Kilgo v. Bowman Transp., Inc.
| Decision Date | 15 May 1986 |
| Docket Number | Nos. 84-8105,84-8899 and 85-8409,s. 84-8105 |
| Citation | 789 F.2d 859 |
| Parties | 40 Fair Empl.Prac.Cas. 1415, 40 Empl. Prac. Dec. P 36,155, 54 USLW 2626, 5 Fed.R.Serv.3d 626 Oscar KILGO, in his capacity as representative of Edna M. Kilgo, individually and on behalf of all others similarly situated, Plaintiff-Appellee, v. BOWMAN TRANSPORTATION, INC., Defendant-Appellant. Oscar KILGO, et al., Plaintiffs-Appellees, Cross-Appellants, v. BOWMAN TRANSPORTATION, INC., Defendant-Appellant, Cross-Appellee. Oscar KILGO, et al., Plaintiffs-Appellees, v. BOWMAN TRANSPORTATION, INC., Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
James W. Wimberly, Jr. and James P. Cobb, Wimberly, Lawson & Cobb, Atlanta, Ga., for Bowman Transp., Inc.
Christopher Coates, Milledgeville, Ga., Isabelle Katy Pinzler, Joan Bertin, George Kanner, New York City, Laughlin McDonald, Neil Bradley, Atlanta Ga., for Kilgo, et al.
Appeals from the United States District Court for the Northern District of Georgia.
Before GODBOLD, Chief Judge, ANDERSON, Circuit Judge, and ATKINS *, Senior District Judge.
Bowman Transportation, Inc. appeals from the decision of the district court holding that it had violated Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. Secs. 2000e to 2000e-16, by discriminating against women in its hiring for over-the-road ("OTR") tractor-trailer driving positions. In Case Nos. 84-8105 and 84-8899, Bowman, a trucking company, raises numerous challenges to the district court's findings with respect to the disparate impact of its one-year prior experience rule, the pattern and practice of discrimination against women in hiring for OTR truck drivers, and the certification of the plaintiff class ("plaintiffs"). We reject each of Bowman's challenges. On the cross-appeal, we also reject plaintiffs' challenge to the district court's refusal to include hiring goals in its remedial order. In Case No. 85-8409, 1 Bowman argues that the district court's civil contempt order dealing with back pay is punitive, and since civil contempt may not be imposed for the purpose of punishment, the contempt order is invalid. We find no merit in this contention. Thus, we affirm.
In late 1974, Bowman imposed a requirement that applicants for OTR driver positions have one-year prior experience as OTR drivers. This requirement was imposed on a company-wide basis, with the exception of the Birmingham, Alabama region, which only required six-months prior experience until 1976. Under this rule, an applicant's prior experience would be considered OTR if it involved driving a tractor-trailer for a distance greater than a 75-mile radius from the dispatch terminal.
In 1976, Edna Kilgo went to the Bowman terminal in Atlanta, Georgia to apply for an OTR driver position, and when Bowman refused to allow her to file an application, she filed a complaint with the Equal Employment Opportunity Commission ("EEOC"). After receiving her right-to-sue letter, Kilgo filed this class action lawsuit under Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. Secs. 2000e to 2000e-16, alleging sex discrimination by Bowman in its hiring of OTR drivers.
In August 1979, Virginia Wentz was added as a party plaintiff. After the death of Edna Kilgo in November 1979, the district court held that Kilgo's Title VII claim survived her death, and thus permitted the substitution of her husband, Oscar Kilgo, as a named plaintiff in his capacity as the representative of her estate. Kilgo v. Bowman Transportation, Inc., 87 F.R.D. 26, 27-28 (N.D.Ga.1980). The court, however, concluded that Oscar Kilgo would not be an adequate representative of the proposed class "because, although he has an interest in claims for back pay, he does not have the same interest in declaratory and injunctive relief as other members of the proposed class." Id. at 28-29. In addition, the court found that the date of Kilgo's filing of her EEOC charge would govern the scope of the class both because her filing had given Bowman "adequate notice of a challenge to its employment practices" and because a contrary holding might prejudice members of the proposed class who "could have been aware of Edna Kilgo's EEOC charge and the possibility that she would represent them in a class action." Id. at 29. Finally, the court also conditionally certified a class consisting of "[a]ll 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 [Bowman] by applying through its Atlanta, Georgia terminal and who have been, would have been, or will be refused such permanent employment due [to Bowman's discriminatory practices]." Id. at 28-30.
In March 1982, the district court redefined the class as follows [T]he class includes any applicant who, meeting other class standards, (1) was hired by [Bowman] as an over-the-road driver but was terminated within the forty-five 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.
Record on Appeal, vol. 3 at 634-35. 2
After a nonjury trial, the district court found that Bowman had committed sex discrimination in its hiring of OTR drivers. Kilgo v. Bowman Transportation, Inc., 570 F.Supp. 1509 (N.D.Ga.1983). First, the court redefined the class with respect to the disparate impact claim: 3
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 the terminals, and who have been, would have been, or will be refused such employment due to the operation of [Bowman's] commercial, over-the-road tractor-trailer driving experience requirement.
Id. at 1512-13 (emphasis in original). The court rejected Bowman's contention that this redefinition of the class would violate the due process clause, Rules 16 and 23 of the Federal Rules of Civil Procedure, and N.D.Ga.R. 221.13. Id. The court first noted that since Bowman's experience requirement is a company-wide policy, the asserted business justification for the requirement would apply whether this requirement is examined in terms of applicants seeking employment through the Atlanta terminal or through any of Bowman's terminals. Id. at 1513. In addition, the court rejected Bowman's argument that it would be prejudiced by the lack of an opportunity to introduce system-wide applicant flow data; the court found that argument to be without merit because such applicant flow data did not reflect an appropriate labor pool in this case since women were deterred from applying. Id. Finally, the court found that the introduction of evidence of the labor market in each of the regions where Bowman hires truck drivers was not necessary because its finding of adverse impact was based on a comparison of Bowman's "women hirees for the relevant time period" with, inter alia, the general labor force and national labor pool of truck drivers "which are equally applicable to applications filed through the Atlanta terminal or through other terminals." Id.
Turning to the merits, the court found that based on a comparison of Bowman's hirees in the relevant time period with various national and local labor pools, Bowman's prior experience requirement had an adverse impact upon female applicants. Id. at 1514-17, 1525-26. The court then concluded that Bowman had failed to establish that its prior experience requirement was a business necessity and that even if this requirement were a business necessity, there were less discriminatory alternatives available, and this requirement was used as a pretext for sex discrimination. Id. at 1517-21, 1526-27.
Finally, the district court held that Bowman had engaged in a pattern and practice of disparate treatment of female applicants for OTR driving positions. Id. at 1522-25, 1527-28. In reaching this conclusion, the district court relied on plaintiffs' statistical evidence and testimony concerning Bowman's disparate treatment of female applicants. Id.
In 1984, the district court issued a remedial order. Kilgo v. Bowman Transportation, Inc., 576 F.Supp. 600 (N.D.Ga.1984). In this order, the court refused to impose hiring goals or quotas but indicated that it would reconsider this decision "at a later time if [Bowman] fails to make a special effort to insure that women are given the opportunity to achieve OTR positions." Id. at 601. This order also required Bowman to file a hiring plan to remedy its past discriminatory practices. Id. at 602-03.
Bowman filed its plan on June 1, 1984. Pursuant to the plan, on June 15, 1984, Bowman sent out "offers" of employment to plaintiffs, which provided in relevant part:
Bowman Transportation, Inc. is now currently hiring road drivers. There are a number of vacancies at the present time. Because you are a purported class member in the case of Kilgo v. Bowman Transportation, a case pending in the U.S. District Court for the Northern District of Georgia, in which there has been a finding of sex discrimination by Bowman in the hiring of road drivers, you are hereby offered the opportunity of employment as a road driver with Bowman Transportation.
If you are interested, you may contact the company in person or by mail at Bowman Transportation....
As required by law in the employment of all drivers, you must fill out a current job application and meet any other legal requirements and qualifications. You are invited and encouraged to submit a current application, one of which is enclosed. If you are minimally qualified, there is a good chance you will be hired, provided you contact the company within 15 days of...
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