Craig v. Alabama State University

• Citation: 804 F.2d 682
• Decision Date: 18 November 1986
• Docket Number: No. 85-7325,85-7325
• Parties: 42 Fair Empl.Prac.Cas. 471, 42 Empl. Prac. Dec. P 36,805, 35 Ed. Law Rep. 968 Charles R. CRAIG, for himself and for all others similarly situated, Plaintiffs, Dorothy D. Moore, Plaintiff-Appellant, v. ALABAMA STATE UNIVERSITY; Levi Watkins, individually and in his official capacity as President of Alabama State University; the Board of Trustees of Alabama State University; Mrs. L.W. Noonan; Dr. R.J. McLaughlin; Mayor Andrew M. Hayden; Ross Dunn; Robert L. Potts; Tom Radney; Lewis J. Willie; Mayor A.A. Chandler; and Robert L. Glynn, individually and in their official capacities as Members of the Board of Trustees of Alabama State University; Ed Moss; Dr. Aaron Van Wright and Isaac Sanders, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 682

804 F.2d 682

42 Fair Empl.Prac.Cas. 471,

42 Empl. Prac. Dec. P 36,805, 35 Ed. Law Rep. 968

Charles R. CRAIG, for himself and for all others similarly

situated, Plaintiffs, Dorothy D. Moore, Plaintiff-Appellant, v. ALABAMA STATE UNIVERSITY; Levi Watkins, individually and in

his official capacity as President of Alabama State

University; the Board of Trustees of Alabama State

University; Mrs. L.W. Noonan; Dr. R.J. McLaughlin; Mayor

Andrew M. Hayden; Ross Dunn; Robert L. Potts; Tom Radney;

Lewis J. Willie; Mayor A.A. Chandler; and Robert L.

Glynn, individually and in their official capacities as

Members of the Board of Trustees of Alabama State

University; Ed Moss; Dr. Aaron Van Wright and Isaac

Sanders, Defendants-Appellees.

No. 85-7325.

United States Court of Appeals,

Eleventh Circuit.

Nov. 18, 1986.

Alexander W. Jones, Jr., Pritchard, McCall, Jones, Spencer & O'Kelley, F. Hilton-Green Tomlinson, Robert L. Wiggins, Jr., Gordon, Silberman, Wiggins & Childs, Robert F. Childs, Jr., Birmingham, Ala., for plaintiff-appellant.

Solomon S. Seay, Jr., Montgomery, Ala., for defendants-appellees.

Appeal from the United States District Court for the Middle District of Alabama.

Before TJOFLAT and ANDERSON Circuit Judges, and MORGAN, Senior Circuit judge.

MORGAN, Senior Circuit Judge:

Appellant Dorothy Moore appeals from an adverse decision rendered below on the merits of her claim brought under Title VII of the Civil Rights Act alleging racial discrimination by Alabama State University in relation to her application for employment. The appellant contends that the lower court erred in failing to properly apply disparate impact analysis to the facts of this case. Having reviewed the record, we agree that the district court's analysis was flawed and reverse and remand for determination of the appropriate remedy.

I.

This lawsuit has its genesis in an earlier discrimination suit leveled against Alabama State University (ASU) in the 1970's. In that suit, styled Craig v. Alabama State University, 451 F.Supp. 1207 (M.D.Ala.1978), then District Judge Frank M. Johnson, Jr. found that Alabama State University had engaged in a pattern and practice of discrimination against whites in the hiring of administrative, clerical and support staff, as well as faculty. That finding culminated in appropriate injunctive relief forbidding any further discrimination on the part of ASU in all aspects of hiring practices at the university. The instant case was filed as a continuation of these prior proceedings in the form of a Motion For Contempt alleging that the defendants had violated the court's 1978 injunction prohibiting discriminatory employment practices.

The facts from which the Motion For Contempt arose involved appellant Dorothy Moore's application for the position of Federal Relations Director at ASU in 1983. Many of the facts underlying her claim, as found by the district court, are largely undisputed, and we of course accept the factual findings of the district court as correct unless clearly erroneous. See Pullman-Standard v. Swint, 456 U.S. 273, 289-90, 102 S.Ct. 1781, 1790-91, 72 L.Ed.2d 66 (1982). The district court found that the appellant is a white female who in 1983 approached Dr. Robert Randolph, the President of ASU, in search of a position at the institution. She was advised that although nothing was presently available, if grant funds could be obtained she could be employed on a temporary basis. Subsequently, in light of indications that the appellant had obtained such a grant commitment to commence later in the year, Randolph employed her on an interim basis in the job of Acting Assistant Director of Federal Relations. ¹ That position bore the responsibility of acquiring grants for the university.

At the time the appellant assumed the position, she was given two contracts. The first covered the limited period of July 1 to September 30, 1983, and the second from October 1, 1983 to September 28, 1984. At the time that the appellant assumed the position, it was understood that eventually the opening would have to be advertised according to university policy for permanent positions, although the president did have authority to fill such positions in the interim. Thereafter, at a meeting of the Board of Trustees of ASU on August 15, 1983, the matter of appellant Moore's employment came to the attention of the Board. The Board was not apprised of her second contract, and accordingly concluded that its obligation to Ms. Moore ceased upon the expiration of the first contract. After the Board meeting, Dr. Randolph contacted the appellant and informed her that in light of the Board's posture, her contract would "self-destruct" at the end of the first contract. The plaintiff testified and the district court found, that at that point she voluntarily "stepped aside" from the second contract based upon assurances that the job would have to be advertised and that she should apply for it. The position was thereafter advertised in The Chronicle of Higher Education dated August 31, 1983, with applications being invited until the deadline of September 30, 1983. Close to this time, a Search Committee was formed to review applications for the Director of Federal Relations position.

In the meantime, another set of events was transpiring which would have a direct effect upon the appellant's application for the position of Director of Federal Relations. In August of 1983, Ms. Jacqueline Mallory Williams contacted ASU and advised the university that she was now available for re-employment pursuant to a study leave agreement that she had entered with the university on September 25, 1981. Mrs. Williams, who is black, had been employed at the university since 1964. Prior to taking study leave, she had been an assistant to Dr. Randolph's predecessor, Dr. Levi Watkins. The letter agreement provided that Ms. Williams would be granted a two-year study leave to pursue her doctorate degree at the University of Alabama at Tuscaloosa, during which time she would continue to receive a partial salary from ASU. Upon completion of her studies, the agreement provided for her return to ASU in a "faculty or other mutually acceptable position" at her previous salary, which was $31,420.00 per year. Early in September of 1983, Ms. Williams again contacted the university regarding her availability and a list of potential vacant positions was compiled for her scrutiny. Only one of the available positions, Athletic Director, provided a salary commensurate with Ms. Williams' previous salary.

On September 24, 1983, the Board of Trustees for ASU met again. At that meeting Dr. Randolph recommended to the Board that Ms. Williams be hired as Director of Federal Relations, a position that she had expressed some interest in shortly before the meeting, and the Board accepted this recommendation. Although the position had an advertised salary range of $21,000-$25,000 per year, Ms. Williams' contract was issued in the amount of $31,420.00, concomitant with her salary prior to taking study leave. After this action was taken on September 24, 1983, the appellant filed an application for the position on September 30, 1983, inasmuch as she was not informed that the position had been given to Ms. Williams. The parties stipulated that the Search Committee was disbanded without having reviewed any applications, and the Board considered only Ms. Williams' qualifications in making the decision to fill the position. Although the position was filled before the close of the application period, none of the applicants, including the appellant, were notified of that fact until sometime in October of 1983.

In sum, the district court found that both the appellant and Ms. Williams were qualified for the position of Director of Federal Relations. Although the university had a policy allowing the appointment of temporary employees to fill vacancies, those temporary employees received no enhanced rights regarding permanent appointment to the position vis-a-vis other applicants. The court concluded that "Ms. Williams was hired as Director of Federal Relations because of the obligation of the University to find her a 'mutually acceptable' job upon her return from study leave and that the position of Director of Federal Relations was the only available job which met the requirements of the University's obligations and was consistent with Ms. Williams' qualifications." [Rec. at 097].

On appeal, the appellant raises only one challenge to the adverse decision below--that the district court erred in its application of disparate impact analysis to the aforementioned factual findings. ²

II.

Disparate impact analysis in Title VII cases emanates from the Supreme Court case of Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971) and its offspring. See, e.g., Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975); Dothard v. Rawlinson, 433 U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977). These cases set forth a tripartite scheme of analysis for employment practices that are "fair in form, but discriminatory in operation." First, to establish a prima facie case of discrimination in such cases, the complaining party must demonstrate that the defendant employed a facially neutral employment practice that had a significant discriminatory impact. The burden then shifts to the employer to show that the challenged employment practice has a "manifest relationship" to the employment in question, or in other words that it is supported by "business necessity." See Griggs, 401 U.S. at 431-32, 91 S.Ct. at 853-54, 28 L.Ed.2d at 164-65. Should the employer carry that burden, the employee must still be provided the opportunity to demonstrate that the employer was using the practice as a pretext for discrimination or that other criteria were available with a lesser adverse impact on the minority that would still serve the employer's needs. See Albemarle...