Griffin v. Carlin
| Decision Date | 28 March 1985 |
| Docket Number | No. 84-3070,84-3070 |
| Citation | 755 F.2d 1516 |
| Parties | 37 Fair Empl.Prac.Cas. 741, 36 Empl. Prac. Dec. P 35,132, 1 Fed.R.Serv.3d 294 Ernest L. GRIFFIN, et al., Plaintiffs-Appellants, Cross-Appellees, v. Carl CARLIN, Postmaster General, Defendant-Appellee, Cross-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Charles S. Ralston, Penda Hair, Gail J. Wright, New York City, for plaintiffs-appellants, cross-appellees.
John E. Lawlor, III, Jacksonville, Fla., Wyneva Johnson, Lynn D. Poole, Stephen E. Alpern, Office of Labor Law U.S. Postal Service, Washington, D.C., for defendant-appellee, cross-appellant.
Appeals from the United States District Court for the Middle District of Florida.
Before KRAVITCH and JOHNSON, Circuit Judges, and TUTTLE, Senior Circuit Judge.
Ernest Griffin and 21 other black employees and former employees 1 of the United States Postal Service at Jacksonville, Florida, appeal from a decision of the district court finding no classwide or individual discrimination under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Sec. 2000e-16. Appellants contend that the district court erred in excluding their challenge to written tests used in the promotion process, in excluding all disparate impact claims, and in finding no disparate treatment in promotions, awards, discipline, and details. On cross-appeal, the Postal Service argues that the district court erred in allowing a third-party complaint to serve as the administrative basis for this suit and in certifying this suit as a class action.
On August 29, 1971, Griffin filed with the United States Civil Service Commission a complaint under the third-party complaint procedure authorized by then-current regulations of the Commission and of the Postal Service. 5 C.F.R. Sec. 713.204(d)(6) (1971); 39 C.F.R. Sec. 747.5(a) (1971). The complaint stated:
Please accept this letter as a third party discrimination complaint against Postmaster J.E. Workman of the Jacksonville, Florida Post Office. This discriminatory complaint is based on race since qualified blacks were and are still being systematically excluded in training and development and opportunities for advancements.
The Postal Service investigated the complaint and found no discrimination.
On July 7, 1972, plaintiffs filed a class action suit in federal district court challenging defendant's use of discriminatory assignment and promotion methods and other discriminatory employment practices. On January 9, 1973, the district court entered an order authorizing plaintiffs to proceed as representatives of a class and dismissing that portion of the plaintiffs' complaint which challenged the use of written tests in the promotion process. The dismissal was based on the court's finding that plaintiffs had failed to exhaust administrative remedies as to the testing issue.
In 1976, plaintiff Griffin was fired from the Postal Service. He appealed the discharge under the then-existing regulatory scheme to the United States Civil Service Commission. In that appeal, he raised the claim that he had been discriminated against because of his race and that the action was part of a pattern and practice of racial discrimination and reprisal against those persons challenging discrimination. Griffin timely filed a supplemental complaint in the present action raising those claims. On the district court's order, a consolidated amended complaint was filed on November 12, 1981. This complaint again alleged discrimination against blacks in defendant's assignment and promotion methods and other employment practices.
On September 8, 1982, the district court dismissed plaintiffs' disparate impact claims on the grounds that plaintiffs' pleadings had failed to put defendants on notice as to which employment practices would be challenged on this theory and that only objective, facially neutral employment practices could be challenged on a disparate impact theory. Thus, the case proceeded to trial on a disparate treatment theory.
The Jacksonville Post Office employed an average of 1,880 persons during the period covered by this lawsuit. Approximately 32 percent of these employees were black. The employees included clerks, mail handlers, city carriers, window clerks, and motor vehicle operators.
The Jacksonville Post Office promotes persons to supervisory positions almost entirely from within its work force. The process for promotion to initial supervisory positions has undergone some changes during the period covered by the lawsuit. In 1968, the Post Office used two written examinations, one for vehicle services and one for the post office branch. In order to be placed on the supervisory register and be eligible for promotion, employees had to attain a particular score on the examination. The top 15 percent of the employees on the register were placed in the "zone of consideration" and were notified of supervisory vacancies. In 1972, the zone of consideration standard was eliminated and persons who had attained a passing score on the examination were evaluated and graded by their supervisors. Those receiving an "A" rating were eligible for immediate promotion. In 1976, the examination was eliminated and employees were instead required to complete a training program as a precondition for promotion. In 1978, the Postal Service initiated the Profile Assessment System for Supervisors (PASS) which made eligibility for the supervisory registers dependent on both supervisory assessment and self-assessment. No written examination was used under the PASS program. Under all of these promotion systems, promotion advisory boards interviewed and recommended eligible candidates for promotion, and the final selection was made by the Postmaster.
Both plaintiffs and defendants relied heavily on statistical data. Plaintiffs' statistics showed that blacks are far more likely to hold jobs at level 4 or lower and far less likely to hold jobs at or above level 7, the initial supervisory level. 2 According to plaintiffs, the probabilities that the grade distributions shown in their tables would occur by chance are one in 10,000. Plaintiffs' statistics showed that while 35 percent of the work force is black, blacks held only 5 percent of all supervisory jobs in 1969 and only 21 percent in 1981. These statistics also indicated that blacks were promoted to supervisory positions in numbers far lower than expected from 1964 through 1976. Plaintiffs contend that the key to the under-representation of blacks in supervisory positions is their under-representation on the supervisory registers. Their statistics indicated that the probabilities that the number of blacks on the registers could have occurred by chance ranged from 15 in one hundred trillion in 1968 to 67 in 100,000 in 1977. 3
Plaintiffs' statistics were based on the use of the entire craft work force of the Jacksonville Post Office as the applicant pool for supervisory positions. The government contends that the appropriate pool is those individuals on the supervisory registers. Using this pool, the government's statistics showed no evidence of systemic discrimination against blacks seeking supervisory positions.
Plaintiffs' statistics showed a consistent statistically significant over-disciplining of blacks in comparison to their numbers in the relevant work force. Blacks, who constitute 35 percent of the work force, received between 52 and 67 percent of the discipline. 4 The government concedes that blacks are disciplined more often than whites, but argues that factors other than race explain the disparity. Defendants' statistics illustrated that black employees at the Jacksonville Post Office are, on the average, younger than white employees and take more time off from work. The Postal Service statistics also demonstrated that, controlling for the number of previous offenses, black employees did not receive more severe punishment than white employees.
In finding no discrimination, the district court held that plaintiffs' statistical tables had negligible probative value. This finding was based in part on the court's determination that plaintiffs' expert had failed to control for relevant variables, such as the fact that promotions were made only from those on the supervisory registers. In addition, the court noted that defendants were able to point out errors in many of plaintiffs' tables, that many of plaintiffs' tables provided no raw data, and that the credibility of plaintiffs' expert was undercut by his presentation at the last minute of a substantially new statistical report. The court found the report prepared by defendant's expert to be a reliable and credible analysis of the promotion practices at the Post Office. The court also found that, based upon the government's statistics, it is likely that there were different characteristics, patterns of conduct, or reactions to circumstance which explain the different levels of discipline.
Appellants introduced the testimony of 24 black class members to bring their statistical evidence to life. The district court concluded that appellants had not produced a single witness who had demonstrated a claim of discrimination. The court found that many of plaintiffs' witnesses were not believable, that others were mistaken that they were eligible for promotion, that others were not as qualified as the employee selected, that some of the promotions challenged had gone to black employees, and that there were other non-discriminatory reasons to explain the other alleged instances of discrimination.
The district court's order of January 9, 1973, dismissed that portion of plaintiffs' complaint challenging the use of written tests as a condition of promotion. The court noted that the requirement of exhaustion of administrative remedies is satisfied when the issues (a) are expressly raised in the pleadings before the...
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