Thompson v. Sun Oil Co.

• Citation: 523 F.2d 647
• Decision Date: 03 October 1975
• Docket Number: No. 74-1953,74-1953
• Parties: 11 Fair Empl.Prac.Cas. 745, 10 Empl. Prac. Dec. P 10,419 W. Edward THOMPSON, Appellant, v. SUN OIL COMPANY, a Pennsylvania Corporation, doing business in the State of Nebraska, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 647

523 F.2d 647

11 Fair Empl.Prac.Cas. 745,

10 Empl. Prac. Dec. P 10,419

W. Edward THOMPSON, Appellant, v. SUN OIL COMPANY, a Pennsylvania Corporation, doing business

in the State of Nebraska, Appellee.

No. 74-1953.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 12, 1975.

Decided Oct. 3, 1975.

W. Edward Thompson, Washington, D. C., for appellant.

Robert L. Berry, Omaha, Neb., for appellee.

Before BRIGHT and ROSS, Circuit Judges, and TALBOT SMITH, ^* Senior District Judge.

PER CURIAM.

W. Edward Thompson, a black, brought this employment discrimination action against Sun Oil Company (hereinafter referred to as the Company) seeking damages, and declaratory and injunctive relief. Plaintiff claims that the Company violated the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., by requiring him to take an employment test for the position of Motor Products Salesman trainee. The suit was filed as a class action.

After discovery was closed the Company moved for summary judgment offering three affidavits in support of its motion. The uncontroverted substance of the affidavits was that the test was not used to evaluate the future job performance of Thompson or any other job applicant, and that the information gathered was used merely to validate the test. The district court denied certification of the suit as a class action and granted summary judgment in favor of the Company. We affirm.

After withdrawing from Wayne State Law School, Thompson came to Omaha, Nebraska in search of employment. He went to the Urban League where Mrs. Douglas, a job counselor, introduced him to Mr. Hall, a representative of Sun Oil Company, who was then seeking to hire a minority applicant as a full-time salesman trainee. An interview was arranged for November 17, 1971, at which time Thompson was required to take the employment test. Shortly thereafter, Thompson learned from Mrs. Douglas that Mr. Hall felt that he was overqualified for the job. Thompson assumed that his application had been denied and, on December 2, 1971, filed a discrimination charge with the Equal Employment Opportunity Commission. In fact, Thompson was never denied employment by the Company. The record is clear that he was twice offered the job after the discrimination charge was filed. He did not accept the job because he decided to return to law school in January, 1972.

Thompson was admitted to Creighton Law School, at least informally, sometime prior to November 10, 1971, for the purpose of transferring credits to Wayne State. On December 3, 1971, the Creighton faculty voted to admit plaintiff, without the payment of tuition, for the purpose of earning his degree at Creighton. Thompson did reenter law school shortly thereafter and was graduated from Creighton in January, 1972.

On this appeal we discern three major areas of dispute between the parties: (1) the district court's refusal to certify the suit as a class action; (2) the order granting summary judgment in favor of the Company; and (3) certain discovery matters.

The district court clearly did not abuse its discretion in refusing to certify Thompson's suit as a class action. On the record before us it is clear that Thompson could not show either the existence of any identifiable class or that he was an adequate representative of any supposed class. He admitted in his deposition that he could not identify any persons who had similarly applied for employment with the Company and had been rejected. The principal claim on behalf of the alleged class, that the use of the test was discriminatory, was clearly incorrect according to undisputed affidavits hereinafter described.

The order granting summary judgment was also proper. We note that under Fed.R.Civ.P. 56 summary judgment is proper only where the record discloses no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Ozark Milling Co. v. Allied Mills, Inc., 480 F.2d 1014 (8th Cir. 1973).

The validity of employment tests under the Civil Rights Act is governed by 42 U.S.C. § 2000e-2(h). That section does not prohibit their use. Title VII prohibits only tests which operate to disqualify a substantially higher percentage of blacks than whites and which are not job related. Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). Griggs implicitly recognized that two prerequisites, disqualification from employment and discrimination, are essential to support a Title VII challenge of an employer's testing procedures. Accord, McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

Both elements are missing here. Thompson was never disqualified by reason of the test; he was eventually offered the job of Motor Products Salesman trainee. Instead he chose to pursue his legal education, for which he began planning immediately upon his arrival in Omaha at least one week prior to his interview with the Company. The record clearly reflects that Thompson's predominant concern was to finance his legal education by means of a temporary job, not to pursue permanent employment with the Company.

But even assuming, arguendo, that Thompson was a sincere applicant, he failed to show any genuine factual issue with respect to discrimination. The uncontroverted affidavits ¹ offered by the Company stated that the tests were never used to hire or reject any applicant, minority or otherwise. In fact, the plaintiff was deemed acceptable insofar as the test battery was concerned. The Company was merely in the process of validating the test when the plaintiff was interviewed. ² Furthermore, the test was discontinued by Sun Oil early in 1972. Since Title...