Davidson v. Citizens Gas & Coke Utility

• Decision Date: 18 January 2007
• Docket Number: No. 1:03-cv-01882-SEB-JPG.,1:03-cv-01882-SEB-JPG.
• Citation: 470 F.Supp.2d 934
• Parties: Todd DAVIDSON, Wilbert Wiggins, George Douglas, Jr., Charles Magee, Daron Thompson, Eugene Smith, George Rodgers, Kenton Smith, Sidney Williams And Jimothy Amos a/k/a Timothy Amos, on behalf of themselves and others similarly situated, Plaintiffs, v. CITIZENS GAS & COKE UTILITY, Defendant.
• Court: U.S. District Court — Southern District of Indiana

470 F.Supp.2d 934

Todd DAVIDSON, Wilbert Wiggins, George Douglas, Jr., Charles Magee, Daron Thompson, Eugene Smith, George Rodgers, Kenton Smith, Sidney Williams And Jimothy Amos a/k/a Timothy Amos, on behalf of themselves and others similarly situated, Plaintiffs, v. CITIZENS GAS & COKE UTILITY, Defendant.

No. 1:03-cv-01882-SEB-JPG.

United States District Court, S.D. Indiana, Indianapolis Division.

January 18, 2007.

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Henry J. Price, Robert David Eaglesfield, III, Ronald J. Waicukauski, William N. Riley, Price Waicukauski & Riley, Indianapolis, IN, for Plaintiffs.

Curtis W. Mccauley, Wayne 0. Adams, III, Ice Miller LLP, Indianapolis, IN, for Defendant.

ENTRY ON CROSS MOTIONS FOR SUMMARY JUDGMENT

BARKER, District Judge.

This matter is before the court on the parties' cross motions for summary judgment. For the reasons set forth in this entry, we hold that Plaintiffs' Motion for Partial Summary' Judgment should be granted and that Defendant's Motion for Summary Judgment should be granted in part and denied in part.

Factual Background

Eight of the ten Plaintiffs are hourly employees of Defendant, Citizens Gas & Coke Utility ("Citizens") who work in its manufacturing division and are represented by the International Brotherhood of Electrical Workers ("IBEW"). Plaintiff Sidney Williams applied for employment with Citizens during 2002 and again in 2004, but was not hired. Plaintiff Jimothy Amos sought, but was denied employment with Citizens in 2003. All ten of the Plaintiffs are African-Americans who took, at least once, a written test known as the work competency assessment or "WCA", which Citizens used at the time to screen inter-division transfer and promotion candidates as well as applicants. Citizens operates a gas division and thermal division in addition to its manufacturing division. Each division stands as a separate bargaining unit for non-exempt employees and, at least during the relevant time period, seniority in one division did not' transfer to the others. If an employee was hired prior to June 28, 1987 who wanted to transfer or bid on a job in another division, he had to pass a test, which, beginning in 1999, was the WCA. Generally, if no employee from within the division where an opening existed wanted the job, it was awarded to an interested person possessing the most seniority in another division. To secure the position, that person had to be under no current disciplinary constraints and had to have successfully passed the WCA. Employees hired after June 28, 1987, however, could not transfer into other divisions regardless of their scores on any selection tests.

The WCA was developed by Roland Guay, a Purdue University professor. Dr. Guay and Citizens assert that the test was intended to allow Citizens to measure a person's ability to take on certain jobs. Unless a test-taker scored at a certain level, he or she was deemed ineligible for hire, promotion or transfer to numerous positions.¹ The required scoring levels for various jobs were set by Dr. Guay.

Plaintiffs claim that the WCA had a discriminatory impact on African-Americans and, as a result, they were injured, either by their inability to compete equally for positions in other divisions or by being deemed ineligible for specific positions for which they had applied and which they otherwise would have received. Each Plaintiff asserts a claim of both disparate impact and disparate treatment, under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, as well as a claim of discrimination under 42 U.S.0 § 1981. We previously granted partial summary judgment in Citizen's favor with respect to any claim of disparate impact pursued under 42 U.S.C. § 1981. Inasmuch as a recovery under § 1981 requires a showing of wrongful intent, a disparate impact claim is not available under that statute. Majeske v. Fraternal. Order of Police, Local Lodge No. 7, 94 F.3d 307, 312 (7th Cir.1996). Plaintiffs' request for class certification was denied as well.

Citizens now seeks summary judgment on all the remaining claims brought against it by all Plaintiffs. Plaintiffs concede summary judgment is appropriate with respect to the claims of two job applicants, Jimothy Amos and Sidney Williams.² However, Plaintiffs vigorously dispute that Citizens is entitled to summary judgment with respect to the claims of the other eight and, in fact, seek summary judgment in their favor on each of their disparate impact claims.

Summary Judgment Standard

In addressing cross motions for summary judgment, we may grant summary judgment (in whole or in part) or deny (in whole or in part) either or both parties' motions. The standard for determining summary judgment is unchanged from that which applies when only a single party has moved for it. Summary judgment is available if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. To determine whether any genuine factual issue exists, the Court examines the pleadings and the proof as presented in depositions, answers to interrogatories, admissions, and affidavits made a part of the record. First Bank & Trust v. Firstar Information Services, Corp., 276 F.3d 317 (7th Cir.2001). The Court also draws all reasonable inferences from undisputed facts in favor of the non-moving party and views the disputed evidence in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). However, the nonmoving party may not rest upon mere allegations in the pleadings or upon conclusory statements in affidavits; rather, the non-movant must go beyond the pleadings to support their contentions with properly admissible evidence. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Analysis

Title VII and § 1981 both prohibit discrimination. Title VII is directed specifically at employment relationships, while 42 U.S.0 § 1981 prohibits discrimination with regard to the making and enforcement of contracts, including employment contracts. There is an overlap in the employment situation and the same standards governing liability for intentional discrimination under Title VII apply to § 1981 claims. Gonzalez v. Ingersoll Milling Mach. Co., 133 F.3d 1025, 1035 (7th Cir. 1998). However, as we mentioned earlier, a successful claim under § 1981 requires a showing of intentional discrimination, while Title VII provides a cause of action for intentional discrimination and discrimination which may not be intended, but which results from otherwise facially neutral actions. See Melendez v. Illinois Bell Telephone Co., 79 F.3d 661 (7th Cir.1996)(noting distinctions between some claims made under Title VII and claims made pursuant to 42 U.S.C. § 1981 and affirming verdict of liability on Title VII disparate impact claim where no liability was found under § 1981). In this matter we look first at those claims that do not require a showing of intent.

Disparate Impact Claims

In order to establish a prima facie case of discrimination under a disparate impact theory, a plaintiff must show that a facially neutral employment practice, in this case the WCA, had a significantly discriminatory impact. Connecticut v. Teal, 457 U.S. 440, 446, 102 S.Ct. 2525, 73 L.Ed.2d 130 (1982); Anderson v. Westinghouse Savannah River Co., 406 F.3d 248, 265 (4th Cir.2005). If such a showing is made, then the burden shifts to the employer to demonstrate that the employment practice has a manifest relationship to the particular employment in question. Teal, 457 U.S. at 446-47, 102 S.Ct. 2525 (quoting Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971)). If the employer satisfies that required showing, a plaintiff may still prevail if he shows that the employer was using the practice as a mere pretext for discrimination. Teal, 457 U.S. at 446-447, 102 S.Ct. 2525; Anderson, 406 F.3d at 265. A plaintiff employee also prevails if he can show that there is an equally valid substitute practice or, in this case, screening methodology available which would be less discriminatory than the one at issue and the employer refuses to utilize it. 42 U.S.C. § 2000e-2(k)(1)(A)(ii).

Where the challenged practice is an examination that is being used as a brightline barrier to promotion (that is to say, an employee may only be promoted if he passes the test), it does not suffice as a defense that the employer might be able to demonstrate statistically acceptable bottom—line results from the promotion process and such results would not defeat a prima facie showing by plaintiff(s).

In short, the District Court's dismissal of respondents' claim cannot be supported on the basis that respondents failed to establish a prima facie case of employment discrimination.... The suggestion that disparate impact should be measured only at the bottom line ignores the fact that Title VII guarantees these individual respondents the opportunity to compete equally with white workers on the basis of job-related criteria. Title VII strives to achieve equality of opportunity by rooting out "artificial, arbitrary, and, unnecessary" employercreated barriers to professional development that have a discriminatory impact upon individuals.

Teal, 457 U .S. at 451, 102 S.Ct. 2525.

Here, Plaintiffs-have provided statistical evidence that African-Americans scored disproportionately lower than others taking the WCA, thereby reducing disproportionately their chances of promotion.³ Generally, if a minority group passes a selection test at a rate of 80% or less than the pass-rate of nonminorities as is the situation here, EEOC guidelines deem disparate impact established. 29 C.F.R. § 1607.4(D). Consistent with the approach taken by most other courts, the Seventh Circuit has often relied on the EEOC's "four-fifths" rule as a useful benchmark in analyzing disparate impact...