Johnson v. Uncle Ben's, Inc.

• Decision Date: 01 July 1992
• Docket Number: No. 91-2590,91-2590
• Citation: 965 F.2d 1363
• Parties: 59 Fair Empl.Prac.Cas. (BNA) 483, 59 Empl. Prac. Dec. P 41,641, 61 USLW 2093 Thomas JOHNSON, Plaintiff-Appellant, v. UNCLE BEN'S, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1363

965 F.2d 1363

59 Fair Empl.Prac.Cas. (BNA) 483,

59 Empl. Prac. Dec. P 41,641, 61 USLW 2093

Thomas JOHNSON, Plaintiff-Appellant, v. UNCLE BEN'S, INC., Defendant-Appellee.

No. 91-2590.

United States Court of Appeals Fifth Circuit.

July 1, 1992.

Carol Nelkin, Nelkin & Nelkin, Houston, Tex., for plaintiff-appellant.

Philip Pfeiffer, Fulbright & Jaworski, San Antonio, Tex., for defendant-appellee.

William C. Isbell, Grand Prairie, Tex., amicus curiae.

Appeal from the United States District Court for the Southern District of Texas.

Before WILLIAMS, JOLLY, and HIGGINBOTHAM, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

This employment discrimination class action has been in the federal courts for eighteen years, a captive to large changes in the controlling law. It now makes its third appearance before this court. On behalf of himself and similarly situated class members, Thomas Johnson appeals the grant of summary judgment in favor of Uncle Ben's, Inc. We affirm.

I.

Thomas Johnson, an employee at a rice-processing plant owned by Uncle Ben's, Inc., filed this suit in 1974. The complaint alleged that, commencing in March 1972, UBI discriminated against him and similarly situated Black and Mexican-American employees in violation of 42 U.S.C. § 1981. He amended the complaint in 1975 to add a claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.

The district court certified a class of Black and Mexican-American persons who have been employed or may in the future be employed by UBI. The case was tried to the bench from October 3 until October 21, 1977. At the conclusion of Johnson's direct case, the district court dismissed all claims except discrimination in the promotion of Black employees. UBI then called its personnel manager and three expert witnesses. At the conclusion of Johnson's direct examination of an expert rebuttal witness, the district court granted judgment in favor of UBI.

The first district court opinion held that the proportion of Blacks to whites in each job title at UBI should be compared to the ratio of Black to white workers in comparable jobs in the Houston Standard Metropolitan Statistical Area. Finding that the ratio of Black to white workers in each job title at UBI was similar to the proportion of Black to white workers in comparable jobs in the Houston SMSA, the district court held that UBI had not violated Title VII. Johnson v. Uncle Ben's, Inc., 628 F.2d 419, 425 (5th Cir.1980).

We in turn vacated and remanded for further findings, holding that workers employed in similar jobs in the Houston SMSA were not necessarily the benchmark qualified applicant pool. Johnson v. Uncle Ben's, Inc., 628 F.2d 419 (5th Cir.1980). We stated:

"If [UBI] hires laterally, the relevant comparison is to the general or qualified outside labor force. If Uncle Ben's fills jobs by promotion, the relevant comparison, as we recognized in James v. Stockham Valves & Fittings Co., 559 F.2d at 331, 341 [ (5th Cir.1977) ], is the company's internal work force. The applicability of James in any given case turns on whether vacancies in non-entry level positions are or could be filled by promotion. If the vacant positions ordinarily are filled by lateral hires or hiring from among graduates of relevant educational programs, then the rigid James rule is inapplicable."

Johnson I, 628 F.2d at 425. We remanded for findings regarding "how many of those 394 employees [at UBI] hold jobs that ordinarily cannot be filled by promotion." Id. This district court was instructed to "determine the number of Uncle Ben's jobs that were filled by promotion and the number that were filled by hiring from outside of the Uncle Ben's work force." Id. at 426.

The Supreme Court, however, vacated Johnson I and remanded the case for reconsideration in light of its decision in Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Uncle Ben's, Inc. v. Johnson, 451 U.S. 902, 101 S.Ct. 1967, 68 L.Ed.2d 290 (1981). On remand, we held that Burdine was inapplicable to this disparate impact case and again remanded to the district court for further proceedings as stated in Johnson I. Johnson v. Uncle Ben's, Inc., 657 F.2d 750 (5th Cir.1981).

Judge Sterling, who originally tried this case and issued the first district court opinion reviewed in Johnson I, died while this case was pending. The case was then assigned to Judge Hughes. On May 2, 1991, Judge Hughes granted summary judgment in favor of UBI. In his opinion, Judge Hughes stated that judgment for UBI was appropriate because Johnson had failed to make a prima facie case of disparate impact and had not stated an actionable claim under § 1981.

The district court held that Johnson proved only that there was a "high percentage of Black employees at Uncle Ben [sic] in low-level jobs versus a low percentage of minority employees in high level jobs." Because Johnson failed to prove that low level employees were the appropriate pool of qualified persons in the relevant labor market, he failed to prove any disparate impact.

The district court also found that Johnson failed to prove that any specific employment practice had a disparate impact upon the rate of Black promotion and that UBI had, in any event, rebutted any prima facie case by producing legitimate business reasons for its employment practices. Finally, relying on Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), the district court rejected Johnson's § 1981 claim, finding that the claim did not rest on discrimination in the formation of a new employment contract.

The trial evidence consists largely of statistics concerning placement of Black and white employees at UBI's two processing plants and administrative offices in Houston, Texas. UBI's workforce is organized into three categories--plant workers paid an hourly wage, office workers paid an hourly wage, and salaried personnel. Each group is, in turn, subdivided into "zones," each zone representing a wage or salary range.

Johnson presented undisputed statistical evidence that Black employees were generally clustered in the bottom job zones within each of the three job categories, while the top job zones in each category were filled by white employees. Black employees comprise 95.3% of the workforce in the three lowest plant hourly job zones, holding jobs as porters, warehousemen, packers, fork lift operators, fumigators, bran hull helpers, rough rice helpers, and mill helpers. However, white employees held all of the highest two plant hourly job zones, including maintenance first class, boiler operator, and miller first class. The patterns were similar in office hourly and salaried positions. That is, Blacks were in the lowest office job zones, such as cafe porter, junior file clerk, and cook, and lowest salaried positions, including microbiology analyst and accountant. Whites held jobs in the higher zones in both office and salaried categories, including stenographer, export service clerk, receptionist, and computer operator and most of the salaried managerial and supervisory positions.

Johnson did not deny that promotion across category lines, while possible, was unusual. Generally, workers were promoted only to the top of the job category in which they start their employment. However, the parties fiercely disputed the lines of promotion within each of the three job categories. UBI argued at trial and on appeal that workers qualified to hold jobs in the lower zones of a job category were not necessarily qualified to hold higher jobs in the same category.

Johnson replied that the court should look to lower job zones as the qualified applicant pool for the higher job zones because the natural line of progression was a low level entry followed by gradual promotions through the job zones rising through the plant, office, or salaried hierarchy. He argues that Black employees were not promoted at the same rate as whites. Black workers entered at a low level and stayed there, stopped by a glass ceiling of race discrimination.

Johnson offered data showing that most jobs at UBI were filled through promotion. According to Johnson's undisputed evidence, in March of 1972, 65.3% of all the salaried positions, 53.6% of the office hourly positions, and 91.0% of the plant hourly positions at UBI were filled by promotion and not by initial hire from outside the UBI workforce. Johnson's data, however, said little about which jobs at UBI were filled by promotion or, more importantly, from which jobs different UBI jobholders were promoted.

II. Johnson's Title VII Claim

Johnson contends that three of UBI's employment practices--tests, formal educational requirements, and subjective promotion decisions by supervisors--had the effect of denying promotions to a disparate proportion of Black employees. For his prima facie case of disparate impact, Johnson "need[ed] only show that the facially neutral employment standards operate more harshly on one group than another." Carpenter v. Stephen F. Austin State University, 706 F.2d 608, 621 (5th Cir.1983). This initial burden included proof of a specific practice or set of practices resulting in a significant disparity between the proportion of Black employees at UBI and the proportion of Blacks in the pool of qualified applicants. Cox v. City of Chicago, 868 F.2d 217, 220 (7th Cir.1989).

Statistical disparities between the relevant labor pool and UBI's workforce are not sufficient. Pouncy v. Prudential Ins. Co. of America, 668 F.2d 795, 800-801 (5th Cir.1982). A plaintiff must offer evidence "isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities." Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642, 109 S.Ct. 2115, 2124, 104 L.Ed.2d 733 (1989) (quoting Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 108 S.Ct. 2777, 2788, 101 L.Ed.2d 827 (1988...