LAMS v. GENERAL WATERWORKS CORP., 766 F.2d 386 (8th Cir. 1985)
ROBERT LAMS AND ROBERT FRANKLIN, APPELLANTS, v. GENERAL WATERWORKS CORPORATION, APPELLEE.
No. 84-1231.
United States Court of Appeals, Eighth Circuit.
Submitted November 15, 1984.
Decided July 3, 1985.
As Modified on Denial of Rehearing and Rehearing En Banc August 16, 1985.
Page 387
Ronald L. Ellis, New York City, for appellants.
Spencer F. Robinson, Pine Bluff, Ark., for appellee.
Appeal from the United States District Court for the Eastern
District of Arkansas.
Before BRIGHT, McMILLIAN, and BOWMAN, Circuit Judges.
BOWMAN, Circuit Judge.
[1] Plaintiffs Robert Lams and Robert Franklin appeal from an order
of the District Court, entered after a bench trial, dismissing
their employment discrimination complaint against appellee
General Waterworks. On appeal plaintiffs argue that the District
Court clearly erred in its finding that they were not subjected
to disparate treatment in promotional opportunities because of
their race. We reverse and remand.
[2] I. Facts
[3] A. Overview of the Defendant's Operation
[4] The defendant General Waterworks Corporation operates a number
of waterworks for small and medium size cities across the
country. The job promotions here at issue occurred during the
summer and fall of 1979 at defendant's Pine Bluff, Arkansas
facilities (hereinafter the Waterworks). At that time the
Waterworks employed approximately 65 individuals. The Waterworks'
work force is divided into several
Page 388
classifications. The construction and maintenance (C & M)
department is responsible for construction of new water mains and
repair of existing water mains. The meter readers, as their name
implies, read water meters throughout the system to monitor usage
of water for billing purposes. The plant operators control the
pumps which draw water from the Waterworks' wells. A plant
operator's duties also include bacteriological testing of the
water being produced by the plant,[fn1] addition of
pre-packaged chemicals to the water, and upkeep of the plant
area, including mowing grass and cleaning the reservoir and
filters. Servicemen are responsible for connecting or
disconnecting customers from water service. Servicemen also are
charged with collecting overdue accounts and occasionally assist
the meter readers in reading meters. The central office employees
process payments, keep records, and are responsible for overall
supervision of the plant. Generally, the C & M employees perform
the most strenuous tasks including digging ditches, laying water
mains, and occasionally moving furniture in the central office.
The jobs held by the other employees involve considerably less
heavy physical labor.
[5] The facilities of the Waterworks include a central office, two
water treatment plants, and the C & M area, all in Pine Bluff.
The central office is located at 1100 State Street. It houses the
clerical and administrative personnel and serves as a base of
operations for the meter readers and servicemen. Plant # 1 is
located at Fifth and Locust. Plant # 1 also houses the meter
repair shop. Plant # 2 and the C & M division are located at
Twenty-Ninth and Myrtle. Plant # 2 is an automated plant, which
is controlled from Plant # 1. The three sites are each at least
one and one-half miles from each other. There is little
day-to-day contact between C & M employees and other employees of
the Waterworks. The meter readers and servicemen have somewhat
more contact with the office employees since they are all based
at the central office.
[6] The Waterworks' non-supervisory work force as of March 1979
included 35 persons, of whom 14 were black and 21 were white. The
plant operations division employed five persons, four whites and
one black. The black plant operator, Charles Earl, is the only
black ever to have served in that capacity. The C & M division
included eleven positions  four equipment operators, three
utility I's (foremen) and four utility II's (laborers). All of
these positions were filled by blacks in 1979. There were also
four meter readers, one meter repairman, and three servicemen.
All of these positions were filled by whites. The remainder of
the non-supervisory personnel consisted of a white secretary,
eight clerks (one of whom was black), a white storekeeper, and a
black janitor. Although prior to 1979 some whites had served in C
& M, no black served as a meter reader until September 2, 1980,
almost a year after plaintiffs filed their initial Equal
Employment Opportunity Commission (EEOC) complaint. Several white
C & M employees have been promoted to jobs as meter readers,
servicemen, or plant operators. Prior to 1979 only one black had
been so promoted. At the time this appeal was argued, no black
ever had served as a meter repairman or serviceman.
[7] The educational requirements for all the foregoing positions
were minimal, with few of the incumbents having high school
diplomas. Even among the supervisors, high school diplomas were
rare. The only special qualification for any of the positions was
a state waterworks license. Since 1979, the State of Arkansas has
required all plant operators to acquire a Class C waterworks
license in order for a plant to retain state certification.[fn2]
However, the
Page 389
Waterworks did not require that a person seeking that position
actually have such a license. Instead, new plant operators were
given eighteen months in which to acquire a Class C license. The
test for the license consisted of questions drawn from a set of
study materials provided to applicants prior to taking the test.
In addition to their on-the-job experience and independent study,
all the incumbent plant operators received additional training at
state-conducted seminars prior to taking the test.
[8] Although some employees have been hired with prior experience,
employees for all positions usually are trained on the job. All
employees, including transferees from other departments at the
Waterworks, must successfully complete a probationary period
prior to acquiring permanent status in a particular position.
This probationary period applies to Waterworks employees
transferred from one job classification to another. A
transferee's former position is not held open for him. Thus, if a
transferee is found to be unsatisfactory in a new position, he
may be terminated at the end of the probationary period.
[9] The practical effect of this policy is to discourage
inter-departmental promotions. Employees hired on a temporary
basis in a department are generally the first to be promoted to
permanent positions in that department when positions become
available. This practice, along with the practice followed from
1972 until 1980 of not posting job openings, gave temporary
employees within the department having an opening an advantage
over permanent employees from other areas of the Waterworks in
competing for the open position.
[10] At the time of the events at issue here, an affirmative action
plan was in effect for the Waterworks. This plan had been drafted
by the national office of General Water-works Corporation in
1973, and called for equal opportunity for minority applicants
for all positions. Among other provisions, the plan stated that
the Waterworks would post all jobs with a view toward increasing
opportunities for minorities. As previously mentioned, however,
between 1972 and 1980 job openings were not posted, and
recruitment was accomplished solely by word-of-mouth. As a
general rule, jobs were filled by handpicked personnel, without
consideration of other possible candidates.
[11] B. The Plaintiffs
[12] Plaintiff Robert Franklin, a black male, started with the
Waterworks on October 3, 1973 in the C & M department. In August
1978, Franklin was promoted to the position of equipment operator
in C & M, a position which he still holds. Franklin testified
that he first discussed his desire to work outside of C & M with
Loy Haddox, the plant superintendent. Although the exact date of
this conversation is unclear, it is certain that it occurred
prior to Franklin's promotion to equipment operator, perhaps in
1977. Haddox told Franklin that he would have to get the
permission of his supervisor, Leonard Garrison, in order to be
transferred. Within a week of his discussion with Haddox,
Franklin spoke to Garrison about receiving permission to transfer
should an opening occur. According to Franklin's account,
Garrision told him "[he] was needed mostly, you know, here, out
in construction." Trial Transcript (Tr.) at 290.
[13] Robert Lams, also a black male, was hired by the Waterworks as
a temporary laborer in C & M in April 1978. He was promoted to a
permanent position as a Utility II in C & M on August 27, 1978.
Lams first discussed his interest in being promoted out of
construction with Murray Reichen, the superintendent of the
Waterworks. After that conversation, Lams' supervisor, Leonard
Garrison, told Lams that he would have to have Garrison's
permission to transfer out of the department.
[14] C. The Hiring Decisions in Question
[15] The first of the decisions, which only Lams contests, occurred
in June 1979. Shane Drye, a meter repairman, left his job
Page 390
on two weeks notice. The position was filled by Thomas Holzhauer,
a white. The position was not posted, Lams did not become aware
of it until after it had been filled, and no one other than
Holzhauer was considered. Holzhauer initially had been hired two
months before as a temporary meter repairman. Holzhauer had no
experience as a meter repairman prior to his association with the
Waterworks. The Waterworks contends that it did not have the time
to seek and train another person, such as Lams, because it was
carrying out a state directive to conduct a recalibration and
check-out of all 8,400 water meters in its system at the time of
Drye's departure. According to Reichen's testimony, this
constituted an emergency which precluded the Waterworks from
considering a person untrained in meter repair. During his two
months of work with Drye, Holzhauer had apparently learned enough
to perform the meter repairman's job.
[16] The second decision, which both plaintiffs contest, was the
promotion of Joey Lybrand, a white male, to the position of plant
operator. The position became open in August 1979, when Plant
Operator Billy Mills, the incumbent, gave notice that he would be
resigning his position in two weeks. The job was not posted, and
neither plaintiff became aware of it until after it had been
filled. The plant superintendent, Loy Haddox, recommended that
Lybrand be promoted to the position. Lybrand had been working for
the Waterworks in C & M for about two months at the time of his
promotion. In explaining the decision, Garrison, Haddox, and
Reichen all testified that Lybrand was a good employee with a
good attendance record. Another asserted basis for the decision
was the fact that Lybrand had taken a high school chemistry
course.
[17] Despite having articulated a desire to be promoted out of C &
M, neither of the plaintiffs was made aware of either job opening
before it was filled. Plaintiffs' testified that their desire for
advancement was not because of a desire for higher pay; rather,
they wished to do less strenuous work. Their C & M positions
involve considerably more manual labor than the meter repair or
plant operator positions.
[18] Several other job openings occurred after the two contested
positions were filled. At first, consistent with prior practice,
none of these positions was posted. In 1980, however, for the
first time since 1972, the Waterworks began posting job openings
again, but included possession of a high school diploma as a new
requirement for all positions. This was reduced to a preference
for a high school education in 1981, and later was eliminated.
Since that time, the Waterworks has hired two black meter
readers. There have never been any black meter repairmen or
servicemen, and there has been only one black plant operator.
[19] Plaintiffs filed charges with the EEOC on September 15, 1979.
The EEOC issued a Right to Sue letter in December 1980, and the
plaintiffs filed suit on February 17, 1981, under 42 U.S.C. § 1981
and 42 U.S.C. § 2000e. Trial was held on January 10 and 11,
1984. The District Court issued its decision on January 13, 1984.
[20] II. The District Court's Decision
[21] The District Court found that plaintiffs had made out a prima
facie case of discrimination, but that the Waterworks had
articulated legitimate, nondiscriminatory, nonpretextual reasons
for its hiring decisions. The Court accepted the Waterworks'
explanations for its hiring decisions, crediting Reichen's
testimony that, with respect to the meter repair position, he was
facing an emergency situation, and with respect to the plant
operator's position, Lybrand was better qualified than either
Lams or Franklin. The Court found it significant that the C & M
department had from time to time employed whites, yet there is no
indication in the opinion that the Court considered the virtual
absence of blacks from other departments as relevant to the case.
[22] Although the Court was troubled by the subjectivity of the
Waterworks' hiring and promotional practices, it noted that since
the filing of the EEOC charges and the commencement of this
litigation, the Waterworks
Page 391
had implemented changes which removed some of the subjectivity
from the hiring and promotional process. These changes included
the posting of all nonsupervisory job openings and the
preparation of written job descriptions for some positions. The
Court also noted that all of the jobs, including those in C & M,
offered "dignified working conditions" and were not menial or
demeaning. Along with this, the Court pointed out that the
starting pay for the meter repair and plant operator positions
was lower than the current hourly rate plaintiffs were making at
the time of the trial.
[23] The District Court concluded that plaintiffs had made out a
prima facie case of discrimination under the standards set forth
in McDonnell-Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817,
36 L.Ed.2d 668 (1973), and Texas Department of Community Affairs v.
Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).
The District Court then proceeded to analyze the Waterworks'
promotional procedures and decisions as if they had occurred in
the context of a classic McDonnell-Douglas factual setting in
which plaintiffs were 1) members of a racial minority, who 2)
applied for positions for which they were qualified, 3) were
rejected for the positions, and thereafter 4) the positions
remained open and the employer continued seeking applicants.
Having determined that a prima facie case had been established,
the Court analyzed the Waterworks' articulated nondiscriminatory
reasons for its failure to hire the plaintiffs. The Court,
viewing this evidence in light of the plaintiffs' assertions of
pretext, found no pretext.
[24] III. Discussion
[25] We believe that, by treating the case as if it presented a
classic McDonnell-Douglas fact pattern, the District Court
committed an error of law. As the Supreme Court specifically
noted in McDonnell-Douglas, "[t]he facts necessarily will vary
in Title VII cases, and [this four-part test] is not necessarily
applicable in every respect to differing factual situations."
Id. 411 U.S. at 802 n. 13, 93 S.Ct. at 1824 n. 13. The Supreme
Court later reiterated this sentiment, noting that the four-part
test "was never intended to be rigid, mechanized, or ritualistic.
Rather, it is merely a sensible, orderly way to evaluate the
evidence in light of common experience as it bears on the
critical question of discrimination." Furnco Construction v.
Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957
(1978). Clearly the Supreme Court has recognized the need for
flexibility in application of the McDonnell-Douglas guidelines
to differing factual situations. In the present case, the
evidence distinctly shows that plaintiffs never were actually
considered for the positions in dispute, and thus were not
compared with the successful candidates. Consequently, the
four-part McDonnell-Douglas formula is of little use in
deciding this case.
[26] As has frequently been stated in racial discrimination cases
"statistics often tell much and Courts listen." State of Alabama
v. United States, 304 F.2d 583, 586 (5th Cir.) aff'd 371 U.S. 37,
83 S.Ct. 145, 9 L.Ed.2d 112 (1962). This Circuit has held
that the maintenance of a segregated work force will raise an
inference of discrimination. United States v. N.L. Industries,
Inc., 479 F.2d 354, 370 (8th Cir. 1973). The evidence in this
case shows that the Waterworks' black employees were heavily
concentrated in C & M. At the time of the hiring decisions in
dispute, except for one clerk and one janitor, there was only one
black employed in any of the nonsupervisory job classifications
outside of C & M. This alone was sufficient to raise an inference
of discrimination in promotions and hiring for those job
classifications. See Parham v. Southwestern Bell Telephone Co.,
433 F.2d 421, 426 (8th Cir. 1970).
[27] Other evidence introduced at trial reveals that the Waterworks
engaged in systematic discrimination against blacks with respect
to promotions. Although the Waterworks' supervisors expressed
their opinion that through their policy of word-of-mouth
recruitment "everyone knew" of job opportunities as they
occurred, three C & M
Page 392
employees testified that they knew nothing of openings outside of
their own department. Sylvester Washington's testimony is
illustrative:
Q. Okay. When did you first become interested in
promotions, if you ever became interested in them?
A. Well, after Danny Lunsford became a meter reader
and I started inquiring into, you know, how he got
it, and didn't nobody know. And they didn't have no
bids or anything or to bid on the job. And so that
was it.
Q. Who did you ask?
A. I didn't ask anyone at the time because didn't
none of the employees know.
Q. How he got the job?
A. Uh-huh. He just â€â€
Q. Go ahead.
A. They just called him in the office and, the next
thing you know, they're gone.
[28] Tr. at 389. Reliance on such word-of-mouth recruitment,
especially in a segregated work force, easily may result in
discriminatory personnel decisions. Reed v. Arlington Hotel
Company, Inc., 476 F.2d 721, 724 (8th Cir. 1973). Here the
problem was exacerbated by the physical separation of the C & M
area from the other departments at the Waterworks. Moreover, the
work routine of C & M employees seldom brought them in contact
with other departments of the Waterworks. C & M employees spend
the bulk of their time in the field. Thus, the failure to post
jobs clearly hindered black C & M employees in their quest for
advancement since these employees were generally unaware of job
openings before they were filled.
[29] Black C & M employees also had to overcome the discouraging
attitude of C & M department head Leonard Garrison. Typically,
his response to inquiries by blacks regarding promotion was
similar to the one he gave Plaintiff Franklin  that he "was
needed mostly . . . out in construction . . .". Tr. at 290. Lams
received no more encouragement. After Lams talked to Reichen
regarding promotions, Garrison told Lams that no one could be
promoted from C & M without his consent. Tr. at 184. When asked
why virtually all the blacks in the Waterworks were concentrated
in his department, Garrison gave the following response:
A. I would presume that's the type of work that
they like.
Q. Okay. You presume that's the type work black
folks like  hard laborious work?
A. The majority of them that comes there has
already worked in construction. And I just presume he
figures he's got a pretty good chance of getting on
and having a job.
[30] Tr. at 717. Garrison apparently made no similar presumption
regarding white employees in his department, since there are at
least three instances of whites being promoted out of C & M.[fn3]
Garrison's apparent attitude toward blacks, coupled with his
rebuffs to those who inquired about promotions, effectively
foreclosed black C & M employees from competing for promotional
opportunities.
[31] Reichen relied heavily on Garrison's subjective evaluation of
candidates for promotion from C & M in reaching his decisions.
Denial or limitation of promotional opportunities to a protected
class on the basis of an employer's belief that members of that
class are not interested in being promoted is a discriminatory
practice. See Carmichael v. Birmingham Saw Works, 738 F.2d 1126,
1134 (11th Cir. 1984) (employer's assumption that black
plaintiff was not interested in promotion to sales position where
there had been only one black salesman in employer's history
raised possibility that employer assumed all blacks were
uninterested in sales positions). Here a belief on Garrison's
part that black C & M employees were not interested in being
promoted
Page 393
to other jobs was established through direct testimony.
[32] Although plaintiffs had made known their interest in being
promoted to positions outside of C & M, they did not aggressively
pursue promotional opportunities because, as a result of
Garrison's rebuffs and Reichen and Haddox's failure to follow
through on their inquiries, they apparently believed that to do
so would be futile. The Supreme Court, in International
Brotherhood of Teamsters v. United States, 431 U.S. 324,
97 S.Ct. 1843, 52 L.Ed.2d 396 (1977), easily could have had the
Waterworks in mind when it stated:
If an employer should announce his policy of
discrimination by a sign reading "Whites Only" on the
hiring-office door, his victims would not be limited
to the few who ignored the sign and subjected
themselves to personal rebuffs. The same message can
be communicated to potential applicants more subtly
but just as clearly by an employer's actual practices
 by his consistent discriminatory treatment of
actual applicants, by the manner in which he
publicizes vacancies, his recruitment techniques, his
responses to casual or tentative inquiries, and even
by the racial or ethnic composition of that part of
his work force from which he has discriminatorily
excluded members of minority groups. When a person's
desire for a job is not translated into a formal
application solely because of his unwillingness to
engage in a futile gesture he is . . . a victim of
discrimination. . . .
[33] Id. at 365-66, 97 S.Ct. at 1870 (footnote omitted). In light of
the fact that plaintiffs were deterred from applying  and indeed
were precluded from applying  for available promotions, the
District Court's focus on the reasons the Waterworks gave at
trial for preferring its handpicked candidates over plaintiffs is
misplaced. The Waterworks' post hoc comparisons between the
employees who were promoted and plaintiffs fail to explain why
plaintiffs were not interviewed or considered for the positions,
especially in light of the Waterworks' concession that both
plaintiffs were qualified for the positions sought. Cf. Nanty v.
Barrows Co., 660 F.2d 1327, 1332 (9th Cir. 1981) (where
defendant summarily rejected plaintiff prior to learning of his
qualifications for position, defendant's assertion of plaintiff's
lack of qualifications does not constitute rebuttal of
plaintiff's prima facie case).
[34] This Circuit has held that a near-total absence of blacks from
all but the lowest levels of an employer's work force may, by
itself, constitute a Title VII violation. See Parham,
433 F.2d at 426. Whether such absence is the result of an employer's
failure even to consider blacks for promotion or the result of
the rejection of blacks for pretextual reasons following token
consideration, the Title VII violation is equally established.
[35] At trial the Waterworks went to great lengths to demonstrate
that the revamping of its personnel practices carried out after
the plaintiffs filed their EEOC charges had eliminated any
potential for future discrimination. These improvements include
the posting of jobs, which began in March 1980, about seven
months after the filing of the EEOC charges in this case. Until
December 1980, however, the postings listed "high school
graduate" as a requirement. Reichen testified that this was
intended only to ensure that potential applicants were literate,
and not to exclude non-high school graduates. After December 1980
this requirement was changed to a preference for high school
graduates and in 1982 was dropped entirely.
[36] These changes, however commendable they may be, cannot change
history. Subsequent changes by the Waterworks may be relevant in
determining the appropriate remedy in this case, but they cannot
absolve the Waterworks from liability under Title VII for its
previous discriminatory actions. Parham v. Southwestern Bell
Telephone Co., 433 F.2d 421, 426 (8th Cir. 1970).
[37] IV. Conclusion
[38] The black employees in the Waterworks' work force were
concentrated almost
Page 394
exclusively in the C & M department. C & M is located at least
one and one-half miles from the nearest staffed facility of the
Waterworks. Jobs were not posted between 1972 and 1980 and C & M
employees have little contact with other employees. Thus, C & M
employees had little opportunity to learn of job openings until
they had been filled.
[39] The record reveals that the promotional fortunes of black
employees rested on the views of C & M supervisor Garrison, since
plant superintendent Reichen relied heavily on Garrison's
recommendations in determining whether to promote C & M
employees. Indeed, black employees were told that they needed
Garrison's approval in order to transfer out of C & M. Yet,
whenever black C & M employees asked Garrison about promotional
opportunities outside of C & M, their inquiries were rebuffed or
ignored. The record does not indicate any particularized need for
keeping in construction blacks who had asked about promotional
opportunities other than Garrison's view that blacks preferred to
do that kind of work.
[40] The Waterworks records in evidence reveal that until 1980 there
had never been a black meter reader. At the time of trial there
had never been a black meter repairman or serviceman. The records
show only one instance of a black being promoted out of C & M
prior to 1980. This promotion occurred in 1973. During 1978 and
1979, at least three whites were so promoted; the record shows
that the blacks who had expressed an interest in promotion were
simply not considered for the promotions, despite the Waterwork's
later admission that they were qualified. This maintenance of a
largely segregated work force, by an all-white supervisory staff
which ignored or discouraged black employees' efforts to seek
promotions into all-white or predominantly white job
classifications, constitutes a clear violation of Title VII.
[41] Having carefully reviewed the record, we conclude that the
District Court's finding of no employment discrimination against
plaintiffs on the basis of race is clearly erroneous and is based
on improper legal standards. We further hold that plaintiffs have
established Title VII liability on the part of the Waterworks for
its failure to consider plaintiffs in 1979 for the positions of
meter repairman and plant operator. We reverse and remand the
case to the District Court for consideration and determination of
the remedial aspects of the case.
[fn1] It is unclear how much bacteriological testing is now
performed by plant operators. Loy Haddox, the supervisor of the
plant operation, testified that samples are now sent to the state
for analysis. Trial Transcript (Tr.) at 635.
[fn2] Prior to 1979 only the plant superintendent and other
supervisory personnel were required to be licensed. The Class C
license is the lowest of three grades of state licenses. The
supervisors of the plant were required to have Class A licenses,
which is the highest grade.
[fn3] Danny Lunsford was promoted from Utility II in C & M to
Meter Reader on January 29, 1978. Plaintiff's Exh. 37 at 8. Shane
Drye was promoted from Utility II in C & M to Meter Repairman on
April 9, 1978. Plaintiff's Exh. 40 at 2. Joey Lybrand was
promoted from Temporary Utility II in C & M to Plant Operator on
August 5, 1979. Plaintiff's Exh. 34 at 4.
