Increase Minority Participation by Affirmative Change Today of Northwest Florida, Inc. (IMPACT) v. Firestone
| Decision Date | 06 February 1990 |
| Docket Number | 86-3727,Nos. 86-3623,s. 86-3623 |
| Citation | 893 F.2d 1189 |
| Parties | 52 Fair Empl.Prac.Cas. 71, 52 Empl. Prac. Dec. P 39,662 INCREASE MINORITY PARTICIPATION BY AFFIRMATIVE CHANGE TODAY OF NORTHWEST FLORIDA, INC. (IMPACT), on behalf of itself and its members, Diann Walker, Louvenia Jones, Pearlie Williams, Gracie Holton, Rosa Henderson, Delores Colston, Charles Stewart, Barbara King, Dorothy Roberts, Plaintiffs-Appellants, Jacqueline Ross, Linda Issac, Intervenors-Appellants, and Clifford Simmons, Marguerite Stewart, Plaintiffs, v. George FIRESTONE, as Secretary of the State of Florida, State of Florida, Defendants-Appellees. INCREASE MINORITY PARTICIPATION BY AFFIRMATIVE CHANGE TODAY OF NORTHWEST FLORIDA, INC. (IMPACT), on behalf of itself and its members, Diann Walker, Louvenia Jones, Pearlie Williams, Gracie Holton, Rosa Henderson, Delores Colston, Charles Stewart, Barbara King, and Dorothy Roberts, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, Clifford Simmons and Marguerite Stewart, Plaintiffs, Jacqueline Ross and Linda Issac, Intervenors-Appellants, v. George FIRESTONE, as Secretary of State of the State of Florida, and State of Florida, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Jerry Traynham, Patterson & Traynham, Tallahassee, Fla., for plaintiffs-appellants.
Kent Spriggs, Spriggs & Warren, Tallahassee, Fla., for Charles Stewart & Intervenors.
Bruce A. Minnick, Asst. Atty. Gen., Tallahassee, Fla., Richard M. Dunn, Dunn & Dresnick, P.A., Miami, Fla., for defendants-appellees in No. 86-3623.
Bruce A. Minnick, Asst. Atty. Gen., Harry F. Chiles, Tallahassee, Fla., Richard M. Dunn, Dunn & Dresnick, P.A., Miami, Fla., for defendants-appellees in No. 86-3727.
Appeals from the United States District Court for the Northern District of Florida.
Before JOHNSON and EDMONDSON, Circuit Judges, and TUTTLE, Senior Circuit Judge.
This is an appeal by the plaintiffs and intervenors from a judgment in a non-jury civil rights action in which the trial court decided all claims against the plaintiffs and intervenors.
Plaintiff Increase Minority Participation by Affirmative Change Today of Northwest Florida, Inc. (IMPACT), on behalf of its members named in the title (supra ), Clifford Simmons, and Marguerite Stewart, filed this civil rights action in 1979 against George Firestone as Secretary of State of the State of Florida and against the State itself, seeking injunctive and monetary relief from the alleged racially discriminatory practices of the defendants in hiring and promotions of black persons by the State and its officials.
The action was originally filed as a class action, was certified as such, and continued as such for approximately five years when the trial court decertified the class action, stating as a ground for doing so, that the record disclosed insufficient financing available to permit counsel properly to represent the class. 1
Subsequently, the trial court dismissed the plaintiffs' motion to require discovery of the examinations and tests and test scores of the plaintiff applicants and those of the successful employees. The plaintiffs later filed a motion to recertify the class which the court, after a hearing, denied. At the same time, it dismissed the organizational plaintiff, IMPACT, as a party to the litigation. The court held that IMPACT had no separate interest apart from that of the individual plaintiffs, and therefore, did not have standing.
The case was set for trial for March 28, 1986. On March 7, plaintiffs filed an emergency motion requesting the court to expedite its disposition of the pending motions requiring information regarding the employment examinations and other employment information. On March 26, the court held that employment tests were not an issue in the litigation but required that answers to some of the interrogatories be furnished. 2 This motion had been pending before the court for two years. The case went to trial on April 1.
Following the plaintiffs' case-in-chief, the court dismissed all disparate impact claims and dismissed the individual claims of Gracie Holton. The court issued its opinion styled "Findings of Fact and Conclusions of Law and Final Judgment" on August 11, 1986. In its memorandum, the court decided all claims against the plaintiffs and intervenors.
Much of the plaintiffs' proof was developed from the personnel records maintained by the defendants. The trial court did not decide whether, in any of the cases, the plaintiffs made out a prima facie case. However, the court proceeded to consider the defendants' explanation on the assumption that prima facie cases had been made out on all of the plaintiffs' claims.
The trial court stated:
In this case the defendant contends that the person believed to be most qualified was hired unless friendship or political connections played some role. In every instance the defendant denies that race affected the decision. Making that statement satisfied the defendants' light burden [under Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) ].
Without attempting to determine from the testimony and records introduced during the 11 day trial whether every plaintiff or intervenor made out a prima facie case, it is perfectly clear that all of the intervenors, proved that they were black employees, they had made applications for the specified positions, that the positions had been filled by another person, and that, in most if not all cases, that other person was white. Moreover, the proof adequately showed that each of the applicants was qualified for the position sought. 3 In each case, also, the position remained open after the plaintiff had been denied the appointment. In some of the personnel records introduced by the plaintiffs or the defendants, it is clear that with respect to either education, prior experience, or training, the applicant was superior to that of the successful applicant. It is also clear from some of the personnel records that the white applicant was superior on one or more of the same "qualifications." With respect to others, the plaintiffs offered no proof as to the relative qualifications of the successful applicant.
The defendants' principal personnel official, who was first employed by the defendant in 1984, after the case had been pending nearly five years, testified that it was the general practice of the defendant to hire the "most qualified" applicant. There was no testimony as to what the defendants considered as a "qualification." Nor was there even any testimony by any person who made the employment decision that the particular selectee was chosen as better qualified.
The plaintiff tendered its expert witness, Dr. Dyson, for the purpose of analyzing the evidence of employment actions by the defendants. His testimony, if it had been accepted by the trial court, was clearly sufficient to establish a statistical disparity between the employment actions taken in favor of black applicants as against those taken in favor of whites. However, the defendants also produced an expert witness who used a different benchmark and database than those used by plaintiffs' expert and the court determined that Dr. Dyson The court rejected Dr. Dyson's testimony in favor of that of the defendants' expert and rejected his statistical evidence.
The Assistant Secretary of State, testifying for the defendants, gave evidence that the final selection of each employee was intended to be, and actually was, subjective. 4 There was ample evidence in the record that the overwhelming proportion of the persons making the hiring decision were white persons.
(1) Did the defendants properly articulate "a legitimate non-discriminatory reason" for the employment decisions when the trial court assumed that a prima facie case had been made out by the plaintiffs?
(2) Whether the trial court erred in not making a specific finding that a prima facie case had been made out, based on the expert testimony offered by plaintiffs.
(3) Whether the trial court erred in not recertifying the case as a class action.
(4) Did the trial court err in eliminating the employment examination issue?
(5) Did the court improperly dismiss the claims of plaintiff Holton?
These are the only claims we think merit attention on appeal.
1. Underlying the entire judgment of the trial court is plaintiffs' contention that the trial court, once it assumed that prima facie cases had been made out by the plaintiffs and intervenors, erred in failing to require the defendants adequately to "articulate some legitimate, non-discriminatory reason" for its employment actions. The Supreme Court in Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), carefully described the burden that shifts to the defendant once a prima facie case is made out. The Court there said:
The burden that shifts to the defendant, therefore, is to rebut the presumption of discrimination by producing evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, non-discriminatory reason. The defendant need not persuade the court that it was actually motivated by the proffered reasons. It is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff. To accomplish this, the defendant must clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiff's rejection. The explanation provided must be legally sufficient to justify a judgment for the defendant...
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