Equal Employment Opportunity Commission v. Ford Motor Co.

WALTER E. HOFFMAN, Senior District Judge,

dissenting in part:

The District Court found that appellant, Ford Motor Company [Ford], had discriminated against ten women by failing to hire them by reason of sex, in violation of Title VII of the Civil Rights Act of 1964, and ordered back pay for each from the date of the discriminatory refusal of initial employment to the date of the filing of certain findings of fact and conclusions of law on December 30, 1977, together with compounded interest. Three of the women, Gaddis, Starr, and Smith, were determined to have been refused employment in 1971 when Ford hired three men; the remaining seven were not considered by Ford to fill an opening when, in 1973, a man was hired. The seven women were permitted to share one award.1

I agree with the District Court and the majority that the evidence supported a finding that Ford was guilty of discrimination for certain periods of time. My disagreement lies in the remedy fashioned by the District Court, as expanded by the majority. I shall deal with Gaddis and Starr collectively; individually with Zettie Smith; and collectively with the remaining seven women. As noted in footnote (1), if I am correct with respect to Smith, she would automatically be added to the group of seven women.

Gaddis and Starr

Gaddis and Starr made written application for employment with Ford on July 21, 1971, after they had been laid off by Gener*202al Motors [GM].2 Three men commenced their employment with Ford in early or mid-August, 1971. At the time Ford hired the men — Blanchard, Coe, and Rogers — no consideration was given to the applications by Gaddis and Starr. Ford contends that its decision to hire the men was made prior to receipt of the applications from Gaddis and Starr, but at least two of three men were probably hired after July 21.3 The men were interviewed for the jobs, whereas the warehouse manager only agreed to talk to the two women following their repeated requests for an interview and not until after the three openings had already been filled. While I agree that there was sufficient evidence of discriminatory practice not to hire women in a warehouse position in 1971, I do not suggest that an employer is required to update all applications for employment to the very moment of hiring in order to fill a position without discrimination. In November, 1972, Gaddis and Starr were given admittedly temporary employment by Ford for a period of approximately six weeks. Thereafter, they again went to work for GM on January 4, 1973, and, while employed by the latter, were given unconditional offers of employment by Ford in July, 1973, which both rejected.

Back Pay: Employment Elsewhere

I believe that the District Court extended Gaddis’s and Starr’s back pay well beyond the time it should have done so as a matter of law. The employment both women obtained at GM in January, 1973, was substantially equivalent to that denied them by Ford — approximately the same type of work, pay and conditions — and lasted over a year. The period for back pay under Title VII and its model, the National Labor Relations Act [NLRA], does not end with any temporary or lesser employment that the rejected applicant or discharged employee may accept to mitigate damages, although such pay is subtracted from his total award. But once he obtains permanent, substantially equivalent employment, all back pay terminates.

The two courts, cited for the proposition that the womens’ back pay should not stop with their employment by GM, did end each employer’s liability when the employee obtained a permanent job at pay equal to that of the job illegally denied him or her. Butta v. Anne Arundel County, 473 F.Supp. 83, 89 (D.Md.1979) (Back pay stopped when rejected applicant had net full-time earnings equal to those of the position he was denied and in a job comparable to that withheld; once he was in that position, back pay did not resume again even when he voluntarily left for a lower-paying job); Weiner v. County of Oakland, 14 F.E.P. Cases 380 (E.D.Mich.1976) (Back pay ceased when applicant was promoted by the employer who hired her after defendant’s illegal denial of employment to a position comparable to the one she was denied).

Although at the time of judgment the rejected applicant in Weiner was still in the comparable job, and in Butta, had left his comparable job voluntarily, whereas Gad-dis’s and Starr’s jobs in Charlotte with GM no longer existed, neither case holds that a job must last until judgment in order for back pay to be cut off all together. Some courts have gone beyond these two cases in *203their pronouncements, stating broadly that Title VII damages end with “employment” or “a job”, but those words have been in dicta. E. g., Taylor v. Safeway Stores, Inc., 524 F.2d 263, 267-68 (10th Cir. 1975) (Plaintiff entered school and court analogized to the rule: “If a discharged employee accepted employment elsewhere, there is little doubt that this would cut off any back pay award.”); Milton v. Bell Laboratories, Inc., 428 F.Supp. 502, 515 (D.N.J.1977) (Although court found no discrimination, it set damages to run “until [plaintiff] took a job” in case its decision was reversed on appeal; the job he had taken was comparable in pay, however.). The view of courts deciding NLRA cases, although unstated, seems to be that employment elsewhere only cuts off back pay if it is substantially equivalent and permanent. Phelps Dodge Corp. v. N.L.R.B., 313 U.S. 177, 61 S.Ct. 845, 85 L.Ed. 1271 (1941); see also N.L.R.B. v. Mastro Plastics Corp., 354 F.2d 170, 179 (2d Cir. 1965), cert. denied, 384 U.S. 972, 86 S.Ct. 1862, 16 L.Ed.2d 682 (1966) (“It would be unjust to require him to mitigate his damages to the greatest extent possible but then to penalize him for substantial but short-lived success.”). The Board itself, however, has cut off back pay with a new job without stating any requirement that the job be permanent. E. g., Circle Bindery, 232 N.L.R.B. 1185, 1187-88 (1977); Star Baby, 140 N.L.R.B. 678, 683 (1963).

In my opinion, Gaddis’s and Starr’s employment with GM, because it was intended to be permanent and, in fact, lasted over a year, cut off Ford’s back pay liability to them.

Throughout the majority opinion reference is made to the Gaddis and Starr employment by GM in January, 1973, as being “temporary”. The record makes no reference to “temporary” employments, and there is no evidence from either Gaddis, Starr, or GM, that the employment in 1973 was not intended to be permanent. Indeed, the fact that Gaddis and Starr were offered a job with GM in Atlanta, following the closure of the Charlotte plant, is a rather clear indication that the positions were permanent. True, when GM left the Charlotte area in 1974, it can be argued that the result was a “temporary” job, but is this the test which courts should employ in determining whether employment is “temporary”? Even the majority agrees that if the January, 1973, employment by GM was permanent, this served as a cutoff for any back pay award.

Back Pay: Refusal of Job Offer

Ford’s offers of employment to Gaddis and Starr in July, 1973, were not contemporaneous. Gaddis, who had a reasonably satisfactory working record while engaged in her temporary employment by Ford, was given the first offer. After Gaddis rejected the offer, Ford contacted Starr with a similar offer, which Starr likewise rejected. The discussions between Ford and the two women at the time the offers were made involved no consideration of back pay or seniority rights. At trial, Gaddis and Starr indicated that they refused Ford’s offers because neither wanted to be the only woman working in the warehouse, which was the primary reason they gave Ford at the time for declining the jobs, and because they did not want to lose their seniority rights at GM, where they were then employed and remained employed until January 25, 1974.4 The latter reason was not conveyed to Ford at the time they rejected the offers.5

*204For the reasons stated, infra, I am of the opinion that, if the right to back pay for Gaddis and Starr did not terminate with their reemployment at GM on January 4, 1973, it certainly ended when they were given unconditional offers of permanent employment in the warehouse at Ford’s plant in Charlotte in July, 1973. In its findings and conclusions the district court, citing one of its own decisions, Brown v. Colman-Cocker Co., 10 C.C.H., E.P.D. ¶10,-492 (W.D.N.C.1975), as precedent said:

Back pay due to Gaddis and Starr shall not be affected by their refusal to accept the single position offered to them in July, 1973, inasmuch as neither would have been confronted by that decision and its implications had both been hired in August, 1971.

The earlier opinion by Judge McMillan, however, dealt with a situation very different from that here involved, and its holding was quite distinct: An offer of reinstatement, not initial employment, was invalid because it offered only a lower-paying job instead of the same employment from which the plaintiff had been fired illegally. The case said nothing about including back pay or seniority in an offer.

The majority agreed with the District Court that Ford’s offers to Gaddis and Starr were insufficient to stop back pay liability because, at the time of the offers of initial employment, Gaddis and Starr were employed by GM and had acquired at least minimal seniority rights. Ford’s unconditional offer of initial employment did not include any retroactive seniority rights and, as the majority states (footnote 9, p. 193):

This failure of Ford to offer retroactive seniority prevents Ford from relying on its offers to Gaddis and Starr.

Nothing is said by the District Court or the majority as to how Ford could have made an offer of retroactive seniority rights to a new employee under Ford’s collective bargaining agreement. Indeed, I hazard the assumption that an offer of retroactive seniority rights to a new employee would have been in direct violation of such an agreement, as contrasted with an offer to reinstate an employee who had been previously permanently employed by Ford and wrongfully discriminated against by a discharge.

Both Title VII and NLRA cases make clear that an employer is under no obligation to include such things as back pay and retroactive seniority in an offer of initial employment for the offer to be valid, as opposed to an offer of reinstatement to an illegally fired employee. NLRA cases give direct guidance in this area because Title VII “was expressly modeled on the back pay provisions of the National Labor Relations Act.” Albemarle Paper Co. v. Moody, 422 U.S. 405, 419, 95 S.Ct. 2362, 2372, 45 L.Ed.2d 280 (1975). NLRA cases hold that an offer must be unconditional — that is, the employer cannot condition the offer on the employee’s agreement to abandon his rights to pursue claims to back pay and other rights. See, e. g., Elling Halvorson, Inc., 222 N.L.R.B. 534 (1976). (“The duty to reinstate is not fulfilled by a conditional offer of reinstatement.”); N.L.R.B. v. St. Mary’s Sewer Pipe Co., 146 F.2d 995, 996 (3rd Cir. 1945) (Offer to reinstate striking employees if they withdrew their unfair labor practice charges against the company was invalid.) Similarly, under Title VII, the employer cannot ask the employee to give up back pay or other rights as a condition to his offer of reinstatement or the offer will be invalid. In addition, under both Acts, the employer must offer the same job. A. W. Behney Construction Co., 224 N.L.R.B. 1083, 1087 (1976) (“An offer to *205reinstate an illegally discharged employee should be on the same terms that applied when the employee was fired.”). The employer cannot cut off his back pay liability with the offer of a dangerous alternative to the job from which the discriminatee was illegally fired or one so “inferior” as to constitute a “demotion,” Williams v. Albemarle City Board of Education, 508 F.2d 1242, 1244 (4th Cir. 1974) (en banc), or a lower-paying job, Colman-Cocker Co., supra; but see Knickerbocker Plastic Co., 132 N.L.R.B. 1209, 1218 (1961) (Offer of lower-paying jobs was valid to cut off back pay liability under NLRA for all but difference in salary between jobs fired from and one offered).

An unconditional offer of reinstatement that does not demand that the employee surrender his back pay or other claims is enough: the employer need not volunteer back pay or give up his rights to defend against those claims. For example, the Eighth Circuit, in finding an offer to be invalidly conditioned on an employee’s dropping his unfair labor practice charges, said in dicta, “It is clear that had the Company’s offer of reinstatement been conditioned solely on its refusal to give back pay, as the Company strenuously argues, then the offer of reinstatement would not have been invalidated.” N.L.R.B. v. Midwest Hanger Co., 550 F.2d 1101 (8th Cir.), cert. denied 434 U.S. 830, 98 S.Ct. 112, 54 L.Ed.2d 90 (1977). The Ninth Circuit cut off back pay when an employee rejected a reinstatement offer because it did not include back pay. N.L.R.B. v. Harrah’s Club, 403 F.2d 865, 871 (9th Cir. 1968). The rationale is that, as long as the employer does not condition his offer on the employee’s giving up his back pay rights, the employer need not promise back pay because the employee can accept the offer while still retaining the right to pursue back pay and other claims through judicial or administrative channels. See, generally, DArmigene, Inc., 148 N.L.R.B. 2 (1964), enforced as modified, N.L.R.B. v. D’Armigene, Inc., 353 F.2d 406 (2d Cir. 1965); Differential Steel Car Co., 75 N.L. R.B. 741, enforced, N.L.R.B. v. Differential Steel Car Co., 179 F.2d 241 (6th Cir. 1949). As stated in Reliance Clay Products, 105 N.L.R.B. 135, 137 (1953), “The Board has held that a discriminatorily discharged employee may not refuse an unconditioned offer of reinstatement even though unaccompanied by back pay: that such offer tolls the employer’s liability for back pay ... . ” This circuit has agreed, stating that the employer “having once offered reinstatement, is released from the back pay obligation from the date the offer was rejected.” N.L.R.B. v. Huntington Hospital, Inc., 550 F.2d 921, 924 (4th Cir. 1977). The same is true of the employee’s refusal of a valid job offer under Title VII: his back pay rights are cut off at that point. Cofield v. Goldman, Sachs & Co., 364 F.Supp. 1372, 1374 (S.D.N.Y.1973); Blakely v. Chrysler Corp., 407 F.Supp. 1227, 1230 (E.D.Mo.1975), rev’d on other grounds sub nom. Chrysler Corp. v. Mann, Trustee, 561 F.2d 1282 (8th Cir. 1977). The one Title VII case that has held otherwise, Comacho v. Colorado Electronic Technical College, Inc., 590 F.2d 887 (10th Cir. 1979), relied upon by the majority, involved an illegally fired employee, not as here applicants being illegally denied initial employment, and thus, its holding only dealt with offers of reinstatement: “Thus we must hold that a reinstatement offer without back pay does not relieve a guilty employer from further liability,” Id. at 889.

Just as the above cases do not demand that an employer include back pay in his offer, so no NLRA or Title VII cases require that an offer of initial employment, to be valid to cut off back pay, include retroactive seniority to the date of the initial refusal to hire, as is held here by the majority.6 All the cases cited by the majority *206deal with the need for an employer who has illegally fired one of his employees or denied that person promotion to include retroactive seniority in his reinstatement or promotion offer. The reasons cited as calling for an employer to make a discharged employee whole in a reinstatement offer do not apply to a new employee. The Fifth Circuit in Claiborne v. Illinois Central R.R., 583 F.2d 143 (5th Cir. 1978), cert. denied, 442 U.S. 934, 99 S.Ct. 2869, 61 L.Ed.2d 303 (1979), in remanding for the lower court to determine whether refusals by discharged employees of offers of reinstatement without retroactive seniority or back pay cut off their back pay rights, believed that each employee’s refusal had to be looked at separately. “[T]he disadvantages to them of returning to the railroad without retroactive seniority, would more than justify a particular employee in refusing an offer of reinstatement.” Id. at 153. Similarly, in United Transportation Union v. Norfolk & Western Railway Co., 532 F.2d 336 (4th Cir. 1975), cert. denied, 425 U.S. 934, 96 S.Ct. 1664, 48 L.Ed.2d 175 (1976), Judge Winter wrote for this circuit that refusals by blacks to accept promotions from predominantly black jobs to white jobs, with a concomitant loss of seniority, did not cut off their back pay rights because “[a] refusal to commit seniority suicide is not an acceptable reason to deny back pay. Victims of discrimination should not be required to forfeit wage and seniority benefits accruing because of their seniority in order to remain eligible for purely speculative back pay relief.” Id. at 340. (emphasis supplied). Back pay is to be cut off, Judge Winter again wrote for this court in Hairston v. McLean Trucking Co., 520 F.2d 226, 232 (4th Cir. 1975), “[0]nly if the refusal [of an offer of transfer] was a free and voluntary act on the part of the employee, not constrained by any discriminatory employer practice or policy, . . .. ” A refusal is not free and does not cutoff back pay if “motivated by reasonable reluctance to expose himself to another aspect of an employer’s discriminatory employment policy, as for example, a discriminatory loss of seniority” Id. (emphasis supplied).

It is clear that what this court has demanded is protection in a reinstatement or promotion offer for seniority already earned by employees of a defendant company. The distinction between those cases and the one at hand is clear: here the applicants were denied initial employment, had never worked for Ford before except on a temporary basis, and thus had no seniority rights “accrued” that they were being asked to “forfeit.” The reasons why courts have not made the same demand of employers offering an initial job to an applicant illegally denied employment should be obvious: it would be unfair to present employees with accrued seniority; probably would create havoc in employer/employee relations, especially if the Company is unionized; and might be in clear violation of the employer-employee contract. See Meadows v. Ford Motor Co., 510 F.2d 939, 949 (6th Cir. 1975), cert. denied, 425 U.S. 998, 96 S.Ct. 2215, 48 L.Ed.2d 823 (1976), (“.. . where the burden of retroactive pay falls upon the party which violated the law, the burden of retroactive seniority for the *207determination of layoff would fall directly upon other workers who themselves had no hand in the wrongdoing found by the District Court.”); Local 189, United Papermakers & Paperworkers v. United States, 416 F.2d 980, 985 (5th Cir. 1969), cert. denied, 397 U.S. 919, 90 S.Ct. 926, 25 L.Ed.2d 100 (1970).

The Supreme Court has held that § 703(h), which protects a bona fide seniority system from Title VII’s strictures even if it tends to perpetuate pre-Act discrimination, does not prevent courts from ordering defendants to grant retroactive seniority to applicants illegally refused initial employment. Franks v. Bowman Transportation Co., 424 U.S. 747, 762, 96 S.Ct. 1251, 1263, 47 L.Ed.2d 444 (1976). That holding, however, merely gives a court power to so order but does not obligate an employer to include such seniority voluntarily in an offer of employment. By analogy, courts also have the power to award back pay in judgments against companies determined to have violated Title VII, but the rule remains that an employer need not voluntarily include back pay in an offer of employment for such offer to be valid. The reasoning is the same here: Even though courts have the authority to order retroactive seniority in their decrees, employers need not grant that seniority in an offer of initial employment to a discriminatee for that offer to be valid. The theory behind an offer of employment, whether under NLRA or Title VII, is the same: a job comparable to the one denied the applicant — or from which the employee was fired or to which he was refused promotion — must be offered to him, without any encumbering conditions that would force him to give up certain rights. The employee can then accept if he wishes and pursue back pay, seniority, or other rights he believes he was denied, through the courts or administrative agencies. Conversely, that offer does not need to include a surrender by the employer of his right to defend against such claims. If the employee rejects that unconditional offer, his right to back pay is cut off. Here, Gaddis and Starr rejected unconditional offers of the same jobs for which they had applied. Those offers did not need to — and did not— include a grant of back pay or retroactive seniority, but, on the other hand, were not conditioned on the surrender by Gaddis or Starr of their rights to pursue those claims. Indeed, the majority refers to Ford’s “unconditional” offer, although it qualifies that by stating that an offer of seniority was a prerequisite. Therefore, the offers were valid and their rejection by Gaddis and Starr cut off back pay and reinstatement rights.

Even were the court to hold otherwise— that Ford’s offer should have included seniority and back pay — the failure of Gaddis and Starr to protest that lack of seniority and their clear indications that they rejected the offers primarily for other reasons estop them from relying on those excuses now. Neither told Ford at the time of the offers that they wanted retroactive seniority back to the date of Ford’s first refusal to hire them; neither insisted on or even suggested they be given retroactive seniority as a condition to accepting the offer. The majority’s view was that the women had a right to refuse the offers as invalid for lack of seniority, but, in my opinion, that explanation for their refusal should not be available to the women post hoc facto as an excuse for invalidating Ford’s unconditional offers. In an analogous case, the Tenth Circuit overturned an award of back pay that the Board had continued past the employee’s refusal of an offer because the Board found it was invalid due to too short a time for acceptance. In N. L. R. B. v. Betts Baking Co., 428 F.2d 156, 159 (10th Cir. 1970), the court wrote that the offer was valid despite the time restriction because “[w]e think that [the employee’s] failure to complain of the time limitation precludes him from complaining of the reasonableness of the reporting time.” In my opinion, Gaddis and Starr, by not complaining to Ford at the time of the offers about its failure to grant retroactive seniority, or back pay, are precluded from complaining later that Ford’s offer to them was not valid for that lack.

*208 Back Pay: Full-Time Schooling

In September, 1975, as noted by the majority, Gaddis and Starr entered a CETA program for the unemployed and commenced a nurses training program. The same month Ford hired its first woman, Doris Baumgardner, as a permanent employee in the Ford warehouse. As reported by the Special Master, the CETA program required full-time participation. Gaddis completed her training course in September, 1976, and accepted employment as a licensed practical nurse at the Gaston Memorial Hospital. Starr, obviously not with the ability of Gaddis, graduated in 1977 and since November 4, 1975 has been a missionary, along with her husband, affiliated with the Maranatha Baptist Mission, Inc. Both Gaddis and Starr received the minimum-wage rate while undergoing training under the CETA program.

The Special Master, the District Court, and the majority held that Gaddis and Starr did not remove themselves from the labor market when they entered the CETA program. While I contend that their right to back pay should have been terminated either when they accepted permanent employment with GM or were afforded unconditional offers of permanent employment, I also disagree as to the effect of their entry into the CETA program.7

The issue for the court should be whether the women continued to seek employment after they began the program or, by entering the nurses training program, removed themselves from the job market. “[I]n order to establish eligibility for any award of back pay, a claimant must prove as a first step a sufficient investment of time and effort to show that he was ready, willing and available to take work.. .. ” United States v. Wood, Wire & Metal Lathers, 328 F.Supp. 429, 443 (S.D.N.Y.1971), aff’d, 471 F.2d 408 (2d Cir. 1973). “[A] claimant who .. . chose not to work at all (e. g., upon returning to school) may not be deemed to have been ‘ready, willing and available,’ and thus eligible for compensatory [back] pay, . ... ” Id. at 444. The Tenth Circuit has said that “when an employee opts to attend school, curtailing present earning capacity in order to reap greater future earnings, a [Title VII] back pay award for the period while attending school also would be like receiving a double benefit.” Taylor, supra, at 267-68.

That circuit upheld a cutoff of the employee’s back pay rights despite the fact that, in contrast to Gaddis and Starr, “Taylor testified while attending school, he continued to look for employment” and, “had he found full-time work anytime prior to receiving his bachelor’s degree in December 1971, Taylor asserts he would have accepted it.” Id. at 267.

Under the NLRA, receipt of pay and travel expenses by an illegally fired employee while in a Manpower Training Program analogous to the pay received by the two women in the CETA program, was held to be “tantamount to having accepted a permanent job,” and therefore to end the employer’s back pay obligation. N. L. R. B. v. Ohio Hoist Manufacturing Co., 496 F.2d 14, 15 (6th Cir. 1974). The Seventh Circuit *209held that, under the Vietnam Veterans’ Readjustment Act, a veteran’s rights to lost wages from the former employer who refused to rehire him would continue during his schooling “unless on remand defendant [employer] can show that plaintiff abandoned his willingness to continue in its employ under the conditions mandated by the Act when he enrolled in the University ... as a student seeking a degree.” Hanna v. American Motors Corp., 557 F.2d 118, 122 n.2 (7th Cir. 1977). That case dealt with an Act that, unlike the NLRA, was not a model for Title VII back pay and created very different conditions for an employee seeking to maintain his right to back pay. Gad-dis and Starr claimed they felt under some pressure from the State of North Carolina to enter the program so as not to lose their rights to unemployment compensation, but they were not required by Title VII itself to enter school.

On the contrary, Title VII and NLRA cases make clear that the criteria should be the claimants’ efforts to seek work and their availability to take jobs during the time they were in school. Although Gaddis “suppose[d]” she was still available for work, she admitted she made no effort to seek work after she became a full-time student because “I was considered having a job by working under the Man Power Program [CETA].” Even had Ford sought them out to make second offers after they entered CETA, by their own testimony, they were not at all sure they would have accepted. The evidence completely fails to support the district judge’s necessarily implicit conclusion that they were seeking work, were available for same while in school, and would have accepted offers from Ford if made. It is my opinion that back pay, if not ended sooner, certainly should be terminated at this juncture. The Tenth Circuit’s holding that back pay ends with full-time school analogizes a commitment to schooling to a decision to accept a permanent job. Taylor, supra, at 267-68. Under the majority’s reasoning here that the womens’ jobs at GM did not cutoff their back pay because they did not last until trial, the fact that Gaddis and Starr finished a nurses training program and that Gaddis is still employed as a nurse, Starr having left that profession voluntarily to become a missionary, should mean that the beginning of CETA training marked the end of back pay for the two because that schooling led to a permanent new profession; at that point, the rationale for back pay of compensation for losses no longer applied.

Back Pay: Unemployment Compensation

I agree with the majority in upholding the District Court’s decision not to deduct unemployment compensation payments received by Gaddis and Starr — or any of the victims — from their back pay awards. The Supreme Court’s reasoning in N. L. R. B. v. Gullett Gin Co., 340 U.S. 361, 364, 71 S.Ct. 337, 339, 95 L.Ed. 337 (1951), as to NLRA awards is directly applicable here, Title VII awards being expressly modeled on NLRA back pay grants, Albemarle, supra, 422 U.S. at 419, 95 S.Ct. at 2372. I would not hold, however, as the majority seems to here, that unemployment payments must not be subtracted from Title VII awards. Majority Opinion at 196. Rather I would follow exactly the holding in Gullett Gin Co.: “... we hold that the Board had the power to enter the order in this case refusing to deduct the unemployment compensation payments from back pay, and that in doing so the Board did not abuse its discretion.” Id. at 364, 71 S.Ct. at 339. Other circuits, relying on Gullett Gin Co., have understood this to be its holding and therefore upheld awards both deducting and refusing to deduct unemployment compensation as long as each decision is not an abuse of the lower court’s discretion. E. g., Satty v. Nashville Gas Co., 522 F.2d 850, 855 (6th Cir. 1975), vacated and remanded on other grounds, 434 U.S. 136, 98 S.Ct. 347, 54 L.Ed.2d 356 (1977), on remand, 18 F.E.P. Cases 394, 401 (M.D.Tenn.1978); Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 401 (3d Cir. 1976), cert. denied, 429 U.S. 1041, 97 S.Ct. 741, 50 L.Ed.2d 753 (1977); Bowe v. Colgate-Palmolive Co., 416 F.2d 711, 721 (7th Cir. *2101969).8 Similarly, courts in the Fourth Circuit should be free to exercise their discretion in making a determination on this issue, whereas the majority would seem to set it as the rule in this circuit that such payments should not be deducted.

The end result of the lower court’s refusal to cut off back pay for Gaddis and Starr at any point — either when they obtained almost identical employment for over a year, refused valid unconditional offers from Ford, or removed themselves from the job market to enter a full-time nurses training program to learn a new profession that one woman still practices today — is that Ford must reimburse the two women the aggregate sum of $88,843.50. That total could go beyond $100,000 under the majority’s decision to keep the clock running for perhaps another three years until both are given a second chance to refuse job offers in Ford’s warehouse.

Zettie Ann Smith Liability

In footnote 4, p. 188, the majority states that “Smith’s testimony is not a model of clarity.” In light of the record, this is a mild expression.

The name of this witness was not included by the EEOC in the pretrial order. Ford’s counsel objected (App. 677) when she was first called by plaintiff. Admittedly, Smith filed an application for employment on March 5, 1973. However, before the district judge she was asked about applications with Ford, and she replied (App. 683):

“A. In 1971,1 was out in April and filed an application, and in 1971, in June, I was out and filled out an application, I believe.
“Q. Do you remember what happened?
“A. In 1972, I was out one time and filled out an application and this, I believe was my last application out there.
“Q. So, was that four applications in all that you have given?
“A. I think so.
“Q. 1971.
“A. And 1972 and 1973.
“Q. That’s three applications.
“A. That is three applications and I believe I was out in 1974 and filled out an application, because this was just right after I had gone to Terrell Machine, and I thought that I would not be satisfied with the job there.” (App. 684).

Based solely upon this testimony the District Court found (App. 60) that Smith applied in June, 1971, for a warehouse job. The reason the District Court accepted the June, 1971 date in preference to April, 1971, is not explained by the record.

Immediately after Judge McMillan filed his findings and conclusions as to the right of Zettie Smith to receive back pay based on a June, 1971 application, Ford moved to amend the findings as to Smith (App. 73-76), with particular reference to when she first applied for employment, asserting the following:

1. No knowledge during the E.E.O.C. investigation, discovery, settlement negotiations, or at any time prior to trial, that anyone other than Gaddis and Starr would be entitled to back pay for individual discrimination.
2. Ford’s inability to prepare its defense to any claims that Smith filed an application in 1971, and the fact that E.E.O.C. had examined Ford’s files and in 1973 when applications of Gad-dis, Starr and other women applying in November, 1972, and thereafter, were located.
3. E.E.O.C. made no attempt to conciliate as to any claim by Smith.
*2114. The finding by the district court makes Smith the first woman to apply for a warehouse position at Ford, despite all testimony (except Smith’s) that Gaddis and Starr were the first female applicants.

Three days later the District Court denied Ford’s motion (which included a request to present further evidence after an opportunity to prepare) and directed that the finding should stand. Thus, when the matter went before the Special Master, Ford could not present evidence contradicting the finding by the District Court. The final result was that Smith was awarded $30,718.61 in back pay whereas, if her application was in fact filed in March, 1973 (which is admitted), Smith would then only participate in one-eighth of the back pay loss for one position — an amount at most in the neighborhood of $3,000.00, assuming the majority is correct as to its discussion with respect to seven women, and, in my view, far less than $3,000.00.

Ford’s policy was undeniably to require written applications. The District Court has found that a written application was filed by Smith in June, 1971. EEOC argued that the lack of a written application for Zettie Smith before 1973 was not relevant, because Ford threw away applications after six months, but the presence of the 1971 applications by Gaddis and Smith, and the 1973 applications by Smith and Simpson, among others, contradict that contention. Ford’s manager testified that Gaddis and Smith were the first women to apply for jobs in the warehouse. The Ford receptionist also testified that Gaddis and Starr were the first women who applied for such jobs in the warehouse in Charlotte, but, because she was only one of Ford’s receptionists and at that time only relieving the regular receptionist at lunch and other breaks, her testimony was not persuasive. A further hearing would allow Ford to present, among other evidence, the testimony of all its regular receptionists for that period, so as to cover all those who could have possibly received an application from Zettie Smith in 1971.

Under McDonnell Douglas, supra, 411 U.S. at 802, 93 S.Ct. at, 1824, EEOC had the burden of proving, among other elements, that Zettie Smith applied for the job and was rejected. In my opinion, it did not carry that burden. If one accepts that EEOC even made out a prima facie case, Ford presented enough evidence “to articulate some legitimate non-discriminatory reason for the employee’s rejection,” id., to-wit, that it did not know she was applying for a job in the warehouse. Recent cases such as Furnco Construction Co. v. Waters, 438 U.S. 567, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978), and Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24, 99 S.Ct. 295, 58 L.Ed.2d 216 (1978), make clear that the burden on the employer of articulating such a reason is not very heavy. The ultimate burden of persuasion remains on the employee, and thus, the employer need only articulate such a reason, Furnco, supra, 438 U.S. at 576-78, 98 S.Ct. at 2949-50, that is, “ ‘explains what he had done’ or ‘produce[s] evidence of legitimate nondiscriminatory reasons,’ ” Sweeney, supra, 439 U.S. at 25, n.2, 99 S.Ct. at 297, n.2, which the Court has found to have a “significant distinction” from requiring the employer to prove the absence of a discriminatory motive, id., at 25, 99 S.Ct. at 297. See also Loeb v. Textron, Inc., 600 F.2d 1003, 1011-12 (1st Cir. 1979) (Sweeney makes clear that the burden on the employer is not to persuade but only to produce evidence of a legitimate reason, which then shifts the burden back onto the employee to show the reason is merely a pretext for discrimination); See also Wright v. National Archives & Records Service, 609 F.2d 702, 714 n.13 (4th Cir. 1979) (en banc).

Smith’s own testimony lends support to that explanation of why she was not given a warehouse job in 1971 — she did not make it at all clear to Ford that she was seeking a job in the warehouse. Smith testified before the district judge as follows (App. 689-90):

“Q. Did you indicate in, on each occasion that you were applying for work in the Ford warehouse or what did you tell them?
*212“A. I didn’t indicate what job I applied for, I just, unless it was something in my line of work or whatever.”

Her prior work was in filling orders in a stockroom; although similar to the picker-packer job she claims she was illegally denied, it is not the same job, and therefore, she did not unambiguously indicate what job she was seeking. In addition, it is not even clear from her testimony that she is certain she told Ford she wanted work similar to what she was then performing or, if she did, that she described her then job sufficiently for Ford to understand what employment she wanted. If she made out a prima facie case — that she applied, was qualified, and yet was rejected — Ford has rebutted that by articulating a legitimate nondiscriminatory reason explaining why it did not hire her: It did not know she had applied for a warehouse job. Given the ambiguity of her own testimony, Ford’s explanation is persuasive and carried its burden, admittedly a light one. Certainly, she failed completely to show that Ford’s reason was a mere pretext for intentional discrimination, a charge she made no attempt to prove.

Because of Ford’s surprise at Smith’s testimony that she first applied for employment in 1971 — and indeed to the surprise of EEOC — I would at least remand this phase of the case for a further hearing on that issue to allow Ford an opportunity to present further evidence for its position that she did not apply for a warehouse job prior to March, 1973. In sum, the action of the District Court in denying Ford’s motion to amend the findings by permitting additional evidence was reversible error.

Seven Women Liability

I agree that the evidence warranted a finding that Ford discriminated against seven women — eight if Smith is added— when it hired Simpson in July, 1973. Under Ford’s “buddy system,” applications were consideréd current for only six months, a practice about which applicants were not told, and employees were allowed to update friends’ applications as well as recommend them. Simpson testified he asked a friend numerous times to “bird-dog” his application, and the friend apparently updated it for him. The Special Master determined that Ford gave him the job at least in part to accommodate his friend. Such practices, common at Ford, were its “standard operating procedure,” Teamsters v. United States, 431 U.S. 324, 336, 97 S.Ct. 1843, 1855, 52 L.Ed.2d 396 (1977).

Practices similar to updating and bird-dogging applications have been condemned by this Court. “Word-of-mouth hiring, which the district court found to be [the employer’s] primary method of recruiting new over-the-road drivers, is discriminatory because of its tendency to perpetuate the all-white composition of a work force.” Barnett v. W. T. Grant Co., 518 F.2d 543, 549 (4th Cir. 1975). In addition, the use of subjective criteria, such as recommendations of employees, has been criticized: “Nonobjective hiring standards are always suspect because of their capacity for masking racial basis [sic].” Id. at 550. See also Weiner v. County, supra, at 382, (“The use of employee preferences in making hiring decisions is questionable when all employees are male and there is no affirmative action program .... ”). Here, as in W. T. Grant Co., the statistics alone, though persuasive, may not have been enough to make out a case of discrimination.9 W. T. Grant Co., supra, at 549. The majority concedes that “E.E.O.C.’s case is less than totally convincing because Ford made only one contested *213employee decision between 1971 and 1973.”10 Nevertheless, the net result here is the same as in W. T. Grant Co. — no black supervisors or over-the-road drivers in W. T. Grant Co., and no women permanent employees in Ford’s warehouse until 1975— and the similar discriminatory practices of word-of-mouth hiring and subjective criteria strengthen both statistical cases, as the majority correctly pointed out. This court has explained, “In addition to statistics, a court must also examine ‘patterns, practices and general policies to ascertain whether racial discrimination exists’.” W. T. Grant Co., supra, at 549. In my opinion, Ford’s discriminatory practices and the total exclusion of women from the warehouse until 1975 made out a prima facie case of discrimination in hiring Simpson.

The court rejected Ford’s rebuttal evidence that it had a legitimate, nondiscriminatory reason for hiring Simpson: Ford claimed he was more qualified than the women it did not consider. As discussed earlier in relation to the 1971 discrimination against Gaddis and Starr, recent Supreme Court cases have made it clear that this burden on the employer is light; he need only articulate such a reason or explain his reasons for not hiring the alleged victims of discrimination. Nevertheless, no matter how light the burden of showing a nondiscriminatory reason, the lower court’s rejection of Ford’s rebuttal argument that Simpson was more qualified was not clearly erroneous. The employment records of several of the women were almost identical to that of Simpson.

The Special Master found that Ford’s action in hiring Simpson “was not motivated by an intent to discriminate.” App. 236. This finding would prevent the EEOC from arguing that the reason Ford gave for hiring Simpson was a mere pretext for discrimination.11 In New York City Transit *214Authority v. Beazer, 440 U.S. 568, 587, 99 S.Ct. 1355, 1366, 59 L.Ed.2d 587 (1979), the Court wrote, “The District Court’s express finding that the rule was not motivated by racial animus forecloses any claim in rebuttal that it was merely a pretext for intentional discrimination.” However, the burden only shifts back to the plaintiff, EEOC, to prove pretext if Ford successfully rebutted the inference of discrimination raised by the EEOC. If Ford did not rebut the prima facie case successfully, there is no need to reach the stage of proving pretext, a proof EEOC admittedly would have been barred from making by the Special Master’s finding.

Back Pay: Actual or Hypothetical Work Record

The discrimination by Ford in hiring Simpson only resulted in the denial of one vacancy to all the women applicants. Seven women appeared before the Special Master and established that they applied and were qualified for the job. I agree with the decision at the lower level to divide one award among the seven, although I would add Zettie Smith and divide it eight ways if she were determined on remand not to have been discriminated against in 1971. I disagree, however, with the method used to measure the size of that award.

Title VII cases use two measures for damages, although I can find no case explicitly setting out how and when each is used. Implicit in most cases, nevertheless, is that two lines of employment progress are traced to determine what the victim would have earned “but for” the discrimination, and damages are cut off if either ends: first, the length of service on the job with defendant company of the successful applicant and second, the availability for employment of the victim of discrimination who was illegally denied that job. See, e. g., White v. Carolina Paperboard Corp., 564 F.2d 1073, 1084-1089 (4th Cir. 1977). To see how long the victim would have lasted in the job, the successful applicant’s service with defendant company is measured. If he is laid off and not recalled, at that point, the job that was denied the victim no longer exists and the victim’s compensation ends, even if the victim wás still available for hire. The records of all victims denied jobs also are examined to see if they were always available for hire; if not, back pay is cut off even if the successful applicant is still on the job.12 As the majority here points out, courts at times must hypothesize a work record to determine how long a victim would have worked “but for” the discrimination practiced against him, but it fails to point out that where such hypothesis is required is in class-action suits involving large-scale denial of jobs or promotions or transfers over a long-period, E. g., United Transportation Union, supra, at 341 (Winter, J.), and Hairston, supra, at 232-33 (Winter, J.). In such cases, a specific individual who took each victim’s opportunity cannot always be identified so that his work record can be followed, which forces the court to come up with a hypothesis as how *215long each victim would have continued with the company had he been hired or promoted. Such a hypothetical employment history is unnecessary to remedy individual instances of discrimination, as in this case where the identity and work record of the actual successful applicant is known. Even in a class-action suit with numerous claimants, this court overturned an award by Judge McMillan because he resorted to an average or hypothetical difference between earnings by blacks and whites during the critical period rather than determining each award on the individual facts. Carolina Paperboard, supra. For example, if one of the victims would have been qualified to progress to a tender’s job by 1968, when another person was hired for the job, this circuit said he was to receive the difference between his own low wage and a tender’s wage, up to 1975 — “[ajssuming the tender hired in 1968 remained in the job until 1975.... ” Id. at 1085. (emphasis supplied). A court is then to use the successful applicant’s actual work record, ending back pay for the diseriminatee when the job holder leaves the company’s employ.

The lower court used that actual record here, that of Simpson, the successful applicant, but departed from it when he was laid off, at which time the victims’ back pay would have ceased. At that point, the court switched to a hypothetical record, arguing that, had one of the victims been hired instead of Simpson, she would have been recalled in 1975, even though Simpson was not. The facts are that, after Simpson’s layoff Ford had no vacant slot until 1975, after Simpson’s recall rights had expired, when it hired Doris Baumgardner, a female. The court said it based its surmise that a victim would have been recalled on evidence that Ford’s custom was to rehire former employees even after they lost their recall rights. That surmise is, in fact, contrary to the evidence. The only pertinent proof was the testimony of Ford’s former warehouse manager that no such custom existed: “Sometimes we do and sometimes we don’t. It depends. I would say the majority of the times, we did recall them.” App. at 1041. The witness then stated that it would depend upon the performance of the employee and other factors such as the desire to return to Ford and, if the employee is leaving another job, whether there is a reasonable likelihood that the job with Ford would be permanent which assurance Ford could not give. Id. at 1042.

In an analogous case the Second Circuit rejected a back pay award under NLRA that involved less surmise than here. The Board in N.L.R.B. v. R.K. Baking Corp., 273 F.2d 407 (2d Cir. 1959), cert. denied, 363 U.S. 804, 80 S.Ct. 1239, 4 L.Ed.2d 1148 (1960), followed the successful applicant’s actual case history to determine how long the victim would have continued in the company’s employ. The diseriminatee was illegally denied a temporary job and one Greenberg was hired. After Greenberg’s temporary job ended, he was actually given the next permanent vacancy “on the basis of prior employment by R.K. as a temporary relief man”, id. at 410. The Board assumed that the diseriminatee would also have gotten that permanent job opening had he, instead of Greenberg, been awarded the temporary job. The Second Circuit rejected this reasoning because the company was not required to hire Greenberg but simply decided to do so voluntarily: “[Ajbsent evidence of a seniority system enforceable by ex-employees, whether [the victim], but for the refusal of the temporary job . .. would have been subsequently employed by R. K., still remains a matter only of conjecture.” Id. at 411 (emphasis supplied).

The lower court here used even more invention. The Board, in R. K. Baking Corp., had taken the company’s actual treatment of the successful applicant and assumed that the victim would have fared as well, whereas the district judge here rejected what actually happened to Simpson, assuming that the company would have acted differently toward the victims. The Board’s assumption that the company would have treated the victim the same as it actually treated the successful applicant was far less of a departure from the given facts than was made by the lower court *216here, yet the Second Circuit rejected it, saying, “[T]his appointment, so far as the evidence shows, was due only to the fortuitous circumstance that he was available and qualified — not because of any rights of seniority entitling him to the job ... [T]he respondent employer was entitled to fill the position by anyone it chose — whether theretofore employed or not.” Id. at 411 (emphasis supplied).

This court, should reverse the award as pure fantasy opposed to the given facts, for the same reasons stated by the Second Circuit: “[T]he evidence fails to show that these drastic remedies as applied in favor of this complainant, who never was an employee of the respondent are necessary to make him whole for the discrimination practiced against him in refusing employment.” Id. at 410. Simpson’s actual work history should not be ignored: Back pay should be ended on August 6, 1975, when his recall rights ended, or, at the latest, on September 22,1975, when Doris Baumgard-ner was hired.

Additional Remedy

The usual remedy for victims of Title VII discrimination includes reinstatement, but I do not see it as an abuse of discretion for the lower court to have denied that relief here and would not remand for reconsideration which, in effect, will compel the lower court to order reinstatement and additional back pay. Gaddis and Starr, in my opinion, have already turned down valid job offers for Ford, and there is no reason to continue to penalize Ford with back pay until it makes the fruitless gesture of offering the same jobs to the women for the second time. To order Ford to make offers to the seven — or eight, if Smith is added — victims of discrimination in 1973 as jobs become available is too heavy a burden to put on Ford especially in light of its recent affirmative action efforts.13 To tie Ford’s hands so that it cannot make its own selections of employees for the next seven or eight openings, perhaps dragging out for years, seems too harsh a remedy for one discriminatory act, not even an intentionally discriminatory one. Although the District Court’s discretion in fashioning a remedy in a Title VII violation is not “unfettered by meaningful standards or shielded from thorough appellate review,” that remedy is left in the first instance to the district court. Albe-marle, supra, 422 U.S. at 416, 95 S.Ct. at 2371. I believe that valid reasons exist for denying reinstatement, that the District Court did not abuse its discretion in not so ordering, and I therefore would not remand for the lower court to articulate the reasons for its denial, as such will almost inevitably make the court feel pressured to order reinstatement and grant additional back pay.

Conclusion

In summary, I would uphold all findings of discrimination except that pertaining to Zettie Smith in 1971, which I would either reverse as clearly erroneous or remand for further fact finding as to the 1971 applications. I would uphold the grants of back pay to each, although adding Smith to the group sharing the award for the 1973 violation, but I would end the award to each with the victim’s accepting permanent employment, removal from the job market, refusal of a valid job offer by Ford, or with the successful applicant’s loss of the disputed job with Ford. I would not remand for the District Court to reconsider whether to offer reinstatement and continue back pay indefinitely.

If the District Court’s decision not to order Ford to offer employment to the ten women involved here is upheld, it follows that there is no need to extend their back pay until the women are given an opportunity to accept or reject such offers. As noted earlier, if on remand the court recon*217sidered under the pressure of the majority’s opinion and prolonged back pay, Gaddis, Starr, and Smith would collect over three years’ extra back pay and over three years’ worth of salary would be added to the seven womens’ joint award, increasing Ford’s liability by perhaps $100,000 beyond the already overly generous grant the District Court felt was appropriate. The award would be out of all proportion to the discriminatory acts committed by Ford.

I respectfully dissent.

. Throughout this dissent, the woman known as Zettie Smith is treated as having been discriminated against in 1971, as the District Court found with the majority concurring. It is my view that Smith was not the subject of discrimination until 1973 and, if correct, Smith should be added to the other seven women and allowed a one-eighth interest in the combined award made for the benefit of the seven women.

. It was generally conceded by all that the applications of Gaddis and Starr, received on July 21, 1971, were the first female applications received by Ford for employment in the warehouse. Their applications were readily discovered by the EEOC during its investigation, but the alleged 1971 written applications of Zettie Smith, supposed to be prior to the Gaddis and Starr applications, were never located.

. Coe did not begin work until on or after August 2. Blanchard, who began on August 5, was asked how long after he filed his application he was called to work and answered a week or two. Since he applied on May 18, the district judge apparently believed Blanchard understood the question to be how long before he began work on August 5 was he notified to report to work. Blanchard answered: “I don’t remember as far as how long before, you know, a week or two weeks.” (Emphasis supplied). The receptionist testified that the third man hired, Rogers, applied “pretty close to the same date that the girls [Gaddis and Starr] came in.” Even if we were to assume the correctness of Ford’s contention, the record adequately demonstrates that Ford did not believe that women should work in the warehouse.

. The date of Starr’s termination of employment by General Motors is uncertain. The Special Master reported that it was "sometime in 1974.” However, Gaddis testified that she and Starr had exactly the same periods of employment by GM (App. 587). When GM closed its Charlotte plant in 1974 and moved to Atlanta, both Gaddis and Starr rejected GM’s offers of employment in Atlanta. I do not contend, however, that their refusal to accept employment in Atlanta terminated their right to back pay unless it had been previously terminated for other reasons.

. Gaddis testified at trial that she refused the offer because she was reluctant to leave her “good seniority with General Motors and I had a secure job.” Both testified they were concerned because they did not know exactly what job they would perform in the warehouse. Gaddis said she preferred working under less *204stress and pressure at GM, and both said they did not wish to be the only woman working in the Ford warehouse. Massey, who made the offer for Ford, testified that Gaddis expressed concern when the offer was made as to the lack of regular hours, Ford’s motive in making her the offer when she had an EEOC claim pending against them, and whether Starr would also be hired so that she would not have to be the only woman in the warehouse. The latter reason was her primary concern at the time she refused Ford. According to Massey, Starr was being offered the job after Gaddis turned it down, and expressed the same concern to him about being the only woman in the warehouse.

. The Third Circuit’s holding in Jurinko v. Edwin L. Wiegand Co., 477 F.2d 1038 (1973), which was relied upon by the majority, was vacated and remanded by the Supreme Court, and this is not reliable precedent. That circuit had held that an offer of employment to an applicant illegally refused a job was invalid if it failed to include back pay or seniority rights. Id. at 1047. That entire decision was vacated and remanded by the Supreme Court, 414 U.S. 970, 94 S.Ct. 293, 38 L.Ed.2d 214 (1974), to be reconsidered in light of McDonnell Douglas *206Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). McDonnell Douglas sheds no light on the issue, as it does not deal with back pay or seniority rights. The Third Circuit later remanded the case for a second time, saying “It is true that when this case was first here we held that the plaintiffs should also recover for loss of earnings after they rejected that [offer without seniority or back pay] and until Weigand should reemploy them with seniority and back pay. But when the Supreme Court reviewed our decision and remanded the case to us, it expressly vacated our ruling on damages.” 528 F.2d 1214, 1216 (3d Cir. 1975). The District Court was then told to reconsider the damages issue in light of McDonnell Douglas and Albemarle, supra. As no further proceedings are reported, the case has no precedential value as to the need to offer seniority rights to its new employees. Moreover, Jurinko dealt with former discharged employees, as did Sprogis v. United Air Lines, 444 F.2d 1194 (7th Cir.), cert. denied, 404 U.S. 991, 92 S.Ct. 536, 30 L.Ed.2d 543 (1971), the only authority relied upon by Jurinko. Indeed, the majority opinion here in footnote 9, p. 193, specifically states that “An offer of reinstatement carries with it seniority rights, whereas an offer of beginning employment includes no seniority rights.”

. Gaddis testified (App. 579) before the court:

“Q. Has there been any time when you have stopped seeking employment?
“A. Yes, sir, when I started to school on a full-time basis in 1975.”

Before the Special Master, Gaddis was asked (App. 1114):

“Q. Ms. Gaddis, during the period September, 1975, while you were in the SETA (sic) training program, were you still available for work?
“A. Yes, sir, I suppose you could say I was.”

And later (App. 1119):

“Q. If you had been offered a job during that period by Ford Motor Company, would you have taken the job?
“A. Weil, since I wasn’t offered, it’s hard to say. I certainly would have given it great consideration.”

As to Starr, the only testimony on the subject was before the Special Master (App. 1159):

“Q. While you were in that SETA (sic) training program, Ms. Star (sic), were you still available for work?
“A. Yes, sir.”
“Q. If you had been offered a job at the Ford Motor Company in 1975 would you have considered that offer?
“A. I would have considered it.”

. Excellent discussions of the various decisions and the reasons pro and con are contained in E. E. O. C. v. Sandia Corp., 639 F.2d 600 (10th Cir. 1980) (upholding decision not to deduct unemployment payments from age-discrimination back pay awards under another Act) and E. E. O. C. v. Enterprise Association Steamfitters, Local 638, 542 F.2d 579, 591-92 (2d Cir. 1967), cert. denied, 430 U.S. 911, 97 S.Ct. 1186, 51 L.Ed.2d 588 (1977) (not an abuse of discretion for lower court to deduct public assistance payments from Title VII).

. “Statistics can in appropriate cases establish a prima facie case of discrimination, without the necessity of showing specific instances of overt discrimination.” W. T. Grant Co., supra, at 549. However, those statistics must be large enough to stand alone. “Considerations such as small sample size may, of course, detract from the value of such evidence,” Teamsters, supra, 431 U.S. at 340, n.20, 97 S.Ct. at 1856, n.20. An employer can defend against a case establishing a pattern or practice by showing “that during the period it is alleged to have pursued a discriminatory policy it made too few employment decisions to justify the inference that it had engaged in a regular practice of discrimination.” Id. at 360, 97 S.Ct. at 1867.

. Ford says it filled only three slots from 1972 to 1975 and one was offered to Gaddis and Starr, whereas EEOC sees Ford as having received applications from thirteen qualified women, none of whom were interviewed when the males, who were interviewed, were hired to fill all the openings up until 1975.

. The Special Master’s finding that Ford did not intend to discriminate in my opinion would also prevent the EEOC from successfully proving discrimination in 1973 using a theory of disparate treatment under McDonnell Douglas, supra, 411 U.S. at 802, 93 S.Ct. at 1824. My greatest problem with finding discrimination by Ford in 1973 is an inability to determine which theory was used, disparate impact or disparate treatment. See Teamsters, supra, 431 U.S. at 335-36 n.15, 97 S.Ct. at 1854 n.15, See also Wright, supra, at 712-15. The Special Master interpreted the District Court’s finding of discrimination in 1973 to be based at least in part on a pattern or practice of discrimination, App. 236, 285-86, but those words can be used to establish discrimination under either theory. Teamsters, supra, at 335-36 n.15, 97 S.Ct. at 1854 n.15. “Either theory may, of course, be applied to a particular set of facts,” id. at 336 n.15, 97 S.Ct. at 1854 n.15; both can be argued in the same suit, Fumco, supra, 438 U.S. at 582, 98 S.Ct. at 2952, and they can be pleaded as alternative theories of discrimination, Wright, supra, at 711.

The language used by the Special Master, District Court, and majority here all point to disparate treatment as the theory applied here. For example, the prima facie case the EEOC made out was clearly based on McDonnell Douglas, supra, 411 U.S. at 802, 93 S.Ct. at 1824: the women were shown to have applied, been qualified, yet not considered, and the job was kept open for others no more qualified than they were. Ford’s rebuttal evidence that was rejected sought to articulate a legitimate nondiscriminatory reason for hiring Simpson. I have my doubts that such a case of disparate treatment can be made out, however, where the Court specifically finds no intent to discriminate. “Proof of discriminatory motive is critical [to proof of disparate treatment under McDonnell Douglas] although it can in some situations be inferred from the mere fact of differences in treatment.” Teamsters, supra, 431 U.S. at 335 n.15, 97 S.Ct. at 1854 n.15. Direct proof of discriminatory motive is unnecessary if an inference is raised, but once a specific finding of no intent to discriminate is made, that inference is negated. The District Court could have inferred discriminatory intent from Ford’s failure to interview the women, but, once the Special Master found Ford did not intend to discriminate, that inference of discriminatory motive was dispelled. “A prima facie case under McDonnell Douglas raises an inference of discrimination only because we presume these acts, if otherwise unexplained are more likely than not based on the consideration of impermissible factors.” Fumco, supra, 438 U.S. at 577, 98 S.Ct. at 2949. I do believe, however, that EEOC’s statistical showing of disparate impact on women of Ford’s policy, as evidenced by their total exclusion from the warehouse until 1975, combined with Ford’s prac*214tices of using subjective criteria and allowing employees to update applications and recommend applicants made out a case of discriminatory impact, one very similar to that found by this Court in W. T. Grant Co., supra, at 549-50.

. In N.L.R.B. v. Local No. 2 of United Ass’n of J. & A. of P. & P. L, 360 F.2d 428, 434 (2nd Cir. 1966), the court ordered the Board to determine, before awarding back pay “the length of time [the employer] would have kept the four [applicants] at work” had they been hired, which in part depended on their ability to do the work and in general on “their employability, since they were never put to work.” Only actual losses should be made up since “back pay is not a punitory award for having been the victim.....it rests on the right to have had the work and presupposes the ability to do it.” Id. Inquiry should be made into how long the applicants, “on the basis of their ability and other factors would have been kept at work by” the employer. Id. (emphasis supplied). The Special Master in this case looked into whether each woman’s qualifications were sufficient to be considered for the job, but he did not attempt to determine how long each would have kept the job, based on her abilities, had she been hired instead of Simpson, or whether each woman’s performance would have been good enough to have been rehired, unlike Simpson, even after her recall rights had expired. See Ford warehouse manager’s testimony on recall, infra, at 196.

. Since this litigation arose, and even prior thereto, Ford has had an affirmative action program. True, it may not have been effective when this litigation arose, but it has been made effective since that date. For example, the last six warehouse jobs, filled since 1975, have gone tó four women and two black males. A recent class-action case has been settled by Ford paying a very substantial sum for the benefit of the class. I have no knowledge as to whether the present claimants are included in, or excluded from, the class.