                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                         DEC 29 1999
                     UNITED STATES COURT OF APPEALS

                                   TENTH CIRCUIT                      PATRICK FISHER
                                                                               Clerk



 CONNIE MARION,

               Plaintiff - Appellant,                   No. 98-6286
          v.                                         (W.D. Oklahoma)
 THE SLAUGHTER COMPANY,                           (D.C. No. CV-97-764-L)
 a Division of R.E. Phelon Co., Inc.,

               Defendant - Appellee.




                             ORDER AND JUDGMENT         *




Before ANDERSON and BRISCOE , Circuit Judges, and           KIMBALL , ** District
Judge.




      *
       This order and judgment is not binding precedent, except under the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   1
                                                               action 2 against The

Slaughter Company, a division of R.E. Phelon Co., Inc. (“TSC”), alleging gender-

based 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?” Appellant’s 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 TSC’s 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 plaintiff’s 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
      1

amended by the Civil Rights Act of 1991, 42 U.S.C. § 1981A.
      2
        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 defendant’s motion for summary judgment on those claims.
Mrs. Marion does not pursue those portions of the judgment on appeal.

                                          -2-
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


                                           -3-
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 plaintiff’s sister, sister-in-law and a woman recommended by the plaintiff’s

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.




                                         -4-
The plaintiff demanded that TSC raise her pay to equal Mr. Reed’s 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 plaintiff’s 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; Appellant’s 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


                                          -5-
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 company’s 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:




                                          -6-
            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 Defendant’s 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 Defendant’s 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; Appellant’s App. at 60-62 (footnotes omitted).

                                         -7-
       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 it’s [sic] own independent findings on [the disparate

impact claim].” Pl.’s Post Trial Br. at 2; Appellant’s 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 Plaintiff’s disparate impact theory      .” Order of

June 15, 1998, at 7; Appellant’s 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.    3



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
       Plaintiff’s disparate impact claim. The preponderance of the
       evidence at trial showed that the Defendant had legitimate, non-


       3
        The allocation of responsibilities between the court and jury urged by the
plaintiff in the district court and the court’s conclusion on that point are not
before us on appeal. We, therefore, take the case as presented without implying
any opinion on the subject.

                                             -8-
       discriminatory reasons for its hiring practices, including the
       Defendant’s 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 Defendant’s
       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; Appellant’s App. at 67.

       The district court’s order stated in conclusion that the plaintiff’s post-trial

motions, including the motion for reconsideration, were denied. This conclusion

is problematic due to the district court’s 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 plaintiff’s 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 jury’s verdict and deferring to facts found by the

district court in its disparate impact ruling.         See Ortega v. Safeway Stores, Inc.   ,

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




                                                 -9-
      As to the plaintiff’s 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.     See United States v. Roberts , 185 F.3d

1125, 1139 (10th Cir. 1999) (citing    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.”        Id. ; accord 42

U.S.C. § 2000e-2(k)(1)(A)(i);    Hazen Paper Co. v. Biggins      , 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


                                           -10-
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 individual’s 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   4
                                                by TSC, i.e., the distribution proves a



       In an alternative argument, the plaintiff makes much of the district court’s
       4

statement that TSC’s 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 court’s statement does not support the plaintiff’s
interpretation, and the cases cited by plaintiff with respect to express
                                                                         (continued...)

                                            -11-
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 plaintiff’s 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 court’s ruling, quoted above, correctly states that Title VII only

provides a cause of action to a person who is “aggrieved” by an unlawful




      (...continued)
      4

gender-based policies manifestly do not apply to this case.

                                         -12-
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 court’s

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.        See Byers v.

City of Albuquerque , 150 F.3d 1271, 1274 (10th Cir. 1998);         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


                                            -13-
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.”          Id.

(citing Watson v. Fort Worth Bank & Trust       , 487 U.S. 977, 995 n.3 (1998)). And,


                                            -14-
“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. Plaintiff’s

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.      See , e.g. ,

Loyd v. Phillips Bros., Inc.   , 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.” Appellant’s App. at 86. The


                                             -15-
district court stated that an instruction to that effect would be improper, but that

plaintiff’s 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 plaintiff’s evidence and argument focused on the

work force distribution, including hiring, and plaintiff’s 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 plaintiff’s 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.




                                          -16-
                                 CONCLUSION

      As our extensive quotes from the district court’s opinions will indicate, the

district court’s treatment of the issues in this case was careful and cogent. We

have considered all of the plaintiff’s arguments and conclude that the district

court did not err.

      AFFIRMED.


                                               ENTERED FOR THE COURT


                                               Stephen H. Anderson
                                               Circuit Judge




                                        -17-
