Thomas v. Metroflight, Inc., 85-1239

• Decision Date: 30 March 1987
• Docket Number: No. 85-1239,85-1239
• Citation: Thomas v. Metroflight, Inc., 814 F.2d 1506 (10th Cir. 1987)
• Parties: 43 Fair Empl.Prac.Cas. 703, 42 Empl. Prac. Dec. P 36,956, 55 USLW 2566 Joy Rogers THOMAS, Plaintiff-Appellant, v. METROFLIGHT, INC., d/b/a Metro Airlines, Inc., Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1506

814 F.2d 1506

43 Fair Empl.Prac.Cas. 703,

42 Empl. Prac. Dec. P 36,956, 55 USLW 2566

Joy Rogers THOMAS, Plaintiff-Appellant, v.METROFLIGHT, INC., d/b/a Metro Airlines, Inc., Defendant-Appellee.

No. 85-1239.

United States Court of Appeals Tenth Circuit.

March 30, 1987.

James R. Moore of Horning, Johnson, Grove & Moore, Oklahoma City, Okl., for plaintiff-appellant.

A.J. Harper, II of Fulbright & Jaworski, Houston, Tex., and M. Elizabeth Scott of Fagin, Hewett, Mathews & Fagin, Oklahoma City, Okl., for defendant-appellee.

Before LOGAN, SETH, and SEYMOUR, Circuit Judges.

LOGAN, Circuit Judge.

Joy Rogers Thomas was fired by Metroflight, Inc. after she married a fellow employee, because of a Metroflight "no-spouse" employment rule.Thomas sued Metroflight for employment discrimination under Title VII of the Civil Rights Act of 1964,42 U.S.C. Secs. 2000e to 2000e-17.After a bench trial the district court entered judgment for Metroflight and ruled that Metroflight was entitled to attorney fees.The appeal was submitted on the briefs by agreement of the parties.

Metroflight is a small commercial airline doing business in Oklahoma and employing about 500 people.Metroflight hired Thomas as a secretary for its Lawton, Oklahoma operations in 1981, and in 1983 Thomas married a Metroflight pilot.At the time of her marriage, Thomas' duties were seventy-five percent in the company's maintenance department and twenty-five percent in its flight operations department, where Thomas' husband worked.

There was a "no-spouse" employment rule in effect at Metroflight at the time of Thomas' marriage, under which no two persons in the same department could marry and then continue working for Metroflight.Any two such persons who did marry had the option of choosing which spouse would quit.If neither quit, the company would fire the employee with the lesser seniority.Neither Thomas nor her husband quit, so Thomas, who had less seniority than her spouse, was fired.

The record shows that before Thomas' firing there had been eight other instances of intrafirm marriage at Metroflight.In seven of the previous instances, either the no-spouse rule was not violated because the spouses worked in different departments, or accommodations were made to retain both employees by reclassifying one spouse's work assignment or simply allowing the violation.In one other instance the rule was enforced, also by firing the female employee.

After being fired, Thomas filed a discrimination complaint with the Equal Employment Opportunity Commission(EEOC), which found no violation but issued Thomas a "right-to-sue" letter.Thomas then initiated this Title VII suit in federal district court, relying at trial solely on a theory of the disparate impact of Metroflight's no-spouse rule.¹

After hearing the evidence, the district court found that Metroflight's no-spouse policy "is a good policy, a proper company business decision and is not discriminatory."R.I, 204; R. XI, 121.The court held that Thomas did not establish any disparate impact of the policy, finding her "statistical evidence to be wholly inadequate and irrelevant in that the fact that salary differentials may be considered, among other factors, by a couple in deciding which will resign under the defendant's rule is not a sufficient ground for any legally cognizable claim."R.I, 204.The court rejected Thomas' statistical analysis because of "gross overstatement of base data,""small actual sample size,""absence of any causal connection between spousal consideration of salary" and termination by Metroflight based on seniority, "failure to measure actual adverse impact rather than a purely conceptual potential adverse impact," and "total disregard of the relevant, real world factors."Id. at 205.At the same time, the court directed defendant Metroflight to file a motion for attorney's fees with supporting affidavits, stating from the bench that there was "little reason or excuse, in my judgment, for having fooled with this case in the first place."R. XI, 122.We construe this as a finding that plaintiff Thomas' action was frivolous.

I

In Title VIIcases based upon alleged discriminatory intent--disparate treatment--the plaintiff must present evidence giving rise to "an inference of unlawful discrimination."Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253-54, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207(1981).When the plaintiff has done that, the employer need only present a plausible nondiscriminatory explanation for its actions to dispell the otherwise legally mandatory inference.The plaintiff then has an opportunity to show that the employer's proffered explanation is pretextual; the burden of proof never shifts from the plaintiff.Id. at 254-56, 101 S.Ct. at 1094-95.

Proof of discriminatory intent is not necessary for liability under Title VII, however.In Dothard v. Rawlinson, 433 U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d 786(1977), the Supreme Court expressly held that disparate impact alone, without a showing of discriminatory intent, is sufficient to make out a prima facie case of sexual discrimination unlawful under Title VII.Dealing in that case with hiring standards, the Court stated that "to establish a prima facie case of discrimination, a plaintiff need only show that the facially neutral standards in question select applicants for hire in a significantly discriminatory pattern."Id. at 329, 97 S.Ct. at 2726.The same reasoning applies to a rule requiring termination of one spouse when a marriage occurs between employees of a company.

In a disparate impact case, unlike a disparate treatment case, once a plaintiff makes out the prima facie case, the burden of proof shifts to the employer to show "business necessity:"

"In a disparate impact case, ... the employer must prove business necessity for the challenged practice to rebut the prima facie case.He bears a burden of proof.Moreover, in a disparate impact case, unlike a disparate treatment case, a rational or legitimate, nondiscriminatory reason is insufficient.The practice must be essential, the purpose compelling."

Williams v. Colorado Springs, Colorado School District, 641 F.2d 835, 842(10th Cir.1981)(emphasis in original)(citations omitted);see alsoHawkins v. Bounds, 752 F.2d 500, 503-04(10th Cir.1985);Lasso v. Woodmen of the World Life Insurance Co., 741 F.2d 1241, 1245(10th Cir.1984), cert. denied, 471 U.S. 1099, 105 S.Ct. 2320, 85 L.Ed.2d 839(1985).This is, of course, a heavier burden upon the employer than in discriminatory treatment cases.The different allocations of the burdens of persuasion and production in disparate treatment and disparate impact cases stem from the different requirements for establishing the prima facie case:

" '[E]stablishing a prima facie case of disparate treatment is not onerous.'Burdine, 450 U.S. at 253, 101 S.Ct. at 1094.In making a prima facie case in a disparate impact suit, however, the plaintiff must not merely prove circumstances raising an inference of discriminatory impact; he must prove the discriminatory impact at issue."

Johnson v. Uncle Ben's, Inc., 657 F.2d 750, 753(5th Cir.1981), cert. denied, 459 U.S. 967, 103 S.Ct. 293, 74 L.Ed.2d 277(1982)(emphasis added);accordSegar v. Smith, 738 F.2d 1249, 1266-68, 1270 n. 17(D.C.Cir.1984), cert. denied, 471 U.S. 1115, 105 S.Ct. 2357, 86 L.Ed.2d 258(1985);Moore v. Hughes Helicopters, Inc., 708 F.2d 475, 481-82(9th Cir.1983).

We emphasize the differences between the two types of cases because we agree with the district court that Thomas did not produce sufficient evidence to establish the discriminatory impact of the no-spouse rule.We do not agree, however, with all that the district court said in arriving at its conclusion.Indeed, we affirm on this issue reluctantly because we suspect, as others have claimed, ² that "no-spouse" rules in practice often result in discrimination against women, and are generally unjustified.But we cannot accept our own speculations or others' conclusions as a substitute for plaintiff's required proof, nor may we take judicial notice of evidence that might have been but was not presented.

Thomas presented evidence that in the only two instances in which Metroflight enforced the "no-spouse" rule, female employees were fired.But that alone is insufficient to prove a violation of Title VII; a sample of two is too small to make even a 100% impact rate significant.³CompareHarper v. Trans World Airlines, 525 F.2d 409(8th Cir.1975)(evidence that four of five applications of similar no-spouse rule resulted in female job losses held inadequate without more to show disparate impact), with Yuhas v. Libby-Owens-Ford Co., 562 F.2d 496(7th Cir.1977)("substantial discriminatory impact" established when seventy-one of seventy-four applicants excluded by no-spouse hire rule were women), cert. denied, 435 U.S. 434, 98 S.Ct. 1510, 55 L.Ed.2d 531(1978)andEEOC Dec. 75-239, 2 Empl.Prac.Guide (CCH) p 6492, at 4260-61(Mar. 2, 1976)(disparate impact established when sixty-five of sixty-six applicants rejected because of no-spouse rule were female).See alsoMorita v. Southern California Permanente Medical Group, 541 F.2d 217, 220(9th Cir.1976)(sample of eight too small), cert. denied, 429 U.S. 1050, 97 S.Ct. 761, 50 L.Ed.2d 765(1977);Robinson v. City of Dallas, 514 F.2d 1271, 1273(5th Cir.1975)(sample of twelve too small).But seeBunch v. Bullard, 795 F.2d 384, 395(5th Cir.1986)(disparate impact established in small sample of twenty-eight, where observed disparity in exam pass rates was great enough);Marsh v. Eaton Corp.639 F.2d 328, 329(6th Cir.1981)(error for trial court to conclude that disparate impact could not be established, after evaluation of small pool of forty-four new hires revealed eight men placed in slightly better positions than women; noting danger of simply exempting small employers from Title VII);accordPegues...