Meyer v. Missouri State Highway Commission

MATTHES, Senior Circuit Judge,

concurring in part and dissenting in part.

I agree with the majority opinion insofar as it affirms the district court’s finding that plaintiff was not discriminated against with respect to shift captain promotion. I must respectfully dissent, however, from that portion of the opinion which holds that plaintiff established a prima facie case of sex discrimination regarding defendant’s failure to employ her as a maintenanceman.

The dispositive issue in this litigation is whether or not plaintiff was qualified for the job of maintenanceman. Unless qualified for the position denied her, plaintiff cannot establish a prima facie case of sex discrimination under Title VII. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817 (1973); Mosby v. Webster College, 563 F.2d 901 (8th Cir. 1977). The district court found that plaintiff lacked the necessary qualifications. Her case must therefore fail unless she can demonstrate that that finding was clearly erroneous.

A district court’s findings of fact will be disturbed as clearly erroneous only if “[s]uch evidentiary weight and convictional certainty [is] present that the appellate court does not feel able to escape the view that the trial court has failed to make a sound survey of or to accord the proper effect to all of the cogent facts . . . .”

Nee v. Linwood Securities Co., 174 F.2d 434, 437 (8th Cir. 1949). The burden of proving clear error is particularly heavy where, as here, the district court is experienced, capable, and even-handed. 5A Moore’s Federal Practice ¶ 52.03, at 2627 (2d ed. 1977); see Noland v. Buffalo Ins. Co., 181 F.2d 735, 739 (8th Cir. 1950).

The district court found that plaintiff was unqualified to be a maintenanceman because she lacked apparent experience with light equipment and because she had a stated preference for daytime work. Plaintiff also had a geographical preference. The majority opinion correctly points out that several male Paseo Bridge employees were interviewed for the job of mainte-nanceman despite either a geographical preference or a lack of apparent experience with light equipment. But only plaintiff indicated a preference for daytime hours. That preference directly conflicted with the requirement that a maintenanceman be on call twenty-four hours a day. On that basis alone, the district court could properly find that plaintiff lacked the qualifications necessary for the position she sought.

It is not enough that we might have found the facts differently for “[i]t is not the function of the court of appeals to reevaluate evidence presented in the trial court, and the reviewing court cannot substitute its judgment for first hand evaluation.” St. Louis Typographical Society Union No. 8 v. Herald Co., 402 F.2d 553, 557 (8th Cir. 1968). As Judge John B. Sanborn, a distinguished jurist, put the matter:

This Court, upon review will not retry issues of fact . . . . The power of a trial court to decide doubtful issues of *812fact is not limited to deciding them correctly. . . . In a nonjury case, this court may not set aside a finding of fact of a trial court unless there is no substantial evidence to sustain it, unless it is against the clear weight of the evidence, or unless it was induced by an erroneous view of the law. (citations omitted).

Cleo Syrup Corp. v. Coca Cola Co., 139 F.2d 416, 417-18 (8th Cir. 1943), cert. denied, 321 U.S. 781, 64 S.Ct. 638, 88 L.Ed. 1074 (1944); see also Kendrick v. Com’n. of Zoological Subdistrict, 565 F.2d 524 (8th Cir. 1977) (Title VII ease).

Plaintiff simply has not met her burden of demonstrating that the district court’s finding that she was not qualified to be a maintenanceman was clearly erroneous. Consequently, I am compelled to hold that plaintiff failed to establish a prima facie case of sex discrimination.

I must also disagree with the majority’s position that the district court required plaintiff to adduce a greater quantum of proof than that required in a Title VII case. In my ■ view, the language of the district court’s opinion to which the majority objects, at 810, is taken completely out of context. Even so, the district court’s formation does not indicate the imposition of an undue burden of proof on the plaintiff. That section does not differ materially from those other portions of the district court’s opinion which discuss the plaintiff’s burden. What differences exist are purely semantical. When read as a whole, the district court’s opinion clearly demonstrates a proper regard by an able trial judge for the plaintiff’s burden of proof.

Neither am I persuaded that the majority’s assessment and evaluation of the statistical evidence is correct. Although such evidence, under proper circumstances, is entitled to appropriate consideration, it did not in this case, as the majority holds, at 810, establish a prima facie case of discrimination as a matter of law. The statistical evidence shows that no females were employed by defendant as maintenancemen, but there was no evidence concerning the number of females who sought the position. Without such a comparative measure, the statistical evidence cited by the majority is, at best, inconclusive. Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 231 n. 46 (5th Cir. 1974); see Green v. Missouri Pacific Railroad Co., 523 F.2d 1290, 1295 (8th Cir. 1975). If the record revealed that other women besides plaintiff were denied employment as maintenancemen, then a proper statistical inference of disparate treatment might be drawn.

Finally, and in summary, the majority opinion, viewed in the light of the entire record, is internally inconsistent. The evidence relating to plaintiff’s claim that she was not promoted to toll captain solely because of her sex is just as cogent and probative, if not more so, than the evidence in support of her contention that her sex was the sole motivation for denying her a job as a maintenanceman. As I read the record, plaintiff was familiar with all segments of the toll collecting operation on Paseo Bridge, including the duties of toll captain, yet Alfred Schumacher, who supervised and managed the Paseo Bridge, did not promote plaintiff to the position of toll captain. However, the district court found, in effect, and properly so, that plaintiff’s gender was not a factor in Schumacher’s decision.

It seems only logical to conclude that the job of maintenanceman involves duties which are far more arduous than those which a toll captain is required to perform. The record bears out this conclusion. Frank Taggart, Personnel Liaison Officer for the Highway Commission, testified that a maintenanceman was subject to be on call twenty-four hours a day. He carefully considered plaintiff’s transfer application, and it is clear that, after a close appraisal of plaintiff’s qualifications and her stated preference for day hours only, he concluded that she was not qualified for the position of maintenanceman. It was on that basis, and that basis alone, that she was not employed. In particular, he stated that he did not give plaintiff’s application, her performance record, and her data sheet any differ*813ent treatment than that accorded the male applicants who were seeking relocation.1

On the basis of all of the evidence, the district court made the following finding:

With full awareness of the difficulty of proving sex discrimination even though it may in fact exist, the Court has very carefully examined all of plaintiffs contentions and the evidence with sensitivity for any such possible bias. Having given full consideration to plaintiff’s arguments and plaintiff’s evidence, however, the Court found her claims of discrimination on the basis of sex and promotions and relocation unsupported by the record. Plaintiff has failed to present a prima facie case of discrimination, and the burden of proof accordingly has not shifted to defendant to set forth a nondiscriminatory reason why plaintiff was neither promoted nor relocated upon closing of the bridge. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The Court does note in addition, however, that defendant has set forth competent evidence to explain the circumstances of plaintiffs employment situation.

Considering the entire record, I am not “left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). Accordingly, I would affirm the judgment.

ADDENDUM TO DISSENT

The concluding paragraph of Judge Bright’s original opinion read as follows:

Accordingly, we reverse and remand this case to the district court with directions to grant appellant appropriate relief in conformity with 42 U.S.C. § 2000e-5(g) (Supp. V 1975). We shall allow appellant costs as well as reasonable attorneys’ fees on this appeal upon the filing of an appropriate affidavit supporting and detailing time spent upon this appeal, (citations omitted.)

Judge Bright has now revised the foregoing paragraph to read:

Accordingly, we reverse and remand this case to the district court with directions to grant appellant back pay, attorneys’ fees, and costs in the district court action, and other appropriate relief in conformity with 42 U.S.C. § 2000e-5(g) (Supp. V 1975). We shall allow appellant costs as well as reasonable attorneys’ fees on this appeal upon the filing of an appropriate affidavit supporting and detailing time spent upon this appeal, (citations omitted.)

Thus, it will be seen that the opinion has been modified to require the district court to grant the appellant back pay, attorneys’ fees, and costs in the district court action. I am particularly disturbed by this very materia] change, and it is my firm belief that any relief granted appellant by the district court should be prospective only. It occurs to me that the district court will be required to engage in speculation if it is compelled to grant appellant back pay. This is so because there is nothing in the record to show that if appellant had been offered a job as maintenanceman that she would have accepted what was offered her. Neither is there any evidence in the record to show the period of time appellant might have continued working for the Commission in any position that she might have accepted. Under these circumstances, I fail to understand what criteria or guidelines the district court may use in attempting to arrive at an appropriate amount to which appellant is entitled as back pay. Before any such award is made, I would hope that the district judge would fully explore the *814questions that I pose in this addendum to my dissent. Appellant is certainly not entitled to back pay which would in effect constitute a windfall for her. Of course, I continue to adhere to my position that she is not entitled to any relief.

. Mr. Schumacher, plaintiff’s immediate supervisor, did not testify during the trial. The record discloses that the attorney representing the Highway Commission made a conscientious effort to locate Mr. Schumacher, but was unable to do so. Apparently, Mr. Schumacher had suffered from some illness after the toll collecting process on Paseo Bridge had been terminated. However, Taggart testified to conversations he had with Schumacher and stated positively that Schumacher at no time demonstrated any bias or prejudice toward plaintiff because she was a female.