Image of Greater San Antonio, Tex. v. Brown

• Citation: 570 F.2d 517
• Decision Date: 30 March 1978
• Docket Number: No. 76-2251,76-2251
• Parties: 17 Fair Empl.Prac.Cas. 87, 11 ERC 1529, 16 Empl. Prac. Dec. P 8277, 8 Envtl. L. Rep. 20,324 IMAGE OF GREATER SAN ANTONIO, TEXAS, et al., Plaintiffs-Appellants, v. Harold BROWN, Secretary of Defense, et al., Defendants-Appellees. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, A.F.L., C.I.O., LOCAL 1617, et al., Plaintiffs-Appellants, v. Harold BROWN, Secretary of Defense, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 517

570 F.2d 517

17 Fair Empl.Prac.Cas. 87, 11 ERC 1529,

16 Empl. Prac. Dec. P 8277, 8 Envtl. L. Rep. 20,324

IMAGE OF GREATER SAN ANTONIO, TEXAS, et al., Plaintiffs-Appellants, v. Harold BROWN, Secretary of Defense, et al., Defendants-Appellees.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, A.F.L., C.I.O., LOCAL 1617, et al., Plaintiffs-Appellants, v. Harold BROWN, Secretary of Defense, et al., Defendants-Appellees.

No. 76-2251.

United States Court of Appeals Fifth Circuit.

March 30, 1978.

Warren Weir, San Antonio, Tex., for Image of Greater San Antonio, texas.

James M. Heidelberg, Jr., San Antonio, Tex., for Local 1617.

John E. Clark, U. S. Atty., Hugh P. Shovlin, Archie Carl Pierce, Asst. U. S. Attys., San Antonio, Tex., for Sec. of Defense.

Appeal from the United States District Court for the Western District of Texas

Before INGRAHAM, GEE and TJOFLAT, Circuit Judges.

GEE, Circuit Judge:

Plaintiffs Image of Greater San Antonio and American Federation of Government Employees, A.F.L., C.I.O., Local 1617, filed separate suits against the Secretary of Defense and others challenging a proposed reduction in force (RIF) at Kelly Air Force Base. Plaintiffs alleged in their complaints that the Air Force's failure to file an Environmental Impact Statement (EIS) violated the National Environmental Policy Act of 1969 (NEPA) § 102, 42 U.S.C. § 4332 (1970), and that the proposed discharge of a substantial number of Mexican-Americans violated Title VII, 42 U.S.C. § 2000e-2 et seq. (1970). The district judge consolidated the cases. After a hearing on plaintiffs' motion for a preliminary injunction, the district court denied plaintiffs' motion and granted defendants' motion to dismiss. ¹ Plaintiffs appeal.

The facts are not in dispute. The RIF at Kelly AFB was the result of a series of events and decisions originating with the congressional decree that the number of civilian employees within the Department of Defense be reduced by 22,500 in fiscal 1976. Department of Defense Appropriation Authorization Act of 1976, Pub.L.No. 94-106, 89 Stat. 531 (1975). In compliance with the Act, the Secretary of Defense allocated reductions among the Army, Navy and Air Force. Within the Air Force, the Air Force Logistics Command (AFLC) was directed to reduce its manpower by 6,142 employees. The major part of this reduction was achieved by means other than involuntary discharge. In the end only about 2,500 employees had to be fired. Of these, about one-half had been employed at Kelly.

In determining how the cutbacks would be distributed among the five AFLC centers, the Air Force analyzed its mission requirements and compared them with the skills of the civilian employees at the various centers. A "skills imbalance" had developed since 1970 as the Air Force had achieved previously mandated reductions by a combination of natural attrition and a freeze on hiring. Since the flying time of planes for which Kelly AFB had primary maintenance responsibility had been reduced significantly, the Air Force decided that the greatest number of terminations would take place at Kelly. Once that decision was made, the Air Force eliminated those job positions at Kelly which it considered unnecessary. This was done solely on the basis of job classification. The Air Force had no knowledge of the names or identities of the employees in those positions until after the termination decision had been made. Approximately 250 of the employees ultimately discharged refused offers of lateral transfers to other Air Force bases.

TITLE VII

Plaintiffs contend that the RIF at Kelly AFB violated Title VII because a disproportionate number of Mexican-Americans were discharged. Plaintiffs presented statistical evidence which showed that although 53% ² of the civilian employees at Kelly were Mexican-Americans, 70.3% Of the employees whose positions were eliminated were Mexican-Americans. Plaintiffs also contend that since 84% Of all Mexican-American civilian employees within AFLC are employed at Kelly, the elimination of more job positions there than at any other AFLC base necessarily had a disproportionate impact on those employees. The figures presented by plaintiffs are not in dispute.

The veracity of the Air Force's explanation of its action is likewise not at issue. As described above, the final decision of which job positions to eliminate was the last step in a long hike. In essence, the Air Force decided to eliminate these positions because: (1) it was compelled to reduce the civilian workforce; (2) the flight time of C-5 cargo planes and B-52 bombers had been reduced by 282,000 hours in the last year; (3) Kelly AFB had primary responsibility for the maintenance of these planes; and (4) less flying time means less maintenance. The vast majority of jobs eliminated at Kelly were in the maintenance division.

Plaintiffs rely on Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), and assert that they have made out a prima facie case of discrimination prohibited by Title VII. Under Griggs, once the plaintiff establishes a prima facie case, whether by statistical evidence or otherwise, the burden shifts to the defendant to come forward with evidence that he acted not out of some form of racial bias but on the basis of a substantial business reason. When the plaintiff's claim goes to intentional discrimination, the employer can rebut the prima facie case against him by articulating "some legitimate, non-discriminatory reason" for his action. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). When the plaintiff's claim is that regardless of intent or purpose the defendant's action had a disproportionate impact on a minority group protected by Title VII, the employer cannot rebut plaintiff's prima facie case merely by showing that he acted for "some legitimate, non-discriminatory reason." The standard that defendant's rebuttal evidence must meet, as announced in Griggs, is more stringent: the employer must come forward with a compelling business interest which justifies his employment practice or decision. ³

Whether Griggs persists in its full scope is a somewhat vexed question. Although recent Supreme Court cases dealing with related issues have referred approvingly to the standards announced in Griggs, see Washington v. Davis, 426 U.S. 229, 236, 96 S.Ct. 2040, 2046, 48 L.Ed.2d 597 (1976); International Brotherhood of Teamsters v. United States, 431 U.S. 324, 348, 97 S.Ct. 1843, 1861, 52 L.Ed.2d 396 (1977), the actual holdings in those cases make us wonder. In Davis the Court held that disproportionate impact, when used as a separate doctrine and not as evidence tending to show purposeful discrimination, does not rise to the level of a constitutional violation. After specifically rejecting any notion that Title VII standards apply in constitutional cases, the Court went on to hold that the test administered to those seeking to become police officers also passed the statutory test. ⁴ The Court held that the defendant employer had rebutted plaintiff's prima facie case based on disproportionate impact by showing that performance on the test, which measured verbal skills, was related to performance at the police academy. The Court did not think it necessary for defendants to prove that scores on the test were related to actual job performance, a requirement clearly established in Griggs. ⁵ The Court similarly did not require proof that performance at the training academy is indicative of performance on the job. Thus, the Court was not relying on a transitive property of relatedness, i. e., (1) test performance is related to academy performance; (2) academy performance is related to job performance; therefore (3) test performance is related to job performance. The Court merely noted that the "advisability of the police recruit training course . . . seem(ed) conceded." 426 U.S. at 250, 96 S.Ct. at 2052.

The only relationship shown to exist between test performance and job performance was through the training program. The Court found it sufficient that the training program was "advisable." Such a tenuous relationship between a test, which concededly had a disproportionate impact on blacks, and job performance seems a long way from satisfying the standards set out in Griggs. "Advisability," likewise, seems a far call from "business necessity." An "advisability" standard would have necessarily led to approval of the high-school equivalence and general-intelligence tests struck down in Griggs. It is certainly "advisable" for an employer to seek some minimum education and intelligence in the people he hires. Cf. Davis, 426 U.S. at 250, 96 S.Ct. at 2052 ("It is also apparent to us . . . that some minimum verbal and communicative skill would be very useful, if not essential, to satisfactory progress in the training regimen.").

Similarly, in Teamsters the Court held that a seniority system which perpetuated the effects of prior intentional discrimination against minorities did not violate Title VII. Although the holding was grounded in § 703(h) of the Act, which provides special treatment for seniority systems, it too seems to derogate the broad theme of Griggs: "Under the Act, practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to 'freeze' the status quo of prior discriminatory employment practices." 401 U.S. at 430, 91 S.Ct. at 853. Nothing we can imagine could retard the "thawing" of the status quo of prior discrimination more than a seniority system in which the rights and privileges of an employee vis-a-vis his co-workers continue to be defined by his race.

We are nonetheless certain that something remains of Griggs, something very important. Griggs continues to stand soundly for the proposition that an employer cannot require supererogatory qualifications for a job if requiring such superfluous attributes has a...