E.E.O.C. v. Atlas Paper Box Co.

Decision Date04 April 1989
Docket NumberNo. 87-5421,87-5421
Citation868 F.2d 1487
Parties56 Fair Empl.Prac.Cas. 1692, 49 Empl. Prac. Dec. P 38,715 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. ATLAS PAPER BOX COMPANY, Defendant-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

Lawrence J. Kamenetzky, Calvin Williams, E.E.O.C., Memphis, Tenn., Jeffrey C. Bannon (argued), EEOC, Washington, D.C., for plaintiff-appellant.

Frank P. Pinchak (argued), Humphreys, Hutcheson and Moseley, Chattanooga, Tenn., for defendant-appellee.

Before WELLFORD and NORRIS, Circuit Judges, and COOK, District Judge. *

WELLFORD, Circuit Judge.

Plaintiff EEOC's claim in this Title VII case 1 was based on both disparate treatment and disparate impact, the former requiring an intentional racial discrimination finding. The district court found no basis for concluding that Atlas had intentionally discriminated against potential black office and clerical employee applicants, 680 F.Supp. 1184. The focus in this case is upon the use of the Wonderlic Personnel Test in the screening of such job applicants, and the emphasis on appeal is whether the district court committed error in rejecting EEOC's contentions regarding the disparate impact theory of liability in light of the evidence.

There are several significant factors that bear upon plaintiff's contention in the challenge to the Atlas employment practices in question. The first is that the district court found "some evidence that the test was administered in a biased fashion." 2 The second factor is the district court's finding that "Atlas has never had a black person working in its office." Third, Atlas selected a cut-off score of 25, contrary to Wonderlic's recommendations, for the positions in question even though a score of 21 for typists, 19 for file clerks, and 18 for telephone operators was suggested. As a consequence of choosing this high initial cut-off point, almost three-fourths of white applicants and well over 90 percent of black applicants failed to meet this criterion. An expert who testified for Atlas stated that this test methodology favored the white candidate by at least a three to one ratio.

Finally, all of the experts who testified in the case agreed that statistical evidence, if evaluated from 1969, when the Wonderlic test was first utilized, until 1984, the date of hearing, would reflect a significant disparate impact. Atlas contended that the proper period for analysis was 1978 through 1984, and produced expert witnesses who opined that the data for this period lacked statistical significance. 3

The district court concluded that whether or not these significant factors were taken into account, plaintiff had failed to produce adequate evidence that a pattern or practice of racial discrimination was shown. It is clear, however, that at least one black applicant did "pass" the test and was not hired. Furthermore, the district court noted that on July 20, 1971, a black applicant, Kendrick, scored a 22 and was not hired while a white employee, Hutson, "scored only 21 [on an August 16, 1971 test and] ... was actually hired." A temporary white clerk who also scored 22 was hired in October. In 1973, white employee Dickerson took the test "two weeks after she was hired." Two whites were hired in 1974 who had scores of 17 and 21, and a "black applicant was not tested." In 1975, three of the six whites hired scored less than 25 (two scored 20 or less). In 1976, the same thing happened; two of eight whites hired scored 20 or less on the Wonderlic test. In 1977, black applicant Davis scored a 23 but was not hired. Later, a white applicant who scored 23 was hired. (In 1978, a black applicant who scored 20 was not hired and a white applicant who scored 19 was hired). Two whites were hired in 1980 with scores less than 25, and the district court noted that "it is unfortunate that Atlas did not seize upon the opportunity [in that same year] to hire this highly intelligent black applicant," Beverly Wilson, who applied during July and scored 25, equal to another white who was hired. Two other white applicants who scored less than 25 were hired in 1981 and in 1982 respectively. Three of four black applicants rejected in 1983 were not even tested. All this yearly information was found as a fact by the district court, who summarized by finding that 29 whites were hired who scored less than 25 on the Wonderlic, four with scores less than 20, while seven blacks scored better than these four white employees but were not hired.

We believe that these factual findings and other proof presented were sufficient to show that EEOC made out a prima facie case of disparate impact as indicated by the district court, particularly in view of the fact that not a single black person was hired to work in the office. In considering further whether Atlas rebutted the case made by plaintiff, the district court concluded only that in a clerical workforce as small as the one at Atlas, "any attempt to validate the Wonderlic test ... would have been statistically meaningless."

We disagree with the conclusion reached by the district court that the relevant statistical data and other related information, noted by the court itself, was statistically meaningless whether or not the test in question was attempted to be validated by a "formal study." It is evident that on a number of occasions over many years Atlas did not even test a number of black applicants and, moreover, hired many white applicants who were not tested at the time of hiring or who scored less than the requisite minimum score allegedly required. Under the circumstances, we are left with a definite and firm conviction that the conclusion reached upon a weighing of the relevant factors was in error. See Anderson v City of Bessemer City, 470 U.S. 564, 572, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985); Yung v. Raymark Industries, Inc., 789 F.2d 397, 400 (6th Cir.1986).

There is no fixed and firm rule regarding criterion for analyzing studies related to the cognitive ability test relied upon by Atlas. They must generally be evaluated by examination of "important elements of work behavior that comprise or are relevant to the job." Albemarle Paper Co. v. Moody, 422 U.S. 405, 431, 95 S.Ct. 2362, 2378, 45 L.Ed.2d 280 (1975). It is sufficient here to say that no study was made at this particular Atlas office by any of the experts Atlas presented. Thus, there was little basis for the district court's conclusion that the purported screening test device was "more reliable than any other single predictor of job success." In the instant case, we conclude that the statistical data for the entire 1969-84 period was relevant and material, and that this statistical information and comparison between hiring practices with regard to white and black applications cannot properly have been deemed "meaningless" due to the size of the Atlas office workforce. We find, moreover, the evidence based on the entire fifteen-year period rather than the six-year period used by Atlas to be relevant and meaningful in this regard.

Looking at the statistical data and the testing practices adopted by Atlas, as well as the other factors previously discussed, including the failure to test and the disregard of relatively high test scores achieved by black applicants, indicates to us some evidence of bias in the administration of the tests. We must therefore reverse and remand the case to the district court. There was, then, statistical and other proof of racial disparate impact in the employment practices utilized by Atlas. There was evidence which would indicate that the testing and use of a purported cut-off testing score of 25 may have been a mere pretext to exclude blacks from employment in the office.

We make no judgment on this record as to whether, in theory, the proper use of the Wonderlic test may not be demonstrated to be job related in the case of clerical hires. If a defendant uses such a test, it must show that the "procedure used measures important skills, abilities, and knowledge that are necessary for the successful performance of the job." Black Law Enforcement Officers Ass'n v. City of Akron, 824 F.2d 475, 480 (6th Cir.1987). In short, the employer must show that the testing in question is "related to job performance." Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971). In Griggs, use of the Wonderlic test in general plant and maintenance jobs was in question, a different situation from application of the test to clerical employees. Similar Wonderlic testing of plant employees generally, not office employees, was also considered by the Court in Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975).

In summary, we are convinced that the following circumstances of this case compel a reversal: (1) not a single black office worker was hired over a span of fifteen years when 121 white office workers were hired; (2) 29 of the 121 whites hired did not meet the purported required minimum score of 25 on the Wonderlic test; (3) white workers in some instances received favorable adjustments on their test scores and blacks did not; (4) recommendations as to minimum acceptable scores for typing, filing, and telephone answering skills were not used.

We note in respect to a remand in this case that the expert witness offered by defendant, John Hunter, failed to visit and inspect the Atlas office and never studied the nature and content of the Atlas clerical and office jobs involved. The validity of the generalization theory utilized by Atlas with respect to this expert testimony under these circumstances is not appropriate. Linkage or similarity of jobs in dispute in this case must be shown by such on site investigation to justify application of such a theory.

A test may be used in jobs other than those for which it has been professionally validated only...

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    ..."important skills, abilities and knowledges that are necessary for the successful performance of the job." E.E.O.C. v. Atlas Paper Box Co., 868 F.2d 1487, 1490 (6th Cir.), cert. denied, 493 U.S. 814, 110 S.Ct. 63, 107 L.Ed.2d 30 (1989). Under the stricter standard imposed by the Civil Right......
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