Cross v. U.S. Postal Service

• Decision Date: 27 January 1981
• Docket Number: No. 80-1119,80-1119
• Citation: 639 F.2d 409
• Parties: 24 Fair Empl.Prac.Cas. 1603, 25 Empl. Prac. Dec. P 31,594 Rebecca Mae CROSS, Appellant, v. UNITED STATES POSTAL SERVICE; The Board of Governors of the United States Postal Service; M. A. Wright; R. E. Holding; Charles H. Codding; William A. Irvine; Crocker Nevin; Hayes Robertson; and Benjamin F. Bailar, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 409

639 F.2d 409

24 Fair Empl.Prac.Cas. 1603,

25 Empl. Prac. Dec. P 31,594

Rebecca Mae CROSS, Appellant, v. UNITED STATES POSTAL SERVICE; The Board of Governors of the

United States Postal Service; M. A. Wright; R. E. Holding;

Charles H. Codding; William A. Irvine; Crocker Nevin; Hayes

Robertson; and Benjamin F. Bailar, Appellees.

No. 80-1119.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 15, 1980.

Decided Jan. 27, 1981.

Kenneth M. Chackes, St. Louis, Mo., for appellant.

David G. Karro, Washington, D. C., for appellees.

Before HEANEY, ADAMS, ^* and STEPHENSON, Circuit Judges.

HEANEY, Circuit Judge.

Rebecca Mae Cross, a black woman, was convicted in 1964 of selling heroin and assaulting a federal narcotics officer. She was given a twenty-year sentence for the narcotics offense and eighteen months for the assault; she served ten years. While in prison, she was trained as a key punch operator and worked for over five years in that capacity. Shortly after her release in 1975, she took a competitive Postal Service examination for the position of key punch operator (data conversion operator) with the St. Louis Postal Data Center and received a score of 85. Thereafter, she made application for the position, was interviewed several times for existent vacancies and was rejected each time.

On June 7, 1977, Cross filed an action in the United States District Court, alleging that she had been denied employment by the Postal Service because of her race. She claimed a violation of section 717(a) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-16(a). The case was tried to the district court in June, 1979. At trial, Cross advanced two theories in support of her discrimination claim: first, that the Postal Service's policy with respect to the employment of persons with criminal convictions had a greater impact on blacks as a class; and, second, that she was denied the key punch positions because of her race. The court ruled in favor of the defendant Postal Service on both theories.

I

Cross rested her disparate impact claim on the following language in the Handbook of the Postal Service:

An applicant might be disqualified for criminal or other conduct of such a nature which, if engaged in by a postal employee, would undermine the efficiency of the Postal Service.

Cross contended that, because statistical evidence shows that blacks in the United States are arrested, convicted and imprisoned for crimes in numbers disproportionate to their representation in the population, this policy operated to discriminate against blacks. The district court held that Cross had failed to make a prima facie case of discrimination under the "disparate impact" theory set forth in Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), because she failed to establish that the Postal Data Center in fact had a policy of rejecting applicants who had been previously convicted.

We affirm the district court's holding that Cross failed to establish her theory of disparate impact; there is sufficient evidence in the record to support the trial court's determination. The record shows that persons with criminal records were hired by the Postal Service and Postal Service witnesses testified without equivocation that Cross was not rejected because of her conviction record, and that testimony was credited by the trial judge.

II

To prove her claim that the Postal Service discriminated against her individually on account of her race, Cross relied on the test set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). In that case, the Court held that a Title VII plaintiff could establish a prima facie case of racial discrimination

by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.

Id. at 802, 93 S.Ct. at 1824.

Once this prima facie case has been made out, the Court ruled, an inference of intentional discrimination is raised and the burden shifts to the employer to "articulate some legitimate, nondiscriminatory reason for the employee's rejection." Id. If the employer makes such an "articulation," the plaintiff must be "afforded a fair opportunity to show that (the employer's) stated reason for (the plaintiff's) rejection was in fact pretext (for the sort of discrimination prohibited by Title VII)." Id. at 804, 93 S.Ct. at 1825; see Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24, 99 S.Ct. 295, 58 L.Ed.2d 216 (1978); Furnco Construction Corp. v. Waters, 438 U.S. 567, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978); Kirby v. Colony Furniture Co., 613 F.2d 696 (8th Cir. 1980).

After reviewing the evidence presented by Cross and the Postal Service in this case, the district court determined that Cross had established a "prima facie case of race discrimination insofar as she was black, qualified for the position, and (the Postal Service) continued to seek applicants after rejecting her." ¹ Cross v. United States Postal Service, 483 F.Supp. 1050, 1055 (E.D.Mo.1979). The court concluded, however, that the Postal Service " successfully rebutted the prima facie case by articulating a nondiscriminatory reason for bypassing (Cross) in favor of other applicants with specific and circumstantial * * * proof." Id.

We agree with the district court that Cross established a prima facie case of intentional discrimination based on the guidelines set forth in McDonnell Douglas. ² We cannot agree, however, with the ultimate decision of the district court. Its holding appears to be based on the testimony by the Postal Service that the persons hired were "better" than Cross. The court stated, "This subjective judgment that other applicants were 'better' or 'more qualified', while comprising a variety of factors, was not based upon (Cross') race or prior conviction." Cross v. United States Postal Service, supra, 483 F.Supp. at 1053. It implied that the principal factors were (1) prior experience as a key punch operator, and (2) the impression created by Cross during her first employment interview.

The primary reason stated by the Postal Service for rejecting Cross that those hired had more experience has some validity when applied to the first rejections but has none when applied to her final attempt to obtain employment. The record demonstrates the fallacy of the Postal Service position.

Interviews for the position of key punch operators were ordinarily conducted for the Postal Service by Doloris Stewart or her assistant, Ann Lenk. Their recommendations as to whom should be hired were consistently accepted by the Postal Service. Stewart and Lenk testified that they made their recommendations primarily on the basis of the experience of the applicant. The following testimony of Lenk, who conducted the first two interviews with Cross, illustrates this fact clearly:

Q. After the interview you would put her and all applicants on a keypunch machine to see if they can actually operate a machine and keypunch?

A. Yes.

Q. And she was able to operate the keypunch machine?

A. Yes.

Q. And in your opinion was she qualified for the job?

A. Yes.

THE COURT: Let's get down to where we're going here. Did you or did you not make a recommendation to Doloris Stewart as to whether or not the plaintiff Rebecca Cross should be employed?

THE WITNESS: I made recommendations. There were several applicants then, Your Honor, and I base my recommendations on their experience, the one with the most experience one, two, three

The selection process ordinarily followed by the Postal Service in selecting key punch operators was as follows:

(1) Applicants were required to take a competitive examination and were ranked on the hiring register in accordance with the examination results.

(2) When a vacancy, or vacancies, occurred, the requisite number of names at the top of the register were referred to Stewart.

(3) Stewart gave the persons referred an examination on the key punch machines used in the office.

(4) The person passing the key punch examination and having the most experience as a key punch operator was considered to be the best qualified and was hired.

It can be argued that the above procedure was followed on two of the three occasions when Cross was interviewed for key punch positions in that the most experienced applicants were hired. Two vacancies occurred in St. Louis in May of 1975. Rebecca Cross was interviewed by Ann Lenk. Three other women, Dianne Michael, Mary Frazier and Crystal House were interviewed for the same vacancies. Ann Lenk recommended that Michael and Frazier be hired. Frazier accepted; Michael declined. House had no key punch experience. Lenk then attempted to arrange an interview with Nevada Johnson, who failed to appear for an interview. At that point, Mable Blackman, a computer operator for the Veterans Administration, was hired on Lenk's recommendation. ³ Another vacancy occurred in July, 1975. Cross was interviewed by Lenk for a second time. She again took and passed the machine operation examination. Cross was rejected again. Joanne Widdows, a white woman, was hired for the position. Frazier and Blackman both had more experience than Cross. Widdows probably had at least as much experience as Cross.

It is clear, however, that the hiring procedure outlined above was not followed when five key punch vacancies were filled by the Post Office in November, 1976. ⁴ Only one of the applicants hired at that time was as experienced as Cross. ⁵ Cross had more than five years experience as a key punch operator. While she obtained the experience in a prison setting, the record reveals that the work that she did was...