The opinion of the court was delivered by: Foreman, Chief Judge:
A. Jurisdiction 1562
B. Title VII 1562
1. An Individual Disparate Treatment Claim 1562
2. A Disparate Impact Claim 1563
3. A Class Action Pattern & Practice Disparate
Treatment Claim 1564
C. A 42 U.S.C. § 1981 Claim 1564
D. Statistical Evidence 1564
III. THE CLASS CLAIMS 1566
A. The Claims and Theories of the Parties 1566
B. An Overview of the Evidence Presented 1567
C. The Plaintiffs' Evidence 1568
1. Statistical Analysis 1568
2. The Plaintiffs' Static Work Force Statistics 1569
3. Anecdotal Evidence 1570
D. The Defendant's Evidence 1570
1. Statistical Analysis 1570
2. The Defendant's Anecdotal Evidence 1573
E. The Court's Analysis of the Plaintiffs' Case 1573
1. The Accuracy of the Data Upon Which the
Plaintiffs Relied 1573
2. The Plaintiffs' Applicant Flow Analysis 1575
3. The Plaintiffs' Static Work Force Statistics
and Anecdotal Evidence 1576
4. The Plaintiffs' Prima Facie Case 1576
F. The Court's Analysis of the Defendant's Rebuttal 1576
1. The Distance Factor 1576
2. The Defendant's Demographic Analysis 1577
G. The Court's Conclusion Concerning the Class Claims 1579
H. Mister's Representation of the Class 1581
IV. ROBERT MISTER'S INDIVIDUAL CLAIM 1581
The plaintiff, Robert Earl Mister, a black male, filed this
action on January 9, 1981, against the Illinois Central Gulf
Railroad Company, pursuant to Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. § 2000e et seq. (Title VII),
42 U.S.C. § 1981, and 42 U.S.C. § 1985, alleging that the defendant
refused to hire him because of his race. In addition to the
individual claim, and upon the plaintiff's request, the Court
allowed the plaintiff to represent a class of all black persons
who had applied for jobs and been wrongfully rejected due to the
defendant's allegedly racially discriminatory practices with
regard to hiring within the defendant's St. Louis, Missouri,
Operating Division. On October 11, 1985, the Court granted the
defendant's motion for summary judgment with respect to the
plaintiffs' 42 U.S.C. § 1985 claims.
After numerous discovery battles that caused many continuances,
the Court, without a jury, heard the liability phase of the case
on November 12, 13, 14, 15, 18, 19, 20, 21, 1985, December 5, 6,
1985 and January 21, 22, 23, 24, 30, 31, 1986. The following
memorandum represents this Court's findings of fact and
conclusions of law as contemplated by Fed.R.Civ.P. 52(a). In
order to place the discussion of the evidence in the proper
perspective, the Court feels that a general overview of the legal
standards is appropriate.
This Court finds that it has subject matter jurisdiction of the
Title VII claims pursuant to 42 U.S.C. § 2000e-5(f)(3) and that
it has subject matter jurisdiction of the 42 U.S.C. § 1981 claims
pursuant to 28 U.S.C. § 1343. Venue is proper both under
42 U.S.C. § 2000e-5(f)(3) and 28 U.S.C. § 1391.
Title VII prohibits an employer from failing or refusing to
hire an individual because of the individual's race.
42 U.S.C. § 2000e-2(a)(1). The Supreme Court has identified two theories in
Title VII cases — disparate treatment and disparate impact.
International Brotherhood of Teamsters v. United States,
431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). In general, either
theory may be applicable to a particular set of facts. Id. at 335
n. 15, 97 S.Ct. at 1854. Regner v. City of Chicago, 789 F.2d 534
(7th Cir. 1986).
Under the disparate treatment theory, the employer treats some
people less favorably than others because of their race,
religion, sex, or national origin. Teamsters 431 U.S. at 335 n.
15, 97 S.Ct. at 1854 n. 15. Proof of discriminatory intent is
critical. Id. Under the disparate impact theory, employment
practices that are facially neutral in their treatment of
different groups "fall more harshly on one group than another and
cannot be justified by business necessity. . . ." Id. Unlike a
disparate treatment case, a plaintiff in a disparate impact case
need not show an intent to discriminate. Id.
1. An Individual Disparate Treatment Claim.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817,
36 L.Ed.2d 668 (1973), is the seminal case concerning the burdens
of pleading and proof in an individual disparate treatment case.
The Supreme Court therein outlined a three-step formula for such
cases. First, the plaintiff
must establish a prima facie case. He may do so by showing that
a) he belongs to a protected class; b) that he applied for an
existing job for which he was qualified; c) that despite his
qualifications, he was rejected; and d) after the rejection, the
employer continued to seek applicants with the plaintiff's
qualifications. Id. at 802, 93 S.Ct. at 1824. Once the plaintiff
establishes a prima facie case, the burden shifts to the
defendant to provide a legitimate nondiscriminatory reason for
its actions. Id. The purpose of this evidence is to show that the
employment decision was not "motivated by discriminatory animus."
Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
257, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981). The defendant
need not demonstrate nondiscriminatory intent, but must simply
produce evidence to rebut the presumption of discrimination
raised by the plaintiff's prima facie case. Id. at 254-55, 101
S.Ct. at 1094. This is not a burden of persuasion, but merely a
burden of production. The plaintiff may still persuade the Court
that the defendant's explanation is "unworthy of credence" that
"a discriminatory reason more likely motivated" the defendant.
Id. at 256, 101 S.Ct. at 1095. The plaintiff at all times retains
the ultimate burden of persuasion.
The McDonnell Douglas formulation was not "intended to be
rigid, mechanized, or ritualistic" in application. Furnco
Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943,
2949, 57 L.Ed.2d 957 (1978). Nor does it suggest a specific order
of proof at trial. Coates v. Johnson & Johnson, 756 F.2d 524, 531
n. 5 (7th Cir. 1985). The ultimate question in a disparate
treatment case is whether the defendant's actions were founded in
a discriminatory intent. Teamsters, 431 U.S. at 335 n. 15, 97
S.Ct. at 1854 n. 15.
2. A Disparate Impact Claim.
In a disparate impact case, the plaintiff can establish a prima
facie case of discrimination by showing that "facially neutral
standards in question select applicants for hire in a
significantly discriminatory pattern." Dothard v. Rawlinson,
433 U.S. 321, 329, 97 S.Ct. 2720, 2726, 53 L.Ed.2d 786 (1977).
Once the plaintiff establishes a prima facie case of
discriminatory impact, the burden of proof shifts to the
defendant to demonstrate a business necessity for the practice or
that the practice has a "manifest relation to the employment in
question" in order to avoid a finding of discrimination. See
Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 853,
28 L.Ed.2d 158 (1971), and Connecticut v. Teal, 457 U.S. 440,
446, 102 S.Ct. 2525, 2530, 73 L.Ed.2d 130 (1982). The Supreme
Court has not indicated whether this shift in burden is one of
persuasion or simply one of coming forward with the evidence as
in a disparate treatment case. See Schlei and Grossman,
Employment Discrimination Law, p. 1328 (2d ed. 1983). This Court
is inclined to follow those cases holding that the shift is one
of persuasion. See Johnson v. Uncle Ben's Inc., 657 F.2d 750,
752-53 (5th Cir. 1981), cert. denied, 459 U.S. 967, 103 S.Ct.
293, 74 L.Ed.2d 277 (1982). Even if the defendant meets his
burden of persuasion, the plaintiff may still prevail by showing
that the defendant was using the practice as a mere pretext for
discrimination or that other selection devices without a
significant discriminatory effect would also "serve the
employer's legitimate interest. . . ." Albemarle Paper Co. v.
Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280
Similar to a disparate treatment case, the allocation of proof
set forth above represents a method for analyzing evidence and
not a procedure by which evidence is presented. Teamsters, 431
U.S. at 335 n. 15, 97 S.Ct. at 1854 n. 15.
A disparate impact theory is most frequently employed in class
actions because the employment practice in question, by the very
nature of the theory, must affect a large group of persons.
Statistics are almost totally determinative in cases under the
disparate impact theory.
Generally, a disparate impact claim concerns the impact of a
facially neutral standards or criteria such as a maximum height
requirement, or minimum scores on an objective test. See e.g.,
Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d
158 (1972). Courts are not in agreement as to whether the
disparate impact analysis can be applied to subjective employment
decisions. See Schlei and Grossman, Employment Discrimination
Law, p. 24 (1983-1984 cumulative supplement); Major Issues in the
Federal Law of Employment Discrimination, Supplement 1 p. 13.
This Court need not get too caught up in this interesting debate
because in the recent case of Regner v. City of Chicago,
789 F.2d 534, (7th Cir. 1986), the Seventh Circuit has seemingly approved
the application of the disparate impact model to a subjective
procedure. See also Griffin v. Board of Regents of Regency
Universities, 795 F.2d 1281, 1287-1289, nn. 13, 14 (7th Cir.
1986). For an excellent discussion of this issue, see Lamber,
Discretionary Decisionmaking: The Application of Title VII's
Disparate Impact Theory, 1985 U.Ill.L.R. 869.
3. A Class Action Pattern and Practice Disparate Treatment Claim.
Although the disparate treatment theory arises most often in an
individual case, class actions may also proceed under this
theory. In such a case, the plaintiff generally combines a claim
of individual disparate treatment with a claim that the
defendant's treatment of the plaintiff is part of a pattern or
practice of discriminatory treatment toward the members of the
Plaintiffs who raise a pattern or practice claim must
demonstrate that the discrimination has been the regular policy
of the defendant, i.e., that "discrimination was the company's
standard operating procedure — the regular rather than unusual
practice." International Brotherhood of Teamsters v. United
States, 431 U.S. 324, 336, 360, 97 S.Ct. 1843, 1867, 52 L.Ed.2d
396 (1977). The plaintiff usually establishes a prima facie case
by employing statistical evidence to create an inference of
classwide discrimination similar to a disparate impact case. Id.
at $339, 97 S.Ct. at 1856. Although the plaintiffs almost always
offer evidence of individual instances of discriminatory
treatment to buttress their case, the plaintiffs are not required
to show that each member of the class is a victim of the
defendant's discriminatory policy. Id. at 360, 97 S.Ct. at 1867.
Evidence of isolated incidents alone will not establish a prima
facie case. However, in some cases, statistical evidence alone
may constitute a prima facie case. See Coates v. Johnson &
Johnson, 756 F.2d 524, 532 n. 6 (7th Cir. 1985).
Once the plaintiffs establish a prima facie case, the burden
then shifts to the defendant to rebut the inference of
discrimination created by the plaintiff's statistics. The
defendant may do so by "demonstrating that the plaintiffs' proof
is either inaccurate or insignificant." Teamsters, 431 U.S. at
360, 97 S.Ct. at 1867, or by providing a "nondiscriminatory
explanation for the apparently discriminatory result." Id. at 360
n. 46, 97 S.Ct. at 1867 n. 46. At all times, the plaintiffs
maintain the burden of persuasion with respect to discrimination.
Coates, 756 F.2d at 532.
C. A 42 U.S.C. § 1981 Claim.
42 U.S.C. § 1981 provides a redress for racial discrimination
in private employment. McDonald v. Santa Fe Trail Transportation
Co., 427 U.S. 273, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976).
Traditionally, the courts regarded Title VII and § 1981 cases as
involving analogous principles, standards, and theories of
discrimination; however, the Supreme Court has eliminated the
disparate impact theory in § 1981 cases. General Building
Contractors Association v. Pennsylvania, 458 U.S. 375, 102 S.Ct.
3141, 73 L.Ed.2d 835 (1982). In General Building, the Supreme
Court held that § 1981 could only be violated by purposeful
discrimination. Therefore, the legal standards outlined above for
the individual and class disparate treatment claims would apply
equally as well to the 42 U.S.C. § 1981 individual and class
The differences resulting from the above comparisons may be
measured in a number of ways. The chief barometer employed is a
The "standard deviation" is a number that
quantifies the degree to which disparities spread out
above and below the mean of distribution, thus
describing the probability that chance is responsible
for any difference between an expected outcome and
the observed outcome in a sample consisting of two
groups (a binomial distribution). The greater the
number of standard deviations, the less likely it is
that chance is the cause of any difference between
the expected and observed results. The Supreme Court
noted in Castaneda v. Partida, 430 U.S. 482, 97 S.Ct.
1272, 51 L.Ed.2d 498 (1977), that under a "two-tail"
test of statistical significance, "[a]s a general
rule for . . . large samples, if the difference
between the expected value and the observed number is
greater than two or three standard deviations, then
the hypothesis that the [disparity] was a random
would be suspect to a social scientist." Id. at 497
n. 17, 97 S.Ct. at 1281 n. 17. The general rule
should be applied with ...