for general unskilled labor jobs and hired 215 (7.96%). Of the 2,700 applications in 1976, 220 (8.1%) were from females.
30. Of the 362 people hired in 1975 for unskilled labor jobs, 18 (4.97%) were females, 14 (3.86%) of which were hired to full-time jobs. Of the 215 persons hired for unskilled labor jobs in 1976, 14 (6.51%) were females, of which 11 (5.12%) were hired to full-time jobs.
31. Ralph Boden testified that the defendant had an employment policy which he as employment supervisor followed which was non-discriminatory, inter alia, as to sex. There was no evidence, direct or circumstantial, which contradicted this testimony; in fact, the foregoing statistics for the years 1975 and 1976 essentially corroborate it, and the court therefore accepts it as truthful.
At the trial plaintiff, a female, proved that (1) she applied and was qualified for one of the jobs for which defendant was seeking applicants, (2) she was not hired for any of the job vacancies, and (3) the defendant subsequently hired males to fill the jobs for which plaintiff was a qualified applicant. Thus, plaintiff established a prima facie case of discrimination under the "disparate treatment" theory of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).
The plaintiff having established a prima facie case, the burden then shifted to the defendant "to articulate some legitimate, non-discriminatory reason for the . . . (plaintiff's) rejection." McDonnell Douglas, supra, p. 802, 93 S. Ct. p. 1824, Furnco Construction Corp. v. Waters, 438 U.S. 567, 578, 98 S. Ct. 2943, 2950, 57 L. Ed. 2d 957, 968 (1978).
The defendant met this burden. It produced evidence that one of the males who was hired had applied for work on a number of occasions over a period of years and that although he was an experienced laborer his height made him unsuitable for underground work, so when outside work became available he was hired. As to the second male hired, the defendant proved that in addition to being an experienced laborer he also was a qualified bulldozer operator. This made him particularly valuable as an outside laborer at the preparation plant, since bulldozers were used extensively there and he could substitute as an operator when the need arose. The third male hired was also an experienced laborer and, incidentally, a person from a minority group (black).
Mr. Boden testified that he was not motivated by any sexually discriminatory reasons in not hiring the plaintiff, that the company had a policy of non-discriminatory hiring practices which he followed, and that although he was not disputing plaintiff's Qualification to do laborer work, her application indicated that her sole work experience was as a cosmetologist and revealed no experience at manual labor.
Mr. Boden's testimony was corroborated by statistics which indicated that for the years 1975 and 1976 the percentage of females hired by defendant for laboring jobs favorably approximated the percentage of females who applied for those jobs. See Furnco, 580, 98 S. Ct. p. 2951, 57 L. Ed. 2d p. 969.
Plaintiff contended that there was a practice at the coal preparation plant of hiring applicants who were recommended for employment by the plant superintendent and argued that this constituted a form of nepotism which resulted in a "disparate impact" on female applicants, as prohibited by Griggs v. Duke Power Co., 401 U.S. 424, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971), Furnco, 438 U.S. p. 572, 98 S. Ct. p. 2947, 57 L. Ed. 2d p. 964. Although two of the three males hired as outside laborers at the coal preparation plant had been recommended for employment by the superintendent of that facility, there was no evidence that he was motivated by any sexually discriminatory considerations or that this was a practice to any significant extent. In addition, the employment supervisor testified that although he did receive recommendations from time to time from the superintendent, these were not always followed and, in effect, the employment supervisor was the individual who made the ultimate determination as to whether or not an applicant would be hired. In any event, we find nothing improper, per se, in a plant manager recommending persons for employment in the facility which he operates, and no evidence was produced in this case which even suggested that this "practice" had a "disparate impact" on female applicants or any other group as prohibited by Griggs. We therefore reject plaintiff's "disparate impact" theory.
We conclude from the foregoing that the defendant had a McDonnell Douglas Furnco "legitimate non-discriminatory reason" for "rejecting" the plaintiff and hiring the males here in question; namely, the natural, reasonable, and legitimate desire of an employer to hire qualified experienced over qualified inexperienced people to fill job vacancies.
The plaintiff, of course, could have come forward to produce evidence that the legitimate non-discriminatory reasons proffered for her rejection were not valid and were merely a pretext for discrimination. See Furnco at p. 577, 98 S. Ct. at p. 2950, 57 L. Ed. 2d at p. 968. But she did not, and we are left with the case in the posture above indicated, which we believe requires a finding for the defendant.
CONCLUSIONS OF LAW
1. This Court has jurisdiction over the parties and subject matter of this proceeding.
2. Venue properly lies in the Western District of Pennsylvania.
3. The defendant did not violate Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., in not hiring the plaintiff as an outside laborer.
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