Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. IP-74-39-C -- William E. Steckler, Chief District Judge.
Before Pell and Wood, Circuit Judges, and Campbell, Senior District Judge.*fn*
In January, 1974, Bettie Ethel Clark filed this action, on behalf of herself and all others similarly situated, against Chrysler Corporation in New Castle, Indiana, alleging that Chrysler had discriminated against blacks and females in its recruitment and hiring practices. The allegations of race discrimination were based on Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 (1976), and the Civil Rights Act of 1870, 42 U.S.C. § 1981 (1976). The allegations of sex discrimination were premised on Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 (1976). In addition, the appellant asserted that Chrysler had violated section 704 of Title VII, 42 U.S.C. § 2000e-3 (1976), by refusing to hire her in retaliation for a charge filed with the Equal Employment Opportunity Commission (EEOC) by Theodore F. Clark, Sr., her husband, on February 8, 1971, and for her charge filed with the EEOC on September 21, 1972. The district court prior to trial conditionally certified two classes based on race, but refused to certify any sex-based class. After a non-jury trial on the merits, the court entered judgment in favor of Chrysler on all issues and decertified the two classes based on race that it had conditionally certified prior to trial. The appellant is appealing from this judgment, primarily raising issues concerning the court's analysis of the statistical evidence presented during the trial.
Prior to trial, the appellant sought certification of class actions on behalf of all blacks and females represented by the appellant. The court held a hearing on certification and on March 31, 1976, conditionally certified two classes on the basis of race. The first class, represented by the appellant for claims arising under Title VII, was defined as:
All Negroes who, at any time after March 25, 1972, until the present, applied for employment in office or factory positions at the Chrysler Corporation manufacturing plant and offices in New Castle, Indiana, and who have been denied employment by reason of their race.
The second class for claimants under section 1981 was defined as:
All Negroes who, at any time after September 21, 1966, until the present, applied for employment in office or factory positions at the Chrysler Corporation manufacturing plant and offices in New Castle, Indiana, and who have been denied employment by reason of their race.
The class actions were ordered to be maintained under Federal Rule of Civil Procedure 23(b)(2) and (3). The court denied class certification based upon sex on the grounds that the appellant's charge before the EEOC was not a sufficient predicate for a complaint of sex discrimination.
On September 10, 1979, the court denied the appellant's motion in limine which sought to exclude any evidence through Chrysler's statistical expert or paralegal witness, as well as any summaries, graphs, or other statistical material prepared but not disclosed to the appellant before trial. On June 16, 1980, the district court adopted Chrysler's amended findings of fact and conclusions of law, entering judgment in favor of Chrysler.
The district court found that the appellant had filed applications for employment with Chrysler on May 16, 1972, and June 9, 1973, for unskilled production jobs or office jobs, and on September 7, 1973, for an office job alone. She was never hired by Chrysler. On September 21, 1972, she filed a charge of discrimination with the EEOC. On the front of the charge, the appellant checked the box indicating that the discrimination charged was based on "race or color." A box for discrimination on the basis of sex was not marked. In the narrative portion of her charge, the appellant asserted that "for (3) three years (she had) tried to get a job at Chrysler and they've found ways to avoid (her) applications and hired at least (500) five hundred other women." The EEOC did not investigate her charge or render any findings on the charge. Upon the appellant's request, the EEOC, on or about October 23, 1973, issued to the appellant notice of a right-to-sue.
According to the court's findings, the appellant had applied for positions at Chrysler on three occasions, but none of her applications had indicated that she had had prior factory experience or had ever operated factory equipment. Her only background relating to office work was a typing course she had taken in high school prior to 1947, which background was not indicated on her applications. Since 1947, she had had no further experience in using her typing skills. After her last application, which requested only office positions, no office positions were filled by Chrysler.
The court heard the individual testimony of twenty-one black witnesses, including the appellant, who had applied for employment with Chrysler. Of these witnesses, the court found that ten were hired, and eleven were not hired. Of the eleven not hired, two applied for jobs not within the scope of the lawsuit. One witness according to the court, did not appear in the applicant log or on any application. Of the remaining eight witnesses, four had applied for office work in September or October of 1973 when Chrysler was not hiring for office positions. None of the applicants seeking production jobs had had prior experience operating factory machinery according to their applications. The only remaining applicant had indicated on his first application that he had received a bad conduct discharge from the Navy, but did not so indicate on his second application. There was no evidence on the record that any white employee with a bad conduct discharge had ever been hired by Chrysler. Moreover, of the twenty-one witnesses, many of them had black relatives who had been hired. With respect to the appellant, her husband had worked for Chrysler for thirty years prior to his death. Her son and two daughters were also hired by Chrysler, with the two daughters having been hired in 1972 and 1973 during the period of the appellant's applications and EEOC charge.
Based on these factual findings and the statistical findings summarized below, the court concluded that the appellant had failed to prove by a preponderance of the evidence that the defendant's recruiting and hiring practices had a disparate impact upon blacks. In so concluding, the court reasoned: (1) that a comparison of applicants to persons hired indicated that blacks were hired for production and office jobs in a proportion greater than their representation in the applicant pool; and (2) that a comparison of the persons hired for office and production jobs within the relevant labor market indicated that blacks were hired in a proportion greater than their representation within the relevant labor market. The court also held that the appellant had failed to prove by a preponderance of the evidence that Chrysler had recruited or hired with a motive to discriminate against blacks. Of the twenty-one witnesses presented by the appellant it found that the "probative and credible evidence" indicated that each was not hired for legitimate reasons unrelated to race: "e.g., lack of qualifications for the positions sought, lack of openings for the positions sought, special circumstances-such as pregnancy*fn1 or "bad conduct discharge'-which precluded hiring, and random chance." Similarly, the court concluded that the appellant had failed to prove by a preponderance of the evidence that she had not been hired for reasons related to her race or that she had not been hired in retaliation for filing of her charge with the EEOC. The court then decertified the conditional certification of the two classes it had conditionally certified prior to trial, for failure to satisfy the numerosity requirement of Federal Rule 23 of the Federal Rules of Civil Procedure.
II. The Statistical Findings
To recruit applicants for office and unskilled production jobs, Chrysler utilized referrals through the New Castle office of the Indiana Employment Security Division (IESD) and the posting of a sign above the plant door indicating that applications were being taken for positions. From 1966 to 1977, according to the court, the percentage of black employees in Chrysler's New Castle workforce in both unskilled production and office jobs was as follows:
Year Percentage Black Employment
No significant hiring occurred during the years 1966 through 1970. Moreover, no data exists indicating the racial composition of the applicant pool or the racial designation of persons hired during that period.
According to the court, hiring at the facility occurred primarily in three separate periods: (1) late 1971-1972; (2) 1973; and (3) 1976. The court made the following findings of hiring statistics for these three periods:
Number of applications 1,688 ...