author: BILLINGS, District Judge.

text:
    Michael S. GALVIN, of the Town of Castleton, County of Rutland, and State of Vermont v. STATE OF VERMONT, a Sovereign State of the United States of America and Vermont Department of Public Safety, a Statutorily created Agency of the State of Vermont.
    Civ. No. 83-460.
    United States District Court, D. Vermont.
    Nov. 9, 1984.

      Theodore A. Parisi, Jr., Parisi & Burke, Castleton, Vt., for plaintiff.
    Brooke Pearson, Legal Counsel, State of Vt., Dept, of Public Safety, Waterbury, Vt., for defendant.
   MEMORANDUM DECISION AND ORDER

BILLINGS, District Judge.

I. INTRODUCTION

Plaintiff was forced to retire as a member of the Vermont State Police because of his age. Plaintiff claims the State’s mandatory retirement age of 55 for state police officers is not a bona fide occupational qualification (BFOQ) and, therefore, constitutes a violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 626(d). Plaintiff also claims that the state’s mandatory retirement age is arbitrary and capricious and, thus, violates his rights both under the Fourteenth Amendment of the United States Constitution and under Chapter 1, Articles 7 and 9, of the Vermont Constitution.

This matter came before the Court on defendants’ motion for summary judgment. As grounds for the motion, defendants maintain that: (1) Plaintiff’s claim under the ADEA is time-barred; (2) the State’s mandatory retirement age for police officers is rationally related to the goal it seeks to achieve; and (3) the case law under the relevant provisions of the Vermont Constitution is uncertain and, therefore, the Court should abstain from deciding the issue. In support of the motion, defendants submitted the deposition of the plaintiff taken on February 14, 1984.

At the outset, we note that on a motion for summary judgment the Court does not sit as a trier of fact; rather our role is to examine the pleadings, affidavits and evidence solely to determine whether there are any genuine issues of fact. Katz v. Goodyear Tire and Rubber Co., 737 F.2d 238 (2d Cir.1984). The burden is on the movant to “demonstrate the absence of any material factual issue genuinely in dispute.” Heyman v. Commerce & Industry Insurance Co., 524 F.2d 1317, 1319-20 (2d Cir.1975). “Not only must there be no genuine issue as to the evidentiary facts, but there must also be no controversy as to the inferences to be drawn from them.” Schwabenbauer v. Board of Education, 667 F.2d 305, 313 (2d Cir.1981). In determining whether there is a genuine factual issue, the Court must view all reasonable inferences in a light most favorable to the non-movant. Equal Opportunity Employment Commission v. Home Insurance Co., 672 F.2d 252, 257 (2d Cir.1982). With this standard in mind, the Court sets forth the following undisputed facts.

II. FACTS

Plaintiff Michael Galvin first became employed by the Vermont State Police in January of 1957. Deposition at 3. He worked continuously for the state police until his mandatory retirement on or about December 31, 1981. Complaint at par. 4. Plaintiff was forced to retire at that time because he reached the state’s mandatory retirement age of 55 on December 26,1981. Deposition at 4. At the time of his retirement, plaintiff was serving as a training officer in Montpelier, Vermont. Deposition at 5. There, he was involved in the administration and instruction of training exercises for state police officers.

When plaintiff first became a trooper, the state’s mandatory retirement age for state police officers was 65. Plaintiff recalls that the mandatory retirement age was changed to age 55 some time in the early 1970’s. Deposition at 13. See also 3 V.S.A. § 455(a)(13). Sometime in 1975, 1976 or 1977 plaintiff became aware of a federal law prohibiting age discrimination and at that time believed the federal law permitted employees to work to an age in excess of 55. Deposition at 18-19.

In September of 1983, plaintiff received notice that a meeting of retired troopers was going to be held in Montpelier. The purpose of the meeting was to discuss the possibility that the mandatory retirement age of 55 imposed by state law on state police officers was in violation of federal law. Plaintiff attended the meeting and, on or about September 6,1983, filed a claim with the EEOC. Deposition at 24. Plaintiff had earlier realized there might have been a conflict between state and federal law but he never intended to file any charges until he was persuaded to do so as a result of the Montpelier meeting. Deposition at 27, 30.

Plaintiff does not recall seeing any notices about discrimination laws at any state offices while he was employed; nor does he recall seeing such notices at the unemployment office he visited after his retirement. Deposition at 51. At the hearing, defendants conceded that no such notices were posted.

The plaintiff was aware, prior to the Montpelier meeting, that the EEOC was available to receive complaints of age discrimination, but he cannot remember precisely when he became aware of that fact. Deposition at 60. Plaintiff also recalls reading a newspaper article in March of 1983 regarding some fish and game wardens who sued the State of Wyoming claiming the state’s mandatory retirement age was discriminatory. Deposition at 54.

III. DISCUSSION

A. The ADEA claim

As, with any statute of limitations claim, the first question is: which limitation period applies? The ADEA creates a statutory right to be free from age discrimination. 29 U.S.C. § 623(a). However, the Act requires that certain administrative steps be followed before a claimant may commence a private suit. A claimant must file notice with the EEOC within 180 days after the alleged violation or, if pursuant to state law a state agency has been authorized or established to guard against age discrimination, such notice must be filed within 300 days from the date of the alleged violation. 29 U.S.C. §§ 626(d), 633(b). The purpose of the 300-day filing period is to afford state agencies time to investigate claims, as provided in § 633(b).

Thus, we must initially determine whether Vermont is a so-called “deferral state” under the terms of Sec. 633(b). The test for determining whether a state is a deferral state is two-fold: 1) the state must have a law prohibiting age discrimination in employment, and 2) there must be a state agency authorized to seek relief for individuals suffering age discrimination. Simpson v. Whirlpool Corp. 604 F.2d 997, 999 (6th Cir.1979).

Vermont’s Fair Employment Practices Act (FEPA), 21 V.S.A. § 495(a) (Supp.1984), expressly prohibits age discrimination in employment. Section 495b(a) authorizes the state attorney general to enforce the provisions of the Act. That section states in relevant part:

The attorney general or a state’s attorney may enforce the provisions of this subchapter by restraining prohibited acts, seeking civil penalties, obtaining assures of discontinuance and conducting civil investigations____

21 S.V.S. § 495b(a). Thus, according to the test established in Simpson, supra, it appears that Vermont is a deferral state within the meaning of § 633(b).

However, as defendants correctly point out, Vermont’s age discrimination law specifically excludes from its reach state police retirement systems which require retirement on account of age. 21 V.S.A. § 495f. This exclusion calls into question whether, for purposes of this particular case, Vermont should be treated as a deferral state.

Although § 633(b) does not by its terms require that the claimant’s claim be within coverage of the state age discrimination before the 300-day notice requirement is triggered under § 626(d), we believe such a requirement arises by necessary implication. The purpose of § 633(b) is to give state agencies an opportunity to settle grievances in a voluntary and localized manner so that the claimants thereafter have no need for independent federal relief. Oscar Mayer & Co. v. Evans, 441 U.S. 750, 761, 99 S.Ct. 2066, 2074, 60 L.Ed.2d 609 (1979). Where, as here, the state agency is powerless to affect any settlement or conciliation between the parties, the policies behind § 633(b) are not served by requiring the claimant to commence state proceedings. See Sturgeon v. Avon Products, Inc., 571 F.2d 5 (7th Cir.1978) (where no redress is available under state discrimination law, plaintiff not required to file notice with state agency under § 633(b)); Curry v. Continental Airlines, 513 F.2d 691 (9th Cir.1975) (plaintiff not required to defer to state agency because agency had policy of not hearing cases where violation occurred before agency assumed jurisdiction over age discrimination).

Accordingly, we hold that, because no redress is available to plaintiff under Vermont law, § 633(b) is not invoked in this case. Consequently, the 300-day limitation period prescribed in § 626(d)(2) is also inapplicable. Plaintiff was required to file his claim within 180 days from the date of the alleged violation.

The next question is whether plaintiff's failure to file his notice with the EEOC within the 180-day time limit bars this action. Although many courts have, in the past, held that the notice requirement is jurisdictional in nature such that failure to comply is an absolute bar to bringing a private action, see, e.g., Dartt v. Shell Oil Co., 539 F.2d 1256, 1259 n. 2 (10th Cir.1976) aff'd without opinion, 434 U.S. 99, 98 S.Ct. 600, 54 L.Ed.2d 270 (1977), it is now settled that the notice requirement is more analogous to a statute of limitations. See Zipes v. Transworld Airlines, Inc., 455 U.S. 385, 395 n. 11, 102 S.Ct. 1127, 1133 n. 11, 71 L.Ed.2d 234 (1982) (quoting House Conference Report No. 950, 95th Cong., 2d Sess., at 12), Reeb v. Economic Opportunity Atlanta, Inc., 516 F.2d 924 (5th Cir.1975). As such, the notice requirement is subject to equitable tolling and estoppel. Reeb v. Economic Opportunity of Atlanta, Inc., supra, 516 F.2d at 928. Thus, the question becomes whether plaintiff has alleged facts which, if assumed to be true, are sufficient to establish an equitable basis for tolling the limitation period combined in § 626(d).

Defendants concede they violated their statutory obligations under the Act by neglecting to post notice informing state police officers of their rights under the ADEA. Such notice is required to be posted in a conspicuous place on the employer’s premises. 29 U.S.C. § 627, 29 C.F.R. § 1627.10 (1984). The purpose of this provision is to insure that employees are informed of their rights under the Act. Because it would be manifestly unfair to permit employers to violate the posting requirement without penalties, courts have uniformly held that failure to post notice tolls the 180-day limitation period until the claimant acquires actual knowledge of his rights under the Act or seeks the services of an attorney. Vance v. Whirlpool, Corp., 716 F.2d 1010, 1012 (4th Cir.1983); Bonham v. Dresser Industries, Inc., 569 F.2d 187, 193 (3rd Cir.1978); Kephart v. Institute of Gas Technology, 581 F.2d 1287, 1289 (7th Cir.1978). Whether a claimant has actual knowledge of his rights under the Act is a question of fact. See, Vance, supra, 716 F.2d at 1013.

In this case, whether Plaintiff had actual knowledge of his rights under the Act sufficient to trigger the running of the limitation period is disputed by the parties. Plaintiff claims that, though he had a general awareness of a federal law prohibiting age discrimination, he first became aware of his rights under the ADEA in September of 1983 at the State Troopers’ meeting. Based on the same facts, Defendants’ claim Plaintiff had long been aware of his rights, but failed to act on them. These allegations, when viewed in a light most favorable to the plaintiff, establish genuine issues of material fact on the question whether the limitation period was tolled until September, 1983. In this case, it will be for the jury to decide when plaintiff became aware of his rights and, thus, whether the 180-day limitation period had run before he filed his claim.

Defendants also claim that plaintiff’s ADEA claim must be dismissed because mandatory retirement of state police officers at age 55 is a bona fide occupational qualification (BFOQ). Under the ADEA, “it is not unlawful for an employer to take any action otherwise prohibited under subsections (a), (b), (c), or (e) of this section where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business, or where the differentiation is based on reasonable facts other than age.” 29 U.S.C. § 623.

Whether age is a BFOQ is a question of fact. Air Line Pilots Association v. Transworld Airlines, 713 F.2d 940, 954 (2d Cir.1983). Moreover, the BFOQ exception “must be narrowly construed and may be invoked only if an employer proves ‘plainly and unmistakably’ that its employment practice meets the ‘terms and spirit’ ” of the Act. Id. at 454, quoting A.H. Phillips Inc. v. Walling, 324 U.S. 490, 493, 65 S.Ct. 807, 808, 89 L.Ed. 1095 (1945). The defendants must demonstrate, at the very least, that the age restriction is reasonably related to an essential operation of the business, Orzel v. City of Wauwatosa Fire Dept., supra, 697 F.2d at 753. Defendants must prove, for example, that the age restriction is not motivated by economic considerations. Smallwood v. United Air Lines, Inc., 661 F.2d 303, 307 (4th Cir. 1981). cert. denied, 456 U.S. 1007, 102 S.Ct. 2299, 73 L.Ed.2d 1302 (1982).

The defendants claim, however, that the mandatory retirement age of 55 for state police officers is a BFOQ, as a matter of law. Defendants rely on a recent Fourth Circuit case, Johnson v. Mayor and City of Baltimore, 731 F.2d 209 (4th Cir.1984) which reversed the finding by the trial court that the defendants did not establish that age was a BFOQ for Baltimore’s firefighters. The Johnson court relied on Equal Employment Opportunity v. Wyoming, 460 U.S. 226, 103 S.Ct. 1054, 75 L.Ed.2d 18 (1983) in arriving at the conclusion that, because Congress had found age is a BFOQ for federal firefighters, it could be presumed that age is also a BFOQ for Baltimore’s firefighters.

In Equal Employment Opportunity v. Wyoming, supra, the Supreme Court held that the extention of the ADEA to state and local governments is a valid exercise of Congress’ powers under the Commerce Clause and is not prohibited by the Tenth Amendment. In so holding, the Court stated:

“Perhaps more important, appellees remain free under the ADEA to continue to do precisely what they are doing now, if they can demonstrate that age is a ‘bona fide occupational qualification’ for the job of game warden. [Citation omitted]. Thus, in distinct contrast to the situation in National League of Cities v. M.J. Usery, supra, [426 U.S. 833] at 848 [96 S.Ct. 2465 at 2472, 49 L.Ed.2d 245] even the State’s discretion to achieve its goals in the way it thinks best is not being overridden entirely, but is merely being tested against a reasonable federal standard.”

Equal Employment Opportunity v. Wyoming, supra, 460 U.S. at 240, 103 S.Ct. at 1062. Based upon this language, the Johnson court determined that its duty was to “initiate a search for a ‘reasonable federal standard’ by which to test whether age is a bona fide occupational qualification for Baltimore’s firefighters.” Johnson v. Mayor and City of Baltimore, supra, 781 F.2d at 212. The court there concluded that “[wjhere Congress itself has deemed age to be a bona fide occupational qualification for federal firefighters, we perceive no justification for ignoring the Congressional mandate in ascertaining ‘a reasonable federal standard’ by which to measure firefighting in the City of Baltimore. Id. at 212-13.

We do not view Johnson as viable precedent in this case. Even if the above-quoted passage from EEOC v. Wyoming stands for the proposition that, where Congress has found age to be a BFOQ in a related situation, the essential inquiry becomes a question of law, we are not convinced the Congressional determination that age is a BFOQ for federal police officers is relevant in this case. First, there has been no showing that the federal government’s program is sufficiently comparable to Vermont’s to permit us to presume that age is a BFOQ under Vermont’s system. Second, the Supreme Court in EEOC v. Wyoming implicitly rejected such a method for determining whether age is a BFOQ. The Court stated “[w]e note, incidentally, that the strength of the federal interest underlying the Act is not negated by the fact that the federal government happens to impose mandatory retirement on a small class of its own workers.” EEOC v. Wyoming, 460 S.Ct. at 242 n. 17 (citations omitted).

In sum, we find no support in EEOC v. Wyoming for the proposition that a Congressional finding that age is a BFOQ for federal employees operates, as a matter of law, to establish a BFOQ in similar state-employee ADEA actions. See n. 2 supra. As Chief Judge Harrison stated in his dissenting opinion in Johnson, “the fact that Congress may require some federal firefighters to retire at age fifty-five does not excuse Baltimore from proving the facts necessary to satisfy 29 U.S.C. § 623(f)(i).” Johnson v. Mayor and City of Baltimore, 731 F.2d at 218. Nor should it excuse Vermont from meeting its burden in this case.

B. The Equal Protection Claim

Defendant’s next contend that plaintiff’s equal protection claim under the United States Constitution should be dismissed because it fails to state a claim as a matter of law. The parties agree that the appropriate standard of review on this issue is the rational-basis standard, as no fundamental rights or suspect class are implicated in this dispute. See, e.g. Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976). Accordingly, the only issue presented by plaintiff’s equal protection claim is whether Vermont’s mandatory retirement statute, 3 V.S.A. § 459(a)(2), is rationally related to a legitimate governmental purpose. See, Clements v. Fashing, 457 U.S. 957, 102 S.Ct. 2836, 2843, 73 L.Ed.2d 508 (1982). Defendants argue that whether the statute is rationally related to its goal is a question of law, proper for determination on a motion for summary judgment.

Where, as here, there are no articulated purposes underlying the statute in question, the Court’s inquiry becomes one of determining whether, under the surrounding circumstances and through application of logic, there exists “a legitimate purpose that we may reasonably presume to have motivated an impartial legislature.” Frazier v. Manson, 703 F.2d 30, 34 (2d Cir.1983) quoting United States Railroad Retirement Board v. Fritz, 449 U.S. 166, 180-87, 101 S.Ct. 453, 462-65, 66 L.Ed.2d 368 (1980) (Stevens, J., concurring). Absent any evidence that the legislature lacked a legitimate reason for the lines drawn by the challenged statute — and in this case plaintiff has proffered none — the court may “explore other rational justifiable bases.” Frazier v. Manson, supra, 703 F.2d at 35. As was the case in Massachusetts Board of Retirement v. Murgia, supra, 427 U.S. at 314, 96 S.Ct. at 2567, logic and common sense supports the conclusion that Vermont could have been motivated by the desire to protect the public by assuring physical preparedness of its uniformed police. See id. at 314 n. 7, 96 S.Ct. at 2567-68. The Court therefore concludes that it was rational for the Vermont Legislature to require mandatory retirement for all state police officers. Plaintiffs equal protection claim must be dismissed.

C. The Pendent State Claim

Given the disposition of plaintiff’s ADEA claim, there can be no question that the pendent state constitutional claim is properly before the Court, since both claims arise out of the same nucleus of operative fact. See United Mine Workers of America v. Gibbs 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). However, defendants nevertheless claim that the Court should abstain from deciding the state constitutional claim.

Abstention is appropriate only where the issue of state law is uncertain and where resolution of the issue in state court would obviate the need to adjudicate a federal constitutional question. Wisconsin v. Constantineau, 400 U.S. 433, 438-39, 91 S.Ct. 507, 510-11, 27 L.Ed.2d 515 (1971). See also, Jancyn Manufacturing Corp. v. County of Suffolk, 583 F.Supp. 1364, 1370 (E.D.N.Y.1984).

Here, the state constitutional claims raised are plain and unambiguous. Plaintiff claims his rights were violated under Chapter I, Articles 7 and 9 of the Vermont Constitution. As construed by the Vermont Supreme Court, Article 7 is “[sjomewhat similar to the equal protection test of the fourteenth amendment [and] only allows the statutory classifications involved ____ if a case of necessity can be established overriding the prohibition of Article 7 by reference to the ‘common benefit, protection, and security of the people.’ ” State v. Ludlow Supermarkets, 141 Vt. 261, 268, 448 A.2d 791 (1982).

By its terms, Article 9 is similar to the federal due process clause of the fourteenth amendment. The fact that the Vermont Supreme Court has not had the opportunity to interpret Article 9 within the same context as asserted here is irrelevant, for “abstention should not be ordered merely to await an attempt to vindicate the claim in a state court.” Wisconsin v. Constantineau, supra, 400 U.S. at 438-39, 91 S.Ct. at 510-11. Accord Barry v. Barchi, 443 U.S. 55, 63 n. 10, 99 S.Ct. 2642, 2648 n. 10, 61 L.Ed.2d 365 (1979).

Finally, given the disposition of plaintiff’s federal equal protection claim, abstention in this case will not further the goal of avoiding adjudication of federal constitutional questions. Therefore, the Court declines to abstain from deciding plaintiff’s state constitutional claims.

ORDER

Based upon the foregoing, it is hereby ORDERED that:

Defendant’s Motion for Summary Judgment with regard to plaintiff’s ADEA claim is DENIED.

Defendant’s Motion for Summary Judgment with regard to plaintiff’s federal equal protection claim is GRANTED.

Defendant’s Motion for Summary Judgment with regard to plaintiff’s state constitutional claim is DENIED.

      . The test employed by some courts has varied slightly from the rule cited above; some are more strict, others less so. Compare Earnhardt v. Commonwealth of Puerto Rico, 691 F.2d 69, 72 (1st Cir.1982) (failure to post notice tolls limitation period until employee acquires "actual or constructive knowledge of ADEA complaint procedures.”) (emphasis supplied) with Templeton v. Western Union Telegraph, 607, F.2d 89, 91, (5th Cir.1979) (limitation period begins to run when employee acquires actual knowledge or “the means of knowledge" of his rights under the ADEA.

      . We think the Johnson court's reading of EEOC v. Wyoming is overbroad. Our understanding of the above-cited passage is that the “reasonable federal standard” the Supreme Court was referring to is the BFOQ standard itself, not Congressional findings.

      . Article 7 states:
      “That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community, and not for the particular emolument or advantage of any single man, family, or set of men, who are a part only of that community; and that the community, hath an indubitable, unalienable, and indefeasible right, to reform or alter government, in such a manner as shall be, by that community, judged most conducive to the public weal.”
      Article 9 states:
      "That every member of society hath a right to be protected in the enjoyment of life liberty, and property, and therefore is bound to contribute his proportion towards the expence of that protection, and yield his personal service, when necessary, or an equivalent thereto, but no part of any person's property can be justly taken from him, or applied to public uses, without his own consent, or that of the Representative Body of the freemen, nor can any man who is conscientiously scrupulous of bearing arms, be justly compelled thereto, if he will pay such equivalent; nor are the people bound by any law but such as they have in like manner assented to, for their common good: and previous to any law being made to raise a tax, the purpose for which it is to be raised ought to appear evident to the Legislature to be of more service to community than the money would be if not collected.”


source: Caselaw Access Project

author: WINDER, District Judge.

license: Public Domain

text:
    Cheryl HARGETT, individually and as Guardian ad Litem for Nathaniel Hargett, a Minor, Plaintiffs, v. David LIMBERG, M.D., an individual, and Intermountain Health Care, Inc., dba Fillmore Hospital and Fillmore Hospital, Defendants.
    Civ. No. C-83-0162W.
    United States District Court, D. Utah, C.D.
    Nov. 13, 1984.

      Fred R. Silvester, Salt Lake City, Utah, for plaintiffs.
    B. Lloyd Poelman, David B. Erickson, Salt Lake City, Utah, for defendants.
   MEMORANDUM DECISION AND ORDER

WINDER, District Judge.

This matter is before the court on defendants’ motion for summary judgment. The court heard oral argument on the motion on June 28,1984, after which the court requested that plaintiffs notify the Attorney General of the State of Utah of their constitutional challenge to the Utah Health Care Malpractice Act’s statute of limitations. Plaintiffs have since made the proper notification, and all parties have submitted additional memoranda pertaining to the constitutional issues. The court again heard oral argument on November 5, 1984, Fred R. Silvester appearing for plaintiffs and David B. Erickson appearing for defendants. Being now fully advised, the court renders the following decision and order.

This case is a diversity action for medical malpractice arising from injuries suffered by Nathaniel Hargett, a minor child of plaintiff Cheryl Hargett. Nathaniel contracted meningitis in February, 1979. He has been diagnosed as presently having several physical, neurological and mental impairments directly or indirectly attributable to the meningitis. Plaintiffs claim that the severity of Nathaniel’s impairments was caused by the negligence of defendant Dr. David Limberg, M.D., in failing to promptly diagnose and treat the meningitis. Defendants have moved for summary judgment contending that this action is barred by the applicable statute of limitations.

I.

The material facts construed most favorably to plaintiffs can be briefly summarized. Nathaniel Hargett, then a 3V2-month-old baby, began having health problems related to this action about February 5, 1979. On February 12, 1979 his mother, Cheryl Hargett, telephoned Dr. David Limberg, to report that Nathaniel had a fever, diarrhea and other symptoms. Dr. Limberg felt that Nathaniel had a viral infection. As the week progressed, Nathaniel’s condition worsened. Ms. Hargett took Nathaniel to the hospital and to Dr. Limberg’s clinic a number of times during the week and Dr. Limberg examined Nathaniel three or four times. Dr. Limberg’s opinion was that Nathaniel had a viral infection that would have to run its course.

By Friday, February 16, 1979, Nathaniel’s condition had deteriorated considerably. Dr. Limberg examined Nathaniel early that day and sent him home with the same diagnosis. Ms. Hargett telephoned Dr. Limberg one or two more times that Friday, and on Friday night Dr. Limberg again told Ms. Hargett that Nathaniel had a viral infection.

Ms. Hargett took Nathaniel to the hospital on Saturday morning where Dr. Limberg saw him. Dr. Limberg was short-tempered and sent Ms. Hargett and Nathaniel home. Saturday or Sunday evening, Ms. Hargett, believing her baby was dying, took Nathaniel to the hospital. Dr. Limberg arrived shortly, examined Nathaniel and took a blood count and spinal tap. The spinal fluid was cloudy indicating meningitis. Nathaniel was then immediately transferred to the care of Dr. Phillip Freestone at Utah Valley Hospital. Nathaniel was comatose for his first seven days at Utah Valley Hospital. After three weeks he was released for a few days, but was readmitted and remained hospitalized for three to three and one-half months.

Ms. Hargett stated in her deposition that she realized that the severity of the meningitis may have been exacerbated by Dr. Limberg’s failure to diagnose the illness earlier and that Dr. Limberg may have been negligent:

Q. Have you ever had a conversation with Dr. Limberg in which you told him that you felt that the injuries that — and the damages that Nathaniel presently experiences, were in part or completely his fault?
A. No. I never accused him of anything.
Q. Have you ever had any conversations with any hospital personnel in which you’ve made that kind of statement?
A. Yes.
Q. Who have you talked with from the hospital?
A. Upon Nathaniel arriving at Utah Valley Hospital, I had asked Dr. Freestone — I told him I felt that Dr. Limberg had been negligent. He waited too long to diagnose Nathaniel to the point of him becoming more severe, and I asked him what the chances were of proving this. And he said with a general practitioner it would be hard to prove.

Cheryl Hargett-McMahon Depo. at 70 (Feb. 22,1984). Later in the same deposition Ms. Hargett again stated that on February 18, 1979 she believed that Dr. Limberg may have been negligent:

Q. When you were in the ambulance going from Fillmore Hospital to Utah Valley Hospital, and you had been told that Nathaniel then had meningitis, did you at that time feel that Dr. Limberg had been negligent in not making an earlier diagnosis of it?
A. Yes. I was more concerned for Nathaniel at that point and didn’t center anything else on him.

Id. at 86.

The Utah Health Care Malpractice Act’s limitation provision states:

No malpractice action against a health care provider may be brought unless it is commenced within two years after the plaintiff or patient discovers, or through the use of reasonable diligence should have discovered the injury, whichever first occurs, but not to exceed four years after the date of the alleged act, omission, neglect or occurrence____

Utah Code Ann. § 78-14-4(1) (Supp.1983). In Foil v. Ballinger, 601 P.2d 144 (Utah 1979), the Utah Supreme Court defined “discovers ... the injury” to mean discovery of a legal injury. That is the two-year limitation period begins to run when the plaintiff or patient “knew or should have known that he had sustained an injury and that the injury was caused by negligent action.” Id. at 148.

Plaintiffs argue that the statements from Ms. Hargett’s deposition do not indicate knowledge of legal injury as required by the Utah Supreme Court in Foil. Plaintiffs contend that Ms. Hargett did not discover the possibility of a legal injury until she consulted a lawyer in February, 1983 because she has no medical training and was led to believe by Dr. Freeman and others that Dr. Limberg’s alleged negligence could not be legally proven. That argument, however, is without merit and confuses “legal injury” with a legal conclusion of negligence.

Under Foil, and its progeny, a legal determination of negligence is not necessary to start the statute of limitations. Rather, the crucial question is whether the plaintiff was aware of the facts that would lead a reasonable person to conclude that he may have a cause of action against the health care provider. See, e.g., Reiser v. Lohner, 641 P.2d 93, 99 (Utah 1982); Hove v. McMaster, 621 P.2d 694, 696 (Utah 1980); Foil, 601 P.2d at 148. Those facts include the existence of an injury, its cause and the possibility of negligence. The deposition testimony of Ms. Hargett indicates that she was aware of those facts on February 18, 1979 when she took Nathaniel to Utah Valley Hospital. Despite the extra time provided by the court, plaintiffs have not submitted any affidavits or other evidence to explain or refute the plain statements made by Ms. Hargett in her deposition.

The court therefore concludes that Nathaniel’s mother and guardian ad litem, Cheryl Hargett, discovered that Nathaniel had suffered a legal injury as early as February 18, 1979. Plaintiffs filed two separate complaints on February 16, 1983 and May 23,1983, well beyond the two-year limitations period. Accordingly, plaintiffs’ claims for medical malpractice are barred by the statute.

II.

Plaintiffs next argue that the claim of Nathaniel Hargett is not barred because Nathaniel was incapable of discovering the legal injury due to his age and mental condition. That argument must also be rejected. The statute of limitations in issue specifically provides that the two-year period commences when “the plaintiff or patient discovers” the legal injury. Utah Code Ann. § 78-14-4(1) (Supp.1983) (emphasis added). The plaintiff in this action is Cheryl Hargett individually and as guardian ad litem for Nathaniel. Although the patient, Nathaniel, was incapable of discovering the legal injury, as discussed above, the plaintiff, Ms. Hargett, discovered the legal injury more than two years prior to bringing this action.

Plaintiffs contend that the neglect of a plaintiff-guardian ad litem in failing to commence an action should not be attributed to a minor-patient. In support of that argument, plaintiffs have cited cases from the child support area indicating that a child’s vested rights to child support cannot be cut-off due to the neglect or other failure of the parents. See Reick v. Reick, 652 P.2d 916, 917 (Utah 1982); Szarek v. Sandoval, 636 P.2d 1082, 1085 (Utah 1981).

In Szarek, the Utah Supreme Court held that any statute limiting the time in which a paternity action must be commenced under the Utah Uniform Paternity Act is tolled by Utah’s general tolling provision for all statutorily qualified plaintiffs during the child’s minority. The Szarek court reasoned that,

Viewed from the defendant’s perspective, this long extension of the period of his (the alleged father’s) vulnerability to this kind of action obviously runs counter to the policies served by' the statutes of limitation, but the legislature has resolved the conflicting policies in favor of the interests of the minor child and those who support him, § 78-12-36, and we are obliged to follow their clear direction.

636 P.2d at 1085. The reference to § 78-12-36 is to Utah’s general tolling provision, which provides, in part, that if “a person entitled to bring an action [with certain exceptions not applicable here] is at the time the cause of action accrued, either: (1) Under the age of majority; ... the time of such disability is not part of the time limited for the commencement of the action.” Utah Code Ann. § 78-12-36 (1977). In reaching its holding, the Szarek court relied on Scott v. School Board of Granite School District, 568 P.2d 746 (Utah 1977), in which the Utah court characterized the general tolling provision as an expression of “the general legislative intent to protect the causes of minors.” Id. at 748.

By contrast to the weighing process in the area of paternity and child support found by the Utah Supreme Court, the Utah Legislature expressly came to a different conclusion in weighing the policies favoring protection of the rights of minors with medical malpractice claims against the public’s interest in containing the costs of medical malpractice insurance. In addition to the plain language that the two-year period in the Malpractice Act’s limitations provision commences upon discovery by the “plaintiff or patient,” the statute states, “the provisions of this section shall apply to all persons, regardless of minority or other legal disability under section 78-12-36 or any other provision of the law____” Utah Code Ann. § 78-14-4(2) (Supp.1983). The legislative history of this language indicates that it was added as an amendment in direct response to the Utah court’s pronouncement in Scott of the general policy favoring protection of the causes of minors. In view of the express language of the statute and the legislative history, plaintiffs’ argument that Ms. Hargett’s discovery of the legal injury does not bar Nathaniel’s claim must be rejected.

III.

Finally, plaintiffs challenge the constitutionality of the Utah Malpractice Act’s provision excepting minors from the general tolling statute. Plaintiffs contend that the disparate treatment of minors who have medical malpractice claims, as opposed to minors who have other types of claims, violates the equal protection guarantees of the United States and Utah Constitutions. Further, plaintiffs argue that the limitations statute violates the due process and open courts provisions of the Utah Constitution.

A. Equal Protection

It is universally accepted that a legislature may put adults and infants on the same footing with respect to statutes of limitations without affecting constitutional rights. See, e.g., Petri v. Smith, 307 Pa. Super. 261, 453 A.2d 342 (1982); De Santis v. Yaw, 290 Pa.Super. 535, 434 A.2d 1273 (1981); 51 Am.Jur.2d, Limitations of Action § 192 (1970). Plaintiffs do not dispute that rule. Instead they contend that the Utah legislature has improperly discriminated against one class of minors — those with medical malpractice claims as opposed to minors with other types of claims — by providing that the Malpractice Act’s statute of limitations is not affected by the general tolling provision.

Plaintiffs’ equal protection challenge is a variant of challenges to the Utah Malpractice Act’s limitations provision rejected by this court in Wheaton v. Jack, Civ. No. C-82-0039, slip op. (D.Utah Aug. 9, 1982), and the Utah Supreme Court in Allen v. Intermountain Health Care, Inc., 635 P.2d 30 (Utah 1981). In both of those cases, the courts applied a “rational relationship” test in analyzing the equal protection claims. In the present case, plaintiffs argue that the appropriate standard of review is one of “heightened scrutiny.” Plaintiff relies on several recent United States Supreme Court decisions in support of that position involving classifications based on gender, see, e.g., Heckler v. Mathews, — U.S. —, 104 S.Ct. 1387, 79 L.Ed.2d 646 (1984); Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976), alienage, see, e.g., Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971), and illegitimacy, see, e.g., Pickett v. Brown, 462 U.S. 1, 103 S.Ct. 2199, 76 L.Ed.2d 372 (1983). Plaintiffs further argue that the case of Plyer v. Doe, 457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982), in which the Supreme Court struck down a Texas law denying illegal alien children a free education provided to other children, mandates a heightened level of review. The Plyer Court concluded that although the right to an education was not a “fundamental interest” it was an interest of “basic importance.”

The court concludes that heightened scrutiny is not appropriate for reviewing the classification at issue here. Unlike alienage, illegitimacy or gender, the class of minors with medical malpractice claims does not involve a fundamental interest or a classification of a suspect character. Moreover, a minor’s interest in redress for medical malpractice is not an interest of “basic importance,” as is the interest in an education considered in Plyer.

The correct standard for equal protection analysis to be applied in this case under both the United States and Utah Constitutions is the rational basis test. See Schweiker v. Wilson, 450 U.S. 221, 101 S.Ct. 1074, 67 L.Ed.2d 186 (1981); Brubaker v. Cavanaugh, 741 F.2d 318 (10th Cir.1984); American Bank and Trust Co. v. Community Hospital, 36 Cal.3d 359, 204 Cal.Rptr. 671, 683 P.2d 670, 677 n. 10 (1984); Allen v. Intermountain Health Care, Inc., 635 P.2d 30, 31 (Utah 1981). Under that standard, the court must uphold the statute if the classification is rationally related to a legitimate legislative purpose.

The express purpose for the Malpractice Act’s notice and limitations provisions is “to protect and ensure the continued availability of health care services to the public.” Allen, 635 P.2d at 32; see Utah Code Ann. § 78-14-2 (1977). The legislature found an increasing trend in the number of medical malpractice claims and the amount of settlements and judgments. That trend was causing malpractice insurance premiums to increase to the extent that health care providers were encouraged to practice defensive medicine. Further, the legislature found that health care services were threatened by the possible unavailability of malpractice insurance. Id. Consequently, the statute of limitations was enacted, “to provide a reasonable time in which actions may be commenced against health care providers while limiting that time to a specific period for which professional liability insurance premiums can be reasonably and accurately calculated ...” Id.

Plaintiff contends that the objective of containing a malpractice insurance crisis that may have existed in 1976 when the Malpractice Act was originally enacted was not present in 1979 when the provision excepting minors and mentally incompetent persons from the general tolling statute was added. Contrary to plaintiffs assertions however, the legislative history indicates that the Utah legislature found that a malpractice insurance crisis continued to exist in 1979. See Transcription of Discussion and Vote in Utah House of Representative at Third Reading of H.B. 164 (Feb. 13, 1979). Containment of that perceived crisis is unquestionably a legitimate legislative objective.

Plaintiffs further contend that excepting minors from the tolling provision has no rational relationship to the objective of containing insurance costs because ninety percent of all claims are discovered within four years of the injury and less than one-seventh of all claims are brought by or on behalf of minors. See Note, California’s Medical Injury Compensation Reform Act: An Equal Protection Challenge, 52 S.Cal.L.Rev. 829, 960-62 (1979). Additionally, plaintiffs assert that the provision may not accomplish the legislative purpose because the short statutory period may actually increase the number of claims filed.

The constitutionality of the measure does not depend on a court’s assessment of its empirical success or failure. It is sufficient if the legislature “could rationally have decided ” that the means chosen will promote the legislative objectives. Minnesota v. Cloverleaf Creamery Co., 449 U.S. 456, 466, 101 S.Ct. 715, 725, 66 L.Ed.2d 659 (1981). The court concludes that the exclusion of minors and legally incompetent persons from the general tolling provision is rationally related to the stated purpose of containing the malpractice insurance crisis. That rationality is particularly evidenced by the facts of the present case. Serious permanent injuries to children are often cases of large potential damages. If the period in which such claims could be brought were tolled until the young child reached the age of majority, a heavy burden would be placed on insurance carriers in evaluating and defending against the claim, establishing appropriate reserve requirements, and setting rates. The percentage of medical malpractice claims brought by minors is far from insignificant. Moreover, the uncertainty inherent in tolling the period in which such claims may be brought could drastically affect insurance rates of at least the segment of health care providers that provide services exclusively to minors.

Weighing the need to contain malpractice insurance costs and the need to ensure the availability of health care services crisis against the competing interests of minors and mental incompetents whose parents or guardians fail to initiate an action is particularly appropriate for the legislature, not the courts. The Utah legislature has done so and the statutory provision is reasonably related to accomplish a legitimate legislative purpose. The court therefore concludes that the classification at issue does not amount to a denial of equal protection.

B. Due Process — Open Courts

Plaintiffs raised a due process challenge to the Malpractice Act’s limitations provision in their initial memorandum, although that argument is not addressed in their supplementary memorandum. In any event, the provision does not violate plaintiffs constitutional due process rights. See, e.g., Brubaker v. Cavanaugh, 741 F.2d 318 (10th Cir.1984); Reese v. Rankin Fite Memorial Hospital, 403 So.2d 158 (Ala.1981); Donabedian v. Manzer, 153 Cal.App.3d 592, 200 Cal.Rptr. 597 (1984); Wheeler v. Lenski, 8 Kan.App.2d 408, 658 P.2d 1056 (1983).

Plaintiffs have also challenged the statute based on the open courts provision of the Utah Constitution. Utah Const. art. I, § 2. Relying on the concurring opinion of Justice Howe in Meyers v. McDonald, 635 P.2d 84, 88 (Utah 1981), plaintiffs contend that there is an unconstitutional denial of access to the courts where a plaintiff’s claim is barred by a statute of repose before an injury is ascertained. That general issue, however, is not raised by the facts of this ease. Indeed, as discussed above, the plaintiff in this action discovered the alleged legal injury before the statute ran. Even if the issue were implicated, this court previously concluded in Wheaton v. Jack, Civ. No. C-82-0039, slip op. (D.Utah Aug. 9, 1982), that the statute does not violate the open courts provision.

For the reasons set forth herein, IT IS HEREBY ORDERED that defendants’ motion for summary judgment is granted.

      . Defendants’ motion was filed originally as a motion to dismiss. Because matters outside of the pleadings were presented and considered, however, the court converted defendants’ motion to dismiss to a motion for summary judgment pursuant to Rule 12(b), Fed.R.Civ.P. Plaintiffs have had nearly four months to present any material made pertinent by Rule 56.

      . This action was consolidated with Hoyt v. Limberg, Civ. No. C-83-0697C, on January 16, 1984. Westley Hoyt appeared as guardian ad litem for Nathaniel in that action. However, plaintiffs’ counsel has represented by letter to the court and in plaintiffs’ memorandum that the initial complaint was filed merely to satisfy the notice requirement of the Utah Malpractice Act. See Utah Code Ann. § 78-14-8 (Supp.1983). Further, Westley Hoyt moved to withdraw as guardian ad litem on September 29, 1983.

      . At the floor debate prior to the third reading of H.B. 164, Representative C. DeMont Judd stated:
      [W]e come to you now with the amendment which suggests that, despite what it says in 78-4, it does not impact 78-12 which is another area of the statute of limitations, and so we are making that change in order to overturn a Supreme Court decision which has recently come down.
      Transcript of Discussion and Vote in Utah House of Representatives at Third Reading of H.B. 164 (Feb. 13, 1979).

      . Plaintiffs also note a "sliding-scale” or “spectrum of standards" approach advocated by Justices Marshall, White and Stevens. See, e.g., Craig v. Boren, 429 U.S. 190, 212, 97 S.Ct. 451, 464, 79 L.Ed.2d 646 (1976) (Stevens, J., concurring); Vlandis v. Kline, 412 U.S. 441, 458-59 (1973) (White, J., concurring); San Antonio Ind. School Dist. v. Rodriguez, 411 U.S. 1, 98-99, 93 S.Ct. 1278, 1329, 1330, 36 L.Ed.2d 16 (1973) (Marshall, J., dissenting). While it may be true that a sliding-scale approach is in fact applied, a majority of the Supreme Court has never expressly adopted such an approach and this court declines to do so.

      . Plaintiffs contend that this court should apply a rationality test "with bite” as advocated by a leading commentator, see G. Gunther, Constitutional Law 688-93 (10th ed. 1980), and as plaintiff contends was applied by the Utah Supreme Court in Malan v. Lewis & Lewis, No. 17606, slip op. (Utah May 1, 1984). This court expresses no opinion as to whether that approach is necessary, but would reach the same conclusion even if such a test were applied.


author: EISELE, Chief Judge.

text:
    Larry ELLISON, Individually and on behalf of all others similarly situated, Preston Jordon, Bobby Bobo, Malinda J. Simmons, Plaintiffs, v. BEST FOODS, A DIVISION OF C.P.C. INTERNATIONAL, INC., Mary L. Day, Intervenor (8-30-82), Issac Lunnie (Plaintiff in Intervention), Jean Walker (Plaintiff in Intervention (11-1-83)), Defendants.
    No. LR-C-81-15.
    United States District Court, E.D. Arkansas, W.D.
    Nov. 14, 1984.

      Morris W. Thompson, Little Rock, Ark., for plaintiffs.
    Frederick S. Ursery, Friday, Eldridge & Clark, Little Rock, Ark., for defendant.
   MEMORANDUM AND ORDER

EISELE, Chief Judge.

Introduction

This is an employment discrimination case involving seven former employees of defendant Best Foods, Incorporated. The complaint in this action was originally filed as a class action. Initially there was only one plaintiff — Mr. Larry Ellison — but in 1981, the Court permitted the addition of three other plaintiffs. Since that time three more former employees were allowed to intervene in the suit. On August 30, 1982, the Court denied the plaintiffs’ motion for class certification.

All plaintiffs bring claims under 42 U.S.C. § 1981 and all except one plaintiff sue under Title VII as well. In essence, the plaintiffs allege two theories: (1) that the defendant’s method of operating its plant had a disparate impact on blacks and, (2) that specific decisions rendered with respect to the individual plaintiffs evidence disparate treatment. As to the disparate treatment claims, all of the plaintiffs argue that their terminations or denials of promotions were based improperly on racial considerations. In their disparate impact claims, six of the plaintiffs contend that the nature of the system of management and organization of the firm — the “self-regulated work force system” — has a disparate impact on blacks. According to the plaintiffs, black employees advance less rapidly, are disciplined more often, and are discharged at a greater rate, than their white counterparts.

The trial of this action was held over seven days in April and June of this year. At the conclusion of the trial, the plaintiffs requested leave to brief the issues before the Court rendered its decision. Although the Court granted the request and allowed both parties to file post-trial briefs, only the defendant actually submitted samé.

The Court has now considered the testimony at trial, the arguments of counsel and the various briefs that were submitted pre and post trial. For the reasons stated below, it concludes that the plaintiffs failed to sustain their burden of proving that they were the victims of racial discrimination under either the disparate impact or the disparate treatment theories. As a consequence, all claims must be dismissed.

Before discussing the individual cases, the Court will briefly discuss the applicable law. As noted above, claims are asserted under Title VII and 42 U.S.C. § 1981. The applicable provision in Title VII — 42 U.S.C. § 2000e-2 provides:

(a) It shall be an unlawful employment practice for an employer—
(1) to fail or refuse to hire or to discharge any individual, or to otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex or national origin.

Section 1981 provides:

Equal rights under the law
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

Disparate Treatment

To establish liability for disparate treatment under either statute, the plaintiffs must prove they have been the victim of intentional racial discrimination.

The Supreme Court in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), discussed the order and allocation of the burdens of proof in Title VII disparate treatment cases:

In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), we set forth the basic allocation of burdens and order of presentation of proof in a Title VII case alleging discriminatory treatment. First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant “to articulate some legitimate, non-discriminatory reason for the employee’s rejection.” Id. 411 U.S. at 802, 93 S.Ct. at 1824. Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Id. 411 U.S. at 804, 93 S.Ct. at 1825.
The nature of the burden that shifts to the defendant should be understood in light of the plaintiff’s ultimate and intermediate burdens. The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.

450 U.S. at 252-53, 101 S.Ct. at 1093 (footnote omitted). These same principles regarding the order and allocation of the burdens of proof also apply to actions based on section 1981. See Walker v. International Business Machines, 698 F.2d 959, 961 (8th Cir.1983).

Prima Facie Case

To make out a prima facie case of discriminatory discharge, each plaintiff had to show that

(1) he was a member of a protected class,
(2) he was capable of performing the job, and
(3) he was discharged from the job.

Johnson v. Bunny Bread Co., 646 F.2d 1250, 1253 (8th Cir.1981) (citing Osborne v. Cleland, 620 F.2d 195, 198 (8th Cir.1980)

To make out a prima facie case of failure to promote, plaintiffs had to show:

(1) they belong to a protected class;
(2) they applied for a job for which they were qualified;
(3) despite their qualifications, they were rejected; and
(4) thereafter, the position remained open and the employer continued to seek applicants with qualifications similar to those of the plaintiffs.

Moore v. Bank of Dardanelle, 732 F.2d 162 (8th Cir., 1984) (citing Hawkins v. Anheuser-Busch, Inc., 697 F.2d 810, 812 (8th Cir.1983)). As noted in Bank of Dardanelle, a plaintiff may fail to show he is qualified for a position even if he has the same qualifications as did a predecessor in that position if defendant upgraded the qualifications in an effort to improve its business. The court’s language in Bank of Dardanelle is instructive:

It is clear that appellants failed to make out a prima facie case since they were not qualified to perform the same duties for which Armstrong was hired. Armstrong had two college degrees in business and banking and was a lawyer with significant prior banking experience. In contrast, appellants had only completed one year of college and had been previously employed at the Bank performing primarily clerical duties. It is true that appellants need not prove their relative qualifications to meet their prima facie burden. See Hawkins, 697 F.2d at 812-14. At this stage, the focus must be on the job skills actually demanded by the job and not merely on the qualifications an employee might happen to possess. See id. But the position for which Armstrong was hired demanded and utilized both his previous banking experience and education and also his legal background. The Bank had not had in-house legal counsel for some time and Armstrong spent over one-half of his time in a legal capacity revising loan documents. Furthermore, he answered legal questions of the Board of Directors on a daily basis. Appellants obviously could not perform these tasks. Although prior presidents and vice presidents of the Bank did not have law degrees, we agree with the district court that the Bank was not required to ignore Armstrong’s education. The district court noted that by having previous presidents with no particular formal expertise in banking, the Bank had a “mediocre” operation. The Bank hoped to change this situation by hiring a more qualified individual instead of merely promoting from among the Bank’s current employees someone less qualified. Indeed, it appears the strategy worked, since after hiring Armstrong, the Bank’s profits quadrupled. We therefore uphold the district court’s finding that appellants failed to submit a prima facie case of sex discrimination, (footnotes omitted)

Bank of Dardanelle, slip op. at 3-4.

When the plaintiffs made out prima facie cases as required, the burden of production was then shifted to the defendant to articulate a legitimate, non-discriminatory reason for terminating the plaintiffs. The court finds that the defendant has met this burden in each of the seven cases.

Therefore, each plaintiff had to carry the ultimate burden of proving that he or she was the victim of intentional discrimination. This can be done by “directly persuading the court that a discriminatory reason more likely motivated the employer or ... by showing that the employer’s proffered explanation is unworthy of credence. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).

The plaintiffs also alleged discrimination in terms, conditions and privileges of employment. The Eighth Circuit has recently stressed that:

A working environment dominated by racial hostility ahd harassment constitutes a violation of Title VII regardless of any other tangible job detriment to minority employees. An employer violates Title VII simply by creating or condoning an environment at the work place which significantly and adversely affects the psychological well-being of an employee because of his or her race. * * *
More than a few isolated incidents of harassment must have occurred to establish a violation of Title VII. * * *
Whether the degree of harassment is sufficiently severe and persistent to trigger Title VII sanctions is to be determined from a totality of the circumstances.

Gilbert v. City of Little Rock, 722 F.2d 1390, 1394 (8th Cir.1984).

One of the allegations in this case is that the work atmosphere was pervasively polluted by racial slurs and racial jokes. Obviously, such a situation should not be forced upon minority employees. But the Court believes that the mere existence of some sporadic or isolated racial slurs does not necessarily establish a Title VII violation. Of course, if there is a “steady barrage of opprobrious racial comment” then a Title VII violation may arise. See Johnson v. Bunny Bread Co., 646 F.2d 1250, 1257 (8th Cir.1981), Taylor v. Jones, 653 F.2d 1193, 1199 (8th Cir.1981). Where the evidence does not show that the use of racial slurs is anything more than sporadic, particularly where management personnel are not directly involved in making or witnessing them, then that evidence, standing alone, will not “trigger” Title VII sanctions. See Bunny Bread, 646 F.2d at 1257. In the end, as noted in Gilbert, the totality of the circumstances must be assessed in determining whether to impose sanctions pursuant to Title VII.

Disparate Impact

The nature of the proof in a disparate impact case varies from that in a disparate treatment case. As observed by the Eighth Circuit in Kirby v. Colony Furniture Co., Inc., 613 F.2d 696, 703-04 (8th Cir.1980),

[P]roof of discriminatory intent is not required under a disparate impact theory. In such a case the Title VII claim is that a facially neutral employment practice actually falls more harshly on one racial group, thus having a disparate impact on that group____ As set out by the Court in Griggs v. Duke Power Co., supra [401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158], to establish a prima facie case on a disparate impact claim, a plaintiff need not show that the employer had a discriminatory intent but need only demonstrate that a particular practice in actuality “operates to exclude Negroes.” Once the plaintiff has established the disparate impact of the practice, the burden shifts to the employer to show that the practice has a “manifest relationship to the employment in question.” The “touchstone is business necessity” and the practice “must be shown to be necessary to safe and efficient job performance to survive a Title VII challenge.” Furnco Construction Co. v. Waters, supra, 438 U.S. [567] at 583, 98 S.Ct. [2943] at 2952-53 [57 L.Ed.2d 957] (Marshall, J., dissenting) (citations omitted); see e.g., United States v. St. Louis-San Francisco Ry., 464 F.2d 301, 308 (8th Cir.1972) (en banc), cert, denied, 409 U.S. 1107, 93 S.Ct. 900, 34 L.Ed. 687 (1973). If the employer then meets the burden of proving that its challenged employment practice is justified by business necessity, the plaintiff may then show that other employment practices, which lack a similarly discriminatory effect, would satisfy “the employer’s legitimate interest in ‘efficient and trustworthy workmanship.’ ” Albemarle Paper Co. v. Moody, supra, 422 U.S. at [405] 425, 95 S.Ct. [2362] at 2375 [45 L.Ed.2d 280], citing McDonnell Douglas Corp. v. Green, supra, 411 U.S. [792] at 802, 93 S.Ct. 1817 [36 L.Ed.2d 668]; cf. Dothard v. Rawlinson, 433 U.S. 321, 329, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977) (sex discrimination).
[12] Thus, an employment practice which has a disparate impact upon a group protected under Title VII is invalid unless the employer can prove the chailenged practice is justified by business necessity. In other words, under a disparate impact theory, a prima facie showing shifts the burden of producing evidence to the employer. The burden of proof is upon the employer to establish business necessity, (footnotes omitted)

Colony Furniture expressed some indecision as to the nature of the burden placed on the defendant once the plaintiff has made out its prima facie case. See 613 F.2d at 703 n. 5 (“The exact nature of this burden of proof is unclear.”). The Eleventh Circuit has indicated that the employer bears the burden of persuasion, not merely the burden of production:

A plaintiff may also bring a Title VII action under the disparate impact theory. Disparate impact is used to attack employment practices that are facially neutral yet fall more harshly on a protected class of employees. The employer’s intent is not at issue. Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). A prima facie case is established by identification of a neutral employment practice coupled with proof of its discriminatory impact. Johnson v. Uncle Ben’s Inc., 657 F.2d 750, 753 (5th Cir.1981), cert. denied, 459 U.S. 967, 103 S.Ct. 293, 74 L.Ed.2d 277 (1982). Disparate impact may be established by statistical evidence. New York City Transit Authority v. Beazer, 440 U.S. 568, 584, 99 S.Ct. 1355, 1365, 59 L.Ed.2d 587 (1979). Once plaintiff establishes a prima facie case the burden of persuasion shifts to the employer. Johnson, 657 F.2d at 752-53. The employer must then prove either that the practice is related to job performance, Dothard v. Rawlinson, 433 U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977), or that plaintiff’s statistical proof is unacceptable. EEOC v. Datapoint Corp., 570 F.2d 1264, 1269-70 (5th Cir.1978).

Eastland v. Tennessee Valley Authority, 704 F.2d 613, 619 (11th Cir.1983).

The Self-Regulated Work Force System.

All except one of the plaintiffs bring a disparate impact claim in addition to their disparate treatment claims. In essence, the plaintiffs allege that the defendant’s system of management and organization— the “self-regulated work force system”— has a disparate impact on blacks. According to the plaintiffs, the defendant’s Little Rock plant is “modeled on the soeiotechnical systems theory of Tavistock Institute of Human Relation, London, England.” Plaintiffs assert that “one of the attributes of this design is the organization of workers into responsible autonomous or semi-autonomous subgroups. The groupings of workers are related in terms of task requirements and task interdependence leading to development of mutually supportive roles.” As plaintiffs state, the employee teams are empowered through democratic processes to make certain decisions regarding employee discipline, work scheduling and assignment, training, etc.

The gravamen of plaintiff’s argument is that the self-regulated work force system adversely impacts on blacks because, despite the fact that blacks comprised approximately 30 percent of the overall work force and were included on each team, blacks allegedly fared less well under the system than did their white counterparts, particularly in the area of terminations.

In explaining the nature of the defendant’s management system, the plaintiffs relied principally on the testimony of Mr. Don Morrison, former plant manager of the Little Rock plant, and Dr. Chris Spatz, an associate professor at Hendrix College, who presented certain statistical evidence. It was Mr. Morrison who provided substantial testimony regarding the theory behind the self-regulated work force.

It should be noted that Mr. Morrison was part of the consulting team that designed the management system with the help of Dr. Lou Davis of U.C.L.A. As noted above, Mr. Morrison became the Little Rock plant’s second plant manager and in the five years he served in this capacity, he had a significant role in the implementation of the program.

Mr. Morrison explained that the program was designed to allow employees to have more input in some areas of management than that occurring in traditional American management systems. The designers of the system were striving to blend a technical system with a social system to develop a “team concept.” To accomplish this, the designers first identified the equipment and the areas in which it was to be located, then identified the applicable tasks and the number of personnel necessary to run each piece of equipment. Since the designers wanted members of each team to have similar working conditions, they broke down the organization into functionally-related groups. Six teams were then created for the Little Rock plant: Administration, Management, Roasting and Sorting (“R & S”), Processing and Packaging (“P & P”), Shipping and Receiving, and Preparation and Repair.

As noted previously, the management scheme was devised so that many employer rules would be actually developed by the employees, or perhaps more appropriately, by the teams. Certain basic rules were set by the company management, such as the production schedules, vacation policies, and holiday schedules. Nevertheless, the teams were given significant responsibility in formulating “norms” — i.e., certain performance or practice standards that the employees were expected to adhere to. The overriding theory was that if employees help to establish the norms, they will adhere to them. According to Mr. Morrison, there was no pre-established procedure for setting norms. Some norms were established in response to unforeseen problems. In some situations teams sought the help of management in devising appropriate norms. Plaintiffs offered Plaintiffs’ exhibit 209, “Code of Conduct”, as one example of the norms.

Mr. Morrison explained various other features of this management system. He noted, for example, that each team had several “coordinator” roles — positions held by employees who performed duties that in a “traditional” system would be carried out by management personnel. For instance, coordinators would do scheduling and implement training programs. Teams would also have a “counselor,” whose job it was to meet with workers whose behavior was deemed dysfunctional to the social and work system. Mr. Morrison stated that there was frequent “informal counseling” by which any one employee might attempt to help a co-worker. He stated that except for the norm on absenteeism there is no set number of times an employee can violate a norm before “official” counseling commences.

The basic system of “behavior review” is set forth in the plant’s written policies. See Plf’s exh. 175. Mr. Morrison described the various steps in the counseling/disciplinary system. Many “infractions” of norms were dealt with by the teams in the first instance. A team may vote to counsel a team member for violation of a norm, or alternatively it may vote to “contract” that team member — i.e., require that employee to agree in writing to mend his or her ways. Morrison noted that an employee could be terminated if he fails to live up to his contract, but he also pointed out that normally an employee who has been contracted would not be terminated without a prior finding that he is not fulfilling the contract.

Disciplinary authority is also exercised by the Plant Membership Review Board, comprised of one employee representative from each team together with one representative of management. This board conducts fact-finding investigations and then makes recommendations to the plant manager whether to retain or discharge an employee. Mr. Morrison stressed that the Board could only “recommend” — the final decision rests with the plant manager. Mr. Morrison noted also that disciplinary decisions normally were initially considered by the teams, and then only later considered by the Plant Review Board. For certain “serious” infractions, however, the Board would exercise automatic immediate review, regardless of whether there had been a prior recommendation to terminate or discipline by the relevant team. This immediate review alternative was specifically provided for under the plant’s written policy. See Plf’s exh. 175. Mr. Morrison cited “stealing” as an example of conduct that would merit immediate review by the Plant Review Board. Indeed, P & P team meeting minutes dated January 17, 1980, state that “Anyone caught stealing, permanent or temporary, will be fired.” See Plf’s exh. 318. As Morrison explained, if an employee has violated a very important norm, thus meriting direct review by the Plant Review Board, the team can make a recommendation to the Review Board, but this recommendation may have little impact on the Board’s or the manager’s decision.

Subjectivity in Decision-Making

The plaintiffs sought to make much out of the fact that some of the decision-making in these cases was tainted by subjective factors, rather than purely objective factors. As discussed elsewhere in this opinion, the plaintiffs’ allegations of pervading subjectivity in all decision-making was simply without a factual basis in the evidence. This is not to say that subjective views did not come into play in certain situations.

The Court believes that several comments are in order. First, the Court recognizes that the pervasive use of subjective standards can create a greater potential for racially discriminatory decision-making. As other courts have noted, use of subjective factors in evaluating employees for promotion or for discipline may be probative of intentional racial discrimination because such evaluation processes may mask actual racial bias. See Harris v. Ford Motor Co., 651 F.2d 609 (8th Cir. 1981); Satz v. ITT Financial Corp., 619 F.2d 738, 746 (8th Cir.1980). Yet the mere existence of subjective factors in employment decision-making does not necessarily require an inference that racial discrimination has occurred. The use of subjective factors per se is not an evil that is sought to be eliminated by way of Title VII and related legislation. See Anderson v. City of Bessemer City, 717 F.2d 149, 155 (4th Cir.1983); rather it is the use of racial factors in the employment decision-making context that is sought to be eliminated. Sometimes the two coincide: an employer may invoke loose or highly-discretionary policies in order to cloak its true reason for taking an adverse action — racial bias. Obviously, such situations are intolerable and, accordingly, the courts have wisely and properly realized that management systems characterized by subjectively-based decision-making are suspect. Thus, when a court encounters such a system it must be on alert and must subject the decision-making process to close scrutiny. Page v. Bolger, 645 F.2d 227, 230 (4th Cir.1981) (en banc).

However, courts must recognize that there are limitations on the ability of management to foretell and address with objective standards all potential problems that might arise in the workplace. In part, managers exist not only to apply the objective standards, but also to “fill in the gaps” when such objective standards are lacking. And whereas a well-established organization might be expected to fashion more objective rules, a new and emerging organization might be expected to have to resort to on-the-spot, case-by-case rule fashioning until precedents are established from which policy can be more confidently established. Furthermore, if “democracy” is to be introduced into the workplace, management must give up some of its old prerogatives and invest a limited amount of discretion in the employee teams.

Applying the preceding observations to the case at bar, it is noteworthy that the Best Foods plant first opened in 1977. Thus, at the time most of these problems and incidents arose, the plant had not been in full operation for a very long period of time. It is also relevant that, as discussed above, the Best Foods plant was clearly experimenting with a new and rather innovative form of workplace management. As might be expected, the company experienced some “growing pains” at least in the early going. Perhaps the greatest source of trouble was the periodic problem of management uncertainty. From time to time a problem would arise that had not been foreseen by the designers of the self-regulated workforce system. The teams would be involved in resolving an issue for which they knew of no precedent. See Plf’s exh. 266 (Social System Task Force Meeting Minutes of 5-28-80) (Statement of Allen Thomas). Apparently none of the employees had ever worked under this type of system and consequently they felt compelled to draw upon and seek out the knowledge and abilities of management personnel in order to deal with such unforeseen problems.

Thus, some of the decision-making appeared to have certain subjective aspects. While the teams were supposed in theory to make most disciplinary decisions, at least in the first instance, they would sometimes seek assistance from management— primarily Mr. Hirchak. The plaintiffs focused upon these instances as evincing some form of mistreatment of blacks. Yet it is clear to the Court that in the early stages of development of the self-regulated workforce system, the parties were simply uncertain how to proceed. The fact remains that at the time most of the problems resulting in this lawsuit arose — from 1977 to 1980 — there simply was a dearth of standard operating procedures. In short, at the times critical to this lawsuit, the procedures were not fully regularized. Obviously, such a condition will not immunize the defendant from actions that stemmed from discriminatory conduct. Yet, it is more difficult to draw an inference of discrimination from ad hoc responses to new problems when policies are in an evolutionary stage.

The dangers posed by the alleged subjectivity in discipline were also muted by certain built-in safeguards intended to prevent discrimination. It is clear that the teams were not given full power to decide the fate of their members. It is true that most significant disciplinary actions, such as termination, could be initiated by the team. But it is also true that there was a clear review process: most such “significant” actions would be subject to review by the Plant Review Board and then by the plant manager. This procedure provides a vehicle to expose discrimination if it is present and to insulate employees from bias. Cf. EEOC v. E.I. DuPont de Nemours & Co., 445 F.Supp. 223, 249 (D.Del.1978) (automatic review procedure and existence of written evaluation criteria insulate employees from bias).

As noted previously, there were certain allegations that the defendant had discriminated generally in terms and conditions of employment and that whites were treated more favorably than blacks. As to the general claim that whites were treated more favorably, the Court finds that the plaintiffs simply have not met their burden of proof in this regard. Although they presented some evidence to support such claims, this was successfully refuted both directly and indirectly by the evidence presented by the defendant. For example, several black employees testified that they did not feel blacks were, or are, treated less favorably than whites under this system. In fact many of the black witnesses including some plaintiffs praised the system in terms of its general operation. And the statistical evidence, discussed below, does not support such general allegations.

The plaintiff also claimed that a racist atmosphere prevailed at the plant and that this was due to the acts of the defendant. Several of the plaintiffs testified that they were subjected to racial epithets, and Mr. George McCarty, a white person, stated that he was offended by racist jokes that circulated in the plant. The critical fact is that there was little evidence that management was directly involved in any of this or that it in any way condoned or tolerated such behavior. It is true that Mr. McCarty stated that Mr. Lopez, the supervisor of maintenance was apparently privy to some racist remarks. Moreover, Mr. Jordan said that he was subject to a racial insult by the security guard when he and the guard had a confrontation. Finally, Ms. Walker stated Mr. Hirchak once called her a “nigger bitch.” As to this latter statement, the Court simply does not believe Ms. Walker. She never mentioned the statement previously, in her EEOC charge, in her complaint, or in her deposition. Furthermore, she never complained about it to Mr. Morrison or others. Having observed Mr. Hirchak and Ms. Walker at the time the alleged statement was cited at trial, the Court must conclude that the alleged racial remark by Mr. Hirchak never occurred. See discussion of Ms. Walker’s claim below.

The Court must also conclude that under the totality of the circumstances, the defendant did not create or condone a racist atmosphere. Nor did such an atmosphere exist. Like many business organizations, the defendant’s plant was apparently not free from some race problems, but they were sporadic and apparently confined to a relatively few black and white employees. There is nothing in the evidence that would trigger liability under Title VII or section 1981.

Statistics

The core evidence supporting the plaintiffs’ disparate impact claim was presented through the testimony of their statistics expert Dr. Chris Spatz, Jr. Dr. Spatz has served as Associate Professor at Hendrix College since 1973 and has authored several books, including a textbook on statistics. It was the Court’s general impression that, as the case went on, he became more of an advocate and less of an objective expert. Yet he was clearly well-motivated and has appropriate credentials. So it is important to deal with this study and his professional opinions.

Dr. Spatz employed, inter alia, the Chi Square Analysis to determine whether the discharge rate and advancement rates of employees at the plant were related to their race. As he explained, the chi square value would disclose the probability that the relationships seen might arise by chance alone. Dr. Spatz’s conclusions were summarized in a four-page table, Plf’s exh. 33. He stated that from his analysis he did not draw any conclusions regarding the type of management system used as opposed to any other standard management technique. He did conclude, however, that comparing whites to blacks, the differences in advancement and education were not statistically significant but that the difference in the discharge rates was significant.

Dr. Spatz stated that he did not compile his own data base. Instead, that base was furnished to him by the plaintiffs’ lawyer. The data base was comprised of 183 long-term employees at the plant between 1977 and January 13, 1981. He explained that he chose January 13, 1981, because that was the date the lawsuit was filed. Excluded from the group were employees who “did not fit into the time frame we were considering” as well as employees of Asian race.

It is proper to note at this point that the selection of January 13, 1981, had a very strong effect on the outcome of Dr. Spatz’s figures. The evidence revealed that on January 29, 1981, three whites were discharged from the plant for the same type of infraction that served as the basis for discharge for one of the plaintiffs. Since these three white persons were terminated, no other employee, black or white, has been discharged or fired from the plant. Thus, were the three whites included in Dr. Spatz’s computations his list would have included every single dischargee over the plant’s entire history. Dr. Spatz admitted that inclusion of the three would change the chi square value to the point that the difference in discharge rates between blacks and whites would no longer be statistically significant. As noted elsewhere in this opinion, there is nothing in the evidence to support the suggestion that the three whites were fired by the defendant in order to make the figures not statistically significant. The Court credits the defendant’s evidence that the three were discharged for the reasons stated.

It also appears that the plaintiffs included Mr. James Gatewood, a black employee, in the list of those discharged. The plaintiffs’ inclusion of Mr. Gatewood is understandable since the defendant supplied his name in a list of discharged personnel. See Plf’s exh. 552. At trial, however, it developed that Mr. Gatewood resigned and was not discharged. At first, Dr. Spatz said he did not know whether exclusion of Mr. Gatewood would change the degree of significance. Later, however, he admitted that the exclusion of Mr. Gatewood would reduce the statistical significance.

The defendant rebutted the plaintiffs’ statistical evidence through the testimony of Dr. Kent Galchus, Associate Professor of Economics at University of Arkansas at Little Rock since 1976. Dr. Galchus has impressive credentials. He has a Ph.D. degree and a J.D. degree and has authored numerous books and articles. Dr. Galchus refuted Dr. Spatz’s testimony on nearly every critical point. Most notably, the two differed over the applicability of the “Yates Correction for Continuity,” which is designed primarily for use with relatively small samples to increase the accuracy of the probability statement. See Barnes, Statistics As Proof: Fundamentals of Quantitative Evidence, 180-81 (1983), Plf’s exh. 556.

Dr. Spatz asserted that the Yates Correction tends to “overcorrect” and he cited one study in support of his position. See Plf’s exh. 556. It appears that it is generally acknowledged in the statistics filed that the Yates Correction does have certain limits. Dr. Spatz explained that the key to implementing the Yates Corporation does have certain limits. Dr. Spatz explained that the key to implementing the Yates Correction factor turned on whether there is a discrete versus a continuous distribution. Dr. Galchus stated that the Yates Correction factor was applicable because there was a discrete distribution — i.e., it is not possible to have IV2 blacks v. 2V2 whites, etc. Dr. Galchus acknowledged that the Yates Correction factor was not recommended where the sample is random, but it is acceptable where, as in this case, the sample is fixed. Dr. Spatz attempted to argue at one point that the Yates Correction was still applicable in this case because the figures he used were random. It appears that he based this conclusion on the fact that the three whites discharged in January of 1981 were not included in his sample. Dr. Spatz later agreed that the addition of the three would provide the entire population of those discharged and thus, a fixed number with which to work. In this situation, it seems clear that the use of the Yates Correction factor would be appropriate.

The Court deemed much of the controversy over applicability of the Yates Correction factor to be somewhat superfluous. There were, of course, numerous questionable aspects to the method by which the plaintiffs’ sample was defined and selected. And as noted above, even Dr. Spatz was forced to admit that the inclusion of the three whites who were discharged in January of 1981, as well as the deletion of Mr. Gatewood, would have rendered the result statistically insignificant. Thus, even if the Yates factor were ignored, the fact remains that the plaintiffs’ statistics simply did not reach the necessary level to be deemed statistically significant. The Court concludes that in this case the use of the Yates factor was appropriate. Application of this factor further reduced the significance of the plaintiffs’ statistics.

More importantly, the Court credits the testimony of Dr. Galchus. It concludes that the true statistics simply fail to reach the necessary degree of significance to support the claim that blacks were being discharged at a disproportionate rate. Furthermore, as the plaintiffs’ own analysis demonstrated, the statistics do not support the plaintiffs’ claim with respect to promotions and advancement. See Plf s exh. 33, p. 3. Furthermore the plaintiffs have failed to establish the necessary causative nexus between the self-regulated work force system and the discharges at the defendant’s plant.

From the evidence, the Court finds and concludes that the plaintiffs have failed to make out a prima facie case that the system of management employed by the defendant has a disparate impact on blacks. Each plaintiff must therefore establish his or her disparate treatment claim in order to prevail.

Before taking up the individual disparate treatment claims, the Court observes that even if this management system were shown to have had a disparate impact on black employees, it would not follow that the system should therefore be automatically stricken down. Democracy in the workplace is a concept favored by many, both in labor and in management. The democratic process always contains some potential of penalizing minority groups whether such groups be racial, religious, economic or political. This is true not only when such a process is employed in the workplace but also in the larger political life of citizens in all democratic nations. That possibility, or even actuality, should not be sufficient, without more, to condemn the whole process. And even though other systems might meet the employer’s strictly business objectives, the wider social objectives of such employee-democracy systems should not be sacrificed solely because of the availability of such traditional alternate management systems. Rather, the emphasis should be placed on devising safeguards of minority rights in the manner that the U.S. Constitution protects certain rights of minorities while still permitting majority rule in most areas.

And there is a more fundamental question: Should such management systems be treated under the disparate impact analysis at all? Or stated otherwise, can the company by choosing such a management system be thereby said to have adopted a “policy” or “practice” which, upon later analysis, may be said to have a disparate impact? The policy of democracy in the workplace, it can be argued, is not what might cause some later identified disparate impact. Rather it can only be the perversion of, or the improper use of, such a system that would have such a result. Therefore, it can be argued, it would follow that one must pursue a disparate treatment approach by establishing in the particular case that discriminatory racial motives were injected into the democratic process. This analysis reveals the causation problem. Democracy in the workplace can simply not be equated to such policies as requiring janitors to have high school diplomas. However, it is not necessary to deal with this issue further because, even if the disparate impact analysis is appropriate in such cases generally, the evidence does not disclose such an impact here.

Editor’s Note: at the suggestion of the court, the remainder of the opinion, dealing with individual claims, has been omitted from publication.

      . Osborne cited a fourth factor to be shown that the Eighth Circuit in Bunny Bread failed to mention: that the defendant sought persons with the plaintiffs qualifications to fill his former job after the plaintiffs discharge. See 620 F.2d at 198.

      . Mr. McCarty stated also that from time to time he also told racial jokes.

      . It should be noted, however, that another race discrimination case had been filed by black employees against the company in 1978. See Deloney v. Best Foods, No. LR-C-87-248.

      . Apparently at least two employees, Ms. Ella Berry and Mr. Koy Nakanshi were excluded because they were considered to be Asian.