Miсhael E. Williams; Flora Lynn McMiller; Keith Arnett Harris; Almesha Spinkston; Gerrol Gerard Townsend (97-2049); Alan Dale; Bryan Thomas (98-1256), Plaintiffs-Appellants, v. Ford Motor Company, Defendant-Appellee.
Nos. 97-2049; 98-1256
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Argued: December 18, 1998; Decided and Filed: August 9, 1999
187 F.3d 533
ALICE M. BATCHELDER, Circuit Judge.
Appeal from the United States District Court for the Eastern District of Michigan at Detroit; Nos. 95-71203; 95-76125--Bernard A. Friedman, District Judge[Copyrighted Material Omitted]
John H. Beisner, William J. Stuckwisch, Brian D. Boyle, O‘MELVENY & MYERS, Washington, D.C., George L. Forbes, Forbes, Forbes & Associates, Cleveland, Ohio, for Appellee.
Before: KENNEDY and BATCHELDER, Circuit Judges; WISEMAN, District Judges.
OPINION
ALICE M. BATCHELDER, Circuit Judge.
I.
A. Procedural Background
This case is one of many employment discrimination cases in multidistrict litigation against Ford Motor Co. The complaint in the case before us here (hereinafter “Williams“), is a state-law employment discrimination class action claiming violations of
Shortly after the Williams plaintiffs filed a motion for class certification, Alan Dale and Bryan Thomas filed a tag-along action (“Dale“), claiming that “Ford Motor Company discriminates on the basis of race against Afro-American applicants for unskilled hourly employment through the use of its [pre-employment] test,” in violation of
Ford filed a motion for summary judgment “on each and every claim asserted in plaintiff‘s Complaint,” which the district court granted in its entirety, dismissing the action. The court also granted Ford‘s unopposed motion for judgment in the Dale tag-along action since the Dale plaintiffs were members of the Williams class. Dale and Williams were consolidated for this appeal.
Ford operates seven plants in Ohio where motor vehicles and/or their component parts are manufactured and/or assembled. Each plant employs unskilled hourly workers. Ford began using a pre-employment test referred to as the Hourly Selection System Test Battery (“HSSTB“) around 1989 to screen applicants for the unskilled hourly positions. Candidatеs receiving a “low” score are not allowed to proceed in the application process though these applicants may retest, except at Ford‘s Sandusky plant. The HSSTB measures five areas: reading comprehension, arithmetic, parts assembly, visual speed and accuracy, and precision/manual dexterity. The manual dexterity test may be measured by an apparatus-based test or a paper and pencil test requiring precise finger/hand movement. A score above the 50th percentile on the HSSTB is classified as “high;” a score between the 25th and 50th percentile is classified as “medium.” The “low” scoring candidates, who may not proceed in the application process, are those who score below the 25th percentile.
Prior to implementation of the HSSTB, Ford utilized referrals from the Ohio Bureau of Employment Services (“OBES“); OBES administered a General Aptitude Test Battery (“GATB“) to prospective candidates. When OBES began to restrict the use of GATB in late 1988, Ford decided to develop its own test. In early 1989, Ford hired Personnel Designs, Inc., which became HRStrategies, Inc. and now operates as a division of Aon Consulting (hereinafter referred to as “HR”2), to develop an interim and long-term selection test for hourly production employees. Because Ford‘s hourly production employees rotate among assignments and applicants do not apply for positions within specific job classifications, Ford instructed HR to develop a single test battery for all hourly production employees at its facilities. After visiting over a dozen representative Ford facilities to collect information on the content of the Ford hourly jobs, HR developed an interim test battery that was administered in June 1989 at the Lorain and Ohio Assembly Plants. The final test battery, which differed in a number of respects from the interim test,3 was implemented in late 1989 as a component of Ford‘s hourly hiring process.
In developing the final HSSTB, HR conducted an extеnsive job analysis to identify the knowledge, skill and ability requirements of Ford hourly production jobs. From December 1989 through May 1990, Ford supervisors participated in job analysis inventories; the supervisors then rated each job requirement and job ability identified in the inventories on its importance to the job category. HR assessed the reliability of the ratings and analyzed the data to identify key job requirements and abilities, and on the basis of the analysis, developed specific tests to measure the skills necessary to perform the job requirements that had been rated as “important” by the experts across all the job categories.
In 1993, Ford directed HR to conduct a criterion-related study, that is a statistical analysis of the relationship between performance on the test and performance on the job. A sample of 105 hourly employees were evaluated on their job performance by 46 selected supervisors; HR analyzed the relationship between the employees’ HSSTB scores (pre-employment) and their job performance ratings. HR reported “criterion-related validity analyses with data collected to date show a strong pattern of significant correlations between the tests and performance ratings made by supervisors.” Both the initial study and a supplemental study demonstrated a correlation of .30 between the test battery score and overall job performance rating; the supplemental study concluded that “[t]he obtained validity (correlation) coefficient of .30 is both statistically and practically significant and is evidence of the validity and appropriateness of the Ford Hourly Selection Battery for selecting candidates for further consideration for hourly production jobs at Ford Motor Company.”
Ford‘s expert, Dr. Wayne Cascio, reviewed and analyzed the test development process and HR‘s studies and found the test “was developed in a manner consistent with sound professional practice” and “the totality of the evidence for the validity of the HSS supports its continued use.” By contrast, Dr. Charles Cranny, expert for the plaintiffs, found numerous problems with the test development and validation studies conducted by HR, concluding that the results of the job analysis fail to demonstrate a clear linkage of specific requirements to job duties and the criterion-related evidence from the preliminary study is inadequate to demonstrate the job-relatedness of the HSSTB.
II.
A. Standard of Review
We review de novo the district court‘s grant of summary judgment. The proper inquiry on appeal from a grant of summary judgment is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one рarty must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). Summary judgment is proper only if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law.
B. Analysis
The Williams action was initiated generally pursuant to
It shall be an unlawful discriminatory practice:
(A) For any employer, because of the race, color, religion, sex, national origin, handicap, age, or ancestry of any person, to discharge without just cause, to refuse to hire, or otherwise to discriminate against that person with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment.
The Williams plaintiffs alleged no specific practice which would violate the statute--indeed, they alleged no specific practice of any kind--claiming only that each of them has unsuccessfully sought employment with Ford at its Lorain County facility, and that
Ford Motor Company, due to race/color, has refused to hire them. Plaintiffs further state that other less qualified applicants, and/or others who applied after them but were white, were hired. Plaintiffs further state that they have been given no explanation for this defendant‘s failure to hire them and others similarly situated in the same manner. Plaintiffs also state that this defendant has engaged in a pattern, practice and course of conduct of not hiring individuals who are black or Afro-American, and in giving preferential treatment to white applicants.
The Dale complaint, however, claims that the employment test utilized by Ford discriminates against African American applicants for unskilled hourly positions.
The Ohio courts have held that the evidentiary standards and burdens of proof applicable to a claimed violation of Title VII of the Civil Rights Act of 1964 are likewise applicable in determining whether a violation of
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.” This burden arises, of course, only after the complaining party or class has made out a prima facie сase of discrimination, i.e., has shown that the tests in question select applicants for hire or promotion in a racial pattern significantly different from that of the pool of applicants. If an employer does then meet the burden of proving that its tests are “job related,” it remains open to the complaining party to show that other tests or selection devices, without a similarly undesirable racial effect, would also serve the employer‘s legitimate interest in “efficient and trustworthy workmanship.”
Id. at 425 (internal citations omitted). The Supreme Court made it clear in Wards Cove that once a plaintiff has made out a prima facie case, it is not the burden of persuasion which shifts to the employer; instead, at that point, the employer bears the burden of production of evidence demonstrating a business justification for the challenged employment practice. “[T]he ultimate burden of proving that discrimination against a protected group has been caused by a specific employment practice remains with the plaintiff at all times.” Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 659-60 (1989) (emphasis in original).
Therefore, to prove a selection procedure is job-related, the employer must show “by professionally acceptable methods, [that the test is] predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job or jobs for which candidates are being evaluated.” Black Law Enforcement Officers Ass‘n v. City of Akron, 824 F.2d 475, 480 (6th Cir. 1987) (brackets in original) (internal quotation marks omitted) (quoting Albemarle Paper Co., 422 U.S. at 431). In order “to assist employers . . . to comply with requirements of Federal law prohibiting employment practices which discriminate on grounds of race, color, religion, sex, and national origin. . . . [and] to provide a framework for determining the proper use of tests and other selection procedures,”
Employers may use three types of studies to validate an employee selection procedure under the Guidelines: content, construct, or criterion-related validity studies.
A content validity study is most appropriate when test items directly measure abilities that are prerequisites to entry-level job performance (for example, a shorthand or typing test for a secretarial position). Content validity studies must include a thorough job analysis identifying the most important knowledge, skills, and abilities necessary to successful job performance.
Zamlen, 906 F.2d at 218 (citing Guardians Ass‘n of New York City Police Dep‘t, Inc. v. Civil Service Comm‘n of New York, 633 F.2d 232, 242 (2d Cir. 1980)). It is not appropriate, however, for an employer to test for those skills that can readily be learned on the job.
A construct validity study evaluates procedures that test for abstract qualities which may be important characteristics for proper job performance but are challenging to test. Such studies are appropriate where the necessary qualities, such as creativity, cannot be measured directly; construct validity studies are usually not appropriate for validating physical exams because these physical qualities and abilities may be readily observed and quantified. Zamlen, 906 F.2d at 218.
A criterion-related study evaluates whether performance on the test adequately correlates with performance of the job. Gillespie v. Wisconsin, 771 F.2d 1035, 1040 n.3 (7th Cir. 1985). The guidelines provide that a criterion-related study “should consist of empirical data demonstrating that the selection procedure is predictive of or significantly correlated with important elements of job performance.”
To comply with the Uniform Guidelines, all types of validation studies must conform to several technical requirements; the minimum standards are set forth at
Treating Ford‘s first claim as a claim that the plaintiffs had failed to make out a prima facie case of test-based discrimination, the district court held that Ford was not entitled to summary judgment on that basis. First, the court concluded that, while it was undisputed that more African Americans took the HSSTB than their numbers in the relevant labor market would predict, the plaintiffs’ claim was not that insufficient numbers of African Americans took the test but that African Americans failed or scored “low” on the test in disproportionately high numbers when compared to whites, a fact that is also undisputed. Ford had not presented evidence to support its claim that the plaintiffs’ statistical evidence or their analysis of that evidence was flawed, and the district court held that plaintiffs’ statisticаl evidence was sufficient to withstand Ford‘s claim that plaintiffs had failed to establish a prima facie case of disparate impact discrimination. The district court also concluded that, contrary to Ford‘s contention, the “bottom line” rule of Connecticut v. Teal, 457 U.S. 440 (1982) would be applicable in this state-law class action; the court therefore refused to grant Ford summary judgment based on its claim that because this is a class action, the undisputed evidence that Ford hires more African Americans in Ohio than would be predicted by their numbers in the relevant labor pool precludes the plaintiffs from proceeding.
The district court then turned to Ford‘s claim that it is entitled to summary judgment on plaintiffs’ test-based disparate impact claim because it is undisputed that the test has been properly validated and there has been no showing of an alternative test that is both equally valid and less adverse in its impact on African Americans than the HSSTB. Noting that although the burden of persuasion continued with the plaintiffs to demonstrаte that the test fails to serve in a significant way the legitimate goals of the employer, the court examined the record evidence, including the “Project Technical Report” detailing the technical research and validation data supporting the HSSTB and the reports of Ford‘s independent experts evaluating that data, to determine whether Ford had produced evidence of a legitimate business justification for its use of the test. The court concluded that the HSSTB had been developed by professionals and appropriately validated through content-related studies and criterion-related studies. Further, the court concluded that Ford had demonstrated that the job analysis was not race-biased, and had met its burden of showing that the HSSTB is both job-related and a valid predictor of the likelihood of success on the job. The court held that the plaintiffs had produced the report of an expert who disagreed with Ford‘s reports and experts, but had failed to prоduce any independent validation study or any analysis sufficient to create a genuine issue as to whether Ford‘s validity testing was flawed. Plaintiffs’ anecdotal evidence that individuals who had scored “low” on the HSSTB had nonetheless succeeded in other unskilled industrial jobs was similarly insufficient to create a genuine issue of material fact. Finding that Ford had shown to a reasonable degree of statistical certainty that its test is a legitimate and valid indicator of future performance on the job, the district court held that Ford was entitled to summary judgment because, although the test does disparately impact African American test-takers, it does not violate
We decline to determine whether the Ohio Supreme Court would adopt the reasoning of Connecticut v. Teal, 457 U.S. 440 (1982) in this class action, instead assuming for purposes of this appeal that the plaintiffs were successful in establishing a prima facie case of disparate impact discrimination. For the reasons that follow, we hold that the district court correctly concluded that Ford was entitled to summary judgment.
1. Content Validity of the HSSTB
The district court correctly concluded that the HSSTB is content valid. The Uniform Guidelines state that “[a] selection procedure can be supported by a content validity strategy to the extent that it is a representative sample of the content of the job.”
The record demonstrates that Ford utilized HRStrategies, a professional test developer, to conduct a job analysis that complied with the technical standards contained in the Guidelines. HR began with Ford‘s requirement that applicants for employment in hourly positions are not hired for a specific position but, depending upon such variables as production requirements and other employees’ exercise of seniority rights under the collective bargaining agreement, must be able to rotate among numerous job classifications. Using the Dictionary of Occupational Titles as a guide, HR assigned each of Ford‘s roughly 1000 hourly positions into one of 13 categories; HR then utilized 238 Ford supervisors7 at 18 separate Ford locations, 211 of whom had at least 10 years tenure at Ford and 125 of whom had at least 10 years in their current jobs at Ford, to rate each of the job activities contained in the respective categories, first, as to the extеnt to which each activity was part of the jobs within the category, and second, as to the importance of each activity to the jobs within the category. These raters were further presented with a list of 59 different job requirements, identical across all jobs, and asked to rate each requirement as to its contemporaneous importance to the job and its anticipated importance five years hence. HR then performed overlap analyses of those ratings to determine the extent to which there was agreement across raters, examining the overlap among raters in the same Ford plant rating the same job,8 the overlap among raters in different plants of the same type with regard to each job group,9 and the overlap across different plant types for each job category and across the 13 categories10.
Against this evidence, the plaintiffs presented the report and affidavits of their expert, Dr. Cranny. The district court found, and we agree, that Dr. Cranny‘s opinions are wholly insufficient to create a genuine issue with regard to the content validity of the HSSTB. Dr. Cranny‘s criticisms of the content-validity study are entirely conclusory, are unsupported by any specific data, and are premised on the unsupportable factual assertion that the data was collected after the test had been administered.
The district court cited Merit Motors, Inc. v. Chrysler Corp., 569 F.2d 666, 673 (D.C. Cir. 1977) and Hayes v. Douglas Dynamics, Inc. 8 F.3d 88, 92 (1st Cir. 1993) in holding that the existence of opposing experts does not foreclose summary judgment. Ford cites both Hayes and Mid-State Fertilizer Co. v. Exchange National Bank, 877 F.2d 1333, 1339 (7th Cir. 1989) for the proposition that an expert witness with a conflicting opinion does not provide a free pass to trial. In Hayes, plaintiffs produced the affidavits of a number of expert witnesses and argued that, under
We are not willing to allow the reliance on a bare ultimate expert conclusion to become a free pass to trial every time that a conflict of fact is based on expert testimony. . . .
Where an expert presents “nothing but conclusions--no facts, no hint of an inferential process, no discussion of hypotheses considered and rejected“, such testimony will be insufficient to defeat a motion for summary judgment. Although an expert affidavit need not include details about all of the raw data used tо produce a conclusion, or about scientific or other specialized input which might be confusing to a lay person, it must at least include the factual basis and the process of reasoning which makes the conclusion viable in order to defeat a motion for summary judgment. We find that each of the expert affidavits failed to contain sufficient support for the conclusion that the injury to [plaintiff] was caused by the defendant‘s product.
8 F.3d at 92 (internal citation omitted).
This circuit reached a similar conclusion in Monks v. General Electric Co., 919 F.2d 1189, 1192 (6th Cir. 1990). The court initially pointed out that “To the extent Merit Motors articulates any type of standard, it is that affidavits by experts who have not familiarized themselves with the record are insufficient to withstand a summary judgment motion.” The court went on to find that because the expert‘s affidavit offered by the plaintiff “would under no circumstances be sufficient, by itself, to establish an element of plaintiff‘s case, we conclude that summary judgment for defendants was properly granted.” Id. at 1193.
In challenging Ford‘s motion for summary judgment the plaintiffs are not required to prove their claims, but they are required to present enough specific facts as to raise a genuine issue material to the relationship between the HSSTB and the job activities and requirements of Ford‘s hourly production jobs. Plaintiffs cannot challenge the motion for summary judgment by relying on allegations contained in their complaint or on affidavits that merely state conclusory allegations.
The plaintiffs claim that Ford did hire some applicants who scored “low” on the test, and that this negates the test‘s content validity. Plaintiffs point to no authority to support this claim, and they presented no evidence to counter Ford‘s testimony that any such hires were in fact “rehires“--individuals who had once worked at Ford and who were rehired only pursuant to an agreement with the union in spite of their poor performance on thе HSSTB. Finally, Plaintiffs presented no alternative test or selection device whatsoever, much less one that lacks the adverse impact of the HSSTB and that would serve Ford‘s legitimate interest in hiring adequately skilled workers.
Accordingly, we conclude that Ford has sustained its burden of showing that the HSSTB is manifestly job-related; that is, Ford has demonstrated that “the content of the selection procedure is representative of important aspects of performance on the job for which the candidates are to be evaluated.”
2. Criterion-related validity of the HSSTB
Having concluded that Ford had demonstrated that the HSSTB is content valid, the district court went on to determine whether the test had criterion-related validity. Neither the case law nor the Uniform Guidelines purports to require that an employer must demonstrate validity using more than one method. See
The statistical analysis performed by HR showed that the supervisors rating job performance did not rate white employees and African American employees differently; the ratings did not differ based on the race of the rater; raters did not rate study participants of the same race systematically higher than they rated study participants of a differеnt race. Further, the statistical analysis showed a correlation coefficient--the correlation between test performance and job performance--of .30. It is undisputed that a correlation coefficient of .30 is statistically significant and sufficient to establish job-relatedness.13
Wе conclude that the district court was correct in its determination that plaintiffs simply failed to provide the kind of specifics necessary to raise a genuine issue with regard to whether the HSSTB has criterion-related validity. The law does not require that an employer, simply in order that low scorers may be included in validation studies, hire individuals who do not pass a pre-employment test. See Clady v. County of Los Angeles, 770 F.2d 1421, 1431 (9th Cir. 1985) (rejecting the contention that a validity study must include individuals who failed the challenged test); see also
Plaintiffs did present the affidavits of several individuals who scored “low” on the HSSTB but who were ultimately successful in working unskilled jobs in the employ of companies other than Ford. Plaintiffs point us to no authority, however, and we have found none, to support their position that such affidavits are sufficient to create a genuine issue with regard to the test‘s content validity, i.e., the statistically significant correlation between the specific skills assessed by the test and the specific skills important to job performance.
The evidence is undisputed that in the initial criterion study, roughly half of the participating employees had taken one form of manual dexterity test in their pre-employment test and the other half had taken another form of manual dexterity test. For that reason, the two sub-samples were combined and the correlation coefficient was .30. Although plaintiffs complain that this procedure required the use of assumptions that are disapproved by the Guidelines, plaintiffs make no attempt to provide any evidence to support that claim; the expert evidence provided by Ford, however, explicitly refutes any such claim.
3. Individual plaintiffs’ claims
Finally, plaintiffs argue that the district court erred in granting summary judgment on the individual plaintiffs’ claims of discrimination. We disagree. This action was initially filed as a class action claiming that Ford had engaged in an unspecified pattern and practice of discrimination in hiring against African Americans; a subsequent tag-along action raising only allegations of hiring discrimination because of the use of the pre-employment test, was filed by plaintiffs Dale and Thomas. The district court certified a class that excluded Plaintiff Harris, one of the named plaintiffs in the initial class action complaint. The parties have conceded that two others of the named plaintiffs in the initial complaint are also not properly members of the class. In its certification order, however, the district cоurt held that the two tag-along plaintiffs were adequate representatives of the class. When Ford moved for summary judgment, it demanded judgment on all claims in the complaint. Plaintiffs presented no evidence relative to claims of discrimination against individual plaintiffs in opposition to the motion for summary judgment;15 plaintiffs did not oppose Ford‘s motion for judgment in the tag-along action after the district court granted Ford‘s motion for summary judgment in the class action and dismissed that action; and plaintiffs did not file any post-judgment motion bringing to the district court‘s attention their contention that the judgment was overbroad.
We find no error in the grant of summary judgment and dismissal of the entire case. Although the plaintiffs contend on appeal that the “claims of Williams, McMiller, and Spinkston raise the issue of racial discrimination in the selection procedure used by Ford at its Lorain, Ohio plant in choosing who would get to take Ford‘s HSS test battery,” we are hard-pressed to find any such specific individual claim raised in the class actiоn complaint, and the tag-along complaint raises only the adverse impact caused by the challenged test. Ford responds to plaintiffs’ claim by noting that it proffered evidence in support of its motion for summary judgment demonstrating that 18.3 percent of the test takers at Lorain Assembly were African American, though African Americans comprised only 8.7 percent of the relevant labor force in Ohio, Ford met its initial burden of demonstrating the absence of a genuine issue of material fact regarding the claims of Williams, McMiller, and Spinkston, and plaintiffs’ failure to adduce competent evidence to support the individual claims rendered summary judgment appropriate as to the individual claims. We note in passing that before the district court, the plaintiffs did not dispute the fact that African Americans took Ford‘s pre-employment test in numbers disproportionate to their representation in the relevant labor market.
C. Conclusion
For the reasons stated above, we affirm in its entirety the judgment of the district court granting summary judgment to the defendant.
Notes
The Court appears to have applied the Guidelines only to the extent that they are useful, in the particular setting of the case under consideration, for advancing the basic purposes of Title VII. See Espinoza, 414 U.S. at 94. . . . To the extent that the Guidelines reflect expert, but non-judicial opinion, they must be applied by courts with the sаme combination of deference and wariness that characterizes the proper use of expert opinion in general. See Albemarle, 422 U.S. at 449 (Blackmun, J., concurring) (Guidelines “have never been subjected to the test of adversary comment. Nor are the theories on which the Guidelines are based beyond dispute.“) Thus, the Guidelines should always be considered, but they should not be regarded as conclusive unless reason and statutory interpretation support their conclusions.
The Second Circuit went on to note that although the Guidelines also possess limited legal force in addition to their value as the expression of expert opinion, “[t]he primary purpose of the Guidelines is to indicate the standards that various Federal agencies . . . are to use in enforcing Title VII and related statutes. But the fact that an agency . . . has announced the standards they will use does not convert those standards into mandatory legal rules.” 630 F.2d at 91 (internal citation omitted).
Caution against selection on basis of knowledge, skills, or ability learned in brief orientation period. In general, users should avoid making employment decisions on the basis of measures of knowledges, skills, or abilities which are normally learned in a brief orientation period, and which have an adverse impact.