Rehearing and Rehearing En Banc Denied October 16, 1974.
SIMPSON, Circuit Judge:
Under this appeal we review a district court order based upon a finding that the appellant Southern Railway ("Southern" or "Railway") discriminated against blacks in hiring for the Data Typist/1050 position at Southern's Atlanta general office. The suit was brought as a class action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. (1970). The district court order enjoined the use of certain tests and interviews employed by Southern in selecting its Data Typists. The court also awarded the individual plaintiff differential back pay and attorneys' fees and ruled that the plaintiff should be awarded seniority from the date of her original application should she subsequently apply for and be hired by Southern for the Data Typist position. D.C., 349 F.Supp. 812.
The origin of the law suit was a classified advertisement placed by Southern in the Atlanta Constitution, an Atlanta, Georgia daily newspaper. The want ad sought applicants for the Data Typist position who "should be able to type 60 wpm [words per minute] and be willing to work night shift and weekends." It continued that Southern was an "Equal Opportunity Employer."
Appellee resonded to an advertisement which ran from June 30 to July 12, 1969. Ms. Hester was one of forty individuals who responded. She went to the Southern Railway office and completed an application form, and was then required to take an SRA (Science Research Associates) typing test in order to demonstrate her ability to type a minimum of sixty words per minute. In addition, she was required to take SRA verbal and non-verbal tests, and the J. P. Cleaver self-description test. She passed the typing test on her second attempt. According to testimony, applicants were not given pass/fail grades on the three other tests. Rather, these tests were used as informational inputs in evaluation of the applicants. After finishing the testing phase of the application process, Ms. Hester was interviewed by Southern Personnel Officer James Melton. She was later notified by mail that Southern had no position for her at that time.
About two weeks later, Ms. Hester noticed the same want ad for typists in the Atlanta newspaper. She called Mr. Melton to inquire about the availability of a position at that time. Mr. Melton responded that she did "not fit into the picture." Ms. Hester and her husband tried to see Melton at his office, but he did not respond to messages to call her.
Ms. Hester at about this time filed a complaint with the Equal Employment Opportunity Commission (EEOC) alleging discrimination against her by Southern on the basis of race. An EEOC investigator examined Southern's record of those hired for the Data Typist/1050 position
The complaint stated that Southern had violated the provisions of Title VII of the Civil Rights Act of 1964, Title 42 U.S.C. Sec. 2000e et seq., by refusing, on grounds of race and sex, to hire the plaintiff for the position of Data Typist/1050 operator. Plaintiff was alleged to represent a class composed of black women with children who had not been hired by the defendant because of sex and race. Southern denied engaging in racially discriminatory hiring and submitted affidavits of four black women with children at the time that they were hired by Southern and who were working as Data typist/1050 operators at the time of Ms. Hester's application. Southern also presented employment figures showing that, for the period January 1, 1969, through June 1, 1971, 20.5% of all the data typists hired were non-white and of these, 50% had children at the time they were employed. These affidavits and figures were the basis for Southern's Motion for Summary Judgment, which the district court denied. The case was set for non-jury trial.
Evidence was taken on April 10-11, 1972. The proof submitted was primarily: (i) testimony of Southern Personnel Officer Melton as to his reasons for not offering Ms. Hester employment at the time of her application;
The court ruled the plaintiff had failed to make an affirmative showing during trial that the requirements of Rule 23, F.R.Civ.P. were met and held that the case was not a valid class action, citing Oatis v. Crown-Zellerbach Corporation, 5 Cir. 1968, 398 F.2d 496. The judge then evaluated the evidence in the light of the plaintiff's claim of discrimination in hiring. Respecting the plaintiff's claims of discrimination based on sex or on race combined with status as parent, the court failed to find any discrimination demonstrated:
Proceeding then to the question of discrimination based on race, the court found: (i) that the testing procedure employed by Southern was not validated (i. e., proven to be job-related and nonracially biased) at the time of Ms. Hester's application; and (ii) the interviewing procedure employed by Mr. Melton was "purely subjective" and based upon "no formal guidelines, standards, or instructions . . . ." Id. at 817. The question at this stage was whether over all the hiring procedure employed by the Railway was discriminatory in its operation. The court in its summary of the evidence stated:
Upon this showing, the court found the following facts and reached its conclusion of law:
The order entered below, based upon the foregoing: (i) enjoined the further use by Southern of the non-validated tests and the single discretionary interview procedure; (ii) awarded differential back pay to Ms. Hester from the date of the alleged discriminatory refusal to hire until the date of the filing of the complaint in the court below; (iii) awarded costs and attorneys' fees to the plaintiff;
On appeal, Southern challenges the heart of the district court opinion, contending that the court's finding that the Railway's hiring procedure — both the testing and the interviewing stages — discriminated against blacks is clearly erroneous for want of an evidentiary basis. Rule 52(a) F.R.Civ.P. Without an underlying finding of discrimination, Southern says that the court lacked power to enjoin the further use of this hiring procedure. Southern argues further that whether or not the tests were discriminatory was not before the court below since the evidence showed the plaintiff passed the typing and other tests and therefore had no standing to challenge the tests. Both parties challenge the district court's award of differential back pay and attorneys' fees.
The paths to establishment of a prima facie case of racial discrimination are several. In some instances, a showing of disparity between the percentage of minority group members in the local population and the percentage in a particular job may be of significance. Cf. Chance v. Board of Examiners, S.D.N. Y.1971, 330 F.Supp. 203, 214, aff'd 2 Cir. 1972, 458 F.2d 1167; Penn v. Stumph, N.D.Cal.1970, 308 F.Supp. 1238, 1243 nn. 7 & 8. There is no competent evidence of such a disparity in this case.
In other situations, a showing of a total absence of blacks from a particular job position, both currently and as a matter of historical record, may be significant as an indication of racial discrimination. Franks v. Bowman Transportation Co., 5 Cir. 1974, 495 F.2d 398, at p. 419 . This again is not the case before us.
The most direct route to proof of racial discrimination in hiring is proof of disparity between the percentage of blacks among those applying for a particular position and the percentage of blacks among those hired for the position. From such statistics, the district court could have proceeded to consider evidence as to the numbers of whites and blacks taking and passing the typing and other SRA tests administered here. Griggs v. Duke Power Co., 1971, 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 suggests such a test of employment testing. The initial inquiry that a court must make in evaluating employment testing is whether the tests "operate to disqualify Negroes at a substantially higher rate than white[s] . . ."
Upon a presentation of additional evidence a similar inquiry could have been made regarding the percentage by race of those passing the typing test but being denied employment on the basis of the personal interview. The district court in fact sought the additional evidence making such a determination possible. Less than two months after the hearing in this case, and several months before the opinion-order came down, the court notified counsel of a post-trial hearing through which he sought answers to the following questions, inter alia:
The record does not show whether this hearing ever took place. If it did, the information sought by the interrogatories is not in the record before us.
The evidence in the record as to the percentage of blacks in the applicant pool was: (i) the estimate of Southern Personnel Officer Melton that blacks constituted probably 35%-40% of the respondents to Southern's want ad; (ii) records indicating that, of the 40 persons answering the ad to which Ms. Hester responded, 21 were black and 19 were white. This evidence fails to support the district court's finding that "[d]uring 1968 and 1969, . . . whites were applying in only slightly larger numbers than blacks for the Data Typist position." 349 F.Supp. at 817.
Melton's testimony is defective both as to relevance and as to probative value. Regarding relevance, Melton testified that blacks constituted approximately 35%-40% of those responding to the newspaper ads placed by Southern in the Atlanta newspaper. Other testimony indicated, however, that a substantial number of those responding to the newspaper ads failed to advance to the testing and interviewing stages. The testimony was that some applicants "deselected" themselves before submitting to the selection process. This evidence is too conjectural and inconclusive to permit any conclusions as to the incidence or rate of deselection. But this testimony does bring into question the relevance of the percentage of blacks responding to the newspaper ads, since the percentage actually applying for the Data Typist position might have been considerably different.
The value of Melton's testimony is seriously undermined by its subjectiveness and lack of precision illustrated by the exchange quoted in Note 3, supra. Such "gut feel" testimony is not competent to support any finding respecting the racial composition of the applicant pool.
Likewise, the evidence concerning the racial composition of the pool of applicants responding along with the plaintiff to the ad of June 30 — July 12, 1969, does not meet the standards of Rule 52(a). Evidence that blacks constituted 50% of one group of respondents to an ad run periodically throughout the year is no logical support for a finding that blacks constituted a like percentage over an entire one or two year period. Such extravagent extrapolation is not permissible.
The district judge's finding that blacks and whites applied in equal numbers for the Data Typist position during 1968-69, is rejected for lack of a sufficient evidentiary foundation. It is "clearly erroneous", Rule 52(a), F.R. Civ.P.
Without factual underpinning, the lower court's finding of discrimination in hiring is erroneous as a matter of law. The conclusory finding of discrimination is among the class of ultimate facts dealt with as conclusions of law and subject to review outside the constrictions of Rule 52(a). United States v. Winthrop, 5 Cir. 1969, 417 F.2d 905, 910, and cases cited therein.
We come now to the question of whether the relief ordered by the district court was appropriate without competent proof of discrimination by the Railway in its hiring of Data Typists. At the time that the district court held its hearing the SRA and J. P. Cleaver tests utilized by Southern had not been validated for job-relatedness. Likewise, the interview procedure comes uncomfortably close to the promotion procedure proscribed by Rowe v. General Motors Corp., 5 Cir. 1972, 457 F.2d 348, 358-359. Nonetheless, nonvalidated tests and subjective hiring procedures are not violative of Title VII per se. Title VII comes into play only when such practices result in discrimination. At that point, the burden of producing evidence shifts to the employer, who must offer satisfactory justification for his procedures. As stated in United States v. H. K. Porter Co., N.D.Ala.1968, 296 F.Supp. 40, 76-77:
The missing ingredient in the proof here was the necessary showing of discrimination. Without such proof the district court lacked authority to enjoin the further use of the testing and interviewing procedures by Southern for selection of Data Typists. That injunction is vacated because of this deficiency. The court below is free to consider re-imposing it if the plaintiff by additional proof establishes a prima facie case of racial discrimination in the use of either the tests or the interviews, and Southern fails to meet its burden of justification.
The lower court awarded the plaintiff-appellee differential back pay and attorneys' fees. Successful litigants in Title VII suits are eligible for back pay awards under Title 42 U.S.C., Sec. 2000e-5(g). Franks v. Bowman Transp. Co., supra, 495 F.2d at 421; Johnson v. Georgia Highway Express, Inc., 5 Cir. 1969, 417 F.2d 1122, 1125. Similarly, the "prevailing party" in Title VII litigation is eligible for an award of reasonable attorneys' fees under Title 42 U.S.C. Sec. 2000e-5(k). But in this case the award of back pay and attorneys' fees falls with the failure to prove discrimination. See Banks v. Seaboard Coastline R. R. Co., N.D.Ga.1973, 360 F.Supp. 1372, 1375. The district court's order and supplemental order awarding attorneys' fees and back pay is vacated, against subject to re-imposition if the appellee succeeds after remand in proving discrimination in Southern's hiring policies for the Data Typist/1050 position. Because discrimination was not proved, we also set aside the district court's order that the plaintiff be awarded seniority from the date of her original application should she re-apply for and be hired for the Data Typist position.
It is not clear to us on this record whether the plaintiff, armed with the necessary statistics, would or would not have succeeded in proving the discrimination claimed. It is therefore appropriate to remand for further proceedings in the district court. Noted supra is the attempt by the district court to obtain the statistics necessary to determine whether Southern has discriminated in the hiring of its Data Typists. This inquiry, apparently unsuccessful as it was, may have sufficed to end the matter. This silent record does not reveal why the additional information was not forthcoming. The district judge, in the exercise of his sound discretion, should decide what further course, if any, it is necessary for this litigation to take along lines not inconsistent with this opinion.
Reversed in part, vacated in part, and remanded.
At the trial, Melton stated that these notes were not intended as a permanent record, but simply something to jog his memory. Proceeding, he further explained his reasons for not offering Ms. Hester a job:
In view of this testimony the district court declined to "place much reliance on Melton's handwritten notes".
Moreover, comparison with general population statistics is of questionable value when we are considering positions for which, as here, the general population is not presumptively qualified. Data Typist applicants were required to prove their ability to type at a minimum speed of sixty corrected words per minute as a prerequisite to consideration by Southern for employment. (The record indicates deviation by a word or two from this requirement in isolated instances). A more significant comparison might perhaps be between the percentage of blacks in the population consisting of those able to type 60 wpm or better and the percentage hired into the Data Typist position by Southern. Even this, however, would constitute no more than an indication that discriminatory practices may be in operation. As the text, infra, indicates, recourse would still have to be had to the statistics concerning the applicant pool and its racial composition before meaningful comparison with the percentage of blacks actually employed could be made.