Morgan v. United Parcel Service of America, 02-2545.

• Citation: 380 F.3d 459
• Decision Date: 30 August 2004
• Docket Number: No. 02-2545.,No. 02-2835.,02-2545.,02-2835.
• Parties: Leslie MORGAN; Kenneth Stacker; Theodore Boldin, Class Representatives of the Plaintiff Class, Plaintiffs/Appellants/Cross-Appellees, Enoch Love; Equal Employment Opportunity Commission, Intervenor Plaintiffs, v. UNITED PARCEL SERVICE OF AMERICA, INC.; United Parcel Service, Defendants/Appellees/Cross-Appellants. Charles Cartwright, Movant/Appellant, Brian Needham, Movant, Bedell Finley; Frank Jackson, Movants/Appellants, Francis Truitt, Movant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 459

380 F.3d 459

Leslie MORGAN; Kenneth Stacker; Theodore Boldin, Class Representatives of the Plaintiff Class, Plaintiffs/Appellants/Cross-Appellees Enoch Love; Equal Employment Opportunity Commission, Intervenor Plaintiffs, v. UNITED PARCEL SERVICE OF AMERICA, INC.; United Parcel Service, Defendants/Appellees/Cross-Appellants Charles Cartwright, Movant/Appellant Brian Needham, Movant Bedell Finley; Frank Jackson, Movants/Appellants, Francis Truitt, Movant.

No. 02-2545.

No. 02-2835.

United States Court of Appeals, Eighth Circuit.

Submitted: April 14, 2003.

Filed: August 30, 2004.

Appeal from the United States District Court for the Eastern District of Missouri, Carol E. Jackson, Chief Judge.

Darlene Robinson, argued, Oakland City, IN (Virginia M. O'Leary, Kevin S. Kinkade, Scott A. Funkhouser, Oakland City, IN on the brief), for appellant.

William H. Brown, III, argued, Philadelphia, PA (Deena Jo Schneider and Jennifer Nestle, Philadelphia, PA, David W. Welch, Thomas B. Weaver, Robert A. Kaiser and Daniel K. O'Toole, St. Louis on the brief), for appellee.

Before MORRIS SHEPPARD ARNOLD, BEAM, and MELLOY, Circuit Judges.

BEAM, Circuit Judge.

Leslie Morgan; Kenneth Stacker, and Theodore Boldin, black managers at United Parcel Service (UPS), brought a civil rights action alleging individual and class claims of employment discrimination under Title VII and 42 U.S.C. § 1981. These individuals moved for class certification and the district court partially granted the motion, certifying four classes of employees (collectively, "Plaintiffs"). UPS moved for summary judgment on both the Title VII and the 42 U.S.C. § 1981 class claims or to decertify the class. Plaintiffs moved for partial summary judgment on their class claims of racially discriminatory pay. The district court denied Plaintiffs' motion, granted summary judgment to UPS, and denied UPS's motion to decertify the class. It held that Plaintiffs had failed to adduce sufficient evidence of a pattern or practice of class-wide discrimination. We affirm.

I. FACTUAL BACKGROUND

UPS delivers packages world-wide for individuals and businesses. UPS is divided into eleven geographic regions in the United States, each with a regional manager. A region is subdivided into approximately six districts, each with a district manager. The district managers are responsible for nearly every aspect of district operations, including picking up, sorting, and delivering packages, as well as employee development, promotion, and compensation. There are between sixty and seventy districts in the United States and each one varies in geographic size, population density, package volume, and labor climate. A district is further divided into divisions, each with a division manager. Divisions are organized along functional lines with some related to package operations and some related to supporting staff.

Two levels of managerial employees exist below the division level: supervisors and center managers. The entry level managerial position is a supervisor who reports to the center manager. The center manager reports to the division manager, the division manager to the district manager, and the district manager to the regional manager.

UPS vests decisionmaking authority in district managers to promote employees to division manager, center manager, and supervisor. District managers hold "People's Meetings" approximately twice a year, where they discuss the upward mobility of management personnel. At these meetings, information is presented on supervisors and center managers in the district, and their performance and readiness for promotion are assessed. At some of the meetings, a color photograph of the individual is displayed. The meeting produces a list of the employees who the district managers believe are ready for promotion to managerial positions. Open positions within the company are not posted. The district manager may consult the list compiled at the meetings to determine who will receive a promotion.

II. PROCEDURAL BACKGROUND

Plaintiffs are all UPS center managers and they allege that UPS racially discriminated against them in terms of upward mobility, working conditions, and pay. With regard to the upward-mobility claim, Plaintiffs argue that the subjective selection process for managerial positions at UPS limits the promotion of blacks, which, in turn, inhibits their overall upward mobility and causes them to peak in their careers at or below the center-manager level.

The district court bifurcated the trial into a liability/injunctive phase, followed by a remedial/damages phase. Four classes were certified under Federal Rule of Civil Procedure 23(b)(2) for the first phase. The court said it would consider certifying the damages phase as a Rule 23(b)(3) class action if liability was established.

The Title VII denial-of-upward-mobility class was defined as:

[A]ll black salaried full-time employees of UPS nationwide employed as center managers in Operations (Package, Hub, Feeder, Air) or Human Resources at any time between December 20, 1991 and the date of judgment, and who worked as a supervisory or managerial employee of UPS for at least five years without being promoted above the center manager level.

The Title VII unequal-working-conditions and unequal-pay class was defined as:

[A]ll black salaried full-time employees of UPS nationwide employed as center managers in Operations (Package, Hub, Feeder, Air) or Human Resources at any time between December 20, 1991 and the date of judgment.

The 42 U.S.C. § 1981 denial-of-upward-mobility class was defined as:

[A]ll black salaried full-time employees of UPS nationwide employed as center managers in Operations (Package, Hub, Feeder, Air) or Human Resources at any time on or after June 17, 1989 and the date of judgment, and who worked as a supervisory or managerial employee of UPS for at least eight years without being promoted above the center manager level.

The 42 U.S.C. § 1981 unequal-working-conditions and unequal-pay class was defined as:

[A]ll black salaried full-time employees of UPS nationwide employed as center managers in Operations (Package, Hub, Feeder, Air) or Human Resources at any time on or after November 21, 1991 and the date of the judgment.

The district court granted a motion by the EEOC to intervene, but the EEOC is not involved in these appeals. At the time of the original class certification, Charles Cartwright was a member of at least two certified classes. After modification of the certified classes, the district court ruled that he no longer qualified as a member of any of the four classes and thus vacated the order allowing him to intervene. Frank Jackson was also denied intervenor status. Both Cartwright and Jackson appeal those decisions. Brian Needham, Francis Truitt, and Bedell Finley also sought, but were denied, intervenor status; however, they are not parties to this appeal.¹

Discovery proceedings produced reports, statistical analyses, and models of UPS's employment data and practices prepared by experts for all parties. Plaintiffs presented two experts who conducted statistical analyses: Dr. Weiner and Dr. Stapleton. And the Defendant offered statistical analyses conducted by its expert, Dr. Evans. At the close of discovery, UPS moved for summary judgment on all class claims or to decertify the classes. Plaintiffs moved for partial summary judgment on their class claim of discriminatory pay. UPS also moved to bar the testimony of two of Plaintiffs' experts as inadmissible under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469(1993), because of faulty methodology and data. The district court granted UPS summary judgment on all class claims and denied Plaintiffs' summary judgment motion. The court also denied as moot UPS's motions to decertify the class and to bar Plaintiffs' expert testimony.

III. DISCUSSION

Plaintiffs claim the district court erred in granting UPS's summary judgment motion on each of the three class claims: (1) denial of overall upward mobility, (2) working conditions, and (3) pay.

We review de novo a grant of summary judgment to determine whether a claim is factually supported. Jackson v. Ark. Dep't of Educ., 272 F.3d 1020, 1025 (8th Cir.2001). Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). We must view all facts in the light most favorable to the nonmoving party and give the nonmoving party the benefit of all reasonable inferences that can be drawn from those facts. Widoe v. Dist. # 111 Otoe County Sch., 147 F.3d 726, 728 (8th Cir.1998). However, "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Therefore, in a motion for summary judgment, "[t]he judge's inquiry unavoidably asks whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict." Id.

Plaintiffs' case centers on discriminatory treatment in the form of unequal working conditions, promotions, and pay. More specifically, this class action alleges a pattern or practice of discrimination with regard to each of these three aspects of employment. In a pattern-or-practice class action, the class must prove that the defendant "`regularly and purposefully' treated members of the protected group less favorably and that unlawful discrimination was the employer's `regular procedure or policy.'" EEOC v. McDonnell Douglas Corp., 191 F.3d 948, 951 (8th Cir.1999) (quoting Int'l Bhd....