EQUAL OPPORTUNITIES COMMISSION
CITY OF MADISON
210 MARTIN LUTHER KING, JR. BOULEVARD
RECOMMENDED FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER. MEMORANDUM
Case No. 20851
On October 29, 1988 Gary Rose filed a complaint of employment discrimination against Kippcast. The complaint alleges that Kippcast failed to hire Rose as a laborer because of his race. Following an investigation, MEOC Investigator Alberto de la Cerra issued an Initial Determination finding probable cause to believe that Kippcast had discriminated against Rose. Kippcast waived conciliation and the complaint was then certified to hearing.
A hearing was held in this case on July 12, 13 and 14, 1989. The Complainant was represented by Richard Thal of the firm of Cullen, Weston, Pines & Bach. Respondent Kippcast was represented by Thomas Crone of Melli, Walker, Pease & Ruhly.
On the basis of all the evidence, the hearing examiner now makes the following:
RECOMMENDED FINDINGS OF FACT
Rose did not identify any specific job he was seeking on his application. Tie indicated he would accept full-time or part-time employment and that he could work at night. He left "temporary employment" unmarked, indicating he was not interested in a temporary job. He also indicated on the application that lie was referred to Kippcast by a relative.
On another occasion, Rose questioned Johnson about the qualifications of other individuals who had been hired.
RECOMMENDED CONCLUSIONS OF LAW
This case involves a claim of employment discrimination by a black male. The Complainant, Gary Rose, charges that the Respondent, Kippcast, intentionally discriminated against him because of his race when it failed to consider his application for employment. He also charges that Kippcast has engaged in a pattern and practice of discrimination against blacks in hiring. Finally, Rose has charged that Kippcast's subjective hiring practices have an adverse impact on black applicants and therefore amount to unlawful discrimination.
Rose filed an application for employment with Kippcast in April of 1987. He indicated on the application that he would accept full-time or part-time employment. At the time, Kippcast had between four and five hundred employees in various positions, including managerial and professional employees, technicians, office and clerical employees, and craft, semi-skilled and unskilled manufacturing employees. The last three, craft, semi-skilled and unskilled workers, comprised the majority of Kippcast's work force.
Rose was qualified by his training and experience, as reflected on his application, for a number of entry level factory-type jobs. These were: weekend maintenance, which is part-time work; sorter; furnace tender; processor; trimmer, die cast cleaner and mini-cast cleaner. There is no evidence he was qualified for any other positions. At the time Rose applied, Kippcast was not recruiting for or hiring into any of the full-time entry level positions identified above. Thus, in accord with Kippcast's usual practice, Rose's application was referred to Cherlyn Johnson. She is Kippcast's personnel administrator and is responsible for recruiting and hiring part-time and temporary employees. Rose did not indicate that he had any interest in temporary employment on his application.
Rose telephoned Johnson occasionally to follow-up on his application. On one occasion, to Johnson's annoyance, he questioned her about the qualifications of the individuals who were hired. In early June, Johnson contacted Rose to offer him part-time employment. Rose turned down that offer and told Johnson he was no longer interested in part-time employment.1 Since Kippcast was not hiring into full-time entry level positions at the time, Johnson placed Rose's application in a file folder in which applications were kept in alphabetical order. In 1987, Kippcast hired only one full-time entry level employee prior to September 16. On August 10, Marty Wilcox, who is white, was hired as a die cast cleaner. Wilcox had prior die cast experience.
In early September Kippcast advertised that it was seeking to hire laborers. Kathy Buechel, the employee services manager, began reviewing applications for full-time employment. Rose spoke with Cherlyn Johnson, who suggested he talk to Buechel. When Johnson told Rose Buechel was unavailable, he said "Jesus Christ, what does it take to get in there". Johnson reported this remark and Rose's persistence to Buechel and told her to expect a call from him. Rose spoke with Buechel twice. The second time they spoke, Buechel told Rose she'd been informed that he had been rude and that he had used foul language, and the two then had an argument. Following this, Buechel and Pamela Ryan, Kippcast's Personnel Director, agreed that Rose's application would not receive any further consideration.
Rose's brother, Christopher Rose, was employed by Kippcast from September of 1986 until May of 1987. Johnson, Buechel and Ryan all knew him. He informed Johnson that his brother would be applying for a job at Kippcast.
We turn first to Rose's individual disparate treatment claim which is, simply stated, that he was not hired by Kippcast because he is black. The prima facie case analysis employed by federal courts in Title VII cases is applicable to this claim. See, Madison General Hospital v. Equal Opportunities Commission, No. 81-CV-1925, Dane Co. Circ. Ct., Hon. R. Bardwell (July 9, 1982). Under the prima facie case framework, we first consider whether the Complainant has made out a prima facie case of discrimination, which he does by proving the existence of facts which, if otherwise unexplained, raise a presumption of discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254-55, 101 S.Ct. 1089, 67 L.Ed. 2d 207 (1981). If the Complainant succeeds in making out a prima facie case, the burden of production is shifted and the respondent must rebut the prima facie case by producing competent, credible and specific evidence that it had legitimate, non-discriminatory reasons for its decision. id., at 254-55. Where a respondent presents such evidence, a complainant will prevail only by demonstrating that the respondent's proferred explanation is a pretext for discrimination. id., at 255-56. He may do so directly by proving that a discriminatory reason more likely motivated the employer, or indirectly by showing that the employer's proferred explanation is unworthy of credence. id., at 256.
Rose has made out a prima facie case of race discrimination. He is black;2 he applied for employment with Kippcast; Kippcast has conceded that he was qualified to fill a number of entry level positions and at one point even offered him one such position, albeit part-time; and, despite his qualifications for and the availability of a number of entry level positions, he was not hired.
Kippcast has successfully rebutted Rose's prima facie case by presenting evidence of his inappropriate behavior, specifically, pressing Johnson to defend Kippcast's hiring decisions, his "Jesus Christ" exclamation, also made to Johnson, and his argument with Buechel.
It is at the final stage of the prima facie analysis that Rose's claim fails. He has not proven Kippcast's explanation to be a pretext for discrimination. Although he denied having engaged in the behavior reported by Johnson and Buechel in their testimony, his denial was less than certain. Next, Rose argues that the term "Jesus Christ" is not intrinsically foul, obscene or rude. I find it neither incredible nor improbable that Rose's exclamation, "Jesus Christ, what do I have to do to get in there" was considered offensive, rude or abusive by either Johnson or Buechel, or that his remark, in combination with his subsequent behavior would have been considered inappropriate by Buechel or Ryan. Finally, Rose has failed to demonstrate that others who behaved comparably were not rejected3 or to present any other evidence to suggest that the reasons advanced by Kippcast were not in fact the reasons for his rejection.
Rose next argues that the statistical evidence and the evidence of Kippcast's hiring practices proves that Kippcast engaged in a pattern and practice of intentional discrimination against blacks, and that Kippcast's hiring practices are unlawful because they result in the disproportionate rejection of blacks. The evidence falls short of proving discrimination under either theory.
Statistics can play a significant role in establishing a pattern and practice of discrimination4, and are indispensable to an adverse impact case.5 In this case, however, the statistics provide a less than clear picture. Moreover, there is no expert evidence in the record to explain the meaning of the statistics offered into evidence and whether any disparity, if indeed one exists, is statistically significant and therefore of any probative value.6
There is no evidence that the small portion of applications sporadically coded by Kippcast in 1986 and 1987 are representative of the entire applicant pool, or that it would be reasonable to extrapolate from these coded applications the racial compositions of the entire applicant pool in 1987. See, Fudge, supra., at 658 (a small sample is not necessarily representative of a larger pool). Yet this is what Complainant did, and it is with these extrapolated figures that the Complainant attempts to prove the statistical significance of the apparent disparities which are revealed by this exercise. In the absence of evidence that this practice is acceptable and that the resulting statistics are reliable, the Complainant's calculations are meaningless.
The only certain and useful statistics of relevance which we are able to derive from the data offered into evidence is that blacks comprised 7.4% of Kippcast's 1987 hires into full-time, entry level positions, the positions which are at issue in this case. We do not know what proportion of the 512 applications received in 1987, or how many of those which were coded, were applications for those positions. As already observed above, we do not know the racial composition of the group of 362 applicants whose applications were not coded. These statistics are simply inadequate, without more, to establish statistically significant disproportionate hiring rates for black and whites.
In the absence of proof of a significant disparity in the hiring of blacks and whites into full-time entry level jobs, Complainant cannot prevail on his disparate impact claim. Because he relies almost exclusively on the same statistical evidence as well to prove that Kippcast is engaged in a pattern and practice of racial discrimination, and because there is no evidence of any specific instances of discrimination, I also conclude that the Complainant has failed to prove any pattern or practice of discrimination by Kippcast.
Dated at Madison this 29 day of September, 1989.
EQUAL OPPORTUNITIES COMMISSION
1Rose does not contend that Kippcast discriminated against him with respect to part-time employment.
2On the basis of the evidence, I have rejected Kippcast's contention that the two individuals who decided Rose's application would no longer be considered, namely, Kathy Buechel and Pamela Ryan, did not know he is black.
3The evidence is to the contrary. Audrey Preston's application was rejected because she was rude.
4International Brotherhood of Teamsters v. United States, 431 U.S. 324,339 n.20, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977).
5See, B. Sehlei and P. Grossman, Employment Discrimination Law (2d ed.) at 1324-31, and cases cited therein.
6In cases involving a relatively small data base, courts should require a showing that any disparity is statistically significant. Fudge v. Providence Fire Dep't., 766 F.2d 650, 658 (1st Cir. 1985). Moreover, use of the 4/5 rule, suggested by complainant here, is inappropriate where small samples are involved. 766 F.2d at 658 n.10.