Moody v. Albemarle Paper Co.

ALBERT V. BRYAN, Senior Circuit Judge

(dissenting in part, and concurring in part):

I would affirm the District Court’s refusal to enjoin the employee testing practices of Albemarle Paper Company. However, I would reverse for its depri-val of the employees of an opportunity to recover back pay, if any, lost by reason of the practice of fixing seniority on a job instead of a plant basis.

One cannot read the District Judge’s opinion without being impressed by its thoroughness, completeness and fairness. Overall, save for the disallowance of back pay just mentioned, I think the opinion honors the dictates of the Civil Rights Act of 1964 and squares with the exactions of the Act as expounded in Griggs v. Duke Power Company, 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971).

While Judge Craven’s recitation of the facts is altogether accurate, I would add this synopsis. A full appraisal of the Court’s ruling calls for review of the steps taken by Albemarle to meet the statute’s demands. Before the effective date of the Civil Rights Act of 1964, Al-bemarle commenced recruitment of black applicants from the nearby high schools for participation in the company’s apprentice program. It also sought applications from among its black employees.

Following Griggs, Albemarle conducted validation studies of its testing requirements. To this end an acknowl*147edged expert in such matters was retained. He gauged his study by the manual, among others, issued August 1, 1970 by the Equal Employment Opportunity Commission, entitled “Guidelines of Employee Selection Procedures”. Pursuant to his directions each employee was given three well-known tests, the Wonderlic, Forms A and B, and the Beta. The tests purported to show the employee’s capability to do the work assigned him. His performance was thereafter rated twice by two different supervisors, who made independent evaluations without knowledge of his test scores.

The test results and job ratings were sent to Purdue University for statistical correlation. The District Judge found:

“35. The results of the validation study, presented both in statistical and graphical form, showed positive correlations of a statistically significant nature for nine of the ten specific job groupings. . . . ”

The expert advised that “the company utilize these tests for its initial hiring”, observing, however, that “no test or set of tests will validate for all jobs.” With this evidence in mind, I look to the errors ascribed in Judge Craven’s opinion to the District Court’s refusal to direct Albemarle to abolish or change its testing procedures.

I. First, I cannot agree that the employer did not validate the tests and relate them to the jobs in all the lines of skilled employment. The District Judge found otherwise, saying: “The group tested was typical of employees in the skilled lines of progression”. This, for me, is a conclusion that the groups tested fairly exemplified the remaining groups and also fairly represented the qualifications existing in all the skilled lines. This reading of his factual findings is reinforced by his later statement: The personnel tests administered at the plant have undergone validation studies and have been proven to be job related”. (Accent added.) This statement, I understand, encompasses all the groups at the plant, whether tested directly or by sample. Such a method of testing in a multiunit organization is, as noted by Judge Craven, approved by the Guidelines of Employee Selection Procedures, supra, § 1607.5.

The breadth of the expert’s survey is described in his report as follows:

“General Summary:

“Inspection of the correlations and charts shown in this report shows quite conclusively that both the Beta and Wonderlic A tests can be reasonably used for both hiring and promotion for most of the jobs in this mill. . The EEOC could not reasonably object to these standards in the light [of] the validation data covered in this report.” (Accent added.)

Secondly, in view of the findings by the Court that validation studies had been applied to the personnel tests and that the tests had been proved to be job related, I cannot join in the determination that discrimination resulted from the absence of “job analyses”. It seems to me that these findings necessarily recognize that the equivalent of “job analysis” was utilized. In rating the employees, the jobs’ features were undeniably considered, for the supervisors were unquestionably familiar with these elements.

Thirdly, also unwarranted, it seems to me, is criticism of the District Court’s acceptance of the company’s practice of “requiring applicants to pass two tests for positions where only one test was validated”. The two are the Beta and Wonderlic. Beta (non-language) measures merely native intelligence, while Wonderlic (verbal) tests reading ability. The District Court justifies its approval of Albemarle’s utilizing both tests because it was a business necessity. The Court found that the complexity of Albe-marle’s newly adopted machinery made reading an absolute requirement for the *148safe and efficient operation of the machines and called for employees “with a high level of native intelligence”. A personal inspection of the machinery revealed the intricacy to the judge.

Each of these aptitude tests is “demonstrably a reasonable measure of job performance”. Griggs, at 436, 91 S.Ct. at 856. Thus they are their own proof of their validation. My understanding is that a test cannot be declared discriminative if it searches for an indispensable factor of a job. Griggs, supra, at 431, 91 S.Ct. 849.

It does not appear from the District Judge’s findings that low scores on one or both tests would bar all applicants for employment. Decisions on employment in non-technical areas are apparently not made solely upon test results, but include such considerations as experience, references and interviews.

In my judgment the District Judge, in regard to the testing requirements, exercised a cautious solicitude, both for the employees’ entitlements and the employer’s obligations under the Civil Rights Act of 1964. His injunction against a high school education as a job prerequisite and against the use of job seniority instead of plant seniority removed the employees’ sustainable grievances. Ten days were devoted to the hearing of the case — July 26 to August 5, 1971. With this industry and application, along with the knowledge of the rigors of Griggs, as well as of the EEOC guidelines, the District Judge did not, to my mind, omit or deviate in any significant degree from the Act. It must be remembered, throughout, that the three items of the District Judge’s determination just enumerated constitute findings of fact, and I cannot say they are clearly erroneous.

II. Lastly, recovery was asked by the plaintiffs for “the amount of pay which would have accrued to the employees had there been no unlawful practice”. Under the Act, 42 U.S.C. § 2000e-5(g), back pay may be ordered in accompaniment of an injunction — and only then— against an employer who has engaged in “an unlawful employment practice” and has done so “intentionally”.

As Judge Craven notes, the District Court found that “Albemarle has practiced racially discriminatory employment . prior to July 2, 1965 and that the effect of this discrimination had been perpetuated through a job seniority system”. Accordingly the Court issued an injunction, pursuant to the Act, against the maintenance of this discrimination, terming it “an unlawful employment practice” and concluding that it had been committed “intentionally”. No objection was made by the employer to this finding and conclusion, and no appeal taken from the injunctive order. Indeed, in the oral argument of the appeal the appellee-defendants conceded that the District Judge had indeed stated this conclusion on “intentionally”.

For this reason I think back pay lost by an employee through the company’s resort to job-seniority should be recovered. Of course, the reimbursable loss must be proved to be the direct result of the invidious practice and, as Judge Craven admonishes, the grant of monetary relief is not to exceed the “damages which are actually suffered”.

Conclusion

In sum, as set forth in Part I hereof, I dissent from Part I of Judge Craven’s opinion; but I concur with the award, in his Part II, of back pay insofar as it is granted for loss occasioned by the job seniority practice, as explained in my Part II.