Abbott v. Federal Forge, Inc.

• Citation: 912 F.2d 867
• Decision Date: 30 August 1990
• Docket Number: No. 89-1797,89-1797
• Parties: 53 Fair Empl.Prac.Cas. 1382, 54 Empl. Prac. Dec. P 40,189, 59 USLW 2211 Raymond ABBOTT, et al., Plaintiffs-Appellants, v. FEDERAL FORGE, INC., Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 867

912 F.2d 867

53 Fair Empl.Prac.Cas. 1382,

54 Empl. Prac. Dec. P 40,189, 59 USLW 2211

Raymond ABBOTT, et al., Plaintiffs-Appellants, v. FEDERAL FORGE, INC., Defendant-Appellee.

No. 89-1797.

United States Court of Appeals Sixth Circuit.

Argued May 10, 1990.

Decided Aug. 30, 1990.

John R. Canzano, Klimist, McKnight, Sale & McClow, Southfield, Mich., Laura J. Campbell, argued, Associate Gen. Counsel Intern. Union, UAW, Detroit, Mich., for plaintiffs-appellants.

Ronald R. Pentecost, argued, Steven J. Halbert, Fraser, Trebilcock, Davis & Foster, Lansing, Mich., for defendant-appellee.

Before WELLFORD and BOGGS, Circuit Judges, and DOWD, District Judge. ^*

BOGGS, Circuit Judge.

This is an age discrimination case involving questions of disparate treatment and disparate impact. When Federal Forge, Inc. learned that former employees of one of its closed plants were demanding seniority pension benefits if they were rehired, it imposed a moratorium on any hiring of those workers. Raymond Abbott and 35 other former employees sued, charging that the moratorium amounted to a refusal to hire on the basis of age, in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Sec. 621, et seq., because the workers affected by the moratorium included a higher percentage of workers 40 years of age or older than the workers actually hired. Federal Forge was under no legal or contractual obligation to rehire any of these workers. They now appeal the district court's grant of summary judgment for Federal Forge. Because appellants failed to establish a prima facie case of either disparate treatment or disparate impact and because Federal Forge established a legitimate and non-discriminatory reason for the moratorium, we affirm the district court's grant of summary judgment.

I

Federal Forge, Inc. (the company) is a Michigan corporation that formerly operated two forging plants in the Lansing area--the "Federal Division" plant and the "Lansing Division" plant. The appellants in this case worked in the Federal Division plant. Employees in both plants were represented by the United Auto Workers (UAW) Union, but were in separate bargaining units with separate collective bargaining agreements, pension plans, and seniority systems. In November 1982, the Federal Division plant closed permanently for economic reasons and the employees were laid off. ¹ The Lansing Division plant continued to operate.

The union interpreted the collective bargaining agreement between it and Federal Forge to require that employees laid off at the Federal Division plant be given preferential hiring status for openings at the Lansing Division plant for twelve months after the closing of the former plant. Federal Forge disagreed with that interpretation as a matter of law, but complied with it. It also continued to hire only former Federal Division employees at the Lansing plant even after the twelve-month period expired on November 19, 1983.

In September 1983, the UAW filed a grievance claiming that all former Federal Division employees hired at the Lansing Division plant were entitled (pursuant to the collective bargaining agreement) to retroactive seniority and pension benefits based on their Federal Division pension seniority (or "credited service"). Federal Forge initially understood this grievance to refer only to the employees hired at Lansing during the twelve-month preference period. Believing that none of the rehired Federal Division employees was entitled to credited service, Federal Forge rejected the grievance and denied past seniority to all of the already-hired employees. Under the terms of the collective bargaining agreement, the grievance would eventually be resolved through binding arbitration.

In March 1984, the company was made aware that the Union's position in its grievance was that all former Federal Division employees who were hired at the Lansing Division plant were entitled to past seniority pension benefits, whether or not they were hired during the preference period. The company immediately declared a moratorium on the hiring of former Federal Division employees at the Lansing plant until the arbitration on the union's grievance was resolved. At that point, Federal Forge had already rehired 45 of the former Federal Division employees; 107 former employees had not yet been rehired. The arbitrator decided the union's grievance in January 1985, ruling that only the former employees hired during the twelve-month preference period were entitled to past seniority pension benefits. Federal Forge requested a clarification of the arbitrator's decision, which it received in July 1985. In May 1985, after it was satisfied that former Federal Division employees hired at the Lansing Division plant after the twelve-month preference period would not be entitled to past seniority pension benefits, the company lifted the moratorium.

During the 14 months of the moratorium, Federal Forge hired 27 new employees at the Lansing Division plant. Twenty-three of those were "off-the-street," and four were former Federal Division employees. ² The off-the-street hires were generally unskilled workers with no prior hot forge experience. The parties do not dispute that, in terms of job experience alone, the former Federal Division employees were better qualified for employment as forge workers than the off-the-street hires.

According to statements of Nelson Henry, president of Federal Forge, and other officers of the company, the purpose of the moratorium was to save the company money should the arbitration result in a decision that Federal Division workers hired after the twelve-month preference period were entitled to past seniority pension benefits. Federal Forge felt it was within its rights in instituting the moratorium because all parties agreed that continued hiring of Federal Division employees after the preference period was discretionary. It is also undisputed, from the statements and testimony of Henry and other officers, that at the time it imposed the moratorium, Federal Forge considered the Union's demand to be illegitimate.

Forty-seven of the 107 former Federal Division employees still unhired at the time of the moratorium were 40 years of age or older--or attained 40 years of age at some point during the moratorium. Thirty-eight of those employees brought the present action against Federal Forge, alleging violation of the ADEA and various pendent state claims. On cross motions for summary judgment after discovery, the district court ruled for the company. This appeal followed. Two of the original 38 plaintiffs withdrew from the case, leaving 36 appellants.

II Disparate Treatment

In order to make out a prima facie case under a theory of disparate treatment, the plaintiff must show that the employer acted with the intention of discriminating on the basis of age. We are satisfied that the district court was correct that there was no genuine issue of material fact as to Federal Forge's motive. The motive for imposing the moratorium was Federal Forge's belief that the union's claim that workers were entitled to past seniority pension benefits upon rehire was meritless. Appellants offered no other circumstantial evidence of intention to discriminate on the basis of age.

Other evidence supports the conclusion that Federal Forge's intentions in imposing the moratorium did not include a desire not to hire older workers. Prior to the moratorium, Federal Forge had filled the openings at the Lansing Division plant exclusively with former Federal Division workers. In all, 45 workers were hired. Of that group, over half (23) were 40 years or older at the time they were hired. Employee lists show that had Federal Forge intended to fill the openings in the Lansing Division plant with workers under 40, there were enough among the Federal Division employees for it to do so. Indeed, over 60% of the remaining 107 Federal Division employees were under 40 as of March 1984. Moreover, the dates of hire at the Lansing Division show that Federal Forge displayed an early preference for older workers; all of the first eight and 11 of the first 14 workers hired prior to the moratorium were 40 or older at the time of hire.

III Disparate Impact

Appellants also advanced a disparate impact theory by comparing the ages of the persons not hired because of the moratorium with the ages of the persons hired during the moratorium. Under a theory of disparate impact, the plaintiff may establish a prima facie case of discrimination by showing the existence of an employment practice which, although neutral on its face, has the effect of disproportionately affecting persons in a legally protected group. Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). In a disparate impact case, it is not necessary to present evidence of the employer's subjective intent to discriminate, as required in a disparate treatment case. Although disparate impact analysis was developed by the Supreme Court in Title VII race discrimination cases, and has been used by the Court only in that context, other courts have widely applied disparate impact analysis to age discrimination cases brought under the ADEA. Laugesen v. Anaconda Co., 510 F.2d 307, 311 (6th Cir.1975); Geller v. Markham, 635 F.2d 1027, 1032 (2d Cir.1980).

In order to establish a prima facie case of age discrimination by showing disparate impact, the plaintiff must first identify a specific employment practice being used by the employer. Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 994, 108 S.Ct. 2777, 2788, 101 L.Ed.2d 827 (1988). The employment practice in this case was the fourteen-month moratorium on hiring former Federal Division employees. Next, the plaintiff must show an adverse effect caused by the employment practice by offering "statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion of applicants for jobs ......