Peters v. Jefferson Chemical Co., 74-2752

• Decision Date: 24 July 1975
• Docket Number: No. 74-2752,74-2752
• Citation: 516 F.2d 447
• Parties: 11 Fair Empl.Prac.Cas. 296, 10 Empl. Prac. Dec. P 10,326 Elaine PETERS, Plaintiff-Appellant, v. JEFFERSON CHEMICAL COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 447

516 F.2d 447

11 Fair Empl.Prac.Cas. 296,

10 Empl. Prac. Dec. P 10,326

Elaine PETERS, Plaintiff-Appellant, v. JEFFERSON CHEMICAL COMPANY, Defendant-Appellee.

No. 74-2752.

United States Court of Appeals Fifth Circuit.

July 24, 1975.

Bobby J. Nelson, James M. Simons, Cameron M. Cunningham, Austin, Tex., for plaintiff-appellant.

John A. Sieger, William S. Clarke, Houston, Tex., for defendant-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before GOLDBERG, CLARK and GEE, Circuit Judges. ^*

CLARK, Circuit Judge:

The plaintiff sought relief in the form of back pay and reinstatement under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. alleging employment discrimination based on sex. Her contention was that the defendant, Jefferson Chemical Company, refused to transfer or promote her and terminated her employment because she was female. The judge to whom the case was tried found no discrimination and denied the relief sought. Although the court may have erred in certain evidentiary rulings, its ultimate findings were not affected and we affirm.

Prior to going to work for Jefferson, Elaine Peters, who had a B.S. degree in chemistry, had worked as an industrial chemist for five years. In 1959 she was hired by Jefferson to work in the company library. In 1960 her title was changed from Research Chemist (Library) to Research Librarian. She remained in this library work assignment for 111/2 years until 1971, at which time her employment with Jefferson was terminated along with other employees in a general lay-off. During the time Ms. Peters was employed, the company organizational structure identified a position of Senior Research Librarian which was never filled. From time to time during her employment, Ms. Peters received substantial merit raises and the company conceded that she was considered a good employee. Beginning in 1964, Ms. Peters made oral requests to various persons in authority at Jefferson for a transfer out of the library into one of the chemical divisions. Although the company had no formal transfer policy, the proof showed that other employees were transferred from one division to another. Seven of the eight positions which arose from 1965-1970 for which Ms. Peters was qualified were filled by males.

Jefferson's past record tended to show limited opportunities for professional women, since only six such women had been hired since 1949 though numerous males had been employed in this category. Jefferson had never employed a woman supervisor. A review by the Atomic Energy Commission in 1970 rated the policies of Jefferson in hiring and promoting minorities as unsatisfactory. The only two professional women in its employ were terminated in the February, 1971 lay-off, representing 18% of the total number of employees laid off. Females, including clerical staff, represented only 6.9% of the total 234 employees of Jefferson.

In December, 1970, Ms. Peters filed a complaint with the Equal Employment Opportunities Commission within 90 days of the refusal of her last request for a transfer. The complaint was investigated, and she was given notice of her right to sue. She was terminated by Jefferson in February, 1971.

Ms. Peters contends that she was discriminated against on the basis of her sex, because she was never promoted to the vacant position in the library or transferred out of the library to a position which offered more possibilities for promotion and from which she would not have been terminated. She also maintains that sex was the basis for her termination. In sum, Ms. Peters offered evidence (1) of her repeated requests for transfer, (2) that other transfers were permitted, (3) that the positions for which she was qualified went almost exclusively to males, and (4) that females suffered disproportionately in the layoff program.

The complainant in a Title VII action must carry the initial burden of proving a prima facie case of discrimination. However, this burden does not include proof of a discriminatory intent by the employer, Rowe v. General Motors Corp., 457 F.2d 348 (5th Cir. 1972). It only encompasses a demonstration that the effect of its employment practices was discriminatory. See Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). The criteria for establishing a prima facie case were delineated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The complainant must belong to a protected minority, apply for a job, be qualified, be rejected, and further applicants be sought.

The legal effect of recognizing that a prima facie case had been proven by the plaintiff would have been to shift the burden to the defendant to come forward with evidence that a legitimate nondiscriminatory reason existed for its nontransfer and termination actions. See McDonnell Douglas Corp. v. Green, supra. Since the court's opinion makes it clear that the full merits of Ms. Peters' proof and the company's defense were considered in reaching the conclusion that Ms. Peters was not the victim of employment discrimination based on her sex, if there was error in classifying her proof as less than sufficient to cross the prima facie threshold, it was harmless. The district court did not stop its analysis of the proof with its conclusion that Ms. Peters had failed to meet her prima facie burden. The rule is that "(o)nce the plaintiff has made out his prima facie case we look to the defendant for an explanation since he is in a position to know whether he failed to hire a person for reasons which would exonerate him." Hodgson v. First Federal Savings and Loan Association, 455 F.2d 818, 822 (5th Cir. 1972). This is precisely what the court did. It found that Jefferson had established legitimate non-discriminatory reasons for its actions regarding Ms. Peters. There is more than adequate support for the conclusion that Jefferson had legitimate reasons for its actions with regard to Ms. Peters.

It is unclear from the record whether the EEOC investigative files were finally admitted as evidence and whether they were considered. However, the trial court's reluctance to permit their introduction is plainly apparent. Such reluctance was unwarranted. This court has found that these files are admissible and can be highly probative. Smith v. Universal Services, Inc., 454 F.2d 154 (5th Cir. 1972). The judge also incorrectly opined that statistics have little probative value in a non-class action. See McDonnell Douglas Corp. v. Green, supra, 411 U.S. at 805, 93 S.Ct. 1817; and Jones v. Lee Way & Motor Freight Inc., 431 F.2d 245 (10th Cir. 1970). Each of these statements might indicate an erroneously limited appraisal of the fact situation...