King v. Trans World Airlines, Inc.

• Decision Date: 28 June 1984
• Docket Number: No. 83-1655,83-1655
• Citation: 738 F.2d 255
• Parties: 35 Fair Empl.Prac.Cas. 102, 35 Empl. Prac. Dec. P 34,588, 16 Fed. R. Evid. Serv. 236 Ernestine KING, Appellant, v. TRANS WORLD AIRLINES, INC., Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 255

738 F.2d 255

35 Fair Empl.Prac.Cas. 102,

35 Empl. Prac. Dec. P 34,588,

16 Fed. R. Evid. Serv. 236

Ernestine KING, Appellant, v. TRANS WORLD AIRLINES, INC., Appellee.

No. 83-1655.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 14, 1983.

Decided June 28, 1984.

Robert L. Driscoll, Richard Monaghan, Stinson, Mag & Fizzell, Kansas City, Mo., for appellee.

W. Terrence Kilroy, Russell S. Jones, Jr., Shughart, Thomson & Kilroy, P.C., Kansas City, Mo., for appellant.

Before McMILLIAN, JOHN R. GIBSON and BOWMAN, Circuit Judges.

McMILLIAN, Circuit Judge.

Ernestine King appeals from a final judgment entered in the District Court for the Western District of Missouri rejecting her claim that Trans World Airlines, Inc. (TWA), discriminated against her on the basis of sex in violation of Title VII of the Civil Rights Act of 1964, Sec. 703(a), 42 U.S.C. Sec. 2000e-2(a) (1976), when it refused to hire her as a kitchen helper in the dining and commissary department of its Kansas City operation. For reversal appellant argues that the district court erred in (1) failing to find discrimination on the basis of sex on this record and (2) excluding the testimony of Francine Gill. For the reasons discussed below, we reverse the judgment of the district court and remand the case for further proceedings consistent with this opinion.

The following statement of facts is based upon the district court's memorandum opinion, King v. Trans World Airlines, Inc., No. 79-0642-CV-W-8 (W.D.Mo. Apr. 12, 1983). Appellant is the mother of four children. She was employed by TWA as a probationary kitchen helper in the Kansas City dining and commissary department from June 18, 1975, to September 7, 1975, when she was terminated during a reduction-in-force. Because she was terminated before she completed the ninety-day probationary period, appellant was not eligible for automatic recall. TWA did, however, classify appellant as "eligible for rehire." In May 1976 appellant filled out several employment applications in TWA's Kansas City personnel office, including an application for positions in the dining and commissary department. In November 1976 the supervisor of personnel administration notified appellant that she needed the approval of the manager of the dining and commissary department, U.S. Powell, in order to be rehired in that department.

Appellant contacted Powell and arranged an interview. It is undisputed that during this interview Powell asked appellant questions about her pregnancy during her probationary employment, her marital status, the nature of her relationship with another TWA employee, the number of children she had and whether they were illegitimate, her childcare arrangements, and her future childbearing plans. It appears that this was the extent of the interview.

Appellant contacted Powell again about a week later and was told to return for another interview. During this second interview appellant's two former supervisors were present; the interview was very brief because neither supervisor remembered appellant. In late December 1976, Powell informed appellant that there were no present openings, but that he would keep her in mind. It was undisputed that during that month TWA hired ten or eleven kitchen helpers in the dining and commissary department and that the position of kitchen helper was basically an entry-level position that required little or no training or experience. It was also undisputed that job applicants were not asked questions about pregnancy, childbearing and childcare during interviews as a matter of TWA policy.

In January 1977, appellant filed a charge against TWA with the Equal Employment Opportunity Commission (EEOC), alleging race and sex discrimination and retaliation for employment discrimination complaints filed by her friend Phillip King, a TWA employee. Appellant and King were married in 1977. The EEOC found reasonable cause to believe that TWA discriminated against appellant on the basis of sex and issued a right-to-sue letter. Appellant then filed this Title VII action for declaratory and injunctive relief, seeking in particular an offer of employment and backpay. The parties stipulated the amount of backpay that would be due.

The district court found that appellant established a prima facie case of disparate treatment on the basis of sex: appellant is a member of a protected group; she applied for an available position for which she was qualified; she was not hired; and TWA continued to seek applicants for the position. TWA then rebutted the inference of discrimination by articulating the following legitimate, nondiscriminatory reasons for its refusal to hire appellant: an unfavorable recommendation from another supervisor, a close relationship with another TWA employee, and two absences during her probationary period. The district court then found that appellant failed to prove by a preponderance of the evidence that TWA's articulated reasons were pretextual and entered judgment in favor of TWA. This appeal followed.

Appellant first argues that the district court erred in failing to find sex discrimination on this record. As noted, the district court followed the analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981). We agree that appellant established a prima facie case of disparate treatment. "Establishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the [plaintiff]." Texas Department of Community Affairs v. Burdine, 450 U.S. at 254, 101 S.Ct. at 1094; see Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978). However, we disagree with the district court's analysis of the employer's articulated reasons for its refusal to hire appellant.

At this point it is necessary to clarify the nature of appellant's claim. Appellant alleged that TWA treated her differently in the employment process by asking her particular questions during the interview that it did not ask other job applicants and used the information in deciding not to hire her. Thus, appellant asserted that Powell conducted her interview in a different way than those of other job applicants. Appellant argued that TWA treated her differently in the hiring process, that the reason for this difference in treatment was sex, and that as a result TWA did not hire her. But for the fact that appellant alleged that TWA treated her differently in the hiring process, we would have no reason to fault the district court's analysis of the employer's articulated reasons for its refusal to hire. ¹ However, TWA's articulated reasons for refusing to hire appellant do not explain why appellant was treated differently during the interview. Cf. Ostroff v. Employment Exchange, Inc., 683 F.2d 302, 304 (9th Cir.1982) (per curiam) (woman alleged sex discrimination when employment agency falsely told her that advertised position was filled without asking her about her qualifications; employment agency's defense that plaintiff was not qualified for position held irrelevant where plaintiff was summarily rejected without considering her qualifications); Nanty v. Barrows Co., 660 F.2d 1327, 1332 (9th Cir.1981) (employer summarily rejected qualified minority applicant without interview or opportunity to file application; employer's reasons why applicant would not have been hired did not explain why applicant was summarily rejected); EEOC v. Spokane Concrete Products, Inc., 534 F.Supp. 518, 523 (E.D.Wash.1982) (female applicant for truck driving position was given perfunctory interview different than interview given male applicant; employer's "eyeball test" for strength did not meet business necessity defense and sex was not shown to be bona fide occupational qualification for position).

Of course, if a job applicant proved unlawful discrimination in the hiring process, then the employer would be entitled to prove by clear and convincing evidence that the job applicant would not have been hired anyway in order to limit the job applicant's relief. See East Texas Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 404 n. 9, 97 S.Ct. 1891, 1897 n. 9, 52 L.Ed.2d 453 (1977) ("Even assuming, arguendo, that the company's failure even to consider the applications was discriminatory, the company was entitled to prove at trial that the respondents had not been injured because they were not qualified and would not have been hired in any event."); Day v. Mathews, 174 U.S.App.D.C. 231, 530 F.2d 1083, 1085 (1976) (per curiam); accord Patterson v. Greenwood School District 50, 696 F.2d 293, 295 (4th Cir.1982); League of United Latin American Citizens v. City of Salinas Fire Department, 654 F.2d 557, 558-59 (9th Cir.1981); Davis v. Board of School Commissioners, 600 F.2d 470, 474 (5th Cir.1979). See generally Brodin, The Standard of Causation in the Mixed-Motive Title VII Action: A Social Policy Perspective, 82 Colum.L.Rev. 292 (1982).

Here, it is undisputed both that Powell asked appellant pregnancy, childbearing and childcare questions during the interview and that, according to TWA policy, these questions were not asked during the interviews of either male or female job applicants. Appellant's prima facie case raised the inference that this difference in treatment at the interview stage of the hiring process was at least in part the product of unlawful discrimination. See Coleman v. Missouri Pacific R.R., 622 F.2d 408, 410 (8th Cir.1980) (unlawful bias may be merely contributing factor rather than sole factor in employer's decision). TWA's explanation that appellant's interview was not a "real" interview because appellant did not precisely follow the normal application process was rejected by the district court. The district court found that TWA...