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EEOC v. CONSOLIDATED SERVS. SYS.

September 4, 1991

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v.
CONSOLIDATED SERVICES SYSTEMS, Defendant


James F. Holderman, United States District Judge.


The opinion of the court was delivered by: HOLDERMAN

The plaintiff, the United States Equal Employment Opportunity Commission ("EEOC") brought this action pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. ("Title VII"). The EEOC claims that the defendant, Consolidated Service Systems ("Consolidated") engaged in a continuing pattern and practice of illegally discriminating against non-Koreans as a class in both the recruitment and hiring of persons to perform janitorial services at various buildings throughout Cook County and the Chicagoland area. Jurisdiction is proper. The trial issues of liability and damages were bifurcated. A bench trial was held.

 Having carefully considered the evidence, the court finds that the EEOC failed to sustain its burden of proving by a preponderance of the credible evidence that the defendant illegally discriminated against non-Koreans in recruitment and hiring during the time period alleged. Consequently, judgment will be entered in favor of the defendant Consolidated and against the plaintiff EEOC.

 I. BACKGROUND FACTS

 Consolidated is a company which supplies janitorial services to other companies and businesses. (Tr. 29.) The time period covered by the EEOC's lawsuit is January of 1983 through March of 1987. It is undisputed that during that four and a quarter year time frame Consolidated's work force was primarily Korean. *fn1"

 There was no set procedure at Consolidated for persons seeking employment to fill out applications. (Tr. 31.) There were no written criteria or written rules as to the level of education needed to be hired as a janitor at Consolidated. There was no written rule or standard rule as to level of experience needed to be a cleaner at Consolidated. (Tr. 30.) Persons hired as janitors and cleaners at Consolidated, however, were interviewed by Andrew Hwang, Consolidated's president commencing January 1983, or by other Consolidated personnel. (Tr. 32-33.)

 Mr. Hwang, who was born in Korea, attended high school and two years of college in Korea. (Tr. 26.) He became president of Consolidated January 1, 1983 when he purchased the company from its previous owner who was also a Korean. (Tr. 28.) Before Mr. Hwang's purchase of Consolidated, the cleaning performed by Consolidated was performed by Korean individuals who were considered to be subcontractors rather than employees of Consolidated. Mr. Hwang, in January 1983 upon acquiring Consolidated, employed the persons who previously had performed Consolidated's cleaning tasks as independent contractors.

 During the year 1983 Mr. Hwang hired three people who had not previously been performing the same work as independent contractors for Consolidated under the prior ownership. (Tr. 723.) One of those people was a Charlene Burris, Mr. Hwang's secretary, a non-Korean. Another person Mr. Hwang hired was Korean, Soon Park. Mr. Hwang's wife was also employed. Her nationality was not proven but the court assumes she is Korean.

 During the period which the EEOC claims Consolidated discriminated against non-Koreans, 1983-1987, only two Consolidated employees, other than Mr. Hwang (Tr. 744), worked more than five hours per day. (Tr. 728.) One of those two workers was "inherited" from the previous owner. One was hired by Mr. Hwang. That one worker who Mr. Hwang hired, Mr. William Wall, was a non-Korean. (Tr. 728.) Most of Consolidated's cleaners who worked five hours per day less in the Cook County area earned $ 5.00 per hour or less (Tr. 728-731) with no fringe benefits. (Tr. 748.)

 During the period 1983-1987 Consolidated obtained a government cleaning contract in Las Vegas. That contract began May 1, 1986. Consolidated hired nine people, all non-Koreans, as its cleaning work force for the job. (Tr. 733-736.) They were paid $ 8.00 per hour. The thirteen people hired for the Railroad Retirement building at 844 North Rush in Chicago when Consolidated first got that contract in March 1984 were Korean. (Tr. 749-51.) They earned between $ 8.59 to $ 8.65 per hour. (Tr. 749.)

 Mr. Hwang never recruited employees in the sense of going out and hiring people. (Tr. 43.) A lot of people at Mr. Hwang's church came up to him and asked him if he had jobs. He hired only a few. (Tr. 40-41.) The Korean Association of Greater Chicago (who is not a party to this action) sent Mr. Hwang applicants. (Tr. 41-43.) Only a couple times did Mr. Hwang ask people who worked for him if they knew people who needed jobs. (Tr. 40.)

 During the period between January 1, 1983 and June 30, 1987, Consolidated placed an employment advertisement in a Korean language newspaper, the Joon Ang Times, only once. (Tr. 732.) That ad first appeared on February 17, 1984 and ran for three days. (Tr. 732.) Consolidated hired no one as result of that Korean language ad. (Tr. 733.) In March of 1985, Consolidated advertised for employees in the Chicago Tribune (Pl. Ex. 140), a newspaper of general circulation in the Chicago area, but hired no one as a result of that advertisement either. (Tr. 737.) Consolidated also placed an advertisement in the Chicago Tribune in June of 1987. (Tr. 740.) Consolidated received "a lot of applicants" from that advertisement, but none of the applicants wanted the job. (Tr. 740.)

 II. DISCUSSION

 A. Legal Standards

 Because the EEOC alleges a "pattern-or-practice" of discrimination by Consolidated (Pl.'s Trial Brief at 2; Tr. 7), the EEOC has the burden of proving "more than the mere occurrence of isolated or 'accidental' or sporadic discriminatory acts" by Consolidated. International Brotherhood of Teamsters v. U.S., 431 U.S. 324, 336, 97 S. Ct. 1843, 1855, 52 L. Ed. 2d 396 (1977). Instead, the EEOC must establish "by a preponderance of the evidence that [the national origin] discrimination was [Consolidated's] standard operating procedure--the regular rather than the unusual practice." Id.

 The EEOC sought to establish Consolidated's pattern and practice of discrimination under both the disparate treatment and disparate impact methodologies. (Tr. 8.) "Disparate treatment" is the more straight-forward method of proof. As the Supreme Court summarized in Teamsters:

 "Disparate treatment" . . . is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin. Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment. Undoubtedly disparate treatment was the most obvious evil Congress had in mind when it enacted Title VII.

 431 U.S. at 335 n.15, 97 S. Ct. at 1854 n.15 (citations omitted).

 The "disparate impact" methodology is less direct, but often easier to utilize. The Court described ...


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