policy of excluding females from
the manager trainee program, and limiting the manager
trainee positions to males. The manager trainee ads were
all neutral in language except for the one series of three
identical ads which appeared in the Morning Advocate in
(Footnote 29 continued)
Salary open, unexcelled company benefits.
Requirement: college graduate; age, 30 or above; experienced in field.
Send complete resume in confidence to:
Mr. W. Feltman, in care of
KATZ AND BESTHOFF
900 Camp Street
New Orleans, La. 70130
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August and September 1968,30 Although the nonneutral
language of some of the other ads was not acceptable under
the EEOC guideline in effect at the time, the majority of all
the ads were composed by Genevieve Ronquette, who im-
pressed the court as a truthful witness, and her testimony
is clear that her practices in composing and placing ads
were not to carry out any policy of discrimination against
women, but to achieve the best results from the ads in the
light of her experience as to the gender which would be
more interested in the job vacancy being advertised.
The Record Keeping of K&B
Finally the EEOC urges that the impossible hurdle
to its production of evidence in this case created by K&B’s
violation of the record keeping provisions of the Civil
Rights Act of 1964 in failing to preserve the job application
records for the manager trainee position should be removed
by the court’s drawing an inference of discrimination
against the wrongdoer K&B. By this argument the EEOC
is in effect urging that any weakness in its evidence as to
discrimination in the employment of manager trainees
should be overcome by the court’s drawing an inference of
discrimination from the alleged record keeping violation.
The basis for the inference urged is the equitable
principle “‘omnia praesuntur contra spoliatorem’’—all
things are presumed against the wrongdoer—which has
been applied when record keeping violations occurred in
cases under the Fair Labor Standards Act. The EEOC con-
tends that this equitable principle should be applied in this
3 Comprehensive guidelines indicating that placement of ads in
columns headed by the designation ‘male’ or ‘female would be con-
sidered an expression of preference based on sex was adopted by the
EEOC on April 5, 1972.
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Title VII case, citing Hodgson v. Corning Glass Works,
330 F.Supp. 46 (D.C.N.Y. 1971); Mitchell v. Williams, 420
F.2d 67 (8th Cir. 1969); Schultz v. Wheaton Glass Co., 421
F.2d 259 (3rd Cir. 1970); Anderson v. Mt. Clemens Pottery
Co., 328 U.S. 680, 66 S.Ct. 1187, 90 L.Ed.2d 1515 (1946) to
draw the inference urged.
Under Title VII, Section 709, 42 U.S.C. § 2003-8{c),
employers are required to keep certain employment
records:
Every employer ... shall (1) make and keep such
records relevant to the determinations of whether
unlawful employment practices have been or are
being committed, (2) preserve such records for
such periods [period of investigation of an
} employment discrimination charge] ...
The appropriate regulation promulgated by the
EEOC is published in 29 C.F.R. 1602.14:
(a) Any personnel or employment record made or
kept by an employer (including but not necessari-
ly limited to application forms submitted by ap-
plicants and other records having to do with hir-
ing, promotion, demotion, transfer, lay-off or ter-
mination, rgges of pay or other terms of compen-
sation and selection for training or appren-
ticeship) shall be preserved by the employer for a
period of 6 months from the date of the making of
the record or the personnel action involved
whichever occurs later. *** Where a charge of
discrimination has been filed, or an action
brought by the Commission or the Attorney
General, against an employer under Title VII, the
respondent employer shall preserve all personnel
records relevant to the charge or action until final
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disposition of the charge or action. The term “‘per-
sonal records relevant to the charge’’, for exam-
ple, would include personnel or employment
records relating to the aggrieved person and to all
other employees holding positions similar to that
held or sought by the aggrieved person and ap-
plication forms or test papers completed by an
unsuccessful applicant and by all other can-
didates for the same position as that for which the
aggrieved person applied and was rejected.
The EEOC'’s argument as to which record keeping re-
quirements were violated and how they were violated is
very general and lacking in specificity. K&B denies that it
violated the record keeping requirements and directs its
argument to what appears to be the only possible require-
ment which could be urged against it—the preservation of
all personnel records relevant to a charge of discrimination
until final disposition of the charge.
The allegations in the Capaci original charge filed
with the EEOC in January 1973 and in her subsequent
charges related to discrimination for failure to promote on
the basis of sex, disparate terms and conditions of employ-
ment and reprisal and retaliation on the basis of sex. The
complaint of Capaci filed in this court on October 8, 1974,
as elaborated in her memorandum in support of the class
action, was directed to the promotion practices of K&B.
No issue regarding discrimination by K&B in initial
employment on the basis of gender was raised in the charge
or in this case before the EEOC moved for permissive in-
tervention on January 4, 1977. That motion and the sup-
porting brief contained language broader than the original
charge and the complaint. For example, in paragraph four
of the motion, it is alleged that ‘The Commission's
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participation ... in this proceeding will promote the public
policy of eliminating and preventing discriminatory
employment practices based on race,’’ and at page two of
its memorandum “... the Commission will be able to aid the
Court ... in formulating a remedy which will eliminate the
discriminatory employment practices and provide ade-
quate relief for the victims of unlawful discrimination.”
K&B preserved, and produced upon the request of
the EEOC, applications for the manager trainee position
dated from July 1976 for unsuccessful applicants, and the
applications of all successful applicants which were con-
tained in their personnel files. The EEOC has been aware
since December 1978, when its motion to compel answers
to certain interrogatories was heard, of K&B’s position
that it was not required under the Act to preserve any
earlier applications for employment because the treatment
of applicants for employment and their applications were
not relevant to this charge which focused on K&B's promo-
tion practices. Yet it makes no response to K&B’s position
and makes no argument to show the relevance of employ-
ment applications to the initial charge and the complaint in
this case. Under the circumstances of the posture of this
case before the intervention of the EEOC, K&B cannot be
regarded as having violated the record keeping re
quirements of the Act.
CONCLUSION
I conclude that the EEOC has not proved by a
preponderance of the evidence its claim that K&B had a
policy of excluding females from management positions.
Tne EEOC has presented a less than impressive
statistical case. The relevance of the 1970 Census data used
A-65
by Dr. Gastwirth has been so weakened by the challenge of
K&B that the reliability of his statistical studies of the
manager trainee position is in serious doubt. As the defense
unfolded, it became obvious that the EEOC needed appli-
cant flow data to make a strong statistical case as to the
manager trainee job. Dr. Gastwirth probably made the best
use of the data which was available, but he was not able ef-
fectively to sustain its relevance to the job under study.
The pharmacy statistical case is weak also, mainly
because Dr. Gastwirth structured some of his studies of the
period 1965-1973 to eliminate inclusion of the female phar-
macists who were promoted during that time. He was not
able to explain how those studies were meaningful for the
issue before the court.
The nonstatistical evidence of the EEOC adds little
weight to its statistical case. The nonstatistical evidence
produced by K&B shows that for many years before the
passage of the Civil Rights Act, K&B had no policy or prac-
tice of exclusion of females from management positions.
The males and females got to management by different
routes, however. Male pharmacists became managers;
female salespersons became managers.
Shortly after the Civil Rights Act became effective,
the expansion program of K&B produced changes in the
management promotion procedure for both maies and
females. The planning to increase the volume of retail mer-
chandise over the volume of pharmacy business caused the
practice of promoting pharmacists into store-wide manage-
ment positions to be reduced. The route to these positions
was through a manager trainee program for nonphar-
macists. The pharmacy needed a pharmacist as manager,
however, and the position of chief pharmacist was created
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in 1967 to which two females were promoted shortly
thereafter.
The practice of promoting female salespersons
directly to assistant manager ceased at about the time the
Civil Rights Act became effective, and females were slow to
enter the manager trainee program. As a result no female
was promoted to a store-wide management position for
almost nine years. The females who were promoted in that
nine-year period were promoted to the positions of employ-
ment manager, cosmetic supervisor and chief pharmacist.
The inferences sought by the illegal advertising
allegations and the record keeping violation allegations
cannot be made to bolster the case of the EEOC.
THE ANDRA CAPACI CASE
Andra Capaci claims that she was discriminated
against by K&B on the basis of her sex in the following
ways:
1. She was denied promotion to a management
position;
2. She was subjected to sexual harassment;
3. She was
(a) harassed
(b) terminated
in retaliation for the filing of her sex discrimina-
tion charges.
The Promotion Claim
Capaci has established a prima facie case of
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discrimination in K&B'’s failure to promote her to a
management position under McDonnell Douglas Corpora-
tion v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668
(1973). She has shown (1) that she is a member of a pro-
tected class; (2) that she applied for, and as a competent
pharmacist, was qualified for promotion to a management
job that K&B was seeking to fill; (3) that she was not pro-
moted; and (4) that the management position was subse-
— filled by a person not a member of the protected
class.
Pharmacists were promoted into management posi-
tions at K&B, but no formal or written notice of available
management positions was given to the employees, and no
formal or written application procedure was provided for
before the time Capaci filed her charge. When a manage-
ment position needed to be filled, the executives looked
around for the best possible prospect among the personnel,
and often called that person to offer the job. Capaci asked
Feltman to consider her for promotion to a chief phar-
macist as early as 1969 when a new K&B store was opening
at the time. Paul Laneuse, a male pharmacist with five
years less experience than Capaci, was promoted to the
position. Her ambition to be promoted into management
was known by Sidney Besthoff, III, William Serda and her
supervisor for several years, James LeBlanc, but males
31 In McDonnell Douglas, a racial discrimination case, the
Supreme Court indicated that a plaintiff could establish a prima facie
case under Title VII by showing: (i) that he belongs to a racial minority;
(ii) that he applied and was qualified for a job for which the employer was
seeking applicants; (iii) that, despite his qualifications, he was rejected;
and (iv) that, after his rejection, the position remained open and the
employer continued to seek applicants from persons of complainant's
qualifications. At the same time the Court recognized that the formula
would have to be modified to fit varying fact situations presented by
other Title VII cases.
A-68
continued to be promoted into management and she was
passed over.
The burden shifts to the defendant K&B under
McDonnell Douglas Corporation v. Green, supra, as
clarified in Texas Department of Community Affairs v.
Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207
(1981), to rebut the presumption of discrimination raised
by plaintiff Capaci’s prima facie case by producing
evidence that Capaci was rejected for promotion, or some-
one else was preferred, for a legitimate, nondiscriminatory
reason.22 Should K&B carry this burden, Capaci then has
the opportunity to prove by a preponderance of the
evidence that the legitimate reason offered by K&B was
not its true reason, but was a pretext for discrimination.
Capaci has the ultimate burden of persuading the court
that she was the victim of intentional discrimination.
K&B has undertaken the heavy burden of producing
evidence that Capaci did not meet subjective standards for
promotion to a management position. It admits that she
could fill prescriptions accurately, and that she was
knowledgeable and conscientious about detecting forged
prescriptions. Its contention is based on her alleged lack of
concentration and lack of organization in her duties as a
pharmacist, resulting from specific work habits which in-
terfered with the efficient processing of prescriptions and
the smooth operation of the prescription department.
Her superiors specific complaints against her for the
92 The view of the Fifth Circuit in Burdine that a defendant bas
the burden of proving by a preponderance of the evidence the existence
of a nondiscriminatory reason was rejected by the Supreme Court, and
that burden is “to articulate some legitimate, nondiscriminatory
reason”’ for its action.
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10-year period before she was terminated—1965 to
1975—were tardiness, excessive time on the telephone, too
frequent and prolonged absences from the prescription
department for talks with customers, visits to the cosmetic
department to assist customers,?" attention to personal
matters and application of makeup while on duty.
Andrew J. Russo, the male pharmacist manager at
Store No. 25 where Capaci served for five years from 1965
to 1970, aptly termed these habits separately as ‘‘small
faults’, but they became serious to him because the time
consumed by them would cause an accumulation of
prescriptions and create the frustrating situation of his
having to assist to get rid of the backlog.
He reprimanded and counseled her repeatedly about
her tardiness, which was aggravated by her having to put
on makeup before she commenced work, and about the ex-
cessive time she spent on the phone with personal calls, and
by allowing business calls to last too long. She would heed
his reprimands and counseling about her responsibility as
a professional and would improve for awhile, but then go
back to her same “‘small faults.”’
James LeBlanc, the supervisor for Store No. 25,34
was aware of the problems Russo was having with Capaci.
In his opinion her frequent tardiness was the biggest
os Capaci apparently enjoyed assisting in the cosmetic depart-
ment and would do so voluntarily, absenting herself from the pharmacy
department. She revealed her interest to Feltman when the position of
cosmetic supervisor was created—in 1967 as he recalled—by requesting
that job. He responded by telling her that the low salary in comparison
to what she was making as a pharmacist made it unattractive for her.
Capaci denies that she ever made such a request of Feltman.
34 & store supervisor is responsible for the efficient management
and smooth operation of a group of stores.
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problem, and her receiving personal phone calls was a
minor thing. His concern was about the length of time she
took for the calls—business or personal. In his words she
“did not' have the knack of speaking to a customer and
helping a customer and then moving on to something else
or gracefully hanging up and getting to the job at hand.”
When his warnings about her tardiness did not correct the
problem, he made an appointment in 1968 for him and
Capaci to meet with Feltman for the purpose of ter-
minating her.
After he gave account to Feltman of his complaints,
Capaci started crying and could not regain her composure
for some time. The meeting with Feltman was terminated
by LeBlanc taking the still crying Capaci into his office
where, after finally regaining her composure, she promised
to discontinue her habits which were the source of his com-
plaints. Feltman decided that she should have another
chance, much to LeBlanc’s dismay, and she was allowed to
remain at Store No. 25. She improved for a time and then
the pattern continued—slide back into old habits, repri-
mand, improvement, slide back into old habits, etc.
Russo finally gave up in his efforts to improve her
performance by counseling—‘“‘straighten her out’, in his
terms—and in 1970 he requested that she be transferred
from his store. Her sense of responsibility was too poor in
his opinion to warrant promotion to chief pharmacist.
Capaci was transferred to Store No. 33, a larger store
with a busier prescription department than Store No. 25.
Her tardiness was a problem to George Neyrey the male
pharmacist manager only when she was the only phar-
macist on a shift, but the excessive time she spent on the
telephone was a continuing problem. She was not able to
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keep up with the prescriptions, and, lacking the patience
Andrew Russo had exhibited for five years, Neyrey had her
transferred out of his store in six months.
She was transferred to Store No. 13, where a male
nonpharmacist, Donald Mortenson, was the manager and
the pharmacy department was managed by a chief phar-
macist Paul Laneuse. It was a new store that had not built
up a large prescription business. Nevertheless, her ‘‘small
faults’’ continued here and created the same problem.
Mortenson repeatedly counseled her about her tardiness,
her abuse of the telephone, and her absences from the
prescription department to no avail. He found her to be an
employee not amenable to his management.
Paul Laneuse had a good relationship with her and he
dated her on several occasions. His counseling of her about
her repeated tardiness, which created a problem when she
was the only pharmacist on duty, had no lasting effect on
her. He and Mortenson made their complaints about her
work known to James LeBlanc. With some reluctance,
stemming from the unexpected failure of Feltman to follow
his recommendation on the previous occasion, LeBlanc
submitted the complaints again to Feltman for review and
a meeting with Capaci was set up.
By this time Feltman had come around to the view
that Capaci was never going to keep her promises to
change her habits and that they posed a serious enough
problem to terminate her. A pharmacist’s termination had
to be approved by Besthoff, III, however, and the causes
for termination were gross dishonesty and irregular or un-
ethical handling of drugs. When the complaints were pre-
sented to Besthoff by Feltman, his decision was to transfer
her and give her another chance. She was transferred
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after 13 months at Store No. 13 to Store No. 20.
Capaci lasted only 5 months at Store No. 20. She fail-
ed to improve her work habits, and the chief pharmacist
Robert Rugan, on an occasion when he was acting
manager, ‘“‘blew up’’ when she left the pharmacy depart-
ment unattended too long for a trip to the dressing room,
grabbed her purse from her and attempted to fire her,
although he lacked that authority. James LeBlanc went to
the store when called by Capaci who complained that
Rugan had assaulted and molested her.
LeBlanc determined that Rugan had a justifiable
complaint and tried once more to have her terminated in a
meeting with Feltman. Feltman was in agreement with
LeBlanc, but Besthoff again vetoed the termination,
deciding once more that she should be transferred again
and given another chance. She was transferred to Store No.
10, which was under the jurisdiction of store supervisor
Sydney Levet. LeBlanc had made it known that he would
not have her in another store that he supervised.
Thomas Gereighty, the male nonpharmacist man-
ager at Store No. 10 described his experience with her as
‘terrible’. The demands were greatest on a pharmacist on
the morning shift and Capaci’s performance was so poor
that he scheduled her for the less demanding middle and
evening shifts. She performed poorly even on these shifts,
and her habit of tardiness annoyed Gereighty so much that
he warned her he would not tolerate it and considered it a
ground for dismissal. In July 1972, some two months after
she was assigned to Store No. 10, he sent a disciplinary
report based on her tardiness to the office. She refused to
sign it.
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Shortly thereafter she made known to William Serda,
the Personnel Manager, that she wanted a transfer from
Store No. 10 because of her schedule and other problems,
and that she wanted to talk to Besthoff. She also sent a
telegram directly to Besthoff, III, requesting a meeting
with him and his father.
Besthoff met with her on August 5, 1972 and she
asked to be promoted to store supervisor. He considered
with her the possibility of promotion to chief pharmacist,
gave no consideration to the supervisor request, but gave
her no promotion. Instead she was transferred to Store No.
26 on September 15, 1972.
Ira Levy, the male pharmacist manager at Store No.
26, worked along with her in the pharmacy department,
and her poor work habits continued at that store, but he
asked for her to be transferred after three months because
her incompatibility with other personnel was causing
dissension in the store. This prompted another meeting at-
tended by Capaci, Besthoff, Feltman and Levet on January
5, 1973. By this time Besthoff was aware that Feltman,
Serda, LeBlanc and Levet were uniform in their opinion
that her employment should be terminated.2° He had ex-
pressed himself to Feltman as wanting to do everything
possible to reduce turnover in the company, especially in
the professional staff and management. He was ever
hopeful that the problems of any employee could be over-
come by talking to the individual. Once more he refused to
go along with the recommendation of termination.
Capaci was transferred to Store No. 24 and Feltman
°° Serda evaluated her in his deposition as unstable and im-
mature. Capaci realized by this time that Feltman and Levet wanted her
terminated.
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told her that this was her last transfer—if she did not make
it there, she would be terminated. She filed her first charge
of discrimination on January 11, 1973 and commenced her
assignment at Store No. 24 on January 15, 1973.
K&B’s evidence has demonstrated that, despite
Capaci’s ability to fill prescriptions accurately, she was a poor
employee, and was such a problem in every store that she
worked after 1965 that the managers requested that she be
transferred. In rebuttal Capaci contends that K&B’s reasons
are pretextual because the male pharmacists and managers
were also tardy and used the telephone for personal calls,
and they were nevertheless promoted.
Capaci’s faults were “‘little faults’’ that the males at
K&B were admittedly guilty of also, but she overdid them
to the point that they were magnified into a problem in the
smooth operation of a store, and she compounded the
magnification by being unwilling or unable to overcome
them. Her poor performance record was sufficient to prevent
her from being qualified for a management position. An
employer cannot be expected to consider such an unsatisfac-
tory employee as qualified for promotion.
Anthony Russo impressed the court with his sinceri-
ty in having tried to help Capaci overcome her deficits as
an employee, and he gave up after five years with the realiza-
tion that he had accomplished nothing. She never changed
%® She contends also that her gender was the real reason for her
not being promoted because Feltman told her in 1969 when she asked
him for promotion to chief pharmacist that K&B did not promote women
into management. It is difficult to understand how Feltman could have
made that remark to her in light of the fact that K&B had promoted two
females to the chief pharmacist position a short time previously, and how
she would have taken him seriously if he had made such a remark.
A-75
her poor work habits and no manager thereafter had pa-
tience with her shortcomings. All of the managers were
believable in their frustration at not being able to manager
her.
K&B, therefore, has articulated a legitimate, non-
discriminatory reason for failing to promote Capaci. Capaci
has failed to show that its reason was pretextual, and thus
has failed to discharge her burden of proof to show that
K&B discriminated against her on the basis of her gender
in failing to promote her to a management position.
The Sexual Harassment Claim
Capaci testified to several unsupported allegations of
encounters with sexual overtones with male employees
which were never brought to the attention of their
superiors in management. She charges also that Donald
Mortenson, manager of Store No. 13, put his hands on her
breasts on an occasion when they were near the time clock
at closing time. She did not report the incident when it oc-
curred, but reported it later on to LeBlanc the store
supervisor.
LeBlanc confronted Mortenson with her accusation,
and Mortenson denied that the incident described had oc-
curred. His version to LeBlanc was that she was standing
in front of the time clock reading her card and he reached
past her to punch the clock, but he did not touch her.
LeBlanc did not believe that Capaci was lying, but he knew
nothing in the past of Mortenson that would cause him to
believe that Mortenson would engage in such unacceptable
conduct with an employee. He never could be sure of the
truth of the matter, but he concluded that something did
happen— Mortenson perhaps did touch her—but he could
A-76
not conclude it to be as serious a touching as represented
by Capaci.
He spoke seriously to Mortenson about the matter,
telling him that the company would not tolerate such con-
duct, and indicating to him strongly that such conduct
would place his job in jeopardy. Capaci was not satisfied
that he did not accept her version completely and fire
Mortenson, or have him reprimanded from the executive
office.
Capaci alleges that K&B was aware of other in-
cidents of management employees sexually molesting
female employees. Louise Orgeron testified that at some
time she was molested by a relief manager Bobby Graham.
She did not report the incident, but Larry Farmer testified
that he reported it to William Serda. Feltman was never
notified of this incident, but when Graham was reported in
another incident for making sexually suggestive remarks,
Feltman talked him into resigning. Feltman fired another
manager in Baton Rouge for such behavior.
Thomas Gereighty admitted on cross-examination
that he was reported to Feltman for having grabbed a
female employee, but there is no evidence that the report
was not investigated. The female involved did not testify.
Capaci has not shown that K&B failed to investigate
her complaint of improper sexual advances or that it took
inappropriate action. Her evidence is wholly inadequate to
show that K&B had a policy or condition of employment
permitting or condoning untoward sexual behavior against
female employees. The sexual harassment claim must
therefore be denied.
A-77
The Harassment and Retaliation Claims
Capaci calims that after filing charges with the
EEOC, she was harassed by (1) the intentional building of
her personnel file; (2) acts of her supervisors resulting from
their being encouraged to harass her; (3) denial of a routine
wage increase that was granted to most employees; (4)
discharge from her employment.
(1) The Building of the Personnel File
The evidence shows that Capaci’s personnel file con-
tains more documentation of disciplinary matters after
1970 than before that time for two reasons. Before 1970
and the expansion of the K&B operation disciplinary mat-
ters were handled person-to-person with no documentation.
Incident reports were made of matters mostly involving
customers which might involve company liability. After
1970 disciplinary matters were documented in disciplinary
reports. By June or July 1973 Feltman had instructed the
store supervisors and the manager at Store No. 24, to
which Capaci was assigned, to document all things out of
the ordinary or unusual in Capaci’s performance. He
testified that he did this not to harass her but to correct the
error K&B had made in not having her performance
documented previous to her charge.
Feltman’s avowed purpose was to have documented
anything that occurred of importance relating to the EEOC
investigation of Capaci’s charges. The result of his instruc-
tions, however, was the building of a file which included
reports of trivial, petty, insignificant events involving
Capaci, which would never have appeared in the file of
another employee. These could serve no purpose other than
to impart to Capaci a sense of harassment. K&B attempts
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to lessen the importance of the large file built on Capaci by
pointing out Feltman’s admission that he gave the petty
matters no weight. The weight which he gave them,
however, does not lessen their impact as harassment to
Capaci.
(2) The Acts of the Supervisors
The accusations of harassing acts are directed main-
ly at James McAllister, the nonpharmacist manager of
Store No. 24, and Tim Rosenstein, the chief pharmacist at
that store. Capaci contends that she was consistently and
routinely locked out of the store so as to cause her to be
late. A manager trainee for a few months at Store No. 24,
Larry Farmer, testified that McAllister instructed him not
to unlock the door for Capaci before the store opened at
8:00 A.M. McAllister denied that he told anyone to lock her
out. Farmer did not make clear how often Capaci was lock-
ed out, and the claim that it was routine is not established.
McAlister and Rosenstein allegedly screamed at her
and embarrassed her in front of customers and other
employees. She admitted that Rosemstein’s attitude and
treatment of her could have been caused by her termination
of a dating relationship, which took place before they were
employed at Store No. 24, when Rosenstein asked her to
have an intimate relationship with him. That McAllister
made complaints to her in louder than a normal voice is
confirmed by Dan Barrere, an assistant manager at the
store. His tone could have been due to frustration, rather
than an effort to harass her. According to her, she ignored
him—would listen to what he had to complain about and
just walk away.
Capaci further complains that they regularly made
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distressing, even threatening comments to her. What she
took seriously to be threats were two incidents. On one oc-
casion when she was going up the stairs Rosenstein told
her she was going to accidentally trip, and on another
Rosenstein and McAllister were allegedly discussing ways
to kill her within her hearing.
Capaci testified that she had no cause to accuse K&B
of being responsible for trouble she had with her
automobile, but she suspected them. She testified that she
had 18 flat tires in the month after she filed this suit, her
valve stems were cut and wires in her car were pulled loose.
She could produce bills for only tow of the incidents. She
explained that she had given all of the bills to a previous
attorney, and he must have thrown all of them away except
those around the store. One of these was for a blowout
which happened at a place away from the store, and the
other was for a valve stem. She testified that some of the
trouble occurred at her apartment.
Rosenstein was aware of her tire trouble. According
to him she had bad tires and her wheels were not aligned.
Feltman was made aware of the trouble she was having
with her tires, but he did not investigate it because it was
occurring on the street. Capaci testified that she parked on
the streets around the store, and not in the K&B parking
lot.
The evidence on the harassment complaints against
Capaci’s supervisors is not sufficient to establish a pattern
for the court to infer that they resulted from Feltman’s en-
couraging K&B’s supervisory personnel to harass her.
Capaci’s/ testimony made clear that she considered any
complaint of her work a harassment, and that she
suspected that the harassment was done on orders from
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Feltman. She had no more than her suspicion, however, to
substantiate such a charge against him. Nor were the alleg-
ed acts of harassment of such an intensity that Feltman
was aware or should have been aware of them as
harassment.
The evidence as to the tire and other automobile
trouble is not sufficient to place responsibility on K&B for
it, or responsibility for investigating it.
(3) The Wage Increase
Capaci charges that the denial of a wage increase to
her in August 1973 was in retaliation for her filing the
charge with EEOC. K&B points out that this was not a
routine wage increase, but a merit increase which she was
denied on account of her unsatisfactory job performance.
Capaci characterizes the fact that nineteen other phar-
macists were passed over for this raise as a “‘coverup”’ for
K&B's retaliation. The circumstances do not show the
denial of the wage increase was an act of retaliation.
(4) The Discharge of Capaci
Capaci was discharged .or her handling of a prescrip-
tion customer in what is referred to as the Lambremont in-
cident. Capaci presents the incident and her subsequent
discharge as treatment accorded a highly regarded phar-
macist of 12 years standing—a competent, conscientious,
dedicated employee, and urges that her discharge for this
incident can be regarded only as retaliation for filing her
EEOC charge. K&B views the incident in the light of her
past problems in work performance as the “‘last straw.”’
The incident occurred on Friday evening, March 14,
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1975. Capaci ’s schedule was from 1:30 in the afternoon un-
til 10:00 p.m. Her co-pharmacist Carroll Culley, who was on
the middle shift, 10:00 a.m. to 6:30 p.m., checked out at
6:43 p.m. Capaci was the sole pharmacist on duty after that
time. JoAnn Lambremont gave the drug clerk Verna
Vicknair a prescription for her sister Libby Lambremont,
and it was stamped in at 6:36 p.m.
According to Capaci, Culley had hardly got to the
front of the store when she noticed a woman in line at the
prescription counter folding her arms, stamping her feet
and complaining to the other customers in line. She picked
up the waiting envelopes and called out names until she
reached Lambremont. She then called Lambremont to
come forward and Lambremont stepped up into the phar-
macy department.
Capaci contends that Lambremont could not have
been waiting more than seven minutes, based on the time
that Culley checked out. Lambremont testified that she
had been in the line 40 minutes—long enough for her sister
to go through a long line at the bank across the street and
come into the drug store. Libby Lambremont testified that
she was at the bank for 25 or 30 minutes and in K&B five
or ten minutes before her sister was called by Capaci.
Another customer Mrs. Langdon H. Stone, Jr., whose
prescription was stamped in at 6:31 p.m., wrote a complain-
ing letter to K&B the next day about her 50-minute wait
for her prescription, during which only one other prescrip-
tion was filled.
The truth of the matter is probably that Lambre-
mont was in line somewhat less than 40 minutes, but con-
siderably more than seven minutes before the incident.
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Capaci testified that she approached Lambremont
with an attitude of concern and helpfulness.?7 She told
Lambremont that, if she were in pain, she would give her
a pill from her prescription, and she could go the fountain
and wait. The prescription was for the drug Valium, but
Capaci denied that she had looked at the prescription to
know what it was for. Then, according to Capaci, Lambre-
mont became hysterical and screamed that she was not
Libby Lambremont, was not in pain and did not want a pill.
She demanded ‘“‘Are you telling me that I need a tran-
quilizer?’’, grabbed the prescription and complained to the
other customers and the assistant manager in charge of the
store, Nicholas Loyacano, about Capaci’s treatment of her.
JoAnn Lambremont, a medical secretary at the
Seafarer’s medical clinic for 10 years, testified that she con-
strued Capaci’s attitude as being bossy with her. Capaci
told her she was antagonizing the other customers, and
that, if she was so nervous, she would give her a pill. She
was embarrassed, furious and insulted by Capaci’s calling
her forward and speaking to her thus. She agreed that she
might have snatched the prescription out of Capaci’s hand.
No one overheard their conversation. Judging by
Lambremont’s furious reaction, Capaci did not get across
to her any attitude of concern or helpfulness. Capaci's
testimony is clear that she was irritated by Lambremont’s
antagonistic behavior in line, and, regardless of whether
she offered her a pill for pain or nervousness, she more than
likely expressed her irritation to Lambremont.
or Capaci also testified that, from the moment she saw Lambre-
mont's behavior in line, she suspected a ‘‘set up"’ as part of a plan to fire
her, but she was not able to substantiate this suspicion.
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When Lambremont complained to the assistant
manager, he apologized for the discourteous service. Her
anger continued, however, and after going home, she called
Capaci on the telephone, and told her how unethical and un-
professional it was to offer her a pill out of a prescription
that was not hers.
The assistant manager Loyacano testified that his
attention was on some suspected shoplifters before the inci-
dent, but that, while standing in the pharmacy area, he
observed Capaci talking on the telephone for a time he
estimated to be 20 minutes. Vicknair confirmed that no
prescriptions came out while Lambremont was waiting.
Lambremont testified that Capaci was talking to
somebody, or primping her hair, or looking in a mirror, but
she was not doing anything to get the prescriptions out.
Capaci recalled that she was very busy with a compound
prescription that she could not fill because she lacked one
of the ingredients, and with a welfare prescription for a
child which presented the problem of identifying the child
with the name on the prescription.
The following week Feltman investigated the inci-
dent by having JoAnn Lambremont come to his office, and
by interviewing Loyacano, Culley, Vicknair and Crispino, a
drug clerk who was on a break at the time of the incident.
As a result he determined that Capaci should be ter-
minated. He discussed the matter with counsel, put it
before Besthoff who agreed with his recommendation to
terminate her, and Capaci was discharged on March 22,
1975.
Feltman discharged Capaci for three reasons:
1. She took an inordinate amount of time getting
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prescriptions filled that evening, creating customer
dissatisfaction;
2. She invited a customer into the prescription
department against company policy; and
3. She offered medication to a waiting customer who
was not the person for whom the medication was intended.
After Culley left, the evidence is clear that Capaci
was slow in getting prescriptions out. She exercised bad
judgment in handling Lambremont in a way to offend her.
Allowing a customer into the prescription depart-
ment was against company policy designed to keep
customers away from the area where narcotics and
dangerous drugs were kept. Besthoff testified that a phar-
macist had some discretion to allow a customer into the
department under exceptional circumstances. The evidence
does not indicate that any exceptional circumstances were
present in the Lambremont incident.
Offering medication to a waiting customer was con-
sidered appropriate on occasion. Offering medication to a
person for whom it was not prescribed was a phar-
maceutical error, but the error is less grievous under the
circumstance of JoAnn Lambremont bringing her sister's
prescription to be filled. The offer was not made by Capaci
knowingly, and the real mistake was her failure to ascer-
tain that JoAnn Lambremont was waiting for her own
prescription before making such an offer.
Capaci argues that Feltman’s reasons were pretex-
tual. Feltman’s reasons were not the usual reasons that
would prompt the discharge of a pharmacist at K&B—
A-85
gross dishonesty or irregular handling of narcotics. If
Capaci had been a highly regarded employee as she
characterizes herself, the action taken against her for this
incident would undoubtedly have been less than termina-
tion. No such high regard was held for her as an employee,
however. On the contrary, Feltman, the store supervisors
LeBlanc and Levet, and Serda the personnel director were
in accord that she should be terminated before her charge
was filed. The filing of her charge had no relevance to their
evaluation of her as an employee. Capaci urges that it is
highly significant that Feltman did not ask her for her ver-
sion of the incident before deciding to discharge her.
Feltman testified that his experience with Capaci convinc-
ed him that discussions with her were futile.
Capaci was not terminated for some 26 months after
the charge. Feltman described her attitude after she filed
her charge as having placed herself in a protective cocoon.
She refused after a time to sign any disciplinary reports or
give her version of the incidents on advice of counsel. Her
problems in performance were never worked out. As her
chief pharmacist Tim Rosenstein described her, she could
be an efficient pharmacist when she wanted to be and,
when she did not want to be, there was nothing manage-
ment could do about it. The Lambremont incident was ap-
parently serious enough to Besthoff to cause him to agree
with Feltman that the problems presented by Capaci’s per-
formance were not going to be straightened out.
Under all the circumstances, Capaci has not shown
that her discharge was a retaliatory action.
CONCLUSION
I conclude that Andra Capaci has not proved by a
A-86
preponderance of the evidence her claim that she was
denied promotion to a management position on the basis of
her sex, or that she was subjected to sexual harassment, or
that she was discharged in retaliation for the filing of her
sex discrimination charges. She has proved harassment in
retaliation for the filing of the charges by K&B’s inten-
tional building of her personnel file. Her other retaliatory
harassment claims \.ere not proved.
A-87
APPENDIX “‘C”
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CIVIL ACTION
NO. 74-2743
SECTION “E”’
ANDRA A. CAPACI,
Plaintiff
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Plaintiff-Intervenor
VERSUS
KATZ AND BESTHOFF, INC.
Defendant
FINAL JUDGMENT
This Action was tried before the Court on former
dates. The Court having issued its Opinion August 9, 1976
(72 FRD 71), its Opinion October 15, 1981, and its ruling on
defendant’s Motion for Entry of Final Judgment, entered
February 3, 1982, and considering the entire record, Final
Jucgment is hereby entered accordingly as follows:
IT IS HEREBY ORDERED, ADJUDGED AND
DECREED that there be Judgment herein in favor of
defendant, K. & B., Inc., and against plaintiff, Andra A.
Capaci, dismissing Count One of the Complaint in its en-
tirety with prejudice.
A-88
IT IS FURTHER ORDERED, ADJUDGED AND
DECREED that there be Judgment herein in favor of
defendant, K. & B., Inc. and against plaintiff, Andra A.
Capaci, dismissing Count Two of the Complaint in its en-
tirety with prejudice.
IT IS FURTHER ORDERED, ADJUDGED AND
DECREED that there be judgment herein in favor of
defendant, K. & B., Inc. and against plaintiff, Andra A.
Capaci, dismissing Count Three of the Complaint in its en-
tirety with prejudice.
IT IS FURTHER ORDERED, ADJUDGED AND
DECREED that there be Judgment herein in favor of
plaintiff, Andra A. Capaci and against defendant, K. & B.,
Inc., declaring that K. & B., Inc. violated the retaliation
prohibition of 42 U.S.C, 2000e-3 by its building of plain-
tiff’s personnel file. At the conclusion of this litigation and
after all time for seeking further appellate review has ex-
pired, plaintiff's personnel file shall be destroyed. All of the
remaining claims of Count Four of the Complaint are
dismissed with prejudice.
IT IS FURTHER ORDERED, ADJUDGED AND
DECREED that there be judgment herein in favor of K. &
B., Inc. and against plaintiff, Andra A. Capaci, dismissing
Count Five of the Complaint in its entirety with prejudice.
IT IS FURTHER ORDERED, ADJUDGED AND
DECREED that there be Judgment herein in favor of K. &
B., Inc. and against plaintiff, Andra A. Capaci, dismissing
Count Six of the Complaint in its entirety with prejudice.
IT IS FURTHER ORDERED, ADJUDGED AND
DECREED that all other claims and demands of plaintiff,
A-89
including those in the prayer of her Complaint, and for
costs of this Action, be and the same are hereby dismissed
with prejudice.
IT IS FURTHER ORDERED, ADJUDGED AND
DECREED that there be judgment herein in favor of K. &
B., Inc. and against the Equal Employment Opportunity
Commission dismissing Intervenor’s Complaint in its en-
tirety with prejudice.
IT IS FURTHER ORDERED, ADJUDGED AND
DECREED that all costs of this proceeding are awarded to
defendant, K. & B., Inc. and assessed 1) against the Equal
Employment Opportunity Commission in connection with
the intervention and 2) against plaintiff, Andra A. Capaci,
in connection with the main demand.
New Orleans, Louisiana this 19th day of March,
1982.
JUDGE
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APPENDIX “D”
Andra A. CAPACI,
Plaintiff-Appellant Cross-Appellee,
v.
KATZ & BESTHOFF, INC.,
Defendant-Appellee Cross-Appellant,
Equal Employment Opportunity Commission,
Intervenor-Appellant.
No. 82-3228.
United States Court of Appeals,
Fifth Circuit.
Aug. 8, 1983.
Claimant filed employment discrimination action
alleging employing drugstore chain had discriminated
against her by refusing to promote her to managerial posi-
tion, subjecting her to disparate terms and conditions of
employment, and retaliating against her after she filed sex
discrimination charges with Equal Employment Oppor-
tunity Commission. The Equal Employment Opportunity
Commission intervened. The United States District Court
for the Eastern District of Louisiana, Fred J. Cassibry, J.,
525 F.Supp. 317, held for the defendant company on all but
minor aspect of employee’s individual disparate treatment
case, and employee and Commission appealed. The Court of
Appeals, Reavley, Circuit Judge, held that: (1) use of cen-
sus data by plaintiff's expert was not insufficiently refined |
A-91
to make tests meaningful; (2) evidence of employer's adver-
tising practices was evidence of discrimination which
should have weighed heavily in Commission’s favor; (3)
trial court erred in not finding discrimination in manager
trainee program; (4) trial court’s refusal to admit personnel
files of male employees during individual plaintiff's rebut-
tal was not abuse of discretion; (5) trial court’s finding that
employer’s reasons for employee’s treatment were not
merely pretextual was not clearly erroneous; and (6) trial
court’s finding that employer had deliberately built up
employee’s personal file with disciplinary matters after
charge was filed with purpose and effect of imparting to
employee sense of harassment was not clearly erroneous.
Affirmed in part, reversed and remanded in part.
Harris & Kahn, Dona S. Kahn, Philadelphia, Pa., for
Capaci.
Sandra G. Bryan, E.E.O.C., Jeffrey C. Bannon,
Washington, D.C., for E.E.0.C.
Montgomery, Barnett, Brown & Read, Daniel Lund,
James B. Irwin, New Orleans, La., for defendant-appellee
cross-appellant.
Appeals from the United States District Court for
the Eastern District of Louisiana.
Before BROWN, REAVLEY and RANDALL, Cir-
cuit Judges.
REAVLEY, Circuit Judge:
A-92
Andra A. Capaci and the Equal Employment Oppor-
tunity Commission (EEOC) brought this Title VII sex
discrimination suit against Katz & Besthoff, Inc. (K & B),
a drugstore company based in New Orleans. With the ex-
ception of one minor aspect of Capaci’s individual
disparate treatment case, the district court held for the
defendant company after a bench trial. 525 F.Supp. 317
(E.D.La.1981). Numerous issues are raised on appeal, the
most important of which concern the use and abuse of
statistical techniques by the parties in the trial below. We
hold that the district court was clearly erroneous in finding
that the defendant had not discriminated against women in
hiring manager trainees from 1965 through 1972. In all
other respects we affirm.
I. CLASS CLAIMS
This suit began when Andra Capaci, then a phar-
macist with K & B, filed a class action complaint under title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et.
seq., alleging gender discrimination by her employer. The
EEOC intervened, alleging that the defendant had failed to
promote and hire females into management positions on
the same basis as males.
K & B operates a chain of drugstores in New Orleans
and several other towns and cities in Louisiana, Mississippi
and Alabama. Managers at the stores fall into four
categories: manager, assistant manager, relief manager
and manager trainee. In those stores where the manager is
not a pharmacist, a chief pharmacist is appointed to super-
vise the pharmacy department. On appeal as at trial, the
case centers on the employment practices of K & B with
respect to manager trainees and pharmacists.
A-93
A. Statistical Evidence.
The EEOC relied primarily on a statistical case
presented through exhibits and the testimony of its expert
witness, Dr. Gastwirth. K & B countered with testimony of
its expert, Dr. Cranny. On appeal, the statistical methods
used by the experts, rather than their raw data, are the ma-
jor concern.
1. Manager Trainees
Manager trainees are hired both internally from the
ranks of existing employees and externally from the
civilian labor market. The only objective qualification is a
high school diploma.
In our view the most important single fact presented
to the district court is this: From July 1965, the effective
date of Title VII, to January 1, 1973, the date just prior to
Capaci’s filing of discrimination charges, K & B hired or
promoted 267 individuals to the position of manager
trainee, of which 267 were male. The days of testimony that
followed were consumed in part in determining whether or
not this fact could be said to constitute statistically signifi-
cant evidence of discrimination.
Dr. Gastwirth performed some rather sophisticated
statistical tests for discrimination. He first determined a
relevant labor market with which he could compare the pro-
portion of females in management. Using 1970 census data,
he looked to all managers in Louisiana and refined the com-
parison further by looking to experienced wholesale and
retail managers, general merchandise retail managers, and
department and sales managers. He made further refine-
ments by looking to the census data for these categories
A-94
in three separate geographic locations—New Orleans,
Baton Rouge, and the remainder of the state—and
weighting the figures by the number of stores in each
region. He then took the “lower bound’ of these
geographical weightings to be conservative,! and excluded
those trainees hired outside of Louisiana. He also looked to
managers earning less than $7,000 in 1969, on the assump-
tion that those earning more would not be interested in the
manager trainee position paying between $5,980 and
$6,500 at that time. In short, he arrived at a number of
comparable segments of the labor force, which ranged from
16% to 29% female. With all of the manager categories,
these percentage figures were conservative, since, as even
Dr. Cranny admitted on _ cross-examination, they
underestimated present female availability by reflecting
past discriminatory employment decisions.
Using this data, Gastwirth computed the probability
that K & B’s selections could have been made in an unbias-
ed or random manner. Regardless of which “‘referent”’
group was used, for the period 1965—1972 the probability
calculated was consistently far less than one in a billion.”
! The lower bound was derived by choosing the smallest percen-
tage female figure found in the geographic regions for each occupational
category.
2 Manager Trainee Exhibit 3 is typical of several EEOC exhibits
presented at trial:
Statistical Tests Comparing Manager Trainee Hires With
The Lower Bound for Various Labor Market Referents For
The Period July 1, 1965 to January 1, 1973
The exhibit reports the probability of observing 0 females
out of the 265 persons hired directly as manager trainees
from the inception of the Civil Rights Act until January 1,
1973 just prior to the charge. The results are given for the
lower bound for any geographical weighting of the various
external labor market referents.
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Indeed, the highest probability of unbiased hiring was
5.367 x 10-20, less than one in a billion billions.
Gastwirth performed comparable tests for manager
trainees hired from 1973 through 1977, a period between
the filing of the charge and the trial. During this period
some female manager trainees were hired, but the vast ma-
jority of trainees chosen were male. The results of the tests,
though considerably less dramatic than those of the
1965-1972 period, consistently showed the probability of
such disparate hiring occurring by chance to be less than
one in 10,000.
(Footnote 2 continued)
Probability
Theoretical of Observed
Referent Fraction _Data_
Civilian Labor Force 343} 4.338x10—49
Managers Earning Less than $7000
(in 1969) 2899 3.978x10~4
Experienced Wholesale & Retail
Managers Earning Less than $7000
(in 1969) 2507 6078x1034
Proms
General Merchandise Retail Store
Managers 2364 9.109x10—92
Department and Sales Manager
(Retail Trade) 2207 —-2.003x10~29
All Managers .1607 6.888x10~ 2!
NOTE: All probabilities are far less than one in a billion. The
two and three standard deviations tests described by
the Supreme Court in Castanada v. Partida, 430 U.S.
482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977), correspond
to probabilities of 1 in 20 (.05) and 1 in 100 (.01).
The probabilities in the last column are all less than
one billionth of the probability levels used in
Castanada.
A-96
The EEOC also relied on “applicant flow’’ data, that
is, data on the number of men and women hired compared
with the number who actually applied for the job. Only ap-
plications from July 1976 through 1977 were made available
through discovery. This information indicated that 19.2%
of the applicants for manager trainee were female, within the
16%-29% range Gastwirth predicted using census data.
However, women made up only 9.2% of those chosen. Six-
teen percent of the female applicants were successful, com-
pared with 37% of the males. Using a chi-square test,
Gastwirth determined that the probability of such hiring oc-
curring by chance was less than one in a thousand.®
K & B attacked the EEOC statistical case in four
3 Manager Trainee Exhibit 17 gives Dr. Gastwirth’s test of the
applicant flow data:
Statistical Comparison of the Difference in the Proportion of
Male and Female Applicants for the Manager Trainee Posi-
tion Who Were Hired as Manager Trainees
This exhibit calculates the chi-square test to determine
whether the difference between the proportion of male ap-
plicants (37.37%) for the manager trainee position, during
1976 and 1977, who were actually hired as manager trainees,
and the corresponding proportion of female applicants
(15.96%) is statistically significant.
Hired Not Hired Total
Males 148 248 396
Female 15 79 94
Total 163 327 490
The value of the chi-square statistic is 14.75, which in-
dicates that the probability of the observed data, under the
hypothesis of equal hiring probabilities for applicants of
each sex, is less than one in a thousand. This result is
statistically significant and we conclude that the success
rate of male applicants in the period (37.37%) is significantly
greater than that of females (15.96%).
A-97
ways. It argued that: (1) the government failed to consider
that women might not want the job and through ‘“‘self-
selection’’ would not apply; (2) Dr. Gastwirth failed to make
various refinements in the census data necessary to make
accurate comparisons; (3) the statistical tests looked only to
external hiring of manager trainees and failed to consider
internal promotions; (4) tests using data broken down by year
and geographic location showed vastly reduced or no
statistical significance. We find these objections less than
convincing.
Certainly there is some merit to the self-selection argu-
ment. The district court found that ‘‘[t]he job requires the
manager trainee to unload supply trucks, to put up stock,
straighten up the store, and the work schedule includes night
work, weekend and holiday work.’ 525 F.Supp. at 325. The
court credited the testimony of Dr. Cranny, an industrial
psychologist and labor economist, that such job conditions
“would substantially retard females from applying as com-
pared to males.”’ Jd. Several witnesses also testified that
females had selected themselves out of the manager trainee
job or applicant pool. This testimony emphasized in par-
ticular the unwillingness of women to work the hours re-
quired of manager trainees.
Despite this evidence, and deferring completely to the
trial judge in weighing the credibility of these witnesses, we
have great trouble accepting self-selection as an explanation
for the complete absence of women in the manager trainee
program for the seven and one-half year period preceding the
discrimination charge. There is no reason to believe that the
female witnesses called were representative of all women in
the labor market or employed by the defendant. By looking
to other merchandising, wholesale and retail, and department
and sales managers, Gastwirth’s statistical tests were
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already corrected for self-selection to some extent, since all
managers face hours and responsibilities that would not ap-
peal to some women. Gastwirth testified that an applicant
pool that was even 2% female would still have led to a
finding of statistical significance for the 1965-1972 period.
The applicant flow data indicated that 19.2% of manager
trainee applicants were female, within the range found for
other managers, and inconsistent with a theory of total
self-selection. The defendant’s witnesses also made clear
that non-management and non-professional employees,
79% of whom are women, also have weekend and night
duties and perform physical labor. Dr. Cranny stated that
management trainees and assistant managers ‘“‘do much of
the same work as the rest of the people in the organization
do.”’
K & B maintains that the census data used by
Gastwirth was not sufficiently ‘‘refined’’ to make his tests
meaningful. The district court found that “Dr. Gastwirth
admitted that his groups include part time employees and
the self-employed, some of whom are not potential ap-
plicants for the manager trainee position, and that no data
was available to him to make the refinements,” and that
‘‘fajll of the [Gastwirth comparison] groups included data
on businesses not comparable to the K & B operation, such
as boutiques and dress shops.”’ 525 F.Supp. at 325, 328.
The use of census data is an appropriate method of
demonstrating discrimination. Hazelwood School District
v. United States, 433 U.S. 299, 97 S.Ct. 2736, 53 L.Ed.2d
768 (1977). The defendant would require refinements
beyond that available in published statistics. A perfect
statistical model is not required. Phillips v. Joint
Legislative Committee, 637 F.2d 1014, 1025 (5th Cir.1981),
cert. denied, 456 U.S. 960, 102 S.Ct. 2035, 72 L.Ed.2d 483
A-99
(1982); Vuyanich v. Republic National Bank of Dallas, 505
F.Supp. 224, 314 (N.D.Tex.1980). The
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