CLARK, Circuit Judge:
Mary Miles appeals from an adjudication that defendant-appellee M.N.C. Corporation (M.N.C.) did not discriminate against her on the basis of race in violation of Title VII of the Civil Rights Act. M.N.C. is a company
At the time of Miles' layoff, two other full-time general production workers were also laid off. One of these workers, Lavelle Parmer, was white and the other worker, Sarah Wright, was black. Layoffs were according to seniority and these three women were the junior employees at the plant. Both Parmer and Wright had been employed a few days before Miles. One white male part-time worker, David Kinports, was also laid off. Miles claims that Dave Nichols, the plant supervisor, told her on two occasions that she would be recalled after the first of the year. Around January 23, 1980, Parmer, the white full-time worker, was reemployed and two white male part-time workers were employed. Part-time workers had the same duties as full-time general production workers. In June 1980, Parmer quit her job and was replaced by Karen Wilson, a white worker who had been employed by Rock-Tenn over two years, moved away and then returned to the Opelika area.
After Parmer told Miles about her reemployment, Miles met with Nick Constan in January 1980. According to Miles, Constan told her at that time she would be recalled when work picked up before new employees were hired. Upon hearing about the employment of Wilson in June, Mary Miles spoke with Olin Henderson, plant manager, who told her she would be recalled when business picked up. Miles filed a charge of racial discrimination with the E.E.O.C. on November 1, 1980, received her right-to-sue letter in October 1981 and filed suit in federal court in December 1981.
After hearing testimony and receiving briefs, the district court found against Miles on her claim of racial discrimination. The district court applied a disparate treatment analysis to the facts and found that Miles had made out a prima facie case of discrimination.
Miles contends that her direct evidence of discrimination, in the form of a racial
Mary Miles now appeals and claims that the district court made the following clearly erroneous findings of fact: 1) that seniority played a role in determining who was entitled to recall; 2) that Wilson's ability to operate a machine was the reason why she was hired; 3) that the plaintiff did not apply for part-time employment; 4) that the statistical evidence was related to racial composition of the area; 5) that Olin Henderson's racial slur had been stricken from the record; 6) that the plaintiff offered no testimony as to the quality of her work; 7) that Parmer was an excellent block setter. The district court made several clearly erroneous findings of fact and erred with respect to the racial slur. The court then wrongfully concluded that M.N.C. would have reached the same decision regarding Miles even absent the illegal motivation. We reverse.
A court of appeals may not set aside district court findings of fact unless they are clearly erroneous. Fed.R.Civ.P. 52(a); Pullman-Standard v. Swint, 456 U.S. 273, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982). This standard imposes a heavy burden on the appellant in a case in which the evidence was largely testimonial and the district court had the advantage of observing the witnesses and making credibility determinations. Lincoln v. Board of Regents of Univ. System, 697 F.2d 928, 939 (11th Cir.1983). A finding of fact is reversible under Rule 52(a) only when, after reviewing the entire record, the appellate court is convinced that an error has been made. Wright v. Western Electric Co., 664 F.2d 959 (5th Cir.1981). The review this court conducts inquires into whether a finding has substantial evidence to support it. Lincoln, supra at 939.
Because of the employee's easy burden of establishing a prima facie case and the employer's normal ability to articulate some legitimate nondiscriminatory reasons for its actions, most disparate treatment cases turn on the plaintiff's ability to demonstrate that the nondiscriminatory reason offered by the employer was a pretext for discrimination. B. Schlei & P. Grossman, Employment Discrimination Law 1316-1317 (1983). The same is true of the present case. Three types of evidence can be used by a plaintiff to prove pretext: 1) comparative evidence; 2) statistical evidence; and 3) direct evidence of discrimination, in the form of discriminatory statements and admissions. B. Schlei & P. Grossman, supra at 1314. Miles proffered all three types of pretext evidence in this case. The district court made erroneous findings of fact with regard to each proffer: 1) in its determination that M.N.C. had legitimate reasons for hiring the two white workers in preference to Miles, 2) in its analysis of the statistical evidence offered at trial, and 3) in its decision as to the admissibility of the racial slur. The erroneous findings of fact in these three areas are crucial, and thereby affect the substantial rights of the plaintiff, because each determination made by the district court cut against the plaintiff's showing of pretext.
I. Comparative Evidence
Miles attempted to prove that white workers in a comparable employment position to her own were treated more favorably than she was. The district court found that M.N.C. proved by a preponderance of the evidence that the workers in question could not be compared to Mary Miles. Since the district court offered distinct reasons why Parmer, Wilson and the part-time workers could not be compared to Miles, each rationale should be considered separately.
The district court found that Parmer, the first rehired full-time worker, was senior to Miles and more experienced and proficient. The president of M.N.C. indicated that Mary Miles was not considered a call-back employee because she had not served the ninety-day probationary period. Since Parmer had worked only a few days longer than Miles, it is clear that she, too, lacked vested seniority rights. Therefore, seniority could not have acted as a legitimate reason for recalling Parmer but not Miles. The district court's finding that seniority provided a basis for distinguishing between the two women is important. The only other reason for so distinguishing them, the work performance of each, was based upon subjective evaluation.
This circuit has frequently noted the problems associated with this type of worker assessment and noted that subjective evaluations involving white supervisors provide a ready mechanism for racial discrimination. Parson v. Kaiser Aluminum & Chemical Corp., 575 F.2d 1374, 1385 (5th Cir.1978); Rowe v. General Motors Corp., 457 F.2d 348, 359 (5th Cir.1972); Robbins v. White-Wilson Medical Clinic, 660 F.2d 1064, 1067 (5th Cir. Unit B 1981), vacated on other grounds, 456 U.S. 969, 102 S.Ct. 2229, 72 L.Ed.2d 842 (1982); Harris v. Birmingham Bd. of Educ., 712 F.2d 1377 (11th Cir.1983).
The district court held that at the time the part-time workers were hired there was no need for a full-time worker and that Miles had not applied for part-time employment. There was no evidence introduced into the record to show that Miles did not apply for part-time work or expressed an aversion for it. The only evidence is that from January until June of 1980 Mary Miles contacted M.N.C. several times about the possibility of working.
II. Statistical Evidence
As another part of her case of pretext, appellant offered statistical evidence to show that there was an overall discrimination in M.N.C. hiring in favor of whites. The district court found that the statistical evidence had methodological problems and, therefore, was not probative. In doing so, the court mischaracterized the evidence. The plaintiff's claim did not rest, as found by the district court, on the fact that M.N.C.'s general production positions were filled by white women in a community where the work force was predominantly black. Instead, Miles offered statistical proof which tended to show that the hiring rate for white applicants, referred to M.N.C. from the Alabama state employment service, far exceeded that of black applicants.
The district court indicated that the statistical study lacked probative value because there was no data showing whether the white applicants were more experienced, more qualified or had better experience. At the same time, however, the court correctly noted that there were no specific qualification or criteria for employment at M.N.C. Various employees testified to widely differing past employment experiences. General production work was described as unskilled labor for which there were no particular qualifications. Several of the employees testified that the entire hiring process at M.N.C. consisted of filling out an application and having a very short conversation with the plant supervisor. Evidence introduced at trial showed that M.N.C. submitted job descriptions to the Alabama employment service and that office referred the applicants who were the basis for the statistical study. As a result, the statistics were not invalidated because they lacked variables to assess experience and qualifications.
It is true that the statistical study offered did not encompass all of the 1980-1981 hiring at M.N.C. Plaintiff's expert witnesses admitted that the study only compared the hiring rates between white and black workers referred from the state employment service and that out of the forty-nine persons reported hired during the relevant period only nineteen were referred from the Alabama state employment
However, the Supreme Court recognized in McDonnell Douglas v. Green, 411 U.S. 792, 805, 93 S.Ct. 1817, 1825, 36 L.Ed.2d 668, 679 (1973), that statistics as to a defendant's employment policy and practice might be helpful to a determination of whether the refusal to rehire in a particular case conformed to a general pattern of discrimination against blacks. The Court also held that such general determinations, while helpful, may not control individualized hiring decisions, particularly in the presence of otherwise justifiable reasons for refusing to rehire. 411 U.S. at 805 n. 19, 93 S.Ct. at 1826 n. 19, 36 L.Ed.2d at 679 n. 19. Miles never claimed that the statistical evidence proved her case of disparate treatment, but only that it showed a pattern of favoring whites over blacks at M.N.C. The statistical evidence supports such a claim. The district court was clearly erroneous in finding that the statistical evidence was compared to the general area population and that it was not useful because it did not reflect worker qualifications. The statistical evidence in this case provided a background against which to assess Miles' individual claim.
III. Direct Evidence of Discrimination
Appellant's final offer of evidence to prove pretext consisted of direct evidence of discrimination. Miles introduced a racial slur about the work abilities of blacks, made by Olin Henderson. Confusion has arisen over whether the racial slur was or should have been stricken from the record. Perhaps the best way to clarify the confusion is to quote from the record sequentially the court's rulings on the admissibility of the evidence. Plaintiff called Betty Rogers a white who had gone to work for the employer in 1979 and remained until 1982. She testified that there were no qualifications for the job. She stated that when she applied for the job two or three black women were simultaneously being interviewed for an opening but none of them were hired. The following from pages 82 to 111 are excerpts from the testimony of Betty Rogers and rulings of the court:
(Objection and colloquy between the court and counsel).
(Objection and colloquy between the court and counsel).
At page 105, the defendant moved to strike the testimony of Betty Rogers with respect to the racial slur on a ground that the evidence had failed to show that Henderson was responsible for hiring in 1980. At page 109, the trial court made the following ruling:
Because of questions propounded to Nick Constan, president of M.N.C., the court reversed his rulings with respect to the admissibility of the racial slur. The following statements appear from the transcript:
Without any further mention of the subject during the trial, the trial court in its final order finding in favor of the defendant ruled that racial slur was not admissible. The following appears from page 285 of the record:
Appellant now complains that the trial court's conclusion that the racial slur was struck from the record is error because it was properly admissible under Fed.R.Evid. 801(d)(2)(D). The issue, therefore, is whether the slur was admissible and therefore properly admitted into evidence. Any determination of admissibility turns on the nature of the supervisory positions held by Olin Henderson throughout the time periods in question. Olin Henderson was assistant superintendent in charge of employees between 1978 and 1979. During this
The district court's post-trial decision to strike the statement was critical to the plaintiff's case. Normally, the defendant in an employment discrimination case would only have to articulate legitimate, nondiscriminatory reasons for its failure to rehire an employee. The plaintiff who always retains the burden of persuasion would then have to show that the employer's reasons were pretextual. The McDonnell Douglas method of proving an employment discrimination case, however, pertains to situations where direct evidence of discrimination is lacking. Bell v. Birmingham Linen Service, 715 F.2d 1552, 1556 (11th Cir.1983); Lee v. Russell County Bd. of Educ., 684 F.2d 769, 774 (11th Cir.1982). Where a case of discrimination is proved by direct evidence, the defendant bears a heavier burden.
Discrimination by M.N.C. in employment practices was proved by 1) Henderson's remark, 2) the statistical evidence, 3) the testimony of Betty Rogers that no blacks worked in production when she was employed in 1978 and Louise Lyles' testimony that she was the only black woman out of 20 production workers when employed in August 1979, and 4) Plaintiff's Exhibit 36 which showed that no blacks were employed in 1980. The district court found the plaintiff qualified. Consequently, we remand to give the defendant an opportunity to prove by a preponderance of evidence that the same employment decision would have been reached absent the presence of clearly discriminatory employment practices.
The judgment of the district court is reversed and remanded.
REVERSED AND REMANDED.
M.N.C. argues on appeal that size of the statistical pool makes it impossible to draw any reliable inference of discriminatory motivation. While it is true that Dr. Gundlach testified that the larger the statistical pool, the more accurate the conclusions, he also testified that the differences he found in the hiring rate were statistically significant for a sample of that size.
684 F.2d 769, 774 (footnotes omitted).