E.E.O.C. v. United Virginia Bank/Seaboard Nat.

• Citation: 615 F.2d 147
• Decision Date: 24 January 1980
• Docket Number: No. 78-1022,78-1022
• Parties: 21 Fair Empl.Prac.Cas. 1405, 22 Empl. Prac. Dec. P 30,598 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Appellant, v. UNITED VIRGINIA BANK/SEABOARD NATIONAL, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 147

615 F.2d 147

21 Fair Empl.Prac.Cas. 1405,

22 Empl. Prac. Dec. P 30,598

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Appellant, v. UNITED VIRGINIA BANK/SEABOARD NATIONAL, Appellee.

No. 78-1022.

United States Court of Appeals Fourth Circuit.

Argued Feb. 6, 1979.

Decided Jan. 24, 1980.

Paul E. Mirengoff, Atty., E.E.O.C., Washington, D. C. (Abner W. Sibal, Gen. Counsel, Joseph T. Eddins, Associate Gen. Counsel, Beatrice Rosenberg, Asst. Gen. Counsel, Washington, D. C., on brief), for appellant.

Paul M. Thompson, Washington, D. C. (A. Neal Barkus, Charleston, W. Va., Hunton & Williams, Washington, D. C., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, and BUTZNER and WIDENER, Circuit Judges.

WIDENER, Circuit Judge:

On April 15, 1975, following a lengthy investigation, the Equal Employment Opportunity Commission (EEOC) filed this action against United Virginia Bank (bank or UVB) alleging that from July 2, 1965 to the date the complaint was filed UVB had discriminated against black applicants in its hiring procedures. The case was tried on its merits and the district court entered judgment for the defendant. The district judge gave only broad conclusory reasons for his decision, and we remanded the case with directions that the district court comply with FRCP 52(a) by entering detailed findings of fact. EEOC v. United Virginia Bank/Seaboard National, 555 F.2d 403 (4th Cir. 1977). We also directed the district court to allow both sides to introduce additional evidence. Id. at 406. On remand, the district court heard additional evidence and again found for the defendant. The EEOC appeals. We affirm for reasons somewhat different in some respects from those given by the district court in its opinion.

A part of EEOC's case was its claim that the bank discriminated against black applicants in maintaining a high school education requirement for employment and that it likewise discriminated in employing credit checks for employees in hiring. EEOC does not appeal from the adverse decision of the district court on these subjects. A part of its initial case also was that the bank had actually discriminated against some fourteen black applicants in its failure to employ them. On remand this number may have been added to by twenty-two additional applicants. The district court denied relief to all of them, or for their account, and the EEOC acquiesced in the court's holding in all instances except nine.

Hiring and its attendant initial job assignment is the only issue in this case. Significantly, there is no claim of other racial discrimination in such things as promotions, transfers, pay, etc., which, as often as not, appear in litigation of this nature.

At trial, the EEOC presented the following as evidence of discrimination: (1) The principal part of its case was a statistical comparison of black employees at UVB with black people in the total area work force; (2) a statistical comparison of black and white applicant to hire ratios; (3) specific policies which allegedly discriminate against blacks, e. g., credit checks and a high school education requirement; and (4) individual instances of discrimination, mainly relating to an alleged failure to hire qualified black applicants when openings were available.

The centerpiece and keystone of the EEOC's case, both in the district court and on appeal, is that the proper statistical comparison in this case is between the percentage of black employees working in various job classifications at UVB and the percentage of black people in the local labor force. Black people represent 27 percent of the local labor force and 9.5 percent (32/336) of UVB's 1974 office/clerical workers, 78.6 percent of its service workers (11/14), 33.3% (1/3) of its operative employees, and 1.8 percent (2/111) of its managers.

The EEOC also introduced evidence it deemed showed discriminatory distribution of blacks in UVB's sixty job categories and that 43 of the 60 categories had no black employees.

The fundamental problem with the EEOC's statistical evidence lies in the fact that UVB's work force was compared with the work force as a whole. As the district court correctly recognized, this comparison was improper. It is clear that:

When special qualifications are required to fill particular jobs, comparisons to the general population (rather than to the smaller group of individuals who possess the necessary qualifications) may have little probative value.

Hazelwood School District v. United States, 433 U.S. 299, 308 n. 13, 97 S.Ct. 2736, 2742, 53 L.Ed.2d 768 (1977). Accord, Teamsters v. United States, 431 U.S. 324, 340 n. 20, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). Indeed, we spelled out this proposition in our opinion on the first appeal in this case. EEOC v. United Virginia Bank/Seaboard National, 555 F.2d 403, 406 n. 7 (1977). The district court followed our opinion on remand and held that the proper comparison was between UVB's work force and those individuals with the requisite qualifications for the particular job.

The EEOC, however, rigidly continues to argue that all the black local labor force is qualified for the office and clerical positions at UVB. ¹ This is simply not true. Tellers must be able to deal with the public, handle and account for money, and operate adding machines, typewriters and other office machines. The district court found that the entire percentage of black people in the local labor force would not provide an appropriate statistical group for comparison with UVB black employees. Since this determination was a factual one, it will not be disturbed unless clearly erroneous. FRCP 52(a). We, therefore, need not engage in a detailed re-examination of the job qualifications in this case for the district court's decision was obviously not clearly erroneous. The above discussion applies a fortiori to the EEOC's attempt to compare the number of black managers at UVB with the number of black people in the local labor force.

The EEOC failed to present any evidence as to the percentage of persons in the labor force qualified to hold the various positions at UVB. The bank did introduce a report entitled "Manpower Information for Affirmative Action Programs" prepared by the Virginia Employment Commission. The report, based on U. S. Labor Statistics in part, shows the percentage of black and other minorities in various occupations in 1975 for the Norfolk, Virginia Beach, Portsmouth Standard Metropolitan Statistical Area (SMSA). The district court took the data in this report and converted it into percentages which could be compared to the major job categories at UVB, and summarized these percentages in a table. ² The district court may have mistakenly thought, however, that the Virginia Employment Commission report was for 1970 rather than 1975. If so, it compared the SMSA percentages with UVB's 1970 work force when it should have compared them to the 1974 work force (the last full year before this action was initiated).

We do not intimate that the SMSA table necessarily demonstrates the percentage of black people in the labor force qualified to perform clerical work. However, the burden was on the EEOC to prove discrimination and to produce evidence to support its position. The SMSA report constitutes the only evidence which even remotely speaks to qualifications. Without these figures, the EEOC's case is virtually without any statistical evidence to support it.

Further problems emerge when an attempt is made to compare the SMSA percentages with the UVB employees. When the EEOC prepared its figures for black employees and applicants, it made no effort to exclude employees hired prior to the effective date of Title VII (July 2, 1965). Thus, the figures EEOC presents are weighted against UVB to the extent that white employees hired prior to the time Title VII was in effect were included in the employment figures. The Supreme Court has clearly stated that an employer who, after the effective date of the Act, "made all its employment decisions in a wholly nondiscriminatory way would not violate Title VII even if it had formerly maintained an all-white work force by purposefully excluding Negroes." Hazelwood School District v. United States, 433 U.S. 299, 309, 97 S.Ct. 2736, 2742, 2743, 53 L.Ed.2d 768 (1976). Hazelwood involved a public employer, but it is clear that private employers are equally included within its rationale. Thus, in order to be valid, a statistical analysis such as the one presented here must exclude those persons hired prior to July 2, 1965 (the effective date of Title VII for private employers). To include pre-Act hires in the statistical analysis in this case would improperly weight the evidence and would tend to show present discrimination by an employer if it had discriminated prior to the effective date of the Act but had not discriminated after the Act took effect. It is therefore clear that the June 9, 1975 employment list as a whole was improperly used against UVB because the EEOC made no attempt to factor out the pre-Act hires. Our own examination of the employment records (the June 1975 list) shows at least 92 1975 employees who were hired prior to July 2, 1965 and are almost certainly bound to have been employed in June 1974. How many other pre-Act employees quit, retired, or died during the year 1974-75 is not argued, but a brief reference to a disputed termination list indicates that the few pre-Act hires terminated during the period of June 1974-June 1975 were white, which of course would cause the Castaneda-Hazelwood analysis of standard deviations to be weighted further toward the defendant than it already is shown to be by the analysis which follows.

Furthermore, even if the pre-Act hires are not excluded, a comparison of the number of black employees of UVB with the number of black employees in similar jobs in the SMSA demonstrates that the difference between the two figures is probably not statistically significant. The...