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Waters v. Furnco Construction Corp.

decided: September 2, 1982.


On Remand from the Supreme Court, Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 72-C-2305 -- Richard B. Austin, Judge.

Pell, Circuit Judge, Fairchild, Senior Circuit Judge, and Christensen,*fn* Senior District Judge.

Author: Fairchild

FAIRCHILD, Senior Circuit Judge.

In our earlier decision, 551 F.2d 1085, we affirmed the judgment against five of the eight plaintiffs. As to the other three, Nemhard, Samuels, and Smith, we held that they had each made out a prima facie case of disparate treatment under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973).

The district court had made findings that Furnco had a critical need to insure that only experienced and highly qualified firebricklayers were employed on this job; that in order to do so its job superintendent, Dacies, endeavored to hire only firebricklayers with whom he had previously worked in blast furnace relines or who were recommended as being skilled in such work; that a number of factors precluded Furnco from hiring bricklayers not known by Dacies to be experienced and highly qualified in firebrick; that hiring of firebricklayers is not done at the gate for a number of reasons; that these policies and practices were justified as a business necessity; and that there was no evidence that these policies and practices were a pretext to exclude Negro bricklayers.

In our earlier decision, we concluded that a different method of application and selection could meet Furnco's needs without excluding qualified individuals from consideration.

The Supreme Court determined that we had gone too far in requiring a method which allows the employer to consider the qualifications of the largest number of minority applicants, and reversed and remanded for further proceedings. Furnco Construction Co. v. Waters, 438 U.S. 567, 57 L. Ed. 2d 957, 98 S. Ct. 2943 (1978).

We called for and received briefs from the parties.

The prima facie case of Nemhard and Samuels rests exclusively upon the fact that Furnco refused to consider their attempted applications. It is clear that Furnco has satisfied its burden "by producing evidence that the plaintiff was rejected . . . for a legitimate, nondiscriminatory reason." Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981). The reason, in essence, was the need to obtain workers known from experience to be sufficiently qualified. The district court had found there was no evidence that the reason was pretextual. On this record the finding is not clearly erroneous.

We have considered plaintiffs' argument that the "primary" use by Dacies of his discriminatory "list," hereafter referred to, rendered Furnco's reason for refusing to consider unknown applicants pretextual. Particularly in the light of the substantial number of black bricklayers hired on the job at the specific direction of Furnco management, we think the argument does not have merit.

Accordingly, we conclude that the judgment against Nemhard and Samuels must be affirmed.

The case of plaintiff Smith has, however, an additional and significant element, not specifically resolved by the findings and conclusions of the district court.

Smith had worked for or with Dacies before, in 1958, 1962, 1969, and 1971. His work evidently met Dacies' standards. Dacies testified that on one occasion, the date of which he did not remember, but in the course of the Interlake job, he met Smith at the gate area and had a conversation. In one answer, he testified: "I said, 'What are you doing here? You are going to get a job when I'm ready to increase the forces. ' I was very much surprised that he was out there, and that was the course of the conversation and then eventually I did hire him, because I knew him." In a later answer, he testified: "I talked to him and I said, 'You can go . . . might as well go home, Smitty. I will call you when the job is ready, when I am ready to hire people." The difference between the two versions is that the second may suggest the conversation occurred before any people were hired and the first, that it occurred after some had been hired.

Smith fulfilled the specification of being known to Dacies to be experienced and highly qualified in firebrick. Yet he was not hired as soon as he sought ...

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