Pegues v. Mississippi State Employment Service of Mississippi Employment Sec. Com'n

• Decision Date: 11 March 1983
• Docket Number: No. 80-3212,80-3212
• Citation: 699 F.2d 760
• Parties: 31 Fair Empl.Prac.Cas. 257, 31 Empl. Prac. Dec. P 33,440 Ms. Rosie Lee PEGUES, et al., Plaintiffs-Appellants, v. MISSISSIPPI STATE EMPLOYMENT SERVICE OF the MISSISSIPPI EMPLOYMENT SECURITY COMMISSION, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 760

699 F.2d 760

31 Fair Empl.Prac.Cas. 257,

31 Empl. Prac. Dec. P 33,440

Ms. Rosie Lee PEGUES, et al., Plaintiffs-Appellants, v. MISSISSIPPI STATE EMPLOYMENT SERVICE OF the MISSISSIPPI EMPLOYMENT SECURITY COMMISSION, et al Defendants-Appellees.

No. 80-3212.

United States Court of Appeals, Fifth Circuit.

March 11, 1983.

Richard T. Seymour, Lawyers' Committee for Civil Rights Under Law, Washington, D.C., for plaintiffs-appellants.

Fred J. Lotterhos, Leopoldo T. Aragon, Miss. Employment Sec. Com'n, Jackson, Miss., for defendants-appellees.

William Kanter, John C. Hoyle, Civil Div., Dept. of Justice, Washington, D.C., for Federal defendants-appellees.

Appeal from the United States District Court for the Northern District of Mississippi.

Before WISDOM, POLITZ and TATE, Circuit Judges.

POLITZ, Circuit Judge:

Rosie Lee Pegues, Rebecca Gillespie, Mary Boyd and Robert Williams, residents of Bolivar County, Mississippi, brought suit against the Mississippi State Employment Service (MSES), John E. Aldridge, Ernest C. Lindsey, the United States Secretary of Labor, the United States Department of Labor and its division, the United States Employment Service (USES), contending that the defendants engaged in individual and classwide discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e, et seq., 42 U.S.C. Secs. 1981 and 1983 and the thirteenth and fourteenth amendments to the Constitution. ¹ The named plaintiffs represent a class of black and female applicants who have sought or who may hereafter seek job referrals from MSES's Bolivar County office located in Cleveland, Mississippi. After an extended bench trial, the court entered judgments dismissing both the individual and class action Title VII claims. Pegues v. Mississippi State Employment Serv., 488 F.Supp. 239 (N.D.Miss.1980). Plaintiffs raise a plethora of issues on appeal, assigning errors of fact and law to the final judgment and two intermediate rulings. We affirm in part, reverse in part, render and remand for the fashioning of an appropriate remedy.

Procedural History

Following receipt of the requisite right-to-sue letters from the Equal Employment Opportunity Commission in January 1972, plaintiffs filed suit against the state defendants charging the MSES Cleveland office with discrimination in the classification, referral, and testing of black and female applicants for employment referral within the Bolivar County labor market. Plaintiffs charged racial and sexual discrimination in: (1) the assignment of occupational classifications to blacks and females; (2) the acceptance and servicing of certain employer job orders; (3) the administration of employment tests to blacks; (4) the failure to refer blacks and females to available jobs; and (5) the referral of blacks and females to lower paying and less desirable jobs.

The federal defendants were joined as indispensable parties under Fed.R.Civ.P. 19(a). 57 F.R.D. 102 (N.D.Miss.1972). An amended complaint filed thereafter alleged a statewide class, and attacked regulations and guidelines promulgated by the Secretary of Labor which purportedly allowed MSES to discriminatorily classify and refer applicants, and allegedly required MSES to use employment tests developed by USES which disproportionately impacted against blacks. ² The state defendants cross-claimed, seeking indemnity from the federal defendants for any adverse money judgment based on their compliance with federally-mandated policies and procedures. ³

A motion by plaintiffs requesting certification of a statewide class of blacks and females seeking referral from all state MSES offices, filed in 1974, was finally heard in February 1978. The court certified a class confined to persons seeking job referrals from the Bolivar County MSES branch.

In March 1978, the district court granted the federal defendants' motion for summary judgment, ⁴ ruling, inter alia, that the 1972 amendments to Title VII barred imposition of liability upon USES in the event classification, referral or testing functions performed by MSES under federal supervision were adjudged illegal. Because of the dual possibility that plenary injunctive relief could not be secured from the state defendants in the Secretary's absence, and the state might be entitled to indemnity should back-pay or attorneys' fees be assessed against it, the court declined to dismiss the state's cross-claim.

On appeal, plaintiffs challenge the district court's conclusion that referral of job applicants by the MSES office was free of race and gender discrimination. They further argue that the court erred in finding that employment tests administered by the Cleveland office were job-validated and did not impact adversely on black applicants. Plaintiffs challenge the court's admission of expert testimony on test validation, grant of summary judgment in favor of the federal defendants on the basis of the 1972 amendments to section 701(c), 42 U.S.C. Sec. 2000e(c), and refusal to certify a statewide class.

Limitation of the Class

Plaintiffs sought certification of a statewide class and the intervention of persons complaining of practices in MSES offices throughout the state. Finding the request untimely and concluding that a statewide class was unwieldy and unnecessary, the district court limited the class to Bolivar County and denied intervention. Appellate review of this ruling is governed by an abuse of discretion standard. Payne v. Travenol Laboratories, Inc., 673 F.2d 798 (5th Cir.), reh'g denied, 683 F.2d 417 (5th Cir.), cert. denied, --- U.S. ----, 103 S.Ct. 452, 74 L.Ed.2d ---- (1982). Implicit in this deferential standard of review is the recognition of the essential factual nature of the certification inquiry and the district court's inherent power to manage and control pending litigation. When measured against this standard, we are not prepared to say that the district court's effort to efficiently manage this complex litigation constituted an abuse of discretion. See McGowan v. Faulkner Concrete Pipe Co., 659 F.2d 554 (5th Cir.1981).

I. CLASS CLAIMS

A Title VII class action may be brought under two theories: disparate treatment or disparate impact. Either theory may prove applicable to the same set of facts. Wheeler v. City of Columbus, Miss., 686 F.2d 1144 (5th Cir.1982). In a disparate treatment case the plaintiff class must prove the existence of a pattern and practice of race or gender-based discrimination. See International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). Discriminatory intent must be established, by either direct or circumstantial evidence. Wheeler v. City of Columbus, Miss. Facially neutral practices which impact more severely on one group than another are subject to attack under the disparate impact theory. Dothard v. Rawlinson, 433 U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977); International Brotherhood of Teamsters v. United States. Proof of discriminatory purpose is not required in a disparate impact case.

Plaintiffs charge the MSES Cleveland office with racial and sexual discrimination in three practices: assignment of occupational codes, referrals, and testing. ⁵ All three practices allegedly impacted in a significantly adverse manner upon black and female applicants. Plaintiffs cast their evidence as to each practice in the disparate impact model. However, we conclude that only the testing issue fits within this evidentiary framework.

A brief description of the operation of the Cleveland office during the relevant period will assist in focusing the plaintiffs' class claims. This office, like all other MSES branch offices in Mississippi, functioned as a labor exchange, matching qualified applicants with available jobs. Employers made known openings by placing "job orders." Applicants made known their availability by requesting job referrals. The Cleveland office accounted for approximately 25% of all new hires in the Bolivar County labor market.

On the initial visit, each applicant was given an application form, questioned as to job preferences and directed to the interviewer who handled job codes corresponding to the preferences expressed. Until 1978, job codes were six-digit numbers representing a specific family of jobs in the federal Dictionary of Occupational Titles (DOT), a Department of Labor publication. ⁶

Once routed to the appropriate interviewer, the applicant was assisted in completing the application form, and questioned about education, vocational training, work experience, skills, work preferences, and personal interests and characteristics. Based on this information, the interviewer selected and inscribed the appropriate DOT code on the application. Work experience was a primary consideration in the coding process, although other factors were weighed, including the types of employment available in the area. The code issued an applicant who was not fully qualified, lacked the requisite experience, or needed further training, included an "x."

The interviewer's duties included the processing of employer job orders. A typical order contained information from the employer concerning the job, the number of vacancies, the desired number of referrals per vacancy, and the education and experience thresholds required. Interviewers had authority to determine whether any educational or experiential criterion was sufficiently job-related, and if not, whether further investigation was necessary before the job order was processed. Interviewers were encouraged to dissuade employers from imposing arbitrary hiring requirements, and job orders discriminating on the basis of sex or race were not to be serviced by MSES personnel. After obtaining the necessary information, the interviewer coded each job vacancy listed in the job order.

The matching and referral decision was facilitated by tests designed to ascertain job capabilities. In the absence of a...