Gay v. Waiters' and Dairy Lunchmen's Union, Local No. 30

Decision Date02 December 1982
Docket NumberNo. 2,No. 9,No. 80-4120,9,2,80-4120
Citation694 F.2d 531
Parties29 Fair Empl.Prac.Cas. 1027, 30 Fair Empl.Prac.Cas. 605, 30 Empl. Prac. Dec. P 33,026 James GAY, Leonard Whitman, Frederick McDowell, Douglas Lee, Gary Dennis and Loyal Graham, on behalf of themselves and all persons similarly situated, Plaintiffs-Appellants, v. WAITERS' AND DAIRY LUNCHMEN'S UNION, LOCAL NO. 30; Dining Room Employees Union, Local; Hotel and Restaurant Employees & Bartenders Union, Local; the St. Francis Hotel Corporation, a Delaware corporation; Hilton Hotels Corp., a Delaware corporation d/b/a San Francisco Hilton & Tower, Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

B. E. Bergesen, III, Berkeley, Cal., for plaintiffs-appellants.

Cecily Waterman, Brobeck, Phleger & Harrison, San Francisco, Cal., argued, for defendants-appellees; Donald D. Connors, Jr., Anthony C. Piazza, San Francisco, Cal., McKnight, Hudson, Lewis & Henderson, Memphis, Tenn., on brief.

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

Before WALLACE and KENNEDY, Circuit Judges, and CROCKER, * District Judge.

WALLACE, Circuit Judge:

This case presents several significant issues concerning the order and allocation of proof, the proper role of statistical evidence, and the appropriate standard of appellate review in employment discrimination actions brought pursuant to 42 U.S.C. Sec. 1981. Plaintiff-appellant Gay, along with three other black male waiters (the waiters), 1 filed the original complaint in this action on March 28, 1973, alleging discrimination on the basis of race in the hiring, promotion, and transfer of black male waiters and applicants by the Waiters' & Dairy Lunchmen's Union (the union) and several well-known San Francisco hotels and restaurants. The waiters sued individually and on behalf of a class of all similarly situated persons, seeking monetary and equitable relief under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. Over five years ago we addressed the question whether this case could be maintained as a class action under Fed.R.Civ.P. 23(b)(2), reversing the district court's denial of the waiters' motion for class certification. 2 549 F.2d 1330 (9th Cir. 1977). Following our remand to the district court, the waiters filed an amended complaint adding the Hilton Hotels Corporation (the Hilton) as a defendant and alleging new claims under section 1981. Subsequently, all Title VII claims were dismissed by the district court and all defendants except the Hilton and the St. Francis Hotels Corporation (the St. Francis) settled. The remaining claims were tried before the district court in October of 1979. On February 6, 1980, the district court entered judgment for the hotels on the waiters' individual and class claims, filing exhaustive findings of fact and conclusions of law in a thoughtful 30-page opinion. 489 F.Supp. 282 (N.D.Cal.1980). 3 The waiters appeal pursuant to 28 U.S.C. Sec. 1291, and we affirm.

I

The facts are well-summarized in the district court's opinion. We repeat only those which are relevant to the legal issues raised in this appeal.

The St. Francis and the Hilton are large, luxury hotels in downtown San Francisco. Each operates several restaurants, ranging in nature from simple coffee shops to elegant dinner restaurants, as well as banquet departments that provide food services for a variety of special functions and offer room service. The hiring practices of both hotels are similar. Preference is given to those currently employed as buspersons in filling waiter vacancies in any of the hotels' restaurants. When a vacancy is not filled by promotion, the personnel department notifies the union of the vacancy and posts a notice of opening in the hotel. Only occasionally, if at all, has the general public been notified of the existence of open waiter positions, either through newspaper advertisements or solicitations to employment agencies.

Both hotels insist that a person seeking employment as a waiter first file a written application with the personnel department. The St. Francis, however, generally refuses to schedule appointments with the personnel office for persons seeking waiter positions when no opening then exists. The district court found that applicants appearing for appointments with the St. Francis's personnel department were asked to complete written application forms, although written applications were accepted even when no waiter vacancies existed. 489 F.Supp. at 287. The Hilton ostensibly requires all applicants to file written applications with the personnel office prior to being considered for waiter positions. The record, however, clearly reveals that many applicants for waiter positions were hired by the Hilton's restaurant managers before the personnel department was notified of the vacancy, and that several were hired without being required to file written applications.

The hotels each receive approximately 6,000 applications per year, an average of between 12 and 15 applications for every waiter position which becomes open. Both retain written applications in an active file for a period between six months and one year. These retained applications, however, are only sporadically referred to when vacancies occur, 489 F.Supp. at 296, because the hotels consider reference to previously filed applications time-consuming and inefficient, and typically fill open waiter positions very quickly. With few exceptions, applicants are hired only if a vacancy occurs within one to three days of their application. Id. n.10. All applicants are interviewed by the manager of the hotel restaurant seeking to fill a vacancy. The restaurant managers make the final hiring decisions based upon the interviews and their resulting impressions of such factors as prior job experience and job stability, appearance and demeanor. These criteria are not contained in any job description or other document, and their implementation is left entirely to the discretion of the individual restaurant managers. Id. at 300.

The waiters consist of four individual plaintiffs and four class plaintiffs. All the individual plaintiffs "were experienced waiters qualified for employment at either the St. Francis or the Hilton." Id. at 291. Three of the four individual plaintiffs worked at various times as banquet or extra banquet waiters at the St. Francis, one worked in a similar position at the Hilton, and one of the four worked at both hotels. The district court found that only one of the individual plaintiffs ever filed a written application for a permanent waiter position with either hotel. All made periodic oral requests for permanent positions; the district court expressly found that in some of the years in question, two of the individual plaintiffs made such oral requests repeatedly. However, the district court determined that with respect to both hotels, the evidence was insufficient to permit a finding as to the date of any of these oral job requests; therefore, the district court found that it was not possible to determine from the record whether vacancies existed at the time that any of the individual plaintiffs orally requested permanent positions. Id. at 295-96. Accordingly, the district court held that the waiters had failed to establish a prima facie case of intentional discrimination on their individual claims. Id.

Concluding that proof of intentional discrimination is required for section 1981 claims, id. at 299-300, the district court held that the class had failed to prove a prima facie case of an alleged pattern or practice of purposeful discrimination against black male waiter applicants. The district judge concluded that the circumstantial evidence was wanting and that the statistical presentation was insufficient to raise a prima facie case, id. at 311, and entered judgment for the hotels on the class claims.

The waiters appeal the district court's judgment only with respect to their claims arising under 42 U.S.C. Sec. 1981. Although their attack on the district court's judgment is limited to these claims, it is vigorous and extremely wide in scope. Among other things, the waiters contend that the district court erred in concluding that discrimination actions brought pursuant to section 1981 require proof of discriminatory intent. Assuming that proof of discriminatory intent is a requisite element in a prima facie section 1981 case, they then argue that their statistical evidence of racially-imbalanced hiring decisions, standing alone, was sufficient to establish a prima facie case of discriminatory intent. Alternatively, they argue that the district court erred by failing to consider, with respect to their individual claims, relevant testimonial and other circumstantial evidence of discrimination introduced during trial. Finally, the waiters insist that their statistical and circumstantial evidence of discrimination, viewed together, established a prima facie case of intentional discrimination as a matter of law on both the individual and class claims, and that this prima facie case was never rebutted by either of the hotels. They therefore ask us to reverse the district court's judgment and direct entry of judgment in their favor.

The waiters' first argument, that a prima facie case of discrimination under section 1981 should not require proof of a discriminatory purpose, can be disposed of summarily. We held nearly two years ago that section 1981 is limited to claims of intentional discrimination. Craig v. County of Los Angeles, 626 F.2d 659 (9th Cir. 1980), cert. denied, 450 U.S. 919, 101 S.Ct. 1364, 67 L.Ed.2d 345 (1981) (Craig ). We have since followed Craig repeatedly. See, e.g., Williams v. Owens-Illinois, Inc., 665 F.2d 918, 928 (9th Cir. 1982). The Second Circuit recently reached the same result, Guardians Ass'n v. Civil Service Comm'n, 633 F.2d 232, 268 (...

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