Meyer v. Missouri State Highway Com'n

• Decision Date: 14 December 1977
• Docket Number: No. 76-2040,76-2040
• Citation: 567 F.2d 804
• Parties: 16 Fair Empl.Prac.Cas. 630, 15 Empl. Prac. Dec. P 7999 Rachel J. MEYER, Appellant, v. MISSOURI STATE HIGHWAY COMMISSION, State of Missouri, and Paseo Bridge Commission, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 804

567 F.2d 804

16 Fair Empl.Prac.Cas. 630, 15 Empl. Prac.

Dec. P 7999

Rachel J. MEYER, Appellant, v. MISSOURI STATE HIGHWAY COMMISSION, State of Missouri, and Paseo Bridge Commission, Appellees.

No. 76-2040.

United States Court of Appeals,

Eighth Circuit.

Submitted June 16, 1977.

Decided Dec. 14, 1977.

Sandra C. Midkiff, Kansas City, Mo., on brief for appellant.

John H. Gladden, Missouri State Highway Commission, Joplin, Mo., for appellees; Bruce A. Ring, Jefferson City, Mo., and Curtis F. Thompson, of State Highway Commission of Missouri, Jefferson City, Mo., on brief.

Before MATTHES, Senior Circuit Judge, BRIGHT, Circuit Judge, and MILLER, Judge. ^*

BRIGHT, Circuit Judge.

Rachel Meyer, a former employee of the Missouri State Highway Commission (the Commission), brought this action against her former employer under § 703(a) of Title VII, ¹ the Civil Rights Act of 1964, alleging that the Commission discriminated against her because of her sex in failing to promote her and in failing to consider her for relocation to another job when her job was terminated. The district court denied her any relief, and she brought this appeal. We affirm the district court in part, reverse in part, and remand the case for relief consistent with this opinion.

I.

Appellant Meyer (now Dominguez) worked full-time as a toll collector for appellee on the Paseo Bridge in Kansas City, Missouri, from May 1, 1970, to September 30, 1972, when the bridge became a free bridge.

Alfred Schumacher managed the Paseo Bridge during this period, and supervised appellant's work. Schumacher's duties included hiring and firing, recommending pay increases for the employees of the bridge, and promoting individuals to the position of shift captain. The job of shift captain was "unclassified" by the Commission and lacked any written description of duties or minimum qualifications for the job. The district court found that serving as shift captain entailed primary duties of (1) taking care of problems involving the paying public, (2) handling personal matters between toll collectors, and (3) supervising the automatic toll collecting machines. The trial court indicated that proper performance of these duties requires the ability to react well in crises and the ability to command respect from fellow employees.

Mr. Schumacher employed informal procedures in making promotions to shift captain. Because the job was unclassified, he was not required to post notices of job openings for shift captain and he did not do so. Thus, no formal application process existed. Instead, Schumacher summoned the chosen individual to his office and asked whether he wanted the promotion. The Personnel and Accounting Offices of the Commission then made a pro forma review of the appointment.

During appellant's tenure at the bridge, one toll collector with greater seniority, Martin Cady, received a promotion to shift captain. At the time of his promotion, the Commission employed only males in the four shift captain positions available.

In anticipation of the close of the Paseo Bridge toll gates, the Commission issued a resolution stating "every effort" should be made to relocate the eighteen full-time employees of the Paseo Bridge to other jobs with the Commission. Frank Taggart, a personnel liaison officer for the Commission, undertook responsibility to coordinate these efforts. He assembled employment applications, data sheets, and performance appraisals, and mailed them out to each of the ten regional highway districts in Missouri under a cover letter directing that the various districts give employment preference, all other things being equal, to Paseo Bridge employees. ² Mr. Taggart and manager Schumacher of the Paseo Bridge then coordinated interviews between eligible bridge employees and various district offices.

Appellant applied for relocation, listing on her application that she would take any job for which she was qualified, but expressing preferences for the Kansas City area and daytime hours. She listed no Sixteen of the eighteen eligible employees applied for relocation. Of this total, twelve were granted at least one interview, and ten received job offers. Four employees, including appellant, the only woman in the group, received no interviews.

skills except for typing, and no prior experience except waitressing. She also mentioned to Mr. Taggart on several occasions that she could do "anything a man could do," and that she did not want her application limited to office or clerical work.

Ms. Meyer then filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) within the time limits prescribed by § 706 of Title VII, 42 U.S.C. § 2000e-5 (Supp. V 1975). The EEOC referred her charge to the Missouri Commission on Human Rights, which granted a waiver of jurisdiction to her on September 27, 1972. The EEOC mailed her a Notice of Right to Sue on August 27, 1973, and within ninety days, on November 26, 1973, she filed this action against appellee for injunctive relief and damages, including backpay and reinstatement.

In her suit and on this appeal, appellant claims that she suffered discrimination on the basis of sex in two ways: first, because she was not considered for promotion to shift captain during her tenure on the bridge; second, because she was not relocated to another job within the state highway department after the closing of the Paseo Bridge.

The district judge denied Ms. Meyer any recovery, finding on each claim that she had failed to establish a prima facie case of discrimination. She brought this appeal, contending that the district court findings were clearly erroneous.

II.

Recent decisions of the Supreme Court have greatly clarified the legal tests employed in determining whether or not a hiring practice is discriminatory under the applicable provisions of Title VII. ³ The Court has recognized two separate theories under which plaintiffs may be entitled to relief under Title VII: (1) disparate treatment, and (2) disparate impact. ⁴ International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). See also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971).

In this action, Ms. Meyer proceeded on a disparate treatment theory. In order to prevail under this theory, she must prove: (1) differences in treatment, and (2) To meet this burden, Ms. Meyer must in the first instance establish a prima facie case of discrimination. International Brotherhood of Teamsters v. United States, supra, 97 S.Ct. at 1854; Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975); McDonnell Douglas Corp. v. Green, supra, 411 U.S. at 802, 93 S.Ct. at 1817. What constitutes a prima facie case of discrimination necessarily varies according to the facts of the case. International Brotherhood of Teamsters v. United States, supra, 97 S.Ct. at 1866; McDonnell Douglas Corp. v. Green, supra, 411 U.S. at 802 n. 13, 93 S.Ct. at 1817. In this case, both parties propose analysis under the four-part test of McDonnell Douglas Corp. v. Green, supra, 411 U.S. at 802, 93 S.Ct. at 1817. See also International Brotherhood of Teamsters v. United States, supra, 97 S.Ct. at 1866; Franks v. Bowman Transportation Co., 424 U.S. 747, 772-73, 96 S.Ct. 1251, 1267-68, 47 L.Ed.2d 444 (1976); United States v. N. L. Industries, Inc., 479 F.2d 354 (8th Cir. 1973). To make out a prima facie case of discrimination under this test, the plaintiff must demonstrate that:

a discriminatory motive on the part of her employer. International Brotherhood of Teamsters v. United States, supra, 97 S.Ct. at 1854 & n. 15; McDonnell Douglas Corp. v. Green, supra, 411 U.S. at 805 & n. 18, 93 S.Ct. 1817.

1) She is a member of a protected class;

2) She applied for and qualified for a job for which the employer was seeking applicants;

3) Despite her qualifications she was rejected;

4) After her rejection, the position remained open and the employer continued to seek applications from persons with plaintiff's qualifications.

This showing of differences in treatment often implies discriminatory intent. International Brotherhood of Teamsters v. United States, supra, 97 S.Ct. at 1854 n. 15; Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266, 97 S.Ct. 555, 564, 50 L.Ed.2d 450 (1977). As Mr. Justice Stevens has noted, "(f)requently the most probative evidence of intent will be objective evidence of what actually happened rather than evidence describing the subjective state of mind of the actor." ⁵

Once plaintiff has successfully proven a prima facie case of discrimination, the burden of proof shifts to the defendant-employer to rebut this showing by demonstrating either that the plaintiff was not treated differently than other job applicants, or that any difference in treatment was not based on discriminatory motives.

In this case appellant makes two claims that must be analytically distinguished: (1) that she was discriminated against because she was not given a chance to relocate to another job when the Paseo Bridge closed, and (2) that she was discriminated against because she was not promoted to the position of shift captain. As indicated above, the parties have proposed that the four-part test outlined in McDonnell Douglas Corp. v. Green be used to determine whether plaintiff has set out a prima facie case of sex discrimination. They contend, and we agree, that promotion and job relocation are sufficiently analogous to the initial hiring decision to warrant the use of this test.

We review each of plaintiff's claims separately below. In doing so, we are cognizant of the fact that we cannot overturn a district court's factual findings unless we

find them clearly erroneous, Fed.R.Civ.P. 52(a), and we cannot make our own independent factual findings upon a...