Morgan v. United Parcel Service of America, Inc.

Stacker; MORGAN; Kenneth Leslie Representa Boldin, Class

Theodore Class, Plain Plaintiff of the

tives

tiffs/Appellants/Cross-Appellees, Equal Employment Love;

Enoch Commission,

Opportunity Plaintiffs,

Intervenor OF PARCEL SERVICE

UNITED Service, AMERICA, INC.; Parcel United ndants/Appellees/Cross-App

Defe

ellants. Movant/Appellant, Cartwright,

Charles Movant, Needham,

Brian Jackson, Finley; Frank

Bedell

Movants/Appellants, Truitt, Movant.

Francis 02-2545, 02-2835.

No. Appeals, Court

United States

Eighth Circuit. 14, 2008. April

Submitted: Aug.

Filed: Robinson,

Darlene argued, Oakland City, (Virginia IN O’Leary, M. Kevin S. Kinkade, Funkhouser, Scott A. Oakland City, brief), IN on the for appellant. Brown, III, William H. argued, Philadel- (Deena phia, PA Jo Schneider and Jenni- Nestle, PA, fer Philadelphia, David W. Welch, Weaver, Thomas B. Robert A. Kai- O’Toole, ser and Daniel K. St. Louis on the brief), appellee. operations supporting some related MORRIS SHEPPARD

Before BEAM, MELLOY, ARNOLD, Circuit staff.

Judges. of managerial employees Two levels ex- supervisors below the division level: ist BEAM, Judge. Circuit entry managers. The and center level Stacker, Kenneth and Morgan; Leslie position' supervisor managerial is who Boldin, at Unit- managers black Theodore reports manager. to the center The cen- (UPS), brought a civil ed Parcel Service manager reports manag- to the division ter and class rights alleging action individual er, manager division the the to district under discrimination employment of claims manager the to manager, and district the These § 42 U.S.C. Title and VII regional manager. moved for certification individuals class partially the granted and court the district decisionmaking authority in UPS vests motion, employ- four of certifying classes managers promote employees to district to “Plaintiffs”). moved (collectively, UPS ees manager, manager, and division center su- the Title summary judgment for on both managers District hold pervisor. “Peo- § 42 class claims VII and the U.S.C. Meetings” ple’s approximately twice moved decertify or to the class. Plaintiffs upward year, where discuss the mo- summary on their partial for management At bility personnel. these racially discriminatory pay. class claims of meetings, presented information is su- motion, The court denied Plaintiffs’ district in the managers and center dis- pervisors UPS, summary judgment to and granted trict, and their and readiness decertify motion to the class. denied UPS’s are At some of promotion for assessed. It Plaintiffs had failed to adduce held that meetings, photograph color the aof sufficient evidence meeting displayed. pro- individual is The affirm. discrimination. We class-wide who employees duces a list ready managers believe are for district I. BACKGROUND FACTUAL managerial positions. Open to promotion for packages world-wide UPS delivers post- are not company within the positions and businesses. UPS is divid- individuals may consult The district ed. geographic regions in the ed into eleven meetings compiled determine list States, manag- with regional each United receive a promotion. who will approxi- er. is into region A subdivided districts, each with a district mately six II. BACKGROUND PROCEDURAL managers district are re- manager. The managers Plaintiffs are all UPS center nearly every aspect of dis- sponsible for racially discrimi- they allege that UPS and up, sort- including picking trict operations, upward them in terms of against nated ing, delivering packages, as well and conditions, and mobility, employee development, promotion, claim, upward-mobility With sixty There compensation. are between subjective argue that the selec- States seventy districts the United positions at process managerial size, tion geographic one varies in each blacks, which, promotion limits the volume, density, population package turn, upward inhibits their overall mo- labor A district further divided climate. peak and causes them to then- divisions, manag- bility into each with a division center-manager at or organized along func- careers below er. are Divisions package some level. tional lines with related §

The court bifurcated the trial district The U.S.C. unequal-working- conditions and liability/injunctive phase, by unequal-pay into a followed class de- fined as: a remedial/damages phase. Four classes were certified under Federal Rule of black employees [A]ll Civil salaried full-time 23(b)(2) of UPS employed nationwide as center phase. Procedure for the first Hub, in Operations (Package, The court it certifying said would consider Air) Feeder, or Human Resources at 23(b)(3) damages phase as a Rule class any time on or after November liability if action was established. and the date of judgment. The Title VII denial-of-upward-mobility granted The district court motion class was defined as: intervene, EEOC but the EEOC is [Ajll black salaried full-time employees not appeals. involved these At the time of UPS nationwide employed original certification, as center of the class Charles managers Hub, Cartwright in Operations (Package, was a member of at least two Air) Feeder, certified classes. or Human After modification Resources at of the classes, certified any 20, the district time between court ruled December 1991 longer qualified he no as a of judgment, and the date of member and who any of the four classes and thus vacated woi'ked as a supervisory managerial or the order allowing him to intervene. employee of years UPS for at least five Frank Jackson was also denied intervenor being promoted without above the cen- status. Cartwright Both ap- and Jackson ter level. peal Needham, those decisions. Brian The Title VII unequal-working-conditions Truitt, Francis and Finley Bedell also and unequal-pay class was defined as: denied, sought, but status; intervenor however, they are not parties to this ap- [A]ll black salaried employees full-time peal.1 of employed UPS nationwide as center

managers Hub, in Operations (Package, Discovery proceedings produced reports, Air) Feeder, or Human Resources at analyses, and models of UPS’s any 20, time between December 1991 employment practices data and prepared and the judgment. date of by experts for all parties. pre- sented two experts who conducted statisti- § The 42 U.S.C. 1981 denial-of-upward- analyses: cal Dr. Weiner Staple- and Dr. mobility class was defined as: ton. And the Defendant offered statistical employees [A]ll black salaried full-time analyses expert, conducted its Dr. Ev- of employed UPS nationwide as center ans. At the close of discovery, UPS Hub, in Operations (Package, moved summary judgment on all class Air) Feeder, or Human Resources at or decertify claims the classes. Plain- any time on or after June 1989 and tiffs moved for partial summary judgment the date of judgment, and who worked on their class claim discriminatory of pay. as a supervisory managerial or employee UPS also moved to bar testimony of of UPS for at eight years least without two of experts Plaintiffs’ as inadmissible being promoted above the center man- under Federal Rule of Evidence 702 and ager level. Pharm., Inc., Daubert v. Merrell Dow Finley appellant Bedell is identified as an Finley’s filed on behalf. appeal, the notice of but no brief has been case centers on discrimi 125 L.Ed.2d Plaintiffs’ natory in the form of faulty methodology unequal treatment 469(1993), conditions, promotions, pay. granted court The district data. alleges action specifically, More this class all claims and judgment on class summary of discrimination with summary mo- Plaintiffs’ denied aspects to each of these three also denied moot UPS’s tion. The court employment. In a pattern-or-practice decertify the class and to bar motions action, prove class the class must testimony. expert “ purposefully’ defendant ‘regularly III. DISCUSSION protected group treated members of the favorably less and that unlawful discrimi claim the district court erred employer’s ‘regular proce nation was the summary judgment mo- granting UPS’s ” policy.’ dure or EEOC McDonnell (1) three class claims: tion on each of the (8th Douglas Corp., 191 F.3d Cir. (2) mobility, work- upward denial overall 1999) (quoting Int’l Bhd. Teamsters v. (3) conditions, ing States, 360,& United grant summary de novo We review (1977)). 1843, 52 S.Ct. L.Ed.2d 396 Stated is to determine whether a claim judgment differently, “ prove that the class must the Ark. supported. Jackson v. factually company’s ‘discrimination was the stan (8th Educ., 1020, F.3d Dep’t 272 1025 regular operating procedure-the dard rath Cir.2001). Summary judgment be “shall ’ practice.” er than the Craik v. unusual pleadings, depo if the forthwith rendered Bd., 465, State 731 F.2d 470 Minn. Univ. sitions, interrogatories, and ad answers to (8th Cir.1984) Teamsters, (quoting file, with affida together the missions on 1843). 336, Upon an 97 S.Ct. vits, there is genuine no any, if show motion, employer’s summary the fact any material and that the issue as to plaintiff class must adduce some evidence a judgment entitled to moving party is can be from which this conclusion drawn. 56(c). a of law.” Fed.R.Civ.P. We matter “ discrimination Proving that is ‘isolated or light facts in the most favor all must view ” sporadic’ is insufficient. McDonnell nonmoving party give the able to Douglas, (quoting Cooper 191 F.3d at 951 the benefit of all reason nonmoving party Bank, 867, 467 U.S. v. Federal Reserve that can be from inferences drawn able (1984)). 876, 104 S.Ct. 81 L.Ed.2d v. Dist. #111 Otoe facts. Widoe those one, (8th plain- this Sck, Typically in a case like 147 F.3d Cir. County 1998). dispar- evidence of However, tiffs will offer statistical mere existence of “[t]he unprotected protected ities between in of the support scintilla of evidence insufficient; similarly are otherwise sit- employees will be who plaintiffs position Craik, In at 470. jury uated. 731 F.2d de- on which the must be evidence there fense, attempt to show employers reasonably plaintiff.” find could “ Inc., either inaccurate or Lobby, plaintiffs’ ‘proof is Liberty Anderson v. ” Teamsters, insignificant.’ (quoting Id. 242, 252, 91 L.Ed.2d 202 106 S.Ct. 1843). To (1986). Therefore, 431 U.S. at a motion for sum- sufficient, legally plaintiffs’ judge’s una- judgment, inquiry mary “[t]he disparity of treat- evidence “must show a jurors voidably asks whether reasonable ment, most common nondis- eliminate the preponderance of the evi- could find disparity, criminatory explanations of is to a plaintiff entitled dence that that, absent permit and thus the inference Id. verdict.” disparity explanation, Evans, other more like- those expert, districts. UPS’s ly from illegal than not resulted discrimi- performed analysis taking the availabili- Rock, v. Little Hervey nation.” ty qualified black employees into ac- (8th Cir.1986) (quotation omit- count and determined that the number of ted). question The bottom-line this case districts in which promoted no blacks were produced whether Plaintiffs more than a actually lower than would be expected. showing engaged scintilla of evidence Second, showing even successful of dis- of discrimination crimination in some districts does not with regard to the class members. The prove fact, nationwide In discrimination. typical Douglas McDonnell burden-shift- out, as the pointed proof district court framework, irrelevant, ing while not is not discrimination in some districts not tremendously helpful this context. others tends to argument defeat the Craik, 731 F.2d at 470-71 & n. 7. discrimination was UPS’s nationwide stan- dard operating procedure. Mobility Upward

A. addition, In presented argue the district court comparing representation charts in granting summary judgment erred blacks at division-manager level to the denial-of-upward-mobility UPS on the percentage of all black manag officials and claims. Plaintiffs contend proved dis- ers, laborers, operatives and blue collar mobility crimination in upward under both workers, and the total UPS workforce. disparate-impact disparate-treatment The district court properly found that a court, models. Like the district con- we racial disparity amongst populations these clude Plaintiffs have failed to establish would not give rise to an inference of prima facie case because their evidence of discrimination. ‘proper “The comparison insufficient, disparities racial giving between composition [is] the racial of [the rise to no inference of discrimination. jobs] at-issue composition the racial Initially, Plaintiffs offered a Wil qualified ... population in the relevant ” performed by coxon test Dr. Weiner. labor market.’ Wards Packing Cove Co. argue Plaintiffs this test showed that it Atonio, 642, v. 650, 490 U.S. 109 S.Ct. longer took for managers black center 2115, (1989) 104 L.Ed.2d 733 (quoting Ha promoted job to their first division-level States, zelwood Sch. Dist. v. United than it did for white center managers. 299, 308, 2736, 97 S.Ct. 53 L.Ed.2d However, out, experts pointed UPS’s (1977)) (alterations in original). admitted, Dr. Weiner that she did not applicant “[Statistics based on an pool perform the correct Wilcoxon test. When containing lacking individuals minimal test, Dr. Weiner used the correct de she qualifications job for the would be of little termined that there disparity was no racial probative value.” Watson v. Fort Worth in the promotions. of these Trust, Bank & Next, (1988). Plaintiffs offered evidence that in 101 L.Ed.2d 827 up- The districts, thirty-five of UPS’s there ward-mobility were classes consist of center no promoted blacks to division manager managers who promoted have not been between 1998. The district Thus, court division manager. probative in- pointed problems out two analy- with this quiry comparison involves a between the First, tally sis. this did not take into percentage of managers division who are account any qualified whether there were black percentage and the of qualified em- black employees promotion ployees available for who population are black Thus, claim qualified employees. are chosen. able from which division held, reli- “plaintiffs disparate-treatment court fails under the model. district As the line racial imbalance on a bottom ance And, to the extent Plaintiffs raise a to establish is insufficient the workforce claim,2they failed to disparate-impact have likely promoted.” to be that blacks are less disparities per “show relevant statistical UPS, 4:94-CV-1184, No. Mem. Morgan v. mitting an inference of racial imbalance in (E.D. 2000). at 12 Mo. June & Order workforce.” defendant’s Emanuel presented a cohort Finally, Weiner (8th Cir.1990). Marsh, employ- it takes black analysis suggesting inquiry pro The relevant was whether significantly longer promoted to be ees motions from center to division supervisor posi- from their first full-time racially discriminatory, taking into manager than it takes simi- tion to division proper pool quali account the of available However, employees. white larly situated employees. presented fied The evidence admitted the data she Dr. Weiner of overall racial imbalances and even more examining for appropriate looked at “is not general upward mobility trends is insuf manag- from center promotion the time to ficient. Plaintiffs did not adduce sufficient 13, and manager,” level id. at er to division summary judgment. evidence to avoid employ- class of managers are the center Evans, expert, Dr. ees at issue. UPS’s Working B. Conditions correct analysis on the set performed court The district ruled actually that it promotions and concluded presented prove insufficient evidence to longer get than blacks to takes whites unequal working class-based claim of con- manager to division promoted from center argue ditions. Plaintiffs that the district manager. (1) court not move erred UPS did is insufficient un proof summary judgment condi- disparate-treatment and dis der both the (2) tions, presented sufficient summary To parate-impact models. avoid summary judgment. to survive disparate-treatment under the summary judg motion for UPS’s statistics, through the use of Plain model moved for sum ment was sufficient. UPS that the proper “[w]hen tiffs must show mary “on Class considered, the statistical labor market is Complaint,” Supplemental Amended and an is sufficient to raise inference evidence Natl, unequal encompassed which claims of discrimination.” Paxton v. Union (8th Cir.1982). working specifically conditions. UPS also Bank, in motion working conditions its above, mentioned correct As discussed Weiner’s the court to strike those class and asked disparity, showed no racial Wilcoxon test unsupported. as Plaintiffs were analyses into claims and her other do not take claim working-conditions the proper the labor market —avail- aware account they promoted were to the division- this claim as one before It is difficult to understand disparate impact. argument Plaintiffs’ claim as to level. We read Plaintiffs' decisionmaking process subjective is not the alleging disparate through treatment facially process is, race-neutral has an that this decisionmaking process; subjective impact process adverse on blacks and the provided subjective process that the selection necessity. justified by cannot be business to opportunity for UPS to choose not Rather, subjective deci- Plaintiffs claim the they employees promote some remaining sionmaking in blacks resulted discriminate on account of race. black—to positions longer center-manager than whites Rubinfeld, response in their to Daniel L. Guide on was at issue because Reference Regression, in Federal Judicial they Multiple motion dis- summary judgment Center, Manual on working-conditions evidence cussed Scientific Reference (2d ed.2000). Explanatory Evidence 181 the issue. We there- cited the record on expected variables are the influences on court that agree fore with the district UPS case, dependent variable. Id. In this summary judgment moved for on this dependent is the variable. The ex- claim. planatory bring are what race variables agree We also that Plaintiffs’ effect, into In picture. regression proof on the conditions was insuf explanatory controls for the variables— summary judgment. ficient to survive expect those factors that one would to correctly note that statisti While compares influence then —and required prove cal is not to pat wages employees. of white and “At black discrimination, tern-or-practice Catlett v. best, regression equation used to as- Comm’n, Highway Transp. Mo. & compensation sess discrimination in levels (8th Cir.1987), F.2d the anecdo good representation, be viewed as enough support tal evidence here is not information, based on available of what their claims. Plaintiffs’ evidence consists compensation factors seem to be related to of statements individual class members levels, average.” on Ramona L. Paetzold response interrogatories, made in un Willborn, L. & Steven The Statistics of signed by the class members. The district Using Discrimination: Statistical Evi- finding court did not err in this evidence 6.01, § p.3 dence in Discrimination Cases grant summary judg insufficient. The (2002). Thus, explanatory the selection of working-conditions ment for on the However, quite important. variables is claim is therefore affirmed. regression equation even the best cannot directly show discrimination because it Pay C. prove cannot causation. The most it can argue not UPS was enti- is a give show correlation that can rise to summary judgment tled to discrimi- 2.05; § an inference of discrimination. Id. natory pay They claim. that they contend Rubinfeld, ante, at 183-85. Whether such presented sufficient evidence of legal inference is reasonable is the of discrimination with question we address. multiple regression the form of two All experts performed regression three analyses. They say analyses those analyses, all agreed that this form of give rise to a reasonable inference of dis- analysis proper. But the crimination because paid show UPS experts came to different conclusions be- white center than more black cause each of them included different ex- managers controlling center after for planatory variables. Plaintiffs’ first ex- many legitimate reasons for such a Weiner, pert, statistically Dr. found a disparity. significant pay disparity of between $1,275 $2,050

A multiple regression analysis attempts per year. She includ- relationships explanato- years to reveal between performance,3 ed two of measured ry dependent variables and a variable. region, supervisor and time as a quantified using perform- yearly 3. Performance was basis from 1991 until 1995. ance evaluations UPS a that conducted on ety summary judgment. analyses Plaintiffs’ other If variables. explanatory admissible, were not Stapleton, summary judg- Dr. found statistical- then expert, ly pay disparity appropriate. analyses of between ment was If the significant admissible, per year. summary judgment may He included were $852 $562 years performance, geo- may appropriate, of measured or not depending two be on district, UPS, they tenure with time whether graphic create a reasonable inference manager, disparate pay. as a center whether or currently in employee was Human Re- . It is not clear whether the district court sources, Operations, Package Op- Air or deemed Plaintiffs’ inadmissible erations. or concluded that did not create a genuine meth- expert preferred Evans’ issue of fact. The district court statistically significant pay properly found differ- found that “the variables are in- od year except analysis.” Morgan, for which cluded Dr. Evans’ entials each concluded, statistically significant differ- Mem. & Order at 17. And it he found no analysis any pay was achieved “defendants have ence in This shown dis- tenure, parity “union between using part-time as variables black white center tenure, full-time ten- is caused factors other than supervisor supervisor ure, tenure, an indicator race.” Id. at 18. center man- having previously been a division admissibility We defer to de in air ager having and others for been terminations under an abuse-of-discretion operations having Package Oper- or been a review, summary standard of at judg even for the vari- Supervisor, ations indicators Joiner, ment. Gen. Elec. & Co. v. districts, past per- ous and current and 186, 143, 189 L.Ed.2d 508 formance.” Dr. Evans concluded that his (1997). The district court did not mention study there was no statisti- demonstrated Daubert, analysis plainly hinges but its cally significant difference between problems analyses with Plaintiffs’ that are managers during black and white center arguably methodological explanato —what period. the class He reasoned that 1995 Daubert, ry proper. variables are only year for which he was the could do (stating S.Ct. proper analysis, only because it was the admissibility “entail[ ] determinations year there for which was sufficient mea- preliminary of whether assessment years, data. In other sured reasoning methodology underlying or said, analysis incorrectly he indicated a testimony scientifically valid and of disparity because insufficient measured reasoning methodology whether existed. Dr. Evans ad- performance data properly applied to the facts in no performance mitted that when data was Beste, issue”); Eckelkamp accord included, statistically significant pay dis- (8th Cir.2002) (applying deferen F.3d 863 parity existed. evidentiary tial review to determination only plainly premised methodological on the un Because the sub expert’s opinion). But regres derpinnings stantiates Plaintiffs’ claim is their analyses, the district court denied UPS’s sion and because this sort Daubert, subject relating and Rule 702 evidence is two issues motions to Daubert (2) (1) moot,4 admissibility and we are not inclined accord propri- arise: import determination in the course of the 4. The of the district court's mootness Daubert hand, ruling questionable. summary judgment would moot the a rationale is On one nonmoving party.” Reeves v. Sander degree of defer trial court’s decision Prods., Inc., 133, Moreover, 530 U.S. question Plumbing of what ex son ence. 150, 2097, in a should be included 120 S.Ct. 147 L.Ed.2d planatory variables normally (2000); regression Chrysler Corp., “affect[s] accord Carter v. particular (8th Cir.1999). 693, not its admissib analysis’ probativeness, Friday, ility.”5 v. 478 U.S. Bazemore disparities ... alone statistical “[G]ross 3000, 385, 400, 92 L.Ed.2d 315 106 S.Ct. prima in facie may proper a case constitute (1986). proof of a or of discrimi- of variables from a the omission While nation.” Hazelwood Sch. Dist. v. United analysis may render the anal- regression States, 299, 307-08, 2736, 433 U.S. 97 S.Ct. than it ysis probative otherwise less (1977). 53 L.Ed.2d 768 And the usefulness said, be, hardly might it can absent “depends on all of the sur- statistics infirmity, analysis that an some other circumstances.” rounding facts major for the which accounts factors Teamsters, 340, 431 U.S. at 97 S.Ct. 1843. unacceptable considered as evi- must be Here, regression analyses are all the dence discrimination. discriminatory that Plain- evidence of regression analysis that a is clear [I]t have, analyses tiffs so those must show a than all measurable includes less gross disparity and this must be may prove plaintiffs a variables serve proper gross case—a case which the case. disparity give rise to a reasonable 400, at omit- (quotation Id. S.Ct. 3000 paying inference that blacks less because ted). they operating are black is standard UPS’s however, regressions, do not Admissible procedure. necessarily summary judgment is in- mean Daubert, 596, 509 U.S. at appropriate. See A reasonable inference such (“[I]n the event the trial 113 S.Ct. 2786 discrimination does not arise this case. court the scintilla of evi- concludes First, regressions fail to take presented position supporting dence past pay, performance, into account juror insufficient to allow a reasonable Second, both. when evaluated the con position likely conclude that the more than facts, undisputed regres text of the true, ... not is the court remains free to sions fail to create a of pat triable case ”). grant summary .... judgment While a tern-or-practice discrimination. may weigh trial court not the evidence or Evaluating propriety explanatory summary credibility judgment, consider at comparative variables is somewhat exer- Anderson, 477 U.S. at 106 S.Ct. plain- cise. deféndant attacks a degree; it can to a limited it When use the scale regression, typically tiffs he must do more nonmoving party must ensure that the has point than out the in his opponent’s a scintilla of evidence in flaws support least Instead, analysis. position. doing, its In so “the court the defendant must must impact draw all inferences in favor of show that the omission had an reasonable But, hand, incomplete Daubert motion. on the other 5. Some can be so summary judgment ruling summary explanatory that finds terms of variables that lose probative question appropriate even if the evidence is all value with to the are, thus, admissible would have the same effect. In of discrimination and inadmissible. event, any cross-appealed Friday, UPS has not 400 n. Bazemore (1986). evidentiary denial of motions. 92 L.Ed.2d 315 its Catlett, alleged at 1266.6 The discrimination in this claim the result. See But, managers, a few instances in is that black center between may “there be judgment, paid a factor ... is so 1991 and the time of the relevance of which defendants, by merely similarly less than situated that the white center obvious omission, out its defeat the were black. All pointing that by experts agree regressions created their re- inference of discrimination Shultz, disparity Palmer v. vealed no racial plaintiffs’ statistics.” terms cen- (D.C.Cir.1987). 84, 101 ter-manager pay peri- F.2d raises for the class pay od. So order for the of black class Selecting proper explanatory variables is members to be lower than that of white particular employer’s a function of the managers, center the discrimination had to determinations. Under compensation center-manager occur with to base scheme, center-manager pay pay UPS’s pay Because the base is set accord- pay salary and components: has two base variable(s) ing past pay, to representing manager’s pay A base is increases. center important. that factor are he becomes a center determined when out, points As UPS both Dr. Weiner subject salary later increases manager, Stapleton past pay Dr. excluded from their An performance. based on individual’s regressions. Stapleton admitted that pay during base remains constant his ten- if past pay analysis, was included Center-manager a manager. ure as center statistically significant then no disparity pay part using base is calculated pay between white and black existed.7 a prior pay, generally individual’s as su- argue jus- that the exclusion was pervisor. Supervisor pay has the same Friday, tified under Bazemore v. pay at the time of two elements —base (1986). 92 L.Ed.2d 315 salary increases based on promotion disagree. We during a su- one’s tenure as Supervisor pay calculat- Bazemore’s relevance involves pervisor. base prior hourly questions related of what role using ed that individual’s somewhat wage. operations past pay pay in certain has in a discrimination case Individuals (e.g., operations) paid explanatory prop- air are more as a and when an variable is thus, rate, job; hourly erly regression analysis. a part of their their omitted from correctly supervisor center-manager base Plaintiffs note Bazemore discriminatory higher. membership past pay are could means that cannot Union legitimate excuse for a later have similar effect. relationship past pay appear opinion to be of the 7. The between and cur- adversary's expert testimony to the use of an rent is of such obvious relevance that the admissibility probative value evaluate the should not have to show its effect defendant departure their constitutes Palmer, See impugn regression. proper summary judgment standard. from Additionally, plaintiff’s F.2d at 101. when disagree. may We It is true that courts nei- expert including explanatory admits that weigh credibility the evidence nor make ther explain apparent disparity, variable would But, summary judgment. determinations we do not think a defendant is barred from mentioned, propriety summary judg- simply arguing was erroneous its omission be, extent, based on ment must limited present because he does not factor and probative value of the nonmovant's evi- analysis. its effect in his requirement We can discern no dence. experts' testimony as this must be con- such a district court as- sidered in isolation when probative value. sesses 394-96, appear justify the omission U.S. at S.Ct. disparity. 478 past pay by pointing class-period to the analyses in discrimina- Regression 3000. found, disparity experts that their infer- legiti- for the attempt to control tion cases discrimination, that a ring claiming pay disparities through for mate reasons past pay that dis- reasonable inference is But, ille- explanatory the use of variables. parities argu- were also race based. This rep- themselves gitimate reasons —reasons ment is circular. The correlation between the unlawful discrimination resentative of center-manager pay race and base from excluded from the re- at issue—should be only past pay 1991 on exists if is omitted with) (or otherwise dealt to avoid gression only regression. pay from the Past be underestimating significance of a dis- omitted if it is somehow linked to race. Willborn, Paetzold & ante parity. See only Plaintiffs’ evidence of discrimination (discussing problem § of tainted 6.13 in past pay apparent is the correlation variables). Thus, regression could be center-manager between race and base taking of discrimination without probative pay during period. the class But if past pay past pay into account correlation is what have according past set to race. This is because only by omitting past pay. They have discriminatory pay pay makes current dis- evidence, otherwise, no or Bazemore, and parities actionable8 under pay past disparities racially discrimi- because the variable can be omitted from a natory. This cannot bootstrapping sort create an if the discrimination inference discrimination with regression tainted class-period pay to either base at issue. past pay. Bazemore, In both the district court and The variables Plaintiffs did use also do appeals past pay the court of found that past pay. not account for the role of For at according was set to race. 478 U.S. example, performance past because affects 390-91, 394, 401-02, Thus, 106 S.Ct. 3000. pay, performance arguably could variables salary plaintiffs’ figures used proxies past pay.9 Stapleton for be regression proper in that case were even appreciated aspect this of the case but though past discriminatory pay accounted “lagged” performance refused to include for In disparity. some the later other precisely really just measures because “it’s words, Bazemore’s did not explaining experience by past pay current past pay need to account for because there pay experience.” past- And he offered this past was evidence of discrimination. omitting rationale as his reason for Here, Plaintiffs would be excused from experiential most other factors that affect if accounting past pay could show above, explained As this ob- UPS. past no such discrimination. We see evi- if meaningful servation could be there had dence. past pay experi- been some evidence that Bazemore, past discriminatory pay past 8. In include considerations of race with re- was inactionable because it occurred before gard governed public employer being Title VII Here, (i.e., pre-1991 pre-class period) sued. Interestingly, given problems per- in the set, pay, discriminatorily even if is inactiona- below, explained past pay data formance period ble It limitations has run. may dependable rates have been a variable to (i.e., post-1991 period) is the the class dis- performance, possibly use as a measure of issue; thus, crimination that is at addition to the data that was disparity during period asserted must available. race, linked to under which could Bazemore center-manager faet that base by discrimination. There is set ence was tainted assumption only promotion, performance none here and the at the time of was omitted, as well as pay should be past prior promotion to the time of is all that is it, unjustified. factors related to was Thus, most relevant. for class members that promoted managers were to center before variety are a of other concerns There 1991, performance are no there evaluations of Plaintiffs’ re- import that reduce the from which to draw data. And for individ- data, performance The which gressions. 1991, promoted uals that were after until experts’ in all to was included only performance relevant data extent, Perform- poses problem. some pre-promotion comes from evaluations. evaluations performance ance data from Post-promotion performance simply could 1991, for that UPS conducted existed have no pay. affect base And such 1993, 1994, Performance was and 1995.10 performance seems too attenuated an indi- certainly employer’s pay to the relevant pre-promotion performance cator of to be decisions, per- it to us that appears but included. only center-manager affect formance could indirectly' by influencing past pay base — The nature of management sys- UPS’s supervisor pay through past supervisor tem a claim pat- also makes of nationwide rates, increases, salary hourly or past tern-or-practice discrimination difficult. regression should have both. So Plaintiffs’ Pay according was set to a decentralized far as past performance utilized back in managers scheme which district available, just was rather than the two given pay. ap- the discretion to set With years they did include. proximately seventy in districts the United indicat- regression UPS offered its own States, each with their own manager, the Dr. Ev- ing impact. the omission had quite statistical evidence have to be would 1995, in- regression ans conducted a for raise, itself, strong by an inference of data, performance cluded all available nationwide discrimination. statistically significant concluded no i.e., pay disparity important the inclusion One of the most flaws remained — performance significance of eliminated the Plaintiffs’ case is that adduced no of race. We think this was sufficient to testimony regarding individual intentional impact omitting show the adverse avail- above, Plain- discrimination. As mentioned able data and showed that in- purported tiffs’ anecdotal evidence was though other not mea- performance, even claim, working-conditions sufficient for the evaluations, important. sured At regard none with Al- pay. we see least, very the fact that no correlation though required, such evidence is not “ severely damages existed the infer- it the doubt failure to adduce ‘reinforces ence UPS had nationwide standard arising questions validity from the about ” operating procedure paying blacks less evidence.’ v. Sears. EEOC than whites. (7th Co., & 839 F.2d Roebuck Cir.1988) (quoting v. Board Re- We also have no indication of which Griffin (7th Cir.1986)). 1281, 1292 gents, employees’ performance data was included bring the “cold num- Such evidence would regressions. Given the nature of Teamsters, convincingly bers to life.” managers’ the claim—that center base than at 97 S.Ct. 1843. was lower blacks whites—and years píete. Even in those the data was incom- center above, white center and black there was explained Finally, as years in all at issue at UPS with no discrimination apparent expert for which Defendant’s raises, except condi- promotions, statistically significant no like that ad- found there was tions. Statistical best, here, only show a corre- difference duced dependent race and lation between presented admissible evi- parties Both infer- rise to further gives variable disparity. All dence on the issue of discrimination pattern-or-praetice ence of experts multiple regression used three Here the flaws are too proper in a case. analyses to determine whether the differ- slight value too for many probative and the to factors pay ence in was attributable carry day by the expert Each identified other than race. the in the a evidence preponderance found to be relevant the factors he she It would manifest- context of this case. determining pay in and controlled ly to infer from Plaintiffs’ unreasonable analyses. Many in these factors their analyses that set center regression in were included the dif- the same factors pay lower for blacks as a managers’ base studies, pay region, per- such as ferent country all across the matter of evaluations, The formance and tenure. question. According- in during period the disagreement experts main between the ly, summary judgment appropriate. performance related to evaluation data. appeal The issue on came down to whether Remaining Issues D. performance all available data should be remaining affirm the two issues We analyses included in the or whether two First, court did not appeal. the district years data was sufficient. denying err in the to intervene motions experts past pay None of the included by Frank and brought Jackson Charles However, analysis. a factor in their the Second, Cartwright. with to UPS’s majority on this factor focuses would-be properly the district court cross-appeal, upholds summary judgment for the decertify denied as moot the motion to the omis Defendants based on the Plaintiffs’ classes. past pay. They despite do so the sion of IV. CONCLUSION qualified experts fact that all three chose They past pay not to include as a factor. affirm.

We that “it clear acknowledging do so while MELLOY, analysis that Judge, concurring regression that a includes Circuit may dissenting. less than ‘all measurable variables’ prove plaintiffs serve to case.” Baze majority I opinion concur on the Friday, more upward mobility conditions (1986). 3000, 92 L.Ed.2d 315 S.Ct. However, I respectfully claims. dissent majority opinion equal from the as to the summary judgment stage, At I Plaintiff gen- claim. believe the has determinations, “[cjredibility weighing on that I erated a submissible case issue. evidence, drawing legiti- and the of the equal would reverse as to claim jury from the facts are mate inferences remand for trial. functions, judge not those of the .... The all of the non-movant is to be be- experts, This is a case which included, lieved, justifiable and all inferences are to expert Defendant’s found sta- in his favor.” Anderson v. Lib- tistically significant difference between be drawn Inc., erty Lobby, (1986). The 91 L.Ed.2d

S.Ct. majority,

question decided whether pay must be added as a factor

past prove prima for the Plaintiffs to

order case, quintessential jury is a issue.

facie light

In considering the evidence Plaintiffs,

most favorable to I would generated

find the Plaintiffs have

jury question on the issue of whether pay disparity facie case exists.

prima

The issue of duly-quali- whether Plaintiffs’ all experts appropriate

fied considered jury. is an issue for the Accord-

variables grant I sum-

ingly, would reverse

mary judgment Defendants

equal pay claim. SHAW,

Jonathan Petitioner- C.

Appellant, TERHUNE, Respondent-Appellee.

Cal

No. 02-16829. Appeals,

United States Court of

Ninth Circuit.

Argued Aug. 2003. Submitted Dec.

Filed

Case Details

Case Name: Morgan v. United Parcel Service of America, Inc.

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Aug 30, 2004

Citation: 380 F.3d 459

Docket Number: 02-2545, 02-2835

Court Abbreviation: 8th Cir.