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Holder v. Old Ben Coal Co.

decided: February 4, 1980.


Appeal from the United States District Court for the Southern District of Indiana, Evansville Division. No 77-C-81 -- James E. Noland, Judge .

Before Swygert and Wood, Circuit Judges, and Campbell, Senior District Judge.*fn*

Author: Wood

Plaintiff brought this suit under the sex discrimination provisions of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. ยงยง 2000e, et seq., contending that defendant Old Ben Coal Co. discriminated against her on the basis of sex in its hiring practices.*fn1 Plaintiff seeks back pay, seniority, pension credits, and her costs and attorney fees. The district court, after a short one day bench trial, concluded that plaintiff had not proven a prima facie case of sex discrimination in that she failed to prove that she was qualified for any employment position at the time she was rejected for employment. Plaintiff appeals the court's judgment. We affirm.

Defendant owned and operated two strip mines in Indiana. In December 1974 plaintiff filed the first of her three applications with defendant for an unskilled position.*fn2 During two years of the period in question in which she sought employment at the mine, employment applications for unskilled positions exceeded 1000 per year. Although not all applicants were granted an interview, plaintiff was interviewed by the personnel administrator. At the interview the personnel administrator explained to plaintiff that due to the closing of one of the defendant's mines any available positions would, in accordance with the union contract, first be offered to a panel of former employees who had been laid off at the closed mine. In keeping with company policy the plaintiff's first application, which was the basis for that initial interview, was considered obsolete after one year and discarded, and therefore was not in evidence. There results a dispute as to whether or not that first application made mention of experience plaintiff claims to have had driving a truck of some kind for four months for her husband while he operated his own business. The mine personnel administrator who interviewed plaintiff denies that any mention was made by plaintiff of any truck driving experience. We note, also, that no mention of any prior truck driving experience was made on plaintiff's second or third application.

It is clear from her other applications that plaintiff attended high school and after that a beauty college from which she graduated with a degree. One winter plaintiff also did light work in a small factory. An examination of plaintiff's second application submitted about a year later, which we assume was at least somewhat similar to her first, reveals that plaintiff's education and experience were primarily as a beautician for eleven years. There is not the slightest hint in the application of any education, experience or talent in any way useful in a coal mine.

Plaintiff also charges that the disposal of her year old obsolete application was in itself discriminatory as the applications of several men were retained. Those retention exceptions were satisfactorily explained for nondiscriminatory reasons.

From time to time during the period that plaintiff was seeking employment she would inquire by phone about job possibilities. On one occasion instead of calling the personnel office, she called the mine superintendent and expressed to him her interest in a position. The superintendent explained to her that job applications had to be made not to him but to the regional personnel office located elsewhere. The plaintiff's testimony relates that conversation in this way:

"Well, I told him that I was wanting a job at the mine, and I asked him if there was any way that he could help me, and he told me no, that there wasn't, and that they didn't have the shower facilities for the women yet."

Plaintiff argues here based only on that testimony that she was told by the defendant that she could not be employed because shower facilities for women had not yet been provided. That does not appear to be a fair interpretation of her own testimony. After plaintiff was told she was applying at the wrong place the lack of shower facilities was mentioned, but not necessarily as a reason for not hiring her. It could as well have been considered only a comment about a situation that might ordinarily be expected to be of some practical interest to plaintiff. When the superintendent was later called as a witness, plaintiff failed to examine the superintendent about any alleged comment of his regarding showers. In any event the superintendent was not in charge of hiring the defendant. In 1976 rehiring from the panel was complete and very shortly thereafter in the same year, showers or no showers, defendant began hiring females in union positions. Three women were initially hired.

Plaintiff's third application later filed in 1978 is different. By that time she had been hired by another coal mine and had accumulated sixteen months mining experience. She was hired by defendant on the basis of that application in 1978 and remains defendant's employee.

At the trial Judge Noland applied the test of a prima facie case for a Title VII plaintiff set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668 (1973), and found that plaintiff had failed to prove that she was qualified for a position at defendant's mine.*fn3 Plaintiff first contends that she established her prima facie case by showing the category for which she applied was labeled "unskilled." Plaintiff then claims that since an unskilled job, in her view, requires no qualifications, she was capable of doing any unskilled job and was thus necessarily qualified within the meaning of McDonnell Douglas. Therefore, she says the district court erred in finding that she had not established this element of her prima facie case. A job categorized as unskilled, however, does not necessarily mean that certain qualifications or experience are not required or preferred for the job. Unskilled does not mean unqualified. "Unskilled" commonly means not skilled in some handicraft, or devoid of any technical training. Oxford English Dictionary (Compact ed. 1971). It need not mean lacking any useful experience qualification.

No evidence was introduced to show that defendant applied the term "unskilled" to mean a total lack of qualifications or experience. The record shows to the contrary that defendant did look for certain qualifications in reviewing applicants for unskilled positions. Defendant's personnel administrator testified that when defendant sought applicants for unskilled positions, it primarily sought persons who had operated mobile equipment or had worked with heavy equipment. The applications of several persons hired demonstrate that defendant also sought applicants who had welding or extensive truck driving or maintenance experience. The mine also sought employees in the unskilled category who appeared to be capable not only of menial tasks but also of filling in and assisting with other jobs as might be helpful when needed due to vacations, sickness or otherwise.

Defendant classified all applicants for union positions as skilled or unskilled. A skilled applicant needed to have a minimum of six months experience as a dragline operator, shovel operator, machinist, electrician, welder, mechanic, bulldozer operator, overburden driller, or overburden shooter. Unskilled positions were neither advertised by defendants nor described by the collective bargaining agreement as requiring any particular qualifications. Plaintiff reads Flowers v. Crouch-Walker Corp., 552 F.2d 1277, 1283 (7th Cir. 1977), to say that plaintiff need not show qualifications for an unskilled job where the employer has not apprised applicants of any preferred qualifications or experience. We do not read Flowers so broadly. In Flowers this court stated that a plaintiff need not disprove as a cause of his discharge a source of dissatisfaction of which he is unaware. Here, defendant held out employment opportunities for unskilled jobs. There is no indication that defendant did not consistently seek the most qualified and experienced workers to fill those unskilled positions. It does not follow, as plaintiff asserts, that all applicants without six months experience for a skilled position, a company standard, must necessarily be considered qualified for unskilled positions. Instead, that suggests that the skilled/unskilled dichotomy only concerned applicants' technical ability. The "unskilled" category merely indicated that defendant did not require any technical skills for those positions. The six-month experience requirement only established that an applicant with that much experience could be considered to have the requisite expertise in one of the listed skill areas. It not only appears in the evidence, but it is not an unrealistic or impractical assumption, that the employer did not and would not necessarily consider all applicants for unskilled positions to be equally qualified. It simply does not amount to sex discrimination for a coal mine to fill an unskilled position with a person, male or female, who had had some experience with welding, electricity, heavy equipment, etc., instead of with a beautician.*fn4 That some other mine had seen fit to hire plaintiff which permitted her to gain some mining experience so as later to be acceptable to defendant, does not reflect adversely upon defendant's initial exercise of its own business judgment not to hire her.

The plaintiff brands the skilled/unskilled work classifications in use by defendant as a semantic shell game. The defendant's game, she argues, consisted of mine officials classifying a job "as skilled whenever women or other undesirables applied and unskilled whenever men or favored men applied." That argument may be fostered by commendable zeal to eliminate sex ...

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