Thomas v. Anchorage Telephone Utility ( 1987 )

MATTHEWS, Justice,

joined by BURKE, Justice, concurring.

I.

An employer has no duty to offer equal benefits to groups of employees which do unequal work. At the same time, an employer may not offer unequal benefits to such groups because of the gender of the groups' members. The trial judge found that the unequal benefits at issue here were not gender motivated. Since these findings were based on substantial credible evidence, they must be sustained. However, the trial judge did not, at least clearly, address one contention presented by the class plaintiffs. That contention is that ATU, because of discriminatory motives, refused to make an exception for former TCC employees who were rehired under its policy that all TCC employees start at a lower probationary pay scale. Thus, although it seems practically impossible that this omission will be held to be the result of discrimination in view of the trial court’s findings on the numerous other theories which were presented, I agree to a remand for findings on this point.¹

II.

The majority concludes that this is not a disparate impact case because the different wage increases given to the different employee groups lack “even a pretense of facial neutrality.”

The term “facial neutrality” as used in the disparate impact method of analysis merely means that the challenged practice or requirement is not imposed on the basis of a forbidden classification such as gender or race. The differential wage increase in the present case is facially neutral in the sense expressed. Of course, it is possible to say that the neutral veneer is easily penetrated since male dominated groups got a greater increase than female dominated groups. Still, the veneer of neutrality which exists in this case seems more substantial than that which was present in the following eases where the disparate impact theory was applied. Nashville Gas Co. v. Satty, 434 U.S. 136, 98 S.Ct. 347, 54 L.Ed.2d 356 (1977) (seniority lapses during maternity leave); Wright v. Olin Corp., 697 F.2d 1172 (4th Cir.1982) (restricted access to jobs based on worker’s potential for pregnancy); Mitchell v. Board of Trustees of Pickens County School District A, 599 F.2d 582 (4th Cir.) (mandatory non-renewal of contract for pregnancy), cert. denied, 444 U.S. 965, 100 S.Ct. 453, 62 L.Ed.2d 378 (1979). The lesson of these cases is that whether an employment practice is facially neutral or facially biased is not critical to a proper application of the disparate impact theory.

In my view, the decision to grant different wage increases to different employee groups does not fit within the disparate impact theory. The theory only applies where a significant disparate impact on a protected class is caused by “specific, identified, employment practices or selection criteria.” Atonio v. Ward’s Cove Packing Co., 810 F.2d 1477, 1485 (9th Cir.1987). Every case in which the Supreme Court has approved the application of disparate impact analysis has involved “an attack on a specific employment practice, such as a written scored test, or a specific objective requirement, such as a high school diploma requirement or a height and weight requirement.” B. Schlei & P. Grossman, Employment Discrimination Law 1287 (2d ed. 1983) (footnotes omitted).

In those jurisdictions where plaintiffs have raised claims similar to the one presented here, the courts have generally-rejected the application of disparate treatment analysis. For example, in American Federation of State, County, and Municipal Employees, AFL-CIO v. State of Washington, 770 F.2d 1401 (9th Cir.1985) (AFSCME), the employer compensated employees in jobs where females predominate at lower rates than employees in jobs where males predominate. The trial court found a violation of Title VII under both the disparate treatment and the disparate impact theories of discrimination. The trial court’s decision in AFSCME to apply disparate impact analysis received harsh criticism. See generally 1 A. Larson and L. Larson, Employment Discrimination § 33.22(c), at 7-139 (1984) (“More striking yet is the court’s flagrant misuse of disparate impact theory as an alternate ground for liability”). The Ninth Circuit reversed because an employer’s compensation decisions are not a “specific, clearly delineated employment practice applied at a single point in the job selection process,” and such decisions involve “a number of complex factors” not readily evaluated under disparate impact analysis. 770 F.2d at 1405, 1406. Accord Spaulding v. University of Washington, 740 F.2d 686 (9th Cir.) (disparate impact analysis inappropriate to compare nursing school faculty salaries with other schools’ faculty salaries), cert. denied, 469 U.S. 1036, 105 S.Ct. 511, 83 L.Ed.2d 401 (1984); Christensen v. State of Iowa, 563 F.2d 353, 356 (8th Cir.1977) (disparate impact analysis inappropriate to compare clerical workers’ salaries with physical plant workers’ salaries); Lemons v. City and County of Denver, 620 F.2d 228 (10th Cir.) (no cause of action under Title VII where plaintiffs seek to compare nurse positions with non-equal jobs), cert. denied, 449 U.S. 888, 101 S.Ct. 244, 66 L.Ed.2d 114 (1980). I agree with the foregoing authorities and on this basis would affirm the decision of the superior court.

III.

The term “prima facie case” has two common meanings. It may be used in the sense of a presumption where the burden of producing evidence is shifted to the defendant, who necessarily loses unless he produces the evidence called for. This is described in Evidence Rule 301(a):

[A] presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of non-persuasion, which remains throughout the trial upon the party on whom it was originally cast. The burden of going forward is satisfied by the introduction of evidence sufficient to permit reasonable minds to conclude that the presumed fact does not exist. If the party against whom a presumption operates fails to meet the burden of producing evidence, the presumed fact shall be deemed proved.... When the burden of producing evidence to meet a presumption is satisfied, the court must instruct the jury that it may, but is not required to, infer the existence of the presumed fact....

Alaska R.Evid. 301(a).

The second meaning of the term “prima facie case” is that it describes a state which is achieved when the plaintiff has presented enough evidence to avoid a directed verdict. In determining whether this state exists, the court is to view the evidence in the light most favorable to the plaintiff and draw all reasonable inferences in that party’s favor. Howarth v. Pfeifer, 423 P.2d 680 (Alaska 1967). When a prima facie case, using the term in this sense, is made out, it is not correct to say that the burden of production shifts to the defendant. If the defendant merely rests he will not necessarily lose, for the court or the jury would then be required to weigh in a balanced fashion the facts and the evidentiary inferences to be drawn. Our Civil Rule 41(b) makes this clear. It provides that in an action tried by the court without a jury, where a motion to dismiss is made at the close of the plaintiff’s case, “[t]he court as trier of the facts may then weigh the evidence, evaluate the credibility of witnesses, and render judgment against the plaintiff even if the plaintiff has made out a pri-ma facia case.” Alaska R.Civ.P. 41(b) (emphasis added).

The trial judge in the present case seems to have used the term “prima facie case” in this second sense. The court stated that it was reaching its conclusion that a prima facie case of disparate treatment had been made out “when factual inferences are drawn in favor of plaintiffs.” In a case such as this, involving a non-standardized fact pattern,² the trial court should only impose a burden of production on the defendant if it is prepared to say at the close of the plaintiffs case that upon a balanced weighing of the evidence and the inferences to be drawn therefrom, it would be prepared to rule in plaintiffs favor if no further evidence were produced.

Thus, while I agree with the discussion in the majority opinion concerning the consequences of making out a prima facie case in cases where there is a standardized fact pattern, as for example in Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207, 217 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801-02, 93 S.Ct. 1817, 1823-24, 36 L.Ed.2d 668, 677 (1973); Alaska USA Federal Credit Union v. Fridriksson, 642 P.2d 804, 808 (Alaska 1982), and Alaska State Commission for Human Rights v. Yellow Cab, 611 P.2d 487, 490 (Alaska 1980), those consequences do not apply in cases where the trial judge has used the term prima facie case to mean merely that quantity of evidence which suffices to get the case to the jury.

1 . The tried court’s findings concerning the claim of Marilyn Centoni can be read as making a remand even on this limited point unnecessary. Centoni, a TCC employee, was forced to quit her job in 1980 to travel with her husband to California so he could obtain medical treatment there. She returned to work with ATU in 1981, but had to start as a lower paid probationary employee. No credit was given for her three years of prior experience. Based on these facts, she presented two theories: (1) she was discriminated against because she was not granted a leave of absence, and (2) she was discriminated against because she should not have been required to start again on probationary status in light of her experience, even if she was properly denied a leave of absence. Thus, the leave of absence claim related to alleged discrimination upon leaving, while the probationary pay theory related to discrimination upon returning. While focusing upon Centoni’s leave of absence claim, the trial court made findings which were applicable to Centoni’s claim of discrimination upon returning, namely: "Plaintiff failed to prove by competent evidence ... that women only were rehired on a temporary employee status after returning to ATU’s employment.... [P]laintiff Centoni admitted, ... on cross-examination, that another male employee was, like her, required to resume his employment with ATU as a temporary employee.” In view of the fact that Centoni’s claim and the class claim relating to probationary status for returning, experienced TCC employees are identical, and in light of these findings, we may be carrying to a punctilio the requirement that findings address each contention presented.

2 . A number of the more common standardized fact pattern presumptions are mentioned in C. McCormick, The Law of Evidence § 343, at 806-11 (2d ed. 1972).