F I L E D

United States Court of Appeals

Tenth Circuit

DEC 29 1999

UNITED STATES COURT OF APPEALS

PATRICK FISHER

TENTH CIRCUIT

Clerk

CONNIE MARION,
Plaintiff - Appellant,
v.

No. 98-6286
(W.D. Oklahoma)

THE SLAUGHTER COMPANY,

a Division of R.E. Phelon Co., Inc.,

(D.C. No. CV-97-764-L)

Defendant - Appellee.

ORDER AND JUDGMENT

Before ANDERSON and BRISCOE , Circuit Judges, and

Judge.

KIMBALL , ** District

This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
*

The Honorable Dale A. Kimball, United States District Judge for the
District of Utah, sitting by designation.
**

Connie Marion (plaintiff) brought this Title VII

action 2 against The

Slaughter Company, a division of R.E. Phelon Co., Inc. (TSC), alleging genderbased job and wage discrimination. The case went to trial on the issue of
disparate treatment. At the conclusion of the trial, the jury returned a verdict
against the plaintiff, answering no to the following question on the verdict
form: Has plaintiff Connie Marion proved that her sex was, more likely than
not, a motivating factor in establishing her rate of pay? Appellants App. at 68.
Subsequently, the plaintiff filed post-trial motions for judgment as a matter of law
and seeking a determination in equity by the court that despite the absence of
intentional discrimination, the gender distribution in TSCs work force violated
Title VII under a disparate impact theory. The district court ruled that neither the
pleadings, the law, nor the evidence supported a disparate impact claim, and it
denied relief on the plaintiffs post-trial motions.
On appeal, the plaintiff contends that the district court erred by failing to
rule that the gender composition of the departments in question constituted a per

Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., as
amended by the Civil Rights Act of 1991, 42 U.S.C. 1981A.
1

The complaint also alleged retaliation in violation of Title VII as a result

of the complaint Mrs. Marion filed with the Equal Employment Opportunity
Commission, and violations of the Equal Pay Act, 29 U.S.C. 206(d), 215(a)(3),
216, and the Fair Labor Standards Act, 29 U.S.C. 201 et seq. The district
court granted the defendants motion for summary judgment on those claims.
Mrs. Marion does not pursue those portions of the judgment on appeal.
2

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se violation of Title VII, and by failing to hold or to instruct the jury that the
gender distribution in the workforce amounted to a facially neutral policy having
a prohibited disparate impact. The plaintiff seeks either outright reversal and
entry of judgment in her favor, or a new trial. For the reasons stated below, we
affirm.

BACKGROUND
TSC manufactures electronic testing equipment in a small facility
employing approximately fifty people. The process involves sheet metal work
fabricating cabinets of various sizes, and the assembly of components in the
cabinets. This work has been departmentalized into sheet metal and assembly. In
addition to the shop foreman, the sheet metal department usually includes two
machinists, two or three sheet metal workers, and until recently, a painter. The
assemblers are not further designated by job category.
The work force in both departments is small: on average, six people or less
each, including a supervisor in assembly and a plant foreman in sheet metal.
Turnover is rare in the sheet metal department. In the fifteen-year period from
1983 to 1998, only two or three openings occurred, each filled by a male
applicant. A larger turnover occurred among the assemblers, although no exact
numbers for this same period are furnished by the parties. All those vacancies
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were filled by women. Except for two instances a number of years ago, the work
force in the sheet metal department has been entirely male, and entirely female in
the assembly department. Overall, the wages paid in the sheet metal department
are higher than those paid to the assemblers, but some assemblers make more than
some of the employees in the sheet metal department. The salary of the plant
foreman has always been higher than the salary paid to the supervisor of the
assemblers.
The plaintiff, Connie Marion, started with the company in 1967 following
her graduation from high school. Throughout her career she has worked in the
assembly department. In 1985, following the purchase of the company by R.E.
Phelon Co., Inc., the plaintiff was promoted to the position of assembly
supervisor. Beginning in 1990, she began participating in the hiring process for
assembler positions. In recent years, employees working as assemblers included
the plaintiffs sister, sister-in-law and a woman recommended by the plaintiffs
father. At the time of trial, only three employees other than the plaintiff were
working as assemblers.
Howard Reed started with TSC in 1972 as a sheet metal worker. In 1985,
he was promoted to plant foreman, supervising the sheet metal department. He
was paid more than Mrs. Marion, a fact she discovered and contested in 1995.

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The plaintiff demanded that TSC raise her pay to equal Mr. Reeds pay. That
demand was refused and this suit resulted.
Prior to trial, the district court, in response to cross-motions for summary
judgment, ruled first that the plaintiff had not alleged any failure to hire, promote
or transfer her to the sheet metal department, so the case would be treated as one
asserting disparate pay based on gender. Second, the court ruled that the plaintiff
had not identified any facially neutral employment policy or practice which
disparately impacts women, so the plaintiffs case would be treated as one
alleging disparate treatment. The questions reserved for trial were whether the
Defendant has intentionally engaged in a practice or policy of maintaining
gender-based job categories, and of intentionally discriminating between the male
and female job categories in its pay structure, and further, whether the pay
disparity between the Plaintiff and the male supervisor was motivated by gender
discrimination. Order of Feb. 3, 1998, at 11; Appellants App. at 45.
The case was extensively prepared and fully presented to the jury. The
plaintiff called five witnesses and the defendant six, including expert witnesses
for both sides. The plaintiff focused on her claims: (1) that the work force was
invidiously segregated by gender; (2) that her job and that of the other assemblers
was as complicated and valuable to the employer and in the workplace generally
as the job performed by Mr. Reed and others in the sheet metal department, thus
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the difference in pay was based on gender; and (3) that if her job was less
valuable, then the company had intentionally placed men in the higher paying
jobs.
Both parties presented evidence regarding the job description, functions,
skill, training, and experience of positions in both departments, including the
position of supervisor and that of plant foreman. They introduced evidence
regarding the companys record of filling job vacancies and paying employees,
and expert testimony regarding the value of the various jobs to the company and
generally in the economy. The parties also introduced directly conflicting
testimony regarding alleged statements and attitudes as to gender and jobs in the
two affected departments.
As indicated above, the jury, after assessing the evidence and necessarily
making credibility determinations relating to direct collisions in the testimony,
determined that Mrs. Marion had not proved that her pay was affected by her
gender.
Subsequently, the plaintiff filed a post-trial motion for judgment as a matter
of law or for a new trial. The district court denied the motion, surveying the
evidence and ruling, in relevant part, as follows:

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A. Claim of Discrimination with Regard to Pay

The Court finds that the Defendant offered ample evidence of
legitimate, non-discriminatory reasons for the pay disparity between
the Plaintiff and the plant foreman. The evidence at trial showed
significant differences in the duties required of the two positions.
According to the Defendants evidence, the plant foreman supervised
and trained a more highly skilled group of employees, including sheet
metal workers and machinists. Unlike the assembly supervisor, the
plant foreman is responsible for costly, heavy equipment. The effort
required and the working conditions are different. The plant foreman
works in a noisier, more hazardous environment than the assembly
supervisor. A reasonable jury could find, based upon this evidence,
that the pay differential was attributable to differences in the jobs,
and was not the result of intentional gender discrimination.
....
B. Claim of Discriminatory Classification System
The Plaintiff also argues that the Defendant has failed to rebut
her prima facie showing of a discriminatory classification system at
the Defendants production facility. However, the Plaintiff has not
shown that she was aggrieved or harmed by the alleged
classification system. . . . The Plaintiff offers no evidence that she
ever sought or applied for, or was qualified for, a position in the
sheet metal shop or machine shop, or for the position of plant
foreman. Moreover, it was undisputed at trial that the Plaintiff
participated to some degree in the hiring decisions for the assembly
division, and that she selected only female applicants. The Plaintiff
has failed to show that she was harmed either by being deprived of
an opportunity to work in a particular position or category of jobs, or
by being deprived of the opportunity to work alongside members of
the opposite gender. Under the circumstances, the Court finds that
the Plaintiff has not made a prima facie claim under Title VII for
maintaining a discriminatory job classification system. Thus, the
Plaintiff is not entitled to either judgment as a matter of law or a new
trial on her discriminatory classification claim.
Order of June 15, 1998, at 2-4; Appellants App. at 60-62 (footnotes omitted).
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The plaintiff also sought reconsideration by the court of its earlier rulings
that the case did not present a disparate impact claim. The plaintiff argued that
the question of adverse impact is one committed by statute to the court, not the
jury, and that in deciding the issue the court must defer to factual issues as found
by the jury, while making its [sic] own independent findings on [the disparate
impact claim]. Pl.s Post Trial Br. at 2; Appellants App. at 1512.
The district court responded in its order as follows: Thus, it appears from
the face of the statute that the right to a jury trial under Title VII extends only to a
claim of intentional discrimination or disparate treatment.

See Allison v. Citgo

Petroleum Corp., ___ F.3d ___, 1998 WL 244989 (5th Cir. 1998).

Accordingly

the Court will now reconsider the Plaintiffs disparate impact theory

. Order of

June 15, 1998, at 7; Appellants App. at 65-66 (emphasis added).

The court then surveyed the law and the facts and ruled again that the
plaintiff had failed to establish a prima facie disparate impact claim.

Alternatively, the court found and concluded as follows:

Even if the Plaintiff had identified a specific, facially neutral
policy, the Court would find in favor of the Defendant on the
Plaintiffs disparate impact claim. The preponderance of the
evidence at trial showed that the Defendant had legitimate, nonThe allocation of responsibilities between the court and jury urged by the
plaintiff in the district court and the courts conclusion on that point are not
before us on appeal. We, therefore, take the case as presented without implying
any opinion on the subject.
3

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discriminatory reasons for its hiring practices, including the

Defendants prior experience requirement (or preference) for sheet
metal workers and machinists. Further, the preponderance of the
evidence at trial showed that the composition of the Defendants
work force was largely due to the gender make-up of the pool of
applicants, rather than the disparate effects of any policy of the
Defendant. Thus, the Court concludes that the Plaintiff is not
entitled to judgment on her Title VII claim under a disparate impact
theory.
Id. at 9; Appellants App. at 67.
The district courts order stated in conclusion that the plaintiffs post-trial
motions, including the motion for reconsideration, were denied. This conclusion
is problematic due to the district courts determination in the order itself to
reconsider the disparate impact claim on its merits, then making factual findings
and reaching a conclusion adverse to the plaintiff on that claim.

DISCUSSION
The plaintiffs brief omits a discussion of the standards that guide our
review. However, as to the disparate impact issue, it is axiomatic that statutory
interpretation and application are matters of law that we review de novo, while
crediting facts favorable to the jurys verdict and deferring to facts found by the
See Ortega v. Safeway Stores, Inc.

district court in its disparate impact ruling.

943 F.2d 1230, 1244 n.29 (10th Cir. 1991).

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As to the plaintiffs claim of error in the jury instructions, we review the

record to determine whether the instructions properly set forth the governing law
and provided the jury with an ample understanding of the issues involved; and we
reverse only if, based on a review of the record as a whole, any error is
determined to have been prejudicial.
1125, 1139 (10th Cir. 1999) (citing

See United States v. Roberts , 185 F.3d

Big Horn Coal Co. v. Commonwealth Edison

Co. , 852 F.2d 1259, 1271 n.19 (10th Cir. 1988);

Ramsey v. Culpepper , 738 F.2d

1092, 1098 (10th Cir. 1984)).

A.
A disparate impact claim differs from a disparate treatment claim in that it
does not require a showing of discriminatory intent.

See Ortega , 943 F.2d at

1242. Instead, a plaintiff may establish a prima facie case of disparate impact
discrimination by showing that a specific identifiable employment practice or
policy caused a significant disparate impact on a protected group.
U.S.C. 2000e-2(k)(1)(A)(i);

Hazen Paper Co. v. Biggins

Id. ; accord 42

, 507 U.S. 604, 609

(1993) (quoting International Brotherhood of Teamsters v. United States

, 431

U.S. 324, 335 n.15 (1977) (claims that stress disparate impact involve
employment practices that are facially neutral in their treatment of different
groups but that in fact fall more harshly on one group than another and cannot be
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justified by business necessity));

Bullington v. United Airlines , 186 F.3d 1301,

1311-12 (10th Cir. 1999).

The plaintiff advances essentially one central argument on appeal,
characterized in different ways. She contends that TSC committed a per se
violation of Title VII because the sheet metal department employees were male
and those in the assembly department were female. In support, she relies on 42
U.S.C. 2000e-2(a) which provides, in part, that:
It shall be an unlawful employment practice for an employer
(2) to . . . segregate, or classify his employees or applicants for
employment in any way which would deprive or tend to deprive any
individual of employment opportunities or otherwise adversely affect
his status as an employee, because of such individuals race, color,
religion, sex, or national origin.
42 U.S.C. 2000e-2(a).
Raising the same point in a different way, the plaintiff contends that the
work force gender distribution in this case necessarily resulted from a facially
neutral but prohibited policy or practice

by TSC, i.e., the distribution proves a

In an alternative argument, the plaintiff makes much of the district courts

statement that TSCs hiring practices were facially discriminatory. In reliance
on that statement the plaintiff cites a multitude of cases involving an express
gender-based policy. See, e.g., International Union, United Auto., Aerospace &
Agric. Implement Workers v. Johnson Controls, Inc., 499 U.S. 187, 199 (1991)
(policy excluding women with childbearing capacity from certain job positions).
Taken in context, the district courts statement does not support the plaintiffs
interpretation, and the cases cited by plaintiff with respect to express
(continued...)
4

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practice must have existed. In these arguments the plaintiff does not focus on the
supervisory jobs themselves because there has been no real turnover. Rather, she
argues that the supervisor/foreman jobs are filled from within the respective
departments so that the gender composition of the departments bears on her
situation.
We reject the plaintiffs disparate impact arguments for three reasons, each
of which is sufficient. The first reason is dispositive; the second and third are
alternative reasons for affirmance.
First, and dispositively, the plaintiff lacks standing to complain of the
gender staffing in the sheet metal department, and the jury has ruled out wage
discrimination in her pay in the assembly department. As the district court found,
the plaintiff did not seek and was not denied any position in the sheet metal
department, in particular, the job of plant foreman. Nor did she plead or establish
that she would have sought any such position but for some policy against it.
Thus, assuming for purposes of argument that TSC unlawfully excluded females
from sheet metal jobs, that fact had no effect on the plaintiff.
The district courts ruling, quoted above, correctly states that Title VII only
provides a cause of action to a person who is aggrieved by an unlawful

(...continued)
gender-based policies manifestly do not apply to this case.
4

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employment practice. 42 U.S.C. 2000e-5(f). One who is not injured is not

aggrieved. See Patton v. United Parcel Serv., Inc.

, 910 F. Supp. 1250, 1278 (S.D.

Tex. 1995). That statutory requirement reflects the requirement of standing under
the case or controversy provision of Article III. To invoke a federal courts
jurisdiction a plaintiff must demonstrate three things: (1) injury in fact; (2) a
causal relationship between the injury and the challenged conduct; and (3) a
likelihood that the injury will be redressed by a favorable decision.
City of Albuquerque , 150 F.3d 1271, 1274 (10th Cir. 1998);

See Byers v.

see also Lujan v.

Defenders of Wildlife , 504 U.S. 555, 560-61 (1992). The plaintiff fails these
requirements.
Second, the fact, standing alone, that TSC has all men in sheet metal
positions and all women in assembly is not a per se violation of Title VII; nor is it
self-proving as to the existence of a policy or practice, lawful or otherwise. The
section of the statute to which the plaintiff refers, set out above, refers to
segregation or classification that tends to deprive protected individuals of
employment opportunity or otherwise adversely affect employment status. Thus,
it is not the fact of separate genders in departments that is prohibited, it is the
deprivation of opportunity or adverse effect on status that is prohibited.

Cf. Vant

Hul v. City of Dell Rapids , 462 F. Supp. 828, 833 (D.S.D. 1978) (stating that the
purpose of the Civil Rights Act is not to guarantee that a definite number of
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females are employed, but to achieve equality and eliminate discrimination based
on artificial . . . barriers to employment). That is a matter of proof, and that
burden was not carried here. Furthermore, the terms segregate or classify, as
used in the statute, are verbs denoting purposeful action by the employer.

See

McDonnell v. Cisneros , 84 F.3d 256, 258 (7th Cir. 1996) (under these provisions,
there is no actionable discrimination without something that can be described as
an adverse employment action). Pure nondiscriminatory happenstance, or results
from hiring practices that are justified by business necessity do not fall in this
category.
The district court also correctly pointed out numerous times in this case
that the plaintiff failed to identify an actual policy or practice of TSC relating to
gender in hiring. Statistics alone are insufficient. They must be tied to an
identifiable practice, such as a skewed interview procedure.

See, e.g. , Bullington ,

186 F.3d at 1314.

Furthermore, even when a specific policy or practice is identified and then
statistics are offered we require the data to cross a threshold of reliability before
it can establish even a prima facie case of disparate impact.

Id. at 1313 (citing

Ortega , 943 F.2d at 1243). The reliability or usefulness of any particular

analysis will depend on the surrounding facts and circumstances of the case.
(citing Watson v. Fort Worth Bank & Trust

Id.

, 487 U.S. 977, 995 n.3 (1998)). And,

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some statistical analysis may be so incomplete as to be irrelevant.

Id. at 1314,

n.9. That is the case here.

Third, even if a facially neutral hiring policy led to the gender distribution
in question, the district court found that TSC had legitimate non-discriminatory
reasons for its hiring decisions. Those findings quoted above include experience,
the gender of the applicant pool, low turnover, and job preference. Plaintiffs
claims of discrimination do not overcome these facts necessarily found by the jury
and directly found by the district court.

B.
The plaintiff also claims that the district court erred by refusing to give an
inexorable zero instruction. Under certain circumstances an inference of
discrimination may sometimes be drawn from statistical evidence that no member
of a protected group has ever occupied a particular job or position.
Loyd v. Phillips Bros., Inc.

See , e.g. ,

, 25 F.3d 518, 524 n.4 (7th Cir. 1994). Such evidence

is often referred to as the inexorable zero.

See Teamsters , 431 U.S. at 342

n.23.
The proposed instruction to which the plaintiff refers us states, in part, if
you [the jury] find that defendant has maintained a segregated work force . . . then
you must find for plaintiff on her Title VII claim. Appellants App. at 86. The
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district court stated that an instruction to that effect would be improper, but that
plaintiffs counsel was free to argue the statistics and inferences from those
claimed by the plaintiff. There is no error in that ruling.
Throughout the trial the plaintiffs evidence and argument focused on the
work force distribution, including hiring, and plaintiffs counsel vigorously
pressed the contention on the jury. In addition, the court correctly instructed the
jury on the statutory provisions, on the fact that they could draw inferences from
the evidence, and on the importance of considering both direct and circumstantial
evidence.
In contrast, the plaintiffs view of 42 U.S.C. 2000e-2(a) misstates the
law, as we have explained above. The district court correctly perceived the
fallacy when it refused the proffered instruction.

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CONCLUSION
As our extensive quotes from the district courts opinions will indicate, the
district courts treatment of the issues in this case was careful and cogent. We
have considered all of the plaintiffs arguments and conclude that the district
court did not err.
AFFIRMED.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge

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