United States Court of Appeals
Fifth Circuit
IN THE UNITED STATES COURT OF APPEALS
F I L E D
March 2, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-60975
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO,
Local Unions Nos. 605 & 985; LARRY BRIDGES; JOYCE RILEY
Plaintiffs - Appellees
v.
MISSISSIPPI POWER & LIGHT CO
Defendant - Appellant
Appeal from the United States District Court for the
Southern District of Mississippi
Before KING, BARKSDALE, and CLEMENT, Circuit Judges.
KING, Circuit Judge:
On behalf of and along with two of their individual members,
Local Unions 605 and 985 of the International Brotherhood of
Electrical Workers, plaintiffs-appellees, filed suit against
defendant-appellant Mississippi Power & Light Company, alleging
that Mississippi Power & Light had engaged in employment
practices with a racially disparate impact. Following a bench
trial, the district court found that the challenged employment
practices had an unlawful disparate impact, as defined by 42
U.S.C. § 2000e-2(k)(1), on Mississippi Power & Light’s African-
1
American employees and potential employees. The district court
awarded lost wages to the individual plaintiffs-appellees, Larry
Bridges and Joyce Riley, and attorneys’ fees to plaintiffs-
appellees’ trial counsel. The district court also directed
Mississippi Power & Light to reform its challenged employment
practices. Mississippi Power & Light then filed this appeal.
For the following reasons, we REVERSE and RENDER judgment in
favor of Mississippi Power & Light.
I. BACKGROUND
A. Factual History
The two individual plaintiffs-appellees, Larry Bridges
(“Bridges”) and Joyce Riley (“Riley”), began working for
defendant-appellee Mississippi Power & Light Company (“MP&L”)
before it was acquired by Entergy, Inc. (“Entergy”).1 During
their employment with MP&L, Bridges and Riley were also members
of the International Brotherhood of Electrical Workers. Local
Unions 605 and 985 of the International Brotherhood of Electrical
Workers (collectively, “IBEW”) are the other two plaintiffs-
appellees.2 After several years of service, Bridges and Riley,
1
Although Entergy is an entity holding operating
companies similar to the former MP&L in several states, because
MP&L is the named party, and following the example of the
district court and the parties, we will frequently refer to MP&L
alone in the remainder of this opinion, even when discussing
events that occurred after Entergy acquired MP&L.
2
Collectively, the plaintiffs-appellees will be referred
to as “the Plaintiffs.”
2
both African Americans, were laid off in 1995 due to a general
reduction across MP&L’s workforce.3 The circumstances
surrounding these layoffs gave rise to the Plaintiffs’ lawsuit.
At the time of these layoffs, IBEW and MP&L had reached a
collective bargaining agreement which permitted laid-off
employees with a certain measure of seniority to “bump” into
positions held by more junior employees, provided the senior
employees could qualify for the new positions. After they were
laid off, both Bridges and Riley attempted to bump into
“Storekeeper” and “Plant Storekeeper” positions which were
covered by the relevant provisions of the collective bargaining
agreement.4 To qualify for the positions, however, Bridges and
Riley had to pass a validated aptitude test known as the Clerical
Aptitude Battery (“CAB,” “test,” or “CAB test”).5 After taking
the test, both Bridges and Riley failed to meet the cutoff score
set by MP&L, and neither was allowed to bump into the Storekeeper
3
Both Bridges and Riley were subsequently rehired,
albeit for positions other than those at issue. Both remained in
MP&L’s employ at the time the district court rendered its
decision.
4
Prior to these layoffs, Bridges and Riley were both
employed by MP&L as electric metermen.
5
The CAB is produced by the Edison Electric Institute
(“EEI”), which is responsible for validating the test by
establishing the statistical correlation between success on the
test and success on the jobs for which the test is given. EEI
also provides suggested scores and ranges to individual
employers, and it requires individual employers to be certified
to conduct the test. Once certified, an individual employer may
set and vary its own cutoff scores.
3
positions.
This case is somewhat unusual because the validity of the
CAB test itself was never directly questioned; rather, the
Plaintiffs argued that MP&L’s method of setting the cutoff scores
for the Storekeeper positions at issue was the unlawful cause of
the disparate impact. MP&L’s testing policy can be broken into
three separate time periods: from 1984 to 1989; from 1989 to
1993; and from 1993 to the time of the trial in 1999. From 1984
to 1989 MP&L used a cutoff score of 178 for the Storekeeper
positions, based on EEI’s recommendation. From 1989 to 1993 MP&L
used a cutoff score of 150. By MP&L’s admission, this shift was
also based on EEI’s recommendation, after MP&L reported
significant amounts of turnover in the Storekeeper positions and
the difficulty encountered by its applicant pool in passing the
CAB. In 1993, following its acquisition by Entergy, MP&L raised
its cutoff score to 180 for the Storekeeper positions, motivated
in part by the desire to create uniformity with Entergy’s other
divisions. Therefore, at the time Bridges and Riley attempted to
bump into the Storekeeper positions, the cutoff score was set at
180. The circumstances surrounding this 1993 shift shaped the
core issues of the underlying suit and this appeal.
B. Procedural Posture
4
The Plaintiffs filed suit pursuant to 42 U.S.C. § 2000e-2,6
which proscribes, inter alia, those employment practices with a
disparate and adverse impact upon protected classes which cannot
be justified by an employer’s legitimate business needs. At
trial, the Plaintiffs contended that the 1993 increase in the
cutoff score from 150 to 180 had a significant adverse and
disparate impact on African-American applicants for the
Storekeeper positions. MP&L responded by arguing that its
decision to raise the cutoff score was justified by business
necessity. The parties presented evidence and arguments during
the course of a bench trial on May 17-20, 1999, and the district
court rendered its judgment for the Plaintiffs on September 30,
2004, directing MP&L to amend its employment practices, awarding
the individual plaintiffs lost wages, and awarding the Plaintiffs
attorneys’ fees.7 MP&L appeals from this judgment.
II. DISCUSSION
Ordinarily, this court reviews a district court’s legal
conclusions de novo and its findings of fact under the clearly
erroneous standard. See, e.g., Davis v. City of Dallas, 777 F.2d
6
In reference to its origins in the 1964 Civil Rights
Act, Pub. L. No. 88-352, 78 Stat. 241 (1964), and in keeping with
common usage, 42 U.S.C. § 2000e-2 will be referred to as “Title
VII.”
7
Neither party was able to explain the district court’s
delay of more than five years between the date of trial and the
day on which the district court rendered its decision, a delay
which seems to us to be wholly unacceptable.
5
205, 208 n.1 (5th Cir. 1985). However, when, as here, this court
finds that a district court’s findings were based “‘upon a
mistaken impression of applicable legal principles, the reviewing
court is not bound by the clearly erroneous standard.’” Walker
v. City of Mesquite, 169 F.3d 973, 982 (5th Cir. 1999) (quoting
Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 855 n.15
(1982)).
We begin our inquiry, of course, with the plain language of
the governing statute. Moore v. Cain, 298 F.3d 361, 366 (5th
Cir. 2002). “An unlawful employment practice based on disparate
impact” is established under 42 U.S.C. § 2000e-2(k)(1)(A) only
when
(i) a complaining party demonstrates that a respondent
uses a particular employment practice that causes a
disparate impact on the basis of race, color, religion,
sex, or national origin and the respondent fails to
demonstrate that the challenged practice is job related
. . . and consistent with business necessity; or (ii) the
complaining party makes . . . [a] demonstration . . . [of
an acceptable] alternative employment practice and the
respondent refuses to adopt such alternative employment
practice.
42 U.S.C. § 2000e-2(k)(1)(A)(i), (ii) (2000) (emphasis added).
The plain language of the statute shows that the burden of
demonstrating acceptable alternative employment practices, set
forth in § 2000e-2(k)(1)(A)(ii), is one that rests upon Title VII
plaintiffs, not defendants. Id.
This direct and unambiguous statutory language reflects the
clear intent of Congress. Congress set forth this framework for
6
disparate impact suits as part of the Civil Rights Act of 1991.
See Pub. L. No. 102-166, § 105, 105 Stat. 1071, 1074-75 (1991)
(adding § 2000e-2(k)(1)(A) to Title VII). In the 1991 Civil
Rights Act’s statement of formal purposes, Congress stated its
intent to “provide statutory guidelines for the adjudication of
disparate impact suits” under Title VII and “to codify the
concepts of ‘business necessity’ and ‘job related’ enunciated by
the Supreme Court in Griggs v. Duke Power Co., 401 U.S. 424
(1971), and in the other Supreme Court decisions prior to Wards
Cove Packing Co. v. Atonio, 490 U.S. 642 (1989).” Id. § 3, 105
Stat. at 1071.
An examination of the Supreme Court’s disparate impact
decisions before Wards Cove reveals that Congress succeeded in
its intent to codify their framework for disparate impact suits
in 42 U.S.C. § 2000e-2(k)(1)(A)(i) and (ii).8 Again, this
framework plainly establishes that the burden of demonstrating
acceptable alternative business practice evidence is one that
rests upon Title VII plaintiffs, not defendants. Shortly after
Griggs, the Supreme Court clarified the structure and allocation
8
Congress specifically revived the standard for
demonstrations of alternative business practices that prevailed
before Wards Cove in the 1991 Civil Rights Act, adding
§ 2000e-2(k)(1)(C) to Title VII, which states that the
alternative practices “demonstration referred to by subparagraph
[§ 2000e-2(k)(1)](A)(ii) shall be in accordance with the law as
it existed on June 4, 1989, with respect to the concept of
‘alternative employment practice.’” Pub. L. No. 102-166, § 105,
105 Stat. at 1074. Wards Cove was decided on June 5, 1989.
7
of burdens in Title VII cases thusly:
[a defendant-employer’s business necessity] burden
arises, of course, only after the complaining party or
class has made out a prima facie case of discrimination
. . . . If an employer does then meet the burden of
proving that its tests are ‘job related,’ it remains open
to the complaining party to show that other tests or
selection devices, without a similarly undesirable racial
effect, would also serve the employer’s legitimate
interest . . . .
Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 (1975) (citing
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801-05 (1973))
(internal citations omitted) (emphasis added).9 The same
structure and allocation of burdens were consistently reiterated
by the Supreme Court during the time period between Griggs and
Wards Cove. In Dothard v. Rawlinson, 433 U.S. 321 (1977), the
Court held that
[o]nce it is thus shown that the employment standards are
discriminatory in effect, the employer must meet “the
burden of showing that any given requirement (has) . . .
a manifest relationship to the employment in question.”
If the employer proves that the challenged requirements
are job related, the plaintiff may then show that other
selection devices without a similar discriminatory effect
would also “serve the employer’s legitimate interest
. . . .”
Id. at 329 (quoting Griggs, 401 U.S. at 432, and Albemarle, 422
U.S. at 425) (internal citations omitted) (emphasis added); see
also Connecticut v. Teal, 457 U.S. 440, 447 (1982) (stating that
a Title VII plaintiff may still prevail after an employer-
9
This passage from Albemarle demonstrates that a Title
VII disparate impact plaintiff has the right, but not the
obligation, to respond with evidence of acceptable alternative
practices when a defendant makes a showing of business necessity.
8
defendant’s showing of business necessity “if he shows that the
employer was using the practice as a mere pretext for
discrimination”). This plain and repeated direction from the
Supreme Court, which Congress expressly intended to revive, is
echoed in the plain language of the governing statute: the burden
of demonstrating the existence of acceptable alternative business
practices rested and continues to rest squarely upon Title VII
plaintiffs.10
The district court departed from this standard and erred by
10
Only a handful of appellate opinions address this
issue; as one of our sister circuits has noted, very few courts
of appeals have dealt with the allocation of disparate impact
burdens as modified by the 1991 Civil Rights Act, and those “that
have applied the Act’s standard to a Title VII challenge have
done so with little analysis.” Lanning v. Se. Pa. Transp. Auth.,
181 F.3d 478, 488 (3d Cir. 1999). In fact, at least one of our
sister circuits has arrived at precisely the opposite
interpretation that we reach today, concluding that the 1991
Civil Rights Act somehow imposed the burden on an employer-
defendant to show “the lack of an effective alternative policy
that would not produce a similar disparate impact.” Bradley v.
Pizzaco of Neb., Inc., 7 F.3d 795, 797 (8th Cir. 1993); see also
Davey v. City of Omaha, 107 F.3d 587, 591-92 (8th Cir. 1997)
(quoting Bradley).
Our contrary interpretation accords with the interpretations
of the Third and Eleventh Circuits. In Lanning, the Third
Circuit applied the 1991 Civil Rights Act and held that when an
employer meets its burden of demonstrating business necessity,
Title VII disparate impact “plaintiffs may still prevail if they
can show that an alternative employment practice has a less
disparate impact and would also serve the employer’s legitimate
business interest.” 181 F.3d at 485. Similarly, the Eleventh
Circuit has applied the 1991 Civil Rights Act and held that a
Title VII disparate impact “plaintiff may still overcome a
proffered business necessity defense by demonstrating that there
exist alternative policies with less discriminatory effects that
would be comparably as effective.” Fitzpatrick v. City of
Atlanta, 2 F.3d 1112, 1118 (11th Cir. 1993).
9
imposing the burden of demonstrating the absence of acceptable
alternative employment practices upon the defendant, MP&L.
Shortly before ruling for the Plaintiffs, the district court
stated that
the business justification evidence offered by the
defendant . . . must justify an employer’s use of the
practice in question and establish that there are no
alternative practices that would achieve the same
business ends, with less racial impact. Certainly, the
defendant most adequately has justified the practice of
testing, and the validity of the CAB as a useful tool for
the purpose of selecting applicants for clerkship
positions. The only question to be resolved is whether
the legitimate business purpose can be achieved only by
establishing and maintaining a cutoff score of 180. This
court is not persuaded that this cut-off score is the
only way to achieve the defendant’s desired ends.
Local Union Nos. 605/985, Int’l Bhd. of Elec. Workers v. Miss.
Power & Light Co., No. 3:96-CV-572-WS, at 46 (S.D. Miss. Sept.
30, 2004) (mem.) (internal citations omitted) (emphasis added).
This excerpt shows both that the district court erred and that
this error had a substantial effect upon the district court’s
ultimate conclusions. But for this error of law, the district
court apparently would have been persuaded that MP&L had “most
adequately” provided an acceptable business justification for its
challenged business practices. See id.
After reviewing the record, we agree with the district
court’s conclusion that the Plaintiffs succeeded in establishing
a prima facie case of disparate impact, and MP&L does not argue
otherwise. We also conclude that MP&L adequately demonstrated
10
that its challenged business practices were both job related and
consistent with business necessity. MP&L showed that increasing
the CAB cutoff score to 180 from 150 significantly increases the
likelihood that successful applicants for the positions in
question will develop into proficient employees.11 These
differences have great value: MP&L can and has pointed to
specific and sizable savings estimates related to its challenged
practices.
Finally, we conclude that the Plaintiffs failed to respond
to MP&L’s demonstration of business necessity because they failed
to provide any meaningful showing of acceptable alternative
employment practices, as they might have done in accordance with
§ 2000e-2(k)(1)(A)(ii) and the clear direction of the Supreme
Court. MP&L’s brief to this court states flatly that “[t]he
Plaintiffs did not offer any proof of an alternative employment
practice.” The Plaintiffs’ brief does not respond to that
statement or even address alternative employment practices. The
court inquired at oral argument whether alternative employment
practices evidence had been presented in the district court.
Plaintiffs’ counsel claimed that Plaintiffs’ expert provided
11
More specifically, MP&L’s expert demonstrated that an
applicant with a score of 180 on the CAB has almost a 50% chance
of developing into an above-average worker, and only a 31% chance
of winding up in the bottom third of all workers. On the other
hand, an applicant scoring 150 on the CAB is equally likely (at
39%) to develop into an above-average employee or to wind up in
the bottom third of all employees.
11
evidence of acceptable alternative practices by describing a
process in which MP&L might require applicants to perform sample
Storekeeper tasks, perhaps during the course of an interview.
While acknowledging that this showing was not particularly
“precise,” Plaintiffs’ counsel argued that it was sufficiently
specific to meet the Plaintiffs’ burden of demonstrating
acceptable alternative employment practices. We cannot agree.
After reviewing the transcript of his testimony, which runs
for over 250 pages, we have found only two instances in which
Plaintiffs’ expert mentioned such an alternative, and we note
that Plaintiffs’ expert even declined to specify whether such a
“structured interview” would involve written or oral questions.
We need not and do not decide whether a more substantial showing
would demonstrate that such hiring practices constituted an
acceptable alternative to the challenged practices at issue. We
simply conclude that the Plaintiffs’ presentation was so tenuous
that it cannot, in any meaningful sense of the word, be
considered an “alternative” to the testing practices that MP&L
has shown were justified by business necessity. Therefore, we
hold that the Plaintiffs failed to show that MP&L’s employment
policies constituted unlawful employment practices based on
disparate impact under Title VII.
III. CONCLUSION
For the reasons stated above, we REVERSE and RENDER judgment
12
in favor of the defendant-appellant, VACATING both the district
court’s restraint upon the challenged employment practices and
the district court’s award of lost wages and attorneys’ fees to
the plaintiffs-appellees. Costs in the district court and in
this court shall be borne by the plaintiffs-appellees.
13