Easley v. Anheuser-Busch, Inc.

• Decision Date: 30 August 1983
• Docket Number: No. 82-1316C(3).,82-1316C(3).
• Parties: Jimmy EASLEY, Andre Griffin, and Patricia Murphy, Plaintiffs, v. ANHEUSER-BUSCH, INC., Defendant.
• Court: U.S. District Court — Eastern District of Missouri

572 F. Supp. 402

Jimmy EASLEY, Andre Griffin, and Patricia Murphy, Plaintiffs, v. ANHEUSER-BUSCH, INC., Defendant.

No. 82-1316C(3).

United States District Court, E.D. Missouri, E.D.

August 30, 1983.

COPYRIGHT MATERIAL OMITTED

Kenneth M. Chackes, Michael J. Hoare, Chackes & Hoare, St. Louis, Mo., for plaintiffs.

Christopher M. Smith, Donald L. McCullin, Wilson, Smith & McCullin, St. Louis, Mo., for defendant.

MEMORANDUM

HUNGATE, District Judge.

This matter is before the Court for a decision on the merits following a three-day bench trial conducted March 23, 24, and 25, 1983. Plaintiffs seek compensatory and injunctive relief against the defendant for alleged violations of their civil rights in connection with certain hiring practices, pursuant to 42 U.S.C. §§ 1981 and 2000e-2, et seq.

Having considered the pleadings, trial testimony, exhibits, stipulations, and memoranda of the parties, and being fully advised in the premises, the Court hereby makes and enters the following findings of fact and conclusions of law.

Findings of Fact

A. Parties and Jurisdiction

1. Plaintiffs, Jimmy Easley, Andre Griffin, and Patricia Murphy, are black citizens of the United States. Stipulation of Uncontested Facts, filed March 11, 1983 (hereinafter Stip.), ¶ 1.

2. The defendant, Anheuser-Busch, Inc., is a Missouri corporation doing business in the City of St. Louis, Missouri, where it operates a brewery. At the times germane to this action, defendant continuously employed more than fifteen persons and was engaged in an industry affecting commerce. Stip. ¶ 2.

3. Plaintiff Easley filed a charge of race discrimination against defendant with the United States Equal Employment Opportunity Commission (EEOC) on October 16, 1979, less than 180 days after he was administered defendant's pre-employment test on June 8, 1979. The charge was amended November 21, 1979. Plaintiffs' Exs. 1 and 2. Plaintiff Griffin filed a similar charge with the EEOC on July 27, 1979, less than 180 days after being tested on May 18, 1979. After finding reasonable cause to believe that the charges of plaintiffs Easley and Griffin were true, and failing conciliation with the defendant, the EEOC issued to each plaintiff a Notice of Right to Sue. Both notices were received May 17, 1982. Plaintiffs' Exs. 3, 4, 5, and 8. This action was timely filed August 16, 1982, the previous day being a Sunday.

4. Plaintiff Murphy filed a charge of race discrimination against defendant with the EEOC on November 17, 1980. After finding reasonable cause to believe that plaintiff Murphy's charge was true, and failing conciliation, the EEOC issued to Murphy a Notice of Right to Sue on June 14, 1982. Plaintiffs' Exs. 6, 7, and 9; Stip. ¶ 4.

B. Plaintiffs' Prima Facie Cases of Discrimination

5. Each plaintiff submitted a written application for employment as a bottler. Murphy's application was submitted September 19, 1978, Plaintiffs' Ex. 14; Easley's, March 28, 1979; and Griffin's, April 5, 1979. Stip. ¶ 5.

6. Plaintiffs were administered defendant's written pre-employment test package for bottlers on dates scheduled by the defendant. Easley was tested June 7, 1979; Griffin, May 18, 1979; and Murphy, May 22, 1979. Stip. ¶ 6; Plaintiffs' Ex. 13.

7. Plaintiffs Easley and Griffin each failed to achieve a passing score on defendant's test, and, as a result, were eliminated from further consideration for a position with defendant. Stip. ¶ 7.

8. Easley and Griffin were qualified to perform defendant's bottler job. Defendant's plant employment coordinator, Harold Gartner, who worked for the company for over twenty-five years, was responsible for hiring bottlers at defendant's St. Louis brewery during the late 1970s and into the early 1980s. Gartner testified that he was involved in the hiring process both before and after the testing program was instituted (Tr. 1-19), and that the bottler's job was an unskilled, entry level position for which 99% of the general population was qualified. He also stated that competence in minimal entry level factory work would indicate an ability to perform the bottler's job. At the time of their applications, both Easley and Griffin had worked in factories for several years. Gartner testimony (Tr. 1-18, 1-20, 1-21); Griffin testimony (Tr. 2-42 to 2-44); Easley testimony (Tr. 2-82 to 2-85).

9. Plaintiff Murphy passed the defendant's bottler's test, was subsequently interviewed and passed at least one physical examination. Gartner determined that she was fully qualified for a job as a bottler. Despite her qualifications, Murphy was never hired by the defendant. Stip. ¶ 8; Murphy testimony (Tr. 2-10); Plaintiffs' Exs. 15 and 17. Under the circumstances, no other conclusion can be made but that she was rejected by the defendant employer.

10. Between February 1979 and February 1980, defendant hired over 300 bottlers. Plaintiffs' Exs. 13 and 29.

11. The pre-employment test package given to plaintiffs consisted of six parts: Production Problems (PP), Code Interpretation (CI), Production Arithmetic (PA), Oral Instructions (OI), Lab Math (LM), and Recorded Readings (RR). Only the scores on the first four of those tests were used in the bottler selection process during the year prior to March 1, 1980. In order to pass the entire test, an applicant had to either (1) achieve a designated cut-off score (100%) on three of the tests, or (2) achieve the cut-off score (100%) on two of the tests and score within 80% of the cut-off score on the remaining two tests. Stip. ¶ 9; Plaintiffs' Ex. 12.

12. Passing defendant's pre-employment test was a necessary prerequisite for further consideration for employment as a bottler during the entire time it was administered, from February 1979 through February 1980, the last time defendant hired new bottlers. Stip. ¶ 10.

13. Before it implemented its written pre-employment test as a selection device for bottlers, defendant knew of the likelihood that it would have an adverse impact on black applicants. Gaydos testimony (Tr. 2-193). That written paper-and-pencil tests generally disqualify a higher percentage of blacks than whites is widely known by those in the testing and employee selection fields. Gaydos, id.; Decker testimony (Tr. 1-124 to 1-126).

14. The four-part test package had a material adverse impact on black bottler applicants. Of the approximately 1,500 applicants tested (679 black, 798 white), only 30% of the black applicants passed the test, whereas 50% of the white applicants passed. Under EEOC's "four-fifths" or "80%" rule, since less than 40% (four-fifths of the white pass rate) of the blacks passed the test, the test has a material adverse impact.

Under the chi-square test of statistical significance, the probability that the difference in pass rates was the result of chance rather than race is less than one in 1,000. Applying the standard deviation method, comparing the expected pass rate for blacks (if race were not a factor in passing the test) to the actual or observed pass rate for blacks, the difference is 6.64 standard deviations. Plaintiffs' Ex. 13; Decker testimony (Tr. 1-80 to 1-83). See Plaintiffs' Ex. 8.

15. Plaintiffs' Exhibit 13 consists of a log of bottler applicants tested during 1979, and indicates the race of each applicant: in the "race" column a check under "C" or no entry means Caucasian; "N" means Negro. Voisey deposition, page 60, lines 15-23. Plaintiffs' Exhibit 13 is the only available evidence regarding bottler applicants who were disqualified during the hiring process. Despite the pendency of plaintiffs' EEOC charges and this lawsuit, other data had been purged. Voisey deposition, pp. 57-58. EEOC regulations require maintenance of "all personnel records relevant to the charge," including "application forms and test papers completed by an unsuccessful candidate and by all other candidates for the same position." 29 C.F.R. § 1602.14(a).

16. Defendant's overall selection process for bottlers had a material adverse impact on black applicants during the 1979-80 hiring period.

"Adverse impact" has been defined under the EEOC's Uniform Guidelines on Employee Selection Procedures as:

A substantially different rate of selection in hiring, promotion, or other employment decision which works to the disadvantage of members of a race, sex, or ethnic group.

29 C.F.R. § 1607.16B.

Plaintiffs' expert witness, Philip Decker, testified that the overall selection rate for black applicants was 9.1% (62 of 679 applicants), whereas the hiring rate for white applicants was 35.1% (280 of 798 applicants). In order to have satisfied the "four-fifths" ("80%") rule, the selection rate for blacks would have had to be 28.1%. Under the chi-square test, the probability that the difference in selection rates would occur by chance rather than because of race is less than one in 1,000. And using the two-standard deviation test, the difference between the expected selection rate for blacks and the observed selection rate for blacks is 8.64 standard deviations. Decker testimony (Tr. 1-77 to 1-80).

17. Of those applicants who passed the first hurdle in defendant's selection process—the written test — the hiring rate for blacks (30.4%) was substantially smaller than the hiring rate for whites (70.2%). Decker testimony (Tr. 1-85); see also Tr. 1-117 to 1-119.

18. Plaintiffs also produced evidence showing that (a) on average, black applicants were required to wait longer to be tested (214.2 days versus 101.6 days for white applicants); (b) they were generally tested later in the hiring period; and (c) as a result, their eligibility was in issue at a time when most of defendant's hiring had been achieved.

Testing occurred from February through December, 1979. With the exception of bottlers who were hired in February 1980, defendant's hiring activity was completed by June 24, 1979. Plaintiffs' Ex. 29; see also Plaintiffs' Exs. 31 and 13. Of all white applicants tested in 1979, 90.1% were tested...