Pouncy v. Prudential Ins. Co. of America

• Decision Date: 22 February 1982
• Docket Number: No. 80-1935,80-1935
• Citation: 668 F.2d 795
• Parties: 28 Fair Empl.Prac.Cas. 121, 28 Empl. Prac. Dec. P 32,451 Riley D. POUNCY, Plaintiff-Appellant, v. The PRUDENTIAL INSURANCE COMPANY OF AMERICA, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 795

668 F.2d 795

28 Fair Empl.Prac.Cas. 121,

28 Empl. Prac. Dec. P 32,451

Riley D. POUNCY, Plaintiff-Appellant, v. The PRUDENTIAL INSURANCE COMPANY OF AMERICA, Defendant-Appellee.

No. 80-1935.

United States Court of Appeals, Fifth Circuit.

Feb. 22, 1982.

Gordon R. Cooper, II, Houston, Tex., for plaintiff-appellant.

Baker & Botts, Richard R. Brann, Tony P. Rosenstein, Houston, Tex., for defendant-appellee.

Robert E. Williams, Douglas S. McDowell, Edward E. Potter, Washington, D.C., for amicus curiae Equal Employment Advisory Council.

Appeal from the United States District Court for the Southern District of Texas.

Before GEE, GARZA and REAVLEY, Circuit Judges.

REAVLEY, Circuit Judge:

This is a discrimination case in which the employer defendant has prevailed and will now prevail again. Notwithstanding the voluminous record constructed by the parties in the district court and the extensive findings of fact and conclusions of law entered by the district judge, ¹ our decision in this appeal involves little more than the straightforward application of well settled principles of employment discrimination law, chosen from our extensive writings, to a handful of subsidiary findings of fact over which there is no dispute. As a result, several issues raised in this appeal, principally those concerning the use of multiple regression and other sophisticated computer assisted models, require no attention.

I. Procedural History

Claiming that he was the victim of impermissible employment discrimination, Riley D. Pouncy ("Pouncy" or "the appellant"), a black, brought an action against his employer, The Prudential Insurance Company of America ("Prudential" or "employer"). ² His complaint contained two claims. ³ One, that Prudential had discriminated against him in 1975 when it promoted a coworker, Olga Aschenbeck, a white, to the position of assistant supervisor in the duplicating section of the office services division at Prudential's Southwestern Home Office in Houston, Texas. The other, that Prudential had discriminated against its black employees as a class by systematically failing to promote them within its work force and otherwise affording them the same conditions of employment as given to whites. A third issue-that the appellant was discharged in retaliation for filing a charge with the EEOC-was raised at trial. ⁴

The district judge provisionally certified the plaintiff class to include all present and future black employees, other than part-time employees, wage band employees, and commissary workers, in the administrative section at Prudential's Houston office, Pouncy v. Prudential Insurance Co. of America, 499 F.Supp. 427, 431 (S.D.Tex.1980); see also id. at 442-45. After a 13 day trial limited to the issue of liability, in which both parties offered anecdotal, documentary, and statistical evidence, the district judge found inter alia that Pouncy had not been denied the promotion to assistant section supervisor due to his race, that Pouncy's subsequent discharge by Prudential was not in retaliation for filing his charge of employment discrimination with the Equal Employment Opportunity Commission, and that Prudential had not maintained a system of promotion or advancement that had discriminated against blacks as a class. Id. at 466-67.

In this appeal, Pouncy raises two contentions. First, he disputes the district judge's conclusion that he was not the victim of racial discrimination. Second, he argues that the statistical evidence presented through his two expert witnesses coupled with the other evidence demonstrates that Prudential treats blacks, as a class, less favorably than whites. ⁵

We hold that the subsidiary findings of fact made by the district judge lead to the conclusion that Pouncy was neither the victim of racial discrimination by his employer nor received a retaliatory discharge. We also hold that the appellant's evidence on the class claims, mostly statistics, failed to show that Prudential's black employees were treated differently from white employees in terms of promotions, compensation, and in their use throughout Prudential's work force.

II. Individual Claims

The district judge predicated his decision that the appellant had not been the victim of racial discrimination on two grounds. First, he concluded that Pouncy had not established a prima facie case of discrimination since he was not qualified for the promotion to assistant supervisor in the duplicating section. Id. at 433-34, 466. "Although he had achieved technical proficiency in his performance in the duplicating section," the district judge found that Pouncy "lacked the necessary communication, leadership and training skills to perform as a supervisor." Id. at 434. Alternatively, the district judge held that even if a prima facie case had been proved, Prudential had established that the decision to promote Olga Aschenbeck rather than the appellant was made for non-racial reasons and the appellant "failed to satisfy (his) ultimate burden of establishing that he was discriminated against on the basis of his race." Id. at 435.

Likewise, the district judge anchored his decision that the appellant was not discharged in retaliation for filing a charge with the EEOC both on Pouncy's inability to make out a prima facie case and, alternatively, on a finding that Prudential "ha(d) adequately rebutted plaintiff's case by proving that plaintiff's termination was based on a legitimate, non-discriminatory reason." Id. at 467. According to the district judge, Pouncy either did not establish that he was discharged "for an infraction for which non-minorities were not," or, assuming a prima facie case had been made, "failed to sustain the inference that his discharge was the result of racial discrimination." Id. at 437, 438.

The ultimate issue-whether the appellant was the victim of racial discrimination-is a question of ultimate fact to which the clearly erroneous rule does not apply. Cousin v. Board of Trustees, 648 F.2d 293, 296 & n.3 (5th Cir. 1981). Otherwise, our review of the district court's subsidiary findings is constrained by the clearly erroneous standard. Id. at 295. "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 conviction 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).

We see no reason to decide whether Pouncy established a prima facie case of discrimination since it is clear from the district judge's findings that as a plaintiff Pouncy was unable to overcome Prudential's evidence and discharge "the ultimate burden of persuading the court that (he had) been the victim of intentional discrimination." Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981). The record fully supports Judge Bue's finding that Olga Aschenbeck was chosen as assistant supervisor of the duplicating section for a legitimate, nondiscriminatory reason. She, unlike Pouncy, possessed initiative and the ability to communicate with and train her coworkers. Equally supported by the evidence is the district judge's conclusion that Pouncy was discharged due to his failure to perform a legitimate work assignment: to rewrite a memorandum received from Prudential's corporate office. As in most individual Title VII actions that reach trial, the issue of racial discrimination was in hot dispute. The district judge was charged with the task of finding the facts. Given the findings that he made, the conclusion that Pouncy was not the victim of racial discrimination is inescapable.

III. Class Claims

In the district court, Pouncy presented four sets of statistics to show that Prudential discriminated against its black employees. First, he presented evidence showing that for employees hired between 1973 and 1977 the mean weekly salary of white employees was greater than the mean weekly salary of black employees hired in the same year. See 499 F.Supp. at 449. The appellant also introduced evidence showing that in each year from 1973 to 1975, the percentage of blacks receiving promotions to managerial and supervisory positions was less than the percentage of blacks comprising Prudential's total work force. See id. at 454. For each year from 1973 to 1977, Pouncy demonstrated that, with one exception in 1975, prior to promotion to levels 5 through 12, black employees had a greater mean number of years of service with Prudential than did white employees. Id. at 454-55. Lastly, Pouncy introduced evidence showing that from 1973 to 1975 blacks were clustered in the lower levels of Prudential's work force and "underrepresented in upper levels of (Prudential's) workforce when compared with their percentage in (Prudential's) total workforce and with the workforce as a whole." Id. at 459.

Pouncy argued that three of Prudential's employment practices were responsible for the disparities shown in his statistics. First, he complained that job vacancies at Prudential were not "posted" or otherwise made known to the employees. Rather, managers and other supervisory personnel, a majority of whom were white, selected employees for promotion using minimal objective criteria. Pouncy also complained that Prudential's level system, through which clerical employees often are hired at entry level positions and subsequently promoted through the employer's work force into better jobs, ⁶ retains black employees at the lowest paying and least skilled jobs. Lastly, Pouncy singled out Prudential's use of subjective criteria in employee performance evaluations.

A. The Disparate Impact Model

By structuring his case to establish that three of Prudential's employment practices accounted for the disparities in the racial composition of Prudential's work force, the appellant attempted to fit his proof into the disparate impact model of an...