26 F.3d 1277 (5th Cir. 1994), 92-7554, Anderson v. Douglas & Lomanson Co., Inc.

Docket Nº:92-7554.
Citation:26 F.3d 1277
Party Name:Daniel ANDERSON, Jr., et al., Plaintiffs-Appellants, v. DOUGLAS & LOMASON CO., INC., et al., Defendants, Douglas & Lomason Co., Inc., Defendant-Appellee.
Case Date:June 23, 1994
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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26 F.3d 1277 (5th Cir. 1994)

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


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

Douglas & Lomason Co., Inc.,


No. 92-7554.

United States Court of Appeals, Fifth Circuit

June 23, 1994

As Corrected July 28, 1994.

As Amended on Denial of Rehearing

and Suggestion for Rehearing En Banc

Sept. 9, 1994.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Richard T. Seymour, Sharon Vinick, Lawyers' Committee for Civil Rights, Washington, DC, for appellants.

Samuel A. Marcosson, E.E.O.C. Office of General Counsel, Washington, DC, for amicus E.E.O.C.

Robert Godfrey, George K. McPherson, Jr., Smith, Currie & Hancock, Atlanta, GA, for appellees.

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 discriminated against blacks in its hiring, promotion, and termination practices. The district court, after a lengthy bench trial, entered judgment against the plaintiffs on their Title VII, 42 U.S.C. Sec. 2000e et seq., and 42 U.S.C. Sec. 1981 claims. We affirm the district court's decision. 1


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

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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 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 appointments at which they could fill out an application. Haynes also accepted applications from individuals who came to the plant without appointments. 2 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. 3 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 department 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 procedures in May 1985 by using the Mississippi State Employment 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. 4 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 & L has not hired any production workers since that time.

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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. 5 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 predominately 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 bargaining 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. 6 D & L did not allow employees 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 production 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 discharged employees, using the Company's garnishment policy as a pretext, in retaliation for the employees filing charges with the Equal Employment Opportunity Commission ("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 garnishments not satisfied, withdrawn, or stayed within thirty days after D & L informed the employee of their existence counted against the four-garnishment limit. The two-year period began to run on the date D & L discussed 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

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promotion class claims under the disparate treatment model instead of under the disparate impact model. 7 We examine discrimination claims using the disparate impact model when employment 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, 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 discretionary decision-making does not itself create an inference of discriminatory conduct. Id. 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.......

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