Marsh v. Eaton Corp.

MERRITT, Circuit Judge.

Plaintiff appeals from a finding for defendant, Eaton Corporation, in a class action suit alleging unlawful sex discrimination in employment in violation of 42 U.S.C. § 2000e et seq.

Plaintiff, Barbara Jean Marsh, an employee of Eaton corporation, filed a com*329plaint with the E.E.O.C. on May 9, 1975. The E.E.O.C. issued a right-to-sue letter. Plaintiff then filed suit in federal court on April 9, 1976, and the District Court certified the suit as a class action.

The Reliance Fastener Plant and Wire Mill are part of Eaton Corporation and are located in Massillon, Ohio. Employees of each plant are members of separate local unions and have separate collective bargaining agreements. Both plants are serviced by a single personnel department located at the Fastener Plant. Plaintiff claims that Eaton (1) assigns new employees in a sexually-discriminatory manner, and (2) inhibits advancement of women through its seniority system.

As of October 7, 1976, there were six females at the Wire Mill. The District Court concluded that the plaintiff had not carried her burden of establishing a prima facie case of sex discrimination at the Wire Mill. There was no evidence concerning the initial placement of females at the plant. In light of the absence of evidence concerning the Wire Mill, the District Court was not clearly erroneous in its finding that there was no sex discrimination proven at that plant.

Evidence at trial focused on the Fastener Plant. As of October 7,1976, sixty females were employed at the Fastener Plant. Twenty-eight were employed as machine tenders, the lowest position in the Springtite Department. Thirty were employed in the junior inspector position, the lowest position in the Ring Department. No males were employed in either of those positions. Prior to 1965, Eaton classified eleven jobs as “female” and maintained separate seniority lists for males and females. Both junior inspectors and machine tenders were previously classified as “female.” From 1974^1977, the four years prior to trial, eighty-three persons were hired for the Fastener Plant. Of the forty-four with no previous experience, twenty-seven were female and seventeen were male. All the females were placed as junior inspectors or machine tenders; nine of the seventeen males were placed in these positions. See District Court opinion, App. 15a. The other eight males were placed in the following positions: four material handlers, two laborers, one slotter-trimmer operator, one wheelabrator.

The District Court concluded that these statistics did not establish a prima facie case of sex discrimination. The Court relied upon a statistical analysis that looked to the probability of females being placed as machine tenders/junior inspectors as opposed to males so placed. (See District Court Opinion, p. 22a n.13) Through statistical analysis of the small sample size (44), the Court concluded that the variance in initial placement between males and females was insignificant. In this case, 100% of the females hired during the four-year period were placed as machine tenders/junior inspectors; only 52.9% of the males were placed in those positions. Statistical use of the small sample in the manner of the District Court would preclude a smaller employer from being liable for unlawful channeling because only the most egregious and flagrant violations would be reflected through statistical analysis. Particularly in light of statistical evidence from 1964-1974, which indicates an extremely heavy concentration of females in two positions, we must conclude that plaintiff has made out a prima facie case of sex discrimination.1

The conclusion that plaintiff has established a prima facie case of sex discrimination does not settle the case. The defendant is free to rebut the inferences presented by these statistics. “We caution only that statistics are not irrefutable; they come in infinite variety and, like any other kind of evidence, they may be rebutted. In short, their usefulness depends on all of the surrounding facts and circumstances.” Teamsters v. United States, 431 U.S. 324, 340, 97 S.Ct. 1843, 1856-57, 52 L.Ed.2d 396 (1977).

*330The evidence presented indicates that all females were channeled into two jobs. Although some males were also placed in these jobs, almost half of the inexperienced males were placed in higher paying positions. There was no evidence that the inexperienced males were qualified for jobs other than machine tender/junior inspector or that the inexperienced females were not so qualified.2 See, e. g., testimony, App. 35a-39a; District Court opinion p. 12a n.3.

Once plaintiff establishes a prima facie case of sex discrimination, the burden shifts to defendant to rebut plaintiff’s evidence. Accordingly, we reverse the District Court and remand to allow defendants the opportunity to rebut the prima facie case through attack on the statistical foundation, evidence of business purpose or other rebutting evidence.

Finally, plaintiff has not shown a prima facie case of sex discrimination in the use of the facially neutral seniority system used during this period. There was no evidence that a female ever applied through the bidding system for a job that she did not receive.

Accordingly, we affirm in part and reverse in part.

. The figures for 1964-1974 did not reflect initial placement of females as compared to males. For this reason only slight inferences may be drawn from them. It was this lack of precision on the part of plaintiff that has made establishment of a prima facie case difficult.

. We are concerned here with the improper channeling of female employees into certain positions. The fact that female emlpoyees did not attempt in large numbers to bid out of those jobs is not relevant to the claim of improper channeling in initial placement.