Appendix — Anderson v. Douglas & Lomason Co.

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FILED.

94102 7 S's 1994

No. 94-

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1994

DANIEL ANDERSON, JR., et al.,

Petitioners,

DOUGLAS & LOMASON CoO., INC., e¢ al.,

Respondents.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

APPENDIX

RICHARD T. SEYMOUR

LAWYERS’ COMMITTEE FOR CIVIL

RIGHTS UNDER LAW

1450 G Street, N.W.

Suite 400

Washington, D.C. 20005

(202) 662-8600

Counsel for Petitioners

PRESS OF BYRON 8. ADAMS, WASHINGTON, D.C. 1-800-347-8208

TABLE OF CONTENTS

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June 23, 1994 Original Decision

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July 21, 1992 Findings of Fact

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September 9, 1994 Order of the

Court of Appeals denying petitions

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United States Court of Appeals,

Fifth Circuit.

No. 92-7554.

Daniel ANDERSON, Jr., et al., Plaintiffs-Appellants,

DOUGLAS & LOMASON CO., INC., et al.,

Defendants,

Douglas & Lomason Co., Defendant-Appellee.

June 23, 1994.

As Corrected July 28, 1994

Appeal from the United States District Court for the

Northern District of Mississippi.

Before JOHNSON, SMITH, and EMILIO M. GARZA,

Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

The plaintiffs brought a class action lawsuit against

the Douglas & Lomason Co. ("D & L" or "the Company")

on July 5, 1985, alleging that D & L intentionally discrimi-

nated against blacks in its hiring, promotion, and termina-

tion practices. The district court, after a lengthy bench

trial, entered judgment against the plaintiffs on their Title

VII, 42 U.S.C. § 2000e et seg., and 42 U.S.C. § 1981

claims. We affirm the district court’s decision.’

D & L operates a plant in Cleveland, Bolivar

County, Mississippi, that manufactures automobile parts.

The plant employs approximately 657 people, 70% of

whom are black. Applicants seeking entry-level positions

with D & L need only meet certain minimal requirements,

such as being at least eighteen years of age, physically

able to perform the work, and able to read and write.

The plaintiffs challenge certain hiring, promotion, and

termination practices followed by D & L at the Cleveland

plant after James Grizzard became plant manager in

October 1982. The period between October 1982 and

April 1986, when Grizzard ceased being manager at the

Cleveland plant, was referred to at trial as "the Grizzard

years.”

The plaintiffs first challenge the hiring practices

adopted by Patty Haynes when she became personnel

manager at the Cleveland plant in September 1981.

Haynes’s hiring practices, which D & L followed

throughout the Grizzard years, substantially differed from

those of her predecessor, Harold Keeton. Keeton allowed

employees to take applications for other persons, allowed

'The plaintiffs in this case earlier appealed the decision of the

district court denying their application for preliminary injunctive relief

that would have regulated the hiring practices of D & L. We

affirmed the district court’s decision to deny a preliminary injunction

in Anderson v. Douglas & Lomason Co., 835 F.2d 128 (5th Cir.1988).

people to submit applications twenty-four hours a day,

took applications whether or not D & L was hiring, and

kept all applications in his "active" file for one year. He

generally interviewed two to three applicants for every

available position. In making hiring decisions, Keeton

looked at the applicant’s experience and attempted to hire

those applicants with the most relevant work experience.

Haynes, on the other hand, would not let employees take

applications home, required all people who wanted to

apply for employment to come to D & L’s plant, accepted

applications only when D & L was hiring, and kept

applications for six months. She also accepted only one

or two applications for every available position. Haynes

testified that in making hiring decisions, she looked at the

applicant’s relevant work experience and would hire "the

best person for the job."

During periods when D & L was hiring, Haynes

permitted individuals who called the Company seeking

information about possible employment to make appoint-

ments at which they could fill out an application. Haynes

also accepted applications from individuals who came to

the plant without appointments.” If a person called or

came to the plant while D & L was hiring but after the

applicant pool reached what Haynes considered to be the

optimal size, plant guards told the individual either that

Because of the large number of employees involved in deciding

when D & L needed to hire employees, news that D & L was hiring

quickly spread throughout the Company’s general work force. For

example, on one occasion individuals came to the plant to fill out

applications even before Grizzard told Haynes that D & L would be

hiring additional employees.

D & L was not hiring or was not taking applications.’

During periods that D & L was not hiring, Haynes or the

guards informed individuals inquiring about employment

either that the Company was not taking applications or

was not hiring. Thus, it was possible for individuals to be

told that D & L was not taking applications both when

the Company was and was not hiring.

D & L also hired employees in what can best be

called "spurts." Grizzard, after meeting with his depart-

ment heads and supervisors, would determine whether D

& L needed to hire additional workers. If D & L did

need additional workers, Grizzard would so inform

Haynes, who would begin taking applications. Haynes

then would hire the number of employees sought by

Grizzard. D & L rarely hired employees on a one-at-a-

time or continuous basis and sometimes went months

without hiring anyone.

D & L modified its application and hiring proce-

dures in May 1985 by using the Mississippi State Employ-

ment Service ("MSES") to provide a pool of applicants

from which it could hire. When D & L needed to hire

employees, it would notify the MSES. The MSES then

would refer both regular and on-the-job-training ("OJT")

applicants to D & L.* Haynes would interview the

referred applicants and select new employees using

separate job orders for the regular and OJT applicants

°A security fence, gate, and guardhouse prevented unauthorized

persons from entering the plant. Haynes instructed the guards to

allow people to enter the plant to fill out applications only when D

& L was hiring and also gave the guards the names of those indi-

viduals with appointments to fill out applications.

“‘D & L received financial benefits from the state’s on-the-job

training program for every OJT applicant hired.

hired. All hiring from the MSES referrals occurred on

three separate spurts from May to September 1985. D &

L has not hired any production workers since that time.

The plaintiffs next contend that D & L engaged in

a pattern or practice of discrimination by refusing to

promote blacks to leader and foreman positions.” D &

L had no written criteria or guidelines for promotions,

and Grizzard did not post notices concerning available

promotion opportunities. Instead, department supervisors

selected leaders and foremen for their departments with

little or no input from Grizzard. Although D & L did not

have written criteria for promotions, the supervisors

consistently applied the following subjective criteria when

selecting leaders and foreman: attitude, work record,

relevant work experience, leadership abilities, willingness

to help other employees, commitment to D & L, and

seniority. Thus, D & L's promotion criteria are predomi-

nately of a subjective nature.

The plaintiffs also allege that D & L engaged in

discriminatory practices by failing to provide blacks with

temporary upgrades and permanent promotions to

maintenance department positions. D & L employed a

‘—D & L promotes production employees to leaders so that it can

evaluate their performance and potential to become foremen. D&

L either selects foremen from among the leaders or hires them from

outside the company. Both leaders and foremen are paid hourly. D

& L also employs salaried supervisors, whom it selects from among

the foremen or hires from outside the company. The plaintiffs do not

contend that D & L discriminatedin promoting blacks to the salaried

supervisor positions.

job-bidding process, as required by its collective bargain-

ing agreement with the union representing D & L’s

employees, whereby employees had to submit bids for

available "craft" positions. D & L, however, sometimes

gave production employees temporary upgrades to craft

jobs on a short-term basis.° D & L did not allow employ-

ees to bid on temporary upgrade positions, and the

supervisors of the departments into which an employee

would be temporarily upgraded determined whom to

upgrade. The chosen employee’s supervisor, however,

could block the upgrade if the employee was needed for

production work.

D & L considered employees in the general

maintenance and rack maintenance departments to hold

craft positions. As such, D & L required employees

seeking those jobs to participate in the bidding process

and maintenance department supervisors selected produc-

tion employees for temporary upgrades to maintenance

positions. The primary duties of general maintenance

employees included pipe welding and repairing broken

machinery. Welding, however, was the primary function

of rack maintenance employees. Consequently, D & L

considered welding experience to be more important than

seniority for the purposes of temporary upgrades and

permanent promotions to maintenance department jobs.

The plaintiffs finally contend that D & L dis-

charged employees, using the Company’s garnishment

policy as a pretext, in retaliation for the employees filing

°*D & L would give an employee a temporary upgrade to a craft

position when a regular craft employee was ill or on vacation, or

simply when D & L needed an additional craft employee because of

an increased work load.

charges with the Equal Employment Opportunity Com-

mission ("EEOC"). D & L’s shop rules provided that the

Company would discharge any employee who received

four or more garnishments from different creditors within

a two-year period. Under this rule, only those garnish-

ments not satisfied, withdrawn, or stayed within thirty

days after D & L informed the employee of their exis-

tence counted against the four-garnishment limit. The

two-year period began to run on the date D & L dis-

cussed the first garnishment with the employee and

expired on the date that the thirty-day grace period for

the fourth garnishment expired. Haynes, who was

responsible for administering the garnishment policy,

forgave all garnishments that D & L received before she

became personnel manager.

The plaintiffs contend that the district court erred

by analyzing the hiring and promotion class claims under

the disparate treatment model instead of under the

disparate impact model.’ We examine discrimination

claims using the disparate impact model when employ-

ment practices are "facially neutral in their treatment of

different groups but ... in fact fall more harshly on one

group than another and cannot be justified by business

necessity." International Bhd. of Teamsters v. United States,

’Even though plaintiffs alleged violations of both § 1981 and Title

VII, the elements of both claims are identical. Flanagan v. Aaron E.

Henry Community Health Servs. Cir, 876 F.2d 1231, 1233 (Sth

Cir.1989); Payne v. Travenol Lab., Inc., 673 F.2d 798, 818 (Sth Cir.),

cert. denied, 459 U.S. 1038, 103 S.Ct. 451, 74 L.Ed.2d 605 (1982).

Therefore, we employ only one analysis in evaluating the plaintiffs’

Title VII and § 1981 claims.

431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 1854 n. 15, 52

L.Ed.2d 396 (1977). Although class action plaintiffs may

challenge subjective or discretionary employment practices

under the disparate impact model, Watson v. Fort Worth

Bank & Trust, 487 U.S. 977, 990, 108 S.Ct. 2777, 2786-87,

101 L.Ed.2d 827 (1988), the use of subjective or discre-

tionary decision-making does not itself create an inference

of discriminatory conduct. Jd. at 999, 108 S.Ct. at 2791

(plurality opinion). Instead,

"the plaintiff's burden in establishing a prima facie

case [of discrimination] goes beyond the need to

show that there are statistical disparities in the

employer’s work force. The plaintiff must begin by

identifying the specific employment practice that is

challenged.... Especially in cases where an employ-

er combines subjective criteria with the use. of

more rigid standardized rules or tests, the plaintiff

is in our view responsible for isolating and identify-

ing the specific employment practices that are

allegedly responsible for any observed statistical

disparities."

Wards Cove Packaging Co. v. Atonio, 490 U.S. 642, 656,

109 S.Ct. 2115, 2124, 104 L.Ed.2d 733 (1989) (quoting

Watson, 487 U.S. at 994, 108 S.Ct. at 2788-89). Thus,

"[t]he disparate impact model applies only when an

employer has instituted a specific procedure, usually a

selection criterion for employment, that can be shown to

have a causal connection to a class based imbalance in the

work force." Pouncy v. Prudential Ins. Co., 668 F.2d 795,

800 (Sth Cir.1982); see also Wards Cove, 490 U.S. at 657-

58, 109 S.Ct. at 2125 (noting that a plaintiff alleging a

discriminatory impact claim must "specifically show{ ] that

each challenged practice has a significantly disparate

impact on employment opportunities for whites and

nonwhites").*

The district court refused to analyze the plaintiffs’

hiring and promotion claims using the disparate impact

model because they did not identify a specific aspect of

subjective decision-making by D & L that was shown to

have any causal connection to the alleged class-based

imbalance in D & L’s general or supervisory work force.

The plaintiffs pointed only to D & L’s policy requiring

individuals to fill out applications at the plant as a specific

employment practice causing a class-based imbalance in

the work force. This, however, does not justify analyzing

the case under the disparate impact model because the

plaintiffs did not demonstrate that the disparity they

complain of was the result of the challenged policy. See

Wards Cove, 490 U.S. at 657-58, 109 S.Ct. at 2125.

Moreover, the plaintiffs identified no specific policy that

allegedly caused a race-based imbalance in the number of

persons who received promotions. Instead, the plaintiffs

merely launched a wide-ranging attack on the cumulative

effects of D & L’s employment practices. The disparate

impact model is not the appropriate vehicle from which

to launch such an attack. Pouncy, 668 F.2d at 800.

Consequently, the district court did not err in refusing to

analyze the plaintiffs’ claims using the disparate impact

*After the plaintiff has established a prima facie case of dis-

crimination, "the employer carries the burden of producing evidence

of a business justification for his employment practice." Wards Cove,

490 U.S. at 659, 109 S.Ct. at 2126. However, "the ultimate burden of

proving that discrimination against a protected group has been caused

by a specific employment practice remains witk the plaintiff at all

times." Watson, 487 U.S. at 987, 108 S.Ct. at 2790, quoted in Wards

Cove, 490 U.S. at 549, 109 S.Ct. at 2126.

10a

model.” We thus review the plaintiffs’ claims under the

disparate treatment model.

In a disparate treatment class action, the plaintiffs

"must prove discriminatory intent and demonstrate more

than ‘the mere occurrence of isolated or accidental or

sporadic discriminatory acts." Carroll v. Sears, Roebuck &

Co., 708 F.2d 183, 190 (Sth Cir.1983) (quoting Teamsters,

431 U.S. at 336, 97 S.Ct. at 1855). The plaintiffs must

establish "by a preponderance of the evidence that racial

discrimination was the [employer’s] standard operating

procedure—the regular rather than the unusual practice."

Id.

The plaintiffs may establish a prima facie case of

disparate treatment "by the use of statistics if a ‘gross’

disparity in the treatment of workers based on race is

shown." Id. However, "statistics are not irrefutable; they

come in infinite variety and, like any other kind of

evidence, they may be rebutted. In short, their usefulness

depends on all of the surrounding facts and circumstanc-

es." Teamsters, 431 U.S. at 340, 97 S.Ct. at 1856-57. If

*The district court also held that even if the plaintiffs did present

a prima facie case under the disparate impact theory, they would not

be able to satisfy their burden of persuasion because D & L "ade-

quately justified the method and manner by which it conducted its

hiring and put forth legitimate reasons totally unrelated to race for

making the various changes in its practice. As such, ... plaintiffs have

failed to show that the proffered hiring practices and changes therein

did not-serve the legitimate ends of the employer.” Jd. Because we

hold that the plaintiffs did not present a prima facie case, we do not

review whether they demonstrated by a preponderance of the

evidence that they were discriminated against as a result of a specific

employment practice.

— Be

lla

statistical evidence is insufficient to establish discriminato-

ry intent, the plaintiffs may bolster their case by introduc-

ing historical, individual, or circumstantial evidence.

Bernard v. Gulf Oil Corp. 841 F.2d 547, 568 (Sth

Cir.1988). The employer then may rebut the plaintiffs’

prima facie case "by introducing proof that plaintiffs’

statistics are ‘inaccurate or insignificant’ or by providing

a ‘non-discriminatory explanation for the apparently

discriminatory result." Jd. (citations omitted).

"[T}he ultimate determination of the existence of

intentional discrimination is a question of fact, reviewed

on appeal under the clearly erroneous standard." Jd. In

determining whether a finding is clearly erroneous, we

must give "due regard to the trial court to judge the

credibility of the witnesses." Anderson v. Bessemer City,

470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518

(1985). "A finding is ‘clearly erroneous’ when although

there is evidence to support it, the reviewing court on the

entire evidence is left with the definite and firm convic-

tion that a mistake has been made." United States v.

United States Gypsum_Co., 333 U.S. 364, 395, 68 S.Ct. 525,

542, 92 L.Ed. 746 (1948).

The plaintiffs argue that the district court erred in

finding that D & L did not discriminate against blacks by

restricting access to application forms. They argue that D

& L unlawfully restricted access when Haynes refused to

give employment applications to a number of blacks while

D & L was seeking to hire new employees.

In attempting to prove a prima facie case, the

plaintiffs primarily relied on anecdotal evidence provided

by class members. A number of individuals testified that

they were unable to obtain applications from D & L. The

12a

district court found this anecdotal evidence unpersuasive

because it was consistent with D & L’s general application

policies. This finding is not clearly erroneous. See part

VIILA infra. Additionally, the black individuals turned

away at the gate by D & L guards never saw D & L give

any applications to whites seeking employment, and no D

& L employee ever directed derogatory or racially-

oriented epitaphs at them.’ Moreover, around the same

time that D & L did not give these black individuals

applications, D & L provided applications to many other

blacks. Finally, the record contains no evidence indicating

that D & L’s application procedures affected potential

black applicants any differently than potential white appli-

cants."' Thus, the district court’s finding that D & L did

not discriminate against blacks who were seeking applica-

tions is not clearly erroneous. See Falcon v. General Tel.

One individual, Poitier Anderson, alleged that a guard told him

that the Company was not giving applications to blacks. The district

court did not find Anderson’s testimony credible because Anderson

filed two EEOC claims and filled out an EEOC questionnaire after

the alleged statement was made without ever mentioning it. This

finding is not clearly erroneous.

"The plaintiffs also argue that D & L discriminated against blacks

by relying on word-of-mouth to inform interested persons of job

openings and that this practice resulted in blacks having less access

than whites to hiring information. D & L officials, however, testified

that it was common knowledge among all employees, including those

in non-managerial positions, that the Company was going to be

hiring. In fact, non-employees on occasion knew D & L was about

to hire before Grizzard informed Haynes. For example, plaintiff

Chris Harris, along with two other blacks, heard from a black,

non-supervisory employee that D & L was hiring. However, when

Harris, who was waiting at the plant when Haynes arrived for work

one morning, asked Haynes for an application, Haynes told her that

D & L was not hiring. Later that morning, however, Grizzard

informed Haynes that D & L would be hiring new employees, and

Harris then obtained an application.

13a

Co., 815 F.2d 317, 322 (Sth Cir.1987) (finding that an

employer’s application procedures were not discriminatory

where no evidence was introduced to prove that the

procedures affected non-whites any differently than

whites).

The plaintiffs contend that statistical and anecdotal

evidence established that D & L discriminated against

blacks when hiring production workers during the Griz-

zard years. In comparing the number of blacks hired to

the number of blacks who applied for production jobs,

however, the district court found no evidence of discrimi-

natory intent.

The job of production worker—an _ unskilled,

entry-level position—required only that applicants be at

least 18 years old, be able to read and write, and be able

to bend, lift, and stoop. During the Grizzard years, D &

L hired 482 production workers—46.5% of those hired

were black. Black employees constituted more than 70%

of D & L’s general work force, and more than 80% of the

production work force, during the Grizzard years. In

Bolivar County, where D & L’s plant is located, 1980

census data indicates that the overall labor force was

51.8% black, with blacks constituting 70.1% of all opera-

tors, laborers, and fabricators.

The plaintiffs first argue that the district court

erred in crediting D & L’s statistical analysis of its hiring

practices during the Grizzard years. The plaintiffs

contend that because D & L’s statistical analysis was

l4a

fatally flawed, the district court should have relied on

seven sets of statistical data presented by their expert.”

D & L, not surprisingly, finds fault with each of plaintiffs’

seven standards and contends that the district court

correctly relied upon the standard proposed by D & L’s

expert.

Where plaintiffs use statistical evidence to chal-

lenge an employer’s hiring practices, that evidence, to be

probative of discriminatory intent, must compare the

relevant portion of the employer’s work force with the

qualified population in the relevant labor market. EEOC

v. Olson’s Dairy Queens, Inc., 989 F.2d 165, 168 (Sth

Cir.1993). The dispute between the plaintiffs and D & L

revolves around how to properly define the "relevant

labor market." D & L contends that the labor market

should be defined using an "applicant flow" analysis—i.e.,

arguing that D & L’s available labor force is best deter-

mined by examining the applications of those persons who

actually sought employment with the Company. The

plaintiffs, on the other hand, contend that an applicant

flow analysis should not be used here because some of the

applications submitted during the Grizzard years were not

available for examination.’ Thus, the plaintiffs argue

"The EEOC filed an amicus curiae brief agreeing with the

plaintiffs’ contention that the district court erred in its statistical

analysis of the evidence. We note, however, that the EEOC office in

Mississippi rejected as meritless the discrimination charges filed by

the plaintiffs.

The plaintiffs also seem to suggest that we should draw adverse

inferences against D & L because of the Company’s failure to

preserve employment applications for a one year period, pursuant to

the Uniform Guidelines on Employee Selection Procedures, 29

C.F.R. § 1607.4(A)-(B) (1978). However, the "Uniform Guidelines

are not legally binding. They have not been promulgated as regula-

(continued...)

1Sa

that any one of their seven different methods of measur-

ing the relevant labor market was superior to D & L’s

applicant flow analysis."

Actual applicant flow figures are the preferred

method by which to measure an employer’s hiring practic-

es and performance. Olson’s Dairy Queens, 989 F.2d at

168; Phillips v. Joint Legislative Comm., 637 F.2d 1014,

1025 (Sth Cir.1981), cert. denied, 456 U.S. 960, 102 S.Ct.

2035, 72 L.Ed.2d 483 (1982); Hester v. Southern Ry. Co.,

497 F.2d 1374, 1379 (Sth Cir.1974); see also Mister v.

Illinois Cent. Gulf R.R. Co., 832 F.2d 1427, 1435 (7th

Cir.1987) ("Statistical analysis of the actual applicants has

the advantage of self-selection: the study examines how

the employer actually treated people who wanted the job.

Applicant studies are preferable as a rule because Title

VII governs the treatment of applicants."). "Other

'°(...continued)

tions and do not have the force of law." Clady v. County of Los

Angeles, 770 F.2d 1421 (9th Cir.1985) (citing General Elec. Co. v.

Gilbert, 429 U.S. 125, 141-42, 97 S.Ct. 401, 410-11, 50 L.Ed.2d 343

(1976)), cert. denied, 475 U.S. 1109, 106 S.Ct. 1516, 89 L.Ed.2d 915

(1986). Moreover, the applications kept by D & L roughly corre-

spond to the six month period preceding the plaintiffs’ filing of their

EEOC charges. Although D & L normally would have discarded the

April applications after six months, Haynes testified that she kept all

applications after being notified of the EEOC charges. Consequently,

the number of applications available for analysis was consistent with

D & L’s policy of keeping applications for only six months. We

therefore decline to follow the plaintiffs’ suggestion.

“Because we agree with the district court that actual applicant

flow was the best measure of D & L’s performance, we need not

address whether the district court erred in failing to follow the seven

standards offered by the plaintiffs to define the labor pool available

to D & L. The district court rejected each standard as being flawed.

l6a

statistical measures are necessarily imperfect in differing

ways and varying degrees. The best the court can do is to

accept what figures are available; allow for imperfections,

skewing factors, and margins of error; and then take the

figures for what they are worth. Sometimes this is much,

sometimes little." Phillips, 637 F.2d at 1025. Thus, when

applicant flow figures are flawed or otherwise unavailable,

we have allowed plaintiffs to use other statistical measures

to establish a prima facie case of discrimination. See, e.g.,

id. (noting that actual applicant flow figures were unavail-

able because the employer did not identify applicants by

race); Robinson v. Union Carbide Corp., 538 F.2d 652,

657-58 (Sth Cir.1976) (upholding the district court’s

refusal to employ an applicant flow analysis), modified in

part on other grounds, 544 F.2d 1258 (Sth Cir.1977).

D & L’s statistical expert, Dr. Joan Haworth,

testified that, according to an applicant flow analysis, D &

L did not discriminate in hiring black applicants. Ha-

worth found that from April 1984 to January 1985, blacks

constituted 46.7% of all applicants. She then compared

this figure to the percentage of applicants hired by D &

L during the Grizzard years who were black—45.5%—and

determined that the difference was not statistically

significant.'* Thus, Dr. Haworth concluded, D & L did

‘SDr. Haworth divided the applications into six "pools," which

reflected each hiring event, and compared the percentage of blacks

and whites hired from the applicants in each pool. Only one hiring

pool—pool 5, which covered the one-month period of October

1984— reflected a statistically significant standard deviation. Haworth

also analyzed the pools on an aggregate basis, comparing the

percentage of blacks hired who applied from April 1984 through

mid-January 1985. She found what the parties agree to be a statisti-

cally significant standard deviation. Haworth testified, however, that

pool 5 largely accounted for the deviation. When she excluded pool

5 from the analysis, she found the standard of deviation to be

(continued...)

17a

not engage in discriminatory hiring practices.

The plaintiffs challenge Dr. Haworth’s analysis on

several grounds. They first assert that D & L did not

keep all applications from the April to October 16 period,

thus skewing the analysis so that the number of black

applicants from that period was understated. As evidence

of D & L’s selective retention of applications, the plain-

tiffs point to the large difference between the number of

applications submitted by blacks during the April to

October period and the October 17 to January period."

The district court found, however, that one explanation

for the large increase in applications submitted by blacks

during the latter period was that Oliver Robinson, a black

D & L employee, had begun a campaign to encourage

blacks in Bolivar County to apply for employment at D &

L and file discrimination charges against D & L with the

EEOC.” This finding is not clearly erroneous.

'5(,. continued)

statistically insignificant. The district court credited Haworth’s

testimony that the aberrational result found in pool 5 was due to the

fact that the percentage of white applicants with relevant employment

experience was higher in pool 5 than in other pools. Asa result, the

district court found that pool 5 should be excluded from the analysis

as an anomaly. This finding is not clearly erroneous. See Lewis v.

NLRB, 750 F.2d 1266, 1276 n. 17 (Sth Cir.1985) (noting that one

significant standard deviation did not establish disparate treatment).

‘6 Applications submitted by blacks constituted 37.6% of the April

to October applications and 60.4% of the October to January

applications.

‘In reviewing the record, we note that many of the witnesses had

little or no familiarity with the charges that they signed and filed with

the EEOC. Indeed, one person—Richard Grant—stated that he did

(continued...)

18a

As additional evidence that D & L failed to retain

applications, the plaintiffs contend ihat the number of

applications retained by D & L indicates that Haynes

accepted approximately eight and one-half applications for

every seven positions filled during the pre-suit period, but

accepted about ten applications for every seven positions

filled during the post-suit period. The plaintiffs contend

that the difference demonstrates that D & L did not

retain all applications from the April to October period.

Haynes, however, testified that she believed she kept all

the applications from the April to October period,

although she ultimately was unsure whether she had

discarded some applications. Moreover, Haworth testified

that while she believed she had all the relevant applica-

tions, she nevertheless had a "reasonably large amount" of

the applications for the purposes of her analysis. The

district court resolved this dispute by finding that D & L

did retain all applications pertaining to the relevant

period, and we cannot say that this resolution was clear

error. See Trevino v. Holly Sugar Corp., 811 F.2d 896, 901

(Sth Cir.1987) (finding that the district court did not err

in accepting an employer’s statistical analysis because,

while it was flawed, the plaintiffs’ analysis suffered from

more serious deficiencies); Nash v. City of Houston Civic

Ctr, 800 F.2d 491, 497 (Sth Cir.1986) (noting that where

there are competing yet permissible views of the evidence,

we must affirm the district court’s finding).

The plaintiffs next argue that even if the applicant

flow analysis was the best standard by which to measure

the labor pool available to D & L, the district court erred

in accepting Dr. Haworth’s analysis because it was based

on samples too small to allow for a meaningful statistical

"(...continued)

not read the charge but merely signed it when it was presented to

him. See note 46 infra.

as i ae a

19a

analysis. When statistics are based on small sample sizes,

the plaintiffs contend, the presence or absence of statisti-

cal significance is not a reliable indicator of discrimina-

tion. Whether or not a sample is too small to yield

statistically meaningful results, however, must be deter-

mined on a case-by-case basis. Watson, 487 U.S. at 995 n.

3, 108 S.Ct. at 2789 n. 3; Rendon v. AT & T Technologies,

883 F.2d 388, 397 (Sth Cir.1989). The district court found

Dr. Haworth’s analysis to be more credible and more

persuasive than the seven analyses offered by the plain-

tiffs’ expert. "We do not have the statistical expertise to

declare a particular statistical technique inappropriate

where a qualified expert expresses a contrary view and the

district court credits the testimony." Id.; see also Trevino,

811 F.2d at 904 (holding that the district court did not err

in crediting the defendant's statistical evidence over

contrary evidence); Nash, 800 F.2d at 497 (noting that we

must affirm the district court’s finding where there are

- two permissible views of the evidence). Thus, we find

that the district court did not err in crediting D & L’s

statistical analysis, which demonstrated that D & L did

not engage in discriminatory hiring practices, over the

analyses offered by the plaintiffs."

The plaintiffs further argue that the district court

'8Assuming arguendo that the pools were too small to permit

meaningful statistical analysis, Dr. Haworth also analyzed the pools

on an aggregate basis and found no statistically significant deviation

when pool 5 was omitted. See note 15 supra. Thus, this analysis,

which the district court also credited, was not based on a sample

significantly smaller than that utilized by the plaintiffs’ expert.

Therefore, the district court did not clearly err in refusing to find that

D & L possessed discriminatory intent with regard to its hiring

practices.

20a

erred in accepting Haworth’s analysis of D & L’s hiring

practices during the period in which the Company exclu-

sively relied upon MSES to provide acceptable applicants.

In relying on Dr. Haworth’s analysis, the district court

found that her job-order-by-job-order analysis was more

persuasive because it more closely reflected the actual

process through which D & L hired employees. The

plaintiffs’ analyses, tout au contraire, grouped the six

different job orders into one set of statistics."

D & L placed job orders with MSES three times

during the Grizzard years. On each occasion, D & L

sought two types of referral—one order requested regular

referrals and one order requested OJT referrals. Dr.

Haworth compared the percentages of blacks and whites

hired by D & L for each separate job order and found

that in only one job order did the difference between the

actual and expected number of blacks hired exceed two

standard deviations.” The district court found, in light

of the record as a whole, that this single statistical

disparity did not establish a prima facie case of discrimi-

natory intent. We find that the district court’s conclusions

regarding the statistical analyses of D & L’s hiring

practices are not clearly erroneous. See Lewis v. NLRB,

750 F.2d 1266, 1276 n. 17 (Sth Cir.1985) (noting that a

single statistically significant disparity "by no means

'*The plaintiffs’ analysis showed that D & L hired 84.4% of white

applicants and 50.8% of black applicants referred by the MSES.

*The plaintiffs again contend that the district court should not

have accepted Haworth’s analysis because it was based on sample

sizes too small to yield meaningful statistical data. Whether a sample

is too small to yield meaningful results is a determination made by

the district court on a case-by-case basis. Watson, 487 U.S. at 995 n.

13, 108 S.Ct. at 2789 n. 13; Rendon, 883 F.2d at 397. Under the facts

of this case, the district court did not clearly err in accepting D & L’s

analysis.

| 21a

commands an inference of discrimination").

The plaintiffs attempted to buttress their statistical

evidence with anecdotal evidence regarding class members

whom D & L allegedly did not hire because of their race.

While Title VII plaintiffs may use evidence regarding

individual instances of discrimination to bolster their class

claim, Bernard, 841 F.2d at 568, the district court found

that D & L did not discriminate in refusing to hire the

individuals at issue. This finding is not clearly erroneous.

See part VIII.B infra. Accordingly, the plaintiffs’ anecdot-

al evidence, combined with their statistical evidence, did

not establish a prima facie case of disparate treatment.

The plaintiffs introduced statistical, historical, and

anecdotal evidence in an attempt to prove that D & L ~

unlawfully discriminated against blacks when promoting

employees to leader and foreman positions. The plain-

tiffs’ statistical evidence regarding the promotion claim

compared the number of blacks promoted to leader and

foreman positions during the pre-suit Grizzard years with

the percentage of blacks present in D & L’s work force;

the plaintiffs also sought to compare the percentage of

promotions received by blacks during the pre-suit Griz-

zard years with the respective percentages for the pre-

Grizzard and post-suit periods. D & L, on the other

hand, introduced statistics comparing the number of

blacks holding leader and foreman positions to the

number of blacks holding supervisory positions in Bolivar

County. The district court ultimately determined that D

& L’s statistical analysis was the better one and therefore

credited it. Moreover, the district found that the histori-

cal, anecdotal, and other circumstantial evidence submit-

———————————==—=—==—=———

22a

ted by the plaintiffs did not establish that D & L engaged

in a pattern or practice of discrimination. The plaintiffs,

of course, challenge these determinations.

A court may infer that an employer engaged in

racial discrimination when promoting workers if statistics,

when comparing the number of non-whites and whites

promoted, demonstrate a gross statistical disparity. Lewis,

750 F.2d at 1271. Statistical evidence, however, must be

meaningful in light of all the surrounding facts and

circumstances. Pouncy, 668 F.2d at 1275. "In establishing

an inference of discrimination from statistical evidence,

the ‘required comparison [is]-to a qualified pool of

employees presumptively eligible for promotion.” Lewis,

750 F.2d at 1275 (quoting Pouncy, 668 F.2d at 803).

]

The plaintiffs introduced statistical evidence

comparing the percentage of leader and foreman promo-

tions given to blacks during the Grizzard years—23%—to

the percentage of black employees in D & L’s production

work force—80%. According to the plaintiffs, these

Statistics indicated a pattern of discrimination in the

promotion of D & L employees to leader and foreman

positions. The plaintiffs contend that this comparison is

appropriate because D & L selected leaders and foremen

from within the organization. The district court rejected

the plaintiffs’ approach as being overbroad because not

everyone in D & L’s production work force was qualified

for promotion. The district court further found that

because D & L had hired individuals from outside D &

L’s work force to be foremen and supervisors, the plain-

tiffs’ approach was- too narrow because it excluded

individuals outside D & L’s production work force who

23a

were qualified to be leaders and foremen.”” We agree

that the plaintiffs made the forbidden assumption that all

D & L employees were equally qualified for promotion.

See Lewis, 750 F.2d at 1275 (rejecting the plaintiffs’

analysis because they brought into their comparison

"employees who are not to be considered for promotion");

Pouncy, 668 F.2d at 803 (refusing to infer that an employ-

er discriminated against black employees in awarding

promotions simply because the plaintiffs demonstrated

that the percentage of black employees promoted was "far

1The district court also found that even if it was proper to use

the number of blacks in D & L’s production work force as a

benchmark, the evidence did not establish a prima facie case of

discriminatory conduct:

{W]hen comparing the percentage of blacks in the

leader, foreman, and supervisor classifications at the

company to the percentage of blacks in the produc-

tion workforce, the ratio of the percentage [of]

black[s] in supervisory categories (42%) to the

percentage of blacks in production workforce (80%)

is much higher than the similar proportion of the

Bolivar County figure of 19 percent black in supervi-

sors of production workers, when compared with the

blue-collar (60.7%) and manufacturing (58.2%)

rates. Stated otherwise, if blacks at [D & L] were

represented in supervision in the same percentage as

in other industries in Bolivar County relative to the

percentage in the production workforce, the bench-

mark would only be 25%, or seventeen percentage

points less than what it has been. Thus, even from

the perspective of plaintiffs, the defendant's perfor-

mance relative to its production workforce far

exceeds the performance of other Bolivar County

companies.

Record Excerpts at 91. As we uphold the district court’s determi-

nation on other grounds, we need not reach this issue.

24a

less" than the percentage in black employees in the

employer’s work force). Consequently, the district court

did not err in finding the plaintiffs’ statistical evidence for

leader and foreman promotions unpersuasive.

The plaintiffs also introduced statistical evidence

showing that blacks constituted 64% of persons promoted

to leader and foreman positions during the pre-Grizzard

and post-suit periods, but only 23% of those promoted

during the pre-suit Grizzard period. The plaintiffs also

note, however, that during the pre-Grizzard period, blacks

apparently received favorable treatment with regard to

promotions: whites worked on average for 71.8 months

before promotion while blacks worked on average only 43

months. See also note 29 infra. Because of the bias in

favor of blacks during the pre-Grizzard period, the district

court found it unhelpful to compare statistics from that

period with statistics from the post-Grizzard periods. Cf.

Lewis, 750 F.2d at 1275 n. 14 (noting that an employer’s

affirmative action program could skew statistical analyses

in disparate treatment cases). Because D & L was not

required to continue the preferential treatment given

black employees during the pre-Grizzard period, see

United Steelworkers v. Weber, 443 U.S. 193, 205-06, 99

S.Ct. 2721, 2728, 61 L.Ed.2d 480 (1979), the district court

thus did not err in disregarding the plaintiffs’ statistical

evidence regarding the pre-Grizzard period.

In finding no evidence of discriminatory conduct,

the district court accepted D & L’s statistical evidence,

which compared the percentage of black supervisors at D

25a

& L to the percentage of black supervisors county-

wide. We believe that the district court erred in com-

paring the total number of black supervisors at D & L to

the number of black supervisors county-wide. An employ-

er cannot escape liability under Title VII by demonstrat-

ing that, at the bottom line, minorities are represented in

supervisory capacities at non-discriminatory levels. See

Wards Cove, 490 U.S. at 655-57, 109 S.Ct. at 2124;

Connecticut v. Teal, 457 U.S. 440, 450, 102 S.Ct. 2525,

2532, 73 L.Ed.2d 130 (1982). Thus, the relevant compari-

son is between the number of blacks promoted during the

pre-suit Grizzard years and the number of blacks that

statistically should have been promoted in the absence of

any discrimination.”

The plaintiffs have demonstrated that blacks

received 23% of all promotions during the pre-suit

Grizzard years. At the same time, blacks constituted

19.1% of the supervisors in production-related occupa-

2p) & L demonstrated that blacks constituted 42% its leaders,

foremen, and supervisors during the Grizzard years. Based on this

evidence, the district court found that the percentage of black

employees in supervisor positions at D & L "was not only well within

but beyond the range of what would be expected when compared with

the relevant labor merket, which, in this case, is the percentage of

blacks in supervision in production occupations.”

2towever, a demonstration by the employer that, at the "bot-

tom-line,” blacks were overrepresented in its work force still is

relevant to the ultimate determination whether the employer engaged

in a pattern or practice of discrimination. See St. Mary’s Honor Center

v. Hicks, --- US. ----, ----, 113 S.Ct. 2742, 2751, 125 L.Ed.2d 407

(1993).

26a

tions in Bolivar County.“ The district court, because

blacks were represented in D & L’s work force in a ratio

higher than statistically predicted,” inflated the 19.1%

figure to 25%—i.e., blacks statistically should have

received 25% of all promotions to leader and foreman

positions. Because the number of blacks who received

promotions is not statistically different from the number

of blacks expected to receive promotions,” the district

“The plaintiffs challenge the district court’s use of this figure,

arguing that it encompassed only supervisors of "precision" production

occupations, such as metal working occupations, apprentices,

boilermakers, and sheet metal workers. On direct examination,

however, D & L’s expert, Dr. Haworth, testified that leaders and

foremen at D & L would be included in the 19.1%-black figure. The

district court did not err in resolving this credibility dispute in favor

of D & L. Anderson, 470 U.S. at £75, 105 S.Ct. at 1512. The district

court reasonably concluded that the figure was sufficiently similar to

the occupation of D & L supervisors, especially when the plaintiffs

failed to introduce any evidence to the contrary.

>SAt all times during the relevant period, D & L’s workforce was

more than 70% black, and the production workforce was approxi-

mately 80% black. 1980 Census data showed that the civilian labor

force in Bolivar County was 51.9% black, the manufacturing labor

force was 58.2% black, and the blue-collar labor force was 60.7%

black.

“Applying the mathematical formula suggested in Hazelwood

School District v. United States, 433 U.S. 299, 97 S.Ct. 2736, 53

L.Ed.2d 768 (1977), the difference between the number of blacks

expected to receive promotions and the number who actually did

receive promotions is not statistically significant (total of 22 pro-

motions):

Number of S/D = _O-NP

NP (1-NP)

S/D = Standard Deviations

(continued...)

27a

court did not err in failing to find an inference of dispa-

rate treatment with regard to D & L’s promotion practic-

es. See Terrell v. University of Tex. Sys. Police, 792 F.2d

1360, 1362 n. 3 (Sth Cir.1986) ("When the judgment of

the district court is correct, it may be affirmed on appeal

for reasons other than those given or relied on below."),

cert. denied, 479 U.S. 1064, 107 S.Ct. 948, 93 L.Ed.2d 997

(1987).

The plaintiffs contend that because D & L based

its promotion decisions on subjective criteria, D & L

could have failed to promote blacks for discriminatory

reasons. The district court rejected the plaintiffs’ argu-

ment. A promotional system that is based upon subjec-

tive criteria is not "discriminatory per se." Page v. U.S.

26(...continued)

O = Actual number of blacks who

received a promotion

N = Number of workers who received a

promotion

P = Probability of a black being

promoted from the relevant population

Thus, 5 — (22 x 25%)

2.03

—0.25

See also Lopez v. Laborers Int’l Union Local No. 18, 987 F.2d 1210,

1215 n. 14 (5th Cir.1993); Lewis, 750 F.2d at 1274 n. 12. Because the

difference is less than 2 standard deviations, it is not statistically

significant. We also note that if we use 42%—the number of D & L

leaders, foremen, and supervisors who were black—in place of 25%,

the difference between the number of blacks promoted and the

expected number (9.24) still is not statistically significant (1.84

standard deviations). Consequently, the plaintiffs failed to prove a

prima facie case of discrimination.

28a

Indus., Inc., 726 F.2d 1038, 1046 (Sth Cir.1984); see also

Watson, 487 U.S. at 990, 108 S.Ct. at 2786 ("[A]n employ-

er’s policy of leaving promotion decisions to the un-

checked discretion of lower level supervisors should itself

raise no inference of discriminatory conduct."). However,

"promotion systems utilizing subjective evaluations by all

white supervisors” can be evidence of discrimination in

disparate treatment cases. Payne v. Travenol Laboratories,

Inc., 673 F.2d 798, 827 (Sth Cir.1982); Lewis, 750 F.2d at

1276.

This case is distinguishable from our prior hold-

ings, however, because the D & L supervisors who

evaluated and promoted employees were both black and

white. As the district court found,

[while the subjectivity of the criteria of attitude

and commitment could result in racial disparity in

the potential for promotion, it is clear from the

record evidence that the individuals recommended

or considered for promotion included black indi-

viduals recommended by white foremen and

supervisors, white individuals recommended by

black foremen and supervisors, and individuals

recommended by both.

Record Excerpts at 90; cf. St. Mary’s Honor Ctr. v. Hicks,

--- USS. ----, ----, 113 S.Ct. 2742, 2751, 125 L.Ed.2d 407

(1993) (noting that evidence in a hiring case tending to

negate a finding of discrimination includes the fact that

the hiring officer is of the same minority group as the

plaintiff). The district court’s finding is supported by the

29a

evidence.” Accordingly, the district court did not err in

refusing to find that the subjective component of D & L’s

promotion policy constituted evidence of discriminatory

intent.“ See Bernard, 841 F.2d at 547 (holding that an

employer’s unwritten and subjective standards for promo-

tion were not discriminatorily applied).

The plaintiffs introduced evidence of the compara-

tive seniority of white and black employees prior to

promotion to support their argument that D & L was

discriminating against blacks by promoting less senior

7Grizzard recommended to his supervisors that they consider

Harold Brown, Richard Grant, Marilyn Holmes, and Vera Wat-

son—all black employees—for promotion. Richard Williams, a black

supervisor, testified that he offered one promotion to four black em-

ployees, who rejected it, before offering it to Robert LaPresto, a

white employee. Charlie West, another black supervisor, recommend-

ed James Haney, a white employee, for promotion. L.C. Taylor, a

black shift supervisor, recommended Chris Strickland, a white

employee, for promotion while Howard Watson recommended Vera

Watson, a black employee, for a leader position. E.W. Tolbert, a

black supervisor, testified that he was involved in promoting Randy

Daniels, a white employee who was offered a promotion only after six

black employee had turned it down. See also part V.C infra.

We also note that D & L substantially increased the number of

blacks holding salaried supervisor positions, which the plaintiffs

exclude from their claim that D & L discriminated against black

employees with regard to promotions. Grizzard promoted E.W.

Tolbert from a shift supervisor position to production manager, the

second-in-command at the plant. Charlie West then took over

Tolbert’s position as a shift supervisor. Grizzard also promoted

Richard Williams from supervisor to department head, Vera Watson

to foreman and then to shift supervisor, and Harold Brown, Charlie

Lofton, and Sylvester Parker from foremen to salaried supervisors.

30a

whites.” The district court rejected this evidence be-

cause it ignored that more senior black employees turned

down several promotions later given to less senior white

employees.”

The average length of time between promotions

According to the plaintiffs, white employees between 1978 and

September 1982 worked for D & L on average 71.8 months before

promotion; black employees on average worked only 43.2 months

before promotion. During the presuit Grizzard years, the plaintiffs

contend that whites worked on average 15.1 months before promotion

and blacks worked on average 84.8 months. We note, however, that

using plaintiffs’ exhibit 144, whites apparently worked on average 51

months before promotion. While we have not recomputed every

number that the plaintiffs cite in their brief, we point out this

discrepancy to demon.irate the problems that exist with the plaintiffs’

statistical analysis.

The district court also stated that the plaintiffs’ evidence

"paint([ed] a distorted picture which attaches re-

sponsibility to Mr. Grizzard for the years before his

arrival that a black employee was not being promot-

ed instead of giving him credit for promoting black

employees his predecessors overlooked. From this

perspective, the court finds that the only way Griz-

zard could have passed muster was to continue to

bypass the senior black employees in favor of recent-

ly-hired black employees.... Moreover, plaintiffs

have chosen figures which attempt to compare the

pre- and post-Grizzard periods for promotions,

conveniently ignoring the fact that in the pre-Griz-

zard period blacks were given more favorable

treatment—the system was not neutral. Blacks were

on average less senior than their white counterparts

by some twenty-eight months.”

Record Excerpts at 101-02.

3la

may be relevant in proving discrimination by an employer.

See Pouncy, 668 F.2d at 804. However, we agree with the

district court that the statistics submitted by the plaintiffs

are fatally flawed because they overlook the black employ-

ees who turned down promotions later offered to white

employees. See Trevino, 811 F.2d at 902 (finding that the

plaintiffs’ statistics demonstrating a "significant disparity

between Hispanics and non-Hispanics for the total

elapsed time from the date of hire” to promotion was "not

compellingly persuasive evidence" of discrimination). For

example, Robert LaPresto, a white employee, was pro-

moted to leader after being employed by D & L for

approximately four months. However, the position was

first offered to four black employees who rejected it. D

& L promoted James Haney, another white employee, to

leader nine months after hiring him, but only after two

black employees first declined the offer of promotion. Six

black employees rejected a promotion given to white

employee Randy Daniels, whom D & L promoted to

leader less than two months after his employment be-

gan.! We also note that during the post-suit period,

during which blacks received 64% of the promotions to

leader and foreman and about which the plaintiffs do not

complain, blacks worked on average 154.9 months before

promotion while whites worked only 51 months. This

comparison demonstrates that statistics regarding the

relative seniority of workers promoted by D & L cannot

The plaintiffs contend that D & L knew that the black em-

ployees would turn down the promotion offers. The district court,

however, credited the testimony of E.W. Tolbert—D & L’s produc-

tion manager—that the black employees who turned down promotion

offers were offered multiple promotions because they were above-

average employees and their supervisors felt that they might accept

a new offer, an offer of a different job, or an offer made by someone

else. The district court was within its province to resolve credibility

disputes, Anderson, 470 U.S. at 575, 105 S.Ct. at 1512, and the district

court’s finding on this issue is not clearly erroneous.

32a

support a finding of disparate treatment. Cf, Pouncy, 668

F.2d at 803 (finding that a discrepancy between the mean

salaries of black and white employees could be explained

by "any number of nondiscriminatory factors," including

different skill levels, previous training, and experience).

Consequently, like the district court, we refuse to infer

from this evidence that D & L’s promotion practices

unlawfully disfavored black employees.

The district court considered evidence put forward

by the plaintiffs with regard to alleged individual instances

of discrimination and concluded that D & L gave legiti-

mate reasons why it did not promote most of the individu-

als at issue. The district court also found that D & L did

not promote the other individuals simply because they

were overlooked or did not come to the attention of

management.” See part VIII.C infra. Thus, the anec-

dotal evidence did not, as the plaintiffs assert, support a

finding that D & L engaged in a pattern or practice of

discrimination. See Texas Dept. of Community Affairs v.

Burdine, 450 U.S. 248, 259, 101 S.Ct. 1089, 1097, 67

L.Ed.2d 207 (1981) ("The fact that a court may think that

the employer misjudged the qualifications of the appli-

*The plaintiffs contend that the district court's findings would

allow D & L to discriminate against many black employees without

hindrance as long as the Company treated other blacks the same as

white employees. However, "this attack overstates the impact of the

district court’s ... analysis." Lewis, 750 F.2d at 1274 n. 11. D& L

introduced evidence demonstrating that legitimate reasons lay behind

the delayed promotions for some blacks and the relatively early

promotions for some whites. This evidence, as the district court

properly found, tended to negate the plaintiffs’ attempted showing

that a pattern or practice of discrimination in D & L’s promotion

_ policies existed. Id.

33a

cants does not in itself expose him to Title VII liabili-

ty...."); Odom v. Frank, 3 F.3d 839, 849-50 (Sth Cir.1993)

(noting that the perpetuation of a "good old boy" network

does not amount to racial discrimination). Consequently,

the district court did not clearly-err in concluding that the

plaintiffs’ anecdotal evidence did not support their claim

of disparate treatment. See Lewis, 750 F.2d at 1276-77

(finding that anecdotal evidence supported a finding only

of isolated instances of discrimination).

The plaintiffs further contend that the district

court erred in rejecting their attempt to buttress their

statistical evidence of discrimination with evidence

regarding D & L’s history of discrimination. The plain-

tiffs argued that D & L's supervisors both used racially

derogatory language in speaking to black employees and

physically abused them, without any repercussions from

upper management. After reviewing the anecdotal

evidence presented by the plaintiffs, the district court

concluded that D & L at no time encouraged or con-

doned any mistreatment of black employees by supervi-

sors. Specifically, the district court found that

{t]he sum total of the evidence with regard to

these allegations of what constitutes a claim of

hostile environment in the form of disparate

treatment of black employees amounts, at best, to

proof of isolated acts of the use of vulgar or

racially derogatory language by no more than two

or three company officials and a single instance of

physical contact between a company official and a

single black employee, all occurring over a period

of three or more years. What is also abundantly

clear is that when reported to the appropriate

company Officials, every complained of incident

34a

was immediately followed by affirmative company

action in the form of apologies to the employees

involved, counseling of the managers involved,

and/or discipline of those management officials.

Moreover, the plaintiffs’ allegations relate to the

time period after the arrival of the Plant Manager

James Grizzard, with there being not a scintilla of

evidence that Grizzard participated in or condoned

any of the complained of acts, with the exception

of possibly two instance of the use of vulgar

language, both of which, under the undisputed

circumstances, the court finds to have been justi-

fied, and one, about which the union filed a griev-

ance, for which Mr. Grizzard apologized.”

Record Excerpts at 129-30. The district court further

found that some of the individuals who alleged that D &

L officials used racially derogatory language were not

credible.

It is within the province of the district court to

resolve credibility disputes. Anderson, 470 U.S. at 564,

105 S.Ct. at 1504. Moreover, the "mere utterance of an

ethnic or racial epithet which engenders offensive feelings

in an employee" is not indicative of a pattern or practice

Plaintiff Daniel Anderson testified that upon returning to work

from a doctor’s examination, his supervisor refused to let him take a

break that he had missed. Anderson then clocked out and left the

plant. Grizzard confronted Anderson the next day, asking him "who

in the hell did he think he was to be able to just leave because he

couldn't take his break.” On the second occasion, Grizzard used the

term "son-of-a-bitch" when he discovered that someone had removed

a notice from the company bulletin board. When the union filed a

grievance regarding the incident, Grizzard issued a written apology

that explained his comments were not directed to any of the employ-

ees within earshot.

35a

of racial discrimination in violation of Title VII. Rogers

v. EEOC, 454 F.2d 234, 238 (Sth Cir.1971), cert. denied,

406 U.S. 957, 92 S.Ct. 2058, 32 L.Ed.2d 343 (1972). After

undertaking an independent review of the record, we

conclude that the district court did not err in finding that

the evidence demonstrated, at best, only isolated instances

of racially motivated acts insufficient to establish class-

wide disparate treatment.” See Bernard, 841 F.2d at 569

(holding that the anecdotal testimony of the plaintiffs’

witnesses did not establish class-wide disparate treatment).

The class plaintiffs finaily argue that the district

court erred in finding that D & L did not discriminate

against blacks when giving temporary upgrade assignments

to general maintenance and rack maintenance posi-

tions.> They contend that the statistical evidence dem-

onstrated a gross disparity in the treatment of white and

black employees, thus establishing a prima facie case of

*We also note that two black salaried supervisors—Charlie West

and E.W. Tolbert—and a black foreman—Monroe O’Neal—testified

that Grizzard was "a good man,” "a super plant manager,” and was not

prejudiced. Moreover, Tolbert stated that Howard Watson was an

"outstanding production manager” who also was not prejudiced.

3SGeneral and rack maintenance positions are two of the job

classifications at D & L’s plant considered to be "craft" positions.

36a

discrimination.” It does not appear that the plaintiffs

presented any expert testimony explaining the meaning or

statistical significance of this evidence. Consequently, our

review of the evidence has been unduly hampered by the

*The plaintiffs claim that the following statistical evidence

established a prima facie case of discrimination:

Table 6. Temporary Upgrades to General Maintenance:

Percentage of Total Hours Assigned

Time Period % White % Black

Pre-Grizzard Period 11.60% 88.40%

[1/15/81-10/2/82}

Grizzard Pre-Suit Period 92.59% 740%

[ 10/2/82-7/4/85 }

Post-Suit Period 46.60% §3.40%

(7/5/85-9/19/85}

Table 7. Temporary Upgrades to Rack Maintenance:

Percentage of Total Hours Assigned

Time Period % White %_Black

Pre-Grizzard Period 85.40% 14.61%

Grizzard Pre-Suit Period 100.00% 0.00%

Post-Suit Period 0.00% 100.00%

Brief for Plaintiffs at 66. In presenting these statistics, the plaintiffs

stated only that the statistics were "drawn from [the] stipulated data.”

After much searching, we discovered that the raw data undergirding

these statistics was presented to the district court through a ‘oini

stipulation.

37a

plaintiffs’ failure to establish whether their statistics were

meaningful or significant in light of the particular facts of

this case. See Teamsters, 431 U.S. at 340, 97 S.Ct. at 1857

(noting that the "usefulness [of statistics] depends on all

of the surrounding facts and circumstances"). Neverthe-

less, after closely reviewing the plaintiffs’ evidence, we

conclude that the plaintiffs failed to establish a prima

facie case of discrimination.

Eleven employees, three of whom were black,

received temporary upgrades to‘general maintenance jobs

during the Grizzard pre-suit period. During this period,

two white employees—William Myers and James Par-

tridge—received 68% of the total temporary-upgrade

hours. By comparison, two black employees—James

Triplett and Alfred Kemp, Sr.—received approximately

88% of all temporary-upgrade hours during the pre-Griz-

zard period; in the post-suit period, one white employ-

ee—Robert Haynes, Jr—and one black employ-

ee—Arthur Perry—received approximately 94% of all

temporary-upgrade hours. The plaintiffs introduced no

evidence demonstrating that other individuals desired or

were qualified for temporary-upgrade positions.*” Con-

sequently, we have nothing with which to compare the

plaintiffs’ Statistics. Asa result, the statistics are meaning-

less.

For example, the plaintiffs did introduce evidence pertaining to

the qualifications of Thomas Hardy and Daniel Anderson, Jr. for

temporary upgrade assignments. These two individuals, however,

were not qualified for such assignments. See part VIII.D infra.

*The plaintiffs’ statistics regarding the number of rack-main-

tenance temporary-upgrade hours worked by blacks suffer from the

same problems. For example, out of the three employees given

temporary upgrades in the pre-Grizzard period, a white employ-

(continued...)

38a

Other evidence supports the district court’s deter-

mination that D & L did not discriminate in giving

employees temporary upgrade assignments. For example,

the percentage of blacks in permanent craft positions

during the Grizzard years ranged from 66.7% to 73.7%.

During the immediately preceding years, blacks comprised

57.1% to 63% of the employees in craft positions.”

Moreover, D & L during the Grizzard years awarded

seven out of the eight permanent promotions to craft

positions to black employees. Moreover, Alfred Kemp,

one of the black employees who received no temporary

upgrades during the Grizzard pre-suit period but did

during both the pre-Grizzard and post-suit periods,

testified unequivocally that D & L was a good place to

work and always treated him fairly. We also note the

lack of evidence regarding the number of employees,

black and white, who received temporary upgrades to

craft positions in non-maintenance departments. See

Wards Cove, 490 U.S. at 651-53, 109 S.Ct. at 2122 (noting

that plaintiffs should not unnecessarily segment the

**(...continued)

ee—Willie Mullen—worked approximately 82% of the total hours.

In the Grizzard pre-suit period, one white employee—Edward

Otto—worked 100% of the hours. In the post-suit period, one black

employee—Alfred Kemp, Sr.—received 95% of the temporary

upgrade hours.

*The 1980 census figures for Bolivar County indicate that blacks

held only 33.4% of ail precision production craft and repair positions

county-wide.

“Howard Watson, who had to approve Kemp's availability for

temporary assignments, supplied a legitimate, nondiscriminatory

reason for Kemp's lack of temporary upgrade assignments during the

Grizzard pre-suit period. Watson testified that he sometimes refused

to approve Kemp for temporary upgrades because Kemp was needed

in a production department.

39a

employer’s work force in an attempt to prove discrimina-

tion). We therefore agree with the district court’s conclu-

sion that D & L did not discriminate in selecting employ-

ees for temporary upgrade assignments in the rack

maintenance and general maintenance departments.

VII

The statistical evidence presented by the plaintiffs

does not present the gross statistical disparity that, when

considered in light of the entire record, would require a

reversal of the district court’s ultimate findings that no

pattern of discrimination existed with regard to D & L’s

hiring and promotion practices. Nor is the historical and

anecdotal evidence introduced by the plaintiffs sufficient

to support a finding of disparate treatment. Accordingly,

we AFFIRM the district court’s judgment on the class

claims.

Vill

The district judge rejected the individual claims of

various plaintiffs challenging the treatment they received

pursuant to D & L’s hiring, promotion, and termination

policies. "In a disparate treatment case involving an

individual, the plaintiff initially has the burden of showing

a prima facie case of discrimination." Carroll, 708 F.2d at

195. A plaintiff meets this initial burden by demonstrat-

ing

(i) that he belongs to a racial minority; (ii) that he

applied and was qualified for a job for which the

employer was seeking applicants; (iii) that, despite

his qualifications, he was rejected; and (iv) that,

after his rejection, the position remained open and

the employer continued to seek applica[tions] from

persons [who possessed the plaintiff's] qualifica-

40a

tions.

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93

S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). "Establishment

of the prima facie case in effect creates a presumption

that the employer unlawfully discriminated against the

employee." Burdine, 450 U.S. at 254, 101 S.Ct. at 1094.

If the plaintiff establishes a prima facie case of discrimina-

tion, "the burden shifts to the employer to rebut the

presumption of discrimination by producing evidence that

the plaintiff was rejected, or someone else was preferred,

for a legitimate, non-discriminatory reason." Carroll, 708

F.2d at 195. If the employer "carries this burden of

production, the presumption raised by the prima facie

case is rebutted" and drops from the case. Burdine, 450

U.S.-at 255 & n. 10, 101 S.Ct. at 1095 & n. 10. "The

plaintiff then has ‘the full and fair opportunity to demon-

strate,’ through presentation of his own case and through

cross-examination of the defendant's witnesses, ‘that the

proffered reason was not the true reason for the employ-

ment decision,’ and that race was." St. Mary’s, --- U.S. at -

---, 113 S.Ct. at 2747 (quoting Burdine, 450 U.S. at 256,

161 S.Ct. at 1095). The plaintiff at all times bears the

burden of persuading the court that he or she was the

victim of intentional discrimination." Id. --- U.S. at ----,

113 S.Ct. at 2747-48.

A number of individual plaintiffs claim that D &

“"When a case has been fully tried on the merits, the adequacy

of a party’s showing at any particular stage of the McDonnell Douglas

ritual is unimportant. We focus our inquiry on whether the record

contains evidence upon which a reasonable trier of fact could have

concluded as the jury did.” Molnar v. Ebasco Constructors, Inc., 986

F.2d 115, 118 (Sth Cir.1993) (citation omitted).

4la

L unlawfully discriminated against them on the basis of

race by refusing to give them applications during the

Grizzard years—October 1982 through April 1986. The

district court found that some of the plaintiffs were not

credible because, during the time they allegedly could not

obtain applications, other blacks were given applica-

tions.” Furthermore, the district court found that D &

L properly refused to give many of the plaintiffs applica-

tions because the Company either was not hiring when

the plaintiffs were seeking applications or was hiring but

had already received a sufficient number applications for

the positions to be filled. The district court's findings are

not clearly erroneous. An extensive review of the record

has convinced us that it contains no evidence indicating

that the plaintiffs were not given applications because of

their race.” The only evidence supporting the plaintiffs’

“For example, plaintiff Chris Harris testified that she and two

other blacks were able to obtain applications in October 1984.

Plaintiff Linda Davis testified that although she was not able to

procure an application, her sister and another person obtained

applications. Plaintiff Bobbie Sharp testified that while she was not

able to obtain an application in mid-1984, she did obtain an applica-

tion from D & L in mid-1983; Sharp also testified that on the latter

occasion, she saw other blacks filling out applications. Thomas

Hardy, a D & L employee, testified that his wife procured an

application from D & L in 1984, while Malcolm Smith testified that

he obtained an application October 2, 1982 and was hired the next

month. Kimroy Williams, a D & L employee, testified that three of

his relatives applied for employment with D & L during the Grizzard

years.

“The plaintiffs also complain that the application procedures

instituted by Haynes when she became personnel manager—making

all applicants come to the plant, refusing to allow employees to take

blank applications home with them—were intended to harm potential

black applicants. However, D & L demonstrated that it had

legitimate, nondiscriminatory reasons for changing the application

(continued...)

42a

allegations that D & L refused to give blacks employment

applications is the plaintiffs’ unsupported assertions

concerning their collective belief that D & L discrimina-

ted against blacks.“ Under D & L’s application policy,

see part I.A supra, there were legitimate, nondiscriminato-

ry reasons why D & L did not give applications to the

plaintiffs. Because the plaintiffs failed to demonstrate

that race was the true reason for D & L’s refusal to give

them applications, we uphold the district court’s finding

that D & L did not discriminate against the plaintiffs. See

Odom v. Frank, 3 F.3d 839, 849 (Sth Cir.1993) (holding

that anecdotal evidence and mere speculation will not

support a finding that an employer followed an unwritten

"policy" of discrimination); Carrol, 708 F.2d at 195-96

(noting that the mere suspicion of discrimination is not

sufficient to establish disparate treatment).

“(...continued)

process. For example, Haynes testified that when she allowed

employees to take applications from the plant, many were never

returned. She also stated that making potential employees come to

the plant to obtain and complete applications helped to ensure that

the people applying actually wanted the job, had transportation to

and from the plant, and could read and write. The district court

credited her testimony, and this finding is not clearly erroneous.

“For example, although Miller Slaughter testified that D & L did

"a lot of discriminating,” she would not consider a company that has

a large percentage of black employees to be acting discriminatorily.

Melvin Shaw testified that he was discriminated against simply “be-

cause [he] knew [he] was qualified to work [at D & L] but ... didn’t

even receive an application." Moreover, the plaintiffs uniformly

testified that neither Haynes nor D & L's security guards treated

them in a harsh manner or directed derogatory or vulgar language at

them.

43a

Plaintiffs Chris Harris and Bobbie Sharp contend

that D & L unlawfully discriminated against them on the

basis of race by refusing to hire them for production

positions. The district court found that D & L did not

hire Harris and Sharp for valid, race-neutral reasons. For

example, Harris, who applied when D & L was hiring only

for the night shift, indicated on her application that she

attended afternoon and evening classes at a local college.

Haynes testified that she believed she did not hire Harris

because of the conflict between Harris’s classes and the

shift for which she was hiring. The district court noted

that although Haynes’s explanation was not absolute, no

evidence suggested that race affected Haynes's decision

not to hire Harris. This finding is not clearly erroneous.

See Odom, 3 F.3d at 845 ("Although Strader’s testimony

-- was less than absolute, it constituted at least some

evidence. More significantly, it was uncontradicted. As

Odom adduced no evidence favorable to his position ...,

we are compelled to accept Strader’s legitimate, non-dis-

criminatory explanation...."); cf. St. Mary’s, --- U.S. at ----

n. 5, 113 S.Ct. at 2751 n. 5 ("The notion that every

reasonable employer keeps ‘personnel records’ on people

who never became personnel, showing why they did not

become personnel (i.e., in what respects all other people

who were hired were better) seems to us highly fanci-

ful—or for the sake of American business we hope it is.").

Likewise, Sharp failed to adduce any evidence indicating

that D & L unlawfully considered her race when deciding

not to hire her. Moreover, at the same time Harris and

Sharp were not hired, D & L hired other blacks as

production workers. Thus, the district court's finding that

D & L did not discriminate against her is not clearly

erroneous. See Carroll, 708 F.2d at 195 (noting that the

mere suspicion of discrimination docs "not establish

disparate treatment").

44a

Plaintiffs Nathaniel Cannon, Michael O’Neal, and

Gregory Townsend contend that D & L unlawfully

discriminated against them by refusing to rehire them

after they had been laid off.” The district court found

that these plaintiffs adduced no evidence indicating that

race was a factor in D & L’s decision not to rehire them.

In fact, the record indicates that D & L rehired twenty-

two blacks, and only fourteen whites, during the Grizzard

years. We hold that the district court did not err in

finding that D & L did not rehire Cannon, O’Neal, and

Townsend because of legitimate, race-neutral reasons.

See Carroll, 708 F.2d at 195 (noting that the mere suspi-

cion of discrimination does "not establish disparate

treatment").

Plaintiffs Moses Coleman, Richard Grant, Earnest

Hall, Robert Melvin, Alexander Smith, and Kimroy

Williams claim that D & L, in failing to promote them to

leaders and foremen, discriminated against them on

account of their race. The district court found that the

plaintiffs failed to demonstrate that race played any part

in D & L’s failure to promote them. This finding is

supported by the record evidence.

In selecting leaders and foremen, D & L consid-

ered the employee’s attitude, work record, work experi-

ence, leadership abilities, willingness to help other

employees, commitment to the Company, and seniority to

be very important. The record reflects that each plaintiff

was lacking in one or more of these attributes during the

Grizzard years. See Davis v. Chevron U.S.A., Inc., 14 F.3d

“Cannon, O’Neal, and Townsend were not entitled to be recalled

under the terms of D & L’s collective bargaining agreement.

4Sa

1082, 1087 (Sth Cir.1994) (noting that to establish a prima

facie case of discrimination, an applicant must be quali-

fied for the sought position at the time he or she applies

for it). For example, Gerald Bardwell, Coleman’s supervi-

sor, stated that Coleman, when temporarily filling in for

foremen, was unable to handle the job and had employees

"goofing off on him." Howard Watson testified that

department supervisors never recommended Coleman for

promotion. Additionally, both Grant and Hall had both

turned down previous offers of promotion to leader

positions, indicating a lack of commitment to D & L.“

Charlie West, a black supervisor, testified that he did not

consider Grant for one promotion because he did not

know Grant. Byron Kyle, a department superintendent,

testified that Grant did not have any leadership abili-

ties.’ Richard Williams, a black supervisor, and Howard

Watson testified that Melvin and Kimroy Williams did not

show any interest in being promoted and did only enough

work to get by, thereby demonstrating little desire for

advancement and no commitment to the Company.

“Hall challenges D & L’s assertion that he rejected an offer of a

promotion. However, Grizzard and Howard Watson, the production

manager at the time, both testified that Hall did turn down a

promotion because the promotion would have required Hall to work

on the second shift. The district court credited this testimony over

that of Hall. This determination was not clearly erroneous. See

Anderson, 470 U.S. at 574, 105 S.Ct. at 1511-12.

“Moreover, Grant admitted that he was not qualified for

promotion until 1985. However, he filed an EEOC charge in 1984

alleging that D & L failed to promote him for discriminatory reasons.

Grant explained this inconsistency by stating that he did not read the

EEOC charge before he signed it and thus had no idea what the

charge alleged.

“After D & L noticed a change in Williams's attitude in 1987, the

Company promoted him.

46a

Tommy Lucas, a foreman in the paint department and

former union steward, testified that Smith had an attitude

problem.

The plaintiffs failed to demonstrate that their race

played any role in D & L’s failure to promote them. See

Carroll, 708 F.2d at 196 (rejecting a claim that an employ-

ee was discriminatorily denied promotion because his

supervisors testified that his attitude and lack of depend-

ability were the actual reasons); Pouncy, 668 F.2d at 795

(rejecting an employee’s promotion claim because the

employee did not possess the initiative or the ability to

communicate with and train his co-workers). At most, the

plaintiffs proved that D & L may have overlooked one or

more of them when considering potential candidates for

promotion. Such a showing is insufficient to prove

discrimination. Cf. Odom, 3 F.3d at 849-50 (noting that

the perpetuation of a "good old boy" network does not

amount to racial discrimination). Accordingly, the

plaintiffs failed to prove that D & L did not promote

them on account of their race.

Daniel Anderson, Jr. and Tommy Hardy argue

that D & L refused to give them temporary upgrade

assignments in the general maintenance or rack mainte-

nance departments because of their race. Welding

experience was necessary for many of the tasks performed

by general maintenance employees, and welding was the

primary duty of rack maintenance employees. The district

court found that D & L did not give Anderson and Hardy

temporary upgrade assignments because they lacked the

necessary experience to work in the maintenance depart-

ments.

Both Anderson and Hardy testified that they had

47a

only a limited amount of welding experience.“ More-

over, they presented no evidence demonstrating that what

little welding experience they had qualified them to

perform the duties of general and rack maintenance

employees. Finally, they introduced no evidence suggest-

ing that any white employee who received an upgrade was

unqualified (or less qualified than the plaintiffs). Because

the district court’s finding that Anderson and Hardy were

not qualified to receive temporary upgrades is not clearly

erroneous, the district court’s conclusion that Anderson

and Hardy failed to establish a prima facie case of

discrimination is supported by the evidence.

Anderson further contends that D & L discrimi-

nated against him by not permanently promoting him to

the rack maintenance department. Anderson and James

Bruce, a white employee, submitted bids for a permanent

rack maintenance position. Both Anderson and Bruce

were interviewed. The notes of the interviewer indicated

that he considered Anderson’s limited welding experience,

Bruce’s more extensive welding experience, Anderson’s

"poor attendance," and Bruce’s "very good" attendance in

determining who to recommend for the promotion.”

Moreover, the notes also indicate that a black employee

with more seniority than Bruce turned down the job.

“Hardy testified that he had done some welding in an auto body

shop and took high school welding classes in the early 1970s.

Anderson also admitted that he had little welding experience,

although he had taken "mechanics" classes in high school.

©The plaintiffs, without citing any authority, contend that the

district court erred in relying on these notes because the interviewer

never testified. However, the notes were attached as an exhibit to a

joint stipulation submitted to the court by both parties. Because the

stipulation stated that both it and the attached "exhibits shall be

received in evidence at the trial of this case,” the plaintiffs’ contention

is without merit.

48a

Thus Anderson did not establish a prima facie case of

discrimination because he was not qualified for the

promotion which he sought.*' Moreover, even if Ander-

son did establish a prima facie case, D & L demonstrated

by a preponderance of the evidence that it rejected

Anderson for legitimate reasons. Accordingly, the district

court properly found that Anderson failed to demonstrate

that he was the victim of discrimination.

Four plaintiffs—Belinda Cox, Robert Haywood

III, Synovia Jackson and Jesse Overstreet—contend that

the district court erred in finding that D & L did not

discharge black employees under its garnishment policy,

see part I.D supra, in retaliation for filing EEOC charg-

es.“ To establish a prima facie case of retaliatory

discharge under § 2000e-3(a) of Title 42,° a plaintiff

must demonstrate (1) that he engaged in activity protect-

ed by Title VII, (2) that an adverse employment action

*'Anderson also argues that he had experience "fixing’ D & L

machines and therefore was qualified for the promotion. However,

Wallace Bailey, the maintenance department superintendent, testified

that Anderson’s experience "fixing" machines simply involved routine

preventive maintenance duties performed by all D & L employees

and was not similar to the duties performed by maintenance depart-

meut employees.

The plaintiffs do not appeal the district court’s conclusion, based

on our holding in Carter v. South Central Bell, 912 F.2d 832 (Sth

Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2916, 115 L.Ed.2d 1079

(1991) that their claims of retaliatory discharge were not actionable

under § 1981.

This section prohibits an employer from "discriminat{ing] against

any of his employees ... because [the employee] has made a charge ...

under this subchapter.” 42 U.S.C. § 2000e-3(a).

49a

occurred, and (3) that a causal link between participation

in the protected activity and the adverse employment

decision exists. Shirley v. Chrysler First, Inc., 970 F.2d 39,

42 (Sth Cir.1992). Once a plaintiff establishes a prima

facie case, the employer bears the burden of articulating

some legitimate, nondiscriminatory reason for its action.

Id. If the defendant does so, the employee bears the

ultimate burden of showing that the reasons given by the

employer were a pretext for retaliation. /d.

The parties appear to agree that the plaintiffs

passed the first two prongs of the retaliation test, as they

filed EEOC charges and subsequently were terminated

from their positions.” They disagree, however, about

the causal link between their terminations and the filing

of the EEOC charges. The plaintiffs argue that but for

the filing of the EEOC complaints, they would not have

been fired. D & L counters by arguing that there is no

causal connection between the plaintiffs’ terminations and

their protected activities. D & L further argues that even

if the plaintiffs did establish a prima facie case of retalia-

tion, it articulated a legitimate, nondiscriminatory reason

for their discharges—violations of the garnishment policy.

The district court found that the plaintiffs failed to

show a causal connection between the filing of the

charges and their terminations. The district court further

found that the evidence demonstrated legitimate, nondis-

criminatory reasons for the _ plaintiffs’ termina-

tions—violations of the garnishment policy. These

findings are not clearly erroneous. It is undisputed that

“Haywood did not file EEOC charges, but his father did.

50a

the plaintiffs did in fact violate the garnishment policy.”

Because the penalty for such a violation was termination,

D & L properly terminated the plaintiffs. See Lewis, 750

F.2d at 1279 (holding that when some evidence substanti-

ates a claim of retaliation while other evidence demon-

strates that the employer acted for innocent reasons, the

district court did not clearly err in rejecting the retaliation

claim).

The plaintiffs argue their terminations are causally

related to their protected activity because D & L did not

discharge other employees who violated the garnishment

policy if those employees or their relatives had not filed

EEOC charges. The plaintiffs point to seven individuals

whom they argue should have been discharged under the

policy but were not. Six of the individuals named by the

plaintiffs, however, did not violate the garnishment

policy. Moreover, the mere fact that one individual

Jackson argues that D & L terminated her one day before the

30-day grace period for her fourth garnishment expired. Haynes,

however, testified that she measured the grace period monthly—i.e.,

if an employee was notified of a garnishment on the fifth day of one

month, the grace period expired on the sixth day of the following

month. Thus, while the grace period usually was 30 days, in some

instances it actually was either 29 or 31 days. Because Jackson was

notified of her fourth garnishment on February 12, 1985 and fired on

March 13, her termination was totally consistent with D & L’s

customary application of the garnishment policy.

*The plaintiffs contend that D & L would have discharged

Charles Daniels, Larry Drake, Hazel Lofton, Alice Stapleton, Larry

Wesley, and Eddie Williams had the garnishment policy been applied

nondiscriminatorily. However, the district court found that Daniels

did not violate the policy because Haynes, in applying the policy, did

not count garnishments that employees received before she ‘came

personnel manager; Drake, Lofton, and Williams did not violate the

(continued...)

Sla

violated the policy without being fired, does not by itself

amount to race-based discrimination. See Lewis, 750 F.2d

at 1278 n. 19 (finding that irregular exceptions to a valid

licy did not support a retaliation claim); cf. Odem v.

Frank, 3 F.3d 839, 850 (Sth Cir.1993) (noting that "misfea-

sance, malfeasance, or nonfeasance—without nexus to ...

race—is not actionable"). Furthermore, contrary to the

plaintiffs’ contention, the evidence indicates that D & L

discharged under the garnishment policy other black

employees who had not filed EEOC claims.” Addition-

ally, the plaintiffs presented no evidence suggesting that

D & L did not discharge white employees who violated

the policy. Consequently, the district court did not err in

finding that no causal link existed between the filing of

the EEOC charges and the plaintiffs’ discharges. We

therefore uphold the district court’s finding that D & L

%(...continued)

policy because the thirty-day grace period for the fourth garnishment

extended over two years beyond the date that they received their first

garnishment; Williams did not violate the policy because his fourth

garnishment was released before the end of the thirty-day grace

period; Stapleton filed a bankruptcy petition, which barred D & L

from counting the garnishments against her; and Wesley did not

violate D & L’s garnishment policy either because Haynes did not

count garnishments received before she became personnel manager

or because Haynes simply misapplied the policy. After reviewing the

record, we have determined that these findings are not clearly

erroneous. Moreover, Lofton was the sister of Robert Melvin, who

not only filed EEOC charges but was a named plaintiff in this suit.

This fact is wholly inconsistent with the plaintiffs’ contention that D

& L discharged under the garnishment policy only those black

employees who filed EEOC charges themselves or had close relatives

do so.

SF) & L discharged Lester Archie, James Humphrey, and J immie

James for violations of the garnishment policy. Moreover, D&L

discharged Humphrey on the same day that it discharged plaintiff

Belinda Cox.

52a

did not discharge the plaintiffs in retaliation for their

participation in protected activity.

The plaintiffs failed to produce sufficient evidence

demonstrating that D & L engaged in any race-based

discrimination. Accordingly, we AFFIRM the judgment of

the district court in all respects.

JOHNSON, Circuit Judge, dissenting in part:

The facts here clearly show that there have been

scores of individuals who have endured racial discrimina-

tion at the behest of Douglas and Lomason ("D & L").

Many of these individuals have been pressured by the

president of the company to drop this cause of action "for

the good of the company." Instead of bowing to the

company president’s threats of closing the plant and

laying off hundreds of people because of this lawsuit, the

plaintiffs have stood up for what they believed to be their

rights to equal employment. Despite a plethora of

evidence which seems to overwhelmingly support the

Plaintiff's contentions, the district court found that no

racial determination occurred. The majority affirms.

After carefully reviewing the record, this writer is con-

strained to dissent.

A. Disparate Impact in Hiring

1. The Law

The most appropriate place to begin an analysis of

disparate impact claims is the law. The seminal disparate

53a

impact case, Griggs v. Duke Power Co., explained that

Congress’ objective in enacting Title VII was to "achieve

equality of employment opportunities and remove barriers

that have operated in the past to favor an identifiable

group of white employees over other employees.” 401

U.S. 424, 429-30 (1971). The Court went on to determine

that "practices, procedures, or tests neutral on their face,

and even neutral in terms of intent, cannot be maintained

if they operate to ‘freeze’ the status quo of prior discrimi-

natory employment practices." 401 U.S. at 429-30, 91

S.Ct. 849, 853, 28 L.Ed.2d 158. According to the Court,

"good intent or absence of discriminatory intent does not

redeem employment procedures or testing mechanisms

that operate as ‘built-in headwinds’ for minority groups

and are unrelated to measuring job capability." Jd. at 432,

91 S.Ct. at 854.

The Court elucidated the proof requirements for

disparate impact cases in Wards Cove Packing Co., Inc. v.

Atonio, 490 U.S. 642, 109 S.Ct. 2115, 104 L.Ed.2d 733

(1989). It ruled that for a Title VII plaintiff to successful-

ly present a disparate impact claim, he or she must point

to a particular employment practice that has created such

disparate impact. /d. at 657, 109 S.Ct. at 2124-25. The

plaintiffs in Wards Cove alleged that the practices in

question were, inter alia, nepotism, the creation of

separate hiring channels, the practice of preferential

treatment in rehiring, and the use of subjective decision

making. Jd. The Supreme Court concluded that the

plaintiffs had properly presented a disparate impact claim

by pointing to such practices which, if proved, would

support a finding of racial discrimination. /d.

2. Alleged Discriminatory Employment Practices

In the instant case, the district court concluded

that Plaintiffs had failed to identify which of D & L's

54a

employment practices adversely impacted African Ameri-

cans. The majority asserts that the Plaintiffs did, in fact,

identify an employment practice—namely, D & L’s policy

which requires applicants to complete applications at the

plant. However, the majority asserts that such a practice

could not justify resort to the disparate impact theory.

Maj. slip op. at 4792.

The record belies the conclusions of both the

majority and the district court. The pretrial order, signed

by the district court, agreed to by counsel for each party,

and filed just over one month prior to the trial, states

plainly, "Plaintiffs allege that the defendant company has

discriminated against blacks in hiring, both by restricting

access to application forms and by failing and refusing to

hire those blacks who are permitted to fill out application

forms on the same basis as whites who fill out application

forms." R. at 2590. Restricting access to application

forms and using different hiring standards for blacks, as

opposed to whites, are both employment "practices" which

justify the application of the disparate impact theory to

the facts of this case.

3. Anecdotal Evidence

The majority "found" that the "record contains no

evidence indicating that D & L’s application procedures

affected potential black applicants any differently than

potential white applicants." Maj. slip op. at 4793.

Reading the record reveals otherwise. The record quite

readily shows that D & L’s application procedures almost

exclusively affected blacks. D & L’s expert, Dr. Joan

Haworth, testified that the hiring practices initiated by

Patty Haynes—specifically the restriction of application

forms—caused "wild fluctuations" in the percent of black

5Sa

applicants who were hired.' The defense "hung its hat"

on this explanation. In its argument to the district court

during its Rule 41 motion, D & L’s attorney contended

that Patty Haynes’ change in the hiring procedures alone

was enough to cause the change in the proportion of

black hires from the pre-Grizzard era.

D & L’s—and Plaintiffs’-—contention that Ms.

Haynes practice of restricting access to application forms

caused the changes in black hires at the Cleveland plant

is completely substantiated by the record?” D & L and

Plaintiffs introduced into evidence dozens of depositions

of black individuals who had attempted to obtain, but who

were refused, applications from D & L when the company

was hiring. Many of the deponents identified black

friends and/or family members who were also denied the

opportunity to file applications.’ In all, Plaintiffs identi-

fied more than fifty blacks to whom D & L refused

‘Prior to James Grizzard’s arrival at the Cleveland plant, 64.6%

of those hired for general factory jobs at D & L were black. When

Mr. Grizzard became plant manager, that number dropped to 46.5%.

After Mr. Grizzard left, the black hires rose to 61.1%.

Even the district court recognized that Patty Haynes’ employ-

ment practices may have adversely affected blacks. In discussing the

fact that the percentage of black hires dropped significantly during

the Grizzard years, as compared with the pre-Grizzard years, the

court concluded, "Finally, plaintiffs’ analysis in this instance fails to

take into consideration the difference in the practices and procedures

initiated by Ms. Haynes which were in effect during the Grizzard

years and differed substantially from what was done by her predeces-

sor.” Op. at 18-19.

*The district court correctly recognized that these statements are

hearsay in nature. However, it neglected to recognize that D & L

never objected to the introduction of the depositions on that basis or

on any basis.

S6a

applications. The vast majority of these people attempted

to obtain applications numerous times. Many of them

asserted that they became discouraged and stopped trying

to obtain applications. Further, there is no dispute that

a great number of them sought to apply for jobs at D &

L when the company was hiring. Reviewing this evidence,

the majority properly claims that "the black individuals

turned away at the gate by D & L guards never saw D &

L give any applications to whites seeking employment."

Maj. slip op. at 4793 (emphasis added). However, that

finding probably provides little comfort to the blacks who

testified that they not only saw whites obtaining applica-

tions, but also saw whites being hired at the same time

that blacks were being turned away in the personnel

office—as opposed to the gate.‘

One would think—and the law certainly re-

quires—that the restriction of applications would impact

on whites equally. However, such is far from the case

here. As compared to the two and one-half score blacks

who were refused applications, D & L presented the

“For example, J.C. Evans, a black man, stated that he followed

Bobby Jolly, a white school mate, into the personnel office. He saw

Patty Haynes talking to Jolly and a group of approximately ten other

white individuals. Mr. Evans could not hear what Ms. Haynes told

the white applicants. However, as Jolly started to leave the area, he

passed Evans and informed Evans that he, Jolly, had been hired.

Patty Haynes told Evans to come back the next day. He left without

an application, and when he returned the following day pursuant to

Ms. Haynes’ instructions, he was told that the company was not

hiring.

Likewise, Ms. Lizzie White, a black woman, explained in an

affidavit that she visited the personnel office at the same time that

Teresa Boswell, an acquaintance who was white, visited the office.

Ms. Boswell not only obtained an application, but she was also hired

the same day. Ms. White was turned away without an application.

S7a

resounding number of three whites who had been refused

applications. Although dozens of blacks sought to obtain

applications while the company was hiring, not one of the

white potential applicants sought an application during

such periods.

4. Statistical Evidence

a. The Law

The disparate impact model usually focuses on

statistical analysis. Watson v. Fort Worth Bank and Trust,

487 U.S. 977, 987, 108 S.Ct. 2777, 2784-85, 101 L.Ed.2d

827 (1988). Statistical data is probative, however, only if

it properly compares relevant elements. See Hazelwood

School District v. United States, 433 U.S. 299, 97 S.Ct.

2736, 53 L.Ed.2d 768 (1977). The "proper comparison [is]

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

the racial composition of the qualified ... population in

the relevant labor market." Wards Cove, 490 U.S. at 651,

109 S.Ct. at 2121 (quoting Hazelwood, 433 U.S. at 308, 97

S.Ct. at 2741-42). However, where labor market statistics

are impossible to ascertain, the Supreme Court has

recognized that "certain other statistics—such as measures

indicating the racial composition of ‘otherwise-qualified

applicants’ for at-issue jobs—are equally probative for this

purpose." /d.

b. The Facts

All agree that the best comparison in this case

would be the racial composition of the applicant flow into

D & L for general factory jobs as compared with the

racial composition of the general factory hires. The

district court found that such a comparison is possible.

The majority found no clear error in that finding. Both

are wrong.

58a

Fewer than two years after the filing of this lawsuit,

Patty Haynes testified during a deposition that she started

to retain all of the applications after she learned that

some employees filed EEOC charges in October of 1984.

She explained that she threw away a number of applica-

tions just prior to that time, and she was not sure whether

she also threw away some of the applications which were

filed during the five months preceding the filing of the

EEOC charges.

Statistics, which D & L did not dispute, confirm

that Ms. Haynes failed to retain all of the applications.

Ms. Haynes testified, and the district court found, that

she, as a general rule, would accept twelve to fifteen

applications per seven hires. This was a fairly constant

practice, and once she adopted this practice, she did not

deviate therefrom throughout her tenure as personnel

manager. The application data which exists after the

EEOC charges were filed (October 17, 1984) are consis-

tent with Ms. Haynes’ explanation of her practice: Of the

applications on hand, almost forty percent came from

unhired applicants. Hence, for every six hires, Ms.

Haynes was able to consider ten applicants. The applica-

tion information for the period prior to the filing of the

EEOC charges presents a vastly different picture. Of the

applications on hand which were filed prior to October

17, 1984, only twenty-two percent were filed by unhired

applicants. Contrary to Ms. Haynes’ explication of her

practice of accepting twelve to fifteen applications per

seven hires, and contrary to the district court’s acceptance

of that explanation, Ms. Haynes would have been required

to hire four people out of every five applicants throughout

that period.

The difference in the applications is not only

substantial, but it is also statistically significant. Dr.

Charles Mann, a statistician, testified—and D & L did not

59a

dispute—that all things being equal—and according to

Ms. Haynes, all things were equal—there were only four

chances in one thousand that all of the applications

existed.’ Dr. Mann’s calculation reveals that Ms. Haynes’

uncertainty about her retention of all of the applications

was well-founded.°

Even if all of the applications were available—and

they clearly are not—reliance on the applications would

be inappropriate in light of the fact that the company

disproportionately restricted black potential applicants’

access to the forms. Barriers and/or practices which deter

qualified minorities from applying for jobs impermissibly

taints any analysis which employs the use of actual

applicant-flow data. Dothard v. Rawlinson, 433 U.S. 321,

330, 97 S.Ct. 2720, 2727, 53 L.Ed.2d 786 (1977) ("The

application process might itself not adequately reflect the

actual potential applicant pool, since otherwise qualified

people might be discouraged from applying" because of

the alleged discriminatory practices); see Ward’s Cove,

490 U.S. at 653, 109 S.Ct. at 2122-23 ("As long as there are

no barriers or practices deterring qualified nonwhites from

applying ... if the percentage of selected applicants who

‘Notably, when she testified in a sex discrimination case prior to

the trial of this case, Dr. Haworth performed a similar analysis which

determined the existence of all applications for a certain period of

time.

°Dr. Haworth, who had no personal knowledge of the retention

of the applications, was the only witness to claim that all of the

applications existed. However, she spoke with great diffidence. See,

e.g., Trans. Vol. 22 at 1714-15 ("For that period of time [of May 4,

1984 through January, 1985] I have the applications of the nonhired

people and the applications of the hired people, as far as I can tell to

the extent that they east.” (emphasis added)); Id. at 1718 ("[T]hese are

the pools for which I believe I have the nonhired applications to the

extent that they're available." (emphasis added)).

60a

are nonwhite is not significantly less than the percentage

of qualified applicants who are nonwhite, the employer's

selection mechanism probably does not operate with a

disparate impact on minorities." (emphasis added)). In

light of D & L’s restrictions on blacks’ attempts to obtain

applications, the true applicant-flow information cannot

form the basis of the statistical analysis in this case.’

"Dr. Haworth’s statistical analysis is infirm for a number of other

reasons, as well. First, when cross-examined by Plaintiffs’ counsel,

she admitted that she excluded 11 applications which were undated.

(Failing to date an application was not fatal. Patty Haynes hired

several people who forgot to place the date on their application.)

Nine of those applications came from blacks. Additionally, Dr.

Haworth included the application of a white person who sought a

general maintenance mechanic position, not a general factory

position—the position at issue here. Finally, in her statistical analysis

of D & L’s hiring practices for 1984, Dr. Haworth excluded the

October-November hiring period. She claimed that the white

applicants in that period had greater blue collar and/or manufacturing

experience than the black applicants. Patty Haynes, however, testified

that prior plant production experience—which none of the white

applicants possessed—not blue collar or manufacturing experience,

was beneficial for applicants seeking general factory work at D & L.

The district court did not adopt this rationale. It was correct in so

doing.

The district court erred, however, in substituting its own

rationale for the exclusion of the October-November applications.

The court reasoned that because blacks began to file EEOC charges

of racial discrimination in October 1984, the black community

conspired to flood D & L with applications of black individuals so as

to increase the black proportion of the applicant flow. The court's

reasoning has no basis in logic or in the record.

Initially and importantly, the Supreme Court has discom-

mended courts’ supply of explanations for statistical disparities when

those explanations neither have support in the record nor constitute

(continued...)

6la

7(...continued)

valid judicial presumptions. See infra note 13; see also Castaneda v.

Partida, 430 U.S. 482, 500, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977).

Speculative inferences and suppositions proffered by courts, as

opposed to parties, are improper and impermissible. Mayor of

Philadelphia v. Educational Equality League, 415 U.S. 605, 619, 621,

94 S.Ct. 1323, 1332-33, 1333-34, 39 L.Ed.2d 630 (1974).

In this case, the court’s explication of its rejection of the

October-November data finds absolutely no support in the record.

There is no testimony, no suggestion, no intimation in the record

which remotely implies that numerous blacks applied for jobs at D &

L to affect applicant-flow data. There is not even a suggestion that

a greater proportion of blacks than normal applied for general factory

positions in October 1984. In fact, when specifically informed about

the number of applications filed by blacks and whites in October 1984

and her selection rate of those applicants, Ms. Haynes testified during

her 1987 deposition that she knew no reason other than race for the

disparity in hiring. Mr. Grizzard similarly testified in his deposition

that he knew of no reason why the hiring rates for October 1984 were

so favorable toward whites. Dr. Haworth testified that the EEOC

investigation of D & L did not make the October 1984 applicant-flow

data unreliable. She specifically stated that those numbers should not

be discarded because the EEOC had been brought into D & L hiring

matters. Finally, Dr. Haworth testified that the applicant-flow data

did not “fluctuate wildly” in 1984. The availability of blacks, accord-

ing to Dr. Haworth, was constant.

The district court’s explication for his rejection of the

October 1984 applications—that once blacks heard of the charges of

discrimination at D & L, they flocked to apply for positions with the

company—is also illogical. Among other things, the district court’s

explanation assumes that the black applicants—people who applied

for jobs which did not even require a high school education—under-

stood that in proffering statistical proof in a disparate impact case,

plaintiffs would want to have a greater minority presence in the appli-

cant flow. According to the district court, Oliver Robinson, a man

whom both parties stipulated was a paranoid schizophrenic, encour-

(continued...)

62a

Hence, the district court should have resorted to appro-

priate proxy information, which the Supreme Court has

declared to be "equally probative." Wards Cove, 490 U.S.

at 651, 109 S.Ct. at 2121-22.

Plaintiffs proffered seven different standards of

availability which served as a proxy for the actual appli-

cant-flow information. Four of those standards were

particularly persuasive: 1) the Mississippi State Employ-

ment System ("MSES") referrals to D & L for 1985, 2)

the fully registered persons with MSES,* 3) the number

of general factory hires during the four and three-quarter

years preceding Mr. Grizzard’s arrival, and 4) the number

of people in Bolivar County who are were [sic] employed

as operators, fabricators, and laborers in factories other

than D & L, as shown by the 1980 census.”

The first standard contains all of the application

forms of all interested D & L applicants during the time

7(...continued)

aged blacks to apply so as to skew the applicant flow. These

unsupported suppositions assume way too much, and in my view

constitute clear, indeed patent, error.

*This standard excluded any individuals who were younger than

18 years old and who had any one of seven characteristics which

might imply that they were not genuinely interested in employment.

Individuals were excluded if they received welfare benefits or Food

Stamps, if they were applying for Food Stamps, if they were in the

WIN Project or the Summer Youth program, if they were migrant

workers or had previously been coded as a migrant worker, or if they

were receiving unemployment insurance.

*My first and second relevant standards correspond to the

Plaintiffs’ and the district court’s second and third standards of

availability. My third and fourth standards correlate to their sixth and

seventh standards.

63a

period in issue which were on file with MSES. This

standard is untainted by unfair restrictions on blacks’

ability to obtain such applications.” The district court

rejected this standard because it was "an extremely small

sample." Interestingly enough, however, the court credit-

ed Dr. Haworth’s statistical analysis of her "pools" of

applications, and each such pool was smaller than the

pool in this first standard.'' The district court's rejection

of this standard is directly antithetical to its acceptance of

Dr. Haworth’s pools. In this writer’s view, it is clearly

erroneous. Furthermore, this standard provides a reliable

barometer of the general D & L applicant flow during the

periods in question. Indeed, Dr. Haworth, herself,

testified that this standard, though not perfect, was

valid. The proportion of black applicants in this

standard was 65.6%. When compared with the actual

number of blacks hired, the standard showed statistical

significance at 8.8 standard deviations.”

According to some black deponents, MSES would not permit

them to file D & L applications. However, the MSES restrictions,

though apparently only affecting blacks, are, in no way, as pervasive

as D & L’s restrictions.

"'MSES referred 92 applicants to D & L. However, the largest

application pool which Dr. Haworth analyzed contained 80 applicants.

The second largest pool contained just 57 applicants. The other

pools, in descending order contained 48, 43, 42, and 18 applicants.

Although she had trouble including certain MSES referrals

("OJT’s") in the pool, Dr. Haworth testified that she was not

recommending that the OJT referrals be excluded from this standard.

'’The Supreme Court has reiterated numerous times that standard

deviations greater than two or three suggest suspect activity. See

Castaneda v. Partida, 430 U.S. 482, 496 n. 17, 97 S.Ct. 1272, 1281 n.

17, 51 L.Ed.2d 498 (1977); Hazelwood, 433 U.S. 299, 312 n. 17, 97

S.Ct. 2736, 2743-44 n. 17, 53 L.Ed.2d 768 (1977).

64a

The district court rejected the second standard,

claiming that this standard is "heavily weighted" in favor

of blacks because of their over-utilization of MSES. Dr.

Haworth testified that a national study indicated that

blacks in large urban areas generally are more likely to

use public employment services than whites. She tem-

pered her testimony with the caveat that she did not know

whether this study was applicable to Bolivar County,

which is small and rural. Dr. Haworth never claimed that

the difference in the usage of public employment services

between blacks and whites was statistically significant or

even substantial. She did, on the other hand, testify that

there might be only a trivial difference, or even no

difference, in the usage of MSES by blacks and whites in

Bolivar County.

Dr. Mark Bendick, Plaintiff's labor economist,

testified that a study on the usage of public employment

agencies in southern, rural areas—including Sunflower

County, Mississippi, a rural county which is adjacent to

Bolivar County—revealed that the public employment

service usage in southern, rural areas is quite different

from such usage in large urban areas. While the study

did not compare blacks’ and whites’ usage of employment

services in rural areas, Dr. Bendick testified that no study

shows that rural blacks use unemployment services at a

disproportionately higher rate than rural whites. The

district court had no evidence contrary to Dr. Bendick’s

testimony on this subject, for the company did not even

attempt to dispute the testimony. The district court’s

conclusion that the second standard is "heavily weighted"

in favor of blacks due to their "over-utilization" of MSES

is therefore highly speculative and is not supported by the

record. In light of the Supreme Court’s disapproval of a

court’s supply of explanations of statistical information

65a

which is not supported by the record," this Court should

not countenance the judicial activism by the district court.

No sufficient reason exists in the record—or otherwise,

for that matter—for rejecting the overall MSES registrant

information. This, the second standard of availability,

reveals that 65% of the MSES registrants who were over

eighteen and had none of the earlier-described character-

istics were black—just six-tenths of one percent smaller

than the proportion of blacks in the first standard. This

In Title VII cases, the Supreme Court has consistently required

parties, district courts, and circuit courts to base their decisions upon

credible evidence or arguments which exist in the record. See, e.g.,

Mayor of Philadelphia, 415 U.S. at 619, 621, 94 S.Ct. at 1332-33, 1333-

34 (noting that the circuit court’s explanations constituted "supposi-

tion" and “speculative inference” which could not support a serious

charge); Albemarle Paper Co. v. Moody, 422 U.S. 405, 438 n. 23, 95

S.Ct. 2362, 2382 n. 23, 45 L.Ed.2d 280 (1975) (asserting that a

defendant’s job relatedness claim "cannot be proved through vague

and unsubstantiated hearsay”).

In Castaneda, the Texas Court of Criminal Appeals proffered

a theory which explained away a criminal defendant’s charge of

discrimination in grand jury selection practices. The Supreme Court

rejected the State court’s theory, deciding that even though the theory

was generally applicable, the record was inadequate to support the

use of the theory. The Court concluded that "under the facts

presented in this case, the ... theory is not developed fully enough to

satisfy the State’s burden of rebuttal." The Court chose to rely on the

record. Castaneda, 430 U.S. at 500, 97 S.Ct. at 1283.

Consistent with these cases, then Justice Rehnquist elucidated

in his concurrence in Dothard v. Rawlinson that the employer in that

case may have had a justifiable reason for employing the alleged

discriminatory hiring practice. However, Justice Rehnquist explained

that once the burden shifts to the employer, the employer—not the

court—must articulate that reason. Dothard, 433 U.S. at 340, 97 S.Ct.

2732. In this case, the district court has downplayed Plaintiffs’ case

with reasons not proffered by the defense.

mn, si ssa a

66a

standard demonstrates statistical significance at 8.5

standard deviations.

The district court ruled that in the third relevant

standard of availability, Plaintiffs failed "to take into

account the distinct possibility that the hiring rate prior to

the period beginning October, 1982, may indeed have

been discriminatory in favor of black applicants." Op. at

18 (emphasis added). Again, the district court improperly

supplied reasons for ignoring Plaintiffs’ statistical analysis

which no party espoused at any time throughout the trial

or during depositions. See supra note 13.

The court further explained that the differences in

Patty Haynes’ employment procedures perhaps accounted

for the change in employment rates of blacks. The

district court’s statement of the obvious is actually a

recitation of the disparate impact theory. Its attempt to

explain away Plaintiffs’ reliance upon standard three in

fact embraces Plaintiffs’ Title VII claim. There is no valid

reason for disregarding this standard. Indeed, in light of

the district court’s back-door recognition that Ms. Haynes’

practices may have caused the hiring disparities, there is

every reason to consider this standard as a valid reference

for a statistical analysis of the disparate impact claim.

This third standard, which shows that 64.6% of the hires

were black, is just four-tenths of one percent lower than

the second standard and equates to 8.3 standard devia-

tions. The consistency of the first three standards is

amazing and, in this writer’s view, lends greatly to their

credibility and probative value.

The final standard, though rejected by the district

court, is much more precise than standards accepted by

the Supreme Court in Dothard v. Rawlinson and Interna-

tional Brotherhood of Teamsters v. United States. Those

cases compared the make-up of defendants’ employees to

67a

the minority presence in the general population. In

Dothard, the Supreme Court reviewed Alabama’s peniten-

tiary system for sex discrimination in hiring. The Court

upheld the district court’s reliance upon generalized,

national statistics which demonstrated that Alabama’s

hiring system discriminated against women. Dothard, 433

U.S. at 329-331, 97 S.Ct. at 2726-28. Similarly, the

Teamsters Court compared the proportion of minority

employees with the proportion of minorities in the

general, area-wide population. Teamsters, 431 U.S. 324,

337 n. 17, 97 S.Ct. at 1855 n. 17. The Court in Hazelwood

School District v. United States explained that the Team-

sters Court’s use of general population figures was "highly

probative" because the jobs in question were low-skill

jobs, which almost everyone in the population could

acquire. 433 U.S. at 308 n. 13, 97 S.Ct. at 2741-42 n. 13.

The Wards Cove Court further explicated that "where

figures for the general population might ... accurately

reflect the pool of qualified job applicants, ... we have ...

permitted plaintiffs to rest their prima facie cases on such

statistics as well." 490 U.S. at 651 n. 6, 109 S.Ct. at 2121

n. 6.

The final statistical standard in this case is much

more probative than general population statistics,’ for

it hones that number down to the actual number of blacks

who are not only in the general population, who are not

only in the civilian labor market, but who also are quali-

fied and have shown interest in the general factory-type

‘SA comparison of the number of black hires at D & L during the

Grizzard years with the general Bolivar County population of people

who are 16 years and older also reveals statistically significant

disparities in the hiring. The analysis reveals a difference which

constitutes 4.5 standard deviations.

68a

work at issue in this case.'° The district court’s basis for

rejecting this standard finds no support in the record.

The court first spurned this standard because it claimed

that a comparison between hired people and unhired

people was inherently unreliable. While such a compari-

son certainly is not perfect, the facts of this case clearly

prove that such a comparison greatly favors D & L, not

the Plaintiffs, for the unemployment rate among blacks in

Bolivar County at all relevant times has far exceeded the

unemployment rates of whites in the county.'’ Hence,

the proportion of black-unemployed job-seekers would

obviously exceed the proportion of black general factory

workers.

The District Court also rejected this last standard

because not all D & L applicants have prior production-

‘It is patently obvious—and even Dr. Haworth acknow-

ledged—that because the black labor force in Bolivar County is

heavily weighted in the low-skills jobs and has little presence in the

"top rungs" of the employment ladder, the number of blacks eligible

for production-worker jobs is much greater than the number of blacks

in the Bolivar County civilian labor market. However, even compari-

son with just the black labor market reveals that there is just a little

more than one chance in a thousand that D & L’s hiring during the

Grizzard years happened by chance—2.4 standard deviations. Dr.

Haworth found that a comparison between the labor market and D

& L’s hiring was probative.

In 1982, 4.3% of the white work force was unemployed. The

black unemployment rate approached five times that number: 20.7%

of blacks in the county were unemployed. Likewise, in 1984 unem-

ployment rates showed that 4% of the whites were unemployed while

19.9% of the blacks were unemployed.

69a

worker experience.’ The court noted that many appli-

cants have employment backgrounds in the service or

manufacturing industries. While the court’s observation

is entirely true, it is, at the same time, completely irrele-

vant to the issue at hand—what proportion of applicants

at D & L were black, and hence what is a proper stan-

dard of availability for this case. Each applicant, regard-

less of his or her work experience, displayed interest in

general factory work, just as those working in production-

type jobs displayed such interest. While a comparison of

the number of production workers with the number of

applicants to service industry or manufacturing jobs would

be unpersuasive—since those interested in the latter jobs

might have no interest in the former job—the standard

here focuses upon the interest which each person, wheth-

er worker or applicant, has shown in general factory work,

the work at issue in this case. The district court’s ratio-

nale for rejecting the final standard entirely misses the

boat.

The last standard, which to me is completely valid,

shows that 70.1% of the employees in general factory-type

jobs in Bolivar County, excluding D & L employees, are

black. Statistical significance, at 11.3 standard deviations,

plainly shows that, like the other standards, the hiring

results during the Grizzard years did not happen by

chance.'? Under any of these standards, it seems abun-

'°The court disregarded any comparison with the blue collar and

manufacturing work force for the similar reason that not all appli-

cants possessed blue collar or manufacturing experience.

‘Comparison with Bolivar County’s civilian labor force (2.4

standard deviations), manufacturing labor force (5.2 standard

deviations), and blue collar labor force (6.4 standard deviations)

likewise demonstrates statistically significant hiring disparities. Dr.

Haworth found such comparisons to be valid.

70a

dantly clear that Plaintiffs have successfully made out a

prima facie case of race discrimination in D & L’s hiring

practices.”

Basing her conclusion upon the actual number of remaining

applications, Dr. Haworth contended that only 45.5% to 46.7% of the

D & L applications came from blacks. The district court accepted

these numbers, which should be rejected, not only because the appli-

cant-flow data is incomplete and irrevocably tainted, as earlier

discussed, but because the numbers are thoroughly illogical in light

of the demographics in Bolivar County.

Although the majority of people in the civilian labor force,

the manufacturing labor force, and the blue collar labor force in

Bolivar County is black—5 1.9%, 58.2%, and 60.7% respectively—and

only 3% of the professionals and managers in the county are black,

the 45.5% to 46.7% range implies that the black labor force in the

rural Mississippi Delta County of Bolivar is weighted more heavily at

the "top rungs” of the employment ladder than at the bottom rungs.

Logic, census data, and even Dr. Haworth, see supra n. 16, all agree

that the opposite is true.

Dr. Haworth’s numbers are not only "out of touch” with the

demographics of Bolivar County, but they are vastly different from

the applicant-flow data of factories which are in close proximity to D

& L. Of the people MSES referred to Colortile for general factory

jobs, 68.7% were black. Additionally, 84.4% of the applicants for

general factory work in Baxter Travenol, which is located directly

across the street from D & L, were black.

Dr. Haworth’s data is also inconsistent with Patty Haynes’

experience. For example, Haynes testified that on one occasion, she

invited everyone to apply for general factory jobs at a mass applica-

tion distribution. Three to four hundred people stood in the snow on

that February 1983 morning to apply for a job. Haynes testified that

there were many more blacks than whites; many more than 51% of

the applicants were black.

All in all, any comparison between the standard of availability

(continued...)

Tila

5. Conclusion

D & L, in essence, conceded Plaintiffs’ disparate

impact” case in hiring by agreeing that the changes Patty

Haynes made in her hiring practices—namely, her restric-

tion of application forms—resulted in the significant

change in the proportion of blacks hired. Even without

such a concession, all credible evidence demonstrates that

D & L’s hiring during the Grizzard era was discriminatory

with respect to race. This Court should therefore reverse

on this issue and remand for the district court to decide

damages.

B. Promotions

1. Proper Labor Pool

Like the district court’s analysis and the majority's

review of the hiring data, this writer finds that the analysis

20(...continued)

which Dr. Haworth generated and any valid, reliable indicator of the

proportion of blacks who showed interest in the production worker

jobs at D & L confirm that Dr. Haworth’s numbers are wrong. Her

analysis should be rejected as fallacious and contrived.

The majority rebuffed Plaintiffs’ disparate treatment claim,

finding basically no use of racial epithets. Notably, however, the

record shows that epithets were, in fact, used by certain management

personnel. James Grizzard testified in a deposition, which neither the

district court nor the majority read, that he regularly called black

employees "boy." Grizzard believed the term to be a friendly one.

Patty Haynes testified that she heard blacks complain that Tom

Garner, the plant production manager during the Grizzard years,

called them “boy.” Further, one of D & L’s black supervisors testified

that he had a foreman who, during the Grizzard years, told racist

jokes. The district court and majority apparently ignored this

testimony.

72a

and review of the promotion statistics are greatly mislead-

ing. The majority, quoting Lewis v. National Labor

Relations Board, correctly sets forth the proper statistical

framework upon which claims of promotion discrimination

claims must be based: "In establishing an inference of

discrimination from statistical evidence, the ‘required

comparison [is] to a qualified pool of employees presump-

tively eligible for promotion.” Maj. slip op. at 4798

(quoting Lewis, 750 F.2d 1266, 1275 (Sth Cir.1985)

(emphasis in original)).

Unlike this case, in both Lewis, which this writer

authored, and Pouncy v. Prudential Insurance Company of

America, to which the majority refers, there were mini-

mum objective qualifications for promotions which

precluded comparison of the proportion of minorities

promoted to the proportion of minorities in the overall

work force. The promotion pool was smaller than the

entire work force. In Pouncy, only those employed at

level eleven could be promoted to level twenty. Pouncy,

499 F.Supp. 427, 454 (S.D.Tex.1980), aff'd, 668 F.2d 795

(Sth Cir.1982). Similarly, in Lewis, only employees who

had reached the GS-12 field examiner level or the GS-13

field attorney level were "presumptively eligible" for

promotion. Lewis, 750 F.2d at 1275. Comparison with

the entire work force in those cases was improper, since

not all of the employees had reached the required

employment level for promotion.

This case is quite different. Here, every produc-

tion worker is "presumptively eligible" for promotion to

the leader positions in question, and every leader is

"presumptively eligible" for promotion to the foreman

positions in question. There is no educational, skill, or

other objective requirement for promotion to those

73a

positions at D & L.” With the exception of the atten-

dance record,” all of the "qualifications" which the D &

L supervisors thought were important were entirely

subjective.“ An unsupported claim that blacks possess

21n fact, James Grizzard—plant manager of the Cleveland plant

from 1982 to 1986 and executive manager over two plants at the time

of trial—dropped out of high school after the tenth grade and

attained a GED thereafter. He did not possess any type of college

degree. Indeed, he never even attended college.

23 lthough attendance was a good reason for rejecting blacks for

promotion, it apparently was not a sufficient reason for rejecting

whites. For example, Plaintiff Richard Grant was purportedly a good

worker whom James Grizzard recommended for promotion. Accord-

ing to Robert Goodman, a plant supervisor, Grant had a good

attendance record. However, a promotion for which Grant was

considered went to Jerry Swinford, a white employee. Swinford had

worked at D & L for just 14.6 months at the time of his promotion.

During those 14 months, Swinford reported off for sickness 11 times,

reported off for personal business six times, came to work late three

times, left early twice, and was AWOL once.

Another example is James Bowen, who was hired as a

foreman after meeting Mr. Grizzard in the all-white VFW Club.

During his eighteen months on the job, Bowen Ieft early or left and

returned 19 times and came to work late eight times.

“1 & L supervisors testified that plant experience and seniority

were important considerations for promotion. James Grizzard

testified in a deposition that plant experience was a big consideration.

Even so, nine people with fewer than five months’ experience were

promoted to leader during the Grizzard years. Four of the nine had

worked at the plant fewer than two months. All nine were white.

Howard Watson and E.W. Tolbert, both supervisors, testified

that prior to James Grizzard’s arrival, they had never seen such

inexperienced people promoted. Wallace Bailey, the assistant

supervisor over the maintenance department, testified that he did not

(continued...)

74a

these subjective characteristics at a substantially lower

proportion than whites is, in itself, a discriminatory claim

in which the district court apparently finds solace.

D & L’s entire work force, which was approximate-

ly 70% black, is the proper pool to which the promotions

4(...continued)

know anyone in the pre-Grizzard period who was promoted without

having "some years” experience as a production worker.

The lack of experience of the leaders and foremen in the

plant hurt the productivity of the plant. Soon after James Grizzard

arrived, Harry Lomason, president of D & L, wrote Mr. Grizzard to

inform him that the quality and manufacturing systems were out of

control. In August of 1983, Ford Motor Company informed D & L

that it had serious concerns about the quality of work coming from

the Cleveland plant. One of the D & L vice presidents wrote D &

L plant managers in February 1985 to give them guidance on fixing

the on-going quality problems. One of the causes of the plants’

problems was "insufficient training or personnel (production and

supervision).” Mr. Grizzard testified in his deposition that he did

nothing different after receiving this letter. Eight months later, Harry

Lomason wrote Mr. Grizzard and three other individuals that D &

L’s standing and reputation with Ford was "at an all-time low." Mr.

Grizzard affirmed that Mr. Lomason’s statement was directly

applicable to the Cleveland plant. "Tis notable, indeed, that soon

after this letter was written, the supervisors at the Cleveland plant

began to promote more experienced workers.

Finally, this writer notes that in computing the number of

months’ experience of those promoted during the Grizzard years, the

majority apparently included the demotion of Larry Vardaman, who

had been at the plant for 194.8 months before he was demoted from

the position of foreman. Vardaman had twice been promoted to

foreman prior to Grizzard’s arrival. The majority's inclusion of

Vardaman in its calculation is erroneous. Absent Vardaman’s

demotion, the evidence shows that the whites who were promoted

during Mr. Grizzard’s tenure, indeed possessed an average of ap-

proximately 15 months’ experience at the time of their promotion.

75a

should be compared,” for that is the pool from which

promotions came.” At no time have promotions approx-

imated 70%. Interestingly enough, however, prior to Mr.

Grizzard’s arrival at D & L, 63.8% of the promotions

went to blacks. That number plummeted to 22.7%”

during his tenure as plant manager and returned to 63.7%

after Plaintiffs filed this lawsuit. When asked why the

number of black promotions had declined so drastically,

neither Mr. Grizzard nor any supervisor so questioned

could offer an explanation.

Contrary to the majority’s reliance on the fact that

a number of blacks had turned down promotions, Byron

Kyle, supervisor over one half of the plant, Howard

Watson, production manager for the Cleveland plant, and

Charlie Lofton, supervisor over the press area in the

plant, all testified that prior to Mr. Grizzard’s arrival,

blacks and whites turned down promotions. They assert-

**The proportion of blacks at the production-worker level exceeds

the proportion of blacks hired in that position. Dr. Haworth and Dr.

Bendick explained that a much greater number of whites voluntarily

quit their employment with D & L than blacks. Ms. Haynes

confirmed this, testifying that many whites quit soon after they are

hired. On average, blacks are employed at D & L twice as long as

whites. Over time, the longevity difference has resulted in a much

higher percentage of blacks in the company than whites.

**The district court stated that such a comparison disregarded the

company’s practice of hiring individuals from outside the plant.

However, the district court disregarded Mr. Grizzard’s deposition

testimony that D & L’s practice was to promote from within the

company.

The district court included salaried supervisors in its review of

Plaintiffs’ promotion claims. Such inclusion of supervisors is clearly

erroneous. Plaintiffs have never claimed that D & L discriminated

on the basis of race in promoting supervisors.

76a

ed that the number of people who turned down such

promotions did not change during Mr. Grizzard’s tenure

or after his departure. In fact, a substantial number of

blacks who turned down promotions during the Grizzard

years had also turned down promotions during the

pre-Grizzard years. These employees were repeatedly

offered promotions.” Based upon such testimony,

blacks’ rejection of promotions could not be the reason

for the stark decline in black promotions. Indeed, no

supervisor ever even intimated that such was the case.

2. Comparison With Supervisors in Bolivar County

Dr. Haworth and the district court agree that a

comparison of the promotions at D & L with the percent-

age of blacks in supervisory positions in Bolivar County is

more relevant than a comparison of the promotions to the

applicable labor pool. It seems to me that such a com-

parison is highly questionable.

According to Dr. Haworth, most of the supervisory

positions to which she compared D & L’s promotions

were precision craft positions. The "bulk" of those

**Hence, rejection of a promotion clearly did not disqualify an

employee from future promotions. In fact, Howard Watson,

production manager of the entire plant, testified that after he was

first promoted to leader, he requested that he be returned to the

production-worker level because he did not think that he could

handle the job. He was later promoted again. Possessing one of the

highest jobs in the Cleveland plant, Mr. Watson, himself, demonstrat-

ed that his rejection of a promotion was not fatal to his promotion

opportunities. It should not have been fatal for Earnest Hall's or

Richard Grant’s promotion opportunities either. Indeed, Mr.

Grizzard asserted in his deposition that after Richard Grant turned

down the promotion to which the district court refers, Grant

informed Grizzard that he, Grant, was again interested in being

promoted.

| |

T7a

positions were held by craftsmen and craftswomen. Dr.

Haworth testified that blacks held only 33.4% of the

precision craft jobs in Bolivar County. On the contrary,

70.1% of the general factory jobs belonged to blacks. To

therefore compare the leader and foreman positions to

precision craft, as opposed to the general factory pool

from which the promotions in question came is like

comparing apples to watermelons. The comparison is

simply irrelevant.”

3. Conclusion

A proper analysis of this issue reveals that D & L

improperly considered race in its promotion practices. D

& L did not provide a race neutral reason why, when 70%

of the promotion pool is made up of presumptively

qualified blacks, only 22.7% of the leader/foreman

promotions went to blacks during Mr. Grizzard’s ten-

ure—a number which had dropped from 64.8%. It

appears that the company tried to make the promotion

disparity disappear. Because there is no legitimate

explanation for the decrease in minority promotions,

Plaintiffs must prevail. This Court should reverse and

remand for a trial on the damage issue here.

*The district court’s finding that blacks were treated ror

during the pre-Grizzard years is likewise unfounded. The promotio

in the pre-Grizzard years roughly reflects the pool of presumptively

eligible employees. a

‘

78a

C. Temporary Upgrades to Rack/General Maintenance”

1. Qualified Employees

The majority’s review of the temporary upgrade

evidence is also questionable. The majority’s contention

that welding experience was needed for both general

maintenance and rack maintenance positions is completely

refuted by Wallace Bailey, the assistant supervisor over

the maintenance department. Bailey testified at trial that

one who sought a temporary upgrade needed to have a

mechanical background, have a familiarity with electrical

equipment, have the ability to understand written and

verbal instructions, and for rack, as opposed to general,

maintenance positions, possess welding experience. Bailey

averred that one would not be disqualified if he did not

possess all of these qualities. In fact, he asserted that he

would not even exclude a person simply because that

person could not weld. Nevertheless, the majority

contends that no blacks were qualified for the general

maintenance or rack maintenance positions. The evi-

dence is to the contrary.

*Both the district court and majority included all craft positions

in their analysis, as opposed to the general and rack maintenance

positions which are at issue here. They also analyzed promotions for

all craft positions, instead of the maintenance positions in question.

When James Grizzard came to the Cleveland plant, 66.7% of these

maintenance positions were held by blacks. That number decreased

during his tenure to 54.1% black. Also, there were only three

promotions in the maintenance positions during the Grizzard years.

The proper comparison is therefore the 33.3% promotions which

went to blacks as compared with the 54.1% of the blacks who were

presumptively eligible for promotion. Although the majority's

analysis is flawed, this writer agrees that Plaintiffs did not prove

whether the promotion disparity in the maintenance positions was

statistically significant or that race discrimination played a part in the

promotion decisions for rack and general maintenance.

79a

Tommy Hardy: Contrary to the majority’s recita-

tion of the facts, Tommy Hardy did not have "limited"

welding experience. To the contrary, Hardy testified that

he ran a body shop in which he welded auto parts. He

started the body shop in 1975 or 1976, and it was still in

operation at the time of trial. Hardy’s welding experience

was therefore very extensive. Hardy averred that the type

of welding done at D & L was the same type of welding

which he performed in his body shop. His work in his

body shop also revealed that he had mechanical ability.

Hardy testified that he informed Lamar Hays and Terry

Lamb, supervisors in the maintenance shop, of his interest

in temporary upgrades numerous times.

Daniel Anderson: Anderson testified that he had

limited welding experience. However, he asserted that he

had substantial mechanical ability. He had taken mechan-

ics classes throughout his four years in high school and

had weekly repaired his or other employees’ machines

when D & L’s maintenance personnel were unavailable.

Wallace Bailey testified that he would be interested in a

production worker who could take apart machines, as

Anderson could.

Alfred Kemp, Sr.: Wallace Bailey testified during

trial that Alfred Kemp, Sr., had an excellent background

in maintenance. In fact, prior to James Grizzard’s arrival

at the plant, Kemp received both rack and general

maintenance upgrades. The district court found that

Howard Watson blocked every temporary upgrade which

Kemp could have received during the years in question.

That finding is unsupported by the record. While Watson

testified that he would prohibit Kemp from receiving

temporary upgrades if Kemp were needed for his general

factory work, Watson conceded that he did not know

whether he had blocked any such upgrades during the

years in question. Wallace Bailey asserted that he knew

80a

of no reason why Kemp was not given a single upgrade

from August 1982 to August 1985.

Arthur Perry: According to Wallace Bailey, Arthur

Perry was qualified for general maintenance work.

However, Bailey could not state a reason why Perry had

not been given upgrades prior to the filing of this lawsuit.

2. Statistical Analysis

Absent some other explanation—which the compa-

ny did not give—D & L’s temporary upgrades reveal

grave racial disparities. The majority correctly sets forth

the temporary upgrade information in footnote 36. Were

the temporary upgrade hours insubstantial, the percentag-

es set forth by the majority in that footnote might not

seem consequential. However, the number of hours

involved in both the general and rack maintenance

upgrades is considerable. During the Grizzard years,

white employees were given 1199.4 hours of upgrades in

general maintenance. Blacks received just ninety-seven.

In the rack maintenance area, Edward Otto Wolfe,

a white employee, received 745 hours of upgrades during

the Grizzard pre-suit period. No blacks were awarded

such an upgrade during this period. The majority places

some import—import which is unsupported by the

record—on the fact that Mr. Wolfe was the only person

who received rack maintenance upgrades during the

Grizzard era. James Grizzard testified in deposition that

the maintenance department should not have solely

awarded the upgrades to Mr. Wolfe. Likewise, Wallace

Bailey asserted that he did not know why Mr. Wolfe was

awarded all of the rack maintenance upgrades. An

unfounded reason would appear to be improper. See

supra note 13.

8la

3. Conclusion

Why whites received 1199.4 hours of general

maintenance upgrades and 745 hours of rack maintenance

upgrades when blacks received just ninety-seven hours of

general maintenance and no hours of rack maintenance

upgrades will likely never be known by this or any other

court. In one of his depositions, Mr. Grizzard unequivo-

cally refused to explicate why the company failed to

provide everyone the opportunity to compete for tempo-

rary upgrades. He refused to provide an explanation even

when instructed to give one by D & L’s attorney.

The numbers—and the named Plaintiffs’ pro-

tests—speak loudly enough for themselves in the tempo-

rary upgrade claim. Only silence comes from D & ie.

Therefore, this Court should reverse and remand for trial

on damages.

D. Conclusion

For the reasons heretofore stated, this writer would

reverse and remand.

I dissent.

82a

United States Court of Appeals,

Fifth Circuit.

No. 92-7554.

Daniel ANDERSON, Jr., et al., Plaintiffs-Appellants,

DOUGLAS & LOMASON CO., INC., et al.,

Defendants,

Douglas & Lomason Co., Defendant-Appellee.

June 23, 1994.

Appeal from the United States District Court for the

Northern District of Mississippi.

Before JOHNSON, SMITH, and EMILIO M. GARZA,

Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

The plaintiffs brought a class action lawsuit against

the Douglas & Lomason Co. ("D & L" or "the Company")

on July 5, 1985, alleging that D & L intentionally discrimi-

nated against blacks in its hiring, promotion, and termina-

tion practices. The district court, after a lengthy bench

trial, entered judgment against the plaintiffs on their Title

83a

VII, 42 U.S.C. § 2000e et seq. and 42 U.S.C. § 1981

claims. We affirm the district court’s decision.’

D & L operates a plant in Cleveland, Bolivar

County, Mississippi, that manufactures automobile parts.

The plant employs approximately 657 people, 10% of

whom are black. Applicants seeking entry-level positions

with D & L need only meet certain minimal requirements,

such as being at least eighteen years of age, physically

able to perform the work, and able to read and write.

The plaintiffs challenge certain hiring, promotion, and

termination practices followed by D & L at the Cleveland

plant after James Grizzard became plant manager in

October 1982. The period between October 1982 and

April 1986, when Grizzard ceased being manager at the

Cleveland plant, was referred to at trial as "the Grizzard

years."

The plaintiffs first challenge the hiring practices

adopted by Patty Haynes when she became personnel

manager at the Cleveland plant in September 1981.

Haynes's hiring practices, which D & L followed through-

out the Grizzard years, substantially differed from those

of her predecessor, Harold Keeton. Keeton allowed

employees to take applications for other persons, allowed

people to submit applications twenty-four hours a day,

'The plaintiffs in this case earlier appealed the decision of the

district court denying their application for preliminary injunctive relief

that would have regulated the hiring practices of D & L. We

affirmed the district court’s decision to deny a preliminary injunction

in Anderson v. Douglas & Lomason Co., 835 F.2d 128 (Sth Cir.1988).

84a

took applications whether or not D & L was hiring, and

kept all applications in his "active" file for one year. He

generally interviewed two to three applicants for every

available position. In making hiring decisions, Keeton

looked at the applicant’s experience and attempted to hire

those applicants with the most relevant work experience.

Haynes, on the other hand, would not let employees take

applications home, required all people who wanted to

apply for employment to come to D & L’s plant, accepted

applications only when D & L was hiring, and kept

applications for six months. She also accepted only one

or two applications for every available position. Haynes

testified that in making hiring decisions, she looked at the

applicant’s relevant work experience and would hire "the

best person for the job."

During periods when D & L was hiring, Haynes

permitted individuals who called the Company seeking

information about possible employment to make appoint-

ments at which they could fill out an application. Haynes

also accepted applications from individuals who came to

the plant without appointments.’ If a person called or

came to the plant while D & L was hiring but after the

applicant pool reached what Haynes considered to be the

optimal size, plant guards told the individual either that

D & L was not hiring or was not taking applications.’

*Because of the large number of employees involved in deciding

when D & L needed to hire employees, news that D & L was hiring

quickly spread throughout the Company’s general work force. For

example, on one occasion individuals came to the plant to fill out

applications even before Grizzard told Haynes that D & L would be

hiring additional employees.

°A security fence, gate, and guardhouse prevented unauthorized

persons from entering the plant. Haynes instructed the guards to

(continued...)

85a

During periods that D & L was not hiring, Haynes or the

guards informed individuals inquiring about employment

either that the Company was not taking applications or

was not hiring. Thus, it was possible for individuals to be

told that D & L was not taking applications both when

the Company was and was not hiring.

D & L also hired employees in what can best be

called "spurts." Grizzard, after meeting with his depart-

ment heads and supervisors, would determine whether D

& L needed to hire additional workers. If D & L did

need additional workers, Grizzard would so inform

Haynes, who would begin taking applications. Haynes

then would hire the number of employees sought by

Grizzard. D & L rarely hired employees on a one-at-a-

time or continuous basis and sometimes went months

without hiring anyone.

D & L modified its application and hiring proce-

dures in May 1985 by using the Mississippi State Employ-

ment Service ("MSES") to provide a pool of applicants

from which it could hire. When D & L needed to hire

employees, it would notify the MSES. The MSES then

would refer both regular and on-the-job-training ("OJT")

applicants to D & L.‘ Haynes would interview the

referred applicants and select new employees using

separate job orders for the regular and OJT applicants

hired. All hiring from the MSES referrals occurred on

three separate spurts from May to September 1985. D&

*(...continued)

allow people to enter the plant to fill out applications only when D

& L was hiring and also gave the guards the names of those individu-

als with appointments to fill out applications.

‘D & L received financial benefits from the state’s on-the-job

training program for every OJT applicant hired.

86a

L has not hired any production workers since that time.

The plaintiffs next contend that D & L engaged in

a pattern or practice of discrimination by refusing to

L had no written criteria or guidelines for promotions,

and Grizzard did not post notices concerning available

promotion opportunities. Instead, department supervisors

selected leaders and foremen for their departments with

little or no input from Grizzard. Although D & L did not

have written criteria for promotions, the supervisors

consistently applied the following subjective criteria when

selecting leaders and foreman: attitude, work record,

relevant work experience, leadership abilities, willingness

to help other employees, commitment to D & L, and

seniority. Thus, D & L’s promotion criteria are predomi-

nately of a subjective nature.

The plaintiffs also allege that D & L engaged in

discriminatory practices by failing to provide blacks with

temporary upgrades and permanent promotions to

maintenance department positions. D & L employed a

job- bidding process, as required by its collective bargain-

ing agreement with the union representing D & L’s

‘D & L promotes production employees to leaders so that it can

evaluate their performance and potential to become foremen. D &

L either selects foremen from among the leaders or hires them from

outside the company. Both leaders and foremen are paid hourly. D

& L also employs salaried supervisors, whom it selects from among

the foremen or hires from outside the company. The plaintiffs do not

contend that D & L discriminatedin promoting blacks to the salaried

supervisor positions.

2 , eit

87a

employees, whereby employees had to submit bids for

available "craft" positions. D & L, however, sometimes

gave production employees temporary upgrades to craft

jobs on a short-term basis.° D & L did not allow employ-

ees to bid on temporary upgrade positions, and the

supervisors of the departments into which an employee

would be temporarily upgraded determined whom to

upgrade. The chosen employee’s supervisor, however,

could block the upgrade if the employee was needed for

production work.

D & L considered employees in the general

maintenance and rack maintenance departments to hold

craft positions. As such, D & L required employees

seeking those jobs to participate in the bidding process

and maintenance department supervisors selected produc-

tion employees for temporary upgrades to maintenance

positions. The primary duties of general maintenance

employees included pipe welding and repairing broken

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