On Appeal from the United States District Court for the Western District of Pennsylvania D.C. Civil No. 87-1817.
Becker, Cowen and Seitz, Circuit Judges.
The appellant, the Equal Employment Opportunity Commission ("EEOC"), appeals from the district court's grant of a motion to dismiss against one of the charging parties, Steven Brown, and a judgment entered against the other, Willie Brown, in its suit alleging racial discrimination in the hiring practices of the appellee, Metal Service Company ("Metal Service"), in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a) (1982). The district court held that the EEOC had failed to make out a prima facie case of racial discrimination because it failed to prove by a preponderance of the evidence that the charging parties had applied for employment with the company. Because we find that the EEOC has made out its prima facie case, we will reverse the judgments in favor of Metal Service and remand for further proceedings in the district court.
The facts of this case are not complex. Metal Service is a small Pennsylvania corporation doing business in Apollo, Pennsylvania. The company's principal activity is the cleaning and painting of structural steel. Between 1984 and 1986, the workforce of Metal Service was all white.
In 1983, Metal Service entered into an oral agreement with the Pennsylvania Job Service ("Job Service") agency under which Job Service referred employment applicants to the company as needed. Job Service is a state agency which functions basically as a labor exchange where qualified persons looking for work are matched with job openings listed by employers. The type of contract entered into by Metal Service and the employment agency was a total placement agreement which required both that the company do all its hiring through Job Service and that the agency keep all the employment applications for the company.
Pursuant to the agreement, Metal Service posted a Job Service decal on its office door referring job applicants to the Job Service office in nearby Vandergrift, PA. The company also posted its own handwritten sign on the door advising job seekers that no employment applications were being accepted directly by the company. The Job Service decal was removed by a Job Service employee sometime in 1985 when it was discovered that Metal Service had been hiring employees outside the agency's referral system. However, the decal was later replaced in early 1986 after the company and Job Service came to a new understanding. Except for occasional periods when the office door was being painted, Metal Service's handwritten sign remained in place through 1987.
In its case-in-chief, the EEOC put in evidence to show that both Willie and Steven Brown, who are black brothers living near the company, attempted to apply for a job with the company in 1984. Steven Brown testified that he went to Metal Service around May or June of 1984, but found the above-described sign on the company's office door. He then went to Job Service to apply for employment at the company. He testified that at Job Service he filled out an employment card indicating his desire for a job at Metal Service. In addition, Steven Brown stated that he periodically returned to Job Service to check on his application. Steven Brown was never called for a job interview at the company.
Likewise, Willie Brown testified that he applied for a job at Metal Service in the summer of 1984 and was given an application form to fill out by a secretary in the company's office. Willie Brown told the court that the company's application consisted of a one page form containing questions on both sides, one of which asked for the race of the applicant. After not hearing from the company, Willie Brown testified that he returned to Metal Service several months later and was then told that he must apply for employment at Job Service. Around November, 1984, Willie Brown went to Job Service and filled out an employment card indicating that he also desired a job with Metal Service.
In addition, Willie Brown stated that he made several other attempts in 1985 to obtain employment with the company directly. His first attempt was after he read an article in the newspaper that the company had received a large loan to expand its steel operations, and the second was after he heard that a white worker had recently been hired by the company. Each time he was told that Metal Service does not hire directly and that he must apply through Job Service.*fn1 Willie Brown was never called for a job interview with the company.
In its case-in-chief, the EEOC also presented the testimony of seven present or former white employees of Metal Service, six of whom testified that they got their jobs with the company through word-of-mouth hiring.*fn2 These six employees had applied for a job directly with the company and not through Job Service. These word-of-mouth hirings occurred between May, 1984, and June, 1985.
At the close of the EEOC's case, Metal Service moved for a directed verdict*fn3 as to both Steven and Willie Brown on the basis that the EEOC had not presented any evidence that Job Service had referred their applications to the company. The company argued that since Metal Service had not received their applications from Job Service, the company could not have discriminated against the Brown brothers in its hiring decisions.
The district court agreed as to Steven Brown and granted the company a directed verdict. App. at 257, 264. But with regard to Willie Brown, the court reserved judgment on the issue because of evidence in the record that Willie had filled out an application for employment directly with the company. At that point in the trial, the district court instructed Metal Service to place into evidence any information it had relevant to the question of whether Willie Brown actually applied for a job directly with the company. App. at 264-65.
Thereafter, Metal Service called as a witness Sheila Martin, the general manager in charge of hiring at Metal Service, who testified that, while the company's application form had changed slightly over the years, during 1984-85 it was indeed one page, with questions on both sides, but that it did not ask the applicant to state his race. In addition, none of the company's application forms already in evidence in connection with the white word-of-mouth applicants contained a question as to the applicant's race. Sheila Martin also stated that the company retains employment applications from ...