918 F.2d 1233 (5th Cir. 1990), 89-4438, Hill v. Mississippi State Employment Service

Docket Nº:89-4438.
Citation:918 F.2d 1233
Party Name:Hazel HILL, Plaintiff-Appellant, v. MISSISSIPPI STATE EMPLOYMENT SERVICE, et al., Defendants-Appellees.
Case Date:December 13, 1990
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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918 F.2d 1233 (5th Cir. 1990)

Hazel HILL, Plaintiff-Appellant,



No. 89-4438.

United States Court of Appeals, Fifth Circuit

December 13, 1990

Rehearing and Rehearing En Banc Denied April 15, 1991.

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Sam H. Buchanan, Jr., Sam H. Buchanan, Jr., Southeast Miss. Legal Services, Hattiesburg, Miss., for plaintiff-appellant.

Richard D. Mitchell, Jackson, Miss., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Mississippi.

Before GEE, RUBIN, and DAVIS, Circuit Judges.


Applying both discrimination models--disparate treatment and disparate impact--we affirm that a black female seeking job referrals from a large but undermanned state employment agency failed to prove a case of discrimination under Title VII. Specific problems with the referral system, established in the record, rebutted any presumption of discrimination, and her statistical analysis critically neglected qualifications and job preferences.


Hazel Hill, a black female, sued the Mississippi State Employment Service (MSES) on her own behalf, alleging that MSES intentionally or recklessly discriminated in its referrals on the basis of race. Her suit stemmed from her dissatisfaction with the treatment which she received when seeking job referrals to prospective positions as a cashier, waitress, or cocktail waitress at MSES's Hattiesburg Office from April 1982 to April 1983, and followed the right to sue letter issued to her by the Equal Employment Opportunity Commission (EEOC) upon the basis of its finding no reasonable cause to pursue the complaint which she had filed against both MSES and the Mississippi Employment Security Commission (MESC). 1

MSES's job referral procedures lie at the heart of this case, and we therefore outline them. In almost all respects, MSES complies with the operational guidelines established in the Employment Service Manual (ESMII). 2 Operating through numerous local offices throughout Mississippi, MSES refers qualified applicants to area job openings listed with MSES by area employers, but does not guarantee employment. The listing employers indicate the number of applicants sought and the qualifications required, and MSES's clerks process the listings and notify qualified applicants.

To match applicants to jobs, MSES assigns applicants and job orders a nine-digit Dictionary of Occupational Titles Code (Dot

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Code). 3 The code's first three digits identify a particular occupational group, the middle three the worker function ratings, and the final three the alphabetical order of the titles within the six digit code.

Referrals occur in two ways: In one, upon an applicant's request MSES clerks search job orders for vacancies that match the applicant's DOT code and, locating an open order with a corresponding code, refer the applicant if the applicant meets the listed qualifications; In the other, to fill orders, pursuant to ESMII Sec. 1470, MSES clerks search the active files of applicants with a matching occupational title and, if that yields an insufficient number of applicants, search inactive files with matching codes and active files of related occupational qualifications. Ultimately, to match job orders with the most qualified applicant as per ESMII guidelines, MSES clerks primarily rely on the DOT Codes, the type of job, and the applicant's experience and job preference, but as well draw from personal knowledge acquired through prior referral matching, such knowledge including subjective judgments (e.g.: an applicant's attitude, appearance, personality, employment history).

An EEOC officer regularly reviews MSES's referral and other services, assessing compliance with federal and state civil rights laws. Documentation drawn from all codes and applicants, but not from actual interviews, furnishes all supporting information for these reviews. Noting that the reviews to the date of trial highlighted problem areas, the conducting officer rated MSES satisfactory overall. 4

Coded for cashier-checker positions (211-492-014) and for waitress positions (311-477-030), Hill alleges discriminatory referral practices and retaliatory practices. At trial, she pointed to several occasions when MSES failed to refer her to open job orders for which she was coded and qualified (qualified, that is, at least to an extent equal to any referred white applicant). 5

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MSES, for its part, pointed to a record of MSES referrals received by Hill and to Hill's work history, showing ten positions held by Hill prior to the period in question, with the length of each generally fluctuating between a few weeks and a few months. 6 All MSES employees with whom Hill had contact specifically denied racial considerations in referral selections, attributing referral problems, such as those reflected in Hill's evidence, to employee error.

Respecting the total number of MSES referrals during the relevant period, Hill and MSES stipulated to white/non-white ratios of applicants in the active file, overall an average of 58.2% white, 41.7% nonwhite. 7 As well, both stipulated: MSES referred 473 applicants to orders classified in the 311 DOT Code (255 or 53.9% white and 218 or 46% black) from April 1982 to February 1983, and of the 473 referrals, 233 were referred out of their primary DOT Code (120 or 51.5% white and 113 or 48.4% black.) Additionally, 41 of the 95 job orders processed had more than one referral, 31 of the 41 orders having both black and white applicants, and of the 373 applicants

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referred to these 31 job orders, 184 were white (49.3%) and 189 black (50.6%).

Without accounting for employer qualifications, which may have rendered some applicants unacceptable for referral, MSES filled relevant job orders from April 1982 to February 1983 as follows: processing six cocktail waitress orders, shorting four, and referring in total 21 whites and no blacks; processing 39 waitress orders, shorting 14 (11 of which referred no blacks), and referring in total 113 whites and 46 blacks (but referring no blacks to 24 of the 39 orders); and processing 146 cashier job orders and referring in total 998 whites and 457 blacks (but in 57 of the 146, referring only white applicants). 8

Himmelstein, Hill's statistics expert, analyzed the actual referral pool derived from the stipulations above and the unreferred pool as manifested in data generated by a computer program developed to reflect referrals in the 211 and 311 codes on the basis of race. MSES controlled and supplied all information used to develop the program and Hill's computer expert ran the program on MSES's computers. 9 The program searched MSES's relevant files to show an applicant's DOT Code on a given date, and the data generated reflects black and white unreferred applicants with either a 211 or 311 code during the relevant time period. Looking for a pattern of referral based on race and not attributable to chance, Himmelstein factored the data, generated by running the program with the three digit numbers of the occupational codes, into a formula to determine the number of standard deviations. For cocktail waitress, waitress, and cashier positions, respectively, he calculated standard deviations 4.83, 8.78, and 3.41, all of which are considered statistically significant. Applying the formula to data generated from the entire nine-digit code, Himmelstein calculated a standard deviation of 2.58 for the 211 Job Orders and 1.92 for the 311 Job Orders. Few applicants or referrals matched the nine-digit code.

MSES's statistical expert, Piette, considered the unreferred pool generated by the program inaccurate, whether generated from the nine or the three digit codes. Piette identified several additional problems in the program: inability to distinguish part time from full time jobs and an applicant's preference; inability to assign value to important factors such as education or experience; and inability to consider difficulties or inabilities in contacting particular applicants to apprise them of referrals. 10 Piette, however, admitted that changes in the program would only reduce the standard deviations calculated by Himmelstein.

Examining the racial composition of the referred applicant pool, Piette concluded MSES's referrals and referral procedures to be neutral. Based upon the print-outs generated by Hill's program, Piette found 65.9% of all applicants (referred or unreferred) to be non-black compared to 34.1% black in the 211 code, and 50.1% non-black compared to 49.9 black in the 311 code. Only 13.5% of the total 211 coded applicants (69.2% non-black, 30.8% black) and 31.5% of the total 311 coded applicants (54.5% white, 45.5% black) received MSES referrals. Analyzed by racial composition, referrals nearly equalled the racial composition of the applicant pool. The proportions of out-of-code referrals by race among total referrals for the 211 Code

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were 70.4% black and 64.3% white; for the 311 Code, 78.9% black and 73.9% white. For out-of-code referrals to 211 positions, 32.8% were black and 67.2% white; for 311, 47.1% black and 52.9% white.

Racial Discrimination Claim

To locate our review today in the proper legal context, we briefly condense the Supreme Court's methodology for analyzing Title VII actions. The Court probes Title VII actions under two well-established models for ferreting out unlawful discrimination: disparate treatment and disparate impact analysis. The first concentrates on discriminatory motive, the second on discriminatory effect. On the issue of discrimination, in either case, the plaintiff bears the ultimate burden of persuasion; but the onus of producing sufficient evidence for us to assess...

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