Unpublished Disposition, 872 F.2d 432 (9th Cir. 1984)

MEMORANDUM^* 

Plant & Field Service Corporation ("Plant & Field") appeals the grant of summary judgment in favor of the plaintiffs on both their individual and class claims under Title VII. The district court held that Plant & Field discriminates against women in filling temporary field positions. We affirm.

* The great bulk of Plant & Field's work is construction, maintenance and repair services for petroleum companies during scheduled "shutdowns" of refineries. Some of the positions for Plant & Field's service contracts are filled by walk-in applicants who have not previously worked with Plant & Field or have not been referred by one of Plant & Field's customers. This case involves only this category of walk-in applicants. The three categories of jobs at issue are laborers, helpers, and crafts workers (including pipefitters, welders, millwrights and carpenters). The position of laborer is unskilled; the position of helper is semi-skilled; and the craft positions are skilled.

The named plaintiffs are Marjorie Van, Modena Owens, Vinell Davis, and Dorothy Johnson. In declarations in support of the summary judgment motion, all four claim to have applied for positions at Plant & Field "on or about February 5, 1984."

Owen's application states that she is applying for the positions of "helper, fitter, and laborer." Van's application states that she is applying for a craft-helper position. Davis's application states that she is applying for work as a pipefitter helper, firewatch, or "other helper." Johnson's application states that she is applying for firewatch and helper positions.

The plaintiffs claim that Plant & Field's personnel coordinator (Mr. Finn) told them that their applications would be kept on file for six months and that they should call periodically to check whether any jobs were available. They also claim that they called Plant & Field several times, but were never offered employment. Davis claims that Finn interviewed her for about 10 minutes. The other three plaintiffs claim that they were never interviewed.

In their declarations, three of the plaintiffs state that they had heard that Plant & Field does not hire women for field positions. Owens claims that, just prior to entering the employment trailer at Plant & Field, she heard someone in the trailer say "I ain't hiring no women and I ain't hiring no fucking black women."

The district court certified a class as follows:

All women who are past (since July 15, 1983) or present applicants for hire or who were since July 15, 1983 and up to the date of this order [deterred] from applying for hire into laborer, helper or crafts positions with Plant & Field Service Corporation.

The plaintiffs argue that Plant & Field's reliance on "word-of-mouth" recruiting deterred prospective female applicants. The plaintiffs also maintain that Plant & Field's failure to implement objective hiring criteria accounts in part for the low percentage of female applicants who were hired between July 1983 and 1985.

Both parties moved for summary judgment on all of the claims. The district court granted summary judgment for the named plaintiffs on the individual disparate treatment claims. The district court granted summary judgment for the plaintiffs on the class-wide disparate impact claims based solely on the evidence concerning the year 1983. We have jurisdiction pursuant to 28 U.S.C. 1291. We review the grant of summary judgment de novo. Eldredge v. Carpenters 46 Northern California JATC, 833 F.2d 1334, 1336 (9th Cir. 1987), cert. denied, 108 S. Ct. 2857 (1988).

II

A party seeking summary judgment always bears "the responsibility of ... identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has identified evidence suggesting the absence of a genuine issue of material fact, however, the nonmoving party must show that "there is sufficient evidence favoring the nonmoving party for the jury to return a verdict in its favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). If the evidence presented by the nonmoving party is "merely colorable" or "not significantly probative," summary judgment may be granted. Id. at 249-50. See also Fed.R.Civ.Proc. 56(e) (when a properly submitted motion for summary judgment is made, the nonmoving party "must set forth specific facts showing that there is a genuine issue for trial").

The plaintiffs introduced ample evidence to establish a prima facie case of disparate treatment and disparate impact. Plant & Field therefore had the burden of presenting evidence rebutting the plaintiffs' prima facie treatment and impact cases. Since Plant & Field failed to do so, it did not make a sufficient showing under Liberty Lobby, 477 U.S. at 249-50; the plaintiffs were therefore entitled to summary judgment.

Plant & Field first argues that the plaintiffs failed to make out a prima facie case under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under McDonnell Douglas, a plaintiff may establish a prima facie case of disparate treatment by showing that she is a member of a group protected under Title VII and that she "applied and was qualified for the job for which the employer was seeking applicants ... was rejected ... [and] after [her] rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications." Id. at 802. The burden of establishing a prima facie case "is not onerous." Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).

Plant & Field does not dispute that the plaintiffs applied for positions at Plant & Field, were qualified for such positions, and were rejected. Plant & Field's sole challenge to the plaintiffs' prima facie case concerns the so-called "job-opening" requirement. According to Plant & Field, a plaintiff must show that there were positions open on the day she applied in order to establish a prima facie case, and there were no open positions on the day the plaintiffs applied at Plant & Field.

Plant & Field relies on Chavez v. Tempe U. High School Dist., 565 F.2d 1087, 1091 (9th Cir. 1977) and Gay v. Waiters' and Dairy Lunchmen's Union, 694 F.2d 531, 547-48 (9th Cir. 1982). In Chavez, we upheld the district court's finding that the plaintiff applied for the position of language department chairperson after it had been filled and accordingly concluded that the plaintiff's "prima facie case fails." In Gay, we held that the plaintiffs' prima facie case failed because the plaintiffs had not shown that there were any openings for waiters at the time they completed applications.

These cases are inapposite. The plaintiffs in Gay and in Chavez were never informed that their applications would be held open or considered active for any specified period of time. In this case, the plaintiffs have declared that they were told by Plant & Field's personnel coordinator that their applications would be kept for six months and that they were told to call regularly in order to inquire about openings. Moreover, the application forms filled out by each plaintiff states that "This application will be active only for six months from date filed." Under these circumstances, the plaintiffs were entitled to assume that their applications would be considered active for six months. Plant & Field offered nothing to rebut the plaintiffs' account of their conversations with Plant & Field's personnel coordinator. While Plant & Field notes that the plaintiffs applied for positions about the time of the Champlin Oil shutdown, no one suggests that the plaintiffs were interested solely in work for that shutdown.

Moreover, the record clearly indicates that men were hired for jobs for which the plaintiffs qualified within just a few weeks after their applications.¹  For example, on February 13, Plant & Field hired J. Sweitzer for the position of craft helper, a position for which Owens, Van, and Davis had applied. On February 20, Plant & Field hired M. Borja in part to work as helper, a position for which Owens, Davis, and Johnson had applied.

Since the plaintiffs made out a prima facie case of disparate treatment, Plant & Field had the burden of producing a "legitimate, nondiscriminatory" reason for its decision not to hire the plaintiffs. A defendant's reason must not be vague or speculative: "the defendant must clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiff's rejection.... the defendant's explanation of its legitimate reasons must be clear and reasonably specific." Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 255, 258 (1980).

Plant & Field's only "reason" for not hiring plaintiffs is too speculative to satisfy Burdine 's requirement of a "clear and reasonably specific" statement of a legitimate, nondiscriminatory reason. Instead, Plant & Field argues that "timing between day of application and employment vacancy is very important in terms of likelihood of employment," Appellant's Brief at 12, and in effect asks this court to speculate that the timing of the plaintiffs' applications accounts for the fact that the plaintiffs were not hired.²  We refuse to do so. See generally Crawford v. Western Electric Company, Inc., 745 F.2d 1373, 1381 (11th Cir. 1984) (holding that the defendant cannot meet its burden of production with supervisors' unfavorable evaluations of the plaintiff where it is unclear whether the evaluations referred to his work prior to the alleged act of discrimination in 1974, court stated that " [t]his court will not engage in speculation and conjecture as to the period of time [the supervisors'] testimony relates to ... the general non-time specific ... evaluations proffered in this case are legally insufficient to meet [the defendant's] burden of production"); Uviedo v. Steves Sash & Door Co., 738 F.2d 1425, 1430 (5th Cir. 1984) (rejecting an employer's reason as too speculative to satisfy its burden of production).

The fact that Plant & Field was unable to offer a definite, specific reason for its failure to hire the plaintiffs suggests that its decisions were not guided by legitimate, nondiscriminatory motives. See M. Player, Employment Discrimination Law at 335 (1988) (one of the reasons for Burdine 's "clear and reasonably specific" requirement is that " [v]agueness ... suggests the absence of any bona fide reason and the possibility of an underlying improper motivation"). Moreover, Plant & Field's explanation of its decision not to hire the plaintiffs failed to give the plaintiffs specifics which they could rebut during the "pretext" stage of the litigation. For example, if Plant & Field had stated that it hired particular, identified men because it received their applications just as a vacancy became known, then the plaintiffs would have had particular factual assertions to attack during the "pretext" phase of the litigation. See Burdine, 450 U.S. at 255-56 (placing "the clear and reasonably specific" burden of production on the defendant serves "to frame the factual issue with sufficient clarity so that the plaintiff will have a full and fair opportunity to demonstrate pretext"). In sum, the district court was fully justified in its rejection of Plant & Field's "reason" for not hiring the plaintiffs.

Plant & Field also argues that it met its burden of proof by producing Dr. Anne Davis's statistical analysis regarding the representation of women in Plant & Field's workforce in 1984. Davis concluded that, with respect to the year 1984, "there was no relationship between the sex of an individual in the relevant labor market and whether or not they applied for a position with Plant & Field ... [or] whether or not they were hired by Plant & Field."

We reject Plant & Field's contention that evidence of a balanced workforce can satisfy the employer's burden of production. As the Supreme Court has suggested, the purposes of Title VII would be compromised if a defendant were permitted to rebut a prima facie case of disparate treatment solely on the basis of statistical evidence that the defendant's workforce is balanced. "A racially balanced workforce cannot immunize an employer from liability for specific acts of discrimination.... Title VII is to provide an equal opportunity for each applicant regardless of race, without regard to whether members of the applicant's race are already proportionately represented in the workforce." Furnco Construction Corp. v. Waters, 438 U.S. 567, 579 (1978). See also Cross v. United States Postal Service, 639 F.2d 409, 414 (8th Cir. 1981) (" [w]hile it is true that statistical evidence of a nondiscriminatory hiring pattern has some relevance in negating an inference of discriminatory motive, such evidence does not, by itself, rebut the prima facie case of a specific individual in a 'disparate treatment' case"); Joshi v. Florida State University, 646 F.2d 981, 990 n. 3 (5th Cir. 1981) (same).

Plant & Field argues that the plaintiffs failed to establish a prima facie case of disparate impact. In order to make out a prima facie case of disparate impact, a plaintiff must (1) show a significant disparate impact on a protected class; (2) identify specific employment practices; and (3) show the causal relationship between the identified practices and the disparate impact. Atonio v. Wards Cove Packing Company, 810 F.2d 1477, 1482 (9th Cir. 1987) (en banc), cert. granted 108 S. Ct. 2896 (1988). Subjective employment practices, such as word-of-mouth hiring, may form the basis of disparate impact action. See Watson v. Fort Worth Bank & Trust, 108 S. Ct. 2777, 2787 (1988) (" [w]e are also persuaded that disparate impact analysis is in principle no less applicable to subjective employment criteria than to objective or standardized tests"); Atonio, 810 F.2d at 1478.

The plaintiffs satisfied all three requirements with respect to the period July 15, 1983 to December 31, 1983. The plaintiffs' expert, Dr. James J. Kirkpatrick, examined several types of statistical data and concluded that women were grossly under-represented in Plant & Field's workforce during 1983. He also concluded that "the underutilization of women" was probably due to the two specific employment practices identified by the plaintiffs--nearly exclusive reliance on word-of-mouth recruiting and the absence of objective hiring criteria. Plant & Field itself underscores the importance of access to "grapevine" information by arguing that positions are generally filled by persons who apply just as a shutdown is about to begin. Significantly, none of the four named plaintiffs knew that a shutdown at Champlin Oil was imminent; for that reason, they applied too late for positions at that shutdown.

Plant & Field made no meaningful effort to rebut the plaintiffs' prima facie case of disparate impact. Plant & Field's statistical expert, Dr. Anne Davis, declared that she is unable to discern whether women were under-represented in Plant & Field's workforce between July 15, 1983 to December 31, 1983 because " [p]laintiffs' data does not reveal whether it is confined to the certified period for 1983." Since all of the plaintiffs' data expressly refers to the certified period for 1983 except for the data on hiring at Plant & Field, we read Davis' declaration as criticizing the fact that the plaintiffs' data does not specify whether the men and women hired by Plant & Field in 1983 were hired before or after July 15. However, Dr. Kirkpatrick interpreted the ambiguity in the data in Plant & Field's favor by assuming that the four women hired in 1983 were all hired during the certified period. Plant & Field thus cannot rebut Dr. Kirkpatrick's conclusion that women were grossly under-represented in its workforce between July 15, 1983 and December 31, 1983 with Dr. Davis' criticism of the plaintiffs' data.

Plant & Field did not deny that it relies heavily on word-of-mouth hiring and that it has no objective hiring criteria. Nor did Plant & Field introduce any evidence suggesting that any under-representation of women in 1983 was due to something other than the employment practices specified by the plaintiffs. Finally, Plant & Field has never even suggested that its employment practices are "business necessities."

An employer has the burden of producing evidence rebutting the plaintiff's prima facie case of disparate impact. Atonio, 810 F.2d at 1485. Plant & Field did not produce any probative evidence rebutting the plaintiffs' prima facie case of disparate impact for the period July 15, 1983 to December 31, 1983. The district court's grant of summary judgment was therefore proper.

The district court's order is affirmed in all respects.