Mazus v. Dept. of Transportation

SLOVITER, Circuit Judge,

dissenting.

The district court’s findings of fact show a classic case of sex discrimination which emerges when women seek to enter labor positions which were not traditionally open to them.

In November 1974, Mrs. Mazus, stimulated by a PennDOT flyer circulated to her husband and other PennDOT employees which encouraged minority and female applicants to apply for PennDOT employment at the Department’s county and district offices, followed those instructions exactly. She went to the PennDOT district office at Dunmore, Pennsylvania and requested an application form for highway work. There, the District Labor Relations Officer, Bert Davis, attempted to dissuade her from seeking that type of employment. Her efforts at the county office were also unsuccessful, so she returned to the district office the following week where she met again with Davis and with Reginald Knight, an Equal Opportunity Development Specialist with PennDOT at that office. They suggested she try to find work with a private contractor. Knight added that he would not want his wife to do that type of work. Davis spoke of women who had been road workers for PennDOT, found the job too difficult, and quit. He also mentioned a woman who had attended an engineering class with him who expected her surveying equipment to be carried for her by male students.

Leonard Coddington, the Superintendent of Maintenance for PennDOT operations in Pike County, told plaintiff’s husband he should try to interest her in a clerical job, that he would thereby show “what kind of man he was.” Coddington also stated to the group of union committeemen, with regard to Mrs. Mazus’ employment efforts, that he would not want to see his own wife in a job requiring her to work in the field with men and without proper sanitary facilities.

*877Mrs. Mazus did not abandon her efforts. She contacted the Pennsylvania Human Relations Commission, the state fair employment practices agency, seeking help in getting an application form, she wrote to state and federal officials for assistance in obtaining PennDOT employment or at least an application form, and she continued to call Coddington during 1974 and 1975 to inquire about job opportunities. Ultimately, Mrs. Mazus received the coveted application form through the intercession of the Governor’s Personnel Office, and she was hired and started working as a Highway Maintenance Worker in May of 1977.

There is no question about Mrs. Mazus’ ability to do the work. PennDOT conceded plaintiff’s qualifications for a highway maintenance position which required, inter alia, (a) the ability to use simple tools in repairing potholes and minor defects in and around the state roads and (b) sufficient physical strengths and freedom from disabling defects to lift heavy objects and to work under adverse weather conditions.

The October 1974 PennDOT flyer which precipitated this series of events was purportedly sent to promote affirmative action. A review of the statistical findings of the district court demonstrates why that might have been needed. For the period 1970-1976, PennDOT employed only six women in semiskilled positions in the entire state, or 0.17% of that group of employees. For the seven counties in PennDOT District 4, which included Pike County where Mrs. Mazus lived and applied for work, PennDOT employed but one woman in the semiskilled classifications, or 0.26% of its laborer work force. In Pike County itself, women held none of the semiskilled PennDOT positions. The district court noted that PennDOT conducted an internal EEOC review for Pike County operations covering the year 1974. The review rated Pike County deficient in all categories of utilization of women and minorities.

The district court held that neither the treatment of Mrs. Mazus nor the statistical evidence sufficed to establish a prima facie case of discrimination. The court held that plaintiff failed to satisfy all of the four requirements of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973), because the position she sought was not available to others. With respect to Mrs. Mazus’ efforts to establish a prima facie case through the statistical evidence, the district court rejected her proffer of census data, which would have shown that women comprised 7.6% of the laborer positions in Pennsylvania, and instead used a Pennsylvania Bureau of Employment Security category in which females represented 0.41% to 0.68%. Finally, the district court held that even if Mrs. Mazus did establish a prima facie case, it was rebutted “by the evidence that the jobs were assigned to others because their interest in these positions predated plaintiff’s inquiry and not because of any sex discrimination.”

I dissent from the majority’s affirmance of the judgment because I believe that the district court used a reason impermissible under the policy of Title VII and its precedent as the basis for its holdings that plaintiff had not established a McDonnell Douglas type prima facie case and that defendants adequately rebutted either type of prima facie case.

Title VII was enacted “to assure equality of employment opportunities and to eliminate those discriminatory practices and devices which have fostered racially stratified job environments to the disadvantage of minority citizens.” McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800, 93 S.Ct. 1817, 1823, 36 L.Ed.2d 668 (1973). The same goal is equally applicable to sex discrimination. See Great American Federal Savings & Loan Association v. Novotny, 442 U.S. 366, 373, 99 S.Ct. 2345, 2349, 60 L.Ed.2d 957 (1979). A Title VII plaintiff may show either that s/he has been subject to “disparate treatment” because of race or sex, see, e. g., McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668, or that s/he has been the victim of a facially neutral practice having a “disparate impact” on minorities or females. See, e. g., Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. *8782362, 45 L.Ed.2d 280 (1975). A prima facie case of “disparate treatment” discrimination can be made by showing the four McDonnell Douglas factors set forth by the majority. At 874. A prima facie case of “disparate impact” can be made by showing “gross statistical disparities.” Hazelwood School District v. United States, 433 U.S. 299, 307-08, 97 S.Ct. 2736, 2741, 53 L.Ed.2d 768 (1977).

Once the plaintiff has established a prima facie case, the defendant has the burden to come forward with a defense to the prima facie showing of discrimination. The principal defenses which have been recognized in the cases to date are (1) selection criteria which are job-related and thus are a business necessity; (2) business necessity; (3) a bona fide occupational qualification; and (4) a bona fide seniority or merit system. B. Schlei and P. Grossman, Employment Discrimination Law 1195-96 (1976). Both the holding that plaintiff did not establish a prima facie case of disparate treatment and the holding that defendant rebutted that case entail crediting a defense unique in Title VII cases to date, that the positions were dispensed on the basis of political patronage rather than qualifications of the applicant.

We may assume, without deciding, that if the employer had a practice of maintaining a list of applicants in the order in which they applied, and of hiring them in that order as a vacancy occurred, that would constitute a legitimate business practice. In such an instance the employer might maintain that since some jobs can be filled by employees with relatively homogeneous qualifications, it determined for reasons of fairness and public relations to hire applicants on a first-come, first-served basis rather than on an evaluation of their qualifications. In that instance, if the employer maintained a list and there were insufficient vacancies to reach down to a particular position on that list, that would constitute a satisfactory rebuttal of the inference of discrimination which arises when plaintiff establishes a prima facie case of discrimination.

However, in this case, it is undisputed that shortly after Mrs. Mazus sought to apply for the job, PennDOT hired nine men for highway maintenance positions in Pike County during November and December 1974. Therefore, there were openings after plaintiff applied and the McDonnell Douglas requirements were established. As we have noted on several occasions, we have “not been overly demanding in the proof required for a prima facie case.” Jackson v. U.S. Steel Corp., 624 F.2d 436, at 440 (3d Cir. 1980), (citing Whack v. Peabody & Wind Engineering Co., 595 F.2d 190, 193 n.ll (3d Cir. 1979)). If the fact that the men subsequently hired were prior applicants has any relevance at all to this case, it would be as rebuttal in articulating a legitimate nondiscriminatory business reason for the failure to hire Mrs. Mazus. Therefore, the court erred in considering it in connection with plaintiff’s prima facie case.

Insofar as it was proffered for the employer’s rebuttal, there was absolutely no evidence that PennDOT, the employer, maintained any list or had a policy to award jobs in the order of application. To the contrary, PennDOT defended on the basis that it had completely abrogated its hiring responsibility in Pike County to the Democratic County Chairman, Ernest Gastmeyer. Gastmeyer controlled the job applications, and he or his political lieutenants would dispense one application for each job vacancy, thus making receipt of the application equivalent to receipt of the job. Although PennDOT did not exercise any control over hiring, its employees were inextricably interwoven with the ultimate process, since the completed application was delivered to PennDOT’s County Superintendent, Coddington, who transmitted it and other necessary paperwork to the PennDOT personnel bureau in Harrisburg. That office had the authority to cancel the appointment made by the county superintendent if the employee was deemed unsuitable for the job, but there was no evidence that was done during the period at issue in this case.

The district court stated: “Mindful of the fact that there had been a job freeze since *8791971, it is permissible to infer that Gastmeyer had a ready list in his ‘memory bank’ of potential applicants for highway maintenance positions” (emphasis added). The record is devoid of any evidence that Gastmeyer’s “memory bank” listed applicants in order of their request for positions and dispensed applications in that order. I have found nothing in the record to support the majority’s statement that before the jobs were awarded in November and December, 1974 “Gastmeyer had decided who would receive them and where they might be assigned.” At 872. The district court merely found Gastmeyer had committed the job openings “to the various townships by October 1974,” not to various applicants. Even Gastmeyer, to whom PennDOT had delegated its hiring power, did not testify that the nine men who were hired for those positions were hired because they had requested application forms before Mrs. Mazus. There was also no evidence that the jobs were awarded to the first nine men who had applied through the politicians. In fact, the findings were directly to the contrary, since the district court found: “The County Chairman would attempt to apportion job openings in the eleven townships and two boroughs in Pike County where the work would actually be performed and where it would be to political advantage ” (emphasis added). Without detailing the employment process of each of the nine men, the court’s findings as to one suffices to show how the process worked:

James Gifford spoke to a PennDOT foreman in late September 1974, who told him that there was a need for men and advised him to inquire at the Milford Office. There Gifford spoke with Committeeman Frank Razny, who told him to register to vote, to get six others to register, and to have his wife register or she could be in trouble. In November Gifford was told to go to Milford, where he picked up an application on November 22.

It is therefore crystal clear from this record that Mrs. Mazus was passed over in 1974, not because her request came after that of the nine men who were hired, but because she did not have the requisite political connections.

Thus the question, avoided by both the district court and the majority, is whether an employer may either defend a Title VII action or rebut a prima facie case established by the plaintiff on the basis of a practice which is unrelated to the employment needs of the employer or the qualifications of the applicant. No Title VII case to date which we have found has permitted a defense based on any reason unrelated to the legitimate business considerations of the employer.

A similar issue was considered in Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), where the employer required a high school education or passing of a standardized general intelligence test as a condition of employment in or transfer to jobs. In holding that the use of such employment prerequisites was impermissible on that record, the Court specifically relied on the fact that neither standard was shown to be significantly related to successful job performance. The Court stated:

On the record before us, neither the high school completion requirement nor the general intelligence test is shown to bear a demonstrable relationship to successful performance of the jobs for which it was used. Both were adopted . . . without meaningful study of their relationship to job-performance ability.

Id. at 431, 91 S.Ct. at 853. Later in the opinion, the Court noted that: “Congress has placed on the employer the burden of showing that any given requirement must have a manifest relationship to the employment in question.” Id. at 432, 91 S.Ct. at 854 (emphasis added). The requirement that defenses must be job-related .runs throughout the cases considering the validity of various employer practices. See, e. g., Albemarle Paper Co. v. Moody, 422 U.S. 405, 425-26, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280 (1975); United States v. City of Chicago, 549 F.2d 415, 428 (7th Cir.), cert. denied, 434 U.S. 875, 98 S.Ct. 225, 54 L.Ed.2d 155 (1977); Vulcan Society City Fire Department, Inc. v. Civil Service Commission of *880New York, 490 F.2d 387, 393-94 (2d Cir. 1973).

When the courts have accepted employer defenses, they have always done so on the basis of a reason related to the employer’s business. See, e. g., Jackson v. U.S. Steel Corp., 624 F.2d 436 at 439 (3d Cir. 1980) (job eliminated as a result of legitimate business reorganization); Osborne v. Cleland, 620 F.2d 195, at 197 (8th Cir. 1980) (false appointment affidavit); Chalk v. Secretary of Labor, 565 F.2d 764, 767 (D.C.Cir.1977), cert. denied, 435 U.S. 945, 98 S.Ct. 1527, 55 L.Ed.2d 542 (1978) (other applicants more qualified); McFadden v. Baltimore Steamship Trade Association, 483 F.2d 452, 453 (4th Cir. 1973) (pilferage by plaintiff).

Just as an employer could not defend its discriminatory hiring practices by relying on an employment agency to find its employees, see 42 U.S.C. § 2000e-2(a) & (b); EEOC Decision No. 72-268, 10 FEP 1502, 2 Empl.Prac. Guide (CCH) H 6452, p. 4200 (May 30, 1975), neither can PennDOT defend by hiding behind the arras of the political patronage system. Employment decisions based on political affiliation are themselves of questionable legality. See Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980); Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976); Rosenthal v. Rizzo, 555 F.2d 390 (3d Cir.), cert. denied, 434 U.S. 892, 98 S.Ct. 268, 54 L.Ed.2d 178 (1977).

The majority’s affirmance of the district court’s holding that an employer can rebut a prima facie Title VII case on the basis of a practice which has no relationship to its business or its legitimate business needs creates an unfortunate gap in antidiscrimination law.

Because, as noted above, plaintiff established a prima facie case of discrimination under the McDonnell Douglas criteria, it is not necessary to devote detailed consideration to the prima facie case established by the statistical evidence. It is important to note, however, that the district court’s reason for rejection of the census data and its substitution of the Bureau of Employment Statistics data does not withstand analysis. The court rejected the census category “laborers — except farm” entirely on the basis of the following reasoning:

Plaintiff argues further that if women were hired by PennDOT in the proportion suggested by the census, they would have held 273 labor intensive positions rather than 6. However, there is no showing that the laborers-except farm classification would be similar to highway maintenance workers. It could include a significant amount of unrelated jobs, such as defense counsel’s suggestion that it includes inside workers. Mr. John Devine, Assistant District Manager for Employment Services in Pennsylvania, described the “laborers-except farm” classification as “very broad.” These statistics are not demonstrably similar to the position at issue here and cannot be confidently relied on-as a basis for concluding that a pattern or practice of sex discrimination exists.

The Bureau of Employment Security category, relied on by the district court, also includes inside jobs, such as maintenance man helper, factory or mill, general maintenance helper, and shaft repairman. Thus the reason given for the rejection of the census data applies equally to the data accepted. There is a more basic reason why the BES data is an unreliable indicator of the number of women in the potential work force. The BES figures record the number of applicants for unemployment compensation throughout the State. If women have traditionally been denied opportunity in the type of positions covered by that code (and a quick glance at the jobs listed in that code at 874 shows that they have been), they will have been unlikely to have applied for unemployment compensation in that category. Therefore, use of that code as the reason for rejection of plaintiff’s prima facie statistical case serves to perpetuate the discrimination of which plaintiff complains. As noted in Dothard v. Rawlinson, 433 U.S. 321, 330, 97 S.Ct. 2720, 2727, 53 L.Ed.2d 786 (1976): “The application process itself might not adequately reflect the actual potential applicant pool, since other*881wise qualified people might be discouraged from applying because of a self-recognized inability to meet the very standards challenged as being discriminatory.”

On the other hand, use of census figures has been customary in employment discrimination litigation. As the Supreme Court recognized: “Evidence of longlasting and gross disparity between the composition of a work force and that of the general population thus may be significant even though . - [the] work force [need not] mirror the general population.” International Brotherhood of Teamsters v. United States, 431 U.S. 324, 340 n.20, 97 S.Ct. 1843, 1857 n.20, 52 L.Ed.2d 396 (1977); Dothard v. Rawlinson, 433 U.S. at 330, 97 S.Ct. at 2727; Parham v. Southwestern Bell Telephone Co., 433 F.2d 421, 426 (8th Cir. 1970).

I would therefore hold that plaintiff in this case adequately established a prima facie case of discrimination under either the “disparate treatment” or “disparate impact” theory and that the basis which Penn-DOT used to attempt to rebut the case cannot be credited or allowed under Title VII since it has no nexus to any legitimate employment consideration of the employer. Because I believe plaintiff’s statutory ground suffices to establish her claim, I need not reach the constitutional issue reached by the majority, except to note that the holding is contrary to the thrust of another case of this court, Rosenthal v. Rizzo, 555 F.2d 390, 392 (3d Cir.), cert. denied, 434 U.S. 892, 98 S.Ct. 268, 54 L.Ed.2d 178 (1977), and the policy if not the holding of the Supreme Court in Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980) and Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976).