Equal Employment Opportunity Commission v. Kimbrough Investment Co. , 703 F.2d 98 ( 1983 )

JERRE S. WILLIAMS, Circuit Judge.

The Equal Employment Opportunity Commission charges racial discrimination in this class action suit as representative of a specified class of hotel employees. The EEOC appeals the denial of relief in the court below, and the hotel operator appeals the denial of its attorneys’ fees claimed as prevailing party. We affirm the decision of the district court.

BACKGROUND

The present cause of action began in 1973 when a discharged employee of the Biloxi Sheraton Motor Inn filed a race discrimination complaint with the Equal Employment Opportunity Commission (EEOC). While the EEOC found no reasonable cause to pursue the individual’s charge, its investigation led the EEOC to believe that the hotel was engaged in unlawful racially discriminatory employment practices. The EEOC filed this suit in federal district court in September, 1975, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The defendant, Kimbrough Investment Company, was the owner and operator of the Biloxi Sheraton at the time the suit was filed.¹

In March, 1979, the district court certified the EEOC as representative of a class of all black employees of the Biloxi Sheraton since October 12, 1972 (180 days before the filing of the original complaint with the EEOC).² The parties agreed to a bench trial before a United States Magistrate. In August, 1981, the district court found that there was no prima facie evidence of racial discrimination based on the evidence presented. In the alternative, the court held that even if there was such a prima facie case, it was successfully rebutted by the employer. The court found no evidence that the employer’s answers to the charges of racial disparity were a mere pretext for racial discrimination. The ultimate holding was that a claim for relief under Title VII had not been established. The cause was dismissed with prejudice.

The district court awarded court costs to the employer, but denied motions for attorneys’ fees under both Title VII, 42 U.S.C. § 2000e-5(k), and the Equal Access to Justice Act, 28 U.S.C. § 2412. The EEOC appeals the finding of no discrimination, and the employer appeals the denial of attorneys’ fees.

SCOPE OF REVIEW

This is a disparate impact class action suit. Thus, no intent to discriminate need be shown. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335, n. 15, 97 S.Ct. 1843, 1854, n. 15, 52 L.Ed.2d 396 (1977). The order of proof, however, follows the pattern established in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), a disparate treatment case. Johnson v. Uncle Ben’s, Inc., 657 F.2d 750 (5th Cir.1981); Rivera v. City of Wichita Falls, 665 F.2d 531 (5th Cir.1982); Harrell v. Northern Elec. Co., 672 F.2d 444 (5th Cir.1982); Wheeler v. City of Columbus, Miss., 686 F.2d 1144 (5th Cir.1982). The plaintiff initially has the burden of showing a prima facie case of discrimination. If the plaintiff succeeds in this showing, the focus of attention shifts to the employer to persuade the court of the existence of a “legitimate business reason” by a preponderance of the evidence. Johnson v. Uncle Ben’s, Inc., supra, 657 F.2d at 753. If the employer makes such a showing, the focus returns to the plaintiff to establish by a preponderance of the evidence that the employer’s justification fails because effective and not too costly business alternatives are available which the employer can be forced to accept to eliminate discrimination. The “ultimate burden of persuading” Burdine, supra, 101 S.Ct. 1089, 1093, always rests on the plaintiff to show discrimination in violation of law.

The ultimate question of the existence of discrimination is a question of fact. Our power to alter a district court’s findings under Fed.R.Civ.P. 52(a) is limited to those that are clearly erroneous. Pullman-Standard v. Swint, 456 U.S. 273, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982). With this standard in mind, we turn to the findings of fact before us. To evaluate the findings under the clearly erroneous standard, we have made a thorough review of the entire record.

EVIDENCE OF DISCRIMINATION

A. 1974-1977

We first examine the evidence of discrimination in the later years involved. On oral argument, the employer conceded the existence of a prima facie case of racial discrimination during the years 1974 through 1977. Therefore, the posture of the case as presented on appeal is to review the district court’s conclusion that even if a prima facie case existed, it was effectively rebutted.

The basis of a prima facie case, according to the record, stemmed primarily from the employer’s hiring procedures, which utilized a “folder system”. When job seekers filled out applications for employment, they were asked to specify the positions for which they were applying. Banquet worker applications were placed in a “Banquet” folder, bellman applications in a “Bellman” file, and so on. Those who offered to accept “anything” offered were placed, predictably, in an “Anything” folder. Applications in the Anything folder were rarely, if ever, given additional review. One of the EEOC’s main charges was that this Anything folder discriminated against minority employees³ in both their initial job assignments and their chances for subsequent promotions.

Yet the district court found that [i]t has been the long standing policy of the Defendant to maintain a folder placement system when correlating and referring to the employment applications. This policy is uniformly followed by the defendant and applied equally to all persons regardless of race. Title VII does not require an employer to announce vacancies or to consider all applicants, black and white, for all jobs. Louis [Lewis] v. Tobacco Workers International Union, 557 [577] F.2d 1135 (4th Cir.1978), cert. denied, 439 U.S. 1089, 99 S.Ct. 871, 59 L.Ed.2d 56 (1979); Furnco Construction Corp. v. Waters, [438 U.S. 567, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978)]. Although the record indicates that the folder system may not be the best system which Defendant could have utilized, the facts fail to indicate that blacks were treated any differently than whites under the folder system.... [T]here has been no showing made ... that the folder system has a disparate impact on black applicants or black employees moving from one position to another. (Emphasis added).

The district court concluded no prima facie case had been established. On oral argument, however, the company conceded the showing of a prima facie case, giving as its reason its erroneous belief that the district court had found there was a prima facie case. The district court, however, insured the validity of its ultimate conclusion by specifically finding that even if a prima facie case had been shown, the employer had adequately rebutted it. Our review of the record shows ample evidence to support this conclusion. Blacks were employed in almost every area of the hotel’s operations. There were blacks as heads of departments and in other well-paying jobs. The government’s own exhibits, although acknowledged by all parties to be deficient in some other respects, showed that applications were in rough racial accord to the work force profile of the general Biloxi population. Hirings were in rough accord with the racial balance of applicants.

Although the hotel does seem to have had some departments that were predominantly black, as the employer conceded on oral argument during this appeal, there is sufficient and credible evidence in the record to show that such disparity has been the result of factors other than discrimination. For example, the court below considered the evidence that there were no black employees in the accounting department. It looked back to the applications made during that time and found that only eight blacks, as opposed to 142 whites, even applied for jobs in the “accounting and general” department from 1975 to 1979. Further., census figures show that only 3.6% of the area’s managerial and administrative work force is black. Finally, the plaintiff failed to produce a single class member who unsuccessfully applied for a job in this department. We agree with the district court’s holding that these facts simply do not establish that there was racial discrimination in violation of law.

In short, the employer proved that its employment practices were rooted in “legitimate business reasons.” Johnson v. Uncle Ben’s, Inc., supra, 657 F.2d at 753. The EEOC failed to present any evidence that the hotel’s practices were a “masking” of discrimination. McDonnell Douglas Corporation v. Green, 411 U.S. 792, 804, 93 S.Ct. 1817, 1825, 36 L.Ed.2d 668 (1973); International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). With this in mind, we find the district court’s ultimate holding of no violation of Title VII in these later years is not clearly erroneous.

B. 1971-1973

During the first years of the hotel’s operation, 1971-1973,⁴ the employer denies the existence of even a prima facie case of discriminatory impact. The district court found that no such prima facie case was proved, holding that there was therefore no cognizable claim under Title VII. We affirm this part of the lower court’s ruling, as well.

A full review of the record shows that the plaintiff’s evidence regarding these early years is garbled and sketchy, and falls far short of establishing a prima facie case. Personnel records are incomplete. They do not give an authoritative racial breakdown of the hotel’s personnel. They do not give an accurate racial breakdown of job applicants during that period, even though hotel managers testified that employment application forms had such information on them during these early years. The EEOC’s proof for these early years seems to exist chiefly in the testimony of a few early employees of the hotel who testified that they never saw any black faces in certain departments.

This testimony is purportedly backed up by statistical evidence, but we find the statistics to be so riddled with inaccuracies that we cannot fault the court below for giving those statistics “no weight” and assigning them “no probative value.” The statistics purported to be complete employment statistics, yet they were shown in the record to have skipped over many employees and applicants. They purported to represent a racial breakdown of employees, yet the paralegal who prepared the breakdown (under the direction of EEOC attorneys) admittedly categorized any “unknown” employee as white. This both masked and distorted the true racial picture of the hotel, since many of the employees were not racially identifiable from the hotel’s records.

Furthermore, the records were incomplete in that they covered only new hires into the hotel and ignored the promotions that took place once minorities were hired. At one point, for example, the statistics showed no black department heads while the record clearly established that there were two. Since both had been promoted into those jobs, the government’s statistics failed to acknowledge their existence. Although we recognize that statistics can play an important role, even the fully persuasive role, in establishing a prima facie case of Title VII discrimination, see Teamsters, supra, 431 U.S. at 339-40, 97 S.Ct. at 1856-57, 52 L.Ed.2d 396, and cases cited; Williams v. New Orleans Steamship Ass’n, 673 F.2d 742 (5th Cir.1982); Phillips v. Joint Legislative Committee on Performance and Expenditure Review of State of Mississippi, 637 F.2d 1014 (5th Cir.1981), cert. denied, 456 U.S. 960, 971, 102 S.Ct. 2035, 2233, 72 L.Ed. 2d 483, 845 (1982), we cannot fault the district court for affording the government’s statistics “absolutely no weight in the case before us.” See Smith v. Balkcom, 671 F.2d 858 (5th Cir.1982), modifying 660 F.2d 573 (5th Cir.1981), cert. denied,-U.S.-, 103 S.Ct. 181, 74 L.Ed.2d 148 (1982).

Without such statistical evidence, we find no remaining basis by which a factfinder could find a prima facie case of racial discrimination. It is not for us as an appellate court to investigate or to judge de novo if the employer was discriminating against racial minorities. Swint, supra. We can review only the record before us. On this record it was not clear error for the district court to find that there was no prima facie violation of Title VII in 1971-73.

ATTORNEYS’ FEES

Under Section 706(k) of Title VII, 42 U.S.C. § 2000e-5(k), a prevailing defendant can recover attorneys’ fees in a case brought by the government if the action was unreasonable, frivolous, meritless, or vexatious. Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978). The district court in the case before us awarded court costs to the employer as the prevailing party, but denied an award of attorneys fees. The employer charges that this denial was an abuse of the district court’s discretion. We find no such abuse of discretion.

This action grew out of a. routine investigation of a fired worker’s charge of racial discrimination. The investigation showed a potential for unlawful discrimination. Indeed, the employer conceded during oral argument that a prima facie case existed for some of the years in question. This trial was held only after the government’s attempts to settle the case failed. The employer’s own offer of settlement through adoption of an affirmative action plan, in the words of the district court, “suggested the need for some steps to correct racial imbalance in certain aspects of its work force.” The employer argues that the EEOC’s case was brought vexatiously because it used flawed and misleading statistics in its trial exhibits. We recognize that the EEOC used statistical evidence that on its face in some measure lacked probative value. But some testimony and some analysis of hiring practices was valid probative evidence. We cannot conclude the case was vexatious.

Alternatively, the employer urges attorneys’ fees under the Equal Access to Justice Act, 28 U.S.C. § 2412. This statute, however, applies only to claims for attorneys’ fees when no other specific statute deals with an award of attorneys’ fees against the government. Since Title VII has an explicit attorneys’ fees provision in section 706(k), which was applied in this case as set out above, the district court was correct in finding that the attorneys’ fees provisions of the Equal Access to Justice Act are not applicable in this case.

AFFIRMED.

1 . The hotel has since been sold, and the EEOC has reserved the right to include the new owner in this action. However, our decision today obviates the need for any substitution of parties.

2 . The class did not include unsuccessful job applicants of the Biloxi Sheraton. However, the district court did not exclude unsuccessful applicants from being included in any prospective, corrective relief. Nor did the court below preclude a showing at trial of how the selection process at the Sheraton affected black applicants.

3 . Since unsuccessful job applicants are not included in this class action, claims of discrimination in the hiring process per se are not before us. We are concerned only with the effect this hiring system might have had on the initial placement and subsequent promotion opportunities of the hotel’s employees.

4 . Although the certified class included only employees from October, 1972, to the present, the court examined employment practices from the hotel’s opening in 1971, because discrimination in the earliest days could result in remnants of discrimination in later years. See Teamsters, 431 U.S. at 386-88, 97 S.Ct. at 1881 (separate opinion of Marshall, J.).