Ortega v. Safeway Stores, Inc.

• Decision Date: 30 August 1991
• Docket Number: 90-1076,Nos. 90-1050,s. 90-1050
• Citation: 943 F.2d 1230
• Parties: 56 Fair Empl.Prac.Cas. (BNA) 1282, 57 Empl. Prac. Dec. P 40,957, 60 USLW 2251 Martha ORTEGA; Dolores Rojo; Cora Charboneau; Mary H. Martinez; Ray Ann Lobato; Josphine I. Duran; Bertha I. Medina; Yvonne Gutierrez, Plaintiffs-Appellees, Cross-Appellants, v. SAFEWAY STORES, INC., Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1230

943 F.2d 1230

56 Fair Empl.Prac.Cas. (BNA) 1282,

57 Empl. Prac. Dec. P 40,957, 60 USLW 2251

Martha ORTEGA; Dolores Rojo; Cora Charboneau; Mary H Martinez; Ray Ann Lobato; Josphine I. Duran Bertha I. Medina; Yvonne Gutierrez Plaintiffs-Appellees, Cross-Appellants, v. SAFEWAY STORES, INC., Defendant-Appellant, Cross-Appellee.

Nos. 90-1050, 90-1076.

United States Court of Appeals Tenth Circuit.

Aug. 30, 1991.

Lynn D. Feiger (Madeline A. Collison and Gilbert M. Roman, with her on the briefs), Feiger & Hyman (now Feiger, Collison & Killmer), Denver, Colo., for plaintiffs-appellees, cross-appellants.

Gregory A. Eurich (Sandra R. Goldman with him on the briefs), Holland & Hart, Denver, Colo., for defendant-appellant, cross-appellee.

Before MOORE, SETH and STEPHEN H. ANDERSON, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

This Title VII case arose out of Safeway, Inc.'s closure of its "pre-pakt" plant in Denver, Colorado. Plaintiffs/cross-appellants, long-term female employees at the pre-pakt plant, alleged that they were discriminated against on the basis of sex when they were laid off and not rehired when the plant closed in June, 1984. The case was bifurcated and the issue of liability was tried to the United States District Court for the District of Colorado. The court found that Safeway had not engaged in disparate treatment of plaintiffs but did conclude that Safeway had a policy which had a disparate impact based on sex. Pursuant to a subsequent court order, Safeway reinstated plaintiffs commencing August 7, 1988. After awarding attorneys' fees and costs against Safeway, the court entered judgment for plaintiffs in the total amount of $612,569.10, plus post-judgment interest. Additionally, the court ordered Safeway to pay $17,633.25 to six of the plaintiffs' pension plans. Safeway appeals the finding of disparate impact and plaintiffs cross-appeal the finding of no disparate treatment. We affirm the finding of no disparate treatment and reverse the finding of disparate impact.

BACKGROUND

Plaintiffs Dolores Rojo, Martha Ortega, Josphine Duran, Ray Ann Lobato, Bertha Medina, Mary Martinez, Cora Charboneau and Yvonne Gutierrez worked as packers in Safeway's Pre-Pakt Plant until its closure on June 22, 1984. As packers, they sorted and packaged vegetables along an assembly line for sale in Safeway's retail stores. Their years of service to Safeway ranged from 12 to 20 years.

Plaintiffs were eight of fifteen female packers employed at the plant. The eighteen males employed at the plant all worked as warehousepersons, keeping the assembly lines where plaintiffs worked supplied with goods. All thirty-three pre-pakt plant employees were union members and were covered by a collective bargaining agreement. While historically, the jobs of packer and warehouseperson were sex-segregated, in the 1970's Safeway encouraged males to work as packers and females to work as warehousepersons. Few in fact did, although one of the plaintiffs, Cora Charboneau, had been a warehouseperson for three years until an injury forced her to resume packing. Generally speaking, the job of warehouseperson required more strenuous physical work than the job of packer.

Safeway decided in 1984 to close the pre-pakt plant because outside packing houses could provide the same service at a lower cost. The closure of the plant resulted in the abolition of all but three positions. Those positions were in the banana-ripening operation. Pursuant to the relevant union contract, the banana-ripening jobs went to the three most senior of the qualified warehousepersons in the pre-pakt plant. ¹

This case involves Safeway's policies and practices for placing employees who have been laid off. Safeway has a policy that laid-off employees retain their company-wide seniority only if they are rehired within 30 days of their termination. Accordingly, employees who were placed in new positions within 30 days of the pre-pakt plant closure retained their company-wide seniority, whereas those who were not lost that seniority. Vacation time and sick leave are computed on the basis of company-wide seniority. It was therefore important to those employees wishing to be rehired that they be rehired within the 30 day period.

Safeway had no established written policy for rehiring employees who lost their jobs when a plant closed. There was evidence, however, that Safeway's "formal" verbal policy was to assist laid-off employees through the Central Employment Office, placing them in order of seniority and granting to them priority over new hires for jobs for which they were qualified. Such employees were to be placed in whatever jobs were available in any of Safeway's three divisions (the distribution center, the supply plants and the retail stores). ² There was also evidence that, in this case, there was an informal "word-of-mouth" policy pursuant to which Norm Scherzer, the distribution center manager, helped find new jobs for pre-pakt employees who approached him. We consider the evidence relating to each policy in turn.

With respect to the formal policy involving the Central Employment Office, job application forms were distributed to plant employees prior to its closure. All of the plaintiffs filled out job applications and were interviewed by Ray Simmons, a representative from the Central Employment Office. Plaintiff Ortega's application indicated she could not work nights or weekends, that she sought full-time work and that she could not lift and stack more than 30 pounds. ³ Plaintiff Rojo's application indicated she sought full time work and could not do heavy lifting. ⁴ Plaintiff Charboneau indicated on her application that she sought any full-time position. Plaintiff Martinez stated in her application that she wanted a full-time job as a meat wrapper or in one of the retail stores, that she preferred the day shift and that she could not do heavy lifting. ⁵ Plaintiff Lobato indicated she sought a full-time job as a meat wrapper or in the deli or bakery department of a retail store. Plaintiff Duran said she wanted a full-time position as a meat wrapper, bakery clerk, deli clerk or warehouse sanitation person. ⁶ Plaintiff Medina expressed an interest in any full-time position. ⁷ Plaintiff Gutierrez indicated she would prefer a meat wrapper position in a retail store, but that she would take any full-time or part-time position. ⁸

Based upon the application form filled out by each plaintiff, as well as the interview, Simmons was supposed to place plaintiffs in currently available positions or positions as they became available. ⁹ Under normal Safeway procedures, each application was to be kept active until the applicant was placed. There was testimony that, as part of these procedures, the Central Employment Office interviewer (Simmons) was to mark the interview applications with the phrase "hold for rehire." This designation indicated that the application should be sent to the employment relations manager so the particular individual could be rehired. If the employment relations manager cleared the applicant for rehire, he would complete a new form called a "rehire approval form."

There was some testimony that failure to follow these procedures meant that the application would be placed in an "inactive" file. R. Vol. III at 415-16. However, Simmons also testified that the rehire approval "was part of the process" but was not essential to placement in a job. R. Vol. IV at 488. Further, Simmons testified that the pre-pakt employee applications "were placed into an active file, and they were given consideration as ... openings became available...." Id. at 481.

Plaintiffs allege that Safeway followed all of these procedures for male pre-pakt employees, but failed to follow them for female pre-pakt employees. The applications of several of the male pre-pakt employees were indeed marked "hold for rehire." ¹⁰ None of the plaintiffs' applications were so marked.

Plaintiffs also claim that Simmons failed to explain to them what retail jobs were available, despite their expressed interest in such jobs, and the fact that at least some of the part-time retail jobs would eventually become full-time with higher pay. ¹¹ Three of the four male pre-pakt employees who sought new jobs through the Central Employment Office were placed in such jobs. None of the female pre-pakt employees except Charboneau were so placed.

With respect to the informal word-of-mouth policy for placing pre-pakt employees, there was testimony that rumors of the closure of the pre-pakt plant circulated for some time prior to its actual closure. Both before and after the closure, employees approached Scherzer concerning job opportunities in the distribution center. No one was specifically told to see Scherzer. Those who did so sought out Scherzer for placement assistance on their own initiative. ¹² 2] At least five of the male employees approached Scherzer about new jobs; plaintiff Charboneau was the only female who approached Scherzer. Scherzer helped the five male employees find new jobs in the distribution center, and he helped one female, Alberta Silva (the only person whom Scherzer approached directly), find a janitorial job in the center. ¹³ He helped place plaintiff Charboneau in an order selector position in the distribution center's variety warehouse, which she held for only a short time because she was unable to meet the production demands of the job. She then held two successive temporary janitorial positions, followed by a three month lay-off. She was then placed in a permanent janitorial position, which she held as of the time of trial.

As it turned out, the only available entry level jobs ¹⁴ in the distribution center (order selector positions, janitorial positions, parts clerk positions, and pallet repair jobs) required repeated lifting of more than 40 pounds, and the only available entry level jobs in Safeway's retail stores (i.e. bakery clerk, deli clerk,...