Kilgo v. Bowman Transp., Inc.

• Decision Date: 20 May 1983
• Docket Number: Civ. A. No. C79-674A.
• Citation: 570 F. Supp. 1509
• Parties: Oscar KILGO, et al., Plaintiffs, v. BOWMAN TRANSPORTATION, INC., Defendant.
• Court: U.S. District Court — Northern District of Georgia

570 F. Supp. 1509

Oscar KILGO, et al., Plaintiffs, v. BOWMAN TRANSPORTATION, INC., Defendant.

Civ. A. No. C79-674A.

United States District Court, N.D. Georgia, Atlanta Division.

May 20, 1983.

COPYRIGHT MATERIAL OMITTED

Christopher Coates, Laughlin McDonald, Neil Bradley, American Civil Liberties Union, Atlanta, Ga., Isabelle Katz Pinzler, John E. Bertin, American Civil Liberties Union, New York City, for plaintiffs.

James W. Wimberly, Jr., James P. Cobb, E. Ray Stanford, Jr., Atlanta, Ga., for defendant.

ORDER

SHOOB, District Judge.

Edna Kilgo filed this class action lawsuit under Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq., on April 23, 1979, alleging sexual discrimination by defendant Bowman Transportation, Inc., (Bowman). On March 31, 1980, the Court allowed an amendment of plaintiff's complaint to add plaintiff Virginia Wentz as a party plaintiff. Kilgo v. Bowman Transportation, Inc., 87 F.R.D. 26 (N.D.Ga.1980). In the said order, the Court also allowed for the substitution of Mrs. Kilgo's husband, Oscar Kilgo, as a party plaintiff in his capacity as a representative of the estate of Edna Kilgo, who died subsequent to the filing of this action. Defendant Bowman is an interstate trucking company which maintains its executive headquarters in DeKalb County, Georgia.

Plaintiffs contend in this action that Bowman discriminates against women on the basis of their sex in its hiring of overthe-road drivers. First, plaintiffs contend that Bowman's one year prior experience requirement for over-the-road drivers has a discriminatory impact upon females which, according to plaintiffs, defendant is unable to demonstrate furthers a job-related, business necessity. Second, plaintiffs contend that defendant's alleged arbitrary and discriminatory enforcement of its prior experience requirement shows that the said requirement is a pretext for Bowman's discriminatory hiring practices. Third, plaintiffs assert that defendant had alternative selection devices for over-the-road drivers that would have had a lesser disparate impact upon female applicants than the one year prior experience requirement. Fourth, plaintiffs maintain that Bowman participates in a general, classwide pattern and practice of disparate treatment of female applicants for over-the-road driver positions. Defendant denies liability as to all of plaintiffs' contentions.

The case was tried before the Court without a jury on March 1-22, 1982. At the end of the trial the Court directed the parties to file proposed findings of fact and conclusions of law within thirty days after their receipt of the trial transcript. Subsequently, the Court granted the parties various extensions of time for the filing of the said findings and conclusions. On December 17 and 21, 1982 defendant and plaintiffs respectively filed their proposed findings of fact and conclusions of law and the case is finally before the Court for decision on the merits. The case is also presently before the Court on (1) plaintiffs' motion for redefinition of the class, and (2) plaintiffs' motion for consolidation of this action and Tarvin v. Bowman Transportation, Inc., Civil Action No. C82-2679A (N.D.Ga.). The Court will address these two motions of plaintiffs before enumerating its findings of fact and conclusions of law.

PLAINTIFFS' MOTION FOR REDEFINITION OF THE CLASS

On March 31, 1980, the Court conditionally certified the class, as proposed by plaintiffs, to include

all females who, since April 18, 1976, have, would have but for the futility of doing so, or will in the future seek permanent employment as an over-the-road truck driver with Defendant by applying through its Atlanta, Georgia, terminal, and who have been, would have been, or will be refused such employment ... due to defendant's alleged discriminatory practices.

(Emphasis added.) Order of March 31, 1980, at p. 4. Subsequently, defendant moved to define and/or decertify the conditionally certified class, and for reconsideration of the Court's finding concerning the cut-off date for the class. On March 1, 1982, the Court denied defendant's motion to decertify the class and its motion for reconsideration of the finding concerning the cut-off date. At that time, the Court redefined the class as follows:

The class includes any applicant who, meeting other class standards, (1) was hired by defendant as an over-the-road driver but was terminated within the 45-day probationary period, (2) was not hired as an over-the-road driver and her application was, for one reason or another, forwarded to the Atlanta terminal for its review, and (3) any prospective applicant, meeting other class standards, whose application, had she filed one, would have been forwarded to the Atlanta terminal.

Order of March 1, 1982, at pp. 3-4.

Now, plaintiffs seek a redefinition of the class, only with respect to the disparate impact claim, as follows:

All females who since April 18, 1976, have, would have but for the futility of doing so, or will in the future seek permanent employment as an over-the-road truck driver with defendant by applying at any of its terminals, and who have been, would have been, or will be refused such employment due to the operation of defendants' commercial, over-the-road tractor trailer driving experience requirement.

(Emphasis added.) This new expanded class includes, for purposes of the disparate impact claim, applications that were neither filed at the Atlanta terminal nor forwarded to the said terminal. Defendant strenuously opposes plaintiffs' motion for redefinition of the class, arguing that the said redefinition would (1) prejudice its right to be heard on the adverse impact claim in violation of the due process clause; and (2) that the said redefinition would violate Rules 16 and 23, F.R.Civ.P., and Local Court Rule 222.13. For the reasons noted below, the Court concludes that defendant's arguments against redefinition of the class are without merit.

First, as the record shows and as this Court specifically finds in the findings of fact, defendant's experience requirement is a company-wide policy, imposed in the late part of 1974 for all of defendant's terminals other than its Birmingham, Alabama, terminal and terminals that forwarded their applications to the said terminal (hereinafter the Birmingham region.) Transcript at pp. 212, 273, 1126; infra at ¶ 1. The record also shows, and the Court has found, that in the late part of 1974 a six months experience requirement was imposed at the Birmingham region, in lieu of the one year requirement in effect throughout the remainder of the company. Transcript at pp. 212, 273, 1126-27; see ¶ 1, infra. The one year experience requirement was extended to the Birmingham region sometime in 1976. See ¶ 2, infra. Therefore, given the company-wide basis of the experience requirement, defendant's asserted business justification for the requirement is equally applicable to the requirement whether it is examined in terms of applicants seeking employment through the Atlanta terminal or through any other of defendant's terminals.

Second, defendant's due process rights are not infringed by the enlargement of the class. Defendant contends that if the redefinition had been made prior to trial, it would have had an opportunity to produce system-wide data. This argument would be meritorious if the Court agreed with defendant's underlying premise, which is that the statistical analysis best suited to examine defendant Bowman's experience requirement is to compare its applicant flow system-wide with the number of women hired by Bowman for the relevant time period system-wide. As discussed later, the Court concludes that defendant's applicant flow is not an appropriate labor pool for determining disparate impact. See ¶ 17, infra. Thus, defendant's lack of an opportunity to introduce system-wide data does not deprive it of due process since such data is immaterial. Moreover, defendant's expert witness testified at the trial that there is no available system-wide data of defendant's applicant flow. Transcript at pp. 726-27.

Additionally, as noted later, the Court's ruling that defendant's prior experience requirement has had an adverse impact against women is premised on a comparison of defendant's women hirees for the relevant time period with two labor pools which are equally applicable to applications filed through the Atlanta terminal or through other terminals. These labor pools are the general labor force, of which women represent approximately 40%, and the national labor pool of truck drivers, of which women represented 2.2% in 1980. Accordingly, the lack of data regarding specific local labor pools from each of the regions where defendant hires truck drivers does not affect this Court's ultimate conclusion that adverse impact has been shown.

For the foregoing reasons, plaintiffs' motion for redefinition of the class, for purposes of their disparate impact claim, is hereby GRANTED.

PLAINTIFFS' MOTION FOR CONSOLIDATION

Plaintiffs seek to consolidate this action and Tarvin v. Bowman Transportation, Inc., Civil Action No. C82-2679A, also pending before this Court. The Tarvin case was filed on November 29, 1982, and there have been no substantial proceedings undertaken therein. Defendant opposes consolidation of this action.

The Court concludes that consolidation of these two actions would be inappropriate. Consolidation of cases at such different stages, such as a recently filed case with no substantive proceedings undertaken and a case more than four years old awaiting decision, is not advisable. Also, given this Court's redefinition of the class, Ms. Tarvin, who filed her application with defendant at its Birmingham terminal, is within the parameters of the newly-defined class. Accordingly, plaintiffs' motion for consolidation is hereby DENIED.

FINDINGS OF FACT

ADVERSE IMPACT CLAIM

1. Since late 1974 defendant has required as a prerequisite for...