E.E.O.C. v. Sears, Roebuck & Co., Nos. 86-1519

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Writing for the Court: Before WOOD and CUDAHY, Circuit Judges, and ESCHBACH; HARLINGTON WOOD, Jr.; CUDAHY
• Citation: 839 F.2d 302
• Parties: 45 Fair Empl.Prac.Cas. 1257, 45 Empl. Prac. Dec. P 37,681, 56 USLW 2435 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, Cross-Appellee, v. SEARS, ROEBUCK & COMPANY, Defendant-Appellee, Cross-Appellant.
• Docket Number: Nos. 86-1519,86-1621
• Decision Date: 15 March 1988

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839 F.2d 302 45 Fair Empl.Prac.Cas. 1257,
45 Empl. Prac. Dec. P 37,681, 56 USLW 2435 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff-Appellant, Cross-Appellee,
v.
SEARS, ROEBUCK & COMPANY, Defendant-Appellee, Cross-Appellant. Nos. 86-1519, 86-1621. United States Court of Appeals,
Seventh Circuit. Argued May 19, 1987.
Decided Jan. 14, 1988.
Rehearing and Rehearing En Banc Denied March 15, 1988.

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Jeffrey Bannon and James P. Scanlan, E.E.O.C., Washington, D.C., for plaintiff-appellant, cross-appellee.

Charles Morgan Jr., Morgan Associates Chtd., Washington, D.C., Pamela S. Horowitz, for defendant-appellee, cross-appellant.

Before WOOD and CUDAHY, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

HARLINGTON WOOD, Jr., Circuit Judge.

These appeals are the outgrowth of protracted litigation stemming from an EEOC commissioner's charge filed against Sears, Roebuck & Company (Sears) on August 30, 1973. After efforts at settlement and conciliation failed, the EEOC brought suit against Sears on October 22, 1979, alleging several claims of nationwide discrimination against women (and minorities, but those claims were later withdrawn) in employment practices. Before trial the district court denied Sears' motion to dismiss, which was based on several grounds including an assertion that an EEOC attorney who headed the Sears investigation had a conflict of interest because he served on the Board of Directors of the National Organization for Women Legal Defense and Education Fund (LDEF) prior to and at the time NOW filed charges against Sears with the EEOC. ¹ EEOC v. Sears, Roebuck & Co., 504 F.Supp. 241 (N.D.Ill.1980) (Sears I ). During the ten-month trial which began September 13, 1984, and consumed 135 trial days, ² the EEOC sought to prove that Sears engaged in a nationwide pattern or practice of discrimination against women from March 3, 1973 to December 31, 1980, by failing to hire and promote females into commission sales positions on the same basis as males and by paying female checklist management employees less than similarly situated male employees. The district court on January 31, 1986, held for Sears on all claims and also denied the EEOC's outstanding motion for partial summary judgment. ³ EEOC v. Sears, Roebuck & Co., 628 F.Supp. 1264 (N.D.Ill.1986) (Sears II ).

The EEOC appeals the district court's judgment on the disparate treatment claims and its denial of partial summary judgment regarding a provision that had existed in the Sears Personnel Manual until 1974 allowing a male employee a day off with pay when his wife gave birth. ⁴ Sears cross appeals the district court's refusal to dismiss the case on the alleged ground of conflict of interest.

I. DISPARATE TREATMENT--LEGAL PRINCIPLES

A. Standards of Review

The EEOC does not challenge the district court's holding that this case involves

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claims of disparate treatment under Title VII Sec. 703(a)(1), 42 U.S.C. Sec. 2000e-2(a)(1). ⁵ To succeed in a claim alleging disparate treatment, the EEOC ultimately had the burden of proving by a preponderance of the evidence that Sears engaged in a "pattern or practice" of discrimination against female employees. Bazemore v. Friday, 478 U.S. 385, 106 S.Ct. 3000, 3009, 92 L.Ed.2d 315 (1986) (per curiam) (Brennan, J., writing for majority, concurring in part). This includes proof of the employer's discriminatory intent, a factor not required in the disparate impact analysis. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n. 14, 97 S.Ct. 1843, 1854 n. 14, 52 L.Ed.2d 396 (1977). Initially the EEOC, as plaintiff, had the burden of establishing a prima facie case that Sears followed an unlawful pattern or practice of discrimination. Id. "The plaintiffs' prima facie case will thus usually consist of statistical evidence demonstrating substantial disparities in the application of employment actions as to minorities and the unprotected group, buttressed by evidence of general policies or specific instances of discrimination." Coates v. Johnson & Johnson, 756 F.2d 524, 532 (7th Cir.1985) (footnote omitted).

If a plaintiff meets that initial burden, the burden then shifts, temporarily, to the "employer to defeat the prima facie showing of a pattern or practice by demonstrating that the [plaintiffs'] proof is either inaccurate or insignificant." Id. The burden shifts only temporarily because, as the Supreme Court explained in Bazemore, 106 S.Ct. at 3008,

if the defendants ... have responded to the plaintiffs' proof by offering evidence of their own, the factfinder then must decide whether the plaintiffs have demonstrated a pattern or practice of discrimination by a preponderance of the evidence. This is because the only issue to be decided at that point is whether the plaintiffs have actually proved discrimination.

See also United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983). Whether the plaintiff has done so "will depend in a given case on the factual context of each case in light of all the evidence presented by both the plaintiff and the defendant." Bazemore, 106 S.Ct. at 3009. In essence, therefore, the factfinder looks at all the evidence, and does not accord any special significance to the fact that the plaintiff initially met its burden of proving a prima facie case. See Aikens, 460 U.S. at 715, 103 S.Ct. at 1482; Pollard v. Rea Magnet Wire Co., Inc., 824 F.2d 557, 558 (7th Cir.1987).

The EEOC has not structured its argument to clearly fit within these principles, which gives the impression that it has a stronger case than it actually does. In presenting its hiring and promotion claims, the EEOC first argues that it has made out a prima facie case, and then contends that Sears failed to rebut that case. ⁶ In addition,

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the EEOC makes statements such as "where plaintiffs present a sound statistical prima facie case, there is a substantial burden on the defendant to respond ... with a more probative analysis." Although the district court did find that the EEOC had presented a prima facie case, whether the EEOC actually presented a sound statistical case is questionable. The district court did not find that it had, and we address that issue later. The EEOC implies through the structure of its presentation and statements such as the one quoted above that Sears had a heavy burden to rebut the EEOC's evidence with more compelling evidence and even that Sears had the burden of persuasion. We find no support in the case law for those contentions. It is true that Sears had a rebuttal burden, but to meet that burden, Sears needed only to produce evidence that "raise[d] a genuine issue of fact as to whether it discriminated." Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981). Sears did not have a burden of producing more compelling evidence than did the EEOC. In Teamsters, the Supreme Court stated that an "employer's defense must ... be designed to meet the prima facie case of the [plaintiff]." 431 U.S. at 360 n. 46, 97 S.Ct. at 1867 n. 46. We noted in Coates that " '[t]he strength of the evidence the defendant must produce to prevent the plaintiff[s] from carrying the burden of persuasion ... depends, as in any case, on the strength of the plaintiffs' proof.' " 756 F.2d at 532 (quoting Segar v. Smith, 738 F.2d 1249, 1268 (D.C.Cir.1984), cert. denied, 471 U.S. 1115, 105 S.Ct. 2357, 86 L.Ed.2d 258 (1985)). Whatever the nature of the defendant's evidence, "the defendant need not carry the burden of persuasion as to the nonexistence of a disparity." Segar, 738 F.2d at 1268. The EEOC could not necessarily rest on its showing of a prima facie case. As we noted above, once a defendant "respond[s] to the plaintiffs' proof by offering evidence of [its] own," Bazemore, 106 S.Ct. at 3008, the fact that the plaintiff proved a prima facie case is of no continuing consequence. "The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Burdine, 450 U.S. at 253, 101 S.Ct. at 1093; see Bazemore, 106 S.Ct. at 3008.

The district court's determination as to whether the plaintiff has proved discrimination by a preponderance of the evidence "is subject to the clearly erroneous standard on appellate review." Bazemore, 106 S.Ct. at 3008. The district court's factual findings underlying that ultimate determination are also subject to the clearly erroneous standard. Under that standard, " '[a] finding is "clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.' " Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948)). We may have such a conviction if "the trial judge's interpretation of the facts is implausible, illogical, internally inconsistent or contradicted by documentary or other extrinsic evidence." Ratliff v. City of Milwaukee, 795 F.2d 612, 617 (7th Cir.1986). "If the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently." Anderson, 470 U.S. at 573-74, 105 S.Ct. at 1511. In addition "[w]here there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous." Id.; see Boxhorn's Big Muskego Gun Club, Inc. v. Electrical Workers Local 494, 798 F.2d 1016, 1018 (7th Cir.1986).

The district court in this case made a multitude of factual findings. Some of those findings rested on determinations of the...