690 F.2d 88 (6th Cir. 1982), 80-1407, Rowe v. Cleveland Pneumatic Co., Numerical Control, Inc.

Docket Nº:80-1407.
Citation:690 F.2d 88
Party Name:Richard D. ROWE, Plaintiff-Appellant, v. CLEVELAND PNEUMATIC COMPANY, NUMERICAL CONTROL, INC., Defendant-Appellee.
Case Date:October 08, 1982
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 88

690 F.2d 88 (6th Cir. 1982)

Richard D. ROWE, Plaintiff-Appellant,

v.

CLEVELAND PNEUMATIC COMPANY, NUMERICAL CONTROL, INC.,

Defendant-Appellee.

No. 80-1407.

United States Court of Appeals, Sixth Circuit

October 8, 1982

Argued Oct. 15, 1981.

Page 89

Richard H. Dinkins, Avon N. Williams, Jr., Nashville, Tenn., for plaintiff-appellant.

Floyd Don Davis, Greg O'Neal, Winchester, Tenn., for defendant-appellee.

Before KEITH and JONES, Circuit Judges, and HOLSCHUH, District Judge. [*]

PER CURIAM.

Richard D. Rowe, a black male, filed this employment discrimination suit under Title VII of the Civil Rights Act of 1964, as amended 42 U.S.C. § 2000e et seq., against his former employer, Numerical Control, Inc. (NCI), a manufacturing concern located in Tennessee. 1 While his complaint was somewhat ambiguous and although other issues were raised, Rowe's major contention was that NCI's refusal to rehire him, following a layoff, was racially motivated. Judge C. G. Neese, following a one-day bench trial in March 1980, filed a memorandum opinion in which he found that NCI's refusal to rehire Rowe was not the result of racial discrimination. Rowe appeals from this judgment. For the reasons stated below, we reverse and remand the case to the district court for further proceedings.

I.

On October 25, 1973, Rowe was hired by NCI as a benchman at its Tullahoma, Tennessee plant. At this time, NCI had 9 black employees out of a total of 236 employees. 2

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None of these nine individuals occupied a supervisory position. According to Rowe's testimony, black employees in his department were discriminatorily supervised by the foreman. On one occasion, the foreman referred to the boxer Muhammad Ali as a "nigger." When Rowe objected to the foreman's use of that term, the foreman allegedly became angry and, according to Rowe, gave him "difficulty and problems" thereafter. Specifically, Rowe testified that, as a union steward, he encountered difficulty in negotiating with his foreman, although none of his white counterparts encountered a similar problem. On April 2, 1976, Rowe sustained a back injury at work and was granted a medical leave of absence until July 21, 1976, or until released by his doctor. 3 But before his medical leave had expired, Rowe was notified on July 9, 1976, that he had been laid off work. NCI had never before laid off an employee who, at the time of his layoff, was on a medical leave of absence.

After Rowe was released by his doctor for return to work in February 1977, he attempted to regain his job at NCI. When he was not recalled, he spoke with the plant superintendent who allegedly made several derogatory comments concerning the EEOC and NAACP in connection with Rowe's desire to return to work.

In October 1978, NCI began to hire additional employees, and Rowe submitted his application to be rehired. The normal method in hiring new employees consisted of the company's personnel manager, production superintendent, production manager and production foreman evaluating the applicant's experience, training, references and appearance. A different procedure was utilized, however, for former employees of NCI who had lost their seniority rights to recall. The names of the former employees were placed on a list which was then sent to each foreman, and the decision as to rehiring these former employees was left entirely to NCI's foremen. No guidelines or standards were used to govern a foreman's decision. 4 Nor was a foreman obliged to state, in written or oral fashion, any reason for his rejection of a former employee. It was simply assumed by the personnel manager

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that the rejection of a former employee was based on the applicant's previous work record. 5

Rowe, considered by NCI to have lost his seniority rights, 6 had his name included on the list of former employees, both black and white, who were being considered for the available positions. Although it is undisputed that Rowe was qualified for the available jobs, he was not selected by the foremen among whom the list was circulated and, consequently, was not reemployed. Because the number of former employees selected for rehire was not sufficient to fill all of the job vacancies, NCI subsequently hired eight new employees. 7 At least one of the white persons employed to perform a job which Rowe was qualified to perform was considered by the personnel manager to be less qualified than Rowe.

II.

The district court's opinion does not reveal under what theory of Title VII liability Rowe's complaint was analyzed. The district court merely concluded that the reason Rowe was not rehired was that he had not been selected by NCI's foreman from the list of former employees circulated among the foremen. Referring to NCI's procedure as "a rather odd modus operandi " and recognizing "the dangers of abuse inherent in a rehiring system such as this," the judge nevertheless considered this procedure a "test" that was reasonably related to job performance, citing Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). Further, the trial court reasoned that the only evidence from which it might be inferred that NCI's refusal to reemploy Rowe was racially motivated consisted of the racial slur of the foreman in referring to Muhammad Ali as a "nigger" and the derogatory references of the plant superintendent to the EEOC and NAACP. The trial court, relying on Howard v. National Cash Register Co., 388 F.Supp. 603 (S.D.Ohio 1975), concluded that NCI could not be held responsible for such unauthorized statements of its employees.

On appeal, Rowe contends that the district court erred by failing to apply the disparate treatment analysis set forth in McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). He also contends that the trial court committed error by holding that the subjective evaluation procedure employed by NCI was a test sufficiently job related to pass scrutiny under Title VII.

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III.

A.

As recently articulated by this Court in Chrisner v. Complete Auto Transit, Inc., 645 F.2d 1251, 1257 (6th Cir. 1981), two theories are available to a plaintiff under current law to prove a case of unlawful employment discrimination: disparate treatment and disparate impact. These two doctrines, prudentially created by the Supreme Court, allocate and detail both the nature and shifting burdens of production 8 in Title VII cases. In order to prevail under the disparate treatment theory, articulated in McDonnell Douglas v. Green, supra, the plaintiff must demonstrate that the employer has treated some people less favorably than others because of their race, color, religion, sex or national origin. In such a case, proof of discriminatory motive is critical. However, in some cases it may be inferred from the mere fact of differences in treatment. On the other hand, the disparate impact doctrine of Griggs v. Duke Power Co., supra, requires that the plaintiff demonstrate that a facially neutral employment practice, in fact, falls more harshly on one group than another and that this practice is not justified by business necessity. Under this theory, proof of discriminatory intent is not required.

Either theory may be applied to a particular set of facts. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 1854 n.15, 52 L.Ed.2d 396 (1977). Thus, they merely represent alternative foundations upon which liability may be premised. As such, they both may be properly pleaded in a plaintiff's complaint, see Fed.R.Civ.P. 8(e) (2), and, if sufficiently supported by the evidence, both theories may also be submitted to the trier of fact and utilized as a basis for relief. See Wright v. National Archives and Record Services, 609 F.2d 702, 711 (4th Cir. 1979); Fed.R.Civ.P. 41(b). Moreover, a plaintiff relying on both theories need not elect between them either before, during or after trial. Wright v. National Archives and Record Services, 609 F.2d at 711.

The record reveals that there was some confusion on the part of the trial court and the parties as to whether Rowe's claims were to be analyzed under the disparate treatment test of McDonnell Douglas, under the disparate impact test of Griggs or under both. As noted earlier, the district court's memorandum opinion does not allude at all to McDonnell Douglas or the disparate treatment theory and only makes a passing reference to Griggs. Nor do the pleadings of the parties offer much assistance in unscrambling this problem. 9 However, after carefully examining the record, we are convinced that the district court erred by confusing these related but significantly different doctrines of Title VII liability. See, e.g., Williams v. Colorado Springs, Colo. School Dist. # 11, 641 F.2d 835, 842 (10th Cir. 1981).

B.

The procedure used by the employer in the present case permitted the plant foremen

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to select, among former employees, those persons they desired to have rehired. The employer thereby delegated the employment decision, as to this group of applicants, to the foremen for their subjective evaluations. This Court has previously noted the problems inherent in selection procedures which rely solely upon the subjective evaluations of all white supervisory personnel. See, e.g., Senter v. General Motors Corp., 532 F.2d 511, 528-29 (6th Cir.), cert. denied, 429 U.S. 870, 97 S.Ct. 182, 50 L.Ed.2d 150 (1976); Shack v. Southworth, 521 F.2d 51, 55-56 (6th Cir. 1975). While such procedures are not per se violative of Title VII, Hester v. Southern Railway Co., 497 F.2d 1374, 1381 (5th Cir. 1974), they do provide a ready mechanism for discrimination, permitting racial prejudice to affect and often control promotion and hiring decisions. Harris v. Group...

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