Kincade v. Firestone Tire & Rubber Co. (694 F. Supp. 368, 1987)

MEMORANDUM

JOHN T. NIXON, District Judge.

This is an action brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981. At the time the complaint in this matter was filed, the original named plaintiffs fell into the following categories. Plaintiffs Joseph Johnson, Bobby W. Ivy, Emily Henry, and Alice Gail Cook were unsuccessful black applicants for employment at defendant Firestone Tire and Rubber Company’s (“Firestone”) LaVergne, Tennessee, manufacturing plant. Plaintiffs James O’Dell Hunter and Mary Louise Pope (Fite) were current black employees at the plant. Plaintiffs Bobby Lee Kincade, Thelma M. McHenry and Sharon McHenry were former black employees at the plant. In addition, in an Order entered May 17,1986, this Court, through the Honorable L. Clure Morton, Chief District Judge, certified the plaintiffs as representatives of a class comprised of the following three subclasses:

(1) black employees at the defendant’s LaVergne plant who allegedly were discriminated against because of race in promotion and working conditions;

(2) black applicants of defendant LaVergne plant who allegedly were denied employment because of race; and

(3) black persons who allegedly were discharged because of race by defendant at its LaVergne plant.

Also named as a plaintiff was the Nashville Branch of the National Association for the Advancement of Colored People (“NAACP”).

The nonjury trial of this case was held intermittently beginning on June 23, 1980 and ending on February 28, 1983. This Memorandum constitutes the Court’s findings of fact and conclusions of law.

The Court first considers plaintiffs’ claims of class-wide racial discrimination. It then considers individual claims of discrimination by the individual named plaintiffs in this action.

I. CLASS CLAIMS

The Court now considers plaintiffs’ claims of class discrimination. In support of these claims, plaintiffs rely upon testimony of members of the class and a statistical analysis of the relationship between race and Firestone’s employment practices. The Court examines Firestone’s employment practices in three separate categories: (1) recruitment, hiring and initial assignments; (2) promotions; and (3) disciplinary actions and discharge practices. For each category, the Court begins by making findings of fact, including a review of the statistical evidence presented by both parties. It then makes conclusions of law with respect to class claims pertaining to each category. Thus, the Court’s discussion of plaintiffs’ class claims proceeds as follows:

A. Applicable Law

1. Disparate Treatment

2. Disparate Impact

B. Use of Statistical Evidence

C. Recruitment, Hiring, and Initial Assignments

1. Findings of Fact

a. Non-statistical Findings

b. Statistical Proof

2. Conclusions of Law

a. Disparate Treatment

b. Disparate Impact

D. Promotions

1. Findings of Fact

a. Non-statistical Findings

b. Statistical Proof

2. Conclusions of Law

a. Disparate Treatment

b. Disparate Impact

E. Disciplinary Actions and Termination Practices

1. Findings of Fact

a. Non-statistical Findings

b. Statistical Proof

2. Conclusions of Law

a. Disparate Treatment

b. Disparate Impact

F. Summary of Conclusions of Law as to Class Claims

A. Applicable Law

Plaintiffs allege discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981. The objectives of Title VII are clearly delineated in 42 U.S.C. § 2000e-2(a)(l) and (2), which make it unlawful:

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.

Two judicial theories have been articulated by the Supreme Court to effectuate these objectives. In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the Court enunciated the disparate treatment theory, and in Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), the Court articulated the disparate impact theory. Either theory may be applied to a particular set of facts. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 325, 335 n. 15, 97 S.Ct. 1843, 1849, 1854 n. 15, 52 L.Ed.2d 396 (1977).

“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____

Claims of disparate treatment may be distinguished from claims that stress “disparate impact.” The latter involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity. Proof of discriminatory motive ... is not required under a disparate impact theory.

Id. Thus, these theories merely present alternative foundations upon which a court may base liability.

Title 42 U.S.C. § 1981 provides:

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

This statute reaches only conduct motivated by a discriminatory purpose, and does not apply to practices that merely have a disparate impact on a particular class. General Building Contractors Association v. Pennsylvania, 458 U.S. 375, 388-91, 102 S.Ct. 3141, 3148-3150, 73 L.Ed.2d 835 (1982). The standards for evaluating a plaintiff’s claim of purposeful discrimination under 42 U.S.C. § 1981 are the same as those applied to a claim of disparate treatment under Title VII. Long v. Ford Motor Company, 496 F.2d 500, 505 (6th Cir.1974).

The Court now examines the disparate treatment and disparate impact theories as they apply to class actions,

1. DISPARATE TREATMENT

To prove class-wide disparate treatment, plaintiffs must show a “systemwide pattern or practice” of intentional discrimination. International Brotherhood of Teamsters, 431 U.S. at 336, 97 S.Ct. at 1854-1855. They must show “more than the mere occurrence of isolated or ‘accidental’ or sporadic discriminatory acts. [They must] establish by a preponderance of the evidence that racial discrimination was the company’s standard operating procedure— the regular rather than the unusual practice.” Id. (footnote omitted).

The means by which plaintiffs in a class action claiming disparate treatment can meet their burden of proof was articulated by the Supreme Court in Franks v. Bowman Transportation Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976). In Franks plaintiffs made out a prima facie case by introducing proof of a discriminatory pattern and practice sufficient to create a rebuttable presumption that defendant’s decisions were the result of such a pattern or practice. Id. at 773, 96 S.Ct. at 1268. The nature of this presumption was discussed by the Teamsters Court as follows:

The holding in Franks that proof of a discriminatory pattern and practice creates a rebuttable presumption in favor of individual relief is consistent with the manner in which presumptions are created generally. Presumptions shifting the burden of proof are often created to reflect judicial evaluations of probabilities and to conform with a party’s superi- or access to the proof. See C. McCormick, Law of Evidence §§ 337, 343 (2d ed. 1972); James, Burdens of Proof, 47 Va.L.Rev. 51, 61 (1961). See also Keyes v. School Dist. No. 1, 413 U.S. 189, 208-209, 93 S.Ct. 2686, 2697, 37 L.Ed.2d 548. These factors were present in Franks. Although the prima facie case did not conclusively demonstrate that all of the employer’s decisions were part of the proved discriminatory pattern and practice, it did create a greater likelihood that any single decision was a component of the overall pattern. Moreover, the finding of a pattern or practice changed the position of the employer to that of a proved wrongdoer. Finally, the employer was in the best position to show why any individual employee was denied an employment opportunity. Insofar as the reasons related to available vacancies or the employer’s evaluation of the applicant’s qualifications, the company’s records were the most relevant items of proof. If the refusal to hire was based on other factors, the employer and its agents knew best what those factors were and the extent to which they influenced the decision-making process.

431 U.S. at 359 n. 45, 97 S.Ct. at 1866-1867 n. 45. The Court further stated that plaintiffs are “not required to offer evidence that each person for whom [they] ultimately seek relief was a victim of the employer’s discriminatory policy. Its burden is to establish a prima facie case that such a policy existed.” Id. at 360, 97 S.Ct. at 1867. If plaintiffs satisfy this burden, defendant must show

that the [plaintiffs’] proof is either inaccurate or insignificant. An employer might show, for example, that the claimed discriminatory pattern is a product of pre-Act hiring rather than unlawful post-Act discrimination, or that during the period it is alleged to have pursued a discriminatory policy it made too few employment decisions to justify the inference that it had engaged in a regular practice of discrimination.

If an employer fails to rebut the inference that arises from the [plaintiffs’] prima facie case, a trial court may then conclude that a violation has occurred and determine the appropriate remedy.

Id. at 360-61, 97 S.Ct. at 1867-68.

2. DISPARATE IMPACT

The disparate impact theory, which originated in Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), focuses on a facially neutral employment practice that falls more harshly on or adversely impacts a protected group, such as blacks, than others and that is not justified by business necessity. See Albermarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975). The Griggs Court stated: “[Title VII] proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited.” Id. 401 U.S. at 431, 91 S.Ct. at 853. It further stated: “Under [Title VII], practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to ‘freeze’ the status quo of prior discriminatory employment practices.” Id. at 430, 91 S.Ct. at 853. Thus, unlike the disparate treatment theory in which proof of discriminatory purpose is critical, plaintiffs proceeding under the disparate impact theory need not show intentional discrimination in order to succeed. “[G]ood intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as ‘built-in headwinds’ for minority groups and are unrelated to measuring job capability.” Id. at 432, 91 S.Ct. at 854.

The order and allocation of the burden of proof in a disparate impact case is threefold. First, plaintiffs “must show that the facially neutral employment practice had a significant discriminatory impact” on a protected group of which plaintiffs are members. Connecticut v. Teal, 457 U.S. 440, 446, 102 S.Ct. 2525, 2530, 73 L.Ed.2d 130 (1982). They must identify a specific practice that results in a discriminatory impact on a class.

The discriminatory impact model of proof, in an employment discrimination case is not, however, the appropriate vehicle from which to launch a wide ranging attack on the cumulative effect of a company’s employment practices. Nor may just any employment practice be challenged under this model simply because an uneven racial balance exists in an employer’s work force. As originally conceived in Griggs v. Duke Power Co., an action in which a group of black employees challenged their employer’s requirement of a high school diploma and a satisfactory score on two aptitude tests for positions in several departments of a power generating facility, the disparate impact theory applied to an “overt, clearly identified nondiscretionary selection criterion] that [was] applied at a single point in a selection process.” D. Baldus & J. Cole, Statistical Proof of Discrimination § 1.23, at 12 (1981 Supp.).

Pouncy v. Prudential Insurance Co., 668 F.2d 795, 800 (5th Cir.1982) (emphasis added).

Second, if plaintiffs make out a prima facie case of discrimination, the burden shifts to the defendant to justify its challenged employment practice by showing business necessity or job relatedness. As stated by the Griggs Court, defendant must demonstrate that “any given requirement [has] a manifest relationship to the employment in question." 401 U.S. at 432, 91 S.Ct. at 854. The Sixth Circuit has stated:

The test is whether there exists an overriding legitimate business purpose such that the practice is necessary to the safe and efficient operation of the business. Thus, the business purpose must be sufficiently compelling to override any racial impact; the challenged practice must effectively carry out the business purpose it is alleged to serve.

Head v. Timken Roller Bearing Co., 486 F.2d 870, 879 (6th Cir.1973) (quoting Robinson v. Lorillard Co., 444 F.2d 791, 798 (4th Cir.), cert. denied, 404 U.S. 1006, 92 S.Ct. 573, 30 L.Ed.2d 655 (1971)).

Third, if defendant shows the requisite business purpose, the burden shifts to plaintiffs to show that there are alternative employment practices “without similar discriminatory effect which would also serve the employer’s legitimate interest in efficient and trustworthy workmanship.” Chrisner v. Complete Auto Transit, Inc., 645 F.2d 1251, 1257 (6th Cir. 1981). “Such proof is evidence that the employment practice is being used merely as a pretext for discrimination.” Rowe v. Cleveland Pneumatic Co., 690 F.2d 88, 94 (6th Cir. 1982). See Albermarle Paper Co., 422 U.S. at 425, 95 S.Ct. at 2375; Connecticut v. Teal, 457 U.S. at 447, 102 S.Ct. at 2530-31.

B. Use of Statistical Evidence

Class-wide discrimination can be found based on a significant number of individual acts of discrimination. Metrocare v. Washington Metropolitan Area Transit Authority, 679 F.2d 922, 929-30 (D.C.Cir. 1982).

Sufficient individual instances of discrimination could show a pattern of discrimination. But if individual cases of discrimination are to show discrimination against the class as a whole, the number of instances must be significant when compared to the number of persons in the class. The court must focus on the ratio of the number of instances proved to the size of the class. The higher that ratio, the more likely discrimination has occurred against the class as a whole.

Id. In most such cases, however, “[statistical analyses have served and will continue to serve an important role” in establishing racial discrimination. Mayor of Philadel phia v. Educational Equality League, 415 U.S. 605, 620, 94 S.Ct. 1323, 1333, 39 L.Ed. 2d 630 (1974). Indeed, “[i]n many cases the only available avenue of proof is the use of racial statistics to uncover clandestine and covert discrimination____” United States v. Ironworkers Local 86, 443 F.2d 544, 551 (1971). The Supreme Court, however, has cautioned “that statistics are not irrefutable; they come in infinite variety and, like any other kind of evidence, they may be rebutted. In short, their usefulness depends on all of the surrounding facts and circumstances.” Teamsters, 431 U.S. at 340, 97 S.Ct. at 1856-57. The Court further defined the proper use of statistical evidence as follows:

Statistics showing racial or ethnic imbalance are probative in a case such as this one only because such imbalance is often a telltale sign of purposeful discrimination; absent explanation, it is ordinarily to be expected that nondiscriminatory hiring practices will in time result in a work force more or less representative of the racial and ethnic composition of the population in the community from which employees are hired. Evidence of longlasting and gross disparity between the composition of a work force and that of the general population thus may be significant even though § 703(j) makes clear that Title VII imposes no requirement that a work force mirror the general population. See, e.g., United States v. Sheet Metal Workers Local 36, 416 F.2d 123, 127 n. 7 (CA8). Considerations such as small sample size may, of course, detract from the value of such evidence, see, e.g., Mayor of Philadelphia v. Educational Equality League, 415 U.S. 605, 620-621, 94 S.Ct. 1323, 1333, 39 L.Ed. 630, and evidence showing that the figures for the general population might not accurately reflect the pool of qualified job applicants would also be relevant. Ibid.

Teamsters, 431 U.S. at 339 n. 20, 97 S.Ct. at 1856-57 n. 20.

Of course, statistical evidence, like any other evidence, is subject to rebuttal. In Dothard v. Rawlinson, 433 U.S. 321, 338-39, 97 S.Ct. 2720, 1855-56, 53 L.Ed.2d 786

(1983), Justice Rehnquist, concurring, acknowledged that a defendant in a discrimination case “may endeavor to impeach the reliability of the statistical evidence, [it] may offer rebutting evidence, or [it] may disparage in arguments or in briefs the probative weight which the plaintiff[s’] evidence should be accorded.” A similar observation was made by the Fourth Circuit in Roman v. ESB, Inc., 550 F.2d 1343, 1350 (4th Cir.1976):

We do not believe that isolated bits of statistical information necessarily make a prima facie case when divorced from other and contrary statistics and from the statistical picture of all the employment at the plant. We also think the absence of other evidence of discrimination should be considered in determining whether a prima facie case is made, just as the presence of other evidence of discrimination should be considered in arriving at the same conclusion.

In reviewing statistical evidence, its evidentiary value “depends on the magnitude of the disparity it reflects, the relevance of its supporting data, and other circumstances in the case supportive of or in rebuttal of a hypothesis of discrimination.” EEOC v. Federal Reserve Bank of Richmond, 698 F.2d 633, 646-47 (4th Cir.1983). Although there “are no hard and fast rules as to how much of a disparity is ‘enough’ to establish a prima facie case or withstand various defenses,” S. Agid, Fair Employment Litigation: Proving and Defending a Title VII Case 540, 541 (2d ed. 1979), the United States Supreme Court has stated that “a fluctuation of more than two or three standard deviations would undercut the hypothesis that decisions were being made randomly with respect to race.” Hazlewood School District v. United States, 433 U.S. 299, 312 n. 17, 97 S.Ct. 2736, 2743-44 n. 17, 53 L.Ed.2d 768 (1977). See Castaneda v. Partida, 430 U.S. 482, 497 n. 17, 97 S.Ct. 1272, 1281-82 n. 17, 51 L.Ed.2d 498 (1977).

[I]f the difference between an expected and an observed [result] exceeds two or three standard deviations it would not be a valid hypothesis to say that the observed was drawn in an unbiased manner from the population from which the expected was computed____ Inversely one could say that when the observed results are within two or three standard deviations of the expected, there would be no reason, absent other factors, to doubt the proposition that the observed was the result of an unbiased selection from the known population.

Garrett v. R.J. Reynolds Industries, Inc., 81 F.R.D. 25, 33 (M.D.N.C 1978). See EEOC v. Federal Reserve Bank of Richmond, 698 F.2d at 647-48; Gay v. Waiters’ and Dairy Lunchmen’s Union, 694 F.2d 531, 551 (9th Cir.1982).

Both plaintiffs and defendant introduced statistical evidence. Mr. Joshua Tankel testified concerning statistical exhibits he prepared for plaintiffs. Plaintiffs did not offer Mr. Tankel as a expert witness because he lacked the requisite qualifications to allow him to so testify. (Tankel Tr. at 817-20). Mr. Tankel prepared “snapshots” of Firestone’s work force for selected dates between 1972 and 1975 based on three sources of data received from Firestone: (1) employee profiles for non-exempt production employees active as of May 12, 1975; (2) a list of staff employees employed by Firestone on September 12, 1975, along with their employment history; and (3) a racially annotated seniority list. (Tankel Tr. at 785-87). The exhibits prepared by Mr. Tankel took the form of computer printouts arranging the above data into various categories. These exhibits presented only raw numbers and percentages. To the extent that Mr. Tankel did identify disparities between the treatment of blacks and whites, he offered no measure of the statistical significance of these disparities. In reviewing plaintiffs’ statistical data, the court has not attempted to fill in any gaps in their proof.

It is not for the court, trial or appellate, to search the voluminous record for data omitted from plaintiffs’ comparative analyses, compensate for the failure to filter out the combined effects of factors unrelated to race or sex, choose the appropriate statistical methodology, and insert therein select parts of the array of figures presented.

Pegues v. Mississippi State Employment Service, 699 F.2d 760, 768 (5th Cir.1983). At the same time, the Court does not reject Tankel’s testimony altogether, but reviews his findings as they become germaine in the discussion that follows.

Dr. David Peterson testified as an expert on behalf of Firestone. He was eminently qualified as an expert on statistics. In preparation for his testimony, Dr. Peterson reviewed data concerning Firestone’s employment practices and analyzed such data with respect to recruiting, hiring, promotions and terminations.

C. Recruitment, Hiring and Initial Assignments

1. FINDINGS OF FACT

a. Non-Statistical Findings

In late 1971, Firestone began construction of a large trtick tire manufacturing facility in LaVergne, Tennessee. During the startup phase of the plant, approximately 25-30 Firestone employees from other plant locations were transferred to the LaVergne plant to set up equipment and train new employees. Most of these transferred employees occupied the initial managerial and technical positions in the plant. All of the transferred employees were white males who were selected from other Firestone locations by the new plant manager, James Bowles, through an interviewing process.

Soon after the announcement of the construction of the plant, Firestone began receiving applications from persons in the middle Tennessee area. Prior to the commencement of operations in the fall of 1972, over three thousand applications were received primarily from persons in Davidson, Wilson, Williamson and Rutherford Counties, and from other persons residing throughout middle Tennessee.

In order to screen the large number of applicants and to reduce the number of persons coming to the plant itself, Firestone entered into an arrangement with the Tennessee Department of Employment Security (DES) whereby all applicants for employment at the plant were referred to the Murfreesboro office of the DES to fill out an application and undergo initial testing and screening. The Murfreesboro office was designated by the DES since the plant was located in Rutherford County. Beginning in 1973, applications also were placed on file at, and applicants were referred by, the DES office in Nashville.

Applicants were administered standardized tests prepared by the DES to determine manual dexterity and other skills.

For each position ultimately filled at the plant, approximatley seven or eight persons were interviewed. Candidates were selected by the DES from the pool of applicants for referrals to Firestone for interviews for specific job openings. At the time of the interview, applicants were administered a Business Sentence Completion Questionnaire that required applicants to answer a lengthy series of open-ended sentenees. Applicants were not graded on their responses, but the questionnaire was reviewed by the panel interviewing an applicant and often were discussed in the interview itself. At the request of the NAACP, the use of the questionnaire was discontinued in early 1974.

Interviews of potential applicants were conducted by a panel comprised of three or more Firestone employees. One representative of each panel was a member of the personnel department who was utilized to insure uniformity in the interviewing process and compliance with employment laws. The other members of the panel were representatives of the various operating departments in the plant for whom applicants were being sought. Initially, all of the interviews were attended by T.S. Bragg, the first personnel manager of the plant. Subsequent interviews were conducted by other personnel representatives, including Dennis Brown, Steve Quarles, and Sal Con-stanza. Mary Bryant, a black female who was initially employed as a secretary in the personnel department, was promoted to the position of “interviewer” on May 1, 1974, and thereafter conducted substantially all of the interviews.

At the conclusion of each interview, members of the panel completed a ballot (Ex. P-105) on which the applicant was rated according to his or her perceived ability to successfully perform the job safely and efficiently based on prior experience and responses given in the interview session. Beginning in 1972, approximately seven employees were hired each week, and by the end of 1973, a total of 488 persons were employed. The plant continued to grow so that at the time of the trial there were approximately 800 production employees and 400 staff, clerical, and management employees.

All employees of the LaVergne plant were paid on a salaried basis and all received the same fringe benefits from the lowest production employee through the plant manager. All production employees were hired at the same starting rate.

At trial, testimony pertaining to alleged discrimination in defendant’s recruiting and hiring practices, and in its initial assignments, was given by many witnesses. In particular, six of the named plaintiffs— James Hunter, Thelma McHenry, Bobby Ivy, Alice Gail Cook, and Joseph Johnson— and five other members of the class — Frances Wilfong Cox, George McLaurine, Willie Mae Caldwell McLaurine, William Douglas Henry, and Issac Allen — claimed that they were victims of discrimination in these areas. With respect to the six named plaintiffs, the Court does not pause to restate the findings of fact it enunciates later in this Memorandum. The Court now makes findings of fact with respect to the five other members of the class.

Frances Wilfong Cox’s first contact with Firestone occurred in November of 1973 when she received a letter from Mr. Bragg advising her that he had been given her name by Mr. Kincade as a person who might be interested in employment with the company. (Ex. P-47). Cox submitted an application in which she did not apply for any particular position, and shortly thereafter she discussed the possibility of a public relations or personnel position with Mr. Bragg. She had no further contact with defendant regarding her employment. Defendant offered no testimony concerning Cox’s application.

George McLaurine applied for employment as a production supervisor in May of 1973. He was interviewed in September and offered a position in “office services” that involved the distribution of mail, relief of the switch board operator, some bookkeeping or accounting work, and the ordering of supplies. (McLaurine Tr. at 202-205). He declined this position because he would have earned no more than he was currently making and because he saw no future in the job. (McLaurine Tr. at 202). In 1974, McLaurine was interviewed a second time for a position as a timekeeper, but he did not receive an offer for that position.

Willie Mae Caldwell McLaurine applied for a position in the laboratory at Firestone in April of 1973, but was not interviewed. (Ex. P-46). She had a degree in clothing and textiles from Tennessee State University, but had no prior experience in a laboratory. No evidence was presented by either side as to other persons who applied for a position in the laboratory or who were hired for this position.

William Douglas Henry applied for employment at Firestone twice in 1972. He was interviewed by Dennis Brown. During the course of the interview, Mr. Bragg came into the room and stated to Brown that Henry would not be hired because he was overweight. (Henry Tr. at 244). At the time, Henry weighed approximately 260 lbs. and was 511" tall.

Issac Allen testified that he applied for employment with defendant Firestone in November of 1974 or 1975 and that one to two weeks after filing his application he was interviewed. Allen testified that he never received any word from the defendant regarding his employment. The defendant introduced a letter dated April 3, 1974, advising Allen that he would not be hired. (Ex. D-406). Allen stated that he did not receive the letter.

b. Statistical Proof

(i) Plaintiffs’ Statistical Proof

Mr. Tankel identified no disparities and presented no statistical proof related to Firestone’s recruiting practices. He did provide statistical proof related to its hiring practices and initial assignments. His testimony and the exhibits he submitted in this regard, however, provide the Court with only raw data and evidence of isolated disparities.

Tankel attempted to show a disproportionate concentration of blacks in certain departments that other witnesses claimed were undesirable. Toward that end, he identified isolated disparities between the actual and expected number of blacks in particular departments. He failed, however, to show a consistent pattern or practice of discrimination through these isolated disparities and he made no attempt to measure the statistical significance of the degree to which blacks were underrepresented in any particular department in proportions greater than one would expect.

The Court finds that plaintiffs statistical evidence relating to defendant’s hiring practices and initial assignments is severely deficient and incomplete. It plainly cannot support a finding of class-wide discrimination and, therefore, the Court does not make specific factual findings with respect to it.

(ii) Defendant’s Statistical Proof

Before analyzing the specific data concerning Firestone’s employment practices, Dr. Peterson explained three basic principles that affect the representation of blacks in the local labor market: (1) the distance principle — given the opportunity, people prefer to travel shorter distances to work than longer distances, all other things being equal; (2) the density principle— more persons will be drawn to an area from a more populous area than from a less populous area, all other things being equal; and (3) the representation principle —persons drawn from a particular 'geographic area will generally be representative by race of the people residing in that area. (Peterson Tr. at 2-11).

In measuring the availability of blacks in Firestone’s relevant labor market, Dr. Peterson utilized the residence patterns of applicants and employees to take into account the competing effects of distance, density and representation. (Peterson Tr. at 1, 25). Dr. Peterson weighted the contribution of each county to the plant’s labor market by the number of persons from that county who applied to work at Firestone. This calculation was done for each of the seven EEO-1 categories in which Firestone has employees. The availability of blacks for each category, as shown by Exs. D-296 and 293, was as follows:

EEO-1 Blacks as %

Category of Labor Force

Officials and Managers........2.8%

Professionals..................4.9%

Technicians....................3.5%

Office and Clerical............8.7%

EEO-1 Blacks as %

Category of Labor Force

Craft Workers.................7.8%

Operatives...................17.2%

Service Workers..............10.8%

In analyzing Firestone’s recruiting practices, Dr. Peterson compared the number of actual black applicants to the number of blacks that one would expect to apply based on their availability in Firestone’s relevant labor market. (Peterson Tr. at 6, 59). To determine the significance of any disparity, Dr. Peterson measured the number of standard deviations by which the actual number of black applicants differed from the expected number of black applicants. For each of the EEO-1 job categories for which Firestone recruits, Dr. Peterson compared the percentage of actual applicants who were black to the availability of blacks for that particular job category for the period from September 1973 to June 1978. Separate comparisons were performed for the period September 1973 to March 1974, and for each of the succeeding calendar years. (Ex. D-272, 273, 275, 276, 278, 279, 291, 282, 284, 285, 287, 288). For the comparisons that follow, a minus standard deviation indicates that the number of blacks is below what one would expect, and a positive standard deviation indicates that blacks are represented in numbers greater than one would expect.

For the officials and managers job category, blacks were overrepresented in three of the six time periods to the extent of + 4.7, +4.1 and +5.2 standard deviations. In the other three periods, blacks were underrepresented to the extent of —0.3, —0.2 and —0.2 standard deviations. (Ex. D-272). For the professionals job category, blacks were overrepresented in four of the six time periods to the extent of +1.9, + 2.6, +0.5 and +3.0 standard deviations. In the two remaining periods, blacks were underrepresented to the extent of —0.7 and —0.2 standard deviations. (Ex. D-275). For the technicians job category, blacks were overrepresented in five of the six time periods to the extent of +1.0, +7.2, +5.3, + 2.7 and +2.4 standard deviations. In the single remaining time period blacks were underrepresented to the extent of —0.4 standard deviations. (Ex. D-278). For the office and clerical workers category, blacks were overrepresented in five of the six time periods to the extent of +0.8, +3.3, +1.6, +7.0 and +4.4 standard deviations. In the remaining time period, blacks were underrepresented to the extent of —0.8 standard deviations. (Ex. D-281). For the operatives job category, blacks were overrepresented in all five of the time periods for which there were applicants to the extent of +3.1, +3.8, +2.6, +9.2 and +6.1 standard deviations. (Ex. D-284). For the service workers job category, blacks were overrepresented in all four of the time periods for which there were applicants to the extent of +2.2, +0.4, +1.8 and +0.7 standard deviations. (Ex. D-287).

In analyzing Firestone’s hiring practices and initial assignments, Dr. Peterson performed two sets of comparisons: (1) a comparison of the number of blacks one would expect to be hired based on their availability against the number of blacks that were actually hired for each of the six EEO-1 categories into which Firestone hires; and (2) a comparison of the number of blacks hired into each job category against the number of blacks who actually applied. Comparisons were made for the same time periods used to analyze the recruitment data. The data included all those who were hired during the relevant time period, not merely those who were hired and remained employed by Firestone at some later date. (Peterson Tr. at 74-75).

For the officials and managers job category, the percentage of black hires differed from the percentage one would expect based on their availability to the extent of —0.2, —0.2, —0.2, —0.2 and —0.2 standard deviations respectively for each of the five time periods for which Firestone hired into that job category. The percentage of black hires differed from the percentage one would expect based on their actual applicant flow to the extent of —1.1, —0.6 and —0.8 standard deviations respectively for each of the three relevant time periods for which Firestone received applications for that job category. (Ex. D-274).

For the professionals job category, the percentage of black hires differed from the percentage one would expect based on their availability to the extent of +1.7, +2.8, —0.3, —0.5, +4.7 and —0.2 standard deviations respectively for each of the relevant time periods. The percentage of black hires differed from the percentage one would expect based on the number of black applicants to the extent of +0.6, +1.1, —0.8 and +1.6 standard deviations respectively for each of the relevant time periods for which Firestone received applications for that job category. (Ex, D-277).

For the technicians job category, the percentage of black hires differed from the percentage one would expect based on their availability to the extent of —0.4, +5.5, + 1.8, —0.2, —0.3 and +5.3 standard deviations respectively for each of the relevant time periods. The percentage of black hires differed from the percentage one would expect based on the number of black applicants to the extent of —0.7, +0.7, —0.5, —0.4 and +1.7 standard deviations respectively for each of the relevant time periods for which Firestone received applications for that job category. (Ex. D-280).

For the office and clerical workers job category, the percentage of black hires differed from the percentage one would expect based on their availability to the extent of —0.7, +2.2, +1.6, +3.3, —0.7 and —0.4 standard deviations respectively for each of the relevant time periods. The percentage of black hires differed from the percentage one would expect based on the number of black applicants to the extent of — 1.0, +0.5, +0.8, —0.1 and —1.6 standard deviations respectively for each of the relevant time periods for which Firestone received applications for that job category. (Ex. D-283).

For the operatives job category, the percentage of black hires differed from the percentage one would expect based on their availability to the extent of +3.1, +1.4, +0.8, +3.0, +3.0 and +1.3 standard deviations respectively for the relevant time periods for which Firestone hired into that job category. The percentage of black hires differed from the percentage one would expect based on the number of black applicants to the extent of +1.3, —0,9, —0,5, —1.7 and —2.4 standard deviations respectively for each of the relevant time periods for which Firestone received applications for that job category. (Ex. D-286).

For the service workers job category, the percentage of black hires differed from the percentage one would expect based on their availability to the extent of +2.9, +0.9, + 1.3 and —0.3 standard deviations respectively for each of the relevant time periods for which Firestone hired into that job category. The percentage of black hires differed from the percentage one would expect based on the number of black applicants to the extent of +1.4, +0.7, +0.0 and —0.5 standard deviations respectively for each of the relevant time periods for which Firestone received applications for that job. (Ex. D-289).

Ex. D-292 summarizes the hiring versus availability data for the period 1974 through June 1978. This exhibit demonstrates that the number of blacks hired into each job category, with the exception of the officials and managers job category, is significantly greater than what one would expect based on their availability. In the officials and managers job category, the percentage of black hires differed from the percentage one would expect based on their availability to the extent of only —.42 standard deviations. (Peterson Tr. at 84-86). For the same period of June 1974 through June 1978, a comparison of black hires against their availability, broken down by detailed occupational job categories, reveals that in virtually every category in which there has been any significant amount of hiring, the percentage of black hires substantially exceeds the percentage one would expect based on their availability. (Ex. D-297).

2. CONCLUSIONS OF LAW

a. Disparate Treatment

Plaintiffs’ proof consisted primarily of testimony by members of the class and statistical proof submitted by Mr. Tankel. With respect to testimony by members of the class, the Court notes that only one named plaintiff is later found to have been the victim of individual intentional discrimination in defendant’s hiring practices, and no plaintiff is found to have been the victim of such discrimination in defendant’s recruiting practices or initial assignments. The Court does not make specific conclusions of law as to other members of the class who testified, but it finds that their testimony is insufficient to establish by a preponderance of the evidence that racial discrimination was the defendant’s “standard operating procedure” in any of these areas. With respect to statistical proof submitted by the parties, plaintiffs’ statistical evidence plainly does not create a rebuttable presumption that defendant’s actions were discriminatory. On the other hand, defendant’s statistical proof shows that any racial variance between expected and observed results in the areas of recruiting, hiring, and initial assignments was within three standard deviations. To establish a prima facie case of class-wide disparate treatment based on statistical proof, the variance must exceed two to three standard deviations.

With respect to Firestone’s recruitment practices, the proof at trial indicated that the construction of the LaVergne plant was widely publicized throughout middle Tennessee. As a result, over 3,000 applications were received by Firestone shortly before construction of the plant was completed. Statistical proof submitted by defendant demonstrated that the number of black applicants consistantly exceeded the number that one would expect based on their availability. There was no evidence that any of defendant’s recruitment practices were used as an intentional device to discriminate against blacks.

With respect to defendant’s hiring practices, the proof showed that defendant initially directed all applicants, regardless of race, except for employees transferred from other plants, to the Murfreesboro office of the Tennessee Department of Employment Security (DES). Some blacks found this requirement onerous, but plaintiffs failed to show that this requirement was used as an intentional device to exclude or discriminate against blacks. Indeed, statistical data presented by Firestone showed that blacks applied in numbers at least as great as could reasonably have been expected given their availability. Beginning in 1973, applications also were received by the DES office in Nashville. Applicants were administered standardized tests prepared by the DES. There was no evidence that these tests were used as an intentional device to discriminate against blacks.

Applicants referred to Firestone by the DES for interviews were required to complete a business sentence questionnaire. Although plaintiffs objected to the fashion in which the questionnaire was framed, there was no evidence that it was used as an intentional device to discriminate against blacks in hiring. In addition, applicants were interviewed by a panel comprised of three or more Firestone employees. Likewise, this practice cannot be characterized as a means of discriminating based on race. Statistical proof submitted by defendant showed that blacks were hired in numbers commensurate with what one would expect based on their availability.

With respect to initial assignments, the proof indicated that some departments were less desirable than others. Plaintiffs did not show by a preponderance of the evidence, however, that blacks were assigned disproportionately to the undesirable departments. The proof further showed that work in less desirable departments ordinarily was compensated at higher rates. In addition, statistical proof submitted by Firestone pertaining to initial assignments indicates that blacks were assigned to different categories identified by the EEOC in numbers commensurate with their availability.

In sum, the Court finds that the testimony at trial and statistical evidence submitted, viewed separately and together, demonstrate that defendant did not maintain a systemwide pattern or practice of intentional discrimination in its recruiting, hiring, and initial assignments. The Court hereby ENTERS JUDGMENT for defendant as to plaintiffs’ disparate treatment claims in these areas.

b. Disparate Impact

To establish a prima facie case of discrimination under the disparate impact theory, plaintiffs must prove that (1) Firestone utilized an objective, facially neutral recruiting, hiring, or initial assignment practice that (2) had a disproportionate impact upon blacks. Only four components of Firestone’s recruiting, hiring, and initial assignment practices qualify as objective, facially neutral practices: (1) requiring applications to be filed through the Murfreesboro office of the DES; (2) administration to applicants of standardized tests prepared by the DES; (3) use of a business sentence questionnaire; and (4) use of the panel interviewing system. Plaintiffs failed to show, however, that any of these had a disparate impact on blacks. Indeed, as noted earlier, the statistical evidence submitted by defendant indicates that the recruitment, hiring, and initial assignment of blacks was within two to three standard deviations of what one would normally expect. As a result, the Court must ENTER JUDGMENT for defendant as to plaintiffs’ claims of disparate impact in these areas.

D. Promotions

1. FINDINGS OF FACT

a. Non-Statistical Findings

All production employees at Firestone were initially employed as a production operator or production specialist. As employees acquired additional skills they progressed to the position of senior production operator. The highest production classification was production leader, a highly skilled level that was held by only a few production employees.

Although the employees were not covered by the terms of a collective bargaining agreement, in the latter part of 1973, a formal seniority and transfer system was adopted and made applicable to all production employees. (Ex. D-6). This system, as subsequently amended from time to time (Ex. D-7), controlled all transfers within the plant by production employees. The system permitted employees to express an interest in a transfer to a particular department through a transfer request filed with the personnel department. When openings became available in that department, the system required an employee to accept a transfer once notified that his bid had been successful. Voluntary transfer requests were limited only to a specific department so that the employee was required to accept any vacant position that became available regardless of classification, work activity, crew, or shift. Employees were restricted to one voluntary transfer within a twelve month period. The system also restricted the number of transfers from a given department to no more than two employees per month.

After the initial plant startup, most supervisors, and virtually all promotions to supervisory positions, were selected from existing employees at the LaVergne plant. In order to be eligible for promotion to a supervisory position, production employees had to successfully complete a pre-supervisory training program that was initially open to all employees on a self-nominating first-come, first-serve basis. Beginning in January of 1976, the program was revised so that employees participating in the presupervisory training program were selected through an interviewing process although all employees were eligible to apply for that training. (D-310, 311, 312, 313). All employees who had completed the earlier pre-supervisory training program were given the opportunity to participate in the new program. All employees were advised in 1976 that no supervisory promotions would be offered to employees thereafter who had not completed the new program. (D-314).

All production employees were hired at the same starting rate. Subsequent increases were granted as employees became qualified in their job skills and thereafter by periodic reviews based on merit. The timing and amount of such increases were determined by performance reviews in a variety of areas, e.g., productivity, safety, and attendance.

At trial, testimony pertaining to alleged discrimination in Firestone’s promotions was given by four of the named plaintiffs — Bobby Lee Kincaid, James Hunter, Mary Fite, and Thelma McHenry — and four other members of the class — James Kinser, Gerry Babb, John Moore, and James Smith. With respect to the four named plaintiffs, the Court does not pause to restate the findings of fact it enunicates later in this Memorandum. The court now makes findings of fact with respect to the four other class members who testified.

James Kinser was hired by Firestone in August of 1973 as a production operator in the warehouse. He was promoted to the position of senior production operator after working for nine months. Thereafter, he also served as a provisional or back-up supervisor. He expressed an interest in being promoted to a full time supervisory position and toward that end he attended numerous supervisory training classes offered by defendant. He also completed a training program offered by Nashville Technical Institute. In January of 1976, defendant established a full pre-supervisory training program. All employees, including Mr. Kinser, were told that completion of the course was required of all persons who desired promotion to a supervisory position. Kinser did not take this training program.

In March of 1977, Kinser transferred to the quality assurance department, where he was employed at the time he first testified on July 2, 1980. Mr. Kinser again testified on July 30, 1981. He reported that he had been offered a position as supervisor in the quality assurance department, but had turned it down because it was on the graveyard shift (12:00 a.m.— 8:00 a.m.) and another white employee was given preference over him by being given the daytime shift.

Gerry Babb was hired in June of 1973 and assigned to the curing and final inspection department. He contends that a white employee, Richard Barnett, who was hired at the same time as he, was given more training and subsequently promoted to a supervisory position in curing. Babb testified on cross-examination, however, that at least one supervisor and the foreman in that department were black. Moreover, he applied for and received a promotion to the position of senior engineering aide after he had worked for defendant for about six months.

Babb also asserts that he was denied promotions while working as a senior engineering aide. First, he contends that he trained a white employee, Joe Nock, who had less seniority but who was promoted over him. On cross-examination, however, Babb acknowledged that the position to which Nock transferred was a lateral move, not a promotion, and he was offered a similar transfer that he rejected. Second, he asserts that he was denied a promotion to a supervisor’s position in the Banbury Department. Babb testified that he interviewed for the position with Paul Degeest, but was told at the end of the interview that the position had already been filled. Third, he contends that he was denied a supervisory position in the warehouse. After being refused a supervisory position in Banbury, Babb complained to Mr. Miles, the plant manager. Miles put Babb in touch with Darryl Teague, the warehouse department manager, who interviewed him for the position. Babb also was denied this position.

In March of 1975, Babb sought a promotion to the position of engineering assistant. He was given this position. In 1977, approximately one year prior to his testifying, Babb sought but was denied a supervisory position in the product evaluation department.

John Moore applied for employment with the defendant initially in September of 1975. He was interviewed by Mr. Costanza and Mr. Jeff Phillips of the personnel department, and was advised that he was over-qualified for a job in production. (Moore Tr. at 6). Moore had a degree from Tennessee State University and two to three years experience as a store manager or assistant manager for a regional discount chain. Moore reapplied in January of 1976. After a second interview, Moore again was told that he was over-qualified, but he was offered a position after he told the interviewers that he felt that their failure to hire him was discrimination. He was hired as a production operator in the stock preparation department beginning January 16, 1976.

Moore contends that he was discriminated against by being denied three promotions. First, at some point in 1977, he applied for but was denied a position in the laboratory. Although Moore had a degree in biology that involved some chemistry, he was told that he did not have enough chemistry for the position he was seeking. Second, during this time period he also applied for but was denied a position in technical services. He was interviewed for this position by Mary Bryant, a black female, but did not receive the position. Third, in 1978, he interviewed for but was denied a position as an x-ray technician in the quality control department. John Payne, quality assurance department manager, testified that in the early stages of the development of the quality assurance department, approximately fifteen to twenty percent of the employees were black. He testified that in 1978 after additional persons were added in x-ray and other areas, approximately thirty to thirty-five percent of the department was black. (Payne Tr. at 560-1).

James Smith was employed by defendant on April 1, 1973, as a tire inspector in the final inspection department. Through the time of his testimony in August of 1980, he received three promotions. He claims, however, that he was discriminatorily denied a number of other promotions. First, he contends he was denied a promotion from production operator to senior production operator after working for six months. The evidence introduced at trial indicates that these promotions ordinarily were given as a matter of course. Further, Smith testified that at least one white employee was promoted with three months less service. In December of 1973, Smith was transferred to the quality assurance department in a product evaluation (x-ray) position and was promoted to senior production operator.

While working in quality assurance, Smith claims he was denied promotions to “advance” jobs in that department. Smith identified two employees, one white and the other black, who received these positions. He testified that he was told by his department manager that he was not promoted because he had a “bad attitude, absenteeism problem, was immature and needed experience in the department where he was.” (Smith Tr. at 169-72). He was later offered an “advance” job in statistical quality control, but he initially turned down the offer because he learned Jerry Watson, a white employee, was being given a five day a week, day job with weekends off that he desired. Smith admitted, however, that the transfer of Watson was “just a lateral move.” (Smith Tr. at 177). He later accepted the position he initially turned down.

While working in SQC, Smith claims that he was denied three further promotions. First, he contends that in 1978, he was interviewed for but denied a junior engineering assistant’s position in technical services. Approximately six months later, he was denied a tire development job. In addition, he was not promoted to a position as a supervisor in x-ray. The supervisory positions were awarded to two black males, a white female, and a white male. His department manager, John Payne, testified that these employees were clearly better qualified than Smith. At the time of his testimony, he was employed as an engineering assistant in the laboratory.

b. Statistical Proof

(i) Plaintiffs’ Statistical Proof

On behalf of the plaintiffs, Mr. Tankel submitted statistical proof pertaining to promotions. His testimony and the exhibits he submitted, however, provide the Court with only raw data. He attempted to demonstrate the existence of discrimination in promotions by identifying isolated disparities, but he failed to show that these disparities were typical or part of a consistent pattern of discrimination. Moreover, he made no attempt to measure the statistical significance of these selected disparities. In sum, the Court finds that plaintiffs’ statistical evidence relating to promotions is severely deficient and incomplete. Accordingly, the Court does not make specific factual findings with respect to this evidence.

(ii) Defendant’s Statistical Proof

In analyzing Firestone’s promotion data, Dr. Peterson performed two sets of comparisons: (1) a comparison of the speed of promotion — whether blacks had to spend a longer time in a particular job category than whites before being promoted; and (2) a comparison of the wage advancement of blacks compared to that of whites. Dr. Peterson examined the actual salary of each individual, which may have included shift differentials or merit raises. (Pet.Tr. at 89-90).

Dr. Peterson compared the average seniority for whites and blacks at the time of their promotion to a different EEO-1 category for each of the years 1974 through June 1978. (Ex. D-266, 267). For the twenty instances in which there were both white and black promotions, and thus a basis for comparison, blacks were promoted faster than whites in fourteen instances. The number of instances where blacks were promoted faster than whites exceeded by 2.53 standard deviations the number of instances one would expect if race were not a factor in determining job movement. (PetTr. at 90-95).

Dr. Peterson performed the same comparisons for that same period for all job transitions involving a change in job title. (Exs. D-268, 269). Comparing each of the instances in which both whites and blacks were promoted, whites were promoted faster than blacks in slightly more instances, to the extent of a .9 standard deviation in favor of whites. (PetTr. at 95-99).

Dr. Peterson also compared the rate of advancement in pay for blacks and whites by comparing the July 1978 average monthly salary of whites and blacks hired into the same initial job. The data analyzed included persons hired in each of the years 1972 through 1977. The comparisons revealed that the average salary of blacks was greater than that of whites in six instances and less than that of whites in eight instances, reflecting a .53 standard deviation in favor of whites.

For all dates of hire, and for all initial jobs, the average monthly pay of an individual black in July 1978 was $6.37 less than the average monthly salary of an individual white. (Ex. D-291). This difference reflects that the average monthly salary of blacks differed from what one would expect when compared to that of whites by .85 standard deviations. (Pet.Tr. at 103-09, 116-18).

2. CONCLUSIONS OF LAW

a. Disparate Treatment

Plaintiffs’ proof consisted primarily of testimony by members of the class and statistical proof submitted by Mr. Tankel. Wit