Coe v. Yellow Freight System, Inc., 79-1635

• Decision Date: 20 April 1981
• Docket Number: No. 79-1635,79-1635
• Parties: 25 Fair Empl.Prac.Cas. 900, 25 Empl. Prac. Dec. P 31,752 Fred Douglas COE, Plaintiff-Appellant, v. YELLOW FREIGHT SYSTEM, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 444

646 F.2d 444

25 Fair Empl.Prac.Cas. 900,

25 Empl. Prac. Dec. P 31,752

Fred Douglas COE, Plaintiff-Appellant, v. YELLOW FREIGHT SYSTEM, INC., Defendant-Appellee.

No. 79-1635.

United States Court of Appeals,

Tenth Circuit.

Argued March 6, 1981.

Decided April 20, 1981.

Fred Douglas Coe, plaintiff-appellant, pro se.

John J. Kitchin, Swanson, Midgley, Gangwere, Thurlo & Clarke, Kansas City, Mo. (Robert W. McKinley, Swanson, Midgley, Gangwere, Thurlo & Clarke, Kansas City, Mo., and J. Nick Badgerow, McAnany, Van Cleave & Phillips, Kansas City, Kan., with him on the brief), for defendant-appellee.

Before SETH, Chief Judge, and McWILLIAMS and DOYLE, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

This action arises under 42 U.S.C. § 1981 and 42 U.S.C. § 2000e et seq., which is commonly known as Title VII of the Civil Rights Act of 1964. The complaint alleged that Yellow Freight had discriminated against the plaintiff because of his race. He is black. Plaintiff has alleged that:

First, he was not promoted to the job of safety manager at defendant's home office in August, 1974; and,

Second, that he received his undergraduate degree from college on or about May 15, 1975, but was not offered the safety manager's position or admitted into the company's management training program; and

Third, that in June of 1975 the company refused to transfer him to any other position during the evening or graveyard shifts to permit him to attend law school during the day.

The § 1981 case resulted in a verdict for the defendants, and a motion for new trial was denied by the trial court. The trial court heard the Title VII claim based on the evidence that was given to the jury in the § 1981 case, and the court's findings and conclusions were in favor of the defendants on the Title VII issue. The appeal to this court is on both claims.

Plaintiff started work for the defendant in August of 1968 in Denver, Colorado, in the Defense Transport Division, and was transferred to Kansas City in August of 1969, when the Defense Transport Division was relocated to that city. In December, 1969, this division was phased out, and plaintiff was assigned to work in the Steel Hauling Division and Thermol Division in Kansas City. At first he was hired as a log clerk, and his duties involved auditing drivers' logs to insure that special hauling divisions complied with all government regulations concerning hours and miles driven, physicals, drivers' licenses, and that sort of thing. His title was later changed to "safety assistant," but he performed the same duties. Plaintiff also acted as a dispatcher over a period of two years, and had some dealings with owner-operator lease agreements. He spent about three weeks at a later time doing field work with the drivers: talking with them in the field. However, he had no experience in driving trucks, hiring drivers, qualifying or training drivers, or investigating accidents. He had not been involved with grievance hearings, labor law, OSHA requirements or matters having to do with hazardous materials. Nevertheless, he was involved with safety matters involving drivers' logs.

One Ken Thompson assumed the position of Safety Director after the person who had held that position, Mr. Rust, died. Thompson, who had previously served with one Jim Norman as one of two safety managers under the direction of the former director, continued after the death of Rust to exercise the responsibilities for all safety matters east of the Mississippi River and matters Plaintiff attended night school at Rockhurst College in Kansas City, and finally graduated from that institution. The defendant company paid for his tuition and books under its educational assistance program. Prior to graduating from Rockhurst, plaintiff applied for admission to law school with the University of Missouri at Kansas City. Following his graduation from Rockhurst College he requested that the company admit him to its management training program, for which a college degree was a prerequisite. However, Yellow Freight refused to admit plaintiff to that program, saying that there were no openings at that time.

involving OSHA, and Norman continued to be responsible for all safety matters west of the Mississippi River and for hazardous materials. Although plaintiff sought the job of safety manager vacated by Thompson, he did not receive the job because the position was not filled. Instead, Thompson and Norman continued to perform this work, notwithstanding the fact that Thompson was the Safety Director as well. The position of safety manager vacated by Thompson has not been filled up to the time of the trial and this appeal.

In May of 1975 plaintiff was notified that he was accepted into law school, provided that he would take the summer preparatory program. Toward the end of May, he approached various people at Yellow Freight and requested to be transferred to a job within the company which would allow him to work nights and attend law school during the day. He was told that there were no openings in any department on either the evening shift or the graveyard shift. He started law school, nevertheless, on June 9, 1975, and during the week of June 9th he reported to work at Yellow Freight to help his replacement in his former job as log clerk and safety assistant. The following week he took his accrued vacation. He was paid fully for that week and for the two weeks of his vacation, and when he returned to Yellow Freight on June 23rd, he was told by the defendant that he had no job; that he had quit to attend law school.

I. THE ISSUE IN THE CASE

The main question hinges on the Title VII claim. There are also some problems pertaining to the § 1981 claim which we will consider. However, the main issue is whether, under the two principal approaches to a Title VII claim, namely, the disparate treatment approach, and the disparate impact approach, the evidence supports a violation of Title VII whereby liability exists. Furnco Construction Corp. v. Waters, 438 U.S. 567, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978). It is to be understood that these two approaches to employment discrimination are not treated as separate claims for relief, but as alternate grounds for recovery. The definitions of disparate treatment and disparate impact are found in International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). In that case a claim of disparate treatment was said to embody a situation where "the employer simply treats some people less favorably than others because of their race, color, religion or national origin." Id. at 335, n. 15, 97 S.Ct. at 1854, n. 15. A claim of disparate impact exists when "employment practices that are basically neutral in their treatment of different groups in fact fall more harshly on one group than another and cannot be justified by business necessity." It is necessary, therefore, to consider whether plaintiff has any right to relief on either of these theories in the light of the evidence in the case.

The questions, thus, are whether the plaintiff was given disparate treatment or whether the policies of the company were such that they had a discriminatory impact on black people in general and on Coe in particular.

Disparate Treatment

This requires a discriminatory motive or intent. To establish a prima facie case of disparate treatment as a result of the employer's failure to hire, transfer or promote, plaintiff must show that (1) he applied for an available position; (2) he was qualified for the position; and (3) he was rejected under circumstances which gave rise to an inference of unlawful discrimination in that his failure to be hired, transferred or promoted is more likely than not based on considerations of impermissible factors. ¹ Texas Department of Community Affairs v. Burdine, -- U.S. --, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). If Coe established a prima facie case a presumption would be created that Yellow Freight unlawfully discriminated against him because of his race. Id. Yellow Freight could then rebut this presumption by meeting its burden of production, by articulating a legitimate, non-discriminatory reason for failure to promote or transfer Coe. Id. The burden specifically falls upon Coe to demonstrate that the reasons offered by Yellow Freight are mere pretexts for discrimination, and thus that Yellow Freight intentionally discriminated against Coe on account of his race. Id. Proof of this latter factor may be enunciated by statistical evidence which is indicative of a general pattern or practice of discriminatory policies on the part of the employer. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 805, 93 S.Ct. 1817, 1825, 36 L.Ed.2d 668 (1973).

Did the Plaintiff Show That He Received Disparate Treatment

by Yellow Freight?

Denial of promotion to safety manager position

Plaintiff alleges that he was discriminated against in that he was not promoted to the position of safety manager. His evidence is weak, however, on two grounds. First, because there was not a position open, in that there had been a decision not to hire anybody to fill the safety manager position. Second, his evidence is insufficient from the standpoint of his qualifications to be a safety manager. The plaintiff takes the position that there was a position open when Rust passed away and Thompson was promoted to the position of safety director. Apparently the decision not to fill the position which Thompson held and which he continued to carry on even though he was Safety Director is not shown to be based upon discriminatory motives. Seven years have passed and the position has not been filled. As far as plaintiff's qualifications to assume the duties of the position are concerned, the evidence shows that plaintiff was not as qualified as Thompson or Norman. Thompson had taught English, health, physical education and drivers' education in high school for three and one-half years; he had a...