Shidaker v. Tisch

• Decision Date: 14 December 1987
• Docket Number: No. 84-2791,84-2791
• Citation: 833 F.2d 627
• Parties: 45 Fair Empl.Prac.Cas. 494, 45 Empl. Prac. Dec. P 37,626, 56 USLW 2322 Darlene SHIDAKER, Plaintiff-Appellant, v. Preston R. TISCH, 1 in his capacity as Postmaster General (United States Postal Service), Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 627

833 F.2d 627

45 Fair Empl.Prac.Cas. 494,

45 Empl. Prac. Dec. P 37,626, 56 USLW 2322

Darlene SHIDAKER, Plaintiff-Appellant, v. Preston R. TISCH, ¹ in his capacity as Postmaster General (United States Postal Service) Defendant-Appellee.

No. 84-2791.

United States Court of Appeals Seventh Circuit.

Argued Sept. 13, 1985.

Decided Jan. 29, 1986.

On Remand from the United States Supreme Court Nov. 16, 1987.

As Amended on Denial of Rehearing and Rehearing En Banc Dec. 14, 1987.

Stephen G. Seliger, Chicago, Ill., for plaintiff-appellant.

E. Roy Hawkens, Asst. U.S. Atty., Anton Valukas, U.S. Atty., Chicago, Ill., for defendant-appellee.

Before BAUER, Chief Judge, and CUMMINGS and FLAUM, Circuit Judges.

BAUER, Chief Judge.

This is an appeal by Darlene Shidaker from an adverse judgment entered below in favor of Preston R. Tisch in his capacity as Postmaster General of the United States Postal Service. Shidaker, a postal employee, claims that the Postal Service denied her a promotion because she is a woman and then demoted her for challenging that promotion denial as discriminatory. In our original opinion, this panel reversed and remanded for further consideration the district court's finding that Shidaker's promotion denial was not discriminatory and we affirmed the district court's finding that Shidaker's demotion was not retaliatory. Shidaker v. Carlin, 782 F.2d 746 (7th Cir.1985).

On April 6, 1987, the United States Supreme Court, --- U.S. ----, 107 S.Ct. 1621, 95 L.Ed.2d 195 granted the Postal Service's petition for certiorari, vacated this court's judgment, and remanded the case for further consideration in light of Johnson v. Transportation Agency of Santa Clara County, 480 U.S. ---, 107 S.Ct. 1442, 94 L.Ed.2d 615 (1987). The only issue before this Court on remand is whether Shidaker's statistical evidence was sufficient to establish a prima facie case of disparate impact under Title VII of the Civil Rights Act of 1964. ² After reviewing the Supreme Court's decision in Johnson, we follow our original opinion and hold that Shidaker's statistical evidence was sufficient to establish a prima facie case of disparate impact under Title VII.

I.

We will briefly summarize the relevant facts discussed in our previous decision. Shidaker was Acting Postmaster and then Postmaster of Kenilworth, Illinois from 1962 through 1982. In this position she was in pay scale category PES-18. In 1977, Shidaker applied for vacant PES-22 postmaster positions at offices in Glenview, Palatine, and Franklin Park, Illinois. The Postal Service follows a policy of promoting from within and ninety-two postal employees applied for the three vacant postmaster positions. Shidaker, the only female applicant, was not promoted to any of the positions.

In 1978, Shidaker filed an Equal Employment Opportunity ("EEO") complaint alleging that she was denied promotion to the PES-22 postmaster positions on the basis of her sex. In 1980, an Equal Employment Opportunity Commission Complaint Examiner held a hearing on Shidaker's complaint. In September 1982, the Complaint Examiner issued a decision on the complaint finding that Shidaker was denied promotion on the basis of sex. In October 1982, the Postal Service's Regional Director for Employment and Labor Relations Central Region notified Shidaker that the Postal Service was rejecting the Examiner's decision.

Shidaker sued the Postal Service in the United States District Court for the Northern District of Illinois, Eastern Division. Count I of her complaint alleged discriminatory failure to promote under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e-16 and 39 U.S.C. Sec. 409. We consider this allegation on remand.

The district court found that Shidaker failed to establish a prima facie case of disparate impact. The court found that Shidaker did establish a prima facie showing of disparate treatment, but also found that the Postal Service demonstrated legitimate, nondiscriminatory, nonpretextual, reasons for not promoting Shidaker.

We agree with Shidaker that she made an adequate prima facie showing of disparate impact. We therefore reverse the district court and remand Shidaker's disparate impact claim for further consideration.

II.

A.

The Supreme Court's decision in Johnson arises out of facts and circumstances that differ from those involved in this case. Johnson was a reverse discrimination suit brought under Title VII by a white male who alleged that the promotion of an allegedly less qualified female pursuant to a voluntary affirmative action plan violated his rights under Title VII. In concluding that the affirmative action plan did not violate Title VII, the Supreme Court considered the degree to which statistical proof reflecting an underrepresentation of women in traditionally segregated jobs could justify an affirmative action plan. 107 S.Ct. at 1452. Specifically, the Supreme Court held that an employer need only show a "manifest imbalance" in order to adopt a voluntary affirmative action plan under Title VII. Id. The Court noted further that the "imbalance need not be such that it would support a prima facie case against the employer [under Title VII]." Id. ³

The Johnson Court reiterated its earlier holding in Hazelwood School District v. United States, 433 U.S. 299, 97 S.Ct. 2736, 53 L.Ed.2d 768 (1977), that in order to make out a prima facie case of discrimination under a disparate treatment "pattern and practice" theory, a plaintiff must compare the percentage of minorities or women in the employer's work force "with those in the labor force who possess the relevant qualifications." Johnson, 107 S.Ct. at 1452; see also Johnson, 107 S.Ct. at 1452-53 n. 10; Steelworkers v. Weber, 443 U.S. 193, 198-99, 99 S.Ct. 2721, 2724-25, 61 L.Ed.2d 480 (1979). ⁴

B.

Johnson's relevance to the instant case is limited. Johnson is not a disparate impact case and it does not break new ground in this area of Title VII jurisprudence. Rather, Johnson briefly reaffirms the Supreme Court's earlier holdings regarding the sufficiency and probative value of statistical proof under Title VII. The Johnson Court's discussion of Hazelwood, however, is pertinent. Although Hazelwood was a disparate treatment pattern and practice case, its holding regarding the sufficiency of statistical proof has been applied in large part to the disparate impact area of Title VII.

To make a prima facie showing of discriminatory impact, Shidaker need only present evidence that the Postal Service's promotional practices, although facially neutral, selects promotees "in a significantly discriminatory pattern". Dothard v. Rawlinson, 433 U.S. 321, 329, 97 S.Ct. 2720, 2727, 53 L.Ed.2d 786 (1977); Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280 (1975). This evidence may be, and most often is, statistical in nature. New York City Transit Authority v. Beazer, 440 U.S. 568, 584, 99 S.Ct. 1355, 1365, 59 L.Ed.2d 587 (1979); Teamsters v. United States, 431 U.S. 324, 339-40, 97 S.Ct. 1843, 1856, 52 L.Ed.2d 396 (1977); Babrocky v. Jewel Food Co., 773 F.2d 857, 867 (7th Cir.1985). The statistical showing required to establish a prima facie case under the disparate impact theory may be less than the "gross disparity" required under "pattern and practice" disparate treatment cases. See Hazelwood, 433 U.S. at 307-08, 97 S.Ct. at 2741; Teamsters, 431 U.S. at 340 n. 20, 97 S.Ct. at 2744 n. 20 (holding that a "gross disparity" may establish a prima facie case in disparate treatment pattern and practice cases). As this Court held in Clark v. Chrysler Corp., 673 F.2d 921, 926-27 (7th Cir.1982), "[i]n the use of statistical evidence to demonstrate the disparate impact of an allegedly discriminatory practice, the statistical disparity demonstrated must be 'significant' or 'substantial.' " (citations omitted). See also Griffin v. Board of Regents of Regency University, 795 F.2d 1281, 1287 (7th Cir.1986) (in disparate impact cases, "plaintiff must show that the policies and practices at issue have a substantially disproportionate impact...."); Page v. U.S. Industries, Inc., 726 F.2d 1038, 1054 (5th Cir.1984) (disparate treatment requires showing of "gross disparity" although a "marked disproportion" suffices to prove disparate impact). ⁵

In both the disparate treatment and impact contexts, Hazelwood teaches that statistical evidence is probative when it compares the percentage of minorities or women in the employer's work force with the percentage of minorities and women in the relevant labor market. 433 U.S. at 307-08, 97 S.Ct. at 2741. In instances where the job requires special training or skills, the relevant labor market consists of those persons who possess the relevant qualifications. Johnson, 107 S.Ct. at 1452; Hazelwood, 433 U.S. at 308 n. 13, 97 S.Ct. at 2742 n. 13; Regner v. City of Chicago, 789 F.2d 534, 537-38 (7th Cir.1986). Where a company is shown to promote from within, the relevant labor pool of qualified applicants for upper level positions may be the group of employees in the company from which promotees will be drawn. See Hazelwood, 433 U.S. at 308 n. 13, 97 S.Ct. at 2742 n. 13; Paxton v. Union National Bank, 688 F.2d 552, 564 (8th Cir.1982), cert. denied, 460 U.S. 1083, 103 S.Ct. 1772, 76 L.Ed.2d 345 (1983); Fisher v. Procter & Gamble Mfg., 613 F.2d 527, 544 (5th Cir.1980), cert. denied, 449 U.S. 1115, 101 S.Ct. 929, 66 L.Ed.2d 845 (1981). Thus, where the plaintiff can show that the employer promotes from within, evidence of a gross disparity between the percentages of minorities in upper and lower level positions is sufficient to establish a prima facie case of discrimination under both disparate treatment or disparate impact theories. Regner, 789 F.2d at 538 (disparate impact promotion case); Segar v. Smith, 738 F.2d 1249, 1276-77 (D.C.Cir.1984), cert. denied sub nom. Meese v. Segar, 471 U.S. 1115, 105 S.Ct. 2357, 86 L.Ed.2d 258 (1985) (disparate impact...