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EEOC v. SPOKANE CONCRETE PRODS.

March 12, 1982

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v.
SPOKANE CONCRETE PRODUCTS, INC., Defendant



The opinion of the court was delivered by: QUACKENBUSH

MEMORANDUM OPINION

 Spokane Concrete is a Washington corporation, doing business in the State of Washington, engaged in the manufacture, sale and distribution of concrete pipe and related concrete products. At all times pertinent to this action, Spokane Concrete has employed more than fifteen (15) employees. The acts alleged in plaintiff's complaint were committed within the state and the Eastern District of Washington. All conditions precedent to the filing of this action have been fulfilled. On May 12, 1977, Beatrice Sellers (Beatrice Sellers-McKenna since July, 1981), filed a charge with the Commission against Spokane Concrete alleging that Spokane Concrete had discriminated against her in employment because of her sex.

 On May 9, 1977, a vacancy for a truck driver position existed at Spokane Concrete. Spokane Concrete called the Spokane office of the Washington State Employment Security Department on or about May 9, 1977, requesting applicants for the position of truck driver. The job order which the Department issued in response to Spokane Concrete's request for applicants stated:

 
"Need person who is qualified to drive combination diesel rigs, semi- and tractor-trailer rigs. Will haul concrete pipe products in and out of town. Will return home every night. Will have to load and unload own rig. Must have or be able to obtain combination license. 8-5 M-F ..."

 Beatrice Sellers-McKenna was sent to Spokane Concrete by Margaret Burns Pirie, her WIN counselor at the Washington State Employment Security Department, as an applicant for the truck driver position. Ms. Sellers-McKenna filled out an application for the truck driver position at Spokane Concrete on May 9, 1977. At that time, she had a combination license, she had worked as a truck driver for a salvage business since 1974 whenever the company needed a truck driver, and held a full-time position as a truck driver between 1975 and 1977 for a carrier company where she was responsible for loading and unloading heavy items from the truck. Before she applied at Spokane Concrete, Ms. Sellers-McKenna also attended a mechanical training and manuvering course in 1975, had received a truck driving training certificate in 1977 and was finishing a course in traffic management. Defendant's application form did not ask about the applicant's strength or physical abilities.

 After filling out the application form, Ms. Sellers-McKenna was interviewed for approximately five to ten minutes on May 9, 1977, by Leland R. Hubenthal. Ms. Sellers-McKenna testified that approximately one minute of the interview was spent in actual verbal exchange. She further testified that she was not asked about previous experience, whether she had any health problems, or how much weight she could lift. She recalled her interviewer saying to her, "Do you realize pipe weighs up to three hundred pounds? Do you get my message?" Ms. Sellers-McKenna further testified that she knew she could do the job. She stated she was heavier in 1977 than she is now, and in good shape from heavy lifting. Ms. Sellers-McKenna's WIN counselor testified that she would not have sent the applicant to the defendant's office had she not believed her to be qualified, although, Ms. Pirie did state that she was not aware of the actual number of pounds involved in the loading and unloading. At the interview, Ms. Sellers-McKenna was also asked whether she had transportation and child care. She was not given a test of any kind by defendant.

 Mr. Coleman was paid $ 5.47 per hour commencing May 9, 1977 with an increase to $ 5.97 per hour from May 23, 1977 until April 1, 1978. From the latter date through December 26, 1978, the date of Mr. Coleman's termination, he was paid $ 6.35 per hour. From April 1, 1979 through March 31, 1980, the wage of a truck driver at Spokane Concrete was $ 6.73 per hour. From April 1, 1980 through March 31, 1981 that position paid $ 7.55 per hour. From April 1, 1981 to the date of trial the position of truck driver at Spokane Concrete paid $ 8.40 per hour. Between May 1977 and December 1978, Bruce Coleman earned $ 25,479.00.

 Between May 9, 1977 and October 1977, Beatrice Sellers was unemployed. Between October, 1977 and May 1979, Beatrice Sellers-McKenna was employed at National Electric Coil at the rate of $ 4.17 per hour. In May, 1979, Beatrice Sellers-McKenna was laid off at National Electric Coil and was unemployed until October, 1979. Between October, 1979 and August, 1980, Beatrice Sellers-McKenna was employed at R. A. Hanson at the rate of $ 1,025.00 per month. In August, 1980, Ms. Sellers-McKenna was laid off and was unemployed until April, 1981.

 Between April, 1981 and July, 1981, Ms. Sellers-McKenna was employed at Foley, Wismer and Becker at the rate of $ 17.65 per hour. In July, 1981, Ms. Sellers-McKenna moved to Canada and was unemployed until September, 1981. From September, 1981 to the present, Beatrice Sellers-McKenna has been employed at Calgary Auxiliary Hospitals, Calgary, Canada at the rate of $ 22,500.00 per year.

 DISCUSSION

 Liability

 The burdens of proof in "disparate treatment" discrimination cases such as this one were set forth by the Supreme Court in McDonnell Douglas v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), as further defined in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). If the plaintiff establishes a prima facie case, the burden then shifts to the defendant to articulate a legitimate, non-discriminatory reason for rejecting the applicant. If the defendant meets that burden, the plaintiff must show the reasons offered by defendant were a pretext for discrimination. Burdine, supra, 101 S. Ct., at 1097.

 Specifically, the McDonnell Douglas elements for a prima facie case of disparate treatment are that ...


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