843 F.2d 1262 (10th Cir. 1988), 85-2083, Pitre v. Western Elec. Co., Inc.

Docket Nº:85-2083, 85-2084.
Citation:843 F.2d 1262
Party Name:Janice D. PITRE, individually and on behalf of all fellow employees and past employees of the defendant who are similarly situated, Plaintiff-Appellee Cross-Appellant, v. WESTERN ELECTRIC COMPANY, INC., Defendant-Appellant Cross-Appellee.
Case Date:March 29, 1988
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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843 F.2d 1262 (10th Cir. 1988)

Janice D. PITRE, individually and on behalf of all fellow

employees and past employees of the defendant who

are similarly situated,

Plaintiff-Appellee Cross-Appellant,


WESTERN ELECTRIC COMPANY, INC., Defendant-Appellant Cross-Appellee.

Nos. 85-2083, 85-2084.

United States Court of Appeals, Tenth Circuit

March 29, 1988

Rehearing Denied Sept. 23, 1988.

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[Copyrighted Material Omitted]

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Stanley E. Craven (Jack L. Whitacre with him on the brief), of Spencer, Fane, Britt & Browne, Kansas City, Mo., for defendant-appellant cross-appellee Western Elec. Co., Inc.

Steven L. Hobson, Liberty, Mo. (Ronald J. Stites, Kansas City, Mo. with him on the brief), for plaintiff-appellee cross-appellant Janice D. Pitre.

Before SEYMOUR, McWILLIAMS, and BARRETT, Circuit Judges.

SEYMOUR, Circuit Judge.

Janice Pitre brought this action individually and on behalf of a class of women employees against Western Electric Company, alleging gender-based discrimination in violation of 42 U.S.C. Secs. 2000e et seq. (1982) (Title VII). The district court resolved the liability issues in favor of Pitre and the class, and formulated a remedy. Western Electric appeals the determination that it violated Title VII by discriminating against Pitre and the class. Both parties appeal the remedy. We affirm the district court's liability findings, and reverse and remand for reconsideration of the remedy in light of this opinion.

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Western Electric's service and installation plants in Merriam and Lenexa, Kansas, employed nonsalaried, salaried, and management personnel during the relevant time period. The salaried employees were divided into five levels, M-10, M-20, M-30, M-40, and M-50. These jobs and the lowest management position, section chief, are at issue here. Typically, employees began at the lower levels and progressively advanced. Section chiefs, however, came not only from the M-50 salaried level but also from nonsalaried and occasionally lower salaried levels. In 1975, Pitre was demoted from her job as a section chief to an M-50 classification.

After exhausting administrative remedies, Pitre brought this action alleging that her demotion violated Title VII. In 1977, she amended her complaint to allege classwide discrimination against all female employees in the five salary grades and the section chief position in assignment, promotion, downgrading, and layoff. The district court certified the class and determined that the relevant period had begun December 11, 1974, 180 days before Pitre initially filed a complaint with the Equal Employment Opportunity Commission. Pitre's theory of liability was essentially that Western Electric's all-male management personnel held discriminatory attitudes toward women that resulted in a clustering of women in the lower salary grades. The company responded that the distribution of men and women resulted from historical practice prior to the relevant period and/or nondiscriminatory company policies.

After a full trial, the district court held in favor of the class and Pitre individually. Rec., vol. I, doc. # 126 (District Court Memorandum and Order on Liability) (hereinafter Pitre I). Although the court found that economic conditions necessitated demotions during the mid-1970s, it also found that Western Electric's demotion and layoff policy discriminated against women. This discrimination continued into the late 1970s when the company began to promote employees.

The parties agreed to a back pay award for Pitre, but they were unable to resolve the class relief or prejudgment interest issues. Consequently, the court imposed a formula for determining interest and a class back pay and front pay award. Rec., vol. I, doc. # 134 (District Court Memorandum and Order on Remedy) (hereinafter Pitre II). The court also enjoined Western Electric from continuing to discriminate. The company appeals the court's liability findings. Both parties appeal the class remedy.


Western Electric begins by advancing three arguments why the district court's decision can and should be reversed as a matter of law. First, the company claims that plenary review is appropriate because the district court's conclusions were not based on credibility determinations. Second, it asserts that because much of the evidence offered by Pitre involved discrimination prior to the period at issue in the case, the court's findings on the ultimate issue are erroneous as a matter of law regardless of the standard of review. Third, the company argues that because the class did not show significant statistical disparity between male and female demotion and promotion practice, the class claim must fail as a matter of law. We address these contentions separately.

  1. The Standard of Review

    The analytical framework for trying a Title VII case is now well established. First, the plaintiff must present a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). This burden is satisfied by presenting a scenario that on its face suggests the defendant more likely than not discriminated against the plaintiff. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981). "The burden of establishing a prima facie case of disparate treatment is not onerous." Id. If this initial burden is fulfilled, the defendant must set forth nondiscriminatory

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    justifications for its allegedly discriminatory practices. Id. at 254-55, 101 S.Ct. at 1094-95. The burden of production placed on the defendant at this stage can be fulfilled by presenting nondiscriminatory reasons for its actions that are specific enough to provide the plaintiff with "a full and fair opportunity to demonstrate pretext." Id. at 256, 101 S.Ct. at 1095. "General assertions of good faith or of hiring only the best applicants ... are insufficient." Payne v. Travenol Laboratories, Inc., 673 F.2d 798, 817 (5th Cir.), cert. denied, 459 U.S. 1038, 103 S.Ct. 452, 74 L.Ed.2d 605 (1982). The plaintiff then bears the ultimate burden of proving a statutory violation. This burden can be satisfied either "directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Burdine, 450 U.S. at 256, 101 S.Ct. at 1095. Once the district court makes the ultimate determination as to whether the employer violated the statute, its legal conclusions in regard to the first two stages of evaluating the evidence become irrelevant on appeal. United States Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 1481-82, 75 L.Ed.2d 403 (1983).

    Neither party questions the district court's application of these legal standards to the facts of this case. Rather, Western Electric contends that in applying this law to the facts, the district court was not required to make credibility determinations. It maintains that the application of legal standards to undisputed documentary and statistical evidence results in mixed questions of fact and law. Such questions, according to Western Electric, are entitled to significantly less deference than purely factual determinations. Western Electric's argument, however, is unequivocally undermined by the language of the cases it cites.

    The issue in a disparate treatment case such as this one is whether the employer intended to discriminate against the employee. Aikens, 460 U.S. at 715, 103 S.Ct. at 1481-82. "In short, the district court must decide which party's explanation of the employer's motivation it believes." Id. at 716, 103 S.Ct. at 1482. This decision is "both sensitive and difficult," id., and is therefore treated as a "pure question of fact, subject to Rule 52(a)'s clearly erroneous-standard. It is not a question of law and not a mixed question of law and fact." Pullman-Standard v. Swint, 456 U.S. 273, 288, 102 S.Ct. 1781, 1789-90, 72 L.Ed.2d 66 (1982). "Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous.... This is so even when the district court's findings do not rest on credibility determinations, but are based instead on physical or documentary evidence or inferences from other facts." Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985). 1 The Court thus concluded that "[i]f the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently." Id. at 573-74, 105 S.Ct. at 1511.

  2. Evidence of Discrimination Prior to the Period in Question

    Western Electric argues that the district court must have relied heavily upon evidence of discrimination that occurred prior to the relevant period, because only from this evidence could discrimination have been proven. It argues that under United Air Lines, Inc. v. Evans, 431 U.S. 553, 97

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    S.Ct. 1885, 52 L.Ed.2d 571 (1977), such evidence can serve only as "background" information, and that the district court's nearly exclusive reliance on such evidence to find a pattern and practice of discrimination within the relevant period requires us to reverse.

    Evans has recently been explained in Bazemore v. Friday, 478 U.S. 385, 106 S.Ct. 3000, 3007 n. 6, 92 L.Ed.2d 315 (1986), where the Court noted that there simply had been no evidence of a current Title VII violation in Evans. The Court made clear in Bazemore that evidence of pre-Act discrimination is "quite probative" to establish that current...

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