Wheeler v. City of Columbus, Miss., 81-4122

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore CLARK, Chief Judge, GEE and GARWOOD; CLARK
Citation686 F.2d 1144
Parties29 Fair Empl.Prac.Cas. 1699, 30 Empl. Prac. Dec. P 33,122 Dorothy WHEELER, for herself and all others similarly situated, Plaintiff- Appellant, v. CITY OF COLUMBUS, MISSISSIPPI, a municipal corporation, et al., Defendants-Appellees.
Docket NumberNo. 81-4122,81-4122
Decision Date30 September 1982

Page 1144

686 F.2d 1144
29 Fair Empl.Prac.Cas. 1699,
30 Empl. Prac. Dec. P 33,122
Dorothy WHEELER, for herself and all others similarly
situated, Plaintiff- Appellant,
CITY OF COLUMBUS, MISSISSIPPI, a municipal corporation, et
al., Defendants-Appellees.
No. 81-4122.
United States Court of Appeals,
Fifth Circuit.
Sept. 30, 1982.

Page 1146

Colom, Mitchell & Colom, Wilbur O. Colom, Columbus, Miss., for plaintiff-appellant.

Gholson, Hicks & Nichols, Dewitt T. Hicks, Jr., Columbus, Miss., for defendants-appellees.

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

Before CLARK, Chief Judge, GEE and GARWOOD, Circuit Judges.

CLARK, Chief Judge:

Dorothy Wheeler, on her own behalf and on behalf of a class, brought this Title VII sex discrimination action 1 against the City of Columbus, Mississippi. 2 The district court, after making findings of fact and conclusions of law, held for the City. Wheeler appeals the district court's decisions as to her personal claim and that of the class. We vacate and remand to the district court for supplemental findings of fact and conclusions of law. The class and individual claims are discussed separately below, after a brief review of the factual setting.

In January 1979, the City placed the following advertisement in a local newspaper:

Employment in a supervisory capacity of a small staff with responsibility for renting of auditorium. Requires high school diploma or equivalent. Some experience in supervising janitorial work, bookkeeping and public contact will be helpful.

The advertisement describes the job of city auditorium manager.

Dorothy Wheeler, a forty-four year old white female, applied for the position on January 22, 1979. Wheeler's educational background included an undergraduate degree and the completion of substantial work toward a masters degree in history. Her employment record included stints as a factory assembly-line worker, moving company sales manager, and cosmetics saleswoman. The district court found that Wheeler's only managerial work experience was as a beauty parlor manager.

Alton Lewis, a white male, was hired for the position Wheeler sought. Lewis had served for twenty years in the United States Air Force and retired with the rank of sergeant. Lewis' education included a high school equivalency certificate and the completion of sixty hours of work toward an undergraduate degree.

Page 1147

The City received twenty-six applications for the auditorium manager position. Those applications were screened by the City's personnel office, and then several of them were considered by the Mayor and City Council. Wheeler was never interviewed for the position. After interviewing numerous applicants for the job, the City hired Lewis. Subsequently, Wheeler brought suit, alleging that the City's action violated her rights under Title VII.

Wheeler's complaint against the City also purported to represent a class and sought class-wide injunctive and declaratory relief predicated on a pervasive pattern of gender-based discrimination. The district court conditionally certified a class composed of "all female employees of defendant, past and present, and all female applicants for employment with defendant, past and future." 3

I. The Class Claim


In the words of the district court, Wheeler presented "a plethora of statistical evidence" at trial to demonstrate the existence of gender-based discrimination in the City's employment practices. Wheeler also presented evidence of specific instances of discrimination to bolster her statistical proof. Below, we outline the evidence presented by Wheeler.

Females account for fifty percent of the available workforce in Lowndes County, Mississippi, the relevant labor market for purposes of City hiring, and thirty percent of the recent applicants for City jobs. Only nine percent of those hired in recent years have been women, however, and at the time of trial, only seven percent of the City's employees were female. In 1973, seven years earlier, women accounted for ten percent of the City's workforce. 4 The starting point, of course, for Wheeler's statistical case was the striking disparity in available workforce (50%) and recent applicants (30%), on the one hand, and actual employees (7%) and recent hirings (9%), on the other.

Wheeler also presented evidence that women employed by the City were concentrated in office and clerical positions. In 1980, ninety-five percent of the City's female employees occupied such positions. This concentration was shown to differ significantly from the general employment patterns in Lowndes County. 5 Wheeler also contrasted the concentration of females in City office and clerical positions with the complete absence of women among the ranks of uniformed police officers, fire fighters, and streets and sanitation employees.

This segregation of females was shown to result in pay disparities. Eighty-five percent of the City's female employees earned less than $10,000 in 1980. Only fifty-two percent of the men in the City's work force earned less than $10,000 in that year.

Page 1148

In addition to introducing evidence of general quantitative and qualitative employment-related statistical disparities between men and women, Wheeler presented evidence of specific instances of discrimination and more narrowly drawn statistical evidence. Witnesses testified about their experiences with the City and discussed concrete examples of attitudes toward women employees, the channelling of women into office and clerical job slots, and pay disparities between men and women. Evidence was adduced to show that in thirteen male versus female job competitions the male prevailed in eleven. Wheeler narrowed the scope of her statistical attack in discussing the situations in three specific City departments: Streets and Sanitation, Police, and Fire.

The Streets and Sanitation Department consisted of over a hundred employees, all of whom were men. Wheeler offered evidence that women were qualified to hold many of the positions in that department, and that women constituted twenty-eight percent of the Lowndes County workforce in the job categories from which they were totally absent in this department. A pattern of recruitment and selection practices in the Department was alleged to perpetuate the exclusion of women. Openings in the Department are announced by word of mouth rather than public advertisement. Formal applications and personnel records are the exception rather than the rule. City officials who recalled referring to the Department men seeking any available job could not recall making such referrals for women. Although the City tried to justify the absence of women from Department positions by pointing to the low incidence of female applicants, the City did not explain either the barriers to females filing applications or the City's failure to hire the women who did indeed apply.

In the City's Police Department, all uniformed officers were male. In order to be eligible for such positions, an applicant must pass both a physical agility test and a written examination. In challenging the specific employment practices of this Department, Wheeler's general theory of disparate treatment merged with disparate impact theory. The disparate impact analysis of course centered on the propriety of the physical and written tests, while further evidence of the City's generally biased approach to women was presented. This evidence was bolstered by the testimony of a successful female test-taker who was not offered a job.

Wheeler's challenge to the Fire Department relied most heavily on the absence of female firefighters.


The district court held for the City and concluded that "the statistical evidence adduced at trial is insufficient to meet plaintiff's ultimate burden of persuasion as to the class action allegations of gender-based discrimination." (Emphasis supplied.) Significantly, the court departed from the manner in which the statistical evidence was presented in analyzing that evidence.

The court noted that for administrative purposes the City's work force is divided into twenty-three categories. 6 In seventeen

Page 1149

of those categories, there were eight or fewer employees. The court concluded "that statistics alone are insufficient to sustain plaintiff's burden of proof as to these seventeen categories of employment." The court opined that the small number of employees in those groups diminished the probity of the statistical evidence on them. The court went on to hold that "(s)ince plaintiff adduced no direct evidence to bolster her statistics in support of her class action allegations as to these seventeen categories of employment, the court finds that plaintiff has failed to sustain her burden of proof as to these seventeen of defendant's twenty-three categories of employment."

After eliminating the seventeen categories, the district court narrowed its focus. Two of the remaining six departments, Supervision and Finance and Police Civilian, were then eliminated because female employees significantly dominated their ranks. 7 This process of elimination resulted in the district court's conclusion that Wheeler had established a prima facie case of discrimination based on statistical evidence in only four departments: Street Garbage, Street Cleaning, Fire, and Police. After noting that the statistical disparities in those departments were "striking," the court focused its analysis on those departments.

The district court collapsed the Street Garbage and Street Cleaning categories into one. The court found that the City, through the testimony of Casey Freeman, a supervisory employee with hiring responsibilities in the department, successfully rebutted Wheeler's prima facie case. Freeman testified that he had received no applications from women, would welcome applications from females, and would hire without regard to gender. The district court found that...

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