Allison v. Western Union Telegraph Co.

• Decision Date: 19 July 1982
• Docket Number: No. 80-7698,80-7698
• Citation: 680 F.2d 1318
• Parties: 29 Fair Empl.Prac.Cas. 393, 29 Empl. Prac. Dec. P 32,914 Leonard ALLISON, Jr., et al., Plaintiffs, Pete R. Bacas, D. J. Fitzpatrick, Elmer M. Herndon, et al., Plaintiffs-Appellants, v. WESTERN UNION TELEGRAPH COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1318

680 F.2d 1318

29 Fair Empl.Prac.Cas. 393,

29 Empl. Prac. Dec. P 32,914

Leonard ALLISON, Jr., et al., Plaintiffs, Pete R. Bacas, D. J. Fitzpatrick, Elmer M. Herndon, et al., Plaintiffs-Appellants, v. WESTERN UNION TELEGRAPH COMPANY, Defendant-Appellee.

No. 80-7698.

United States Court of Appeals, Eleventh Circuit.

July 19, 1982.

James L. Ford, Atlanta, Ga., for plaintiffs-appellants.

Hicks, Maloof & Campbell, Robert E. Hicks, Charles E. Wilson, III, Bruce M. Edenfield, Atlanta, Ga., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before GODBOLD, Chief Judge, RONEY and WOOD ^*, Circuit Judges.

RONEY, Circuit Judge:

Six former employees of Western Union Telegraph Company who alleged violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C.A. § 621 et seq. (ADEA), now appeal final judgments entered in favor of defendant Western Union. Five of the judgments were entered on jury verdicts, one on a directed verdict. Three verdicts went in favor of plaintiffs and are not appealed. The alleged discrimination occurred when plaintiffs were furloughed because of a nationwide reduction in work force at Western Union. The issues on appeal are (1) whether the court properly denied plaintiffs' motion for directed verdicts; (2) whether the jury instructions were adequate to allow the jury to evaluate the case as a disparate treatment or disparate impact case; and (3) whether the court properly granted Western Union's motion for a directed verdict as to one of the plaintiffs who failed to file the notice of intent to sue. We affirm.

This action arises from a nationwide reduction in force which Western Union called "Furlough Force Reduction" or "FFR." Each of the plaintiffs furloughed at the time of the force reduction, with the exception of one, was a management-level employee in Western Union's Atlanta area.

The Atlanta area manager was directed by officials to reduce his management force in that area by thirteen. He was given no instructions on the selection of terminees, nor any specific plans or methods for determining which employees to terminate. The manager thought the only criteria was to "select those employees that you feel like you would miss the least." Of those terminated, only one employee was under forty, outside the ADEA protected age group. Plaintiffs contend that although there was evidence of disparate treatment as to each of the plaintiffs, evidence of adverse impact upon the protected age group pervades the entire case and instructions should have been submitted to the jury on that issue.

Five plaintiffs lost to a jury. To prevail on appeal, they must show their cases were improperly tried. The main argument focuses on the jury instructions and whether the legal principles were properly applied in distinguishing a disparate treatment case and a disparate impact case. It is helpful in this regard to review the requirement for a prima facie case in each type of reduction-in-force age discrimination case. In Williams v. General Motors Corp., 656 F.2d 120 (5th Cir. 1981), ¹ this Court held that the plaintiff in a reduction-in-force ADEA case could establish a prima facie case by:

(1) satisfying the "standing requirements under the statute," ... i.e., showing that he is within the protected age group and that he has been adversely affected-discharged or demoted-by defendant's employment decision;

(2) showing that he was qualified to assume another position at the time of discharge or demotion; and

(3) producing evidence, circumstantial or direct, from which a factfinder might reasonably conclude that the employer intended to discriminate in reaching the decision at issue.

656 F.2d at 129.

To satisfy the third requirement in Williams, "the evidence must lead the factfinder reasonably to conclude either (1) that defendant consciously refused to consider retaining a plaintiff because of his age, or (2) defendant regarded age as a negative factor in such consideration." 656 F.2d at 130. Once the plaintiff has made a prima facie case, disparate treatment occurs when the employer treats some people less favorably than others because of race, color, religion, sex or national origin. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335-36 n.15, 97 S.Ct. 1843, 1854-55 n.15, 52 L.Ed.2d 396 (1977). The burden then shifts to the employer to go forward with evidence of "some legitimate, nondiscriminatory reason for the employee's rejection." McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). If that is done, the plaintiff, who has the ultimate burden, is then afforded the opportunity to demonstrate by competent evidence that the employer's presumptively valid reasons are a coverup or pretext. 411 U.S. at 805, 93 S.Ct. at 1825.

A disparate impact case results when employment practices that are facially neutral in their treatment of different groups fall more harshly on one group than another and cannot be justified by business necessity. Dothard v. Rawlinson, 433 U.S 321, 329, 97 S.Ct. 2720, 2726, 53 L.Ed.2d 786 (1977); Albemarle Paper Company v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280 (1975); Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971). One of the critical differences between this type case and a disparate treatment case is that proof of discriminatory motive is not required under a disparate impact theory. Griggs v. Duke Power Co., 401 U.S. 424, 432, 91 S.Ct. 849, 854, 28 L.Ed.2d 158 (1971). Once the plaintiff has established that an employment practice results in disparate impact on a protected group, the burden shifts to the employer to show that the practice has a manifest relationship to the employment in question, the touchstone being business necessity and successful job performance. Dothard v. Rawlinson, 433 U.S. 324, 329, 97 S.Ct. 2720, 2726, 53 L.Ed.2d 786 (1977).

Notwithstanding which theory is being asserted the prima facie case serves an important function in the litigation. It raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors. Furnco Construction Co. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978). If the plaintiff's evidence is substantial and if the employer is silent in the face of the presumption raised by it, the court must enter judgment for the plaintiff because no issue of fact remains in the case. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981).

Contrary to plaintiffs' argument that a prima facie case of disparate impact was established through statistical evidence, and the subjective criteria used by Western Union to select those furloughed was insufficient to overcome the prima facie showing of discrimination, the court properly denied plaintiffs' motion for a directed verdict.

First, an employer can rebut the presumption of discrimination by producing evidence which either refutes a statistical analysis or, if in a disparate treatment case, shows that the plaintiff was rejected for a legitimate...