Garner v. Runyon

• Decision Date: 18 April 1991
• Docket Number: No. 90-AR-1296-NW.,90-AR-1296-NW.
• Citation: 769 F. Supp. 357
• Parties: Louis W. GARNER, Plaintiff, v. Marvin T. RUNYON and John B. Waters, in their official capacities as Members of the Board of Directors for Tennessee Valley Authority, Defendants.
• Court: U.S. District Court — Northern District of Alabama

769 F. Supp. 357

Louis W. GARNER, Plaintiff, v. Marvin T. RUNYON and John B. Waters, in their official capacities as Members of the Board of Directors for Tennessee Valley Authority, Defendants.

No. 90-AR-1296-NW.

United States District Court, N.D. Alabama, Northwestern Division.

April 18, 1991.

Curtis M. Simpson, Florence, Ala., for plaintiff.

Edward S. Christenbury, Justin M. Schwamm, Sr., Thomas F. Fine, Philip J. Pfeifer, Tennessee Valley Authority, Knoxville, Tenn., for defendants.

MEMORANDUM OPINION

ACKER, District Judge.

This case is before the court on motion for summary judgment filed by defendants Marvin Runyon and John Waters, as Directors of Tennessee Valley Authority.

Pertinent Undisputed Facts

Between March and June of 1987, TVA posted two notices of vacancies, Vacancy Announcement Number TLBFN-28 (VA-28) and Vacancy Announcement Number TLBFN-29 (VA-29), which were designed to fill approximately 75 nuclear plant laborer positions on the so-called "annual schedule". At TVA nuclear plant laborers on the "annual schedule" are paid more, receive better benefits, and have higher retention standing than nuclear plant laborers on the so-called "temporary hourly schedule". This means, of course, that the jobs are more desirable.

Of the approximately 75 persons ultimately selected to fill vacancies under VA-28 and VA-29, 21 were black. This percentage of blacks selected in response to the two announcements, considered in the aggregate, was virtually the same as the percentage of blacks in the entire applicant pool. However, of the 22 selections under VA-28, considered separately from VA-29, only one was black. This single black hire was a retroactive placement made in August of 1988. The hires under VA-28 were made in June and/or July of 1987. Plaintiff, Louis Garner, who is black and who applied, was not selected under either announcement.

Both announcements were made in compliance with the terms of the General Agreement between TVA and the Tennessee Valley Trades and Labor Council, a collective bargaining agreement which at the time of the announcements had been revised through May 13, 1986. In selecting among the applicants who responded to VA-28 and VA-29, TVA determined whether or not each applicant met certain so-called "must-criteria". Applicants had to meet the "must-criteria" in order to be minimally qualified. One criterion, and the one here challenged by Garner as being discriminatory, was the requirement that applicants for "annual schedule" positions in a nuclear plant have no record of disciplinary suspension or termination occurring on or subsequent to January 1, 1985. TVA ascertained that Garner did not meet the minimum qualifications under this facially objective criterion. He had been suspended from work between February 26 and March 7, 1986, for assaulting a co-worker while working as a nuclear plant laborer on the temporary hourly schedule at Brown's Ferry. Garner admits this assault. No one with a disciplinary record like Garner's was selected under either announcement.

After not being selected, Garner pursued his administrative remedies and fulfilled all administrative prerequisites to filing this suit.

In the pre-trial order entered in this case, Garner makes no claim based on the hiring practices under VA-29. He only complains about VA-28 as it was applied to him. The court is not sure why Garner does not complain under VA-29 TVA which had an affirmative action plan that gave certain applicants who passed minimum qualifications additional points or a preference. This court has had experience with TVA's affirmative action programs. See Liao v. Dean, 658 F.Supp. 1554 (N.D.Ala.1987), rev'd by Liao v. Tennessee Valley Authority, 867 F.2d 1366 (11th Cir.1989), cert. denied, Liao v. Dean, ___ U.S. ___, 110 S.Ct. 1806, 108 L.Ed.2d 937 (1990). Whether or not influenced by this affirmative action program, but admittedly under a different selection process in November of 1988, after sufficient time had lapsed since his disciplinary infraction, Garner was selected for an annual nuclear plant laborer position under a later vacancy announcement. This fact may or may not explain Garner's not complaining about VA-29.

Defendant Marvin Runyon is Chairman of the Board of Directors of TVA. Defendant John Waters is the only other member of the Board.

Conclusions of Law

This court has federal question jurisdiction under 28 U.S.C. § 1331 because Garner claims that he was discriminated against based on his race in an employment decision made by a federal employer, namely, TVA. If true, such an act of discrimination is proscribed by Title VII, 42 U.S.C. § 2000e-16.

In the pre-trial order the only Title VII theory advanced by Garner is one of disparate impact. However, under Rule 56 consideration the court will look at Garner's claim as if it were a disparate treatment claim as well as a disparate impact claim.

Despite a court's understandable and routine reluctance to decide a Title VII case on a Rule 56 motion, "summary judgments for defendants are not rare in employment discrimination cases." Earley v. Champion Int'l Corp., 907 F.2d 1077 (11th Cir.1990), citing, Mauter v. Hardy Corp., 825 F.2d 1554 (11th Cir.1987); Grigsby v. Reynolds Metals Co., 821 F.2d 590 (11th Cir.1987); Palmer v. District Bd. of Trustees, 748 F.2d 595 (11th Cir.1984); Pace v. Southern Ry. Sys., 701 F.2d 1383 (11th Cir.), cert. denied, 464 U.S. 1018, 104 S.Ct. 549, 78 L.Ed.2d 724 (1983); Simmons v. McGuffey Nursing Home, Inc., 619 F.2d 369 (5th Cir.1980). Whether or not rarely used, Rule 56 is a rule adopted for a reason.

In order to make out a prima facie case of disparate treatment under Title VII, Garner must prove:

1) that he was a member of a protected class,

2) that he was qualified for the position for which he applied,

3) that TVA was seeking to select persons of his qualifications, and

4) that a person outside of the protected class, with similar or lesser qualifications, was selected.

See Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, n. 6, 101 S.Ct. 1089, 1094, n. 6, 67 L.Ed.2d 207 (1981), citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). If such a prima facie case had been presented by Garner, he would have established a "rebuttable presumption" of discrimination, but this presumption, which does not exist here, would disappear if TVA has articulated a legitimate non-discriminatory reason for its action. Burdine, 450 U.S. at 254, 257-58, 101 S.Ct. at 1094, 1095-96. The last piece of this disparate treatment model allows Garner to overcome TVA's articulation of a legitimate reason for selecting someone else by a showing that the articulated reason was nothing but a pretext for the real motivation, namely, Garner's race. Id.

Garner's prima facie case is not made out because he has put forth no evidence that he was "qualified" under the requirements of VA-28 or VA-29. It therefore becomes obvious why he did not attempt a disparate treatment theory. He does not dispute the fact that he had the proscribed disciplinary blemish on his record, nor does he dispute that he was treated just as all those who had been disciplined during the job precluding time period were treated. No one with such a disciplinary record was selected, black, white, male or female. Therefore, Garner does not and cannot make out a prima facie case of discrimination under a disparate treatment analysis, making it unnecessary to evaluate TVA's articulated nondiscriminatory reason for the non-selection. "In the absence of a showing of disparate impact, then, the establishment, without validation through proof of business necessity, of a legitimate, nondiscriminatory requirement for selection actually applied and enforced satisfied defendants' disparate treatment burden." Foster v. Bd. of School Comm'rs, 872 F.2d 1563, 1568-69 (11th Cir.1989).

The only theory asserted by Garner in the pre-trial order is the theory of disparate impact. Disparate impact claims under Title VII seek to prove that certain facially neutral employment practices have significant adverse effects on protected groups, even in the absence of evidence that those practices were adopted with discriminatory motive or intent. Watson v. Ft. Worth Bank and Trust, 487 U.S. 977, 986-87, 108 S.Ct. 2777, 2784, 101 L.Ed.2d 827 (1988). "The evidence in these `disparate impact' cases usually focuses on statistical disparities rather than on specific incidents, and on competing explanations for those disparities." Id. at 987, 108 S.Ct. at 2784. Disparate impact cases therefore focus on the impact that a particular hiring or firing practice has on employment opportunities for protected class members. Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 109 S.Ct. 2115, 104 L.Ed.2d 733 (1989).

To have made out a prima facie case under his disparate impact theory, Garner must have demonstrated that defendants employed a facially neutral employment practice that had a significant discriminatory effect as applied to blacks. Stephen v. PGA Sheraton Resort, Ltd., 873 F.2d 276, 279 (11th Cir.1989). However, in addition to identifying a specific employment practice (in this case the requirement that there be no disciplinary record for a twenty-four month period preceding application), and showing statistical disparities, causation must be demonstrated. Watson, 487 U.S. at 994, 108 S.Ct. at 2788-89. "Plaintiff must offer statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion of applicants for jobs or promotions because of their membership in a protected group." Id. (emphasis supplied). Once a prima facie case appears, if it does, defendants must show that the complained of practice has significant and legitimate bearing on the employment decision in question and is therefore justifiable as a business necessity. Stephen, 873 F.2d at 279 (citations...