MacDissi v. Valmont Industries, Inc.

• Decision Date: 06 September 1988
• Docket Number: Nos. 87-1974,87-2035 and 88-1001,s. 87-1974
• Parties: 47 Fair Empl.Prac.Cas. 1418, 47 Empl. Prac. Dec. P 38,261, 57 USLW 2195 Raymond MacDISSI, Appellee, v. VALMONT INDUSTRIES, INC., Appellant. Raymond MacDISSI, Appellant, v. VALMONT INDUSTRIES, INC., Appellee. Raymond MacDISSI, Appellee, v. VALMONT INDUSTRIES, INC., Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1054

856 F.2d 1054

47 Fair Empl.Prac.Cas. 1418,

47 Empl. Prac. Dec. P 38,261, 57 USLW 2195

Raymond MacDISSI, Appellee, v. VALMONT INDUSTRIES, INC., Appellant.

Raymond MacDISSI, Appellant, v. VALMONT INDUSTRIES, INC., Appellee.

Raymond MacDISSI, Appellee, v. VALMONT INDUSTRIES, INC., Appellant.

Nos. 87-1974, 87-2035 and 88-1001.

United States Court of Appeals Eighth Circuit.

Submitted April 12, 1988.

Decided Sept. 6, 1988.

Roger J. Miller, Omaha, Neb., for Valmont Industries, Inc.

Julie A. Frank, Omaha, Neb., for MacDissi.

Before ARNOLD and WOLLMAN, Circuit Judges, and ROSS, Senior Circuit Judge.

ARNOLD, Circuit Judge.

Valmont Industries, Inc., appeals from a judgment that it violated the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Secs. 621 et seq., by terminating Raymond MacDissi on account of his age. MacDissi cross-appeals from the same judgment, which held that Valmont did not terminate him on account of his ethnic origin in violation of Title VII, 42 U.S.C. Sec. 2000e, and dismissed his claim based on 42 U.S.C. Sec. 1981. Both parties find fault with the scope of the District Court's ¹ remedial order. We see no clear error in the trial court's factual findings on the merits of MacDissi's claims. Nor do we find any abuse of discretion in its determination of the remedy. We therefore affirm.

The facts, summarized in the light most favorable to the party prevailing before the trial court on each claim, are as follows. MacDissi, a 51-year-old man of Lebanese descent, lost his job as a rate analyst in Valmont's Traffic Department as part of a company-wide reduction in force in April 1982. At the time of his termination, MacDissi had seven and a half years of experience in the traffic department, more than any other nonmanagerial employee. His annual performance ratings were consistently excellent, and Valmont concedes that MacDissi was qualified to perform his job.

At the time of the layoff, Valmont's management directed Phil Williams, the head of the Traffic Department, to select two of the department's nine non-managerial employees for termination. MacDissi, fifty-one, was the oldest of this group, followed by forty-eight-year-old Alberta Stewart. With the exception of a third employee aged forty-five, none of the remaining employees of the department was older than thirty-three at the time of the 1982 layoff. MacDissi and Stewart were the two employees selected for termination.

At trial, Valmont presented two reasons for MacDissi's termination. First, it claimed that the adoption of a computerized system for analyzing transportation costs made MacDissi's special function--manual auditing and analysis of freight costs--obsolete. The evidence showed that some degree of manual auditing of rates was still required after implementation of the computerized system, with other Traffic Department employees assuming responsibility for up to 85% of MacDissi's former duties. Second, Valmont urged that deregulation of the trucking industry enormously simplified the rate structure by permitting Valmont to shift to a mileage-based tariff system. According to Valmont, this change eliminated the need for MacDissi's special expertise in analyzing freight charges. The evidence showed that this change to a mileage-based rate structure did not simplify charges for less than truckload (LTL) shipments, and that these LTL shipments had become MacDissi's major area of responsibility by 1982.

MacDissi was the only employee in the Traffic Department who was not born in the U.S. While supervisors and co-workers occasionally joked with MacDissi about Israeli victories in the Middle East, MacDissi conceded at trial that these comments were made in jest.

The District Court granted judgment for Valmont on MacDissi's Title VII claim, holding that he had not established a prima facie case of discrimination because of national origin. MacDissi's Sec. 1981 claim had been dismissed before trial on the ground that his Lebanese origin did not constitute a "race" within the meaning of Sec. 1981. The District Court did find that MacDissi had established a prima facie case of age discrimination, and held that Valmont's proffered reasons for terminating him were not believable. The court awarded MacDissi $104,285.22 in back pay, $3,195.94 in health insurance and medical expenses, and $46,851.75 in prospective wages in lieu of reinstatement. The Court denied liquidated damages under Sec. 626(b) of the Act and prejudgment interest. On Valmont's motion, the Court struck its original order to provide MacDissi with future pension benefits, after Valmont showed that its plan had already been terminated and MacDissi had already received a lump-sum settlement.

I. The ADEA Claim

On appeal, Valmont urges us to reverse the District Court's findings on MacDissi's ADEA claim as clear error. Valmont begins by attacking the sufficiency of MacDissi's prima facie case of age discrimination, on the ground that a nine-employee Traffic Department is too small a statistical universe for MacDissi's termination to create a reliable inference of discrimination. Valmont reasons that, because MacDissi failed to satisfy his initial burden under the three-stage sequence of proof described in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the District Court clearly erred by proceeding to examine Valmont's reasons for terminating him under the subsequent stages of the McDonnell Douglas sequence.

The problem with Valmont's focus on the sufficiency of MacDissi's prima facie case is that it requires us to review the District Court's judgment in the same piecemeal way rejected in U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983). Once the District Court has decided the ultimate question of discrimination vel non, the prior question of whether the plaintiff has made out a prima facie case loses its significance. Our task as an appellate court is not to reach separate conclusions on the adequacy of the evidence adduced at each of the three McDonnell Douglas stages of proof--it is simply to decide whether the record supports the ultimate finding of discrimination. See Aikens, 460 U.S. at 714-16, 103 S.Ct. at 1481-82; Barber v. American Airlines, 791 F.2d 658, 659-60 (8th Cir.), cert. denied, 479 U.S. 885, 107 S.Ct. 278, 93 L.Ed.2d 254 (1986).

Taken as one component of MacDissi's case, a comparison of the ages of those laid off to the ages of those retained does provide at least some support for MacDissi's claim. Both parties have complicated the quantitative aspects of this case by relying on involved statistical comparisons to describe relatively simple facts. It is unnecessarily awkward, for example, to say that the April layoff reduced the ratio of Traffic Department employees in the protected class from 50% (six out of twelve) to 40% (four out of ten), and that the mean age in the Traffic Department declined from 39 years to 36.8 years after the layoff. ² In many cases, a drop in the ratio of older employees from 50% to 40%, or a decline of 2.2 years in the mean age, would indeed be virtually meaningless. In this case, however, these overly formal statistical descriptions obscure the more obvious significance of the facts. Valmont chose to terminate the two oldest employees, ages 51 and 48, in a department in which all but one of the nonmanagerial employees remaining were 33 years old or younger. This fact is certainly not conclusive evidence of age discrimination in itself, but it is surely the kind of fact which could cause a reasonable trier of fact to raise an eyebrow, and proceed to assess the employer's explanation for this outcome.

Valmont argues vigorously that inferences of discrimination cannot be reliably drawn from two discharges in a nine-member department, citing several cases in which statistics based on workplaces of up to 50 employees have been rejected as insignificant. Taken to its logical conclusion, Valmont's position is that plaintiffs employed in smaller workplaces can never use statistics to establish a circumstantial case of discrimination, since the size of the workplace precludes any pattern observed in the data from proving intentional discrimination to a statistical certainty. This approach would unjustifiably deny employees in smaller workplaces the protection of federal discrimination law. See EEOC v. American National Bank, 652 F.2d 1176, 1194 (4th Cir.1981), cert. denied, 459 U.S. 923, 103 S.Ct. 235, 74 L.Ed.2d 186 (1982). There is no minimum sample size prescribed either in federal law or in statistical theory: the adequacy of numerical comparisons within small sets of data depends on the degree of certainty the factfinder requires, as well as the type of inference the statistics are meant to demonstrate. ³

In this case, MacDissi is not relying on the comparison of the ages of those laid off to the ages of those retained as conclusive proof of intentional discrimination. In this sense, Valmont's citations to authority rejecting statistics based on larger sample sizes than MacDissi's Traffic Department do not apply. This is not a case, like Harper v. Trans World Airlines, 525 F.2d 409 (8th Cir.1975), Soria v. Ozinga Bros., 704 F.2d 990 (7th Cir.1983), or Contreras v. City of Los Angeles, 656 F.2d 1267 (9th Cir.1981), cert. denied, 455 U.S. 1021, 102 S.Ct. 1719, 72 L.Ed.2d 140 (1982), in which plaintiffs seek to prove that facially neutral employment criteria have a disparate impact on persons in a protected class. In disparate-impact cases, statistical patterns of disparity are typically the entire basis of the plaintiffs' claims, whereas in cases like MacDissi's, statistics are used only as circumstantial evidence which tends to support a specific claim of disparate treatment. Nor is this a case, like Parker v. Federal National Mortgage Association, 741 F.2d 975 (7th Cir.1984), or Holley v. Sanyo Manufacturing, 771...