Williams v. Tallahassee Motors, Inc.

• Decision Date: 30 November 1979
• Docket Number: No. 77-1829,77-1829
• Citation: 607 F.2d 689
• Parties: 21 Fair Empl.Prac.Cas. 626, 21 Empl. Prac. Dec. P 30,430 Frank WILLIAMS, Plaintiff-Appellant, v. TALLAHASSEE MOTORS, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 689

607 F.2d 689

21 Fair Empl.Prac.Cas. 626,

21 Empl. Prac. Dec. P 30,430

Frank WILLIAMS, Plaintiff-Appellant, v. TALLAHASSEE MOTORS, INC., Defendant-Appellee.

No. 77-1829.

United States Court of Appeals, Fifth Circuit.

Nov. 30, 1979.

Kent Spriggs, Tallahassee, Fla., for plaintiff-appellant.

W. Dexter Douglass, John C. Cooper, Tallahassee, Fla., for defendant-appellee.

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

Before WISDOM, AINSWORTH and RONEY, Circuit Judges.

RONEY, Circuit Judge:

In this Title VII employment discrimination case we are asked to reverse the district court's finding of no pattern or practice of discrimination by defendant against blacks as a class and no discrimination by defendant against the individual plaintiff, Frank Williams. Concluding the district court did not err in finding that plaintiff failed to establish his class claim and was not the victim of racial discrimination by defendant, we affirm.

Defendant Tallahassee Motors is a car dealership which has been in business since 1940 and is located in Tallahassee, Florida. Plaintiff was hired as a salesman by defendant in September 1973. At that time he was defendant's only full-time car salesman of a sales force of 20. Plaintiff worked for Tallahassee Motors until he was terminated in January 1974.

Plaintiff sued Tallahassee Motors both individually and as representative of a class certified as all black applicants and employees of defendant. Plaintiff alleged that he was involuntarily terminated because of his race and that his treatment was an integral part of a pattern and practice of discrimination against black persons in defendant's employ.

The district court concluded plaintiff's termination was not racially based and the statistical evidence failed to establish a prima facie case on his class claim. Alternatively, the court held that to the extent a prima facie case had been made, defendant had rebutted it.

The district court's determination of nondiscrimination is a finding of ultimate fact in regard to which we are not bound by the clearly erroneous standard of review. East v. Romine, Inc., 518 F.2d 332, 338 (5th Cir. 1975). The district court's credibility determinations and findings of subsidiary fact are, of course, binding on this Court unless found clearly erroneous. King v. Gulf Oil Co., 581 F.2d 1184, 1186 (5th Cir. 1978); Bolton v. Murray Envelope Corp., 493 F.2d 191 (5th Cir. 1974).

I. Class Claim

Plaintiff sought to prove his case by statistics, which he contends established a prima facie case of racial discrimination and should have shifted the burden to defendants to rebut the statistics or explain the racial disparity in employment which they demonstrated. See Rodriguez v. East Texas Motor Freight, 505 F.2d 40, 54 (5th Cir. 1974), Vacated and remanded on other grounds, 431 U.S. 395, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977).

Plaintiff submitted demographic statistics comparing the racial compositions of defendant's work force and the area's general population. The figures showed that on June 27, 1974, defendant's work force was 13.6% Black. The population of Tallahassee was, according to the 1970 census, 26% "Negro and other races."

Plaintiff's statistics also showed that between 1968 and 1975 defendant had hired 20 "managerial" employees, none of them black. Furthermore, no black had been employed in a managerial capacity before 1968. Defendant had hired 68 salesmen between 1968 and 1975, two of them black. Of the 16 salesmen hired before 1968, none was black. Twenty-seven clerical employees were hired over the eight year period, none of them black. The four clerical employees hired before 1968 had been white. In job positions grouped under "body," 29 employees were hired, four of whom were black. One of the two body employees hired before 1968 was black. In "service" jobs, 67 of the 167 new employees were black. Of those hired before 1968, three of 14 were black.

Statistical evidence also showed that most black employees were in the lowest paying job classifications. Plaintiff showed that in the eight job positions paid on monthly salary, no blacks and 10 whites were employed. In the 23 positions paid on weekly salary, two blacks and 33 whites were employed. In the 14 job positions paid on hourly wage, 12 blacks and 19 whites were employed. Seven of the 12 blacks receiving hourly wages were in jobs with the two lowest hourly wage rates.

Although a prima facie case of racial discrimination may be established by nothing more than valid statistical evidence of a significant discriminatory impact of defendant's practices, Rodriguez v. East Texas Motor Freight, 505 F.2d at 53; United States v. Hayes International Corp., 456 F.2d 112, 120 (5th Cir. 1972), the usefulness of such statistics varies with the surrounding facts and circumstances, which either support or undermine the inference of discrimination offered by the statistics. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 340, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977); United States v. Ironworkers Local 86, 443 F.2d 544, 551 (9th Cir.), Cert. denied, 404 U.S. 984, 92 S.Ct. 447, 30 L.Ed.2d 367 (1971).

The district court in this case concluded that plaintiff's statistics did not produce so disparate a percentage as to alone make a prima facie case and observed that where there is no great disparity, there should be further proof that qualified blacks had applied. Noting first that plaintiff's statistical case was not as strong as that of other statistical cases treated by the Fifth Circuit, the court thought that the statistics with respect to a relatively small employer such as Tallahassee Motors had to be regarded with caution, citing McAdory v. Scientific Research Instruments, Inc., 355 F.Supp. 468 (D.Md.1973).

Then in a supplemental order, in response to plaintiff's motion to amend the judgment, the court said:

What constitutes "substantial" disparity is not a precise legal standard. While statistics may be used to establish a prima facie case, the statistics produced here are not so disparate a percentage as to establish a prima facie violation of Title VII. It must be remembered that defendant is a small local employer who does not have a training program or a system of promotion; neither are tests administered or other application processes utilized. Defendant relies for its hiring on experienced people who walk in off the street. Plaintiff has not assembled any statistics regarding numbers of applicants, qualified or unqualified, black or white. Plaintiff relies solely on showing the number of blacks working for the defendant and the type of positions held, pointing to the paucity of black mechanics, salesmen and clerical workers. Several decisions have cautioned against the bare use of inextensive statistics for small companies and have required, where there was a lack of a great disparity in minority employment as compared to population, some proof beyond the statistics which would tend to show that there were blacks who had in fact applied for jobs and were qualified. See, e. g., Keely v. Westinghouse Electric Corp., 404 F.Supp. 573 (E.D.Mo.1975); Louis v. Pennsylvania Industrial Development Authority, 371 F.Supp. 877 (E.D.Pa.1974), Affd., 505 F.2d 730, Cert. denied, 420 U.S. 993 (95 S.Ct. 1430, 43 L.Ed.2d 674) (1975); McAdory v. Scientific Research Instruments, Inc., 355 F.Supp. 468 (D.Md.1973). The Fifth Circuit has stated:

(C)omparison with general population statistics is of questionable value when we are considering positions for which, as here, the general population is not presumptively qualified. Hester v. Southern Railway Co., 497 F.2d 1374, 1379 n.6 (5 Cir. 1974).

In Hester, the court also stated:

The most direct route to proof of racial discrimination in hiring is proof of disparity between the percentage of blacks among those applying for a particular position and the percentage of blacks among those hired for the position. 497 F.2d at 1379.

The court is mindful of recent Fifth Circuit decisions finding that statistical evidence established a prima facie case. However, in the factual context of this case as outlined above, the court finds that plaintiff's evidence was insufficient to make out such a case. Assuming, though, that this plaintiff's statistics were deemed sufficient alone to shift the burden, the considerations dealt with above as to defendant's business practices, along with other testimony and evidence presented by defendant regarding the relative paucity of qualified black employees, was sufficient to rebut the prima facie case.

Although in a number of cases this Court and others have found a prima facie case established without evidence of qualifications, the inference of discrimination was generally supported by a far more compelling level of racial underrepresentation, usually in a much larger work force, than reflected by plaintiff's figures. In United States v. Hayes International Corp., 456 F.2d at 120, for example, the Court explicitly stated that the burden of proving lack of qualifications was on defendant after plaintiff showed that in Birmingham, Alabama, whose population was 30% Black, defendant's 924 person office and technical staff was less than one percent black and of 299 such employees hired since the suit was brought, less than five percent were black. In Parham v. Southwestern Bell Telephone Co., 433 F.2d 421 (8th Cir. 1970), the court found that plaintiff's statistics proved a Title VII violation as a matter of law where 22% Of Arkansas' population was black yet defendant's work force of 2,736 persons was less than two percent black. See also Jones v. Tri-County Electric Cooperative, Inc., 512 F.2d 1 (5th Cir. 1975) (while relevant geographical area was 40% Nonwhite, defendant employed one black of 50 employees at time suit filed).

Since plaintiff's statistics clearly do not validly depict a gross statistical...