828 F.2d 1260 (8th Cir. 1987), 86-1087, Catlett v. Missouri Highway and Transp. Com'n

Docket Nº:86-1087, 86-1115, 86-1860, 86-2252, 86-2393 and 86-2459.
Citation:828 F.2d 1260
Party Name:Jane CATLETT, Patricia Leembruggen, Grace Tuter and Adeline Kallemyn, individually and on behalf of all others similarly situated, Appellees, v. MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION; Robert N. Hunter, Chief Engineer of the Missouri Highway and Transportation Commission and V.B. Unsell, District Engineer for District 8 of the Missouri High
Case Date:September 09, 1987
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 1260

828 F.2d 1260 (8th Cir. 1987)

Jane CATLETT, Patricia Leembruggen, Grace Tuter and Adeline

Kallemyn, individually and on behalf of all others

similarly situated, Appellees,

v.

MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION; Robert N.

Hunter, Chief Engineer of the Missouri Highway and

Transportation Commission and V.B. Unsell, District Engineer

for District 8 of the Missouri Highway and Transportation

Commission, Appellants (Four Cases).

Jane CATLETT, Patricia Leembruggen, Grace Tuter and Adeline

Kallemyn, individually and on behalf of all others

similarly situated, Appellants,

v.

MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION; Robert N.

Hunter, Chief Engineer of the Missouri Highway and

Transportation Commission and V.B. Unsell, District Engineer

for District 8 of the Missouri Highway and Transportation

Commission, Appellees (Two Cases).

Nos. 86-1087, 86-1115, 86-1860, 86-2252, 86-2393 and 86-2459.

United States Court of Appeals, Eighth Circuit

September 9, 1987

Submitted April 16, 1987.

Rehearing and Rehearing En Banc Denied Oct. 23, 1987.

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[Copyrighted Material Omitted]

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Jack Whitacre, Kansas City, Mo., for appellants.

Lisa S. Van Amburg, St. Louis, Mo., for appellees.

Before FAGG, Circuit Judge, BRIGHT, Senior Circuit Judge, and MAGILL, Circuit Judge.

FAGG, Circuit Judge.

These appeals and cross-appeals follow the entry of judgment partially in favor of and partially against the Missouri Highway and Transportation Commission in a suit combining individual and class sex discrimination claims. Our review will focus on five major issues: (1) the estoppel effect of the jury verdict on a district court acting as factfinder on coexisting equitable claims; (2) the sufficiency of the evidence of class discrimination in a case combining statistical and anecdotal evidence; (3) the calculation of class back pay awards; (4) the propriety of orders imposing gender-conscious goals with respect to future hiring; and (5) the enhancement of attorney fees. We affirm the state's liability to the class but reverse the state's liability to the individual plaintiffs and remand for modification of the relief awarded and for further proceedings consistent with this opinion.

The allegations of discrimination in this case focus on Missouri's practices and policies in hiring highway maintenance workers. Requirements for this entry-level position are an eighth-grade education and an ability to operate lightweight motor equipment, and duties include mowing highway right-of-ways, plowing snow, filling potholes, maintaining rest areas, and performing minor service and repairs on equipment. The individual plaintiffs, Jane Catlett, Grace Tuter, Adeline Kallemyn, and Patricia Leembruggen, all applied for and were denied maintenance positions in District Eight of the Missouri Highway and Transportation Commission. These women are also members of the plaintiff class, which consists of all females who applied or might have applied for maintenance positions in District Eight between January 1, 1975, and May 31, 1980. District Eight had never employed a female maintenance worker as of July 1975, when Catlett filed the state administrative complaint that evolved into this litigation, and the District during the time period defined by the class

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hired eighty-nine males and only eight females.

The individual plaintiffs and the class base their claims on two federal statutes, section 1983 (that is, 42 U.S.C. Sec. 1983) and Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e-2. To prevail under section 1983 the individuals and the class had to prove Missouri intentionally treated them less favorably because of their sex. See Foster v. Wyrick, 823 F.2d 218, 221 (8th Cir.1987). Under Title VII these claimants had the option of proving disparate treatment, that is, Missouri engaged in intentional discrimination as under section 1983, or disparate impact, that is, Missouri employed facially neutral hiring practices that in fact operated to limit job opportunities for women. See generally International Bhd. 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) (distinguishing disparate treatment and disparate impact theories of discrimination). The individual and class section 1983 claims were tried to a jury while the individual and class Title VII claims simultaneously were tried to the court. See Harmon v. May Broadcasting Co., 583 F.2d 410, 410 (8th Cir.1978) (per curiam).

The jury on the individual section 1983 claims returned a verdict in favor of Missouri, thus finding no intentional discrimination. The district court, however, reached a contrary conclusion when under Title VII it held for the individual plaintiffs on a disparate treatment theory. Catlett v. Missouri Highway & Transp. Comm'n (Catlett I), 589 F.Supp. 929, 947-49 (W.D.Mo.1983). The jury and the court both found intentional discrimination by Missouri against the class, and the court also found Missouri's employment practices had a disparate impact on the class. Id. at 944-47. This disparate impact conclusion pinpointed Missouri's word-of-mouth recruiting system as the neutral factor artificially limiting opportunities for women. Id. at 947.

At the remedial stage the district court awarded back pay to the individual plaintiffs and the class and retained jurisdiction over the suit until January 1, 1990, to monitor the implementation of a broad order of affirmative relief. Catlett v. Missouri State Highway Comm'n (Catlett II), 627 F.Supp. 1015 (W.D.Mo.1985); see also Catlett v. Missouri Highway & Transp. Comm'n (Catlett III), 643 F.Supp. 321 (W.D.Mo.1986) (setting actual back pay amounts). The court in this order granted a classwide hiring preference, thus giving priority for future job openings to all class members still desiring employment as maintenance workers, and set a goal of thirty-seven to forty-eight percent female for the maintenance applicant pool and for District Eight maintenance hires during the pendency of the court order. Catlett II, 627 F.Supp. at 1020, 1021. The court also called for the designation "maintenanceman" to be replaced with a sex-neutral job title and detailed new recruiting, application, and interview procedures to be followed by Missouri. Id. at 1020-22. Finally, the district court in a later order awarded the plaintiffs attorney fees of $505,907.62 based on a fifty-percent enhancement of the hours-times-rate "lodestar" figure.

I.

Missouri argues the district court was bound by the jury verdicts in the state's favor on the individual section 1983 claims and thus lacked the power to make contrary factual findings and enter judgments against Missouri on the individual Title VII claims. The individual plaintiffs acknowledge the principle of law on which Missouri relies, see Garza v. City of Omaha, 814 F.2d 553, 557 (8th Cir.1987); Goodwin v. Circuit Court, 729 F.2d 541, 549 n. 11 (8th Cir.), cert. denied, 469 U.S. 828, 105 S.Ct. 1194, 84 L.Ed.2d 339 (1984), but they offer three reasons why it should not apply to bar their individual Title VII recoveries here.

First, the individual plaintiffs point to Missouri's failure to rely on estoppel by jury verdict when submitting to the court proposed conclusions of law on the Title VII claims. Missouri did raise the estoppel issue at the remedial stage, Catlett II, 627

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F.Supp. at 1017, and this satisfies our concern that a district court be given the opportunity to consider and correct perceived errors, see Edwards v. Hurtel, 724 F.2d 689, 690 (8th Cir.1984) (per curiam). The Goodwin case, in which this court declined to apply estoppel, is distinguishable because of its "peculiar circumstances": Estoppel in that case had not been raised either to the district court or on appeal, and the party against whom estoppel was asserted had not been a party to the claim decided by the jury. See 729 F.2d at 549 n. 11. We believe we may properly reach the estoppel issue here.

Second, the individual plaintiffs argue estoppel does not apply because the district court's Title VII decisions were based on findings beyond those made by the jury. Specifically, the individual plaintiffs point out that while the jury under section 1983 considered only the existence of intentional discrimination, the court under Title VII also considered the existence of unintentional discrimination resulting from the use of a facially neutral employment practice. As we understand the district court's opinion, however, the court drew a specific legal conclusion of disparate impact only with regard to Missouri's reliance on word-of-mouth recruiting, finding that the existing predominantly male work force communicated information on job openings primarily to other males. See Catlett I, 589 F.Supp. at 946-47. Since the individual plaintiffs all applied for maintenance positions, they were not victims of this discriminatory practice, and they cannot benefit from the court's disparate impact analysis.

Third, the individual plaintiffs would avoid estoppel by voiding the jury verdicts: They argue the district court committed error by failing to grant them judgments notwithstanding the verdict on their individual claims. The judgments notwithstanding the verdict, however, were properly denied if, resolving all factual conflicts in favor of Missouri and giving Missouri the benefit of all favorable inferences, the evidence was sufficient to support the jury's conclusions. See Gilkerson v. Toastmaster, Inc., 770 F.2d 133, 136 (8th Cir.1985). We assess the sufficiency of the evidence on the ultimate question of whether Missouri intentionally discriminated against the individual plaintiffs. See id. at 135...

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