Petition for Writ of Certiorari — Morgan v. United Parcel Service of America, Inc.

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vi) Supreme Court, U.S.

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IN THE

Supreme Court of the United States

LESLIE MORGAN, KENNETH STACKER, AND

THEODORE BOLDIN, ON BEHALF OF THEMSELVES

AND THE CLASSES THEY REPRESENT, PETITIONERS

Vv.

UNITED PARCEL SERVICE OF AMERICA, INC.,

AND UNITED PARCEL SERVICE, INC.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

DARLENE ROBINSON VIRGINIA M. O’LEARY

ATTORNEY AT LAW Counsel of Record

522 College Street O’LEARY & ASSOCIATES

Oakland City, IN 47660 251 North Main Street

(812) 749-3446 Oakland City, IN 47660

(812) 749-3831 Facsimile (812) 749-4796

(812) 749-3831 Facsimile

Attorneys for Petitioners

CURRY & TAYLOR @ WASH O.C. ¢ (202) 223-3160 ¢ USSCINFO.COM

Il.

III.

QUESTIONS PRESENTED

May the Court of Appeals for the Eighth Circuit

reject the Supreme Court’s teaching on proof of

pay discrimination in Bazemore v. Friday, 478

U.S. 385, 395 (1986) and National Railroad

Passenger Corp. v. Morgan, 536 U.S. 101,-111-

112 (2002) thereby denying favorable judgment

to a class of 500 black managers paid

discriminatorily less than similarly situated

white managers?

May the Court of Appeals for the Eighth Circuit

reject the Supreme Court’s ruling on relevant

statistical analysis in promotion discrimination

cases, Watson v. Fort Worth Bank and Trust,

487 U.S. 989 (1988), and deny 500 black

managers judgment where the undisputed

Statistical proof conformed to unchallenged

authority in Emanuel v. Marsh, 897 F.2d 1435

(8 Cir. 1990) and Paxton v. Union Nat'l Bank,

688 F.2d 552 (8" Cir. 1982), cert. denied, 460 U.S.

1083 (1983) proving promotion discrimination?

Should the Supreme Court overturn the Eighth

Circuit’s ruling in which the panel majority,

contrary to the mandate of the Supreme Court in

Anderson v. Liberty Lobby, Inc., 477 U.S. 242

(1986) and Reeves v. Sanderson Plumbing

Products, Inc., 530 U.S. 183 (2000), weighed

evidence to uphold an improper determination

on summary judgment which dismissed the

claims of 500 black managers? :

PARTIES TO THE PROCEEDING

The parties to the proceeding are set forth in the

case caption.

CORPORATE DISCLOSURE STATEMENT

Petitioners represent a class of approximately

500 black managers and former managers who work or

have worked for Respondent United Parcel Service in

and after 1989. (See Certification Order at Cert. App.

Sla-83a)' Respondents are American corporations

engaged in the business of package delivery for

individuals and businesses. |

1. The parent company of

United Parcel Service of America, Inc. is

United Parcel Service, Inc. (a different

corporation from appellee/cross-appellant

United Parcel Service, Inc.).

2. The parent companies of

United Parcel Service, Inc. are United

Parcel Service Worldwide Forwarding,

Inc.; United Parcel Service of America,

‘Citations to the Appendix contained herein are cited as

“Cert. App. __.” Citations to the Eighth Circuit Appendix which

are not contained in the Cert. App. are cited as “A___.” Citations

to the Eighth Circuit Opinion will be “8 Cir. Op.”; the Dissent will

be “Dissent”; and the panel majority will be “Panel Majority.”

Citations to the District Court Opinion are cited as “Dist. Ct,

Opinion.”

Inc.; and another corporation different

from— appellee/cross-appellant United

Parcel Service, Inc. also known as United

Parcel Service, Ine.

3. No other publicly — held

company holds 10% or more of the stock

of either appellee/cross-appellant.

(Taken from Respondent’s Corporate Disclosure

Statement to the Eighth Circuit)

QUESTIONS PRESENTED

PARTIES TO THE PROCEEDING

Il.

ITI.

TABLE OF CONTENTS

THE EIGHTH CIRCUIT COURT OF

APPEALS HAS DECIDED AN IMPORTANT

FEDERAL QUESTION CONTRARY TO

BAZEMORE AND NATIONAL RAILROAD....

THE EIGHTH CIRCUIT DECIDED AN

IMPORTANT QUESTION OF FEDERAL

LAW REGARDING PROMOTION

DISCRIMINATION IN A WAY THAT

CONFLICTS WITH WATSON ...............sccccssscees

THE EIGHTH CIRCUIT DEPARTED FROM

THE SUPREME COURT'S MANDATE

AGAINST A COURT'S WEIGHING OF

eV BEANE BUR AED cncesennnsnnedinninssnennaniensnanenstineonmatiuninatatee

SOOT EEE TR ES ESESEE SESE EE EEEESEEEEEEEEEESEESEEEEEESD

POSSE PED EEO EE EEE SESE OES

SOOTHE EEE ESOS ESTES EEEEEO SESE EE ESES EEE EES ESESESEES

SOOO ESOT EEEEEE EEE EEEEEEESEEESESEEEE SEES

POSSESSES EEE ESESOTESEE SEES

CONCLUSION ........ccccesssssscsssscrecsscsercsssssssecsesssssnonsssssccnnosssssscnsosees® 13

APPENDIX

CIRCUIT COURT OPINION (08/30/04) .....sssesssssseeessseesssess la

DISTRICT COURT ORDER (06/26/00) ......:ssssssessseeessnssees 32a

DISTRICT COURT ORDER (05/10/02) ...e.sssssssssseceesseesens 58a

DISTRICT COURT ORDER (04/27/97) ..sssssssssscsssssessseesens 59a

DISTRICT COURT MEMORANDUM (10/30/96).....+-0+0++: 64a

DISTRICT COURT ORDER (10/30/96) ..+.sssssssssseseeeesnnee 8la

ORDER DENYING REHEARING (11/28/04) ...ssscsseseseoes 84a

EXCERPTS FROM PLAINTIFF’S STATEMENT

OF UNDISPUTED FACTS. ......ccccssscsssreseeeeeserenseneresenscennens 85a

MEMO TO JACK CASEY FROM KEN MCKENNA

RE: MINORITY/FEMALE MANAGEMENT

WORKFORCE DATE APRIL 4, 1990............ saniiiabiiastii 89a

SUMMARY EXHIBIT: NUMBERS AND

PERCENT BLACK IN JOB GROUPS 70 AND

ABOVE AS OF DECEMBER 81, 2990-94 ........:seseeeerenreees 93a

CHART SHOWING STANDARD DEVIATION OF

PAY DISPARITY ........sssscssssscessssssccsesesesensesnsnssssarscenaesoscers 95a

EXCERPT FROM SUMMARY OF JOB HISTORY

OF DEFENDANTS’ WITNESSES FROM THEIR

TESTIMONY OR FROM DEFENDANTS’

RESPONSES TO INTERROGATORIES AS

APPROPRIATE. ......scccssssssssssceeecessecssnscsceecensnssssecscsecsnsnerens 96a

vi ;

EXCERPTS FROM ATTACHMENTS '- TO

TIMOTHY M. DALL’S AFFIDAVIT 98a

EXCERPT FROM DR. STAPLETON’S REPORT.......... 103a

AFFIDAVIT OF MANUEL E. JACKSON 106a

CAREER DEVELOPMENT RECOMMENDATIONS

~ PACKAGE OPERATIONS .. LO8a

EXCERPTS FROM THE DEPOSITION OF KENT

C. NELSON, DECEMBER 15, 1999....... 7 110a _

EXCERPTS FROM THE DEPOSITION OF SCOTT

E. CORRIGAN, JANUARY 24, 2000...........c.ccscssrnsssssssess 118a

ADVERSE IMPACT ANALYSIS OF BLACKS AT

CENTER MANAGER LEVEL..... 123a

vii

TABLE OF AUTHORITIES

Page

CASES

ANDERSON V. LIBERTY LOBBY, INC., 477 U.S. 242

ee nhl ee ORME TY NOTE IEE i, 22, 23

BAZEMORE V. FRIDAY, 478 U.S. 385 (1986)..................... i, 8, 11

CAPACI V. KATZ & BESTHOFF, INC., 711 F.2D 647 (5™

es cetera atk hacen a al a Er 19

CASTANEDA V. PARTIDA, 430 U.S. 482 (1977).................. 17,18

COBLE V. HOT SPRINGS SCH. DIST. NO. 6, 682 F.2D

Ss edi eit lanai cit 12

CORNING GLASS WORKS V. BRENNAN, 417 U.S. 188

SEIU iheateehcideieteeaiihtaiantcia tiatinntaiaataititatdek caine ees lee 11,12

CRAIK V. MINNESOTA STATE UNIV. BD., 731 F.2D 465

ge ee ON erm ese we 19

EMANUEL V. MARSH, 897 F.2D 1435 (8™ CIR. 1990)..... passim

NATIONAL RAILROAD PASSENGER CORP. V.

MORGAN, 536 U.S. 101 (2002) ...........ccccecccccccccccccccccsccccccocees i, 8,9

PAXTON V. UNION NAT'L BANK, 688 F.2D 552 (8™

CIR. 1982), CERT. DENIED, 460 U.S. 1083 (1983).....i, 13, 18, 19

REEVES V. SANDERSON PLUMBING PRODUCTS, INC.,

gi RRP een nero eee re A ERSTE: SONIA i, 22

WATSON V. FORT WORTH BANK AND TRUST, 487

tf 5 | RPE Rees Omer ES i, 13, 17,18

viii

MISCELLANEOUS

28 U.S.C. § 1254(1)

42 U.S.C. § 1981 3

42 US.C. § 2000e 1

Supreme Court Rule 10(a) 22

Supreme Court Rule 10(€) .........cccccslececesesseees 8, 13

]

OPINIONS BELOW

The August 30, 2004 decision of the panel of the

United States Court of Appeals for the Eighth Circuit

is reported at 380 F.3d 459 (8 Cir. 2004), and is

reprinted at Cert. App. la-3la. On November 23, 2004

the Eighth Circuit denied Petitioner’s Petition for

Rehearing En Banc; three judges voted to rehear the

case. (Cert. App. 84a) The judgment of the district

court of May 10, 2002 is reprinted at Cert. App. 58a.

The June 26, 2000 summary judgment ruling of the

United States District Court for the Eastern District of

Missouri reported at 143 F.Supp.2d 1143 (E.D. Mo.

2000) is reprinted at Cert. App. 32a-57a. The class

certification order of the district court of October 30,

1996 was published at 169 F.R.D. 349 (E.D. Mo. 1996)

and is reprinted at Cert. App. 64a-80a. The district

court modified its certification on April 25, 1997. (Cert.

App. 59a-63a)

STATEMENT OF JURISDICTION

The Eighth Circuit issued its denial of en banc

review on November 23, 2004. This Petition for Writ of

Certiorari is timely in that Petitioners have filed it

within 90 days of November 23, 2004. The Court has

jurisdiction pursuant to 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

This case involves the interpretation and

application of Title VII, 42 U.S.C. §2000e et _seq.,

specifically §2000e-2(a):

(a) Employer practices

It shall be an unlawful employment

practice for an employer--

(1) . . . to discriminate against any

individual with respect to his

compensation, terms, conditions, or

privileges of employment, because of such

individual’s race .. . or

(2) to limit, segregate, or classify his

employees . . . in any way which would

deprive or tend to deprive_any individual

of employment opportunities or otherwise

adversely affect his status as an

employee, because of such individual’s

Face ....

* * *

(k) Burden of proof in disparate impact

cases

(1)(A) An unlawful employment practice

based on disparate impact is established

_under this subchapter only if--

(i) a complaining party demonstrates that

a respondent uses a_ particular

employment practice that causes a

disparate impact on the basis of race...

and the respondent fails to demonstrate

that the challenged practice is job related

for the position in question and consistent

with business necessity;

* * *

(B)Gi) With respect to demonstrating that

a particular employment practice causes a

disparate impact as_ described _ in

subparagraph (A)(i), the complaining

party shall demonstrate that each

particular challenged employment

practice causes a disparate impact, except

that if the complaining party can

demonstrate to the court that the

elements of a respondent’s

decisionmaking process are not capable of

separation for analysis, the

decisionmaking process may be analyzed

as one employment practice.

and 42 U.S.C. §1981:

(a) Statement of equal rights

All persons within the jurisdiction of the _

~ United States shall have the same right in

every State and Territory to make and

enforce contracts ... as is enjoyed by

white citizens....

(b) “Make and enforce contracts” defined

For purposes of this section, the term

“make and enforce contracts” includes the

making, performance, modification, and

termination of contracts, and_ the

enjoyment of all benefits, privileges,

‘terms, and conditions of the contractual

relationship.

STATEMENT OF THE CASE

Procedural Background

The Class Representatives for a class of 500

black Center Managers are or were managers for UPS

in the Missouri District. They claim on behalf of the

class that black management employeés are not

promoted as quickly or as far as similarly situated

white employees. They also allege that UPS pays black

Center Managers less than white Center Managers.

(Cert. App. 65a, 66a, 68a)

The class appealed the district court’s denial to

the class of summary judgment on unequal pay as well

as the district court’s grant of summary judgment to

UPS on the class claims. On August 30, 2004, a panel of

the Eighth Circuit Court of Appeals affirmed the

district court decision over a strong dissent with

respect to the class pay claims. Rehearing was denied.

Facts regarding UPS’s Corporate Structure

UPS’ delivers packages world-wide for

individuals and businesses. UPS is divided into eleven

geographical regions in the United States, each with a

Region Manager. A _ region is_ subdivided into

approximately six districts, each with a District

Manager. The District Managers are responsible for

nearly every aspect of district operations, including

picking up, sorting, and delivering packages, as well as

employee development, promotion, and compensation.

There are between sixty and seventy districts in the

United States. A district is further divided into

divisions. The entry level managerial position is

Supervisor who reports to the Center Manager. The

Center Manager reports to the Division Manager, the

Division Manager reports to the District Manager, and

the District Manager reports to the Region Manager.

(8 Cir. Op. at Cert. App. 5a-6a)

Facts regarding Center Manager

Compensation

The District Manager subjectively determines

the specific starting salary of Center Managers within

the range UPS assigns. (A661, 1807, 1455-1456)

Performance as Supervisor plays no part in establishing

Center Managers’ initial salary. (A1364) Prior to 1992

UPS had no written guidelines for setting Center-

Manager pay. (A1354, 1356, 1772, 503-508)

In every year from 1991 through 1997 UPS paid

black Center Managers less than white Center

Managers. (A458, 474, 490, 500) Experts for both

parties found the differences in average base pay

between white and black Center Managers to be

statistically significant in each year from 1991 through

1994 and in 1996 and 1997. (8 Cir. Op. at Cert. App.

17a, 30a, 3la. See also Cert. App. 85a-88a; A458-461,

474, 521, 490, 500, 1805-1806)

Facts regarding Promotion Discrimination

Relevant to the Class Promotion Claims

UPS has a policy of promotion from within. (8"

Cir. Op. at Cert. App. 6a; Dist. Ct. Opinion at Cert.

App. 38a) UPS selects employees from the hourly

workforce to enter management at the Supervisor

level. (A662-663, 1807) UPS provides full-time

Supervisors and Center Managers training, experience,

rotations, work assignments, community assignments

and exposure the company deems necessary to advance

along the management continuum. The experience UPS

prefers for Division Managers can be gained as a

Supervisor or as a Center Manager. (Cert. App. 108a-

109a. See also A699, 1826, 1341-1342, 1464, 1533-1534,

1521, 1529) There is no length of time full-time

Supervisors must be in management to move to Center

Manager and no length of time Center Managers must

spend in management before moving to Division

Manager. (A668)

UPS does not post management openings. (8

Cir. Op. at Cert. App. 6a; Dist. Ct. Opinion at Cert.

App. 38a) There are no objective requirements for

moving from Supervisor to Division Manager. (A1049,

1538-1539, 2008)

UPS’s “Career Development Planning Guide”

defines UPS’s subjective career development program.

(A1409) UPS’s career development system vests its

predominantly white upper management across the

country with unfettered discretion to make decisions

about staffing: creating and filling openings; making

regular and special assignments; assigning position

levels to jobs; determining type and timing of training

' experiences; and making interpretations of and

administering UPS’s evaluation system. District

Managers determine the number of opportunities and _

timing for movement of management personnel to

division level. (See A1521, 1433-1434, 1484, 208-217,

1997-2008. See also Cert. App. 6a and 38a, and 97a-98a,

showing upper level [76-95] always less than 7% black)

The percentage of black division-level

employees, compared to the percentage of all black

officials and managers, operatives and laborers, blue

collar workers, and total UPS workforce, show

standard deviations ranging from 3.5 to 15.4. (Dist. Ct.

Opinion at Cert. App. 43a) UPS uses its total workforce

when it tests for disparate impact. (Cert. App. 89a,

106a-107a) UPS management at the highest level

identified its total workforce as the pool from which it

draws division level managers. (Cert. App. 89a, 1138a;

A1848-1853, 1561, 1565-1567)

During the liability period there were no fewer

than 45 Districts in which UPS promoted no black

employees to division level. (Dist. Ct. Opinion at Cert.

App. 42a)

It takes black management employees who reach

Center Manager level significantly longer to be

promoted from their first full-time Supervisor position

to Center Manager level and significantly longer to

move from Supervisor to Division Manager level than it

takes white managerial employees. (Dist. Ct. Opinion at ~

Cert. App. 45a. See also Cert. App. 96a)

UPS filled more than 800 Division Manager level

openings after June 17, 1989 with white employees.

(A2072-2075) There were black Center Managers in '

sufficient numbers and with the experience UPS says it

prefers for Division Manager level to correct the

underrepresentation of blacks in and above Division

Manager positions. (A705, 1833, 1067-1106)

REASONS FOR GRANTING THE PETITION

I. THE EIGHTH CIRCUIT COURT OF

APPEALS HAS DECIDED AN

IMPORTANT FEDERAL QUESTION

CONTRARY TO BAZEMORE AND

NATIONAL RAILROAD

In rejecting the Supreme Court’s teaching on

proof of pay discrimination in Bazemore v. Friday, 478

U.S. 385, 395 (1986) and National Railroad Passenger

Corp. v. Morgan, 536 U.S. 101, 111-112 (2002), and

thereby denying a favorable judgment to a class of 500

black managers paid discriminatorily less than similarly

situated white Center Managers, the Eighth Circuit

Court of Appeals has decided an important federal

question in a way that conflicts with controlling

decisions of this Court. Supreme Court Rule 10(c).

This Court in Bazemore held that “[elach week’s

paycheck that delivers less to a black than to a similarly

situated white is a wrong actionable under Title VII...

.’ Bazemore, 478 U.S. at 395. On June 10, 2002, this

Court confirmed its holding in Bazemore:

... in Bazemore v. Friday, 478 U.S. 385,

106 S.Ct. 3000, 92 L.Ed.2d 315 (1986) (per

curiam), a pattern-or-practice case, when

considering a discriminatory _ salary

structure, the Court noted that although

the salary discrimination began prior to

the date that the act was actionable under

Title VII, “[e]ach week’s paycheck that

deliver{ed] less to a black than to a

similarly situated white is a wrong

actionable under Title VII... .”

National Railroad, 536 U.S. at 111-112.

Plaintiffs relied on UPS’s expert’s report and the

controlling law in Bazemore to establish UPS's liability

on pay. Plaintiffs made their prima facie case of current

pay discrimination by showing UPS paid black Center

Managers statistically significantly less than white

Center Managers.’ The Eighth Circuit panel majority

concedes that “UPS expert Dr. Evans’ preferred

method found § statistically significant pay

differentials in each year except 1995 [1991-1994

and 1996 and 1997]... .” (Panel Majority at Cert. App.

17a) [Emphasis supplied]

Unaccountably the Eighth Circuit majority did

not credit the Plaintiffs’ initial showing of significant,

current pay discrimination. Judge Melloy in his dissent

says:

This is a case in which all the experts,

Defendant’s expert included, found a

statistically significant difference

2 The standard deviations range from nearly 9 in 1993 to

more than 2 in 1997. (Cert. App. 95a)

between pay of white Center Manager‘s]

and black Center Managers at UPS in all

years at issue except 1995....

Both parties presented admissible

evidence on the issue of pay disparity. All

three experts used multiple regression

analyses to determine whether the

difference in pay was attributable to

factors other than race. Each expert

identified the factors he or she found to be

relevant in determining pay and

controlled for these factors in their

analysis. Many of the same factors were

included in the different studies, such as

pay region, performance evaluations, and

tenure.

“(Dissent at Cert. App. 30a. See also Cert. App. 103a)

[Emphasis supplied]

The district court departed from the recognized

legal analysis of Bazemore and denied judgment to the

class without so much as mentioning Bazemore. The

Eighth Circuit panel majority implicitly held that past

pay differences between blacks and whites could be a

defense against unequal pay, while Bazemore teaches

just the opposite.* (Panel Majority at Cert. App. 20a-

26a) Judge Melloy in his dissent noted:

* The panel majority relied on their mistaken assumption

that “base pay” was the pay granted a Center Manager upon

promotion. (See Cert. App. 21a) In reality base pay as used by UPS

and by all of the experts is the Center Manager’s annual salary

without stock award and bonus. UPS admitted Supervisor pay

does not affect Center Manager pay. (A 1364)

None of the experts included past pay as a

factor in their analysis. However, the

majority focuses on-this would-be factor

and upholds summary judgment for the

Defendants based on the Plaintiffs’

omission of past pay. They do so despite

the fact that all three qualified

experts chose not to include past pay

as a factor. They do so_ while

acknowledging that “it is clear that a

regression analysis that includes less than

‘all measurable variables’ may serve to

prove a plaintiff's case.” Bazemore_v.

Friday, 478 U.S. 385, 400 (1986).

(Dissent at Cert. App. 31a) [Emphasis supplied]

The Eighth Circuit asserted a “defense” for

UPS. UPS did not proffer such a defense or provide any

such data. UPS has in fact conceded it does not use past

pay in determining current pay. (Cert. App. 111a, 119a;

A1364) Corning Glass Works v. Brennan, 417 U.S. 188,

196 (1974) held that once a plaintiff establishes a prima

facie case of pay discrimination “the burden shifts to

the employer to show that the differential is justified

under one of the Act’s .. . exceptions” by proving the

different pay “is made pursuant to . . .,a differential

based on any . . . factor other than [race].” [Emphasis

supplied]

The burden is on the opposing party to

clearly rebut statistical evidence;

hypotheses or conjecture will not suffice.

When a plaintiff submits accurate

statistical data, and a defendant alleges

that relevant variables are excluded,

defendant may not rely on hypothesis to

lessen the probative value of plaintiff's

statistical proof. Rather, defendant, in his

rebuttal presentation, must either rework

plaintiffs statistics incorporating the

omitted factors or present other proof

undermining plaintiff's claims.

Coble v. Hot Springs Sch. Dist. No. 6, 682 F.2d 721, 730

(8 Cir. 1982). [Emphasis supplied] See also Bazemore;

Corning. Judge Melloy has pointed out that the court

may not conjecture on the moving party’s behalf.

(Dissent at Cert. App. 3la) The multiple regression

studies of beth parties turned up no nondiscriminatory

factors which justified unequal pay.

UPS did not prove that the pay differences

found by all of the experts were on account of any

permissible factor and thereby failed to rebut Plaintiffs’

pay case. Coble, 682 F.2d at 730-31; Corning, 417 U.S. at

196-97. Plaintiffs are entitled to summary judgment on

pay for every year but 1995 since all of the experts

found a statistically significant difference in the pay of

black and white Center Managers in each of those

years. ~

Il. THE EIGHTH CIRCUIT DECIDED AN

IMPORTANT QUESTION OF

FEDERAL LAW REGARDING

PROMOTION DISCRIMINATION IN A

WAY THAT CONFLICTS WITH

WATSON

In rejecting the Supreme Court’s ruling on

relevant statistical analysis in promotion discrimination

cases, Watson v. Fort Worth Bank and Trust, 487 U.S.

989 (1988), and thereby denying 500 black managers

judgment where the undisputed statistical proof

conformed to unchallenged authority in Emanuel v.

Marsh, 897 F.2d 1435 (8 Cir. 1990) and Paxton v.

Union Nat'l Bank, 688 F.2d 552 (8 Cir. 1982), cert.

denied, 460 U.S. 1083 (1983), the Eighth Circuit decided

an important question of federal law in a way that

conflicts with the controlling decision of this Court.

Supreme Court Rule 10(c).

The district court disregarded Eighth Circuit

and Supreme Court authority, distorted Plaintiffs’

claims, and impermissibly relied on a comparison

workpool tainted by discrimination. The panel repeated

the district court error.

The panel’s ruling defies the statistical standards

enunciated clearly in Emanuel and Paxton to be

applied to UPS’s multi-level promotion-from-within

system, with totally subjective decisions by

predominately white upper management as the

backdrop. The panel decision also contravenes Supreme

Court authority in Watson.

The district court found those features of UPS’s

managerial advancement system which are crucial to

proof of the Plaintiffs’ case. The district court found

that:

* UP%S’s policy of promotion from within

vests authority in District Managers

to promote employees to managerial

positions at the level of Division

Manager and below (Dist. Ct. Opinion

at Cert. App. 38a);

* open positions are not posted (Dist. Ct.

Opinion at Cert. App. 38a. See also

Dist. Ct. Opinion at Cert. App. 44a);

¢ UPS’s promotional decision making

process is subjective (Dist. Ct. Opinion

at Cert. App. 35a, 38a, 44a); and

¢ color photographs are sometimes

displayed during discussions of

readiness for promotion. (Dist. Ct.

Opinion at Cert. App. 38a)

The district court also noted without analysis of

its legal significance the discriminatory result of UPS’s

promotion system: Blacks are underrepresented at the

Division Manager level, and it takes those blacks who

do reach Division Manager level longer than whites to

move from Supervisor to Division Manager:

“

* the class submitted charts

showing the percentage of black

division-level employees, compared to

the percentage of all black ‘officials

and managers,’ ‘operatives and

laborers, ‘blue collar workers,’ and

‘total UPS workforce,’ . . . [with]

standard deviations . . . ranging from

3.5 to 15.4.” (Dist. Ct. Opinion at Cert.

App. 48a) [Emphasis supplied]; and

- “(t]he conclusion Dr. Weiner,

[Plaintiffs’ expert], reached based on a

cohort analysis is that it takes black

[management] employees [who

reached the Center Manager level]

significantly longer to be promoted

from their first full-time Supervisor

position to Center Manager level and

from Supervisor to Division Manager

level than it takes similarly situated

white employees.” (Dist. Ct. Opinion

at Cert. App. 45a)

UPS did not rebut the underrepresentation of

blacks at the Division Manager level or the fact that it

takes black management employees who do reach

Division Manager level longer than whites to become

Division Manager.

Legal standards for analyzing a multi-step

promotion system are clear and unchallenged. First,

this Court has repeatedly taught that statistical

analysis must be relevant, Watson. Second, the proper

workpool comparisons for a promotion ladder case are

laid out in Emanuel and Paxton.

;

‘

Disparate Impact Analysis

The class made a prima facie case of denial of

equal promotional opportunity under the disparate

impact model. UPS did not rebut the class’s prima facie

disparate impact case. The Eighth Circuit panel

declined to analyze Plaintiffs’ disparate impact showing

notwithstanding this Court’s direction in Watson. (See

Panel Majority fn. 2 at Cert. App. 27a-28a)

As recognized by the Eighth Circuit in

Emanuel, the Supreme Court concluded in Watson that

subjective decisionmaking may violate Title VII. The

class proved disparate impact by applying to UPS’s

subjective career development process the multi-prong

disparate impact analysis exactly as set out in

Emanuel, 897 F.2d at 1439:

(1) The UPS black managers belong to a

protected group.

(2) | UPS’s_ subjective career development

process does not provide job posting or “application

process” and does not include objective criteria for

moving to and beyond the division level. (See Dist. Ct.

Opinion at Cert. App. 38a, 44a; A674, 684, 1813, 1821,

1696)

(3) UPS filled more than 800 Division

Manager level openings after June 17, 1989 with white

management employees. (A2072-2075) UPS admitted

that there were blacks in sufficient numbers to move to

Division Manager level to _ correct the

underrepresentation of blacks at and above Division

Manager positions. (A705, 1833, 1067-1106)

(4) The district court found the class showed

standard deviations “ranging from 3.5 to 15.4”

comparing representation of blacks at Division

Manager level to the expected percentage of blacks

from the appropriate internal pools. (Dist. Ct. Opinion

at Cert. App. 43a) For the operatives and laborers pool,

the pool like that of Emanuel, the class’s unrebutted

calculation shows 11.0 to 15.4 standard deviations.

(Cert. App. 99a-100a. See also A1161-1164, 1166-1168)!

The statistical disparities shown create an inference of

racial imbalance in UPS’s workforce. Watson, 487 U.S.

at 993; Castaneda v. Partida, 430 U.S. 482, 496 n. 17

(1977).

(5) UPS rebutted none of Plaintiffs’ statistics.

Watson, 487 U.S. at 994-98.

(6) The class_ identified the specific

employment practice it challenges as discriminatory.

Watson, 487 U.S. at 993. The district court

acknowledged that the class identified UPS's practice

of “subjective selection procedures.” (Dist. Ct. Opinion

at Cert. App. 35a)

(7) The class proved that UPS’s subjective

career development system and its subjective selection

procedures caused the underrepresentation: the large

* As in Emanuel Plaintiffs offered three other statistical

comparisons likewise indicating underrepresentations: blue collar

workers--class’s unrebutted calculation shows 10.6 to 15.0 standard

deviations; total UPS workforce--class’s unrebutted calculation

shows 10.1 to 13.6 standard deviations; and officials and managers-

-class’s unrebutted calculation shows 3.5 to 5.5 standard deviations.

(Cert. App. 98a-99a, 100a-102a)

standard deviations raise an inference of causation.

Emanuel, 897 F.2d at 1441-42; Watson, 487 U.S. at 995.

(8) Causation having been established, UPS

must demonstrate a business justification for its

employment practice. Watson, 487 U.S. at 997-98. UPS

made no effort to defend its subjective secretive career

development system.

UPS’s failure mandates judgment for the class

on its disparate impact claim.

Disparate Treatment Analysis

The class also made a prima facie case of denial

of equal promotion to black managers to and above

Division Manager under the disparate treatment

model. UPS did not rebut the class’s prima facie

disparate treatment case. \

Under a disparate treatment pattern and

practice analysis, proof of gross disparity between the

representation of blacks in division level positions

compared to their representation in lower level

positions raises an inference of discrimination. Paxton,

688 F.2d at 564; Castaneda, 430 U.S. at 496 n. 17.

The Eighth Circuit in Paxton, holding that the

bank discriminated against its black employees, found:

the bank promoted from within; vacancies were not

posted; the criteria for promotions were primarily

subjective in nature; white Supervisors made most of

the promotional decisions; and adherence to the

affirmative action policy was not required by top

management .... Paxton, 688 F.2d at 564-65. In this

case, as in Paxton:

(1) UPS promotes from within (8 Cir.

Op. at Cert. App. 6a; Dist. Ct. Opinion at

Cert. App.-38a);

(2) vacancies are not posted (/d.);

(3) criteria for promotion are

subjective and ever changing (A208-217.

See also Dist. Ct. Opinion at Cert. App.

38a);

(4) predominantly white District

Managers with unfettered discretion

make the promotional decisions (Dist. Ct.

Opinion at Cert. App. 38a; Cert. App. 93a;

A1252-1253, 1484, 1699-1700, 989-990); and

(5) adherence to UPS’s stated policy of

valuing diversity is belied by its gross

underrepresentation of blacks at and

above the Division Manager level. (Cert.

App. 98a-102a; A1252-1253)

A prima facie case of disparate treatment may

be established by statistics alone if they are sufficiently

compelling. Craik v. Minnesota State Univ. Bd., 731

F.2d 465 (8 Cir. 1984). Standard deviations of 3.5-15.4

are astonishing and unrebutted and _ prove

discrimination. (Dist. Ct. Opinion at Cert. App. 48a. See

also Cert. App. 98a-102a; A954-982, 2064, 2071) See also

Capaci v. Katz & Besthoff, Inc., 711 F.2d 647, 662 (5%

Cir. 1983).

UPS did not offer a defense. UPS’s CEO during

the liability period recognized that blacks aie

underrepresented in upper level management and that

UPS’s subjective selection process is not working for

blacks. (Cert. App. 110a-117a)

Proper Pool versus Tainted Pool

Both the district court and the Eighth Circuit

confuse the class with the proper pool. Until summary

judgment, the district court consistently defined the

classes to reflect Plaintiffs’ promotion claim: the

district court’s class definition and clarification reflect

the complaint of the Center Manager class of retarded

movement from Supervisor positions to Division

Manager positions and beyond. (See A77-79; Cert. App.

59a-63a, 8la-82a. See also Cert. App. 65a, 68a; 8 Cir.

Op. at Cert. App. 7a-8a) .

In its June 26, 2000 Memorandum and Order the

district court arbitrarily changed Plaintiffs’ systemic

mobility claim--that blacks who reach the level of

Center Manager do not move from full-time Supervisor

to and beyond Division Manager as fast as whites, and

do not move as far as whites--to a claim of denial of »

promotion from Center Manager to Division Manager--

a one-step claim Plaintiffs never made. (Dist. Ct.

Opinion at Cert. App. 45a. See also 8 Cir. Op. at Cert.

App. 12a-13a) In Emanuel the Eighth Circuit used

lower level workforce and other basic workforce

subsets as comparison pools to show discrimination up

the entire promotion ladder. 897 F.2d at 1440-41.

Plaintiffs showed gross underrepresentation of

blacks at the Center Manager level with standard

ST ae

deviations ranging from 4.5-18.4 (Cert. App. 123a-138a)

thereby showing a Center Manager pool fatally tainted

by bottom to top discrimination. The discriminatory

restricted number of black Center Managers cannot be

manipulated to conceal discrimination at higher levels.

The district court and the panel refer to Center

Managers as the only employees “qualified” for

promotion. (See Dist. Ct. Opinion at Cert. App. 43a-45a;

8" Cir. Op. at Cert. App. 12a-14a) UPS has admitted

however that any preferred experience can be gained

at either the Supervisor level or the Center Manager

level. (A668, 699, 1826, 1341-1342, 1464, 1533-1534, 1521,

~ 1529, 1809)

The district court effectively acknowledged the

gross disparity between the percentage of blacks in

division level positions and the percentage of blacks in

each of four appropriate UPS internal pools:> the

district court admitted into evidence and acknowledged

the standard deviations ranging from 3.5 to 15.4. (Dist.

Ct. Opinion at Cert. App. 48a) The panel does not

recognize or acknowledge the magnitude of the

standard deviations or the fact that they are

unrebutted. (8 Cir. Op. at Cert. App. 12a-13a) The

gross disparity establishes a prima facie case of race

discrimination under Supreme -Court and Eighth

Circuit law.

The district court found that Plaintiffs also

proved their retarded movement within management

to and above Division Manager. Dr. Weiner’s conclusion

° Officials and managers, operatives and laborers, blue

collar, and total workforce. (Cert. App. 96a-102a)

that -white Center Managers moved faster than

Plaintiffs from Supervisor to both Center Manager and

Division Manager is unrebutted. (Dist. Ct. Opinion at

Cert. App. 45a) The panel mislabels this unrebutted

evidence as a “suggestion.” (8 Cir. Op. at Cert. App.

18a)

Hil. THE EIGHTH CIRCUIT DEPARTED

FROM THE SUPREME COURT’S

MANDATE AGAINST A COURT'S

WEIGHING OF EVIDENCE

The Eighth Circuit Court of Appeals admitted it

weighed evidence in defiance of the Supreme Court’s

mandate in Anderson v. Liberty Lobby, Inc., 477 U.S.

242 (1986) and Reeves v. Sanderson Plumbing

Products, Inc., 5380 U.S. 133 (2000) and upheld an

improper determination on summary judgment which

dismissed the claims of 500 black managers: the Eighth

Circuit has so far departed from the accepted and usual

course of judicial proceedings at summary judgment so

as to call for an exercise of the Supreme Court’s

supervisory power. Supreme Court Rule 10(a).

In complete disregard for the law in summary

judgment proceedings, the Eighth Circuit panel

majority acknowledged that they weighed the

evidence, stating a court “. . . can use the scale to a

limited degree ... .” (Panel Majority at Cert. App. 20a.

See also Panel Majority at Cert. App. 21a-22a, 24a-25a,

n.6 at 28a)

Judge Melloy in his dissent correctly noted:

At the summary judgment _ stage,

“{cjredibility determinations, — the

weighing of the evidence, and the

drawing of legitimate inferences from the

facts are jury functions, not those of the

judge .... The evidence of the non-

movant is to be believed, and _ all

justifiable inferences are to be drawn in

his favor.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 255 (1986).

(Dissent at Cert. App. 31a) [Emphasis supplied] See

also Reeves.

After making the astonishing statement that

courts may weigh the evidence, the Eighth Circuit

majority cited to Bazemore. Bazemore went to trial, the

judge was the trier of fact and weighed the evidence.

Although Judge Melloy noted in his dissent only

the court’s weighing of pay evidence, the Eighth

Circuit weighed the evidence, made credibility

determinations, drew inferences in UPS’s favor, and

actually found non-existent facts in both the class pay

and promotion cases. (Cert. App. 1la-14a, 16a-26a)

CONCLUSION

This Petition for Writ of Certiorari should be

granted to correct the unwarranted summary dismissal

of the valid and substantial claims of 500 black Center

Managers who were victims of systemic race

discrimination practiced by UPS. The Eighth Circuit

panel majority’s decision on pay conflicts with the

holding of this Court in Bazemore. The Eighth Circuit

opinion on promotion conflicts with this Court’s holding

in Watson. Finally this Court should exercise its

supervisory powers with respect to weighing evidence

in summary judgment proceedings.

Respectfully submitted,

VIRGINIA M. O’LEARY

Counsel of Record

O’LEARY & ASSOCIATES

251 North Main Street

Oakland City, IN 47660

(812) 749-4796

(812) 749-3831 Facsimile

Attorneys for Petitioners

(Any footnotes trail end of each document)

Nos. 02-2545/02-2835

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Leslie Morgan; Kenneth Stacker; Theodore Boldin,

Class Representatives of the Plaintiff Class,

Plaintiffs/Appellants/ Cross-Appellees,

Enoch Love; Equal Employment Opportunity

Commission,

Intervenor Plaintiffs,

United Parcel Service of America, Inc.; United Parcel

Service, Defendants/Appellees/Cross-Appellants.

Charles Cartwright, Movant/ Appellant, Brian

Needham, Movant, Bedell Finley; Frank Jackson,

Movants/ Appellants, Francis Truitt,

Movant.

April 14, 2003, Submitted

August 30, 2004, Filed

COUNSEL: For LESLIE MORGAN, KENNETH

STACKER, Plaintiffs - Appellants (02-2545): Roxanne

Barton Conlin, ROXANNE BARTON CONLIN &

ASSOCIATES, Des Moines, IA. Virginia M. O’Leary,

Kevin S. Kinkade, Kelly A. Lonnberg, O'LEARY &

ASSOCIATES, Oakland City, IN. John J. Carey,

Joseph Peter Danis, CAREY & DAN IS, St. Louis, MO.

Darlene Robinson, Oakland City, IN. Paul J. Vaporean,

Jack J. Cavanagh, Jr.. CAVANAGH & HARTWEGER,

St. Louis, MO. Charles H. Staples, BENCHMARK

LEGAL SERVICES, LLC, Virginia Beach, VA. David

B. Rubin, Metuchen, NJ. Michael J. Flannery, DAVID

DANIS LAW FIRM, St. Louis, MO.

For THEODORE BOLDIN, Class Representatives of

the Plaintiff Class, Plaintiffs - Appellants (02-2545):

Roxanne Barton Conlin, ROXANNE BARTON

CONLIN & ASSOCIATES, Des Moines, IA. Virginia

M. O’Leary, Kevin S. Kinkade, Kelly A. Lonnberg,

O’LEARY & ASSOCIATES, Oakland City, IN. John J.

Carey, Joseph Peter Danis, CAREY & DANIS, St.

Louis, MO. Darlene Robinson, Oakland City, IN. Paul J.

Vaporean, Jack J. Cavanagh, Jr. CAVANAGH &

HARTWEGER, St. Louis, MO. Charles H. Steples,

BENCHMARK LEGAL SERVICES, LLC, Vi inia

Beach, VA. Michael J. Flannery, DAVID DANIS

LAW FIRM, St. Louis, MO.

For UNITED PARCEL SERVICE, OF AMERICA,

INC., UNITED PARCEL SERVICE, Defendants -

Appellees (02-2545): Thomas Blumeyer Weaver, Robert

A. Kaiser, David W. Welch, Daniel K. O'Toole,

ARMSTRONG & TEASDALE, St. Louis, MO. William

H. Brown, III, Jennifer J. Nestle, Deena Jo Schneider,

SCHNADER & HARRISON, Philadelphia, PA.

For CHARLES CARTWRIGHT, Movant Below -

Appellant (02-2545): Roxanne’ Barton Conlin,

ROXANNE BARTON CONLIN & ASSOCIATES,

Des Moines, IA. Virginia M. O’Leary, Kevin S.

Kinkade, Kelly A. Lonnberg, O'LEARY &

ASSOCIATES, Oakland City, IN. John J. Carey,

— — ——-———

Joseph Peter Danis, CAREY & DAN IS, St. Louis, MO.

Darlene Robinson, Oakland City, IN. Paul J. Vaporean,

Jack J. Cavanagh, Jr.. CAVANAGH & HARTWEGER,

St. Louis, MO. Charles H. Staples, BENCHMARK

LEGAL SERVICES, LLC, Virginia Beach, VA. David

B. Rubin, Metuchen, NJ. Michael J. Flannery, DAVID

DANIS LAW FIR\M, St. Louis, MO.

For BEDELL FINLEY, FRANK JACKSON , Movant

Below - Appellant (02-2545): Roxanne Barton Conlin,

ROXANNE BARTON CONLIN & ASSOCIATES,

Des Moines, IA. Virginia M. O’Leary, Kevin S.

Kinkade, Kelly A. Lonnberg, O'LEARY &

ASSOCIATES, Oakland City, IN. John J. Carey,

Joseph Peter Danis, CAREY & DANIS, St. Louis, MO.

Darlene Robinson, Oakland City, IN. Paul J. Vaporean,

Jack J. Cavanagh, Jr., CAVANAGH & HARTWEGER,

St. Louis, MO. Charles H. Staples) BENCHMARK

LEGAL SERVICES, LLC, Virginia Beach, VA.

Michael J. Flannery, DAVID DANIS LAW FIRM, St.

Louis, MO.

For LESLIE MORGAN, Plaintiffs - Appellants (02-

2835): Roxanne Barton Conlin, ROXANNE BARTON

CONLIN & ASSOCIATES, Des Moines, IA. Virginia

M. O’Leary, Kevin S. Kinkade, Kelly A. Lonnberg,

Scott A. Funkhouser, O7LEARY & ASSOCIATES,

Oakland City, IN. John J. Carey, Joseph Peter Danis,

CAREY & DANIS, St. Louis, MO. Darlene Robinson,

Oakland City, IN. Paul J. Vaporean, Jack J. Cavanagh,

Jr., CAVANAGH & HARTWEGER, St. Louis, MO.

Charles H. Staples) BENCHMARK LEGAL

SERVICES, LLC, Virginia Beach, VA. David B.

Rubin, Metuchen, NJ.

For KENNETH STACKER, Plaintiffs - Appellants

(02-2835): Roxanne Barton Conlin, ROXANNE

BARTON CONLIN & ASSOCIATES, Des Moines, IA.

Virginia M. O’Leary, Kevin S. Kinkade, Kelly A.

Lonnberg, Scott A. Funkhouser, O'LEARY &

ASSOCIATES, Oakland City, IN. John J. Carey,

Joseph Peter Danis, CAREY & DANIS, St. Louis, MO.

Darlene Robinson, Oakland City, IN. Paul J. Vaporean,

Jack J. Cavanagh, Jr.. CAVANAGH & ITARTWEGER,

St. Louis, MO. Charles H. Staples; BENCHMARK

LEGAL SERVICES, LLC, Virginia Beach, VA.

For THEODORE BOLDIN, Class Representative of

the Plaintiff Class, Plaintiffs - Appellees (02-2835):

Roxanne Barton Conlin ROXANNE BARTON

CONLIN & ASSOCIATES, Des Moines, IA. Virginia

M. O’Leary, Kevin S. Kinkade, Kelly A. Lonnberg,

Scott A. Funkhouser, O7 LEARY & ASSOCIATES,

Oakland City, IN. John J. Carey, Joseph Peter Danis,

CAREY & DANIS, St. Louis, MO. Darlene Robinson,

Oakland City, IN. Paul J. Vaporean, Jack J. Cavanagh,

Jr. CAVANAGH & HARTWEGER, St. Louis, MO.

Charles H. Staples) BENCHMARK LEGAL

SERVICES, LLC, Virginia Beach, VA.

For UNITED-RARCEL SERVICE, OF AMERICA,

INC., UNITED PARCEL SERVICE, Defendants -

Appellants (02-2835): Thomas Blumeyer Weaver,

Robert A. Kaiser, David W. Welch, Daniel K. O’Toole,

ARMSTRONG & TEASDALE, St. Louis, MO. William

H. Brown, III, SCHNADER & HARRISON,

Philadelphia, PA.

JUDGES: Before MORRIS SHEPPARD ARNOLD,

BEAM, and MELLOY, Circuit Judges. MELLOY,

Circuit Judge, concurring and dissenting.

OPINION BY: BEAM

OPINION: BEAM, Circuit Judge.

Leslie Morgan; Kenneth Stacker, and Theodore Boldin,

black managers at United Parcel Service (UPS),

brought a civil rights action alleging individual and

class claims of employment discrimination under Title

VII and 42 U.S.C. § 1981. These individuals moved for

class certification and the district court partially

granted the motion, certifying four classes of employees

(collectively, “Plaintiffs”). UPS moved for summary

judgment on both the Title VII and the 42 U.S.C. §

1981 class claims or to decertify the class. Plaintiffs

moved for partial summary judgment on their class

claims of racially discriminatory pay. The district court

denied Plaintiffs’ motion, granted summary judgment

to UPS, and denied UPS’s motion to decertify the class.

It held that Plaintiffs had failed to adduce sufficient

evidence of a pattern or practice of class-wide

discrimination. We affirm.

FACTUAL BACKGROUND

UPS delivers packages world-wide for individuals and

businesses. UPS is divided into eleven geographic

regions in the United States, each with a regional

manager. A region is subdivided into approximately six

districts, each with a district manager. The district

managers are responsible for nearly every aspect of

district operations, including picking up, sorting, and

delivering packages, as well as employee development,

promotion, and compensation. There are between sixty

and seventy districts in the United States and each one

varies in geographic size, population density, package

volume, and labor climate. A district is further divided

into divisions, each with a division manager. Divisions

are organized along functional lines with some related

to package operations and some related to supporting

staff.

Two levels of managerial employees exist below the

division level: supervisors and center managers. The

entry level managerial position is a supervisor who

reports to the center manager. The center manager

reports to the division manager, the division manager

to the district manager, and the district manager to the

regional manager.

UPS vests decisionmaking authority in district

managers to promote employees to division manager,

center manager, and supervisor. District managers hold

“People’s Meetings” approximately twice a year, where

they discuss the upward mobility of management

personnel. At these meetings, information is presented

on supervisors and center managers in the district and

their performance and readiness for promotion are

assessed. At some of the meetings, a color photograph

of the individual is displayed. The meeting produces a

list of the employees who the district managers believe

are ready for promotion to managerial positions. Open

positions within the company are not posted. The

district manager may consult the list compiled at the

meetings to determine who will receive a promotion.

PROCEDURAL BACKGROUND

Plaintiffs are all UPS center managers and they allege

that UPS racially discriminated against them in terms

of upward mobility, working conditions, and pay. With

regard to the upward-mobility claim, Plaintiffs argue

that the subjective selection process for managerial

positions at UPS limits the promotion of blacks, which,

in turn, inhibits their overall upward mobility and

causes them to peak in their careers at or below the

center-manager level.

The district court bifurcated the trial into a

liability/injunctive phase, followed by a

remedial/damages phase. Four classes were certified

under Federal Rule of Civil Procedure 23(b)(2) for the

first phase. The court said it would consider certifying

the damages phase as a Rule 23(b)(3) class action if

liability was established. The Title VII denial-of-

upward-mobility class was defined as:

All black salaried full-time employees of UPS

nationwide employed as center managers in Operations

(Package, Hub, Feeder, Air) or Human Resources at

any time between December 20, 1991 and the date of

judgment, and who worked as a supervisory or

managerial employee of UPS for at least five years

without being promoted above the center manager

level.

The Title VII unequal-working-conditions and unequal-

pay class was defined as:

All black salaried full-time employees of UPS

nationwide employed as center managers in Operations

(Package, Hub, Feeder, Air) or Human Resources at

any time between December 20, 1991 and the date of

judgment.

The 42 U.S.C. § 1981 denial-of-upward-mobility class

was defined as:

All black salaried full-time employees of UPS

nationwide employed as center managers in Operations

(Package, Hub, Feeder, Air) or Human Resources at

any time on or after June 17, 1989 and the date of

judgment, and- who worked as a supervisory or

managerial employee of UPS for at least eight years

without being promoted above the center manager

level.

The 42 U.S.C. § 1981 unequal-working-conditions and

unequal-pay class was defined as:

All black salaried full-time employees of UPS

nationwide employed as center managers in Operations

(Package, Hub, Feeder, Air) or Human Resources at

any time on or after November 21, 1991 and the date of

the judgment.

The district court granted a motion by the EEOC to

intervene, but the EEOC is not involved in these

appeals. At the time of the original class certification,

Charles Cartwright was a member of at least two

certified classes. After modification of the certified

classes, the district court ruled that he no longer

qualified as a member of any of the four classes and

thus vacated the order allowing him to intervene.

Frank Jackson was also denied intervenor status. Both

Cartwright and Jackson appeal those decisions. Brian

Aa RA SNS ee,

Needham, Francis Truitt, and Bedell Finley also

sought, but were denied, intervenor status; however,

they are not parties to this appeal. nl

Discovery proceedings produced reports, statistical

analyses, and models of UPS’s employment data and

practices prepared by experts for all parties. Plaintiffs

presented two experts who conducted statistical

analyses: Dr. Weiner and Dr. Stapleton. And the

Defendant offered statistical analyses conducted by its

expert, Dr. Evans. At the close of discovery, UPS

moved for summary judgment on all class claims or to

decertify the classes. Plaintiffs moved for partial

summary judgment on their class claim of

discriminatory pay. UPS also moved to bar the

testimony of two of Plaintiffs’ experts as inadmissible

under Federal Rule of Evidence 702 and Daubert v.

Merrell Dow Pharm., Inc., 509 U.S. 579, 125 L. Ed. 2d

469, 113 S. Ct. 2786 (1993), because of faulty

methodology and data. The district court granted UPS

summary judgment on all class claims and denied

Plaintiffs’ summary judgment motion. The court also

denied as moot UPS’s motions to decertify the class and

to bar Plaintiffs’ expert testimony.

III. DISCUSSION

Plaintiffs claim the district court erred in granting

UPS’s summary judgment motion on each of the three

class claims: (1) denial of overall upward mobility, (2)

working conditions, and (3) pay.

We review de novo a grant of summary judgment to

determine whether a claim is factually supported.

Jackson v. Ark. Dep’t of Educ., 272 F.3d 1020, 1025 (8th

10a

Cir. 2001). Summary judgment “shall be rendered

forthwith if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.” Fed. R.

Civ. P. 56(c). We must view all facts in the light most

favorable to the nonmoving party and give the

nonmoving party the benefit of all reasonable

inferences that can be drawn from those facts. Widoe v.

Dist. # 111 Otoe County Sch., 147 F.3d 726, 728 (8th Cir.

1998). However, “the mere existence of a scintilla of

evidence in support of the plaintiff's position will be

insufficient; there must be evidence on which the jury

could reasonably find for the plaintiff.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 252, 91 L. Ed. 2d 202,

106 S. Ct. 2505 (1986). Therefore, in a motion for

summary judgment, “the judge’s inquiry unavoidably

asks whether reasonable jurors could find by a

preponderance of the evidence that the plaintiff is

entitled to a verdict.” Id.

Plaintiffs’ case centers on discriminatory treatment in

the form of unequal working conditions, promotions,

and pay. More specifically, this class action alleges a

pattern or practice of discrimination with regard to

each of these three aspects of employment. In a

pattern-or-practice class action, the class must prove

that the defendant regularly and purposefully’ treated

members of the protected group less favorably and that

unlawful discrimination was the employer’s ‘regular

procedure or policy.“ EEOC v. McDonnell Douglas

Corp., 191 F.3d 948, 951 (8th Cir. 1999) (quoting Int’]

Bhd. of Teamsters v. United States, 481 U.S. 324, 335,

360, 52 L. Ed. 2d 396, 97 S. Ct. 1843 (1977)). Stated

lla

differently, the class must prove that’ the

“discrimination was the company’s standard operating

procedure-the regular rather than the unusual

practice.“ Craik v. Minn. State Univ. Bd., 731 F.2d 465,

470 (8th Cir. 1984) (quoting Teamsters, 431 U.S. at 336).

Upon an employer’s summary judgment motion, the

plaintiff class must adduce some evidence from which

this conclusion can be drawn. Proving discrimination

that is “isolated or sporadic” is insufficient. McDonnell

Douglas, 191 F.3d at 951 (quoting Cooper v. Federal

Reserve Bank, 467 U.S. 867, 876, 81 L. Ed. 2d 718, 104

S. Ct. 2794 (1984)).

Typically in a case like this one, plaintiffs will offer

statistical evidence of disparities between protected

and unprotected employees who are otherwise similarly

situated. Craik, 731 F.2d at 470. In defense, employers

attempt to show that the plaintiffs’ “proof is either

inaccurate or insignificant.‘ Id. (quoting Teamsters,

431 U.S. at 360). To be legally sufficient, the plaintiffs’

statistical evidence “must show a disparity of

treatment, eliminate the most common

nondiscriminatory explanations of the disparity, and

thus permit the inference that, absent other

explanation, the disparity more likely than not resulted

from illegal discrimination.” Hervey v. Little Rock, 787

F.2d 1228, 1228 (8th Cir. 1986) (quotation omitted). The

bottom-line question in this case is whether Plaintiffs

produced more than a scintilla of evidence showing

UPS engaged in a pattern or practice of discrimination

with regard to the class members. The typical

McDonnell-Douglas burden-shifting framework, while

not irrelevant, is not tremendously helpful in this

context. Craik, 731 F.2d at 470-71 & n.7.

12a

Upward Mobility

Plaintiffs argue that the district court erred in granting

summary judgment to UPS on the denial-of-upward-

mobility claims. Plaintiffs contend they proved

discrimination in upward mobility under both

disparate-impact and disparate-treatment models. Like

the district court, we conclude Plaintiffs have failed to

establish a prima facie case because their evidence of

racial disparities was insufficient, giving rise to no

inference of discrimination.

Initially, Plaintiffs offered a Wilcoxon test performed

by Dr. Weiner. Plaintiffs argue this test showed that it

took longer for black center managers to be promoted

to their first division-level job than it did for white

center managers. However, UPS’s experts pointed out,

and Dr. Weiner admitted, that she did not perform the

correct Wilcoxon test. When Dr. Weiner used the

correct test, she determined that there was no racial

disparity in the pattern of these promotions.

Next, Plaintiffs offered evidence that in thirty-five of

UPS’s districts, there were no blacks promoted to

division manager between 1989 and 1998. The district

court pointed out two problems with this analysis.

First, this tally did not take into account whether there

were any qualified black employees available for

promotion in those districts. UPS’s expert, Dr. Evans,

performed an analysis taking the availability of

qualified black employees into account and determined

that the number of districts in which no blacks were

promoted was actually lower than would be expected.

Second, even a successful showing of discrimination in

some districts does not prove nationwide

ee eeeeeeeeeerrereownr rr eam

13a

discrimination. In fact, as the district court pointed out,

proof of discrimination in some districts and not others

tends to defeat the argument that discrimination was

UPS’s nationwide standard operating procedure.

In addition, Plaintiffs presented charts comparing the

representation of blacks at the division-manager level

to the percentage of all black officials and managers,

operatives and laborers, blue collar workers, and the

total UPS workforce. The district court properly found

that a racial disparity amongst these populations would

not give rise to an inference of discrimination. “The

‘proper comparison [is] between the racial composition

of [the at-issue jobs] and the racial composition of the

qualified . . . population in the relevant labor market.”“

Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 650,

104 L. Ed. 2d 733, 109 S. Ct. 2115 (1989) (quoting

Hazelwood Sch. Dist. v. United States, 483 U.S. 299,

308, 53 L. Ed. 2d 768, 97 S. Ct. 2736 (1977)) (alterations

in original). “Statistics based on an applicant pool

containing individuals lacking minimal qualifications for

the job would be of little probative value.” Watson v.

Fort Worth Bank & Trust, 487 U.S. 977, 997, 101 L. Ed.

2d 827, 108 S. Ct. 2777 (1988). The upward-mobility

classes consist of center managers who have not been

promoted to division manager. Thus, the probative

inquiry involves a comparison between the percentage

of division managers who are black and the percentage

of qualified employees who are black in the population

from which division managers are chosen. As the

district court held, “plaintiffs reliance on a bottom line

racial imbalance in the workforce is insufficient to

establish that blacks are less likely to be promoted.”

Morgan v. UPS, 143 F. Supp. 2d 1143, Mem. & Order at

12 (E.D. Mo. 2000).

l4a

Finally, Dr. Weiner presented a cohort analysis

suggesting it takes black employees significantly longer

to be promoted from their first full-time supervisor

position to division manager than it takes similarly

situated white employees. However, Dr. Weiner

admitted that the data she looked at “is not appropriate

for examining the time to promotion from center

manager to division level manager,” 143 F. Supp. 2d at

1150, and center managers are the class of employees at

issue. UPS’s expert, Dr. Evans, performed an analysis

on the correct set of promotions and concluded that it

actually takes whites longer than blacks to get

promoted from center manager to division manager.

Plaintiffs’ proof is insufficient under both the disparate-

treatment and disparate-impact models. To avoid

summary judgment under the disparate-treatment

model through the-use of statistics, Plaintiffs must

show that “when the proper labor market is considered,

the statistical evidence is sufficient to raise an inference

of discrimination.” Paxton v. Union Nat’l Bank, 688

F.2d 552, 564 (8th Cir. 1982). As discussed above, Dr.

Weiner’s correct Wilcoxon test showed no racial

disparity, and her other analyses do not take into

account the proper labor market--available qualified

employees. Thus, the claim fails under the disparate-

treatment model.

And, to the extent Plaintiffs raise a disparate-impact

claim, n2 they have failed to “show relevant statistical

disparities permitting an inference of racial imbalance

in defendant’s workforce.” Emanuel v. Marsh, 897 F.2d

1435, 1439 (8th Cir. 1990). The relevant inquiry was

whether promotions from center to division manager

were racially discriminatory, taking into account the

15a

proper pool of available qualified employees. The

evidence presented of overall racial imbalances and

even more general trends in upward mobility is

insufficient. Plaintiffs did not adduce sufficient evidence

to avoid summary judgment.

Working Conditions

The district court ruled that Plaintiffs presented

insufficient evidence to prove a class-based claim of

unequal working conditions. Plaintiffs argue that the

district court erred because (1) UPS did not move for

summary judgment on working conditions, and (2)

Plaintiffs presented sufficient evidence to survive

summary judgment.

UPS’s motion for summary judgment was sufficient.

UPS moved for summary judgment “on Class Plaintiffs’

Amended and Supplemental Complaint,” which

encompassed claims of unequal working conditions.

UPS also specifically mentioned working conditions in

its motion and asked the court to strike those class

claims as unsupported. Plaintiffs were aware that the

working-conditions claim was at issue because in their

response to the summary judgment motion they

discussed working conditions evidence and cited the

record on the issue. We therefore agree with the

district court that UPS moved for summary judgment

on this claim. |

We also agree that Plaintiffs’ proof on the working

conditions was insufficient to survive summary

judgment. While Plaintiffs correctly note that

statistical evidence is not required to prove pattern-or-

practice discrimination, Catlett v. Mo. Highway &

l6a

Transp. Comm’n, 828 F.2d 1260, 1265 (8th Cir. 1987),

the anecdotal evidence here is not enough to support

their claims. Plaintiffs’ evidence consists of statements

by individual class members made in response to

interrogatories, unsigned by the class members. The

district court did not err in finding this evidence

insufficient. The grant of summary judgment for UPS

on the working-conditions claim is therefore affirmed.

Pay

Plaintiffs argue that UPS was not entitled to summary

judgment on the discriminatory pay claim. They

contend that they presented sufficient evidence of a

pattern or practice of discrimination with regard to pay

in the form of two multiple regression analyses. They

say that those analyses give rise to a reasonable

inference of discrimination because they show UPS

paid white center managers more than black center

managers after controlling for many legitimate reasons

for such a pay disparity.

A multiple regression analysis attempts to reveal

relationships between explanatory variables and a

dependent variable. Daniel L. Rubinfeld, Reference

Guide on Multiple Regression, in Federal Judicial

Center, Reference Manual on Scientific Evidence 181

(2d ed. 2000). Explanatory variables are the expected

influences on the dependent variable. Id. In this case,

pay is the dependent variable. The explanatory

variables are what bring race into the picture. In effect,

the regression controls for the explanatory variables--

those factors that one would expect to influence pay--

and then compares the wages of white and black

employees. “At best, the regression equation used to

17a

assess discrimination in compensation levels can be

viewed as a good representation, based on available

information, of what factors seem to be related to

compensation levels, on average.” Ramona L. Paetzold

& Steven L. Willborn, The Statistics of Discrimination:

Using Statistical Evidence in Discrimination Cases §

6.01, p.3 (2002). Thus, the selection of explanatory

variables is quite important. However, even the best

regression equation cannot directly show discrimination

because it cannot prove causation. The most it can show

is a correlation that can give rise to an inference of

discrimination. Id. § 2.05; Rubinfeld, ante, at 183-85.

Whether such an inference is reasonable is the legal

question we address.

All three experts performed regression analyses, and

all agreed that this form of statistical analysis was

proper. But the experts came to different conclusions

because each of them included different explanatory

variables. Plaintiffs’ first expert, Dr. Weiner, found a

statistically significant pay disparity of between $ 1,275

and $ 2,050 per year. She included two years of

measured performance, n3 pay region, and time as a __

supervisor as explanatory variables. Plaintiffs’ other

expert, Dr. Stapleton, found a statistically significant

pay disparity of between $ 562 and $ 852 per year. He

included two years of measured performance,

geographic district, tenure with UPS, time as a center

manager, and whether the employee was currently in

Human Resources, Air Operations, or Package

Operations.

UPS expert Dr. Evans’ preferred method found

statistically significant pay differentials in each year

except 1995, for which he found no statistically

eee cea

18a

significant difference in pay. This analysis was achieved

using as variables “union tenure, parttime supervisor

tenure, full-time supervisor tenure, center manager

tenure, an indicator for having previously been a

division manager and others for having been in air

operations or having been a Package Operations

Supervisor, indicators for the various districts, and

current and past performance.” Dr. Evans concluded

that his study demonstrated there was no statistically

significant difference in pay between black and white

center managers during the class period. He reasoned

that 1995 was the only year for which he could do a

proper analysis, because it was the only year for which

there was sufficient measured performance data. In

other years, he said, the analysis incorrectly indicated a

disparity because insufficient measured performance

data existed. Dr. Evans admitted that when no

performance data was included, a_ statistically

significant pay disparity existed.

Because the only evidence that substantiates Plaintiffs’

claim is their regression analyses, and because this sort

of evidence is subject to Daubert, two issues arise: (1)

admissibility and (2) the propriety of summary

judgment. If the analyses were not admissible, then

summary judgment was appropriate. If the analyses

were admissible, summary judgment may or may not

be appropriate, depending on whether they create a

reasonable inference of a pattern or practice of

disparate pay.

It is not clear whether the district court deemed

Plaintiffs’ regressions inadmissible or concluded that

they did not create a genuine issue of fact. The district

court found that “the variables are properly included in

19a

Dr. Evans’ analysis.” Morgan, 143 F. Supp. 2d at 1151.

And it concluded, “defendants have shown that any pay

disparity between black and white center managers is

caused by factors other than race.” 143 F. Supp. 2d at

1152.

We defer to admissibility determinations under an

abuse-of-diseretion standard of review, even at

summary judgment. Gen. Elec. & Co. v. Joiner, 522 US.

136, 148, 189 L. Ed. 2d 508, 118 S. Ct. 512 (1997). The

district court did not mention Daubert, but its analysis

_ plainly hinges on problems with Plaintiffs’ analyses that

are arguably methodological--what explanatory

variables are proper. Daubert, 509 U.S. at 592 (stating

that admissibility determinations “entail[] a

preliminary assessment of whether the reasoning or

methodology underlying the testimony is scientifically

valid and of whether that reasoning or methodology

properly can be applied to the facts in issue”); accord

Eckelkamp v. Beste, 315 F.3d 863 (8th Cir. 2002)

(applying deferential review to evidentiary

determination plainly premised on the methodolgical

underpinnings of an expert’s opinion). But because the

district court denied UPS’s motions relating to Daubert

and Rule 702 as moot, n4 we are not inclined to accord

the trial court’s decision that degree of deference.

Moreover, the question of what explanatory variables

should be included -in a particular regression normally

“affects the analysis’ probativeness, not its

admissibility.” n5 Bazemore v. Friday, 478 U.S. 385,

400, 92 L. Ed. 2d 315, 106 S. Ct. 3000 (1986).While the

omission of variables from a regression analysis may

render the analysis less probative than it otherwise

might be, it can hardly be said, absent some other

infirmity, that an analysis which accounts for the major

20a

factors must be considered unacceptable as evidence of

discrimination. It is clear that a regression analysis

that includes less than all measuarable variables may

serve to prove a plaintiff's case.

Id. at 400 (quotation omitted).

Admissible regressions, however, do not necessarily

mean summary judgment is inappropriate. See

Daubert, 509 U.S. at 596 (“In the event the trial court

concludes that the scintilla of evidence presented

supporting a position is insufficient to allow a

reasonable juror to conclude that the position more

likely than not is true, the court remains free to...

grant summary judgment... .”). While a trial court

may not weigh the evidence or consider credibility at

summary judgment, Anderson, 477 U.S. at 255, it can

use the scale to a limited degree; it must ensure that

the nonmoving party has at least a scintilla of evidence

in support of its position. In so doing, “the court must

draw all reasonable inferences in favor of the

nonmoving party.” Reeves v. Sanderson Plumbing

Prods., Inc., 5380 U.S. 138, 150, 147 L. Ed. 2d 105, 120 S.

Ct. 2097 (2000); accord Carter v. Chrysler Corp., 178

F.3d 693, 701 (8th Cir. 1999).

“Gross statistical disparities . . . alone may in a proper

case constitute prima facie proof of a pattern or practice

of discrimination.” Hazelwood Sch. Dist. v. United

States, 483 U.S. 299, 307-08, 53 L. Ed. 2d 768, 97 S. Ct.

2736 (1977). And the usefulness of statistics “depends

on all of the surrounding facts and circumstances.”

Teamsters, 481 U.S. at 340. Here, the regression

analyses are all the evidence of discriminatory pay that

Plaintiffs have, so those analyses must show a gross

2la

statistical disparity and this must be a proper case--a

case in which the gross disparity can give rise to a

reasonable inference that paying blacks less because

they are black is UPS’s standard operating procedure.

A reasonable inference of such discrimination does not

arise in this case. First, Plaintiffs’ regressions fail to

take into account past pay, performance, or both.

Second, when evaluated in the context of the

undisputed facts, the regressions fail to create a triable

case of pattern-or-practice discrimination.

Evaluating the prepriety of explanatory variables is a

somewhat comparative exercise. When a defendant

attacks a plaintiff's regression, he must typically do

more than point out the flaws in his opponent’s analysis.

Instead, the defendant must show that the omission had

an impact on the result. See Catlett, 828 F.2d at 1266.

n6 But, “there may be a few instances in which the

relevance of a factor . . . is SO obvious that the

defendants, by merely pointing out its omission, can

defeat the inference of discrimination created by the

plaintiffs’ statistics.” Palmer vy. Shultz, 259 U.S. App.

D.C. 246, 815 F.2d 84, 101 (D.C. Cir. 1987).

Selecting proper explanatory variables is a function of

the particular employer’s compensation determinations.

Under UPS's pay scheme, center-manager pay has two

components: base pay and Salary increases. A center

manager’s base pay is determined when he a center

Manager, subject to later Salary increases based on

performance. An individual’s base pay remains constant

during his tenure as a center manager. Center-manager

base pay is calculated in part by using the individual’s

prior pay, generally as a supervisor. Supervisor pay has

22a

the same two elements--base pay at the time of

promotion and salary increases based on performance

during one’s tenure as a supervisor. Supervisor base

pay is calculated using that individual’s prior hourly

wage. Individuals in certain operations (e.g., air

operations) are paid more as a part of their job; thus,

their hourly rate, and supervisor and center-manager

base pay are higher. Union membership could have a

similar effect.

The discrimination alleged in this claim is that black

center managers, between 1991 and the time of

judgment, were paid less than similarly situated white

center managers because they were black. All experts

agree that their regressions revealed no racial disparity

in terms of center-manager pay raises for the class

period. So in order for the pay of black class members

to be lower than that of white center managers, the

discrimination had to occur with regard to center-

manager base pay. Because the base pay is set

according to past pay, variable(s) representing that

factor are important.

As UPS points out, both ‘Dr. Weiner and Dr. Stapleton

excluded past pay from their regressions. Dr. Stapleton

admitted that if past pay was included in the analysis,

then no statistically significant disparity between white

and black pay existed. n7 Plaintiffs argue that the

exclusion was justified under Bazemore v. Friday, 478

U.S. 385, 92 L. Ed. 2d 315, 106 S. Ct. 3000 (1986). We

disagree.

Bazemore’s relevance involves the somewhat related

questions of what role past pay has in a pay

discrimination case and when an explanatory variable is

23a

properly omitted from a regression analysis. Plaintiffs

correctly note that Bazemore means that past

discriminatory pay cannot be a legitimate excuse for a

later pay disparity. 478 U.S. at 394-96. Regression

analyses in discrimination cases attempt to control for

the legitimate reasons for pay disparities through the

use of explanatory variables. But, illegitimate reasons--

reasons themselves representative of the unlawful

discrimination at issue--should be excluded from the

regression (or otherwise dealt with) to avoid

underestimating the significance of a disparity. See

Paetzold & Willborn, ante § 6.13 (discussing the

problem of tainted variables). Thus, a regression could

be probative of discrimination without taking into

account past pay if that past pay was set according to

race. This is because past discriminatory pay makes

current pay disparities actionable n8 under Bazemore,

and because the variable can be omitted from a

regression if tainted by the discrimination at issue.

In Bazemore, both the district court and the court of

appeals found that past pay was set according to race.

478 U.S. at 390-91, 394, 401-02. Thus, the salary figures

used in the plaintiffs’ regression in that case were

proper even though past discriminatory pay accounted

for some of the later disparity. In other words,

Bazemore’s regressions did not need to account for past

pay because there was evidence of past discrimination.

Here, Plaintiffs would be excused from accounting for

past pay if they could show past discrimination. We see

no such evidence.

Plaintiffs appear to justify the omission of past pay by

pointing to the class period disparity that their experts

found, inferring discrimination, and claiming that a

24a

reasonable inference is that past pay disparities were

also race based. This argument is circular. The

correlation between race and center-manager base pay

from 1991 on exists only if past pay is omitted from the

regression. Past pay can only be omitted if it is

somehow linked to race. Plaintiffs’ only evidence of

discrimination in past pay is the apparent correlation

between race and center-manager base pay during the

class period. But that correlation is what Plaintiffs have

evidence of only by omitting past pay. Tney have no

evidence, statistical or otherwise, that past pay

disparities were racially discriminatory. This sort of

bootstrapping cannot create an_ inference’ of

discrimination with regard to either class-period base

pay or past pay.

The variables Plaintiffs did use also do not account for

the role of past pay. For example, because performance

affects past pay, performance variables arguably could

be proxies for past pay. n9 Dr. Stapleton appreciated

this aspect of the case but refused to include “lagged”

performance measures precisely because “it’s really

just explaining current pay experience by past pay

experience.” And he offered this past pay rationale as

his reason for omitting most other experiential factors

that affect pay at UPS. As explained above, this

observation could be meaningful if there had been some

evidence that past pay experience was tainted by

discrimination. There was none here and the

assumption that past pay should be omitted, as well as

most factors related to it, was unjustified.

There are a variety of other concerns that reduce the

import of Plaintiffs’ regressions. The performance data,

which was included in all experts’ regressions to some

25a

extent, poses a problem. Performance data from

performance evaluations that UPS conducted existed

for 1991, 1992, 1993, 1994, and 1995. n10 Performance

was certainly relevant to the employer’s pay decisions,

but it appears to us that performance could only affect

center-manager base pay indirectly--by influencing past

supervisor pay through past supervisor — salary

increases, past hourly rates, or both. So Plaintiffs’

regression should have utilized past performance as far

back as was available, rather than just the two years

they did include.

UPS offered its own regression indicating the omission

had an impact. Dr. Evans conducted a regression for

1995, included all available performance data, and

concluded that no statistically significant pay disparity

remained--i.e., the inclusion of performance eliminated

the significance of race. We think this was sufficient to

show the adverse impact of omitting available

performance data and showed that other performance,

even though not measured by evaluations, was

important. At the very least, the fact that no

correlation existed in 1995 severely damages the

inference that UPS had a _ nationwide standard

operating procedure of paying blacks less than whites.

We also have no indication of which employees’

performance data was included in the regressions.

Given the nature of the claim--that center managers’

base pay was lower for blacks than whites--and the fact

that center-manager base pay is set only at the time of

promotion, performance prior to the time of promotion

is all that is relevant. Thus, for class members that

were promoted to center managers before 1991, there

are no performance evaluations from which to draw

26a

data. And for individuals that were promoted after

1991, unl 1995, the only relevant performance data

comes from pre-promotion evaluations. Post-promotion

performance could simply have no affect on base pay.

And such performance seems too attenuated an

indicator of pre-promotion performance to be included.

The nature of UPS’s management system also makes a

claim of nationwide pattern-or-practice discrimination

difficult. Pay was set according to a decentralized

scheme in which district managers were given the

discretion to set pay. With approximately seventy

districts in the United States, each with their own

manager, the statistical evidence would have to be

quite strong to raise, by itself, an inference of

nationwide discrimination.

8 i ler 3h taaasalineee a -

One of the most important flaws in Plaintiffs’ case is

that they adduced no individual testimony regarding

intentional discrimination. As mentioned above,

Plaintiffs’ purported anecdotal evidence was

insufficient for the working-conditions claim, and we

see none with regard to pay. Although such evidence is

not required, the failure to adduce it “reinforces the

doubt arising from the questions about validity of the

statistical evidence.“ EEOC v. Sears, Roebuck & Co.,

839 F.2d 302, 311 (7th Cir. 1988) (quoting Griffin v.

Board of Regents, 795 F.2d 1281, 1292 (7th Cir. 1986)).

Such evidence would bring the “cold numbers

convincingly to life.” Teamsters, 431 U.S. at 339.

Finally, as explained above, there was no apparent

discrimination with regard to pay raises, promotions, or

working conditions. Statistical evidence like that

adduced here, at best, can only show a correlation

ll |

(27a

between race and the dependent variable that gives

rise to a further inference of pattern-or-practice

discrimination in a proper case. Here the flaws are too

many and the probative value too slight for Plaintiffs’

regressions to carry the day by a preponderance of the

evidence in the context of this case. It would be

manifestly unreasonable to infer from Plaintiffs’

regression analyses that UPS set center managers’

base pay lower for blacks as a matter of practice all

across the country during the period in question.

Accordingly, summary judgment was appropriate.

Remaining Issues

We affirm the two remaining issues on appeal. First,

the district court did not err in denying the motions to

intervene brought by Frank Jackson and Charles

Cartwright. Second, with regard to UPS’s cross-appeal,

the district court properly denied as moot the motion to

decertify the classes.

CONCLUSION

We affirm.

Footnotes

nl Bedell Finley is identified as an appellant in the

notice of appeal, but no brief has been filed on Finley’s

behalf.

n2 It is difficult to understand this claim as one of

disparate impact. Plaintiffs’ claim as to the subjective

decision making process is not that this facially race-

neutral process has an adverse impact on blacks and the

28a

process cannot be justified by business necessity.

Rather, Plaintiffs claim the subjective decisionmaking

resulted in blacks remaining in center-manager

positions longer than whites before they were

promoted to the division-manager level. We read

Plaintiffs’ argument as alleging disparate treatment

through the subjective decisionmaking process; that is,

that the subjective selection process provided the

opportunity for UPS to choose not to promote some

employees because they were black--to discriminate on

account of race.

n3 Performance was quantified using performance

evaluations that UPS conducted on a yearly basis from

1991 until 1995.

n4 The import of the district court’s mootness rationale

is questionable. On one hand, a Daubert determination

in the course of the summary judgment ruling would

moot the Daubert motion. But, on the other hand, a

summary judgment ruling that finds summary

judgment appropriate even if the evidence is admissible

would have the same effect. In any event, UPS has not

cross-appealed the denial of its evidentiary motions.

n5 Some regressions can be so incomplete in terms of

explanatory variables that they lose all probative value

with regard to the question of discrimination and are,

thus, inadmissible. Bazemore v. Friday, 478 U.S. 385,

400 n.10, 92 L. Ed. 2d 315, 106 8S. Ct. 3000 (1986).

n6 Plaintiffs appear to be of the opinion that the use of

an adversary’s expert testimony to evaluate the

admissibility or probative value of their regressions

constitutes a departure from the proper summary

29a

judgment standard. We disagree. It is true that courts

may neither weigh the evidence nor make credibility

determinations at summary judgment. But, as

mentioned, the propriety of summary judgment must

be, to a limited extent, based on the probative value of

the nonmovant’s evidence. We can discern no

requirement that experts’ testimony such as this must

be considered in isolation when a district court assesses

probative value.

n7 The relationship between past pay and current pay

is of such obvious relevance that the defendant should

not have to show its effect to impugn the regression.

See Palmer, 815 F.2d at 101. Additionally, when a

plaintiff's expert admits that including an explanatory

variable would explain the apparent disparity, we do

not think a defendant is barred from arguing its

omission was erroneous simply because he does not

present that factor and its effect in his analysis.

n8 In Bazemore, the past discriminatory pay was

inactionable because it occurred before Title VII

governed the public employer being sued. Here, pre-

1991 (i.e., preclass period) pay, even if discriminatorily

set, is inactionable because the limitations period has

run. It is the post-1991 (ie., the class period)

discrimination that is at issue; thus, Plaintiffs’ asserted

disparity during that period must be linked to race,

which under’ Bazemore_’ could _ include past

considerations of race with regard to pay.

n9 Interestingly, given the problems in_ the

performance data explained below, past pay rates may

have been a dependable variable to use as a measure of

performance, possibly in addition to the performance

30a

data that was available.

nl0 Even in those years the data was incomplete.

MELLOY, Circuit Judge, concurring and dissenting.

I concur in the majority opinion on the upward mobility

and working conditions claims. However, I respectfully

dissent from the majority opinion as to the equal pay

claim. I believe the Plaintiff has generated a

submissible case on that issue. I would reverse as to the

equal pay claim and remand for trial.

This is a case in which all the experts, Defendant’s

expert included, found a. statistically significant

difference between pay of white center manager and

black center managers at UPS in all years at issue

except 1995, for which Defendant’s expert found there

was no statistically significant difference in pay.

Both parties presented admissible evidence on the issue

of pay disparity. All three experts used multiple

regression analyses to determine whether the

difference in pay was attributable to factors other than

race. Each expert identified the factors he or she found

to be relevant in determining pay and controlled for

these factors in their analyses. Many of the same

factors were included in the different studies, such as

pay region, performance evaluations, and tenure. The

main disagreement between the experts related to

performance evaluation data. The issue on appeal came

down to whether all available performance data should

be included in the analyses or whether two years of

performance data was sufficient.

dla

None of the experts included past pay as a factor in

their analysis. However, the majority focuses on this

would-be factor and upholds summary judgment for the

Defendants based on the Plaintiffs’ omission of past

pay. They do so despite the fact that all three qualified

experts chose not to include past pay as a factor. They

do so while acknowledging that “it is clear that a

regression analysis that includes less than ‘all

measurable variables’ may serve to prove a plaintiff's

case.” Bazemore v. Friday, 478 U.S. 385, 400, 92 L. Ed.

2d 315, 106 S. Ct. 3000 (1986).

At the summary judgment stage, “credibility

determinations, the weighing of the evidence, and the

drawing of legitimate inferences from the facts are jury

functions, not those of the judge . . . . The evidence of

the non-movant is to be believed, and all justifiable

inferences are to be drawn in his favor.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202,

106 S. Ct. 2505 (1986). The question decided by the

majority, whether past pay must be added as a factor in

order for the Plaintiffs to prove a prima facie case, is a

quintessential jury issue.

In considering the evidence in the light most favorable

to the Plaintiffs, I would find that the Plaintiffs have

generated a jury question on the issue of whether a

prima facie case of pay disparity exists. The issue of

whether Plaintiffs’ duly-qualified experts considered all

the appropriate variables is an issue for the jury.

Accordingly, I would reverse the grant of summary

judgment for the Defendants on the equal pay claim.

32a

Case No. 4:94-CV-1184 (CEJ)

UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF MISSOURI, EASTERN

DIVISION

LESLIE MORGAN, et al.,

Plaintiffs,

UNITED PARCEL SERVICE OF AMERICA, INC.,

and UNITED PARCEL SERVICE, INC.,

Defendants.

June 26, 2000, Decided

June 26, 2000, Filed

COUNSEL: For LESLIE MORGAN, KENNETH

STACKER, THEODORE BOLDIN, plaintiffs: Kevin

S. Kinkade, Virginia M. O’Leary, Kelly A. Lonnberg,

O’LEARY AND ASSOCIATES, Darlene Robinson,

Oakland City, IN.

For VERNON TAYLOR, plaintiff: Kevin S. Kinkade,

Virginia M. O’Leary, Kelly A. Lonnberg, O’ LEARY

AND ASSOCIATES, Oakland City, IN.

For LESLIE MORGAN, KENNETH STACKER,

THEODORE BOLDIN, plaintiffs: Jack J. Cavanagh,

Jr. Paul J. Vaporean, CAVANAGH AND

HARTWEGER, LLC, John J. Carey, Joseph P. Danis,

CAREY AND DANIS, St. Louis, MO.

For LESLIE MORGAN, KENNETH STACKER,

THEODORE BOLDIN, VERNON - TAYLOR,

33a

plaintiffs: Charles H. Staples, BENCHMARK LEGAL

SERVICES, LLC, Virginia Beach, VA.

For LESLIE MORGAN, KENNETH STACKER,

VERNON TAYLOR, plaintiffs: Roxanne Barton

Conlin, Des Moines, IA.

For LESLIE MORGAN, KENNETH STACKER,

VERNON TAYLOR, plaintiffs: David B. Rubin,

Metuchen, NJ.

For BENNIE CLARK, JOSEPH HAWKINS,

ENOCH LOVE, intervenor plaintiffs: Kevin 5S.

Kinkade, Virginia M. O’Leary, Kelly A. Lonnberg,

O’LEARY AND ASSOCIATES, Darlene Robinson,

Oakland City, IN.

For EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION, intervenor plaintiff: Donna L. Harper,

Melvin D. Kennedy, Jan Shelly, EEOC, St. Louis, MO.

For UNITED PARCEL SERVICE OF AMERICA,

INC., UNITED PARCEL SERVICE, defendants:

Robert A. Kaiser, Daniel K. O’Toole, David W. Welch,

Valerie M. Davis, ARMSTRONG TEASDALE, LLP,

St. Louis, MO.

For UNITED PARCEL SERVICE OF AMERICA,

INC., UNITED PARCEL SERVICE, defendants:

William H. Brown, III], SCHNADER AND

HARRISON, Philadelphia, PA.

For BEDELL FINLEY, FRANK JACKSON,

movants: Virginia M. O’Leary, O’ LEARY AND

ASSOCIATES, Darlene Robinson, Oakland City, IN.

34a

JUDGES: CAROL E. JACKSON, UNITED STATES

DISTRICT JUDGE.

OPINION BY: CAROL E. JACKSON

OPINION:

MEMORANDUM AND ORDER

This matter is before the Court on various motions. All

matters have been fully briefed.

Plaintiffs bring this action pursuant to the Civil Rights

Act of 1964, as amended, 42 U.S.C. § 2000e et seq.

(“Title VII”), and 42 U.S.C. § 1981, alleging individual

and class claims of employment discrimination. nl In

addition to compensatory and punitive damages,

plaintiffs seek equitable relief.

On October 30, 1996, the Court conditionally certified

four classes of present and former United Parcel

Service, Inc. (UPS) employees. The Court ordered

bifurcation of the trial, severing the issues of liability

and injunctive relief from the damages phase of the

litigation. Further, the Court certified only the issue of

liability and the request for injunctive relief as a Rule

23(b)(2) class action, reserving for future consideration

certification of the damages issue. On April 25, 1997, the

Court entered an order modifying the four classes.

In Count I, plaintiffs claim that UPS has violated Title

VII by discriminating against black salaried employees

nationwide in the implementation of pay and promotion

policies. Specifically, plaintiffs allege that UPS

systematically promotes black salaried employees more

—

35a

slowly and in smaller numbers than white salaried

employees. The plaintiffs allege that through subjective

selection procedures UPS retards and limits the

advancement of black salaried employees. As a result,

plaintiffs allege that black salaried employees “peak” at

the position of center manager or below. The plaintiffs

further allege that black center managers are paid less

than simila:iy-situated white center managers. The

plaintiffs allege that these practices are the result of a

nationwide policy of discrimination.

As to the Title VII denial of upward mobility claim, the

Court certified a class as follows:

With respect to the Title VII claim of denial of overall

upward mobility, a class is certified consisting of all

black salaried full-time employees of UPS nationwide

employed as center managers in Operations (Package,

Hub, Feeder, Air) or Human Resources at any time

between December 20, 1991 and the date of judgment,

and who worked as a supervisory or managerial

employee of UPS for at least five years without being

promoted above the center manager level.

As to the Title VII unequal working conditions and

unequal pay claims, the Court certified a class as

follows:

With respect to the Title VII claims of unequal working

conditions and unequal pay, a class is certified

consisting of all black salaried full-time employees of

UPS nationwide employed as center managers in

Operations (Package, Hub, Feeder, Air) or Human

Resources at any time between December 20, 1991 and

the date of judgment.

36a

In Count III, plaintiffs allege that they have been

denied overall upward mobility and have been

subjected to unequal pay and discriminatory working

conditions in violation of 42 U.S.C. § 1981. Specifically,

the plaintiffs allege that UPS has refused to contract

with black salaried employees for positions above the

center manager level. The plaintiffs claim that this

refusal has denied them the opportunity to participate

in stock option purchase programs and _ in

decisit:making regarding the promotion of salaried

employees.

As to the 42 U.S.C. § 1981 denial of upward mobility

claim, the Court certified a class as follows:

With respect to the 42 U.S.C. § 1981 claim of denial of

overall upward mobility, a class is certified consisting of

all black salaried full-time employees of UPS

nationwide employed as center managers in Operations

(Package, Hub, Feeder, Air) or Human Resources at

any time on or after June 17, 1989 and the date of

judgment, and who worked as a supervisory or

managerial employee of UPS for at least eight years

without being promoted above the center manager

level.

As to the 42 U.S.C. § 1981 unequal working conditions

and unequal pay claims, the Court certified a class as

follows:

With respect to the 42 U.S.C. § 1981 claims of unequal

working conditions and unequal pay, a class is certified

consisting of all black salaried full-time employees of

UPS nationwide employed as center managers in

Operations (Package, Hub, Feeder, Air) or Human

SRO AUD SUS SOOO AAS AL AATEC: OTERO AR eT eee en

er a en

37a

Resources at any time on or after November 21, 1991

and the date of the judgment.

Two of the named plaintiffs, Leslie Morgan and

Kenneth Stacker, also bring individual claims under

Title VII. In addition, plaintiffs Morgan, Stacker, and

Theodore Boldin bring individual § 1981 claims. In

Count II, plaintiff Vernon Taylor asserts an individual

claim that he was terminated based on his race, in

violation of Title VII. In Count IV, Taylor asserts an

individual claim of unlawful employment practices

under 42 U.S.C. § § 1981 and 198la. Plaintiffs Bennie

Clark, Joseph Hawkins, and Enoch Love were granted

permission to intervene to assert individual claims of

failure to promote and unequal pay under Title VII and

§ 1981. The Court also permitted intervention by the

Equal Employment Opportunity Commission (EEOC).

I. BACKGROUND

UPS has eleven geographical regions in the United

States. A region manager presides over each of the

eleven regions. Each region has approximately six

districts. The company has a total of more than seventy

districts. A district manager presides over each district.

Each district is subdivided into divisions which are

responsible for different aspects of the defendants’

business operations. Each division has a division

manager who reports to the district manager. The

divisions that are responsible for the pickup, sorting

and delivery of packages are called package operations

divisions. Each district has several package operations

divisions. For example, in the Missouri District there

are seven package operations divisions each of which is

responsible for a designated geographic area within the

38a

district. Within each package operations division are

six to eight package operations centers each supervised

by a center manager. The entry-level management

position at UPS is supervisor. Supervisors report to

center managers.

UPS vests authority in district managers to promote

employees to managerial positions at the level of

division manager and below. In making these decisions,

each district manager utilizes a procedure known as

“People’s Meetings.” During these meetings, held

approximately twice a year in each district, information

is presented on each supervisor and center manager in

the district. During at least some of the meetings, while

the individual’s performance and_ readiness for

promotion is discussed, a color photograph of the

person is displayed. As a result of the meeting, a list is

compiled of the employees deemed most ready for

promotion. When a promotional opportunity arises, the

district manager consults the list and determines who

will receive the promotion. Open positions are not

posted. The decision to promote a division-level

manager to a higher position is made outside of the

district.

UPS evaluated its employees until 1993 using the

Management Development Profile Analysis (MDPA),

and then phased in the Career Development

Management Appraisal (CDMA), which is copyrighted

by UPS and is used nationwide. Both scales are six-

point scales. Each managerial employee uses the

MDPA, and later the CDMA, to evaluate the employees

he or she supervises. For example, the district manager

evaluates division-level managers, division-level

managers evaluate center-level managers, and center-

39a

level managers evaluate supervisor-level managers. An

employee’s salary is directly linked to the employee’s

performance rating on the CDMA or MDPA. The rating

dictates the range of salary increase available to the

employee. For example, an employee who received a 5

on her CDMA or MDPA would be eligible for a 6% to

7% increase. Based on these guidelines, managers

recommend raises for the employees they supervise.

The district manager approves all salary increases.

II. DISCUSSION

UPS moves for summary judgment as to both the Title

VII and the § 1981 class claims or, in the alternative, to

decertify the class.

Rule 56(c) of the Federal Rules of Civil Procedure

provides that summary judgment shall be entered “if

the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if

any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a

judgment as 3 matter of law.” In ruling on a motion for

summary judgment the court is required to view the

facts in the light most favorable to the non-moving

party and must give that party the benefit of all

reasonable inferences to be drawn from the underlying

facts. AgriStor Leasing v. Farrow, 826 F.2d 732, 734

(8th Cir. 1987). The moving party bears the burden of

showing both the absence of a genuine issue of material

fact and its entitlement to judgment as a matter of law.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L.

Ed. 2d 202, 106 S. Ct. 2505 (1986); Matsushita Electric

Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-

587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986); Fed. R.

40a

Civ. P. 56(c). Once the moving party has {il H}8 HURAen,

the non-moving party may not rest on th’ lla geial avin al

his pleadings but must set forth spel!l/lt Hielay by

affidavit or other evidence, showing tli! 4 MHHililie

issue of material, fact exists. Fed. R. Civ: P, SiH), Mule

56(c) “mandates the entry of summary jill piel, afer

adequate time for discovery and upon motititi, apaitist 4

party who fails to make a showing sufficietit to establish

the existence of an element essential to that party's

case, and on which that party will bear the burden of

proof at trial.” Celotex Corporation v. Catrett, 477 U.S.

317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

To establish a prima facie case of discrimination in a

class action alleging a pattern or practice of

discrimination, plaintiffs must prove that the defendant

“regularly and purposefully” treated members of the

protected group less favorably, and that tinlawfil

discrimination was the employer’s “regiili# prueedire

or policy.“ EEOC v. McDonnell Dougli® (Hi, 141

F.3d 948, 951 (8th Cir. 1999) (quoting HHleriatlinnal

Bhd. of Teamsters v. United States, 431 1/8, Wid, MMA,

360, 52 L. Ed. 2d 396, 97 S. Ct. 1843 (19/77), Prawing

isolated or sporadic discriminatory Ml) Hy thie

employer is insufficient.“ Id. (quotin#! Canper y

Federal Reserve Bank of Richmond, 467 /:%; MA/, 87)

76, 81 L. Ed. 2d 718, 104 S. Ct. 2794 (14), Hather,

plaintiffs must establish by a preponil@rance of the

evidence that “discrimination was *@ company’s

standard operating procedure--the regu!#? rather than

the unusual practice.“ Craik v. Minneset# State Univ,

Bd., 731 F.2d 465, 470 (8th Cir. 1984) (quoting

Teamsters, 431 U.S. at 336). Normally, # Plaintiff in a

pattern and practice action will pre@uce evidence

showing statistical disparities betwe@? ‘Similarly

dla

slivaled protected and unpratected emplayees, and the

Hefendant will allempl ta ahow in vebubtal that

HAIL e HeAaE le el her TiMeeHeAbe ap Heli eanh

(1, (MOL Heaiiebere, da U8, ab Ban)

A. Claas Clatine

1, Denial of upward mobility

In support of their claim of denial of upward mobility,

plaintiffs initially presented an analysis conducted by

Dr. Hilary Weiner, a Senior Social Science Analyst

employed by the EEOC. Dr. Weiner sought to

determine whether there was any racial disparity

within the UPS divisions in the pattern of promotions

from center manager to division manager and whether

it takes longer for black employees to be promoted than

it takes white employees, She did not do any statistical

Hfidlysis to attempl to show that the likelihowd of

PPOMULION ie renter for white employees than foe blaek

Hipliyens

With reapeel to the aamerion thik the pathern af

HOHOHONE Th dernier, De Weiner performed a

eaxan teal, Later, however, afer examining the

rebulial veporta of defendant's experts, Dr, Weiner

acknowledged that she had used an incorrect Wileoxon

lest, After performing the correct Wilcoxon test, she

determined that no statistical difference existed in the

pattern of promotions for black and white center

managers to their first division level job.

No longer able to rely on the Wilcoxon test results to

show racial discrimination in the pattern of promotions,

_ plaintiffs now rely on Dr, Weiner’s finding that there

42a

were na pramations af blagke ta division manager in Ab

af the approximately 00 UPS dintelebe fram helween

(HHH and 108, De, Weiner, haweaver, did nat (ale inte

ACHE WHELHON Lhere Were Ay Hiliel Gerber Hianagere

ih thee dieteebe Wha Were AVATABIE Tae pROMOLION bo

thie Higher level, UPS condiebed & diferent analyala,

whieh did take tite aeesunt the availability Rebar,

UPS's expert, De, David 8. Bvana, found that of the

districts where there was at least one promotion, there

were 45 districts in which no black center manager's

were promoted. He then sought to determine whether

black promotions would have been expected to occur in

those 45 districts had the promotion decisions been

made without regard to race. In an effort to make this

determination, Dr. Evans conducted a computer

analysis of a random selection of the actual promotions

in each UPS district within each year, The results

showed that the number of distriets with no black

promotions was aetually fewer than would be expected,

The pH deeertion Chak the pabbern of peoinobione

WHOHE Ciebeebe ahowe Piel) CHAePHAbIOn Ti aie

Hintele dee Heb bene bo ahaw: cern ona

HWHONAT level, Bee Teaiiebera, dat LLB) ab Bae Calaiitite

Wiel show CACIINALION Wee The company’s abandapd

aperaling proceduve) Th may, i fael, vnderent

plaintiffs’ proof of the existence of a standard operating

procedure, Moreover, while center managers are not

promoted to division manager positions solely within

their own district, Dr, Evans presented evidence that a

center manager is promoted to division manager

outside his or her district 54% of the time in Human

Resources and 10% of the time in Operations.

Accordingly, accounting for the availability of black

center managers within a district is useful to some

degvee, Dr, Weiner acknowledged (his hy allempling ba

acca fae availabiliiy ih eae dinteleh wilh the

Wilcoxon baal, Neverthelawa, plaintiffy’ awn expert

ACHHILLOG CWE he THE AG PEDO GP ROTHER Ay

Hivtelel, The Coueh te Heb peraiaded Hy plalitifhy’

ALLEL tO THOME bhab GOneliaiGn ane) tiabend Hely

adlely Gh the feb that there were fo blaek proniations

in some distiiets,

Plaintiffs’ experts did not perform any statistical

analysis to attempt to show racial disparity in the

likelihood of promotion. Instead, plaintiffs submit

charts showing the percentage of black division-level

employees, compared to the percentage of all black

“officials and managers,” “operatives and laborers,”

“blue collar workers,” and “total UPS workforce.” The

charts show standard deviations from the expected rate

of “officials and managers” ranging from 9.5 to 15.4,

UPS’a expert, De Kvata, analysed the likelihwod of

WOMOLION Dy dekii whebher the aebial nuniber of

eh pROHOLIONe FROn eenber Hanger ba divietan

WHO ee Oe Tver DH be ea peebed Humber

af Hiwek promotion De Eivane eaiiied whether

Hlvek promationa by diabelel and by Pegion ape

consistent with black availability by diateiet and hy

region, With respect to Operations, Dr, Kvans found

that in some years the number of black promotions was

more than expected and in other years it was less than

expected, In the aggregate, Dr, Evans found a net

excess of five black promotions in the regional level

analysis and a net excess of six black promotions in the

district level analysis. In other words, in each situation

there were more blacks promoted than would be

expected in light of availability and the number of

44a

promotions actually made. With respect to Human

Resources, there was a net deficit of three black

promotions at the district level and a net deficit of two

black promotions at the region level. Accordingly, Dr.

Evans found no evidence of race discrimination in the

likelihood of promotions.

The analyses relied on by the plaintiffs do not consider

the correct population in determining the likelihood of

promotion of black center managers. The classes

certified by the Court consist of center managers who

have not been promoted to division manager and above.

Plaintiffs’ reliance on comparisons to the entire UPS

workforce and other subgroups which include

individuals who are not class members is inappropriate.

Plaintiffs have not attempted to compare the

percentage of black division managers to the population

from which they can be promoted. Under either a

disparate treatment or a disparate impact theory,

plaintiffs’ reliance on a bottom line racial imbalance in

the workforce is insufficient to establish that blacks are

less likely to be promoted. See Wards Cove Packing Co.

v. Atonio, 490 U.S. 642, 650-51, 104 L. Ed. 2d 733, 109 S.

Ct. 2115 (1989) (proper comparison is between racial

composition of at-issue jobs and racial composition of

qualified persons in the relevant labor market).

Additional, plaintiffs claim that UPS’s subjective

decisionmaking process and its failure to post notices of

position vacancies have caused a racial imbalance is

unavailing as they have not offered any statistical

evidence to support it.

Dr. Weiner also performed a “cohort analysis” in an

attempt to show that it took longer for black employees

than for white employees to be promoted to division

45a

level positions. In her cohort analysis, Dr. Weiner

matched pairs of black and white employees and

compared them in terms of the length of time it took

for them to reach center manager and division manager

level. The conclusion Dr. Weiner reached based on the

cohort analysis is that it takes black employees

significantly longer to be promoted from their first full-

time supervisory position to center manager level and

from supervisor to division manager level than it takes

similarly situated white employees.

Dr. Weiner conceded, however, that “the data [she]

looked at is not appropriate for examining the time to

promotion from center manager to division level

manager.” Plaintiffs argue that it is appropriate to use

an analysis that takes into account promotions to center —

manager level positions because they have never

restricted their claim to time to promotion from center

manager to division manager. The Court, however, has

imposed this limitation by virtue of its definitions of the

classes certified in this action. Consequently, the

relevant focus is on the difference, if any, in time to

promotion from center manager to division manager.

In a “survival analysis” he performed, Dr. Evans

studied the time to promotion from center manager to

district manager. Based on the results of his analysis,

Dr. Evans concluded that the time to promotion from

center manager to district manager is longer for white

employees than it is for black employees. The Court

finds that this analysis more appropriate to the issues

involved in this action, as it examines only the time to

promotion from center manager to division manager.

Because the plaintiffs’ evidence is based on Dr.

Weiner’s analysis which fails to examine the relevant

46a

time period and the relevant population, the Court finds

that plaintiffs have not carried their burden of proving

discrimination as to the two upward mobility classes.

2. Unequal working conditions

The Court finally finds that plaintiffs have not

presented sufficient evidence for a class-based unequal

working conditions claim. Plaintiffs do not provide any

statistical evidence on any specific difference in

working conditions, and instead rely solely on anecdotal

evidence. The Court finds such evidence insufficient to

show a class-based claim. See Teamsters, 431 U.S. at

336 (plaintiff must show discrimination was company’s

standard operating procedure); McDonnell Douglas, 191

F.3d at 952 (anecdotal evidence did not demonstrate

standard operating procedure).

3. Pay disparity

The Court next turns to the analysis of the class

plaintiffs’ claims of pay disparity. UPS, plaintiff-

intervenor EEOC and the individual plaintiffs also

move for summary judgment on the pay claims, and the

Court will consider all motions on the issue together.

With respect to pay raises, plaintiffs’ experts concluded

that there was no statistically significant difference

between the salary increases given to black and white

center manager level employees during the period 1991

to 1997. In light of this evidence, plaintiffs cannot

establish race discrimination on the issue of pay raises.

See Hervey v. City of Little Rock, 787 F.2d 1223, 1228-

29 (8th Cir. 1986).

47a

The plaintiffs maintain, however, that UPS engaged in

racial discrimination with respect to salary levels. On

this issue, plaintiffs presented a multiple regression

analysis conducted by Dr. Weiner and another

conducted by Dr. David C. Stapleton. Dr. Weiner

reported after her final analysis a pay differential

between black and white center managers of $ 1,275 to

$ 2,200 per year, which she found to be statistically

significant. UPS attacks Dr. Weiner’s analysis on

several bases, arguing that it contains both data and

methodology errors. UPS argues that Dr. Weiner’s

original analysis removed much of the observable

differences in performance by changing actual

performance ratings from the six-point scale to either

one or zero. As for data errors, UPS argues that Dr.

Weiner uses the wrong matrix in her analysis, which

leads to the inclusion in her analysis of a Hispanic

individual who was mistakenly entered as having a

salary of $ 642 million. In her rebuttal analysis, Dr.

Weiner used the full six-point rating scale, but she

included only two years of performance evaluations.

Dr. Stapleton found in his analysis that black center

managers earned on average $ 562 to $ 852 per year

less than white center managers after controlling for

factors that cause pay to differ. Defendants also attack

Dr. Stapleton’s analysis. While UPS agrees that Dr.

Stapleton’s regression analysis is better than Dr.

Weiner’s, it argues that Dr. Stapleton’s analysis does

not include relevant variables, such as time spent as a

union member, time spent as a part-time or full-time

supervisor, whether the center manager ever worked

in Air Operations, whether the center manager was

ever a supervisor in Package Operations, and whether

the center manager had ever been a division manager.

48a

however, is that it does not account for past pay

differentials. Dr. Stapleton’s regression model includes

two previous performance evaluations, although he

used the full six-point rating scale in his analysis.

UPS’s expert Dr. Evans submitted a regression

analysis which included the variables excluded by Dr.

Stapleton. Dr. Evans included performance evaluations

for every year in which performance evaluations were

available. Dr. Evans found that when he did not include

performance evaluations in his regression model, the

pay differential between black and white center

managers was statistically significant, although it was

not “substantively significant.” When Dr. Evans

included all past performance evaluations in his

regression model, he found that the pay differentiai

between black and white center managers was not

statistically significant.

Dr. Stapleton testified in his deposition that he did not

believe all of the variables included by Dr. Evans

should be included, as the variables may be caused by

race discrimination. He also argues that Dr. Evans

should have used dummy variables rather than

excluding every individual with any missinz data from

his analysis.

The Court finds that the variables are properly

included in Dr. Evans’ analysis. The only variables for

which plaintiffs have arguably presented proof of

discrimination are the performance evaluations. Several

plaintiffs have provided anecdotal evidence that they

were given inadequate training and resources to

adequately do their job in comparison to white center

49a

managers. While such factors could affect performance

evaluations, plaintiffs have not presented evidence that

they received lower evaluations for these reasons. The

Court finds that the anecdotal evidence is insufficient to

provide a basis for excluding performance evaluations

from the analysis. See EEOC v. McDonnell Douglas

Corp., 191 F.3d 948, 952 (8th Cir. 1999) (anecdotal

evidence “demonstrated, at most, _ isolated

discriminatory acts on the part of certain managers,

rather than [defendant’s] ‘standard operating

procedure.) (quoting Teamsters, 431 U.S. at 336); see

also Schultz v. McDonnell Douglas Corp., 105 F.3d 1258,

1259-60 (8th Cir. 1997) (probative value of statistical

evidence that does not reflect significant differences

among employees would be prejudicial and misleading);

Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 777-

78 (8th Cir. 1995) (statistical analysis failed to control

for relative assessment score; presence of subjectivity

in itself not grounds for challenging evaluation).

Accordingly, the Court finds that defendants have

shown that any pay disparity between black and white

center managers is caused by factors other than race.

B. Individual Claims

It appears that the claims of the individual plaintiffs are

based on evidence other than the statistical analyses.

To the extent that their claims are based on additional

evidence that is specific to each of them, the individual

claims of plaintiffs Morgan, Stacker, Boldin, Clark,

Hawkins, and Love survive summary judgment.

As to the claims of the individual plaintiffs based on 42

U.S.C. § 1981, there is a split of authority among

district courts in this circuit as to whether an at-will

50a

employee in Missouri may bring a claim under § 1981.

Compare Filbern v. Habitat for Humanity, Inc., 57 F.

Supp. 2d 833 (W.D. Mo. 1999) (at-will employee can still

maintain § 1981 claim), with Jones v. Becker Group of

O’Fallon Div., 38 F. Supp. 2d 793 (E.D. Mo. 1999) (at-

will employee cannot maintain § 1981 claim). This

Court agrees with the analysis in Filbern that at-will

employees in Missouri can still maintain a claim under §

1981. See Filbern, 57 F. Supp. 2d at 835-36.

C. Vernon Taylor’s Claims

UPS moves for summary judgment on Vernon Taylor’s

separate claims of discriminatory discharge based on

Title VII and § 1981.

Taylor worked for UPS from June 1975 until March

1994, At the time of his discharge, he was a center

manager at the Laclede center. Among Taylor’s

responsibilities was the preparation of pre-sheet audit

reports. The purpose of the pre-sheet audit is to check

the accuracy of the information that a driver records as

he delivers packages. To prepare the report, a manager

or supervisor records on a form information taken from

randomly selected packages before they are delivered.

After the driver completes his route, the pre-recorded

information is compared to the information that the

driver has recorded during his deliveries. If the pre-

sheet audit report is prepared “after the fact” from the

driver’s delivery records, the accuracy of the driver’s

documentation of the information cannot be measured.

In March 1994, Taylor, in preparation for a regional

audit of his center, discovered that pre-sheet audit

reports had not been prepared for certain days. To

5la

correct this deficiency, Taylor instructed two

employees he supervised to create the reports ai _— the

fact. On March 24, 1994, Taylor met with District

Manager Chuck Heusser and admitted what he had

done. Heusser stated that he considered it an “integrity

problem” and told Taylor that he would be discharged

for falsifying company documents.

Taylor spoke with Rick Warlick on March 28, 1994, and

gave Warlick the names of three other individuals--

Galati, Fein, and Irwin--whom Taylor believed had

done “things worse” than he had done and not been

terminated. Warlick said that he would investigate, and

later said that he believed Galati’s actions were

“nonrelated.” Taylor appealed to higher level

management officials, but the termination decision was

upheld.

The Court will analyze Taylor’s individual claims of

discrimination under the burden-shifting analysis of

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L.

Ed. 2d 668, 93 S. Ct. 1817 (1973), and St. Mary’s Honor

Center v. Hicks, 509 U.S. 502, 125 L. Ed. 2d 407, 113 S.

Ct. 2742 (1993). See Ryther v. KARE 11, 108 F.3d 882,

836 (8th Cir.) (en banc), cert. denied, 521 U.S. 1119, 117

S. Ct. 2510, 188 L. Ed. 2d 1013 (1997). The analysis

applies both to claims brought under Title VII and 42

U.S.C. § 1981. See Kim v. Nash Finch Co., 123 F.3d

1046, 1056 (8th Cir. 1997).

Under the burden-shifting analysis, plaintiff must first

establish a prima facie case of intentional

discrimination. McDonnell Dougla’s, 411 U.S. at 802;

Kim, 123 F.3d at 1056. If the plaintiff establishes a

prima facie case, the burden shifts to the defendant to

52a

articulate a legitimate, nondiscriminatory reason for

the adverse employment action. McDonnell Douglas,

411 U.S. at 802. If the defendant articulates such a

reason, the plaintiff must then demonstrate that

defendant’s reason is a pretext for discrimination. Id_.;

Kim, 123 F.3d at 1056. The burden of proving

discrimination remains on the plaintiff at all times. St.

Mary’s Honor Center, 509 U.S. at 515-16. The plaintiff

must do more at the pretext stage than discredit

defendant’s reason; the plaintiff must show the

defendant’s articulated reason is a_ pretext for

discrimination. See id.; see also Ryther, 108 F.3d at 837;

Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 777

(8th Cir. 1995).

In order to avoid summary judgment, a plaintiff

alleging discrimination must present evidence that,

when viewed in its entirety, (1) creates a fact issue as to

whether the employer’s proffered reason is pretextual,

and (2) creates a reasonable inference that a

discriminatory motive was a determinative factor in the

adverse employment decision. Rothmeier _ v.

Investment Advisers, Inc., 85 F.3d 1328, 1336-37 (8th

Cir. 1996); see also Krenik v. County of LeSueur, 47

F.3d 953, 958 (8th Cir. 1995). Evidence of pretext alone

is not sufficient to avoid summary judgment. Ryther,

108 F.3d at 837.

To establish a prima facie case of employment

discrimination under Title VII, plaintiff must show that

(1) he belongs to a protected group; (2) he was

performing his job at a level that met defendant’s

legitimate expectations; (3) he was discharged; and (4)

the discharge occurred under circumstances that create

an inference of unlawful discrimination. Williams v.

58a

Ford Motor Company, 14 F.3d 1305, 1308 (8th Cir.

1994),

Initially, the Court will assume that Taylor has

established a prima facie case. However, UPS has

articulated a legitimate, non-discriminatory reason for

Taylor’s discharge, and Taylor has not shown that

reason to be pretextual.

In his deposition, Taylor testified that in 1992 a

Supervisor instructed him to create after the fact

documentation for an “OJS ride” based on delivery

records and that other employees had created presheet

audit reports after the fact. Taylor, however, presents

no evidence that the individuals responsible for the

decision to terminate him knew of other employees who

had engaged in the same conduct for which he was

terminated. See Ghane v. West, 148 F.3d 979, 982 (8th

Cir. 1998) (plaintiff has burden to show he is similarly

situated in all relevant aspects to individuals who were

treated more favorably). He testified, in fact, that when

he told Chuck Heusser his actions were common

practice in the district, Heusser responded that he was

new to the district and could not condone a manager

with an integrity problem. Taylor did not provide to

UPS the names of other individuals who had engaged in

the same conduct, and he does not specify what conduct

Galati, Fein, or Irwin engaged in that was worse than

his conduct. Taylor has presented no evidence that a

discriminatory motive was a determinative factor in his

termination. See Ryther, 108 F.3d at 837.

To the extent Taylor asserts individual claims of denial

of promotion or unequal pay, he has presented no

evidence of discrimination with respect to those issues

54a

that are specific to him. Accordingly, summary

judgment will be granted as to Taylor’s discharge

claims based on Title VII and § 1981.

D. Theodore Boldin’s Claims

UPS moves to supplement and renew its previous

motion for summary judgment as to individual plaintiff

and class representative Theodore Holdin, The Court

denied a motion for summary judgment aa to Holdin’s

claims in an order dated February 18, 116, UPS argues

in its motion to supplement and renew summary

judgment that Boldin’s claim agaifiat UPS waa not

identified as an asset in his bankruptcy case, UPS

argues that Boldin has not moved the bankruptcy court

to reopen his file, as he previously represented to the

Court he was willing to do. Boldin responds that he

asked the bankruptcy trustee if the case needed to be

reopened. He submits letters concerning the inquiry as

to whether the case should be reopened, and an

affidavit from his attorney in the bankruptcy case, UPS

has also moved to strike the affidavit.

Even without considering the affidavit of Boldin's

attorney, it appears that Boldin has inquired as to

whether the bankruptcy procee(ings should be

reopened. Defendant’s motion for summary judgment

as to Boldin’s claims will be denied, and the motion to

strike the affidavit will be granted.

55a

III. CONCLUSION

For the foregoing reasons,

IT IS HEREBY ORDERED that defendant’s motion

for summary judgment as to the class claims [# 391] is

granted,

IT 1S FURTHER ORDERED that defendant's motion

to decertify the claaa [#801] ia denied aa moot,

I'T IS FURTHER ORDERED that plaintiffs’ motion

for partial summary judgment on the class claima of pay

disparity [#861] is denied,

IT IS FURTHER ORDERED that defendant's motion

for summary judgment as to plaintiff Vernon Taylor’s

individual claims [# 362] is granted. The individual

claims of plaintiff Vernon Taylor in Counts II and IV of

the complaint are dismissed.

IT IS FURTHER ORDERED that defendant’s motion

for summary judgment as to plaintiff Theodore Boldin’s

claime [# 860] is denied,

IT 1S FURTHER ORDERED that defendant's motion

to wtvike the affidavit of Richard Alan Cooper [# 800) is

granted,

IT IS FURTHER ORDERED that defendant's motion

to strike the affidavit of Dr. Hilary Weiner [# 374] is

denied as moot.

56a

IT IS FURTHER ORDERED that defendant’s motion

to strike the affidavit of Dr. Richard Harvey [# 374] is

denied as moot.

IT IS FURTHER ORDERED that defendant’s motion

to strike the affidavit of Timothy Dall [# 0, filed 4-3-00]

is denied as moot,

IT IS FURTHER ORDERED that defendant's motion

for leave to file the affidavit of Troy Barger |# 0, filed 4.

8-00] ia granted,

IT IS FURTHER ORDERED that plaintiff Boldin’s

motion to substitute to correct a typographical error |#

363] is granted,

IT IS FURTHER ORDERED that plaintiffs’ motion

for leave to seek a Daubert hearing [# 380] is denied as

moot.

IT IS FURTHER ORDERED that defendant’s motion

to bifurcate the individual and class claims [# 428] is

denied as moot,

IT IS FURTHER ORDERED that defendant's motion

for a protective order regarding pretrial material [#

424| is denied as moot,

CAROL E, JACKSON

UNITED STATES DISTRICT JUDGE

Dated this 26th day of June, 2000.

57a

Footnotes

nl Counts I and III assert claims on behalf of the

named plaintiffs and members of the classes. Counts II

and IV assert Title VII and § 1981 claims on behalf of

Vernon Taylor,

58a

No. 4:94-CV-1184 CEJ

UNITED STATES DISRTICT COURT

EASTERN DISTRICT OF MISSOUR!

EASTERN DIVISION

LESLIE MORGAN, et al.,

vs.

UNITED PARCEL SERVICE OF AMERICA, INC.

and UNITED PARCEL SERVICE, INC.,

Defendants.

Filed May 10, 2002

ORDER

IT IS HEREBY ORDERED, ADJUDGED AND

DECREED that judgment is entered in favor of

defendant and against plaintiffs as to all class claims

and as to plaintiff Vernon Taylor’s discriminatory

discharge claim, in accordance with the Memorandum

and Order entered on June 26, 2000.

CAROL E. JACKSON

UNITED STATES DISTRICT JUDGE

Dated this 10th day of May, 2002.

59a

No. 4:94-CV-1184 CEJ

UNITED STATES DISRTICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

LESLIE MORGAN, et al.,

vs.

UNITED PARCEL SERVICE OF AMERICA, INC.

and UNITED PARCEL SERVICE, INC.,

Defendants.

Filed April 25, 1997

MEMORANDUM AND ORDER

This matter is before the Court on the motion of the

defendants for clarification of the scope of the four

classes conditionally certified in this case. The plaintiffs

have filed a response in opposition to the motion.

Plaintiffs bring this action pursuant to the Civil Rights

Act of 1964, as amended, 42 U.S.C. S 2000e et seq.

(“Title VII”) , and 42 U.S.C. S 1981, alleging individual

and class claims of employment discrimination. On

October 30, 1996, the Court conditionally certified four

classes of present and former United Parcel Service,

Inc. (“UPS”) employees.

In the present oration, the defendants argue that

clarification is required- because the current classes are

“confusing” and “inconsistent.““ fnl First, the

defendants argue that the classes should be limited to

60a

individuals who have worked at the center manager

level in operations or Human Resources. This was the

Court’s intention in the original class certification order

the Court so fn2; therefore, to remove any ambiguity,

the Court will modify the class description to reflect

that the classes are limited to individuals who have

worked as center managers in Operations or Human

Resources.

Next, the defendants argue that all four classes should

be limited to individuals employed as center managers

for at least five years without being promoted further.

As to the claims of denial of upward mobility, the -

Court, as reflected in the original Order, intended to

impose a prerequisite number of years of supervisory

employment in order to qualify for class membership.

In other words, an individual must have worked in a

supervisory position for at least five years, or eight

years with respect to the § 1981 claim, in order to fall

within a class asserting denial of upward mobility. In

addition, a Title VII class member must have been

employed as a center manager at some time between

December 20, 1991 and the date of judgment without

being promoted further. Likewise, a § 1981 class

member must have been employed as a center manager

at some time between June 17, 1989 and the date of

judgment without being promoted further. However,

the Court did not intend to limit class membership to

individuals who had been employed at the center

manager level for a minimum number of years. To

remove any ambiguity, the Court will appropriately

modify the descriptions of the two denial of upward

mobility classes.

6la

As to the unequal pay and unequal working condition

classes, the Court never intended to impose a minimum

number of years requirement. Therefore, the Court will

not modify these class descriptions in that respect.

Finally, the defendants argue that the classes should

not include individuals who worked as center managers

only on a temporary basis, i.e., during peak season. At

the December 4, 1996 scheduling conference the parties

agreed that the classes would include only individuals

who had been permanently assigned to a center

manager position. Therefore, this issue is not in dispute

and no further clarification is required.

Accordingly,

IT IS HEREBY ORDERED that the motion of the

defendant for clarification is granted in part and denied

in part.

IT IS FURTHER ORDERED that the four classes

conditionally certified in this case on October 30, 1996

are modified as follows:

As to the Title VII denial of upward mobility class, the

Court modifies the class as follows:

With respect to the Title VII claim of denial of overall

- upward mobility, a class is certified consisting of all

black salaried full-time employees of UPS nationwide

employed as center managers in operations (Package,

Hub, Feeder, Air) or Human Resources at any time

between December 20, 1991 and the date of judgment,

and who worked as a supervisory or managerial

employee of UPS for at least five years without being

RESULTS OF STANDARD DEVIATION CALCULATION

BLACKS ADV IMP NUM. OF STD.DEV. NUM OF BLACKS

BLACKS UNDERREP.

YES 14.19 208.9

YES 13.85 202.9

YES 14.01 208.9

YES 14.17 215.7

YES 17.95 317.9

fnl Office of Federal Contract Compliance Programs

eVEl

* Number of blacks and total number of black and white in center manager positions

compiled from data provided by UPS. Number of blacks in EEO category and total number of

black and white in EEO category pulled from UPS’s EEO-1 report for that year.

ADVERSE IMPACT AN ALYSIS OF BLACKS AT CENTER MANAGER LEVEL

(JOB GROUP 70 ON DECEMBER 315") IN DATA PRODUCED BY UPS

COMPARED TO UPS OPERATIVES AND LABORERS ON EEO-1s

UPS PROVIDED TO THE OFCCP fn1

JOBS - YEAR DATA

BLACKS in | BLACKS in TOTAL TOTAL

Operatives & Center Blacks & Blacks &

Laborers Manager Whites in Whites in

Positions Operatives & Center

Laborers Manager

positions

Mid Manager 1990 25,184 285 140,149 3,325

Mid Manager 1991 24,444 302 139,636 3,493

Mid Manager 1992 24,787 320 141,165 3,634

Mid Manager 1993 25,764 354 144,038 3,836

Mid Manager 1994 34,128 370 163,527 3,950

egsl

EE Ey Ra

RESULTS OF STANDARD DEVIATION CALCULATION

BLACKS ADV IMP NUM. OF STD.DEV. NUM OF BLACKS

BLACKS UNDERREP.

YES 14.29 210.8

YES 13.95 204.9

YES 14.05 209.1

YES 14.18 ~ 215.3

YES 18.01 318.2

fnl Office of Federal Contract Compliance Programs

B9ET

* Number of blacks and total number of black and white in center manager positions

compiled from data provided by UPS. Number of blacks in EEO category and total number of

black and white in EEO category pulled from UPS’s EEO-1 report for that year.

ADVERSE IMPACT ANALYSIS OF BLACKS AT CENTER MANAGER LEVEL

(JOB GROUPS 70 & 71 ON DECEMBER 31°") IN DATA PRODUCED BY UPS

COMPARED TO UPS OPERATIVES AND LABORERS ON EEO-I1s

UPS PROVIDED TO THE OFCCP fnl

JOBS YEAR DATA

BLACKS in | BLACKSin TOTAL TOTAL

Operatives & Center Blacks & Blacks &

Laborers Manager Whites in Whites in

Positions Operatives & Center 3

Laborers Manager -

positions

Mid Manager 1990 25,184 286 140,149 3,383

Mid Manager 1991 24,444 304 139,636 3,562

Mid Manager 1992 24,787 324 141,165 . 38,735

Mid Manager 1993 25,764 358 144,038 3,941

Mid Manager 1994 34,128 375 163,527 4,055

RESULTS OF STANDARD DEVIATION CALCULATION

BLACKS ADV IMP NUM. OF STD.DEV. NUM OF BLACKS

BLACKS UNDERREP.

YES 14.59 218.5

YES 14.27 212.9

YES 14.46 219.8

YES 14.62 226.9

YES 18.44 331.5

fnl Office of Federal Contract Compliance Programs

* Number of blacks and total number of black and white in center manager positions

compiled from data provided by UPS. Number of blacks in EEO category and total number of -

black and white in EEO category pulled from UPS’s EEO-1 report for that year.

B8El

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.