D.C. Civil Action No. 69-225. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA.
Biggs and Gibbons, Circuit Judges and Huyett, District Judge. Gibbons, Circuit Judge, concurring.
The plaintiffs-appellees cross-appellants, Mrs. Josephine Jurinko and Mrs. Ida M. Seibert, alleged in Count II of their complaint*fn1 filed against Edwin L. Wiegand Company (Wiegand) that Wiegand refused to employ them in its factory because they were married women, thereby discriminating against them on the basis of sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a) (1).*fn2 Jurisdiction is based on 42 U.S.C. § 2000e-5(f) and 28 U.S.C. §§ 1343(3) and 1331(a).
The Equal Employment Opportunity Commission found probable cause to believe that Wiegand had engaged in a discriminatory employment practice but could not mediate the matter.*fn3 On February 14, 1969, Wiegand offered employment to Mrs. Jurinko and Mrs. Siebert, but on the advice of a representative of EEOC both rejected the offer. This action was instituted on February 28, 1969, and after trial to the court, Judge Teitelbaum found that Wiegand had no general policy of discriminating against married women, but he did find that Mrs. Jurinko and Mrs. Siebert were discriminated against and that such discrimination was not based on a "bona fide occupational qualification."*fn4 Judgment was entered in the plaintiffs' favor awarding them $15,784 representing back wages, together with an award of an additional sum in the amount of $3,946 for attorney fees. Judge Teitelbaum also directed Wiegand to offer Mrs. Jurinko and Mrs. Siebert employment "at the next nearest opportunity."*fn5,*fn6
Wiegand appealed the court's judgment at our No. 72-1044, asserting (1) that the plaintiffs' claims are barred because charges were not filed with the Commission within 90 days of the occurrence of the alleged unlawful employment practice as required by 42 U.S.C. § 2000e-5(d), (2) that the evidence does not support the district court's conclusion that the plaintiffs were discriminated against on account of their marital status, (3) that if there was such discrimination, it was based on a "bona fide occupational qualification" which the plaintiffs did not satisfy, and (4) that the damages awarded plaintiff Siebert were excessive. The plaintiffs have appealed at our No. 72-1043 insofar as the judgment holds that Wiegand's general hiring policy for production department jobs did not discriminate against married women and insofar as it denied recovery of back pay after Feb. 14, 1969, and held that plaintiffs' reinstatement should be as new employees without seniority. It should be noted that the plaintiffs have not appealed from the failure of the district court to treat this suit as a class action under Rule 23, F.R.Civ.P., 28 U.S.C.*fn7 A pre-trial stipulation was entered into by the parties and filed, and reference will be made to it from time to time. The material facts are substantially uncontested, and as Judge Teitelbaum stated: "It is the inferences to be drawn or not to be drawn from the facts that are the core of the controversy." 331 F. Supp. at 1185.
According to the stipulation the plaintiffs were employees of Wiegand for a number of years prior to December 10, 1953; that at that time both were discharged from employment because of their respective marriages; that Wiegand's policy of discharging women upon their marriages and of not hiring married women was instituted at the close of World War II for the purpose of providing jobs for "bread winners" returning after the war and that this policy was lawful at least until July 2, 1965, the effective date of the Civil Rights Act of 1964. In July, 1965, the plaintiffs approached Wiegand's Personnel Director and requested that they be reinstated in their former jobs. The Personnel Director refused this request, stating they were not entitled to reinstatement and in any event the company was not then hiring employees. Thereafter, on September 7, 1965, Mrs. Jurinko submitted a written application for employment with Wiegand, and Mrs. Seibert submitted a similar request to Wiegand on January 10, 1966. At this time, both plaintiffs were informed that the company was not then hiring any employees but that their applications would be kept on file for future reference. In June, 1966, the plaintiffs again contacted the Personnel Director seeking employment and were again informed that Wiegand was not hiring at that time. The plaintiffs filed a charge of discrimination against Wiegand with the Equal Employment Opportunity Commission on July 29, 1966.
The district court stated as follows in respect to the contention of Wiegand that the charges were not timely filed: "The company contends that because the charge was filed with the Commission more than 90 days after the original meeting in June of 1965, it was untimely, and therefore this Court lacks jurisdiction of this action. Section 2000e-5(d) of 42 U.S.C. does provide that charges with the Commission shall be filed within 90 days of the occurrence of the alleged unlawful employment practice. It is clear, however, that the plaintiffs' reapplication in June of 1966 represents the occurrence of an alleged unlawful employment practice, and consequently this Court is not without jurisdiction. See Cox v. United States Gypsum Co., 409 F.2d 289 (C.A. 7, 1969)." 331 F. Supp. at 1186, n. 3.
We are in agreement with the district court's conclusion, for there were three separate and distinct acts, the latter of which occurred within the 90-day period. Therefore the 90-day statutory period commenced to run anew from the last allegedly unlawful employment practice. Molybdenum Corp. of America v. Equal Employment Opportunity Commission, 457 F.2d 935 (10 Cir. 1972). The ground raised by Wiegand, that the plaintiffs' failed to timely pursue their administrative remedy, is thus without merit.*fn8
Turning to the contentions in the matter of the district court's conclusions regarding discrimination, the statistical evidence and the attitude of Wiegand's personnel directors are well set out in Judge Teitelbaum's opinion, 331 F. Supp. at 1186, as follows: "Statistically, the evidence is that (1) at all relevant times the company employed, in production, approximately 900 persons; (2) of these approximately 900 persons, 59 were women on July 2, 1965, 58 on May 15, 1966, 56 on December 31, 1966, and 44 on March 1, 1971; (3) at all relevant times, of the women employed only three were married; (4) at all relevant times, only two married women, other than the plaintiffs, applied for employment in production [It must be noted in this regard that both of these women were hired in January of 1969, after the Commission had notified the plaintiffs of their right to sue Wiegand under the Civil Rights Act.]; and (5) during the period from May 15, 1966 to December 31, 1966, forty-three new employees were hired, all of whom were males. There is no evidence of the qualifications of the forty-three males hired. There is evidence, however, that the plaintiffs' applications were on file during the period from May 15 to December 31, 1966, that the company was aware of their applications, and that prior experience and a good work record with the company (which each plaintiff had) were qualifications which favored an applicant. Asked why the plaintiffs had not been hired during that period, the then Personnel Director testified that he '* * * really [didn't] know * * *' but that it '* * * could [have been] many reasons * * *.' A later Personnel Director testified that the company's practice of permitting 'bumping' (by seniority) for each new job opening in production made it mandatory that new employees be physically able to perform each and every job in production (since the new employees were ultimately 'bumped' to the most physically taxing jobs) and that the assumption under which the company operated was that women were physically unable to perform each and every production job. In conclusion, both Personnel Directors testified that the company had not pursued a policy of discrimination against married women."
On the basis of the above facts, the court concluded: "We do not think however, that the statistical evidence introduced in this case reasonably supports a conclusion that the company's general hiring policy discriminated against married women. The low number of married women employees of the company must be considered in light of the company's pre-Civil Rights Act policy and the number of married women who have applied for employment since the termination of that policy. The uncontradicted testimony is that from 1965 through 1968, the plaintiffs were the only married women who applied to the company for work in production. Two others apparently applied in early 1969 and both were offered employment. A general policy of discriminatory hiring cannot logically be concluded. With specific regard to the plaintiffs, however, the evidence of the company's extensive hiring of men during a period when the plaintiffs, with prior experience and good work records, were actively seeking employment from the company, we think is sufficient to support, if only preponderantly, an unexplained inference of discrimination." 331 F. Supp. at 1187.
The record shows that if Wiegand did change its prior policy of not employing married women in the production department*fn9 it kept remarkably silent about it. Its Personnel Director, Bushnell, did state to the union on a form supplied by the Government that the company was obeying the Civil Rights Act of 1964, but Bushnell did not tell the union that the company was "going to be hiring married women from here on in." Such forms were posted on the bulletin boards, but again, Bushnell never posted any notices that female employees in the production department would no longer be discharged upon marriage. Nevertheless, we cannot say that the district court's conclusion that no general discriminatory hiring policy existed was unwarranted.
Nor was the evidence insufficient to support the finding of a violation of Title VII as to these particular plaintiffs. The evidence, especially the fact that during the six month period following the plaintiffs' application (and when the plaintiffs were told that the company was not then hiring), 43 new male employees were hired despite the facts of plaintiffs' prior experience and good work records with the company, does support an inference of discrimination as the district court found. Plaintiffs made out a prima facie case of unlawful discrimination, thereby shifting the onus of going forward with evidence to Wiegand. As was said in Hodgson v. First Federal Savings and Loan Association of Broward County, Florida, 455 F.2d 818, 822 (5 Cir. 1972), "In discrimination cases the law with respect to burden of proof is well settled. The plaintiff is required to make out a prima facie case of unlawful discrimination at which point the burden shifts to the defendant to justify the existence of any disparities. See, e.g., Norris v. Alabama, 294 U.S. 587, 55 S. Ct. 579, 79 L. Ed. 1074 (1935); Muniz v. Beto, 434 F.2d 697 (CA5, 1970); Weeks v. Southern Bell Telephone and Telegraph Company, 408 F.2d 228 (CA5, 1969); Gates v. Georgia-Pacific Corporation, 326 F. Supp. 397 (D.C.D.Or. 1970). Once the plaintiff has made out his prima facie case we look to the defendant for an explanation since he is in a position to know whether he failed to hire a person for reasons which would exonerate him." See also United States v. Hayes International Corporation, 456 F.2d 112 (5 Cir. 1971). In the case at bar, Wiegand was unable to offer any explanation for its having filled its 43 job vacancies solely with men to the exclusion of the plaintiffs,*fn10 and it failed to rebut the inference, i.e., prima facie case, of ...