                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                 ________________

                                    No. 98-2187
                                 ________________

Cota B. Allen; Leon Bee;                 *
Rickey Billingsley; Charles Doyle;       *
Mason C. Foster; Lawrence                *
Hancock; Jim Ingraham; Charles           *      Appeal from the United States
Hester; Joe M. Lewis; Larry              *      District Court for the
McClain; Claude Miller; William          *      Eastern District of Arkansas.
Morris; Ernest Pointer, III; Clifford    *
W. Robinson; Andrew Taylor;              *
Willis Warner; Ira L. Whitfield;         *
Bernard Wooten,                          *
                                         *
             Appellants,                 *
                                         *
      v.                                 *
                                         *
Entergy Corporation; Arkansas            *
Power and Light Company;                 *
International Brotherhood of             *
Electrical Workers, Local 750;           *
International Brotherhood of             *
Electrical Workers, Local 647,           *
                                         *
             Appellees.                  *


                                 ________________

                                 Submitted: February 12, 1999
                                     Filed: June 22, 1999
                                 ________________
Before WOLLMAN, Chief Judge,1 LOKEN, and HANSEN, Circuit Judges.
                          ________________

HANSEN, Circuit Judge.

       The plaintiffs are African-American employees who, as a result of a reduction
in force, were laid off from their employment at one of two electrical generating plants
owned by Entergy Corporation, formerly known as Arkansas Power and Light. The
plaintiffs brought this race discrimination suit, challenging the validity of the selection
procedure used by Entergy Corporation to determine which employees to lay off. They
also argued that their union (two local chapters of the International Brotherhood of
Electrical Workers) did not adequately represent their interests when it acquiesced in
the selection procedure. The district court2 granted summary judgment in favor of
Entergy Corporation and the union. We affirm.

                                           I.

        The district court states the undisputed facts as follows. The plaintiffs were laid
off in a reduction in force conducted by Entergy Corporation in May 1995. To
facilitate the layoff, the company and the union negotiated a side agreement to the
existing collective bargaining agreement, requiring all employees to take a selection test
to determine which employees would be laid off. Two aptitude tests were used for the
selection process--the Plant Operator Selection System (POSS) and the Power Plant
Maintenance Positions Selection System (MASS)--which had been used for years by
Arkansas Power and Light in the hiring process. The company agreed to allow each

      1
        The Honorable Roger L. Wollman succeeded the Honorable Pasco M. Bowman
as Chief Judge of the United States Court of Appeals for the Eighth Circuit at the end
of the day on April 23, 1999.
      2
       The Honorable Stephen M. Reasoner, United States District Judge for the
Eastern District of Arkansas.
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person to take the test twice if necessary. The plaintiffs did not pass the test after two
attempts and were laid off, as were white employees who failed the test twice. Those
who passed the selection test, including several African-American employees in the
same seniority classifications as the plaintiffs, were retained and placed in jobs by
seniority.

       The plaintiffs brought this Title VII race discrimination suit against the union and
the company, contending that the selection tests had a disparate impact on African-
American employees, that the tests were not job related, and that the union improperly
bargained away the use of the less discriminatory seniority system with which to make
the layoff selections. The company and the union filed motions for summary judgment,
contending that they negotiated the selection process in good faith and that the selection
tests were properly validated as job related according to EEOC guidelines. The district
court granted summary judgment to the company and the union, concluding that the
plaintiffs failed to offer any proof to counter the validity and job relatedness of the
aptitude tests. The plaintiffs now appeal.

                                            II.

       We review de novo the district court’s grant of summary judgment, applying the
same standards as the district court. Mayard v. Hopwood, 105 F.3d 1226, 1227 (8th
Cir. 1997). Summary judgment is appropriate if the record “show[s] that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment
as a matter of law.” Fed. R. Civ. P. 56(c). We view the facts and the inferences to be
drawn from those facts in the light most favorable to the nonmoving party. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A party resisting
a properly supported summary judgment motion may not rest upon the mere allegations
or denials of the pleadings, but by affidavit or otherwise as provided by Rule 56 must
set forth specific facts showing the existence of a genuine issue for trial. See Dancy


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v. Hyster Co., 127 F.3d 649, 653 (8th Cir. 1997), cert. denied, 118 S. Ct. 1186 (1998);
see also Fed. R. Civ. P. 56(e).

       "Title VII forbids the use of employment tests that are discriminatory in effect
unless the employer meets 'the burden of showing that any given requirement has a
manifest relationship to the employment in question.'" Albemarle Paper Co. v. Moody,
422 U.S. 405, 425 (1975) (quoting Griggs v. Duke Power Co., 401 U.S. 424, 432
(1971)) (alterations omitted). The standard of proof articulated in the Griggs case and
codified in 42 U.S.C. § 2000e-2(k) states that where the plaintiff has made a prima
facie case of disparate impact from a selection procedure, the burden then shifts to the
employer to justify the procedure by showing that it is related to safe and efficient job
performance. See Donnell v. General Motors Corp., 576 F.2d 1292, 1299 (8th Cir.
1978). Once the employer meets this burden, the plaintiff must show that an alternative
selection method exists, having substantial validity and less of an adverse impact; if
such an alternative exists, the employer must choose the less discriminatory method.
See Hawkins v. Anheuser-Busch Inc., 697 F.2d 810, 816 (8th Cir. 1983).

       The parties apparently concede for summary judgment purposes that the
plaintiffs set forth a prima facie case of disparate impact resulting from the testing
procedures. The plaintiffs argue on appeal that there remains a material issue of fact
concerning whether the company satisfied its burden of demonstrating that the selection
tests were sufficiently related to the specific jobs the plaintiffs sought. In support of
summary judgment, the company submitted the affidavit of Dr. David J. Kleinke, a
psychologist employed as Director of Employment Testing for the Edison Electric
Institute, which developed the tests used here. His affidavit explains the development
of the tests. For each test, a checklist of crucial tasks was compiled by questioning
thousands of plant operators and maintenance workers in fossil fuel power plants
throughout the country. Based on this checklist of important tasks, an experimental
testing battery was developed and sampled in the industry. Performance evaluations
were mathematically correlated with the test results and confirmed that higher test

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scores indicated a likelihood of better job performance. Dr. Kleinke stated that the
tests enable power plants to choose employees who are more readily trainable and who
work in a safer fashion, minimizing accidents. The union also submitted the affidavits
of union business managers Gary Mitchell and Bill Heavener, who each stated that
these aptitude tests had been used by Arkansas Power & Light Company "for years in
the hiring process." (Appellees' App. at 7, 15.)

       Dr. Kleinke expressed an opinion that the development and validation of the tests
are consistent with the requirements of the EEOC's Uniform Guidelines on Employee
Selection Procedure. "The EEOC has issued 'Guidelines' for employers seeking to
determine, through professional validation studies, whether their employment tests are
job related." Albemarle Paper Co., 422 U.S. at 430-31; see 29 C.F.R. pt. 1607. While
these guidelines have not been promulgated pursuant to formal procedures established
by Congress, see Albemarle Paper Co., 422 U.S. at 431, they are nevertheless "entitled
to great deference" as "[t]he administrative interpretation of the Act by the enforcing
agency," Griggs, 401 U.S. 433-34. The EEOC Guidelines and the Griggs case present
the same message--tests with a discriminatory impact are impermissible unless the
employer demonstrates through professionally acceptable methods that the tests are job
related. See Albemarle Paper Co., 422 U.S. at 431. Dr. Kleinke stated his opinion that
the development and validation of the tests at issue demonstrate that they are job
related. He also stated that following a two-year review of the validity of the tests, the
Department of Labor's Office of Federal Contract Compliance Programs concluded in
1991 "that the validation studies for both tests meet the professional standards required
by the Uniform Guidelines." (Appellees' App. at 129.) Dr. Kleinke was unaware of
any selection system that would do a better job of selecting qualified employees for the
plant operator or maintenance worker positions.

      Entergy Corporation also asserts that simultaneously with the reduction in force,
it was combining the separate jobs of power plant operator and power plant
maintenance into one "multi-craft" position, which required each worker to perform the

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tasks of both jobs. The company used the aptitude tests to help facilitate this change.
The company required each employee to take an aptitude test in a basic area other than
the worker's own craft to determine the suitability of an existing worker for continued
employment in the new multi-craft positions.

       In response to the defendants' motions for summary judgment, the plaintiffs
submitted their own affidavits, mostly complaining of discriminatory treatment by the
company in general, complaining of the union's conduct in acquiescing to the tests, or
complaining of the manner in which the tests were administered. Only one plaintiff,
Clifford Robinson, submitted an affidavit purporting to rebut the job relatedness of the
tests. Mr. Robinson stated in conclusory fashion that the test he took was biased and
"had no relevancy to the jobs that [he] performed." (Appellants' App. at 65 (emphasis
omitted).)

        This statement is insufficient to preclude summary judgment. Mr. Robinson's
affidavit does not explain how the test differed from either the old job he performed or
the new job he sought that required multi-craft skills. Mr. Robinson's conclusory
affidavit "is devoid of any specific factual allegations" challenging the validity of the
test, and as such, it cannot withstand a properly supported summary judgment motion.
Flannery v. Trans World Airlines, Inc., 160 F.3d 425, 428 (8th Cir. 1998). The
plaintiffs did not offer any expert testimony, or any other evidence, to rebut Dr.
Kleinke's affidavit testimony that the tests were valid and job related. Likewise, the
plaintiffs offered nothing to rebut Dr. Kleinke's testimony about the Department of
Labor's conclusion that the tests are consistent with the EEOC guidelines, which
require selection tests to be job related. The record includes the unrebutted testimony
that the same tests have been used for years in the hiring process at the power plants
where the plaintiffs worked and that the company needed the aptitude tests to indicate
whether the existing employees would be suitable for the new multi-craft positions.
One plaintiff's conclusory assertion that the test was not related to the job he had
performed is insufficient to prevail over the defendants' properly supported summary

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judgment motion. See Rose-Maston v. NME Hospitals, Inc., 133 F.3d 1104, 1109 (8th
Cir. 1998) ("Conclusory affidavits, standing alone, cannot create a genuine issue of
material fact precluding summary judgment.")

       The plaintiffs contend alternatively that even if the defendants met their burden
to demonstrate that the tests were valid and job related, they still are not entitled to
summary judgment because a less discriminatory selection procedure was available.
They assert that the seniority system, which was abandoned as a selection method for
the reduction in force by agreement of the union in favor of the POSS/MASS testing
systems, was an available alternative selection procedure which would cause less of a
disparate impact on minorities, and accordingly, the company and the union acted
improperly by abandoning the seniority system. In response, the defendants point to
Dr. Kleinke's expert opinion that he knew of no other tests that would substitute for the
POSS and MASS and be equally job related.

        There is no question that a seniority system is a legitimate and non-
discriminatory basis for accomplishing a reduction in force. See Bright v. Standard
Register Co., 66 F.3d 171, 173 (8th Cir. 1995). This does not mean, however, that an
aptitude selection test is necessarily illegally discriminatory. The defendants
established that the tests were valid and job related, and demonstrated that they were
necessary to determine which employees would be best suited to the new multi-craft
positions. The plaintiffs make only a conclusory argument that the seniority system
would have been less discriminatory. They make no showing to suggest that seniority
in the previous single-craft positions would be an equally accurate predictor of success
in the new multi-craft positions.

                                          III.

      Accordingly, we affirm the judgment of the district court.


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A true copy.

      Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT




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